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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

     Argued October 13, 1992 -- Decided August 1, 1994

     PER CURIAM

    In Maldonado, Lucy Maldonado obtained heroin for her boyfriend Larry Dunka, who died sometime after injecting the drug. Maldonado was prosecuted for various offenses including a violation of N.J.S.A. 2C:35-9 (section 9), a statute under the Comprehensive Drug Reform Act of 1986 (Act) that imposes strict criminal liability on manufacturers and distributors of certain controlled dangerous substances when death results from the ingestion of the substance. Maldonado pleaded guilty to the section 9 offense, reserving her right to appeal on constitutional grounds. She was sentenced to fifteen-years imprisonment with a parole ineligibility period of seven years.

    In Rodriguez, Carlos Rodriguez distributed cocaine to Fred Bennett. In an attempt to hide the evidence after police arrived, Bennett swallowed a plastic bag containing cocaine and died about one-half hour later. Rodriguez was charged and convicted of violating section 9 for Bennett's death along with other drug offenses. On the section 9 count, the court sentenced Rodriguez to an eighteen-year term. The court merged the count for possession into the possession with intent to distribute count, for which he was sentenced to a five-year term. On the school zone count, Rodriguez was sentenced to a term of four years with a three-year parole disqualifier. The sentences were to run consecutively.

    Both Maldonado and Rodriguez challenged the constitutionality of section 9. Generally a defendant convicted of distribution or manufacturing CDS is subject to second or third-degree punishment, but if a person dies from ingestion of those drugs, then the defendant is guilty of a first-degree offense. Conviction under section 9 occurs whether or not the defendant was aware of the victim's ingestion, as long as the State can also prove that the death was neither too remote from the defendant's actions nor too dependent on another's conduct to make the conviction unjust.

    In Maldonado and Rodriguez, the Appellate Division affirmed the convictions and upheld the constitutionality of section 9. In Rodriguez, the Appellate Division also rejected Rodriguez's claims that the death was too remote as a matter of law, that the charge did not adequately explain his factual claims of remoteness, and, in any event, that it improperly placed the burden of proof on Rodriguez. The Supreme Court granted certification in Maldonado to address the constitutionality of section 9. The Court granted certification in Rodriguez to address the constitutional issue as well as claims of error in the charge and the sentence.

HELD:    N.J.S.A. 2C:35-9 is constitutional in all respects. In addition, a conviction under N.J.S.A. 2C:35-5(a), the general distributing/manufacturing/dispensing offense, must merge into a conviction under N.J.S.A. 2C:35-9.

1.    Section 9 eliminates criminal intent in that a defendant must be culpable for the underlying distribution offense but no culpability is required for the death that results; the defendant is guilty whether he or she intends the death or has absolutely no idea that it may occur. Liability under section 9 is similar to liability for felony murder. (pp 7-11)

2.    A state has the power to define a crime without proof of criminal intent so long as the definition does not offend fundamental notions of justice. Constitutional-due-process limitations on strict liability criminal statutes apply only when the underlying conduct is so unworthy of blame that persons violating the statute would have no notice that they were breaking the law. However, illegal distribution does not fit that exception. Moreover, even if strict liability is unfair or unjust in some situations, it does not reach the point of invoking constitutional due process limits on what would otherwise be clear legislative power. Any injustice that results from the imposition of strict liability is more than counterbalanced by the benefit to the

public; society has targeted drug distribution that causes death for enhanced punishment to protect the public safety and the Legislature has responded. Thus, there is a rational justification existing for the legislative determination that section 9 will be a deterrent and is warranted to protect the public. (pp. 11-21)

3.    Section 9 is not cruel and unusual punishment; the offense conforms with contemporary standards of decency and the punishment is not grossly disproportionate to the offense. In view of society's strong conviction to eradicate drug abuse, "contemporary standards of decency" tolerate, if not mandate, strict punishment of drug manufacturers and distributors whose drugs prove deadly. Moreover, many jurisdictions have enacted similar strict liability statutes indicating that section 9 is not out of step with current norms. Furthermore, added penalties based on result are common in the criminal law and have never been held violative of the Cruel and Unusual Punishment Clause. (pp. 21-29)

4.    On the basis of sound policy, the "not too remote" element survives both a facial vagueness challenge and vague as-applied claims. The Court sustains the "not too remote" element on the basis of sound policy and the inherent limitation of language when applied to the circumstances that "remoteness" is intended to address. No other standard can accommodate the Court's sense of justice than the "too remote to have a just bearing" standard. Despite the indefiniteness of the remoteness limitation on liability, fairness seems to require this type of limitation on a defendant's liability. The standard represents a community's sense of justice regarding whether a defendant should be relieved of punishment because the result appeared too distant from his or her act. (pp. 29-43)

5.    It is also contended that section 9 deprives defendants of the effective use of the intervening cause of a victim who intentionally, knowingly and recklessly ingests the drugs as either a defense or to prove remoteness. While remoteness under section 9 might not be as broad a defense as it might otherwise be, it remains available. There is nothing in the law or the constitution that requires that the Legislature consider all factors or that deprives the Legislature from excluding or diminishing any factor that it believes might, if included, significantly adversely affect the law and its purposes. Furthermore, any differences between felony murder and section 9 that disadvantages defendants in drug death cases are significantly counterbalanced by other considerations. Even if they were not, the limits and extent of the remoteness factor is a decision for the Legislature. (pp. 43-49)

6.    Rodriguez contends that the court in charging the jury failed to explain the potential significance of Bennett's ingestion of the drugs to avoid prosecution and that such evidence was critical in rebutting the prosecution's proof that the death was not too remote. If there was any error in that charge, it was harmless because the issue was both understood by the jury and, in effect, submitted to it. Rodriguez also argues that the trial court failed to properly instruct the jury consistent with his version of the facts; however, he failed to present evidence at trial that would give rise to a different factual scenario necessitating an alternative charge. The trial court charged the jury consistently with the evidence and clearly informed the jury that the State was obligated to prove every element of the offense. (pp. 49-56)

7.    Rodriguez contends that his conviction for distributing drugs near school property should be merged with the section 9 drug death conviction. Because each offense requires proof of an element the other does not, imposing two different sentences on Rodriguez does not violate principles of double jeopardy. Thus, neither legislative intent nor constitutional limitations requires that convictions for violation of the school zone statute and section 9 be merged. Rodriguez also questions whether the basic distribution/manufacture/dispensing offense should have merged with his conviction under section 9. Because all the elements of the distribution offense are implicated when a defendant is convicted under section 9, double-jeopardy principles would require merger of those convictions. (pp. 56-63)

    Judgment of the Appellate Division is AFFIRMED and the matter in Rodriguez is REMANDED to the Law Division for resentencing in conformance with the affirmance of the Appellate Division's determination.

     CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion. JUSTICE HANDLER concurs in the result only.                         SUPREME COURT OF NEW JERSEY
                        A-25/ 46 September Term 1992

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.                        (A-25)

LUCY MALDONADO,

    Defendant-Appellant.
--------------------------------
STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.                        (A-46)

CARLOS RODRIGUEZ,

    Defendant-Appellant.

Argued October 13, 1992 -- Decided August 1, 1994

On certification to the Superior Court, Appellate Division.

Claudia Van Wyk, Deputy Public Defender II, argued the cause for appellants (Zulima V. Farber, Public Defender, attorney).

Robin Parker, Deputy Attorney General, argued the cause for respondent in State v. Lucy Maldano (Robert J. Del Tufo, Attorney General of New Jersey, attorney).

Chana Barron, Deputy Attorney General, argued the cause for respondent in State v. Carlos Rodriguez (Robert J. Del Tufo, Attorney General of New Jersey, attorney).

PER CURIAM

    Defendants in these two cases challenge the constitutionality of that portion of the Comprehensive Drug Reform Act of 1986 (the Act) that imposes strict criminal liability on manufacturers and distributors of certain controlled dangerous substances (CDS) when death results from the ingestion of the CDSs. N.J.S.A. 2C:35-9. A defendant convicted of distribution or manufacturing is subject to second or third-degree punishment, but if a person dies from ingestion of those CDSs then the defendant is guilty of a first-degree offense. Conviction under the drug death statute requires only that but for the ingestion the death would not have occurred, no matter how "innocent" defendant might otherwise be, if the State can also prove that the death was neither too remote from the defendant's actions nor too dependent on another's conduct to make the conviction unjust.
    N.J.S.A. 2C:35-9 (section 9) reads as follows:
         a. Any person who manufactures, distributes or dispenses methamphetamine, lysergic acid diethylamide, phencyclidine or any other controlled dangerous substance classified in Schedules I or II, or any controlled substance analog thereof, in violation of subsection a. of N.J.S. 2C:35-5, is strictly liable for a death which results from the injection, inhalation or ingestion of that substance, and is guilty of a crime of the first degree.

        b. The provisions of N.J.S. 2C:2-3 (governing the causal relationship between conduct and result) shall not apply in a prosecution under this section. For purposes of this offense, the defendant's act of manufacturing, distributing or dispensing a substance is the cause of a death when:

        (1) The injection, inhalation or ingestion of the substance is an antecedent but for which the death would not have occurred; and

        (2) The death was not:

        (a) too remote in its occurrence as to have a just bearing on the defendant's liability; or

        (b) too dependent upon conduct of another person which was unrelated to the injection, inhalation or ingestion of the substance or its effect as to have a just bearing on the defendant's liability.

        c. It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by his purposeful, knowing, reckless or negligent injection, inhalation or ingestion of the substance, or by his consenting to the administration of the substance by another.

        d. Nothing in this section shall be construed to preclude or limit any prosecution for homicide. Notwithstanding the provisions of N.J.S. 2C:1-8 or any other provision of law, a conviction arising under this section shall not merge with a conviction for leader of narcotics trafficking network, maintaining or operating a controlled dangerous substance production facility, or for unlawfully manufacturing, distributing, dispensing or possessing with intent to manufacture, distribute or dispense the controlled dangerous substance or controlled substance analog which resulted in the death.
    

    In Maldonado, the only question is the constitutionality of section 9, the Court having limited its grant of certification to that issue, 127 N.J. 564 (1992). In Rodriguez, in which we likewise granted certification, 130 N.J. 11 (1992), in addition to the issue of constitutionality,

we must decide claims of error concerning the charge and the sentence.
    We find section 9 to be constitutional in all respects, and affirm the judgments of the Appellate Division in both cases.

it reaches unduly remote results" and is "unconstitutionally vague."
    In Rodriguez, defendant distributed cocaine to Fred Bennett. Present were Susan Hendricks, defendant's girlfriend, and another man who had accompanied Bennett to defendant's apartment. The cocaine had been weighed and bagged when the police broke into the apartment. In an attempt to hide the evidence, Hendricks and Bennett each swallowed a plastic bag containing cocaine. Within minutes of the police entry, Hendricks collapsed in convulsions on the floor. Emergency medical workers were summoned and, with Bennett looking on, they attempted to resuscitate her. While the medical workers attempted to revive Hendricks, they specifically asked whether anyone else had swallowed drugs. Bennett responded that he had not. Approximately a half hour later, Bennett also went into convulsions and died at the scene. Hendricks subsequently died at the hospital. Rodriguez was charged with violating section 9 for Bennett's death only.
    A jury convicted Rodriguez for violating section 9 and for other offenses. On the section 9 count the court sentenced him to an eighteen-year term. The court merged the counts for possession and possession with intent to distribute into the distribution count, for which he was sentenced to a five-year term. On the school zone count he was sentenced to a term of four years subject to a three-year parole

disqualification. The three sentences were to run consecutively. On appeal the Appellate Division upheld the constitutionality of section 9, affirmed the convictions, merged the distribution conviction into the school zone conviction, and ordered that the sentences for the school zone conviction and the drug death conviction run concurrently.
    In addition to sustaining the constitutionality of section 9, the Appellate Division rejected Rodriguez's claims that the death was too remote as a matter of law, that the charge did not adequately explain his factual claims of remoteness, and, in any event, that it improperly placed the burden of proof on defendant. In sustaining section 9's constitutionality the court, as it did in Maldonado, relied also on our decision in State v. Martin, 119 N.J. 2 (1990), in which we imported a remoteness factor into felony-murder jurisprudence. Id. at 31-33. The court also rejected defendant's contention that his school distribution conviction should merge into the section 9 conviction.

section 9 deprives the defendants of due process of law, and inflicts cruel and unusual punishment, and the "not too remote" element is unconstitutionally vague and unfair. Defendants rely on the Federal and State Constitutions, although no differentiation is suggested by either defendant.

commission of a felony notwithstanding that the felon did not purposely, knowingly, recklessly or negligently cause the death. Martin, supra, 119 N.J. at 28 (concluding that felony murder is absolute-liability offense). Similarly, under section 9, a defendant will be criminally liable in the first degree for a death caused by the defendant's distribution of a CDS even if the defendant did not purposely, knowingly, recklessly, or negligently cause the death.
    The conceptual framework of defendants' arguments rests in part on the assertion that as the punishment for the offense becomes greater, including more extensive terms of imprisonment, legislative power to impose strict liability becomes constitutionally diminished until it reaches a point at which imposition is prohibited. Applying that concept, defendants emphasize the section's imposition of a potential twenty-year term of imprisonment for what would otherwise be a third or second-degree crime with maximum imprisonment of five or ten years, when according to their argument, a defendant may be totally blameless in a moral sense for the death that occurred. A defendant may have had no reason to believe any death might occur, nor intended, expected, or been able to foresee any such outcome, having merely distributed a small amount of a substance that, the distributor believed, is almost invariably used without harm for social purposes.
    The law in this area is well-settled to the contrary.

"The legislatures have always been allowed wide freedom to determine the extent to which moral culpability should be a prerequisite to conviction of a crime." Powell v. Texas, 392 U.S. 514, 545, 88 S. Ct. 2145, 2160, 20 L. Ed.2d 1254, 1274 (1968) (Black, J., concurring). As our Court of Errors and Appeals held over one hundred years ago, "Nothing in the law is more incontestable than that, with respect to statutory offenses, the maxim that crime proceeds only from a criminal mind does not universally apply." Halsted v. State, 41 N.J.L. 552, 589 (E. & A. 1879). Although the justifications may differ, case after case, almost without exception, has upheld the power of the states to impose strict criminal liability not only in a regulatory setting but for serious offenses as well. United States v. Balint, 258 U.S. 250, 254, 42 S. Ct. 301, 303, 66 L. Ed.2d 604, 606 (1922) (upholding constitutionality of statute prohibiting sale of illegal drugs that lacked mens rea element); United States v. Holland, 810 F.2d 1215, 1222-24 (D.C. Cir. 1987) (upholding constitutionality of statute prohibiting sale of drugs near school zone regardless of defendant's knowledge of school's location); United States v. Engler, 806 F.2d 425, 436 (3rd Cir. 1986), cert. denied, 481 U.S. 1019, 107 S. Ct. 1900, 95 L. Ed.2d 506 (1987) (upholding constitutionality of strict liability provision of Migratory Bird Treaty Act); Guam v. Root, 524 F.2d 195, 197-98 (9th Cir. 1975), cert. denied, 423 U.S. 1076, 96 S. Ct. 861, 47 L. Ed.2d 86 (1976) (upholding

constitutionality of felony-murder statute); Brown v. State, 448 N.E.2d 10, 15 (Ind. 1983) (upholding constitutionality of strict liability felony-murder statute). But see State v. Guest, 583 P.2d 836, 839-40 (Alaska 1978) (holding that defendant could not be convicted of statutory rape if he had reasonable belief that victim was of age; proof of intent is constitutional requirement for serious offenses).
    Treatment of the felony-murder rule also illustrates the power of the states to create strict liability crimes. The ancient rule was created apart from any constitutional considerations and has been bombarded by intense criticism and constitutional attack. People v. Aaron, 299 N.W.2d 304, 327-29 (Mich. 1980) (concluding that original justifications for felony-murder rule no longer exist today); State v. Price, 726 P.2d 857, 859 (N.M. Ct. App. 1986) (criticizing doctrine as "result-oriented"); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 72, at 560-61 (1972) (criticizing doctrine as unjustified and predicting its obsolescence); Nelson E. Roth & Scott E. Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L. Rev. 446 (1985) (arguing that felony-murder rule violates Due Process and Cruel and Unusual Punishment Clauses of Federal Constitution); W.E. Shipley, Annotation, Judicial Abrogation of the Felony Murder Doctrine, 13 A.L.R.4th 1226 (1982).
    Nonetheless, the rule has survived more or less intact and still thrives today. Thus, its continued vitality is a

strong indicator of states' power to impose strict criminal liability. See Lockett v. Ohio, 438 U.S. 586, 602, 98 S. Ct. 2954, 2963-64, 57 L. Ed.2d 973, 988 (1978) (plurality opinion) ("That States have authority . . . to enact felony-murder statutes is beyond constitutional challenge."). That felony murder is today almost invariably found in statutory form further demonstrates its resistance to constitutional challenge. E.g., N.J.S.A. 2C:11-3(a)(3); Ala. Code § 13A-6-2 (1993); Cal. Penal Code § 189 (West 1994); N.Y. Penal Law § 125.25 (McKinney 1994).
    Indeed, directly contrary to defendants' bedrock assertion, the cases show that the Constitution places a lesser burden on the states to justify strict liability for serious criminal offenses than for regulatory offenses. Absolute liability for regulatory offenses traditionally finds justification in administrative convenience, the need to deter through the most effective forms of prosecution, dispensing with proof of intent, and imposing relatively minor punishment, all adding up to a conclusion that whatever injustice results from strict liability is more than counterbalanced by benefit to the public. E.g., State v. Hatch, 64 N.J 179, 184-85 (1973) (upholding constitutionality of gun control statute without mens rea element as applied to both state residents and nonresidents); United States v. Greenbaum, 138 F.2d 437, 438 (3rd Cir. 1943) (upholding constitutionality of statute prohibiting transportation of

adulterated food without requiring knowledge or wrongful intent); Ex parte Marley, 175 P.2d 832, 835 (Cal. 1946) (upholding constitutionality of statute prohibiting sale of commodity at false weight regardless of seller's intent); People v. Travers, 124 Cal. Rptr. 728, 730 (Cal. Ct. App. 1975) (upholding constitutionality of statute prohibiting sale of mislabelled motor oil regardless of seller's intent); People v. Brown, 457 N.E.2d 6, 9 (Ill. 1983) (upholding constitutionality of statute prohibiting possession of motor vehicles with falsified or removed identification numbers without mens rea element); State v. Baltimore and Susquehanna Steam Co., 13 Md. 181, 187 (1857) (upholding conviction for transporting slave without consent of owner regardless of carrier's knowledge that slave was on board); Hobbs v. Winchester Corp., 2 K.B. 471, 483-85 (C.A. 1910) (upholding conviction of butcher for selling unsound meat regardless of butcher's actual or constructive knowledge). See generally Frances B. Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55 (1933) (chronicling growth of and justifications for regulatory offenses). While similar reasoning may be found in some of the cases imposing strict liability for serious criminal offenses involving substantial terms of imprisonment, the overwhelming majority of them make clear that such justifications are not essential, that the legislature's rational conclusion that the safety of the public requires such draconian measures is enough. E.g., Holland, supra, 810 F. 2d at 1223 (upholding constitutionality of statutes prohibiting sale of drugs near school regardless of defendant's knowledge of school's location); State v. Celaya, 660 P.2d 849, 856 (Ariz. 1983) (upholding constitutionality of felony-murder statute); State v. Goodseal, 553 P.2d 279, 286 (Kan. 1976) (same); People v. Benson, 480 N.Y.S.2d 811, 814 (Sup. Ct. 1984) (same); State v. Hermann, 474 N.W.2d 906, 912 (Wis. App.), review denied, 477 N.W.2d 286 (1991) (upholding constitutionality of statute enhancing punishment for drug sale near school property, without requiring proof of scienter). The usual rationale is that the added deterrence of strict liability is all the justification that is needed in view of the serious threat to public safety posed by the
conduct prohibited by those laws. In the case of felony murder, although the constitutional analysis follows long after its origin, that justification notes the increased risk of homicide during felonies and the need therefore to deter such conduct.See footnote 1 Goodseal, supra, 553 P. 2d at 286.
    Here the justification is even stronger: not only is the risk of death clearly present when drugs such as heroin and cocaine are distributed, but the conduct sought to be deterred -- illegal drug manufacture and drug distribution -- is also widely regarded as constituting the most substantial threat to

public safety that now exists.See footnote 2 Society has targeted drug distribution that causes death for enhanced punishment to protect the safety of the public. This judgment is for the Legislature to make. All that is needed is a "conceivable rational basis" for their conclusion that such added deterrent effect is warranted to protect society. Town of Secaucus v. Hudson County Bd. of Taxation, 133 N.J. 482, 494-95 (1993), cert. den., ___ U.S. ___, 114 S. Ct. 1050, 127 L. Ed.2d 372 (1994). But in this case more than conceivable rationality is present, for the facts and figures irrefutably support that conclusion. Nationally, in 1986, the year prior to the enactment of the drug death statute, more than 37,000 people suffered drug-related deaths. Bureau of Justice Assistance, U.S. Department of Justice, Report on Drug Control 26 (1987). Many of these deaths can be traced to the illegal drug trade, which is the "most widespread and lucrative organized crime activity in the United States." President's Commission on Organized Crime, America's Habit: Drug Abuse, Drug

Trafficking and Organized Crime 6 (1986). Statistics regarding New Jersey's drug trade sound even louder alarms. The Attorney General at the time of the Act's passage reported that "[a]pproximately fifty percent of all crimes prosecuted in New Jersey are drug related. At least one-third of all crimes in this state, including violent crime and thefts, are committed by persons who are under the influence of alcohol or illicit substances." W. Cary Edwards, An Overview of the Comprehensive Drug Reform Act of 1987 [sic], 13 Seton Hall Legis. J. 5, 9 (1989) (citing statistics compiled by Office of Attorney General).
    As for the effectiveness of strict liability imposed by a law such as section 9, the same standard applies, and we must conclude that a rational justification exists for the legislative determination that it will help. See State v. Ivory, 124 N.J. 582, 592-95 (1991) (upholding statute enhancing punishment for drug distribution within one thousand feet of school property regardless of defendant's knowledge, because it "presents a rational and reasonable approach by the Legislature to reduce drugs around schools").
    Practically all of the state decisions conform to this point of view. A sampling of cases considering the constitutionality of felony-murder statutes that do not require proof of intent to commit the homicidal act exemplify the rule. The Kansas Supreme Court upheld that state's felony-murder rule, after noting that it is "designed to

protect human life," because the state's legislative "enactments in such areas are not to be judicially curtailed where they reasonably relate to the ends sought to be attained." Goodseal, supra, 553 P. 2d at 286. The Arizona Supreme Court quoted Goodseal to make the same point. See Celaya, supra, 660 P. 2d at 856. A New York Supreme Court decision follows the same pattern, holding that "[i]t is for the Legislature and not for the courts to determine the proper elements of felony murder." Benson, supra, 480 N.Y.S. 2d at 814. These cases illustrate the rule followed in almost all jurisdictions that a state can justify imposition of strict liability for a serious criminal offense merely by suggesting a rational basis to support the legislative determination that the added deterrence of strict liability punishment represents a reasonable approach.
    Only cases from Alaska appear to diverge from the overwhelming majority view. The Alaska Supreme Court has regularly held that proof of mens rea is required in order to impose criminal punishment. E.g., Guest, supra, 583 P. 2d at 838; Spiedel v. State, 460 P.2d 77, 78 (1969).
    In New Jersey we have upheld the constitutionality of criminal convictions under statutes imposing strict criminal liability in a variety of circumstances in which some might call the defendant, at least in a limited sense, "blameless." In State v. Fearick, 69 N.J. 32 (1976), a driver with a suspended driver's license was subject to mandatory

imprisonment for being involved in an accident resulting in personal injury, even though the accident was not caused by any fault of the driver. In Ivory, supra, a drug dealer riding his bicycle near a public park was subject to enhanced punishment under a statute regulating possession of drugs within 1000 feet of a school with intent to distribute even though the State did not prove that the dealer intended to sell drugs near school property, even though the State did not prove the dealer knew the park was "school property," and even though the park, owned by a parochial school, was leased to the city and regularly used for general recreational purposes. 124 N.J. at 592-95. In State v. Hatch, 64 N.J. 179 (1973), we held that a Massachusetts resident driving through New Jersey on his way to Pennsylvania could be convicted of violating this State's gun control statutes requiring a "firearm purchaser identification card" and requiring that firearms be transported in a securely closed package, notwithstanding that the driver had a Massachusetts firearm identification card, was carrying his hunting rifle and shotgun in a manner permitted in his home state, and was unaware that he was subject to additional legal requirements while passing through New Jersey. Those cases, in addition to the implicit validation of the felony-murder rule itself, see Martin, supra, 119 N.J. 2, support the conclusion that the absence of a mens rea element in section 9 does not violate due process.

    The federal experience is no different. The Supreme Court has made clear that no constitutional problem arises when Congress decides that public safety requires criminalization of conduct without proof of mens rea. See United States v. Freed, 401 U.S. 601, 609-10, 91 S. Ct. 1112,
1117-18, 28 L. Ed.2d 356, 363-64 (1971) (upholding constitutionality of gun control statute without element of intent or knowledge). Holland, supra, is close to home; the federal statute used to punish a drug distributor apprehended near school property without proof of the defendant's knowledge survived constitutional scrutiny because it was "amply supported" by "Congress's heightened interest in protecting children from both the indirect and the direct perils of drug traffic. . . ." 810 F. 2d at 1222-24. Similarly, because of Congress's "power to delete the requirement of scienter where the statute deals with . . . safety," a federal government inspector who accepts a bribe may constitutionally face felony punishment even without proof of intent to accept the bribe. United States v. Mullens, 583 F.2d 134, 138 (5th Cir. 1978). In addition, the federal criminal RICO statute has been upheld against constitutional challenge despite its failure to require scienter or knowledge because "it is clearly within Congressional power to create a strict liability offense which dispenses with any element of `intent.'" United States v. Boffa, 513 F. Supp. 444, 464 (D. Del. 1980).

    The Federal and State cases stand for the ultimate proposition that the State has the power to define a crime without proof of mens rea so long as the definition does not offend fundamental notions of justice. Thus, constitutional due-process limitations on strict-liability criminal statutes apply when the underlying conduct is so passive, so unworthy of blame, that the persons violating the proscription would have no notice that they were breaking the law. Lambert v. California, 355 U.S. 225, 228-30, 78 S. Ct. 240, ___-__, 2 L. Ed.2d 228, 231-32 (1957) (invalidating municipal ordinance criminalizing act of convicted felon remaining in Los Angeles more than five days without registering with City). Illegal drug distribution obviously does not fit that exception.
    The ultimate constitutional underpinning for defendants' argument, regardless of the weight of precedent, is that to impose such a penalty -- twenty years imprisonment -- simply because of a result that defendant had no idea was possible, not only "cuts across the grain of criminal law," Martin, supra, 119 N.J. at 20, but also strikes at the very root of that system, for it is alleged to be fundamentally unfair and wholly unjust. Even if it is unfair or unjust in some situations, it does not come anywhere near the point of invoking constitutional due process limits on what would otherwise be clear legislative power. Drug distribution puts the entire society at risk. More important than the societal interest, however, the defendant can and should be held to the

knowledge of the dangerousness of his or her activity, can and should be held to the knowledge that death may result, can and should be held to the knowledge that the law will impose severe punishment if death does result, regardless of its unlikelihood and the defendant's lack of criminal intent with respect to the death. To the extent moral culpability is a desirable element of a criminal offense (it is certainly not constitutionally required), it is inextricably embedded in the drug death statute. These considerations far overpower any degree of injustice that may result from the application of section 9.
    The only significant area where the rule is different is in capital punishment jurisprudence where imposing the death penalty for a strict liability crime such as felony murder may violate the Eighth Amendment. Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed.2d 1140 (1982); see infra at ___ (slip op. at 27-28). But other than cases of capital punishment, the weight of authority clearly supports the legislative power to create that criminal liability for selected offenses.
    For those reasons we reject this aspect of defendants' due process claims.

    The State and Federal Constitutions require a three part inquiry in determining whether a punishment is unconstitutionally cruel and unusual:

    First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate penological objective?

        [State v. Ramseur, 106 N.J. 123, 169 (1987).]

See Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 2866, 53 L. Ed.2d 982, 989 (1977) (plurality opinion); Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed.2d 637 (1983). But see Harmelin v. Michigan, 501 U.S. 957, ___-___, 111 S. Ct. 2680, 2684-2701, 115 L. Ed.2d 836, 843-64 (1991) (opinion of Scalia, J.) (arguing that Eighth Amendment does not require proportional punishments).
    Defendants argue that section 9 fails the first and second of these tests. They claim that punishment under section 9 is inconsistent with contemporary standards of decency and that section 9 inflicts a disproportionate punishment because it enhances a defendant's punishment on the basis of fortuitous events that do not reflect the defendant's culpability.
    A comparison of statutes from this state and from other jurisdictions indicates that section 9 is consistent with

contemporary standards of decency. With respect to the quantum and nature of the punishment imposed by section 9, it merely imposes first degree punishment on the defendant. Thus, the defendant is subject to the same punishment as numerous other first degree offenders. Moreover, at least thirteen other jurisdictions have enacted statutes that, like section 9, impose strict criminal liability for a death resulting from the distribution or manufacturing of drugs, indicating that section 9 is not out of step with current norms. Colo. Rev. Stat. Ann. § 18-3-102(1)(e) (West 1994); Conn. Gen Stat. Ann. § 53a-54b(6) (West 1994); Del. Code Ann. tit. 16, § 4751(b) (West 1993); Fla. Stat. Ann. § 782.04(1)(a)(3) (West 1993); Ill. Ann. Stat. ch. 720, para. 5/9-3.3 (Smith-Hurd 1994); La. Rev. Stat. Ann.
§ 14:30.1(A)(3) (West 1993); Minn. Stat. Ann. § 609.195(b) (West 1993); Nev. Rev. Stat. Ann. § 453.333, 200.010 (Michie 1993); N.H. Rev. Stat. Ann. § 318-B:26(IX) (1993); Pa. Stat. Ann. tit. 18, § 2506 (1993); R.I. Gen. Laws § 11-23-6 (1993) (applying only to death of minor); Wash. Rev. Code.
§ 69.50.415 (1993); Wis. Stat. Ann. § 940.02(2) (West 1993). Most of these impose as severe punishment as does section 9, or more severe. Indeed, two States make a defendant convicted under their drug death statutes subject to the death penalty, Conn. Gen. Stat. Ann. § 53a-54b(6) (West 1994); Fla. Stat. Ann. § 782.04(1)(a)(3) (West 1993), and two other states impose life imprisonment on defendants convicted under their

drug death statutes. La. Rev. Stat. Ann. § 14:30.1(B) (West 1993) (mandating life imprisonment at hard labor); N.H. Rev. Stat. Ann. § 318-B:26(IX) (1993) (imposing up to life imprisonment).
    Furthermore, as we have noted supra at ___ (slip op. at 14), section 9 is but one weapon in the arsenal society is using to fight its war on the socially debilitating effects of drug abuse. Given the strength and virtual unanimity of society's conviction to eradicate drug abuse, we are confident that "contemporary standards of decency" tolerate, if not mandate, stern punishment of drug manufacturers and distributors whose drugs prove deadly. We note that the United States Supreme Court has recently upheld the constitutionality of life imprisonment for possession of cocaine. Harmelin, supra, 501 U.S. at ___, 111 S.Ct. at 2702, 115 L. Ed. 2d at 865. If a life sentence for mere possession of cocaine is constitutional, then a ten to twenty year sentence for a death caused by the defendant's distribution or manufacturing of a CDS is beyond reproach. See also State v. Burch, 545 So.2d 279, 284-85 (Fla. Dist. Ct. App. 1989) (holding that statute imposing up to 30 years imprisonment for distribution of cocaine within 1000 feet of a school does not "shock the conscience" or violate Eighth Amendment), aff'd, 558 So.2d 1 (Fla. 1990).
    Defendants also argue that section 9 fails the proportionality test because it punishes the defendant for

events that are out of the defendant's control and thus do not reflect the defendant's culpability. Defendants contend that the differential of punishment between two equally innocent defendants because of what appears to be the happenstance of death is so arbitrary and unfair as to constitute cruel and unusual punishment. But obviously the same can be said for any strict liability criminal statute, including felony murder, because all of them contain the seeds of differential treatment based on result and regardless of state of mind. Added penalties based on result are common in the criminal law and they have never been thought to create constitutional violations of Cruel and Unusual Punishment Clause. As the United States Supreme Court has stated:

    [T]he assessment of harm caused by the defendant as a result of the crime charged has understandably been an important concern of the criminal law, both in determining the elements of the offense and determining the appropriate punishment. Thus, two equally blameworthy criminal defendants may be guilty of different offenses solely because their acts cause differing amounts of harm.

        [Payne v. Tennessee, 501 U.S. 808, ___, 111 S. Ct. 2597, 2605, 115 L. Ed.2d 720, 731 (1991).]

    The argument is not made any stronger by noting the potential for this difference based on what are alleged to be extremely remote consequences, a death resulting after numerous redistributions of the initial sale. Putting aside

the safety valve of the remoteness requirement that might result in acquittal, the straightforward response is that all that is involved is perhaps a greater degree of unfairness as the death becomes more and more remote, but nothing qualitatively different from the unfairness inherent whenever two equally innocent or equally culpable defendants are treated substantially differently because of the result.
    We know of no case holding that a statute imposing strict criminal liability constitutes cruel and unusual punishment. Although the state of the law is less than settled, the authorities are virtually unanimous in rejecting this kind of claim under these circumstances. For instance, courts interpreting the felony-murder rule as a strict liability crime consistently maintain that it does not constitute cruel and unusual punishment. State v. West, 862 P.2d 192, 205 (Ariz. 1993); People v. Rose, 227 Cal. Rptr. 570, 574 (Cal. Ct. App. 1986); Goodseal, supra, 553 P. 2d at 286. But see Roth & Sundby, supra at 478-85 (arguing that felony-murder rule violates Eighth Amendment's prohibition of disproportionate punishments). Similarly, statutory rape laws that impose strict criminal liability have been found not to violate the Eighth Amendment. E.g., Commonwealth v. Moore, 269 N.E.2d 636, 640 (Mass. 1971). Courts have reached the same conclusion regarding statutes enhancing the punishment for distribution of drugs when the distribution occurs within a certain range of school property and they do so without

regard to whether the drug distributor knew of the school's proximity. E.g., Commonwealth v. Alvarez, 596 N.E.2d 325, 330-31 (Mass. 1992).
    Indeed, the only area of Eighth Amendment jurisprudence in which the strict liability feature of a criminal sanction appears to have any significance is capital punishment. There, more stringent standards are necessary because the death penalty, due to its "unusual severity . . . is in a class by itself." Furman v. Georgia, 408 U.S. 238, 289, 92 S. Ct. 2726, 2752, 33 L. Ed.2d 346, 378 (1972) (Brennan, J., concurring). In State v. Gerald, 113 N.J. 40 (1988), we held that the "cruel and unusual punishments" clause of our state constitution did not permit imposing the death penalty on a defendant who did not intend to kill anyone but had been convicted of capital murder for purposely or knowingly inflicting serious bodily injury resulting in death. Id. at 89. Instead, we determined that the only conduct that would justify the death penalty is purposeful or knowing murder.See footnote 3 Ibid. Similarly, in Enmund, supra, the United States Supreme Court held that without some connection with the murder other than his mere presence at the scene, a defendant could not be sentenced to death under the felony-murder rule. 458 U.S. at

800-01, 102 S. Ct. at 3378-79, 73 L. Ed. 2d at 1154. But cf. Tison v. Arizona, 481 U.S. 137, 158, 107 S. Ct. 1676, 1688, 95 L. Ed.2d 127, 145 (1987) (upholding death sentences for defendants convicted of felony murder who lacked intent to kill but played major role in commission of felony and acted with reckless indifference to human life).
    Related to defendants' argument that the potentially different treatment results in cruel and unusual punishment is their claim concerning the fundamental unfairness of the punishment regardless of differences. The difference simply makes it even worse. That claim is based on the asserted unlikelihood of death resulting from ordinary drug distribution. No figures are presented on which anyone could rely, although defense counsel speculated that far fewer than one tenth of one percent of all drug distribution transactions result in death, and that the comparable figure for robberies is one percent. The posited conclusion, not only that this offense is distinguishable because of that greater unlikelihood from felony murder, is that it is grossly unfair and constitutes cruel and unusual punishment.
    In response, we initially note that under the
felony-murder statute, the convicted felon, when death results, receives a thirty-year term without parole eligibility, but that under section 9 the presumptive term is fifteen years, with parole eligibility likely to occur after three. Thus, one convicted of felony-murder faces a much more

substantial sentence than one convicted under section 9. Putting that comparison aside, however, legislatures are not bound by any such statistical analysis. It is enough to find that there is a substantial risk of death, that deaths do occur, 37,000 "drug related deaths" in 1986 alone, U.S. Department of Justice, Report on Drug Control: Implementation of the Anti-Drug Act of 1986, at 26 (1987), and that the conduct deterred by this allegedly grossly unfair punishment seriously threatens the social fabric. We do not mean to imply that a statistical showing will always be irrelevant in this area, but when applied to section 9 and the evils involved, it is almost irrelevant here, especially in view of the fact that a significant number of deaths do result.

guess at its meaning and differ as to its application.'" Ibid. (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926)).
    The prohibition against vague laws serves two independent goals. First, vague laws are prohibited because they fail to give adequate notice that certain conduct will put the actor at risk of liability. "Vague laws may trap the innocent by not providing fair warning." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2299, 33 L. Ed.2d 227 (1972). Second, vague laws create an unacceptable danger of arbitrary and discriminatory enforcement of the law because they fail to provide those charged with enforcing the law -- prosecutors, judges and juries -- with sufficiently precise standards. Ibid. Because of the greater penalties in criminal statutes, courts subject criminal laws to sharper vagueness scrutiny than they do civil laws. State v. Afanador, 134 N.J. 162, 170 (1993).
    The vagueness charge here does not relate to the first aspect of the doctrine. Necessarily, no drug distributor will be influenced in his conduct, or be able to shape his conduct to conform to the statute since by definition the distributor has no control over the regulated results. No matter how precisely the remoteness factor were defined, no drug distributor could conform his conduct to assure compliance because the law would still punish unintended and unforeseen deaths, even if it were more narrowly circumscribed. A

different definition might make a defendant more or less willing not to distribute drugs at all, but that is not the aspect of vagueness that is referred to when it is claimed that vagueness prevents defendants from conforming their conduct to the law. Even if defendants did challenge that aspect of vagueness, and argued that had they fully understood their conduct created the potential for enhanced criminal liability they would have desisted entirely, that claim would be rebutted by the underlying premise of their actual argument that section 9 creates almost limitless liability. Thus, our "vagueness" analysis focuses on the risk of arbitrary or discriminatory enforcement of section 9.
    A statute may be challenged as either facially vague or vague "as-applied." State v. Cameron, 100 N.J. 586, 593 (1985). A statute is facially vague only if it is vague in all its applications, while a statute is vague as applied only if it is vague when applied to the circumstances of a specific case. Ibid. Therefore, if a statute is not vague when applied to a certain case, the statute will survive a vagueness challenge despite the fact that it may be vague in other applications. Id. at 593-94.
    The part of section 9 said to be unconstitutionally vague provides that a defendant shall not be convicted unless the State proves beyond a reasonable doubt that the resulting death was "not too remote in its occurrence" and "not too

dependent upon conduct of another person . . . as to have a just bearing on the defendant[s'] liability." N.J.S.A.
2C:35-9d. In both these cases we can fairly say that whatever doubts or vagueness might otherwise arise because of the indefiniteness of the remoteness element, they are not present here. Putting aside for the moment the victim's conduct, no case could be more direct than these two or more certain in the absence of any conceivable definition of remoteness: Maldonado provided heroin to Dunka, he died from the ingestion; Rodriguez provided cocaine to Bennett, he died from the ingestion. Therefore, because the remoteness element is not vague as applied to the two sets of circumstances presented here, defendants' vagueness challenges fail even though the statute may be vague in other applications. However, given the importance of the matter and the probable recurrence of the contention, we choose to deal with the possible vagueness of section 9's "not too remote" element in other applications. We hold on the basis of sound policy that the "not too remote" element survives the facial vagueness challenge here and all vague as-applied claims in this case.
    First, we note that the "not too remote" element is found in many other areas of the criminal law; thus, a finding that the "not too remote" element is vague would have consequences reaching far beyond section 9. Substantially similar remoteness exculpation is found in our construction of the felony-murder statute, Martin, supra, 119 N.J. at 32, and,

potentially at least, in every single offense defined by the Code because, under certain circumstances, whether the offense requires knowing, purposeful, reckless, or negligent conduct, the similar remoteness element may come into play. See N.J.S.A. 2C:2-3b,c (defining causation for most criminal offenses). The remoteness element protects the defendant in all of these cases, but whether constitutionally required or not, like any other element its vagueness could result in invalidity. Thus, if defendants are correct and section 9's "not too remote" element is unconstitutionally vague, then, necessarily, the felony-murder rule and the general causation elements found in N.J.S.A. 2C:2-3b,c would also be unconstitutional.
    The adoption of the remoteness element by the Legislature and by this Court in these two most important applications, - one affecting practically every offense under the Code and the other affecting felony murder -- is just a most practical and important judgment on the part of all branches of government on the desirability and ultimate fairness of the remoteness exculpation, quite inconsistent with notions of unconstitutional vagueness. That is not enough, however, for as far as we know the provisions have never been judicially tested either here or elsewhere. Some analogous cases exist, however, but ultimately we sustain the requirement against this challenge on grounds of sound policy and the inherent

limitation of language when applied to the circumstances that "remoteness" was intended to address.
    We concede the basic correctness of defendants' initial contention: exculpation of defendants on the ground that the result for which they would otherwise be liable was too remote to make such liability just is indefinite, indeed considerably so. If the remoteness is expressed in terms of the expiration of time between the act and the result, how long must it be before it is remote; if in terms of space, how far in order to be remote; if in terms of cause and effect, how many other and what kind of causes must there be; and if in terms of difference from what was intended, how much and in what ways must the actual result differ from what was intended? Despite the indefiniteness of the remoteness limitation on liability, however, fairness seems to require some such limitation on a defendant's liability. Thus, a problem arises: how do we limit criminal liability so that defendants are not unjustly punished without creating an intolerable amount of vagueness.     Two simple examples will provide a sense of the problem. In the felony-murder context, the example often given is that of the bank robber who is charged with causing the death of the teller who pressed the alarm button on the bank robber's entry and, because of defective wiring, was electrocuted in the process. Model Penal Code § 2.03 comment 4 (1985). Under felony-murder analysis the robber would be guilty of murder unless some provision allowed the jury to exonerate him for

deaths that were so unexpected, unanticipated, so unlikely to occur in the ordinary course of events as to be characterized as too remote to have a "just bearing" on his criminal responsibility. Another example, in a murder context, is the example of the defendant who fired his rifle at the victim, then riding a horse, intending to kill her, but missed; the victim ultimately died as a result of the shot when the horse bolted and ran away, fatally injuring the rider. Model Penal Code § 2.03 comment 2 (1985).     The possibilities of such adventitious outcomes, not simply in these clear terms of unusual occurrences but of lengthy causation sequences, not necessarily strange, but unusually extended, with concurrent and contributing causes, are limitless. Our strong "sense of justice" requires us to consider the remoteness of such adventitious outcomes when determining criminal liability, but our inability to express what feature of unusual or extended causal chains affects our sense of justice makes developing a precise and definite standard that will accommodate our sense of justice difficult, and we have found none better than the "too remote to have a just bearing" standard. Correcting the indefiniteness of the language so that it will be more definite when applied to the bank alarm or horse bolting cases will leave us with a solution that is unsatisfactory for innumerable other cases. Whether the context is a drug death prosecution, a felony-murder prosecution, or prosecution for any crime in which the remoteness aspects of causation come

into play under N.J.S.A. 2C:2-3b or c, no clear answer exists. The only practical standard is the jury's sense of justice.
    The drafters of the Model Penal Code resolved the conflict between the desirability of limiting criminal liability for results otherwise falling within the law's prohibition but whose occurrence was so far from the ordinary or expectable as to leave doubt about the justice of imposing such liability, and the impossibility of fashioning language to define the extent of such limitation in a way to assure acceptably consistent application by adopting the "too remote to have a just bearing" language. Model Penal Code
§ 2.03(2)(b), (3)(b) (1985). They apparently agreed on the need for some limitation on criminal liability just as is imposed on civil liability in negligence cases, and they found that the usual method of such limitation -- liability only for "proximate" results -- was unsatisfactory. Model Penal Code
§ 2.03 comment 4 (Tentative Draft No. 4 1955) (rem