dissenting.
I. INTRODUCTION
I am not persuaded that a criminal offense can be predicated on proof of civil negligence. In my view, neither existing precedent nor public policy supports such a result. I therefore dissent.
II. DISCUSSION
A. The Ambiguity as to the Required Mens Rea under Former AS U6. OS. 790(a) Mandates Application of the Criminal Negligence Standard.
The court does not deny that there is an ambiguity as to the mens rea required for conviction under former AS 46.03.790(a).1 “Ambiguities in criminal statutes must be narrowly read and construed strictly against the government.” State v. Andrews, 707 P.2d 900, 907 (Alaska App.1985), opinion adopted by State v. Andrews, 723 P.2d 85, 86 (Alaska 1986); see also Wells v. State, 706 P.2d 711, 713 (Alaska App.1985) (“It is well established that, in accordance with the rule of lenity, ambiguities in penal statutes must be resolved in favor of the accused.”); Manderson v. State, 655 P.2d 1320, 1323 (Alaska App.1983) (“Since the provision is ambiguous and both the state’s and [the defendant’s] interpretations are arguably reasonable, we agree that [the defendant’s interpretation] should prevail under the Bell [v. U.S., 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)] ‘rule of lenity.’ ”). Accordingly, the statute must be construed to require criminal negligence, rather than civil negligence.2 That should end the discussion.
B. Alaska Precedent Mandates Application of a Criminal Negligence Standard.
Turning to the merits of the decision, the opinion of the court does considerable violence to precedent. In Speidel v. State, 460 P.2d 77 (Alaska 1969), we expressly rejected a civil negligence standard as defining the minimum mens rea for criminal punishment. See id. at 80 (“To convict a person of a felony ... without proving criminal intent, is to deprive such person of due process of law.”). The court articulates no basis for distinguishing Speidel,3 I see no basis for concluding *887that Speidel does not control, or that it does not require application of a criminal negligence standard.
Many of the decisions upon which the court relies reject strict liability rather than civil negligence, as the court states. Maj. op. at 879. However, these decisions in fact do not authorize civil negligence as the minimum mens rea for criminal punishment. See, e.g., Hentzner v. State, 613 P.2d 821, 825 (Alaska 1980) (requiring “an awareness of wrongdoing” for criminal liability); Alex v. State, 484 P.2d 677, 682 (Alaska 1971) (holding that crime of escape required intentional departure from custody); Kimoktoak v. State, 584 P.2d 25, 29-30 (Alaska 1978) (implying in a criminal hit-and-run statute a' requirement that the defendant have knowingly failed to stop and render assistance), superseded by statute on other grounds as noted in Wylie v. State, 797 P.2d 651, 660 n. 8 (Alaska App.1990). Demonstrably, these cases do not support the proposition that a civil negligence standard provides the minimum mens rea for a criminal conviction. To the contrary, these decisions reject a strict liability standard not in favor of a civil negligence standard but in favor of a requirement of “criminal intent.” See, e.g., Hentzner, 613 P.2d at 825 (“[Cjriminal intent is an essential predicate of criminal liability.”); Kimoktoak, 584 P.2d at 29 (requiring “criminal intent” to support conviction); Alex, 484 P.2d at 681 (“[T]o constitute guilt there must be not only a wrongful act but a criminal intention.”). It could be argued, as the court concludes, that “criminal intent” means any mental state the legislature determines to be required for the particular crime, excepting only strict liability. However, in Alex, the court noted that for “criminal intent” to exist, “[it] is imperative ... that an accused’s act be other than simply inadvertent or neglectful.” Alex, 484 P.2d at 681 (emphasis added). This statement indicates that “criminal intent” entails something more than mere “neglectfulness” or ordinary negligence. This interpretation is strengthened by the fact that the cited decisions all rest upon, and refer with approval to, our decision in Speidel. See, e.g., Hentzner, 613 P.2d at 827; Kimoktoak, 584 P.2d at 29; Alex, 484 P.2d at 681. As noted, Speidel rejected a civil negligence standard in favor of a “criminal intent” requirement. Speidel, 460 P.2d at 80. “Criminal intent,” as defined in Alex and Speidel, does not include civil negligence.
The court bases much of its argument on State v. Guest, 583 P.2d 836 (Alaska 1978), in which the defendant was accused of statutory rape. We noted that “the charge of statutory rape is legally unsupportable under the principles of Speidel, Alex, and Kimoktoak unless a defense of reasonable mistake of age is allowed.” Id. at 839. To fail to do so would be “to impose criminal liability without any criminal mental element.” Id. We then observed that
Although AS 11.15.120 is. silent as to any requirement of intent, this is true of many felony statutes. The requirement of criminal intent is then commonly inferred. In fact, in such cases, where the particular statute is not a public welfare type of offense, either a requirement of criminal intent must be read into the statute or it must be found unconstitutional. Since statutes should be construed where possible to avoid unconstitutionality, it is necessary here to infer a requirement of criminal intent.
Id. (citations and footnotes omitted).
The court mischaracterizes Guest in asserting that we “upheld the imposition of criminal sanctions on the basis of simple, ordinary negligence.” Maj. op. at 879. To the contrary, the issue in Guest involved only whether the defendant’s “reasonable belief’ that the victim was of the age of consent negated the criminal intent necessarily implied in the statute. Guest, 583 P.2d at 839-40. The crime itself involved a separate mental state. The discussion in Guest concerning “reasonable belief,” which the court *888wrongly equates with “simple negligence,”4 involved only the defense, and had no bearing on the core elements required for conviction of the charged offense itself. Quest did not authorize conviction for “simple negligence,” as the court asserts. Moreover, Guest did not overrule Speidel. Since Speidel remains good law notwithstanding Guest, it is incorrect to assert that Guest approved a civil negligence standard in all cases, as does the court. Since the ease at bar considers the “criminal intent” requirement in the context of a core element of the crime in question, rather than in the context of a defense, Guest does not apply.
Our jurisprudence recognizes several exceptions to the minimum “criminal intent” requirement outlined in the above eases. None of these exceptions are applicable, nor does the court purport to apply any of them.
Speidel recognized an exception for “public welfare” offenses, which relate to the “health, safety, and welfare” of the public, and which carry penalties that “commonly are relatively small, and [do] no grave damage to an offender’s reputation.” Speidel, 460 P.2d at 78-79 (citing Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952)). The crime at issue here carries too severe a potential penalty — imprisonment for ninety days — to fall within this exception. See State v. Rice, 626 P.2d 104, 116 (Alaska 1981) (Matthews, J., concurring) (“[A]ny prison sentence is an important, even traumatic, event in the life of a human being_ Further, any prison sentence is likely to have a considerable detrimental effect on one’s reputation.”).
We also have recognized an exception for activities within a “heavily regulated industry.” See id. at 107-08. Under that exception, participants in heavily regulated activities have a reduced due process interest as a consequence of that participation, and therefore may be subject to criminal liability under a less culpable mens rea than is ordinarily required. See Beran v. State, 705 P.2d 1280, 1292 (Alaska App.1985) (Bryner, C.J., concurring) (“[T]he state has a legitimate right to hold participants in the [commercial fishing] industry to a higher standard of care than might otherwise be appropriate as a predicate for criminal responsibility.”). As the captain of an oil tanker, Hazelwood certainly qualifies as a participant in a heavily regulated industry. However, former AS 46.03.790(a) applied not only to participants in oil production operations, but also to members of the general public. The statute therefore cannot be construed to require a mental state which could not apply to members of the general public, unless one accepts the troublesome proposition that a single passage in a statute can have different meanings for different defendants. For this reason, the court of appeals refused to apply the heavily regulated industry exception to this case. Hazelwood v. State, 912 P.2d 1266, 1279 (Alaska App.1996). The parties have not challenged that decision.
Since none of the exceptions to the minimum mens rea requirement of criminal intent apply, our precedent requires the application of a criminal negligence standard as we held in Speidel and Alex.
C. Public Policy Precludes Imposition of Criminal Penalties for Conduct That Is Merely Unreasonable under a Civil Standard.
The court accepts the imposition of criminal sanctions for any conduct which “is something which society could reasonably expect to deter.” Maj. op. at 883. The court acknowledges that this test affords the legislature complete discretion to impose criminal sanctions upon any conduct which is merely negligent under a civil standard. Maj. op. at 884-885. This approach is fraught with diffi*889cutties, and should not be adopted as a matter of policy.
In my view, notions of fundamental fairness, which underlie all due process issues, require a showing of something more than “failure to act reasonably5’ before a defendant may be subjected to imprisonment. See State v. Melendez, 172 Ariz. 68, 834 P.2d 154, 157 (1992) (“The touchstone of due process ... is fundamental fairness.”). Professor LaFave notes that a “general feeling” has arisen among judges that
[Sjomething more [i]s required for criminal liability than the ordinary negligence which is sufficient for tort liability. The thought [i]s this: When it comes to compensating an injured person for damages suffered, the one who has negligently injured an innocent victim ought to pay for it; but when the problem is one of whether to impose criminal punishment on the one who caused the injury, then something extra — beyond ordinary negligence — should be required.
1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 326 (1986). This position is persuasive. Civil negligence provides an acceptable standard of fault for allocating any burden which neglectful conduct creates. However, that standard does not provide an adequate basis for levying a separate punishment on a neglectful person. In particular, a punishment of imprisonment is sufficiently severe that it should not be imposed, with the possible exception of the eases noted, for conduct which involves only civil negligence. The right to due process would support imprisonment for a truly gross deviation from “reasonable” conduct. It does not, in my view, support imprisonment for every deviation whatsoever from “reasonableness.”
Our current definition of criminal negligence demonstrates the prevailing view that something greater than civil negligence should be required to authorize criminal sanctions. Alaska Pattern Jury Instruction (Criminal) 81.900(a)(4) provides that “[cjrimi-nal negligence is something more than the slight degree of negligence necessary to support a civil action for damages and is negligence of a degree so gross as to be deserving of punishment.” This definition suggests that the “slight” degree of negligence required for civil negligence is not “deserving” of criminal punishment. Moreover, this standard is specifically calculated to “insure[ ] that proof of ordinary civil negligence will not give rise to criminal liability.” Commentary on the Alaska Revised Criminal Code, Senate Journal Supplement No. 47 at 142-43, 1978 Senate Journal 1399, quoted in Andrew v. State, 653 P.2d 1063, 1066 n. 5 (Aaska App.1982). Of course, the fact that the legislature has restricted criminal punishment to conduct which is more culpable than “slight” civil negligence does not render the legislature constitutionally forbidden to abrogate that restriction. However, the current definition of criminal negligence provides a persuasive argument that societal notions of fundamental fairness do not permit imprisonment for the simple neglectfulness embodied in the civil negligence standard. Such notions, in turn, shape the right to due process.
It is well established that “[mjere negligence is insufficient to justify an award of punitive damages.” Johnson & Higgins of Alaska Inc. v. Blomfield, 907 P.2d 1371, 1376 (Alaska 1995) (holding that punitive damages may only be awarded “where the wrongdoer’s conduct can be characterized as outrageous, such as acts done with malice or bad motives or a reckless indifference to the interests of others.”) (quoting Bridges v. Alaska Hous. Auth., 375 P.2d 696, 702 (Alaska 1962)); see also Restatement (Second) of Torts § 908 cmt. b (1965) (“Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence [but are restricted to] conduct involving some element of outrage similar to that usually found in crime.”). It is difficult to accept the proposition that an action which cannot form the basis for a punitive civil award fairly can be sanctioned with imprisonment. Admittedly, the prohibition of punitive damages for conduct which is merely negligent has not been constitutionalized. However, this prohibition provides yet another strong indication that judicially accepted notions of fairness foreclose the imposition of explicitly punitive measures for conduct which is negligent under a civil standard.
Since I cannot accept the proposition that imprisonment is a fundamentally fair punishment for civil negligence, I cannot support *890the court’s decision to remove all due process barriers to the criminalization of negligent conduct.5 Issues of substantive due process are issues of public policy at their most basic level. I cannot agree that public policy is served by giving legislators free rein to impose criminal sanctions upon whatever conduct a jury may find to be unreasonable.
III. CONCLUSION
I cannot agree, either as a matter of policy or a matter of precedent, that a person may be subjected to criminal liability upon a showing of civil negligence alone, except in rare circumstances. In my view, the heightened punishments contained in criminal statutes are constitutionally permissible only when a defendant is proven guilty of conduct that is, at a minimum, grossly negligent. I would affirm the decision of the court of appeals.
. Indeed, the court devotes several pages of discussion to the issue of the proper interpretation of the statute. Maj. op. at 885-886. Such discussion would be unnecessary in the absence of any ambiguity as to the mens rea required under the statute.
. It is well established that any ambiguity in a statute should be resolved in favor of a construction that does not raise constitutional concerns. See Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 498 (Alaska 1991) ("[S]tatutes are to be construed to avoid a substantial risk of unconstitutionality where adopting such a construction is reasonable....”). Since application of a civil negligence standard would raise a constitutional question, the statute must be construed so as not to apply such a standard.
.Speidel involved prosecution for a felony, rather than a misdemeanor. It could be argued that the greater the potential punishment, the greater must be the minimum mens rea for the crime. It could then be said that since the crime at issue here is a misdemeanor, rather than a felony as in Speidel, the minimum mens rea is civil rather than criminal negligence.
Such a rule would be preferable to that which the court adopts. A distinction on this basis would limit this holding to misdemeanors, mitigating the dangers inherent in a more expansive holding. It also would seem to be more supportable as a matter of policy to permit misdemeanor penalties based on civil negligence, than it is to permit felony penalties similarly. However, our case law draws no such distinction, nor does the *887court adopt such a rule in this case. Moreover, this case involves a potential sentence of imprisonment for 90 days. This penalty is sufficiently serious to weaken any argument that “severe" penalties require a heightened mental state, *888whereas less severe penalties may be imposed upon a showing of civil negligence.
. Indeed, Guest did not concern a "simple negligence" standard, but instead involved a defendant's "reasonable belief.” I cannot accept the view that a person’s reasonable or unreasonable belief properly can be characterized as "simple negligence." "Negligence” refers to conduct, not to belief. While a person’s belief may be unreasonable, it cannot be "negligent” as such. Therefore, although the concepts of negligence and "reasonable belief” both involve a "reasonable person” standard, they cannot properly be conflated into a single notion, as the court’s interpretation of Guest requires.
. I also must take issue with the court's assertion that property and liberty interests are afforded the same protections under the right to due process. Maj. op. at 885. Both property and liberty interests are protected under the Due Process Clause. However, it is inaccurate to say that the same protections apply to both interests. The principle that deprivation of liberty is a more serious act than a deprivation of property, and one which requires greater protections, has surfaced before in our jurisprudence. See Rice, 626 P.2d at 116 n. 1 (Matthews, J., concurring) (stating that all cases which carry the possibility of incarceration must include a mens rea requirement, unlike cases which do not). Indeed, the distinction between civil and criminal law rests entirely on the potential for imprisonment accompanying criminal prosecutions, and the absence of such potential in civil actions. I therefore find the contention that due process concerns are satisfied in a criminal context by the same standard which serves in a civil context to be unpersuasive. Maj. op. at 884-885.