Abstract
The fundamental requirement of Anglo-American criminal law is that crime must consist of the concurrence of a guilty mind—a mens rea—with a guilty act—an actus reus. And yet, the criminal law is shot through with discordant lumps of strict liability—crimes for which no mens rea is required. Ignoring the conventional normative objections to this aberration, I distinguish two different types of strict criminal liability: the type that arose at common law and the type associated with the public welfare offenses that are the product of twentieth and twenty-first century legislation. Using famous cases as exemplars, I analyze the two types of strict liability, and then examine the purposes served and incentives created by subjecting individuals to strict liability. I conclude that common law strict liability is rational in that it advances the purposes of the criminal law, while the public welfare offenses are at best pointless and at worst counterproductive. I suggest that in this respect the common law contains more wisdom than the results of the legislative process.
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Notes
Whether negligence is truly a type of culpability that can justify criminal punishment is a matter of some controversy. To the extent that negligence consists in inadvertence, the defendant has not chosen to perform the prohibited act. Yet punishment, as opposed to compensation, requires an act of will. Thus, there is reason to doubt that negligence can ground criminal punishment. (This argument is developed in Michael Moore’s contribution to this symposium, The Strictness of Strict Liability). Although I am sympathetic to this argument, I do not advance it in the present context. For purposes of this article, I merely adopt the Model Penal Code’s characterization of negligence as a culpable state of mind. Thus, as I employ the term, “strict liability” refers to cases in which one acts neither purposely, knowingly, recklessly, nor negligently.
Representative examples of such denunciations can be found in several of the other articles in this volume.
L.R. 2 Cr. Cas. Res. 154 (1875).
Id. at 174.
Id. at 175.
Another oft-cited illustration of the moral wrong principle is the case of White v. State, 185 N.E. 64 (1933) in which the court upheld the conviction of a defendant for violation of a statute making it an offense for a husband to abandon his pregnant wife even though he did not know that she was pregnant on the ground that “a husband abandoning his wife is guilty of wrongdoing. It is a violation of his civic duty. … If he abandons her, he does so at his peril, and, if she be in fact at the time pregnant, though he may not have known it, he cannot plead that ignorance as a defense.” Id. at 65.
Prince, L.R. 2 Cr. Cas. Res. at 176.
This distinction is significant because one of the main objections brought against the moral wrong principle is that it violates the principle of legality. Because the law provides no legally authoritative definition of what constitutes a moral wrong, the moral wrong principle permits criminal punishment in the absence of a clearly defined standard of what conduct is prohibited, thus violating the basic principle that there can be no crime or punishment without law (nullum crimin sine lege, nullum poena sine lege). Further, the moral wrong principle also runs afoul of the liberal prohibition against the legal enforcement of morality. However, because in the present context I am interested only in describing the elements of strict liability that arose at common law, not exploring their justifiability, there is no need to pursue these matters further here.
See, e.g., GEORGE FLETCHER, RETHINKING CRIMINAL LAW 727 (1978), Graham Hughes, Criminal Responsibility 16 STAN. L. REV. 470, 480–481 (1964).
See B (a minor) v. Director of Public Prosecutions, [2000] 1 All E. R. 833.
See MODEL PENAL CODE § 2.04 cmt. at 269–274 (1985).
See KADISH, ET AL., CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 271 (9th ed. 2012).
WAYNE R. LAFAVE, CRIMINAL LAW 785 (5th ed. 2010).
See, e.g., People v. Stamp, 2 Cal. App. 3d 203, 209-10 (1969) (“Under the felony-murder rule … a killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree. This is true whether the killing is wilfull, deliberate and premeditated, or merely accidental or unintentional. … The doctrine is not limited to those deaths which are foreseeable. Rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony”).
Pinkerton v. United States, 328 U.S. 640 (1946).
320 U.S. 277 (1943).
For an intriguing account of the Dotterweich case, see Craig Lerner, The Trial of Joseph Dotterweich: The Origins of the “Responsible Corporate Officer” Doctrine in the current volume.
Dotterweich, 302 U.S. at 280–281.
Id. at 284.
Id. at 285.
See Morrisette v. United States, 342 U.S. 246, 255 (1952). See also, Francis Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55 (1933).
Morrisette, 342 U.S. at 256.
Id.
Sayre, supra note 21, at 67.
Common law strict liability has been attacked for violating the principle of legality–the moral wrong principle—and for unjustly imposing punishment that is out of proportion to the culpability of the actor—the lesser crime principle, the felony murder rule, and the Pinkerton rule.
Public welfare offenses have been attacked for being incoherent—punishment without fault is oxymoronic; unjust—they impose the stigma of criminal activity on those who are blameless; ineffective—those who act without awareness of wrongdoing cannot be deterred by the threat of punishment; unnecessary—civil and administrative sanctions would be just as effective at enforcing regulations; and dangerous—they give prosecutorial agents an extortionate level of discretion over whom to charge with a criminal offense.
916 F. 2d 1174 (7th Cir. 1990).
Id. at 1177.
RESTATEMENT (SECOND) OF TORTS § 519 (1977). The common law rules governing strict liability for animals parallel the distinction between ordinary and abnormally dangerous activities in that strict liability is reserved for wild animals or animals known to have unusually dangerous propensities. See id. at §§ 506, 507, 509, 518 (1977).
Id. at R §520 (1977).
American Cyanamid, 916 F. 2d at 1177.
Id.
See, e.g., Steven Shavell, Strict Liability Versus Negligence, 9 J. LEGAL STUD. 1 (1980); RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 17–79 (1992).
H.L.A. Hart, Legal Responsibility and Excuses, in DETERMINISM AND FREEDOM IN THE AGE OF MODERN SCIENCE 99 (S. Hook, ed. 1965).
See Kenneth W. Simons, Can Strict Criminal Liability for Responsible Corporate Officers Be Justified by the Duty to Use Extraordinary Care? (“Thus, even under an ordinary negligence test, more extensive precautions are required in order to avoid unusually great risks of harm. In this sense, an actor is often required to take ‘extraordinary care’ even under the ‘ordinary care’ standard”).
Phillip Johnson, Strict Liability: The Prevalent View, in ENCYCLOPEDIA OF CRIME AND JUSTICE 1518, 1520–1521 (Sanford H. Kadish, ed., 1983).
Stephen J. Schulhofer, Harm and Punishment: a Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. PA. L. REV. 1497, 1587 (1974).
See Craig S. Lerner & Moin A. Yahya, “Left Behind” after Sarbanes–Oxley, 44 AM. CRIM. L. REV. 1383 (2007).
For a more detailed explanation of the economics of the competition for executive positions, see id. at 1411–1415.
Dotterweich, 302 U.S. at 280–281.
Id. at 256.
277 U.S. 438, 479 (1928).
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Hasnas, J. Reflections on Prince, Public Welfare Offenses, American Cyanamid, and the Wisdom of the Common Law. Criminal Law, Philosophy 12, 427–438 (2018). https://doi.org/10.1007/s11572-017-9433-x
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DOI: https://doi.org/10.1007/s11572-017-9433-x