#17111 - Strict Liability - Criminal Law

Strict Liability

Criminal liability imposed regardless of MR

Theme: presumption of MR requirement if common law analogue, SL only for public welfare offenses

• MPC Framework (don't like SL, motivated by retributive concerns)

  • MPC 2.05:

    • No SL unless

      • Violations - minor crimes with only fines, no incarceration OR

      • Legislature passes new statute clearly asserting SL for certain crimes

• Common Law Framework

  • Criminalize acts that don't involve legal or moral wrongs without inquiring into mental state

  • Look for indications of Congressional intent, expressed or implied, for crime to be strict liability or not

  • SL offenses often involve use or sale of potentially harmful or inherently dangerous items and often are public welfare offenses

    • Liquor, food, sanitary, building, medicine, traffic laws

  • Morissette

    • Offense of "knowing conversion of gov property" requires MR

    • Because it does not fit in the public welfare box + related to theft (a common law/traditional crime) > no SL

  • Characteristics of strict liability crime

    • Public welfare offense/regulatory crimes

      • Does not target a specific person or object, only against general welfare

      • Offense is trying to protect public health, well-being, safety, lives by putting burden on person standing in responsible relation to a public danger (language from Balint)

      • Involves an activity that congress wants to deter or incentivize careful handling to prevent harm

    • (1) Mass production operation

      • Ex. Pharmaceuticals, food distribution (Balint, Dotterweich)

    • (2) Inherently serious, dangerous, injurious nature causes high risk of danger, NOT direct injury

      • Ex. Hand-grenades (Freed)

    • (3) Mass and far-reaching impacts on public (usually consumers)

    • (4) Sophisticated and specialized actors - on notice and in best position to avoid problems

    • (5) New crime or new regulatory regime, addressing new problem VS. history and tradition

      • Nature of crime not recognized by common law and addressing a new problem

        • Ex. Pharmaceutical drugs

      • NOT analogue of common law or traditional crimes

        • NOT theft/conversion, NOT guns

    • (6) Small punishment

      • High penalties/felony designation indicate Congress is punishing a wrongdoing that is more than posing a possible danger to greater society and intended a high burden of proof

      • Ex. Staples - felony punishment is incompatible with theory of public welfare crimes

    • (7) Would not criminalize broad range of apparently innocent conduct/conduct easy to innocently violate

      • Guns (Staples) - if SL for possession of automatic gun, many unsuspecting gun owners could have criminal liability

    • (8) Conviction does not create same stigma as criminal conviction

  • Examples

    • Staples (possession of guns): long tradition, constitutionality and commonness of gun ownership + high penalties (felony) > no SL

    • Balint (prohibited drugs distribution): public welfare offense > SL

    • Dotterweich (misbranded drug distribution): public welfare office > SL

    • Freed (possession of hand grenades): no long tradition, inherently dangerous > SL

    • X-Citement (shipping child porn): high penalties + not inherently dangerous, child/sex element makes crime wrongful > presumption of MR requirement > no SL

  • Policy: need SL because (mostly utilitarian concerns)

    • (1) Incentivize people to take as much care as possible (more than reasonable care) to prevent possible danger to public welfare (utilitarian) - maximize compliance with law

      • SL is stronger deterrence of careless behavior than a negligence standard (utilitarian)

      • Possible injustice of one innocent seller penalized is smaller than the harm of many innocent ppl exposed to dangerous substance

      • Punishing actual harm, not intended harm

      • Deter corporations (fictional entity) from doing injurious things to public by imposing criminal liability on individual corporate officials

    • (2) administrative efficiency

      • Deterrence makes the criminal justice system less burdened and more efficient in the long run

      • Preventative measure: decrease cases where gov needs to prosecute

      • These cases are usually more difficult to prove; SL relieves burden of government to prove/ Makes criminal justice system more efficient

    • (3) small penalties and stigma compared to criminal conviction

  • Policy: SL is bad because

    • Violates principle of subjective culpability

      • If there is no mens rea/mental state, how could someone be culpable (retributive concern)

    • ****No empirical evidence that SL creates a higher standard of care

    • Can use negligence standard instead (like Canada) - reasonable care OR gov does not need to prove MR but D has affirmative defense to show he exercised reasonable care

STRICT LIABILITY

Consider

• Level of punishment

• Common law crime or new regulatory crime (food, health, drugs)

• Less legal wrong

• Moral wrong

• Too many such offenses to allow or require a prosecutor to prove mens rea (flood of cases rationale)

• Moral stigma