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Although there is some dispute as to whether Anglo-American criminal law has always required the state to prove that the defendant had a culpable mental state for every element of an offense, there is general consensus that, except for the rule that ignorance of the law is no excuse and the felony murder doctrine, such a mental state has been required for criminal liability over the last few centuries. In the middle of the nineteenth century, however, both American and English courts began interpreting newly coined statutes that did not specify a mens rea as to one or more elements as dispensing with this bedrock requirement (Husak; Sayre; Singer). The practice has been criticized by commentators almost unanimously, and there is some reason to believe it is on the wane. Nevertheless, it is still highly controversial.
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The paradigmatic case of strict criminal liability is where a totally innocent actor (Joan) possesses, sells, or transports a white powder that she honestly and reasonably believes to be salt but that turns out to be cocaine. If she is held criminally responsible for possessing cocaine, she is said to be held ‘‘strictly liable.’’ Most cases of ‘‘strict criminal liability’’ involve instances where the defendant has made a mistake with regard to an attendant circumstance (fact) of the crime.
Strict criminal liability is often confused with vicarious liability, with which it may overlap. Thus, if A, B’s employee, knowingly serves liquor to a minor, and B is held liable, B is vicariously liable, but not strictly liable, since someone for whom he is held responsible acted with mens rea.
If, however, A did not know his customer was a minor, and is nevertheless held liable, A is strictly liable. And if B is held liable as well, he is now vicariously and strictly liable. Many of the early cases understood to impose strict liability actually involved vicarious liability.
Historical Reasons for Development of Strict Liability
The development of strict criminal liability between 1850 and 1950 may be explained in several ways.
Courts—particularly nineteenth-century courts in democratic societies—were extremely deferential to legislatures, finding little constitutional limitation upon legislative power, because legislatures and not courts were democratically elected. If a statute did not contain a mens rea word, the courts assumed the legislature had affirmatively intended not to adopt such a requirement and they upheld the statute. The assumption that legislatures intentionally omit a mens rea word, however, is always problematic and frequently wrong.
As markets grew more widespread, legislatures reached out to control perceived widespread abuses in the manufacturing and sale of products generally. Intending to protect the consumers from ills they could not discover for themselves, legislatures passed, and courts enforced, strict liability statutes that carried relatively mild penalties (usually fines) against the merchants. Thus, a person who sold diluted milk would be guilty of an offense even if, in fact, there was no way for him to detect the dilution, and he had taken every possible precaution against such dilution. These statutory ‘‘children of the industrial revolution’’ were said to be necessary for several reasons: (1) the sheer bulk of cases could overwhelm court systems; (2) the difficulty of proving mens rea would create lengthy and cumbersome trials; (3) the penalties imposed would not stigmatize the defendants, but merely regulate their behavior by making them more cautious. With the growth of the (civil) regulatory state, however, the need for such criminal liability has become increasingly dubious.
Courts often sustained such offenses by pointing out that in many of these crimes, the penalties were ‘‘light’’—often, but not invariably, involving only fines and no loss of liberty. Two problems with this approach, however, were ignored: (1) some of these offenses did provide for imprisonment; (2) all criminal convictions are deemed to carry with them the stigmatization of at least grossly careless conduct and character. The assertion that strict liability offense did not carry stigma was totally untested. Moreover, many statutes interpreted as applying strict liability apply rather severe penalties. For example, in United States v. Balint (258 U.S. 250 (1922)), the Supreme Court intimated that strict criminal liability could be imposed notwithstanding a possible punishment of five years. In the decision of Staples v. United States (114 S. Ct. 1793 (1994)), the Court, while emphasizing that a long prison sentence might well require interpreting a statute to require mens rea, rejected a suggestion that a ten-year prison sentence would automatically exclude strict criminal liability.
Protection of Minors
Many of the statutory schemes read as dispensing with mens rea involved protecting minors. For example, allowing minors to be present in billiard halls, or the serving of alcohol to minors, were held to be strict liability crimes with regard to the age of the person present or served. No matter how carefully defendants acted to assure that the person involved was not a minor, if they were wrong, they were frequently convicted.
Many of the statutes involved sexual conduct—bigamy, adultery, fornication, and so-called statutory rape. Besides the arguable prudishness of the age, these statutes might now have been seen as ways to protect marriage and minors.
Greater Legal Wrong Theory
Courts would sometimes impose criminal liability upon a defendant who knew, or at least suspected, that he was committing a civil offense, such as a tort or breach of contract. If it also turned out that his act was a crime, the courts held him liable for the greater legal punishment. For example, if defendant contracted with a parent to provide food for a child, he might know that failure to do so would result in a breach of contract suit, but be unaware that the contract might be read as creating a criminal duty upon himself as well.
Greater Moral Wrong Theory
As suggested above, many statutes read as imposing strict criminal liability regulated sexual activities among nonmarried persons. Since such actions were morally suspect the courts were willing to place upon the actors the risk that they were perpetrating not merely a moral wrong, but a crime as well. The most notorious liability of this kind was so-called statutory rape, by which a defendant who (reasonably) believed the other party was over the age of consent would be held liable if the partner was under a specific statutory age.
Greater Crime Theory
As with the felony murder doctrine, defendants engaged in criminality sometimes found that the actual crime they committed was greater than they had planned. Courts held them for the ‘‘greater crime,’’ possibly on the theory that one involved in crime could reasonably be required to take the risk of more punishment. Thus John, who stole what he believed to be a watch worth $10, but which turned out to be worth $1,000, was guilty not of the ‘‘petty theft’’ he had intended, but of the ‘‘grand theft’’ he actually perpetrated.
Not surprisingly, the possibility of ‘‘easy kills’’—of convicting defendants without having to prove mens rea—lured both legislatures and prosecutors into expanding the reach of strict criminal liability. By 1922, the U.S. Supreme Court, in dictum, upheld the possibility of allowing strict criminal liability in the sale of drugs even though the penalty was five years imprisonment (United States v. Balint, 258 U.S. 250 (1922)). By the mid-1940s, many legislatures and most courts had embraced that specific doctrine in drug cases, and were including environmental and many white-collar harms as well.
These results were hardly inevitable. Almost none of this legislation, state or federal, explicitly dispensed with mens rea with regard to any element. It would have been relatively easy for courts to have take the position that, even assuming the constitutionality of strict criminal liability, it was so anathema to the historical understanding of the criminal law that legislatures would be required to state unequivocally that no mens rea was required with regard to a specific element before a statute would be so interpreted.
The tension with the heritage requiring culpability proved too strong for most courts in most countries, including all European courts and legislatures. Even if they would not require the prosecution to prove knowledge of a specific element (age, kind of illegal drug, etc.), many courts adopted a ‘‘halfway house,’’ either requiring the prosecution to prove negligence, or permitting the defendant to show non-negligent lack of knowledge of that element. Even though this contradicts the general rule that defendants need not prove any defense that goes to mens rea, it can be seen as an ameliorative device to dilute strict criminal liability. Only in the United States have courts continued to apply strict criminal liability, and even here, as discussed below, numerous jurisdictions have substantially reduced the number of statutes interpreted as imposing strict criminal liability.
Sentencing Factors v. Elements
A recent movement has had the same result as imposing strict liability. In the past several decades, some courts (mostly federal) have characterized certain facts as ‘‘sentencing factors’’ rather than as elements of crimes, and have therefore held that no mens rea need be shown as to these facts. For example, federal courts have consistently held that the amount of drugs possessed by a defendant is not an element of the crime of possession of a controlled substance, but only a sentencing factor. In two recent 5–4 decisions—United States v. Almendarez-Torres (118 S.Ct. 1219 (1998)) and Jones v. United States (119 S.Ct. 1215 (1999))—the U.S. Supreme Court has taken two different positions on this issue, attempting to deal with it as one of specific statutory interpretation. In Torres, the Court held that whether recidivism, which increased the maximum sentence permissible from two years to twenty, was not an element of the offense and could be determined by a judge, whereas in Jones the Court held that the presence of serious bodily harm, which increased the maximum sentence from 15 to 25 years, was an element of the crime to be determined by a jury. The larger Sixth Amendment issue of depriving the defendant of a jury determination of a fact critical to his punishment, however, is likely to require the Court to resolve at least some parts of this question in the near future.
Arguments for Strict Liability
In addition to the pragmatic considerations listed above, there are several normative arguments in favor of strict criminal liability.
Difficulty of Proving Mens Rea, and The Likelihood of Mens Rea
Some voices favoring strict criminal liability argue that defendants really are negligent (at least) but that the use of strict liability avoids the difficulties of proving such negligence, as well as the possibility that some truly culpable defendants will be wrongly exonerated (Simon). Leaving aside the issue of whether negligence—at least civil negligence—can ever be an adequate basis for criminal punishment, such a view would see every citizen as liable for not having altered his character. For example, a bartender who serves a minor who provides eight very persuasive falsified means of identification would be seen in this view as liable not only because his examination of the eight sources was wrong but because he had not previously spent hours (perhaps years) in training himself to identify false identification. Besides the obvious disutility in such a requirement, the unfairness to the defendant is manifest. Moreover, if mens rea is difficult to prove for these offenses, it is just as difficult to prove in cases such as homicide and rape. Yet few have suggested that this is a reason for dispensing with requiring such proof in the most serious crimes.
On the other hand, many actors, while not ‘‘knowing’’ that a specific circumstance exists, or that a specific result ‘‘will’’ or ‘‘may practically certainly’’ occur, may be culpable—but less culpable than knowing—with regard to such a factor. For example, Joan above may not ‘‘know’’ that the white powder is cocaine, but if she is told to take the glassine envelope to Roger, who will pay her $1,000, and to keep the envelope hidden from view until the sale, a jury might well find her either willfully blind, reckless, or criminally negligent with regard to the circumstance of the powder being cocaine. If ‘‘reckless’’ or ‘‘criminally negligent’’ possession, or transportation, were criminalized (and punished less severely than knowing possession), holding Joan would not necessarily be seen as imposing strict liability upon her.
This useful and legitimate insight has sometimes been expanded, somewhat too broadly, to suggest that anyone who engages in certain activities (banking, manufacturing, transporting) ‘‘knows’’ that there is a risk that a prohibited result will occur as a result of that activity. It is then argued that imposing criminal liability upon them when that result occurs is not unfair because they were aware of that risk before they entered the activity. Aside from relying on a definition of recklessness or negligence that is far too broad, this rationale could encompass virtually all acts (e.g., we all ‘‘know’’ that car accidents occur and, therefore, might be held strictly liable if we ‘‘cause’’ an accident which ‘‘causes’’ death).
Another argument in favor of strict criminal liability contends that defendants who act in circumstances where only strict liability can catch them would be ‘‘unjustly enriched’’ if exculpated. Thus, a driver whose gas pedal sticks and accelerates his car to ninety miles per hour has benefited above the honest driver who not only stayed within the speed limit, but who had his gas pedal checked every week. The eighteen year old who has sexual intercourse with a seventeen year old (believing her to be the age of consent) has obtained a benefit over the person who has remained celibate (or dated only persons clearly over forty) rather than risk sex with an underage partner. These benefits, it has been argued, warrant imposing some kind of liability upon the otherwise ‘‘lucky’’ defendant. This view, however, does not explain why criminal liability, stigma, and punishment is the proper path to follow even if one agrees that there has been some unjust enrichment.
Permeating the discussion of many aspects of criminal liability is the philosophical debate about the status of ‘‘moral luck.’’ The question is whether the unintended results of an actor’s (intended) actions should be imputed to the actor. The issue is present both for ‘‘good’’ and ‘‘bad’’ moral luck. For example, a defendant who wants to kill his victim, but who (luckily for the victim, but unluckily for the defendant) misses, is charged with attempted murder, rather than murder, and is punished less severely. Similarly, one who intends to injure, but who does not wish to kill, but unluckily does, may under a moral luck theorem receive a punishment equivalent to that of a person who did wish to kill. Many argue that this is anomalous, and that the defendant’s liability should be based solely upon his culpability and not upon the fortuity of the results of his actions (Singer). Imposing strict criminal liability obviously raises the same issues. If a defendant who intends to possess only sugar but actually possesses cocaine is held liable for possessing cocaine that defendant is suffering ‘‘bad’’ moral luck. Moral luck raises critical questions for all ascriptions of responsibility, but nowhere are these questions more dramatically raised than in the criminal law, where the defendant’s freedom is often at stake.
Criminalizing v. Grading
Professor Kenneth Simons has posited a distinction between at least two kinds of strict criminal liability. What he terms ‘‘strict liability in criminalizing’’ reaches the cases, mentioned above, of the ‘‘greater legal and moral wrongs,’’ as well as the simple case where the defendant believes he is possessing sugar. Strict liability in grading, however, covers the ‘‘greater crime’’ situation, where the defendant knows he is involved in a low level of criminality, but turns out to have committed a greater harm than he envisioned. The distinction is helpful in several ways, most importantly because it distinguishes between the person who is not culpable at all and the person who is, in any event, culpable with regard to (part of) the result.
The Retreat from Strict Liability
The legal positivism of the nineteenth century has been at least mitigated by two twentieth-century phenomena: (1) judicial activism; (2) a legal realism about the ways in which legislation is passed. The deference that courts gave legislatures has been substantially reduced in favor of protection of autonomy and privacy. Moreover, the nineteenth-century judicial assumption that an absence of a mens rea word in a statute was intentional has been replaced by a recognition that legislatures are far too busy to sustain such a presumption, and that the long-lived requirement of mens rea should be followed unless the legislature clearly and explicitly rejects it. Such a view, moreover, simply places with the legislature the power—and responsibility—of speaking clearly when imposing criminal sanctions.
The Model Penal Code
The Model Penal Code expressly rejects the general notion of strict criminal liability. In § 2.05, which specifically aims at strict liability, the Code precludes any liability for a ‘‘criminal offense’’ without a showing of mens rea with regard to each element of the crime, although it allows such liability if there is no possibility of incarceration at all. Just as importantly, the Code requires legislatures to articulate the precise mens rea required with regard to every element of every crime, and provides a series of rules of statutory interpretation to cover cases where the legislature fails to do so. Thus, the legal positivism of the nineteenth century, which was generated by statutes that did not include a mens rea word, is avoided. Finally, the Code rejects all of the ‘‘greater evil’’ theories outlined above. Section 2.04 expressly provides that a defendant who, believing that he commits a crime, makes a mistake as to an element is to be punished as though the facts were as he believed them to be. Thus, in the hypothetical above, John is guilty of petty theft—the crime he thought he was committing—rather than grand theft. In addition to repudiating the general doctrine of strict liability with regard to elements of a crime, the Code virtually abolishes the felony murder doctrine, and ameliorates the ‘‘ignorance of the law is no excuse’’ doctrine as well.
Statutory Rape and Other Sex Offenses
Perhaps because sexual mores have changed, or merely because of the recognition that articulated sexual mores did not reflect practice, a sizable number of state courts, and some state legislatures, following the lead of the Model Penal Code, have recently rejected the earlier views as to statutory rape, and have allowed a defendant’s reasonable mistake as to the age of his consenting partner to be a defense in most cases.
Another sea change has occurred with regard to illegal drugs. As noted above, the Supreme Court in the 1920s appeared to allow the imposition of strict criminal liability in cases involving illegal drugs. Thus, Joan, who reasonably thought she was transporting salt, could be convicted of transporting heroin, and imprisoned for years. Today, however, every state except Washington requires the prosecution to prove that the defendant knew he was involved with drugs, and even Washington allows the defendant to prove ‘‘unwitting possession’’ as a defense to the charge. Some courts appear to require the prosecution to prove that the defendant knew the exact amount of drugs involved, at least where the amount has a statutorily enhancing effect upon the penalty (State v. Headley, 6 Ohio St. 3d 475, 453 N.E. 2d 716 (1983); Comm v. Myers, 554 PA. 569, 722 A.2d 645 (1998)).
Supreme Court Animosity
Prior to the mid 1980s, the Supreme Court’s position on strict criminal liability was, at best, ambiguous. Although there was no direct holding either way, language in some of the leading cases seemed fully to endorse strict criminal liability (for example, Balint v. United States (Supr.)), while others spoke in glowing terms of the requirement of mens rea as an immovable part of American criminal and constitutional law (T.G. Morrisette v. United States, 342 U.S. 246(1952)). Inside the same opinion one could find language supporting and opposing strict criminal liability. That lack of clarity seems, however, to have dissipated. While it is always dangerous to attempt to read the tea leaves of decisions from any court, it is nevertheless reasonable to note that the Court seems to have moved substantially against strict liability. In a series of opinions beginning in the 1980s, the Court interpreted statutes dealing with regulated activities (such as federal food stamps, gun registration, tax laws and banking transactions) and sexual activities (transportation of pornographic films involving minors) so as to require mens rea as to all elements of the offense, and to require knowledge of the laws involved. Although in two of these cases the Court, in footnotes, left open the possibility of imposing strict criminal liability with regard to some actors, the general impact of these opinions is to fully embrace, at least as a matter of interpreting federal statutes, the requirement of mens rea with regard to all elements of an offense. Perhaps a paradigm example is United States vs. X-Citement Video (115 S.Ct, 464 (1994)), in which the Court interpreted a statute that made illegal the ‘‘knowing . . . transportation’’ . . . of a film involving the use of minors in sexually explicit conduct. All agreed that the government must show that the defendant knew he was transporting (1) a film and (2) a film showing sexual conduct; the issue was whether the government had to prove that the defendant knew that the film involved a minor. Given that the case involved both minors and sex—two categories in which strict liability had first been generated—it would not have been surprising if the Court had held that no level of mens rea had to be demonstrated. Instead, the Court read the mens rea word (‘‘knowing’’) to ‘‘run through the entire statute,’’ and proclaimed that any other reading would risk the criminalization of too many innocent persons. Indeed, in each of the cases referred to, the Court has emphasized, as a reason for imposing a mens rea requirement, the possibility of convicting the morally innocent (see Singer and Husak). Combined with recent decisions treating as an element of a crime anything that affects punishment, the Court’s full endorsement of mens rea seems inexorable. While these decisions are not binding on state courts, they may nevertheless influence both those courts, and federal courts applying constitutional doctrine.
Empirical Studies of Strict Liability
Since most of the arguments in favor of strict criminal liability are based on practical considerations, such as the difficulty of proving mens rea and the need to protect the consumer, it is not merely relevant but critical to examine actual prosecutorial practice in these areas. In the area of ‘‘industrial revolution’’ statutes, for example, state enforcing agencies have not prosecuted individuals or entities whom they believe were not aware of the facts that made their acts criminal. Thus, while prosecutors could charge any corporation whose shipments of foodstuffs involve, however inadvertently, contaminated products, only those corporations who have received at least one—and usually many—warnings are prosecuted (see for example, United States v. Park, 421 U.S. 658 (1975)). Were prosecutors required to prove mens rea, this evidence would almost surely provide that proof. Although the prosecution may in fact proceed as one of strict liability, the availability of such evidence severely undercuts the contention that prosecutors would be unable to demonstrate mens rea in such circumstances. Moreover, whatever force there might have been in the perceived need to protect consumers has been filled not only by the mechanisms of welfare government, but by civil remedies as such as suits for product liability damages, which often hold the defendant strictly liable in tort. There is virtually no evidence that criminal liability adds significant marginal deterrence to the threat of lawsuits involving potentially millions of dollars in damages.
An argument that ‘‘it is invariably the case that the actor could have avoided liability by taking earlier steps which were hardly impossible,’’ including refusing to take responsible managerial positions, fails to note the obvious disutility of such decisions. During the 1990s, it was rumored that some corporate officials joked about having a ‘‘vice president in charge of going to jail,’’ a position which, if it truly existed, would hardly have many applicants. That is to say, the more we chill persons from engaging in honest actions because there may be some strict liability aspect to their conduct, the more we deter desirable conduct. In X-Citement Video, discussed earlier, the Court noted that transportation of child pornography could be virtually halted by imposing strict liability upon every person, including Federal Express couriers, who delivered such films, but at the prohibitive price of so chilling commercial activity that much desirable transportation of packages might also cease.
Strict criminal liability remains a possibility in the United States, but courts and legislatures appear increasingly inclined to reaffirm that the prosecution must prove mens rea as to every element of a crime before tarnishing a person’s name and sending her to prison. In a society that values highly freedom and reputation of character, this is essential.
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- KNOLL, MARK, and SINGER, RICHARD. ‘‘Searching for the ‘Tail of the Dog’: Finding Elements of Crimes in the Wake of McMillan v. Pennsylvania.’’ Seattle University Law Review 22 (1999): 1057.
- LEVINSON, LAURIE. ‘‘Good Faith Defenses: Reshaping Strict Liability Crimes.’’ Cornell Law Review 78, no. 3 (1993): 401.
- MICHAELS, ALAN. ‘‘Constitutional Innocence.’’ Harvard Law Review 112, no. 4 (1999): 828.
- PRIESTER, BENJAMIN. ‘‘Further Developments on Previous Symposia: Sentence for a ‘Crime’ the Government Did Not Prove: Jones v. United States and the Constitutional Limitations of Factfinding by Sentencing Factors Rather Than Elements the Offense.’’ Law & Contemporary Problems 61 (1998): 249.
- SAYRE, FRANCIS. ‘‘Public Welfare Offenses.’’ Columbia Law Review 33, no. 1 (1933): 55.
- SIMONS, KENNETH. ‘‘When Is Strict Criminal Liability Just?’’ Journal of Criminal Law and Criminology 87 (1997): 1075.
- SINGER, RICHARD. ‘‘The Resurgence of Mens Rea: III—The Rise and Fall of Strict Liability.’’ Boston College Law Review 30, no. 2 (1989): 327.
- SINGER, RICHARD, and HUSAK, DOUGLAS. ‘‘Of Innocence and Innocents: The Supreme Court and Mens Rea Since Herbert Packer.’’ Buffalo Criminal Law Review 2 (1999): 226.
- WASSERSTROM, RICHARD. ‘‘Strict Liability in the Criminal Law.’’ Stanford Law Review 12 (1960): 731.
- WILEY, JOHN. ‘‘The New Federal Defense: Not Guilty by Reason of Blamelessness.’’ Virginia Law Review 85, no. 5 (1999): 1021.