In Mark Kelman’s article “An Unorthodox View,” he outlines five arguments for strict liability and provides his own criticisms of them, as well as his criticisms of those opposing it. In this post, I intend to argue against the application of strict liability in criminal cases. Generally speaking, I do not oppose strict liability in commercial regulations, misdemeanors, torts and accidents, and the like, but in my opinion, strict liability ought to not be employed in “morals” crimes and felonies. In such cases, the gravity of the crime and its corresponding punishment imposes upon the state an obligation to show some substantial degree of legal or moral responsibility before the accused can be rightfully convicted.
The Cornell community legal encyclopedia offers a helpful definition of strict liability:
In both tort and criminal law, strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state.
There is a tension here between strict liability and our traditional view of punishment as a corrective and retributive force against wrongdoing. Strict liability laws penalize an action rather than the intent of the person who acted, and so the agency of the person is not taken into account.
Again, this seems to be an understandable approach to accidents and the like. If I damage your property due to circumstances beyond my control, one of us is out of a good deal of money regardless of my intent, so it only makes sense that I would be responsible for making that up to you and set things straight in a way that, hopefully, undoes the harm. It is less clear that one should be punished with a prison sentence or the like when one has not acted wrongly intentionally, since the prison sentence does not undo any harm and, in fact, only causes new harm. This, I would say, is what you see happening with some strict liability cases.
The Argument from Deterrence
In Kelman’s piece, the first justification for strict liability is offered by Chief Justice Taft, who argued that one should disregard the injustice to the individual in the interest of preventing crime generally. Even if we accept Taft’s notion that the aim of the law is to deter future crimes and we assume that criminals are sufficiently aware of strict liability laws and fear the penalties in place, it still seems as if it would be difficult for the law to dissuade someone from doing something he or she never intended in the first place.
Taft’s justification here also seems to rely too much on the success of deterrence. If a deterrent effect cannot be demonstrated or is deemed negligible, we risk, as Kelman writes, “violating [our] principles against punishing the innocent without gaining corresponding benefits.” Philosophers can only speculate on this issue, which seems to ultimately be a question for the social sciences to weigh in on. In the case of felony murder laws—codes present in most states which allow courts to hold felony offenders responsible for any death(s) which occurred during the commission of their crime even if the offender did not intentionally cause said death(s)—there have been few efforts to provide empirical support for the deterrent effect of strict liability. However, after analyzing data from states with and without the felony murder rule, Professor Anup Malani, of University of Virginia Law School, concluded that the felony-murder rule has “a relatively small effect on criminal behavior: it does not substantially affect either the overall felony or felony-murder rate,” and its effects seem to vary by type of felony, “reducing deaths during burglaries, larcenies, and auto thefts,” but having the “perverse effect of increasing the number of robbery homicides.” If this is true, Taft’s consequentialist approach does not seem satisfactory even on his own terms.
If we justify felony murder laws on the basis of deterrence alone, and the criminal does not have to have intended to cause a death for him to be charged with murder, one wonders why, by this logic, there must even be a death at all for him to be charged with murder, since the commission of murder itself does not figure into the calculation. Surely punishing all robberies the same as murders would be more likely to produce the desired deterrent effect than the law as written, but I doubt that society would accept the boons as worth the cost of injustice.
Risk and Immoral Activity
A second justification for strict liability holds the accused responsible for immoral activity generally by exacting punishment for a particular immoral and risky action. To wit, Kelman notes that in the English case Regina v Prince (1875) a man was convicted of statutory rape on the basis that, even if he did not know that he was fornicating with a minor, he still knew that he was immorally fornicating. However, if this justification were valid, it would surely be more sensible to draft legislation forbidding fornication, since that is what the man has ultimately been convicted of here, and in the absence of such legislation, it seems as though he could not rightfully be convicted if society is to uphold rule of law.
Though this reasoning would be rejected today if applied to statutory rape, it strikes me as being rather similar to one formulation of the argument for felony murder laws: the thief’s breach of moral convention and disregard for others—as revealed by his willingness to commit a robbery—justifies his being punished for any unintended deaths caused by his actions. In this case, such laws seem to cheapen our concept of what murder means. If a death would otherwise result in someone being convicted of manslaughter, it seems that the courts should handle this death caused by the commission of the felony in the same way. Felony murder laws seem to give the court a way to lie to itself about the definition of murder so that it can punish criminals more severely.
Argument from Efficiency
Justice Oliver Wendell Holmes’ rationale for strict liability sees intent as “a matter difficult to prove,” which is certainly true. Rejecting strict liability imposes a substantial burden on the state. However, as the stakes become greater, efficiency seems less like a valid reason for a legal shortcut. The legal system would be vastly more efficient if the courts refuse all appeals, but I do not think we would find comfort under such a system. If we agree that, insofar as the role of the judicial system is punitive in nature, its aim ought not to be to mete out punishments but rather to administer punishments in cases of identifiable wrongdoing, then it seems doubtful that a system focusing primarily on operational efficiency could even be said to be efficient in carrying out its purpose, since the system would have abandoned its aim of promoting justice. Desirable as efficiency may be, efficiency should not trump justice.
Kelman proposes an alternative justification and argues that parties can be held responsible for getting themselves into a situation where they can cause harm, and that in most situations where someone has broken the law, their crime was made possible by their neglecting to take enough caution if we look at a broad enough time frame.
This justification seems to punish people for actions that are not crimes. Chief Justice Warren Burger supposed that people who took positions of responsibility were strictly liable because they made the mistake of taking upon themselves responsibility that they could not live up to. However, it does not seem right to criminalize poor career choices. If someone’s failure to act responsibly causes reparable harm, it makes sense to require that person to make things square, and it may be justifiable to punish the negligence with prison or some punitive sentence. However, this does not justify holding them strictly liable and punishing them the same as if they had intended to cause it.
By expanding the time frame in question, Kelman’s justification also requires us to establish that the offender had been in a position where he/she could have taken “extensive steps” to avoid breaking the law. But if we would not require someone to ask for a birth certificate or parental confirmation before engaging in sexual conduct with someone who is in fact eighteen years of age, why would we impose the same burden on a person who believes that his or her partner is eighteen years of age since the person perceives that he or she is in the first situation rather than the latter? I would wager that the proponent’s response would be something along the lines of, “Well, in offending cases, the person probably had a reason, a red flag, that would tip him or her off.” This seems to be an appeal to intent: the court assumes that the person really did not care whether he or she was breaking the law. If the court is going to factor in intent in this way, the burden is on the court to establish it rather than merely assume it.
Strict Liability versus Ad Hoc Standards
The crux of the issue for Kelman, however, is a distinction between the “perfectly standard liberal legalist arguments” against the “ad hoc standards” he believes are required of the law in the absence of strict liability. However, criminal law need not impose ad hoc standards. Not applying strict liability will impose more administrative burden on the state, but this does not seem like a horrible thing in criminal cases which already will drag out. The law can be formulated to avoid ad hoc standards.
While twenty-nine states employ strict liability in cases of statutory rape, the state of Arizona takes a hybrid approach which defines sexual conduct with a minor as “intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” Arizona provides an interesting example because it allows the qualifying phrase “intentionally or knowingly” to extend to the end of the sentence, as made clear by §13-1407 of the law, which enumerates various defenses and states:
It is a defense to a prosecution pursuant to sections 13-1404 and 13-1405 in which the victim’s lack of consent is based on incapacity to consent because the victim was fifteen, sixteen or seventeen years of age if at the time the defendant engaged in the conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim. [Emphasis mine]
Compare this with the Regina v Prince case mentioned earlier. In that case, the court held that the defendant was guilty of breaking the law regardless of any knowledge of doing so, since the law prohibited the commission of the action and not the knowledgeable commission of the action. The court would be making an ad hoc judgment if it dismissed the defendant when the law as written did not allow it. In other words, “If he did it, we should punish him for doing it.”
The difference between the two laws lies in what it is. In the Regina v Prince case, the it is sexual conduct with a minor; in Arizona law, the it is sexual conduct with a person who the defendant should know is a minor. Of course, Arizona does apply strict liability if the minor victim is fourteen years of age or younger, but this seems unnecessary: if it is true, as the court may assume, that no one could unknowingly engage in sexual behavior with a fourteen year old and not realize the victim’s age, then it should not be much of a burden for the court to establish that the defendant could have reasonably known the age of the victim. However, strict liability seems less objectionable in this case, since there is probably little to no practical difference in the outcome between the laws with or without strict liability, since there are almost certain to be no cases where intent could not be established with such young victims.
Ultimately, the justifications for strict liability seem to fail. Taft’s argument from deterrence requires (A) that the laws actually have a deterrent effect, which may not be the case, and (B) that we value deterrence over the justice of sentencing only the blameworthy, which does not seem to be the case. Holmes efficiency claims likewise do not seem to give sufficient weight to the rights of the accused. The Regina v Prince argument from the necessary risk in immoral activity and Kelmen’s argument from responsibility both seem to tack on more extra punishments for actions that would not normally be so severely punished; if intent cannot be shown, it seems unfair to punish someone as if it was. Finally, it seems that there are ways to formulate the law so that it can be strictly applied and still take intent into account.