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Strict Liability’s Criminogenic Effect

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Abstract

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil. And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous. Similar arguments support the use of criminal liability for regulatory offenses. Greater punishment rates suggest greater compliance. But this analysis fails to appreciate the crime-control costs of strict liability. By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control. More importantly, the system’s lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms. Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law’s reputation for being just, which means avoiding the use of strict liability.

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Notes

  1. See Paul H. Robinson, Distributive Principles of Criminal Law: Who Should Be Punished How Much?, Oxford 2008, chs. 3 and 4.

  2. See Robinson, Distributive Principles, ch. 6; Paul H. Robinson, “Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice,” 114 Harv. L. Rev., (2001): 1429–1455.

  3. See generally Paul H. Robinson and Michael Cahill, Criminal Law, Second Edition, Aspen Publishers 2011, § 4.3.3.

  4. See Model Penal Code § 2.02(3).

  5. See Model Penal Code § 1.04(5).

  6. See Model Penal Code § 2.05(1):

    The requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to:

    (a) offenses which constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense; or

    (b) offenses defined by statutes other than the Code, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.

  7. See Model Penal Code § 213.6(1).

  8. See further on case law: Robinson and Cahill, Criminal Law, § 4.2.2.

  9. See further on the felony-murder rule, id., § 15.3.

  10. See further on the legality principle, id., § 2.4.

  11. In Canada, for example, “strict liability” allows the defendant to rebut the presumption of culpability, while “absolute liability” does not. See Regina v. City of Sault Ste. Marie, 85 D.L.R.3d 161 (S. Ct. 1978); Eric Colvin, Principles of Criminal Law, Carswell 1986, p. 22.

  12. See further Robinson and Cahill, Criminal Law, § 2.9.

  13. See Model Penal Code § 2.05(2)(a).

  14. See Model Penal Code Art. 6.

  15. See generally, Paul H. Robinson and Michael Cahill, Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve, Oxford 2006, pp. 190–191.

  16. See John C. Coffee, Jr., “Does ‘Unlawful’ Mean ‘Criminal’? Reflections on the Disappearing Tort/Crime Distinction in American Law,” 71 B.U. L. Rev. (1991): 193–246, p. 216.

  17. See generally Paul H. Robinson, Intuitions of Justice and Utility of Desert, Oxford 2013, ch. 8, 9, and 11; Paul H. Robinson and John M. Darley, “The Utility of Desert,” 91 Nw. U. L. Rev., (1997): 453–499; Paul H. Robinson, Geoff Goodwin, and Michael Reisig, “The Disutility of Injustice,” 85 N.Y.U. L. Rev. (2010): 1940–2022.

  18. See Robinson, Intuitions of Justice, Part II.

  19. See generally Paul H. Robinson, “Democratizing Criminal Law,” Nw. U. L. Rev., forthcoming 2017.

  20. Paul H. Robinson and Sarah M. Robinson, The Vigilante Echo: How Failures of Justice Inspire Lawlessness, University of Wisconsin Press 2017.

  21. See further on these mechanisms, Robinson, Intuitions of Justice, pp. 152–163.

  22. Id., p. 180.

  23. Id., p. 182.

  24. Robinson, Goodwin, and Reisig, The Disutility of Justice.

  25. See further Robinson, Intuitions of Justice, pp. 172–174; Paul H. Robinson, “The Role of Moral Philosophers in the Competition Between Philosophical and Empirical Desert,” 48 Wm. & Mary L. Rev. (2007): 1831–1843.

  26. Robinson, Intuitions of Justice, p. 123.

  27. Robinson, Intuitions of Justice, p. 125.

  28. Robinson, Intuitions of Justice, p. 127.

  29. See further on other empirical studies mapping community views on culpability requirements for criminal liability Robinson, Intuitions of Justice, ch. 14.

  30. See for example, See, e.g., Paul H. Robinson et al. “Report on the Delaware Criminal Law Recodification Project,” 2016, accessed from http://scholarship.law.upenn.edu/faculty_scholarship/1746; Paul H. Robinson et al. “Final Report of the Maldives Penal Law & Sentencing Codification Project,” Republic of Maldives 2006, accessed from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1522222; Paul H. Robinson et al. “Final Report of the Kentucky Penal Code Revision Project,” Commonwealth of Kentucky 2003, accessed from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1526674; Paul H. Robinson et al. “Final Report of the Illinois Criminal Code Rewrite and Reform Commission,” State of Illinois 2003, accessed from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1523384 Paul H. Robinson and Michael Cahill, “The Accelerating Degradation of American Criminal Codes,” 56 Hastings L.J. (2005): 633–655, pp. 633, 635–637.

  31. Robinson, Distributive Principles, supra note 2, ch. 8.

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Robinson, P.H. Strict Liability’s Criminogenic Effect. Criminal Law, Philosophy 12, 411–426 (2018). https://doi.org/10.1007/s11572-017-9435-8

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