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Borgmann, Albert
1989.
Technological Transformation.
p.
105.
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On the Use of Strict Liability in the Criminal Law
Published online by Cambridge University Press: 01 January 2020
Extract
A highly controversial issue in criminal law theory has been the use of strict liability offenses, i.e., offenses which create liability ‘without fault.’ The collection of strict liability offenses is varied according to the element of the particular offense with respect to which liability is strict. For example, a statute prohibiting the filing of a false financial statement with the Secretary of State might impose liability despite a reasonable error as to the truth of the statement, or as to the financial nature of the statement, or as to the identity of the official in question. What all strict liability offenses have in common is the imposition of liability despite the possibility of reasonable mistake or due care regarding some important element of the offense. Generally, then, a strict liability offense is one to which a claim of no-negligence is not a defense. Indeed, such a claim will not even be heard. All that the prosecution need prove is the voluntary commission of the proscribed acts by the defendant; no other question concerning the defendant's efforts or opportunity to obey the law is relevant to liability or conviction.
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References
1 The example is adopted from State v. Dobry, 217 Iowa 858 (1933). It may be the case that no strict liability offense is entirely strict, i.e., strict with respect to all elements of the offense. See Packer, Herbert L The Limits of the Criminal Sanction (Stanford: Stanford University Press 1979), 126Google Scholar; and Wasserstrom, Richard ‘Strict Liability in the Criminal Law,’ reprinted inKipnis, K. ed., Philosophical Issues in Law (Englewood Cliffs, NJ: Prentice-Hall 1977) 28-41Google Scholar, 38.
2 The debate between cognitive model theorists and capacities model theorists frequently centers on the signification of ‘mens rea.’ In this essay, I follow the cognitive model theorists in using the phrase to refer to various cognitive states such as intention, knowledge, and foresight. The negligent agent does not, of course lack all cognitive activity; rather, he lacks awareness of some crucial aspect of his conduct which renders it criminal.
The language and conception of types of responsibility and culpability, and of the details of any particular capacities model of responsibility, merit more extended explication than the limits of this article permit; it is my intention to provide such explication in subsequent work.
3 This principle cannot be understood as providing any substantive guarantee. It is a principle governing the selection and design of liability standards.
4 Jerome Hall, General Principles of the Criminal Law (New York: Bobbs-Merrill 1960), 343
5 Rates of recidivism for strict liability offenses are not a useful indication of responsibility; that someone repeatedly commits an error does not, in itself, prove that she was responsible for the errors. Insofar as conviction of a strict liability offense requires only a voluntary act, repeated convictions can only show the agent to have been causatively responsible for all the proscribed acts.
For this reason, in part, I am not persuaded by the suggestion that, in strict liability cases, simple voluntary performance of a proscribed act can be regarded as an ‘antecedently judged’ failure to meet a standard of care (seeR. Wasserstrom, 40). What kind of standard of care could this be? Surely, it follows from the very idea of such a standard that an accused agent could ask, ‘What might I have done so as to not have failed the standard of care?’ and that to answer ‘You might not have performed this act’ would not be an adequate or appropriate response.
6 See Wasserstrorn, 39. Also see Feinberg, Joel Doing and Deseroing (Princeton: Princeton University Press 1970), 225Google Scholar.
7 Both are presented in Feinberg, 224-5.
8 Hall, 342
9 Imprisonment, however, is generally regarded as too severe and as carrying, as a matter of convention, the stigma of criminality: see Feinberg, 110-11; Wasserstrom, 28; the comments of Justice Brandeis in U.S. v. Moreland, 258 U.S. 433 (1922); the Model Penal Code, Section 205 (Tentative Draft No. 4, 1955); and Commonwealth v. Koczwara, 155 A.2d. 825 (PA, 1959).
10 People v. Estreich, 272 App. Div. 698 (1947)
11 State v. Prince, 52 N.M. 15 (1948)
12 U.S. v. Balint, 258 U.S. 250 (1922)
13 Commonwealth v. Mash, 48 Mass. 472 (1844); Williams v. N.C., 325 U.S. 226 (1945). Also see, for bigamy cases and statutes, ‘Annotation,’ 56 A.L.R. 2d 915 (1957).
14 Commonwealth v. Murphy, 165 Mass. 66 (1896); and see ‘Annotation,’ 8 A.L.R. 3d 1100 (1966) regarding strict liability and sex offenses involving minors.
15 State v. Ross, 55 Or. 450 (1909)
16 Williams, Glanville Textbook of Criminal Law (London: Stevens & Sons 1978), 912Google Scholar
17 See Feinberg, Chapter V. And see Henry Hart, The Aims of the Criminal Law,’ Law and Contemporary Problems 23 (1958), 401-41, 423.
18 State v. Lindberg, 125 Wash. 51 (1923)
19 ‘There are those who value their good names to the extent that they see as much harm in a degrading criminal conviction as in a jail sentence. The laceration of a man's reputation, the blemishing of his good name, the wrecking of his prestige by a criminal court conviction may blast a person's chances for honorable success in life to such an extent that a jail sentence can hardly add much to the ruin already wrought to him by the conviction alone’ (Commonwealth v. Koczwara, 835).
20 ‘The central distinguishing aspect of the criminal sanction appears to be the stigmatization of the morally culpable’ (Sanford Kadish, ‘Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations,’ University of Chicago Law Review 30 [1963], 423-49, 437).
21 Wasserstrom argues that this only shows the need for more severe penalties (Wasserstrom, 34). The clear answer to this is that the infliction of a severe penalty may be as unjust as the condemnation of the faultless. See Feinberg, 113.
22 Kadish, 435-46
23 Packer, 262
24 The metaphor is borrowed from Packer, 273.
25 See Packer, 270-6 and Hall, 351-9.
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