§ 11.01 GENERAL PRINCIPLES

• Jurisdiction: United States

§ 11.01. General Principles¹

[A] "Strict Liability": Definition

The term "strict liability" is used in various contexts in the criminal law.² Generally speaking, however, it is important to distinguish between strict-liability doctrines and strict-liability crimes. A strict-liability doctrine is a rule of criminal responsibility that authorizes the conviction of a morally innocent person for violation of an offense, even though the crime, by definition, requires proof of a mens rea. An example is the rule that a person who is ignorant of, or who misunderstands the meaning of, a criminal law may be punished for violating it, even if her ignorance or mistake of law was reasonable. Strict-liability doctrines of this sort are discussed elsewhere in the text.³

The focus of this chapter is on strict-liability offenses, or crimes that, by definition, do not contain a mens rea requirement regarding one or more elements of the actus reus. This chapter considers the nature, wisdom, and constitutionality of such offenses.

[B] Presumption against Strict Liability

The United States Supreme Court has observed that "[t]he contention that an injury can amount to a crime only when inflicted by [mens rea] is no provincial or transient notion. It is . . . universal and persistent in mature systems of law."⁴ As a consequence, the Supreme Court warned in United States v. United States Gypsum Co.⁵ that offenses that do not contain a mens rea element have a "generally disfavored status" and "at least with regard to crimes having their origin in the common law, an interpretative presumption [exists] that mens rea is required" in federal statutes.⁶ Indeed, although the Supreme Court has shied away from holding that there is a constitutional requirement of mens rea,⁷ it frequently will interpret a federal statute, otherwise silent in regard to mens rea, as containing an implicit requirement of some culpable mental state. Although the case law is inconsistent in this regard, it seems fair to state that the high court has recently "reinvigorated its concern with protecting innocent persons as a bedrock of federal criminal law."⁸ Generally speaking, state courts apply the same presumption against strict liability as do federal courts, and they only accept a statute, strict liability on its face, as truly strict, if there is clear evidence of legislative intent to dispense with the culpability requirement.⁹

Assuming a statute does not expressly provide that it is strict liability in nature,¹⁰ when will a court interpret it as one of strict liability? Judge (later Justice) Harry Blackmun set out in Holdridge v. United States¹¹ various factors that he reasoned may overcome the presumption against strict liability: (1) the statutory crime is not derived from the common law; (2) there is an evident legislative policy that would be undermined by a mens rea requirement;¹² (3) the standard imposed by the statute is "reasonable and adherence thereto properly expected of a person"; (4) the penalty for violation of the statute is small; and (5) a "conviction does not gravely besmirch" the defendant.¹³

Unfortunately, "[f]ederal judges have toyed casually and unsystematically with the concept of strict criminal liability."¹⁴ Therefore, one cannot rely on a court to apply the five factors set out above in a consistent or systematic manner; it is often difficult to predict when a court will accept a statute on its own terms (strict liability) and thus permit it to be strictly enforced.¹⁵

[C] Public Welfare Offenses

Until the middle of the nineteenth century, Anglo-American crimes almost exclusively involved conduct malum in se (inherently wrongful), such as murder, arson, rape, and robbery. Conviction for such offenses, which required proof of mens rea, was gravely stigmatizing, and the penalties for their violation were severe.

With the advent of the Industrial Revolution, legislatures found it necessary to deal with a new problem: conduct by a single actor, such as a manufacturer of food or drugs, could gravely affect the health, safety, or welfare of a significant portion of the public, although the harm occurred innocently. Consequently, Congress...