Strict liability offenses, incarceration, and the Cruel and Unusual Punishments Clause.

• Author: Larkin, Paul J., Jr.
• Position: I. The Setting: Strict Liability and Incarceration through III. The Problems with Strict Liability Offenses, p. 1065-1101

1. The Setting: Strict Liability and Incarceration II. The Birth and Growth of Strict Liability Offenses III. The Problems with Strict Liability Offenses IV. Strict Liability Offenses and the Cruel and Unusual Punishments Clause A. Challenges to Strict Liability Offenses B. Defenses Against Eighth Amendment Challenges 1. The Prevalence of Strict Liability Criminal Laws 2. The Need for Deterrence V. The Remedy for an Eighth Amendment Violation VI. Conclusion I. THE SETTING: STRICT LIABILITY AND INCARCERATION

   The romantic vision of the criminal justice system is one of a decisive courtroom battle between an aggressive but virtuous prosecutor matching wits against a benighted and indefatigable defense counsel vigorously representing his innocent client before a fair, wise, dedicated judge, who vigilantly protects the defendant's rights at trial. The reality, however, is quite different. Actors in today's criminal justice system tend to follow a mundane path. More trials can be seen each week on prime time television than actually take place in most courtrooms during the same period. Roughly ninety-five percent of all prosecutions today result in plea bargains (1) that are negotiated between professional adversaries oftentimes too swamped with cases to include their clients--defendants or the public, including crime victims--in the pre-plea decisionmaking process. (2) Equally busy judges trying to manage crushing caseloads wind up blessing those agreements after a perfunctory review of the facts, even when a defendant pleads guilty while claiming to be innocent. (3) The romantic vision of the process is uplifting; the reality is not. (4)

   Criminal justice scholars disagree over where the blame should lie. Some argue that the criminal justice system has become overwhelmingly mechanized. (5) They criticize the system for its willingness to treat cases like widgets wending their way down an assembly line. The overriding concern is not to separate the guilty from the innocent; the assumption is that every defendant is guilty of something. Instead of providing a forum for the purpose of finding the facts or exhibiting a morality play, the criminal justice system cares only about what can enable the professional insiders most efficiently to process the thousands of cases that the system must handle with little, if any, concern for the dignity of the real people involved in the process, particularly defendants and victims.

   Other scholars believe that the fundamental problem with the criminal justice system is substantive, not structural or procedural. (6) They see a criminal justice system that has been captured by an illegitimate partnership between prosecutors and legislators who tacitly conspire to generate an overwhelming growth in the size and severity of the penal code. Legislatures continuously churn out superfluous or redundant, but always onerous, new criminal laws that prosecutors then use to stack charges against defendants to coerce guilty pleas. Legislators euchre the public into believing that they have reduced crime, while prosecutors bludgeon defendants into cooperating with investigations of bigger fish by pleading guilty and clearing a case from the docket, regardless of the legitimacy or strength of a defendant's belief in his or her own innocence.

   Perhaps both critics are right. The public does not seem to care who is right or what is wrong so long as it can remain ignorant of the actual goings-on of criminal practice and not too many innocent parties wind up convicted--or at least so long as not too many of them show up on the nightly television news. The result is the absence of any public pressure to change the rules of the road (the subject of criminal law) or to fix the potholes along the way (the subject of criminal procedure).

   Strict liability offenses--defined as infractions, violations, or crimes that can be committed without any intent to break the law, any knowledge of what the law is, or even any negligence in learning what the law prohibits (7)--enable the criminal justice system to combine the worst of both worldviews. As a substantive matter, those offenses eliminate any consideration of a person's moral blameworthiness by dispensing with any issue of his or her knowledge or intent. The government need not prove that someone intended to make an illegal U-turn, only that he or she did. Eliminating proof of mens rea may be as effective at expanding the reach of the criminal law as adding to the stock of offenses already on the books. It may even be more effective if strict liability attaches to conduct that would not be considered inherently harmful, dangerous, or immoral. In that case, individuals could unwittingly break the law while all the time believing that they were law-abiding citizens. We know that we should not murder, rape, or pillage; we may not know whether the garbage we throw out is "hazardous waste." (8)

   As a procedural matter, strict liability offenses make charges remarkably easy to prosecute. (9) Establishing at trial the actus reus element of an offense ordinarily takes less work than proving the relevant state of mind. (10) Videotapes of the offense, fingerprints, DNA, and eyewitness testimony all identify the culprit and place him at the scene of the crime. The more difficult question often is: What was he or she thinking? (11) The result of forgoing any concern for a defendant's state of mind is to encourage him or her to plead guilty in order to lessen the sentence. When the only dispute is over punishment, rational defendants will want to minimize the cost of doing business (or whatever else they are doing). Strict liability crimes truly make the criminal process more closely resemble a Turkish bazaar than an episode of Perry Mason.

   One might assume that strict liability offenses are rarely found in the penal code and that the only penalty they carry is a fine. Yet strict liability offenses are not an uncommon occurrence in contemporary society. Consider just how often we run into this problem with our vehicles. Illegal or overtime parking, not signaling for a turn, not coming to a full stop, crossing the double line, not having a local tax sticker on the bumper or windshield--those and a host of other missteps can result in a monetary fine. Everyone has committed one or more of those violations at one time or another and has had to fork over whatever penalty a local ordinance requires. Because everyone has committed those infractions, no one sees them as the mark of Cain, and no one gets seriously upset about a law requiring parties to pay a fine. We accept those fines as a user fee or a tax that falls on someone engaged in a particular activity that (presumably) goes into a fund that underwrites the cost of one or more public services that everyone would otherwise be forced to subsidize with income taxes. (12)

   But what if committing a strict liability offense could land someone in prison? Society might have a very different reaction. The public might find that such an unduly severe punishment does not fit the crime, that imprisonment should be reserved for "real" criminals--dangerous and morally blameworthy parties who intended to flout the law--not for people who unwittingly cross the line between lawful and illegal conduct without injuring or endangering someone else. Given the large number of federal and state prisoners confined today, (13) the public also might conclude that whatever trial efficiencies are gained by using strict liability crimes is more than offset by the expenses of incarcerating morally blameless parties, let alone the costs to them, their families, and their neighborhoods from tarring them with the label "ex-con." (14)

   People who have that reaction would find themselves in good company. Anglo-American common law traditionally has required the combination of both an evil act and an evil intent for conduct to be made a crime. "Actus non facit reum nisi mens sit rea" (15)--a crime consists of "a vicious will" and "an unlawful act consequent upon such vicious will." (16) The criminal law historically has required the government to prove that a person acted with what everyday language would term the intent to break the law or knowledge of wrongdoing. (17) Only then would conduct merit criminal punishment. In Oliver Wendell Holmes's famous aphorism, "even a dog distinguishes between being stumbled over and being kicked." (18) Strict liability offenses, however, come from a different mold. If you commit a forbidden act, you are guilty, even if you intended to walk the straight and narrow and even if what you did was harmless and you are not likely to repeat that infraction. All that matters is that you crossed a line; now you must pay. "Go directly to jail. Do not pass 'Go.' Do not collect $200." (19)

   However reasonable that result may be when a guilty party pays a fine, many, perhaps most, people would be likely to view imprisonment for a strict liability offense as quite troublesome. We have accepted strict liability offenses because society largely treats fines like taxes and, in the words of then-justice Holmes, "Taxes are what we pay for civilized society." (20) But society generally does--and should--distinguish between penalties that reduce your assets and ones that restrict your liberty, according the latter greater scrutiny. (21) That is appropriate here. Strict liability offenses may not be unconstitutional per se, but incarceration for committing such a crime should be. The burden of this paper is to explain why the courts should agree with that proposition.

   Part II starts us toward that conclusion by explaining how strict liability offenses came to be part of the criminal law. Part III then argues why incarceration should be deemed an impermissible...