Strict liability offenses, incarceration, and the cruel and unusual punishments clause.

• Author: Larkin, Paul J., Jr.
• Position: IV. Strict Liability Offenses and the Cruel and Unusual Punishments Clause through VI. Conclusion, with footnotes, p. 1101-1121

4. Strict Liability Offenses and the Cruel and Unusual Punishments Clause

   1. Challenges to Strict Liability Offenses

      The Eighth Amendment Cruel and Unusual Punishments Clause may provide a better vehicle than the Due Process Clause for the constitutional analysis of punishment for strict liability offenses. Unlike the latter, the former expressly addresses the issue of punishment, forbidding ones that are "cruel and unusual." (126) The history of the clause is also helpful because it speaks to the type of punishments that gave birth to the clause. The Framers took the phrase "cruel and unusual punishments" from the English Bill of Rights of 1689. (127) Historians disagree over the precise events that gave rise to the English version, but they concur that it was directed against hideously painful punishments, sanctions not authorized by Parliament, or penalties that were grossly disproportionate to the crime. (128) Although the Court has regularly made it clear that imprisonment ordinarily is a legitimate punishment for crime, (129) the Court also has concluded that a term of imprisonment can be cruel and unusual in an extreme case. (130) As a result, the question is whether the Court should decide that incarceration for a strict liability offense is a categorically forbidden punishment.

      The issue is an open one under the Supreme Court's precedents. The Court has rejected due process challenges to using strict liability as a basis for convicting someone of a crime, but has not addressed whether a party may be incarcerated for such an offense. In the Court's earlier cases, the defendants challenged their convictions under the Due Process Clause, not their punishment under the Cruel and Unusual Punishments Clause. (131) The Court therefore is free to decide whether the latter restricts the use of confinement as a sanction for regulatory violations. More specifically, the Court could decide either that a person cannot be incarcerated at all for such an offense or, if he may be confined for some brief period, cannot be imprisoned for it--that is, confined for more than one year (132)--unless the government has proved that he or she knew that his or her actions were illegal, harmful, or dangerous. (133) The Court could reach either conclusion without walking back from its public welfare offense cases because the Court did not address this argument in any of them.

      In all candor, this question is worlds apart from the mine run of Eighth Amendment issues that the Court has resolved over the last fifty years. The bulk of the Court's cruel and unusual punishments jurisprudence during that period focused on the permissible use of capital punishment--whether it can be imposed at all, (134) for a particular crime, (135) pursuant to a particular trial sentencing procedure, (136) or carried out in a particular manner. (137) The Court also has considered whether the sentence of life imprisonment, with or without the possibility of parole, is a disproportionate penalty for certain crimes (138) or offenders. (139) The Court has also addressed the issue of whether the government may confine before trial someone who has been arrested for a crime (140) and, if so, for how long. (141) Never, however, has the Court addressed the Eighth Amendment issue inhering in strict liability offenses.

      Yet there is reason to believe that the Court may be willing to entertain the claim that incarceration for a strict liability offense is a categorically forbidden punishment. In Robinson v. California, (142) the Court held unconstitutional a California state law making it a crime for a person to be a narcotics addict and imposing a punishment of no less than ninety days' incarceration for conviction of that offense. (143) The statute did not criminalize the purchase, possession, sale, or use of narcotics, or any act at all--only the state of being addicted. In theory, the statute would have allowed the state to arrest and convict anyone who admitted to being an addict at a Narcotics Anonymous meeting. Because the law imposed a criminal punishment for addiction, rather than authorizing involuntary commitment of addicts, the statute was designed simply to make it easy for the prosecution to prove its case. Under the statute, if you are an addict, you are guilty; case closed. The Court accepted the proposition that the state could regulate and punish narcotics trafficking. (144) The Court also wrote that, as a general matter, a ninety-day term of confinement for treatment of addiction would not be unconstitutional. In the Court's words, "Imprisonment for ninety days [for drug addiction] is not, in the abstract, a punishment which is either cruel or unusual." (145) But the Justices were clearly troubled by the California law. Perhaps what disturbed the Court was the Orwellian perverseness of making it a crime for someone to possess a physical disability or character trait. But it also could have been the illegitimate use for which that statute was designed--namely, to punish conduct, itself morally blameless, by making it a crime to suffer from a physical affliction. As the Court put it, "Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." (146)

      If the latter interpretation of the Robinson decision is correct, the Court could find itself equally troubled by the comparable punishment of other conduct that also is morally blameless. One example might be the imprisonment of a person who unwittingly crossed a line that no reasonable person would have known existed. That prospect--the conviction of a morally blameless party--is, after all, the one that drives the Court's void-for-vagueness jurisprudence, a doctrine that is as vibrant today as ever. (147) Given the Court's past misgivings about the wisdom of incarceration for conviction of a strict liability crime, (148) it is not unreasonable to believe that the Court may be willing to consider the legitimacy or excessiveness of incarceration as a punishment for what the Court has termed "apparently innocent conduct," (149) which may often be the case with respect to public welfare offenses. (150)

      There is a strong policy argument against the practice. Courts have deemed confinement a disfavored and unduly severe penalty for such crimes. The leading early English decisions upholding strict liability for criminal offenses dealt only with "regulatory offenses," laws that authorized merely a fine or short term in jail. (151) Some judges (albeit, not all)--including then-judge, later-justice Benjamin Cardozo--went even further, questioning whether imprisonment should be imposed for a public welfare offense, given its lack of a scienter requirement. (152) More recently, the Supreme Court has expressed skepticism as to whether a statute lacking a scienter element, but authorizing imprisonment, should be treated in the same manner as a classic public welfare offense. (153) And commentators have noted that, given the history of the mens rea requirement in Anglo-American law, it would be "incongruous" to impose a severe punishment for violating a statute or ordinance that lacks a mens rea requirement. (154)

      In sum, there is a powerful argument that imprisonment should be disallowed as a punishment for a crime without some proof of evil intent or blameworthiness. The Eighth Amendment offers the Court a basis for decision not considered in its earlier cases, which means that stare decisis considerations do not foreclose that rule. (155) An Eighth Amendment analysis would enable the Court to give effect to the concern that imprisonment is an unduly severe penalty for strict liability offenses by allowing the Court to draw a line, at sentencing rather than conviction, by outlawing incarceration. That rule would considerably ameliorate the harsh effects of the current public welfare offense doctrine. A defendant could still be convicted of such a crime even if he made a good-faith error, thereby allowing the government to use strict liability offenses to encourage compliance and to educate the public. But no one could be imprisoned for making this sort of honest mistake.

   2. Defenses Against Eighth Amendment Challenges

      The government has two complementary defenses. The first one draws on history, the second on reason. Those defenses are formidable but ultimately unpersuasive. They do not show that society has made the moral judgment that it is appropriate and necessary to incarcerate individuals guilty of strict liability offenses.

      1. The Prevalence of Strict Liability Criminal Laws

         The defense based on history goes as follows: For more than a century and a half, federal, state, and local legislatures have used strict criminal liability as a regulatory tool. Today, there are hundreds, if not thousands, of statutes, ordinances, and regulations on the books creating strict criminal liability for a host of actions. (156) Those laws also have often authorized a short period of incarceration as a potential sanction for such offenses. (157) The existence of those rules is longstanding, widespread, and powerful objective proof that the legal system and the public have accepted the legitimacy of incarceration for strict liability crimes. That fact is highly significant because, in construing the Eighth Amendment's Cruel and Unusual Punishments Clause, the Supreme Court has consistently given "great weight" (158) to the historical and contemporary prevalence of federal and state laws authorizing a particular sanction as a means of determining whether there is a consensus regarding society's approval or condemnation of a specific penalty. (159) Here, that consensus exists, proving, through public acceptance of the possibility of imprisonment for strict liability crimes, that incarceration does not offend "the evolving standards of decency that mark the progress of a maturing society." (160)

         The prevalence of modern laws authorizing a particular sanction "begins" the...