On strict liability crimes: preserving a moral framework for criminal intent in an intent-free moral world.

• Author: Thomas, W. Robert

The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources--recent laws from state legislatures and recent advances in moral philosophy--pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral framework that both accommodates recent thinking in philosophy and preserves the correspondence between moral theory and criminal law that underwrites the presumption against criminal strict liability. Finally, it considers how the contours of this moral framework could inform judicial efforts to accommodate and constrain new criminal strict liability laws.

TABLE OF CONTENTS INTRODUCTION I. A (NAIVE) MORAL FRAMEWORK FOR ADDRESSING CRIMINAL STRICT LIABILITY A. Precursors: Moral-Criminal Correspondence, Frameworks, and Two Moral Bases B. Two Intuitions Motivating the Presumption against Criminal Strict Liability C. The Supreme Court's Interpretive Presumption against Criminal Strict Liability 1. A General Judicial Presumption against Criminal Strict Liability 2. The Court's Principled Exception for Public Welfare Offenses II. Two CHALLENGES FOR THE PRESUMPTION AGAINST CRIMINAL STRICT LIABILITY A. The Challenge Posed by State Legislatures 1. Unrelated Conduct Crimes 2. Enhanced Punishment Crimes B. The Challenge Posed by Moral Philosophy 1. The Doctrine of Double Effect and the Growing Irrelevance of Intentions 2. Modem Skepticism to DDE 3. How the Critique of DDE Threatens to Undermine Criminal Law III. A (SLIGHTLY MORE NUANCED) MORAL FRAMEWORK FOR ADDRESSING CRIMINAL STRICT LIABILITY A. Saving Criminal Law from DDE's Critics 1. How the Critique of DDE Does Not Undermine Criminal Law 2. Scanlonian Blame and a Slightly More Nuanced Moral Framework B. What Moral Philosophy Can Tell Us about State Action 1. Moral Luck and Enhanced Punishment Crimes 2. An Updated Interpretive Presumption against Criminal Strict Liability CONCLUSION INTRODUCTION

In 2003, Stacey Bettcher merged too slowly into an adjacent lane while entering a poorly marked highway work zone in Michigan. Her car clipped a construction sign, and the resulting impact killed an unseen construction worker? Had this tragedy occurred ten years earlier, or ten feet farther up the highway, it would have been resolved largely through a private cause of action. A jury would have considered whether Bettcher was negligent in failing to merge and whether her negligence proximately caused the death. (2) Instead, Bettcher became the first Michigander prosecuted under Andy's Law, which holds drivers strictly liable for a death in a work zone that occurs concurrently with a "moving violation that has criminal penalties." (3) Bettcher's underlying crime was violating a license restriction: she was driving a friend's car, rather than her own. (4) The state sought to convince a jury of her peers that, even if her conduct was neither reckless nor criminally negligent, the law nevertheless required a felony conviction with up to fifteen years in prison. (5)

The law has long recognized a presumption against criminal strict liability-the Supreme Court describes it as a "generally disfavored status" (6)-that appears to be rooted in intuitions about the role played by defendants' intentions in light of the uniquely stigmatic nature of criminal punishment. Lately, that presumption has faced two seemingly unrelated challenges. Andy's Law exemplifies the first: states are creating new strict liability crimes that are unwarranted under the naive moral framework that justifies the presumption. Second, prominent moral philosophers have called into question one foundation of that framework: the role that agents' intentions play in evaluating moral permissibility. In response, prominent criminal theorist Douglas Husak (7) has argued that rejecting the role of intention in evaluating moral permissibility threatens criminal law at a fundamental level. (8)

This Note rejects the view that moral philosophy threatens to undermine criminal law. In doing so, it suggests that courts adopt a method of interpreting criminal strict liability laws that would be justifiable under, or at least consistent with, the traditional moral presumption. In particular, it argues that Husak's worry conflates the existence of some moral--criminal correspondence with a particular moral--criminal correspondence. While moral theory informs criminal law, the correct correspondence does not lie between criminal wrongdoing and moral permissibility. Rather, a connection between criminal wrongdoing and moral blameworthiness--specifically, Thomas Scanlon's recent account of blame--accommodates both the moral philosopher's claim that intention is irrelevant to moral permissibility and the criminal theorist's claim that intent is essential to criminal wrongdoing.

Part I outlines a moral framework consisting of generally accepted intuitions about criminal law, which underwrites a presumption against criminal strict liability. It then demonstrates how the Supreme Court's criminal jurisprudence embodies this framework. Part II introduces two challenges for this framework. It looks first at recent state action and notices its incompatibility with the moral framework. It then considers--by way of the long-recognized doctrine of double effect--recent views that divorce intention from evaluations of moral permissibility, which give rise to Husak's worry for criminal law. Part III first disarms the challenge posed by moral philosophy. It then buttresses its defense of modem moral philosophy by introducing a slightly more nuanced moral framework that incorporates Thomas Scanlon's recent work on moral blame. (9) Scanlon's account of blame demonstrates how seemingly disparate attitudes towards intent, held by philosophers on the one hand and criminal theorists on the other, are in fact compatible with one another. A final Section employs this nuanced moral framework to identify a class of strict liability crimes that are, perhaps surprisingly, morally justifiable. Ultimately, this analysis suggests one way courts can reconcile new strict liability crimes with the original, naive moral framework.

1. A (NAIVE) MORAL FRAMEWORK FOR ADDRESSING CRIMINAL STRICT LIABILITY

   There is a longstanding presumption against strict liability in the arena of criminal law. (10) A strict liability crime is one in which the mental state of the accused is irrelevant as to part or all of the crime; the state need only show that the accused "engaged in a voluntary act, or an omission to perform an act or duty which the accused was capable of performing." (11) The term "strict liability" encompasses both offenses for which no mental state is required generally and offenses for which no mental state is required as to a particular element of the crime. (12) An example of the latter is statutory rape--an archetypal strict liability crime that requires a showing of some mental state as to the sex act itself but treats as irrelevant whether the perpetrator knew or should have known about the minority of the victim. (13)

   Admittedly, strict liability has its place in modern law--indeed, it even has a narrowly delimited place in criminal law. (14) Proof problems, for example, motivate the creation of strict liability laws. (15) In these settings courts and legislatures worry that a significant number of innocent parties will suffer unless a class of actors is made strictly liable for certain actions. (16) In addition, strict liability is employed--particularly in tort law--to constrain behavior vicariously or to deter particularly dangerous conduct. (17) Nevertheless, the law has long recognized a general presumption, albeit not without exception, against strict liability in criminal law. (18)

   Section I.A introduces, by way of background, terminology that will appear throughout this Note. As the remainder of the Part argues, the presumption against criminal strict liability can be grounded in what this Note refers to as a moral framework that considers both the moral importance of agents' intentions and the justifications underlying state-sponsored social stigmatization. After introducing a naive moral framework based on these two intuitions about criminal law, this Part reviews the Supreme Court's strict liability jurisprudence. It concludes that the Court's decisions are consistent with the presumption emerging from the naive moral framework, while several exceptions to the Court's default presumption can be understood to be nevertheless consistent with the presumption's underlying rationales.

   A. Precursors: Moral-Criminal Correspondence, Frameworks, and Two Moral Bases

   The following paragraphs sketch the overarching dialectic and define some jargon appearing in this Note. This Note assumes that there exists some correspondence between morality and criminal law such that moral principles underlie classic, deep-rooted principles of criminal law. To be clear, this Note does not endorse a strong view that all criminal laws are grounded on and explained by particular corresponding moral edicts; the correspondence between criminal law and moral theory need not be one-to-one or even especially tight. (19) However, the weaker and decidedly more modest claim is that moral principles underlie classic, deep-rooted intuitions about the retributive nature of criminal law. (20) That is, some functions map from moral theory's domain to criminal law such that principles in the latter--deep-seated intuitions without which our discourse about criminal theory would suffer greatly (21)--can...