When is strict criminal liability just?

• Author: Simons, Kenneth W.

1. Introduction

   The most vigorous condemnation of strict liability in criminal law

   comes from retributivists, not from utilitarians. Strict liability appears

   to be a straightforward case of punishing the blameless, an approach

   that might have consequential benefits but is unfair on any

   retrospective theory of just deserts.(1) More precisely, strict liability is

   condemned by culpability-based rather than harm-based retributivists.(2) If

   retributive desert depends only on harm caused, then strict criminal

   liability is hardly problematic. But if desert instead depends on

   culpability in bringing about a harm or wrong, then strict criminal liability

   seems flatly inconsistent with retributive theory.

   It might seem obvious that strict liability is inconsistent with

   culpability-based retributivism. But what, exactly, do such retributivists

   condemn? Is their condemnation always justified? I will suggest that

   it is not.

   To give an adequate answer to these last questions, we need to

   examine more carefully a number of issues: different categories of

   strict liability; the way in which criminal offenses are structured; the

   scope of the moral luck principle; negligence in grading; and the

   distinction between rules and standards. I will conclude, perhaps

   unsurprisingly, that strict liability is a genuine problem for retributive

   theory. But I also reach a more interesting conclusion: Strict liability

   is a different and more subtle problem, and in certain ways both a less

   serious and a more serious problem, than it is generally believed to

   be.

   Let me begin with two examples to set the stage. First, suppose

   that a rash of forest fires prompts a legislature to consider enacting a

   law prohibiting any person from causing a forest fire, with a penalty of

   five years imprisonment. The powerful lobby of culpability-based

   retributivist law professors raises a public alarm about this "strict

   liability" proposal. So the legislature responds by enacting a law

   prohibiting any person from knowingly carrying a match in or near a

   forest, with a penalty of five years imprisonment if any person who

   knowingly carries a match thereby causes a forest fire. Should the law

   professors be appeased? We will see that they should not be, since the

   modified proposal expresses a formal rather than substantive kind of

   fault. In substance, that is, the proposal imposes strict liability, by

   failing to require a degree or type of culpability sufficient to justify

   punishment on a retributive theory. Should the law professors be

   appeased if the government instead passes a law setting a smaller

   penalty simply for knowingly carrying a match in or near a forest? This, I

   will argue, raises similar concerns, though it might be consistent with

   retributive blame.

   Second, consider the crime of felony-murder. Notwithstanding

   the vigorous criticism of retributivists (among others), many

   American state legislatures continue to treat very harshly defendants who

   commit felonies that cause a death, even if the defendant displays

   little or no culpability as to the death itself.(3) Utilitarian and harm-based

   retributivist justifications have been offered for felony-murder

   statutes. But this article will suggest that culpability-based retributivism

   can partially justify such statutes, as partially expressing both a more

   substantive conception of fault, and a familiar principle of moral luck.

   It will also conclude, however, that retributivism cannot fully justify

   the severity of many felony-murder statutes.

   The scope of the article is broad, but not unlimited. The article

   does not separately examine the voluntary act requirement,(4) nor the

   minimum culpability that retributive theory requires. In a previous

   essay, I have argued that a form of culpable indifference is the

   necessary minimum,(5) but the arguments in this article would remain

   essentially the same if one reached a different conclusion about the

   requisite minimum -- e.g., if one concluded that tort negligence, gross

   negligence, or some form of recklessness is the required minimum

   culpability. For simplicity, the article refers throughout to

   "negligence" as a minimally acceptable form of fault.

   Moreover, the article presents these arguments as ideal

   justifications, i.e., as constraints that a legislature would accept if it

   chose to rely on culpability-based retribution as its exclusive theory of

   punishment. In fact, of course, arguments of harm-based retribution and

   deterrence often play a major role in shaping criminal legislation.

   Although culpability-based retributivism does find some doctrinal

   expression in the state and federal constitutional limits on criminal

   legislation,(6) and in some judicial interpretive practices,(7) that doctrinal

   expression will not be my focus.

   Most crucially, perhaps, the article says little about which

   particular version of retributive theory is most attractive (or most consistent

   with legal doctrine). As a consequence, some important questions will

   not be fully resolved. My apparent diffidence is for a reason: to

   enable the arguments in this article to have force for a variety of

   retributive views. For example, the article accepts the possibility that

   retributive theory countenances moral luck (i.e., that an actor

   deserves greater moral blame if his culpable conduct fortuitously results

   in harm than if it does not).

   Section II sets forth some preliminary distinctions, including the

   distinction between pure and impure strict liability, and between strict

   liability in criminalizing and strict liability in grading. Section III

   demonstrates that conventional analysis expresses a formal

   conception of strict liability (and fault), a conception that is both too weak

   and too strong relative to a substantive conception of strict liability

   (and fault). Section IV examines more closely how mens rea and

   actus reus, separately and in combination, express culpability under a

   substantive retributive theory. I examine in some detail and partially

   criticize the view that retributive theory supports a sharp distinction

   between wrongdoing (the ultimate harm) and culpability (in the

   sense of the actor's mental state). Section V, addressing moral luck,

   suggests that strict liability is unacceptable when it amounts to a broad

   principle of substitute culpability, but might be acceptable when it

   simply expresses the principle of moral luck.

   The next part, Section VI, examines cases in which formal strict

   liability in grading actually expresses culpability (especially

   negligence). Subsections A and B set forth two very different ways in which

   this can be true -- when formal strict liability in grading represents

   substantive negligence, and when strict liability is a rule-like form of

   negligence. A third subsection examines a less persuasive

   argument -- that strict liability can be defended as a form of genuine fault in

   the sense of a requirement of "extraordinary care."

   Section VII responds to a natural objection to. the thesis. Why not

   permit a defense of non-negligence in an cases, even if it would be

   gratuitous in many? The answer builds on earlier analysis: Such a

   defense would undermine retributive desert when strict liability

   expresses no more than the moral luck principle, when strict liability is a

   (justifiable) rule-like form of negligence, and when the comparable

   culpability principle applies.

2. Some Preliminaries

   Before exploring the substantive arguments about the proper

   scope of strict criminal liability, it is important to clarify some relevant

   concepts. We need to differentiate strict liability with respect to

   results, circumstances, and conduct; to distinguish pure from impure

   strict liability; and to distinguish strict liability in criminalizing from

   strict liability in grading.

   Strict criminal liability is conventionally understood as criminal

   liability that does not require the defendant to possess a culpable state

   of mind.(8) Modern criminal codes typically include as possible

   culpable states of mind the defendant's intention to bring about a

   prohibited result, her belief that such a result will follow or that a

   prohibited circumstance will exist, her recklessness as to such a result or

   circumstance, or her negligence with respect to such a result or

   circumstance.(9) Strict criminal liability, then, is simply liability in the

   absence of intention, belief, recklessness, or negligence.

   We must also distinguish between strict liability with respect to a

   result element of an offense and strict liability with respect to a

   circumstance element.(10) Felony-murder, in its most severe form, is an

   example of strict liability with respect to a result -- specifically, a death

   resulting from commission of the felony. That is, the felon will be

   liable for the resulting death as if he had intended it, even if there is

   no proof of intent, or (perhaps) of any culpability, as to that result.

   Statutory rape is a common example of strict liability with respect

   to a circumstance -- specifically, the circumstance of whether the

   female victim is below the statutory age. A defendant can be guilty of

   statutory rape even if there is no proof that he believed, or reasonably

   should have believed, that she was below the statutory age. Thus,

   strict liability encompasses both liability for faultless accidents (in

   bringing about a prohibited result) and for faultless mistakes (in

   assessing whether a prohibited circumstance exists).(11)

   Strict liability can also refer, not to lack of culpability with respect

   to a result or a circumstance, but to lack of culpable conduct. That is,

   the actus reus of the crime might specify and prohibit certain conduct

   (whether action or omission) by the defendant. For example, a

   prohibition on driving an automobile above the statutory speed limit can

   be understood as imposing strict liability, insofar as it is irrelevant that

   the defendant did not have reason to know that she was traveling at

   that speed.(12) (Although there is something to be said for assimilating

   the...