When is strict criminal liability just?

AuthorSimons, 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


    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


To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT