Strict Liability

The development of strict criminal liability between 1850 and 1950 may be explained in several ways.

Legal positivism. Courts—particularly nineteenth-century courts in democratic societies—were extremely deferential to legislatures, finding little constitutional limitation upon legislative power, because legislatures and not courts were democratically elected. If a statute did not contain a mens rea word, the courts assumed the legislature had affirmatively intended not to adopt such a requirement and they upheld the statute. The assumption that legislatures intentionally omit a mens rea word, however, is always problematic and frequently wrong.

Regulatory statutes. As markets grew more widespread, legislatures reached out to control perceived widespread abuses in the manufacturing and sale of products generally. Intending to protect the consumers from ills they could not discover for themselves, legislatures passed, and courts enforced, strict liability statutes that carried relatively mild penalties (usually fines) against the merchants. Thus, a person who sold diluted milk would be guilty of an offense even if, in fact, there was no way for him to detect the dilution, and he had taken every possible precaution against such dilution. These statutory "children of the industrial revolution" were said to be necessary for several reasons: (1) the sheer bulk of cases could overwhelm court systems; (2) the difficulty of proving mens rea would create lengthy and cumbersome trials; (3) the penalties imposed would not stigmatize the defendants, but merely regulate their behavior by making them more cautious. With the growth of the (civil) regulatory state, however, the need for such criminal liability has become increasingly dubious.

Minor penalties. Courts often sustained such offenses by pointing out that in many of these crimes, the penalties were "light"–often, but not invariably, involving only fines and no loss of liberty. Two problems with this approach, however, were ignored: (1) some of these offenses did provide for imprisonment; (2) all criminal convictions are deemed to carry with them the stigmatization of at least grossly careless conduct and character. The assertion that strict liability offense did not carry stigma was totally untested. Moreover, many statutes interpreted as applying strict liability apply rather severe penalties. For example, in United States v. Balint (258 U.S. 250 (1922)), the Supreme Court intimated that strict criminal liability could be imposed notwithstanding a possible punishment of five years. In the decision of Staples v. United States (114 S. Ct. 1793 (1994)), the Court, while emphasizing that a long prison sentence might well require interpreting a statute to require mens rea, rejected a suggestion that a ten-year prison sentence would automatically exclude strict criminal liability.

Protection of minors. Many of the statutory schemes read as dispensing with mens rea involved protecting minors. For example, allowing minors to be present in billiard halls, or the serving of alcohol to minors, were held to be strict liability crimes with regard to the age of the person present or served. No matter how carefully defendants acted to assure that the person involved was not a minor, if they were wrong, they were frequently convicted.

Sexual conduct. Many of the statutes involved sexual conduct—bigamy, adultery, fornication, and so-called statutory rape. Besides the arguable prudishness of the age, these statutes might now have been seen as ways to protect marriage and minors.

Greater legal wrong theory. Courts would sometimes impose criminal liability upon a defendant who knew, or at least suspected, that he was committing a civil offense, such as a tort or breach of contract. If it also turned out that his act was a crime, the courts held him liable for the greater legal punishment. For example, if defendant contracted with a parent to provide food for a child, he might know that failure to do so would result in a breach of contract suit, but be unaware that the contract might be read as creating a criminal duty upon himself as well.

Greater moral wrong theory. As suggested above, many statutes read as imposing strict criminal liability regulated sexual activities among nonmarried persons. Since such actions were morally suspect the courts were willing to place upon the actors the risk that they were perpetrating not merely a moral wrong, but a crime as well. The most notorious liability of this kind was so-called statutory rape, by which a defendant who (reasonably) believed the other party was over the age of consent would be held liable if the partner was under a specific statutory age.

Greater crime theory. As with the felony murder doctrine, defendants engaged in criminality sometimes found that the actual crime they committed was greater than they had planned. Courts held them for the "greater crime," possibly on the theory that one involved in crime could reasonably be required to take the risk of more punishment. Thus John, who stole what he believed to be a watch worth $10, but which turned out to be worth $1,000, was guilty not of the "petty theft" he had intended, but of the "grand theft" he actually perpetrated.

Not surprisingly, the possibility of "easy kills"–of convicting defendants without having to prove mens rea—lured both legislatures and prosecutors into expanding the reach of strict criminal liability. By 1922, the U.S. Supreme Court, in dictum, upheld the possibility of allowing strict criminal liability in the sale of drugs even though the penalty was five years imprisonment (United States v. Balint, 258 U.S. 250 (1922)). By the mid 1940s, many legislatures and most courts had embraced that specific doctrine in drug cases, and were including environmental and many white-collar harms as well.

These results were hardly inevitable. Almost none of this legislation, state or federal, explicitly dispensed with mens rea with regard to any element. It would have been relatively easy for courts to have take the position that, even assuming the constitutionality of strict criminal liability, it was so anathema to the historical understanding of the criminal law that legislatures would be required to state unequivocally that no mens rea was required with regard to a specific element before a statute would be so interpreted.

"Halfway houses." The tension with the heritage requiring culpability proved too strong for most courts in most countries, including all European courts and legislatures. Even if they would not require the prosecution to prove knowledge of a specific element (age, kind of illegal drug, etc.), many courts adopted a "halfway house," either requiring the prosecution to prove negligence, or permitting the defendant to show non-negligent lack of knowledge of that element. Even though this contradicts the general rule that defendants need not prove any defense that goes to mens rea, it can be seen as an ameliorative device to dilute strict criminal liability. Only in the United States have courts continued to apply strict criminal liability, and even here, as discussed below, numerous jurisdictions have substantially reduced the number of statutes interpreted as imposing strict criminal liability.