Strict Liability

A recent movement has had the same result as imposing strict liability. In the past several decades, some courts (mostly federal) have characterized certain facts as "sentencing factors" rather than as elements of crimes, and have therefore held that no mens rea need be shown as to these facts. For example, federal courts have consistently held that the amount of drugs possessed by a defendant is not an element of the crime of possession of a controlled substance, but only a sentencing factor. In two recent 5–4 decisions–United States v. Almendarez-Torres (118 S.Ct. 1219 (1998)) and Jones v. United States (119 S.Ct. 1215 (1999))–the U.S. Supreme Court has taken two different positions on this issue, attempting to deal with it as one of specific statutory interpretation. In Torres, the Court held that whether recidivism, which increased the maximum sentence permissible from two years to twenty, was not an element of the offense and could be determined by a judge, whereas in Jones the Court held that the presence of serious bodily harm, which increased the maximum sentence from 15 to 25 years, was an element of the crime to be determined by a jury. The larger Sixth Amendment issue of depriving the defendant of a jury determination of a fact critical to his punishment, however, is likely to require the Court to resolve at least some parts of this question in the near future.