Strict Liability

In addition to the pragmatic considerations listed above, there are several normative arguments in favor of strict criminal liability.

Difficulty of proving mens rea, and the likelihood of mens rea. Some voices favoring strict criminal liability argue that defendants really are negligent (at least) but that the use of strict liability avoids the difficulties of proving such negligence, as well as the possibility that some truly culpable defendants will be wrongly exonerated (Simon). Leaving aside the issue of whether negligence—at least civil negligence—can ever be an adequate basis for criminal punishment, such a view would see every citizen as liable for not having altered his character. For example, a bartender who serves a minor who provides eight very persuasive falsified means of identification would be seen in this view as liable not only because his examination of the eight sources was wrong but because he had not previously spent hours (perhaps years) in training himself to identify false identification. Besides the obvious disutility in such a requirement, the unfairness to the defendant is manifest. Moreover, if mens rea is difficult to prove for these offenses, it is just as difficult to prove in cases such as homicide and rape. Yet few have suggested that this is a reason for dispensing with requiring such proof in the most serious crimes.

On the other hand, many actors, while not "knowing" that a specific circumstance exists, or that a specific result "will" or "may practically certainly" occur, may be culpable—but less culpable than knowing—with regard to such a factor. For example, Joan above may not "know" that the white powder is cocaine, but if she is told to take the glassine envelope to Roger, who will pay her $1,000, and to keep the envelope hidden from view until the sale, a jury might well find her either willfully blind, reckless, or criminally negligent with regard to the circumstance of the powder being cocaine. If "reckless" or "criminally negligent" possession, or transportation, were criminalized (and punished less severely than knowing possession), holding Joan would not necessarily be seen as imposing strict liability upon her.

This useful and legitimate insight has sometimes been expanded, somewhat too broadly, to suggest that anyone who engages in certain activities (banking, manufacturing, transporting) "knows" that there is a risk that a prohibited result will occur as a result of that activity. It is then argued that imposing criminal liability upon them when that result occurs is not unfair because they were aware of that risk before they entered the activity. Aside from relying on a definition of recklessness or negligence that is far too broad, this rationale could encompass virtually all acts (e.g., we all "know" that car accidents occur and, therefore, might be held strictly liable if we "cause" an accident which "causes" death).

Unfair advantage. Another argument in favor of strict criminal liability contends that defendants who act in circumstances where only strict liability can catch them would be "unjustly enriched" if exculpated. Thus, a driver whose gas pedal sticks and accelerates his car to ninety miles per hour has benefited above the honest driver who not only stayed within the speed limit, but who had his gas pedal checked every week. The eighteen year old who has sexual intercourse with a seventeen year old (believing her to be the age of consent) has obtained a benefit over the person who has remained celibate (or dated only persons clearly over forty) rather than risk sex with an underage partner. These benefits, it has been argued, warrant imposing some kind of liability upon the otherwise "lucky" defendant. This view, however, does not explain why criminal liability, stigma, and punishment is the proper path to follow even if one agrees that there has been some unjust enrichment.

Moral luck. Permeating the discussion of many aspects of criminal liability is the philosophical debate about the status of "moral luck." The question is whether the unintended results of an actor's (intended) actions should be imputed to the actor. The issue is present both for "good" and "bad" moral luck. For example, a defendant who wants to kill his victim, but who (luckily for the victim, but unluckily for the defendant) misses, is charged with attempted murder, rather than murder, and is punished less severely. Similarly, one who intends to injure, but who does not wish to kill, but unluckily does, may under a moral luck theorem receive a punishment equivalent to that of a person who did wish to kill. Many argue that this is anomalous, and that the defendant's liability should be based solely upon his culpability and not upon the fortuity of the results of his actions (Singer). Imposing strict criminal liability obviously raises the same issues. If a defendant who intends to possess only sugar but actually possesses cocaine is held liable for possessing cocaine that defendant is suffering "bad" moral luck. Moral luck raises critical questions for all ascriptions of responsibility, but nowhere are these questions more dramatically raised than in the criminal law, where the defendant's freedom is often at stake.