Strict Liability

Since most of the arguments in favor of strict criminal liability are based on practical considerations, such as the difficulty of proving mens rea and the need to protect the consumer, it is not merely relevant but critical to examine actual prosecutorial practice in these areas. In the area of "industrial revolution" statutes, for example, state enforcing agencies have not prosecuted individuals or entities whom they believe were not aware of the facts that made their acts criminal. Thus, while prosecutors could charge any corporation whose shipments of foodstuffs involve, however inadvertently, contaminated products, only those corporations who have received at least one—and usually many—warnings are prosecuted (see for example, United States v. Park, 421 U.S. 658 (1975)). Were prosecutors required to prove mens rea, this evidence would almost surely provide that proof. Although the prosecution may in fact proceed as one of strict liability, the availability of such evidence severely under-cuts the contention that prosecutors would be unable to demonstrate mens rea in such circumstances. Moreover, whatever force there might have been in the perceived need to protect consumers has been filled not only by the mechanisms of welfare government, but by civil remedies as such as suits for product liability damages, which often hold the defendant strictly liable in tort. There is virtually no evidence that criminal liability adds significant marginal deterrence to the threat of lawsuits involving potentially millions of dollars in damages.

An argument that "it is invariably the case that the actor could have avoided liability by taking earlier steps which were hardly impossible," including refusing to take responsible managerial positions, fails to note the obvious disutility of such decisions. During the 1990s, it was rumored that some corporate officials joked about having a "vice president in charge of going to jail," a position which, if it truly existed, would hardly have many applicants. That is to say, the more we chill persons from engaging in honest actions because there may be some strict liability aspect to their conduct, the more we deter desirable conduct. In X-Citement Video, discussed earlier, the Court noted that transportation of child pornography could be virtually halted by imposing strict liability upon every person, including Federal Express couriers, who delivered such films, but at the prohibitive price of so chilling commercial activity that much desirable transportation of packages might also cease.

Strict criminal liability remains a possibility in the United States, but courts and legislatures appear increasingly inclined to reaffirm that the prosecution must prove mens rea as to every element of a crime before tarnishing a person's name and sending her to prison. In a society that values highly freedom and reputation of character, this is essential.