Strict Liability in the Criminal Law

Author(s): Richard A. Wasserstrom

Source: Stanford Law Review , Jul., 1960, Vol. 12, No. 4 (Jul., 1960), pp. 731-745
Published by: Stanford Law Review

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 Strict Liability in the Criminal Law
RICHARD A. WASSERSTROM*

The proliferation of so-called "strict liability" offenses in the

criminal law has occasioned the vociferous, continued, and almost
unanimous criticism of analysts and philosophers of the law.' The
imposition of severe criminal sanctions2 in the absence of any
requisite mental element has been held by many to be incompatible
with the basic requirements of our Anglo-American, and, indeed,
any civilized jurisprudence.
The Model Penal Code, for example, announces that its pro-
visions for culpability make a "frontal attack" upon the notion
of strict, or absolute, liability.3 Francis B. Sayre, in his classic article
on "Public Welfare Offenses," contends that since the real menace
to society is the intentional commission of undesirable acts, evil
intent must remain an element of the criminal law. "To inflict
substantial punishment upon one who is morally entirely innocent,
who caused injury through reasonable mistake or pure accident,
would so outrage the feelings of the community as to nullify its
own enforcement."4 And Jerome Hall, perhaps the most active
and insistent critic of such offenses, has consistently denounced the
notion of strict liability as anathema to the coherent development
of a rational criminal law: "It is impossible to defend strict liability
in terms of or by reference to the only criteria that are available
to evaluate the influence of legal controls on human behavior.
What then remains but the myth that through devious, unknown
ways some good results from strict liability in 'penal' law ?"
Without attempting to demonstrate that strict liability offenses
are inherently or instrumentally desirable, one can question the
force of the arguments which have been offered against them. It
* B.A. 1957, Amherst College; M.A. 1958, Ph.D. 1960, University of Michigan; LL.B.
1960, Stanford University; Instructor, Department of Philosophy, Stanford University.
1. The history of those strict liability offenses which are of legislative origin is of
quite recent date. One of the first cases in which a statute was interpreted as imposing
strict criminal liability was Regina v. Woodrow, 15 M. & W. 404, 153 Eng. Rep. 907 (1846).
For an exhaustive account of the early history of these statutory offenses see Sayre, Public
Welfare Offenses, 33 COLUM. L. REV. 55, 56-66 (1933).
2. "Severe criminal sanctions" refer to imprisonment as opposed to the mere imposi-
tion of a fine.
3. MODEL PENAL CODE § 2.05, comment (Tent. Draft No. 4, 1955).
4. Sayre, supra note 1, at 56.
5. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 304-5 (1947). See also WILLIAMS,
CRIMINAL LAW §§ 70-76 (1953); Hart, The Aims of Criminal Law, 23 LAW & CONTEMP.
PROB. 401, 422-25 (1958).

731

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732 STANFORD LAW REVIEW [Vol. I2: Page 731

is not evident, for example, that strict liability statutes cannot have
a deterrent effect greater than that of ordinary criminal statutes.
Nor, is it clear that all strict liability statutes can most fruitfully be
discussed and evaluated as members of a single class of criminality.
The notion of "fault" is sufficiently ambiguous, perhaps, so as to
obscure the sense or senses in which these statutes do impose liabil-
ity "without fault." And finally, the similarities between strict
liability and criminal negligence are such that it seems difficult to
attack the former without at the same time calling the latter
into comparable question. Issues of this kind are, then, the explicit
subjects for examination here.

THE CONCEPT OF STRICT CRIMINAL LIABILITY

Neither the arguments against the imposition of strict criminal

liability nor the justifications for such imposition can be evaluated
intelligently until the meaning of the phrase "strict criminal
liability" has been clarified. One possible approach-and the one
selected here as appropriate for the scope of this analysis-is that of
ostensive definition. That is to say, a small, but representative,
sample of the kinds of offenses which are usually characterized as
strict liability offenses can be described briefly so as to make the
common characteristics of this class relatively obvious upon in-
spection.
At the outset, it is essential that strict liability offenses not be
confused with Sayre's "public welfare" offenses, i.e., those which he
defines as essentially regulative in function and punishable by fine
rather than imprisonment.6 This inquiry is concerned with those
offenses which cannot be distinguished from other criminal con-
duct by virtue of the fact that the punishment involved is con-
sistently less than imprisonment.7 Thus, the cases here selected as
exemplary of strict criminal liability are all cases in which the
prescribed sentences are surely not minimal in degree or merely
regulative in function.
The landmark case in American jurisprudence is undoubtedly
United States v. Balint.8 The defendent was indicted under a

6. Sayre, supra note 1, at 83.

7. If the offenses were always punishable by something less than imprisonment then
it would surely be relevant to ask in what sense they were penal in anything but name.
This appears in part to be Hall's criticism of Sayre's article. See HALL, op. cit. supra note
5, at 279.
8. 258 U.S. 250 (1922).

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July 96o0] STRICT CRIMINAL LIABILITY 733

statute which made it unlawful to sell narcotics without a wri

order. The defendant claimed that the indictment was insuffi
because it failed to allege that he had known that the drug
were narcotics. The United States Supreme Court held that
conviction did not deny due process.
Another classic example is State v. Lindberg.9 The statut
question provided that "every director and officer of any bank
who shall borrow . . . any of its funds in an excessive am
. . . shall . . . be guilty of a felony."'° The defendant conte
that he had borrowed the money in question only after he had
assured by another official of the bank that the money had c
from a bank other than his own. But the court held that
reasonableness of the defendants mistake was not a defense
The final case, Regina v. Prince," is famous in both Eng
and American jurisprudence. Prince was indicted under a st
which made it a misdemeanour to "unlawfully take . . . any
married Girl, being under the Age of Sixteen Years, out of the
session and against the Will of her Father or Mother ... . 12
of the defenses which Prince sought to interpose rested upon
reasonableness of his belief that the girl in question was over
teen years old. The majority of the court interpreted the stat
to make the reasonableness of a belief as to the girl's age irrelev
and found Prince guilty.
Assuming these cases to be representative," strict liability o
fenses might be tentatively described (although not define
those in which the sole question put to the jury is whether
jury believes the defendant to have committed the act proscri
by the statute." If it finds that he did the act, then it is oblige
bring in a verdict of guilty.'5 Whether this characterizatio
the above three cases is either precise or very helpful is a ques
which must await further discussion below. For the present, h

9. 125 Wash. 51, 215 Pac. 41 (1923).

10. Wash. Comp. Stat. § 3259 (Remington 1922).
11. 13 Cox Crim. Cas. 138 (1875).
12. Offenses Against the Person Act, 1861, 24 & 25 Vict., c. 100, § 55.
13. Exhaustive enumerations of leading strict liability cases can be found in Sa
Public Welfare Offenses, 33 CoLUM. L. REV. 55 (1933).
14. Jackson, Absolute Prohibition in Statutory Offences, 6 CAMB. L.J. 83, 88 (1
15. There is, of course, a sense in which the notion of having "committed an ac
far from unambiguous. Depending upon how "act" is defined, it may or may not be
that the sole question is whether the defendant committed the act. The fact that th
fendant was sleepwalking or insane at the time might be treated as bearing upon th
of whether the "act" was committed. There is an obvious sense in which even this d
mination requires some inquiry into the defendant's state of mind.

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734 STANFORD LAW REVIEW [Vol. I2: Page 731

ever, it is perhaps sufficient to observe that whatever it is that the

concept of mens rea is thought to designate, it is this which needs
not be shown to be predicable of the defendant.'"

THE JUSTIFICATION OF STRICT LIABILITY

Before attempting to assess the arguments for and against the

notion of strict criminal liability, it should be made clear that the
author agrees with most of the critics in not finding many of
the usual justifications of strict liability at all persuasive. The
fact, for example, that slight penalties are usually imposed, or
that mens rea would be peculiarly unsusceptible of proof in these
cases, does not, either singly or in combination, justify the presence
of these offenses in the criminal law. But to reject these and com-
parable arguments is not necessarily to prove that plausible justifi-
cations cannot be located. In fact, it is precisely when the "stronger"
arguments of the opponents of strict liability are considered in
detail that the case against strict liability is found to be less one-
sided than the critics so unanimously suppose.
Critics of strict criminal liability usually argue that the punish-
ment of persons in accordance with the minimum requirements
of strict liability (i) is inconsistent with any or all of the commonly
avowed aims of the criminal law; and (2) runs counter to the
accepted standards of criminal culpability which prevail in the
community. They assert that the imposition of criminal sanctions
in a case in which-conceivably-the defendant acted both reason-
ably and with no intention to produce the proscribed events cannot
be justified by an appeal to the deterrent, the rehabilitative, or the
incarcerative functions of punishment.17 And, in fact, they assert
the practical effect of strict liability offenses is simply to create that
anomalous situation in which persons not morally blamed by

16. This would be true whether mens rca is interpreted as requiring only that the
person "intend" to do the act, or as requiring that the person intend to do something
which is morally wrong. The latter interpretation is advanced in Mueller, On Common
Law Mens Rea, 42 MINN. L. REV. 1043 (1958).
17. One author has suggested that the question of whether a crime has been com-
mitted ought to be determined solely by deciding whether the defendant committed the
specific act proscribed by the statute. The actor's mental state would be relevant to the
separate question of the actor's punishment. Leivitt, Extent and Function of the Doctrine
of Mens Rea, 17 ILL. L. REV. 578 (1923). This bifurcation is unobjectionable insofar
as it recognizes that one of the factors to be considered in the sentencing of an individual
is his mental state at the time of the crime. The author seems to imply that in the absence
of a finding of the requisite mental element it would be proper for the court not to punish
the defendant at all. This, too, is perhaps in itself unobjectionable. The question remains
then whether it makes any sense to speak of this defendant as having committed a crime.

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July I960 ] STRICT CRIMINAL LIABILITY 735

the community are nevertheless branded criminal.l8 Although

two lines of criticism are intimately related, for purposes of d
cussion they will be treated somewhat separately.
The notion that strict liability statutes can be defended
efficacious deterrents has been consistently rejected. It has
proposed, for example, that strict liability offenses cannot
deterrent simply because they do not proscribe the kind of act
which is obviously incompatible with the moral standards of t
community. Thus Gerhard Mueller argues that the substanc
common-law mens rea is the "awareness of evil, the sense o
ing something which one ought not... ."' Since all comm
law crimes involved the commission of some act which was
known by all the members of the community to be morally wrong,
there was, he suggests, no problem in finding the presence of mens
rea in cases of common-law criminal acts. Such, he insists, is not
true of strict liability offenses. They do not punish those activities
which a person would know to be wrong independently of the
existence of a particular statute. Thus strict liability statutes are
to be condemned because they necessarily imply that a person
might be punished even though he could not have appealed to
that one certain indicia of criminality-the moral laws of the
community-to decide whether he was doing something which
would violate the law.
If I understand Mr. Mueller's argument correctly, then it
clearly proves too much to be of any special significance as a crit-
icism of strict liability offenses. The argument rests upon the ob-
viously sound premise that a person cannot be deterred if he does
not know or have reason to believe that his intended action will
violate the law. And if this theory about common-law mens rea is
correct, it only demonstrates that everyone either knew or should
have known that certain kinds of activity would be legally
punishable. These two points, however, at best imply that
ignorance of the law ought-on deterrent grounds-to be always
admitted as a complete defense to any criminal prosecution
founded upon a statute which does not incorporate an express
moral rule or practice into the criminal law.20 Concomitantly, if a
18. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 302-3 (1947); WILLIAMS, CRIMI-
NAL LAW § 76, at 269 (1953); Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55, 56
(1933).
19. Mueller, op. cit. supra note 16, at 1060.
20. Mueller cites the recent case of Lambert v. California, 355 U.S. 225 (1957) as
implicitly attacking all strict liability statutes on this ground. Such a reading of the case

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736 STANFORD LAW REVIEW [Vol. I2: Page 731

person knew of the existence and import of a statute of this kind,

it seems wholly irrelevant to distinguish strict liability statutes from
those requiring some greater "mental element." It is just as possible
to know that one might be violating a strict liability statute as it
is to know that one might be violating some other kind of criminal
statute. Thus, unless special reasons exist for believing that strict
liability offenses are not effective deterrents, Mr. Mueller's argu-
ment leaves them undifferentiated from many other statutory
crimes which do not incorporate the moral law of the community.21
Just such special reasons for rejecting the deterrent quality of
strict liability offenses are offered by Jerome Hall, among others.
He rejects the argument that a strict liability statute is a more
efficacious deterrent than an ordinary criminal statute for at least
two reasons: (a) It is not plausible to suppose that the "strictness"
of the liability renders it more of a deterrent than the liability of
ordinary criminal statutes; and (b) persons are not, as a matter of
fact, deterred by those penalties usually imposed for the violation
of a strict liability offense.22
The first of these objections is, it is submitted, inconclusive. For
there seem to be at least two respects in which strict liability statutes
might have a greater deterrent effect than "usual" criminal statutes.
In the first place, it should be noted that Hall's first proposition is
just as apt to be false as to be true. That is to say, it might be the
case that a person engaged in a certain kind of activity would be
more careful precisely because he knew that this kind of activity
was governed by a strict liability statute. It is at least plausible to
suppose that the knowledge that certain criminal sanctions will
be imposed if certain consequences ensue might induce a person
to engage in that activity with much greater caution than would
be the case if some lesser standard prevailed.
In the second place (and this calls Hall's second premise into
seems plainly incorrect. At most, the reasoning of the Court can be construed as suggesting
that strict liability statutes of which the defendant neither had nor ought to have had notice
might violate due process. More plausibly, the Court struck down the conviction in Lambert
because the statute there reached a very general kind of activity which the defendant could
not reasonably have supposed to be regulated by statute at all: namely, the mere fact that
the defendant came into a city and failed to register with the sheriff as an ex-convict.
Surely, it is reading too much into the opinion to find a disposition on the part of the
Court to group all strict liability statutes in this class.
21. It is assumed throughout the remainder of this Article that knowledge of the
relevant strict liability statutes is possessed or is readily capable of being possessed by those
subject to the statutes.
22. "There is, first, the opinion of highly qualified experts that the present rules are
regarded by unscrupulous persons merely 'as a license fee for doing an illegitimate busi-
ness.' " HALL, op. cit. supra note 18, at 301.

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July I960] STRICT CRIMINAL LIABILITY 737

question as well), it seems reasonable to believe that the presence o

strict liability offenses might have the added effect of keeping a
relatively large class of persons from engaging in certain kinds o
activity.23 A person who did not regard himself as capable o
conducting an enterprise in such a way so as not to produce t
deleterious consequences proscribed by the statute might well refu
to engage in that activity at all. Of course, if the penalties for viol
tion of the statute are minimal-if payment of fines is treate
merely as a license to continue in operation-then unscrupulou
persons will not be deterred by the imposition of this sanction. Bu
this does not imply that unscrupulous persons would be quite
willing to engage in these activities if the penalties for violation
were appreciably more severe. In effect, Hall's second argumen
if it proves anything, shows only that stronger penalties are need
if strict liability statutes are to be effective.
If the above analysis of the possible deterrent effect of strict
liability offenses is plausible, then one of the results of their con
tinued existence and enforcement might very well be that few if
any persons would be willing to engage in certain kinds of conduct
The presence of statutes such as that in the Lindberg case might
have the effect of inducing persons not to engage in banking
an occupation since the risks, one might suppose, are just too gre
to be compensated by the possible rewards. More plausibly, su
a statute might merely have the effect of discouraging banke
from borrowing money-or possibly only from borrowing money
from banks. But these effects, too, might conceivably make bank
ing a less attractive occupation, although they would probably no
cause the disappearance of banking as an institution in society
However, if we assume the strongest of all results-that a statute
of this kind would lead to the disappearance of the institution in
volved-what conclusions are to be drawn ?
The case of socially undesirable activity is easy. If the opera
tion of the felony murder rule has the effect of inducing person
to refuse to commit felonies, there are surely few if any persons who
would object to this consequence.24 Where socially beneficia
23. Glanville Williams concedes both of these points. WILLIAMS, op. Cit. supra not
18, § 73, at 258. But he argues in part that this kind of deterrent places an "undesirab
restraint on proper activities." Ibid. Yet, to a considerable extent, this only succeeds in
raising the precise point at issue: namely, whether the restraint which is imposed upo
activity is undesirable. The legislature might believe that for certain kinds of activity,
least, the restraint was less undesirable than the production of those consequences pro
scribed by the statute.
24. Nor do there appear to be any very serious undesirable societal consequences in

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738 STANFORD LAW REVIEW [Vol. I2: Page 731

activities, such as banking and drug distribution25 are concerned,

the case is more troublesome. If it is further assumed that at least
some of the strict liability statutes in these areas have been rigidly
enforced, it is also to be noted that these institutions have not dis-
appeared from the society. One possible conclusion to be drawn
is that these strict liability offenses have been deemed to impose a
not unreasonable risk. The fact that banking is still considered an
extremely attractive endeavor (despite the possibility of a prison
sentence for borrowing money from one's own bank) might be
interpreted as evidence that people believe they can be successful
bankers without violating this or a comparable strict liability
statute. They believe, in other words, that they can operate with
sufficient care so as not to violate the statute. Admittedly, the
evidence in support of this thesis is not particularly persuasive.
Perhaps most people who have gone into banking never even knew
of the existence of the statute. Perhaps there is no such statute in
most jurisdictions. Perhaps they knew of the statute but believed
it would never attach to their conduct. And perhaps they took the
statute into account incorrectly and should have been deterred by
the statute. In part, the difficulty stems from the fact that there
is so little empirical evidence available. It is suggested only that
the above interpretation of the extant evidence is just as plausible
as are the contrary inferences so often drawn.
The fact that strict liability statutes might cause the disappear-
ance of socially desirable undertakings raises, in a specific context,
one important feature of the kind of justification which might be
offered for these statutes. If it is conceded that strict liability statutes
have an additional deterrent effect, then a fairly plausible utilitarian
argument can be made for their perpetuation.
To the extent to which the function of the criminal law is
conceived to be that of regulating various kinds of conduct, it
becomes relevant to ask whether this particular way of regulating
conduct leads to more desirable results than possible alternative
procedures. The problem is not peculiar to strict liability statutes

discouraging persons from having intercourse with females who may be around the age
of sixteen. See Regina v. Prince, 13 Cox Crim. Cas. 138 (1875).
25. See the more recent federal case, United States v. Dotterweich, 320 U.S. 277
(1943), where the defendant, president of a drug company, was indicted and convicted
under the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040 (1938), 21 U.S.C. §§ 301-
92 (1958) for shipping misbranded and adulterated drugs in interstate commerce. There
was no showing that Dotterweich personally was either negligently or intentionally en-
gaged in the proscribed conduct. It was sufficient that he was the president of the company.

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July I960] STRICT CRIMINAL LIABILITY 739

but is endemic to the legal system as a whole. Consider, for

stance, one such justification of the present jury system. In o
to prevent the conviction of persons who did not in fact comm
the crimes of which they are accused, it is required that a unani
jury of twelve persons find, among other things, that they bel
the accused did the act in question. Perhaps if the con
were solely with guaranteeing that no innocent man be convic
a twenty or thirty man jury in which unanimous consent was
quired for conviction would do a better job. But such is not
sole concern of the criminal law; there is also the need to prev
too many guilty persons from going free. Here, a twelve man
is doubtless more effective than a thirty man jury. Requir
unanimous vote for acquittal would be a still more effica
means of insuring that every guilty man be convicted. The deci
to have a twelve man jury which must be unanimous for conv
tion can be justified, in other words, as an attempt to devi
adjudicatory procedure (perhaps it is unsuccessful) which
yield a greater quantity of desirable results than would any of
alternatives.
Precisely the same kind of analysis can be made of strict liabi
offenses. One of the ways to prevent the occurrence of cer
kinds of consequences is to enact strict liability offenses, sinc
hypothesi, these will be an added deterrent. One of the deleter
consequences of strict liability offenses is the possibility that ce
socially desirable institutions will be weakened or will disap
The problem is twofold: first one must decide whether the ad
tional deterrent effect of the strict liability statutes will mark
reduce the occurrence of those events which the statute seeks q
properly to prevent. And second, one must decide whether
additional reduction in undesirable occurrences is more benefic
to society than the possible deleterious effects upon otherwise
sirable activities such as banking or drug distribution. For
if it be conceded that strict liability offenses may have the ad
tionally undesirable effect of holding as criminal some per
who would not on other grounds be so regarded, strict liab
could be supported on the theory that the need to prevent cer
kinds of occurrences is sufficiently great so as to override the u
sirable effect of punishing those who might in some other sen
be "innocent."
I do not urge that either or both of these arguments for st

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740 STANFORD LAW REVIEW [Vol. I2: Page 731

liability offenses are either irrefutable or even particularly con-

vincing. But I do submit that this is a perfectly plausible kind of
argument which cannot be met simply by insisting either tha
strict liability is an inherently unintelligible concept or that the
legislative judgment of the desirability of strict criminal liability
is necessarily irrational.2 It is one thing to attack particular legis
lative evaluations on the grounds that they have misconstrue
either the beneficial effects of strict liability or its attendant delet
rious consequences, but it is quite another thing to attack the poss
ble rationality of any such comparative determination.27
As was observed earlier, the second of the two major kinds of
criticism directed against strict criminal liability is that punish-
ment of persons in accordance with the minimal requirements of
strict liability-the punishment of persons in the absence of men
rea-is irreconcilable with those fundamental, long extant stan
ards of criminal culpability which prevail in the community. As
usually propounded the thesis is a complex one; it is also con
siderably more ambiguous than many of its proponents appe
to have noted. One possible, although less interesting, implication
concerns the notion of criminal culpability. The claim is mad
that the imposition of strict liability is inconsistent with the co
cept of criminal culpability-criminal culpability being defined to
mean "requiring mens rea." But unless the argument is to b
vacuous it must be demonstrated that independent reasons exi
for selecting just this definition which precludes strict liabili
offenses from the class of actions to which the criminal sanction
are to attach.28
A more troublesome and related question is whether the propo
26. In this connection, it has been suggested that there is little evidence that legisl
tures consciously intend criminal statutes to be strict liability statutes. The most exhausti
examination of this issue is in a recent study conducted by the Wisconsin Law Review
1956 Wis. L. REV. 625. And while it seems clear that there is little affirmative eviden
on this score, what evidence is available seems to indicate that at times the legislature
consciously intended the statute to be a strict criminal liability statute. Cf. id. at 644
Additionally, Glanville Williams argues that Parliament seems to have intended to reta
strict liability in the statute interpreted by the court in the Prince case. See WILLIAMS, o
cit. supra note 18, § 73, at 259-60.
27. Cf. Note, 74 L.Q. REV. 321, 343 (1958). "It must always be remembered th
the primary purpose of the criminal law is to prevent the commission of certain acts whi
it regards as being against the public interest and not to punish or to reform a wrongdoe
It may, therefore, be necessary to provide for strict liability when this is the only practi
way to guard against the commission of the harmful act."
While I do not feel committed to the view that the primary function of the criminal
law is that of the prevention of certain acts, the writer of the Note seems correct in sug
gesting that if an essentially utilitarian view of the criminal law is adopted, then th
justification of many strict liability offenses becomes increasingly plausible.
28. Cf. p. 743 infra.

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July I960] STRICT CRIMINAL LIABILITY 74I

sition is presented as a descriptive or prescriptive assertion. It i

clear whether the imposition of strict liability is thought to be
compatible with the accepted values of society or whether
prevalence of strict liability is inconsistent with what ought t
accepted values.
As an empirical assertion the protest against strict liability
the grounds that it contravenes public sentiment is, again, at
an open hypothesis. Those who seek to substantiate its correct
turn to the fact that minimal penalties are often imposed.
construe this as indicative of the felt revulsion against the co
of strict criminal liability. That judges and juries often refuse
impose those sanctions which would be imposed in the compar
cases involving the presence of mens rea, is taken as addit
evidence of community antipathy.
The evidence is, however, no less (and probably no mor
persuasive on the other side. The fact that most strict liability
fenses are creatures of statute has already been alluded to. Wh
few persons would seriously wish to maintain that the legislat
is either omniscient or a wholly adequate reflection of general
popular sentiment, the fact that so many legislatures have felt
apparently little compunction over enacting such statutes is su
indicative of the presence of a comparable community convict
Strict liability offenses, as the critics so persistently note, are
mere sports, mere sporadic legislative oversights or anoma
They are, again as the critics note, increasing in both number
scope. It may very well be the case that strict liability off
ought to be condemned by the community; it is much more dou
ful that they are presently held in such contumely.

"MENTAL" REQUIREMENTS, STRICT LIABILITY AND NEGLIGENCE

The arguments against strict liability offenses which rem

to be examined go to what is conceived to be the very heart of
strict liability offense; namely, the imposition of criminal sanc
in the absence of any fault on the part of the actor.
Since that liability [strict liability] is meaningful only in its com
plete exclusion of fault, it is patently inconsistent to assert, e.g., th
business man is honest, exercises care and skill; and also, if a misbra
or adulterated package of food somehow, unknown to anyone, is shi
from his establishment, that he should be punished or coercively e
cated to increase his efficiency.29
29. HALL, op. cit. supra note 18, at 304.

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742 STANFORD LAW REVIEW [Vol. I2: Page 731

The actor has, ex hypothesi, lacked precisely those mental attributes

upon which fault is properly predicated-indeed, proof of his state
of mind is irrelevant. Thus, the argument concludes, the vicious
character of convictions founded upon strict liability is revealed.
Intelligent understanding and evaluation of this objection must
await, however, the clarification of several critically ambiguous
notions. In particular, the ways in which a strict liability offense
may fail to take the defendant's state of mind into account are
far from clearly delineated. More seriously, still, there seem to be
a variety of alternative meanings of "fault" which should be ex-
plored and discriminated.
That certain offers of proof concerning the defendant's state
of mind might not be irrelevant even in the case of a putative viola-
tion is apparent. Quite apart from the ambiguous meaning of
the word "act,"30 there are several other questions about the de-
fendant's mental state which might be permitted in a strict liability
prosecution. For example, suppose the defendant in the Lindberg
case were to offer to prove that he had never intended to become
a director or officer of the bank and that he reasonably believed that
he was merely becoming an employee. Is it clear that this offer
would be rejected as irrelevant ? Or, suppose the offer of proof was
that the defendant had never intended to borrow any money and
reasonably believed that he was receiving a bonus. Would this
statement be excluded? Thus, it can be argued that if strict lia-
bility statutes are to be characterized as "strict" because of their
failure to permit inquiry as to the defendant's state of mind, this
description is too broad. More appropriately, each criminal statute
must be examined to determine in what respects it is "strict."
The ambiguity in the notion of "fault" can be illustrated by a
hypothetical situation. Consider a statute which reads: "If a bank
director borrows money in excess of [a certain amount] from the
bank of which he is director, then the directors of any other bank
shall be punishable by not more than ten years in the state prison."
Suppose that there is no connection between the various banks in
the jurisdiction, that a director of bank A had borrowed money in
excess of the statutory amount from his own bank, and that a direc-
tor of bank B, a wholly unrelated bank, was accused and convicted.
This, it is submitted, would be a case of "stricter" liability. The
example is surely chimerical; the point is not. It serves to illustrate
the way in which ordinary strict liability statutes do require "fault."
30. See note 15 supra.

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July I 960 ] STRICT CRIMINAL LIABILITY 743

If the notion of fault requires that there be some sort of

relationship between the accused and the act in questio
arguable that the Lindberg case takes account of such a r
ship. The defendant in the Lindberg case by virtue of his p
qua officer of the bank had considerable control over the af
that bank. And he had even greater control over his own b
ing activities. If the element of control is sufficient to perm
kind of a causal inference as to events occuring within tha
trol, then a finding of fault in this sense does not seem ar
in the same manner in which a finding of fault in the hypo
clearly would be.
Admittedly, there is a second, more restricted sense of
which was clearly not present in the Lindberg case. Thi
require that the actor intended to have the particular act-b
ing money from his own bank-occur. And yet, there wa
scious intent to engage in just that activity-banking-wh
defendant knew or should have known to be subject to c
sanctions if certain consequences ensued. And there was
clearer intent to do the more specific act-borrow money
the defendant knew or should have known to be subject to c
sanctions under certain specified circumstances. Strict
offenses can be interpreted as legislative judgments that pe
who intentionally engage in certain activities and occup
peculiar or distinctive position of control are to be held acco
for the occurrence of certain consequences.
It is entirely possible that such a characterization of fault
still be regarded as unsatisfactory.3' The mere fact that th
control over the general activity may be insufficient to justify
ing of fault in every case in which certain results ensue. The
fault which must be present before criminal sanctions o
be imposed, so the argument might continue, is one w
predicated upon some affirmative state of mind with re
the particular act or consequence.
There may be good reasons why this more restrictive co
of fault ought to be insisted upon in the criminal law. I
think such reasons exist and are persuasive. Furthermore, "
tological" arguments, which rest upon analysis of what o
be entailed by concepts of justice, criminal guilt and cul
might support the more restrictive definition. Arguments

31. HALL, op. cit. supra note 18, at 304, clearly regards such a definition as
factory.

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744 STANFORD LAW REVIEW [Vol. 12: Page 731

nature will not be challenged here, for to a considerable extent this

article is written in the hope that others will feel the need to articu-
late these contentions more precisely. However, there remains one
final thesis which must be questioned. That is, that a person who
accepts this more restrictive notion of fault can consistently believe
that negligent acts ought to be punished by the criminal law.32
If the objection to the concept of strict liability is that the de-
fendant's state of mind is irrelevant, then a comparable objection
seems to lie against offenses founded upon criminal negligence.
For the jury in a criminal negligence prosecution asks only whether
the activity of the defendant violated some standard of care which
a reasonable member of the community would not have violated.33
To the extent that strict liability statutes can be interpreted as
legislative judgments that conduct which produces or permits
certain consequences is unreasonable, strict criminal liability is
similar to a jury determination that conduct in a particular case
was unreasonable.
There are, of course, important differences between the two
kinds of offenses. Precisely because strict liability statutes require
an antecedent judgment of per se unreasonableness, they necessarily
require a more general classification of the kind of activity which
is to be regulated. They tend, and perhaps inherently so, to
neglect many features which ought to be taken into account before
such a judgment is forthcoming. Criminal negligence, on the
other hand, demands an essentially a posteriori judgment as to the
conduct in the particular case. As such, it surely provides more
opportunity for the jury to consider just those factors which are
most significant in determining whether the standard of care was
observed.

32. The MODEL PENAL CODE §§ 2.02, 2.05 (Tent. Draft No. 4, 1955) appears to
take this approach.
33. I find highly unpersuasive, attempts to treat negligence as in fact requiring mens
rca. It has been argued that "in the case of negligence ... the law operates with an objec-
tive standard which, based upon experience, closely approximates that under which the de-
fendant must have operated in fact. In my opinion, therefore, we are here confronted with
the use of a schematic and crude way of establishing the mens rea, but one which never-
theless evidences the law's concern for the mental attitude of the defendant." Mueller,
supra note 16, at 1063-64.
If Mueller is suggesting merely that when certain kinds of consequences occur in
certain kinds of situations it is reasonable to infer that the defendant in fact had a certain
state of mind, then I find nothing objectionable about his claim. But, of course, mutatis
mutandis, the same can be said for many strict liability offenses. If, on the other hand,
he is suggesting that negligence in fact requires the jury to make a determination as to
the presence or absence of the defendant's mens rea, then I do not understand in what
sense this is accurate.

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July I 960 ] STRICT CRIMINAL LIABILITY 745

In spite of these important distinctions, insofar as str

liability statutes are condemned because they fail to requ
mental element, negligence as a category of criminality ough
be likewise criticized. There may be independent reasons
urging the retention or rejection of the category of criminal
ligence-just as there may be such reasons for accepting or
allowing strict liability offenses. But the way in which th
kinds of criminal liability are similar must be kept in mind w
ever they are evaluated.

CONCLUSION

It is readily conceded that many strict liability statutes do

perform any very meaningful or desirable social function
admitted, too, that legislatures may have been both negl
and unwise in their selection of strict criminal liability as the m
by which to achieve certain ends. But until the issues raised i
preceding discussion have been considered more carefully
precisely, it will not be immediately evident that all strict liab
statutes are inherently vicious and irrational legislative or jud
blunders.

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