It is difficult, but very tempting, to justify criminal law in moral terms.(1) The criminal is morally condemnable.(2) Murder, robbery, larceny, and kidnapping are repulsive acts against society perpetrated by a culpable actor who chooses to violate fundamental social norms. Under this analysis, the defendant's evil intent should be punished.(3) The criminal is deserving of punishment, and society deserves to be protected from the criminal's conduct.(4)
The difficulty with this analysis is that there are too many important exceptions where subjective moral culpability is not a prerequisite to criminality. It is, of course, possible to marginalize these inconsistencies from a model of criminal law that punishes only the blameworthy. The pervasiveness of the exceptions, however, argues against such marginalization.(5) This is not to suggest that criminal law does not address the morally repugnant. Furthermore, I do not argue that cultural relativism precludes identifying culpable attacks on society. Rather, criminal law groups selective samples of the reprehensible with the innocent and effectively condemns both. What is fascinating is how and why criminal law makes such selections and, to a large extent, achieves general acceptance in society.
Ultimately, criminal law can be perceived usefully as a constellation of symbolic behavioral guideposts that project value and directional mandates. The immorality is not necessarily that of an individual transgressor or criminal, but the potentially inadvertent and, in a normative (but not positive) sense, nonculpable transgression of those directional boundaries. In essence, criminal law can be understood as a strict liability regime where personal condemnation is imposed on the transgressor for intentional or innocent boundary broaching.(6) What partially obscures this strict liability regime is that "mens rea" or individual state of mind is often, though not consistently, a part of the regime's directional mandates. Indeed, the criminalization of certain states of mind is part of the culture's mythology of individual culpability. This is a myth not because the criminal law never includes clear examples of intentional transgression, but because intentional violations are too selectively woven for the law to be steered by that principle.
While the criminal law historically may have imposed punishment based on objective deviations without reference to personal culpability, contemporary scholarship and public perception generally embrace the conception that personal moral culpability and blameworthiness delineate modem criminal law.(7) For over thirty years, the Model Penal Code has attempted to define and mold criminal law as a neutral condemnation of individual moral wrongdoing.(8) In doing so, the Code has attempted to reenforce this moral model; nevertheless, it has in fact given more evidence of a regime grossly inconsistent with that notion. In short, criminal law is not explained by moral individual culpability, but utilizes the imagery of morality to define directional boundaries within society, even when the law requires punishing a blameless individual as a pawn in this broader agenda.
Some recent scholarship has expressed concern over a perceived proliferation in regulatory crimes imposing very serious criminal sanctions without requiring proof of a culpable mens rea.(9) This Essay contends that the issue is more fundamental. While such regulatory offenses, historically associated with minor monetary punishment, generally have been marginalized by commentators as inconsistent with the thrust of criminal law, the dispensing of individual moral culpability is far more pervasive and indigenous to criminal law theory.(10)
This Essay examines moral fault in the criminal law by looking at three broad areas of the criminal law where individual moral fault is not required before the defendant can be convicted: Strict liability crimes, negligence based crimes, and result based crimes. …