Academic journal article Harvard Journal of Law & Public Policy

Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause

Academic journal article Harvard Journal of Law & Public Policy

Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause

Article excerpt

I.   The Setting: Strict Liability and      Incarceration II.  The Birth and Growth of Strict Liability      Offenses III. The Problems with Strict Liability      Offenses IV.  Strict Liability Offenses and the Cruel      and Unusual Punishments Clause      A. Challenges to Strict Liability Offenses      B. Defenses Against Eighth Amendment         Challenges         1. The Prevalence of Strict Liability            Criminal Laws         2. The Need for Deterrence V.   The Remedy for an Eighth Amendment      Violation VI.  Conclusion 


The romantic vision of the criminal justice system is one of a decisive courtroom battle between an aggressive but virtuous prosecutor matching wits against a benighted and indefatigable defense counsel vigorously representing his innocent client before a fair, wise, dedicated judge, who vigilantly protects the defendant's rights at trial. The reality, however, is quite different. Actors in today's criminal justice system tend to follow a mundane path. More trials can be seen each week on prime time television than actually take place in most courtrooms during the same period. Roughly ninety-five percent of all prosecutions today result in plea bargains (1) that are negotiated between professional adversaries oftentimes too swamped with cases to include their clients--defendants or the public, including crime victims--in the pre-plea decisionmaking process. (2) Equally busy judges trying to manage crushing caseloads wind up blessing those agreements after a perfunctory review of the facts, even when a defendant pleads guilty while claiming to be innocent. (3) The romantic vision of the process is uplifting; the reality is not. (4)

Criminal justice scholars disagree over where the blame should lie. Some argue that the criminal justice system has become overwhelmingly mechanized. (5) They criticize the system for its willingness to treat cases like widgets wending their way down an assembly line. The overriding concern is not to separate the guilty from the innocent; the assumption is that every defendant is guilty of something. Instead of providing a forum for the purpose of finding the facts or exhibiting a morality play, the criminal justice system cares only about what can enable the professional insiders most efficiently to process the thousands of cases that the system must handle with little, if any, concern for the dignity of the real people involved in the process, particularly defendants and victims.

Other scholars believe that the fundamental problem with the criminal justice system is substantive, not structural or procedural. (6) They see a criminal justice system that has been captured by an illegitimate partnership between prosecutors and legislators who tacitly conspire to generate an overwhelming growth in the size and severity of the penal code. Legislatures continuously churn out superfluous or redundant, but always onerous, new criminal laws that prosecutors then use to stack charges against defendants to coerce guilty pleas. Legislators euchre the public into believing that they have reduced crime, while prosecutors bludgeon defendants into cooperating with investigations of bigger fish by pleading guilty and clearing a case from the docket, regardless of the legitimacy or strength of a defendant's belief in his or her own innocence.

Perhaps both critics are right. The public does not seem to care who is right or what is wrong so long as it can remain ignorant of the actual goings-on of criminal practice and not too many innocent parties wind up convicted--or at least so long as not too many of them show up on the nightly television news. The result is the absence of any public pressure to change the rules of the road (the subject of criminal law) or to fix the potholes along the way (the subject of criminal procedure).

Strict liability offenses--defined as infractions, violations, or crimes that can be committed without any intent to break the law, any knowledge of what the law is, or even any negligence in learning what the law prohibits (7)--enable the criminal justice system to combine the worst of both worldviews. …

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