On Strict Liability Crimes: Preserving a Moral Framework for Criminal Intent in an Intent-Free Moral World

By Thomas, W. Robert | Michigan Law Review, February 2012 | Go to article overview

On Strict Liability Crimes: Preserving a Moral Framework for Criminal Intent in an Intent-Free Moral World


Thomas, W. Robert, Michigan Law Review


The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical problem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral framework that both accommodates recent thinking in philosophy and preserves the correspondence between moral theory and criminal law that underwrites the presumption against criminal strict liability. Finally, it considers how the contours of this moral framework could inform judicial efforts to accommodate and constrain new criminal strict liability laws.

Introduction

In 2003, Stacey Bettcher merged too slowly into an adjacent lane while entering a poorly marked highway work zone in Michigan. Her car clipped a construction sign, and the resulting impact killed an unseen construction worker.1 Had this tragedy occurred ten years earlier, or ten feet farther up the highway, it would have been resolved largely through a private cause of action. A jury would have considered whether Bettcher was negligent in failing to merge and whether her negligence proximately caused the death.2. Instead, Bettcher became the first Michigander prosecuted under Andy's Law, which holds drivers strictly liable for a death in a work zone that occurs concurrently with a "moving violation that has criminal penalties."3 Bettcher's underlying crime was violating a license restriction: she was driving a friend's car, rather than her own.4 The state sought to convince a jury of her peers that, even if her conduct was neither reckless nor criminally negligent, the law nevertheless required a felony conviction with up to fifteen years in prison.5

The law has long recognized a presumption against criminal strict liability- the Supreme Court describes it as a "generally disfavored status"6- that appears to be rooted in intuitions about the role played by defendants' intentions in light of the uniquely stigmatic nature of criminal punishment. Lately, that presumption has faced two seemingly unrelated challenges. Andy's Law exemplifies the first: states are creating new strict liability crimes that are unwarranted under the naïve moral framework that justifies the presumption. Second, prominent moral philosophers have called into question one foundation of that framework: the role that agents' intentions play in evaluating moral permissibility. In response, prominent criminal theorist Douglas Husak7 has argued that rejecting the role of intention in evaluating moral permissibility threatens criminal law at a fundamental level.8

This Note rejects the view that moral philosophy threatens to undermine criminal law. In doing so, it suggests that courts adopt a method of interpreting criminal strict liability laws that would be justifiable under, or at least consistent with, the traditional moral presumption. In particular, it argues that Husak's worry conflates the existence of some moral-criminal correspondence with a particular moral-criminal correspondence. While moral theory informs criminal law, the correct correspondence does not lie between criminal wrongdoing and moral permissibility. Rather, a connection between criminal wrongdoing and moral blameworthiness-specifically, Thomas Scanlon's recent account of blame-accommodates both the moral philosopher's claim that intention is irrelevant to moral permissibility and the criminal theorist's claim that intent is essential to criminal wrongdoing.

Part I outlines a moral framework consisting of generally accepted intuitions about criminal law, which underwrites a presumption against criminal strict liability. …

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