« New poll purports to show "New Low in Preference for the Death Penalty" | Main | Split Fourth Circuit highlights ugly mess of SCOTUS "crime of violence" jurisprudence »

June 5, 2014

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

The title of this post is the title of this notable new paper by Paul Larkin now available via SSRN.  Here is the abstract:

The Supreme Court long ago rejected due process challenges to the government’s use of strict liability offenses, but the Court has never considered the issue of whether imprisonment for such crimes violates the Cruel and Unusual Punishments Clause.  Being unable to persuade the Court to forbid strict liability crimes altogether, defendants incarcerated for those crimes are likely to argue that their punishment is cruel and unusual.  It therefore may not be long before the courts, including the Supreme Court, must finally address the issue.  When that day arrives, the Court should limit the penalties that can be imposed for strict liability crimes by forbidding any period of incarceration altogether or, at least, by outlawing imprisonment.  The Constitution should not allow a person to be imprisoned for committing a strict liability offense.

June 5, 2014 at 02:20 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause":


This an important subject to me. However, I am again frustrated and disappointed at the intellectual limitations o fthe lawyers, including the editors at the Harveard Law journal that published it. If it was solely reviewed by students, this article makes a cogent argument against the use of basically civilians to edit highly technical and difficult subject matter.

1) The mens rea was a device to soften the harsh remedies of the crimnal law in 1275AD. Because every crime carried the death penalty, (not that bad an idea), one had to soften the impact.

So they plagiarized word for word the mortal sin analysis of the Catechism. To itscredit the Medieval church had the faith that God would judge the mens rea of the offender upon arrival in heaven. God could read the mind of the offender. Not even the Medieval Church believed man could read minds.

So the phrase mens rea is 1) in Latin, the language of a church, thus promoting its tenets, and at the point of a gun (held by the police thug agents of the prosecutor); 2) is a supernatural power atta mythributed to God in accordance with the faith of a religion, making no additional claim to validation in the physical world; 3) an excuse totally divorced from the dangerousness of the offender.

So how does the lawyer know the hunter who shoots another, thinking him a deer is less dangerous than the hunter who shoots another after the other's wife paid him $10,000. So the accidental shooter, is an alcoholic, but is released to go home from prison, strictly because of his mental state. The acts of both hunters were intentoinal, and resulted in the same damage. So the alcoholic hunter is released, and plows into a bus full of kids going to hemophilia camp.

The criminal law is so shockingly empirical and takes place in the physical world. A supernatural doctrine cannot be at its center. It is the equivalent of chain rattling at a seance, a phony trick, to dazzle the suckers.

OK that is my strong Establishment Clause argument.


More later.

Posted by: Supremacy Claus | Jun 6, 2014 9:43:19 PM

To avoid the supernatural act of mind reading, I have advocated all crime be made strict liability. Then the publicly accountable executive branch should sentence to the person, not to the crime. So a murderer may go home, if a regular person being abused by the murder victim, and we are better off without the victim. A shoplifter may be beheaded if a mass murdering drug kingpin. The Executive branch sentencing agency pays for any mistakes in torts.

Posted by: Supremacy Claus | Jun 7, 2014 9:42:42 AM

The lawyer may be a dumbass, but he is certainly not stupid. For the most frequent and most lawyer lucrative crimes, summary traffic offenses, strict liablity is automatic. Even if the defendant meets the burden of showing no intent, no one cares, up the Supreme Court.

The traffic laws are a myth, a bunko operation. Their elimination, including, traffic lights, resulted in a drop in accidents. All safety advances come from technology, from road design to rauma care. The lawyer's traffic laws add no value, and generate massive income for government,.

This is the sentencing practice that reaches into the lives of everyone in the nation, the most frequent crimes, and the most costly, bringing hostility of the middle class to the legal system.

Yet... Rules of the Road. Never taught nor addressed in law school.

I invite all law students to spend a morning in a local traffic court. Nothing you see will have been taught. Nothing you learned about criminal procedure, no procedural rights will ever appear. Watch what happens to anyone not accepting a plea deal, crushed, to avoid slowing the money machine. See if there any different outcome with lawyer representation, save faster and more efficient, more automated plea bargaining.

Posted by: Supremacy Claus | Jun 7, 2014 10:03:41 AM

The only real crime with strict liability today is, of course, statutory rape. It is stunning that the sole reference in the article was in a Book title in tiny print in a reference.

"Statutory" means, a vile feminist lawyer just made something a rape.

Nature says, adulthood is around 14. History for 10,000 years agreed, having adulthood ceremonies around that age. One apprenticed around 12 or 13, hit the road at 14, started a family soon thereafter.

It was also mutually advantageous to have an attractive young girl, without wealth, linked by marriage to an older, less attractive, but richer man. That whole "set out and truggle upward together is completely over-rated." The Equity Theory of Human Pairing is like a law of physics, one without exception. Female bring child bearing, males have to be superior in other ways.

The feminist wants to destroy the productive male and take his assets with false gotchas. If they could they would make all girls virgin empresses of China. None may gaze upon them without getting decapitated.

So, there is no rape, just the legal impossibility of consent, due to age. Any penetration counts, such as French kissing. Most of these girls are difficult, and cannot be forced to do their homework, let alone do a sex act. Their sexual history of multiple partners or even prostitution cannot be used as a defense. Sexual aggressiveness and initiation of the sex act by the aggressive girl cannot be used as a defense. The girl's begging her boyfriend not be prosecuted because they want to get married, cannot be used.


Seriously, Prof. Berman, shouldn't student editorship of law journals come to an end? How can an article on strict liability mention none of the above?

The result is lengthy prison terms, listing in the sex offender registries.

Posted by: Supremacy Claus | Jun 7, 2014 1:25:00 PM

oh I agree SC. Hell here in FL we have one woman who has now managed to put 3 diff men in prison for taking her virginity. years apart. Nice trick that. Her and dad are making a killing.

Posted by: rodsmith | Jun 10, 2014 7:41:19 PM

Hi there,

I have been working on a strict liability case for a while, and this issue with cruel and unusual punishment is really interesting. Thanks for the post.

Posted by: Strict liability tort law | Jul 2, 2014 3:16:16 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB