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January 26, 2017

"Strict Liability's Criminogenic Effect"

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

It is easy to understand the apparent appeal of strict liability to policymakers and legal reformers seeking to reduce crime: if the criminal law can do away with its traditional culpability requirement, it can increase the likelihood of conviction and punishment of those who engage in prohibited conduct or bring about prohibited harm or evil.  And such an increase in punishment rate can enhance the crime-control effectiveness of a system built upon general deterrence or incapacitation of the dangerous.  Similar arguments support the use of criminal liability for regulatory offenses.  Greater punishment rates suggest greater compliance.

But this analysis fails to appreciate the crime-control costs of strict liability.  By explicitly providing for punishment in the absence of moral blameworthiness, the law undermines its moral credibility with the community and thereby provokes subversion and resistance instead of the cooperation and acquiescence it needs for effective crime control.  More importantly, the system's lost moral credibility undermines the law’s ability to harness the powerful forces of stigmatization, social influence, and internalized norms.  Given the serious limitations inherent in the real-world application of general deterrence and preventive detention programs, the most effective crime-control strategy is to build the criminal law's reputation for being just, which means avoiding the use of strict liability. 

January 26, 2017 at 11:56 PM | Permalink


The mens rea is from the Catholic Church catechism. It therefore violates the Establishment Clause.

Beyond its lawlessness, it is ridiculous in its nature as a supernatural power, that to read minds.

In the 13th Century, the sole penalty was the death penalty. The mens rea provided a loophole to avoid the death penalty for the most trivial crime, such as taking game on royal properties. It served a good purpose, and was a good intellectual advance in 13th Century jurisprudence. It is no longer needed today, and actually quite ridiculous.

I find it quite shocking that Jewish and Protestant law students and lawyers do not totally resist nor even protest the imposition of this Catholic Church doctrine.

Section 1857 of the Catechism:

1857 For a sin to be mortal, three conditions must together be met: "Mortal sin is sin whose object is grave matter and which is also committed with full knowledge and deliberate consent."

Posted by: David Behar | Jan 27, 2017 12:37:54 AM

I am not criticizing the Catholic Church. It is their faith that God would determine the mens rea of a mortal sin (a violation of the Ten Commandments). God does have supernatural powers in their faith.

I am criticizing the lawyer profession. These nitwits believe and impose at the point of a gun the belief that man can read minds. And that disparate sentencing results should be based on this supernatural power.

A hunter shoots another thinking him a deer. A hunter shoots another because the other's wife paid him $10,000 to do so. Same act. Same harm. One goes home. The other gets the death penalty based on the reading of a mental state. How does the lawyer know the drunken, accidental shooter is not far more dangerous to future victims once loosed on the public. He gets in a car, and rams a school bus filled with kids going to hemophilia camp. That would be 100% the fault of the lawyer profession.

The substitute for the mens rea should be the past track record of the person, including unconvicted conduct. Acquitted conduct may be excluded from any sentencing analysis.

Posted by: David Behar | Jan 27, 2017 12:47:26 AM

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