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March 5, 2023

"Mandatory Sentences as Strict Liability"

The title of this post is the title of this new paper authored by William W. Berry III now available via SSRN.  Here is its abstract:

Strict liability crimes — crimes that do not require a criminal intent — are outliers in the world of criminal law. Disregarding criminal intent risks treating the blameworthy the same as the blameless.

In a different galaxy far, far away, mandatory sentences — sentences automatically imposed upon a criminal conviction — are unconstitutional in certain contexts for the exact same reason.  Mandatory death sentences risk treating those who do not deserve death the same as those that might.

Two completely separate contexts, two parallel rules of law.  Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole.  Indeed, equity in criminal sentencing may depend upon recognizing the connections between these parallel universes.

This Article aims to fill this analytic gap, proposing a rethinking of mandatory sentences in light of the way criminal law treats strict liability crimes.  Specifically, the Article argues that courts should re-conceptualize mandatory sentences as a type of strict liability.  To that end, it proposes a series of possible statutory and constitutional limits on mandatory sentences.

March 5, 2023 at 08:55 PM | Permalink


This is just linguistic razzle-dazzle with no cogent thought behind it. It's perfectly within the legislature's right and power to conclude that, once (very nasty) elements A, B, and C have been found beyond a reasonable doubt, even the most sympathetic conceivable defendant should not be given a sentence below a certain floor. Judges get to decide a lot, and properly so, but neither the Constitution nor common sense says they should get 100% discretion 100% of the time. The legislature properly sets both ceilings and floors. To say it can't do even that is to cut it out of sentencing entirely.

Posted by: Bill Otis | Mar 6, 2023 1:57:46 AM

Which, honestly, has a great deal to do with my support for a presumptive death penalty. I utterly reject the idea of reserving it for some "worst of the worst" because human worst-ness really has no limit. Once past some (admittedly fairly minimal) floor, it should be up to the convict to plead why their circumstances in particular are undeserving.

Posted by: Soronel Haetir | Mar 6, 2023 12:14:17 PM

It seems like comparing apples and oranges. The law on strict liability is based on the concept that (with very limited exceptions for minor offenses) how blameworty conduct is depends on intent. Sentencing ranges are based on the theory that (in the eyes of the legislature) most instances of a certain offense will merit punishment somewhere within the authorized sentencing range and that the outliers are rare enough that judge's authority to impose inappropriate sentences (again in the eyes of the legislature) should be eliminated.

I don't know of many defense attorneys who oppose the concept of mandatory maximum penalties. They don't want the person who bounced a check to be facing the same sentence as somebody who intentionally broke somebody's arm. They understand that having no limit on the top end creates too much risk on an open plea. And when they can get the state to agree to a reduced charge, they really like the sentencing range of the reduced charge. It's just when there client is reluctant to take the reduced charge that they complain that the difference between the sentencing ranges of the two charges coerces the plea to the lesser charge.

Posted by: tmm | Mar 7, 2023 10:27:53 AM

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