Strict liability

Question 1

What does strict liability mean?

Answer 1

eliminates the men’s Rea requirement for at least one element
Disfavored at common law

Question 2

What is required to impose strict liability?

Answer 2

A statutory clear statement is required (Depending on the common law background)
There could be constitutional due process concerns
(see Shelton case invalidated for burden shifting by making lack of knowledge an affirmative defense)
Courts will normally enforce the statute as written

Question 3

What are three justifications for strict liability?

Answer 3

1- public welfare crimes use the criminal law a regulatory tool
2 - the legislature intended it and they are competent to make the decisions
3-Motivates judgment proof actors where tort law cannot (See corporate and poor)

Question 4

What are the two downsides of strict liability?

Answer 4

1-Limited Deterrent effect (Utilitarian)

2-No moral desert to correct (Retributive)

Question 5

Are courts more likely to impose liability on omissions or positive actions?

Answer 5

Positive actions

could be a good thing because its harder to prove mens rea for an omission than for a positive crime

Question 6

What are the metrics to argue for or against strict liability for a crime? (These only matter in statutory silence or ambiguity) (there are 7)

Answer 6

1-Tradition or history of the offense (Is this the kind of activity to put the actor I noticed that there would be regulation?,Has there historically been a mens rea requirement such that Congress is presume to watch you sleep with that in mind?)
2-With this criminalize a wide swath of conduct?
3-what is the public health, safety, or welfare interest?
4-How severe is the penalty?(Including social stigma)
5-malum in se or malum prohibitum?
6-is this person the lowest cost avoider?
7-Is strict liability adjacent to a constitutional right?