Document Type
Article
Publication Date
1-2-2017
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.
Keywords
Criminal law and procedure, law enforcement, public policy, punishment, deterrence, public opinion, blameworthiness, politics, legitimacy, empirical research, moral credibility, absolute liability, moral credibility, empirical desert, regulatory violations, overcriminalization
Publication Title
Criminal Law & Philosophy
Repository Citation
Robinson, Paul H., "Strict Liability's Criminogenic Effect" (2017). All Faculty Scholarship. 1713.
https://scholarship.law.upenn.edu/faculty_scholarship/1713
Included in
American Politics Commons, Criminal Law Commons, Criminal Procedure Commons, Criminology and Criminal Justice Commons, Ethics and Political Philosophy Commons, Law and Politics Commons, Law and Society Commons, Law Enforcement and Corrections Commons, Policy Design, Analysis, and Evaluation Commons, Public Administration Commons, Public Law and Legal Theory Commons, Social Control, Law, Crime, and Deviance Commons, Social Psychology and Interaction Commons
Publication Citation
Crim. L. & Phil., forthcoming