Criminal Liability Without Fault - A Disquieting Trend

• NCJ Number: 96388
• Journal: Iowa Law Review Volume: 68 Issue: 5 Dated: (July 1983) Pages: 1067-1081
• Author(s): R M Perkins
• Date Published: 1983
• Length: 15 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article examines a trend in recent criminal cases and statutes toward the application of strict liability (mens rea not required), even though conviction results in harsh punishments.

Abstract

In the Powell v. Texas case, for example, Texas applied its law prohibiting intoxication in a public place to a chronic alcoholic. The U.S. Supreme Court rejected the claim that this prohibition constituted a violation of due process; further, the concurring Justice Black explained that legislatures have always been allowed great latitude in determining the extent to which moral culpability should be a prerequisite to conviction for a crime. Although the Supreme Court has been reluctant to interfere with States' determinations of what should be punishable within their borders, the Court has never held that the power to punish is without limitation. Justice demands that courts distinguish between mala in se and mala prohibitum. If the purpose of a penalty is to punish for culpable conduct, then the act is wrong in itself; it is malum in se. Conversely, if the purpose of the penalty is not to punish for culpable conduct but merely to enforce the provisions of a statute enacted for reasons unrelated to moral behavior, the act is not wrong in itself; it is malum prohibitum. In State v. Buttrey, the Oregon Supreme Court essentially held Buttrey strictly liable for an offense malum prohibitum (driving with a license previously revoked because of driving while under the influence of intoxicants), although the conviction was for a class C felony, which is a crime malum in se, requiring the establishment of mens rea (criminal intent). The courts should not convict of criminal behavior, with attendant harsh punishment, without requiring evidence of mens rea. Without fault, there is no crime, and to punish someone who has committed no crime is cruel and unusual punishment. One hundred footnotes are listed.