Modern Forms of Strict Liability - Modern forms of strict liability fall into two general types.

What are they?

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Minor Public Welfare Offenses - Here, the legislature has decided that it is not worth the administrative expense to provide defendants with the normal range of protections, such as requiring proof of a culpable mens rea. Parking violations and minor traffic offenses are the most common examples of this type of offense.

Significant Public Welfare Offenses - Here, the legislature has sought to ensure the exercise of a high degree of care in the pursuit of activities dangerous to the public. Certain criminal statutes governing food and drug safety, occupational safety and health, and environmental protection are the most common examples of this type of offense.

We will focus here on the second of these two types.

Historical Overview - Modern public welfare offenses are a legislative response to the Industrial Revolution.

In earlier times, it was rare that the actions of any individual or group enterprise could harm large numbers of people, and the typical common law crimes – murder, manslaughter, theft, and the like – did not have any positive social value.

With the development of modern industrial forms of production, a very different type of social harm came into existence. These activities can cause injuries to large numbers of persons if something goes wrong in the production process, but they provide dramatic benefits to society when done safely.

Question - Which of the following accurately represents the kind of tension (between potentially harmful and beneficial outcomes that are inherent in a business activity) that have inspired regulations against public welfare offenses?

(1) To supply large and steady volumes of meat to retailers who serve price-conscious consumers, a meat processor uses equipment that, if operated too fast, may overheat and contaminate the product.

(2) A pharmaceutical company makes drugs for mitigating the risk of heart attack using a process that creates a risk of toxic spills.

Answer and Analysis - Both answers are correct. In the case of both the pharmaceutical company and the meat processor, we have made an implicit judgment as a society that we can acceptably balance the benefits of these activities against the harms, i.e., potential public welfare offenses.

We do so by regulating activities of these sorts with non-criminal forms of regulation, which has led to the “alphabet soup” of federal and state agencies regulating the environment (EPA), occupational safety and health (OSHA), food and drugs (FDA), and many other types of activity.

Within this regulatory regime, legislatures have provided an additional tool – the imposition of strict criminal liability with respect to certain kinds of industrial activity with particularly high potential for harm.

Question - How severe are the penalties for strict liability violations?

We address this in our next post on this topic.

The Law School Experience - These and related topics are covered in our tutorials on Criminal Law.

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