Legislatures’ Cautious Approach to Strict Liability for Public Welfare Offenses - Why are legislatures cautious about assigning strict liability for public welfare offenses?

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Quick Review of Strict Liability for Public Welfare Offenses - Let’s clarify and restate the rationale for applying strict liability to certain types of public welfare offenses.

Because the activity involves a high risk of harm if something goes wrong, we want to encourage more than simply reasonable care—we want to encourage utmost care. One way of doing this is to impose criminal liability if anything goes wrong, even if the responsible persons were not negligent—in other words, to impose strict liability.

Legislatures have responded to these concerns but have done so carefully, by imposing strict criminal liability sparingly and by imposing relatively mild penalties for violations of these types of strict liability crimes—in many cases just monetary fines, in other cases fines plus a short period of imprisonment (usually less than a year).

Question - Which of the following explains the legislatures’ cautious approach to imposing strict liability for public welfare offenses?

(1) If we go too far, we risk “over-deterrence” in the form of deterring people from becoming involved in the activity or making the activity too expensive.

(2) There is substantial discomfort with imposing the stigma and potentially heavy penalties of the criminal law on conduct that involves no moral culpability – not even negligence.

Answer and Analysis - Both answers are correct. The risk of “over-deterrence” is a problem because, unlike common law types of strict liability, these crimes involve socially useful activities (such as food and drug manufacturing).

Imposing the stigma and potentially heavy penalties of the criminal law on conduct that involves no moral culpability is a problem because the very concept of strict liability is in tension with the core importance our system places on moral culpability as the touchstone of criminal liability.

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