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Does Fault Matter?

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Abstract

In this article, I try to go beyond the traditional objections to strict liability public welfare offenses and confront other possible justifications for punishing non-culpable conduct. Specifically, I consider the following arguments:

  • Penalties for public welfare offenses are punishment by name only, thus traditional justifications for punishment are not needed;

  • Even if those penalties are punishment, punishing those who produce or threaten significant harm to others is not necessarily unjust; and

  • Even if such punishment is not entirely just, it is consistent with other widely accepted criminal law doctrines.

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Notes

  1. Letter from Margaret Hamburg, Comm’r, Food and Drugs, to Sen. Charles E. Grassley, Ranking Member, Senate Comm. on Fin. (March 4, 2010), http://www.fdalawblog.net/files/fda-grassley-ltr.pdf; Reply Brief for the United States, United States v. Park, 421 U.S. 658, 670 (1975) (No. 74–215), 1975 WL 370186, at *6–7; U.S. Food and Drug Admin., Regulatory Procedures Manual: § 6-5-3—Special Procedures and Considerations for Park Doctrine Prosecutions (2015), https://www.fda.gov/iceci/compliancemanuals/regulatoryproceduresmanual/ucm176738.htm#SUB6-5-3.

  2. Joseph F. Savage, Jr. and Maren Klawiter, The Revival Of The Responsible Corporate Officer Doctrine?, The Health Lawyer (October 2013), at 32.

  3. United States v. DeCoster, 828 F.3d 626 (8th Cir. 2016).

  4. Brian T. McGovern, Anne Tompkins, & Stephen Weiss, Looking to the U.S. Supreme Court for Clarity on the Responsible Corporate Officer Doctrine, Lexology (May 4, 2017), http://www.lexology.com/library/detail.aspx?g=4aaa335f-72a1-4a6b-a27b-d55097695d98 (calling it the “most important Park doctrine case in over forty years”).

  5. DeCoster, 828 F.3d at 630.

  6. Id.

  7. Id. at 631.

  8. 21 U.S.C. § 331(a) (2016) (prohibiting “[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded”).

  9. DeCoster, 828 F.3d at 637. “Because there is essentially no defense under Park, such a charge naturally induces a guilty plea.” Reply Brief for Petitioners at 8, DeCoster v. United States, No. 16–877 (petition for cert. filed May 1, 2017), http://www.scotusblog.com/wp-content/uploads/2017/05/16-877-pet-cert-reply.pdf.

  10. Park, 421 U.S. at 673–674.

  11. DeCoster, 828 F.3d at 639.

  12. Brief of Washington Legal Foundation as Amicus Curiae in Support of Petitioners at 3, DeCoster v. United States, No. 16–877 (U.S. February 9, 2017), http://www.scotusblog.com/wp-content/uploads/2017/03/16-877-cert-amicus-WLF.pdf.

  13. Dan Flynn, Supreme Court Might Want to Hear DeCoster Egg Sentence Case, Food Safety News (October 20, 2016), http://www.foodsafetynews.com/2016/10/supreme-court-might-want-to-hear-decoster-egg-sentence-case/#.WFDxAX0jzKA.

  14. Id.

  15. Dan Flynn, Supreme Court Will Not Review DeCoster Sentences in Egg Cases, Food Safety News (May 23, 2017), http://www.foodsafetynews.com/2017/05/supreme-court-will-not-review-decoster-sentences-in-egg-cases/#.WSZ6XNy1vIU.

  16. DeCoster, 828 F.3d at 632.

  17. Sir William Blackstone, Commentaries on the laws of England 713 (WM. Hardcastle Browne, A.M. ed., 1892) (“the law holds it better that ten guilty persons escape, than that one innocent party suffer”); Sherras v. De Rutzen (1895) 1 QB 918, 922, Wright J (“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence”).

  18. Felton v. United States, 96 U.S. 699, 703 (1877).

  19. See Stuart Green, Six Senses of Strict Liability: A Plea for Formalism, in Appraising Strict Liability 1 (Andrew Simester, ed., 2005).

  20. Morissette v. United States, 342 U.S. 246, 254 (1952).

    The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

  21. John S. Baker, Jr. & Dale E. Bennett, Measuring the Explosive Growth of Federal Crime Legislation, The Federalist Soc'y For L. & Pub. Pol. 1, 4 (2004), http://www.conservativecriminology.com/uploads/5/6/1/7/56173731/growth_in_fed_crime.pdf.

  22. See, e.g., Herbert Packer, The Limits of the Criminal Sanction 121–131 (1968).

  23. See, e.g., James B. Brady, Strict Liability Offenses: A Justification, 8 Crim. L. Bull. 217 (1972); Steven Nemerson, Criminal Liability Without Fault: A Philosophical Perspective, 75 Colum. L. Rev. 1517 (1975).

  24. See generally, The Boundaries of the Criminal Law (R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, & Victor Tadros, eds., 2012).

  25. A.P. Simester, Is Strict Liability Always Wrong? in Appraising Strict Liability 21 (Andrew Simester, ed., 2005).

  26. Id. at 23.

  27. Id.

  28. Id.

  29. Id.

  30. R. v. Sault Ste Marie, (1978) D.L.R. 1300 (Can).

  31. Michael Pinard, Reflections and Perspectives on Reentry and Collateral Consequences, 100 J. Crim. L. and Criminology 1213, 1214, 1221 (2010).

  32. B.A. Williams, Moral Luck 28 (1981).

  33. Michael Moore, Placing Blame 191–247 (1997); Michael Moore, Victims and Retribution: A Reply to Professor Fletcher, 3 Buff. Crim. L. Rev. 65, 87 (1999) (“It’s not culpability alone that counts in determining desert… Rather, the amount of harm caused determines the seriousness of the wrong done, and the amount of wrong done does affect desert”).

  34. See, e.g., George Fletcher, Proportionality and the Psychotic Aggressor: A Vignette on Comparative Criminal Theory, 8 Israel L. Rev. 367, 371 (1973).

  35. See Vera Bergelson, Rights, Wrongs, and Comparative Justifications, 28 Cardozo L. Rev. 2481 (discussing conflicting justifications).

  36. Vera Bergelson, Victims’ Rights and Victims’ Wrongs 71–80; but see Laurence A. Alexander, Justification and Innocent Aggressors, 33 Wayne L. Rev. 1177, 1187 (1987) (“We can sympathize with and excuse a person who uses deadly force to fend off innocent aggressors, but we cannot say that it is right for him to do so”).

  37. Among the scholars who draw parallels between punishment and self-defense are: Jeff McMahan, Aggression and Punishment, in War: Essays in Political Philosophy, 67, 84 (2008); Victor Tadros, The Ends of Harm: The Moral Foundations of the Criminal Law (2011); Daniel M. Farrell, The Justification of General Deterrence, 94 Phil. Rev. 367 (1985); Warren Quinn, The Right to Threaten and the Right to Punish, 14 Phil. & Pub. Aff. 327 (1985); John Gardner & François Tanguay-Renaud, Desert and Avoidability in Self-Defense, 122 Ethics 111, 118–119 (2011).

  38. H.L.A. Hart, Punishment and Responsibility 13 (2nd ed. 1968).

  39. John Langshaw Austin, A Plea for Excuses, in Freedom and Responsibility 6, 6 (Herbert Morris, ed., 1961).

  40. Model Penal Code (Am. Law Inst., Official Draft and Revised Comments 1985) (hereinafter “MPC”) § 3.02 cmt. 3, at 14–15.

  41. Moore, supra note 33, at 721–722.

  42. Id.

  43. HCJ 5100/94 Public Committee Against Torture v. State of Israel, 53(4) PD 817 (1999) (Isr.). (“These prohibitions are ‘absolute.’ There are no exceptions to them and no room for balancing”).

  44. Moore, supra note 33, at 721–722.

  45. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] February, 2006, 1 BvR 357/05 115, 118 (Ger.), http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705.html; Press Release 1 BvR 357/05, 1 BvR 357/07, Authorisation to Shoot Down Aircraft in the Aviation Security Act Void (February 15, 2006), https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2006/bvg06-011.html; German Court Rejects Hijack Law, BBC News (February 15, 2006), http://news.bbc.co.uk/2/hi/europe/4715878.stm.

  46. United States v. Peterson, 483 F.2d 1222, 1229 (D.C. Cir. 1973) (“Hinged on the exigencies of self-preservation, the doctrine of homicidal self-defense emerges from the body of the criminal law as a limited though important exception to legal outlawry of the arena of self-help in the settlement of potentially fatal personal conflicts”).

  47. See 6 Am. Jur. 2d Assault and Battery § 50 (2017) (“As a general rule, only a present or imminent danger justifies resort to self defense”).

  48. See MPC § 3.04(1).

  49. See 1 BvR 357/05 115 (118) (Ger).

  50. Doctrine of Double Effect, Stanford Encyclopedia of Philosophy (September 23, 2014), https://plato.stanford.edu/entries/double-effect/.

  51. James Fitzjames Stephen, Digest of the Criminal Law 25 n. 1 (5th ed. 1894) (emphasis added).

  52. I am not arguing here that the state may never do what is morally impermissible; I am simply denying this act the status of being justified.

  53. See, e.g., United States v. Balint, 258 U.S. 250 (1922) (when defendants commit certain acts, it is not unfair that they “shall do them at [their] peril and will not be heard to plead in defense good faith or ignorance”); United States v. Dotterweich, 320 U.S. 277 (1943) (defendants can learn about restrictions imposed by law “before sharing in illicit commerce”); Darryl K. Brown, Public Welfare Offenses, in Oxford Handbook of Criminal Law 862 (Markus Dubber and Tatjana Hörnle, eds., 2014).

  54. Brown, supra note 53 at 875 (“Courts assert that even actors engaged in lawful endeavors are fairly punished when reasonable people in contemporary society would recognize the activity as likely to be a regulated one (e.g. food distribution, manufacturing, firearms possession), and the regulation addresses risks to others.”). By electing to engage in regulated lawful activity, an actor has “changed his normative position.” Id.

  55. Park, 421 U.S. at 672.

    The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being or the public that supports them.

  56. See, e.g., Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. Pa. L. Rev. 1497 (1974); Martin Petrin, Circumscribing the “Prosecutor’s Ticket to Tag the Elite”—A Critique of The Responsible Corporate Officer Doctrine, 84 Temp. L. Rev. 283 (2012).

  57. See infra, Section 3(b).

  58. Douglas Husak, Strict Liability, Justice, and Proportionality, in Appraising Strict Liability, 81, 86–87. (Andrew Simester, ed., 2005).

  59. Id.

  60. Id.

  61. Id. at 87.

  62. Id. at 88.

  63. Id. at 91.

  64. United States v. Quality Egg, LLC, 99 F. Supp. 3d 920, 943 (N.D. Iowa 2015), aff’d sub nom. United States v. DeCoster, 828 F.3d 626 (8th Cir. 2016).

  65. Id. at 946.

  66. Id.

  67. R v. Prince (1875) 2 LRCCR 154 (Eng.)

    It seems to me impossible to say that where a person takes a girl out of her father’s possession, not knowing whether she is or is not under sixteen, that he is not guilty; and equally impossible when he believes, but erroneously, that she is old enough for him to do a wrong act with safety.

  68. Id.

  69. Id.

  70. Graham Hughes, Criminal Responsibility, 16 Stan. L. Rev. 470, 480 (1964); see also R v. Prince (1875) 2 LRCCR 154 (Eng.) (J. Brett, dissenting) (opining that, had the facts been as Prince believed them to be, “he would have done no act which has ever been a criminal offense in England”).

  71. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625, 630 (1984).

  72. Id. at 655–656.

  73. Husak, supra note 58 at 103 (“The case for criminal liability and punishment seems especially strong when the conduct leads to serious harms such as death—even though defendants are not negligent for the consequences they cause”).

  74. Brief for the National Association of Manufacturers and the Cato Institute as Amici Curiae Supporting Appellants at 3–4, DeCoster v. United States, Nos. 15–1890 & 15–1891 (8th Cir. 2017) (footnotes omitted), http://www.nam.org/Advocacy/The-Center-for-Legal-Action/Briefs-Online/2015/NAM-Amicus-Brief-in-DeCoster-v-United-States-(8th-Cir).pdf.

  75. Almost 20 percent of exonerations in 2015 were for convictions based on false confessions. Matt Ferner, A Record Number of People Were Exonerated in 2015 for Crimes They Didn’t Commit, The Huffington Post (February 3, 2016), http://www.huffingtonpost.com/entry/exonerations-2015_us_56ac0374e4b00b033aaf3da9.

  76. More than 40 percent of people exonerated in 2015 were convicted based on guilty pleas made by innocent defendants. Id.

  77. The Innocence Project says eyewitness misidentification of a suspect plays a role in more than 70 percent of convictions that are later overturned through DNA evidence. Id.

  78. According to the Innocence Project, improper forensic science is a leading cause of wrongful conviction. Id.

  79. Id.

  80. See Kenneth W. Simons, Statistical Knowledge Deconstructed, 92 B.U. L. Rev. 1, 2, 36–59 (2012), for insightful analysis of the special stringency principle, “a deontological principle that treats an actor as highly culpable and treats his acts as especially difficult to justify when he knowingly imposes a highly concentrated risk of serious harm on a victim”.

  81. Philippa Foot, Virtues and Vices 26 (1981).

  82. Id.; Moore, supra note 33 at 689–690.

  83. Moore, supra note 33 at 690.

  84. See Doctrine of Double Effect, supra note 50.

  85. The MPC has advocated downgrading strict liability to the level of violation which is not a crime under the MPC. MPC § 2.05. This proposal has not gained much legislative support.

  86. Id. § 2.04(2).

  87. MPC § 2.04 cmt. 2 at 273.

  88. Homicide Act of 1957, 5 & 6 Eliz. 2, ch. 11, §1 (Eng.); Id. §11(d) (guaranteeing the presumption of innocence); but see Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, 63 (2004) (arguing that felony-murder rules were first enacted not in medieval England, but in nineteenth century America).

  89. R. v. Vaillancourt, (1987) S.C.R. 636 (Can.) (holding that the felony-murder provisions of Criminal Code violate the Canadian Charter of Rights and Freedoms, in particular §7 requiring respect for “principles of fundamental justice”).

  90. MPC § 210.2 cmt. 6 at 37 (“Principled argument in favor of the felony-murder doctrine is hard to find”).

  91. Id. at 39.

  92. People v. Olsen, 685 P.2d 52, 61 (Cal. 1984).

  93. MPC § 2.05 cmt 1 at 283.

  94. See, e.g., Kenneth W. Simons, When Is Strict Criminal Liability Just? 87. J. Crim. L. & Criminology 1075 (1997).

  95. Park, 421 U.S. at 673–674.

  96. Certainly, under the “natural and probable consequences” doctrine of causation, responsibility for acts of others can be much more expansive but that doctrine is another example of strict liability; not surprisingly, it possesses similar flaws. In addition, under the felony-murder rule, in some jurisdictions, defendants may be responsible for justified responsible killing committed by the victim, bystander, or police. I am not addressing those here because justified killings are not “wrongdoings”.

  97. Wayne R. LaFave, Principles of Criminal Law § 12.5(e) (2nd ed. 1986).

  98. Phillip Johnson, Strict Liability: The Prevalent View, in 4 Encyclopedia of Crime and Justice 1518, 1520–1521 (Sandford H. Kadish, ed., 1983).

  99. Id.

  100. Id.

  101. Hart, supra note 38 at 153–154.

    It may well be that, even if the “standard of care” is pitched very low so that individuals are held liable only if they fail to take very elementary precautions against harm, there will still be some unfortunate individuals who, through lack of intelligence, powers of concentration or memory, or through clumsiness, could not attain even this low standard.

  102. Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability 71 (2009).

  103. Those criteria are:

    1. whether the violation involves actual or potential harm to the public;

    2. whether the violation is obvious; 

    3. whether the violation reflects a pattern of illegal behavior and/or failure to heed prior warnings;

    4. whether the violation is widespread;

    5. whether the violation is serious;

    6. the quality of the legal and factual support for the proposed prosecution; and

    7. whether the proposed prosecution is a prudent use of agency resources.

    U.S. Food & Drug Admin., supra note 1.

  104. See MPC § 2.05.

Acknowledgements

I am grateful to my research assistants Jonathan Fleisher for his excellent research and Christa McLeod for her diligent help in preparing this article for publication.

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  1. Rutgers School of Law, Newark, USA

    Vera Bergelson

  2. Rutgers School of Law, Camden, USA

    Vera Bergelson

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Bergelson, V. Does Fault Matter?. Criminal Law, Philosophy 12, 375–392 (2018). https://doi.org/10.1007/s11572-017-9432-y

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