Criminal Law Reform and the Persistence of Strict Liability

Two reform movements transformed American criminal law in the quarter century that began in the late 1960s. Their origins and effects were starkly different, and their conflict meant that, on core choices about the basis for criminal liability, one movement had to win and the other had to lose. The first movement was the wave of criminal code reform inspired by the American Law Institute’s Model Penal Code (MPC), first published in 1962. The MPC movement sought to increase the role of culpability as a prerequisite for liability by presumptively requiring proof of mens rea for every element of criminal offenses—a policy that rejected longstanding use of strict liability for significant offense elements. The second movement, which could be called the tough-on-crime movement, became the more significant. This movement led to the transformation of American criminal-justice policy that expanded criminal offenses, enforcement, and sentences, resulting in a national incarceration rate that quintupled and became by far the world’s highest. This Article identifies the twenty-four states that codified the MPC’s culpability rules and then recounts an extensive survey of the case law in those states to assess the reforms’ effect on judicial interpretation of mens rea requirements. It finds that legislative codifications of presumptions for mens rea have had surprisingly little effect on courts that define mens rea requirements when interpreting criminal statutes. It describes the recurrent rationales that courts use to impose strict-liability elements in a wide range of crimes, notwithstanding statutes that direct presumptions to the contrary. It then offers an explanation for this outcome—a substantial failure of the MPC-inspired revision of criminal codes—that emphasizes the continuing normative appeal of strict liability, the influence of Copyright © 2012 by Darryl K. Brown. † O.M. Vicars Professor of Law and E. James Kelly, Jr.-Class of 1965 Research Professor of Law, University of Virginia School of Law. I thank participants in the faculty workshop at the University of Virginia for helpful comments on an earlier draft, and Richard Bonnie, Josh Bowers, Leslie Kendrick, and John Jeffries for close readings and insightful thoughts on earlier drafts. BROWN IN PRINTER PROOF FINAL REVISED (DO NOT DELETE) 10/29/2012 10:02 AM 286 DUKE LAW JOURNAL [Vol. 62:285 instrumental rationales for punishment, and the limits of the judicial role in an era in which the legislative and executive branches are vastly expanding the reach and severity of criminal punishment.