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110 Mich. L. Rev. 647 (2011-2012)
On Strict Liability Crimes: Preserving a Moral Framework for Criminal Intent in an Intent-Free Moral World

handle is hein.journals/mlr110 and id is 655 raw text is: NOTE ON STRICT LIABILITY CRIMES: PRESERVING A MORAL FRAMEWORK FOR CRIMINAL INTENT IN AN INTENT-FREE MORAL WORLD W. Robert Thomas* The law has long recognized a presumption against criminal strict liability. This Note situates that presumption in terms of moral intuitions about the role of intention and the unique nature of criminal punishment. Two sources-recent laws from state legislatures and recent advances in moral philosophy-pose distinct challenges to the presumption against strict liability crimes. This Note offers a solution to the philosophical prob- lem that informs how courts could address the legislative problem. First, it argues that the purported problem from philosophy stems from a mistaken relationship drawn between criminal law and morality. Second, it outlines a slightly more nuanced moral framework that both accommodates recent thinking in philosophy and preserves the correspondence between moral theory and criminal law that underwrites the presumption against criminal strict liability. Finally, it considers how the contours of this moral frame- work could inform judicial efforts to accommodate and constrain new criminal strict liability laws. TABLE OF CONTENTS INTRODUCTION...................................................................................... 648 I. A (NAYVE) MORAL FRAMEWORK FOR ADDRESSING CRIMINAL STRICT LIABILITY ................................................... 650 A. Precursors: Moral-Criminal Correspondence, Frameworks, and Two Moral Bases ..................................651 B. Two Intuitions Motivating the Presumption against Criminal Strict Liability .................................................... 653 C. The Supreme Court's Interpretive Presumption against Criminal Strict Liability ....................................... 654 1. A General Judicial Presumption against Criminal Strict Liability .............................................655 * J.D. Candidate, December 2011; Ph.D. Precandidate in Philosophy, May 2014. My thanks goes to those members of the Michigan faculty-in particular, Professors Allan Gib- bard, David Moran, and Scott Hershovitz-who were kind enough to provide their guidance and expertise. Thanks also to J. Dmitri Gallow, Steve Campbell, and Alex Sarch for feed- back. I would also like to thank the Notes Office of the Michigan Law Review, and especially Kyle Aarons, Becca Klein, and Theresa Romanosky, for their consistently excellent support throughout this process. Finally, Megan's support made this project possible years before it began. 647

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