Powered by TypePad

« Working draft of bill for new ORC provision to criminalize "Damaging while driving in rain" | Main | Some serious real-world cases for debating a killer's mens rea »

September 9, 2013

Effective discussion of strict liability issue in play in Shelton v. Sec’y, Dep’t of Corrections

We will wrap up our focused discussion of strict criminal liability issues on Wednesday, and the (still on-going) litigation over Florida's drug possession laws at issue in Shelton v. Sec’y, Dep’t of Corrections will provide a good setting for developing a few final thoughts on this front.  Fortunately, though the textbook provides an already dated (and somewhat confusing) account of the Shelton case, there is a terrific (and brief) primer on the case available at this link from The Heritage Foundation.

I highly recommend that everyone at all interested by these debates read this discussion of the Shelton case and its importance.  To whet your appetite, here is how document linked above is titled and its abstract:

Guilty Until Proven Innocent: Undermining the Criminal Intent Requirement

Abstract: Developed over the course of hundreds of years, the Anglo–American legal system contains several key provisions that, when used properly, guard against wrongful criminal convictions.  These provisions, however, are under attack by America’s legislators and their desire to eliminate mens rea (“guilty mind”) requirements from U.S. criminal law.  The loss of this guilty mind requirement would destroy Americans’ primary defense against false accusations and Kafka-esque legal proceedings.  How the Supreme Court of the United States rules (if the Court does choose to rule) on Shelton v. Sec’y, Dep’t of Corrections will have a tremendous impact on one of America’s primary core liberties.

September 9, 2013 in Recommended scholarship, Reflections on class readings | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Effective discussion of strict liability issue in play in Shelton v. Sec’y, Dep’t of Corrections:


Check out the article, even if you can't read the whole thing. The key points are pretty clearly outlined on page 1.

Right at the end of class, Prof. Berman brought up the difference we felt toward Soccer Mom (from hypo) and Dillard (from the text). In Dillard we do not really feel bad for this guy. I think the reasoning for this sentiment was nicely addressed in this article:

[this is a reference to another case STAPLES v U.S.]

"In contrast to possessing inherently danger- ous articles such as hand grenades or hazard- ous waste (both of which are heavily regulat- ed and both of which ordinary people would know are not innocently possessed), the pos- session of a pill or a powdery or leafy sub- stance would not by itself put the defendant on notice that he was likely violating the law."

The classic Berman defense: "I didn't mean to!" doesn't really work when you have a grenade in your hand--or a loaded bear hunting rifle in your backpack There is a reference to a "laugh test" implemented by the courts in determining when defendant's in drug cases say "I didn't know that was cocaine". The terms of the "laugh test" are not really spelled out and I don't really think I can articulate them either. But, it seems that there is a need to do so considering Due Process is on the line.

Posted by: Christopher Sponseller | Sep 10, 2013 8:45:08 AM

The paper is essentially making a slippery slope argument, but they don't go very far in fleshing out what lies at the bottom of the slope. I assume its something decidedly Orwellian, but it isn't clear. I recognize that strict criminal liability is very tricky, but maybe someone can help me figure out why it should be as scary as this paper suggests. Could it be that this is just seen as a total rejection of retributivism?

Posted by: Ben Wallace | Sep 10, 2013 5:24:23 PM

I guess I wonder if we have already gone too far and have a fight in front of us to bring this back to a reasonable standard. In the Dillard example, a close relative borrowed your hunting rifle to pursue a legal activity (dependent upon the hunting laws in the area). This has occurred quite frequently and you have never been returned a rifle that was loaded. Over the course of picking up your rifle, you say hello to your father-in-law and take the already packed rifle home. While carrying such a loaded weapon is indeed dangerous, are we really prosecuting Dillard for carrying the rifle or for not taking the time to check the weapon? I believe we are saying he is guilty for failing to check the weapon before taking it home.

If this is the case, wouldn't Stephens be liable for a similar failure to act in his case in Florida? Someone transporting something should, by reasonable means, be aware of what he/she is transporting. Thus, if he didn't inspect the goods, then it was his failure to do so that is now the crime in question. I understand that the transportation of goods and the carrying of a weapon are different, but they amount to similar concepts. If Dillard is guilty of committing a crime, then Stephens should also be able to be found guilty of committing a crime.

In the end, I feel the Dillard case represents the fact that we already crossed the line discussed in this article (I believe based on my quick reading that the author would agree). If we do not want to overturn such strict liability crimes, then the next question would be related to where we draw the line. I know many people feel guns are more dangerous than drugs, but would you feel more comfortable with Dillard carrying a loaded rifle or a truck driver transporting oodles and oodles of drugs? (Yes, I said oodles and oodles) If Dillard really is an experienced hunter with no knowledge of the rifle being loaded, I would argue the truck driver is committing the more dangerous act. His act will no doubt lead to the sale of illegal drugs that are guaranteed to do harm to the community while Dillard is highly unlikely to do harm seeing as he will simply take the rifle home and put it away. Thus, the line of where strict liability is reasonable and is not reasonable would be a hard one to define and could lead to further strict liability statutes that infringe upon our rights.

Remember, Benjamin Franklin once said "Anyone who trades liberty for security deserves neither liberty nor security."

Posted by: Michael Chapman | Sep 10, 2013 5:52:49 PM

This is my take on Dillard.

He had enough knowledge of what he was carrying that he should be expected to take certain precautions, but he failed to take the necessary precaution. He knew he was carrying a gun, and he has a duty to at least know whether it is loaded or not. I didn't grow up around guns, but I have learned how to use them as an adult. A fundamental principle of handling a firearm is that you must always know whether or not it is loaded and, generally speaking, you do not leave a gun loaded if you are not using it. Clearly Dillard's stepfather should have unloaded the weapon before he packed it away, but Dillard still has a responsibility, and, I would argue, an inherent duty, to check for himself. Any other gun users/owners care to weigh in?

Here is a hypo that I think is analogous to Dillard. Two people are on a road trip. It is just after dusk. The driver has neglected to turn on the car's headlights. The driver becomes fatigued and the two traveler's agree to switch places. Now, does the new driver have an obligation to check the headlights for herself, knowing that it was sensible, reasonable, and legally obligated for her companion to have already turned the headlights on? I think the answer is a resounding yes. This is a legally obligated act when driving a car in the dark.

Posted by: Ben Wallace | Sep 10, 2013 7:31:59 PM

I think one of the most compelling resolutions to this debate of strict liability and mens rea has been that stict liability should only be able to impose fines, not jail time. I have a hard time letting people completely off the hook when they aren't being very vigilant, or using common sense (check the package to see if it contains illict drugs, make sure the gun isn't loaded before you go in public) even if they don't have intent to commit that crime. Poor choices and endangering the public aside, I don't think they deserve extreme jail sentences for "mistakes" or "I didn't know!" situations.

However if the crime is serious enough to constitute jail time, I think establishing all the pieces of the crime whether it be voluntariness/act/omission/intent, etc. become critical in ensuring due process.

Posted by: Kristin V | Sep 10, 2013 7:59:17 PM

To Ben's point, then I would argue we simply have to prove negligence to prove intent. Thus, the crime would be argued as a failure to act in a reasonable manner to check the gun (which is sufficient to meet the act requirement). From there, if a reasonable person would be expected to check the gun to make sure it weren't loaded, failing to act is negligent and shows a sufficient intent in that Dillard knowingly did not check the firearm. Bing, bang, boom, we have now met the act requirement and the intent requirement. While the intent is still flimsy at best, we can still argue that for the cause of public safety knowingly failing to check the gun is sufficient intent. We could then allow Dillard to provide an affirmative defense of prior history to potentially show that on numerous occasions he had checked the weapon and therefore had reasonable circumstance to believe the gun would not be loaded. At that point, we leave to a jury to decide whether there was sufficient intent on Dillard's behalf or whether his affirmative defense is deemed sufficient so as to preclude him from being found guilty. The burden goes on Dillard to prove his defense, but we also don't completely abandon the idea of intent. Seems like a reasonable compromise in my opinion, unless you do not feel a jury would be able to make that determination.

Posted by: Michael Chapman | Sep 10, 2013 9:21:34 PM

Good point. Negligence is essentially what we are talking about here, although not necessarily legal or criminal negligence.

Posted by: Ben Wallace | Sep 11, 2013 8:51:46 AM

I think the Heritage Foundation makes some interesting points on climate change.

Posted by: Fatkat Jack | Sep 12, 2013 5:25:12 PM

The comments to this entry are closed.