Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause

57 Pages Posted: 30 May 2014 Last revised: 3 Jun 2014

Date Written: May 28, 2014

Abstract

The Supreme Court long ago rejected due process challenges to the government’s use of strict liability offenses, but the Court has never considered the issue of whether imprisonment for such crimes violates the Cruel and Unusual Punishments Clause. Being unable to persuade the Court to forbid strict liability crimes altogether, defendants incarcerated for those crimes are likely to argue that their punishment is cruel and unusual. It therefore may not be long before the courts, including the Supreme Court, must finally address the issue. When that day arrives, the Court should limit the penalties that can be imposed for strict liability crimes by forbidding any period of incarceration altogether or, at least, by outlawing imprisonment. The Constitution should not allow a person to be imprisoned for committing a strict liability offense.

Keywords: Strict liability, strict liability offenses, strict liability crimes, Due Process Clause, Eighth Amendment, Cruel and Unusual Punishments Clause

Suggested Citation

Larkin, Jr., Paul James, Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause (May 28, 2014). Harvard Journal of Law and Public Policy, Vol. 37, No. 1065, 2014. Available at SSRN: https://ssrn.com/abstract=2442899

Paul James Larkin, Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

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