February 2012 Vol. 110 No. 4 THE REVIEW

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 problem 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 framework could inform judicial efforts to accommodate and constrain new criminal strict liability laws.

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