Michael Serota (Arizona State University, Sandra Day O'Connor College of Law, Academy for Justice) has published "Strict Liability Abolition" on SSRN. Here is the abstract:
This Article reinvigorates the case for abolishing strict liability in the criminal law. Undertaking an intellectual history of mens rea policy, I spotlight two fundamental assumptions that have fueled strict liability’s historic rise and current deprioritization in this time of criminal justice reform. One assumption is that eliminating culpable mental states from criminal statutes is an effective means of reducing crime rates. The other is that adding culpable mental states to criminal statutes is an ineffective means of lowering imprisonment rates or promoting racial justice. This Article argues that both of these assumptions are wrong. Synthesizing decades of social science research, I first explain why there is little reason to believe that strict liability promotes public safety. Next, building upon the first-ever legal impact study of an individual mens rea reform, I explain how adding culpable mental states to individual criminal statutes could reshape charging practices and conviction rates. I then demonstrate the racial justice benefits of universal mens rea standards by highlighting the concentration of strict liability in offenses disparately enforced against people of color. Through this deeper understanding of mens rea policy, the Article reveals just how strong the case against strict liability is, and why across-the-board imposition of culpable mental state requirements is an important tool in the fight against mass incarceration.
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