Strict Liability, Negligence, Risk

Not only did the law elbow its way into citizens' heads, criminalizing their intent to harm before any actual offense, but it also broadened its remit to punish acts without any intent at all.

Strict liability punished actions society wanted to eliminate wholly, regardless of why they had happened. Starting in the late nineteenth century, it was adopted widely as dense urban civili­zation's precariousness reinforced the necessity of discouraging harmful behaviors outright.²³² In theory, punishing on the basis only of negligence led to a socially inefficient underpricing of risk. If those engaged in potentially dangerous activities followed only the standard of due care required, they would escape liability for harm caused nonetheless. In contrast, holding them accountable in every instance—negligent or not—forced them to price in the true cost of harm.²³³ The development of strict liability placed the burden of risk on those best able to reduce it, the cheapest-cost avoider—in the case of product liability, for example, on produc­ers.²³⁴ A spate of flooding disasters involving mines and reservoirs in the mid-nineteenth century spurred on the use of strict liabil­ity in the United States.²³⁵ Manufacturers were later held account­able for product defects (food adulteration), and highly hazardous enterprises, such as nuclear power and aviation, were governed by strict liability.²³⁶ Statutory rape and bigamy were also strict-liability offenses.

Vicarious liability extended this logic, holding the head of a cor­poration responsible for the actions of underlings. The aforemen­tioned bartender would be strictly liable; the absentee owner of the establishment vicariously liable.²³⁸ Regulatory offenses were often of this nature, too. They brought the penal code to bear on offenses such as the sale of adulterated food or drink, child labor, and envi­ronmental violations.²³⁹ As of the mid-1980s, the statutes regard­ing such violations dramatically expanded in the US. Violations of federal agency rules were now routinely punished as felonies, with more than three hundred thousand federal regulations thus enforced. Accomplices, too, were held accountable for the acts of their co-offenders, even though they themselves had neither done nor even intended to commit a crime.²⁴⁰

Not only was intent criminalized, but the number of other men­tal states that rendered actors culpable also expanded. Offenders were increasingly held liable for negligence, not just for deliberate harms.²⁴¹ Though offenders had not intended harm, they were guilty if they had not sufficiently anticipated its likelihood. They were punished not for intent but for not having the knowledge of the potentially danger­ous situation or the insight they should have had.²⁴² A certain stan­dard of conduct was expected from law-abiding citizens, and those who failed to achieve it were penalized.²⁴³ The concept of negligence thus punished offenders not for their intent but for their ignorance.

Negligence had long been prosecuted. In Hebrew law, a bull known to be dangerous that gored again was to be stoned, and its owner killed, too. Roman law punished negligent behavior that might lead to injury.²⁴⁵ If a beast's owner refused to curb it, Wessex laws of the eighth century allowed those whose crops it damaged to kill it. A century later, owners of animals that repeatedly caused harm were punished on a sliding scale.²⁴⁶ By the nineteenth century, however, animals were acknowledged to lack intent and ceased being punished. They were no longer treated as purposive actors, but now largely as property. Their owners were culpable if they had acted neg­ligently, allowing their charges to harm.²⁴⁷

Though of venerable concern, negligence was increasingly put to work as technological sophistication multiplied the consequences of inattention far beyond the realm of dangerous domestic crea­tures. From the 1870s in Europe, laws began holding liable those who increased risks of harm to others.²⁴⁸ By the 1920s, criminal negligence was being identified as separately punishable. Reckless- endangerment statutes later in the twentieth century took matters a step further. Negligent offenders did not realize the danger they put others in, but reckless offenders ignored it; they were consciously negligent.²⁴⁹ Ignoring the potential consequences of actions also became punishable, as did bringing about even the possibility of dan­ger. If an act or omission by someone who did not mean to endanger another created a risk, that person could still be punished.²⁵⁰ British law did not punish endangerment as such. But the US Model Penal Code included a general offense of recklessly engaging in conduct that placed others in danger of death or serious bodily harm. Ger­man law punished not only the endangering of life and property but even abstract endangerment, including slander that might stigmatize someone.²⁵¹

Moreover, general endangerment offenses did not require proof of actual or likely danger.

The law thus narrowed from its earlier blunderbuss approach. It now left many behaviors to the private sphere, where citizens made their own decisions, largely unencumbered by official attention. But in those areas still subject to law and in those newly brought under its umbrella, the authorities both broadened and deepened their remit. At first, most harms had been punished regardless of intent. The requirement of a mens rea then narrowed crimes to intended acts, sanctioning only those that deserved it. At the same time, the concern with intent also prompted the authorities to delve into citi­zens' minds, punishing them for their thoughts and ambitions, not just for their acts, and padding the roster of possible offenses. Mean­while, negligence and recklessness also reversed the focus brought by the mens rea requirement, once again punishing acts regardless

From Retribution to Prevention 245 of intent.²⁵⁵ Civil law nations were happy to prosecute even acts presupposing no intent, such as negligent arson, while the com­mon law countries upped the ante with strict liability, where the act alone, regardless of intent, was actionable. More behaviors than ever thus fell under the authorities' purview, and the state also drilled into its subjects' minds, seeking to ferret out intentions and anticipate crimes in the making. The ever-expanding law may have provided the blueprint, but the boots on the ground belonged to the police, the sharp end of the state's enforcement stick to which we now turn.