Abstract
Strict liability crimes—crimes that do not require a criminal intent—are outliers in the world of criminal law. Disregarding criminal intent risks treating the blameworthy the same as the blameless. In a different galaxy far, far away, mandatory sentences—sentences automatically imposed upon a criminal conviction—are unconstitutional in certain contexts for the exact same reason. Mandatory death sentences risk treating those who do not deserve death the same as those that might. Two completely separate contexts, two parallel rules of law. Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole. Indeed, equity in criminal sentencing may depend upon recognizing the connections between these parallel universes. This Article aims to fill this analytic gap, proposing a rethinking of mandatory sentences in light of the way criminal law treats strict liability crimes. Specifically, the Article argues that courts should reconceptualize mandatory sentences as a type of strict liability. To that end, it proposes a series of possible statutory and constitutional limits on mandatory sentences.
INTRODUCTION
What’s good for the goose is good for the gander.
--Ancient Proverb
Strict liability crimes—crimes that do not require a criminal intent—are outliers in the world of criminal law.1 Generally, the law imposes criminal liability only where a person has some form of criminal intent. In some form or fashion, to be guilty one must have a guilty mind.2 Indeed, even when a statute omits a criminal intent element, the Supreme Court often reads an intent requirement into the statute to avoid the imposition of strict liability.3 The Court does this, it has explained, because criminal intent can be what separates criminal acts from innocent ones.4 Disregarding criminal intent risks treating the blameworthy the same as the blameless.5
In a different galaxy far, far away, mandatory sentences6—sentences automatically imposed upon a criminal conviction—are unconstitutional in certain contexts for the exact same reason.7 In capital cases and juvenile life without parole (“JLWOP”) cases, the Supreme Court has read an individualized sentencing requirement into the Eighth Amendment.8 So, in these serious cases—cases where a person’s life is at stake or, in the juvenile context, life without parole is a consequence—courts must always consider the culpability of the defendant.9 As the Court has explained, failure to consider individualized characteristics of the defendant and his conduct, in these most serious of cases, risks treating those who do not deserve death or JLWOP the same as those that might.10
Two completely separate contexts, two parallel rules of law. Yet courts and commentators have failed to see the similarities between these two worlds, leaving an analytical black hole in the understanding of how and why these parallel universes exist, and what one might learn by recognizing the connections between them. How the treatment of strict liability crimes might speak to the appropriate limits on mandatory sentences is a question that has entirely escaped notice. Indeed, equity in criminal sentencing may depend upon this relationship. The Court has been aggressive and consistent in safeguarding the sanctity of the criminal intent requirement, at least with respect to federal statutes.11 But in the mandatory sentencing context, its protections have been robust only with respect to death and JLWOP sentences.12 The sentencing process ignores the culpability of the defendant in other mandatory sentencing contexts, giving piecemeal protection that protects some but not others.13
This Article aims to fill this analytic gap, proposing a rethinking of mandatory sentences as a kind of strict liability. This analysis seems particularly needed in light of the largely ignored commonalities between limits on strict liability and on mandatory sentences. Mandatory sentences remove consideration of the culpability of the defendant in imposing punishment. At their core, culpability and intent are corollary principles.The reasons why mandatory sentences amount to a genre of strict liability relate to what such sentences foreclose.
As such, the Article argues that the same limits on strict liability crimes should apply to mandatory sentences. First, it proposes a limit on mandatory sentences based on the category of crimes in which courts allow strict liability—public welfare crimes.14 Alternatively, the Article proposes a limit based on strict liability in practice—suggesting that mandatory sentences, as a type of strict liability, only be available for strict liability crimes.15
In Part I, the Article describes the justifications for the use of strict liability in criminal cases and the limits courts place on its use. Part II explores the justifications for mandatory sentences and the limits courts have placed on their use. Part III explains why courts should treat mandatory sentences as a genre of strict liability. Finally, in Part IV, the Article maps possible “strict liability” limits on the use of mandatory sentences.
I. LIMITS ON STRICT LIABILITY
Most crimes require that the government prove that the defendant committed a criminal act and possessed a culpable mental state, known as his mens rea.16 This mens rea requirement is central to the classification of the crime and the punishment imposed.17
Crimes that do not require a mens rea are strict liability crimes.18 Strict liability criminal statutes punish behavior irrespective of the intent of the defendant.19 The rationale behind strict liability crimes relates to the need of the government to deter the kind of criminal behavior in question in all situations, irrespective of the reason for engaging in such behavior.20
These kinds of crimes include public welfare crimes, offenses where the public welfare demands punishment for transgression.21 Unlike traditional common law crimes, public welfare crimes justify the use of strict liability based in part on tort law considerations.22 In cases of dangerous goods, for instance, manufacturers remain in the best position to bear the risk and prevent the harm.23 Using strict liability, legislatures can ensure uniformity in conduct in such situations.24
In other situations, such as speeding or parking in a spot reserved for individuals with disabilities, the concept of public welfare seeks to prohibit the act, period.25 These bright-line rules exist to dissuade individuals from engaging in the proscribed behavior.26 One’s intent in engaging in the behavior does not matter.27
With the exception of these public welfare crimes, the Supreme Court disfavors strict liability crimes, often choosing to infer a mens rea even where a statute does not contain one.28 The Court reasons that one’s intent usually matters—a premeditated act warrants a more serious punishment than a negligent one.29
Thus, strict liability crimes only require proof of a criminal act to establish guilt.30 As explored below, the elimination of the intent requirement—the mens rea—has clear advantages, but these advantages have limits.31 American strict liability crimes apparently originated with nineteenth century cases allowing the conviction of a bartender for selling liquor to a habitual drunkard without knowledge of the buyer’s nature and cases allowing for convictions of selling adulterated milk even though the defendant did not know of the adulteration.32
This was a departure from the common law tradition of requiring that all crimes have an element of criminal intent.33 Blackstone famously stated that for an action to constitute a crime, there must be a “vicious will.”34 And Oliver Wendell Holmes echoed the same sentiment, explaining that “even a dog distinguishes between being stumbled over and being kicked.”35
A. The Limited Justification for Strict Liability
When the state does not have to prove criminal intent to convict an individual of a crime, as in the case of strict liability, it only has to prove beyond a reasonable doubt that the individual committed the criminal act or acts required to establish the crime.36
The act in question must satisfy the basic requirement that the individual committed it voluntarily.37 In some cases,omissions can count as acts.38 But whether an act or omission, it is easy to establish in most cases whether someone did or did not engage in a particular behavior.
For the prosecutor, the much more difficult part in non-strict liability cases is proving criminal intent.39 In rare cases, individuals verbalize their criminal intent.40 In most cases, however, juries must impute a particular intent to an individual in light of their behavior.41 In other words, a person’s actions, coupled with other circumstantial evidence, must demonstrate the requisite intent required to be guilty of a crime.42
With strict liability crimes, proof of the act is enough for conviction.43 This makes the case much easier to prosecute.44 There are fewer elements to prove, and the direct evidence can establish these elements in most cases.45 The act, or failure to act, is the only question—did the defendant do it or not?46
Another direct consequence results from the ease of prosecution. Defendants have a strong incentive to plead guilty to strict liability crimes.47 This is particularly true where any trial penalty exists at all, such that the consequence of rejecting a plea bargain and going to trial is likely to be a more severe sentence.48 A defendant guilty of a strict liability crime will typically have no real case to make at trial.49 In the strict liability context, the justification or excuse for engaging in the act simply does not matter.50 The mental state of the defendant is not at issue. Even if the defendant had a good reason for engaging in the proscribed conduct, the defendant is guilty.51 As such, a defendant has a strong incentive to plead guilty in strict liability cases.52
In addition to the advantages of ease of prosecution and the concurrent efficiency that can result from quick plea bargains, strict liability has other advantages for the state related to the proscribed conduct itself. With respect to the strict liability crime, the state has more direct control over the conduct in question because of the ease of prosecution.53 Simply by providing a police presence or surveillance, the government can significantly limit the acts in question to the extent that they take place in public.54
Similarly, strict liability can serve as a tool to deter the criminal acts in question. The careful policing of such acts and the subsequent surety of prosecution can enhance the ability to deter the crime.55 The deterrent effect will relate, in part, to the undesirability of the punishment for the act, but to the extent that the quantity and quality of punishment can deter, removing any intent requirement will enhance the deterrent effect of the prohibition.56
B. When and Why the Court Limits Strict Liability
Given the inherent advantages of strict liability criminal statutes, one might think that such crimes are generally desirable in a state’s criminal justice code. In fact, the opposite is true. The United States Supreme Court has consistently denounced strict liability interpretations of federal statutes.57
The Court’s view of the need for proof of criminal intent prior to criminal conviction has caused it to read mens rea requirements into statutes even though there is no accompanying statutory language supporting such a reading.58 A classic example of this approach came in Morissette v. United States.59 In Morissette, the Court held that strict liability is not appropriate for crimes other than public welfare offenses, even if the statute does not mention any requisite mental state.60 The government charged Morissette with violating 18 U.S.C. § 641, which proscribes the conversion of government property.61 Morissette found spent bomb casings while he was hunting on government property, and sold them for salvage for eighty-four dollars.62 He claimed that he thought the property was abandoned.63
The statute did not include a mens rea—its text proscribed the embezzlement, stealing, or purloining of government property.64 Looking to the long tradition of requiring intent in larceny-type offenses, the Court decided that the statute implicitly contained an intent requirement.65 With respect to common law crimes, the Court found that it should infer an intent unless Congress explicitly excludes it.66 As a result, a jury would have to find that Morissette knew he was stealing government property to be guilty under the statute.67
The Morissette Court distinguished two prior decisions that had read federal statutes as strict liability statutes.68 It explained that those statutes were public welfare statutes—a category of crimes with a different character.69 Unlike common law crimes, public welfare crimes “are in the nature of neglect where the law requires care, or inaction where it imposes a duty.”70
The Court’s view of the importance of mens rea has even led it to read a mens rea requirement into a public welfare offense.71 In Staples v. United States,72 the Court considered whether theNational Firearms Act73 contained a mens rea requirement with respect to the kind of gun one possessed.74 Caught in possession of a sawed-off shotgun, Staples claimed that he was unaware that the gun had been converted into an automatic weapon, which would trigger a registration requirement as a “machinegun.”75
Even though it had previously determined the same statute was a public welfare offense,76 the Court held that the statute as applied to Staples required the reading in of a mens rea requirement.77 In order to be guilty of possession of a machinegun without registration, Staples had to understand the nature of the gun such that he would be apprised of the registration requirement.78
While the National Firearms Act might be a public welfare statute for purposes of possessing grenades, according to the Staples Court, it was not in terms of possessing guns.79 The Court argued that unlike typical public welfare statutes that prohibit “deleterious devices or products or obnoxious waste materials,”80 the Firearms Act allowed for the possession of guns, which have a long tradition of private ownership and “can be owned in perfect innocence.”81 The Court also cited the significant penalty for violation of the statute—a ten year sentence—as a reason to support reading the statute like a common law statute with an intent requirement instead of a public welfare statute.82
While one can read Staples as a narrow decision reflecting differences in views about gun ownership, the Court’s willingness to read in a mens rea in this context underscores the deeper tradition of requiring a mental state for serious crimes.83 The Court has made clear that there is not “a precise line . . . for distinguishing between crimes that require a mental element and crimes that do not,” but it has established that mens rea is the rule to which strict liability crimes are the exception.84
Over the past few decades, there have been a number of examples of the Court applying its presumption in favor of a mens rea to all elements of a statute, not just the phrase modified by the mens rea term.85 This is even true where the phrase in question does not immediately follow the mens rea provision.86 As with the common law tradition of rejecting strict liability, the Court’s barometer for reading in a mens rea relates to the degree to which such a requirement can establish culpability and separate innocent conduct from criminal conduct.87
In the October 2021 term, the Court continued this practice in Ruan v. United States.88 Ruan involved two doctors, Xiulu Ruan and Shakeel Kahn, who were convicted of improperly prescribing opioids.89 The statute makes it a crime to knowingly prescribe controlled substances “[e]xcept as authorized.”90 The question before the Court was whether the “except as authorized” element had a mens rea requirement; in other words, whether the statute required the doctors to possess knowledge that their prescriptions were unauthorized for them to be guilty under the statute.91
Consistent with its prior cases, the Court again eschewed strict liability in favor of an intent requirement.92 It held that the government had to establish subjective knowledge on the part of the doctors that their prescriptions deviated from the standard of professional practice.93
As before, the Court emphasized the importance of criminal intent: “[C]onsciousness of wrongdoing is a principle ‘as universal and persistent in mature systems of criminal law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.’”94 This presumption of scienter means that the Court reads into the statute a mens rea, even though the statute is silent, in order to separate wrongful conduct from otherwise innocent conduct.95 Here, the Court viewed the question of whether the doctors knew about the lack of authorization as the key fact which determined whether their behavior was criminal.96
C. Where Strict Liability Persists
Despite the general disfavoring of strict liability crimes by courts and legislatures, these crimes still persist in most jurisdictions. The public welfare distinction from the Court’s decision in Morissette explains most of these offenses, but further investigation is instructive.97
1. Statutory Rape, DUIs, and Felony Murder
In addition to public welfare crimes, three categories of more serious crimes often fall within the scope of strict liability crimes.98 Statutory rape offenses, for instance, are often strict liability crimes.99 The act of having intercourse with a minor when one is above a certain age does not require knowledge of the minor’s age to constitute a crime.100 Legislatures in many jurisdictions care so much about deterring this kind of sexual activity that they punish it under all circumstances irrespective of the knowledge of the participants about their respective ages.101
A second common category of strict liability crimes involves driving under the influence (“DUI”) of alcohol.102 The same rationale that justifies strict liability in statutory rape cases supports its application in DUI cases. The state has a strong interest in deterring DUIs as they threaten the lives of those committing the DUI, other drivers, and pedestrians.103 One’s criminal intent is thus, as with other strict liability crimes, irrelevant and not required to prove guilt.
The third common category of strict liability crimes are felony murders.104 These crimes are not purely strict liability, as felony murder statutes require some level of intent on the part of the defendant with respect to the underlying felony.105 But with respect to the homicide, felony murder statutes are strict liability.106 As long as one intended to commit the underlying felony, one is responsible for any homicide that occurs during the felony even where one did not kill or intend to kill.107
Felony murder is an example of the deterrence logic of strict liability crimes taken to an extreme.108 The argument is that the risk of death in the commission of a felony justifies ignoring the culpability of the defendant with respect to the homicide.109
2. The Limits of the Model Penal Code
The Model Penal Code’s proposed reforms included placing limitations on strict liability statutes consistent with the Supreme Court’s presumption against crimes without a scienter requirement. Specifically, the Model Penal Code (“MPC”) provides both that when a statute omits a mens rea requirement for a statutory element, that element is presumed to include some level of criminal intent, and that explicit mens rea terms apply to all material elements of a statute.110
Professor Darryl Brown’s excellent Duke Law Journal article documents the scope of state limits on strict liability crimes.111 He found that only twenty-four states use one or both of these two presumptions against strict liability—reading in a mens rea and applying the mens rea term to all material elements.112 Even in those jurisdictions, he cites several categories of cases where courts do not follow the presumption against strict liability.113 And legislatures have modified the MPC provisions, as well as adopted their own categories of strict liability crimes.114 Brown concludes that in many cases some level of culpability is sufficient, even where a number of elements do not require mens rea, as long as the culpability makes the conduct in question not purely innocent.115 Within the general presumption against strict liability crimes, then, states often have a less dogmatic approach than the Supreme Court, particularly with respect to individual elements of crimes.
II. LIMITS ON MANDATORY SENTENCES
Mandatory sentences, like strict liability crimes, face limitations. Under the Eighth Amendment,116 the Court has held that mandatory death sentences constitute cruel and unusual punishment.117 More recently, the Court has found that mandatory juvenile life without parole sentences also violate the Eighth Amendment.118
With respect to the imposition of the most serious sentences—the death penalty and JLWOP, the Court has determined that criminal defendants deserve individualized sentencing consideration.119 This is because in individual cases, mitigating circumstances might exist that make the imposition of the mandatory sentence excessive or unfair.120
While the Court has placed Eighth Amendment categorical limits on mandatory death and JLWOP sentences, it has not placed such limits on other mandatory sentences, even though they are likely to generate unfair outcomes based on their very nature of denying courts the ability to consider criminal culpability.121 In short, mandatory sentences remove sentencing discretion.122
Part of the reason courts have not limited mandatory sentences further is the absence of an intelligible limit outside of very serious punishments that would delineate when mandatory sentences are less appropriate.123 The Supreme Court’s unwillingness to expand the Eighth Amendment in light of a general deference to punishment practices of state and federal governments has meant that mandatory sentences have escaped further scrutiny.124
A. The Limited Justification for Mandatory Sentences
As with strict liability crimes, justifications exist for the use of mandatory sentences. Two corollary categories—sentencing uniformity and limits on judicial discretion—explain the decision to use mandatory sentences.125 In the abstract, these justifications carry significant weight but rest on a number of implicit assumptions which are not likely to be true.
1. Sentencing Uniformity and Judicial Limits
On their face, mandatory sentences evoke a sense of justice because they impose the same punishment on individuals who commit the same crime. The simple idea is that two people who engage in the same kind of conduct deserve the same punishment.126
When judges or juries have discretion to sentence a particular individual, it creates an opportunity to contravene this principle.127 Mandatory sentences cure this problem by taking discretion away from the judge to sentence one individual differently than another when guilty of the same crime. They thus, in theory, remove arbitrariness from sentencing outcomes.
Federal Judge Marvin Frankel infamously raised this complaint with respect to the imposition of federal criminal sentences in the late 1970s.128 He argued that variations in the exercise of sentencing discretion could have the effect of undermining the rule of law.129 After the release of Frankel’s influential book, Congress adopted mandatory sentencing guidelines.130
2. Implicit Assumptions
For mandatory sentences to reflect the maxim that the courts are punishing similarly situated defendants in the same way, a number of implicit assumptions must be true. A cursory examination of such assumptions reveals that they are unlikely to exist.
First, mandatory statutes must punish the same conduct to be consistent.131 Statutes, however, often encompass a number of kinds of criminal conduct.132 This means that all criminal violations of a particular statute do not deserve the same punishment. The most obvious example is felony murder, which gives the same guilty verdict to a getaway car driver for a robbery-murder as the person who pulled the trigger.133 One person did not commit a homicidal act and did not intend to commit a homicidal act; the other person committed a homicide and intended to shoot, if not kill.134 Statutes can thus be overinclusive by categorizing two clearly different kinds of conduct as the same crime.
Second, mandatory sentences assume that prosecutors exercise their discretion consistently.135 Prosecutors exercise discretion about whether and how to charge a person.136 This decision controls the criminal sentence given the high percentage (90%) of criminal cases that result in a plea bargain.137 Prosecutors often allow one participant to plead to a lesser crime in exchange for testifying against a co-conspirator.138 The result of plea bargains is that individuals who engage in the same conduct often plead guilty to different crimes.139
The overlapping nature of crimes in both state and federal codes exacerbates this problem.140 Prosecutors can charge the same conduct under a number of crimes, which, even in a mandatory sentencing scheme, would have different outcomes.141
It is thus unlikely that mandatory sentences will treat similar cases in similar ways. Instead, they simply move the exercise of discretion and the corresponding disparity in outcomes from judges to prosecutors.142 Whether prosecutors or judges will exercise discretion more consistently and evenhandedly is debatable.
The difference, however, is that the public can observe the decision-making of the judge.143 The exercise of prosecutorial discretion is largely hidden.144 The most likely consequence of mandatory sentences is not to eliminate sentencing disparity, but to make sentencing less transparent by reallocating it from the judge to the prosecutor.145
A final concern about mandatory sentences gives rise to the Court’s cases in this area. When juries understand that the consequence of a guilty verdict is a mandatory sentence, jury nullification is possible and perhaps likely if the jury finds the sentence to be excessive.146 Historically, this has been particularly true in capital cases.147 In such cases, jurors realize that the consequence of finding a defendant guilty is a death sentence. Even though they think the defendant is guilty, such jurors will engage in jury nullification and find the defendant innocent in order to avoid the draconian consequence of the mandatory death penalty statute.148
B. When and Why the Court Limits Mandatory Sentences
The Eighth Amendment concept of placing limits on mandatory sentences through individualized sentencing requirements originated with the Supreme Court’s death penalty cases of the 1970s.149 More recently, the Court expanded this doctrine to JLWOP sentences.150
In McGautha v. California, 151 the Supreme Court considered whether the lack of jury guidance in capital cases violated the procedural due process requirements of the Fourteenth Amendment.152
The Supreme Court rejected this claim in a narrow 5–4 decision.153 The Court’s reasoning related to the role of the jury in capital cases, finding that nothing in the Constitution prohibited delegating the sentencing determination to the “untrammeled discretion” of the jury.154 Having documented the long history of jury nullification in capital cases where states imposed mandatory sentencing procedures, the Court found that allocating wide discretion to the jury was vastly preferable.155 In particular, the Court was concerned that placing mandatory limits upon capital sentencing determinations might inhibit the jury from considering facts that could or should influence the outcome.156
The Court essentially reversed the substance of its decision in McGautha one year later in Furman v. Georgia,157 where the Court held that the death penalty, as applied, violated the Eighth Amendment.158 Part of the concern of some of the concurring opinions related to the absence of guidance for jury determinations in capital cases—essentially the same concern raised in McGautha.159 Justice Potter Stewart famously likened receiving the death penalty to being “struck by lightning,”160 and several other justices found its imposition to essentially be arbitrary or random.161
In the aftermath of Furman, the states worked quickly to amend their capital statutes in hopes of reestablishing the death penalty.162 Georgia and other states adopted a system of aggravating and mitigating circumstances designed to narrow the class of offenders eligible for the death penalty.163 North Carolina and Louisiana decided instead to eliminate jury sentencing discretion altogether by adopting a mandatory death penalty statute.164 In these jurisdictions, first-degree murder convictions automatically resulted in a death sentence.165
At the end of the Court’s term in the spring of 1976, the Court reviewed these new approaches to capital sentencing under the Eighth Amendment.166 The Court upheld the Georgia approach of using aggravating and mitigating circumstances.167 By contrast, the Court rejected both the mandatory capital sentencing schemes of North Carolina168 and Louisiana.169
In Woodson v. North Carolina,170 the North Carolina statute at issue imposed a mandatory death sentence for first-degree murder.171 The statute defined first-degree murder as including premeditated murder, felony murder, as well as certain kinds of killings including poisoning, lying in wait, starving, and torture.172
The Woodson court held that mandatory death sentences violated the Eighth Amendment.173 Drawing on both McGautha and one of the dissenting opinions in Furman,174 the Court first reasoned that mandatory death sentences were inconsistent with the “evolving standards of decency that mark the progress of a maturing society.”175 This was because states had largely abandoned the practice of mandatory death sentences, and the only reason that North Carolina adopted its statute was to satisfy the Court’s decision in Furman.176 In other words, the Court determined mandatory death sentences were unusual punishments.177
Second, the Court explained that North Carolina’s statute did not solve the problem of unbridled jury discretion raised in Furman; it merely “papered over” the issue by adopting a mandatory death sentence for first-degree murder.178 From the Court’s perspective, allowing juries to determine guilt under a mandatory death statute made jury nullification likely, which created the same kind of arbitrary and random outcomes that result from jury sentencing in capital cases.179
The third constitutional shortcoming of North Carolina’s statute highlighted an important reason why mandatory sentences are problematic—they bar individualized sentencing consideration.180 The Court explained this shortcoming as the “failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.”181 This means that, at least in the capital context, the Eighth Amendment requires states to use a process that accords “significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.”182
What made the lack of individualized consideration so objectionable to the Court in Woodson was its consequence—the mandatory death penalty results in the execution of the criminal offender.183 As the Court emphasized, the North Carolina mandatory death penalty statute treated “all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.”184
The Court concluded its opinion by limiting the constitutional scope of its Eighth Amendment individualized sentencing approach to capital cases, even while acknowledging that such an approach constituted “enlightened policy.”185 Indeed, the Court in Woodson opined that the “fundamental respect for humanity underlying the Eighth Amendment” made individualized sentencing a “constitutionally indispensable part of the process of inflicting the penalty of death.”186
In Roberts v. Louisiana,187 decided the same day as Woodson, the Court likewise barred the use of mandatory death sentences in holding that Louisiana’s statute188 violated the Eighth Amendment.189 The Louisiana mandatory death penalty statute was narrower than the North Carolina statute in two ways—it limited the kinds of murder that counted as first-degree murder190 and it provided more guidance to the jury about lesser-included offenses.191
Nonetheless, the Court found that the differences were not material.192 Mandatory capital statutes, even if narrow, still violate the Eighth Amendment.193 The Court explained, “The futility of attempting to solve the problems of mandatory death penalty statutes by narrowing the scope of the capital offense stems from our society’s rejection of the belief that ‘every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.’”194 In reaffirming its decision in Woodson, the Court emphasized that Louisiana’s statute did not eliminate the “constitutional vice” of mandatory death statutes: the “lack of focus on the circumstances of the particular offense and the character and propensities of the offender.”195
The Court expanded the scope of its bar on mandatory capital sentences two years later in Lockett v. Ohio.196 The issue in Lockett was whether Ohio’s statute197 violated the rule from Woodson by restricting mitigating evidence at capital sentencing.198 Specifically, the Ohio capital statute limited mitigation at sentencing to situations where (1) the victim induced the offense, (2) the offense was committed under duress or coercion, or (3) the offense was the product of mental deficiencies.199 By limiting the available mitigating evidence, the statute essentially made an aggravated murder conviction a mandatory death sentence for offenders who did not exhibit the statutorily enumerated kinds of mitigating evidence.200
The Court held that the Ohio statute violated the Eighth Amendment.201 It cited its prior finding from Woodson that the Eighth Amendment required assessment of “character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.”202 This concept, the Court emphasized, comes from “the fundamental respect for humanity underlying the Eighth Amendment.”203
The statute’s shortcoming was the limitation it placed on mitigating factors at sentencing.204 It limited the consideration of mitigation evidence only to the enumerated mitigating factors and did not allow the court to consider other mitigating factors.205
The Court explained that the sentencing judge having “‘possession of the fullest information possible concerning the defendant’s life and characteristics’ is ‘highly relevant—if not essential—to the selection of an appropriate sentence.’”206 Under the Eighth Amendment, this included all relevant mitigating evidence.207
In deciding Lockett, the Court again emphasized that the nature of the death penalty made the individualized sentencing protection important in a way that did not extend to noncapital cases.208 The Court focused on the variety of posttrial techniques available to modify the imposition of the sentence in noncapital cases, such as parole, probation, and work furloughs, that in its mind, minimized the comparative seriousness of noncapital sentences.209
The Court again applied the Woodson-Lockett individualized sentencing rule in Eddings v. Oklahoma.210 In Eddings, the trial judge considered the relevant aggravating evidence at sentencing,211 but refused to consider the defendant’s mitigating evidence, aside from his youth.212 Specifically, Eddings had attempted to put on evidence of his family history of abuse as well as his severe psychological and emotional disorders.213
In assessing the decision by the trial judge to exclude mitigating evidence at sentencing, the Court held that the Eighth Amendment barred Eddings’ death sentence.214 The Court explained, “Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.”215 It further found that, in light of the age of the defendant (sixteen), evidence of Eddings’ childhood was very relevant.216 The Court concluded, “there can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant.”217
In Smith v. Texas,218 the Texas trial court gave a nullification instruction with respect to mitigating evidence in a death sentencing proceeding.219 The instruction limited the court’s consideration of mitigating evidence to the nullification of the two “special issues”—aggravating factors—under the Texas statute: (1) whether the offender committed the murder deliberately, and (2) whether the offender constituted a future danger to society such that he would kill again.220 In other words, the mitigating evidence could only be considered to the degree to which it bore on the required determinations of deliberateness or dangerousness. Smith’s mitigating evidence dealt with his intellectual disabilities, including a low IQ, as well as his family background.221
The Court applied Lockett and held that the nullification instruction violated the Eighth Amendment.222 Specifically, the Court explained, “[T]he key . . . is that the jury be able to ‘consider and give effect to a defendant’s mitigation evidence in imposing [a] sentence.’”223
In 2010, the United States Supreme Court opened the door to applying the Eighth Amendment in a more robust way to juvenile life without parole cases.224 Two years later, in Miller v. Alabama,225 the Court applied the Eighth Amendment to mandatory JLWOP sentences, broadening the individualized sentencing doctrine that originated in Woodson and Lockett.226
At the time of Miller, a number of states imposed mandatory life without parole (“LWOP”) sentences for juvenile offenders.227 In many cases, these sentencing schemes were not the original legislative design.228 Two major developments shaped the rise of juvenile LWOP sentences—the abolition of parole229 and the abolition of the juvenile death penalty.230
In the 1970s, many states began abolishing parole, particularly for more serious crimes like murder.231 This “truth-in-sentencing” movement eschewed the concept of rehabilitation in favor of retribution and incapacitation.232 The penal populism movement sought not to reform the offender, but instead to protect society from the offender.233 Many crimes that previously carried life with parole sentences thus became life without parole sentences because parole was no longer an option.234 This meant that sentences that were formerly fifteen years in length, as a practical matter, essentially became life sentences.235
Then, in 2005, the Supreme Court held that juvenile death sentences violated the Eighth Amendment in Roper v. Simmons.236 The effect of this decision was to commute juvenile death sentences to juvenile life without parole sentences.237 It also made juvenile life without parole sentences the most severe sentence in juvenile murder cases, moving some possible death sentences to life without parole sentences.238
In Miller, the Court considered whether mandatory juvenile life without parole sentences violated the Eighth Amendment.239 Relying on the Woodson-Lockett concept of individualized sentencing240 and the Roper-Graham idea that juveniles are different,241 the Court held that the Eighth Amendment requires a sentencing determination by a judge or jury before sentencing a juvenile offender to life without parole.242
With respect to the concept of individualized sentencing, the Court was particularly concerned that mandatory juvenile life without parole sentences “preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it.”243 The consideration of such characteristics was paramount precisely because the mandatory sentence would not allow the Court to take into account what often amounts to clear and significant differences between adult and juvenile offenders.244
Two years after Miller, the Court revisited this issue in Montgomery v. Louisiana245 in which it considered whether the decision in Miller applied retroactively.246 Under the Court’s retroactivity doctrine, the core question was whether the holding in Miller, which proscribed the imposition of mandatory juvenile life without parole sentences, constituted a substantive rule or a procedural rule.247 Under Teague v. Lane,248 new substantive rules of constitutional law apply retroactively, while new procedural rules generally do not.249
The Court held that the Miller rule was substantive for retroactivity purposes and applied to pre-Miller juvenile life without parole sentences.250 The importance of this decision for the Woodson doctrine rests in the requirement that a sentencer give full and fair consideration to mitigating evidence.251 As the Court held, this is a substantive consideration.252 It requires more than a court simply allowing the offender to present mitigating evidence; it requires a court to actively consider such evidence, avoiding the pitfalls of mandatory sentences.253 The Court explained as follows: “Miller, then, did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’”254
That then is the virtue of limiting mandatory sentences—to assess whether, in light of the evidence, a punishment remains justified with respect to the offender in the case.255 While a punishment might seem to fit a crime in the abstract, it may not always do so in practice.256 As such, sentencing courts must consider aggravating and mitigating evidence in determining the appropriate sentence for an offender, at least in JLWOP and death penalty cases.257
C. Where Mandatory Sentences Persist
Mandatory sentences persist most significantly in two broad categories—as mandatory minimum sentences and as life without parole alternatives to capital punishment.258
Mandatory minimum sentences have a long history, at least in the federal system.259 They impose a minimum punishment for guilt of a particular crime.260 Many such crimes have resulted from “tough on crime” policies implemented in response to increases (or perceived increases) in criminality.261 These kinds of sentences continue to be ubiquitous throughout both state and federal sentencing schemes.262
In the context of the death penalty, many states impose mandatory sentencing alternatives for juries in capital trials.263 In other words, a jury can sentence the perpetrator either to death or LWOP.264 Some states include life with parole as a potential third option.265 In most cases, though, a conviction of a capital crime results in an automatic life sentence if the jury elects not to sentence the defendant to death.266
III. MANDATORY SENTENCES AS STRICT LIABILITY
Having outlined the justifications for strict liability and mandatory sentences, the doctrinal limits on each, and the places where each persists, this Article now makes the case that legislatures and courts should treat strict liability and mandatory sentences the same way. It then shows how that might work in practice.
Strict liability crimes omit consideration of criminal intent.267 Mandatory sentences omit consideration of criminal culpability at sentencing.268 These tools operate at different parts of a criminal proceeding: strict liability in the consideration of guilt;269 mandatory sentencing in the consideration of punishment.270 While they expedite the consideration of the issue at hand (guilt or sentencing), courts disfavor each because they omit consideration of something important—intent or culpability.271 Upon closer examination, though, what strict liability crimes and mandatory sentences omit is essentially the same thing.
A. Culpability and Intent Are Essentially the Same Idea
In most contexts, intent and culpability can be essentially the same thing, or at least corollary expressions of the same concept. The level of intent of one’s action correlates directly to how culpable or blameworthy they are for the criminal act.272 Indeed, the reason that courts disfavor strict liability crimes is that without intent, criminal defendants lack culpability.
Scholars often use the terms intent and culpability almost interchangeably.273 And the Model Penal Code seems to equate intent and culpability.274 The Model Penal Code terms the levels of criminal intent as “General Requirements of Culpability.”275 Specifically, it describes its limit on strict liability in terms of culpability:
Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.276
It then lists the various criminal intents as “Kinds of Culpability.”277
For practical purposes, measuring intent constitutes the same thing as measuring culpability.278 And leaving intent out of the assessment of guilt achieves the same thing as leaving culpability out of the assessment of punishment. Mandatory sentences are thus a kind of strict liability because they omit the same important consideration—culpability/intent.
B. Strict Liability Crimes and Mandatory Sentences Create the Same Unfairness
A second reason that legislatures and courts should treat mandatory sentences as a genre of strict liability is that they share the exact same negative consequence with their use. Strict liability crimes foreclose consideration of one’s criminal intent.279 This means that a decision-maker considering an individual’s guilt has no opportunity to consider how blameworthy that person might be for the crime in question.280
The possibility of some reasonable justification for the person’s criminal act, including that the conduct was accidental, remains outside of the determination of guilt. The unfairness that arises in such cases relates to the failure to consider the intent of the defendant in the determination of guilt.
Similarly, mandatory sentences punish a defendant without consideration of his culpability.281 This means that there is no consideration of aggravating or mitigating evidence in determining the sentence—the sentencing outcome is mandatory.282
Even when the mandatory part of the sentence is a minimum, it forecloses consideration of culpability to the extent that the determination would result in an outcome beneath the mandatory minimum sentence.283 As a result, any evidence concerning the defendant’s actions in committing the crime or the defendant’s character fails to enter the calculus in the determination of the criminal sentence.284 The unfairness that arises in such cases relates to the failure to consider the culpability of the defendant in the determination of the defendant’s sentence.
The similarity in unfair outcome further cements the notion that courts should treat strict liability and mandatory sentences in the same way. The judicial instinct is there, as demonstrated by the doctrine explored in the previous Part.285
But courts have not made the connection that mandatory sentences are of the same character as strict liability crimes and therefore deserve similar restrictions. Indeed, courts have cabined the limits on mandatory sentences to constitutional limits, and then only applicable to the scope of the Eighth Amendment (which to date stops at capital and JLWOP cases).286
The same statutory limits that courts apply to strict liability crimes could also apply in assessing the appropriateness of applying mandatory sentences. The key to that kind of statutory analysis lies in the articulation of a reasonable line concerning when courts can eschew mandatory sentences for the same reason that courts eschew strict liability statutes. The court’s limits on strict liability provide the perfect roadmap for outlining the appropriate scope.287
Likewise, Eighth Amendment limits could apply as well if the court simply expanded its individualized sentencing doctrine.288 The limits here seem arbitrary and without legitimate justification.
The final Part of this Article explores how this might work in practice. It demonstrates how courts could treat mandatory sentences as a form of strict liability.
IV. STRICT LIABILITY LIMITS ON MANDATORY SENTENCES
As explained, courts address strict liability crimes and mandatory sentences in parallel manners. Both mechanisms contain the same kind of flaw. In the context of strict liability, courts find defendants guilty irrespective of their mens rea;289 in mandatory sentencing cases, courts sentence defendants irrespective of their individual culpability and personal mitigating characteristics.290 The importance of the neglected prerequisites—mens rea and culpability—has led courts in both contexts to place some limits on the use of strict liability and mandatory sentences, with more stringent restrictions on the former than the latter.291
To be sure, the Court’s division of death and JLWOP sentences as the only ones requiring individualized consideration irrationally discounts the seriousness of LWOP sentences, life with parole sentences, and even shorter mandatory minimum sentences. With seriousness being an inadequate tool to limit mandatory sentences, strict liability can offer principled bright-line rules that promote equity in criminal sentencing in the same way strict liability does with guilt determinations.
This Part argues that the limits on strict liability crimes should apply to all mandatory sentences, not just the death penalty and JLWOP. To complete this incomplete evolution, this Article offers two alternative statutory approaches292 before exploring a constitutional one.293
The first approach—the theoretical approach—uses the underlying rationale for limits on strict liability sentences as a basis for limiting such sentences.294 The application of this principle, as explored below, means that mandatory sentences should be limited to punishments for public welfare crimes.295 If the crime is a public welfare crime, a mandatory sentence is permissible; if it is not a public welfare crime, a mandatory sentence is not allowed.
The second approach—the practical approach—imports the actual limits on strict liability crimes as limits on mandatory sentences.296 As explored below, the application of this approach restricts mandatory sentences to strict liability crimes.297 If a crime is a strict liability crime, a mandatory sentence is allowed; if it is not a strict liability crime, a mandatory sentence is not allowed.298
A. Statutory Limits
The decision by courts to disfavor strict liability crimes does not emerge as a constitutional limit on strict liability. Rather, as explained, it emerges as a matter of statutory construction.299 Courts read a mens rea element into the statute to preclude a conviction without intent.300
This subpart contemplates reading in similar culpability requirements to mandatory sentencing statutes. Even with mandatory minimums, the Court could require some level of culpability as a matter of statutory interpretation, just as the Court has done with strict liability statutes. And the limits on mandatory sentences could come from strict liability, as mandatory sentences are a genre of strict liability.
1. Strict Liability as a Theoretical Limit on Mandatory Sentences
The Court allows the use of strict liability, generally speaking, in public welfare crimes.301 As explored above, the Court considers these kinds of crimes to be of a different character than the traditional common law crimes now codified in state and federal statutes.302 Specifically, public welfare crimes do not involve crimes of violence against the person or otherwise relate to the level of criminal intent of the defendant.303
Instead, public welfare crimes are regulatory offenses—rules put in place by the state to encourage behavior that structures particular actions in a society.304 For instance, highways can function well if all of the drivers subscribe to the same set of rules and travel at an appropriate speed for the particular thoroughfare.305 Similarly, reserving certain parking spaces for disabled individuals is also an important interest of society.306
As such, the reason that one has for breaking these rules is not important. What is important is that they broke the rules and caused the disruption in the first place.307 That is why the criminal intent does not matter and is not part of the crime.308
This approach has the value of deterring individuals from breaking the rule, as the consequence is clear and unambiguous.309 Indeed, the justification for strict liability offenses relates, in part, to the desire to deter individuals from violating the regulatory norm.310
Even so, bright-line rules still have the problem of being unfair in the unusual case at the margins—the unusual exception to the rule.311 The lower range of punishment for public welfare crimes helps mitigate this potential unfairness.312
For instance, one may have a really good reason for driving in excess of the speed limit, but if one disregards that reason to impose the punishment of a fine as part of a strict liability regime, the consequence is not particularly severe.313 Indeed, the predictability and need for consistency in conduct often will outweigh the risk of unfairness at the margins.314 Or at the very least, the value of the public welfare crime will make potential unfairness in rare cases a tolerable cost of such a regime—unfair to a few but advancing the greater societal good.315
The application of the general public welfare approach of strict liability crimes to mandatory sentences is straightforward and appealing. Given the similar character of these two constructs,316 mandatory sentences would be limited to public welfare crimes. In other words, state legislatures and Congress could continue to use mandatory sentences, but only for public welfare offenses.
All other sentences would require an individualized sentencing consideration—a weighing of offender culpability,317 just as all other crimes would require a consideration of mensrea—a consideration of the criminal intent of the offender.318 Because strict liability crimes principally reflect the different kind of non-common-law crime, mandatory sentences seem appropriate.319 A mandatory fine for speeding, for instance, seems appropriate.320 Indeed, some jurisdictions already impose mandatory sentences for public welfare offenses.321
As a result, the concept of strict liability crimes—cabined as public welfare crimes—provides a clear, bright-line limit on mandatory sentences. Where mens rea is required for nonpublic welfare crimes, so also should culpability assessment be required for sentencing.
The connection between criminal intent and culpability perhaps bears more explication. The level of intent bears directly on the level of the crime. In homicide crimes, for instance, states separate murder from manslaughter based on the intent—the presence or absence of malice aforethought.322
But in assessing the punishment for manslaughter, for instance, there are a range of homicides that fall under the “without malice” category, such that individual culpability matters.323 Courts need to assess the culpability to impose accurate punishments for such crimes.
The Court already mandates this for murder, at least with respect to the death penalty and JLWOP.324 There is no reason that manslaughter is any different. It is still far beyond a regulatory crime and can still encompass a wide variety of homicides, some of which deserve significant punishment, while others very little punishment.325 But it is impossible to assess without examining culpability.
This theoretical strict liability approach would promote equity in sentencing. It would require individualized consideration of the defendant’s conduct and character in cases where intent was an element of the crime. Barring mandatory sentences for such crimes would ensure that the sentence reflected the actual crime, not some legislative caricature of it.
As with strict liability crimes, Congress and state legislatures could limit mandatory sentences to public welfare offenses. And the category of public welfare offenses would create a bright line that would be simple to apply.
2. Strict Liability as a Practical Limit on Mandatory Sentences
A different approach is to use strict liability itself as a practical tool to place limits on mandatory sentences. This second approach is more practical in nature. It posits that mandatory sentences and strict liability crimes are opposite sides of the same coin. As such, mandatory sentences are only permitted for strict liability crimes.
The justifications for both strict liability crimes and mandatory sentences both relate to the need to remove discretion and inquiry to achieve a certain result, usually in the name of deterrence.326 Strict liability crimes are valuable because they remove the intent from the equation and align the act itself with guilt.327 For situations where intent does not really matter, there is a certainty of outcome for engaging in the behavior.328
This has the effect of deterring individuals from engaging in the prohibited behavior because the “why”—their reason for doing it, their intent—does not matter.329 The consequence flows directly from the act. The certainty of consequence makes others, at least in theory, less likely to engage in the behavior.330
Of course, courts in most cases find that intent does matter.331 That is therefore the limit on strict liability crimes and does not extend to crimes where criminal intent relates to guilt or the level of seriousness among a group of crimes.332
Mandatory sentences operate in the same way. They impose an automatic punishment for a conviction of a crime.333 Their apparent value lies in their certainty.334 One’s actual culpability does not matter; it is presumed from the guilty verdict or plea.335 Deterrence likewise, in theory, flows.336 One can know with a level of certainty that committing a particular crime mandates a particular consequence.
The intellectual fit between these two concepts becomes clear in this context. When the state does not care about the intent of the criminal offender, his culpability likewise seems to be less of a concern with respect to imposing a fair punishment.337 Simply put, the act triggers the consequence.
The corollary is perhaps even more true. When the Court bars the use of strict liability in a federal statute, it does so because the criminal intent is crucial to assessing the act in question.338 Sometimes the intent can separate a crime from an innocent act;339 other times it can serve to distinguish a more serious crime from a less serious one.340 Without looking at the criminal intent, though, it becomes impossible to assess the guilt or innocence of the act.341
Similarly, courts should require individualized sentencing consideration in non-strict liability crimes. If the intent of the defendant matters as to the crime, the culpability should also matter as to the sentence.342 To allow mandatory sentences in such situations assumes that all guilty individuals are the same, ignoring the very lesson that makes the crime in question depend on criminal intent.343
The Supreme Court has found that culpability does matter for the most serious punishments—the death penalty and JLWOP.344 But this is an arbitrary line. And the Court made these decisions to ensure protection for the most serious crimes, not to foreclose similar consideration for lesser crimes.345 Just because culpability matters for the most serious crimes does not mean that it does not also matter for less serious crimes.
Indeed, all felonies are serious matters. They have life-changing consequences for most people.346 Every day in state custody matters. As a result, judges should determine the length of a sentence carefully. Indeed, each additional year has an exponential effect on the individual incarcerated.347
Unlike criminal acts, which are observable and easily documented, criminal intent requires interpretation of the relevant facts and circumstances to impute a criminal intent to a defendant.348 It is not as if the court can simply download the brain of the defendant to compute his intent. And yet, that determination separates the guilty from the innocent, or at the very least, the more serious crime from the less serious one.
A mandatory sentence forecloses this same kind of essential analysis with respect to the sentencing of the intent-based common law crime. Like intent, culpability is not mathematically calculated. Instead, courts determine an individual’s level of culpability from the facts and circumstances of the case.349 Foreclosing consideration of such facts and circumstances for intent-based crimes is a recipe for unfair punishment—with some over-punished and some under-punished.350 It is more than intellectually lazy; it proscribes the use of judicial discretion in favor a predetermined outcome based on a series of assumptions that are often completely untrue.351 In short, it is a recipe for injustice and inequity.
While everyone guilty of the same crime receives the same punishment, this approach ignores the unique characteristics of each case, and treats those who are more culpable the same as those who are less culpable.352 To assume that a statutory definition of a crime is narrow enough to capture an identical group of perpetrators, who deserve to receive the exact same punishment, ignores the linguistic reality of the statutes, which are often very broad.353 It also ignores the nuance involved in criminal activity where individuals who commit the same crime may do so in such different ways as to warrant different punishments.354 When one considers the facts and circumstances of the crime, courts can easily differentiate perpetrators in providing different punishments.355 Mandatory sentences make such exercises of discretion impossible.
As indicated above, either the courts, through the Eighth Amendment, or legislatures, through new statutes, could mandate this application of strict liability to mandatory sentences. As with the prior proposal, this practical approach of restricting the use of mandatory sentences to strict liability crimes creates a straightforward, bright-line rule that would not be difficult to apply.
3. Strict Liability as an Invitation to Mandatory Sentence Abolition
Cabining mandatory sentences, either to cases involving public welfare crimes or to cases involving strict liability crimes, will enhance the equity in criminal sentencing. Specifically, it will eliminate the arbitrary sentencing outcomes generated by mandatory sentences by requiring consideration of individualized circumstances in either all nonpublic welfare crimes or all non-strict liability crimes.356
A deeper dive into the justifications for strict liability and mandatory sentences yields a final conclusion—mandatory sentences are unnecessary and states should, in the name of equity, abolish them. Outside of public welfare offenses, strict liability crimes are unnecessary to promote justice and fairness in the administration of criminal law. Prosecutors may like such statutes because it makes their job easier,357 but requiring a mens rea for a criminal conviction is the common practice in most cases.358
Indeed, as the Court has pointed out, regulatory public welfare crimes are of a different character than traditional common law crimes.359 In some ways, these crimes blur the line between criminal law and tort law.360 If one thinks of public welfare offenses as torts, and not really crimes at all, then strict liability ceases to exist outside of its misguided use in felony murder crimes. But even those crimes require criminal intent to commit the underlying felony.361 So, if one reads public welfare as outside the scope of traditional crimes, then criminal law in essence forbids strict liability; it requires some level of criminal intent.
Unlike strict liability welfare crimes, there is no tort-like exception that justifies mandatory sentences. In other words, there is no category of crimes that needs mandatory sentences to achieve the basic goals of punishment.362 The absence of culpability is in no context a tool for effective sentencing.
While there exists a legitimate reason to have public welfare strict liability crimes, there is no corollary for mandatory sentences. Without a justification for preserving a narrower category of mandatory sentences, the question becomes whether an absence of a material benefit can outweigh the inequity that typically flows from the imposition of mandatory sentences.
Without considering perpetrator culpability, mandatory sentences are both over- and under-inclusive; they are likely to yield unfair results in many cases because they are using an arbitrary statutory barometer to choose the appropriate punishment.363 Even worse, the shift of power to prosecutors in cases involving mandatory sentences can skew equity even further, with prosecutors choosing sentences based on a host of other considerations.364
In sum, while strict liability crimes can be justified in the context of public welfare, mandatory sentences lack a parallel category of justification. As such, courts and legislatures should, in the name of equity, eliminate mandatory sentences altogether.
B. Constitutional Limits
An alternative approach relates to the imposition of similar limits under the Eighth Amendment. The Court could easily make such a move simply by expanding the individualized sentencing doctrine from Woodson, Lockett, and Miller.365 This analysis would bar mandatory sentences because imposing such sentences without individualized consideration of the defendant’s criminal activity and personal characteristics would constitute a cruel and unusual punishment.366
The line drawn by the Court in Woodson and Roberts, limiting the Eighth Amendment proscription on mandatory sentences to capital cases evaporated with the expansion of the rule to JLWOP cases in Miller.367 The line between the more serious and less serious cases is arbitrary in the context of considering the very evidence that ought to determine the length of the sentence imposed.368 Culpability is equally relevant whether the sentence is one involving death or a much shorter sentence. Courts should strive to impose criminal sentences based upon principled purposes rather than arbitrary conjectures made by legislatures.
Practically speaking, it is unlikely the Court would make such a move. In the 2020 term, it rejected an opportunity to expand the scope of JLWOP under the Eighth Amendment.369 Expanding the Eighth Amendment to require individualized sentencing consideration for all nonpublic welfare crimes would require the Court to overrule its prior case law.370 Courts using statutory interpretation to narrow mandatory sentencing seems to be a more likely approach.
CONCLUSION
This Article broke new ground by drawing a connection between two criminal law concepts—strict liability and mandatory sentences—that operate the same way in different spheres. In both situations, courts place significant limits on each concept. For strict liability, the limits are imposed because of the importance of criminal intent to establishing guilt. For mandatory sentences, the limits are imposed because of the importance of considering perpetrator culpability at sentencing. After demonstrating that these universes are parallel, this Article argued that mandatory sentences are a genre of strict liability and should thus receive similar treatment from courts. This means the imposition of limits on mandatory sentences whether statutory ones or constitutional ones.
First, with respect to statutory limits, this Article advocated for applying the theoretical limits of strict liability crimes, arguing that mandatory sentences should only be allowed in cases involving public welfare crimes. Second, it argued for applying the practical limits of strict liability crimes, making the case that mandatory sentences should only be allowed in cases involving strict liability crimes. This Article argued that the one fundamental difference between the two categories—a justified public welfare crime exception—meant that mandatory sentences lacked any significant justification and states should abolish them, particularly in light of the inequity that results from the imposition of mandatory sentences. Finally, this Article provided a road map of how the Eighth Amendment could likewise impose limits on mandatory sentences in noncapital, non-JLWOP cases.