30 March 2009

More on Posner & Strict Liability

Tim Lynch dropped me an email concerning my review of part of his book "In the Name of Justice" (his blog post is here). He comments:
Btw, thinking it over some more, I'm not quite sure we can say that Posner is oblivious to the unjust cases and is therefore wrong. He's a smart guy and may just really believe that the "benefits" outweigh the "costs." We can say he's wrong but for a different reason. See p. 196 note 31.
This, I'm certain, is a comment on my "wisdom of ignorance" appellation to statutory rape strict liability argument. Let me clarify this. I don't believe that Judge Posner is an ignoramus. I do believe, and this is a conceit on my part (probably shared with most criminal law attorneys), that Judge Posner has an academic, theoretical knowledge as opposed to an on the ground, knowing it in your bones, fighting the fight, experiential knowledge. It's all well and good to stand on high and decide that you will sacrifice 5 people who did nothing immoral in order to catch 20 who did and discourage 100 who might. Yet, if you're the prosecutor who faces a command from your legislature to sacrifice 5 innocents, because the steer clear function of strict liability doesn't work if you don't, or the defense attorney watching your innocent being sacrificed "for the greater good" it's despicable.

As well, when I speak of the wisdom of ignorance I'm not just speaking of Posner. In fact, I'm mostly speaking of the emotional basis of the statutory rape argument. Statutory rape, because of its emotional, irrational trigger - harm against the young - is always the strongest case for strict liability. If there was ever anything someone would be willing to sacrifice an innocent in order to protect its his daughter. No thought need be applied. Protect. Period.

Try that same rationale with the truck driver scenario and people will look at you like you are stoned. "You're saying each and every UPS driver is committing a felony when he delivers the drugs that are shipped thru UPS without his knowledge Really? You're serious?" And you'll notice that the government isn't exactly going around and arresting package delivery drivers in job lots.

Gotta go to work. Hope to further discuss this tonight as to other, non-ignorance reasons why strict liability is wrong.

1 comment:

Anonymous said...

I remember in Chicago - when the drinking age was still 18 - a group of 14 year old females would dress themselves up, and go to bars frequented by Chicago police officers with the goal of having sex with a cop. Several of these police officers did indeed have sexual relations with these girls, thinking they were of legal age.

The results were devastating; seveal of these officers were found guilty of statutory rape, and their careers as police officers were destroyed.