Fault
In a retributivist criminal justice system, punishment can be seen as a consequence imposed on the ‘deserving.’ Two critical elements in determining the magnitude of a punishment include levels of harm and culpability- both common in criminal action, but do not have to coincide with one another. However, in states with strict liability laws, the intent to cause harm does not need to be proven. Public welfare offenses are based in strict liability theories, which is counterintuitive in a liberal state. Despite the common defense of public welfare offenses to be necessary to protect public health and safety, in “Does Fault Matter?” Vera Bergelson argues against the hypocrisy of such offenses.
The purpose of a public welfare offense is to protect the health and safety of society from otherwise negligent actions. Examples of such offense can include traffic violations, public nuisances, or even illegal sales. In her article, Bergelson addresses a number of objections that can be made in favor of the strict liability approach to public offender laws, however, she concludes by illustrating the potential harms these laws can harm. A common objection is that public welfare offenses impose small penalties and are not punished in the ‘traditional sense,’ typical punishments include fines, misdemeanors, or other civil penalties. Bergelson counter’s this objection by illustrating the collateral consequences these convictions impose: “…enhanced punishment in the event of a future offense; an impediment to employment; as well as possible loss of voting rights, public benefits, and immigration status,” (Bergelson, 379). She argues conviction of public welfare laws is unfair as the potential negative consequences do not equal the extent of the crime, for example, a minor traffic violation. Negative branding on one’s reputation has the ability to harm an individual for a lifetime.
Another common objection is that despite if there was cause or fault, a criminal act still occurred. An individual’s connection to the harm cannot be eliminated and punishment is justified. This is a perfect case of the strict liability approach of public welfare offenses. Bergelson addresses this argument claiming it is morally impermissible to punish a person who may be innocent. In the case of self-defense, it would be wrong to morally condemn and publicly punish a person who had to take needed action for survival. In dire situations where the state is not readily available to assist, self-defense should be viewed as self-help or self-preservation. Thus, any harm caused by self-defense would constitute as punishing the innocent.
Later in the article, Bergelson introduces the well-established double doctrine effect to reinforce her argument. This doctrine essentially claims that it may be morally permissible to cause a harm as long as said harm is the means or side effect of a good end. The author uses an example of a terrorist hijacked plane to illustrate this doctrine. If a terrorist hijacks a plane, shooting down the plane would most likely be the morally permissible outcome. Although the passengers on the plane will perish, they were most likely going to perish once the terrorist achieved his goal, and preventing the plane from causing damage to those on the ground is a good and suitable end in shooting down the plane.
Public welfare offenses rarely include any criminal action to be harmful to others. Instead, these laws have proven to be more harmful to the ‘offender’ than any potential ‘victim’ and mainly serve as a way for the state to label people’s misdoings. To conclude, Bergelson argues against the irony of strict liability and public welfare offenses within the criminal justice system of a liberal state.
Bergelson, Vera. “Does Fault Matter?” Crim Law and Philosophy (2018).
