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Mandatory Sentences as Strict Liability


William W. Berry III


May 13, 2024

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.


William W. Berry III, Mandatory Sentences as Strict Liability, 81 Wash. & Lee L. Rev. 255 (2024).