On July 22, 2009, one Tim Lynch of the CATO institute, a libertarian think tank, testified before the Senate Subcommittee on Crime. Among Mr. Lynch's recommendations were that Federal legislators abolish the doctrine of vicarious criminal liability. By way of example, Mr. Lynch cited two cases where supervisors were indicted for criminal acts of their subordinates. In one of the cases, a supervisor who was made aware of an unsatisfactory health department report was criminally indicted even though the facts showed that a subordinate was proximately negligent after a second unsatisfactory report was subsequently issued. In the other case, an excavation supervisor was indicted when a subordinate accidentally ruptured a petroleum pipeline during excavation, causing the contamination of a fresh-water stream.  Furthermore, both cases in question ascribe strict criminal liability for mishaps during ordinary operations. Assuming that these laws are unjust, it is because they ascribe criminal liability without intent, and perhaps because they pass criminal liability to a supervisor without a showing of intent, and emphatically not because the doctrine of vicarious liability is itself fundamentally unjust.

While the cited examples do constitute valid examples of vicarious liability, they cite a very specific kind of it, specifically, the doctrine of "respondeat superior." Respondeat superior is merely one of many kinds of vicarious liability. Receiving stolen property is another. Would Mr. Lynch have us repeal laws against receiving stolen property based on his recommendation to abolish the doctrine of vicarious liability as well? And if so, would that be a good thing? The answer to that question centers around the fundamental doctrine of criminal guilt or innocence: intent.

Under criminal law, no  criminal liability may be found to exist without at least an implicit finding of intent to commit the crime, in any case, ever. Intent is so central to the idea of criminal liability that the absence of it requires acquittal even if no doubt exists that the criminal act was indeed performed by the defendant. Investigating what exactly constitutes intent, however, is akin to opening Pandora's proverbial box. Intent may also be presumed to have existed, but that presumption may always be rebutted by proof. This kind of rebuttable presumption doctrine is often necessary in the face of a person "turning a blind eye" to an evil he knows or should have every reason to otherwise believe exists.

Without such a presumption of intent, it would be impossible to convict a "fence" (one who is in the business of reselling stolen property) of the crime of receiving stolen property, since his defense would be to claim that he didn't have actual knowledge that the property was in fact stolen. Yet, this is the very abolition of doctrine that the Libertarian advocates. Rather, according to him, the fact that a snow thrower was purchased in the middle of the summer at 3:00 AM in a dark alley from a homeless person who appears to have been addicted to drugs would not and could not be held to impart guilty knowledge to one accused of receiving stolen property, and thus acquittal is required as a matter of law. The argument goes that intent may not be presumed, but must be affirmatively proved by the state, and that the defendant should carry no burden whatsoever, even though it has been affirmatively proved that he indeed did receive the stolen property.

In the case of receiving stolen property, Libertarian doctrine argues two fold against its illegality, with the intent argument being only one. The other argument is that laws against receiving stolen property should be deemed unjust on the grounds that the receiver of stolen property initiates no force since he fairly bargains for the goods, and so long as he makes no misrepresentation (ask me no questions and I will tell you no lies), he perpetrates no fraud, and thus should be held blameless as to the legal status of the property he handles. Laws against receiving stolen property, in and of themselves, inherently constitute vicarious criminal liability. Purist Libertarians argue that such laws impinge upon their liberty. This begs the question of how Libertarians define liberty.

Libertarians define liberty much the same as the Sir Robert Filmer (whoever he was) cited by John Locke, that one is free to do what he wills, save that he may not initiate force against, nor defraud his neighbor. In this definition lies the fundamental issue, since Locke's own definition of liberty under government, which is the definition of liberty contemplated by the United States Constitution, is fundamentally different. Locke defines liberty under government as being subject to the same laws as all fellow citizens of the state, and subject to the arbitrary will and control of no one. This distinction becomes significant in the context of the thing that is considered by both doctrines to be fundamental to liberty: property. 

In order for the state to protect property rights, it must have the power to deter, and not merely inhibit, those who would violate such rights. In the case of interim merchants of stolen property, the state must also have the power to deter this behavior as well. The failure to do so creates a strong market for stolen property, since the cost advantages to be had through the unfair competitive prices by which stolen property may be sold, are enormous, and also highly destructive. In turn, by allowing the unabated existence of a strong market for stolen property, the state fails in its duty to protect property rights, and thus fails in its duty to protect liberty. It is in the interest of protecting liberty (specifically Locke's definition of liberty) then, that the state presumes intent from the fact of commission, and requires the accused to provide an affirmative rebuttal. Failing this, no one's property is safe, and legitimate producers and merchants are placed at a hopeless disadvantage to the purveyors of theft.  Eventually the legitimate producers and merchants are driven out of business, legitimate production halts, and the economy and society soon collapses.

It is in this sense that the distinction in definitions of liberty become crucial, for if the state fails to hold criminals liable, vicariously or otherwise, the people are vastly more susceptible to the arbitrary control of others, even if they might be slightly  more free to do as they will. As the supply of the fruits of crime continue to pollute the erstwhile free market unabated by the state, corruption increases, bribery of officials becomes commonplace (ever been to Mexico?), wealth becomes increasingly discontinous and disparate, and the arbitrary will of those who have it increasingly infringe upon the "rights" of those who do not. In short, liberty dies.. 

Fortunately, our current state does indeed ascribe vicarious liability to theft by outlawing the receipt of stolen property, at least where the theft occurs within its jurisdiction. It also (rebuttably) presumes intent when the act is proved, preventing the "dummy defense" from rendering all such cases untriable. Unfortunately, our current state does not apply this same doctrine to property acquired outside our jurisdiction, and thus our economy is on a one-way train to hell, owing to unfair competition from questionably wrought imports, while a blind eye is turned to the circumstances by which these imports are had, just like the Libertarian fence defense. Nonetheless, the Libertarians argue that this is a good thing. For this, Mr. Lynch and the Cato Institute, I personally thank you by offering a one-fingered salute.

TD