OFAC's Strict Liability: Blackstone and Holmes Were Right

The US Office of Foreign Asset Control (OFAC) is a strict liability regime. US sanctions violators are subject to penalty without regard to whether they acted with negligence or without fault. Failure to comply with US sanctions regulations can result in serious penalties, both civil and criminal. In determining a penalty assessment or settlement amount, OFAC generally weighs various mitigating and aggravating factors present in the administrative record. OFAC retains discretion concerning the importance it places on various factors, and it may also depart from historical practices in weighing these factors. This chapter suggests that the OFAC strict liability regime has the negative effect of criminalising non-blameworthy conduct for regulatory purposes.