Theories of Criminal Law (Stanford Encyclopedia of Philosophy)
link between such laws and educational attainment. As a result, credible causal estimates of the education-crime relationship cannot in general be identified for. Changes in these laws have a significant effect on educational achievement, and we reject tests . 2 The Relationship Between Education, Criminal Activity, Ar-. This article examines the relationship between intergenerational educational variation in compulsory schooling laws to indicate a more causal relationship.
These powers and permissions exist ex ante—prior, that is, to the commission of crime. We can add those that exist ex post—once crime has been committed. By the time cases reach the courts those accusers are typically state officials or those to whom the state has delegated official power.
Some legal systems do make space for private prosecutions. But such prosecutions can be discontinued or taken over by state officials and their delegates. In this way, the state exercises a form of control over criminal proceedings that is absent from legal proceedings of other kinds Marshall and Duff It may seem from the above that criminal proceedings are tilted heavily in favour of the accusing side.
These typically include the right to be informed of the accusations in question, the right to confidential access to a lawyer, and the privilege against self-incrimination. At least on paper, the procedural protections on offer in criminal proceedings are more robust than those available to the accused in legal proceedings of other kinds.
This is explained in large part by the consequences of criminal conviction. This is to say nothing of criminal sentences themselves. Those sentences are typically punishments: This is not to say that suffering or deprivation must be the ultimate end of those who punish.
What it cannot be is a mere side-effect. This is one thing that distinguishes criminal sentences—at least of the punitive kind—from the reparative remedies that are standard fare in civil law. But we can imagine cases in which this is not so: The award may remain a reparative success.
It cannot be anything other than a punitive failure Boonin12—17; Gardner Obviously suspicions are sometimes misplaced. So it is no surprise that the most destructive powers and permissions are jealously guarded by the criminal law.
But a moot court has no power to detain us in advance, to require us to appear before it, or to sentence us to imprisonment. Force used to achieve any of these things would itself be criminal, however proportionate the resulting punishment might be. As this example shows, criminal law is characterised by an asymmetry—it bestows powers and permissions on state officials and delegates which are withheld from private persons, such that the latter are condemned as vigilantes for doing what the former lawfully do Thorburn a, 92—93; Edwards forthcoming.
This remains the case—often to the great frustration of victims and their supporters—even if the official response, assuming it comes at all, will be woefully inadequate. Functions of Criminal Law Few deny that one function of criminal law is to deliver justified punishment.
Some go further and claim that this is the sole function of criminal law Moore28— Call this the punitive view. Rules of criminal procedure and evidence, on this view, help facilitate the imposition of justified punishment, while keeping the risk of unjustified punishment within acceptable bounds. Rules of substantive criminal law help give potential offenders fair warning that they may be punished.
Both sets of rules combat objections we might otherwise make to laws that authorize the intentional imposition of harm. To combat objections, of course, is not itself to make a positive case for such laws. That case, on the punitive view, is made by the justified punishments that criminal courts impose. This is not to say anything about what the justification of punishment is. It is merely to say that criminal law is to be justified in punitive terms. Some object that this focus on punishment is misplaced.
The central function criminal law fulfills in responding to crime, some say, is that of calling suspected offenders to account in criminal courts Gardner80; Duff c, This view puts the criminal trial at the centre, not just of criminal proceedings, but of criminal law as a whole Duff a, Trials invite defendants to account for themselves either by denying the accusation that they offended, or by pleading a defence.
The prospect of conviction and punishment puts defendants under pressure to offer an adequate account. Call this the curial view. It differs from the punitive view in two ways. First, part of the positive case for criminal law is independent of the imposition of punishment. Second, part of the positive case for imposing criminal punishment is dependent on the punishment being part of a process of calling to account. The following two paragraphs expand on both these claims.
As to the first, we often have reason to account for our actions to others. We can leave open for now the precise conditions under which this is so. But it is plausible to think that if Alisha steals from Bintu she has reason for account for the theft, and that if Chika intentionally kills Dawn she has reason to account for the killing. Defenders of the curial view argue that criminal proceedings are of intrinsic value when defendants are called to offer accounts of themselves that they have reason to offer in criminal courts Gardner—; Duff c, 15— Imagine Alisha stole from Bintu because she was under duress.
Imagine Chika intentionally killed Dawn to defend herself or others. Neither of these defendants, we can assume, is justifiably punished. On the curial view, things are different.
Alisha and Chika both have reason to account for their behaviour—to explain what they did and why they did it. Criminal proceedings invite each to provide that account and put each under pressure to do so.
Assuming Alisha and Chika have reason to account in a criminal court, proceedings in which they are called to do so are of intrinsic value. To endorse the curial view is not, of course, to say that we should do away with criminal punishment. But it is to say that the connection between trial and punishment is not merely instrumental. Some think that the facts that make punishment fitting—say, culpable wrongdoing—obtain independently of criminal proceedings themselves Moore The fitting way to respond to criminal wrongdoing, on this view, is to call the wrongdoer to account for her wrong.
We can see the implications of this view by imagining a world in which trials are abolished, because some new-fangled machine allows us to identify culpable wrongdoers with perfect accuracy. On the curial view, the punishments we impose are inherently defective: Though our new-fangled machine might justify doing away with trials—once we factor in how expensive they can be—we would lose something of value in doing away with them. If criminal law does have a particular function, we can ask whether that function is distinctive of criminal law.
We can ask, in other words, whether it helps distinguish criminal law from the rest of the legal system. It has been claimed that criminal law is distinctive in imposing punishment Moore18—30; Husak One might also claim that criminal law alone calls defendants to account. But punishments are imposed in civil proceedings—exemplary damages are the obvious case. And it is arguable that civil proceedings also call defendants to account—that they too invite defendants to offer a denial or plead a defence; that they too use the prospect of legal liability to put defendants under pressure to account adequately Duff a.
In response, one might try to refine the function that is distinctive of criminal law. What we should make of this proposal depends on what a public wrong is Lamond ; Lee ; Edwards and Simester To make progress, we can distinguish between primary duties—like duties not to rape or rob—and secondary duties—like duties to answer, or suffer punishment, for rape or robbery. We incur duties of the latter kind by breaching duties of the former.
Many wrongs are both crimes and torts. So the two bodies of law often respond to breaches of the same primary duty. A more promising proposal looks to secondary duties. Perhaps the function of civil law is to respond to wrongs on behalf of some of us—to discharge secondary duties owed to particular individuals.
This might be thought to explain why criminal proceedings, unlike civil proceedings, are controlled by state officials: The view described in the previous paragraph conceives of criminal law as an instrument of the community—a way of ensuring that the community gets what it is owed from wrongdoers.
Call it the communitarian view. If we combine this with the curial view, the distinctive function of criminal law is to seek answers owed to the community as a whole. One might doubt that the functions of criminal and civil law can be so neatly distinguished. More importantly, one might claim that in the case of paradigmatic crimes—like robbery, rape, or battery—criminal law responds to wrongs on behalf of particular individuals—on behalf of those who have been robbed, raped, or battered.
Those who reject the communitarian view might be thought to face the following difficulty: First, we should not always require the wronged to have to pursue those who have wronged them. Second, we should not always support those who think themselves wronged in pursuing alleged wrongdoers. As to the first point, some are trapped in abusive relationships with those who wrong them.
Others are susceptible to manipulation that serves to silence their complaints. Some wrongdoers can use wealth and social status to stop accusers in their tracks. As to the second point, the temptation to retaliate in the face of wrongdoing is often great. It is all too easy for the pursuit of justice to become the pursuit of revenge, and for the perceived urgency of the pursuit to generate false accusations. Official control can help vulnerable individuals—like those described above—to get what they are owed.
And it can mitigate the damage done by those trying to exact vengeance and settle scores Gardner— It can ensure that those in positions of power cannot wrong others with impunity, and reduce the likelihood that vindictiveness begets retaliation, which begets violent conflict from which all lose out Wellman8— We can add that criminal proceedings may help protect others against being wronged in future.
Criminal justice - Wikipedia
Those wronged may have a duty to give up control of proceedings in order to provide this protection Tadros c, — These remarks suggest an alternative to the communitarian view. According to the alternative, the secondary duties of concern in civil and criminal proceedings are typically one and the same.
Call this the imperfectionist view. What is distinctive of criminal law, on this view, is not its function but its mode of functioning: What is distinctive about criminal law, they claim, is that it publicly censures or condemns. This expressive function is sometimes associated with criminal punishment Husak92— Because other bodies of law sometimes punish, and because punishment typically—perhaps necessarily—expresses censure Feinbergthe expressive function is at least partly shared.
But the message sent by criminal law is not sent only at the sentencing stage. Though additional detail may generate the same conclusion in the case of a civil verdict, such detail is not required in the case of criminal conviction. If this is right, the distinctiveness of criminal law turns out not to consist in the fact that it provides for punishment. It turns out to consist at least in part in the provision of a technique for condemning wrongdoers which does not require that we punish in order to condemn.
So far, we have focused on the functions criminal law fulfills in response to the commission of crime. We can see this by asking what success would look like for the criminal law. Would criminal law have succeeded if all thieves and murderers were tried and punished? Or would it have succeeded if there was no theft or murder, because criminalization resulted in would-be thieves and murderers refraining from such wrongs?
Notice that to pose these two questions as alternatives is not to deny that punishment might be justified in preventive terms. It is rather to suggest that resorting to punishment to achieve prevention is already a partial failure for the criminal law. It is a failure to deter those who, ex hypothesi, have already committed criminal offences. Had the creation of those offences been an unqualified success, there would have been nothing for which to punish anyone.
Call this the preventive view. Defenders of this view need not say that we should enact whatever laws will achieve the most prevention.
That cutting is the function of knives does not entail that knife-holders are justified in cutting whatever they see. Holders of the preventive view can, in other words, accept the existence of constraints on prevention, that are not themselves justified in preventive terms Hart35— What they cannot accept is a positive case for criminal law that is not preventive. Some hold a mixed view that combines elements of those considered above Alexander and Ferzan3—19; Simester and von Hirsch3—18; Tadros— One way to construct such a view is by distinguishing between primary and secondary functions.
Primary functions are those that, when all else is equal, we have most reason to want the law to fulfil. Secondary functions are those we have reason to want the law to fulfil if it fails to fulfil its primary functions.
Ceteris paribus, we have most reason to want criminal law to bring about a world in which wrongs like theft or murder do not occur. Failing that, we have reason to want criminal law to call thieves and murderers to account, and to punish those who have no adequate account to offer. There is some scepticism about mixed views. For some, the worries are conceptual. Moore claims that justified punishment must be imposed for reasons of desert, and that for this reason the punitive and preventive functions cannot be combined.
Several replies are available.
Master of Laws (LL.M.) in Transnational Crime and Justice
First, even if this is a problem for a mixed view of punishment, it need not be for a mixed view of criminal law. Grant that punishment must be imposed for reasons of desert. It does not follow that criminal offences cannot be created for reasons of prevention. Criminalization and punishment are different acts, and can be performed for different reasons Edwards and Simester Reasons that help make a positive case for our actions are often reasons for which we should not act.
That one will be financially secure is a reason to get married, but one should not get married in order to be financially secure.
Similarly, to say that prevention helps make a positive case for criminal law—and for punishment—is not to say that judges should punish for that reason. Other worries about mixed views are pragmatic Duff a. As criminal wrongdoing will persist whatever we do, the preventive function sets criminal law an insatiable goal.
There is a standing risk that law-makers who pursue that goal will deprive us of a criminal law that fulfills its other functions. Consider again the curial view. Plausibly, we have reason to account for wrongs like theft and fraud in criminal court, but no reason to account for every interaction with property or all misleading statements from which we stand to gain.
If defendants are to be called to account for the wrongs, it is these that must be criminalized. To criminalize trivialities—in pursuit of preventive ends—is to drain criminal proceedings of their intrinsic value Duff b. No doubt these are important worries. But they do nothing to suggest that we should reject a mixed view.
At most, they show that law-makers also should not take prevention to be part of their mission. As we already saw, this conclusion does not show that prevention is not part of the positive case for criminal law. And it may anyway be too strong. Law-makers who exclude prevention from their mission may refuse to create crimes that would prevent a great deal of harm. The cost of refusing to create these crimes might be greater than the cost of calling people to account for trivialities, and this might be so even when alternative means of prevention are factored in.
If we should not be abolitionists, criminal law must be capable of realizing some value that gives us sufficient reason to retain it. To offer an account of this value is to offer a general justification of criminal law.
Obviously enough, the functions of criminal law tell us something about what this might be. If the curial view is correct, that value consists in part in people offering answers that they have reason to offer.
If the preventive view is correct, it consists in preventing criminal wrongs. So stated, however, these views do not tell us what the value of fulfilling each function actually is. The punitive view tells us nothing about what justifies criminal punishment. The curial view tells us nothing about the value of calling people to account in criminal courts. The preventive view tells us nothing about the value of preventing crime. A general justification of criminal law fills this explanatory gap.
We can make progress by distinguishing between value of different kinds. Some value is relational—it exists in virtue of relationships in which people stand. That a relationship has such value is a reason to do what will bring it into existence. The value of friendship is a reason to make friends. The value of egalitarian social relations is a reason to break down barriers of status and rank.
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Some argue that we have sufficient reason to have criminal law because it helps us enter a valuable relationship: This argument can be developed as follows. Just as slaves are dependent on their masters, so we are dependent on one another in the absence of a framework of legal rights: To avoid this, we need more than just rights that exist on paper. We need sufficient assurance that our rights will be respected, and we need a mechanism by which their supremacy can be reasserted in the face of wilful violation.
Criminal punishment amounts to reassertion. Crime prevention provides reassurance. At the level of function, this is what the last section called a mixed view. But the value of fulfilling both functions is one and the same: It is not clear why we should accept this claim. One source of doubt is the fact that some agents are unavoidably dependent—they lack the capacities required to live as independent beings. This is true of some non-human animals, and some of those with serious disabilities.
Precisely because of the capacities they lack, these agents are especially vulnerable to being abused or exploited. Ex hypothesi, this does nothing to secure independence.
So it is not something that can be accommodated by the exhaustive form of the Kantian view Tadros b. On another view, the value of criminal law derives from a relationship that pre-exists it: Any such community has values in terms of which it is understood by its members. If this self-understanding is to be more than a charade, the community must actually value its defining values—it must do what those values are reasons to do. Part of what it is for a community to value life is for it to respond to the taking: Criminal law is a body of law that requires the accounting.
Functionally, this is a version of the curial view. But the value of fulfilling that function is relational: This line of thought lends support to what I earlier called the communitarian view. On that view, criminal proceedings discharge secondary duties owed to the community as a whole. That such duties are part and parcel of a valuable form of relationship helps explains why we should think that they exist.
One objection to the view described in the previous paragraph is that it is unduly conservative. What justifies criminalizing a wrong—on that view—is that the wrong has a pre-existing foothold in the defining values of the community: Some communities, however, are characterised by systematic neglect of important values—by patriarchy, or racism, or distributive inequality. When this is so, part of the justification for criminalization is not that it helps the community remain true to itself, but that it helps transform the community by reconstituting it in valuable ways Dempsey ; Both versions of the relational view—Kantian and communitarian—face another doubt.
It is plausible to think that this wrong is of concern to the criminal law in its own right. It is plausible to think that whatever further effects it might have, preventing the wrong of murder itself helps justify criminalizing murder, and bringing criminal proceedings against murderers. On both the Kantian and communitarian views this is not the case. Beginning in the 19th century, some civil-law countries e.
All types of criminal codes account for a variety of crimes, including those generally committed by individuals or unorganized groups, as well as other modes of criminal activity. For discussions of particular crimes and types of criminal activity, see arson ; assault and battery ; bribery ; burglary ; child abuse ; counterfeiting ; cybercrime ; drug use ; embezzlement ; extortion ; forgery ; fraud ; hijacking ; homicide ; incest ; kidnapping ; larceny ; organized crime ; perjury ; piracy ; prostitution ; rape ; robbery ; sedition ; smuggling ; terrorism ; theft ; treason ; usury ; and white-collar crime.
Measurement of crime Estimating the amount of crime actually committed is quite complicated. Figures for recorded crime do not generally provide an accurate picture, because they are influenced by variable factors, such as the willingness of victims to report crimes.
In fact, it is widely believed that official crime statistics represent only a small fraction of crimes committed. A more accurate view is generally provided by detailed statistics of crime that are compiled and published by government departments; for example, the Federal Bureau of Investigation FBI publishes U.
In the late s, the United Nations UN began publishing the Global Report on Crime and Justice, which includes official data from about 90 nations—mostly the more-developed nations, as those are primarily the ones that collect such statistics. Policy makers often use official crime statistics as the basis for new crime-control measures; for instance, statistics may show an increase in the incidence of a particular type of crime over a period of years and thus suggest that some change in the methods of dealing with that type of crime is necessary.
However, official crime statistics are subject to error and may be misleading, particularly if they are used without an understanding of the processes by which they are compiled and the limitations to which they are necessarily subject.
The statistics are usually collected on the basis of reports from police forces and other law enforcement agencies and are generally known as statistics of reported crime, or crimes known to the police. Because only incidents observed by the police or reported to them by victims or witnesses are included in the reports, the picture of the amount of crime actually committed may be inaccurate.
These crimes are not discovered unless the police endeavour to look for them, and they do not figure in the statistics of reported crime unless the police take the initiative.
Thus, a sudden increase in the reported incidence of a crime from one year to the next may indeed reflect an overall increase in such activity, but it may instead merely show that the police have taken more interest in that crime and have devoted more resources to its investigation. Ironically, efforts to discourage or eliminate a particular kind of crime through more-vigorous law enforcement may create the impression that the crime concerned has increased, because more instances are likely to be detected and thus enter the statistics.
A second factor that can have a striking effect on the apparent statistical incidence of a particular kind of crime is a change in the willingness of victims of the crime to report it to the police. Victims often fail to report a crime for a variety of reasons: Some crimes also may not appear sufficiently serious to make it worthwhile to inform the police, or there may be ways in which the matter can be resolved without involving them e.
All those factors are difficult to measure with any degree of accuracy, and there is no reason to suppose that they remain constant over time or by jurisdiction. Thus, a change in any one of the factors may produce the appearance of an increase or a decrease in a particular kind of crime when there has been no such change or when the real change has been on a much-smaller scale than the statistics suggest.
A third factor that may affect the portrait painted by official crime statistics is the way in which the police treat particular incidents. Many of the laws defining crimes are imprecise or ambiguoussuch as those related to reckless driving, obscenityand gross negligence. Some conduct that is treated as criminal or is more aggressively pursued in one police jurisdiction may not be treated similarly in another jurisdiction owing to differences in priorities or interpretations of the law.
The recording process used by the police also influences crime statistics; for example, the theft of a number of items may be recorded as a single theft or as a series of thefts of the individual items. Researchers in the field of criminology have endeavoured to obtain a more-accurate picture of the incidence of crimes and the trends and variations from one period and jurisdiction to another.
One research method that has been particularly useful is the victim survey, in which the researcher identifies a representative sample of the population and asks individuals to disclose any crime of which they have been victims during a specified period of time. After a large number of people have been questioned, the information obtained from the survey can be compared with the statistics for reported crime for the same period and locality; the comparison can indicate the relationship between the actual incidence of the type of crime in question and the number of cases reported to the police.
Although criminologists have developed sophisticated procedures for interviewing victim populations, such projects are subject to several limitations.
Theories of Criminal Law
Results depend entirely on the recollection of incidents by victims, their ability to recognize that a crime has been committed, and their willingness to disclose it. In addition, this method is obviously inapplicable to victimless crimes.
Census Bureau began conducting an annual survey of crime victims in By the beginning of the 21st century, the survey included a random sample of about 60, households, in which approximatelyresidents aged 12 and over were interviewed twice a year and asked whether they had been the victims of any of a wide variety of offenses in the last six months. The results of the household survey have been at variance with the reports published by the FBI. Using both types of data, it can be estimated that about half of all violent victimizations and less than half of all property victimizations generally are reported to the police.
Since the late s, the UN has sponsored an international crime victim survey as well, with interviews taken in more than 50 countries. This means that they are released, but the restrictions are greater than that of someone on probation. There are numerous other forms of punishment which are commonly used in conjunction with or in place of prison terms.
Monetary fines are one of the oldest forms of punishment still used today. These fines may be paid to the state or to the victims as a form of reparation. Probation and house arrest are also sanctions which seek to limit a person's mobility and his or her opportunities to commit crimes without actually placing them in a prison setting. Furthermore, many jurisdictions may require some form of public or community service as a form of reparations for lesser offenses.
In Corrections, the Department ensures court-ordered, pre-sentence chemical dependency assessments, related Drug Offender Sentencing Alternative specific examinations and treatment will occur for offenders sentenced to Drug Offender Sentencing Alternative in compliance with RCW 9. Execution or capital punishment is still used around the world. Its use is one of the most heavily debated aspects of the criminal justice system. Some societies are willing to use executions as a form of political control, or for relatively minor misdeeds.
Other societies reserve execution for only the most sinister and brutal offenses. Others still have discontinued the practice entirely, believing the use of execution to be excessively cruel. It emerged as an academic discipline in the s, beginning with Berkeley police chief August Vollmer who established a criminal justice program at the University of California, Berkeley in Wilsonwho led efforts to professionalize policing and reduce corruption.
Throughout the s and s, crime rates soared and social issues took center stage in the public eye. A number of new laws and studies focused federal resources on researching new approaches to crime control. The Warren Court the Supreme Court under Chief Justice Earl Warrenissued a series of rulings which redefined citizen's rights and substantially altered the powers and responsibilities of police and the courts.
The Civil Rights Era offered significant legal and ethical challenges to the status quo. The LEAA provided grants for criminology research, focusing on social aspects of crime.
By the s, there were academic programs in criminology and criminal justice in the United States. Over time, scholars of criminal justice began to include criminologysociologyand psychologyamong others, to provide a more comprehensive view of the criminal justice system and the root causes of crime. Criminal justice studies now combine the practical and technical policing skills with a study of social deviance as a whole.
Criminal justice degree programs at four-year institutions typically include coursework in statistics, methods of research, criminal justice, policing, U. S court systems, criminal courts, corrections, community corrections, criminal procedure, criminal law, victimology, juvenile justice, and a variety of special topics. A number of universities offer a Bachelor of Criminal Justice. History of criminal justice Prisoners at a whipping post in a Delaware prison, c. These developments have reflected changing customspolitical ideals, and economic conditions.
In ancient times through the Middle Ages, exile was a common form of punishment. During the Middle Agespayment to the victim or the victim's familyknown as wergildwas another common punishment, including for violent crimes. For those who could not afford to buy their way out of punishment, harsh penalties included various forms of corporal punishment.
These included mutilationbrandingand floggingas well as execution. Though a prison, Le Stincheexisted as early as the 14th century in Florence, Italy incarceration was not widely used until the 19th century. Correctional reform in the United States was first initiated by William Penntowards the end of the 17th century. For a time, Pennsylvania 's criminal code was revised to forbid torture and other forms of cruel punishment, with jails and prisons replacing corporal punishment.
These reforms were reverted, upon Penn's death in Under pressure from a group of Quakersthese reforms were revived in Pennsylvania toward the end of the 18th century, and led to a marked drop in Pennsylvania's crime rate.