LAWS1021: Crime and the Criminal Process
LAWS1021: Crime and the Criminal Process Class 2: Criminalisation (pp.41-64) Some crimes that are given punishment may be seen as unjust as they are crimes that should not have been deemed crimes in the first place. Law is made to guide behaviour however this becomes objectionable when we over punish people and therefore undermine the... 2.1 Introduction Lacey – ‘Legal Construction of Crime’ p42 -
‘Criminalisation captures the dynamic nature of the field as a set of interlocking practices in which the moments of ‘defining’ and ‘responding to’ crime can rarely be completely distinguished and in which legal and social (extra-legal) constructions of crime constantly interact.’
Cohen – ‘Against Criminology’ p42 -
‘Criminalisation is the process of identifying an act deemed dangerous to the dominant social
order and designating it as criminally punishable.’ - Crime is a social construct, varying historically and culturally, and as such, concern is directed to the virtual disappearance of decriminalisation from the agenda. - ‘Unlike social norms that we know as subtle, continuous, and negotiable, we start to talk about a dichotomous variable, crime/non-crime.’ - Criminalisation relates to the exercise of power in modern society and a source of repression. He also adds that defining a problem in terms of crime does not point to solutions such as improving the quality of life, reducing poverty etc. Instead the problem is defined only in terms of criminal groups and lack of police power etc. Husak – ‘OverCriminalisation: The Limits of the Criminal Law’ p43 -
Injustice is most glaring when defendants are sentenced for conduct that should not have given rise to criminal liability at all- in other words, when punishments are imposed for conduct that falls to satisfy our best theory of criminalisation. ‘Overcriminalisation is objectionable because it produces too much punishment.’ The premise that Husak comes to is that we have too many law too much punishment which leads to great deal of unjust outcomes.
-
The number and complexity of criminal statutes means that ‘potential lawbreakers may not receive adequate notice of their legal obligations…our expanding criminal justice system incurs massive opportunity costs… lack of respect for law constitutes the most pernicious consequence of overcriminalisation
-
Final point- ‘the increase of criminalization is destructive of the rule of law itself—the quantity of criminal law undermines the principle of legality”
-
Law is too often complex and not comprehensionable to the general public or lay person. It is not cost affective and “ money and man power” are diverted away from the resources where they may be required most.
Hogg and Brown – ‘Rethinking Law and Order’ p45 -
According to Brown and Hogg (pp45-47) major contributing factors to overcriminlisation are common sense approaches that are constantly disseminated by authoritative figures such as Police Politicians. Judges etc.
-
“Commonsense is partial rather than wrong”
-
‘In every decade the crime problem seems to have been ‘discovered’ as a novel social phenomenon and rendered in the themes of climatic social changes, moral decline and nostalgia for a tranquil past.’
-
Hogg and Brown common sense assumptions that are
-
Commonsense can result in over simplifying the notion of crime. A central example that everyone agrees on is a crime is murder, which is a category of homicide ( killimgs) However not all killings result in criminal charges . For example murder and manslaughter are the two unlawful killings that attract criminal charges, but the circumstance under which their distinction is made has undergone innumerable changes.
-
Elements of Law and Order Commonsense: o
Soaring crime rates
o
‘it is worse than ever’; law and order nostalgia
o
The future is New York or LA
o
The criminal justice system is soft on crime and does not protect citizens
o
The solution is more police with more powers
o
We need tougher penalties
o
Victims should be able to get revenge through the courts
Pratt - ‘Penal Populism’ p47 -
Penal populism is where political parties compete with each other to be tough on crime
-
‘Penal Populism should not be understood merely in terms of political opportunism, which ‘buys’ electoral popularity cynically increasing levels of penal severity because it is thought that there is public support for this, irrespective of crime trends’. Penal populism itself is a ‘product of deep social and cultural changes which began in the 1970s and which now extend across much of modern society.’
-
‘What then happens is that penal strategy and thought, instead of being driven primarily by concerns about efficiency, economy and humanitarianism, has to incorporate, and is sometimes overwhelmed by, the emotive forces that populism unleashes.’ This has led to the populists organisations and politicians seemingly speaking on behalf of the public and offering simple, understandable solutions to crime. This creates ‘expectations of security and order, though tougher sentencing that are almost always disappointed. Promises of returns to fabled crime-free eras can never materialise, because they are nothing more than fables.’
2.1.3 Historical relativity and change The terrain of criminal is constantly changing. Things such as drugs have been criminalised in recent years whilst homosexual intercourse between consenting adult males has been decriminalised. Evans – ‘The Criminal Prosecution and Capital Punishment of Animals’ p49 -
Examples were given of various animals being subject to trial and punishment
2.1.4 Defining crime Criminal law- host of provisions sometimes questionably called regulatory offences or mala prohibita (wrong because prohibited), as opposed to mala in se (wrong in themselves). Williams – ‘Textbook of Criminal Law’ p50 -
“A crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment.” Definition of what a crime is
Ashworth – Is the Criminal Law a Lost Cause?’ p51 ‘The sheer bulk of the English criminal law makes it highly unlikely that the substantive content of the offences conforms to a single test or set of related tests.’ Ashworth notes that many new offences contain features such as strict liability, omissions liability and reverse onus provisions for exculpation. Such features are ‘inconsistent with prominent elements of the rhetoric of English criminal law – that there is a presumption that mens rea is a prerequisite of criminal liability, that liability for omissions is exceptional, and that ‘one golden thread’ running through English criminal law is that the prosecution bears the burden of proving guilt.’ Ashworth quotes Lord Williams of Mostyn - argued criminal offences “should only be created when absolutely necessary” and that: “In considering whether new offences should be created, factors taken into account include whether: The behaviour in question is sufficiently serious to warrant intervention by the criminal law; The mischief could be dealt with under existing legislation or by using other remedies; The proposed offence is enforceable in practice; The proposed offence is tightly drawn and legally sound; The proposed penalty is commensurate with the seriousness of the offence; There is consistency across the sentencing framework.” Lee – ‘Inventing Fear of Crime’ p55
-
‘By fear of crime feedback loop I mean the following: that research into fear of crimethrough crime victim surveys- produces the criminological object fear of crime statistically and discursively a concept is constituted. This information then operates to inform the citizenry that they are indeed fearful, information the fear subject can reflect upon. The law and order lobby and politicians use fear to justify a tougher approach on crime (they have to, the citizenry are fearful apparently) a point on which they grandstand and in doing so breed more fear, The concept feeds the discourse and the discourse in turn justifies the concept.’
Some Statistics p56
‘Criminalisation captures the dynamic nature of the field as a set of interlocking practices in which the moments of ‘defining’ and ‘responding to’ crime can rarely be completely distinguished and in which legal and social (extra-legal) constructions of crime constantly interact.’
Cohen – ‘Against Criminology’ p42 -
‘Criminalisation is the process of identifying an act deemed dangerous to the dominant social
order and designating it as criminally punishable.’ - Crime is a social construct, varying historically and culturally, and as such, concern is directed to the virtual disappearance of decriminalisation from the agenda. - ‘Unlike social norms that we know as subtle, continuous, and negotiable, we start to talk about a dichotomous variable, crime/non-crime.’ - Criminalisation relates to the exercise of power in modern society and a source of repression. He also adds that defining a problem in terms of crime does not point to solutions such as improving the quality of life, reducing poverty etc. Instead the problem is defined only in terms of criminal groups and lack of police power etc. Husak – ‘OverCriminalisation: The Limits of the Criminal Law’ p43 -
Injustice is most glaring when defendants are sentenced for conduct that should not have given rise to criminal liability at all- in other words, when punishments are imposed for conduct that falls to satisfy our best theory of criminalisation. ‘Overcriminalisation is objectionable because it produces too much punishment.’ The premise that Husak comes to is that we have too many law too much punishment which leads to great deal of unjust outcomes.
-
The number and complexity of criminal statutes means that ‘potential lawbreakers may not receive adequate notice of their legal obligations…our expanding criminal justice system incurs massive opportunity costs… lack of respect for law constitutes the most pernicious consequence of overcriminalisation
-
Final point- ‘the increase of criminalization is destructive of the rule of law itself—the quantity of criminal law undermines the principle of legality”
-
Law is too often complex and not comprehensionable to the general public or lay person. It is not cost affective and “ money and man power” are diverted away from the resources where they may be required most.
Hogg and Brown – ‘Rethinking Law and Order’ p45 -
According to Brown and Hogg (pp45-47) major contributing factors to overcriminlisation are common sense approaches that are constantly disseminated by authoritative figures such as Police Politicians. Judges etc.
-
“Commonsense is partial rather than wrong”
-
‘In every decade the crime problem seems to have been ‘discovered’ as a novel social phenomenon and rendered in the themes of climatic social changes, moral decline and nostalgia for a tranquil past.’
-
Hogg and Brown common sense assumptions that are
-
Commonsense can result in over simplifying the notion of crime. A central example that everyone agrees on is a crime is murder, which is a category of homicide ( killimgs) However not all killings result in criminal charges . For example murder and manslaughter are the two unlawful killings that attract criminal charges, but the circumstance under which their distinction is made has undergone innumerable changes.
-
Elements of Law and Order Commonsense: o
Soaring crime rates
o
‘it is worse than ever’; law and order nostalgia
o
The future is New York or LA
o
The criminal justice system is soft on crime and does not protect citizens
o
The solution is more police with more powers
o
We need tougher penalties
o
Victims should be able to get revenge through the courts
Pratt - ‘Penal Populism’ p47 -
Penal populism is where political parties compete with each other to be tough on crime
-
‘Penal Populism should not be understood merely in terms of political opportunism, which ‘buys’ electoral popularity cynically increasing levels of penal severity because it is thought that there is public support for this, irrespective of crime trends’. Penal populism itself is a ‘product of deep social and cultural changes which began in the 1970s and which now extend across much of modern society.’
-
‘What then happens is that penal strategy and thought, instead of being driven primarily by concerns about efficiency, economy and humanitarianism, has to incorporate, and is sometimes overwhelmed by, the emotive forces that populism unleashes.’ This has led to the populists organisations and politicians seemingly speaking on behalf of the public and offering simple, understandable solutions to crime. This creates ‘expectations of security and order, though tougher sentencing that are almost always disappointed. Promises of returns to fabled crime-free eras can never materialise, because they are nothing more than fables.’
2.1.3 Historical relativity and change The terrain of criminal is constantly changing. Things such as drugs have been criminalised in recent years whilst homosexual intercourse between consenting adult males has been decriminalised. Evans – ‘The Criminal Prosecution and Capital Punishment of Animals’ p49 -
Examples were given of various animals being subject to trial and punishment
2.1.4 Defining crime Criminal law- host of provisions sometimes questionably called regulatory offences or mala prohibita (wrong because prohibited), as opposed to mala in se (wrong in themselves). Williams – ‘Textbook of Criminal Law’ p50 -
“A crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment.” Definition of what a crime is
Ashworth – Is the Criminal Law a Lost Cause?’ p51 ‘The sheer bulk of the English criminal law makes it highly unlikely that the substantive content of the offences conforms to a single test or set of related tests.’ Ashworth notes that many new offences contain features such as strict liability, omissions liability and reverse onus provisions for exculpation. Such features are ‘inconsistent with prominent elements of the rhetoric of English criminal law – that there is a presumption that mens rea is a prerequisite of criminal liability, that liability for omissions is exceptional, and that ‘one golden thread’ running through English criminal law is that the prosecution bears the burden of proving guilt.’ Ashworth quotes Lord Williams of Mostyn - argued criminal offences “should only be created when absolutely necessary” and that: “In considering whether new offences should be created, factors taken into account include whether: The behaviour in question is sufficiently serious to warrant intervention by the criminal law; The mischief could be dealt with under existing legislation or by using other remedies; The proposed offence is enforceable in practice; The proposed offence is tightly drawn and legally sound; The proposed penalty is commensurate with the seriousness of the offence; There is consistency across the sentencing framework.” Lee – ‘Inventing Fear of Crime’ p55
-
‘By fear of crime feedback loop I mean the following: that research into fear of crimethrough crime victim surveys- produces the criminological object fear of crime statistically and discursively a concept is constituted. This information then operates to inform the citizenry that they are indeed fearful, information the fear subject can reflect upon. The law and order lobby and politicians use fear to justify a tougher approach on crime (they have to, the citizenry are fearful apparently) a point on which they grandstand and in doing so breed more fear, The concept feeds the discourse and the discourse in turn justifies the concept.’
Some Statistics p56
