Criminalization
This article possibly contains original research. (August 2019) |
Criminology and penology |
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Criminalization or criminalisation, in criminology, is "the process by which behaviors and individuals are transformed into crime and criminals".[1] Previously legal acts may be transformed into crimes by legislation or judicial decision. However, there is usually a formal presumption in the rules of statutory interpretation against the retrospective application of laws, and only the use of express words by the legislature may rebut this presumption. The power of judges to make new law and retrospectively criminalise behaviour is also discouraged. In a less overt way, where laws have not been strictly enforced, the acts prohibited by those laws may also undergo de facto criminalization through more effective or committed legal enforcement. The process of criminalization takes place through societal institutions including schools, the family, and the criminal justice system.[2]
The problems
There has been some uncertainty as to the nature and extent of the contribution to be made by the victims of crime. But, as Garkawe (2001) indicates, the relationship between
In formal academically published theory, the real ruling class of a society reaches a temporary view on whether certain acts or behavior are harmful or criminal. Historically this one theory will be modified by scientific, medical evidence, by political change, and the criminal justice system may or may not treat those matters as crimes.
Conversely, when local politics determines that it is no longer a crime, they may be decriminalized. For example, Recommendation No. R (95) 12 adopted by the
Principles
Several principles may underpin decisions about criminalization. These include the
The policy of "social defense" can be seen as an opposing view. It argues that criminalization is used against "any form of activity which threatens good order or is thought reprehensible". The minimization principle may unwittingly prevent the adaptation of the law to new situations.
Harm
Leading criminal law philosophers, such as Dennis Baker and Joel Feinberg have argued that conduct should only be criminalized when it is fair to do so.[8] In particular, such theorists assert that objective reasons are needed to demonstrate that it is fair to criminalize conduct in any given case. The commonly cited objective justification for invoking the criminal law is harmful to others, but it cannot deal with all situations. For example, people are not necessarily harmed by public nudity. Feinberg suggests that offence to others also provides an objective reason for invoking the criminal law, but it clearly does not as offence is determined according to conventional morality. Prostitution is another grey area, as some countries allow it in different forms, and it is hard to say whether or not it specifically harms the public in general. One argument may be that prostitution perpetuates the spread of sexually transmitted diseases, including HIV/AIDS, and therefore harms the public which partakes in the act of prostitution. However, the legalization of prostitution would change the way it is regulated, and law enforcement could find a way to prevent the spread of sexually transmitted disease, thus eliminating the health issue and the question of the morality of the profession would be weakened.
People experience a range of physical and social injuries in different contexts which will vary according to the level of economic and political development of their country. Some will be injured out of
Moral approaches and autonomy
The extent to which behaviours considered
In
Omission
Opponents point out these arguments fail to consider the harm that such omissions may cause, in contradiction to the harm principle many legal systems start out with. Life and physical integrity are often the highest priorities of a legal system.[21] Difficulties in definition are in common with many other areas, theorists such as Feinburg point out. A non-burdensome rescue is likely to be less valuable than freedom of action.[21] Limited liability is considered as article 223 of the French Penal Code, which criminalises: "(1) a person who voluntarily neglects to prevent a serious crime of offense against that person, if that crime could be prevented without personal risk or risk to others; and (2) a person who voluntarily neglects to give, to a person in peril, assistance which could be rendered without personal risk or risk to others."[22] This is common with several other European jurisdictions. Whilst open to the criticisms of vagueness and prosecutor discretion, it has not been seen as overly oppressive.[23]
Procedure
When a state debates whether to respond to a source of injury by criminalising the behaviour that produces it, there are no pre-set criteria to apply in formulating social policy. There is no ontological reality to crime. The criminal justice system responds to a substantial number of events that do not produce significant hardship to individual citizens. Moreover, events which do cause serious injuries and perhaps should be dealt with as crimes, e.g. situations of corporate manslaughter, are either ignored or dealt with as civil matters.
The criminalization process defines and classifies behaviour. It broadcasts the laws so that no-one may have the excuse of ignorance, and disposes of those who will not obey. There are now more criminal laws and they are penetrating deeper into the social structures of modern societies. Crime control has become an industry, yet it remains ineffective in providing protection to all its citizens from harm. Such as it is, the process is made up of three components:
- Creation of a social order. This is both a socio-economic process, a "...fundamental ordering of social relations so that those things necessary for social survival can be produced and distributed in some predictable fashion" and an ideological process so that there can be a "...development of values, beliefs, and ideas related to the concrete tasks of production and distribution."(p. 6). Thus, society must develop the apparatus of law creation, law enforcement and punishment and the system must be acceptable to the majority of those who live in the community. If the laws do not match the general mores, their enforcement will be a source of friction and disharmony. Conformity to the social order must, for the most part, be self-enforced.
- For the times when self-enforcement fails, society must create a legal order. This part of the process sees the centralisation of power within the institutions of the political state. Some states justified the criminalization process as demonstrating their concerns about safety and security, the policy of control, policing, criminal justice, and penal practice. The modern state is privatisingits functions. This is changing the character and content of the remaining institutions of the state which must now work co-operatively with other for-profit agencies.
- The political order must realign so that the remaining political entities such as legislatures and judges set agreed targets for state control and then produce actual outputs of the legal order, i.e. of people defined as criminal and processed through that system.
Ontological basis of crime
Put in the most simple terms, ontology deals with or establishes the clear grounds for being. (Heidegger, Martin, Being and Time, introduction, referencing Plato's Parmenides.) In some of the traditional schools, such as those of the post-1688 English or Americans (many of the writings of the American Founding Fathers, but especially The Federalist) and their Dutch predecessors (see Kossmann, E. H. Political Thought in the Dutch Republic, 2004) ontology proper is deemed beyond the scope of legal thought, in accord with the modern distinction between society and state (which some consider based in the distinction the Romans made between themselves and their Italian allies, the socii, but not given the theoretical articulation we recognize today until emphasized by Thomas Hobbes' Leviathan. See state.) However, some classical theorists, such as Aristotle, in his Politics and Metaphysics, and to a lesser degree in his Topics,[citation needed] suggest that the distinction is at least problematic. One need consider no further than the claim that man is a political animal to see this is so.
As a political animal, man has come to see himself as possessed of rights,
Baker argues that only objective harms and other objective bad consequences (or actions in the case of inchoate and endangerment offenses) are prima facie criminalizable. By other bad consequences Baker means privacy violations and conduct that does not necessarily result in tangible harm, but does result in unwanted consequences. Baker argues that the privacy violations that result from being forced to receive unwanted obscene information in public places (exhibitionism) would amount to a sufficient bad consequence for the purposes of invoking the criminal law, but argues that proportionate punishment means that such conduct should only be punished with fines rather than jail terms.
See also
- Crime in the United States#Number and growth of criminal laws
- Criminalization of homelessness
- Criminalization of homosexuality
- Decriminalization, the reversal of criminalization
- Drug criminalization
- Overcriminalization
- Zero tolerance
References
- ^ Michalowski p. 6.
- ISBN 978-0-8147-7637-7.
- ^ Walklate (2003).
- ^ Elias (1993).
- ^ Currie (1991).
- ^ a b c Ashworth (1999). p. 67.
- ^ Ashworth (1999). p. 68.
- ^ Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law's Authority (Ashgate 2011) at chapter 3; Dennis J. Baker Dennis, "The Moral Limits of Criminalizing Remote Harms", (2007) 11(3) New Criminal Law Review 371, Joel Feinberg, Harm to Others: The Moral Limits of the Criminal Law, OUP, 1984: New York.
- ^ Ashworth (1999). pp. 42–43.
- ^ a b c Ashworth (1999). p. 43.
- ^ a b Ashworth (1999). p. 44.
- ^ "Convention for the Protection of Human Rights and Fundamental Freedoms Measures". Council of Europe. 2010. Retrieved 20 September 2011.
- ^ Ashworth (1999). pp. 44–45.
- ^ a b c Ashworth (1999). p. 45.
- ^ Ashworth (1999). pp. 45–46.
- ^ a b Ashworth (1999). p. 46.
- ^ Ashworth (1999). pp. 46–47.
- ^ Ashworth (1999). pp. 47–48.
- ^ a b Ashworth (1999). p. 48.
- ^ Ashworth (1999). pp. 48–49.
- ^ a b c Ashworth (1999). p. 49.
- ^ Ashworth (1999). pp. 49–50.
- ^ Ashworth (1999). p. 50.
- ^ UN Human Rights Council, http://www.ohchr.org/english/bodies/hrcouncil/
- ^ International Covenant on Economic, Social and Cultural Rights, http://www.unhchr.ch/html/menu3/b/a_cescr.htm.
Further reading
- OCLC 221150739.
- Baker, Dennis J. (2009) "The Moral Limits of Consent as a Defense in the Criminal Law", 12 New Criminal Law Review (2009); Dennis J. Baker (2008) "The Harm Principle vs Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation", 33 Australian Journal of Legal Philosophy 66 https://ssrn.com/abstract=1300351; Dennis J. Baker (2008) "Constitutionalizing the Harm Principle", 27(2) Criminal Justice Ethics 3 https://ssrn.com/abstract=1300356; Dennis J. Baker, 'The Sense and Nonsense of Criminalizing Transfers of Obscene Materials: Criminalizing Privacy Violations,’ 26 Singapore Law Review 126 (2008)https://ssrn.com/abstract=1369123; Dennis J. Baker, 'The Moral Limits of Criminalizing Remote Harms 10(3) New Criminal Law Review 370 https://ssrn.com/abstract=1130052
- Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law’s Authority, (London: Ashgate, 2011 (ISBN 978-1-4094-2765-0.)
- Currie, E. (1991) "The Politics of Crime: the American Experience" in The Politics of Crime Control. Stenson, Kevin. & Cowell, David. (eds.) London: Sage. ISBN 0-8039-8342-5
- Elias, Robert. (1993). Victims Still: The Political Manipulation of Crime Victims. London: Sage. ISBN 0-8039-5052-7
- Elias, Robert. (1994). "Crime Wars Forgotten" in Rethinking Peace. Elias, Robert & Turpin, Jennifer. (eds.). Boulder, CO: Lynne Rienner Publishers, pp. 123–31. ISBN 1-55587-488-6
- Feinberg, Joel, Harm to Others: The Moral Limits of the Criminal Law, OUP, New York: 1984.
- Fattah, Ezzat, A. (1989). "Victims of Abuse of Power" in The Plight of Crime Victims in Modern Society. New York: Palgrave Macmillan, pp. 29–73. ISBN 0-312-61758-5
- Fattah, Ezzat, A. (1992). "The Need for a Critical Victimology" in Towards A Critical Victimology. Ezzat A. Fattah (ed.). New York: Palgrave Macmillan, pp. 14–23. ISBN 0-312-07551-0
- Garkawe, Sam. (2001). "Modern Victimology: Its Importance, Scope and Relationship with Criminology". Acta Criminologica. Vol 14(2), pp. 90–99
- Harding, R. (1994). Victimisation, Moral Panics, and the Distortion of Criminal Justice Policy". Current Issues in Criminal Justice, Vol. 6, 27-42
- Michalowski, R. J. (1985). Order, Law and Crime: An Introduction to Criminology. New York: Random House.
- Jackson, J. & Naureckas, J. (1994). "Crime Contradictions: US News Illustrates Flaws in Crime Coverage". EXTRA! May/June, pp. 10–14.
- Leiper, S. (1994). "Crime and Propaganda". Propaganda Review, Vol. 11, pp. 44–6.
- Walklate, Sandra. (1989). Victimology: The Victim and the Criminal Justice Process. London: Routledge. ISBN 0-04-445160-1
- Walklate, Sandra. (2003). Understanding Criminology: Current Theoretical Debates (Crime & Justice S.). Oxford: Oxford University Press. ISBN 0-335-20951-3