Sources of Criminal Law, Theories of Criminal Punishment - Coursework Example

Outline Introduction What is criminal law? Sources of Criminal Law Constitutional Limitations on Criminal Law Theories of Criminal Punishment What is crime? Crimes against the state Conclusion Introduction This paper is going to improve our understanding on what are criminal law, crime, and crimes against the state. This has been done by using various materials of study that are relevant to the topics. Te materials have been obtained from credible sources thus the findings are accurate What is criminal law? Legality According to Common Law, a person may not be punished unless his conduct was defined as Criminal at the time the offense was committed. This prohibition on retroactive criminal lawmaking constitutes the essence of the principle of legality. There are three interrelated corollaries to the legality principle: Criminal statutes should be understandable to reasonable law-abiding persons. A Criminal statute must give “sufficient warning to men of common intelligence as to what Conduct is unlawful.” A person is denied due process of law if he is convicted and punished for violation of a statute that lacks such clarity. Criminal statutes should not delegate basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis. Judicial interpretation of ambiguous statutes should “be biased in favor of the accused” (the lenity doctrine). Sources of Criminal Law Common Law: Common law is judge-made law. Even when super ceded by Statutory law, common law may serve to interpret ambiguous statutory terms. Criminal Statutes: Today, statutory law is the prevailing source of criminal law and it is replaced common law. Although most states have abolished common law Crimes, a few have enacted “reception” statutes, expressly recognizing common law offenses when statutory law does not provide a punishment for such offense. In effect, such a statute “receives” the common law offenses in place at the time of the statute’s enactment. In other words, statutory law classifies a crime as a felony or a misdemeanor, both of these may be subdivided into degrees. A felony is punishable by death or imprisonment in a state or federal prison. The maximum punishment for a misdemeanor is a monetary fine, incarceration in a local jail, or both. Some jurisdictions also have an additional classification of “violation” or “infraction” for which only a monetary fine is authorized. Model Penal Code: Although the Code – published by the American Law Institute – is not the law in any jurisdiction, it stimulated adoption of revised penal codes in at least thirty-seven states. Although some state legislatures have adopted only small portions of the Model Code as their own, other jurisdictions (including New Jersey, New York, Pennsylvania, and Oregon) have enacted many of its provisions. Courts, on their own, sometimes turn to the Model Code and its supporting commentaries for guidance in interpreting non-Code criminal statutes. Constitutional Limitations on Criminal Law Various provisions of the United States Constitution impose limits on federal and state legislative action. A state legislature is also limited by its own state constitution, which may place greater restrictions on it than does the federal Constitution. Limits on Federal Action; The “Bill of Rights” restricts the power of the federal government in its relationship to individuals. Limits on State Action; The Fourteenth Amendment to the United States Constitution imposes limits on state government. The 14th Amendment: Prohibits states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States” “Deprive any person of life, liberty, or property without due process of the law;” or “Deny to any person within its jurisdiction the equal protection of the laws.” Theories of Criminal Punishment According to[ CITATION BEL05 \l 1033 ] there are several theories of criminal punishment which include: Utilitarianism The utilitarian theory is essentially one of deterrence. Punishment is justifiable if, but only if, it is expected to result in a reduction of crime. Punishment must be proportional to the crime, this means that punishment be inflicted in the amount required but no more than is required, to satisfy utilitarian crime prevention goals. Utilitarianism consider the effect of a form of punishment in terms of both general deterrence and specific or individual deterrence. When the goal is general deterrence, punishment is imposed in order to dissuade the community at large to forego criminal conduct in the future. When the goal is specific deterrence, punishment is meant to deter future misconduct by an individual defendant by both preventing him from committing crimes against society during the period of his incarceration (incapacitation), and reinforcing to him the consequences of future crimes (intimidation). Another form of utilitarianism is rehabilitation or reform. Examples of rehabilitative “punishment” include: psychiatric care, therapy for drug addiction, or academic or vocational training. Retributivism Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it. There is no exterior motive such as deterring others from crime or protecting society – here the goal is to make the defendant suffer in order to pay for his crime. Retributive theory assigns punishment on a proportional basis so that crimes that cause greater harm or are committed with a higher degree of culpability (e.g., intentional versus negligent) receive more severe punishment than lesser criminal activity. Denunciation (Expressive Theory) The denunciation theory – which holds that punishment is justified as a means of expressing society’s condemnation of a crime – has both utilitarian and retributive components. Under a utilitarian theory, denunciation is desirable because it educates individuals that the community considers specific conduct improper, channels community anger away from personal vengeance, and serves to maintain social cohesion. Under a retributive theory, denunciation serves to punish the defendant by stigmatizing him. What Is a Crime? [ CITATION WIL70 \l 1033 ],A crime is an action that is against the law or ignoring an action that is required by law. Committing a crime can subject you to penalties such as fines, imprisonment or both. The more serious the crime, the more severe the penalty. Crimes are divided into three major groups: summary offenses, misdemeanors and felonies. Summary offenses include most traffic violations, disorderly conduct and first-offense shoplifting. Summary charges are brought against a person through a citation from a police office or by summons from a magisterial district judge to appear and answer to charges. What constitutes a "crime" depends on the government bodies of a country. In the united states of America you will be subject to three sets of laws at any given time. The first set is defined by federal statute. The second set is outlined by your state government. The third set are laws are enacted by local government and are commonly referred to as municipal ordinances. Local rules focus on the conduct that the local community expects people to abide by like speed limits in school zones and noise control at certain hours. If there is ever a conflict in federal law with a state or local rule, federal law will generally control. Most crimes require that you complete an affirmative act before you can be punished for the conduct. If you store drugs in the pocket of your jacket, you affirmatively possess a controlled substance. Some crimes, ironically, punish for omissions. For example, if you are aware that your boyfriend is physically abusing your child, you could be charged for failing to report child abuse. The basis of the crime isn’t what you did, but rather what you failed to do. The Role of Intent Many people also assume that crimes are the result of an intentional conduct. Like noted above, if you intentionally had drugs, you could be punished for the intent of your conduct. However, crimes can also involve negligent conduct. For example speeding Most people never really intend to speed. They just (for instance) get caught up in their favorite song and never notice that they are speeding. But regardless of the intent, they are still liable for the speeding ticket. Another crime which has been growing in momentum is using a cell phone while driving. Because of the number of children injured, many states and communities have begun enacting laws which prohibit you from driving in a school zone while using a cell phone. For instance if you injure a child while going through a school zone and using a cell phone, you could be charged for negligently causing injuries to the child. You did not intend to hurt the child, but because of your negligence, you could still be criminally prosecuted and punished. Crimes also vary by jurisdiction; from state to state and town to town. If you are concerned about whether your conduct, or absence of conduct, could result in a criminal charge being filed against you, consult with a criminal attorney in your jurisdiction to see what exactly constitutes a crime in your town or state. Crimes against the state Piracy “According to Angolan law[ CITATION LAU03 \l 1033 ], the crime of piracy is deemed to be the crime committed by a person who, by violent or fraudulent means, takes over the command of an aircraft or ship or commits illegal and violent acts against such aircraft or ship under its command or against its passengers or cargo in order to undermine the security of a state or country. Included in this crime are land, sea or air signals emitted for purposes of facilitating actions that will lead to the taking over or commitment of violent acts against aircraft or ships, their passengers or cargo. Rebel activities “Any person who commits an illicit act aimed at, directly or indirectly, changing all or part of the Constitution or the established form of government is deemed to be guilty of the crime of rebel action. Sabotage Sabotage is deemed to be the destruction of and intentional attacks that seriously affects the normal operation of means of communication, service installations, state companies or companies in which the state has an interest, or even other structures geared towards the supply or satisfaction of the basic requirements of the population, including the basic products supplied by such services, companies or units.”4 Explosives The unauthorized manufacture, importation, purchase, sale, transport or possession of inflammable devises, materials or substances, explosives, asphyxiating, toxic, chemical or biological materials is punishable by law. Planning Acts of Terrorism In general terms, the Penal Code7 defines a terrorist organization as any group acting in co-ordination, and seeking to: • Jeopardize national integrity; • Subvert the functioning of State institutions provided for under the constitution. It could also be defined as practicing individual acts of terrorism by anyone who, acting with the purposes mentioned above, commits: • Crimes against the life or physical integrity of a person; deliberately creates a common danger through fire, dissemination of radio-active substances or toxic gases, In Article 22, the Penal Code concerning crimes against external state security foresees the punishment of whoever promotes or establishes a terrorist group, adheres thereto or supports it; “whoever engages in unauthorized manufacturing, purchase, transfer, sale, transportation, possession or introduction of chemical material, substances or devices, shall be condemned to 8–12 years of confinement. Law Against Mercenary Action mercenary action Is the entry of foreigners into national territory for purposes of conducting military actions, in exchange for financial benefit; who are integrated in groups that do not form part of the regular army of any country, with the purpose of acting against the sovereignty of the Republic of Angola and the integrity of its territory through military actions against civilians, economic assets, the life or physical or moral integrity of the country’s leaders or any action that endangers the peace and security of the people. In order for someone to be considered a mercenary, he would have had to practice these acts after being recruited, in return for some type of financial benefit which had been agreed upon. A formal agreement is not required.9 Sedition [ CITATION tex06 \l 1033 ] Contains three relevant offenses; A person commits an offense if the person knowingly: (1) commits, attempts to commit, or conspires with one or more persons to commit an act intended to overthrow, destroy, or alter the constitutional form of government of this state or of any political subdivision of this state by force or violence; (2) under circumstances that constitute a clear and present danger to the security of this state or a political subdivision of this state, advocates, advises, or teaches or conspires with one or more persons to advocate, advise, or teach a person to commit or attempt to commit an act described in Subdivision (1); or (3) Participates, with knowledge of the nature of the organization, in the management of an organization that engages in or attempts to engage in an act intended to overthrow, destroy, or alter the constitutional form of government of this state or of any political subdivision of this state by force or violence. Treason The government [ CITATION tex11 \l 1033 ] Provides that: Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court. Conclusion In a nut shell, various issues have emanated from the wide coverage of the above three topics namely; Criminal law, crime and Crimes against the state. We have gained a deeper insight in regard to what the entail. This will facilitate more adherence to what stipulate thus leading to a moiré orderly society. References CITATION BEL05 \l 1033 : , (BELBOW, 2005), CITATION WIL70 \l 1033 : , (FLORIDA, 1970), CITATION LAU03 \l 1033 : , (DONHUE, 2003), CITATION tex06 \l 1033 : , (government, 2006), CITATION tex11 \l 1033 : , (government, treason, 2011), Read More