The Limits of the Criminal SanctionThe argument of this book begins with the proposition that there are certain things we must understand about the criminal sanction before we can begin to talk sensibly about its limits. First, we need to ask some questions about the rationale of the criminal sanction. What are we trying to do by defining conduct as criminal and punishing people who commit crimes? To what extent are we justified in thinking that we can or ought to do what we are trying to do? Is it possible to construct an acceptable rationale for the criminal sanction enabling us to deal with the argument that it is itself an unethical use of social power? And if it is possible, what implications does that rationale have for the kind of conceptual creature that the criminal law is? Questions of this order make up Part I of the book, which is essentially an extended essay on the nature and justification of the criminal sanction. We also need to understand, so the argument continues, the characteristic processes through which the criminal sanction operates. What do the rules of the game tell us about what the state may and may not do to apprehend, charge, convict, and dispose of persons suspected of committing crimes? Here, too, there is great controversy between two groups who have quite different views, or models, of what the criminal process is all about. There are people who see the criminal process as essentially devoted to values of efficiency in the suppression of crime. There are others who see those values as subordinate to the protection of the individual in his confrontation with the state. A severe struggle over these conflicting values has been going on in the courts of this country for the last decade or more. How that struggle is to be resolved is a second major consideration that we need to take into account before tackling the question of the limits of the criminal sanction. These problems of process are examined in Part II. Part III deals directly with the central problem of defining criteria for limiting the reach of the criminal sanction. Given the constraints of rationale and process examined in Parts I and II, it argues that we have over-relied on the criminal sanction and that we had better start thinking in a systematic way about how to adjust our commitments to our capacities, both moral and operational. |
Contents
| 3 | |
| 9 | |
| 17 | |
Justifications for Criminal Punishment | 35 |
Toward an Integrated Theory of Criminal | 62 |
Culpability and Conduct | 71 |
Culpability and Excuses | 103 |
Proof and Proportionality | 136 |
Review of Errors | 227 |
A Tentative Appraisal | 239 |
An Approach to the Problem of Limits | 249 |
Law and Morals | 261 |
Profit and Loss | 270 |
Morals Offenses | 296 |
Miscellaneous Offenses | 332 |
Means and Ends | 364 |
Two Models of the Criminal Process | 149 |
From Arrest to Charge | 174 |
From Charge to Guilt | 205 |
Index | 379 |
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abortions accused addiction appear argument arrest assert bail basis behavior charge civil commitment claim conviction counsel Court Crime Control Model criminal conduct criminal justice criminal law criminal process criminal punishment criminal sanction criteria culpability danger deal decision defendant detention determination deterrence devices doctrine drugs Due Process Model effect evidence example excuse fact federal gambling goal H. L. A. Hart harm illegal important imposed incapacitation infliction insanity defense involves issue judge judicial jury kinds of conduct law enforcement legislative legislature limited marijuana means mens rea ment Model Penal Code moral narcotics norms obscenity offenses official operation person plea police position possible pre-trial presumption of innocence prevention principle of legality probably problem prosecution prosecutor purpose question rationale reason rehabilitation require result retributive sexual simply social society statute statutory rape strict liability substantial suspect thought tion Treatment trial utilitarian values
Popular passages
Page 115 - Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.
Page 68 - Every person (except a California Indian) without visible means of living who has the physical ability to work, and who does not seek employment, nor labor when employment is offered him; or 2.
Page 183 - If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.
Page 307 - A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.
Page 158 - There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.
Page 151 - The presumption of innocence is a direction to officials about how they are to proceed, not a prediction of outcome.
Page 121 - No problem in the drafting of a penal code presents greater intrinsic difficulty than that of determining when individuals whose conduct would otherwise be criminal ought to be exculpated on the ground that they were suffering from mental disease or defect when they acted as they did.
Page 264 - States and imposition of a civil penalty pursuant to paragraph (1) shall not give rise to any disability or legal disadvantage based on conviction for a criminal offense.
Page 121 - ... to be exculpated on the ground that they were suffering from mental disease or defect when they acted as they did. What is involved specifically is the drawing of a line between the use of public agencies and public force to condemn the offender by conviction, with resultant sanctions in which there is inescapably a punitive ingredient (however constructive we may attempt to make the process of correction) and modes of disposition in which that ingredient is absent, even though restraint may...