Criminalization

Question 1

Describe the components to a crime

Answer 1

1. Person causes a prohibited social harm
2. The social harm is due to morally blameworthy behavior
3. As a result, the person is morally condemned by the community

Question 2

What are the sources of criminal laws

Answer 2

1. Constitution (primarily procedural)
2. Statutory / regulatory law
3. Common law (primarily used as an interpretive source for statutory law)

Question 3

Describe the common law constraints on criminalization

Answer 3

1. Principle of legality (prohibits retroactive criminality)
2. Rule of specificity (rule must be understandable and specific enough for people to follow and law enforcement to enforce)
3. Rule of lenity (if a law is unresolvably ambiguous, it’s favored for the defendant)

Question 4

Describe the constitutional constraints on criminalization

Answer 4

1. Bills of Attainder - Art I §9 - Prohibits statutes that specifically target a person or group
2. Ex post facto laws - Art I §10 - Prohibits retroactive criminality (statutory equivalent to principle of legality)
3. Due process - 5th & 14th - Substantive and procedural rights
4. Equal protection - 5th & 14th - No discrimination on basis of protected classes
5. Cruel and unusual punishment - 8th - Limits certain criminal laws

Question 5

Describe the brutalization effect

Answer 5

Punishments designed to teach society actually validate the negative behavior (e.g., spanking a child to teach them not to hit others)