Revisions Flashcards
Crime - What?
No ontological reality
Look at the perpetrator
Look at the law
Look at the societal context
Crime Prism
The Crime Prism
- Harmfulness
- Extent of victimization
- Visibility
- Social response
- Social consensus
Moral Panic
- Initial Spark
- Suitable enemy
- Suitable victim
- Societal consensus
Additional characteristics:
- Concern
- Hostility
- Consensus
- Disproportion
- Volatility
Good? Brings a new light. Moral entrepreneurship is not restricted to an elite
Denial
- No story-telling
- No easy apprehension
- Lack of empirical data
- Need of something tangible (or imaginable)
Literal Denial - Does not believe the facts
Interpretative denial - Believes the facts but gives it a different interpretation
Implicatory denial - Believes the facts but gives it different consequences
Scapegoating
- Stereotypical group, defenceless
- Crisis period for society
- Against acts that offend social standards
- Stigmata - Devil v. Angel
- Target is subject to violence (social, physical, psychological, financial, legal…)
Criminal policy - Two kinds
Legal policies - As a reaction
Criminological policies - As prevention
Criminal policy - Other kinds of policies
Sociological - To help the criminal (or potential criminal) deal with his mental issues
Biological - To help the criminal via medication
Architectural/environmental - Limit the opportunities for crime by adapting the environment
Principle of Individual Autonomy
Each individual should be treated as responsible for his behavior
Factual - We are reasonable beings with free will
Normative - We have to be respected and treated as autonomous agents
Principle of Individual Autonomy - Duty to protect
The state has a duty to protect the freedoms or its citizens.
One’s freedoms should not be undermined unless it goes against someone else’s freedoms.
Harm Principle
Mill - The state may only criminalize behavior that causes harm to others or create an unreasonable risk.
What is harm? Individual harm and public wrongs
Public Wrongs
- Not individual - Do not focus on the victim but on population in general
- Sense of belonging, community
- To protect democracy over attacks against it
- Freedom is the result of self-control
Principle of Ultima Ration
Subsidiarity:
- Check both utilitarianism and retributivism
Principles of Criminalisation and Hate Speech - US
- Needs a public element
- Intent
- Imminence
- Likelihood
- ‘True Threat’ doctrine - Virginia case (burning cross)
- Intimidating speech must show clear intent
Principles of Criminalisation and Hate Speech - NL
- Is the utterance defamatory? Must address a group because of its characteristics, not just the group in itself
- Does the context nullify the defamatory character? Can also show it - Against ECHR
- Is the utterance nonetheless ‘unnecessarily offensive’?
Risk Society - What?
Our modern society can no longer control the risks it created.
No more distribution of goods but a focus on how to deal with the wrongs created by the system
Risk Society - Why?
The end of tradition - Individualisation and emancipation
The end of nature - Risks created by modernization
New risks - Invisible, irreversible, no social or geographical barrier
Culture of Control - What?
Social reform will reduce the frequency of crime
The state is responsible for the care of offenders and their punishment - So the state is also responsible for control
Penal Welfarism - What?
To take care of and protect citizens
To provide basic needs
To help people achieve their goals and their best
Penal welfarism - Shift
To preventive justice
From a social to an economical style of reasoning
3rd sector
Criminologies of control
Criminology of the other
Criminology of every day life
Against criminology of welfare
Culture of Control - Criticism
- Assumption that increasing risk is a valid excuse to restrict freedom
- Trades the freedoms of a minority against the security of a minority
- More power to the state = more risks of abuse
- Unclear definition of ‘security’
Terrorism - Definition
The deliberate creation and exploitation of fear through violence or the threat of violence in the pursuit of political change
Terrorism - Soft Tactics
Reaching out to the community - Educate and prevent
Terrorism - Indirect incitement of crime - Ratopnale
Assumption that cognitive radicalization will lead to behavioral radicalization - Wrong! Not supported by data
Terrorism - Direct incitement of crime
Because the offender is culpable
Because prevention of harm
Because protection of public order
Indirect and direct incitement to Terrorism - UK
- If glorification of the commission or preparation of acts there must be emulation (or reasonable expectation of).
- Clear intent
- Dissemination of terrorist speech (propagation)
- Inchoate liability, regardless of whether there was an actual act
- Usually charged with reference to another terrorist offense
Direct and Indirect Incitement to Terrorism - NL
- Public order offense of incitement to criminal acts
- Inciting, encouraging, requesting or suggesting.
- To an actual offense (but does not need to be precised).
- Considerable risk
- Clear intent
- For propagation of terrorist speech too
- Inchoate liability
- Usually charged with reference to another terrorist offense
Determinism
The current state of the world is determined by its past conditions and the law of physics
Free will
- Principle of alternative possibilities
- Ultimate source principle (causalism - since everything is caused by something else, my decision is not caused by me)
- Mental causation - Conscious will that you are the cause for your actions
Incompatibilism
- Causal determinism is true (no alternative possibilities, no ultimate source)
- I need alternative possibilities and ultimate source for responsibility
- There is no alternative possibilities.
- There is no responsibility
Libertarianism
- Causal determinism is true (no alternative possibilities, no ultimate source)
- I need alternative possibilities and ultimate source for responsibility
- There are alternative possibilities, free will!
- There is responsibility
Compatibilist
- Causal determinism is true (no alternative possibilities, no ultimate source)
- I do not need alternative possibilities and ultimate source for responsibility
- There are no alternative possibilities.
- There is legal responsibility:
- Only requires a general capacity for rationality
- Morse - Reason, rationality and reasoned responsiveness
Neuroscience - Consequentialism v retributivism
If free will does not exist than retributivism can not either.
Utilitarianism does not need responsibility to establish punishment - Humans as objects, not subjects
Neuroscience - Green & Cohen v. Morse
Law is immune from Neuroscience:
- It only provides evidence of brain activity, confirms what psychology and sociology have been saying
- It will not change our moral and social standards
- It can help us determinate them though
- Should neuroscience be taken more seriously? Why would it?
Brain Overclaim Syndrome
- Overhyping the evidence of neuroscience
- Finding the cause does not mean that everything can be excused - Psycholegal error
- Mereological error - Reducing the whole person to just his brain
Environmental Harm - Administrative dependency
Advantages:
- Balancing of interests can be difficult in criminal law
- Easier prosecution
Disadvantages:
- More power to local administration (can determine what is to be defined as pollution + sanctions)
- The administrative offense is punished, not the environmental harm itself
Environmental Harm - Model I
- Abstract endangerment
- Environmental values protected indirectly
- Administrative deviancy
- No harm required
Environmental Harm - Model II
- Concrete endangerment
- Administrative deviancy
- Requires a threat of harm
- Presumed endangerment - Could be dangerous
- Demonstrated endangerment - Is dangerous (requires affirmative proof)
Environmental Harm - Model III
- Concrete harm
- Administrative deviancy
- Requires an actual environmental harm (usually by endangerment of health or property)
- Problem of causation + long term effects
Environmental Harm - Model IV
- Serious environmental pollution
- Crime!
- Can not be allowed under any circumstances
Prostitution - Prohibitionist
Punish all parties
Prostitution is deviant and criminal
Prostitution - Abolitionist
Women are the victims of prostitution - They should be protected
Only criminalize 3rd parties
Side effects:
- Big traffickers will not be dismantled
- Underground displacement
- International displacement
Prostitution - Regulationist
Prostitution is inevitable - It should be regulated
It’s a regular job and should be treated as such
Prostitution - NL
- Prostitutes are strong independent entrepreneurs
- After 2000, brothels are allowed
- To control and regulate voluntary prostitution through municipal licensing
- To combat forced prostitution
- To protect minors
- For the position of prostitutes
- De-marginalise prostitution
- Reduce level of prostitution from foreign women
Preventive Justice
- No institutional or structural changes, just social
- More retributive, more punitive, victim centred, security minded, offense centred
- To protect the victim, not help the offender
- Harsher, more intrusive measures
- Rights of the victim v. rights of the offender - Excluded from society and democracy
Social to economic style of reasoning
- Before social crime = social solution
- Now we want value for money - ‘Smart sentencing’ to use less resources and achieve maximum effect (in terms of protection)
Indirect incitement of crime - UK and GR
Proscription of organization.
Indirect incitement of crime - NL
Difficult in NL because of FoA and FoE.
Indirect incitement of crime - US
- Evidence of speech in support for a terrorist organization
- Knows that the organization is terrorist
- The utterances were formed in coordination with the organization
Prostitution NL - Control and regulation
- Insufficient capacity for the non-licensed sector because police is busy with licenses
- Some do not want to license because of administrative barriers or taxes
Prostitution NL - To combat forced prostitution
- Police is busy with licenses
- Sanctions are difficult to execute, difficult to detect or calculate
Prostitution NL - To protect minors
Minors went underground (Sneep case)
Prostitution NL - For the position of prostitutes
- Social position has not changed
- Not enough protection for women who want to get out
Prostitution NL - De-marginalizing prostitution
- Concentration
- Increased organized crime
Prostitution NL - Reduce level of prostitution of foreign women
Increased instead but difficult to determine
