Defining Crimes: Essays on the Special Part of the Criminal Law edited by R.A. Duff, Stuart Green (Oxford Monographs on Criminal Law and Justice: Oxford University Press) This collection of original essays, by some of the best known contemporary criminal law theorists, tackles a range of issues about the criminal law's 'special part'—the part of the criminal law that defines specific offences. One of its aims is to show the importance, for theory as well as for practice, of focusing on the special part as well as on the general part, which usually receives much more theoretical attention.
Some of these issues concern the proper scope of the criminal law. For example how far should it include offences of possession, or endangerment? If it should punish only wrongful conduct, how can it justly include so-called `mala prohibita’, which are often said to involve conduct that is not wrongful prior to its legal prohibition?
Other issues concern the ways in which crimes should be classified. Can we make plausible sense, for instance, of the orthodox distinction between crimes of basic and of general intent? Should domestic violence be defined as a distinct offence, distinguished from other kinds of personal violence?
Other issues concern the ways in which specific offences should be defined, the extent to which those definitions should identify distinctive types of wrongs, and the light that such definitional questions throw on the grounds and structures of criminal liability. Such issues are discussed in relation not only to such crimes as murder, rape, theft, and other property offences, but also in relation to offences such as bribery, endangerment, and possession which have not traditionally attracted such analytical attention from legal theorists.
Philosophers and theorists of criminal law have often focused on the `general part' of the criminal law (the part containing supposedly general doctrines, rules, and definitions) rather than its 'special part' (the part containing the definitions of particular offences). One could speculate about the reasons for this. Perhaps they saw it as being the primary task of philosophy, whether analytical or normative, to explicate general principles, or to identify general features of the criminal law—principles and features that could apply not just across a particular system of criminal law, but across all legal systems. That would certainly have led them to focus on the general rather than on the special part, and to illustrate their accounts, as they have tended to do, with examples of particular offences (such as murder and rape) that one would expect to find in every legal system. Or perhaps they thought that the definitions of particular offences were too parochial, too dependent on the contingencies of particular times and places, to be a fit subject for the kind of universality to which philosophy aspires.'
Whatever its underlying reasons, such neglect of the special part has been unfortunate. Nothing in the criminal law is likely to be more universal than the recognition of certain core offences such as murder, rape, and theft. It is also difficult to imagine a general part that was not in some way analytically dependent on the special part. The point is not that the general part is not also foundational; even a system of criminal law that drew no explicit distinction between a 'general' and a 'special' part would have at least an implicit general part. Rather, the point is that if we theorize about the criminal law by focusing exclusively on the general part, or on only a few supposedly paradigmatic offences, we will lose sight of much of the complexity and variety of criminal law that a more comprehensive account would capture.
Happily, the last decade has seen something of a renewal of philosophical interest in the special part and its distinctive problems; indeed, some of the most interesting recent work in the philosophy of criminal law has been on special part issues. This volume is intended to contribute to that renewal, and to demonstrate the philosophical indispensability of the special part to any adequate analytical or normative study of criminal law. In this Introduction, we will sketch some of the central issues that the special part raises, and connect them to the papers collected in this volume. Those issues are of two general kinds: one concerns the scope of the special part—what it should contain; the other concerns the way in which the offences that it contains should be defined and structured.
The question of what the special part should contain raises two distinct sets of issues: the distinction between the special part and the general part, and the scope of the criminal law.
`General Part' v 'Special Part'
There is no clear or agreed upon account of the distinction between the `general part' and the 'special part', or of just which aspects of the criminal law properly belong to each part;2 nor do we think that much is to be gained by attempting to work out a precise, sharp distinction.
For a start, we can assume that the special part contains, at a minimum, the definitions of specific criminal offences. This, of course, leaves a host of questions about what else is contained in the special part, what the general part consists of, whether the special and general parts together exhaust the whole of the criminal law, and the extent to which the two parts are mutually exclusive.
Consider the doctrine of provocation. If one surveys a range of criminal codes, one sees that the doctrine almost invariably appears in what isdesignated as the 'special part', and specifically as part of the definitions relating to homicide. The typical formulation is as follows: a homicide that would otherwise be murder is mitigated to voluntary manslaughter if the defendant acted under provocation that caused him to lose self-control and `was enough to make a reasonable man do as he did'; or if he acted 'under the influence of extreme mental or emotional disturbance for which there [was] reasonable explanation or excuse'.3 The question is whether the fact of such placement in criminal codes means that provocation is properly thought of as belonging to the special part.
While it is true that, in English and American criminal law, the doctrine of provocation applies only to homicide, there is a good argument that, as a conceptual matter, it should nevertheless be viewed as belonging to the general part. The fact is that there is nothing intrinsic to the doctrine of provocation that makes it applicable only to homicide: in principle, it could be applied to most, if not all, offences (even if it would require a vivid imagination to conjure up situations in which the commission of some offences could be ascribed to provocation). Under this approach, the fact that the doctrine is applied, in practice, only to homicide is not determinative of its place in the criminal law. What matters is whether the doctrine is in principle capable of general application. Thus, we might say that those criminal law principles that are theoretically capable of general application are part of the general part, and those that are not are part of the special part.
Conversely, there are some criminal law principles and concepts that are typically codified in the general part, but which might more properly be conceptualized as part of the special part. Think of attempt, which is usually defined in general terms: that is, the law defines it as an offence to attempt to commit any offence,' and provides general definitions of the fault and conduct elements of attempts. Now if we should have such a law, it belongs to the general part in that it embodies the doctrine, not essentially tied to any specific offence, that it is criminal to attempt what it is criminal to do. But perhaps we should not have any such general law: perhaps we should instead decide separately for each specific offence whether, how far, and by what criteria criminal liability should extend beyond the commission of the substantive mischief with which the offence is concerned.5 In that case, the locus of the doctrine of attempt would shift from the general part to the special part.
Some of these controversies about the proper scope and content of the general part (about how substantive, and how general and authoritative, it should be) will concern us later, since they obviously bear on the ways in which the special part can define specific offences: before that, however, we must discuss some issues that arise more directly from the special part.
The Criminalization Question—Underlying Principles
Before we can ask how specific offences should be defined, we must have some idea of what should count as an offence at all: what kinds of `conduce should be criminalized? Or to move back a step, what kinds of criterion, principle or value should guide decisions about criminalization? Slightly more precisely, what kinds of consideration should bear on what is logically the initial decision whether a certain kind of conduct is in principle criminalizable; and what kinds of consideration should then bear on the further decision that it would (or would not) be right to criminalize it all things considered.'
Two familiar principles, or slogans, have formed the focus of much discussion of the first (the 'in principle') question: the Harm Principle and Legal Moralism. The former takes harm and its prevention to be the primary concern of the criminal law; the latter takes wrongdoing or immorality, and its punishment or prevention, to be its primary concern.
So what should count as 'harm' for purposes of the criminal law? Is a Feinbergian analysis in terms of setbacks to interests adequate? Should we refine it so that harm requires some relatively lasting setback, or a setback to a subset of interests, such as 'welfare' interests ?8 When, if ever, is the risk of harm, rather than actual harm, sufficient to justify criminal sanctions? What room is there for ideas of harm not only to individuals, but also to groups, communities, and the state?9 Is harm to self (as opposed to harm to others)the kind of harm with which the criminal law is properly concerned? Are there cases in which the causing of something other than harm—such as `offence'—will justify criminal penalties ?1°
A second set of questions concerns the substance and scope of legal moralism. Under such an approach, what kinds of immorality, or wrongdoing, should be the concern of the criminal law? Should the criminal law be concerned with moral vice, or at least with 'the grosser forms of vice';11 or only with moral wrongdoing, however that should be understood? Must wrongs be wrongs against some person, or should the criminal law also be concerned with wrongs that are in some respect 'free-floating' ?
A third question concerns the relationship between harms and wrongs. To what extent are the two concepts intertwined? At least many wrongs clearly consist at least in part of harms, but are there harms that consist at least in part of wrongs ? There are certainly 'pure' harms, which involve no wrong (harms that flow purely from natural causes, for instance); but are there `pure' wrongs, which involve no harm?
Criminal Responsibility by Victor Tadros (Oxford Monographs on Criminal Law and Justice: Oxford University Press) considers the proper nature and scope of criminal responsibility in the light of its institutional and political role. Tadros begins by providing a general account of criminal responsibility which is based on the relationship between the action that the defendant has performed and his or her character. He then moves on to reconsider some of the central doctrines of criminal responsibility in the light of that account.
Part 1 examines the nature of criminal responsibility by exploring what it means for an agent to be responsible for an action, and the constraints that there are on holding an agent criminally responsible which arise from the particular social and institutional role that the criminal law has. Tadros develops a character theory of criminal responsibility. Character, he argues, is relevant both in determining which actions an agent is responsible for, as well as the kind of fault that he has in respect of those actions. However, he shows some limitations in the character theory of criminal responsibility as it has been defended to date, developing a version that is not susceptible to the central objections that have been levelled at character theories. Finally, Part 1 investigates the structure of criminal responsibility, considering the distinction between offence and defence, and investigating how best to categorise and structure defences.
In Part 2 Tadros moves on to consider some of the central doctrines of criminal responsibility in the light of the general theory developed in Part 1. He examines the proper nature and role of causation and investigates whether there is a general principle of criminal omissions. The book then explores the nature and role that intentions and beliefs ought to have in a theory of criminal responsibility. Tadros also provides an account of different kinds of defence: exemptions, justifications and excuses. The book includes a thorough account of the different ways in which mental disorders might ground defences, the different kinds of normative standards that the criminal law ought to set in offence and defence contexts, and whether particular deficiencies of the accused ought to be accommodated in setting those standards.
Excerpt: This book outlines a general theory of criminal responsibility, and it is hoped that many of the issues that are most important to that topic receive substantial treatment. I hope to have covered the main issues concerning the attribution of responsibility and fault in the context of criminal law, both at a general theoretical level, and in the context of particular doctrines of the criminal law.
However, the focus of the book is narrower than the title might suggest. Firstly, as I have already suggested, I will not consider the kinds of conduct that ought to be made criminal and those that ought not to be made criminal. Developing an account of the 'moral limits' of the criminal law is, I think, an enterprise that is related to the one that I am interested in developing in this book, but, beyond occasional remarks, I will not address that issue directly.
But there is another, related way in which the scope of the book is narrow. As I have already noted, there is a large body of criminal law that is what we might call `regulatory'. There are offences that do not carry with them any strong stigma, or often any great punishment, but which are part of the subject of the criminal law. It may be that it is inappropriate to apply all of the elements of criminal responsibility that I develop in this book to those offences. Of course, many offences that are called regulatory in fact have a stigmatic quality by their very nature, and many others are stigmatic to some extent at least. However, if there truly is a body of offences that do not have a stigmatic quality, I tend to take the view that they ought not to be part of the criminal law at all, but that a separate body of regulatory law ought to be developed that is distinct from the realm of criminal law. There is a danger that this distinction will be exploited. There may be a temptation to avoid the procedural protections offered to the accused in the criminal law by using regulatory law instead. But failing to distinguish formally between criminal law and regulatory law carries with it the perhaps greater risk that the procedural and substantive protections that are offered to the defendant will in general be eroded in the name of effective regulation. I also think that the reason why such offences are best thought of as regulatory rather than truly criminal has to do with the communicative function of the criminal law that is developed in this book. Excluding the truly regulatory would lend the criminal law a coherence that it presently lacks.
Furthermore, there are elements of criminal responsibility that are undoubtedly important, but which I will not consider in this book. Firstly, I will say relatively little about what John Gardner has helpfully called 'auxiliary offences'. Auxiliary offences are offences where liability is derived from the existence of a principal offence. They include offences such as criminal attempts, conspiracy, incitement and aiding and abetting. Where there is a principal offence, for example assault, there also exist auxiliary offences such as attempted assault and aiding and abetting assault. Some of the issues that are developed in this book are clearly relevant to determining the proper scope and content of those offences, and I will occasionally have something to say about how they ought to be developed. But I will not develop a full account of those offences. I will also say almost nothing about corporate criminal responsibility. A natural place to consider that question would be in the chapter on status-responsibility, but I think that the question is too complex to be done any real justice in this book, and I leave it for another day.
Into the Minds of Madmen: How the FBI's Behavioral Science Unit
Revolutionized Crime Investigation by
Don Denevi & John H. Campbell, with a foreword by John E.
Otto & a preface by Stephen Band
(Prometheus Books) When law enforcement
struggles to solve a serial murder, arson, rape, or child abduction, and is
making little headway, it turns to the FBI's legendary Behavioral Sciences Unit
(BSU) at the
Now, after more than thirty years, the inside story of the BSU has been written by John H. Campbell, former BSU chief (1989-1992), and Don DeNevi, author of many highly acclaimed true-crime books. Into the Minds of Madmen describes the difficult work of the tireless professionals who put in untold hours of procedural drudgery, reams of paperwork and tangles of bureaucratic formalities, who have devoted their careers to investigating and analyzing in meticulous detail the actions and personalities of the macabre psychopaths who haunt our streets.
In contrast to well-known fictional depictions like Silence Of The Lambs and The X-Files, DeNevi and Campbell's real-life perspective shows that the true story is more engrossing than any movie or novel. The authors reveal how this crack unit developed a new technique, from a combination of psychological profiling, and old-fashioned detective work, which succeeded in cracking a host of difficult cases, including serial murders, hostage taking, and terrorism. Readers hear what it is like to crawl into the twisted minds of notorious criminals, as psychological profilers must do to learn their motivations, patterns, and probable next moves.
The unique view of the FBI's prestigious unit, related in Into the Minds of Madmen, will provide interesting reading for fans of C.S.I., Profiler, and other similar dramas, and it is a fitting tribute to the men and women of the Behavioral Science Unit.
A Life for a Life: Life Imprisonment: America's Other Death Penalty
by James A. Paluch, Jr., edited by Thomas J. Bernard &
Robert Johnson (Roxbury) James A. Paluch, Jr. is serving a life sentence
without the possibility of parole. In
A Life for a Life, he offers the reader a detailed account of the
daily realities of prison life in its mundane essentials, from the culture of
the cellblock to the etiquette of the yard and the mess hall. The book also
highlights concepts of prisonization, institutionalization, and the community,
as well as the nature of modern punishment.
After the testimony of witnesses, including his girlfriend,
to his crime, Paluch's fate was sealed in court. He was convicted of
premeditated murder. Escaping the death penalty by the decision of 12 members of
a jury, he was sentenced to life imprisonment without parole. He next entered
the menacing world of prison, gripped with understandable fears. He was as
young as college students who may read this text, unschooled in street
violence, concerned about rape, and terrified that he might die behind bars. He
met an assortment of cellmates during his first days, none reassuring, and found
himself with a man who threatened to kill him if he didn't vacate the cell. He
faked a suicide to get reassigned and thus started his time in a mental health
Paluch writes with authority on prison life because he is a
lifer. Lifers in Pennsylvania, all ineligible for parole, comprise some 4,000
inmates –10 percent of the prison population, including those sentenced at the
tender age of 14. Paluch has spent many years behind bars. Like most lifers, he
has matured and adapted himself to his surroundings. He is a member of an
extended family united by sadness and regret, one of many who face the prospect
of growing old and dying in prison.
"Lifers are my people," he states simply. For such men,
prison is the only home they have. As a result, they have come to value maturity
and restraint. They do their time, mind their own business, avoid trouble,
organize their days carefully, work hard, take advantage of programs, and try to
make the most of the limited resources available to them in prison. In their
view, other offenders with shorter sentences, in particular the ‘young bucks’,
tend to be impetuous, selfish inmates who make noise without concern for their
fellows; hassle the staff and make survival difficult for everyone; rob and
steal, spreading fear; and litter, making the prison a dirty, uninviting place
According to Robert Johnson, American University, co-editor of A Life for a Life and author of the Preface, lifers hope to one day find redemption in their lives and to help make prison a decent place to dwell in. As a result, they are a stabilizing force. A prison full of lifers is a much easier place in which to live and work than a prison full of short-sentenced inmates. Nevertheless, model prisoners are not happy prisoners. Men like Paluch live day by day, minute by minute, trying to keep their thoughts inside the prison world rather than outside in the free world. They must cope with lost opportunities, the victims they have harmed, and the loved ones who miss them.
Paluch lives every day with his crime and the harm it has
caused, hoping that
A Life for a Life will in some way redeem him by contributing to
society’s understanding of prison life. By the end of his book, Paluch readers
to question and reevaluate whether our prisons, in their present condition,
should continue institutionalizing substantial numbers of offenders for the
rest of their natural lives.
The lure of books like A Life for a Life is the prospect of a bird's eye view of life behind bars. Readers want to feel as if they have been there, seeing and feeling this alien, often frightening world that is reserved only for felons – people whom we imagine as very different from ordinary folk. Paluck’s attention to everyday prison life may surprise readers who expect angry tales of abuse or political and ideological beefs with the world at large – not the author’s daily accounts of the sanitary state of cells, the noise pollution in cell blocks, or the nature of meals and dinnerware in the mess hall.
Death at the Priory: Sex, Love, and Murder in Victorian England by James Ruddick (Atlantic Monthly Press) The fatal poisoning of Charles Bravo in 1876 remains a great, unsolved mystery. As James Ruddick shows in this engrossing account, there was no shortage of suspects. Among them were Bravo's wife, Florence, who married the young barrister in part to erase the taint of a recent sexual scandal; Jane Cox, a servant caught spinning a web of lies about what happened the night Bravo died; and James Gully, an esteemed doctor who was also once Florence's lover. "In time, the case passed into the pantheon of English crime, a riddle that drew the interest in speculation of every passing generation," writes Ruddick. It's not hard to see why. Death at the Priory is full of compelling personalities and titillating revelations about what happened behind the closed doors of Victorian England. Ruddick promises something more than a rehash of the established facts: "I discovered the new evidence which has enabled me to expose Charles Bravo's murderer." The author ultimately does not point his finger in a surprising direction, though he has added substantial details to what's known about the case. Fans of true-crime literature will enjoy this book, especially if they're attracted to its historical setting.
Base Instincts: What Makes Killers Kill? by Jonathan H. Pincus, M.D. (Norton) A groundbreaking exploration of the origins of violent behavior. Jeffrey Dahmer, Ted Bundy, Andrew Cunnanen—these notorious killers shocked the world with horrifying stories of rampant murder and abuse. Neurologist Jonathan Pincus probed the lives of numerous serial killers and other violent criminals to find out what triggers the violent instinct. Working with psychiatrist Dorothy Lewis, he investigated their family backgrounds and medical history, discovering that virtually all the murderers themselves suffered severe abuse as children, which permanently damaged their developing brains. In these gripping, terrifying stories, Dr. Pincus finds that violent criminal behavior cannot be attributed solely to genetics—rather, it is the catastrophic product of a brain that may be predisposed to violence by neurologic damage and mental illness coupled with an abusive environment. Focusing on these critical factors, how can we identify potentially violent persons from a young age before the damage becomes irrevocable? How can we rehabilitate violent criminals and at the same time safeguard against their committing future crimes?
The Gates of Janus by Ian Brady, Introduction by Colin Wilson, Foreword by Alan Keightley, Afterword by Peter Sotos (Feral House) Known as The Moor Murders, the case of Ian Brady and Myra Hindley's torture, sexual abuse, and murder of a child and two teenagers in the early 1960s is thought to be the most appalling series of crimes ever committed in England. To understand human character, one must first explore the depraved reaches of human consciousness. So believes novelist and true-crime writer Colin Wilson, who introduces Brady's book. Brady first explores human impulse based on his readings, observations, and life story. He then analyzes a dozen other serial crimes and serial murderers.
Applied Crime Analysis by Karim Vellani and Joel Nahoun (Butterworth-Heinemann) uses fictional case study found throughout chapters that help readers apply statistical data to practical, everyday use. Discusses crime analysis techniques and theories in detail Covers all aspects of crime analysis for private sector businesses.
Applied Crime Analysis will cover all aspects of crime analysis for private sector businesses. The book compares data sources used in conducting crime analysis, ways to organize statistical data, crime analysis methodologies, crime prevention theories, and methods of determining patterns and trends. By explaining the significance of crime statistics with crime prevention theory and techniques, Applied Crime Analysis will provide readers with a road map to implementing security resources and for justifying associated expenditures.
CONTENTS: Introduction; Users of Crime Analysis; Data Sources; Levels of Analysis; Organization of Data; Crime Prevention Theories; Methodology; Crime Analysis Graphics; Crime Prevention Programs; Legal Ramifications; Crime Analysis in the Public Sector; Conclusion Appendix A: Uniform Crime Report Definitions of Crime; Appendix B: Uniform Crime Report Coding System; Appendix C: Common Formulas used in Crime AnalysisREADERSHIP: Security personnel responsible for security at properties used by the public; students in security/crime prevention courses
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