The Limits Of The Criminal Sanction
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| Author | : Herbert Packer |
| Publisher | : Stanford University Press |
| Total Pages | : 404 |
| Release | : 1968-06-01 |
| Genre | : Social Science |
| ISBN | : 9780804780797 |
The 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.
| Author | : Herbert L. Packer |
| Publisher | : |
| Total Pages | : 385 |
| Release | : 1973 |
| Genre | : |
| ISBN | : |
| Author | : Douglas Husak |
| Publisher | : Oxford University Press |
| Total Pages | : 244 |
| Release | : 2008-01-08 |
| Genre | : Philosophy |
| ISBN | : 0198043996 |
The United States today suffers from too much criminal law and too much punishment. Husak describes the phenomena in some detail and explores their relation, and why these trends produce massive injustice. His primary goal is to defend a set of constraints that limit the authority of states to enact and enforce penal offenses. The book urges the weight and relevance of this topic in the real world, and notes that most Anglo-American legal philosophers have neglected it. Husak's secondary goal is to situate this endeavor in criminal theory as traditionally construed. He argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself-even though these resources have not been used explicitly for this purpose. Additional constraints emerge from a political view about the conditions under which important rights such as the right implicated by punishment-may be infringed. When conjoined, these constraints produce what Husak calls a minimalist theory of criminal liability. Husak applies these constraints to a handful of examples-most notably, to the justifiability of drug proscriptions.
| Author | : Erin I. Kelly |
| Publisher | : Harvard University Press |
| Total Pages | : 241 |
| Release | : 2018-11-12 |
| Genre | : Philosophy |
| ISBN | : 0674980778 |
Faith in the power and righteousness of retribution has taken over the American criminal justice system. Approaching punishment and responsibility from a philosophical perspective, Erin Kelly challenges the moralism behind harsh treatment of criminal offenders and calls into question our society’s commitment to mass incarceration. The Limits of Blame takes issue with a criminal justice system that aligns legal criteria of guilt with moral criteria of blameworthiness. Many incarcerated people do not meet the criteria of blameworthiness, even when they are guilty of crimes. Kelly underscores the problems of exaggerating what criminal guilt indicates, particularly when it is tied to the illusion that we know how long and in what ways criminals should suffer. Our practice of assigning blame has gone beyond a pragmatic need for protection and a moral need to repudiate harmful acts publicly. It represents a desire for retribution that normalizes excessive punishment. Appreciating the limits of moral blame critically undermines a commonplace rationale for long and brutal punishment practices. Kelly proposes that we abandon our culture of blame and aim at reducing serious crime rather than imposing retribution. Were we to refocus our perspective to fit the relevant moral circumstances and legal criteria, we could endorse a humane, appropriately limited, and more productive approach to criminal justice.
| Author | : Andreas von Hirsch |
| Publisher | : Bloomsbury Publishing |
| Total Pages | : 206 |
| Release | : 2017-02-09 |
| Genre | : Law |
| ISBN | : 1509902678 |
This book provides an accessible and systematic restatement of the desert model for criminal sentencing by one of its leading academic exponents. The desert model emphasises the degree of seriousness of the offender's crime in deciding the severity of his punishment, and has become increasingly influential in recent penal practice and scholarly debate. It explains why sentences should be based principally on crime-seriousness, and addresses, among other topics, how a desert-based penalty scheme can be constructed; how to gauge punishments' seriousness and penalties' severity; what weight should be given to an offender's previous convictions; how non-custodial sentences should be scaled; and what leeway there might be for taking other factors into account, such as an offender's need for treatment. The volume will be of interest to all those working in penal theory and practice, criminal sentencing and the criminal law more generally.
| Author | : Hyman Gross |
| Publisher | : Oxford University Press |
| Total Pages | : 238 |
| Release | : 2012-01-12 |
| Genre | : Law |
| ISBN | : 0199644713 |
Presenting an engaging critique of current criminal justice practice in the UK and USA, this book introduces central questions of criminal law theory. It develops a forceful argument that the prevailing justifications for punishment are misguided, and have resulted in the systematic infliction of unnecessary human misery.
| Author | : Matthew Dyson |
| Publisher | : |
| Total Pages | : 597 |
| Release | : 2018 |
| Genre | : Comparative law |
| ISBN | : 9781780687896 |
From a framework of core principles, 'The Limits of Criminal Law' explores the normative and performative limits of criminal law at the borders of crime with tort, non-criminal enforcement, medical law, business regulation, administrative sanctions, terrorism and intelligence law. It carefully juxtaposes and compares English and German law on each of these borders, drawing out underlying concepts and building a detailed picture of what shapes criminal law, where its limits come from, and what might motivate legal systems to strain, ignore or strengthen those limits.
| Author | : Michael R. Gottfredson |
| Publisher | : Oxford University Press |
| Total Pages | : 297 |
| Release | : 2020 |
| Genre | : Law |
| ISBN | : 0190069805 |
Modern Control Theory and the Limits of the Criminal Justice develops and extends the theory of self control advanced in Gottfredson and Hirschi's classic work A General Theory of Crime. Since it was first published, their general theory has been among the most discussed and researched perspectives in criminology. This book critically reviews the evidence about the theory, contrasting it with alternative perspectives, and argues in favor of prevention efforts during early childhood to deal with the many problems facing the criminal justice system in America.
| Author | : Malcolm M. Feeley |
| Publisher | : Russell Sage Foundation |
| Total Pages | : 365 |
| Release | : 1979-10-03 |
| Genre | : Social Science |
| ISBN | : 1610442016 |
It is conventional wisdom that there is a grave crisis in our criminal courts: the widespread reliance on plea-bargaining and the settlement of most cases with just a few seconds before the judge endanger the rights of defendants. Not so, says Malcolm Feeley in this provocative and original book. Basing his argument on intensive study of the lower criminal court system, Feeley demonstrates that the absence of formal "due process" is preferred by all of the court's participants, and especially by defendants. Moreover, he argues, "it is not all clear that as a group defendants would be better off in a more 'formal' court system," since the real costs to those accused of misdemeanors and lesser felonies are not the fines and prison sentences meted out by the court, but the costs incurred before the case even comes before the judge—lost wages from missed work, commissions to bail bondsmen, attorney's fees, and wasted time. Therefore, the overriding interest of the accused is not to secure the formal trappings of the judicial process, but to minimize the time, and money, spent dealing with the court. Focusing on New Haven, Connecticut's, lower court, Feeley found that the defense and prosecution often agreed that the pre-trial process was sufficient to "teach the defendant a lesson." In effect, Feeley demonstrates that the informal practices of the lower courts as they are presently constituted are more "just" than they are usually given credit for being. "... a book that should be read by anyone who is interested in understanding how courts work and how the criminal sanction is administered in modern, complex societies."— Barry Mahoney, Institute for Court Management, Denver "It is grounded in a firm grasp of theory as well as thorough field research."—Jack B. Weinstein, U.S. District Court Judge." a feature that has long been the hallmark of good American sociology: it recreates a believable world of real men and women."—Paul Wiles, Law & Society Review. "This book's findings are well worth the attention of the serious criminal justice student, and the analyses reveal a thoughtful, probing, and provocative intelligence....an important contribution to the debate on the role and limits of discretion in American criminal justice. It deserves to be read by all those who are interested in the outcome of the debate." —Jerome H. Skolnick, American Bar Foundation Research Journal
| Author | : Alisa Smith |
| Publisher | : Routledge |
| Total Pages | : 166 |
| Release | : 2019-05-22 |
| Genre | : Law |
| ISBN | : 1000006905 |
This book explores misdemeanor courts in the United States by focusing on the processing of misdemeanor crimes and the resultant consequences of conviction, such as loss of employment and housing, the imposition of significant fines, and loss of liberty—all amounting to the criminalization of poverty that happens in many U.S. misdemeanor courts. A major concern is the lack of due process employed in lower courts. Although the seminal case of Gideon v. Wainwright required the appointment of counsel to individuals too poor to hire counsel in felony cases, it was not until 1967, when the President’s Commission on Law Enforcement and Administration of Justice found a crisis in the lower courts, that the Supreme Court extended the right to counsel to some (though not all) prosecutions of misdemeanor offenses. The first step to improving our understanding of the lower courts is a concerted effort by scholars to focus on the processing and outcomes of misdemeanor cases. This collection begins to fill the void by providing a comprehensive review of the scholarly work on the lower courts in the United States. Collecting analysis from key academics engaged in work in this area today, the book reviews the varying specialized lower criminal courts, including specialty courts that have emerged in just the last couple of decades, along with discussions of the history, legal challenges, operation, primary actors (judges, prosecutors, defense counsel, and defendants), and current research on these courts. The book explores the profound consequences misdemeanor processing has for defendants and discusses the future of the lower criminal courts and offers best practices to improve them. The Lower Criminal Courts is essential for scholars and undergraduate and graduate students in criminology, sociology, justice studies, pre-law/legal studies, political science, and social work, and it is also useful as a resource providing legal practitioners with important information, highlighting the significance of consequences of misdemeanor arrests, detentions, and adjudications.
