An individual commits a crime if he or she acts in a way that fulfills every element of an offense. The statute establishing the offense also establishes the elements of the offense. In a criminal prosecution, the government has the burden of proof to establish every element of a crime beyond a reasonable doubt.
According to the Supreme Court in Elonis v. United States , U. Crimes can be generally separated into four categories: felonies , misdemeanors , inchoate offenses , and strict liability offenses. Each state, and the federal government, decides what sort of conduct to criminalize. The U. Code is far more extensive than the common law.
Nonetheless, Congress has limited power to make criminal laws. As this power is generally reserved to the states, state criminal codes, such as the New York Penal Law , are far more complicated than the U. The N. Penal Law prescribes nine levels of felonies, ranging from residential mortgage fraud in the fourth degree to terrorism. The federal government and state governments have created various sentencing guidelines.
Federal courts use the Federal Sentencing Guidelines, while state courts will look at state-specific sentencing guidelines. When multiple parties are involved, the traditional first step is to classify the participants according to the following categories:. Different private punishers are unlikely to punish similarly placed offenders in similar amounts. And as their actions are less easily subjected to public scrutiny, private persons are less easily compelled to punish for the right reasons—in order to do justice rather than settle scores, get revenge, or maximise their profit margins Moore a, 42; Edwards forthcoming.
Avoiding these costs is a strong reason to opt for the second set of rules. True, that set prevents proportionate punishment being imposed by our imagined moot court. But it is plausible to think that this benefit is outweighed by the aforementioned costs.
If it is, those who appeal to impersonal values to justify criminal law can explain why the moot court is not permitted to force us to give up our money. According to the second objection, what justifies having criminal law is its role in stabilizing valuable institutions.
By preventing these wrongs, and holding wrongdoers responsible, we stabilize the institutions. The contrast between a general justification focused on moral wrongdoing, and one focused on institutional stability, therefore turns out to be a false contrast Tadros , These observations help make a more general point.
We can accept that criminal law is a tool properly used to support financial, educational, familial, military, and political institutions. Tadros , 68— If this kind of general justification is not too restrictive, is it nonetheless too expansive?
This was the first of the three objections raised above. We need not infer that criminal law is unconcerned with moral wrongness. We need only accept that there are facts about criminalization which give law-makers a duty not to criminalize some moral wrongs.
There are many such facts, and their force varies depending on the wrong Simester and von Hirsch , —; Moore In some cases, criminalizing a wrong will inevitably result in selective enforcement, raising concerns about selection being made on discriminatory grounds. In others, enforcement would necessitate gross invasions of privacy, and require the law to take sides in conflicts better resolved by the parties themselves.
There is often value in freely choosing not to act wrongly, and in so choosing for the right reasons, rather than because one was coerced: criminalizing a wrong may result in this value disappearing from the world.
It will almost inevitably divert scarce resources from other valuable priorities. And there is often reason to think that criminalization will not result in there being less wrongdoing in the world.
Criminal conduct may be driven underground rather than made less common. Institutions of punishment may house unseen abuse and victimization. Ex-offenders may be driven towards crime by their reduced prospects in life. Where reasons like these generate a duty not to criminalize a wrong, the conduct in question is no business of the criminal law. No-one denies that some things should not be criminalized.
What is less clear is how we are to work out what these things are. One approach is to seek constraints on permissible criminalization. Even if the values that justify having criminal law count in favour of criminalization, our reasons to do so may be defeated by reasons that count against. A constraint identifies conditions under which the latter reasons always win. Consider, for example, the wrongfulness constraint:. Principles like W give us a line we can draw without reference to at least some morally salient particulars.
Conduct that falls outside the line may not be criminalized come what may. Imagine we are considering whether to make it a crime to possess guns. Doing so will prevent a great deal of harmful wrongdoing that cannot be prevented otherwise. This is a powerful moral reason to criminalize. But if W is sound, and gun possession is not morally wrongful, that powerful reason is irrelevant to the decision with which we are faced.
We are not permitted to criminalize, however much harm criminalization would prevent Moore , 72—73; Simester and von Hirsch , 22—23; Duff b, — Some suspect that all purported constraints on criminalization fail Duff et al , 44—52; Tadros , 91— This is not to say that anything goes. It is rather to say that we cannot use a line like that drawn by W to work out what is permissibly criminalized.
To trace the limits of the criminal law, we must engage in a more complex normative exercise: we must consider all morally salient particulars of proposed criminal laws—giving those particulars due weight in our deliberations—and thereby determine whether each proposal should be enacted.
The limits of the criminal law cannot be traced in advance of this exercise. Instead, they are determined by it.
The constraint to which most attention has been paid is the so-called harm principle. It is nowadays widely recognised that there is no single such principle. Rather, there are many harm principles Tadros a; Tomlin b; Edwards These principles have very different implications. That conduct is harmful, or unreasonably risks harm, does not show that we will prevent a proportionate amount of harm by criminalizing it.
Conversely, we may be able to prevent harm only by criminalizing conduct that is harmless, and that does not unreasonably risk harm. To see the first point, consider the use of drugs. Criminalizing use may turn a drug into forbidden fruit that is more attractive to potential consumers, and place production in the hands of criminal gangs who make consumption ever more harmful.
Users may become less willing to seek medical treatment for fear of exposing their criminality, and may end up with criminal records that lead to social exclusion, and damage their employment prospects for years to come United Nations Where criminalization does have these effects, the harm it does is out of all proportion to any harm prevented.
To see the second point, consider the possession of guns. Possessing a gun is not itself harmful. And many possess guns without unreasonably risking harm.
If one endorses HPP , things are different. What matters is not the effect of each instance of gun possession, but the effect of criminalizing all of them: if criminalizing possession will prevent harm that would not otherwise be prevented—and do so at a not disproportionate cost—the fact that some owners possess guns safely is beside the point.
To apply W we need to know what makes something morally wrongful. But while this is necessary, it may not be sufficient. I have decisive reason not to go out in the rain without my umbrella. But it does not seem morally wrongful to do so Tadros , 11— Whatever the correct criterion, we must ask how law-makers are to apply it.
We must also ask whether just any morally wrongful act will do. Some wrongful acts also violate rights, such that those who commit them wrong others. Some crimes are mala in se —they criminalize conduct that is morally wrongful independently of the law. Most crimes are mala prohibita —they criminalize conduct that, if morally wrongful at all, is morally wrongful partly in virtue of the fact that it is unlawful. Is W compatible with the existence of mala prohibita? That depends on the extent to which changes in the law can produce changes in morality.
The rules of the road are the classic case. Apart from the law, it is morally wrongful to drive dangerously. Such conduct is malum in se. What we should do to conform to this moral norm is not always obvious.
To help, the law puts in place rules that tell us which side of the road to drive on, when to stop, and how fast we may go. Imagine we obey these rules. In doing so, we drive more safely than we otherwise would have: we better conform to the moral norm that prohibits dangerous driving. One proposal is that it is morally wrongful to violate legal norms that have this effect: that help us better conform to moral norms that exist independently of the law Gardner , 19— Mala prohibita of this kind would then be compatible with W.
Of course, things are not so straightforward. Even if legal conformity generally improves our moral conformity, there may be exceptional cases in which it does not—in which we can violate the rules of the road without putting anyone in danger, or in which violation helps keep everyone safe. And there may be people for whom even the generalization is not true—whose expertise enables them to systematically violate legal norms without creating risks any greater than those created by the rest of us.
Can an explanation be given of why these violations are nonetheless morally wrongful? If not, W implies that even morally beneficial mala prohibita —like the rules of the road—must ultimately be removed from the criminal law Husak , —; Simester and von Hirsch , 24—29; Wellman Most views are comparative: we are harmed by some event if and only if that event renders us worse off in some way relative to some baseline.
One challenge is to identify the relevant baseline. Are we harmed by an event if we are worse than we would have been if things had been different? If so, different how? Are we harmed if we are worse off than we were immediately beforehand?
Or should we focus not on the position we were or would have been in, but on the position we should have been in morally speaking Holtug ; Tadros , —? A second challenge is to determine in what way we must be worse off.
The wider our answer to this question, the more likely it is that harm principles collapse into their supposed rivals. Some say we are harmed when our interests are set back Feinberg , 31— But it is plausible to think that we have interests in avoiding disgust, annoyance, and dismay. Many people are disgusted, annoyed, or dismayed by what they take to be morally wrongful. On an interest-based view, they are also harmed.
Any harm principle that uses this notion of harm thus threatens to permit criminalization of much conventional immorality Devlin A narrower view has it that we are harmed only if our future prospects are reduced, because we are deprived of valuable abilities or opportunities Raz , —; Gardner , 3—4; Simester and von Hirsch , 36— Disgust, annoyance, and offence need not—and often do not—have this effect.
So they need not be—and often are not—harmful. Whatever view of harm we take, we must also decide whether all harms count for the purposes of a given harm principle. People sometimes harm themselves, they are sometimes harmed by natural events, and harm is sometimes done consensually.
Recall that if we endorse HPP , we must decide whether the harm criminalization prevents is proportionate to the harm it does. Can we include all the aforementioned harms in our calculations? Or must we only include harm done to others without their consent Mill ; Dworkin ; Feinberg ; Coons and Weber ? Be that as it may, whether we take into account other harms remains important: where the scales would otherwise point against criminalization, giving weight to a wider range of harms may tip the balance decisively in its favour.
As well as asking how constraints might be clarified, we must ask how they might be defended. One type of defence proceeds from within our theory of ideals. A theory of ideals includes an account of the values that bear upon how we should act, and of the priority relations between those values Hamlin and Stemplowska To see how such a theory might generate constraints, consider W. One argument for that principle is the argument from conviction Simester and von Hirsch , 19—20 :.
One response to these arguments is that criminal law does not always censure or stigmatize. Another is that the arguments rely on priority claims that cannot be sustained. The argument from conviction depends on our accepting that moral defamation cannot be justified. The argument from punishment depends on our accepting that those who do not act wrongly have an absolute right not to be punished. These claims may be too strong. To test the second, think again about possession of guns.
Imagine that we criminalize possession, and that we have good reason to think that we can thereby save many lives.
It is plausible to think not. This would likely result in some lives being lost. The fact that not punishing safe possessors would probably have this effect is a good reason to think that safe possessors lack a valid complaint if they are punished.
It is a good reason to think that it sometimes is permissible to punish the morally innocent. If it is, premise 3 of the argument from punishment is false Tadros , — Now consider HPP. Whatever one thinks of this means of prevention, it is not the means we utilize when we make use of criminal law.
Absent perfect compliance, criminal law prevents wrongs by publicly making accusations, condemning people as wrongdoers, and punishing them for their wrongs.
Public accusations often stick even if nothing comes of them. Punishment is harmful by its very nature. Some claim that we can justify causing such harm—at least when the state does the harming—only if this is a necessary and proportionate means of preventing people being harmed. So it is impermissible to criminalize when this condition is not satisfied. One might reply that the harm internal to justified punishment is harm we lack reason not to impose.
Leaving this aside, it is far from obvious that harm has lexical priority over other values. The above argument for HPP seems to depend on this claim. But there is wrongdoing that is both serious and harmless. It is plausible to think that the value of preventing such wrongs, even when this does not prevent harm, is at least sometimes capable of justifying the harm done by criminalization Tadros , — A second defence of constraints proceeds from within non-ideal theory : from our account of what should be done when some people will not act as they should.
One might say that all criminal law theory is part of non-ideal theory—that we have reason to have criminal law precisely because people will otherwise act wrongly. Be that as it may. As well as fallible agents who would otherwise commit crimes, there are fallible agents who make, apply, and enforce criminal laws. Any non-ideal theory must also take account of the errors the latter are disposed to make.
Some are errors of application and enforcement—errors made when police officers arrest, prosecutors charge, and courts punish the innocent. More important for present purposes are the errors law-makers are disposed to make when creating crimes.
These errors matter here for the following reason. If followed, speed limits prevent some drivers from driving in ways that are impeccable in isolation. Let us grant that, when followed, constraints like W or HPP prevent some law-makers from criminalizing in ways that are impeccable in isolation. Many defenders of HPP offer defences that proceed in the manner just described.
One error is that of underestimating the value in lives very different from our own: of mistaking the virtues required to succeed in those lives for vices, and of concluding that these supposed vices ought to be suppressed Raz , —; Gardner , — A second error is that of underestimating the value of toleration. That value includes making space for experiments in living, which both help combat prejudice by exposing people to the unfamiliar, and help people develop deliberative faculties by exposing them to that with which they disagree Mill ; Brink If the main effects of criminalizing drug use are felt in communities the affluent shun, it is not hard to see how law-makers could be blind to the amount of damage criminalization does.
Law-makers who make each of these errors will be tempted to create criminal laws that are anything but impeccable—laws designed to suppress activities the value in which has been missed, which do much more harm than their designers anticipated. The case for HPP is that it stands in the way of this temptation. Those who follow it must tolerate conduct—however offensive or immoral they deem it to be—unless they can show that criminalization is a necessary and proportionate means of preventing harm.
Harm-based arguments are nowadays ubiquitous when proposed criminal laws are discussed. Some think this shows that HPP is no constraint at all Harcourt But it is no surprise that those who merely pay lip service to a principle are not constrained by it.
The argument of the previous paragraph was an argument that HPP should be followed. To follow that principle is to take seriously the need for an empirical showing—grounded in adequate evidence—that a given law is necessary to prevent a proportionate amount of harm. A better objection is that the error-based argument is incomplete.
How widespread would error be if law-makers took themselves to be free of HPP? When are the benefits of following HPP —in errors prevented—worth the costs—in otherwise impeccable criminal laws? Might there be some other rule that brings us those benefits at a lower cost than HPP? We need answers to all these questions, and more, to know if an argument from within non-ideal theory can support HPP Tadros , 94— A number of other possible constraints on the criminal law have been proposed Dan-Cohen , —; Ripstein As mentioned earlier, some are skeptical of all such principles.
The correct response to this skepticism remains unclear. One possibility is that a defensible general line can indeed be found. The question is where the line is, and how it is to be defended against objections like those sketched above. If so, we must ask what shape that theory ought to take, and how lofty should be the ambitions of those who construct it.
Elements of offences that require particular mental states are known as mens rea elements. Other elements are known as actus reus elements. Responsibility is understood here as answerability Duff , 19— While we are answerable to the courts for committing offences, we may avoid liability by offering satisfactory answers in the form of defences.
This account of criminal responsibility—call it the answerability account —relies on a distinction between offence and defence to which we will return. One argument for the answerability account invokes rules of criminal procedure and evidence. The best explanation of these rules, so the argument goes, is that offending acts generate a duty to answer that is otherwise absent. Some think that, on closer inspection, our rules of procedure and evidence fail to support the answerability account, and help to undermine it.
This matters here for the following reason. It suggests that we owe the criminal courts answers not for acts that are offences but for acts that are crimes —for offending acts which do not satisfy an available defence. Obviously enough, it is for crimes that we are criminally liable.
If responsibility is answerability, and we are answerable for crimes, the conditions of criminal responsibility and the conditions of criminal liability are one and the same. What should these conditions be? There has been much discussion of the mens rea principle MR :.
Standard mens rea requirements include intention and recklessness. Whether criminal responsibility should require mens rea , and what mens rea it should require, both depend on the reasons we have to accept MR. Perhaps the most familiar defence appeals to the culpability principle C :.
Culpability, as that term is used here, is a moral notion. Professionals work with the prisoner to correct and redirect them for a positive outcome. The ultimate aim of rehabilitation programs is to reintegrate prisoners into the community so they can live there harmoniously and become valuable members of the community.
Rehabilitation programs vary in intensity, direction and style of treatment. They can be a long, costly and exhaustive process. However, the results speak for themselves. The courts may take it into account if offenders are rehabilitated before sentencing. Restorative justice varies from conventional criminal justice. It highlights that criminal acts do not only offend against the state but have a lasting effect on families and communities. The aim of restorative justice is to repair relationships.
It aims for criminals to accept accountability and feel remorse for their criminal acts. Remorse should be not only for the criminal acts but for how they affected the victims and members of the community.
We are highly experienced in all aspects of criminal law. For further assistance please do not hesitate to contact our office. Ancillary tasks might well include: following the money trail; battling with corruption and bureaucracy; monopolies and restrictive trade practices; and running through copious amounts of documentation. To be a criminal lawyer, you should be street-smart, quick on your feet and have a thorough understanding of criminal law, procedures and the functioning of the judicial system.
You should also be able to handle large volumes of work and perform well under pressure, whilst retaining a meticulous attention to detail. Your communication and negotiation skills need to be top-notch and you should be good at dealing with different kinds of people.
You will need to get accustomed to working long and unconventional hours.
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