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On management in criminal justice.

1. Introduction

The purpose of this paper is to gain a deeper understanding of the nexus between constitutional law and substantive criminal law, the possible interactions between constitutional law and criminal law, and the fundamental principles of substantive criminal law.

2. The Fairness and Rationality of Substantive Criminal Law Rules

Wattad discusses the constitutional grounds of substantive criminal law in American law. Addressing touchstone cases of the U.S. Supreme Court on substantive criminal law, Wattad proposes that the Court has consistently failed to provide a theory of substantive criminal law, and criticizes the Court's superficial understanding of fundamental principles of criminal theory, namely those that deal with the meaning of crime, guilt, punishment, mens rea, wrongdoing, attribution and others. In highlighting the inherent nexus between constitutional law and substantive criminal law, Wattad examines the American Supreme Court's reluctance to entangle with the constitutional aspects of substantive criminal law. Focusing on the meaning of "criminal prosecution" and "crime" of the Sixth Amendment, the Due Process Clause, and the Equal Protection Clause, Wattad suggests that the Constitution provides an obvious language of substantive criminal law. Inquiring into the possible interactions between constitutional law and criminal law, Wattad offers a complete theory of the fundamental principles of substantive criminal law, suggesting three basic tenets on which criminal law theory stands: guilt, crime, and wrongdoing. Understanding the meaning of these three pillars provides a wider and deeper panorama of the whole theory of criminal law, thus providing the vital legal tools for addressing many other criminal law questions in future. [1]

Stein and Bierschbach challenge the conventional divide between substantive criminal law theory and evidence law, by exposing an important and unrecognized function of evidence rules in criminal law: throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law's deterrence and retributivist goals, by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. Stein and Bierschbach note that the mediating potential of evidentiary rules is particularly strong in criminal law: the substantive law's dominant animating theories--deterrence and retributivism--respond asymmetrically to the workings of those rules. Stein and Bierschbach analyze the features of "mediating rules," explore their effects across a range of substantive areas, and offer a tentative normative assessment of their role in a pluralistic criminal law system. [2] Frase holds that the Warren Court was much less active and progressive in its treatment of substantive criminal law and sentencing issues than it was in the area of criminal procedure. Frase examines the relatively small number of important Warren Court decisions relating to substantive criminal law and sentencing, and compares major decisions in these areas from earlier and later periods in order to identify specific topics that the Warren Court might have been expected to address: the requirement of proof beyond a reasonable doubt can be viewed as a substantive right closely related to core criminal law issues, the federal law of crimes was in terrible shape at the end of the Warren Court era, the indeterminate sentencing model reduced practical concerns about the fairness and rationality of substantive criminal law rules, and the Warren Court would not have been likely to slow or reverse the steady expansion of federal criminal jurisdiction and federal criminal laws. [3]

3. The Basic Moral Norms Embodied in the Criminal Law

Gans maintains that the Commonwealth may or may not be about to tread the oft-trodden path leading to a non-entrenched statute setting out and (to an extent) promoting human rights: criminal law is unlikely to feature in the debate on the adoption of a charter, which will instead focus on the theories of governance. Gans makes some observations about the effect of a Charter like statute on criminal law, focussing on substantive criminal law rather than the probably vaster topic of criminal process. The interpretation of physical elements of crimes is a matter of ordinary statutory interpretation. Gans reasons that some of the public law doctrines developed overseas are geared towards a court nullifying a statutory provision. Human rights documents are known both for their vast scope and their almost-as-vast caveats.
   Human rights statutes actually have much more to offer substantive
   criminal law than some more robust readings of the
   words actually used in statutes. They can also offer robust set of
   principles designed to distinguish between good and bad forms
   of criminalisation and criminal responsibility, and a set of
   readymade doctrines that may convince courts or criminal justice
   decision-makers to bridge the gap between them. (4)

Bibas points out that criminal procedure is preoccupied with procedural values such as efficiency, accuracy, informed choice, and procedural fairness, using the terms substance and substantive criminal law to distinguish the body of law that defines crimes from the procedures used to enforce them: the criminal law's norms include honesty and responsibility for one's actions, many guilty-plea confessions are insincere or induced by extrinsic inducements or pressures, such as plea bargains, whereas if innocent defendants were fully informed, could accurately determine the likelihood of conviction and punishment at trial. Bibas holds that innocent defendants owe moral duties to themselves not to treat themselves unjustly, and the state should not facilitate such injustice. Society must not consciously promote guilty and nolo contendere pleas by innocent defendants. The justice system should forestall public cynicism by forbidding practices that openly promote injustice or even doubts about guilt. The system must be accurate to protect innocent defendants from injustice and to secure the community's confidence. Criminal procedure is detached from the moral moorings of the substantive criminal law. Bibas reviews the basic moral norms embodied in the criminal law, such as honesty and responsibility for one's actions, explores the psychological denial mechanisms of offenders (especially sex offenders) who refuse to admit guilt, discusses the therapeutic value of inducing confessions by encouraging and confronting defendants who refuse to admit guilt, contends that guilty pleas should be reserved for defendants who confess, because by confessing they take the first steps toward repentance and reform, and explains why defendants who refuse to admit guilt should have to undergo trials. The criminal law insists on moral culpability, in the form of mens rea and voluntariness, and excuses defendants who acted under duress, insanity, infancy, or other incapacity. Bibas puts it that criminal punishment seeks to educate the offender, induce repentance and reconciliation, vindicate the victim, achieve catharsis, and reinforce moral norms to society at large. Vindication of victims and moral norms are analytically tied to the message punishment sends. The criminal law seeks to a) lead offenders to repent by humbling them, b) exact moral sanctions, and then c) return them to the community as equals. The law's labels and ascriptions of blame influence rehabilitation and reform. Offenders who publicly accept responsibility for their crimes, even if they do so insincerely, are more likely to internalize that responsibility than those who persist in denying guilt. Bibas emphasizes that the hard work of admitting guilt and repenting may impress upon the defendant the wrongfulness and gravity of the crime: the value of confronting guilt and apologizing is a central insight of the restorative-justice movement, for those offenders who refuse to confess or repent, trials still bring catharsis and closure to victims and the community, and trials express respect for the law, communicate values, and justify punishment. Bibas reasons that the victim-vindication and expressive functions of the criminal law are not contingent on psychological probabilities. Trial verdicts send messages about the substantive moral norms underlying the criminal law. Judges at plea hearings could insist on more detailed allocutions and use more overtly moralistic language, driving home the wrongfulness of the crime.5

4. The Legitimacy of the Law

Bradley maintains that the pleading defendant sets himself on the path to moral reform. "By accepting responsibility for his actions, he cements his status as one who recognizes the basic ends of the law of crime and punishment." [6] Thurman claims that trials are like the miracle or morality plays of ancient times. "They dramatically present the conflicting moral values of a community in a way that could not be done by logical formalization." [7] The theory of criminal law has intimate normative connections with the theory of the criminal trial and theories of state punishment. [8] Barrozo claims that one of the effects of the focus on deviation is the overlegitimation of the norm, of the mainstream of our punitive practices: the distinction between norm and deviation fails to adequately capture the ideological and functional integration and complementarity of criminal law in modern societies.
   In the contexts of national and international criminal law and
   culpability, the concept of cruelty is sometimes used to identify
   and evaluate a particular state of mind of agents of criminal
   behavior in terms of delight or other form of hedonistic
   gratification in causing suffering. In the context of the
   prohibition of torture and other cruel punishment--or, less
   commonly, in the discrete area of executive decisions on whether to
   grant mercy--the idea of cruelty seeks to mark and check the
   behavior of the agents of punishment in cases in which it was
   unreasonably instituted, disproportionately applied, or excessively
   enforced. [9]

On Dyzenhaus's reading, legality makes government under the rule of law something worth having. Judges should defer to public officials' interpretations of the Jaw, as well as to legislative and administrative choice when it comes to institutional design, including the design of fair procedure. Institutional arrangements are instrumental or functional to a larger purpose--the realization of principles. [10[

As Duff puts it, punishment tries to bring the criminal to understand the nature and implications of her crime, "to repent that crime and thus, by willing her own punishment as a penance which can expiate her crime, to reconcile herself with the Right and with her community." [11] Olusanya claims that after a long period of relative stagnation, substantive international criminal law has been invigorated primarily by the activities of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
   Both ad hoc tribunals have made immense advancements to this
   area of international criminal law, by for instance laying down
   detailed rules on what constitutes culpable conduct and on when
   responsibility should be attributed for the conduct of others. These
   important advances notwithstanding, much remains in flux--the
   elements of the core international crimes are still subject to
   controversy, theories of individual criminal responsibility such as
   command responsibility and joint criminal enterprise are highly
   controversial and there is as yet no knowledge of how international
   offences should be graded according to different levels and
   degrees of culpability and harm, etc. [12]

Raz writes that the claims that law makes for itself are evident from the language it adopts and from the opinions expressed by its spokesmen. "The law's claim to authority is manifested by the fact that legal institutions are officially designated as 'authorities', by the fact that they regard themselves as having the right to impose obligations on their subjects, by their claims that their subjects owe them allegiance, and that their subjects ought to obey the law as it requires to be obeyed." [13]

5. Conclusions

We seek to contribute to a wider understanding of contextual and cultural influences on the constitutional grounds of substantive criminal law, the constitutional aspects of substantive criminal law, and the meaning of criminal law. [14]


[1.] Wattad, M. (2007), "The Meaning of Criminal Law: Three Tenets on American and Comparative Constitutional Aspects of Substantive Criminal Law," DAI, 68-06 A, Columbia University, 2631.

[2.] Stein, A., and Bierschbach, R.A. (2007), "Mediating Rules in Criminal Law," Virginia Law Review 93(5): 1197-1258.

[3.] Frase, R.S. (2005), "The Warren Court's Missed Opportunities in Substantive Criminal Law," Ohio State Journal of Criminal Law 3: 75-103.

[4.] Gans, J. (2008), "Federal Criminal Law under a Rights Charter," speech presented at the Federal Criminal Law, conference run by the NSW Bar Association and the Law Counsel of Australia, Sydney, September 5: 8.

[5.] Bibas, S. (2003), "Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere Pleas," Cornell Law Review 88: 1361-1407.

[6.] Bradley, G.V. (1999), "Plea Bargaining and the Criminal Defendant's Obligation to Plead Guilty," South Texas Law Review 40: 65.

[7.] Thurman, A. (1965), "The Criminal Trial as a Symbol of Public Morality," in Kamisar, Y. and Howard, A.E. (eds.), Criminal Justice in Our Time. Charlottesville, VA: University Press of Virginia, 141-144.

[8.] Duff, A. et al. (2004), "Introduction: Towards a Normative Theory of the Criminal Trial," in Duff, A. et al. (eds.), The Trial on Trial, Vol. 1. Oxford: Hart Publishing, Oxford, 11-17.

[9.] Barrozo, P.D. (2008), "Punishing Cruelly: Punishment, Cruelty, and Mercy," Criminal Law and Philosophy 2: 69.

[10.] Dyzenhaus, D. (2006), The Constitution of Law: Legality in a Time of Emergency. Cambridge: Cambridge University Press.

[11.] Duff, R.A. (1986), Trials and Punishments. Cambridge: Cambridge University Press, 259.

[12.] Olusanya, O. (ed.) (2007), Rethinking International Criminal Law. The Substantive Part. Groningen: Europa Law Publishing.

[13.] Raz, J. (1985), "Authority, Law, and Morality," The Monist 68: 295.

[14.] Ionescu, L. (2011), "The Economics of Anti-Corruption," Contemporary Readings in Law and Social Justice 3(1): 116-121.


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Author:Ristea, Ion
Publication:Economics, Management, and Financial Markets
Date:Sep 1, 2011
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