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The place of punishment within the criminal justice system.

1. Introduction

In this paper I am particularly interested in exploring breaches of international criminal law, corporate liability for international crimes, and the capacity of punishment to prevent criminal conduct. The mainstay of the paper is formed by an analysis of the legitimacy of international justice, crime's existence and representation at a global level, and the conceptualization of global crime victims.

2. The Expressive Functions of the Criminal Law

Roman execution and its pattern of application reveal the logic of Roman imperialism. Roman execution's ordering principle (1) is social status. The Roman ritual of execution is a ritual of individual and communal empowerment. The gladiators were peoples marginal to the Roman order. Roman authority can assert itself only through mimicry. (2) The Roman republic murder was not a crime (the word crime is unrepresented in Roman republican vocabulary). Murder was not regulated by Roman private law. The Romans believed that intentional killing was wrong under some circumstances, and granted the right to kill to high magistrates. No abstract government was responsible for putting people to death. The increasing judicial mechanisms of the government did not punish Roman citizens with death. The attitude of the Romans toward justifiable homicide for the protection of the res publica was ambivalent. (3) Roman criminal trials generally ended in conviction about as often as in acquittal. The presumption of innocence was not a formal principle in Roman law. The prosecutor in a Roman criminal trial (4) did not specify exactly what charges he would make. (5) The Rome Statute does not provide jurisdiction to try corporations for breaches of international criminal law. The international criminal law system provides the theoretical grounding for states to assert jurisdiction over international crimes wider than the International Criminal Court (ICC). (6)

Measuring the capacity of punishment to prevent criminal conduct is an elusive undertaking. The legitimacy of international justice can facilitate the internalization of accountability in the political culture. (7) Crime cannot be understood outside its social context. Crime's existence and representation at a global level (8) argues for the unity and generalization of social problems. A victim constituency makes sense in terms of the stated aims of international criminal justice. The conceptualization of global crime victims should be expanded from their current more procedurally restricted standing. Jurisdiction over crime is the quintessential question of federalism and state power. Focusing on the costs and the benefits of criminal justice policies improves decision-making. (9) The scope of the criminal law and the scale of imprisonment have expanded. The "violent" character of certain criminal offenses is not entirely pre-legal. The public is hardly satisfied with the criminal justice system as it actually operates. (10)

The criminal law is addressed primarily to us as citizens of the polity whose law it is, purporting to mark culpable public wrongdoing as wrong. (11) The criminal law's norms include honesty and responsibility for one's actions. The criminal law insists on moral culpability, in the form of mens rea and voluntariness. Innocent defendants owe moral duties to themselves not to treat themselves unjustly. Offenders who publicly accept responsibility for their crimes are more likely to internalize that responsibility than those who persist in denying guilt. The hard work of admitting guilt and repenting may impress upon the defendant the wrongfulness and gravity of the crime. The victim-vindication and expressive functions of the criminal law are not contingent on psychological probabilities. (12) The shifting nature of the criminal law is bound up with certain changes in the nature and use of criminal trials. Minor wrongdoing and other anti-social conduct should be dealt with outside the criminal law. The difference between fixed penalties and diversion itself is that the former may have penal consequences. Penalty notices for disorder and the greater use of strict liability are prime examples of the privileging of pace over process. (13)

3. The Capacity of Punishment to Prevent Criminal Conduct

The rule instituting punishment is not solely an instruction to legal authorities. The institution of punishment communicates the central importance that the community places on protecting its members. We are reciprocally obliged to comply as members of a political community (14) with the rules instituting legal punishment. (15) If one grounds crime and punishment in autonomy, the outlines of an autonomist system of penal law emerge (punishment requires a political justification). The actus reus requirement stands on its own. There are the rights of passive autonomy, which preserve one's freedom not to participate in the proceedings against oneself. Federal penal law lacks a comprehensive penal code while insisting on being entirely statutory. U.S. penal practice is a manifestation of police power. (16) The principle of proportionality prescribes that the punishment should equal the crime. The appropriate criterion for matching offence seriousness and penalty severity is the level of unhappiness or pain stemming from each of these impositions. (17) The extent of criminalization is a function of the breadth or reach of the criminal law. Impositions of the criminal sanction must satisfy demanding criteria of justification. The criminal law is that body of law that subjects offenders to state punishment. (18) Pretrial incarceration is the most punitive form of procedural punishment imposed by the lower courts. The defense lawyer is the only person the defendant can speak to freely without risking criminal liability. (19) Law and legal rights provide no certain bulwark against state torture. The absolute ban on torture is doctrinally porous. The purposeful infliction of severe pain, whether or not accompanied by the threat of escalation, is torture. (20) We witness the spread of violence and gross violations of human rights (21) and a deep crisis in the international means of effectively reacting to those gross violations. (22)

4. The Crime of Genocide

Genocide is an attack on the existence of protected human groups, is a crime for the existence of which there must be a criminally responsible individual, and an internationally wrongful act. Acts of genocide can be committed with the motive of establishing control over a territory. The prohibition of genocide is an obligation erga omnes. A genocidal conspiracy is an almost inevitable part of every instance of genocide. (23) The dehumanizing intent is the very essence of the crime of genocide. The transfer of guilt from the perpetrators to the victims is a common feature of all crimes. Crimes against humanity and genocide are two distinct legal qualifications (they are intrinsically different). The crime of genocide is the product of state policy, relying on the state apparatus in order to be committed. Genocide is a universal crime, affecting all human beings in their humanity as well as in their life. (24)

The criminal conduct of individuals blazes a trail leading to the highest levels of government. Genocide focuses on crimes aimed at the eradication of ethnic minorities, presents itself as the archetypical crime of state, and is a collective crime, committed with the cooperation of many participants. All legal regimes recognize degrees of the crime based on differences in the mental element. The crime must be motivated by hatred of the group. Any genuine utility of joint criminal enterprise in genocide prosecutions remains unproven. Procedural defenses are of general application within criminal law systems. It is difficult to conceive of genocide without some form of state complicity or involvement. Crimes against humanity are of comparable gravity to genocide. (25) Genocide is the most serious of all international crimes (it is a mass crime that intends the destruction of a protected group). The crime of genocide is both in act and in intent a collective crime, is a mass atrocity that has a certain character, and is largely aimed at the destruction of a protected group. Genocide as a crime makes sense without there being objectively existing groups. The destruction of a group does not make genocide the worst of crimes. The act element of the crime of genocide is in need of revision. Collective crimes rely on many people participating at various levels of involvement. Criminal trials can play an important role in facilitating reconciliation. The mens rea requirements of the crime of genocide are apt for the goals of reconciliation. (26)

For genocide, victimization of human beings is a necessary element (it suffices that the offense was internationally defined at the time committed). The perpetration of genocide is a violation of international law. Genocide is prohibited under customary international law, need not involve mass depredations, and has been charged with political opponents as the victims (necessities of war may not be invoked to justify genocide), is often committed with participation, or condonation, by one or more states, and functions as a supplement to other internationally defined offenses. (27) The right not to be a victim of genocide should be a strongly enforced right. A group which is targeted for imminent genocide is usually under extreme totalitarian control. Genocide victims have a fundamental human right to use armed force to resist genocide. (28)

5. Conclusions

The results of the current study converge with prior research on the extent of criminalization, the critical analysis of penal law, and the criminal law's norms. The paper generates insights about the nature and use of criminal trials, the global cybercrime industry, and the crime of genocide.


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(10.) Ristroph, Alice (2011), "Criminal Law in the Shadow of Violence," Alabama Law Review 62(3): 611-621.

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(17.) Bagaric, M., and McConvill, J. (2005), "Giving Content to the Principle of Proportionality: Happiness and Pain as the Universal Currency for Matching Offence Seriousness and Penalty Severity," The Journal of Criminal Law 69(1): 50-74.

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(20.) Parry, John T. (2010), Understanding Torture: Law, Violence, and Political Identity. Ann Arbor, MI: University of Michigan Press.

(21.) Serban, Silviu (2011), "Bourdieu's Influence on Contemporary Thought in the Social Sciences," Contemporary Readings in Law and Social Justice 3(2): 248253.

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(23.) Milanovic, Marko (2006), "State Responsibility for Genocide," The European Journal of International Law 17(3): 558-603.

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(26.) May, Larry (2010), Genocide: A Normative Account. New York: Cambridge University Press.

(27.) Quigley, John B. (2006), The Genocide Convention: An International Law Analysis. Aldershot: Ashgate.

(28.) Kopel, David B., Paul Gallant, and Joanne D. Eisen (2006), "Is Resisting Genocide a Human Right?" Notre Dame Law Review 81: 1334-1346.

[C] Bogdan David


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Author:David, Bogdan
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:1USA
Date:Jan 1, 2012
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