1. What Should Be A Crime?

2. Recall: Two Main Perspectives 1. Achieving social order outweighs concerns for social justice. 2. CJ system goals must be achieved within constraints of social justice.

3. What Should Be A Crime? First Perspective 1. Achieving social order outweighs concerns for social justice. Suggests that criminal law impose severe punishments in order to deter others from illegal activity. Law As External Constraint Thesis

4. What Should Be A Crime? Second Perspective 2. CJ system goals must be achieved within constraints of social justice. Suggests that the moral foundation of order is tenuous at best when people obey the law because they fear consequences of illegal behavior. Law As Internal Constraint Concept

5. What Should Be A Crime? Law As External Constraint Thesis – The ends justify the means Law As Internal Constraint Concept – If the CJ system does not consistently work equally to the benefit of all members of society, the CJ system loses its differentiation from crime.

6. What Should Be A Crime? Recall it was suggested that, “Not every act regarded as immoral by the dominant community should be made criminal, and no act should be made criminal if it is not viewed as immoral.”

7. What Should Be A Crime? Recall it was suggested that, “Not every act regarded as immoral by the dominant community should be made criminal, and no act should be made criminal if it is not viewed as immoral.” According to this reasoning: The conduct in question must be viewed by society as a moral wrong and a breach of some minimum condition of social existence.

8. What Should Be A Crime? Concept: The conduct in question must be viewed by society as a moral wrong and a breach of some minimum condition of social existence.  This suggests that the criminal code should define only minimum conditions of individual responsibility to other members of society.  Is that your preference as a citizen?

9. What Should Be A Crime? Recall: Law As External Constraint Theory 1. Achieving social order outweighs concerns for social justice. Suggests that criminal law impose severe punishments in order to deter others from illegal activity. Justifications: –Society cannot afford social justice. –We do not know with certainty what causes crime. –It is not cost effective to fight crime by social reform.

10. What Should Be A Crime? Recall Bazelon’s Choices in Addressing the Crime Problem. – The choice is goals. Repressive Order, or Moral Order David Bazelon, Federal Appeals Court Judge

11. What Should Be A Crime? Basic Premise: One of the most important benefits the state provides is protection. Protection from what? – Our self? What about victimless crimes?

12. What Should Be A Crime? Should there be exceptions of surrender of rights to the state in terms of victimless crimes?

13. What Should Be A Crime? Should the state violate civil liberties in order to decrease all, some or none of crime? How do we define crime? What if the crime definition is wrong (slavery) or outdated (same sex partner)?

14. What Should Be A Crime? Remember: The state argues that no matter what your perception, you are always protected and thus always obliged to obey the law. Where does this leave us?

15. What Should Be A Crime? What is the Harm Principle?

16. What Should Be A Crime? What is the Harm Principle? – The only legitimate reason to use the law to limit adults’ freedom of action is to prevent harm to others. Do you agree?

17. What Should Be A Crime? What is the legal paternalism? – Paternalistic laws make actions criminal because they would harm the actor him- or herself.

18. What Should Be A Crime? What is the legal paternalism? – Paternalistic laws make actions criminal because they would harm the actor him- or herself. Should this be a basis for a criminal act? Should this result in criminal sanctions? Should this result in the consequences of a criminal record?

19. What Should Be A Crime? Justifications For Legal Paternalism – Recall: Paternalistic laws make actions criminal because they would harm the actor him- or herself. View that legal paternalism is justified because it protects people from unwise choices that may harm them later.

20. What Should Be A Crime? What is the legal moralism? – Moralistic laws enforce prevailing moral beliefs where no clear harm to others can be shown.

21. What Should Be A Crime? What is the legal moralism? – Moralistic laws enforce prevailing moral beliefs where no clear harm to others can be shown. Should this be a basis for a criminal act? Should this result in criminal sanctions? Should this result in the consequences of a criminal record?

22. What Should Be A Crime? Justifications For Legal Moralism – Recall: Moralistic laws enforce prevailing moral beliefs where no clear harm to others can be shown. View that legal moralism is justified as expressing the democratic right of the majority to rule.

23. What Should Be A Crime? Crimes Against Morality and Decency – Adultery – Fornication – Sodomy – Incest among consenting adults – Prostitution – Cruelty to Animals – Mistreatment of Corpses – Others

24. What Should Be A Crime? Crimes Against Morality and Decency Their suppression is not required for public security.

25. Crimes Against Morality and Decency Does the Harm Principle support arguments for enforcing crimes against morality and decency? Why or why not?

26. Crimes Against Morality and Decency Does legal moralism support arguments for enforcing crimes against morality and decency? Why or why not?

27. Crimes Against Morality and Decency Does legal moralism support arguments for enforcing crimes against morality and decency? Why or why not? – View that the aim of criminal law should be to prevent harm to society and individuals Moral convictions are “invisible bonds” tying society together. Damage to the societal moral framework is to weaken it throughout. Society is entitled to use coercion to protect its moral code. Suppressing vice is society’s concern just as suppressing subversive activity. View that private morality is no more possible than private subversive activity.

28. Private Drug Use Decriminalization Strategies Drug use would remain illegal, but violations would be treated similar to traffic offenses. Drugs would be legalized with defined limits of amount and specified sources Drugs would be available from authorized sources and taxed

29. Private Drug Use Drug Offense Decriminalization Shouldn’t free democracy recognize and support individual privacy as the cornerstone of democracy? Do prohibitions against private drug use undermine democracy?

30. Individual vs Collective Rights “No right is held more sacred, or is more carefully guarded, by the common law, than the right of the individual to the possession and control of his own person, free from all restraint or interference from others, unless by clear and unquestionable authority of law.”

31. The Bill of Rights The Bill of Rights stands between the will of the majority and the individual. Except in direct pursuit of protecting the public health, safety or morals, the State may not interfere with the individual’s right of self expression.

32. The Bill of Rights The right to privacy found in the Bill of Rights is based on the concept that affording maximum opportunity for individual choice maximizes individual ability for self development.

33. The Bill of Rights Should women and men have the right to use their bodies as they choose?

34. Prostitution and Other Vices Should women and men have the right to use their bodies as they choose? Should people have the opportunity to earn their livelihood in any manner that they choose? What makes legalized prostitution morally wrong in the USA and right in countries where it is allowed by laws that enhance public safety concerns?

35. Break Read Assignments Participate in Class Discussions Review Notes Weekly