criminal law

criminal law
the laws of a state or country dealing with criminal offenses and their punishments.

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Body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected offenders, and fixes punishment for convicted persons.

Substantive criminal law defines particular crimes, and procedural law establishes rules for the prosecution of crime. In the U.S., substantive criminal law originated for the most part in common law, which was later codified in federal and state statutes. Modern criminal law has been affected considerably by the social sciences, especially in the areas of sentencing, legal research, legislation, and rehabilitation. See also criminology.

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      the body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable to convicted offenders.

      Criminal law is only one of the devices by which organized societies protect the security of individual interests and assure the survival of the group. There are, in addition, the standards of conduct instilled by family, school, and religion; the rules of the office and factory; the regulations of civil life enforced by ordinary police powers; and the sanctions available through tort actions. The distinction between criminal law and tort law is difficult to draw with real precision, but in general one may say that a tort is a private injury while a crime is conceived as an offense against the public, although the actual victim may be an individual.

      This article treats the principles of criminal law and the influence of the social sciences on criminal legislation and law enforcement. For treatment of the law of criminal procedure, see procedural law: Criminal procedure (procedural law).

Principles of criminal law
      The traditional approach to criminal law has been that crime is an act that is morally wrong. The purpose of criminal sanctions was to make the offender give retribution for harm done and expiate his moral guilt; punishment was to be meted out in proportion to the guilt of the accused. In modern times more rationalistic and pragmatic views have predominated. Writers of the Enlightenment such as Cesare Beccaria in Italy, Montesquieu and Voltaire in France, Jeremy Bentham in Britain, and P.J.A. von Feuerbach in Germany considered the main purpose of criminal law to be the prevention of crime. With the development of the social sciences, there arose new concepts, such as those of the protection of the public and the reform of the offender. Such a purpose can be seen in the West German criminal code of 1975, which provides that the court “has to consider the consequences of the sentence upon the future life of the offender in society.” In the United States, a Model Penal Code proposed by the American Law Institute in 1962 states that an objective of criminal law should be “to give fair warning of the nature of the conduct declared to constitute an offense” and “to promote the correction and rehabilitation of offenders.” Since that time there has been renewed interest in the concept of general prevention, including both the deterrence of possible offenders and the stabilization and strengthening of social norms.

common law and code law
      Important differences exist between the criminal law of most English-speaking countries and that of other countries. The criminal law of England and the United States derives from the traditional English common law of crimes and has its origins in the judicial decisions embodied in reports of decided cases. England has consistently rejected all efforts toward comprehensive legislative codification of its criminal law; even now there is no statutory definition of murder in English law. Some Commonwealth countries, however, notably India, have enacted criminal codes that are based on the English common law of crimes.

      The criminal law of the United States, derived from the English common law, has been adapted in some respects to American conditions. In the majority of the U.S. states the common law of crimes has been repealed by legislation. The effect of such statutes is that no person may be tried for any offense that is not specified in the statutory law of the state. But even in these states the common-law principles continue to exert influence, for the criminal statutes are often simply codifications of the common law, and their provisions are interpreted by reference to the common law. In the remaining states, prosecutions for common-law offenses not specified in statutes do sometimes occur. In a few states the so-called penal, or criminal, codes are simply collections of individual provisions with little effort made to relate the parts to the whole or to define or implement any theory of control by penal measures.

      In western Europe the criminal law of modern times has emerged from various codifications. By far the most important were the two Napoleonic codes, the Code d'Instruction Criminelle of 1808 and the Code Pénal of 1810. The latter constituted the leading model for European criminal legislation throughout the first half of the 19th century, after which, although its influence in Europe waned, it continued to play an important role in the legislation of certain Latin-American and Middle Eastern countries. The German codes of 1871 (penal code) and 1877 (procedure) provided the models for other European countries and have had significant influence in Japan (Japanese law) and South Korea (Korea, South), although after World War II the U.S. laws of criminal procedure were the predominant influence in the latter countries. The Italian codes of 1930 represent one of the technically most developed legislative efforts in the modern period. English criminal law has strongly influenced the law of Israel and that of the English-speaking African states. French criminal law has predominated in the French-speaking African states. Italian criminal law and theory have been influential in Latin America.

      In the last few decades the movement for codification and law reform has made considerable progress everywhere. The American Law Institute's Model Penal Code stimulated a thorough reexamination of both federal and state criminal law, and new codes were enacted in most of the states. England has enacted several important reform laws (including those on theft, sexual offenses, and homicide), as well as modern legislation on imprisonment, probation, suspended sentences, and community service. Sweden enacted a new strongly progressive penal code in 1962. In West Germany (Federal Republic of Germany) a revised version of the criminal code was published in 1975 and subsequently often amended. In the same year a new criminal code came into force in Austria. New criminal codes have also been published in Portugal (1982) and Brazil (1984). France enacted important reform laws in 1958, 1970, 1975, and 1982, as did Italy in 1981 and Spain in 1983. Other reforms have been under way in Finland, The Netherlands (Netherlands, The), Belgium, Switzerland, and Japan. The Soviet Union (Soviet law)'s constituent republics began enacting revised criminal codes in 1960, as did Czechoslovakia and Hungary (1961), East Germany (German Democratic Republic), Bulgaria, and Romania (1968), and Poland (1969). After Yugoslavia became a federal state in 1974, a number of local penal codes came into force in addition to the federal code of 1977.

      Comparisons between the systems of penal law developed in the western European countries and those having their historical origins in the English common law must be stated cautiously. Substantial variations exist even among the nations that adhere generally to the Anglo-American system or to the law derived from the French, Italian, and German codes. In many respects, however, the similarities of the criminal law in all states are more important than the differences. Certain forms of behaviour are everywhere condemned by law. In matters of mitigation and justification, the continental law tends to be more explicit and articulate than the Anglo-American law, although modern legislation in countries adhering to the latter has reduced these differences. Contrasts can be drawn between the procedures of the two systems, yet even here there is a common effort to provide fair proceedings for the accused and protection for basic social interests.

Substantive criminal law
      Substantive criminal law is composed of the following elements: the definitions of the types of offenses that are held to be punishable; the classification of crimes (as, for example, felonies and misdemeanours in the United States, or crime, délit, and contravention in continental law); the principles and doctrines applied to the judgment of crime that qualify the provisions of criminal legislation (such as self-defense, necessity, insanity, and so forth); and principles determining national jurisdiction over crimes with an international aspect (crimes committed by foreigners, nationals abroad, or on ships and aircraft outside the national territory and waters).

The definition of criminal (criminal law) conduct

      The principle of legality is recognized in almost all civilized countries as the keystone of the criminal law. It is employed in four senses. The first is that there can be no crime without a rule of law; thus immoral or antisocial conduct not forbidden and punished by law is not criminal. The law may be customary, as in common-law countries; in most countries, however, the only source of criminal law is a statute (nullum crimen sine lege, “no crime without a law”).

      Second, the principle of legality directs that criminal statutes be interpreted strictly and that they not be applied by analogical extension. If a criminal statute is ambiguous in its meaning or application, it is often given a narrow interpretation favourable to the accused. This does not mean that the law must be interpreted literally, if to do so would defeat the clear purpose of the statute. The Model Penal Code of the American Law Institute incorporates a provision that has been enacted in some U.S. state laws. It recommends that its provisions be construed “according to the fair import of their terms,” which comes closer to the European practice.

      Third, the principle of legality forbids the application of the law retroactively. In order that a person may be convicted, a law must have been in effect at the time the act was committed. This aspect of the principle is embodied in the ex post facto provisions of the U.S. Constitution and such international treaties as the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and the International Covenant on Civil and Political Rights (1966).

      Fourth, the language of criminal statutes must be as clear and unambiguous as possible in order to provide fair warning to the potential lawbreaker. In some countries statutes may even be considered inapplicable if they are vague.

Protection against double jeopardy
      Legal systems generally include some restriction against prosecuting a person more than once for the same offense. In Anglo-American law the most difficult problems of double jeopardy involve the question of whether the second prosecution is for the “same” or a “different” offense. It is held that acquittal or conviction of an offense prohibits subsequent prosecution of a lesser offense that was included in the first. According to the U.S. Supreme Court in Blockburger v. U.S., 284 U.S. 299, 304 (1932), the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. In continental European law, on the other hand, the question is whether or not the second prosecution concerns the same “material fact” or “historical event,” and the state cannot subject a person to a second trial for any offense arising out of the same factual situation.

      A problem under the federal system of the United States is whether or not an offender may be prosecuted under both state and federal law for the same conduct (the specific offenses being different). A number of state laws have prohibited state prosecutions after acquittals or convictions in a federal court or in the court of another state for offenses involving the same conduct.

Statutes of limitation (limitations, statute of)
      All systems of law have statutes restricting the time within which legal proceedings may be brought. The periods prescribed may vary according to the seriousness of the offense. In German law, for example, the periods range from six months for breaches of administrative regulations to 30 years for crimes involving a life sentence. General statutes limiting the times within which prosecutions for crimes must be begun are common in continental Europe and the United States. In England there is no general statute of limitation applicable to criminal actions, although statutes for specific crimes frequently have included time limits.

      In many countries there are no statutes of limitation for particularly heinous offenses, including capital felonies in the United States and genocide and murder in Germany. In 1968 the UN General Assembly adopted a Convention on the Non-applicability of Statutes of Limitation on War Crimes (war crime) and Crimes against Humanity, despite strong opposition among the majority of Western members on the ground that it was retroactive.

Requirements of jurisdiction
      The jurisdiction of a court refers to its capacity to take valid legal action. Many governments claim jurisdiction over the acts of their own nationals, even when these acts have occurred abroad. Accordingly, most states decline any obligation to surrender their nationals to other countries. The constitutions of Brazil, Germany, and The Netherlands prohibit extradition of their nationals; and in other states extradition is prohibited by statute, as in Belgium, France, and Switzerland. The Italian constitution permits extradition of nationals only if it is agreed upon in international conventions.

      In Anglo-American practice, on the other hand, the jurisdiction of the courts is generally limited to acts occurring in whole or part within the boundaries of the state. Nationals who commit crimes in foreign countries may be extradited, but only if required or authorized by treaty with the country concerned. Within the United States, jurisdiction over criminal conduct was formerly limited, under the common law, to acts occurring within the territorial limits of a particular state. Thus, if a person fired a bullet across a state line and killed someone in another state, sometimes only the latter state was considered to have jurisdiction. Many states have, however, by statute extended their jurisdictions to cover offenses in which either the relevant result or the relevant conduct, or even only part of it, occurred in the state. In addition, federal statutes confer jurisdiction on U.S. courts in cases involving treason, forgery of ship's papers, enticing to desertion from military service, bribery of a U.S. official, and other acts, even though the conduct occurred outside the national boundaries. The United States also claims jurisdiction over crimes committed on U.S. vessels and aircraft on or over the high seas.

      The Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft (1963) and the Hague Convention for Unlawful Seizure of Aircraft (1970) recognize that states have the right and even the duty of jurisdiction with respect to any crime committed upon aircraft bearing its national character.

The elements of crime
      It is generally agreed that the essential ingredients of any crime are (1) a voluntary act or omission (actus reus), accompanied by (2) a certain state of mind ( mens rea). An act may be any kind of voluntary human behaviour. Movements made in an epileptic seizure are not acts, nor are movements made by a somnambulist before awakening, even if they result in the death of another person. Criminal liability for the result also requires that the harm done must have been caused by the accused. The test of causal relationship between conduct and result is that the event would not have happened the same way without direct participation of the offender.

      Criminal liability may also be predicated on a failure to act when the accused was under a legal duty to act and was reasonably capable of doing so. The legal duty to act may be imposed directly by statute, such as the requirement to file an income tax return, or it may arise out of the relationship between the parties, as the obligation of parents to provide their child with food.

The mental element
      Although most legal systems recognize the importance of the guilty mind, or mens rea, the statutes have not always spelled out exactly what is meant by this concept. The American Law Institute's Model Penal Code has attempted to clarify the concept by reducing the variety of mental states to four. Guilt is attributed to a person who acts “purposely,” “knowingly,” “recklessly,” or “negligently.” Broadly speaking, these terms correspond to those used in continental European legal theory. Singly or in combination, they appear largely adequate to deal with most of the common mens rea problems. Their general adoption would clarify and rationalize the substantive law of crimes.

Liability without mens rea
      Some penal offenses do not require the demonstration of culpable mind on the part of the accused. These include statutory rape, in which knowledge that the child is below the age of consent is not necessary to liability. There is also a large class of “public welfare offenses,” involving such things as economic regulations or laws concerning public health and safety. The rationale for eliminating the mens rea requirement in such offenses is that to require the prosecution to establish the defendant's intent, or even recklessness, would render such regulatory legislation largely ineffective and unenforceable. Such cases are known in Anglo-American law as strict liability offenses, and in French law as infractions purement matérielles. In German law they are excluded because the requirement of mens rea is considered a constitutional principle.

      There has been considerable criticism of statutes that create liability without actual moral fault. To expose citizens to the condemnation of a criminal conviction without a showing of moral culpability raises issues of justice. In many instances, the objectives of such legislation can more effectively be achieved by civil sanctions, as, for example, suits for damages, injunctions, and the revocation of licenses.

Ignorance and mistake
      In most countries the law recognizes that a person who acts in ignorance of the facts of his action should not be held criminally responsible. Thus, one who takes and carries away the goods of another person, believing them to be his own, does not commit larceny, for he lacks the intent to steal. Ignorance of the law, on the other hand, is generally held not to excuse the actor; it is no defense that he was unaware that his conduct was forbidden by criminal law. This doctrine is supported by the proposition that criminal acts may be recognized as harmful and immoral by any reasonable adult. The matter is not so clear, however, when the conduct is not obviously dangerous or immoral; a substantial body of opinion would permit mistakes of law to be asserted in defense of criminal charges in such cases, particularly when the defendant has in good faith made reasonable efforts to discover what the law is. In West Germany the Federal Court of Justice in 1952 adopted the proposition that if a person engages in criminal conduct but is unaware of its criminality he cannot be fully charged with a criminal offense; this has since been incorporated as rule in the German criminal code. Law and practice in Switzerland are quite similar. In Austria mistake of law is a legal defense.

      It is universally agreed that, in appropriate cases, persons suffering from serious mental disorders should be relieved of the consequences of their criminal conduct. A great deal of controversy has arisen, however, as to the appropriate legal tests of responsibility. Most legal definitions of mental disorder are not based on modern concepts of medical science, and psychiatrists accordingly find it difficult to make their knowledge relevant to the requirements of the court.

      Various attempts have been made to formulate a new legal test of responsibility. The American Law Institute's Model Penal Code has endeavoured to meet the manifold difficulties of this problem by requiring that the defendant be deprived of “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law” as a result of mental disease or defect. This resembles the Soviet formulation of 1958, which required a mental disease as the medical condition and incapacity to appreciate or control as the psychological condition resulting from it. The same may be said of the German law, although the latter includes in mental illness such disorders as psychopathy and neurosis in addition to psychoses and provides for various gradations of diminished responsibility. Several U.S. jurisdictions, including federal law, have abandoned the volitional prong of the insanity test and returned to the ancient English rule laid down in M'Naghten's Case, 8 Eng. Rep. 718, 722 (1843). According to that case, an insane person is excused only if he did not know the nature and quality of his act or could not tell right from wrong. The English Homicide Act of 1957 also recognizes diminished responsibility, though to less effect. The act provides that a person who kills another shall not be guilty of murder “if he was suffering from such abnormality of mind . . . as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.” The primary effect of this provision is to reduce an offense of murder to one of manslaughter.

      Intoxication is usually not treated as mental incapacity. Soviet law was especially harsh; it held that the mental-disease defense was not applicable to persons who committed a crime while drunk and that drunkenness might even be an aggravating circumstance. In German law, on the other hand, intoxication like any other mental defect is acceptable as a defense in criminal cases.

Mitigating circumstances (extenuating circumstance) and other defenses
      The law generally recognizes a number of particular situations in which the use of force, even deadly force, is excused or justified. The most important body of law in this area is that which relates to self-defense. In general, in AngloAmerican law, one may kill an assailant when the killer reasonably believes that he is in imminent peril of losing his life or of suffering serious bodily injury and that killing the assailant is necessary to avoid imminent peril. Some jurisdictions require that the party under attack must try to retreat when this can be done without increasing the peril. Under many continental European laws, however, the defendant may stand his ground unless he has provoked his assailant purposely or by gross negligence, or unless the assailant has some incapacity such as infancy, inebriation, mistake, or mental disease. Other situations in which the use of force is generally justifiable, both in Anglo-American law and in continental European law, include the use of force in defense of others, law enforcement, and protection of property.

      The use of force may also be excused if the defendant reasonably believed himself to be acting under necessity. The doctrine of necessity in Anglo-American law relates to situations in which a person, confronted by the overwhelming pressure of natural forces, must make a choice between evils and engages in conduct that would otherwise be considered criminal. In the oft-cited case of U.S. v. Holmes, in 1842, a longboat containing passengers and members of the crew of a sunken American vessel was cast adrift in the stormy sea. To prevent the boat from being swamped, members of the crew threw some of the passengers overboard. In the trial of one of the crew members, the court recognized that such circumstances of necessity may constitute a defense to a charge of criminal homicide, provided that those sacrificed be fairly selected, as by lot. Because this had not been done, a conviction for manslaughter was returned. The leading English case, Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), appears to reject the necessity defense in homicide cases. In German or French courts, however, the defendants would probably have been acquitted.

      In general the use of force may be excused if the defendant reasonably believed himself to be acting under duress or coercion, or to be carrying out military orders believed by the defendant to be lawful.

Some particular offenses
      All advanced legal systems condemn as criminal the sorts of conduct described in the Anglo-American law as treason, murder, aggravated assault, theft, robbery, burglary, arson, and rape. With respect to minor police regulations, however, substantial differences in the definition of criminal behaviour occur even among jurisdictions of the Anglo-American system. Comparisons of the continental European criminal law with that based on the English common law of crimes also reveal significant differences in the definition of certain aspects of more serious crimes. Continental European law, for example, frequently articulates grounds for mitigation involving considerations that are taken into account in the Anglo-American countries only in the exercise of discretion by the sentencing authority or by lay juries. This may be illustrated with respect to so-called mercy killings (euthanasia). The Anglo-American law of murder recognizes no formal grounds of defense or mitigation in the fact that the accused killed to relieve someone of suffering from an apparently incurable disease. Many continental European and Latin-American codes, however, provide for mitigation of offenses prompted by such motives and sometimes even recognize in such motives a defense to the criminal charge.

Degrees of participation
      The common-law tradition distinguishes four degrees of participation in crime. One who commits the act “with his own hand” is a principal in the first degree. His counterpart in French law is the auteur (literally, “author”), or coauteur when two or more persons are directly engaged. A principal in the second degree is one who intentionally aids or abets the principal in the first degree, being present when the crime occurs; this is comparable to the French concept of complicité par aide et assistance, although in some countries, as, for example, Germany, that have adopted a wider (more subjective) interpretation of the concept it includes the activity of coauteurs. In Anglo-American law one who instigates, encourages, or counsels the principal without being present during the crime is called an accessory before the fact; in continental law this third degree of participation is covered partly by the concept of instigation and partly by the above-mentioned aide et assistance. The fourth and last degree of participation is that of accessory after the fact, who is punishable because he receives, conceals, or comforts one known by him to have committed a crime so as to obstruct his apprehension or to impede his punishment. In continental legal systems this conduct has become a separate offense. Italian and Austrian law treat all participants in a crime as principals in the first degree, with the exception of accessories after the fact. The American Law Institute's Model Penal Code proposes the same simplifications.

      Under the common law, conspiracy is usually described as an agreement between two or more persons to commit an unlawful act or to accomplish a lawful end by unlawful means. This definition is delusively simple, however, for each of its terms has been the object of extended judicial exposition. Criminal conspiracy is perhaps the most amorphous area in the Anglo-American law of crimes. In some jurisdictions, for example, the “unlawful” end of the conspiracy need not be one that would be criminal if accomplished by a single individual; but courts have not always agreed as to what constitutes an “unlawful” objective for these purposes. Statutory law in some American states, following the lead of the American Law Institute's Model Penal Code, have limited conspiracy offense to the furtherance of criminal objectives. The European codes have no conception of conspiracy as broad as that found in the Anglo-American legal system. In some of the continental European countries, such as France or Germany, punishment of crimes may be enhanced when the offense was committed by more than one person acting in concert.

      In most countries the punishment of agreements to commit offenses, irrespective of whether the criminal purpose was attempted or executed, is largely confined to political offenses against the state. Some extension of the conspiracy idea to other areas has occurred, however. Thus in the Italian code of 1930 association for the purpose of committing more than one crime was made criminal. None of these continental European provisions, however, has the generality of the original Anglo-American concept. None, for example, condemns agreements to commit acts not otherwise criminal.

      In Anglo-American law there is a class of offenses known as inchoate, or preliminary, crimes because guilt attaches even though the criminal purpose of the parties may not have been achieved. Thus the offense of incitement or solicitation consists of urging or requesting another to commit a crime. Certain specified types of solicitation may be criminal, such as solicitation of a bribe or solicitation for immoral purposes, or inciting members of the armed forces to mutiny.

      The most important category of inchoate offenses is attempt, which consists of any conduct intended to accomplish a criminal result that fails of consummation but goes beyond acts of preparation to a point dangerously close to completion of the intended harm. The line between acts of mere preparation and attempt is difficult to draw in many cases. In continental European and some Anglo-American legal systems, attempt may also consist of conduct that would be criminal if the circumstances were as the actor believed them to be. A defense of “impossibility” is recognized only if the mistake is shown to be absolutely unreasonable. Unlike the law of some continental European countries, no defense has traditionally been granted to an offender who voluntarily desists from committing the intended harm after his conduct has reached a point beyond mere preparation. The American Law Institute's Model Penal Code and several American state codes, however, provide for an affirmative defense if it can be shown that the actor “abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

Criminal law and the social sciences (social science)
      Criminal law has been strongly influenced in the past century or two by the social sciences, especially criminology, sociology, and psychology. The empirical methods of the social sciences have been introduced into legal research and have done much to improve legislation and the courts' approach to sentencing, as well as the planning methods of law-enforcement agencies.

Behavioral norms (norm)
      The fact that the crime rates in many countries have risen faster than the population has brought into question the relevance of the law itself and whether or not laws against crime actually have an influence on an individual's behaviour. Various large-scale inquiries have been made into the relation between law and civil order: in the United States, the President's Commission on Law Enforcement and Administration of Justice; in Europe, several research studies sponsored by the Council of Europe; in Germany, the hearings of the Criminal Reform Commission of the Bundestag. One conclusion emerging from these inquiries is that criminal legislation ought to be restricted to acts that pose a serious threat to public order and that can be effectively dealt with by the police, the courts, and various correctional institutions. The effort to punish all behaviour that is considered immoral or deviant, such as drunkenness, gambling, disorderly conduct, vagrancy, and petty sex offenses, simply multiplies the number of crimes without changing the norms of behaviour.

The effectiveness of statutes
      Human conduct is determined by many factors that are not responsive to criminal statutes. Thus it appears that introducing or abolishing the death penalty (capital punishment) does not have any appreciable effect on the murder rate. Much depends also on the way in which laws are enforced. Any inquiry into the effectiveness of criminal statutes must examine the way in which police, attorneys, and the courts operate—for example, the manner in which they investigate suspects, gather evidence, instruct juries, and use their powers in “plea bargaining” and in sentencing.

The effectiveness of punishment
      It is difficult to determine the extent to which punishment serves to deter convicted offenders from committing further crimes (recidivism). Studies of the effectiveness of various forms of the treatment of criminals have led some researchers to the conclusion that “nothing works.” In a more positive light, available studies seem to indicate that lenient penalties (such as fines, probation, suspended sentences) and severe measures are about equally effective in preventing future criminality. Accordingly, there has been an international trend away from custodial treatment. Short-term sentences are seen as particularly harmful because they tear the offender away from his family and occupation and expose him to criminal indoctrination in prison and to social obloquy after his release. Long-term sentences are also viewed with growing skepticism, despite more than 150 years of prison reform, because of the adverse side effects of even the best institutions. These ill effects include acclimatization to the prison atmosphere, association with prison subcultures, infantilism, mental illness, and in general a decline in fitness for responsible life in a free community. It is now considered preferable to treat the convicted criminal in open institutions if possible.

Treatment of mental deficiency (insanity) and juvenile delinquency
      A large area of criminal behaviour involving mental deficiency and diminished responsibility cannot be dealt with through sentencing that does not also serve to rehabilitate the offender. Mentally disabled offenders require hospitalization and psychiatric treatment; this is usually handled through the probation mechanism or by commitment to a hospital for the criminally insane. Similar problems arise in the case of crimes resulting from narcotics addiction; prison terms for addicts make no sense unless some effort is made to treat the underlying condition. The same applies to juveniles (delinquency), who are generally dealt with through separate courts and sent to detention centres, training centres, and part-time homes.

Hans-Heinrich Jescheck

Additional Reading

General and comparative works
Classics in the field include James Fitzjames Stephen, A History of the Criminal Law of England, 3 vol. (1883, reissued 1964); Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 (1948– ); Jerome Hall, General Principles of Criminal Law, 2nd ed. (1960); George P. Fletcher, Rethinking Criminal Law (1978); and Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983).General and introductory texts include Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law, 2 vol. (1986), a discussion of topics such as responsibility, justification, and crimes against person and property; Rupert Cross, Philip Asterley Jones, and Richard Card, Introduction to Criminal Law, 11th ed. (1988), a standard British introductory text; Marise Cremona, Criminal Law (1989); Peter W. Low, Criminal Law, rev. ed. (1990), covering the basic principles and issues of criminal law; J.C. Smith and Brian Hogan, Criminal Law, 7th ed. (1992), an outstanding text on British law, and Criminal Law: Cases and Materials, 5th ed. (1993), containing extracts from books and articles; Thomas J. Gardner and Terry M. Anderson, Criminal Law: Principles and Cases, 6th ed. (1996); John N. Ferdico, Ferdico's Criminal Law and Justice Dictionary (1992), a comprehensive and concise resource; John M. Scheb and John M. Scheb II, Criminal Law and Procedure, 2nd ed. (1994), discussing such issues as law and punishment and the organization of the criminal justice system; L.B. Curzon, Criminal Law, 7th ed. (1994); Andrew Ashworth, Principles of Criminal Law, 2nd ed. (1995), a work that focuses on English law, raising questions about doctrines and rules and examining some of the principles and policies at work in the shaping of law; Joshua Dressler, Understanding Criminal Law, 2nd ed. (1995), a comprehensive text covering such topics as burden of proof and principles of criminal punishment; Michael Jefferson, Criminal Law, 2nd ed. (1995); and Paul H. Robinson, Fundamentals of Criminal Law, 2nd ed. (1995).

Treatises on selected nations
Criminal law of various countries is discussed in Jonathan Burchell and John Milton, Principles of Criminal Law (1991), an introductory text covering the general principles of criminal liability, common-law crimes, and certain statutory crimes in South Africa; J.M. Herlihy and R.G. Kenny, An Introduction to Criminal Law in Queensland and Western Australia, 3rd ed. (1990), a discussion of the fundamentals and the changes that have occurred; Timothy H. Jones and Michael G.A. Christie, Criminal Law (1992), a basic outline of criminal law in Scotland; several works on Canadian law, including Graham Parker, An Introduction to Criminal Law, 3rd ed. (1987), with chapters on criminal-law history and the relationship between law and morals; Eric Colvin, Principles of Criminal Law, 2nd ed. (1991), an introductory text; Alan W. Mewett and Morris Manning, Mewett & Manning on Criminal Law, 3rd ed. (1994), a document on the significant changes that have taken place in many areas; and Don Stuart, Canadian Criminal Law: A Treatise, 3rd ed. (1995), an edition that includes recent decisions made by the Supreme Court of Canada; and, for Germany, Johannes Wessels, Strafrecht Allgemeiner Teil: die Straftat und ihr Aufbau, 23rd rev. ed. (1993), an introductory text; and Reinhart Maurach and Heinz Zipf, Strafrecht: Allgemeiner Teil, 7th ed., 2 vol. (1987–89).

Works on substantive criminal law
Imre A. Wiener (A. Imre Wiener), Economic Criminal Offences: A Theory of Economic Criminal Law (1990; originally published in Hungarian, 1986), examines policies of state in both capitalist and socialist countries. K.J.M. Smith, A Modern Treatise on the Law of Criminal Complicity (1991), focuses on English law but contains references to American and Commonwealth jurisdictions. Celia Wells, Corporations and Criminal Responsibility (1993), questions the application of general or criminal-law doctrines to corporations. Raimo Lahti and Kimmo Nuotio (eds.), Criminal Law Theory in Transition: Finnish and Comparative Perspectives (1992), contains essays covering various aspects of criminal-law theory. David L. Bazelon, Questioning Authority: Justice and Criminal Law (1987), is a collection of essays by a U.S. Court of Appeals judge. Thomas Morawetz (ed.), Criminal Law (1991), discusses such topics as liberalism, economics, reason, and emotions in criminal law. M. Cherif Bassiouni (ed.), International Criminal Law, 3 vol. (1986–87), deals with the crimes, procedures, and enforcement of international criminal law. R.A. Duff, Intention, Agency, and Criminal Liability: Philosophy of Action and the Criminal Law (1990), is an introduction to some central legal and philosophical issues concerning criminal liability. Douglas N. Husak, Philosophy of Criminal Law (1987), attempts to expose the inadequacies of criminal law and outlines the direction that revisions should take. Sanford H. Kadish, Blame and Punishment: Essays in the Criminal Law (1987), contains contributions made by one of the leading American legal scholars. Michael S. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law (1993), discusses the act requirement of criminal law, the morality that justifies such a requirement, and the metaphysical nature of the acts. Stephen Shute, John Gardner, and Jeremy Horder (eds.), Action and Value in Criminal Law (1993), is a collection of essays that discuss the philosophical foundations of criminal law and legal doctrine. Michael J. Gorr and Sterling Harwood (eds.), Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure (1992), deals with liability and procedure. Nicola Lacey, Celia Wells, and Dick Meure, Reconstructing Criminal Law: Critical Perspectives on Crime and the Criminal Process (1990), examines criminal law in its social, historical, and procedural context by analyzing the processes that surround its creation, development, and application. Alan Norrie, Crime, Reason, and History: A Critical Introduction to Criminal Law (1993), is an introduction to North American law. Alan R. White, Misleading Cases (1991), argues that several criminal-law concepts have been misinterpreted and have led to mistaken decisions and bad judgments. Jeremy Horder, Provocation and Responsibility (1992), focuses on the historical and philosophical underpinnings of the legal doctrine of provocation. Patrick J. Knoll, Criminal Law Defences, 3rd ed. (1994), covers issues such as exemptions, justifications, excuses, and procedural defenses; J.C. Smith, Justification and Excuse in the Criminal Law (1989), also provides a useful discussion of these issues. Lawrence P. Tiffany and Mary Tiffany, The Legal Defense of Pathological Intoxication: With Related Issues of Temporary and Self-Inflicted Insanity (1990), offers a literature review and analysis of the topic.

Works in criminology and sociology
Norval Morris, Madness and the Criminal Law (1982), focuses on criminal responsibility and sentencing of the mentally ill. Paul H. Robinson and John M. Darley, Justice, Liability, and Blame: Community Views and the Criminal Law (1995), includes a general discussion of the proper role of community views in formulating legal doctrines, as well as original studies on a wide range of disputed legal issues. Robert F. Schopp, Automatism, Insanity, and the Psychology of Criminal Responsibility: A Philosophical Inquiry (1991), examines the psychological components of criminal responsibility and the role that psychological impairment should play in a theory of criminal liability. John F. Galliher, Criminology: Human Rights, Criminal Law, and Crime (1989), contains chapters on the origins of the law and the administration of the criminal law in the United States. Charles W. Thomas and Donna M. Bishop, Criminal Law: Understanding Basic Principles (1987), reviews fundamental legal theories, terms, and concepts. Toni Pickard and Phil Goldman, Dimensions of Criminal Law (1992), discusses the politics of criminal law.Hans-Heinrich Jescheck Ed.

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