Criminalisation and Penalty

• Criminalisation and penalty involve designating behaviors as criminal and determining appropriate penalties.
• This area of study questions how and why certain actions are criminalized.
• Normative scholarship emphasizes moral and legal principles guiding criminalisation.
• Key questions include: What should guide criminalisation decisions? What are the limits of criminal law? Is there overcriminalisation?

Contextualising Criminal Law

• Criminalisation is dynamic, influenced by social factors, not a static concept.
• Criminalisation practices include offence articulation, investigation, prosecution, trial, and sentencing.
• Each stage of criminalisation is influenced by assumptions about responsibility.

Normative Theories of Criminalisation

• Normative theories specify conditions under which behaviors should be criminalised.
• Serious wrongdoing merits criminal protection
• Creating a normative framework specifies what could rightfully be criminalised.
• A public matter warrants intervention

Specific Points

• Public morality legitimizes law's involvement in private conduct, maintaining societal order.
• Punishment severity should match the seriousness of the wrongdoing; proportionality is key.
• Advocates for new laws should demonstrate their necessity and efficacy in preventing crime, bearing the burden of proof.
• Criminal laws evolve, often reflecting society's power dynamics and historical contexts.
• Public/private distinctions impact perceptions of crime; previously private behaviors may become public concerns.
• Criminal law is shaped by risk, where behaviors are criminalised based on potential harm.
• The Hart/Devlin debate concerns whether law should enforce morality, balancing public morality and individual freedom.
• Moral panics, exemplified by societal reactions to crime waves, influence legislative changes.
• Empirical foundations for criminalisation are found in case studies, such as drink spiking, illustrating broader trends.
• Crime instances can prompt significant legislative reform, reflecting dynamic interplay of societal values and legal responses.

Public/Private

• A leading approach to criminalisation is whether some public interest was harmed.
• This approach distinguishes torts from crimes.
• Some actions are both torts and crimes (assault, theft).
• Some are crimes but not torts (illegal drug use, public order offences, treason).
• Some are torts but not crimes (inducing breach of contract).
• William Blackstone advocated for a public/private distinction regarding the state's right to expand into "private" activities.
• Public wrongs violate public rights/duties affecting the whole community.
• Private wrongs infringe on civil rights of individuals.

Harm: Mill’s “Harm Principle”

• The harm principle states power can rightfully be exercised over a community member to prevent harm to others.
• The harm principle is influential in discussions about criminalisation justification.

Social Harm, Semiology and Green Criminology

• Aggregate social harm challenges the focus on individual criminal responsibility and existing classifications of harms.
• Aggregate social harm includes injuries, diseases, and material losses from deliberate policy or intentional behavior.
• Intentional behavior embraces collective conduct foreseeably inducing harm, without immediate or direct nexus between perpetrators and damage.

Morality

• Criminal law should not equate the sphere of crime with that of sin.
• Advocates for a distinction between public and private morality.
• Legislating against immorality raises questions about using law to enforce moral standards.
• The Wolfenden Report recommended that certain private consensual behaviors, such as homosexuality, should not be criminal offenses.
• Individual freedom is important in private morality.
• The law should only intervene when public order or decency is at stake, rather than to enforce a particular moral code.

Offensiveness

• Offensiveness is a basis for criminal prohibitions, particularly in public order offenses.
• Behaviors considered offensive to the public can lead to criminalization, even if not immoral.
• Public drunkenness and indecent exposure are examples of such offenses.
• Whether offensiveness alone is a sufficient justification for creating criminal prohibitions, suggesting that the law should avoid unnecessary intervention in private lives unless there is a clear public interest.

Seminar questions?

• 3D printing a gun is likely a crime under firearms legislation, potentially carrying a maximum sentence of 14 years.
• Riding a bicycle without a helmet is a crime.
• Selling rat poison, whilst being believed to be cocaine, by a dealer could be a crime.
• Attempting to commit suicide - criminal offence.
• Lying about skills in resume is not usually a crime.
• Lending a classmate a Uni assignment so that she can duplicate it is a crime.
• Failing to assist someone who is drowning is a crime.
• Begging was decriminalised in 1979 but it can be captured under law enforcement responsibilities, where police can give directions to move on.
• Catching a train without wearing a mask could be crime.
• Shouting ‘fuck off and leave me alone!’ could be a crime.
• Threaten violence on the basis of race or religion is a crime.
• Busking is a crime.
• Failing to give a police officer your name and address - Under the law enforcement responsibilities act, police can ask for your identity if they are investigating a indeiable offence and you happen to be in the area before or after that offence.
• Using cannabis to alleviate the symptoms of a serious illness can be prescribed under the medical goods. which doesn’t preclude driving.
• Tax minimisation - it is legal as long as it is within the rules.
• Being intoxicated in public - it was a crime but it hasn’t be a specific offence since 1979 but does pick people up on. They can give directions to move on to intoxicated persons.
• Smoking in a public place - as long as it in an area for a smoking zone, but it may be illegal in a no smoking zone.
• A man is killed at a worksite when he falls off a roof - could be a crime.
• Two 15 year olds having sex is a crime.
• A real estate agent refuses to rent a property to a same-sex couple - it is not a crime.
• A newspaper publishes the name of a sexual assault victim is a crime.

Topic 1.1 Constructing crime

• The focus is on what a crime is and why/how particular acts become crimes.
• Traditionally, crime is defined by statutes versus a common-sense view where everyone knows it when they see it.

Acts Characterised as a Crime

• An act is characterised as a crime via the intention of the actor, context, culture, where and how the act occurs, when the act occurs, and what the law says.

Crime as a Social Construct

• Crime is produced in knowledge and power relations, not a given object.
• Criminalisation involves social practices that form the subject matter of criminal law, criminal justice, and criminological studies.
• Criminalisation captures the dynamic nature of the field as interlocking practices where defining and responding to crime constantly interact.

Examples of Changes to Laws

• Examples include: supply of drugs causing death, changes to law provocation re better response to DV, rape in marriage 1981 removal of CL immunity.
• Homosexuality (1984: partial decriminalisation; see also 2003 and 2014 amendments)
• Alcohol - public drunkenness in 1979
• Drugs - e.g. recent medicinal cannabis trials
• Regulatory crimes (particularly from 19th C)

Crimes as a Conduct

• Nothing 'neutral' or 'necessary' as to why certain acts are crimes at particular points in time
• We must locate them in particular discourses and knowledge regimes
• Important to realize that not all views are equal and that there are certain sites of power.

Explanations of why an act is defined as a crime

• Public/private distinction: public interest is harmed and conduct occurs in public
• Harm principle: state may interfere with liberty of an individual where actions would harm others
• Morality
• Offensiveness
• Conduct causing moral panics

Problems

• No total explanations for why we understand a certain act as a crime
• Limitations and problems with each explanation
• They may be useful in understanding how crime is constructed.

Lecture Part 2 - Topic 1.2 Importance of thinking about crime as a social construct

• Procedures critical thinkers - possibly the most important thing you can learn at university as it is critical.
• A criminal act usually leads to punishment
• Thinking about how the crime is constructed affects the type of solutions that result and how resources may be allocated.

Solutions

• If a problem is defined as a 'crime' issue it leads to certain types of solutions and allocation of resources in certain ways such as law and order.
• Solutions include: civil enforcement, public education, healthy solutions, economic reform etc.

Costs of justice system

• $14 billion
• $9 billion is policing

Effects of (over) criminalisation

• Poor resource of allocation e.g. arrest, conviction, and imprisonment rates:
• 1000 crimes committed
• 400 reported to police
• 320 recorded by police as offences
• Will punishment lead to positive behaviour changes or more secrecy, displacement of crime to another area, police corruption, health issues, inequal effect of criminal law?

Normative theory of criminal law

• A theory or set of criteria which ought to determine the appropriate limits to criminal law, enabling the specification of what sorts of behaviour are appropriately criminalised.

Utilisation of criminal law

• Only be used for subnational wrongdoing
• Enforced with respect for equal treatment and proportionally
• The principle that persons accused of substantial wrongdoing ought to be afforded the protections appropriated those charged with criminal offences
• The principle that maximum sentence and effective sentences levels should be proportionate to the seriousness of the wrong doing.

Criminal law as a last resort

• Factors taken into account include whether the behavior in question is sufficiently serious to warrant intervention by the criminal law.
• The mischief could be dealt with under existing legislation or by using other remedies.
• The proposed offence is enforceable in practice.

Parting thoughts

• Criminalisation should be viewed as one response to harms and risks among other option
• Criminal justice system responses to crime are never going to substantially affect the incidence of crime, which is largely a function of social, economic, and cultural factors that are not addressed criminalisation.
• Consider other public private responses: education, welfare, security, technology, insurance and urban design.

Activity 1.2 (Part A) - Watch the below video and think about the effects of over-criminalisation

Overburdening the justice system

• When too many behaviours are criminalized, it can overwhelm courts and law enforcement, leading to inefficiency and delays in addressing serious crimes.

Disproportionate punishment

• Some crimes may carry penalties that are too harsh for the nature of the offense, leading to unjust consequences, such as long prison sentences for minor offenses.

Social harm

• Over-criminalization can disproportionately affect certain communities, particularly marginalized groups. This can lead to long-term social consequences, like perpetuating cycles of poverty and exclusion.

Stigmatization

• Criminalizing certain behaviours may lead to stigmatization and harm individuals' chances of reintegrating into society. For example, someone with a criminal record may face barriers to employment or housing.

Activity 1.2 (Part B)

• Pill testing article. Think about the different perspectives "crime problems" can be looked at and how the approach influences the "solution".

Criminal justice perspective

• Pill testing may be seen as a contradiction to strict drug laws, as it allows individuals to check illegal substances without facing immediate consequences.
• The government reiterates that illicit drugs remain illegal and that police will continue to target drug suppliers. This approach reflects a compromise between enforcement and harm reduction - allowing for personal use while maintaining strict penalties for supply.

Public health perspective

• The harm reduction approach recognises that some people will take drugs regardless of legality
• The trial aims to reduce risks, prevent overdoses and provide health advice at festivals.
• Peer workers will be available to educate people on drug related harms, aligning with health based solutions rather than punishment

Social and political perspective

• The announcement balances public concerns about drug related deaths while maintain a tough on crime stance
• Parental concerns are acknowledged with the premier encouraging conversations between parents and young people about the dangers of drug use.
• The government is investing $265 million into drug treatment services, reinforcing a broader approach beyond just policing.

How the approach influences the solution

• Law enforcement focus - harsh penalties, no testing, deterrence based approach
• Harm reduction focus - pill testing, education, and intervention to prevent harm
• Compromise approach - pill testing under strict conditions, continued drug laws, and public health interventions.