Ch 2 PDF - Criminal Law

Ch.2 Mens rea: guilty mind or mental element of a crime, proves level of blameworthiness Different levels of mens rea: - Intention: when they mean to do it. They saw beforehand it could cause harm and that is why they did it. - Knowledge: they know that it could cause harm but th...

Ch.2 Mens rea: guilty mind or mental element of a crime, proves level of blameworthiness Different levels of mens rea: - Intention: when they mean to do it. They saw beforehand it could cause harm and that is why they did it. - Knowledge: they know that it could cause harm but they are not meaning to - Recklessness: when they see that it can cause harm but do it anyways, but they dont intend the outcome. Ex. Accidentally running over someone and then hiding their body instead of coming forward about it - Negligence: didn't see that their actions would cause harm but any normal person would have seen that it would have Causation: what was the cause of the crime? Harm: how can we link how the crime was harmful? Legality and punishment: A punishment has to be available for the crime for there to be a crime. Has to be a law that forbids it according to the black letter law (written, codified in black letter) ACTUS REA: action element of a crime which can include acting, omission to act, threatening to act, attempting an act, and possession. (doing something voluntarily is an act) Saying and doing are different. Concurrence: the legal principle stating that intention must precede and be related to actus rea. Intention must be present and be related to action or actus rea Crime: Numerous, numerous numerous acts punishable by law as being forbidden by statute or injurious to the public welfare. An evil or injurious act, an offence, a sin. It involves a moral component, a social component, and an empirical component. And illegal component. Social understandings of crime: Social norms: Accepted rules or expectations about how to act in a given situation or what is right in a particular context. Deviance is associated with social norms and moral codes that govern our behavior in society. When people follow norms, societies are stable and have order when people don't follow them. We have disorder. We cannot understand crime without isolating the norms that produce order in a given society. Social control. They are the ways a society enforces its norms, if violating a norm can bring disorder to a society. Social control seeks to reorder society. The ways that we can enforce its norms are by ignoring and tolerating, shunning and disapproving or creating a law, and punishing those who violate certain social norms. Norms and place: Helps us make sense of why there is international variation in the definitions of criminal behavior. We think about the norms that govern each society and compare why one society considers this a crime and another does not. Example: why assisted suicide is not a crime in the Netherlands, but it is in the US. Norms and history: History reveals the process by which some behaviors are criminalized. Social positions and social categories change over time. New types of social relations include changes in government and culture and in the economy or in personal relationships. It includes criminalization and decriminalization. Criminalization: The process by which behaviors become defined as criminal, therefore defining some people as criminals. Decriminalization: the process by which behaviors once defined as criminal are no longer criminal. For example, women voting or going to school or decriminalized. Revenge porn: The Criminal Code offence made it illegal to share intimate images of a person without their consent. Norms and social power: Consider how societies are organized in terms of broad social categories such as race, social class, and gender. It looks at crime through an understanding of whose norms construct order and whose sense of order gets reinforced in law and what norms don't formally get recognized. For example, the outlawing of First Nations potluck ceremonies in 1880 by the Canadian government. The government thought these ceremonies were excessive, wasteful and barriers to assimilation. They made it a misdemeanor offense to participate or organize potluck and it stayed illegal. Until the Indian Act in 1951. Norms and social power suggests that crime is not value free but is based on some type of conflict. Between groups, with the dominant groups getting their norms written into law. Linking norms, social power and crime reveals that those who have social power to use law to maintain social, political and/or economic power over others. Determine what is criminal. Norms and social interaction: Becker suggests that unless an agent of law successfully applies the label criminal to a person, they are not a criminal. So even though they may engage in a harmful act, Unless someone defines it that way, they are not considered criminal. Labeling: The application of a set of behaviors to someone who comes to identity and behave in ways that reflect how others label them. It involves a social perception of one's activity as criminal. One is designated as a criminal, the label becomes a part of their identity and the individuals begin to adopt the identity of a criminal. Stigma: A powerfully negative label that greatly changes a person's self, concept and social identity. Labeled individuals suffer negative repercussions because of the stigma associated with labeling of a criminal. Social exclusion: the process of being shut out fully or partially from the social, economic, political, or cultural systems that determine the social integration of a person in society. For example, people who are poor are more likely to be Criminalized. Legal representations of crime: An Act is only a crime when it violates the prevailing legal code of the jurisdiction in which it occurs. No matter how harmful or morally reprehensible an act is, it's not a crime unless there's a statute that forbids it. An act must precisely fit the definition written in law. There are 7 elements that must be proven for an act to be considered criminal. The seven elements are legality, men's Rea, actus Rea, concurrence of men's Rea and actus Reus, Harm, causation and punishment. OK. Statute law: Written law compiled by a legislator or government. When these are organized based on subject matters such as criminal law, it is called codified. In Canada, the Criminal Code is statute law codified in the Canadian Criminal Code. Black letter law: basic principles of law that are accepted because they are written down or codified in black letters. Empirical representations of crime: includes counting incidents of criminal acts, both those charged and acquitted or convicted. Statistics can use Criminal Code definitions, or they can group crime in other ways using different definitions such as street crime, corporate crime, organized crime, and so on. The statistics also describe various related elements associated with the incident such as relationship between the accused and the victim, context of the event, prior criminal records and many more. Again, counting crime is an imperative for policymakers, public officials and administrators. The crime count will help to determine how many police officers should be hired and how many Crown attorneys should try cases and how many prisons should be built. It will also help fashion and design new crime control initiatives that are used to analyze and evaluate existing programs and develop funding requests to plan new laws and crime control legislation. Qualitative data: part of representation of social phenomena gathered through interviews and Participant observation. Quantitative Data: Numerical representation of social phenomena gathered through measurement tools such as large scale surveys or police, court and correction. Stata. Crime rate: Issue of crimes in an area to the population in that area for a given time frame. It is the number of offences that occur per population per year. Represented as a number per 100,000. So the crime rate refers to the incidence and frequency of offenses per a given population. It captures the numbers of assaults, thefts, homicides and other crimes. They failed to capture anything specific regarding the seriousness of an incident Or an adequate measure of the crime Crime Severity Index: a measure of police reported crime that reflects the relative. Christmas of individual offenses. It gives more weight to serious crimes and less weight to less serious crimes. Prevalence: A measure of crime shown the number of people Participating In crime or a particular crime at a given time. You divide the number of offenders by the size of the population and that gives us a ratio of crime. For example, if we have a group of 100 people and 10 of them are offenders, we can determine that the prevalence of crime is one in 10. Incidents: a measure of crime that records the frequency with which offenders commit a crime or the average number of offences per offender. Provides more in depth measure of crime. And prevalence or crime rates, because it shows us how crime is spread out among the population. For example, theft is found to have a high rate of occurrence. An incidence measure will clarify how many people are actually committing the thefts and tell us whether it is a small group of individuals or If the thefts are being committed By the same person multiple times. It's measured by dividing the number of offenses by the number of offenders. For example, 10 people out of 100 have committed offenses incidents. Measures are interested in how many crimes those ten peoples have committed. For example, If 5 offenders have committed one offense, one offender has committed fifteen offense, 3 offenders have committed 2 offenses each, and one has committed 5 offences, we add the total number of offences and divide it by the number of offenders. And find that the incidence of a crime is 2.7 offenses per offender. Uniform Crime Reports: Used to produce the annual crime rate, crime severity index, number of clearances, number And rate of charges, detailed information on violation types, and so on. Law.: a rule of conduct that prescribes or mandates forms of behavior, or a collection of rules that have been constructed to address issues of human behavior. It provides the state with the power to control those who violate criminal law. It also regulates the behavior of those who make arrests, produce evidence and find guilt. It protects citizens from being wrongfully accused, abused by the state and wrongfully incarcerated. Philosophical basis and history of Liberal Democratic law: it's about the study of power in terms of government and civil society. Dark ages: A time in Western civilization that was characterized by overt sovereign power and oppression and was recognized as the time of ignorance, barbarism, and superstition. Before the institution of public law, the monarch or sovereign controlled the Kingdom without reference to any document. They controlled people for their own interest, and people lived in fear. Age of Enlightenment: A western intellectual culture and Philosophical movement from the late 1600s to early 1800s, highlighting the rationality of humans and rejecting traditional authority and ways of knowing. Numerous philosophers began to rethink mechanisms of government so that they better represented the public and produced more effective forms of governance and public administration. Natural rights: rights derived from the Law of nature and not dependent on government or culture, and which encompasses things such as life, liberty, freedom and so on for all living creatures. Philosophers argued that all government must uphold. Those natural rights and take them away only if their use will harm the public. Social Contract: Surrender of natural freedoms to an authority in exchange for protection of the remaining rights. It's an agreement between the citizens of society and the government to cooperate for the benefits of a stable and productive social order. Constitutions: a set of rules and principles that define the nature and extent of government. It defines the relationship between States and citizens and concretely established rights and obligations between the two parties. The Acts, Constitution, Act and Charter of Rights and Freedoms detail the requirements of government. In the civil rights of citizens. Democracy: All laws That are passed must be done so in the name of people and according to provisions outlined in the charter. Democracy is the idea that the best form of government is visible and controlled by the people. It's meant to allow every member access to political power. Rule of law: the concept that law is only guiding principle of governance or rule, meaning that freedom in society means being subject only to laws made by legislator and that apply to everyone. People are otherwise free from both governmental and private restrictions upon liberty. Liberal Law: It borrows from the philosophy of the Enlightenment, and that is based on reason. Mr. Wright, where someone is accused of crime is assumed innocent and if the state wants to take away the freedom of an individual, it must be justified. Criminal Code: a federal statute listing criminal offences and punishments as well as the procedures as defined by Parliament. The first one was passed in 1892. All black letter law in Canada is subject to the Constitution, the Charter, the rule, law and democratic principles. Stare decisis.: a legal principle that limits a court decision to ones made by the same court or by other higher level courts. It's a version of common law. Common law: Law is uniform and is based on precedent, meaning that judges must follow the decision in earlier cases. There is some predictability in law and citizens can use reason in their decision to act. It means similar punishments should be given to similar offenders in similar circumstances. Conservative critique: Allowing everyone equal freedom is problematic. Conservatives argue that traditional values, such as those found in most religious and conventional societies, are at risk when liberalism shows Allows everyone the same access to all social rewards. Conservatives hold that sharing wealth with those who are disadvantaged is problematic because it discounts the fact that some people are stronger and more intelligent than those who don't, Distributing goods equally devalues individual talent and skill. It argues that those accused of crime have too many rights granted to them under liberal framework. They believe that rights respective is problematic to safety of society. They suggest law and order approaches. Will produce safer societies. They reject laws that take away particular rights, such as gun control. Radical critique: Prioritize the rights of individuals at the neglect of the collective. Claims that there is a difference between political emancipation and real human emancipation. Believes that freedom is an illusion. When you enter the CJ system, you're right, should be minimized, but if not then the government should be less involved. Indigenous critique: focuses on the dangers posed when a legal theory grounded in one intellectual history and tradition Attempts to cast its web of principles, values, and fundamental argues onto the lives of people grounded in separate and unique cultural and intellectual histories. The idea of individuality. A sense of what constitutes a good life, what the self means, and how practices of colonialism have forced upon indigenous peoples in a way of self identifying what is inherently connected to Western notions of individuality, the good life and the self. Justice: The morally correct state of things or persons. Concerned with how a person came to be in trouble with the law in the first place. It's about which behaviors get criminalized and which behaviors do not. It's about who gets rewarded in society and who gets punished. Who is the oppressed and who is the oppressor? It has ethical side and a practical side. The ethical side makes a moral claim that something is right or wrong. The practical side is where we can create rules that, when followed, constitute justice or just. Practices. Distributive justice.: a principle by which we make adjust allocation of societal goods. Concerned with treating equals equally and unequals unequally in proportion to the inequality. For example, women and men are biologically and physiologically different, so does that mean we should be treated differently? There are two types of distributive justice, fundamental liberal and social. Fundamental liberal justice: the view that Philosophically, everyone is naturally equal, so practically all people should be treated the same. The proper distribution of goods is according to merit. In practice, justice is met when all individuals are treated equally. Therefore, the more someone contributes, the more they should be compensated, and the less they give, the less they should be compensated. Meritocracy: A social system in which social goods are distributed based on talent, effort, achievement and contribution. Social justice: the principle that every member of society is afforded the same opportunities, privileges, and protections as everyone else, regardless of their social position, including class, race, gender, and so on. It argues that in a contemporary world, inequality is a dominant facet of societies. It argues that those who have less should be given more. Therefore, the distribution of societal goods should be based on need, not merit. Corrective Justice; A type of justice Concern with the methods to reverse or correct a wrongdoing. It asks why we punish, who should be punished, and what punishment should they receive. Utilitarian corrective justice Approach that says justice is achieved when the punishment given is useful or has utility. Argues that we should punish individuals under the justification of it being useful for them and for society. Retributive corrective. Justice: An approach that says justice is achieved when a person is punished based on the amount. Of harm their acts caused. We should punish someone based on the amount of harm that their act caused. Rationality of law: All law making should uphold the ideas of natural law that all humans are Born Free with a free will and are equal, and their freedom should be restricted only for behavior that harms society. Law represents the democratic processes and is not tied to the power of those. In positions of authority. Law enforcement should uphold the rights of accused and not violate the right to privacy or security. Punishment should be proportional to the amount of harm and act causes, not more or less. Functionalist Perspective: Concerned with how we have an efficient, progressive society. It assumes that there are shared core values and that the point of government is to uphold these core values and help society progress. Government is concerned with creating and reforming policies and programs that are to benefit everyone. Can be used to explain the criminal justice system. By examining how its parts produce or inhibit social order. Functionalism would examine whether police work contributes to a social solidarity and whether police work on behalf of the community they police. It analyzes how police should and do respond to the needs of community and uphold the values of the collective. Strain or anomie: Social instability that results from uncertainty, breakdown of values, lack of norms and can result in personal unrest. Strain is experienced by numerous things such as poverty or the inability to achieve societal goals can cause rule breaking behavior.: Critical and radical conflict perspective: Conflict theory suggests there are no consensus of values and that social solidarity and the collective conscious or sediment is a falsity. The perspective makes the sense of the relationship among various groups as humans struggle for the economic, political and cultural power. The starting point for this perspective is that economic inequality is inherent in society and that the outcome is conflicts between the antagonist The radical conflict perspective is premised on the notion that law is not consensus driven. The creation and administration of criminal law reflects the active power struggles between competing groups and opposing interests. Repressive state apparatus: Set of institutions, including the army, police, judiciary, and prisons that operate by means of mental and physical coercion and violence upon those who do not conform to social economic order. Police were formed with an emphasis on the surveillance, discipline, and control of the rough and dangerous. Working class elements of society and punishment is formulated around the creating rehabilitative and disciplined workers and to make the unwilling work. Interpretive cultural carceral. Society Perspective: suggest that we create knowledge about things such as crime through our interaction with, interpretation of, and reaction to them. Examines the cultural side of crime, law, and justice as opposed to the legal or structural side. Suggests we can understand a lot about crime and the criminal justice system through analyzing the philosophical And subconscious beliefs about crime law, policing, courts. In prison and how these get transmitted to us. Carceral society: A society that is characterized by the spread of penal techniques for surveillance and regulation of human behavior usually reserved for prison. It is where knowledge is used to discipline the conformed citizens, not allow them to be free Carceral feminism: argues that numerous woman's movements, such as those concerned with domestic violence and sex trafficking, have become a vehicle for entrenching punitive responses to social concerns. Moral panics: a feeling of fear spread among people that an evil threatens society or the process of creating fear over an issue by moral entrepreneurs..