04. “Criminal Legislation”Lecture by M.O. Sopiha, PhD

Plan:

1. Etymology.

2. Criminalization.

3. Categorization by Type.

4. Functions of Criminal Law.

EtymologyThe word crime is derived from the latin root cernō, meaning "I decide, I give

judgment". Originally the Latin word crīmen meant "charge" or "cry of distress." The Ancient Greek word krima (κρίμα), from which the Latin cognate derives, typically referred to an intellectual mistake or an offense against the community, rather than a private or moral wrong.

In 13th century English crime meant "sinfulness", according to etymonline.com. The glossing was probably brought to England as Old French crimne (12th century form of Modern French crime), from Latin crimen (in the genitive case: criminis). In Latin, crimen could have signified any one of the following: "charge, indictment, accusation; crime, fault, offense".

The word may derive from the Latin cernere - "to decide, to sift" (see crisis, mapped on Kairos and Kronos). But Ernest Klein (citing Karl Brugmann) rejects this and suggests *cri-men, which originally would have meant "cry of distress". Thomas G. Tucker suggests a root in "cry" words and refers to English plaint, plaintiff, and so on. The meaning "offense punishable by law" dates from the late 14th century. The Latin word is glossed in Old English byfacen, also "deceit, fraud, treachery. Crime wave first attested in 1893 in American English.

Categorization by Type• The following classes of offences are used, or have been used, as legal terms of art:• Offence against the person• Violent offence• Sexual offence• Offence against property• Researchers and commentators have classified crimes into the following categories, in

addition to those above:• Forgery, personation and cheating• Firearms and offensive weapons• Offences against the State/Offences against the Crown and Government/Political offences• Harmful or dangerous drugs• Offences against religion and public worship• Offences against public justice/Offences against the administration of public justice• Public order offence• Commerce, financial markets and insolvency• Offences against public morals and public policy• Motor vehicle offences• Conspiracy, incitement and attempt to commit crime• Inchoate offence• Juvenile Delinquency

Criminalization•One can view criminalization as a procedure deployed by society as a pre-emptive, harm-reduction device, using the threat of punishment as a deterrent to anyone proposing to engage in the behavior causing harm. The State becomes involved because governing entities can become convinced that the costs of not criminalizing (through allowing the harms to continue unabated) outweigh the costs of criminalizing it (restricting individual liberty, for example, to minimize harm to others).•Criminalization may provide future harm-reduction at least to the outside population, assuming those shamed or incarcerated or otherwise restrained for committing crimes start out more prone to criminal behavior. Likewise, one might assume  that criminalize acts that in themselves do not harm other people ("victimless crimes") may prevent subsequent harmful acts (assuming that people "prone" to commit these acts may tend to commit harmful actions in general). Some see the criminalization of "victimless crimes" as a pretext for imposing personal, religious or moral convictions on otherwise productive citizens or taxpayers.

Criminalization•Some commentators may see criminalization as a way to make potential criminals pay or suffer for their prospective crimes. In this case, criminalization becomes a way to set the price that one must pay to society for certain actions considered detrimental to society as a whole. An extreme view might see criminalization as State-sanctioned revenge.•States control the process of criminalization because:•Even if victims recognize their own role as victims, they may not have the resources to investigate and seek legal redress for the injuries suffered: the enforcers formally appointed by the State often have better access to expertise and resources.•The victims may only want compensation for the injuries suffered, while remaining indifferent to a possible desire for deterrence.[10]

•Fear of retaliation may deter victims or witnesses of crimes from taking any action. Even in policed societies, fear may inhibit from reporting incidents or from co-operating in a trial.•Victims, on their own, may lack the economies of scale that could allow them to administer a penal system, let alone to collect any fines levied by a court. Garoupa & Klerman (2002) warn that arent-seeking government has as its primary motivation to maximize revenue and so, if offenders have sufficient wealth, a rent-seeking government will act more aggressively than a social-welfare-maximizing government in enforcing laws against minor crimes (usually with a fixed penalty such as parking and routine traffic violations), but more laxly in enforcing laws against major crimes.•As a result of the crime, victims may die or become incapacitated.

Prison System•The State Department of Ukraine for Enforcement of Sentences oversees the prison system of Ukraine. •As of 2007, the total prison population in Ukraine was 240,000 people out of the 48 million populations.•Prisons in Ukraine are classified as pre-trial or remand prisons (SIZO), high security prisons, medium security prisons, and low security prisons.•Those who are charged with criminal offenses which entail sentencing for three years or more are arrested and held before trial in investigative isolation during the period of criminal investigation and after sentencing is moved to the prison as indicated by the courts in the sentencing decision. Bail is rarely used by courts in Ukraine.

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Functions of Criminal Law Criminal law is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses.

There are four theories of criminal justice:Punishment, deterrence, incapacitation, and rehabilitationIt is believed that imposing sanctions for the crime, society can achieve justice and a peaceable social order. This differs from civil law in that civil actions are disputes between two parties that are not of significant public concern.Criminal law in most jurisdictions, both in the common and civil law traditions, is divided into two fields: Criminal procedure regulates the process for addressing violations of criminal law.Substantive criminal law details the definition of, and punishments for, various crimes. Criminal law in the United States, Canada, Australia, and many other countries is based on English common law. These, and other legal systems, are also influenced by early written codes, such as the Roman Twelve.

Functions of Criminal Law Criminal law is intended to enforce social control by discouraging behavior that is harmful to societal well-being, as well as behavior that challenges the government's authority and legitimacy. Criminal law and punishments are designed to serve as a deterrent, helping to restrain behavior. While some crimes (malum in se) are outlawed nearly universally, such as murder and rape, other crimes (malum prohibitum) reflect society's social attitudes and morality. Criminal law establishes procedure for punishing offenders, with punishment handled by the state and not the victim who might otherwise seek revenge. Criminal law is the most familiar kind of law from the papers, or TV news, despite its relatively small part in the legal whole. In every jurisdiction, a crime is committed where two elements are fulfilled. First, the criminal must have the requisite malicious intent to do a criminal act. Second, he must commit the criminal act.

Functions of Criminal Law Criminal matters are considered to be offences against the whole community, rather than the individual victims. Also, in many countries, lay juries determine the guilt of defendants on points of fact, although they may not change legal rules themselves. Some developed countries still have capital punishment and torture for criminal activity, but the normal punishment for a crime will be imprisonment, fines, or community service. On the international field most countries have signed up to the International Criminal Court, which was set up to try people for crimes against humanity.

Functions of Criminal Law •Criminal law in the United States. The criminal justice process begins with an alleged crime. While the specific process varies according to the local law, the process culminates with a jury trial (as required by the Sixth Amendment), followed by mandatory or discretionary appeals to higher courts.•Criminal statutes spell out the exact behaviors, mental states, results and circumstances which constitute a particular crime. These required parts of a crime are known as the elements of the offense. Unless all the elements are proven beyond a reasonable doubt by the prosecuting authority, the defendant is not guilty of the offense.

Functions of Criminal Law There are four kinds of elements: the act itself, guilty act; the requisite culpable mental state, guilty mind; the result, and the attendant circumstances. At common law, all crimes required, at a minimum, both a guilty act and a guilty mind. In modern American jurisprudence, the minimum requirement is that there be an act element. Today, a crime may or may not require a culpable mental state, a result, or a circumstance. If a culpable mental state is required, the prosecution must prove it existed at the time of the required act, and, generally, that the accused had the same culpable mental state with respect to all the required elements. If a result is required, the prosecution must prove that it was caused by the required act. As an example, the common law definition of burglary was as follows: unlawful entry into a dwelling house at night with the intent to commit a felony therein. It is the duty of the prosecution therefore, to prove not merely the act (unlawful entry), and the mental state (the intent to commit a crime therein), but all the attendant circumstances (that it was a dwelling house, and that it was at night). Most modern criminal statutes have modified the elements, changing the "dwelling house" to a more general structure, and eliminating the "at night" element.

Functions of Criminal Law •In defense, the accused could argue that he had no intent to commit a crime inside the house, that it occurred during the day, or that his entry was lawful. He could also, of course, argue that the incident never happened, or that someone else committed the offense. As the burden of proving the crime occurred and was committed by the defendant rests exclusively on the prosecutor, the defendant might choose to put on no case at all, counting on the prosecution to fail in its efforts to convince the jury, or the judge in a bench (non-jury) trial.•Criminal law distinguishes crimes from civil wrongs such as tort or breach of contract. Criminal law has been seen as a system of regulating the behavior of individuals and groups in relation to societal norms whereas civil law is aimed primarily at the relationship between private individuals and their rights and obligations under the law. Although many ancient legal systems did not clearly define a distinction between criminal and civil law, in England there was little difference until the codification of criminal law occurred in the late nineteenth century. In most U.S. law schools, the basic course in criminal law is based upon the English common criminal law of 1750 (with some minor American modifications like the clarification in the Model Penal Code). In civil cases, the Seventh Amendment guarantees a defendant a right to a jury trial in federal court, but that right does not apply to the states (in contrast with criminal consequence, of her harm case).

Functions of Criminal Law Criminal law includes the legal rules defining crimes, forms of guilt, punishment, discharge or mitigation. The Criminal Code of Ukraine came into force from September 1, 2001. The main change in the new Criminal Code is the replacement of the death penalty by perpetual imprisonment. It also envisages such new types of punishment such as public work, arrest, deprivation of liberty, and official restrictions for persons on military service.Economic crimes in Ukraine are defined in a separate chapter “Crimes in Economic Sphere” of the Criminal Code of Ukraine. Procedural criminal law relates to the commencement of criminal proceedings, investigation, and court examination in criminal cases. The Criminal Procedural Code administers these procedures.

Functions of Criminal Law Crime is the breach of rules or laws for which some governing authority (via mechanisms such as legal systems) can ultimately prescribe a conviction. Crimes may also result in cautions or be unenforced. Individual human societies may each define crime and crimes differently, in different localities (state, local, international), at different time stages of the so-called "crime", from planning, disclosure, supposedly intended, supposedly prepared, incomplete, complete or future proclaimed after the "crime".While every crime violates the law, not every violation of the law counts as a crime; for example: breaches of contract and of other civil law may rank as "offences" or as "infractions". Modern societies generally regard crimes as offences against the public or the state, as distinguished from torts (wrongs against private parties that can give rise to a civil cause of action).When informal relationships and sanctions prove insufficient to establish and maintain a desired social order, a government or a state may impose more formalized or stricter systems of social control. With institutional and legal machinery at their disposal, agents of the State can compel populations to conform to codes and can opt to punish or attempt to reform those who do not conform.

Functions of Criminal Law Authorities employ various mechanisms to regulate (encouraging or discouraging)

certain behaviors in general. Governing or administering agencies may for example codify rules into laws, police citizens and visitors to ensure that they comply with those laws, and implement other policies and practices that legislators or administrators have prescribed with the aim of discouraging or preventing crime. In addition, authorities provide remedies and sanctions, and collectively these constitute a criminal justice system. Legal sanctions vary widely in their severity, they may include (for example) incarceration of temporary character aimed at reforming the convict. Some jurisdictions have penal codes written to inflict permanent harsh punishments: legal mutilation, capital punishment or life without parole.

Usually a natural person perpetrates a crime, but legal persons may also commit crimes. Conversely, at least under U.S. Law, nonpersons such as animals cannot commit crimes.

The sociologist Richard Quinney has written about the relationship between society and crime. When Quinney states "crime is a social phenomenon" he envisages both how individuals conceive crime and how populations perceive it, based on societal norms.