essay on recent developments in criminal law

Criminal Law

Resisting mass immigrant prosecutions.

Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This Article documents, analyzes, and draws lessons from immigrants’ defiance. In particular, the battles in California and Texas reveal several effective lega…

Prisons as Laboratories of Antidemocracy

Jeffrey Bellin's  Mass Incarceration Nation  robustly analyzes how state and federal policies have combined to drive up prison populations. Mass incarceration represents a failure of democracy, but the repressive policies of American prisons represent an even graver threat as laboratories of antidemoc…

Navigating Between “Politics as Usual” and Sacks of Cash

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting an…

What Are Federal Corruption Prosecutions for?

This Essay considers the role of prosecutors in the Supreme Court’s decades-long contraction of public corruption law. It examines how federal prosecutors’ reliance on broad theories of liability has paradoxically narrowed federal criminal law’s reach over public corruption, and considers how prosec…

Demoralizing Elite Fraud

The Supreme Court’s effort to avoid interpreting morally weighted terms like “fraud” and “honest services” has led it to make bad and confusing law in wire-fraud cases. These cases, unlike Citizens United and its ilk, are unanimous, joining liberal and conservative Justices, reflecting a shared skep…

The Stakes of the Supreme Court’s Pro-Corruption Rulings in the Age of Trump: Why the Supreme Court Should Have Taken Judicial Notice of the Post-January 6 Reality in Percoco

In Percoco , the Supreme Court squandered opportunities to contextualize political corruption. This Essay argues that the Supreme Court should have taken judicial notice of the post-January 6 circumstances which surround the decision. This is a perilous time in American democracy for the Justices to …

Abolitionist Prison Litigation

There has long been a perceived tension between abolition and prison-conditions litigation. This piece offers a path forward for such litigation that is consistent with abolitionist goals. Drawing from experience with Texas state prisons, the piece proposes a framework for litigating prison understa…

Policing Protest: Speech, Space, Crime, and the Jury

Speech can catalyze reform, particularly for marginalized speakers. Yet, criminal law regularly curtails speech rights by regulating access to spaces where speech occurs. This Feature (1) argues that, sometimes, presence in such spaces is the message and (2) proposes a First Amendment defense ground…

Youth Always Matters: Replacing Eighth Amendment Pseudoscience with an Age-Based Ban on Juvenile Life Without Parole

Existing Eighth Amendment protections force judges to sort children into pseudoscientific categories. An analysis of sentencing transcripts reveals that sentencers routinely rely on unfounded assumptions when sentencing juveniles to life in prison. Following efforts led by formerly incarcerated yout…

Fitting the MPC into a Reasons-Responsiveness Conception of Subjective Culpability

This Note compares the MPC’s mens rea regime with the “reasons-responsiveness” conception of culpability widespread among criminal law theorists. It argues that if the reasons-responsiveness account is correct, the MPC will often fail to track offenders’ relative culpability, resulting in disproport…

Title 18 Insider Trading

Securities regulation is a poor host for insider trading doctrine. This Note advances an alternative: the law of federal criminal fraud. It argues that a standalone model of Title 18 insider trading can resolve stubborn doctrinal puzzles, stamp out judge-made securities crimes, and reanchor the offe…

Disability Law and HIV Criminalization

Over thirty states maintain laws that criminalize people living with HIV, exposing them to incarceration, fines, and social stigma. This Note argues that many such laws violate the ADA’s ban on public discrimination. While previous challenges to HIV-criminalization laws have failed, federal disabili…

Victims Versus the State’s Monopoly on Punishment?

Gabriel Mendlow rightly argues that victims deserve larger roles in criminal justice, but mistakenly hints that they deserve exclusive control. Communities are also harmed by crimes and have standing to punish them. This Essay argues that criminal procedure should return to its roots as a communal m…

The Moral Ambiguity of Public Prosecution

In a legal system where criminal prosecution is the institutional analog of moral blame, a state that acts as exclusive prosecutor exceeds its moral standing and incurs a debt to the victim. The nature of this debt and how we might discharge it are the primary subjects of this Essay. 

Police Reform Through a Power Lens

This Article examines recent social movements efforts to shift power over policing to those most harmed by mass criminalization. This focus on power-shifting—the power lens—opens up reform discussions to first-order questions about how the state should provide safety and security, with or without po…

By Any Means: A Philosophical Frame for Rulemaking Reform in Criminal Law

Equitable crime policy and equity in the process of crime policymaking stand as the two goals most important to criminal-justice reform advocates. It would be a strategic mistake, however, to consider the two of equal importance. 

Introduction

Former Attorney General Eric Holder reflects on the Justice Department’s unique role in American society.

The Civil Rights Division: The Crown Jewel of the Justice Department

This Essay contrasts the recent history of the Civil Rights Division with the first decades of its existence, arguing that civil rights advocates today should do more than reverse the harms of the Trump years. Rather, advocates must leverage the Division’s institutional dynamics to ensure its effect…

Thwarting the Separation of Powers in Interbranch Information Disputes

The Office of Legal Counsel (OLC) advises the President in information disputes with Congress. This Essay analyzes how OLC’s increasingly aggressive separation-of-powers advice, the Trump Administration’s utilization of OLC opinions to resist congressional information requests, and congressional acq…

Treat Every Defendant Equally and Fairly: Political Interference and the Challenges Facing the U.S. Attorneys’ Offices as the Justice Department Turns 150 Years Old

How do the US Attorneys’ Offices restore their damaged credibility with the public? New laws and policies designed to preserve the independence of the Justice Department from politicization are much needed. But it will be even more important to rebuild public trust by reinforcing the culture of inde…

Stare Decisis in the Office of the Solicitor General

The Office of the Solicitor General (OSG) is generally believed to operate under its own form of stare decisis. But in many circumstances, OSG best serves governmental interests and those of the Supreme Court by submitting positions that it believes are right, even if they depart from prior submissi…

Unconstitutional Incarceration: Applying Strict Scrutiny to Criminal Sentences

Because bodily liberty is a fundamental right, the government may confine someone only to the extent necessary to further a compelling interest. Courts limit pretrial detention and civil commitment accordingly but exempt criminal sentences without explanation. This Note argues that carceral sentence…

The Power of Police Officers to Give “Lawful Orders”

Forty-four states, the District of Columbia, and the federal government criminalize disobeying the “lawful orders” of police officers. But it is uncertain which orders are lawful. This Comment proposes a model statute that would clarify and limit police authority while informing civilians about the …

The Politics of Decarceration

Can the political process help undo mass incarceration? This  Book  Review argues that changes in the two major political parties, the results of recent state-level elections, and changes in public opinion all provide reason to hope that democratic politics is compatible with ending mass incarceration…

Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless Sex-Offender Registrants

New York’s poor, disabled sex-offender registrants are ensnared in a cruel catch-22: New York will not release them from prison without housing, but laws and policies make finding housing nearly impossible for this population. This Essay explores potential legal challenges to New York’s harmful, cou…

Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience

This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner. Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity desp…

The High Stakes of Low-Level Criminal Justice

Alexandra Natapoff reviews Misdemeanorland , summarizing the book’s key contributions and extending its insights about New York City’s system of misdemeanor managerial social control to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.

Prosecuting Corporate Crime when Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review

Some corporations have become so large or so systemically important that the government cannot credibly threaten efficient criminal sanctions. This Note presents a microeconomic model of corporate criminal prosecution for Too-Big-to-Jail businesses and offers several prosecutorial reforms to help ho…

The Punishment Bureaucracy: How to Think About “Criminal Justice Reform”

The “criminal justice reform” movement is in danger. Efforts to change the punishment bureaucracy are at risk of being co-opted by bureaucrats who have created and profited from mass human caging. This Essay seeks to understand the true functions of the punishment bureaucracy and to offer suggestion…

Separation of Prosecutors

The decentralized structure of the federal criminal-justice system has generated significant criticism. This Note offers a novel explanation and defense of this structure, arguing that decentralization is a feature of congressional design, not a bug of congressional abdication.   

What Break Do Children Deserve? Juveniles, Crime, and Justice Kennedy’s Influence on the Supreme Court’s Eighth Amendment Jurisprudence

Many read Justice Kennedy’s landmark Eighth Amendment sentencing cases to herald a fundamental change in how juveniles are treated in the criminal justice system. But the better reading is more modest. Instead, they force us to ask what it means to say that youth is relevant to the determination of …

Transcending the Stigma of a Criminal Record: A Proposal to Reform State Bar Character and Fitness Evaluations

This Essay is rooted in the author’s experience as a formerly justice-involved individual who overcame numerous barriers to become an attorney and advocate. It argues that bar associations should use a conditional - approval process that informs applicants whether the bar intends to admit them before …

Ending the Incarceration of Women and Girls

Drawing on the author’s experience as a formerly incarcerated mother and advocate, this Essay challenges the reader to consider whether incarceration generally—and incarceration of women and girls specifically—is a fundamentally misguided response to violence and poverty that we must retire.

The Effort to Reform the Federal Criminal Justice System

This Essay describes the difficult process of federal criminal justice reform and how the reform community’s efforts led to passage of the First Step Act. It also explains what risks could stall future reforms and discusses the criteria advocates should use in deciding whether to support future refo…

Why Is It Wrong To Punish Thought?

It is an age-old maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, and unexecuted intentions. Yet its justification is something of a mystery. This Essay argues that each of the prevailing justifications is deficient and propo…

Who Locked Us Up? Examining the Social Meaning of Black Punitiveness

In this Review of James Forman, Jr.’s Pulitzer Prize-winning Locking Up Our Own: Crime and Punishment in Black America , Darren Hutchinson reconciles Forman’s research with antiracist accounts of U.S. crime policy. Literature on implicit bias, social dominance orientation, and right-wing authoritaria…

Dangerous Defendants

Bail reformers aspire to untether pretrial detention from wealth and condition it instead on the risk that a defendant will commit crime if released. In setting this risk threshold, this Article argues that there is no clear constitutional, moral, or practical basis for distinguishing between equall…

Police Reform and the Dismantling of Legal Estrangement

In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with t…

Policing Through an American Prism

Policing practices in America are under scrutiny. Video clips, protests, and media coverage bring attention and a sense of urgency to fatal police civilian incidents that are often accompanied by broader calls for reform. Tensions often run high after officer involved shootings of unarmed civilians,…

Cops and Pleas: Police Officers’ Influence on Plea Bargaining

abstract.Police officers play an important, though little-understood, role in plea bargaining. This Essay examines the many ways in which prosecutors and police officers consult, collaborate, and clash with each other over plea bargaining. Using original interviews with criminal justice of…

Why Have We Criminalized Aggressive War?

On the dominant view, accepted by both defenders and critics of the criminalization of aggression, the criminal wrong of aggressive war is inflicted on the attacked state. This view is mistaken. It is true that whether a war is criminally aggressive is determined ordinarily by whether …

Is History Repeating Itself? Sentencing Young American Muslims in the War on Terror

The United States’ aggressive War on Terror policies since 9/11 have led to significant prison sentences for many young American Muslims, even when their charged criminal conduct cannot be tied to any act of violence in the United States or abroad. A primary reason provide…

Capital Jurors in an Era of Death Penalty Decline

The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s. Following decades during which the death penalty shared broad public support, over the last decad…

Prosecuting Gender-Based Persecution: The Islamic State at the ICC

Reports suggest that Islamic State, the terrorist “caliphate,” has enslaved and brutalized thousands of women from the Yazidi ethnic minority of Syria and Northern Iraq. International criminal law has a name for what Islamic State has done to these women: gender-based persecu…

The Bostic Question

Introduction Federal criminal procedure regularly struggles with a tension between fairness and finality. The Constitution provides defendants with special privileges and protections designed to prevent injustice,1 but systemic concerns about efficiency, comity, and finality make i…

Systemic Triage: Implicit Racial Bias in the Criminal Courtroom

Crook County: Racism and Injustice in America’s Largest Criminal Court By Nicole van cleve Stanford university press, april 2016 author. Professor of Law, U.C. Irvine School of Law. A.B. Harvard College, J.D. Yale Law School. I wish to thank Rick Banks, Erwin Chemerins…

Prosecutors Respond to Calls for Forensic Science Reform: More Sharks in Dirty Water

In September 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report questioning the validity of a number of forensic science techniques routinely offered as evidence (“PCAST Report ” ). This report raises familiar issues and recommendations. In 2009, the National…

In Wakefield ’s Wake: Rescuing New York's Enterprise Corruption Jurisprudence

introduction For many years, New York State’s enterprise corruption law was grounded in a legal error. Recently, the New York Court of Appeals has sought to correct some of the doctrinal consequences of this mistake. Unfortunately, the court’s solution has left the law unmoored fro…

From False Evidence Ploy to False Guilty Plea: An Unjustified Path To Securing Convictions

introduction On June 20, 1991, two police officers brought an African American man named Anthony Gray into custody for questioning related to the unsolved rape and murder of a woman in Calvert County, Maryland.1 During the interrogation, the detectives lied to Mr. Gray about the evid…

Innocence and Override

For the past three decades, the practice of judicial override in capital cases has allowed Alabama judges to impose the death penalty even where the jury voted for life. However, recent developments have cast doubt on the future of override in Alabama. The United States Supreme Court struck down par…

Ideological Imbalance and the Peremptory Challenge

Legal scholars, by and large, revile peremptory challenges. Allowing parties to unilaterally strike prospective jurors without explanation has been attacked as undemocratic,1 as prone to manipulation,2 as a potential First Amendment violation,3 and—most often of all—as racist.4 Judge…

Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws

Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting th…

Campus Sexual Assault Adjudication and Resistance to Reform

The forty-year history of rape law reform sheds light on current debates around the adjudication of campus sexual assault. Two strands of rape law reform are important. The first, a progressive reform movement, abolished the unique procedural hurdles in rape prosecutions. Tha…

The Rise of Bank Prosecutions

Before 2008, prosecutions of banks had been quite rare in the federal courts, and the criminal liability of banks and bankers was not a topic that received much public or scholarly attention. In the wake of the last financial crisis, however, critics have begun to ask whether prosecutors adequately …

Complicated Process

Introduction I come to this important Title IX Conversation from a unique perspective. This is not because I was a federal judge for seventeen years. Rather it is because before my judgeship, I was a feminist litigator and a criminal defense lawyer. And from this vantage point, my concern…

Will Putting Cameras on Police Reduce Polarization?

In the wake of national outrage and polarization over several high-profile police shootings of unarmed citizens, reformers have called for police officers to wear body cameras. This Note argues that, despite the seeming objectivity of the camera, video footage remains susceptible…

Evidence-Based Sentencing and the Taint of Dangerousness

Today’s world is “all about the data.”1 In a variety of contexts, innovators have offered statistical models as a way to reduce or eliminate human error.2 The promise of quantitative optimization has even influenced our criminal justice system. About twenty states have developed or a…

For the Title IX Civil Rights Movement: Congratulations and Cautions

On September 25, 2015, the Yale Law Journal held a “Conversation on Title IX” that confirmed the existence of a new civil rights movement in our nation and our schools. The movement’s leaders are smart, courageous survivors of gender-based violence—virtually all of whom are current un…

Tort Concepts in Traffic Crimes

Car crashes killed 32,719 Americans in 2013, and injured over 2.3 million more.1 Traffic is likely the most pervasive form of violence most Americans encounter.2 Accordingly, the law devotes substantial attention to preventing that bloodshed, allocating losses, and punishing …

Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases

Between 1987 and 2005, federal judges sentenced defendants pursuant to binding Sentencing Guidelines that severely curtailed their discretion. In United States v. Booker, the Supreme Court held the mandatory Guidelines sentencing scheme unconstitutional and rendered the Gui…

Only Once I Thought About Suicide

I. Every prison and jail in Virginia has a series of cells used for solitary confinement. Fairfax County Jail had three units for solitary confinement. None had windows. The R-Cells had ceilings so high that a tall man could not reach them by jumping. The other had a door so thick and hea…

Worse than Death

For decades, lawyers and activists have questioned the constitutionality of our criminal justice system’s most severe punishments. Is lethal injection okay?1 What about a firing squad?2 How about life sentences for pirates3 or drug possessors4 or people who pass rubber checks?5 But we he…

Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails

The United States is exceptional not only because it incarcerates so many people, but also because of the inhumane and degrading conditions that prevail in so many of its jails and prisons.1 This country stands alone among Western nations in its widespread and routine use of extreme and pro…

The Liman Report and Alternatives to Prolonged Solitary Confinement

Introduction Our nation’s prisons and jails are often shrouded in secrecy. Media access to prisoners, particularly those in solitary, is limited or non-existent, and many states do not provide adequate data on how their penal systems actually operate.1 As Justice Kennedy recently put it…

Time-In-Cell : Isolation and Incarceration

What is solitary confinement, and what has been constitutional law’s relationship to the practices of holding prisoners in isolation? One answer comes from Wilkinson v. Austin,1 a 2005 U.S. Supreme Court case discussing Ohio’s super-maximum security (“supermax”) prison, which opene…

Time-In-Cell : A Practitioner’s Perspective

Earlier this year, The New York Times reported that President Obama ordered the Department of Justice to review the practice of federal prison administrative segregation, commonly referred to as “solitary confinement.”1 The Association of State Correctional Administrators (ASCA), the mem…

Roundup: Recent Developments in Criminal Justice and Mental Health Law

Over the past few weeks, several major developments have occurred at the intersection of criminal justice and mental health law. This Roundup briefly summarizes these matters and discusses how each reflects current trends in the criminal justice system’s approach to individuals with mental …

Hall v. Florida and Ending the Death Penalty for Severely Mentally Ill Defendants

This Term in Hall v. Florida the Supreme Court held a portion of Florida’s death penalty statute unconstitutional under the Eighth and Fourteenth Amendments.1 Specifically, the Court invalidated Florida’s rigid system for determining whether a capital defendant is intellectually disabled…

A Conversation with Justice Sotomayor

On February 3, 2014, Justice Sonia Sotomayor delivered the James A. Thomas Lecture at Yale Law School. This transcript is adapted (with slight editing) from that lecture, which took the form of a conversation between Justice Sotomayor and Linda Greenhouse. The lecture touched on topics including Jus…

Justice Sotomayor and Criminal Justice in the Real World

As part of the symposium to reflect on Justice Sotomayor’s first five years on the Supreme Court, this Essay explores Justice Sotomayor’s contributions to the Court’s criminal law jurisprudence. Professor Rachel Barkow argues that Justice Sotomayor’s prior experience working on criminal law cases as…

No Way Around Consent: A Reply to Rubenfeld on “Rape-by-Deception”

Recently, Jed Rubenfeld has argued for a new rape law principle that aims to unravel an intriguing riddle that he has posed about obtaining sex by means of deception. In this Essay, Tom Dougherty argues that Rubenfeld’s self-possession principle itself gives a role to consent that deception can effe…

Sex Without Consent

Modern rape law lacks a governing principle. In The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy , Jed Rubenfeld contends that the most obvious candidate—sexual autonomy—is inadequate. I agree, though for vastly different reasons. Rubenfeld advances a conception of rape as a violation …

Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking About the Riddle of Rape-by-Fraud

In this Essay, Professor Patricia J. Falk argues that Professor Jed Rubenfeld’s solution to the “riddle of rape-by-deception” goes too far in eviscerating the body of rape law that courts and legislatures have developed over the past decades. Falk suggests that eliminating nonconsent and foregroundi…

Delineating the Heinous: Rape, Sex, and Self-Possession

In this Essay, Professor Ramachandran examines Professor Rubenfeld’s concept of self-possession, which Rubenfeld presents as a helpful way to define the harm of rape. She argues that if the concept represents exclusive physical control over one’s body, it is an elusive and undesirable ideal, and as …

Rape-by-Deception—A Response

In this Essay, Professor Jed Rubenfeld responds to commentary on The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy , published in Volume 122 of the Yale Law Journal. Engaging with four different interlocutors, he suggests that sex-by-deception remains a serious puzzle in rape law, and t…

The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

122 Yale L.J. 1372 (2013). “Rape-by-deception” is almost universally rejected in American criminal law. But if rape is sex without the victim’s consent—as many courts, state statutes, and scholars say it is—then sex-by-deception ought to be rape, because as courts have held for a hundred years in vir…

The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct

This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick , spent fourteen years on death row because prosecutors…

The “Other” Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement

121 Yale L.J. 194 (2011). Section 2 of the Fourteenth Amendment allows states to disenfranchise citizens on account of “rebellion, or other crime” without reducing the size of the state’s delegation in the House of Representatives. In its 1974 decision in Richardson v. Ramirez, the Supreme Court held th…

Rethinking Criminal Law and Family Status

119 Yale L.J. 1864 (2010). 

In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties , we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their essays, Professors Ala…

Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions

119 Yale L.J. 1703 (2010). 

When Family Matters

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties , Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial stat…

Gangs in the Military

118 Yale L.J. 696 (2009).

Gang activity in the U.S. military is increasing. Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to p…

The Sentence Imposed Versus the Statutory Maximum: Repairing the Armed Career Criminal Act

118 Yale L.J. 369 (2008).

Undermining Excessive Privacy for Police: Citizen Tape Recording To Check Police Officers' Power

117 Yale L.J. 1549 (2008).

Federal Sentencing in 2007: The Center Holds—The Supreme Court Doesn't

117 Yale L.J. 1374 (2008).

This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio o…

The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion

117 Yale L.J. 1420 (2008).

Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional…

Justifications, Power, and Authority

117 Yale L.J. 1070 (2008).

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…

The Case Against Automatic Reversal of Structural Errors

117 Yale L.J. 1180 (2008).

This Note describes the case law governing three structural errors and shows that the rule of automatic reversal has led appellate courts to narrow the scope of the rights at issue. To avoid this effect, the Note proposes a new framework for determining whether a given ty…

Seeking More Scienter: The Effect of False Claims Act Interpretations

117 Yale L.J. 981 (2008).

On Target? The Israeli Supreme Court and the Expansion of Targeted Killings

116 Yale L.J. 1873 (2007).

Police Pretext as a Democracy Problem

Democracy, at the very least, requires that the dangerous branches of government—like the executive and law enforcement—be accountable to the people or their representatives. Ignoring claims of police pretext, as our Fourth Amendment jurisprudence currently does, creates a barrier to that accoun…

On Rights and Responsibilities: A Response to The Problem with Pretext

Eric Citron’s piece, Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, gets some things quite wrong, but it gets one important thing right—that our Fourth Amendment law is all about what suspects do and very little about what police do. Citron starts from the…

How Whren Protects Pretext

Funny, isn’t it, that “pretext” is a dirty word, a liability-conferring word, in an employment discrimination case, or a fraud case, but that in Fourth Amendment jurisprudence the word has been given a free pass? That, to use Eric Citron’s phrase, the word even seems to open up a “liberate…

The Power of the Corporate Charging Decision over Corporate Conduct

Throwing away the key.

The problem today is not only the draconian sentences that white-collar offenders are receiving, but the fact that because of the elimination of parole they will actually have to serve them. For example, if Michael Milken had been sentenced under today's sentencing regime, and if he had been made to…

White-Collar Defendants and White-Collar Crimes

At the margins, the current Federal Sentencing Guidelines for fraud and other white-collar offenses are too severe. Even when a corporate leader has engaged in massive fraud affecting thousands of people, such as what occurred at Enron, sentences of twenty or more years hardly seem necessary to sati…

Sentencing Organizations After Booker

In United States v. Booker , the Supreme Court held that courts violate individuals' right to a jury trial when they sentence individuals using judge-found facts in combination with mandatory sentencing guidelines. The Supreme Court, however, has never decided exactly when organizations are entitled …

Because Breaking Up Is Hard To Do

Just about everyone has been in a romantic relationship that, in hindsight, should have ended sooner than it did. Why do people stay? Hope, or commitment, or because they share a lease or she owns the car. Life and love are complicated, and, as Neil Sedaka sang, “Breaking up is hard to do.” That…

Criminal Law Comes Home

116 Yale L.J. 2 (2006) Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misd…

The CSI Effect: Fact or Fiction

Is the CSI Effect Good Science?

A csi writer defends his show.

As a former crime scene investigator, I was once called to testify on the stand in a criminal trial. Before giving my testimony, I had to explain to the jury the responsibilites and qualifications of forensic scientists in the criminal justice system. Now, five years later, prosecutors are complaini…

Sentencing Review: Judgment, Justice, and the Judiciary

Since United States v. Booker, the main task of sentencing academics and appellate judges has been to solve the riddles of its mandated “reasonableness” review. This is a crucial task because the answers reached will largely determine whether Booker’s promise of fresh discretion in federal sen…

United States v. Pho: Reasons and Reasonableness in Post-Booker Appellate Review

115 Yale L.J. 2183 (2006) This Comment argues that a proper understanding of Booker 's reasonableness review validates the appellate court's rejection of these reduced-ratio sentences in Pho , and should do so despite the fact that the sentences issued by Judge Torres were eminently "reasonable" in any…

Can Attorneys and Clients Conspire?

114 Yale L.J. 1819 (2005) A conspiracy is traditionally defined as "[a]n agreement between two or more persons to commit an unlawful act." The condition that two or more persons be involved is known as the "plurality" requirement. In Farese v. Scherer, the Eleventh Circuit held that an attorney acti…

The Duty To Defend

114 Yale L.J. 1489 (2005) Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely's contributions to criminal defense.

The Inadequacy of Fiscal Constraints as a Substitute for Proportionality Review

114 Yale L.J. 1177 (2005) The Constitution does not prohibit "everything that is intensely undesirable." In particular, Justice Scalia argues, the Eighth Amendment does not prohibit disproportionately long prison sentences. Yet Scalia seems to offer some consolation to those who worry about the "in…

American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts

114 Yale L.J. 1185 (2005) On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole…

Integrating Remorse and Apology into Criminal Procedure

114 Yale L.J. 85 (2004) Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substan…

Dual Sovereignty and the Sixth Amendment Right to Counsel

113 Yale L.J. 1991 (2004) United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002). In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charg…

What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo

113 Yale L.J. 1955 (2004) Last summer, when a panel of the U.S. Court of Appeals for the First Circuit issued its initial ruling in United States v. Thurston, it plunged into a war between federal judges and Congress, as well as between district and appellate courts, over how much flexibility trial j…

What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause

112 Yale L.J. 1943 (2003) When, if ever, may a State prosecute a federal officer for violating state criminal law while discharging his federal duties? Over the past decade, developments in the doctrines associated with "federalism" have redefined the constitutional status of federal attempts to regu…

Digital Architecture as Crime Control

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The Concept of Criminal Law

• Original Paper
• Published: 22 February 2020
• Volume 14 , pages 447–464, ( 2020 )

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• Sandra G. Mayson   ORCID: orcid.org/0000-0001-5651-7912 1  

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What distinguishes “criminal law” from all other law? This question should be central to both criminal law theory and criminal justice reform. Clarity about the distinctive feature(s) of criminal law is especially important in the current moment, as the nation awakens to the damage that the carceral state has wrought and reformers debate the value and the future of criminal law institutions. Foundational though it is, however, the question has received limited attention. There is no clear consensus among contemporary scholars or reformers about what makes the criminal law unique. This Essay argues that Antony Duff’s The Realm of Criminal Law offers an answer—and that the answer is correct. Duff rightly diagnoses criminal law as unique by virtue of the fact that it censures particular acts in the polity’s name. It is a mechanism of collective condemnation. The Essay advocates recognition of this concept of criminal law and draws out implications for both criminal law theory and criminal law reform.

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Approaching or Re-thinking the Realm of Criminal Law?

Criminal Law

Duffing up the criminal law.

E.g. Ta Nehisi-Coates, The Case for Reparations , The Atlantic (June 2014); P.R. Lockhart, The 2020 Democratic Primary Debate over Reparations, Explained , Vox.com (June 19, 2019); Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind , The N.Y. Times Magazine (Apr. 17, 2019); Michael Zuckerman, Alec Karakatsanis’08 Puts ‘Human Caging’ and ‘Wealth-Based Detention’ in America on Trial , Harvard Law Today (Aug. 23, 2017).

E.g. Harvard Law Review, Vol. 132 Issue 6 (2019) (dedicated to prison abolition).

See generally Douglas Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2008).

Penal abolitionism is a broad movement that encompasses diverse groups and strains of thought. See generally Michael J. Coyle and Judah Schept, Penal Abolition Praxis, 26 Critical Criminology 319 (2018). Due to space constraints, I use the terms “abolitionist” and “abolitionism” quite reductively throughout this Essay.

See, e.g. , Paul Butler, The System Is Working the Way It Is Supposed to: The Limits of Criminal Justice Reform , 104 Geo. L. J. 1419 (2016); Benjamin Levin, The Consensus Myth in Criminal Justice Reform , 117 Mich. L. Rev. 259, 262 (2018); Alec Karakatsanis, The Punishment Bureaucracy: How to Think About “Criminal Justice Reform” , 128 Yale L.J. Forum 848, 852 (2019).

See, e.g. , Angela Y. Davis, Are Prisons Obsolete? (2003).

See, e.g. , Meghan G. McDowell and Luis A. Fernandez, ‘Disband, Disempower, and Disarm’: Amplifying the Theory and Practice of Police Abolition , 26 Critical Criminology 373 (2018).

See, e.g., Abolitionist Principles and Campaign Strategies for Prosecutor Organizing, Community Justice Exchange, https://www.communityjusticeexchange.org/abolitionist-principles .

See, e.g. , Allegra M. McLeod, Envisioning Abolition Democracy: Developments in the Law , 132 Harv. L. Rev. 1613 (2019).

R. A. Duff, The Realm of Criminal Law (2018) [ hereinafter “Duff”].

Duff might deny that he answers the question at all. See infra Part 2.2.

Perhaps this Essay should be titled “The Nature of Criminal Law” and dispense with the intermediary notion of a concept. See Michael S. Moore, A Natural Law Theory of Interpretation , 58 S. Cal. L. Rev. 277 (1985) (describing and defending a realist theory of meaning); Michael S. Moore, The Various Relations between Law and Morality in Contemporary Legal Philosophy , 25 Ratio Juris 435, 438–440 (2012) (differentiating between effort to draw “analytically” versus “metaphysically” necessary connections between law and morality). Given space constraints and my own ambivalence, I leave the question open.

Duff, supra note 10, at 11.

Id. at 50–51.

Cf. Vincent Chiao, What is the Criminal Law For? , 35 L. & Phil. 137, 159 (2016) (expressing skepticism about the importance of “received legal categories”).

See supra note 12.

See, e.g. , Jeremy Waldron, The Rule of Law , in Stanford Encyclopedia of Philosophy , https://plato.stanford.edu/entries/rule-of-law (last visited Sept. 24, 2019).

Michael S. Moore, Placing Blame: A Theory of the Criminal Law 19–23 (1997).

See Duff, supra note 10, at 12. Moore further differentiates between “natural” and “functional” kinds. Moore, supra , at 19–23.

See Duff, supra note 10, at 12 (noting that the identification of such features will inevitably be “selective, and normatively informed”).

E.g., Duff, supra note 10, at 6 ( “Chapter 1 develops a conception of criminal law as a distinctive kind of legal institution…. This account is not meant to provide an analysis of ‘the concept of criminal law’—of, for instance, the necessary and sufficient conditions for anything to count as a system of criminal law….”).

E.g. id. at 6, 13.

Id. at 11 (“The analytical exercise [of determining what criminal law is] is an exercise in conceptual analysis.”); 12–13 (“It will be a conceptual analysis insofar as I will be claiming that anything that we are to count as a system of criminal law must display at least some of the features that I will highlight….”).

Or at least a concept of criminal law in contemporary Western democracies. Duff avoids any suggestion that he—or anyone—could “tell us what counts as criminal law at all times and all places.” Id. at 11.

Id. at 18 (asserting that “a criminal conviction is essentially censorious”).

Id. at 260.

Id. at 19; see also id. at 37 (“[W]hat distinguishes punishments from taxes or ‘penalties’ is their typically reprobative nature.”).

Id. at 20 (emphasis added).

Id. at 232. This is a strange claim. Many other fields of law—not least constitutional law—help to sustain the polity’s civil order. Duff presumably means that the criminal law helps to sustain the polity’s civil order in a unique way.

It echoes Durkheim’s views, among others. See Emile Durkheim, Crime and Punishment , in Durkheim and the Law 69 (Steven Lukes and Andrew Scull eds. 1983) (opining that punishment functions “to maintain inviolate the cohesion of society by sustaining the common consciousness… to give voice to the unanimous aversion that the crime does not fail to evoke….”).

Joshua Dressler, Understanding Criminal Law 2 ( 7th ed . 2015).

Henry M. Hart, Jr., The Aims of the Criminal Law , 23 L. & Contemp. Probs. 401, 404 (1958).

E.g. Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law 18 (2009) (“The criminal law prevents harm by inculcating and reinforcing norms about how to treat others and operates in accordance with norms about deserved and appropriate punishment for the violation of those norms.”); Andrew Ashworth & Lucia Zedner , Preventive Justice 14 (2014) (identifying “censure” as one of “key elements” of punishment, and implicitly as the only unique element); H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 11 , 13, 17 (2d ed. 2008) (identifying a culpability requirement—“the restrictive principle of Distribution”—as the thing that distinguishes punishment from preventive restraint, and thus criminal from non-criminal law); Douglas Husak , Ignorance of Law: A Philosophical Inquiry 26 (2016) ( defining punishment as a state response that “deliberately expresses condemnation or stigma and imposes a deprivation or hardship on the offender”); Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life , 129 Harv. L. Rev. 1485, 1565 (2016) (arguing that criminal law is distinctive as “an instrument of normative reconstruction” that operates through “condemnatory punishment”); Moore, supra note 19, at 33 (arguing that criminal law is a functional kind, the distinctive function of which is to “attain retributive justice”); Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law 3 (2011) (“The right to punish offenders… is grounded in the duties that they incur as a result of their wrongdoing.”); Gideon Yaffe, Attempts: In the Philosophy of Action and the Criminal Law 32 (2010) (“To punish for conduct is to express the judgment that the conduct is an appropriate object of disapproval and condemnation: this is censure.”); Joel Feinberg, The Expressive Function of Punishment , 49 The Monist 397, 400 (1965) (identifying the expression of blame as the distinguishing feature of punishment); Andrew von Hirsch, Censure and Proportionality , in A Reader on Punishment 118 (R.A. Duff & David Garland eds., 1994) (asserting that difference between a tax and a punitive fine is that “the fine conveys disapproval or censure, whereas the tax does not”).

Carol S. Steiker, Foreword: Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide , 85 Geo. L.J. 775, 799 (1997); 800–05 (describing evolution of scholarship on question of what defines “punishment”).

Duff, supra note 10, at 19.

Id. at 21 (“I would be very happy if the claim that the criminal law is essentially concerned with wrongdoing was uncontroversial.”).

E.g. id . at 6–13, 28 ; James Edwards, Theories of Criminal Law , https://plato.stanford.edu/entries/criminal-law (describing features of criminal law that make it “distinctive” without discussing which are necessary or sufficient to constitute criminal law); Antony Duff, Theories of Criminal Law , 2013, https://plato.stanford.edu/archives/sum2018/entries/criminal-law (“It would be unproductive to ask whether all these are strictly necessary features of criminal law….”).

See, e.g. , Chiao, supra note 16, at 159 (“[T]he public law conception adopts an unapologetically revisionist attitude toward received legal categories generally, and the civil-criminal (or criminal-regulatory) distinction in particular.”); see also id. at 158–159 (conceding that “the public law conception represents criminal justice institutions as functionally continuous with many other forms of coercive state power”); Vincent Chiao, Two Conceptions of Criminal Law, in The New Philosophy of Criminal Law 25 (Chad Flanders & Zachary Hoskins, eds., 2016) (“[F]rom a public law perspective, what is unique about the criminal law is simply the severity of its sanctions.”). But see Chiao, supra note 16, at 137 (“It is in the nature of the kind of thing it is that punishment—and hence the criminal law—serves to expressively vindicate rights and condemn wrongs.”).

Criminal Law and its Processes: Cases and Materials ( Sanford H. Kadish, Stephen J. Schulhofer, & Rachel E. Barkow, eds., 10th ed . 2017) .

Philosophical Foundations of Criminal Law 5 ( R.A. Duff & Stuart P. Green, eds ., 2011) .

Cf. Dan Markel, Retributive Damages: A Theory of Punitive Damages As Intermediate Sanction , 94 Cornell L. Rev. 239 (2009) (advocating retributive framework to guide and rationalize punitive damages).

See supra Part 2.1.

Accord Chiao, supra note 41, at 25 (“[W]hat makes the use of such [criminal] sanctions so difficult to justify is not its [sic] condemnatory message per se but rather the degree of coercion with which those messages are conveyed.”). Cf. Mitchell N. Berman, Punishment and Justification , 118 Ethics 258 (2008) (exploring what it means to say that punishment stands in need of justification).

Thanks to Victor Tadros for suggesting the example.

See generally, e.g. , Maite Ezcurdia, The Concept-Conception Distinction , 9 Phil. Issues 187 (1998). Cf. Chiao, supra note 41 (describing “two conceptions of criminal law”).

In my subjective opinion.

Again, there is a question as to whether we need a “concept” of criminal law or should just proceed on a direct-reference theory of meaning, as Michael Moore does. See supra note 12.

I assert this in simple terms although it is surely not so simple. “Must” could refer to either a practical or normative requirement. As a practical matter, a system of collective condemnation primarily directed at blameless acts would face resistance. As a normative matter, a system that primarily condemned blameless acts would be incoherent and dishonest. I am assuming that “coherence” and “honesty” are normative criteria for any system of law.

Duff, supra note 10, at 21.

Id . at 117.

Or at least on the “censure” element of punishment, if its constitutive elements of “censure” and “sanction” can be severed. See Yaffe , supra note 36, at 32.

As well as The Realm , see generally R.A. Duff, Punishment, Communication, and Community (2001).

Duff, supra note 10, at 223–225.

Accord, e.g. Dressler , supra note 34, at 2 (“‘The essence of punishment… lies in the criminal conviction itself,’ rather than in the specific hardship imposed as a result of the conviction.”); see also Lindsay Farmer, Making the Modern Criminal Law: A Response , 10 Jurisprudence 110, 113 (2019) (“The argument for seeing the aims of criminal law and punishment as distinct should primarily be understood as a conceptual distinction aimed at opening up space for broader reflection on the aims of the criminal law.”).

Merriam-Webster’s Collegiate Dictionary 563 ( 11th ed . 2005).

E.g. Duff, supra note 10, at 230.

Moore, supra note 19, at 32.

Farmer, supra note 57, at 111.

See, e.g. , Hart, supra note 35.

See, e.g. , Alexander & Ferzan, supra note 36, at 18; Chiao, supra note 16, at 138 (“The criminal law supports the possibility of the rule of law—a collective life under stable public institutions—by providing crucial support to shared attitudes of reciprocity.”).

Duff, supra note 10, at 265; accord Chiao, supra note 16, at 138 (“In condemning wrongs and vindicating rights, the criminal law arguably fulfills a wide variety of functions.”).

Accord Duff, supra note 10, at 202–203 (canvassing other scholars’ arguments about the “primary purpose” of criminal law and offering his own).

See Farmer, supra note 57, at 112.

Duff , supra note 10, at 152 (recognizing this).

Thanks to Alec Walen for pushing this point.

This is Michael Moore’s suggested vocabulary from the symposium.

See, e.g. , Darin Clearwater, ‘If the Cloak Doesn’t Fit, You Must Acquit’: Retributivist Models of Preventive Detention and the Problem of Coextensiveness , 11 Crim. L. & Phil. 49 (2017); Sandra G. Mayson, Collateral Consequences and the Preventive State , 91 Notre Dame L. Rev. 301, 317–333 (2015); Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice , 114 Harv. L. Rev. 1429, 1444 (2001).

See, e.g. , Moore, supra note 19, at 83–187.

See, e.g. , Duff, supra note 10, at 265; Douglas Husak, Lifting the Cloak: Preventive Detention as Punishment , 48 San Diego L. Rev. 1173 (2011).

See generally Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (2011).

In terminology invoked by Antony Duff and Stuart Green, perhaps criminal law theory should be both “simple” and “neat” with respect to the question of what makes criminal law a distinctive kind of law, but both “complex” and “messy” with respect to questions about its purpose(s), justification(s), and procedures. Duff & Green , Introduction , in supra note 43, at 8–10.

Cf. Chiao, supra note 16, at 160 (raising the question of whether we need coercive institutions); McLeod, supra note 9 (urging a shift toward restorative and therapeutic practices as a response to harm).

Chiao, supra note 16, at 145–147, 159–161 (questioning “whether we should continue to prefer a guilt-conditioned scheme of coercive rule-enforcement to less destructive means of promoting pro-social cooperative attitudes”).

Determinism poses a deep challenge to any form of moral judgment. If we are fully determined creatures, choice is an illusion and both praise and blame are groundless. The metaphysical objection finds support in each new field of inquiry to take the baton in the progress of human knowledge, most recently neuroscience and statistics. See, e.g. , Stephen J. Morse, Brain Overclaim Redux, 31 Law & Ineq. 509 (2013). The merits of this view are beyond the scope of this Essay.

Our history of racial oppression and wealth inequality has produced a situation in which many of the communities most affected by crime and criminal law enforcement—poor communities of color—feel little connection to the institutional apparatus of the criminal law. See Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement , 126 Yale L.J. 2054, 2072 (2017) (“Most discussions of African American distrust of the police only skirt the edges of a deeper well of estrangement between poor communities of color and the law—and, in turn, society.”). But see Jocelyn Simonson, The Place of “The People” in Criminal Procedure , 119 Colum. L. Rev. 249 (2019) (exploring means to promote “an inclusive system of criminal adjudication responsive to the multidimensional demands of the popular will,” including historically excluded groups).

That might be because crime is partly a function of disadvantage, because law enforcement tends to target the powerless regardless of crime rates, or both. See, e.g. , Sandra G. Mayson, Bias In, Bias Out , 128 Yale L.J. 2218, 2251–2259 (2019).

In the aggregate, the disparate impact of our current system has functionally produced official condemnation of poor communities of color. See generally Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010).

As noted above, this stance has much in common with Durkheim and, more recently, Joshua Kleinfeld. See Durkheim, supra note 33; Kleinfeld, supra note 36.

Duff , supra note 10, at 144, 203, 332.

Accord Durkheim, supra note 33.

Duff , supra note 10, at 201–211.

Herbert Morris, Persons and Punishment , 52 The Monist 475 (1968); cf. Marcus Kirk Dubber, The Right to Be Punished: Autonomy and Its Demise in Modern Penal Thought , 16 Law & Hist. Rev. 113 (1998).

See, e.g. , Stephen J. Morse,  Culpability and Control , 142 U. Pa. L. Rev. 1587, 1589 (1994) (noting that “the criminal law might treat persons as part of the biophysical flotsam and jetsam of the universe and respond solely on the basis of the type and degree of dangerousness people threaten, without regard to moral responsibility”); Mayson, supra note 70, at 322–323 (exploring the distinction between law that affirms individual agency and predictive restraint that is “indifferent to agency altogether”).

Duff , supra note 13, at 211, 213, 215, 274.

E.g. id . at 39 (“[I]f we are to make normative sense of a system of criminal punishment, we must understand it in more fully relational terms….”).

Chiao, supra note 76.

C.S. Lewis, The Humanitarian Theory of Punishment , Res Judicatae 225 (1954) (originally printed in 20 th Century: An Australian Quarterly Review (1949)).

Id. at 228–229; cf. Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018) (upholding preventive Japanese internment against constitutional challenge).

Hart , supra note 35, at 23.

Cf. Hadar Aviram, Progressive Punitivism: Notes on the Use of Punitive Social Control to Advance Social Justice Ends Buff. L.Rev. (forthcoming), https://ssrn.com/abstract=3404276 (commenting on views of self-identified progressives who advocate for and against punitivism selectively).

See generally Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008) .

See generally Stephanos Bibas, The Machinery of Criminal Justice (2012); Simonson, supra note 78.

See, e.g. , James B. Jacobs, The Eternal Criminal Record (2015); Mayson, supra note 70.

Cf. Robert Weisberg, Barrock Lecture: Reality-Challenged Philosophies of Punishment , 95 Marq. L. Rev. 1203, 1208 (2012) (arguing “that both deontological and utilitarian philosophies of punishment will founder in irrelevance unless they accept some intellectual responsibility for engaging the stubborn facts of a system of imprisonment they often justify or enable”).

Outside the rarefied air of criminal law theory conferences, it is often assumed that (1) criminal law must be our primary method of crime control and (2) crime control is the primary purpose of criminal law. Both assumptions are dubious, to say the least. For an argument that grassroots police-reform movements have helped to raise first-order questions about how the state should provide security, see Jocelyn Simonson, Police Reform Through a Power Lens (work in progress; manuscript on file with author). Assuming that criminal law will continue to play some role in the state’s crime control efforts, there are of course further questions about how criminal law institutions can most effectively promote public safety. See generally Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration (2019) (urging more reliance on expert institutions to develop rational, evidence-based crime control policy).

Duff offers one compelling vision. For another vision of criminal process that maintains an emphasis on collective moral judgment within a framework of accountability and healing, see generally Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair (2019); see also Donald Braman, Punishment and Accountability: Understanding and Reforming Sanctions in America , 53 UCLA L.Rev. 1143 (2006) (investigating a “popular preference for ‘accountability-reinforcing sanctions’" and exploring the role of accountability in punishment).

Duff himself, of course, has given this question considerable attention. In addition to The Realm, see generally Duff, supra note 55; see also Simonson, supra note 78.

This conflict is one manifestation of the metaphysical tension at the heart of criminal law. We believe in individual agency but also recognize that human action is highly determined. Convictions reflect blame for crimes committed; yet disparate conviction rates among disadvantaged groups demonstrate that convictions flow, in significant part, from undeserved circumstances. Cf. Weisberg, supra note 98, at 1240 (“Is it possible to defend an ethos of individual responsibility when it is instantiated in a practice that has led to the mass production of ruined lives?”); Jeffrie G. Murphy, Marxism and Retribution , in Punishment: A Philosophy and Public Affairs Reader 3 (A. John Simmons et al. eds., 1995).

Some theorists have started down this path. See Vincent Chiao, Mass Incarceration and the Theory of Punishment , 11 Crim. L. & Phil. 431, 450 (2017) (arguing for the necessity of “[a] normative theory of criminal justice that takes seriously the aggregate costs and benefits of those institutions, as well as how those costs and benefits are distributed across a population.”); see also Chiao, supra note 16, at 154; Hamish Stewart, The Wrong of Mass Punishment , 12 Crim. L. & Phil. 45, 46 (2018) (arguing that “a policy of relentless prosecution and punishment is unjust in a free society” and characterizing this as “a retributive argument against mass punishment”).

Duff, supra note 13, at 40–50.

Acknowledgements

I would like to express the deepest gratitude to Antony Duff, Doug Husak and Alec Walen for inviting me to participate in this symposium, and for their endless generosity to new scholars. Many thanks as well to the other participants for very helpful comments, to the Rutgers Philosophy Department for hosting us, to Maron Deering and Jocelyn Simonson for their patience and insight, and to Casey Sack and George Thomas for excellent editorial assistance.

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This volume contains papers presented at the Criminal Justice Evidentiary Thresholds in Canada: The Last Ten Years conference, hosted at the Faculty of Law, University of Manitoba. The conference focussed on the evolution of the law of evidence and the sometimes radical transformations it has seen over the last ten years since the seminal decision of R v Grant in 2009, which reoriented the test for exclusion of evidence at trial. The conference explored questions of the conception of knowledge in modern criminal legal proceedings and the changes in the nature of knowing and constructing criminal responsibility over the last ten years as the information age continues to develop the law of evidence. Unparalleled connectivity, state surveillance capabilities, Canada’s commitment to truth and reconciliation with Indigenous communities, and anxieties pertaining to large scale security calamities (like terror events), have altered the landscape in which crime is investigated, and in which evidence is subsequently discovered, and admitted. The conference discussed and unpacked these issues and developed a tremendous body of scholarship which we are proud to present in this volume. i Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law DAVID IRELAND AND RICHARD JOCHELSON 1 Reclaiming Prima Facie Exclusionary Rules in Canada, Ireland, New Zealand, and the United States: The Importance of Compensation, Proportionality, and Non-Repetition KENT ROACH 49 An Empirical and Qualitative Study of Expert Opinion Evidence in Canadian Terrorism Cases: November 2001 to December 2019 MICHAEL NESBITT AND IAN M. WYLIE 111 The Unclear Picture of Social Media Evidence LISA A. SIL VER 155 Cree Law and the Duty to Assist in the Present Day DAVID MILWARD 207 Involuntary Detention and Involuntary Treatment Through the Lens of Sections 7 and 15 of the Canadian Charter of Rights and Freedoms RUBY DHAND AND KERRI JOFFE 249 Forensic Mental Health Assessments: Optimizing Input to the Courts HYGIEA CASIANO AND SABRINA DEMETRIOFF 273 Constructing, Assessing, and Managing the Risk Posed by Intoxicants within Federal Prisons JAMES GACEK AND ROSEMAR Y RICCIARDELLI 295 Mr. Big and the New Common Law Confessions Rule: Five Years in Review ADELINA IFTENE AND VANESSA L. KINNEAR 357 Judicial Constructions of Responsibility in Revenge Porn: Judicial Discourse in Non-Consensual Intimate Image Distribution Cases – A Feminist Analysis ALICIA DUECK-READ 391 Harm in the Digital Age: Critiquing the Construction of Victims, Harm, and Evidence in Proactive Child Luring Investigations LAUREN MENZIE AND TARYN HEPBURN 421 Victim Impact Statements at Canadian Corporate Sentencing ERIN SHELEY

Sandra Bucerius , Marta Urbanik

Manitoba Law Journal

David Ireland , Richard Jochelson

Alberta Law Review

Isabel Grant

The 1987 Supreme Court decision of Vaillancourt Struck down s. 213(d) of the Criminal Code, finding that the constructive murder provision violated ss. 7and 11(d) of the Charter. This paper looks at how the courts have since applied Vaillancourt to other sections of the Criminal Code, particularly the remaining murder provisions. The analysis is based largely on a consequence-circumstance distinction, where legally consequences involve the harm caused by the accused and the circumstances refer to conditions that must be shown to exist before there can be a conviction. However, because murder is a unique crime with a "special stigma" attached to it, courts will not allow an objective standard of mens rea to form the basis of a murder conviction.

Richard Jochelson , Frances E Chapman

CONTENTS 1 The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence ISABEL GRANT 33 The Troubled History of the Defence of Duress and Excluded Offences: Could the Reasoned Use of Mitigation on Sentencing Prevent Duress from (Further) Becoming Archaic, Gendered, and Completely Inaccessible? FRANCES E. CHAPMAN AND GEORGETTE M. LEMIEUX 85 Fundamentally Flawed: The Arbitrariness of the Corporal Punishment Defence MARK CARTER 109 The Constitutionality of Excluding Duress as a Defence to Murder COLTON FEHR 135 The Availability of the Common Law Defence of Duress to Principals Charged with Murder: An Analysis of the Conflicting Appellate Decisions in R v Willis (TAW) and R v Aravena ROBERT H. TANHA 175 Fitness to Stand Trial and Dementia: Considering Changes to Assessment to Meet Demographic Need SHAUNA SAWICH AND HYGIEA CASIANO 205 Year in Review DAVID IRELAND

Manitoba Law Journal Criminal Law Edition

Richard Jochelson , Robson Crim , James Gacek , Lauren Sapic , KATY STACK , MICHELLE BIDDULPH , Sarah Ferencz , Manitoba Law Journal

Our third volume of 2020 is also divided into three sections: Corrections, Judicial Release, and Related Issues; Critical Approaches in Criminal Justice; and Placing Theory into Criminal Law Practice. The first section contains two articles: Sarah Runyon’s “Correctional Afterthought: Offences Against the Administration of Justice and Canada’s Persistent Savage Anxieties” and Alana Hannaford’s “Issues Surrounding Pre-Conviction Abstention Conditions on Persons Suffering from Illicit Substance Addictions.” Runyon’s article interrogates the prevalence of administration of justice charges in the context of Indigenous offenders. She argues that continually charging Indigenous offenders with breaching court orders, so called system generated charges, can create and perpetuate a social hierarchy from which the state justifies continued discrimination and oppression of the Indigenous population. Runyon goes on to revisit the seminal cases of Gladue and Ipeelee in the context of community-based dispositions. 2020 Volume 43(5), Special Issue Criminal Law Edition (Robson Crim) CONTENTS Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law DAVID IRELAND AND RICHARD JOCHELSON Corrections, Judicial Release, and Related Issues 1 Correctional Afterthought: Offences Against the Administration of Justice and Canada’s Persistent Savage Anxieties SARAH RUNYON 39 Issues Surrounding Pre-Conviction Abstention Conditions on Persons Suffering from Illicit Substance Addictions ALANA HANNAFORD Critical Approaches in Criminal Justice 65 Nuancing Feminist Perspectives on the Voluntary Intoxication Defence FLORENCE ASHLEY 95 The Criminalization of Non-Assimilation and Property Rights in the Canadian Prairies LAUREN SAPIC 117 The Supreme Court of Canada’s Justification of Charter Breaches and its Effect on Black and Indigenous Communities ELSA KAKA 145 Moms in Prison: The Impact of Maternal Incarceration on Women and Children KATY STACK Placing Theory into Criminal Law Practice 161 The Privacy Paradox: Marakah, Mills, and the Diminished Protections of Section 8 MICHELLE BIDDULPH 197 Social Suppliers and Real Dealers: Incorporating Social Supply in Drug Trafficking Law in Canada SARAH FERENCZ

Richard Jochelson , Lisa A. Silver , ruby dhand , HYGIEA CASIANO , James Gacek , Adelina Iftene , Robson Crim , Hadar Aviram , Darcy MacPherson , CHRISTOPHER LUTES , BRAYDEN MCDONALD , Kathleen Kerr-Donohue , Rebecca Jaremko Bromwich

Volume 43(4) is divided into three sections. The first section is entitled International Contributions and highlights the work of two leading international scholars. The second thematic section is entitled Current Issues in Criminal Law and delves into issues as diverse as the use of victim impact statements and the Mr. Big investigatory process. The third and final section is a stand-alone Year in Review in which we present a paper summarizing the most recent Supreme Court of Canada and Manitoba Court of Appeal cases. CONTENTS Continuing the Conversation: Exploring Current Themes in Criminal Justice and the Law DAVID IRELAND AND RICHARD JOCHELSON International Contributions 1 Moral Character: Making Sense of the Experiences of Bar Applicants with Criminal Records HADAR AVIRAM 35 Corporate Criminal Liability 2.0: Expansion Beyond Human Responsibility ELI LEDERMAN Current Issues in Criminal Law 85 The Dangers of a Punitive Approach to Victim Participation in Sentencing: Victim Impact Statements after the Victims Bill of Rights Act ELIZABETH JANZEN 107 To What Types of Offences Should the Criminal Code Rules on Organizational Criminal Liability Apply?: A Comment on 9147-0732 Québec Inc c Directeur Des Poursuites Criminelles et Pénales DARCY L. MACPHERSON 145 Criminal Law During (and After) COVID-19 TERRY SKOLNIK 181 If You Do Not Have Anything Nice to Say: Charter Issues with the Offence of Defamatory Libel (Section 301) DYLAN J. WILLIAMS 209 Hart Failure: Assessing the Mr. Big Confessions Framework Five Years Later CHRISTOPHER LUTES Year in Review 245 Robson Crim Year in Review BRAYDEN MCDONALD AND KATHLEEN KERR-DONOHUE

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Analysis of Recent Reforms in Indian Criminal Law

  Syllabus: Governance: Indian Criminal Justice System

  Context: We have already discussed the need and provisions of the bill . Here in this article, we will discuss the pros and cons of the proposed bill.

Major Provisions of the Bills:

Objective of the Bills:  These bills aim to modernize the criminal justice system by updating laws, incorporating digital interfaces, expediting legal processes, and introducing community service as a form of punishment for minor offences .

The positive aspects of the proposed criminal law reforms:

• Modernization of Criminal Justice System : E.g., using e-FIR, Zero FIR, new cyber offences, and modernize evidence collection.
• Update of Outdated Laws
• Stringent Provisions for Women and Children : The Bharatiya Nyaya Sanhita (BNS) has dedicated a separate chapter to these matters and introduced new forms of offence.
• Innovations: Innovations such as trial in absentia and the introduction of community service as a penalty for minor offences are noteworthy.
• Gender Inclusivity : The proposed reforms have reviewed language for gender neutrality and replaced outdated terms such as ‘insanity’ with ‘mental illness .’
• Specific Definitions and Offenses : The bills define and address offences like terrorism, organized crime, mob lynching, and negligent acts, adding new dimensions to criminal law.
• Protection for Victims: g., protection and rights of victims, including provisions related to victims’ participation, and rights.
• Expedited Justice : E.g., Requirement for judgments to be given within 30 days after the trial concludes and limitations on adjournments.

Issues with the Proposed Bills:

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India’s Criminal Justice System

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Comprehensive reforms are needed in the criminal justice system to ensure effective enforcement of the law, uphold accountability, have a well-trained workforce and speedy disposal of the cases. Comment. (250 words)

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Criminal Justice System And Its Recent Developments

Criminal justice system in india.

The concept of Criminal Justice System came into India with the arrival of Manu. He had described many offences and believed inside the “divine concept” which means that King is the Supreme and those are sure to observe his policies and rules. With the exchange within the concept manner of the society people began denying the King’s rule and commenced making their own law as per their convenience. The new rule that is “Might is Right” commenced being accompanied within the absence of the codified law and people started out worrying “eye for eye justice”. It turned into in this hard time most effective that the theories like Divine theory, Social Contract concept and concept of Natural Justice got here into existence. In modern times we’ve got the codified laws. The vital items of these legal guidelines are to shield society from undesirable crook gadgets and create threat of punishments to the possible law breakers. In India the administration of Criminal Justice is split into parts-

1. Substantive Law 2. Procedural Law

Substantive Criminal regulation defines the offences and punishments for the offences even as procedural administered the substantial regulation and provide the process which ends up in Justice in fact.

Read:  Plea Bargaining in the Indian Criminal Justice System.

“Indeed, history is not anything extra than a tableau of Crimes and misfortunes”: VOLTAIRE

COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM

The Government of India, Ministry of Home Affairs by using its request dated 24 November 2000 comprised the Committee on Reforms of Criminal Justice System to think about measures for patching up the crook justice framework. One of the targets of the committees become “to endorse available sources of creating cooperative energy many of the judiciary, the arraignment and the police to reestablish the understanding of the ordinary guy inside the criminal justice framework by using securing the innocent and the sufferer and by using rebuffing unsparingly the accountable and the criminal”. While alluding to the state of affairs of sufferers in the criminal justice framework in India nowadays, the board watched “that sufferers do not get at present the lawful rights and assurance they’ve the right to count on their only job in crook approaches with the intention to in general outcome in disinterestedness in the processes and subsequent contortions within the crook justice enterprise”. With this fashionable perception the advisory group checked at the state of affairs of sufferers underneath the crook justice framework, which includes the present task that the sufferer is allotted underneath the current crook regulation; arrangements for reimbursement of victims of crime, and many others. The record has additionally featured how the Supreme Court and the High Courts in India have superior the act of granting compensatory healing procedures concerning cash as well as a ways as other suitable reliefs and cures.

The document expressed “healing justice to the Bhagalpur blinded victims, rehabilitative justice to the shared viciousness victims and compensatory justice to the Union Carbide sufferers are times of the liberal bundle of reliefs and therapies synthetic by using the height court docket. The alternatives in Nilabati Behera v. State of Orissa and in Chairman, Railway Board v. Chandrima Das are illustrative of this new sample of utilising established ward to do justice to the sufferers of crime. Significant financial compensations were granted in opposition to the instrumentalities of the nation for the lack of ability to cozy the privileges of the sufferers”. The committees moreover analysed the privileges of the sufferers of crime in diverse crook justice frameworks round the world.

Taking under consideration the UK Report of 2001, the Committee made the subsequent hints:

1. The sufferer, and if he/she is useless, his prison consultant shall have the right to be impleaded as a celebration in every criminal intending wherein the rate is punishable with 7 years imprisonment or extra.

2. In pick cases notified with the aid of the ideal government, with the permission of the court an accredited voluntary organisation shall also have the right to implead in the courtroom complaints.

3. The victim has a right to be represented by means of an propose of his/her choice; supplied that an advise will be provided on the cost of the State if the sufferer isn’t always in a role to come up with the money for a attorney.

4. The sufferer shall have the right to take part in criminal trial.

5. The victim shall have a proper to select an enchantment in opposition to any unfavorable order exceeded by using the court docket acquitting the accused, convicting for a lesser offence, implementing inadequate

sentence, or granting inadequate repayment. Such attraction shall deceive the courtroom to which an appeal primarily lies towards the order of conviction of such courtroom.

6. Legal offerings to victims in select crimes may be prolonged to encompass psychiatric and clinical help, intervening time reimbursement and safety in opposition to secondary victimization.

7. Victim repayment is a country obligation in all severe crimes, whether the off ender is apprehended or now not, convicted or acquitted. This is to be prepared in a separate regulation with the aid of the Parliament. The draft invoice on the difficulty submitted to the Government in 1996 by the Indian Society of Victimology gives a tentative framework for consideration.

8. The sufferer repayment law will offer for the introduction of a victim compensation fund to be administered in all likelihood by way of the Legal Services Authority. The regulation have to provide for the scale of compensation in different offences for the steering of the Court. It may additionally specify offences wherein reimbursement might not be granted and situations underneath which it may be presented or withdrawn.

Read:  Legal Aid In India And Judicial Contribution

RECENT DEVELOPMENTS

Some of the latest tendencies which have taken region during the previous couple of years in our judicial transport machine to seek redress and accord justice to the terrible are worth citing. The importance of these developments to the transport machine of justice can’t be omitted. They have revolutionized our judicial law and could cross far in presenting remedy to the huge masses and the common guy.

In view of the importance of the difficulty count, it’s miles proposed to provide an explanation for in quick some of the critical areas of the crook justice device that have attracted the eye of the courts in recent years. These are following:

1. Public Interest Litigation; 2. Prison Justice; 3. Compensation To The Victims; 4. Bail Justice Jurisprudence; 5. Legal Aid And Legal Services.

PUBLIC INTEREST LITIGATION

Public Interest has emerged as part of the criminal resource motion by and large aimed toward defensive the rights of weaker sections of the community, such as the ladies, kids, bodily and mentally handicapped and the like. In India, for the duration of the last few years a new wave of Public Interest Litigation has struck the courts. It is being argued that Public Interest Litigation has opened a floodgate of litigation and with the aid of such movement, the Indian Judiciary seems to be projecting itself as the upholder of the liberty of humans.

This over act of Judiciary is appeared as nothing but mere interference inside the interest of Executive, that’s making a very good and effective authorities not possible. It is pointed out that the judiciary would possibly collide head on with the other organs of the State- the Executive and the Legislature in which event, being the weakest, it would fall apart.

PRISON JUSTICE

“Justice delayed is Justice denied’. This is greater so in criminal instances in which the freedom of an person is at stake and in jeopardy. The irony of destiny is that in all such instances it is the negative and the marginalised sections of the society, always. The actual plight of the undertrial prisoners become for the primary time highlighted inside the case of Hussainara Khatoon V. State of Bihar , in which it became disclosed that thousands of undertrial prisoners were languishing in the diverse jails in the kingdom of Bihar for durations longer than the most term for which they may were sentenced, if convicted.

The courtroom held that there conviction changed into in clear reduce violation of the Article 21 of the constitution . The courtroom held that fast trial is a constitutional mandate and the state cannot keep away from it.

Over the times, a lot has been emphasized over jail situations. The court docket thus issued some of instructions to the Jail Administration underneath the provisions of Indian Prison Act, 1884 to undertake corrective measures. However, there’s hardly any exchange within the conditions of jails and the mindset of prison administration. It is probably observed that the liberal remissions and award of successive paroles to the prisoners to invest energy with their families might assist to inculcate self-assurance in prisoners and lessen the pressure of a portion of the jail vices.

As Kuldeep Singh and B.L. Hansaria, JJ said:

Except if there is introspection the a part of all worried about the crook justice framework, issues figuring out with prison reforms , improvement within the prisioner’s situation, and higher employer of fairness will keep on staying on paper. It is viable to decrease the backlog of criminal cases if the judiciary and attorneys collectively motive to cease from superfluous and repeated adjournment.

COMPENSATION TO THE VICTIMS

Criminal regulation, which mirrors the social aspirations and requirements of most people, is intended to rebuff just as to alternate the criminals, but it scarcely takes any word of through result of wrongdoing for instance its sufferer.

The terrible victims of crime are absolutely not noted in lost compassion toward the crook. The blameworthy man is held up, nourished, dressed, warmed, lit, and engaged in a version cell to the detriment of the country, from the tax that the unlucky victim will pay to the treasury. Also, the character in query, in place of being sorted, is contributing closer to the consideration of prisoners in the course of his stay inside the prison. Truth be advised, it’s far a shortcoming of our crook regulation that the sufferers of crime do not draw in due appeal.

The code of crook system, 1973, sec.357 and Probation of Offenders Act, 1958, sec.Five; engages the courtroom to provide remuneration to the victims of wrongdoing. Anyway it’s far mentioned with regret that the courts best from time to time hotel to working towards their powers liberally. Maybe observing the detached demeanor of the subordinate courts, the apex courtroom in Hari Krishan, guided the attention of all courts to practice the arrangements under sec.357 of the Cr.P.C. Generously and furnish enough remuneration/reimbursement to the man or woman in query, specifically while accused is discharged on admonition, probation or whilst the events enter right into a compromise.

Read:  Victimization Of Victim Under Criminal Justice System

Almost without a doubt as of overdue, the Supreme Court and High Courts with the aid of invoking Art.21 of the Constitution have attempted to give some compensatory remedy to the bad sufferers of illegal confinement on account of the respectable. Such instances are, anyways, numbered and aren’t going to fathom the disease.

BAIL JUSTICE SYSTEM

Bail is a preferred time period and it means judicial launch from custodial egis. The right to bail-the proper to be released from jail in a criminal case, after furnishing sufficient safety and bond has been identified in every civilized society as a fundamental aspect of human rights. This is based at the principle that the object of criminal intending is to secure the presence of accused charged of a criminal offense at the time of inquiry, trial and research before the court, and to make certain the provision of the accused to serve the sentence, if convicted. It would be unjust and unfair to deprive someone of his freedom and liberty and preserve him in confinement, if his presence in the courtroom, each time required for trial, is assured.

India’s criminal justice machine and its legal guidelines were stimulated and is a reflection of the workings of the colonial times. With converting instances and advancement in thought, we have reached the crossroads where there is an urgent need of introducing amendments and new strategies of imposing and supplying people the justice they deserve. There had been many motives because of which the criminal justice system of India has evolved now not one, however many flaws. These reasons vary from carelessness of government to loopholes in legal guidelines which can be without problems manipulated. There is not any denying the fact that for the proper functioning and increase of any country, it’s miles imperative for its justice machine to be fool evidence.

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Home — Essay Samples — Law, Crime & Punishment — Criminal Law — The Development of Criminal Law throughout the Time

The Development of Criminal Law Throughout The Time

• Categories: Criminal Law Law Enforcement

About this sample

Words: 1046 |

Published: Aug 30, 2022

Words: 1046 | Pages: 2 | 6 min read

Bibliography

• Kelling, George L, and Mark H Moore (n.d). The Evolving Strategy of Policing. Retrieved from www.ncjrs.gov/pdffiles1/nij/114213.pdf.
• Nelson, Jeremy (n.d). The Bill of Rights (Amendments 1 - 10). National Center for Constitutional Studies, National Center for Constitutional Studies, 1 Jan. 2018, nccs.net/blogs/americas-founding-documents/bill-of-rights-amendments-1-10.
• HG Legal Resources (n.d). Administrative Law. Retrieved from https://www.hg.org/adm.html
• HG Legal Resources (n.d). Statutory Law. Retrieved from www.hg.org/statutory-law.html.
• Legal Information Institute (n.d). Constitutional Law. Retrieved from www.law.cornell.edu/wex/constitutional_law.
• Legal Information Institute (n.d). Criminal Law. Retrieved from www.law.cornell.edu/wex/constitutional_law.                 

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Modernizing criminal laws: a step towards legal reform

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The ascending trajectory : unveiling the swift growth of the building products market in india, the country's legal frameworks have been in place for a while, but new laws are crucial for a fair and adaptable justice system..

• Bharatiya Nyaya Sanhita, 2023, is a comprehensive effort to redefine and refocus the penal code.
• Bharatiya Nagarik Suraksha Sanhita, 2023, seeks to humanize our criminal justice system.
• Bharatiya Sakshya Adhiniyam, 2023, recognizes the growing role of technology in legal proceedings. 

O n 21 December 2023, the Parliament passed The Bhartiya Nyaya Sanhita, The Bharatiya Nagarik Suraksha Sanhita and The Bharatiya Sakshya Adhiniyam, 2023. These three criminal reforms have now replaced the Indian Penal Code (45 of 1860), Code of Criminal Procedure, 1973 (2 of 1974), and Indian Evidence Act, 1872 (1 of 1872) respectively. The passage of these laws signals a shift in India’s justice system. 

While the existing legal frameworks have served the country for an extended period, the new criminal law reforms represent a meaningful progression towards justice system improvement aimed at building a legislation that is more responsive, equitable, and better suited to meet society's evolving needs. These law reform initiatives are seen as critical upgrades to the Indian Justice System, acknowledging the historical constraints in the laws initially established during the colonial era for maintaining rule rather than influencing justice.

The Bharatiya Nyaya Sanhita, 2023 , is a comprehensive effort to redefine and refocus the penal code. With several sections being amended, repealed, or added, the law introduces a nuanced approach to offenses, penalizing actions that endanger the sovereignty, unity, and integrity of India. It also addresses contemporary challenges such as terrorism and organized crime, distinguishing between major and petty offenses and prescribing stringent penalties for the former.

The Bharatiya Nagarik Suraksha Sanhita, 2023 , seeks to humanize our criminal justice system. By  timelines for investigations, it aims to make justice more accessible and responsive to the needs of the people. It replaces outdated terminology with a more people-friendly language, reflecting a commitment to a humane approach. In cases involving heinous offences, the proposed legislation emphasizes the necessity of a mandatory visit by the forensic team. This strategic provision aims to bolster the investigative process, ensuring that a specialized team conducts an on-site examination to collect crucial evidence. By mandating such visits, the legislation seeks to enhance the thoroughness and accuracy of criminal investigations, ultimately contributing to a more robust legal framework centered around contemporary standards of justice.

The Bharatiya Sakshya Adhiniyam, 2023,  recognizes the growing role of technology in legal proceedings. In a contemporary legal landscape where technology plays a pivotal role, this law recognizes electronic evidence as any information generated or transmitted by any device or system capable of being stored or retrieved. This broad definition encompasses a wide range of digital data, from emails and text messages to multimedia files, acknowledging the diverse forms of evidence relevant to modern cases, emphasizing factors such as authenticity and integrity. This inclusion is crucial in maintaining the credibility of electronic information presented in court, ensuring that technological advancements do not compromise the reliability of legal proceedings. Special provisions for the admissibility of DNA evidence and the acceptance of expert opinions as evidence further bolster the Act's commitment to a modern and effective legal framework.

A noteworthy feature of the proposed criminal laws is the establishment of an independent director of prosecution in each district. This significant development aims to fortify the prosecution system, ensuring fairness and impartiality at a local level. Similar progressive legal actions taken within a definite time frame could crucially strengthen the overall criminal justice machinery and build public trust in the evolving justice system.

The criminal law modernization symbolizes more than just a legal transformation; it reinforces a commitment to ensuring justice resonates with the society’s changing needs. This legislative stride positions India on the path toward a more equitable, accessible, and evolved legal framework. The process of legal reform has commenced, and these ground-breaking laws indicate a future where justice is not only delivered but is inclusive and reflective of our nation's dynamic ethos.

The article was first published in The Economic Times on 1 January 2024.

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In order to ensure that reformative measures are sufficient, fair, and prepared for the future, criminal laws must adapt and keep pace with the evolving times. The recently approved legislations by the Parliament in India serve as a clear indication of a transformative shift within the justice system, ultimately strengthening public trust and confidence in the judiciary.

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