NCJ Number
128448
Journal
Criminal Law Forum Volume: 1 Issue: 1 Dated: (Autumn 1989) Pages: 41-63
Date Published
1989
Length
23 pages
Annotation
This article proposes general principles that should be considered in the framing of criminal law in a liberal democracy.
Abstract
Aims of the criminal law should be to define and declare the circumstances in which citizens are liable to the formal condemnation of a criminal conviction and thereby liable to State punishment. The law must reflect the government's treatment of its citizens with the respect and dignity that adult members of the community should be able to claim from each other. One principle that should be considered in framing criminal law is the principle of legality, which would prohibit retroactivity, vagueness, and wide latitude for prosecutorial discretion in charging. A law should uphold the presumption of innocence by not placing any evidentiary or persuasive burden on the defendant. The doctrine of fair opportunity should also be implemented in that the law must require the prosecution to prove that the defendant had a fair opportunity not to commit the offense. The principle of constructive liability requires that the law provide for punishment of the harms intended by the offender rather than the harms that actually resulted. The principle of fair labeling requires that an offense not be overly broad, and the principle of proportionality in punishment requires that the severity of the sanction be reflective of the severity of the harm caused and the intent of the offender. A checklist of principles for constructing a criminal law is provided. 40 footnotes