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CRIMINAL LAW: The Issue of Public Wrongs
At earliest English law, because of a lack of legislative law and because of a lack of a place and process to turn to, people were left to blood feuds for resolution of conflict. You hurt me, I killed you. Then your uncle killed me, so my dad killed your dad, etc.
The community got tired of this. The local baron was worried about the drain on his fighting force. And local religious leaders had a hard time putting a feud into theologically permissive behavior.
So, a “local law” began to appear, with an incentive to people to settle cases by compensation. People in conflict were “invited” to come and sit with others of a community to seek resolution of the conflict.
When the parties could not agree and no one could prove “truth”, they were left without a remedy. To have a law is wonderful. To have a process is better. But no remedy means a law or process is of little value.
To determine truth, trial by “ordeal”, “combat”, or “oaths” was instituted. In “combat”, each party got a sword, and fought it out under the theory that God would protect the innocent one. If a person was found “guilty”, he, or his heirs, paid something to the injured party and sometimes something to the local baron.
With the Norman Conquest, the new king, intent upon consolidating power, established “King’s Courts”. Here an injured person (plaintifl) brought action against a wrongdoer (defendant). But all monies (fines) went to the king rather than to the victim; the king had to pay judges, keep an army (the police) fed and clothed, etc. Thus developed Criminal Law, the key components of which are:
The king (state, people) is seen as victim. Crime is considered to be an act which the public desires not to be done, and which the public is willing to punish if it is done. It is a public wrong.
Because the remedy is punishment, some protections of the accused become necessary; we do not want to punish an innocent person. Thus, there can be no crime without a statute, and acts done before there is a statute are not criminal (ex post facto). The statute must set forth every material element of the criminal conduct (no punishment without a “knowledge”). However, we are all presumed to know the law.
The state must prove the defendant did the necessary acts (actus reus) beyond a reasonable doubt. This means that the balance scales must tip to their near maximum. Since punishment is the remedy, we want to be certain that we only punish the guilty, not the innocent.
Defendant must have done the acts with a level of knowledge (mens rea, guilty mind) declared in the statute. Over time, and in order of importance today, this necessary mental state was determined to be: intentional, reckless, or negligent conduct, or strict liability.
After conviction, the question is asked: What punishment should be to carry out the five purposes for punishment: reformation; restraint; retribution; and deterrence (individual or general).
Crime has three major parts: crime against person; crime against property; and crime against the public order.
A crime against person always involves force or threat of force against the body of another (murder, battery, rape, robbery, extortion, kidnapping, etc.).
Crimes against property are distinguished by an absence of force against a person and loss of property is the key (theft, embezzlement, false pretenses, forgery, burglary, arson, etc.).
Crimes against public order include rioting, treason, and most of the “victimless” crimes (prostitution, sale of pornography, drug deals, and, until recent¬ly, abortion). Violence to person or loss of property may or may not be present. What is present, is behavior seen harmful to the integrity of community to such an .....