Defending the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions

Criminal Law and Philosophy 2 (1):21-51 (2008)
Recent years have seen mounting challenge to the model of the criminal trial on the grounds it is not cost-effective, not preventive, not necessary, not appropriate, or not effective. These challenges have led to changes in the scope of the criminal law, in criminal procedure, and in the nature and use of criminal trials. These changes include greater use of diversion, of fixed penalties, of summary trials, of hybrid civil–criminal processes, of strict liability, of incentives to plead guilty, and of preventive orders. The paper will assess the implications of these changes for the function of the criminal law, assessing the reasons behind them, and examining whether or not they are to be welcomed. Identifying the larger import of these changes draws attention to the changing relationship between state and citizen as well as changes in the nature of the state itself. These can in turn be attributed to a jostling among the different manifestations of the authoritarian state, the preventive state, and the regulatory state. These changes have profound normative implications for a liberal theory of the criminal law that require its re-articulation and its defence. A modest start may be to insist that where the conduct is criminal and the consequences are punitive the protections of criminal procedure and trial must be upheld
Keywords Criminal law  Criminal procedure  Criminal trial  Prevention
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DOI 10.1007/s11572-007-9033-2
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References found in this work BETA
Michael Power (1999). The Audit Society: Rituals of Verification. British Journal of Educational Studies 47 (1):92-94.
Douglas Husak (2004). The Criminal Law as Last Resort. Oxford Journal of Legal Studies 24 (2):207-235.
Daniel Statman (1997). The Time to Punish and the Problem of Moral Luck. Journal of Applied Philosophy 14 (2):129–136.

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