Penal Statutes Research Articles

Rebel, Traitor, Sailor, Spy: The Social Figure of the Smuggler in Mid-Eighteenth-Century Britain

Smuggling was a common practice in eighteenth-century Britain and British governments tried to prevent it with an increasing arsenal of penal statutes. Beyond the practice of smuggling, however, it was much debated as evidence of deeper problems. Among local populations, it was often regarded as a “socially accepted crime”. In government circles, the wide-spread nature of smuggling led to the belief that it was morally corrupting the people and contributing to the decline of state authority. During times of war, it was linked to the suspicion that smugglers were collaborating with enemies of the kingdom by working as spies. In this line of thinking, smugglers were actively betraying their country. The article focuses on these contradicting views on smuggling during the 1740s. It analyses a number of different discourses on smuggling in order to demonstrate how the social figure of the smuggler changed its appearance in relation to the debates in which it served as an example and argument. It puts particular emphasis on the moments when the social figure of the smugglers turned into a traitor (by betraying his kingdom to the enemy) or rebel (by wilfully corrupting the moral and political order of the kingdom)

Socio-Economic Crimes: Analysis of Causation

Crime problem is a major obstacle for peace, development and overall wellbeing of public at large. Crime is universal reality; crime co-exist with the human existence. For crime two contrasting truth exist at the same time that not only crime is universal but also crime is relative. In previous society enmity, jealousy, need and necessity were prime reasons of crime commission but now in modern society mainly crime is committed due to the greed, avarice and rapaciousness. Impacts of crimes committed due to greed are more serious. Crimes committed due to greed are termed as socio-economic crimes. Socio-economic crimes are completely different from traditional crime and criminality in every reference whether victim or impacts over him, availability of evidences or nature of evidences, criminal or mode of commission of crime by him, therefore, for tackling of socio-economic crime and criminality completely different and effective measures have to be envisaged and used. Special penal statutes are enacted, specialised investigating agencies are established and special courts are constituted and conferred with special jurisdiction but socio-economic crimes are day by day creating more and more serious challenges before the society at large. Law and legal instrumentalities may better function to tackle any crime problem when enactment and enforcement of law are focused on causation of crime and criminality. Causation of socio-economic crime will be analysed in this paper. Keywords: Causation; Corporate crime; Criminal Justice system; Greed; Socio-economic crimes; Strain; Urbanisation

Decriminalization of Attempted Suicide in India

The Indian Penal Code (IPC) is the main document which governs all criminal acts and the punishments they ought to be charged with. The objective of enacting the IPC was to provide a general and exhaustive penal code for crime in India. However, there are several other penal statutes that govern various other offences in addition to the IPC. In animal law, a notable such statute is the Prevention of Cruelty Against Animals Act. In order to be held liable under the IPC, the accused must possess both mens rea (guilty mind) and actus reas (guilty act). The IPC extends to the whole of India. Punishments under the IPC can be extended both to offences committed within India as well as offences committed beyond, but which by law may be tried, within India. Attempted suicide is a serious problem requiring mental health interventions, but it continues to be treated as a criminal offence under the section 309 of Indian Penal Code. The article reviews the international legal perspective across various regions of the world, discusses the unintended consequences of section 309 IPC and highlights the need for decriminalization of attempted suicide in India. The Mental Health Care Bill, 2013, still under consideration in the Rajya Sabha (upper house), has proposed that attempted suicide should not be criminally prosecuted. Decriminalization of suicidal attempt will serve to cut down the undue stigma and avoid punishment in the aftermath of incident, and lead to a more accurate collection of suicide-related statistics. From a policy perspective, it will further emphasize the urgent need to develop a framework to deliver mental health services to all those who attempt suicide.

SHOULD CALIFORNIA'S PUBLIC POLICY ON JUDICIAL NON-JURISDICTION OVER GAMBLING DEBTS BE REVISITED? BREAKING DOWN THE KELLY AND POSTLE DECISIONS

SHOULD CALIFORNIA'S PUBLIC POLICY ON JUDICIAL NON-JURISDICTION OVER GAMBLING DEBTS BE REVISITED? BREAKING DOWN THE <i>KELLY</i> AND <i>POSTLE</i> DECISIONS

A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines

Except for the federal criminal penalties for crack cocaine offenses, no specific non-capital penalty structure has been more widely criticized than USSG § 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. §§ 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography. Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012 made a compelling case for changing both the guideline and, to a lesser degree, the statutes. The current sentencing guideline for non-production offenses is fundamentally broken, as evidenced by the fact that only 28.4 percent of defendants sentenced under section 2G2.2 receive within-range sentences and 69.1 percent of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program). The vast majority of child pornography defendants receive downward variances from their guideline ranges based on sentencing judges’ subjective senses of what appropriate sentences should be. Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist – in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants. Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission. Therefore, I have set forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional authorization. If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

The Crime of Rape and Sexual Violence against Women in Nigeria: A Comparison with Other Common Law Countries

This discourse is a comprehensive look at the offence of “rape” as a legal concept, taking into consideration, the premodial, mythical and legal beliefs and meanings associated therewith. It analysed recent statutory changes and developments in this area of the law, particularly under the English common law in contradistinction from the almost static provisions of some African penal statutes relating to the offence of rape. The propelling aim was to appreciate the difficulties associated with efforts to convict persons accused of committing the offence of rape and the legality of calling in aid corroboration in amelioration of these difficulties. It was observed that, the statutory ingredients of the offence do not accommodate such a practice. It became significant that the myths and traditional beliefs surrounding the claim of an alleged victim of rape imported the burden of a rebuttal on the accused. It was observed that sympathy on the part of the courts for alleged rape victims sway their decisions in favour of such victims. This emotional consideration by the courts may have informed he demand for corroborative evidence to seal all escape routes for the accused even when not statutorily provided for. Absence of corroborative evidence may on the reverse, favour the accused though the prosecutrix may concoct one to secure conviction. It was concluded that rape cases should be determined on the basis of the dry provisions of the relevant penal statutes devoid of extraneous considerations, such as corroboration.

Measuring the Proportion of the Defendant’s Retaliatory Act in Self-Defence under Nigerian Law

The defence of self-defence as provided in the Nigerian penal statutes is in consonance with the constitutional protection guaranteed every Nigerian to use reasonable and necessary force for the defence of person and property, from unlawful violence. The defence, where successfully pleaded, completely exculpates a defendant from criminal liability. The important condition for the application of this defence is that the person assailed must be reasonably apprehensive of death or bodily harm and at the time, he uses any force as is necessary even if that results in the death of the assailant. However, in evaluating thedefence, the courts most often than not, read into the law what is not in the letter of the law and thereby hold the view that the retaliatory force used must be commensurate or proportionate with the attack received. This paper analyses this issue and holds the view that there is no provision in the law requiring that the defendant’s act must be proportionate to the attack received. It is also the view of this paper that once there are reasonable grounds for the defendant’s belief that he was in imminent danger, the amount of force used by him to preserve his life becomes immaterial. The paper recommends that trial courts should apply the letter and spirit of the law as enacted by the legislature in order to avoid miscarriage of justice.

Corporate Scam, Indictment and Reform: Louis Berger’s Values-based Approach to Reform

Corporate improbity and greed invariably impact a multitude of stakeholders both within the rogue corporation and beyond. Codes of conduct when breached violate the principles of morality and cause a lot of dismay to those impacted. A novice student of corporate governance might struggle to articulate the boundaries of morality. In situations where there is a conflict between corporate morals and corporate profits, what should take precedence – values or benefits? Louis Berger is a US based international consulting behemoth that provides infrastructure and economic development services across 80 countries globally. Embroiled in a whistle blower’s litigation and subsequent investigation by the Department of Justice it was caught defrauding the US taxpayers for well over a decade between 1997 and 2007. The company is a good example of how a global corporation enmeshed in indictments of wilful fraud by its former CEO and reckless violation of penal statutes by its senior employees is trying to reinvent itself to become a model corporate citizen. Its success or failure in becoming so will largely depend on the robustness of its corporate governance mechanisms and its willingness to leave behind its historic blunders.

Eloquent (In)action: Enforcement and Prosecutorial Restraint in the Transnational Trade in Human Eggs As Deep Ambivalence about the Law

This article approaches a piece of Canadian criminal legislation by analyzing the law’s extraterritorial effect and putting the law’s practical import within a mobile and global context—and from that perspective concludes that the domestic law is practically and morally impoverished. The law in question is section 7 of the Assisted Human Reproduction Act (AHRA), which criminally prohibits the purchase, offer to purchase, and advertising for purchase of gametes from a donor or from a person acting on behalf of a donor. While large swathes of the AHRA were held to violate the division of powers in a 2010 Supreme Court reference, section 7 remains standing as valid federal legislation, though effectively almost never enforced. Some scholars, notably Francoise Baylis and Jocelyn Downie, urge more rigorous enforcement both within Canada and extraterritorially, drawing on common law principles that stretch the long law of Canadian penal statutes across national borders. Sara Cohen and Susan Drummond argue that not only is the extraterritorial reach of the Canadian executive drastically shorter than Baylis and Downie might wish, a growing and elite transnational reproductive traffic has outpaced and undermined the moral legitimacy of the law domestically. They argue that any well-founded policy aspirations behind section 7 are far more likely to be met with the repeal of section 7 in favour of an administrative regime for the regulation of reproductive technologies. The result would be less hypocritical and more democratic.

Impossibility of Realization of Immaterial Plurality of Crime in Iranian Criminal Law

Immaterial plurality is a case in which the perpetrator commits one action but encounters several criminal titles. This rule has been predicted in the criminal laws of many countries. Methodology: In criminal laws of Iran this rule is just anticipated for Ta'ziri crimes and some conditions are necessary for its realization such as its Ta'zir nature, unity of behaviour, realization of numerous titles, and the possibility punishing the criminal in relation to each one of the titles. Results: Since the subject is vague, the domestic foreign lawyers have different ideas in this regard. In this article it has been tried to investigate this principle in common classification of crimes with each other and to prove that this principle is not realized in each classification of simple and compound, instantaneous and continuous, absolute and bound crimes and also in offences of omission. Conclusion: Moreover, it rejects the possibility of realization of immaterial plurality of crimes through careful and detailed review of Iran Penal Statutes.

Crimes Involving Intangible Property

A well-known cliche came to life in 2012 when “[t]he pope’s butler was convicted… of stealing the pontiff’s private documents and leaking them to a journalist….” This paper was prompted by his lawyer’s unsuccessfully arguing that taking “only photocopies, not original documents” should not be criminal.The paper therefore considers bases for prosecuting the theft of purely intangible interests under U.S. federal and state law.Because the text in question had been fixed, states would have no authority to prosecute for unauthorized copying in the nature of copyright infringement. Moreover, the seminal Dowling case finds that penal jurisdiction under the Copyright Act displaces federal liability for theft of tangible property — at least in the absence of other subject-specific statutes. Yet, successful prosecution would require an examination of the retail value of works not produced for sale.Because the text in question had not been published, unauthorized taking might also qualify as theft of trade secrets. The paper therefore considers the 1996 Economic Espionage as a basis for federal jurisdiction and turns to the recent Aleynikov opinion. Barring simultaneous theft of tangible property, the Second Circuit likewise finds only subject-specific prosecution possible for theft of compute code. Although the code qualified as a trade secret, and the federal EEA facially applied, a key requirement could not be satisfied. Roughly half of the paper considers state penal statutes. Because of preemption, unauthorized duplication of published documents cannot be prosecuted, but theft of the contents of unpublished documents would be possible. Some state statutes name trade secrets as subject property; others name intangibles generally; and others name neither. Were a case such as the one involving the Vatican papers to be tried in a state court, a variety of problems would be encountered under each type of statute. The paper uses three cases to illustrate some of those problems.Looking well beyond the papal papers, the paper ultimately suggests that something akin to a penal version of the Uniform Trade Secret Act might bring more resources to bear on increasingly disruptive criminal activities.

KRITIK IDEOLOGIS TERHADAP DASAR KEFILSAFATAN ASAS LEGALITAS DALAM HUKUM PIDANA

The essence of legality principle is “None is punishable for doing something unless it is forbidden by law established prior to the action”. Consequently, actor of wrongdoing will not be criminally prosecuted unless penal statutes prohibit what he or she has done. The purpose of this article is to criticize the basic philosophy of legality principle. The point of departure of the critique is ontological basis of legality principle; subsequently, it goes to axiological basis of the principle. By ideological critique, it is to open up to view and at the same time criticize the basic substance and value of legality principle. In addition, this article also reexamines the legality principle. It is found that from both ontological and axiological bases, legality principle has shortcoming in that it relies upon statute rather than the substance of the conduct that may harm another. This article recommends that another more comprehensive principle be introduced, in which ‘any crime should be punished if it contradicts criminal law’ or nullum crimen (delictum) nulla poena sine prǽvia iure poenali (No offense, no punishment without criminal law previously exists). Key words: Ideological Critique, ontological and axiological bases, and sine prǽvia iure

Adultery – A Conceptual and Legal Analysis

Legal analysis of regulation of adulterous behavior of married persons under different legal systems demonstrate that the provision of adultery is greatly influenced by the social values of, sexual morality, which existed at the moment of formulating the legal provision. In India, S. 497 of IPC had been drafted before a 150-year colonial period and, since from its inception, it has been whirling into debatable controversies on several accounts, such as its gender bias approach, reflecting cultural conflicts, questioning equality clause, and strong arguments have been raised either for its retention, modification, or complete deletion from penal statutes. This article has attempted to articulate these controversies from legal point of view in contemporary India. This article attempted to analyze adultery from its legal conceptual base, and proceeded to examine its effect, impact, and co-relation with other aspects such as marital ties, property claims, over the progeny, remarriage and divorce. The philosophy, object and justification of legal regulation of adulterous behavior of a person in society has been examined on time scale so as to make appraisal whether its retention, modification, or deletion is indispensable in the present context or otherwise. The article ends with addressing the legal dilemma of whether the legal regulation of adultery is still relevant, and, if it is, to what extent? The conclusion in this respect is self-explanatory.

Forced residence in liberal Italy: a pre-history, 1815–65

This article analyzes the origins of domicilio coatto (forced residence), a system of police-administered deportation implemented by the liberal government in 1863. Initially an expedient for defusing the post-unitary crisis in the south, domicilio coatto evolved soon after into a permanent institution of preventative policing in liberal Italy; it would also serve as an important blueprint for Mussolini's confino di polizia. Focusing on the legal ancestry of domicilio coatto and the juridical mentalities of its framers, this article seeks to explain how and why liberal legal experts devised and endorsed such an illiberal institution. It begins by identifying the origins of forced residence in a wide range of pre-unitary penal and police statutes. Throughout, it argues that domicilio coatto was conceived not simply as a means of repressing political opponents in the Mezzogiorno but more importantly as an aggressive approach to preventing common crime. In so doing, it challenges previous assumptions about the beginnings, aims and appeal of forced residence in the constitutional monarchy.

Recordando a Tomás y Valiente: la noción de delito en la España moderna

This paper studies the relationship between the concepts ›crime‹ and ›sin‹ as used in the criminal law of the modern Spanish Monarchy, analyzing the interpretative postulates of Francisco Tomás y Valiente’s classic work. Based on juridical and theological literature, as well as the types of »leges mere poenales« and »leges poenales mixtae«, the text analyzes the difference between »lata sententia« and »ferenda sententia« penal rules. To conclude, an evolution of the general criteria used to classify the penal statutes of the 19th century is explained. Recommended citation: Cora, Enrique Álvarez, Recordando a Tomás y Valiente: la noción de delito en la España moderna, in: Rechtsgeschichte - Legal History Rg 17 (2010) 92-125, online: http://dx.doi.org/10.12946/rg17/092-125

Malawi: Justice Sector and the Rule of Law. By Fedelis Kanyongolo. Johannesburg: Open Society Initiative for Southern Africa, 2006. Pp. 172. Available free of charge from the publisher.

Malawi: Justice Sector and Rule of Law. By Fedelis Kanyongolo. Johannesburg: Open Society Initiative for Southern Africa, 2006. Pp. 172. Available free of charge from publisher. As Malawi celebrates its thirteenth anniversary since adoption of a democratic constitution, a recent publication presents a comprehensive overview of challenges and progress in promotion of justice and rule of law in Malawi. Kanyongolo, who wrote book in cooperation with African Governance Monitoring and Advocacy Project (AfriMAP) of Open Society Initiative for Southern Africa, presents a compelling argument for law reform in some areas. For example, book recommends that Law Commission conduct a comprehensive review of penal statutes to determine whether criminal offenses are consistent with constitutional and international human rights standards. The book argues that among most important penal laws that require review are those creating offenses of criminal libel and insulting president. In introduction, Kanyongolo states aim of this book as being the principal tool in an advocacy initiative in promotion of justice and rule of law in Malawi (p. 3). The chapters review Malawi's commitment to constitutional and international standards and norms regarding human rights, rule of law, and democratic governance. Kanyongolo makes recommendations for action that generally fall into three categories: legal and policy reforms, institutional restructuring, and changes in administrative and management practices. The intention seems to be to give an exhaustive overview of all that is available and relevant. As a result, reader gets a very good institutional picture, but at expense of an in-depth analysis of similarities, common trends, and discussion of substantive provisions. The book's chapters are relatively short, not comprehensive, and often require significant background knowledge. The book is divided into two parts. The first part is a summary of gaps in legal tools for parliamentary domestication of international human rights treaties signed and ratified by Malawi. This part also discusses role of Law Commission and judiciary, and some of reasons law proposals for law reform submitted by Law Commission have not been implemented. It then argues that courts can play an important role in aligning national legislation to human rights standards that are guaranteed by international law and constitution through their power of judicial review. The second part of this book is a more in-depth analysis of domestication of international law and review of national legislation. …

The enforcement of the penal statutes in the 1490s: some new evidence*

Henry VII's reputation for avarice partly rests on the enforcement of penal statutes. From about 1505, according to contemporaries, the increasingly grasping king exploited statutory penalties to raise revenue. However, the regime's behaviour should be contextualized by examining the whole reign. Two sources connected with the 1495 parliament shed light on the subject: in one, the king reported his intention to implement existing legislation; in the other, he pardoned offences committed before the opening of the parliament. Royal commitment at this stage challenges the ready association between the enforcement of the penal statutes and the king's alleged rapacity later on in the reign.

The enforcement of the penal statutes in the 1490s: some new evidence

The enforcement of the penal statutes in the 1490s: some new evidence

Fair Notice and Fair Adjudication: Two Kinds of Legality

I. THE LEGALITY DOCTRINES AND THEIR RATIONALES 102 A. Abolition of Common Law Doctrines 103 B. Prohibition of Judicial Creation 107 C. Special Rules for the Construction of Penal Statutes 111 D. Ex Post Facto Prohibition 114 E. Bar to Retroactive Application of Judicial Interpretations Altering Penal Rules 119 F. Due Process Vagueness Prohibition 122 1. Fair Notice and Gaining Compliance 125 2. Deterrence 127 3. Reserving the Criminalization Authority to the Legislature ..128 4. Avoiding Discretion Increases the Potential for Abuse and Reduces the Likely Uniformity of Application 128 G. The Rationales 129 1. Providing Fair Notice 130 2. Gaining Compliance 130 3. Reserving the Criminalization Authority to the Legislature ..131 4. Increasing Uniformity in Application 131 5. Reducing the Potential for Abuse of Discretion 132 H. Overlap Among Rationales in Support of Each Doctrine 133 II. TWO FUNCTIONS OF CRIMINAL LAW: EX ANTE ANNOUNCING RULES OF CONDUCT AND EX POST ADJUDICATING VIOLATIONS OF THOSE RULES 135 A. Doctrines Announcing the Rules of Conduct Ex Ante 136 B. Doctrines Adjudicating Violations of the Rules of Conduct Ex Post.....137 C. Summary 139 D. Current Law’s Failure to Distinguish Criminal Law Rules According to Function 140 III. LEGALITY AND THE TWO FUNCTIONS OF CRIMINAL LAW 141 IV. APPLYING LEGALITY DOCTRINES TO SERVE THEIR FUNCTION: RULES LEGALITY VERSUS ADJUDICATION LEGALITY 143 A. Rules Legality: Conduct and Circumstance Elements of Offense

Perverse effects of the nulla poena principle: national practice and the ad hoc tribunals

The prohibition of retroactive punishments, known by the Latin expression nulla poenas sine lege, is a component of the principle of legality. Out of the concerns with retroactive sentencing and to enhance the fundamental rights of the accused, the statutes of the ad hoc tribunals for Rwanda and the Former Yugoslavia require judges to establish prison terms in the light of national practice in the place where the crimes took place. These provisions have proven difficult to apply. It is unclear whether reference should be made to the prison terms set out in penal statutes or to the actual practice of local courts, and at what point in time. Furthermore, because both Yugoslav and Rwandan law have provided for capital punishment, attempts to draw parallels are necessarily distorted. As a result, judges at the Yugoslav Tribunal have found the provisions to be of marginal relevance. Judges at the Rwanda Tribunal have applied the provision in support of harsh sentencing, suggesting that those convicted are being treated favourably compared with those judged by Rwandan courts, where sentencing options include the death penalty. Thus, a legal provision intended to protect the accused from abusive punishment has been twisted into an additional argument in favour of severity.