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Crime: Definition - The Positivistic Approach

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The prevailing approach of the American legal system toward crime is positivistic. As Henry Hart once wrote facetiously: "a crime is anything which is called a crime, and a criminal penalty is simply the penalty provided for doing anything which has been given that name" (p. 404). By refusing to recognize constitutional boundaries on the notion of an offense, this is precisely the position the U.S. Supreme Court has articulated over the course of the last fifty or so years. The Court has held, for example, that a legislature may criminalize conduct without including a mental state element (mens rea) in the definition of the offense (U.S. v. Dotterweich; U.S. v. Balint). It has also found it a matter of legislative discretion whether to treat exonerating conditions like insanity as part of the definition of the offense to which they apply or as so-called affirmative defenses. The former approach would place the burden on the prosecution to prove, for example, that the defendant was not insane at the time he performed the criminal act, whereas the latter would place the burden on the defendant to prove he was. The Court famously articulated its commitment to the positivistic approach to crime in a case involving the defense of extreme emotional disturbance where it upheld a New York provision that shifted the burden to the defendant to prove the defense, instead of requiring the prosecution to prove the absence of the defense beyond a reasonable doubt (Patterson v. New York). Given its premise, the Court's reasoning was flawless: It argued that because a state has the power to eliminate the defense altogether, it must also have the power to shift the burden to the defendant to prove it, since "the greater power implies the lesser power" (p. 211). The same argument has been found applicable to other defenses as well, even one as fundamental as self-defense. Recently, however, the Supreme Court has indicated a renewed willingness to place limits on state burden-shifting. The case concerned a New Jersey hate-crime statute that authorized substantially increased penalties for any defendant whose crime was committed from the motive of racial animus. The Court found the statute unconstitutional on the grounds that it obviated the state's duty to prove mental state by treating racial bias as a sentencing factor instead of as an element of the offense. The implication of such a decision is that legislatures do not have unfettered discretion to decide how and whether to criminalize, even outside the area of fundamental rights. For if it is constitutionally impermissible for a state to shift the burden on a mental state element, it would seem to follow that it does not have unfettered discretion to decide whether to include such mental state elements in its offense definitions in the first instance. The question, then, is whether the Court's recent holding in the area of burden of proof signals a fundamental shift away from the positivist approach to crime, or whether its influence will be confined to the area of burden of proof. Is the Court embarking on a new constitutional jurisprudence of substantive criminal law or will it continue to shy away from any real attempt to place limits on the substantive criminal provisions legislatures can pass?

While the positivistic approach to crime has prevailed, there are some isolated areas in which the Supreme Court has traditionally attempted to place limitations on offense definition. For the most part, these limitations have consisted of a set of formal restrictions on how legislatures may draft offenses, stemming from the due process clauses of the Fifth and Fourteenth Amendments. While these restrictions purport to speak only to how conduct is criminalized, rather than what is criminalized, they often turn out to impose substantive conditions on offense definition as well. Consider, for example, the following four important limitations on the notion of an offense.

First, the doctrine of vagueness requires that criminal statutes define the prohibited conduct with sufficient specificity to place potential defendants on notice of their vulnerability to criminal prosecution. This doctrine has most notably been applied to loitering ordinances, many of which are thought to leave too much discretion to police officers to arrest individuals on grounds of physical appearance or demeanor. In many cases, the objection to such statutes would not be eliminated by more precise drafting. As the Court made clear in a recent case involving a Chicago loitering ordinance, sometimes a statute cuts too deeply into the ordinary activities of everyday life, with too little justification, to be constitutionally acceptable (City of Chicago v. Morales). A second, related doctrine is that of overbreadth, which forbids a legislature from drafting criminal statutes in a way that risks prosecution and conviction for ordinary, noncriminal behavior. The Court will strike down criminal statutes on overbreadth grounds mostly where the prohibition risks infringing freedom of speech and expression (R.A.V. v. City of St. Paul). A third doctrine is also articulated under the heading of "due process," namely the doctrine of legality. Criminal statutes must provide clear notice of a citizen's potential subjection to criminal punishment in order to afford ordinary citizens a fair opportunity to conform their behavior to the law. For example, punishment must not be retroactive, and it must be certain and definite. Finally, the Eighth Amendment ban on "cruel and unusual punishment" has been interpreted as containing a doctrine of proportionality that serves to restrict the punishment selected for a given offense (Solem v. Helm; see Harmelin v. Michigan). While this doctrine retains its force mostly in the death penalty area, it has served in the past to ensure that the sanction authorized for a given offense is roughly on a part with the sanction for the same offense in other jurisdictions, and that it is appropriate given the sanction authorized for other offenses in the same jurisdiction.

Crime: Definition - Nonpositivist Approaches [next] [back] Crime: Definition - Civil And Criminal Divide

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