Talk:Criminal law

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• /Archive 1 - posts from before February 2002 through April 2007.

US-centric?

This article seems incredibly US-biased, almost as though there were no criminal law apparatus for any other country. Of course, every item on this discussion page seems pretty heavily US-focused as well... I realize that the US is the Land of Lawyers, but am I missing a more general page for non-nation-specific criminal law somewhere (i.e. one that isn't full of references to the US Constitution and criminal codes), or should this page (or complex of pages, if the rest of the Law section is similarly written) be renamed US Criminal Law and a more general page or pages produced? At the very least, if this is meant to be a general entry, giving the US stuff an explicit section in it and keeping constitutional specifics confined to that might be a good start. -- Arvedui 15:06, 12 August 2006 (UTC)

I agree. The article is so US-centric that it would be difficult to amend it to take account of the topic in general. I suggest it is renamed to Criminal Law (United States) and a new article started to cover the subject without bias. Reference could then be made to this article in the usual manner - "See main article etc...". I can't understand how articles of this calibre come to be written. Presumably the editors of this article are reasonably intelligent, and yet it's as if they don't realise there's a whole world out there, beyond the USA. Arcturus 21:56, 21 August 2006 (UTC)

this is such an appalling example that I decided to add a missing info template. Re-naming might still be the best solution, though. Harry R 14:15, 12 October 2006 (UTC)

I think {{Globalize/Eng}} would be more appropriate. Caveat lector 19:29, 25 July 2007 (UTC)

The Hammurabi (or Hammurapi) Codex

I removed the code of Babylon. You write: "Criminal law in the United States, Canada, Australia, and many other countries is based on English common law. These, and other legal systems, are also influenced by early written codes, such as the Hammurabi Code."

When did the Hammurabi Code of Mesopotamia influence the western legal systems?

Where did you read that bulls? The first written code that really influenced the British law -and other western legal systems- was created by the Romans and only consisted of Roman "Mores", "Leges Regiae" and XII tables! Jack 12:58, 15 January 2007 (UTC) — (Posted by 82.58.198.245, 11:56 - 12:08, 15 January 2007 UTC)

You don't suppose Roman law was influenced by Hammurabi's Code? bd2412 T 05:03, 1 December 2007 (UTC)

Not directly, the Romans had no direct knowledge of it and neither did the world until AD 1901 when it was found by archaeologists. It might well have influenced other codes that influenced other codes, that were intermediate in time and space and influenced the Romans, such as maybe the Hittites, Greeks and Hebrews codes, but no one has proven this and we can't just make up our own unsourced theories here. Til Eulenspiegel 13:42, 1 December 2007 (UTC)

That, for some reason, reminds me of Ozymandius - but everything that happens (on that scale, at least) influences everything that comes after. bd2412 T 15:45, 1 December 2007 (UTC)

More stuff

I'm expanding the main subjects here on the criminal law page, starting with the part on criminal conduct. New mens rea and actus reus sections. p.s. I applaud the removal of the codex hammurabi reference, as above. :) Wikidea 08:00, 23 May 2007 (UTC)

People will probably notice quite a lot has recently gone up. I've left a few section stubs for the time being, if anyone wants to make a start on summaries there. Wikidea 12:05, 24 May 2007 (UTC)

Cleanup

I've spent a lot of time trying to clean up this article so it fits better the standards of WP. However, I do not pretend to be an expert at all on criminal law. So if I made some mistake in removing or editing things too much, could someone who is more knowledgable in criminal please correct me? I apologize if I have changed the article too drastically. Stanselmdoc 16:33, 13 July 2007 (UTC)

Introduction

The Wikidea reverted introduction:

Criminal law, sometimes called penal law, refers to the body of law which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community. The state, in addition to certain international organisations, have responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes passed by legislatures as well as common law, and why they criminalise some forms of behaviour. The ultimate goal of criminal law is hotly contested. Some believe criminal law is about punishing offenders because they deserve it and the victim deserves retributive justice. Others feel with enough punishment people will also be deterred from committing crimes. Some say criminal law is simply about removing people from society, to protect law abiding citizens by incapacitating the offender. Prisons can be see as a way to reform and rehabilitate people to go back into society. Offenders can be made to recognise their wrongs in relation to victims and make restitution for the harm. There are many more aims, which are often combined, which produces the mix of systems operating today.

The fundamentals of a crime are known as the actus reus and the mens rea of the crime. These two Latin terms mean "guilty act" (doing that which is prohibited) and "guilty mind" (i.e. the intent to commit the crime). The traditional view is that moral culpability requires that one should have recognised or intended that one was acting wrongly. Nevertheless, most jurisdictions have as many strict liability offences, which criminalize behaviour without the need to show moral wrongdoing. These are usually regulatory in nature, where the result of breach could have particularly harmful results, for instance drunk driving, but are sometimes purely paternalistic, as in charges of statutory rape for consensual sex. Offences can range from ones resulting in fatality, such as murder and manslaughter, to non-deadly offences against people, such as actual or grievous bodily harm, to offences concerning people's property, like criminal damage, theft, robbery or burglary. Importantly, one can still be liable for helping another person's criminal act, conspiring to do something prohibited or merely attempting. Defenses exist to some crimes, so that in some jurisdictions a person who is accused can plead they are insane and did not understand what they were doing, that they were not in control of their bodies, they were intoxicated, mistaken about what they were doing, acted in self defence, acted under duress or out of necessity, or were provoked. These are issues to be raised at trial, for which there are detailed rules of evidence and procedure to be followed. Laws vary in detail between jurisdictions, particularly in relation to the sentences handed down.

is redundant and not especially helpful. I prefer the shorter version, which is more in keeping with the spirit of WP:LEAD. THF 18:08, 14 July 2007 (UTC)

I can see what you mean, why you might prefer it a bit shorter, and maybe it's a bit wordy; this is what the WP:LEAD says:

"The lead should be capable of standing alone as a concise overview of the article, establishing context, summarizing the most important points, explaining why the subject is interesting or notable, and briefly describing its notable controversies, if there are any. The emphasis given to material in the lead should roughly reflect its importance to the topic according to reliable, published sources. The lead should not "tease" the reader by hinting at but not explaining important facts that will appear later in the article. It should contain up to four paragraphs, should be carefully sourced as appropriate, and should be written in a clear, accessible style so as to invite a reading of the full article."

I bolded what I thought important. Maybe there can be a compromise on cutting bits that are too wordy, but keeping references to all the main points which necessarily appear throughout the article? The Wikidea 23:36, 14 August 2007 (UTC) :)

The recent changes

I am worried that the changes made recently have not improved the page at all.

1. A substantial amount of well referenced material has been deleted. This is not right, because at the very least it should be saved somewhere else. Just one example is the paragraph on necessity because it was said it was a marginal topic. Please see the main article. In fact it's quite a hot topic!

2. Separate jurisdictions should not appear at the top. On the Wikiproject law, the idea is to create a page which is cross-jurisdictional, so a general discussion should be the starting point.

3. That said, obviously to begin with the material there is about the English speaking world. This is partly inevitable on the English wikipages, but it perhaps states the obvious to put up an unsightly tag. I agree that as much information, well referenced from an expert should be brought in, and I encourage everyone with such knowledge to participate.

4. The introduction must summarise the article, as an overview, as is proscribed by WP:LEAD. That requires more than a small paragraph. I agree that the former introduction may have been too conversational, but let's work with that rather than chopping it, and keep the relevant links to the article's discussion.

5. The section now entitled "Punishment" is inadequate precisely because there are different goals that criminal law may aim to achieve. Punishment for offences is indeed a very strong strand of theory, but that goes along side the others (rehabilitation, incapacitation, restitution, etc) that are described there.

6. Lastly, on the more cosmetic side, the spelling has been unnecessarily Americanised (Americanized!) which runs counter to Wikipedia spelling policy. Also, the headings were consistent before (Criminal law history/goals/offences/defences/jurisdictions) which is a better manner of style.

7. It would be a positive next step to see additional material being put in. In the legal pages that means case references, statute references, discussion of substantive legal material. It would be welcome if this can be incorporated, and in some cases displace what is already there, if it improves the treatment of the issues which are common to every country. Wikidea 23:17, 14 August 2007 (UTC)

• I have had to revert the changes to the page as it was previously; as far as I can see some changes were made to the syntax on top of the more problematic ones I described above; but I don't see how these can be easily separated. Hopefully good editors can work on that, should the problem be felt still; but as I remarked, I would be very grateful for substantive additions to what criminal law is in Europe, in the States, Australia, Canada, etc to be incorporated into the current body. I'm sure everyone will agree that this is the most important thing for people reading the page! Wikidea 23:31, 14 August 2007 (UTC)

The page needed a complete rewrite. That slow process has been interrupted by the recent reverts, but rather than edit-war, I'll simply readd the tags. Please do not remove them without consensus. THF 03:26, 15 August 2007 (UTC)

Thanks very much for these tags. Believe it or not we seem to be agreeing! As I made in my last point I am happy for the syntax to be cleaned up and for more cases, statutes and so on to be added from around the world. Can I put out a request that people help with cases and statutes on this? Wikidea 11:53, 15 August 2007 (UTC)

I disagree strongly with your decision to revert the changes of the past month, and not just because many of the changes were my own. The old article was terribly muddled, virtually impossible to read, and worst of all, inaccurate because it was inapplicable to 90% of the world. It was so bad that it earned a tag at WP:Cleanup that read: Article needs serious improvements. Muddy writing throughout. After a month of revision, and before your intemperate reversion, it was again readable and accurate. Virtually nothing was deleted outright. Instead, much was dropped into footnotes because all of the insignificant asides that you think important are simply asides and not very useful to the main article. As for the topic of necessity, it's a law book topic, not a real-life defense. To the extent that it exists as a separate defense, it applies only to murder, which is just one crime among many, and it does not apply in even many English-speaking jurisdictions. And I have yet to see a citation to a successful use of the defense (the article refers to failed uses of the defense). And that was pretty much the only topic that was deleted. Wikidea, I think that you should undo the reversion. Feel free to reorganize the article if you like but get rid of that awful intro that you've reintroduced and put all of the asides back into footnotes, where they belong. I welcome the comments of others. But I think wikidea's recent changes have undone much progress. --DRTïllberġ^Talk 20:44, 15 August 2007 (UTC)

Necessity is a real-life defense (e.g., Woods v. State (Tex. Crim. App. 1938)) and a marginal topic. I agree the new/old lead is a mess, but so is the whole article. THF 21:03, 15 August 2007 (UTC)

Thanks for the cite. I've corrected my statement above. Necessity is insignificant, but even if it were important, Wikidea's reversion still wouldn't be justified, IMHO. --DRTïllberġ^Talk 22:12, 15 August 2007 (UTC)

Okay, so we agree on the necessity defence - the Re A Conjoined Twins case was a successful use of it too; I had in mind the actus reus and mens rea sections too which I think had been axed. I'll rework the introduction now again, because that's what Drtillberg you've said is the most awful! I accept that. Wikidea 22:39, 15 August 2007 (UTC)

Redone intro, as I said I would - is that alright as it stands? Slimmer and less waffly. I've read through the elements section, made one or two amendments, but as I see it, it reads well while incorporating what you need to know. But please tell me. Just on one other point though, keep in mind that the focus on many English cases is a lot more relevant than one might think at first - not least because Commonwealth countries had the House of Lords till relatively recently as the highest instance of appeal (or the Privy Council to be precise) - Canada till 1933, Australia till 1986, New Zealand still, many countries in the Carribean till a couple of years ago, India till 1947, etc, etc. So more than half the English speaking world will have many of these cases in their own law; also keep in mind that in fact countries don't vary more than they have in common. I just point that out, but of course I agree that we need to integrate more global material. Wikidea 23:21, 15 August 2007 (UTC)

The actus reus & mens rea sections were there and weren't removed. They simply were reorganized to reflect that they were leading components of a much abbreviated list of criminal laws. They weren't at the top of the article because the list of crimes in the American and English systems actually provided very little insight as to what made all of these things, and laws elsewhere, criminal laws. Most crimes have an actus reus, but isn't that just a gilded way of saying you have to do something? Causation of some harm isn't always a requirement, particularly for regulatory offenses. Some crimes have a mens rea requirement, but others don't. Obviously that isn't what make the criminal law the criminal law. If the actus reus and mens rea elements are not met, and there is nonetheless an adjudication of guilt and penalty, perhaps in a non-English-speaking context, does that mean that something other than the criminal law is involved? No. These are nice details, but they don't go very far toward explaining what the criminal law is. The first sentence of the present article is circular and confuses things further: criminal law is the body of law which deals with crimes and their consequences. The previous intro was more accurate and informative:

The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and potentially severe impositions as punishment for failure to comply. Criminal punishment, depending on the offense and jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), or fines. There are some archetypal crimes, like murder, but the acts that are forbidden are not wholly consistent between different criminal codes, and even within a particular code lines may be blurred as civil infractions may give rise also to criminal consequences. Criminal law typically is enforced by the government, unlike the civil law, which may be enforced by private parties.

I can see how that might appear to some to be perfunctory, but I think it covers every one of the essentials. Anything not summarized could be removed from the article without much loss, although my own efforts at cleanup did not go that far.--DRTïllberġ^Talk 00:22, 16 August 2007 (UTC)

• After considering this further, I think that there is no merit to Wikidea's reversion, which was done without discussion, much less consensus. Everyone who has commented in the last month thinks that the version that Wikidea restored is inadequate and needs a complete rewrite. That rewrite was ongoing, and the process should be restored. I am undoing the reversion. --DRTïllberġ^Talk 15:09, 16 August 2007 (UTC)

Please see my comments in the latest edits, I'm working to restore the changes you made, apart from the problems that I pointed out above. Please be patient! For convenience on the structure of the page, if you're interested, have a look at a contents outline of this leading textbook in the UK on Amazon and this one from the US also on Amazon - the reason being, just to show that the page structure is what's always followed in a standard text - actus reus, mens rea, strict liability, offences, defences (with the other discussion here and there too). Wikidea 22:54, 16 August 2007 (UTC)

I don't understand why you insist on reverting the long-term efforts to clean up the article without establishing consensus that editors think that the old version was superior. I have listed this page on WP:Third opinion.--DRTïllberġ^Talk 06:18, 17 August 2007 (UTC)

You had no consensus for your changes either, and a lot of it was WRONG! The changes were cosmetic, and if not, ill informed. I've tried to separate the two, I've also tried to point you to reasons why you were wrong, but don't pretend that you're the only one putting effort in on the article. That isn't helpful. I'm sorry mate, but you need to have a look at some law books. Good idea to list it on the third opinion page. Wikidea 07:17, 17 August 2007 (UTC)

WP:CIVIL, please: remarks like "you need to have a look at some law books" are unacceptable. You reverted more than just Drtillberg's edits. Several other editors fixed several other problems, and you just simply reverted the work of eleven editors. WP:OWN applies. Edit collaboratively, please. If Drtillberg's edits have errors, correct them: your edits have had lots of errors, too. THF 12:57, 17 August 2007 (UTC)

I've created Criminal law/Wikidea version for Wikidea to play with, since he seems to think he can't fix the article under the framework of edits made by eleven other editors. I invite him to edit this version to his heart's content, and, when he is finished, he can present the version to the talk page and ask for consensus to rewrite this version to reflect his preferred version. THF 13:04, 17 August 2007 (UTC)

• Third Opinion Hi everyone. First I have to say I was initially confused by the amount of participants in this conflict, because Drtillberg seems to have an identical signature to Wikidea. Anyway, Wikidea had every right to make the mass changes he did per WP:BOLD (the changes didn't seem "sweeping" enough to qualify for a consensus, IMO). However, I must agree with Drtillberg and THF that the edits are not that much of an improvement to what what already in place and so it may be wise to go back to the drawing board. The method of simply fixng eachother's mistakes bit by bit doesn't seem to be working, as Wikidea probably noticed. My suggestion is that Wikidea (or whoever else wants to) make a proposed rewrite (for some sections, not all, since that might be too much to agree on) and have THF and Drtillberg make improvements to it on the talk page before putting it up. If you all still can't decide on exactly how to fix it, gather interested parties and have a Mediated discussion on it. That's all I can really say third-opinion-wise without making my own additions to the page. Contact me if you need anything else. Bulldog123 18:10, 17 August 2007 (UTC)

Further changes

I can't separate in the other sections what's changes and what isn't - and I request help if this is felt needed. Drtillberg, there were 2 main edit "chunks", one on July 29th, which I have done as best I can see - but the "chunk" before, 22nd-24th, looks like it was moving the structure about, rather than changing wording. (?) I see no problem in changing the text on the "goals" section - and the history section is a bit scant too, so please go ahead and change there as is felt appropriate (or tell me and I'll do it). For defences, this is a part that doesn't seem to need changes and it didn't look like there were any (apart from necessity, which we're over I think). For offences, these are still listed as stubs and need case references and statutes to go in, and the body isn't so crucial until it's expanded. Please have a look at those Amazon pages above again, or any good textbook that you've got to hand. Wikidea 23:13, 16 August 2007 (UTC)

Minor cleanup: 'Death by capital punishment' is gramatically redundant. Capital punishment necessarily involves death, so there's not much point basically saying 'death may be inflicted by death'. LudBob 01:08, 25 September 2007 (UTC)

WP Law assessment

Assessed this as B class. Mostly well-written, well sourced and well illustrated. It doesn't flow especially well, which is probably down to editing, but it wouldn't take a lot to lick this into shape for a GA review. It would be nice if we could get all the core subjects to at least GA class (Law already being FA class). --Legis (talk - contribs) 20:46, 8 January 2008 (UTC)

                       What the Heck did you say!  —Preceding unsigned comment added by Jobeelee (talk • contribs) 23:16, 15 February 2008 (UTC) 

weapons possession 4th degree misd

what is the penalty for first time (i got caught with folding knife no more than over 4inchby half a inch) —Preceding unsigned comment added by 74.66.68.211 (talk) 22:35, 10 August 2008 (UTC)

Criminal sanctions

Doesn't seem to mention compulsory labour. James500 (talk) 13:01, 18 December 2008 (UTC)

Complete Revision

I don't want to start the editing process without first asking a few questions and stating a few opinion. Also, it's New Year's Eve and I'm killing time before going out. However, if I start editing I just know that I'll be here five hours from from now when the ball drops since I'm a little OCD.

 I'm going to be blunt: this article is seriously flawed and should probably be recreated from scratch. I'm not trying to be mean--honestly--and I don't want to offend people who've undoubtedly spent a good deal of their time in sincere efforts to make the article the best they could create. Still, as a practicing criminal lawyer (and adjunct), I'm intellectually horrified. (I'm sorry. Again, I don't mean to insult.)
 For lack of time--I'll definitely be back later--we should start with only three issued that must be addressed in this article. The first is ideological, but will translate into a change in the article structure, which is the second issue. Lastly, I have some suggested readings that are both short in length and are absolutely essential for understanding the subject and therefore contributing to the article.
 It's become rather trendy in the past decade of so to put almost anything in pro or anti-American constructs. While much of this is the fault of the current dumbass in the oval office ("you're either with us or against us"), it doesn't hold here. For the most part, criminal law is universal, as opposed to civil law, which varies widely throughout the world. I would challenge anyone to find a society that does not prohibit rape, murder, theft, etc. These crimes fall into the category termed malum en se, meaning that they are bad in and of themselves. I don't know offhand if this categorization dates back to the Romans or it was created later and the Latin is purely for show--lawyers tend to be a pompous bunch. 
 Regardless of it's history, the malum per se and malum prohibitum--a bad that is prohibited for social order or taste or whatever reason, varying greatly from place to place--distinction is vital to understanding the topic. It needs to be explored in depth and placed at the top of the article where the Hamurrabi section is currently. Personally, I would dump Hamurrabi unless you were planning on greatly expanding the history section. Hamurrabi really isn't that important except for the fact that it was the first legal regime that was "codified" (i.e. memorialized in a systematic form; more simply, organized and written down). It has little influence on modern law as it was property focused as opposed to the people focused legal regime, which was a great advancement of the Jews, given to us by Moses (or God) and codified in the latter books of the Torah. Modern legal regimes are all people focused. (I don't know if there's a term for this category, but anthropologic seems to fit, plus it's in latin).
 Come to think of it, the actus reus and mens rea parts should be the first substantive section, after a possible intro, since it's the most fundamental concept of criminal law. Also, rewrite the strict liability section because it has major problems. First, its not an element of a crime; it's a theory of liability, like negligence and recklessness. Second, the definition that you have for strict liability is actually the definition of "proximate causation". Proximate causation and strict liability to have the commonality that they are both imports to criminal law from the law of torts, but they are not at all interchangeable. Third, reus and rea should be translated as "evil", not guilty. The difference is much more than symantic as the term "guilt" carries with it all these notions of liability, or blame, that are inappropriate for discussion of elements. The malum pro se versus malum prohibitum section should follow the elements section and it creates a perfect place to launch into a discussion of comparative criminal law and criminal law jurisprudence (theory), which should be sections three and four, or four and three is probably better.
I've got to go as I'm now supper later (of course!), but think about how you all would like to rework the punishment section. It should break into two subsections only, not the five or so that you have, most of which are in actuality further subsections of "Rehabilitative" and "Retributive". Also, retributive has no connection to utilitarianism. In fact, most retributive systems, often termed "deontological" (meaning a theory or study of moral obligations) systems are directly at odds with utilitarian ideas or criminal law regimes. This "Punishment" section should be fifth, although it's sometimes places first in a criminal law textbook (such an arrangement is mostly stylistic as it can be used for emphasis without causing substantive change to the underlying subject). 
 Whoever wrote the punishment section doesn't seems to fully understand the topic. I would recommend reading this section in a textbook or a treatise. Also, the Model Penal Code, published by the American Law institute would be helpful. Come to think of it, the best thing to read is probably is a study guide like the "..in a nutshell" or ..."for dummies" series. Law students find these very helpful to review right before the final exam.
 I'll come back later and add more or help edit what others write. One last time, I'm trying to be helpful here and truly desire not to hurt anyone's feeling. This is the first time I've try to edit and it's a lot of fun. As a practicing lawyer, you seldom get the chance to step back and look at the big picture, much more of your time is spent arguing the fine points of the law. In realty, the super majority of your time is spent on the facts. It's much more important to know what really happened as opposed to figuring out whether the occurence constitutes a crime. 
Happy New Year! And don't drink and drive! Or, to be cynical, do drink and drive, since DUI defense is probably the best paying part of the business.