scholarly journals Ex ante Fairness in Criminal Law and Procedure

2012 ◽  
Vol 15 (2) ◽  
pp. 277-332
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Resource Constraints ◽  
Criminal Liability ◽  
United States Supreme Court ◽  
The United States ◽  
Resource Scarcity ◽  
Adverse Conditions ◽  
General Terms ◽  
Death Sentences ◽  
Ex Ante

In Furman v. Georgia, the United States Supreme Court announced that it would not tolerate a capital sentencing regime that imposed death sentences in a seriously arbitrary fashion. The question I ask in this paper is whether we should in fact object to arbitrariness in punishment. The answer I propose is that under plausibly adverse conditions, we might not object to arbitrary penal outcomes, because under those conditions a fair distribution of punishment would be one that equalizes chances across a class of similarly situated criminals. In particular, fairness may require no more than a rough equalization of ex ante chances under conditions of resource scarcity, an inability to rank claims reliably by comparative desert, and a pressing need for punishment to be imposed. I call this an ex ante theory of fairness. The central virtue of ex ante fairness is that it is capable of reconciling parsimony in punishment with equity in its distribution, even when claims about who deserves what are deeply contested. Adopting an ex ante standard of fairness means that a concern for fair treatment of the guilty need not blind us to the realities of the severe resource constraints faced by American criminal justice, and vice versa. After laying out the argument for ex ante fairness in general terms, I proceed to show how several prominent features of American criminal law and procedure—the Supreme Court’s capital jurisprudence, prosecutorial discretion, judicial sentencing discretion, and “strict” criminal liability—all exhibit an implicit commitment to an equalization of chances rather than of outcomes.

Criminal Liability for Unlawful Actions in Bankruptcy in the USA

10.12737/1822 ◽  
2013 ◽  
Vol 2 (1) ◽  
pp. 113-123
Author(s):  
Сергей Кубанцев ◽  
Sergey Kubantsev
Keyword(s):  
United States ◽  
Criminal Law ◽  
Criminal Liability ◽  
The United States ◽  
Judicial Interpretation ◽  
The Usa

The article describes the application of criminal law in the United States to persons who commit crimes during or immediately before of the bankruptcy, initiated into the United States. The focus is on the judicial interpretation of legislative criteria bankruptcy fraud.

The Presumption of Guilt and the English Law of Theft, 1750–1850

2005 ◽  
Vol 23 (1) ◽  
pp. 133-171 ◽  
Author(s):  
Bruce P. Smith
Keyword(s):  
Criminal Law ◽  
United States Supreme Court ◽  
Legal Culture ◽  
The United States ◽  
Reasonable Doubt ◽  
Presumption Of Innocence ◽  
Golden Thread ◽  
Criminal Charge ◽  
Anglo American ◽  
Over Time

When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution. This golden thread…runs through the web of the English criminal law. Unhappily Parliament regards the principle with indifference—one might almost say with contempt. The statute book contains many offences in which the burden of proving his innocence is cast on the accused.No principle in Anglo-American criminal law is more vaunted than the so-called “presumption of innocence”: the doctrine that the prosecution must bothproduceevidence of guilt andpersuadethe fact-finder “beyond a reasonable doubt.” The claim that “every man is presumed to be innocent until he is proved guilty” has been described as “dear to the hearts of Englishmen” and as an omnipresent feature of English criminal law. In 1895, the United States Supreme Court declared the “presumption of innocence in favor of the accused” to be “the undoubted law, axiomatic and elementary”—a protection that “lies at the foundation of the administration of our criminal law.” Befitting its lofty stature in Anglo-American legal culture, the presumption has become associated, over time, with that most famous of Blackstonean maxims: “[I]t is better that ten guilty persons escape, than that one innocent suffer.”

Forensic Science

2005 ◽  
Vol 33 (3) ◽  
pp. 535-544 ◽  
Author(s):  
Paul C. Giannelli
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Scientific Evidence ◽  
United States Supreme Court ◽  
The United States ◽  
Private Life ◽  
The Third ◽  
Long Run ◽  
Informant Testimony ◽  
Eyewitness Identifications

The United States Supreme Court has long recognized the value of scientific evidence - especially when compared to other types of evidence such as eyewitness identifications, confessions, and informant testimony. For example, in Escobedo v. Illinois, the Court observed: “We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Similarly, in Davis v. Mississippi, the Court commented:Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person's prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third degree.”

Enemy Combatants Versus Enemy Criminal Law: An Introduction to the European Debate Regarding Enemy Criminal Law and Its Relevance to the Anglo-American Discussion on the Legal Status of Unlawful Enemy Combatants

2008 ◽  
Vol 11 (4) ◽  
pp. 529-562 ◽  
Author(s):  
Carlos Góómez-Jara Dííez
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Common Ground ◽  
Civil Liberties ◽  
The United States ◽  
The State ◽  
External Threats ◽  
General Terms ◽  
The Law ◽  
Enemy Combatants

At the beginning of the twenty-first century two legal concepts linking citizen/enemy status with criminal law have provoked heated discussion both in Europe and in the United States. The American concept, i.e., Enemy Combatants, has been basically developed by the U.S. Supreme Court and more recently by the Bush administration. The European term, Feindstrafrecht/Enemy Criminal Law, has been fundamentally coined and explained by leading German academic Professor Güünther Jakobs. Though born and raised by different parents, the two concepts have numerous aspects in common, or at least this will be argued throughout the paper. The most important common ground is that both concepts, with similar terminology, try to address the problem of what to do with individuals who are viewed as sources of extreme dangerousness. Put differently, they both tackle the question of whether citizenship-in a broad sense-concedes certain rights but imposes a fundamental duty: to have a minimum of law-abiding behavior. If the duty is not fulfilled, then the rights are not acknowledged and the individual is treated as an enemy, not as a citizen. The underlying reasoning oozes social contract theory. This is not by chance, as great philosophers (Rousseau, Fichte, Hobbes, Kant) have employed similar arguments that are briefly sketched in the essay. There are also references to the legal theory behind the scenes predicating that in order for legal constructions to exist (rights, the State), they need to be followed by most people. Hence such a duty to comply, in general terms, with the law is imposed upon all persons. If not, law would be just daydreaming. Strong and consistent as all these arguments sound, the basic problem with this type of reasoning is that it is hard for the legal system to follow without entering into self-contradiction. In this light, criticism will be brought by one of the most prominent social theories of the time, i.e., systems theory, arguing that law-abiding behavior is a precondition for legal institutions to exist, yes, but it cannot be secured by law itself. It is a precondition that has to be presupposed by the legal system. Moreover, using this kind of necessity rule, i.e., the State and the Law need to secure the preconditions of their own existence (self-preservation), entails a diabolic logic as it may lead to the destruction of the system itself. To this extent, self-preservation against external threats (terrorist attacks) and internal threats (curtailment of civil liberties) seems equally important. The essay finishes with some proposals for resolving this delicate matter, trying to reflect a keen sense of balance and forward-looking thinking.

scholarly journals CRIMINAL LIABILITY FOR HOMEOWNERS’ ASSOCIATION FRAUD IN THE UNITED STATES OF AMERICA

2017 ◽  
Vol 3 (4) ◽  
pp. 131-135
Author(s):  
Марина Романовская ◽  
Marina Romanovskaya
Keyword(s):  
United States ◽  
Criminal Law ◽  
United States Of America ◽  
Criminal Liability ◽  
The United States ◽  
Legal Regulation ◽  
Business Law ◽  
Apartment House ◽  
Homeowners Associations ◽  
Building Management

Relatively new type of business activity on apartment house management, which carry out the managing organizations, is on the hard way of development in present time. Numerous violations and crimes in this sphere are becoming more intellectual in nature. In some foreign countries the Association of homeowners (condominiums) is an analogue of our homeowners associations and the Institute of management of apartment houses has a long history. The author carried out the analysis of the main types of fraud in the apartment house management in the United States of America. Such acts include embezzlement (theft) of funds, violation of business law, falsification of the elections to the Board of the Association of owners of property, kickbacks in contracting, fictitious contracts. The main attention was focused on the specifics of the criminal-legal regulation of liability for fraudulent acts in the management of condominiums on the example of the criminal law of the State of California and certain judicial decisions. In particular, the influence of Anglo-Saxon legal system has found the expression in the fact that the criteria for recognition of the person guilty of embezzlement (embezzlement) of funds of owners of property determined by case law, not criminal law. The author has studied the positive experience of the counteraction of irregularities in the activities of the apartment house management by establishing the criminal prohibitions of the concealment or distortion of information on the financial status of the managing organization or condominium. Study of the foreign experience of the classification of crime, counteraction of financial violations in the sphere of apartment building management and reparations for victims of financial crimes will be useful for the scientific understanding of the problem of combating crimes in the sphere of apartment house management in our country.

scholarly journals Domestic And American Model Of Sanctions For Criminal Violations In The Economic Field: Critical Approach By A Comparativist

2021 ◽  
pp. 142-158
Author(s):  
D.V. Kamenskyi
Keyword(s):  
Criminal Law ◽  
Large Scale ◽  
Criminal Liability ◽  
The United States ◽  
Criminal Code ◽  
Critical Approach ◽  
Criminal Sanctions ◽  
American Experience ◽  
Criminal Offenses ◽  
Economic Crimes

The article critically reviews the models of criminal sanctions introduced in Ukraine and the United States for economic criminal offenses. It is emphasized that the meaning of the concept of punishment is inextricably linked to the fundamental category of criminal liability, which means the restrictions provided by criminal law for the exercise of the rights and freedoms of a person for committing a criminal offense. It has been noted that most American courts do not practice “linear” philosophy in terms of sentencing, but on the contrary, take the whole set of unique facts and circumstances with legal significance into account in each criminal case. It has been established that this approach partially resembles the content of paragraph 3, part 1 of Art. 65 of the Criminal Code of Ukraine: the court imposes punishment, taking into account severity of the crime, identity of the perpetrator as well as mitigating and aggravating circumstances. It has been also established that in comparison with the American domestic practice of sentencing in general and for economic crimes in particular seems unreasonably humane, such that it is not able to fully implement the purpose of punishment, declared in Art. 50 of the Criminal Code, and therefore, such as objectively unable to restrain the manifestations of illegal behavior in the economic sphere. The large- scale humanization of criminal liability for economic encroachments carried out by the Ukrainian legislator at the end of 2011, combined with the decriminalization of certain acts and the replacement of imprisonment with fines in sanctions of other norms, has intensified such negative trend. Third, the analysis of the content and application of the federal Penal Code demonstrates not only the advantages of this act of the federal criminal law, but also its individual shortcomings. There is a lot of criticism against this document’s provisions in terms of sentencing for economic crimes. The main reason for criticism is the purely arithmetic relationship between the amount of punishment and the amount of material damage caused by such a crime. Based on the results of elaboration of the American experience in terms of normative provision and practice of application of punishments for economic crimes, a position has been expressed on the expediency of introducing a model of limited formalization of punishments in Ukraine.

scholarly journals SEJARAH PERTANGGUNGJAWABAN PIDANA BENEFICIAL OWNER DI INDONESIA

2020 ◽  
Vol 4 (4) ◽  
Author(s):  
Dicky J H
Keyword(s):  
Criminal Law ◽  
International Organizations ◽  
Criminal Liability ◽  
The United States ◽  
Economic Crime ◽  
Second Amendment ◽  
The World ◽  
History Of ◽  
The Uk ◽  
Legal Subjects

The history of the criminal liability of  Beneficial Owner in the World is very  influenced by the UK and the United States where in tax treaties and international organizations such as the FATF, AEOI, OECD which often use the term beneficial owner, become the basis for the development of the beneficial owner concept in the World. The history of corporate regulation as a subject of criminal law in Indonesia consists of two periods, namely the KUHP period (before the existence of laws outside the KUHP) and a period outside the KUHP (the birth of new laws that specifically regulate corporations as legal subjects, such as Law No. 7 Drt. 1955 concerning Investigation, Prosecution, Economic Crime Court, Law No. 41 of 1999 concerning Forestry, Law No. 32 of 2009 concerning Protection and Management of the Environment, Law No. 8 of 2010 concerning Prevention and Eradication of Money Laundering and Law No. 20 of 2001 on the Second Amendment to Law No. 31 of 1999 on Corruption.

scholarly journals A Fight Against the Dissemination of Deepfakes in Other Countries: Criminal and Criminological Aspects

2021 ◽  
Vol 15 (3) ◽  
pp. 372-379
Author(s):  
Roman Dremliuga ◽  
Alexander Korobeev
Keyword(s):  
United States ◽  
European Union ◽  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Policy ◽  
Personal Data ◽  
The United States ◽  
Economic Life ◽  
The European Union ◽  
Criminal Legislation

The authors analyze a relatively new phenomenon of spreading realistic audiovisual fake materials (deepfakes). This socially dangerous phenomenon is not reflected in the Russian criminal legislation as a separate offence. At the same time, some countries have started developing a criminal policy in this sphere. The methodology of the study presupposes a comparative law analysis of current legislations of the USA, China and the European union regarding the liability for the dissemination of realistic audiovisual fakes. The analysis of criminal legislation is aimed at the identification and systematization of key approaches to criminalizing the dissemination of realistic audiovisual fakes in the countries that are the leaders in digitizing their social and economic life. It showed that there are radically different approaches to regulating criminal liability for the actions under consideration. The authors analyzed criminal policy of the United States at the federal and state levels on the criminal law protection against infringements through deepfakes. They found that the first action to be recognized as criminal is the use of realistic audiovisual fakes for electoral intervention. The legislations of some states strictly regulate the procedure of posting such content before elections, the most serious violations leading to criminal liability. Besides, the United States recognizes as criminally punishable the use of deepfakes for creating materials of intimate nature and for identity theft. The People’s Republic of China establishes liability, including criminal liability, for posting any fake realistic-looking audiovisual materials without mentioning that they are fake. Currently there are no special criminal law norms regulating liability for the dissemination of deepfakes in the law of the European Union. This action should be viewed as infringement of the lawful use of personal data. The authors give their assessment of some criminological characteristics of the analyzed publicly dangerous phenomenon in Russia and in the world. In spite of the relative novelty of the deepfake technology, realistic fake videos are quite common. The society supports the necessity of criminalizing this publicly dangerous action.

scholarly journals ECONOMIC CRIMINAL LAW - COMPARATIVE OUTLOOK

2017 ◽  
pp. 025
Author(s):  
Vanja Serjević
Keyword(s):  
United States ◽  
European Union ◽  
Criminal Law ◽  
United States Of America ◽  
Criminal Liability ◽  
The United States ◽  
The European Union ◽  
Judicial Practice ◽  
Illegal Behavior ◽  
Legal Entities

The criminal liability of legal entities has been in the focus of the criminal law reforms over the last century, especially in the modern globalization era. The theoretical debate and the creative judicial practice in cases of serious illegal behavior of corporations have provided the necessary vehicle for change from the traditional conception that legal persons cannot be liable under criminal law (‘societas delinquere non potest’) to the newly embraced doctrine of ‘respondeat superior’ (with some modification). The article presents an overview of the major concepts and theories of the criminal liability of legal entities. After providing a comprative overview of relevant legislation in the prominent criminal law systems of the United States of America, Germany and the European Union, the author provides a general overview of the Serbian legislation on this matter.

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