-
4
-
-
34547932152
-
-
In this paper, at least for the sake of argument, I take it as a given that passive begging is not directly harmful for the purposes of criminalization. I have argued elsewhere that passive begging is not generally criminalizable, because it only causes offense, not harm, to others in very narrow circumstances (i.e., when the passive beggar targets a captive auditor in a train, etc.). I have argued that anti-begging laws should be narrowly tailored to deal with begging in those circumstances. Dennis J. Baker, Reshaping Offence and Harm: The Moral Limits of Criminalization (March 10, 2006) (unpublished manuscript, on file with author).
-
In this paper, at least for the sake of argument, I take it as a given that passive begging is not directly harmful for the purposes of criminalization. I have argued elsewhere that passive begging is not generally criminalizable, because it only causes offense, not harm, to others in very narrow circumstances (i.e., when the passive beggar targets a captive auditor in a train, etc.). I have argued that anti-begging laws should be narrowly tailored to deal with begging in those circumstances. Dennis J. Baker, Reshaping Offence and Harm: The Moral Limits of Criminalization (March 10, 2006) (unpublished manuscript, on file with author).
-
-
-
-
5
-
-
34547931376
-
-
Von Hirsch defines conduct that is only remotely connected to the actual harm as a remote harm. Andrew von Hirsch, Extending the Harm Principle: Remote Harms and Fair Imputation, in Harm and Culpability 259 (Andrew F. Simester & Tony A.H. Smith eds., 1996).
-
Von Hirsch defines conduct that is only remotely connected to the actual harm as "a remote harm." Andrew von Hirsch, Extending the Harm Principle: "Remote" Harms and Fair Imputation, in Harm and Culpability 259 (Andrew F. Simester & Tony A.H. Smith eds., 1996).
-
-
-
-
6
-
-
0002787474
-
Broken Windows: The Police and Neighborhood Safety
-
March, at
-
James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, Atlantic Monthly, March 1982, at 29.
-
(1982)
Atlantic Monthly
, pp. 29
-
-
Wilson, J.Q.1
Kelling, G.L.2
-
7
-
-
34547952540
-
-
This is tolerable if normative reasons can be given to allow utility to prevail. See H.L.A. Hart, Between Utility and Rights, 79 Colum. L. Rev. 828 1979
-
This is tolerable if normative reasons can be given to allow utility to prevail. See H.L.A. Hart, Between Utility and Rights, 79 Colum. L. Rev. 828 (1979).
-
-
-
-
11
-
-
34547947358
-
-
See Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal. L. Rev. 323, 327 (1985) (Where the principal's actions are fully voluntary, the accomplice cannot be said to have caused the principal's actions, and thus cannot be held liable for crime on the basis that he caused those actions.).
-
See Sanford H. Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal. L. Rev. 323, 327 (1985) ("Where the principal's actions are fully voluntary, the accomplice cannot be said to have caused the principal's actions, and thus cannot be held liable for crime on the basis that he caused those actions.").
-
-
-
-
12
-
-
34547957149
-
-
Von Hirsch, supra note 4, at 267.
-
Von Hirsch, supra note 4, at 267.
-
-
-
-
13
-
-
34547952152
-
-
Merely knowing that someone might be induced into criminality because of your lawful activities is not sufficient to normatively involve you in that person's criminality. But it would be for the purposes of accessorial liability, because there is a close and direct relation between an accessory and principal. The accessory has firsthand knowledge of the principal's bad intentions and is able to choose whether to assist or not. See the discussion infra
-
Merely knowing that someone might be induced into criminality because of your lawful activities is not sufficient to normatively involve you in that person's criminality. But it would be for the purposes of accessorial liability, because there is a close and direct relation between an accessory and principal. The accessory has firsthand knowledge of the principal's bad intentions and is able to choose whether to assist or not. See the discussion infra.
-
-
-
-
14
-
-
0000327341
-
-
Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order Maintenance Policing New York Style, 97 Mich. L. Rev. 291 (1998);
-
Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order Maintenance Policing New York Style, 97 Mich. L. Rev. 291 (1998);
-
-
-
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17
-
-
0030879479
-
Neighborhood and Violent Crime: A Multilevel Study of Collective Efficacy, 277
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Robert J. Sampson, Stephen W. Raudenbush, & Felton Earls, Neighborhood and Violent Crime: A Multilevel Study of Collective Efficacy, 277 Sci. 918 (1997);
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(1997)
Sci
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Sampson, R.J.1
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18
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0039572075
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Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105
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Robert J. Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public Spaces: A New Look at Disorder in Urban Neighborhoods, 105 Am. J. Soc. 603 (1999);
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(1999)
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Sampson, R.J.1
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19
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34547956753
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The Exclusive Society
-
Jock Young, The Exclusive Society (1999).
-
(1999)
-
-
Young, J.1
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20
-
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34547947706
-
-
See Young v. New York Transit Authority, 903 F.2d 146 (2d Cir. 1990).
-
See Young v. New York Transit Authority, 903 F.2d 146 (2d Cir. 1990).
-
-
-
-
21
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34547958689
-
-
Home Office (Great Britain), Respect and Responsibility - Taking a Stand against Anti-Social Behavior, White Paper, Cmd. 5778, paras. 1.8; 3.40-3.44 (2003).
-
Home Office (Great Britain), Respect and Responsibility - Taking a Stand against Anti-Social Behavior, White Paper, Cmd. 5778, paras. 1.8; 3.40-3.44 (2003).
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22
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34547937028
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Id
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Id.
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23
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34547955081
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Wilson & Kelling, supra note 5, at 31
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Wilson & Kelling, supra note 5, at 31.
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24
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34547931166
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-
Id. at 31-32
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Id. at 31-32.
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25
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34547943581
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Id
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Id.
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26
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-
34547953841
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Id
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Id.
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28
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34547940182
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Harcourt, supra 13.
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Harcourt, supra 13.
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30
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0005693754
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Disorder, Crime and Community Decline
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Tim Hope & Margaret Shaw eds
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Wesley G. Skogan, Disorder, Crime and Community Decline, in Communities and Crime Reduction 48 (Tim Hope & Margaret Shaw eds., 1988).
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(1988)
Communities and Crime Reduction
, vol.48
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Skogan, W.G.1
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31
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34547951031
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Skogan, Disorder and Decline, supra note 23
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Skogan, Disorder and Decline, supra note 23.
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32
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34547949041
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Harcourt, supra note 13, at 311-12
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Harcourt, supra note 13, at 311-12.
-
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33
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34547944481
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Kelling & Coles, supra note 21, at 24;
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Kelling & Coles, supra note 21, at 24;
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34
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0346353769
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Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349, 369 (1997).
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Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 Va. L. Rev. 349, 369 (1997).
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35
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34547940577
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Harcourt, supra note 13, at 309-29
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Harcourt, supra note 13, at 309-29.
-
-
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36
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33645765201
-
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See also Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271 (2006).
-
See also Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271 (2006).
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37
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34547945180
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Harcourt, supra note 13
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Harcourt, supra note 13.
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38
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34547938025
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Id
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Id.
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39
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34547949233
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Id
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Id.
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40
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34547942779
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Id. at 331
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Id. at 331.
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41
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34547932153
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Id. at 331-39
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Id. at 331-39.
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42
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34547958690
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Id. at 339
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Id. at 339.
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43
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34547955082
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Id. at 342
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Id. at 342.
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44
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34547926948
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-
Id
-
Id.
-
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-
-
45
-
-
34547929661
-
-
He notes that [t]o be sure, this alternative hypothesis is also based, in large part, on anecdotal evidence, and it is essential that it too be operationalized and empirically verified. Like the broken windows theory, it is at present an untested hypothesis.
-
He notes that "[t]o be sure, this alternative hypothesis is also based, in large part, on anecdotal evidence, and it is essential that it too be operationalized and empirically verified. Like the broken windows theory, it is at present an untested hypothesis."
-
-
-
-
46
-
-
34547929843
-
-
Id
-
Id.
-
-
-
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48
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-
34547942216
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-
Id
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Id.
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50
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34547951405
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-
Id
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Id.
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51
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34547958691
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Sampson et al, supra note 13
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Sampson et al., supra note 13.
-
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52
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34547950842
-
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National Center for Policy Analysis, Jan. 9
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National Center for Policy Analysis, Involved Neighbors Reduce Crime, Jan. 9, 2004, http://www.ncpa.org/iss/cri/2004/pd010904d.html.
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(2004)
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53
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34547951215
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Id
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Id.
-
-
-
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54
-
-
34547949438
-
-
Sir Anthony E. Bottoms, Incivilities, Offence, and Social Order in Residential Communities, in Incivilities: Regulating Offensive Behavior 239, 268-69 (Andrew von Hirsch A. & Andrew P. Simester eds., 2006).
-
Sir Anthony E. Bottoms, Incivilities, Offence, and Social Order in Residential Communities, in Incivilities: Regulating Offensive Behavior 239, 268-69 (Andrew von Hirsch A. & Andrew P. Simester eds., 2006).
-
-
-
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55
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34547933197
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Sampson & Raudenbush, supra note 13
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Sampson & Raudenbush, supra note 13.
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56
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34547945348
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Id
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Id.
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57
-
-
34547954035
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-
Id
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Id.
-
-
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-
58
-
-
34547957741
-
-
Id. at 638
-
Id. at 638.
-
-
-
-
59
-
-
34547951789
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Id
-
Id.
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-
60
-
-
34547948083
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-
Id
-
Id.
-
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-
61
-
-
36548999971
-
As Science (A Neighbor at a Time)
-
Jan. 6, at
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Dan Hurley, On Crime As Science (A Neighbor at a Time), N.Y. Times, Jan. 6, 2004, at F1
-
(2004)
N.Y. Times
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Hurley, D.1
Crime, O.2
-
62
-
-
84887585951
-
-
Some commentators have alleged, without offering any proof, that zero tolerance policing has led to massive reductions in crime in New York, where between 1994 and 1996 the crime fell overall by 37 percent with a 50 percent reduction in homicides alone. See Roger Burke-Hopkins, The Regulation of Begging and Vagrancy: A Critical Discussion, 2 Crime Prevention & Community Safety 43, 45 (2000).
-
Some commentators have alleged, without offering any proof, that zero tolerance policing has led to massive reductions in crime in New York, where between 1994 and 1996 the crime fell overall by 37 percent with a 50 percent reduction in homicides alone. See Roger Burke-Hopkins, The Regulation of Begging and Vagrancy: A Critical Discussion, 2 Crime Prevention & Community Safety 43, 45 (2000).
-
-
-
-
63
-
-
34547950246
-
-
Normative involvement involves underwriting the primary harmer's criminal choice. Andrew von Hirsch, Varieties of Remote Harms and Rationales for Their Criminalization (March 2006) (unpublished manuscript, on file with author).
-
Normative involvement involves underwriting the primary harmer's criminal choice. Andrew von Hirsch, Varieties of Remote Harms and Rationales for Their Criminalization (March 2006) (unpublished manuscript, on file with author).
-
-
-
-
64
-
-
34547953274
-
-
Id
-
Id.
-
-
-
-
67
-
-
34547927706
-
-
See, e.g., Backun v. United States, 112 F.2d 635, 637 (4th Cir. 1940) (opinion of Parker, J.) (obiter dicta).
-
See, e.g., Backun v. United States, 112 F.2d 635, 637 (4th Cir. 1940) (opinion of Parker, J.) (obiter dicta).
-
-
-
-
68
-
-
34547955271
-
-
Glanville Williams argues that [h]elping another to commit a crime does not require a purpose on the part of the accessory that the crime should be committed. A person may be guilty as accessory simply by knowingly helping. Glanville L. Williams, Complicity, Purpose and the Draft Code - 2, 1990 Crim. L.R. 98, 100.
-
Glanville Williams argues that "[h]elping another to commit a crime does not require a purpose on the part of the accessory that the crime should be committed. A person may be guilty as accessory simply by knowingly helping." Glanville L. Williams, Complicity, Purpose and the Draft Code - 2, 1990 Crim. L.R. 98, 100.
-
-
-
-
69
-
-
34547929184
-
-
113 L.T. 246
-
(1915) 113 L.T. 246.
-
-
-
-
70
-
-
34547926572
-
-
3 All E.R. 149
-
(1936) 3 All E.R. 149.
-
-
-
-
73
-
-
34547945347
-
-
This type of liability is based on the normative concept of purpose. As Williams notes, the normal doctrine of causation does not apply to accessories, so that it need not be proved that the act or encouragement or influence was a but-for cause of the crime. However, the act intended to influence the perpetrator must reach his mind, and must be of a kind that may be expected to influence him. Glanville L. Williams, Complicity, Purpose and the Draft Code, 1, 1990 Crim. L.R. 4, 9 1990
-
This type of liability is based on the normative concept of "purpose." As Williams notes, "the normal doctrine of causation does not apply to accessories, so that it need not be proved that the act or encouragement or influence was a but-for cause of the crime. However, the act intended to influence the perpetrator must reach his mind, and must be of a kind that may be expected to influence him." Glanville L. Williams, Complicity, Purpose and the Draft Code - 1, 1990 Crim. L.R. 4, 9 (1990).
-
-
-
-
74
-
-
34547938227
-
-
Williams, supra note 62, at 10
-
Williams, supra note 62, at 10.
-
-
-
-
75
-
-
34547928626
-
-
Id
-
Id.
-
-
-
-
76
-
-
34547927505
-
-
Glanville Williams asserts that the extension of the meaning of intention to foreseen certainties should not apply to illegal conduct. Williams, supra note 8, at 86. For instance, in Beatty v. Gillbanks the Salvation Army foresaw that when they assembled they would be set upon, because they knew that this was the policy of their opponents; but that did not make them responsible for being set upon. The reason for the limitation is partly the result of our notion of responsibility, which we attribute to the immediate wrongdoer, not to the innocent party who merely foresees the wrongdoing. It would be an intolerable extension of criminal responsibility if people who were exercising their lawful rights and liberties were to be responsible for the acts of deliberate mischief-makers.
-
Glanville Williams asserts that the "extension of the meaning of intention to foreseen certainties should not apply to illegal conduct." Williams, supra note 8, at 86. For instance, in Beatty v. Gillbanks "the Salvation Army foresaw that when they assembled they would be set upon, because they knew that this was the policy of their opponents; but that did not make them responsible for being set upon. The reason for the limitation is partly the result of our notion of responsibility, which we attribute to the immediate wrongdoer, not to the innocent party who merely foresees the wrongdoing. It would be an intolerable extension of criminal responsibility if people who were exercising their lawful rights and liberties were to be responsible for the acts of deliberate mischief-makers."
-
-
-
-
77
-
-
34547929372
-
-
Id
-
Id.
-
-
-
-
78
-
-
34547961227
-
-
9 Q.B.D. 308
-
(1892) 9 Q.B.D. 308.
-
-
-
-
79
-
-
34547928237
-
-
Williams, supra note 8, at 12
-
Williams, supra note 8, at 12.
-
-
-
-
80
-
-
34547956754
-
-
See Williams, supra note 58, at 103
-
See Williams, supra note 58, at 103.
-
-
-
-
81
-
-
0346478581
-
-
Cf. Sanford H. Kadish, Criminal Law: Reckless Complicity, 87 J. Crim. L. & Criminology 369 (1997).
-
Cf. Sanford H. Kadish, Criminal Law: Reckless Complicity, 87 J. Crim. L. & Criminology 369 (1997).
-
-
-
-
82
-
-
34547933400
-
-
Von Hirsch, supra note 53.
-
Von Hirsch, supra note 53.
-
-
-
-
83
-
-
34547939982
-
-
Id
-
Id.
-
-
-
-
84
-
-
34547943582
-
-
Id
-
Id.
-
-
-
-
85
-
-
20144365899
-
-
Michelle M. Dempsey, Rethinking Wolfenden: Prostitute Use, Criminal Law, and Remote Harm, 2005 Crim. L.R. 444, 453.
-
Michelle M. Dempsey, Rethinking Wolfenden: Prostitute Use, Criminal Law, and Remote Harm, 2005 Crim. L.R. 444, 453.
-
-
-
-
86
-
-
34547932519
-
-
Id. at 454
-
Id. at 454.
-
-
-
-
87
-
-
34547944850
-
-
Id. at 453-54
-
Id. at 453-54.
-
-
-
-
88
-
-
21244477057
-
-
For an overview of the harms to the elephant population, see Thomas R. Naylor, The Underworld of Ivory, 42 Crime, L. & Soc. Change 261 (2004).
-
For an overview of the harms to the elephant population, see Thomas R. Naylor, The Underworld of Ivory, 42 Crime, L. & Soc. Change 261 (2004).
-
-
-
-
89
-
-
34547939217
-
-
An estimated 10,000 elephants are still dying each year for their tusks. Retailing in ivory is as lucrative as poaching and many products are sold in London. Max Horsnell, Ivory Shaving Brushes Cost Royal Barber £10,000 Fine, Times London, Oct. 25, 2006, at 5, available at .co.uk/tol/news/uk/crime/article612224.ece
-
An estimated 10,000 elephants are still dying each year for their tusks. Retailing in ivory is as lucrative as poaching and many products are sold in London. Max Horsnell, Ivory Shaving Brushes Cost Royal Barber £10,000 Fine, Times (London), Oct. 25, 2006, at 5, available at http://www.timesonline.co.uk/tol/news/uk/crime/article612224.ece.
-
-
-
-
90
-
-
34547949440
-
-
This is assuming that harming and destroying elephants is something that sets back the collective interests of humanity
-
This is assuming that harming and destroying elephants is something that sets back the collective interests of humanity.
-
-
-
-
92
-
-
34547934743
-
-
Id
-
Id.
-
-
-
-
94
-
-
34547935867
-
-
Id
-
Id.
-
-
-
-
95
-
-
34547955080
-
Such an approach, based on Dworkin's [override argument] for derogation, seems plausible in the case of quarantine, because of several features. The potential harm is of extraordinary magnitude, not only in the seriousness of the possible consequences in the individual case, but also in the pervasiveness of the harm..
-
at
-
"Such an approach, based on Dworkin's [override argument] for derogation, seems plausible in the case of quarantine, because of several features. The potential harm is of extraordinary magnitude, not only in the seriousness of the possible consequences in the individual case, but also in the pervasiveness of the harm..." Id. at 54.
-
-
-
-
96
-
-
34547927127
-
-
Utilitarian justifications for criminal law have been used to circumvent the fairness constraint by way of eliminating the culpability requirements in the form of strict liability offenses. Jeffrie G. Murphy & Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence 128 (rev. ed. 1990);
-
Utilitarian justifications for criminal law have been used to circumvent the fairness constraint by way of eliminating the culpability requirements in the form of strict liability offenses. Jeffrie G. Murphy & Jules L. Coleman, Philosophy of Law: An Introduction to Jurisprudence 128 (rev. ed. 1990);
-
-
-
-
97
-
-
34547929371
-
-
Cf. Hart, supra note 9
-
Cf. Hart, supra note 9.
-
-
-
-
98
-
-
34547945045
-
-
The beggar also has normative rights with respect to existing and using public spaces. See generally Jeremy Waldron, Homelessness and Community, 50 U. Toronto L.J. 371 (2000).
-
The beggar also has normative rights with respect to existing and using public spaces. See generally Jeremy Waldron, Homelessness and Community, 50 U. Toronto L.J. 371 (2000).
-
-
-
-
99
-
-
34547937029
-
-
Von Hirsch, supra note 4, at 259-67.
-
Von Hirsch, supra note 4, at 259-67.
-
-
-
|