Penalties For Breaking The Law: Specificity Or Flexibility?

Laws and regulations are in place to keep everyone safe and ensure that rules are followed. When someone breaks the law, they can face serious consequences, including fines, jail time, or both. The penalties for breaking the law vary depending on the type of crime committed, ranging from misdemeanours to felonies, and can also be influenced by factors such as past criminal history and the severity of the offence. For example, in the case of breaking and entering, the average jail time for a misdemeanour is a maximum of one year, while aggravating factors such as severe property damage or causing bodily harm can elevate the crime to a felony, resulting in more severe penalties. In recent years, there has been a growing recognition of the need for specific penalties for certain types of crimes, such as hacking, to reduce legal controversy and prevent excessive punishment.

The impact of a person's criminal record on penalties

A criminal record can have serious repercussions on a person's life, impacting several aspects of their day-to-day life and presenting challenges beyond jail time, fines, and sex offender registration. Here are some of the key ways in which a person's criminal record can influence the penalties they face and have broader implications:

• Employment Opportunities: A criminal record can hinder job prospects, with employers often apprehensive about hiring individuals with a history of misdemeanors or felonies. This is especially true for roles that demand trust and responsibility. A criminal conviction, even for a minor offence, can lead to numerous rejections when applying for jobs. Employers are within their rights to conduct background checks and may be reluctant to hire those with any criminal convictions, particularly if the role involves handling sensitive information or assets.
• Housing: Landlords and housing agencies often consider a criminal record a red flag, impacting not just the individual but also their family. This can lead to difficulties in finding safe and affordable housing, with certain convictions even barring individuals from subsidized housing.
• Education: Drug or sex crime convictions can make individuals ineligible for federal student aid, at least temporarily, disrupting their educational pursuits.
• Professional Licensing: Many professions, including medical, legal, financial, and cosmetology, require professional licenses. Licensing bodies often scrutinize applicants' backgrounds, and a criminal conviction can raise questions about their suitability for the profession.
• Firearm Ownership: Criminal records, especially for felonies or certain misdemeanors, can result in restrictions on firearm ownership. In Texas, for example, convicted felons must wait for a designated period after their sentence before they can legally own a firearm, and even then, there are limitations on where they can possess it.
• Loan Applications: Financial institutions may view individuals with a criminal record as high-risk, leading to higher interest rates or outright denials for loans and credit cards. This can make it more challenging to achieve financial goals like homeownership or starting a business.
• Child Custody: A criminal record can negatively impact child custody disputes, with past convictions being used against individuals in court. This is particularly true for domestic assault or drug-related charges, as they can cast doubt on an individual's ability to provide a safe and stable environment for their children.
• Travel and Immigration: Criminal records can lead to travel restrictions and immigration problems, with some countries denying entry to individuals with certain types of convictions. This can limit international travel and affect the ability to obtain visas or citizenship in other countries.
• Reputation: A criminal conviction is a matter of public record, and it can lead to stigmatization and damage to one's reputation in the community. This can affect both personal and professional relationships.
• Subsequent Charges: The legal system often treats repeat offenders more harshly. Therefore, a criminal record can lead to enhanced penalties and sentencing for any future crimes.

It is important to note that the impact of a criminal record can vary depending on the jurisdiction and the specific policies in place. Additionally, in some cases, it may be possible to have a criminal record expunged or sealed after a certain period, reducing its long-term impact. Nonetheless, the potential consequences of a criminal record highlight the importance of consulting a skilled defense lawyer to protect one's rights and mitigate the severity of charges and penalties.

The severity of the crime and its consequences

The consequences of breaking the law can vary depending on the severity of the crime committed. The type of crime and its consequences determine the penalties imposed on the offender. These penalties can be financial or legal, or both.

In the United States, a felony conviction can result in a prison sentence ranging from one year to life imprisonment, while a misdemeanor conviction can lead to fines or up to one year in jail. Certain crimes, such as murder, theft, drug possession, and assault, have specific penalties attached to them. For instance, murder often carries a life sentence, while theft may result in a fine or jail time. Drug possession penalties vary depending on the type of drug involved, and assault penalties depend on the severity of the attack and any resulting injuries.

The National Survey of Crime Severity (NSCS) conducted a survey in 1977 where 60,000 participants rated the severity of 25 specific crimes. The survey found that violent crimes were perceived as more serious than property crimes, with white-collar and drug-related crimes also being taken seriously. This survey provided a severity index that can aid judges in sentencing and understanding the true nature of changes in the crime rate.

When it comes to breaking and entering, the penalties can vary depending on the jurisdiction and the specific circumstances of the crime. As a misdemeanor, it carries a maximum sentence of one year in county jail and may include additional consequences such as community service, fines, restitution, and probation. However, if the breaking and entering is associated with burglary or aggravated factors, such as severe property damage or causing harm to another person, it can be elevated to a felony charge with more severe penalties.

The defences available to those who break the law

Defences available to those who break the law vary depending on the jurisdiction and the nature of the crime. Here are some common defences:

Mistake

In some jurisdictions, a "mistake" defence may be available if the defendant genuinely and reasonably mistook their actions for being justifiable. For example, a charge of assault may be negated if the defendant mistakenly believed they were acting in self-defence.

Self-Defence

Self-defence is a common defence in many jurisdictions. It applies when an individual uses reasonable force to defend themselves or others from an attack or threatened attack. The force used must be proportionate to the threat, and pre-emptive force may be permissible if the defendant believed they were about to be attacked.

Mental Disorder (Insanity)

Insanity or mental disorder may negate the intent element of a crime, provided the crime has an intent element. The definition of criminal insanity varies but often involves the defendant's lack of understanding of the wrongfulness of their actions or their inability to conform their conduct to the law.

Automatism

Automatism refers to a state where an individual's muscles act without any control by the mind or with a lack of consciousness. To qualify as an "automaton", there must be a total destruction of voluntary control. This defence may be applicable in cases of sudden illness, post-traumatic stress, or unforeseen influences such as being attacked by bees.

Intoxication

Intoxication may negate specific intent, particularly in crimes requiring a particular kind of mens rea (criminal intent). Voluntary intoxication may still provide basic intent, but involuntary intoxication, such as being spiked with alcohol without one's knowledge, may give rise to no inference of basic intent.

Necessity/Lesser Harm

The doctrine of necessity holds that a criminal act can be justifiable if it is necessary to prevent a foreseeable and greater harm than the harm created by the act. For example, trespassing may be justified if the defendant was attempting to put out a fire or rescue someone drowning on the property.

Lawful Capacity of Office

This defence is available to public servants and first responders, such as police officers, firefighters, and EMTs. It protects them from responsibility for criminal actions they must perform as appointed agents of the jurisdiction within the course and scope of their duties. For example, a paramedic who forcibly enters a building in response to an emergency call cannot be charged with breaking and entering.

Duress

Duress can be a defence in many jurisdictions, except for the most serious crimes like murder and treason. It applies when the defendant is forced to commit an unlawful act under the threat of imminent peril of death or serious injury, and they had no safe avenue of escape.

Impossibility

The impossibility defence is used when a defendant is accused of a criminal attempt that failed because the crime was factually or legally impossible to commit.

Consent

In some jurisdictions, consent can be a full or partial defence to certain crimes, particularly if no permanent harm resulted.

The role of intent in determining penalties

Types of Intent

There are different types of intent recognised by the law, which vary in their level of culpability. These include:

• Malice Aforethought: This is the highest form of intent, reserved specifically for murder. It implies an "intent to kill" and carries the most severe punishments, including the death penalty in some jurisdictions.
• Specific Intent: Specific intent refers to a sophisticated level of awareness on the part of the defendant. It often involves the intent to cause a particular harmful result or the knowledge that their conduct is illegal. Crimes requiring specific intent usually attract more severe penalties.
• General Intent: General intent is a less sophisticated form of intent and is easier to prove. It refers to the intent to perform the criminal act itself, without necessarily intending a specific harmful result. Crimes of general intent often result in less severe punishments.
• Constructive Intent: Constructive intent refers to unintentional outcomes of an act, such as a negligent driver causing a pedestrian's death.

Determining Penalties

The presence or absence of intent plays a pivotal role in determining penalties for criminal acts. Here's how:

• Severity of Punishment: The existence of intent, especially specific intent, can lead to more severe punishments. For instance, a crime with specific intent may be graded as a felony, while a crime lacking the intent element may be considered a misdemeanour or infraction.
• Grading of Crimes: Intent is often a factor in grading crimes. Crimes with an "evil" intent, or malice aforethought, are typically subject to the harshest penalties.
• Mitigating Factors: In some cases, the absence of intent can be a mitigating factor in sentencing. For instance, a crime committed without intent may result in a reduced sentence or a lesser charge.
• Strict Liability Offences: There are exceptions to the requirement of intent, known as strict liability offences. These are typically minor crimes where the law imposes punishment regardless of the defendant's mental state.
• Transferred Intent: Transferred intent is a legal concept where the intent is transferred from the intended victim to the actual victim. This ensures that the defendant is held responsible for their criminal conduct, even if the harm was unintended.

Examples

To illustrate the role of intent, consider the following examples:

• Theft vs. Borrowing: Taking someone's property with the intent to permanently deprive them of it (theft) carries a higher penalty than taking it with the intent to return it (borrowing).
• Battery vs. Accident: Punching someone with the intent to cause harm (battery) is punished more severely than accidentally causing harm without intent.
• Murder vs. Manslaughter: An intentional killing (murder) is punished more harshly than an unintentional killing (manslaughter) due to the presence of intent.

In conclusion, intent plays a pivotal role in determining penalties within the criminal justice system. It helps distinguish between accidental and intentional acts, grades crimes according to their level of culpability, and influences the severity of punishments. By considering the type and presence of intent, the law ensures that penalties are proportional to the offender's mental state and the harm caused.

The variation in penalties across different countries

The penalties for breaking the law vary depending on the type of crime committed and the jurisdiction in which it occurred. For instance, punishments for the same crime can differ vastly between countries.

In the United States, hacking laws are severe and can result in lengthy prison sentences and hefty fines. For instance, the Computer Fraud and Abuse Act (CFAA) imposes harsh penalties for virtual crimes, and reforms like Aaron's Law aim to reduce these penalties. In South Korea, a similar law, the "Promotion of Information and Communications Network Utilization and Information Protection Act," carries a maximum penalty of three years' imprisonment or a fine of 30 million won. In Germany, Article 202(a) of the German Penal Code addresses "Information network intrusions" and punishes unauthorized access to protected information. China, on the other hand, does not have a single law governing cybercrimes; instead, it relies on a range of laws and regulations, and its Criminal Law imposes a sentence of up to three years' imprisonment for hacking.

Differences in penalties are not limited to cybercrimes. For instance, the punishment for murder is typically life imprisonment in the United States, but it can vary depending on the circumstances and the jurisdiction. In some countries, the death penalty is still imposed for certain crimes, including murder.

The variation in penalties across countries is influenced by cultural, legal, and political factors. Some countries prioritize strict law enforcement and harsh punishments, while others focus on rehabilitation and reintegration. Social norms and values also play a role in shaping the legal system and the penalties imposed. Additionally, the effectiveness of penalties in deterring crimes and the potential impact on individuals and society are considered when determining punishments.

The variation in penalties across countries highlights the importance of understanding the legal system and cultural context when dealing with legal matters. It also underscores the need for international cooperation and consistency in addressing global issues, such as cybercrime, to ensure effective enforcement and prevent discrepancies in punishment.

Frequently asked questions