Sex Crimes, Sex Offenders Nulla poena, nullum crimen sine lege

[klawer]

Hi,

I am a European law student, and I was wondering if the Nulla poena, nullum crimen sine lege principle is applicable in the United States, and if yes, in what text or case law is it located?

Thanks in advance.

 

[army judge]

Hi,

I am a European law student, and I was wondering if the Nulla poena, nullum crimen sine lege principle is applicable in the United States, and if yes, in what text or case law is it located?

Thanks in advance.

This European maxim says that one can not commit any crime, thus no punishment can be meted out, without violating PREVIOUS existing law.


Our federal government is prohibited from passing ex post facto laws (which address the same concept) according to Article I, section 9 of our constitution and the states are prohibited from doing the same because of clause 1 of section 10 of our constitution.

This is one of the very few restrictions set forth in our constitution to both 14th amendment to our constitution.

A string of legal precedents have buttressed this principle for over 230 years!

 

[klawer]

This European maxim says that one can not commit any crime, thus no punishment can be meted out, without violating PREVIOUS existing law.


Our federal government is prohibited from passing ex post facto laws (which address the same concept) according to Article I, section 9 of our constitution and the states are prohibited from doing the same because of clause 1 of section 10 of our constitution.

This is one of the very few restrictions set forth in our constitution to both 14th amendment to our constitution.

A string of legal precedents have buttressed this principle for over 230 years!

Thanks for you super-quick response, but I have another question.

Let me quickly summarize what "nulla poena..." in most of Continental European law (esp. Belgium, where I am) means. Also known as the "principle of legality", there are three aspects to this.

First, no other crimes than those prohibited by law can be punished. This is the "incrimination" aspect.

Second, procedure as devised by the legislator must be respected.

Third, and this is the most important aspect for the essay I am currently working on (it has a small comparative law section), the principle of legality concerns the punishment, that is, the judge may not "invent" any other punishment than those written down by the legislator. Also, the drafting of law containing punishments must be very precise (the legislator may not write "1 day to 50 years imprisonment for this or that crime", because this leaves a lot of arbitrary power to the judges).

My question therefore is: does this third aspect of this principle exist in US law, and, if yes, to what extent? Indeed, I am aware of the so-called "creative justice" applied by some US judges (e.g. Michael Cicconetti). Why is this allowed?

For example, a Belgian judge could never make up punishments like sentencing someone to wear a chicken suit and hold a sign saying "No Chicken Ranch in Painesville" after soliciting sex from a police officer in disguise (*), because all punishments must be drafted by the legislator, i.e. our Parliament and our Senate.

(*) ht.tp://abcnews.go.com/GMA/story?id=3467505&page=1 (remove dot in "ht.tp")

 

[army judge]

Our US courts have broad discretion when it comes to sentencing. Sentencing hinges upon the defendant's prior conviction record and age.

It also has to do with the length between past bad acts (convictions, rather).

A sentence is prescribed by the various legislatures, however. In most cases, judges have great discretion. A crime may have a penalty of 10-25 years. But, the judge can always sentence the convicted to probation (supervised or even unsupervised).

The comparison isn't in the outcome but the application of the law during trial or even at indictment.

In the US there are many ways to avoid or defeat an indictment prior to trial.

Our system hinges on what most other systems don't, a presumption of innocence and a burden of proof on the prosecutor (the government).

 

[klawer]

Our US courts have broad discretion when it comes to sentencing. Sentencing hinges upon the defendant's prior conviction record and age.

It also has to do with the length between past bad acts (convictions, rather).

A sentence is prescribed by the various legislatures, however. In most cases, judges have great discretion. A crime may have a penalty of 10-25 years. But, the judge can always sentence the convicted to probation (supervised or even unsupervised).

The comparison isn't in the outcome but the application of the law during trial or even at indictment.

In the US there are many ways to avoid or defeat an indictment prior to trial.

Our system hinges on what most other systems don't, a presumption of innocence and a burden of proof on the prosecutor (the government).

All right, but could you quickly explain to me what the legal basis of this "creative justice" is? It seems very interesting to me that a judge may choose whatever punishment he sees fit, instead of having to rely on prison, fines, etc. Maybe I misunderstood your reply, but if the Nulla Poena principle applies in the US the same way it does here (see next question), how can a judge invent sentences like public shaming?

Secondly, if, as I said, the NPSL principle exists in the US with this third aspect of "No punishment not created explicitly by the legislature", where is this stated? Indeed, the "no ex post facto law" principle would only translate to the first aspect of NPSL as it is construed in Continental Europe, i.e. no creation of new crimes, but not punishments (as it seems to be the case, seeing that judges can make up those shaming punishments).

Thanks for your time.

 

[army judge]

European NPSL isn't entirely akin to what we term "ex post facto".

We have no creative justice.

Those sentences to which your refer aren't creatures of codification.

They come about by asking an adjudicated person if they would rather wear a sign or go to jail.

Most people choose to wear the sign , and avoid incareration.

If they don't do as they agreed to do, the alternate sentence is revoked, as is their probation.

In the US judges have wide discretion in setting the terms of one's probation.

Wearing a sandwich board sign is just another condition of probation.

What you seem to be missing is the fact that legislature's set the maximums sentences for crimes.

Judges can always opt for probation, because we believe in people being productive, responsible, and available to provide for their familes and pay their taxes.

If we incarcerate them, the state loses their productivity and has to care for them and their families.

 

[army judge]

Just one more point.

The "shaming" punishments derive from English common law and tradition.

Need I remind you of stocks, stonings, canings, floggings, cat of nine tails, and other 16th & 17th century punishments?

The creative sentences were birthed at the King's Bench!!!

Our founders banished most of those sentences with our constitution and Bill of Rights.