The ethics of criminalisation

Intentions and consequences

Authored by: Jill Peay , Elaine Player

The Routledge Handbook of Criminal Justice Ethics

Print publication date:  July  2016
Online publication date:  July  2016

Print ISBN: 9780415708654
eBook ISBN: 9781315885933
Adobe ISBN: 9781134619450

10.4324/9781315885933.ch8

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Abstract

When enacting a new criminal offence to what extent is attention paid to ethical questions concerning the balance to be struck between harm reduction and harm creation? And what might these questions be with respect to that process? Is harm even the most relevant criterion by which to judge the ethical basis of the process? This chapter strives to explore some of the parameters and perimeters of that balancing process. In particular, it examines the extent to which attention is paid to the differential impact of legislation on identifiable groups. For whilst legal egalitarianism is not contentious, namely, the principle under the rule of law that all – regardless of status – are equally subject to it (Bingham 2010; Dicey 1915), actually ensuring that the law has an equal impact on offenders is much more problematic. There is an extensive literature on the field of impact in sentencing (see, for example, Ashworth and Player 1998; Piper 2007; Easton 2008), but there are also issues about the abilities of different identifiable groups to comply with legislation, or, indeed, to bear the impact of criminalisation and thus the consequential adverse effects of negative labelling. For example, those with the requisite financial resources are more able to facilitate a fresh start by moving from an area where knowledge of their wrongdoing is widespread. The question that arises is whether any of these factors should be a relevant consideration in designing new criminal laws? For if the consequential harms of criminalisation are predictable, more thought ought to be given to developing a coherent ethical framework to guide that necessary process.

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