Overview of the Penal Law

Abstract This chapter provides an overview of penal law that goes beyond the sketchy comments made so far. Section 13.1 contrasts penal law, based on forfeiture and unconcerned with blame, with criminal law, based on retributive desert and fundamentally concerned with blame. It argues that making this distinction is important for the integrity of the criminal law. This section ends with a review of why the penal law is different from administrative law. Section 13.2 handles three objections to the idea of the penal law, the most important of which is that serious sanctions, such as imprisonment, unavoidably convey censure. Section 13.3 argues that penal law is not normally a mere pricing scheme; normally, penal violations are not to be performed. Section 13.4 argues that it is nonetheless true that there are times when a person may fairly be penalized even though his act is only a pro tanto wrong. The state may never impose a penal law penalty believing that is the case, but it may put the burden of proving justifications on defendants in a way that the criminal law may not. Defendants might sometimes fail to carry that burden and be penalized, even though their act is only pro tanto wrong. Section 13.5 argues that penal law should be limited to proxy crimes. Finally, Section 13.6 argues that it would be possible to start the reform process required to formally distinguish criminal and penal law.