Doctrinal Basics for the Penal Law

Abstract This chapter aims to explore some of the most important doctrinal issues concerning the penal law. The chapter starts with a discussion of proportionality in the penal law. The challenge is to explain both how it can have a more relaxed proportionality restriction than that which applies to criminal punishment, and how having this less restrictive notion can avoid undermining the criminal law’s proportionality restriction. The solution is that proportionality in the criminal law remains sacrosanct because the justifications for sanctions are distinct, and because the penal law should remain secondary to the criminal law, at least as long as the criminal law remains in play. Section 15.1 ends by considering the impact on the penal law of doing away with the criminal law. Section 15.2 considers mental state elements for the penal law, arguing that they correspond fairly closely to mens rea terms and that strict liability is ruled out. Section 15.3 argues for the beyond a reasonable doubt standard of proof. Section 15.4 argues that the same ban on ex post facto offenses applies to penalties, though not for collateral consequences of convictions that reflect forfeiture of the presumption of law abidingness. Finally, Section 15.5 argues that some but not all bases for extra-territorial application of the criminal law can be extended to the penal law.