criminal-law politics law-enforcement theory-of-law
The spectrum of legality
<p>I've always envisioned &quot;legality&quot; as a spectrum, with the label of <em>completely illegal</em> at one end, and the label of <em>strictly legal</em> at the other end. In the middle, I see different levels of decriminalization. Below, I will write down the different points I imagine exist on the spectrum, starting at <em>completely illegal</em>, and making my way towards <em>strictly legal.</em></p>
<ol>
<li>Completely illegal crime.</li>
<li>Law enforcement's focus and resources directed away from that kind of crime.</li>
<li>The above, <strong>in addition</strong> to LEOs attaining the discretion to not arrest the criminal, or press charges.</li>
<li>LEOs advised/implored not to arrest or press charges against people committing the crime.</li>
<li>The act isn't punishable, but the agent is obligated/prohibited to do certain things after being caught.</li>
<li>The act isn't punishable, but the agent <strong>can</strong> be obligated/prohibited to do certain things after being caught.</li>
<li>The act isn't punishable, and no actions can be obligated of, or prohibited from, the agent after being caught.</li>
<li>The action is strictly legal.</li>
</ol>
<hr />
<p>Points 5. and 6. can be further subdivided, where the subtypes are different in whether the violation of the obligations and prohibitions are punishable, and/or if the agent can be physically forced to comply with the obligations/prohibitions. I am not sure where those subtypes would lie in relation to each other on a spectrum of legality however.</p>
<p>I also want to point out that in cases/jurisdiction where the choice to enforce a law or not is already up to the LEO's discretion, points 2. and 3. are equivalent. However, if a jurisdiction originally does not allow LEO's to use their discretion in relation to arresting/charging a criminal, <strong>but then changes policies to allow such</strong>, it seems to me a step towards &quot;greater legality&quot;.</p>
<p>Also, this is a spectrum differentiated by changes in policy and law, not changes in culture. A kind of cultural decriminalization could exist at any of these points, where the police and/or people do not care about the crime at all. Since this kind of decriminalization doesn't necessarily depend on (though of course is influenced by) any of the points on the spectrum, it exists outside of the spectrum.</p>
<hr />
<p>So, my questions are the following:</p>
<ol>
<li>Is my conceptualization correct?</li>
<li>Is this a concept established and accepted in jurisprudence, and if so, where and by whom?</li>
<li>Are the more points to add?</li>
</ol>

<p>Part answer to Q1:</p>
<p><strong>Is my conceptualization correct?</strong></p>
<p>No, insofar that your Points 1 to 4 are all &quot;completely illegal&quot; regardless of how the authorities deal with them, and the rest are not, on the face of it, crimes but presumably civil wrongs (which can be dealt with by, for example, fines or restraint / good behaviour / banning orders etc without one having a &quot;criminal conviction&quot;).</p>
<p>Also: if the authorities, for whatever reason, decide against dealing with crime then it hasn't been &quot;decriminalised&quot; - that is the remit of the law makers, not the law enforcers. It's still a crime but with a lower political/ operational etc priority.</p>

<p>I think the continuum view is wrong, because it isn't a continuum, instead you have multiple ways of classifying actions, depending on orthogonal criteria. For example, &quot;the agent {is/can be} obligated/prohibited&quot; seems to identify discretion in enforcement or punishment (prosecutors may decide to not prosecute a murder, judges may decide to lessen a punishment). In addition, you don't consider the distinction between criminal illegality vs. civil illegality (such as, breach of contract, or ordinary liability for a traffic accident). The top half of the list more or less corresponds to &quot;is a crime&quot;; various other distinctions refer to discretion (on whose part?). I don't understand what distinction 7 vs. 8 actually refers to.</p>
<p>&quot;Frequency&quot; (as in physics) is a true continuum. A classification system with 3 or 4 independent states yields multiple possibilities, but is not a continuum. You haven't given any grounds for assessing this list as &quot;continuous&quot;. I think part of the problem is that you're describing ways in which the legal system admits of discretion (LEOs, prosecutors, judges – and juror in reality, although there is a pretense that jurors mechanically and automatically apply the law).</p>

<p>In <a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" rel="tag">germany</a>, legal theory talks of the principle of legality and the principle of opportunity:</p>
<ul>
<li>In principle, the police and prosecution have the obligation to enforce <em>all</em> laws impartially.</li>
<li>It is also recognized as a principle that the police and prosecution must use their own judgement and/or the judgement of their superiors, laid down as department policy, to decide in which order the laws are enforced. But <em>not immediately enforced</em> laws do not become void, it simply allows officers to go off-shift before <em>all</em> laws in the city are enforced.</li>
</ul>
<p>That means a police officer on the way to a possible bank robbery is not required to stop and write down particulars of a parking infraction on the way. Clearly a possible bank robbery is more important than an actual parking infraction. When the bank robbery is over, and the police officer can think of <em>nothing more important</em> to do, one could argue that the officer should return to the scene of the parking infraction, but the low severity of the infraction make that unlikely in practice. More likely, the officer would resume simply patrols.</p>
<p>It also means that an officer who sees <em>two</em> minor traffic infractions at the same time must decide where to start, even if that decision means one perpetrator is about to get away before the infraction will be recorded.</p>
<p>Politically this can often be contentious, as in &quot;why do you enforce the speed limit when there are drug dealers standing at the corner&quot; (the complaint by motorists who just got a fine) or &quot;why don't you monitor the speed limit here, there is a primary school and cars are always speeding&quot; (the complaint by parents afraid for their kids). The answer to that is sometimes &quot;double our budget and we can do both.&quot; Doubled budgets are seldom forthcoming.</p>
<p>Legally, it takes the downgrading of a crime to a misdemeanor to make it &quot;less illegal.&quot;</p>

<h2>Legality is a binary</h2>
<p>Legality has no spectrum. It has exactly two states for everything: if analyzed properly, an action is either legal or illegal <em>including the circumstances</em>. Why do we include the circumstances? See the following examples:</p>
<ul>
<li>Killing someone for fun is murder and illegal.</li>
<li>Killing someone by reckless driving is illegal.</li>
<li>Killing someone that attacks you is self-defense and legal.</li>
<li>Killing someone that is an enemy combatant, who is in a warzone, who has not surrendered, and who is engaging in hostilities is legal.</li>
</ul>
<p>So, legality is the result of the sum of circumstances of an act. And it is always either True or False. However, to do the analysis, you have to check the whole situation, which is done by a trier of facts. This entity is asked to decide of the circumstances fit the law or not. In the US that is usually a jury, while other countries have judges act here.</p>
<h2>Apparent difference in legality?</h2>
<p>The legality of an act with all its circumstances that determine if it is legal or not is not a fast process. It takes time and effort to meet the <strong>burden of proof</strong> required.</p>
<p>So the executive needs to investigate prior to asking the trier of facts in the judicative to decide if the act is actually illegal. This question is even asked if the act is patently illegal, like shooting someone for no reason on the street.</p>
<p>How come some acts are not prosecuted then? Because prosecuting is a lot of work. There are <em>many</em> cases of illegal things happening all the time, but only limited time in the workday of the prosecution. Now, as you see, the prosecution and the investigation arm of the executive need to manage their limited resources, which is where the <strong>prosecutorial discretion</strong> is entering the picture:</p>
<h3>Example</h3>
<p>Let's assume we're in Borduria, and just had a revolution. There are only two laws: Smoking in a public building is illegal and carries a file of 20 units of currency. Driving faster than 30 km/h in front of a school is illegal and carries a fine of 2000 units of currency and ban from ever driving a car again.</p>
<p>In the time needed to prosecute a case of smoking in a public building, the court could also handle a speeding infraction, which is arguably a bigger danger to the kids that need to pass the road - which is reflected in the higher fine and chance to get the driving privileges revoked. Now assume Borduria has exactly one attorney and judge that they can assign to one type of case all day in court: They could either fight smoking in public buildings or speeding drivers in front of schools. Where do they assign them? Most likely by the number of cases happening of either, and then in bulk - and possibly also handling the driving infractions more eagerly.</p>
<p>Now, Borovia legislates their third law: killing someone without self-defense is illegal and carries a sentence of being publically paraded to the prison in chains and incarcerated for the rest of their life. However, a Borovian attorney and judge are <em>blocked</em> for a whole week for a single case. How eagerly are the resources pulled from prosecuting the other two laws to prosecute this third law?</p>
<p>Countries have <em>many</em> more laws, and the balancing act is quite difficult. Some cases fall by the wayside, others are pulled to the front because of public interest. But given unlimited time and resources, they all would be prosecuted.</p>
