The Possession Paradigm: The Special Part and the Police Model of the Criminal Process
Markus D. Dubber
University of Toronto - Faculty of Law
DEFINING CRIMES, R.A. Duff, S. Green, eds., Oxford University Press, 2005
Possession crimes have become common features in the special parts of modern criminal codes. Defying traditional categories and principles of criminal law, they are paradigmatic of the Police Model of the criminal process, which regards criminal law not as an institution for the regulation of interpersonal conflict but as an administrative mechanism for the enforcement of state authority.
Possession offenses appear both in the general part (as a variety of inchoate liability) and the special part (attached to particular offense categories), as a single broad offense (such as possession of criminal instruments) and as several specific offenses (such as possession of drugs, guns, stolen property, and so on). They collapse the distinctions between offense and defense (more specifically, between offense definition and justification) by including, within their definition, the concept of "unlawfulness," "illegality," or "criminality," along with separate "exemptions." Possession offenses also do away with traditional notions of imputed (and "group") liability, through the doctrine of constructive possession, which makes room for vicarious liability (through dominion over a person) and spatial liability (through dominion over an area). They resist categorization according to the traditional distinction between conduct and status offenses. They challenge the traditional distinction between voluntariness and mens rea, particularly in varieties that do away with mens rea.
Perhaps most important, possession offenses straddle traditional distinctions among various aspects of the criminal process, definition, imposition, and infliction. Through the use of presumptions they incorporate procedural elements into substantive criminal law, thus breaking down the distinction between definition and imposition. More fundamentally they are specifically designed for ease of enforcement and imposition, reflecting an approach to criminal law that emphasizes crime control over just punishment, application over definition, and results over rules.
Keywords: criminal law, criminal process, possession, special part
JEL Classification: K14, K30
Date posted: April 14, 2004
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