Crimes Mala in Se: An Equity-Based Definition

• NCJ Number: 215425
• Journal: Criminal Justice Policy Review Volume: 17 Issue: 3 Dated: September 2006 Pages: 270-289
• Author(s): Mark S. Davis
• Date Published: September 2006
• Length: 20 pages
• Publication Format: Article
• Publication Type: Research (Theoretical)
• Language: English
• Country: United States of America

Annotation

This article presents an overview of "mala in se" (morally proscribed offenses) and "mala prohibita" (legally proscribed offenses); offers a more secular conception of "mala in se" that is based in equity theory; and discusses the implications of this revision of the concept of "mala in se" for criminal justice theory, policy, and practice.

Abstract

The majority of writers who refer to "mala in se" and "mala prohibita" cite Blackstone as their source. According to Blackstone, "mala prohibita" crimes are behaviors that society specifies for punishment through formal law. Implicit in Blackstone's definition is that there is nothing inherently bad in crimes "mal prohibita;" they are wrong because they are prohibited by law, so they do not require "mens rea" (criminal intent). Contemporary examples of "mala prohibita" include gambling, prostitution, vagrancy, disorderly conduct, public intoxication, marijuana possession, and speeding. By contrast, Blackstone views offenses "mala in se" as behaviors so reprehensible that ordinary people agree on their seriousness and would continue to do so even in the absence of codified laws. Equity theory, a social psychological perspective whose roots can be traced back as far as Thomas Hobbes, reasons that humans are socialized to believe in fairness in their dealings with other humans. Using equity theory, it can be argued that offenses "mala in se" violate the norm of fairness as offenders act to obtain a benefit for them that deprives their victims of benefits to which they are entitled. In determining the seriousness of a particular behavior, consideration is given to the types and persistence of deprivation suffered by the person harmed by the behavior. The article discusses how this concept of "mala in se" can provide a basis for policies on retribution, incapacitation, deterrence, rehabilitation, and restoration. 70 references