This chapter explores the different levels at which proportionality intersects with and shapes criminal law. Proportionality has been always important in the field but its impact increases if we approach the frontiers of penal intervention from the principles that inform an equalitarian understanding of the law – a central project in contemporary Latin America. The chapter shows the relevance how judgments of excess or defect based on proportionality shape the contours of criminal policy, criminal doctrine and the theory of criminal responsibility, criminal procedure and criminal punishment While exploring these different levels with Latin American social and political backgrounds in mind, and bringing inter-American doctrine into the analysis, the chapter also invites future, broader analysis about how the uses of proportionality in the domains of criminal and human rights law can illuminate and complement each other.

The chapter describes how the mix of competition law sanctions and enforcement instruments in Germany has been significantly expanded in recent years. A special feature of the German competition law procedure is that there are two different types of proceedings. Administrative proceedings allow for less serious consequences, such as prohibitions, behavioural and structural remedies, and disgorgements. More severe measures, such as regulatory fines, can only be adopted in regulatory offence proceedings. Criminal law does not play a major role in the enforcement of competition law in Germany. There is only one real criminal offence, bid-rigging. Recent reforms have concerned the liability of parent companies and legal and economic successors, the codification of the leniency programme and the calculation of fines. A highly controversial issue is the liability of managers and employees. New enforcement approaches currently being discussed or already being tested include exclusion from public tenders, reputational sanctions, whistle-blowing and increased use of negotiated settlements. Private enforcement seems to be making particularly great progress as a result of the EU Antitrust Damages Directive. Overall, the current system in Germany seeks to combine incentives for voluntary compliance with tough sanctions and strict enforcement for those who nevertheless break the law.

What, if anything, is lost when we privatize criminal punishment? The literature responding to this question is already vast and growing. But it would be a mistake to understand it as forming a single, coherent line of inquiry. Writers on this topic have raised concerns of at least three different sorts. Concerns of the first sort are specific to a particular legal order, suggesting that some legal doctrine in that jurisdiction prohibits the privatization of one sort of criminal punishment or another. In the United States, for instance, much of the literature in this vein has focused on specific constitutional and administrative law doctrines, as well as specific legislative obstacles to the privatization of criminal punishment. There have been similar scholarly movements in many other countries, as well.

There is a second literature on privatization that has more universal ambitions. These writings argue that if we privatize criminal punishment, we will necessarily run afoul of many of our broader normative commitments.

Criminal law falls short in cases where an AI functionally commits a crime and there are no individuals who are criminally liable. This chapter explores potential solutions to this problem, with a focus on holding AI directly criminally liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement for a voluntary act. Drawing on analogies to corporate and strict criminal liability, the chapter shows AI punishment cannot be categorically ruled out with quick theoretical arguments. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, is a better solution to AI crime.

Today, the full scope of liberty-infringing pregnancy interventions, including threats of arrest and other coercive conduct that does not necessarily lead to criminal punishment, is unknown. There is no national database, and any state-level record-keeping related to mothers prosecuted under the guise of fetal protection can be difficult to access. Reporters like Nina Martin file “multiple information requests to identify” those arrested under child endangerment laws and child abuse statutes, which now apply to fetuses in a number of states. Vigilant investigation in Alabama revealed dramatic undercounting by “more than three times the number previously identified.” Evidence of arrests and prosecutions gathered by reporters, as well as national and international advocacy organizations such as National Advocates for Pregnant Women and Amnesty International, indicate the numbers of women vulnerable to pregnancy policing are on the rise. New prosecutions of pregnant women for acts of feticide and attempted feticide illustrate this shift; such prosecutions simply did not occur before.

“Free will skepticism” refers to a family of views that all take seriously the possibility that human beings lack the control in action – i.e. the free will – required for an agent to be truly deserving of blame and praise, punishment and reward. Critics fear that adopting this view would have harmful consequences for our interpersonal relationships, society, morality, meaning, and laws. Optimistic free will skeptics, on the other hand, respond by arguing that life without free will and so-called basic desert moral responsibility would not be harmful in these ways, and might even be beneficial. In this chapter, we attempt to provide a brief sketch of the traditional free will debate, define the various positions, and frame the debate over the practical implications of free will skepticism. We focus especially on the implications of free will skepticism for the criminal law and the retributive justification of punishment.