Criminal law is a body of law that defines and grades crimes, and indicates corresponding punishments. These definitions and punishments are found in statutes and in criminal codes within each state, and within each country. Due to the dual system of government that obtains in the US, the federal government has its own criminal code different from that of the various states.
Besides defining and stipulating sanctions, criminal law also explains constitutional limits on the power of government in enforcing criminal laws. It explains general principles of criminal liability and discusses parties to a crime, as well as defenses to criminal responsibility.
In the US, criminal law differs from civil law in that the latter (also referred to as private law) regulates private rights and remedies. Further, while a higher burden is required to prove guilt in criminal cases (beyond a reasonable doubt), liability in civil cases is proven based on a preponderance of the evidence. The penalties for criminal violations range from jail time and any intermediate sanction to death, while those in civil cases are limited to damages and injunctions. Some crimes, such as assault and battery, may be prosecuted in both a criminal court and a civil court. The prosecutor, on behalf of the state or the federal government, brings charges against defendants in criminal cases, while the victim or friends and family as plaintiffs file charges against defendants in civil cases.
Objectives and Characteristics of Criminal Law
The primary purpose of criminal law is to regulate people’s behavior in efforts to curb crime.
In this regard, delineating behavior which is criminal is necessary, and punishing wrong doers is vital. In compliance with the rule of law, also known as the principle of legality, one can be punished only if there is a law that expressly defines conduct as criminal, and pre scribes a fitting punishment for that conduct. Hence, if there is no crime, there can be no punishment. Criminal law attempts to achieve several goals, including deterrence, retribution, incapacitation, rehabilitation, and restitution. The following are characteristics of criminal law:
- It states behavior that people must comply with and those from which people must refrain.
- These stipulations are put into law by appropriate authorities.
- Violations of these stipulations result in punishments.
- Everyone in that jurisdiction is subject to the law.
- Not only the victim is affected by a crime; the community at large becomes a symbolic victim.
- Punishments against perpetrators signify a collective will of the people.
Sources of Criminal Law
The following provide the various sources of law in the US.
Even though the US Constitution focuses on procedural law in the Bill of Rights, it touches on criminal law in that it defines the crime of treason in Article 3.III.
US Criminal Code
The US code embodies federal crimes defined by Congress. These crimes, which include illegal possession of drugs and weapons, as well as crimes perpetrated against the US, its employees, and property, are prosecuted in federal courts.
As the most dominant source of law in a state, state constitutions embody laws that define the parameters of the powers of the various agents that work within the criminal justice system. Further, it incorporates precepts of criminal law.
State Criminal Codes
State defined crimes are largely a heritage of common law. However, where necessary, each state has modified common law definitions of crimes as well as punishments in ways that reflect changing times, as well as the unique circumstances of the state.
Common Law of England
Initially, common law of England comprised unwritten customs and regulations which were interpreted and enforced differently throughout England. In efforts to create some uniformity in the interpretation and enforcement of the law, William the Conqueror requested that the various customs and regulations be codified, and applied in similar fashion throughout England. These written customs and regulations became known as common law. In order to maintain some semblance in the ways cases with similar facts were decided, judges felt compelled to follow precedent. The principle of stare decisis which mandated judges to follow precedent was developed.
When the founding fathers migrated to the US they brought many of these English laws and practices and incorporated them into the legal systems. Today, some common law definitions of crimes, as well as practices, still exist, while others have been modified or stricken out.
Appellate court judges (the US Supreme Court Justices are the highest) make law through judicial rulings. Usually, they follow precedent when cases have similar facts. When there are substantive differences, judges distinguish the cases and provide a rationale for their new decision.
Local and Municipal Ordinances
It is not uncommon to find ordinances that are endemic to a particular municipality. Based on their unique economic and social factors, each jurisdiction defines crimes and infractions, and stipulates punishments for behavior that contravenes aspects of those factors.
Although administrative laws mostly generate civil litigation, violation of some may sometimes give rise to criminal litigation. For example, the administrative agency for Alcohol, Tobacco and Firearms requires that firearms be registered. Possession of an unregistered firearm may lead to criminal prosecution.
Classification of Crimes
Offenses are classified in various ways in order to determine an appropriate punishment. Worthy of note is the fact that classifications based on the type of punishment are not uniform among the states, since each state legislature draws limits on sentences.
Classification Based on Severity of Offense
A more popular way of classifying offenses is based on the degree of seriousness of the offense. Crimes are divided into three categories: felonies, misdemeanors, and infractions. Felonies are the most serious crimes, for which the punishment ranges from one year in prison to death. Death sentences are usually reserved for capital offenses such as treason and aggravated murder. In non death penalty states, a capital offense carries a punishment of life.
Misdemeanors are less serious offenses than felonies and their punishments are usually less than a year in jail. Some states differentiate gross misdemeanors from petty misdemeanors. Gross misdemeanors carry sanctions ranging from six months to one year. Infractions or violations such as traffic violations are the least serious offenses, whose punishments are usually fines.
Felonies are tried in courts of generaljuris diction, while misdemeanors and infractions are tried in courts of limited jurisdiction.
Classification Based on Moral Turpitude
Offenses that are egregious (such as murder) are deemed mala in se or inherently wrong. Others (such as polygamy) are malaprohibita or acts made illegal by laws of a state or country.
Crimes can also be classified based on the subject matter. For instance, battery may be classified as a crime against a person, while treason and sedition may be classified as crimes against the state.
Elements of a Crime
In order to convict a defendant, a prosecutor has to prove the elements of a crime. Sometimes, it may not be necessary to prove all the elements. The elements are (1) the guilty or evil act (actusreus), (2) the guilty mind (mensrea) or the evil intent, (3) concurrence of the guilty act and mind, (4) attendant circum stances, or ”facts surrounding an event” (Black 1990: 127), (5) causation, which may relate to cause in fact, that is, the act that creates the harmful result. Courts look at two types of causation in determining who should be held responsible for cause of death: (1) ”but for” or sine qua non causation, and (2) legal causation, which relates to the proximate cause of a result when some intervening factor affected the chain of events from when an initial act was perpetrated until when death occurred.
Parties to Crimes
Criminal liability may attach for those who commit crimes, as well as those who aid and abet, assist, entice, or encourage criminal acts. The doctrine of complicity explains circumstances under which accomplices assume criminal responsibility based on the extent of their participation in a criminal venture. Common law grouped parties to a crime in four categories: accessories before the fact, principals in the first, principals in the second, and accessories after the fact. Changes have been made over time to this classification. Participants to crimes are classified in modern statutes as (1) principals (those who carry out the crime), (2) accomplices (those who act before and during the commission of the crime, as for instance those who act as look outs) and (3) accessories after the fact (individuals who, knowing fully well that principals and accomplices have com mitted a crime, willingly provide them a safe haven, or provide them with any type of assistance in order to impede their arrest or prosecution). Accomplices and accessories can be punished even when the principal is still at large.
Culpability may also attach vicariously based on the relationship of the offender and a third party. For example, an employer may be held responsible for the crimes of an employee that fall within the scope of employment. A person may also be held liable under the doctrine of strict liability, even when the person did not have the requisite guilty mind, as long as some harm ensued from the person’s act.
Types of Crime
Some offenses are classified as anticipatory/ inchoate or incomplete crimes. These offenses, in order of their seriousness, are attempt, conspiracy, and solicitation. Attempt is distinguished from mere preparation, in that attempt requires that ”substantial steps” are taken towards the commission of a crime. Conspiracy requires an agreement between two or more persons to engage in illegal activities. Solicitation is a request or an inducement to someone to commit a crime.
With regard to other types of crimes, the list is lengthy. Some of the more common are (1) crimes against a person, which include murder, man slaughter, rape, assault, battery, and kidnaping; (2) property offenses, which include larceny, bur glary, embezzlement, forgery, etc.; (3) crimes against public order and morality, which may include but are not limited to vagrancy, disorderly conduct, aggressive panhandling, and prostitution; (4) crimes against the administration of government, which include treason, perjury, obstruction of justice, etc.; and (5) crimes against a person as well as property, for example, robbery.
Defenses to Criminal Liability
There are three broad categories of defenses to criminal liability: (1) alibi, which is raised by defendants who contend that they were somewhere else when the crime was committed; (2) defenses of justification, such as self defense, defense of home and property, defense of others, consent, necessity/choice of evils, and execution of public duty, which may be raised by defendants who accept responsibility for the crime but argue that based on the circumstances, their actions were justified; and (3) defenses of excuse, such as insanity, entrapment, intoxication, age, mistake, syndromes, etc., which may be raised by those who shift blame to something that to them precipitated the commission of the crime. Some of the syndromes that defendants have raised are Vietnam/Gulf War syndrome, premenstrual syndrome, and spousal abuse syndrome. When a syndrome defense is raised, the defendant contends that some abnormality brought about by unpleasant experiences triggered anti social behavior.
Limitations on Criminal Law
Even though many legislative and judicial rulings affect criminal procedure, some of them set limitations on how criminal law can be enforced. Some limitations are (1) void for vagueness and over breadth: laws that are not precise or those that are so broad as to encompass constitution ally protected rights cannot be enforced; (2) ex post facto laws: retroactive laws cannot be enforced if they punish acts which were com mitted before the laws were passed; neither can they increase the punishment nor the gravity of an offense; (3) cruel and unusual punishments such as those that are barbaric or those that are disproportionate to the crimes are forbidden; (4) free speech, which includes expressive conduct, may not be “abridged” except they constitute obscenity, profanity, fighting words, slander, libel, and expressions that may give rise to ”clear and present danger”; and (5) due process and equal protection of the laws may not be denied anyone. Without a valid state interest that has to be articulated, courts will not enforce laws that are discriminatory.
Some Changes in Criminal Law Over Time
Changes over time are quite evident in the sanctions, definitions, and types of crimes. Most felonies at common law carried a death penalty sanction; today, the death penalty is mostly reserved for capital offenses and treason. The penalties for other felonies in recent times typically carry terms of incarceration, while punishments for misdemeanors range from fines to a year in jail in most states. Flogging, which is outlawed, and punishments which are disproportional to the crimes are considered cruel and unusual in contemporary times.
Besides changes in sanctions, definitions of offenses have also changed over time. Two examples are burglary and rape. The definition of burglary used to comprise the breaking and entering of a dwelling during the night with the intent to commit a felony. The current definition of burglary entails breaking, entering, and remaining in any structure at any time of day with the intent to commit a crime. Rape, which was considered to be an unwanted sexual offense by a man to a woman other than his wife, today in many states has a gender neutral definition. The elements of the crime of rape, particularly that of force, have in modern times been revised to include both intrinsic force (normal force) and extrinsic force (more force than normal). While non consent at common law required resistance by the victim, today, simply saying ”no” suffices for non consent.
- Black, H. C. (1990)Black’s Law Dictionary, 6th edn.
- West Publishing, St. Paul, MN. Dix, G. & Shralot, M. M. (1999)Criminal Law, 4th edn. West/Wadsworth Publishing, Belmont,
- Reid, S.T. (2001) Criminal Law, 5th edn. McGraw-Hill, Boston.
- Samaha, J. (2004) Criminal Law, 8th edn. Thompson/Wadsworth Learning, Belmont, CA.
- Time, V. (2002) Criminal Law. In: Kritzer, H. M. (Ed.), Legal Systems of the World, 1. ABC-CLIO, Santa Barbara, CA, pp. 375 81.
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