Criminal Law
foundations
What behavior deserves criminal
punishment?
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Universal question
Variation
Decisions based on historical norms & morals
As complex as human behavior
Expanding rapidly
Two types
• Core Felonies
traditional – The Ten Commandments
relatively few in number
proportionately few by arrest
stable definitions
Characteristics not shared by ….
All those other crimes
• Arise from the government’s police power
• Driven by public policy
• Concerned with:
safety
economics
health &
morals
The source
• Derived from English models
• All flows from the King
• Blackstone’s Commentaries on the Laws of
England (1769)
• Ironically, after we threw off British rule, we
accepted its understanding of police power
Police power
• Government’s multi-pronged ability to carry
out and enforce the criminal law
• Works through the executive – enforcement
legislative – origination
judicial - interpretation
Torts
• Noncriminal wrongs – because we can’t
criminalize every improper action
• Criminal law is the “last resort”
• Too harsh and expensive
• Still originate from, are enforced by and
administered/interpreted by the government
• Some actions fall under both
How do torts differ?
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Brought by individuals
Seek $ damages
Little aura of condemnation
Differing standards:
Beyond a reasonable doubt vs.
preponderance of the evidence
• Sometimes insurance might help
• But punitive damages blur the line
Other types
• Mala in se – intentional actions which are just
wrong (murder, rape, theft)
• Mala prohibita – actions the legislature has
decreed to be punishable, with no intent
necessary (improper parking, housing too
many cats)
Sorted by seriousness, or possible
punishment
• Felonies – offenses punishable by death or
imprisonment exceeding one year
Term served in prison
• Misdemeanors – offenses punishable by fines
or imprisonment of less than 365 days
Served in county jail
Sources of laws
• State Codes – derived from elected state
legislatures, administered in local courts
replaced or codified the common law case by
case decisions of judges
• Municipal ordinances – created by Cities and
villages through elected officers
Dogs at large, tall weeds, impounded vehicles
Cities’ powers limited
The Feds
• United States Criminal Code – passed by
Congress
• Often implemented by Administrative
Agencies
• Growing influence
The Model Penal Code
• After WWII, a distinguished group of judges,
professors, and lawyers, the American Law
Institute came together to clarify, simplify,
streamline, and standardize deficient state
codes
• Very influential though never adopted in toto
Informal/Discretionary Law Making
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Laws are violated everyday by the thousands
Few lead to charges
Police decide who is charged initially
Prosecutors decide which proceed
Also plea bargaining exerts a heavy influence
after charges are brought – judicial economy
Lots of variety
• 52 separate codes
• Federalism (and the Tenth Amendment) allow
states, to some extent, to go their own way
• The USCC deals with crimes of a nation-wide
nature – terrorism, the drug trade, weapons,
etc.
Mass Imprisonment
• A disturbing trend
• The US leads the world
• Just 5% of the population, but 25% of
prisoners
• We imprison more and keep them longer
• This has probably reduced crime, but has it
been worth the cost?
Costs
• Huge impact on poor communities
• Convicts return to communities often worse
off
• Families are devastated
• Disenfranchisement – The New Jim Crow?
• Communities crippled
Overarching guidelines
• To work for all of us, in the long run, these
principles must be considered
Proportionality – sentences should reflect the
seriousness of the crime
Parsimony – term of confinement should not
exceed the time necessary to reach goals
Citizenship – don’t take away basic rights
Social Justice – prisons should enhance society’s
goals, not impair
Four Criteria of Criminal Punishment
• Must:
inflict pain/unpleasant consequences
accompany crime’s definition
be administered intentionally, and
by the state
Theories of Punishment
• Retribution
offenders must “pay” for their crime by
experiencing pain/discomfort
echoes principles of the Bible – “an eye for
an eye”
also, offenders profit from their adversity
Criticism of Retribution
• Assumes free will, though many others don’t
• What type or term of punishment equals a
crime?
• Should vengeance be a proper goal of a
civilized society?
• Since retribution assumes culpability
(intention to harm), what about all the crimes
that don’t require it?
Prevention
• The goal should be preventing crime, not
getting even.
• Instead, we should punish to:
1) Deter – they won’t do it again
2) Incapacitate – can’t get do more harm
locked-up
3) Rehabilitation – while in prison, they
can improve themselves so there will be no
need to transgress again
On the other hand
• Few criminals are rational enough to be
deterred.
• Life is too chaotic or unpredictable.
• Too many bad things happen in prison for
incapacitation to be effective.
• Rehab won’t work unless we fix their milieu.
• It’s inhumane to hurt someone to better
them.
Which does the evidence support?
• Large numbers of studies have been
conducted,
• The results are complex and confusing.
• Both approaches have empirical evidence to
support them.
• However, since the findings are so difficult to
explain, few seem to care.