Week 4: The Criminal Law in the U.S.
 The work of the Criminal Justice system
is fundamentally determined by the
criminal law
 The criminal law is a political
construction
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Created in legal codes (law on the books)
Applied in legal decisions (law in action)
A. What does criminal law involve?
1. Note different types of legal controls:
– Criminal Law (wrongful/harmful acts against
society or community)
– Civil Law (harmful acts between individuals)
• Also known as “Torts”
– Administrative law (other harmful individualcommunity relations)
• Also known as “Regulatory law”
A. What criminal law involves? (cont)
• Division into two Components:
1) Substantive Criminal Law:
– Specifies the offenses (what counts as a
“crime”)
– Specifies the punishments (sanctions)
2) Procedural Criminal Law:
– Specifies how CJ process operates in accusing,
prosecuting, and punishing offenders.
– Specifies the procedures and criteria for the process
– Note the issue of jurisdiction for CJ process
A. What criminal law involves? (cont)
• Sources of the Criminal?
1. Constitutional Law
– Found in fundamental or charter documents
– Mainly sets limits on criminal law (procedural)
2. Statutory Law
– Main criminal law located in the Criminal Codes
– Legislative enactments
– Both substantive and procedural law
3. Case Law
– From judicial decisions (mainly appellate)
– Mainly procedural
A. What criminal law involves? (cont)
•
U.S. = Not a single CJ system but 51+
independent systems -- 50 states + federal
– Legal jurisdictions are substantially separate
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Why so many different legal systems?
– The U.S. was created as a “confederation of
states” (with a weak central government)
– Shift over time toward greater “federalization”
and unification
– But basic concept of state sovereignty remains
and periodically reasserted
B. How did the criminal law develop?
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Note: it evolved (not formally created)
Historical roots of U.S. Criminal Law
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Ancient legal systems: Babylonian, Hebrew, Roman
English Common Law as the immediate ancestor
“Common Law” – what is that?
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Derived from English law and political history
Unification of English law in middle ages by cooptation
Law enforced by Circuit Justices who “made law” &
“applied law” by incorporating traditional customs
Development of common law through Judicial decisions
(principle of stare decisis or “reliance on precedent”)
• Adopted by all U.S. colonies
B. How did criminal law develop? (cont)
• Development of Criminal Law in
American Colonies
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Adoption of English common law tradition/procedures
Retention of States’ sovereignty & legal systems
Limited authority/jurisdiction granted to federal government
• Greater codification of law
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Conversion of custom into written statutory law
But continued reliance on stare decisis (reliance on judicial
precedents)
C. How is criminal law created and
changed?
1. Constitutional Amendments
2. Legislative changes to criminal codes
– may add, modify, repeal statutes
– overhaul or replace the codes?
3. Judicial decisions
– That interpret, apply, or reinterpret the
law in specific cases
– That create precedents for later cases
D. Basic concepts of U.S. criminal law?
•
Legal definition of a Crime: “a willful and harmful act
that violates a criminal law and is condemned &
punished by the state.”
• Components of the legal definition:
– Explicit law (specifying wrongful behavior)
– Harmful act (actus reus)
– Criminal intent (mens rea)
– Also “jurisdiction” (authority of state to enforce law)
• Note different levels of criminal violations
– Felonies (major crimes)
– Misdemeanors (minor crimes)
– Infractions (petty offenses)
D. Basic legal concepts (continued)
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Note that criminal defenses generally focus on
some aspect of the legal definition of a Crime
• Defenses often focus on lack of criminal intent
a) Knowledge (awareness)
b) Volition (willfulness)
(Criminal action is “knowing and willful”)
• Legal Justifications  lack of free will or choice
due to external circumstances (e.g., self-defense)
• Legal Excuses  lack of knowledge or self-control
due to internal factors (e.g., intoxication)
D. Basic legal concepts (continued)
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Two defenses of special note (they involve
special procedures):
– Immaturity  a special juvenile justice system
– Insanity  a special verdict
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20th century evolution in these two defenses:
– Invention of Juvenile court in 1899
– Expansion of Insanity defense in 20th century
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Recent evolution in these two defenses?
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Reversals and reductions in both
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The Insanity Defense as special defense:
– Basic Issue = lack of mens rea due to mental
impairment or incapacity to act rationally
• Elements of mens rea = cognition and
volition
– Can lead to Special Verdicts:
• Not-Guilty-by-Reason-of-Insanity (NGRI)
• Guilty-but-Mentally-Ill (GBMI)
– Formal Rules for deciding legal insanity
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M’Naghten Rule (cognition)
Irresistible Impulse Rule (volition)
American Law Institute Rule (both/either)
– Recent trends?