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1 outline DEVELOPMENT OF CRIMINAL LAW Code of Hammurabi The Magna Carta Common Law SOURCES OF LAW Constitutions Statutes Administrative Rules TYPES OF LAW Criminal Law Criminal vs. Civil Law Substantive Law Procedural Law Case Law TYPES OF CRIME Felonies Misdemeanors Inchoate Offenses FEATURES OF CRIME CRIMINAL RESPONSIBILITY AND CRIMINAL DEFENSE SUMMARY

2 C H A P T E R Criminal Law 4 Objectives After reading this chapter, the student should be able to: 1. Discuss where the criminal law fits into the continuum of social control. THE CRIMINAL LAW PERFORMS MANY FUNCTIONS IN SOCIETY. It details what behaviors are to be punished, as well as dictating just how governments can go about doing the punishing. The criminal law provides support for the strongly held values of citizens, and also, by omission, allows people to engage in acts that many others might find objectionable. 2. Discuss the development and foundations of criminal law. 3. Discuss the role of common law in the modern criminal justice system. 4. Discuss the relationship of common law and precedent. a simple concept. The criminal law is a complex, ever-changing, and highly 5. Discuss the role of the Constitution in the law and its relationship to state constitutions. politicized tool of government. As a form of social control, the criminal law 6. Discuss the role of the Bill of Rights. occupies one end of a continuum. 7. Contrast statutes with administrative rules. Therefore, when we discuss criminal law, we must remember that it is not folkways mores norms laws This continuum ranges from very mild controls, such as the table etiquette and polite manners taught to us by our parents and result in that look from Mom or a literal slap on the wrist, to the law that has the full force of the criminal justice system behind it and can result in incarceration or even death. In a very imperfect way, the continuum of proscribed behaviors is matched by ever-increasing sanctions. One of the principles behind social control, therefore, is proportionality: The more serious the infraction of 8. Discuss the differences between criminal law and civil law. 9. Discuss inchoate offenses. 10. Discuss concurrence and strict liability.

3 108 PART 1 Crime: Problems, Measurement, Theories, and Law Lecture Note There are many ways to control people s behavior. The criminal law is just one option that is at one end of a continuum. Pop the Question What law on the books is a result of powerful people being able to turn their values into law? society s rules and sensibilities, the more severe the sanction. 1 However, as we will see throughout this chapter, one of the main crosscurrents of the criminal justice system is the variation in how similar cases are treated according to money, skin color, culture, gender, and a number of other factors that demonstrate that justice is not always blind. 2 A democratic society has the opportunity to ensure that the criminal law reflects the values of all citizens. This is relatively easy to do when a consensus exists about which behaviors need to be outlawed. Certainly, homicide, rape, embezzlement, and carjacking are behaviors we all wish to be protected from by the criminal law. There are dangerous individuals who, we all agree, are best kept behind bars because of the harm they do. However, there are other behaviors for which there is no consensus and for which the criminal law is constantly in flux depending on which political groups are able to get their values addressed by the legislature and the court. 3 Gambling laws are a good example of how economic and social values vie for primacy in the criminal law. In the not-too-distant past, Las Vegas and Atlantic City were the only places where legalized gambling was available in the United States. Now, many states allow casinos, and, in an in- FOCUS ON ETHICS Changing the Substantive Law Laws are made by elected legislators to reflect the wishes of their constituents. In an ideal situation, communities enjoy a broad consensus as to what behaviors should be considered illegal and what the punishments should be for violating the law. However, citizens do not support a number of laws. These are broken regularly and sometimes enforced selectively. Imagine that you are a state senator and that you have been told by the majority party leader that because of your hard work and your casting of several key votes, she can fix it with the rest of the party for you to have any law you want added to your state s criminal code. What behavior that is now legal in your state would you choose to make against the law? Does your new law address a significant social problem, or does it simply expose the rest of us to your personal aesthetic tastes, your religious sensitivities, or your individual pet peeves? For example, some people think that anyone smoking in public, even outdoors, should be arrested because of the danger of second-hand smoke. On the other hand, what law that is currently on the books would you like to see removed? Why do you think this is a bad law, and what would be the social consequences of legalizing this behavior? For instance, if you are concerned with the right of people to choose to use drugs and decide to repeal the marijuana laws, some unanticipated consequences may accompany this change. More people may use marijuana in unsafe situations, such as while driving. Marijuana may become more easily available to children, and many people could develop health problems from long-term use. Think through the possible ramifications of adding or deleting substantive laws. Even though no one would suggest that our system of laws is perfect as it now stands, we do need to be cautious when we change the law. One of the foundations of a democracy is the confidence of the people in the wisdom and fairness of the law. The criminal justice system cannot maintain the order of society without widespread voluntary social control. Consider how the laws that you would add to the legal code and the laws that you would delete would affect the relationship between citizens and the government.

4 Criminal Law CHAPTER teresting twist of the criminal law that describes the distinctions among jurisdictions, many states are forced to allow casinos on federal lands controlled by American Indians. Citizens in many states have voted to allow lotteries that produce revenue to offset taxes. It is easy to see, then, that all laws are not equally grounded in the values of all the people. Although most of us agree on laws concerning assault and rape, no such agreement exists on laws covering gambling, drug use, abortion, or pornography. All of these issues are settled by the criminal law, and that law changes depending on which groups are best able to get their concerns heard by the legislature. 4 Sometimes the criminal law can appear discriminatory in its creation and execution. For instance, this is the case with the difference between penalties for cocaine sales and crack-cocaine sales. The punishments for selling minor amounts of crack-cocaine can be 10 times those for selling powdered cocaine. Critics of the criminal justice system contend that racism is the reason and that this disparity in punishments has caused a dramatic increase in the numbers of black males in prison. Others argue that as long as the criminal law is clear, offenders can decide to violate it or choose some other way of meeting their needs. If crack-cocaine penalties are too severe, then the offender can desist from drug use or switch to powder cocaine for which the penalties are less severe. Why the dramatic difference in laws for essentially the same drug? 5 As covered in Chapter 3, some critical theories contend that those in power will use the criminal law to maintain and enhance their power. As the crimes of the powerful differ in kind and degree from the crimes of the powerless, we can expect the penalties to be more severe for the latter. In the case of crack-cocaine, its use has been concentrated in minority communities, and the penalties are harsh. According to some critical theories, if crack-cocaine moves into middle-class neighborhoods and schools, the penalties for its use may be relaxed. 6 Lecture Note Point out that the nature of democracy rewards those groups who are able to encourage their supporters to vote. Pop the Question Are the disparities of laws regarding crack-cocaine and powder cocaine a reflection of a subtle racism, or are these substances so different that they pose different threats to society? > The war on drugs is in large part aimed at suppressing the availability of crack cocaine. Courtesy of CORBIS-NY.

5 110 PART 1 Crime: Problems, Measurement, Theories, and Law Development of Criminal Law The history of the development of the criminal law is interesting because the process was episodic, uneven, and political. Societies did not systematically build on the law of previous cultures, but instead chose elements consistent with their own values, religions, and economic structures, and discarded elements that were not. Therefore, our own system is a hodgepodge of other societies attempts to govern conduct through the criminal law. 7 A brief look at some of the previous systems of law provides insights into how our laws came to be structured as they are. Code of Hammurabi An ancient code instituted by Hammurabi, a ruler of Babylonia, dealing with criminal and civil matters. Lecture Note Point out that in earlier times the punishment for minor infractions could be extremely severe. An eye for an eye was a way of making the punishment reflect the seriousness of the crime. Code of Hammurabi In 1901 a stone tablet was discovered that bore the laws of ancient Babylonia as written by its king, Hammurabi. These laws are the earliest known written laws. The 8-meter tablet, chiseled in the Akkadian language, dates to about 1780 B.C.E. and includes laws relating to a wide range of behaviors. The laws followed, literally, the eye for an eye philosophy, an indication that severe penalties have always been part of the history of legal codes. However, Hammurabi used this philosophy as a way of introducing some type of proportionality into the law. The Code of Hammurabi contained over 250 laws that covered a wide range of economic, social, and criminal issues. (For a sample of these laws, see Figure 4.1.) These laws reflect the values of the times. For instance, some of the laws make the penalties for the death or injury of slaves less severe than those for the death and injury of free people. Perhaps the most significant message to be learned from this code has nothing to do with the actual laws which, after all, apply to a society much different from ours but rather, that a code of laws even existed over 3,000 years ago. This tells us that the criminal law has a long and fascinating history. 8 The Code of Hammurabi is just one example of the various codes of law that were > This 7-foot stele depicts Hammurabi receiving his power to administer the law from the sun god Shamash. Carved into the black basalt underneath are Hammurabi s laws. Photo from the Louvre, Paris, France, courtesy of SuperStock, Inc.

6 Criminal Law CHAPTER If the robber is not caught, then shall he who was robbed claim under oath the amount of his loss, then shall the community, on whose ground and territory and in whose domain it was, compensate him for the goods stolen If conspirators meet in the house of a tavern-keeper, and these conspirators are not captured and delivered to the court, the tavern-keeper shall be put to death If a man be taken prisoner in war and there be no sustenance in his house and his wife go to another house and bear children; and if later her husband return and come to his home, then this wife shall return to her husband, but the children follow their father If a man take a wife, and she be seized by disease, if he then desire to take a second wife he shall not put away his wife, who has been attacked by disease, but he shall keep her in the house which he has built and support her so long as she lives. Figure 4.1 A Few Laws from the Code of Hammurabi drawn up over the centuries. Figure 4.2 provides a partial list of historical documents that have influenced the development of modern laws. The Magna Carta A major document that contributed to U.S. law is the Magna Carta. The Magna Carta limited the power of the king and provided for the rights of citizens. King John signed the Magna Carta at Runneymede, England, on June 15, 1215, conceding a number of legal rights to the barons and the people. To finance his foreign wars, King John had taxed abusively. His barons threatened rebellion and coerced the king into committing to rudimentary judicial guarantees, such as freedom of the church, fair taxation, controls over imprisonment (habeas corpus), and the rights of all merchants to come and go freely, except in times of war. The Magna Carta has 61 clauses, the most important of which for our purposes is number 39: No freeman shall be captured or imprisoned... except by lawful judgement of his peers or by the law of the land. This was the first time a king allowed that even he could be compelled to observe a law, with the barons allowed to distrain and distress him in every possible way, just short of a legal right to rebellion. Once sworn to the document, letters were sent to all sheriffs ordering them to read the charter aloud in public. It was the first bill of rights that attempted to levy some kind of controls over the powers of English kings. 9 As the law developed over the centuries, it specified not only what rulers may do, but also what they may not do. The law limited the capricious decision-making powers of kings and dictated that people had certain protections from the government. Law thus became a two-edged sword. On one hand, it delineated a vast array of behaviors that citizens were told not to engage in, and on the other hand, it granted them rights and protections. These dual functions of the law became extremely important in the modern criminal justice system. A major factor in this system is the common law, which was first developed in England and brought to the North American colonies where it was modified to fit the new culture. Common Law Common law is different from statutory law. Instead of being expressly specified by a constitution or a legislature, the common law is based on the past decisions of the judiciary. Sometimes called case law, judiciary law, judge-made law, customary law, or unwritten law, common law is based on the doctrine of precedent. This means that judges look to previous cases with similar circumstances to see how justice was meted out. The idea behind common law is that similar cases should be treated in a similar manner. Over the decades, thousands of cases came to form the foundation of common law. As Lecture Note Explain that although the Magna Carta gave rights to only noblemen, it broke the monopoly of rights held by the king. Eventually, centuries later, rights were extended to everyone. Magna Carta Great Charter. A guarantee of liberties signed by King John of England in 1215 that influenced many modern legal and constitutional principles. habeas corpus A writ issued to bring a party before the court. common law Sometimes called case law, judiciary law, judge-made law, customary law, or unwritten law, common law is based on customs and general principles and is included in case law. Common law may also be used as precedent or for matters not addressed by statute. statutory law The type of law that is enacted by legislatures, as opposed to common law. precedent A prior legal decision used as a basis for deciding a later, similar case.

7 Figure 4.2 Important Dates in Legal History The Code of Hammurabi Babylonian King Hammurabi codifies a relatively sophisticated set of 282 case laws, including provisions for the regulation of commerce, slavery, marriage, theft, and debts. Its guiding principle is lex talionis, or the principle of an eye for any eye, a tooth for a tooth. Draco's Laws Athenian politician Draco compiles the first comprehensive set of laws in Greece. The penalty for many offenses is death, and the code becomes infamous for its severity. Law of the Twelve Tables Roman magistrates create these laws to appease the citizens, who are complaining that the oral laws are unfair. Often modified, the laws are used for almost a thousand years. Domesday Book On the order of William the Conqueror, a general census of England is taken in order to refine taxation. "Domesday" means "doomsday" or "day of judgment." Assize of Clarendon In order to improve criminal law procedures, Henry II issues a number of articles, one of which is the establishment of the grand jury. The English Bill of Rights This predecessor to the U.S. Bill of Rights limits the crown's legal rights and assigns political supremacy to Parliament. It is supplemented in 1701 by the Act of Settlement. Blackstone's Commentaries on the Laws of England English jurist Sir William Blackstone publishes his lectures in a work that clarifies English law. The Constitution of the United States of America In the summer of 1787, 55 delegates meet in Philadelphia to write the law of the U.S. government. The resulting document defines the government's nature and the basic rights of the country's citizens. Marbury v. Madison The Supreme Court establishes the power of judicial review, by which courts may declare statutes unconstitutional. The Fourteenth Amendment Defines national citizenship and guarantees the basic rights of citizens. Harrison Narcotics Act Opium and non-narcotic drugs such as cocaine are restricted. It is replaced in 1970 by the Controlled Substances Act. Twenty-First Amendment Prohibition is repealed. Brown v. Board of Education of Topeka, Kansas The Supreme Court unanimously overrules Plessy v. Ferguson, stating that segregation in the public schools violates the equal protection principles of the Fourteenth Amendment. The Racketeer Influenced and Corrupt Organizations Act (RICO) Congress enacts this statute to combat organized crime. RICO defines racketeering activities and provides extended penalties for crimes committed by criminal organizations B.C.E. c B.C.E. date unknown 621 B.C. E. c. 570 B.C. E B.C.E Ur-Nammu's Code The earliest known written legal code, from the Mesopotamian city of Ur, protects the poor, as well as deals with witchcraft, escaped slaves, and bodily injuries. The Ten Commandments According to religious traditions, Moses receives these laws from God. Many commandments continue in the form of modern laws. Some scholars date the commandments between the 16th and 13th centuries B.C.E. Solon's Laws Solon makes important changes to the Athenian constitution and replaces Draco's laws with more humane codes. Solon's laws become the basis of the Athenian state. The Seventeenth Article Constitution of Japan Crown Prince Shotoku Taishi issues to the ruling class laws based on Confucian concepts, including that of a unified state governed by a single ruler and a virtuous government that practices justice, decorum, and diligence. Revival of Roman Legal Studies Italian legal scholar Irnerius and other teachers lecture on rediscovered portions of Emperor Justinian's Corpus Juris Civilis and found a law school at Bologna which eventually becomes the foremost in Europe. Magna Carta (Great Charter) King John concedes a number of legal rights and liberties to the people under threat of civil war. The charter is altered in 1216, 1217, and The Salem Witch Trials In a Massachusetts Bay Colony town, a group of young women accuses three other women of practicing witchcraft, sparking a legal hysteria. Nineteen people are hanged, and 150 are imprisoned. The American Declaration of Independence On July 4, the Continental Congress announces the separation of the American colonies from Great Britain. The U.S. Bill of Rights The first 10 amendments to the Constitution guarantee individual rights and limit federal and state governments. The Thirteenth Amendment Slavery is abolished. Plessy v. Ferguson The Supreme Court rules that the equal protection clause of the Fourteenth Amendment deals with political, not social equality, thus declaring racial segregation constitutional. Volstead Act Also known as the National Prohibition Act, the Eighteenth Amendment enforces prohibition of alcohol. It was passed by Congress over the veto of President Woodrow Wilson. Marijuana Tax Act Possession of marijuana is restricted to those who pay an excise tax for specific medical and industrial uses. Miranda v. Arizona The Supreme Court holds that individuals in police custody must be informed of their rights concerning statements they make while in custody. Comprehensive Crime Control Act Federal criminal laws are substantially reformed, overhauling the federal sentencing system, permitting pretrial detention of suspects considered dangerous, restricting the legal definition of insanity, requiring mandatory minimum sentences for career criminals, increasing fines for drug offenses, broadening drug forfeiture laws, and establishing a victim compensation program. 112

8 Criminal Law CHAPTER > King John of England signed the Magna Carta in 1215 to appease the barons who demanded rights and guarantees. The document also implied the rights of the Church, towns, and the king s subjects. Courtesy of Corbis/Bettmann. precedents were set, lawyers and judges had to consider those precedents in the administration of cases. Today, four issues guide precedent: 1. Predictability. Predictability provides the concept of precedent with a certain level of order. By being consistent with the reasoning of previous cases and providing an outcome that fits with that reasoning, the common law gains legitimacy among people because they can understand on what basis judgments are determined. 2. Reliability. Participants in the legal system expect the court to follow precedent. Even when there is some dispute about the facts of the case, the court is obliged to consider how previous cases were decided. Reliability means that the court is using precedent as a guiding feature. 3. Efficiency. Participants expect cases to be resolved in a reasonable time. Common law has created an expectation of how long cases should take to resolve. Of course, there will be some extreme exceptions to the time it takes to try a sensational case, but precedent defines when the time is becoming excessive. 4. Equality. Similar cases are expected to be treated in similar fashion. This is the most important function of the concept of precedent. The concept of justice is dependent on the perception that the court treats individuals fairly. To have vast differences in outcome of similar cases violates the concept of equality.10 Courts are generally bound by the decisions of previous courts by this doctrine of precedent. This legal principle is know as stare decisis, whereby the precedent of a previous case become the standard by which subsequent cases are considered.11 Part of the art of the practice of law is the attorney s skill in finding similar cases and convincing the court that the circumstances are so close to the present case that a similar decision should be imposed. The opposing attorney will dispute the similarity of the circumstances and find other similar cases with different outcomes to buttress a given position. Consequently, the law is not as cut-and-dried as sometimes believed. The law is open to interpretation, and Pop the Question Why is the doctrine of precedent so important? Is it reasonable to have your case influenced by a case that was decided years ago? Class Activity Have the class rank the four features that guide precedent. Which is the most important? Are there other desirable features of the criminal law? stare decisis The doctrine under which courts adhere to legal precedent.

9 114 PART 1 Crime: Problems, Measurement, Theories, and Law the legal reasoning, persuasive arguments, and reputation of one s attorney may play an important role in how a case is decided. Common law is important not only for the doctrine of precedent, but also because it has informed the development of other sources of law. As legislatures developed constitutions and statutes, they used the common law as a guide. In most areas, common law has been superceded by more formal and explicit sources of law. It is worth considering these in greater detail to gain a fuller understanding on how the criminal law operates. Sources of Law One of the difficulties in understanding the law is keeping in mind that it is derived from no single source. Consequently, inconsistent principles, overlapping jurisdictions, and unclear nuances often appear in the criminal justice system. Considering the sources of the law can shed some light on this confusion. These sources are constitutions, statutes, and administrative rules. Lecture Note Point out that when laws are enacted, great care goes into determining that they will be consistent with constitutional values. Bill of Rights The first 10 amendments to the U.S. Constitution, which guarantees fundamental rights and privileges to citizens. statute A law enacted by a legislature. penal code A code of laws that deals with crimes and the punishments for them. Pop the Question Why is the federal Constitution more important than the state constitutions? Constitutions In democracies, constitutions play a central and critical role in the development of criminal law. Constitutions express the will of the people. In a representative democracy, such as the United States, the Constitution binds elected legislators, the institutions of society, and the citizens to a system of government and laws. In the United States, the federal Constitution governs the country. Each state also has a constitution that pertains to the citizens and businesses of that state. State constitutions supplement but do not supercede the federal Constitution. This means that states cannot take away freedoms granted by the federal Constitution. Although the U.S. Constitution does not proscribe many behaviors, it sets out some broad values that cannot be abridged by the criminal law. The Constitution specifies how the government is structured and the role to be played by the various branches of government. One of the first issues the framers of the Constitution dealt with almost immediately after the Constitution was completed was specifying how citizens were to be protected from the government. The first 10 amendments to the Constitution, also known as the Bill of Rights, dictate the basic freedoms enjoyed by citizens (see Figure 4.3). Later legislators did not stop there. The Constitution has been amended 27 times. Emendation is a cumbersome process, requiring the ratification of state legislatures, but the important point to remember is that the Constitution is a living and changing document, not an absolute one. Statutes Federal and state legislative bodies have developed the common law into specific statutes that proscribe criminal behavior. These laws are debated and voted on by the legislative bodies and presumably represent the will of the people. For many behaviors, such as rape or homicide, a consensus exists as to what the law should cover. However, there are other crimes, such as drug use or gambling, that many citizens contend should not be against the law. Regardless of personal beliefs, however, all citizens are expected to obey the law or risk entering the criminal justice system. The advantage of statutes over the common law is that statutes are published in penal codes and therefore fit the principles of predictability, reliability, efficiency, and equality better than the doctrine of precedent. Statutes are easier to change than the Constitution, but new laws cannot violate rights given in the Constitution. 12 Consequently, new laws are often challenged on constitutional grounds. Administrative Rules A number of agencies have developed rules consistent with their responsibilities to oversee aspects of commerce and public protection. Health, environment, customs, and parole agencies all have the authority to enact rules that limit the freedoms of individuals operating within their spheres of influence. Sometimes, these administrative rules overlap with criminal statutes or constitutional rights and end up in court. 13 For instance, administrative rules about minority hiring practices or university admission policies have been found to be at

10 Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Figure 4.3 The Bill of Rights Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. 115

11 > The U.S. Constitution is the country s foremost source of laws. All laws must be consistent with the provisions of the Constitution. Courtesy of CORBIS-NY. 116

12 Criminal Law CHAPTER odds with constitutional guarantees. In another example, parolees are subject to a host of conditions that require approval from one s parole officer, such as changing residences, traveling out of state, getting married, or drinking alcohol. These are all rules considered by the parole agency to be necessary to aid the parolee in the transition from incarceration to the free world. Violation of these conditions can result in the parolee returning to prison. Because these issues are administrative rules rather than legal statutes, the parolee is not accorded the full range of constitutional rights, as is the criminal defendant. Class Activity Have the class make a list of administrative rules that have an impact on their lives as students. Types of Law As a form of social control, the law is required to perform many functions. In addition to defining socially unacceptable behaviors, it also regulates the rules of social conflict, dictates how authorities control behavior and maintain public order, and regulates how behavior is punished. Different types of laws accomplish these multiple functions. The main distinction discussed here is the one between criminal law and civil law. Criminal Law What criteria are used to determine that a behavior is so serious that it be made a crime and specified in the criminal law? Many objectionable behaviors are not covered by criminal law. Conversely, the criminal law covers some behaviors that many people believe it should not cover. Ideally, the criminal law is the mechanism of social control used only when other mechanisms (family, church, community) have failed, and is used only on serious transgressions. Three criteria determine what behaviors are made criminal: 1. The enforceability of the law. Laws that cannot be enforced do little good. The prohibition of alcohol in the 1920s showed what happens when the law cannot be enforced. People continued to drink alcohol, but the government received no Pop the Question What law could be passed that would not be enforceable? What law would you not obey? > Prohibition did not stop people from drinking alcohol. Because it was illegal, drinking was considered by many to be romantic and adventurous. In this 1933 photo, four young women drink to celebrate the end of Prohibition. Courtesy of CORBIS-NY.

13 118 PART 1 Crime: Problems, Measurement, Theories, and Law revenue from alcohol sales that could be used to combat the negative effects of drinking. Many critics believe that the war on drugs is another example of laws that cannot be effectively enforced. Even as prison systems are overflowing with those convicted of drug-related crimes, illegal drugs remain ample. 2. The effects of the law. Sometimes the cure is worse than the disease. During Prohibition, the consequences of attempting to enforce alcohol laws had a deleterious impact on society. Although alcohol was illegal, a great demand for it remained, bringing some unintended consequences in the form of organized crime and violence. Additionally, many otherwise law-abiding citizens were drawn into the criminal enterprise of alcohol production, transportation, and sales because of the lucrative alcohol trade. Perhaps even more harmful to society was the impact on the criminal justice system. Widespread corruption of judges and law enforcement officers seriously damaged the faith of citizens in the efficacy and fairness of government officials. 3. The existence of other means to protect society against undesirable behavior. Many people make the argument that even though drug and alcohol use have some unattractive features, the criminal justice system is not the most efficient and effective institution to control this behavior. Instead of attempting to discourage addictive behavior by punishment and deterrence, some experts contend that medical and psychological treatment would be more effective and not cause the harmful side effects of the war on drugs. Instead of using the criminal law as a weapon against drugs, the medical and mental health community could be better funded and expanded to address the problem. The repeal of Prohibition did not eliminate the problems of alcohol, but most would agree that by legalizing it, the United States dealt more effectively with its health and social problems and spared the criminal justice system the temptations of corruption. 14 The criteria for deciding which behaviors should be made criminal are not always heeded by legislators. The making of criminal law is as much a political enterprise as it is a scientific one. Most citizens try to obey the law, but all of us are guilty of choosing to disregard some laws. Think about the last time you purposefully exceeded the legal speed limit. Was it on your way to class today? Because of people like you, the government decided to repeal the once-universal 55-miles-per-hour speed limit on the interstate highway system. The trucking industry and those who traveled routinely broke the speeding laws, and ultimately, the federal and state governments were lobbied for a more realistic speed limit. From a safety perspective, the 55-miles-per-hour limit was useful, but it was ignored by too many citizens and eventually modified. civil law The law that governs private rights as opposed to the law that governs criminal issues. Pop the Question Which is more important to society, the criminal law or the civil law? Criminal versus Civil Law There is an important difference between the criminal law and another type of law called civil law. Both types of law try to control the behavior of people and both can impose sanctions. Also, there is some considerable overlap in the types of behavior they address, such as personal assault or environmental pollution. The important difference between them, however, concerns the identity of the aggrieved party. In civil law, the case is between two individuals. In criminal law, the case concerns the offender and the government. When someone is charged with assault, the dispute is taken away from the victim and the assailant by the court and becomes the property of the government. The victim s role is greatly reduced by the government, which prosecutes the case in the name of the state. 15 This aspect of the criminal law confuses and frustrates many victims who still consider the case as a problem between themselves and the offenders. The court, meanwhile, disposes of the case and inflicts the sentence on the offender without substantial input from the victim or often any restitution or satisfaction. 16 At this point, the victim can invoke the civil law for redress. The victim can sue the assailant for compensation for damages. A private attorney, as opposed to the state prosecutor, represents the victim. The sentence of the court is concerned with monetary damages, not with the prospect of incarceration. Civil law covers contracts, personal

14 REFERENCE How to Read Legal Citations Many students are perplexed by the seemingly complicated system of citations for legal cases. This figure decodes the numbers and abbreviations that go into the making of a legal citation. CASES United States Supreme Court Brown v. Board of Education, 347 U.S. 483, 490 (1954). Brown v. Board of Education 347 U.S name of case vol. # reporter beginning page # exact reference page # year of decision Lower Federal Court Brown v. Board of Education, 98 F. Supp. 797 (D. Kan. 1951). Brown v. Board of Education 98 F. Supp. 797 D. Kan name of case vol. # reporter beginning page # court year of decision Universal or Vendor-Neutral Case Citation as adopted by the Wisconsin State Bar Jones v. Smith, 1996 Wis Jones v. Smith 1996 Wis name of case year of decision court case number paragraph number STATUTES Session Law Civil Rights Act of 1964, P.L , 78 Stat. 241 (1964). Civil Rights Act of 1964 P.L Stat popular case name public law # or chapter vol # book title page # year enacted Code Civil Rights Act of 1964, 42 U.S.C et seq. (1988). Civil Rights Act of U.S.C et. seq popular case name title # or chapter # title of book section # or part # year of compilation continued 119

15 120 PART 1 Crime: Problems, Measurement, Theories, and Law REFERENCE (CONTINUED) REGULATIONS As Promulgated 44 Fed. Reg (May 18, 1979). 44 Fed. Reg May 18, 1979 vol # title of book page # year of publication As Codified 42 C.F.R (1991). 42 C.F.R (1991) title # book title section # year of compilation LAW REVIEW ARTICLES Zygmunt J.B. Plater, Environmental Law as a Mirror of the Future: Civic Values Confronting Market Forces Dynamics in a Time of Counter- Revolution, 23 B.C. Envtl. Aff. L. Rev. 739 (1996). Zygmunt J.B. Plater, Environmental Law as a Mirror of the Future: Civic Values Confronting Market Forces Dynamics in a Time of Counter-Revolution 23 B.C. Envtl. Aff L. Rev. 739 (1996) author & article name vol. # journal name page # year of publication tort law A large area of the law that deals with civil acts, other than breach of contract, that cause harm and injury. Tort law includes libel, slander, assault, trespass, and negligence. double jeopardy The prosecution in the same jurisdiction of a defendant for an offense for which the defendant has already been prosecuted and convicted or acquitted. Also refers to multiple punishments for a single offense. The Fifth Amendment states that no person will be subject for the same offense to be twice put in jeopardy of life or limb. property, maritime law, and commercial law. Tort law, a form of civil law, covers personal wrongs and damage and includes libel, slander, assault, trespass, and negligence. 17 A well-known but misunderstood principle of law known as double jeopardy states that a person cannot be tried for the same crime twice. 18 This concept applies to the criminal law but does not preclude the victim of a crime from suing for private damages after the criminal trial has concluded. It was because of this distinction between the criminal law and civil law that the families of Nicole Brown Simpson and Ronald Goldman were awarded monetary damages from O. J. Simpson after he was acquitted of criminal charges. The standards of proof in a civil trial (preponderance of evidence) are not as stringent as those in a criminal trial (beyond a reasonable doubt), which may explain how two juries can consider the same case and produce such different verdicts. 19 In addition to the distinction between criminal law and civil law, an important difference within the criminal law must be appreciated. This distinction concerns substantive law and procedural law. Substantive Law Substantive law tells us which behaviors have been defined as crime. The thou shall nots of the criminal law, substantive laws are found in the criminal codes of the state

16 Criminal Law CHAPTER 4 121! NEWS FLASH Rodney King and Double Jeopardy The concept of double jeopardy is easily misunderstood. Although basically it refers to the prohibition of a defendant being tried twice for the same crime, the full definition is a bit more complicated. Take, for example, the two trials of the police officers who participated in the 1991 beating of motorist Rodney King. On March 3, 1991, Los Angeles police officers stopped Rodney King s car after a high-speed chase and ordered him to exit the car and lie on the ground. His two passengers,both adult males,complied,but King did not leave the car immediately.king, who had been drinking, resisted arrest, behaving erratically and aggressively. Four Courtesy of CORBIS-NY. officers, Laurence Powell, Timothy Wind, Theodore Briseno, and Stacey Koon, began beating King with their batons, fracturing his skull and causing internal injuries. Unknown to the police, plumbing company manager George Holliday was videotaping the incident from his nearby apartment. The next day he released the tape to the media. On March 7 the Los Angeles County district attorney dismissed the charges against King. On March 15 the four officers were charged with assault. The case went to trial in a state court, and on April 29, 1992, the officers were cleared of assault. Riots ensued and continued across Los Angeles for several days. In the end, 55 people were killed, about 2,000 were injured, and over 7,000 were arrested. The National Guard was eventually sent in to help restore order. By February 1993 the four officers were on trial again, this time on federal charges of violating King s constitutional rights. Officers Timothy Wind and Theodore Briseno were acquitted, but the jury found Stacey Koon and Laurence Powell guilty. Koon and Powell received 30-month prison terms. Although, at first glance, the two trials appear to violate the double jeopardy prohibition, the trials had enough differences to steer clear of double jeopardy (see table). First Trial Second Trial Jurisdiction State Federal Offense Assault Violation of constitutional rights Type of suit Criminal Criminal The primary issue involves the concept of dual sovereignty. In U.S. v. Lanza (1922), the Supreme Court decided that dual sovereignty permits successive state and federal prosecutions for the same crime, stating that, an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. Therefore, the first trial was conducted by the State of California and the second by the federal government, each concerning a different offense. Because both cases were tried in criminal courts, the officers were eligible for incarceration in both trials. Sources: BBC, Flashback: Rodney King and the LA Riots, July 10, 2002, The Rodney King Beating Trials, Jurist, U.S. v. Lanza, 260 U.S. 377 (1922). and federal governments and are the result of generations of political and social development. Homicide, rape, assault, money laundering, and all the other behaviors that are against the law are proscribed in the substantive law. The substantive law also sets the parameters on the punishment for each type of crime. Once an offender has been convicted, the judge does not have unlimited discretion in imposing sentence. Few offenses are eligible for the death penalty. In the case of minor offenses, the judge can choose a short period of incarceration or decide that society is better served by placing the offender on probation. substantive law The law that defines rights and proscribes certain actions (crimes). procedural law Laws that prescribe the methods for their enforcement and use. Lecture Note Point out that the principle of double jeopardy is limited to the criminal court. One can be tried again in the civil court or in federal court.

17 122 PART 1 Crime: Problems, Measurement, Theories, and Law CROSSCURRENTS Liable, but Not Guilty Perhaps one of the most interesting demonstrations of the difference between criminal and civil law was connected to the O. J. Simpson murder case. In June 1994 Simpson was charged with murdering his former wife, Nicole Brown Simpson, and her friend, Ronald Goldman, at her Brentwood, California, home. O. J. Simpson was tried for the murders in 1995 and acquitted that October. A year later the families of Nicole Brown Simpson and Ronald Goldman sued O. J. Simpson for the victims wrongful deaths and won an $8.5 million judgment against him. How could O. J. Simpson be acquitted of murder, yet liable for wrongful death? The major difference between civil trials and criminal trials is the threshold of guilt. To find a defendant guilty in a criminal trial, a jury must determine whether there is proof of guilt beyond a reasonable doubt. In Simpson s criminal trial, then, doubt was all that was needed to acquit, and Simpson s attorneys were successful in introducing this doubt. However, a finding of liability in a civil trial requires a much lower threshold. A jury needs only a preponderance of evidence not proof beyond a reasonable doubt to find a defendant liable for a given action. The evidence that failed to bring a guilty finding in the criminal trial was enough for a liability finding in the civil trial. Another important difference is the number of jurors who must agree on a verdict. The jurors in Simpson s civil trial were unanimous, but only 9 of 12 jurors are required to agree that a defendant is responsible. In a criminal trial, unanimity is required. Damages are not awarded in criminal trials. The plaintiff in criminal trials is the state, not the aggrieved party. Therefore, civil trials can be a way for those who believe they have been harmed by a defendant s action to recoup damages. In August 2002 David Westerfield was found guilty of the kidnapping and murder of his seven-year-old neighbor, Danielle van Dam, and sentenced to death. In May 2003 Danielle s parents settled a wrongful death suit against Westerfield, currently on California s death row. Westerfield, who liquidated his assets to pay for his defense, did not agree to the settlement and paid no money to the van Dams. Instead, Westerfield s automotive and homeowners insurance companies paid the van Dams an amount the family s attorney said ranged from $400,000 to $1 million. QUESTIONS 1. Do situations such as the one in the Simpson case with a defendant being found liable, but not guilty make a mockery of the justice system, or is it merely a curiosity and a necessary part of the justice system? 2. In the case of the van Dams, should Westerfield s insurance company have had to pay the van Dams? Sources: CNN, Simpson Civil Trial Special Section, Harriet Ryan, Van Dams Settle Civil Suit Against Daughter s Killer, Court TV.com, May 15, 2003, Pop the Question Which is more important to the police officer on the beat, substantive or procedural law? Procedural Law Whereas the substantive law specifies what individuals are allowed to do, the procedural law specifies how the criminal justice system is allowed to deal with those who break the law (see Figure 4.4). The procedural law sets the rules by which the police and courts process cases. Based to a large degree on the rights granted to accused individuals by the Constitution, procedural law protects citizens from any arbitrary decision making of criminal justice professionals by dictating how cases are handled. 20 Procedural law specifies rules of arrest, search and seizure, rights to attorneys, and attorney/client privilege, as well as other rules of the game. Procedural laws change with the creation of new case precedents, new laws, or new court opinions. For instance, in the wake of the terrorist attacks on New York and Washington, D.C., on September 11, 2001, the federal government decided that attorney/client privilege is not absolute and that the police may

18 Criminal Law CHAPTER PROCEDURAL LAW HOW The procedural law specifies how the criminal justice system is allowed to deal with crimes and sets the rules by which police and courts process cases. Procedural law protects citizens from arbitrary decision making of criminal justice professionals by dictating how cases are handled. Procedural law specifies rules of arrest, search and seizure, rights to attorneys, and attorney/client privilege. The Difference Between Procedural Law and Substantive Law SUBSTANTIVE LAW WHAT Substantive law tells us what behaviors are defined as crime. The substantive laws are found in the criminal codes of the state and federal governments and are the result of generations of political and social development. The substantive law also sets the parameters on the punishment for each type of crime. Figure 4.4 The Difference Between Procedural Law and Substantive Law monitor conversations to prevent future terrorist acts. Whether this evidence could be used against an alleged terrorist in court is not clear at this time. This question will have to be decided by the courts. Case Law Case law comes from judicial decisions and requires judges to consider how previous cases have dealt with similar issues. Case law enables the courts to ensure against a vast disparity in judicial outcomes and that a degree of uniformity exists across courts. Like common law, case law is dependent on the principle of precedent to ensure that cases are in line with how past cases have been decided and also serves as a guide for future cases. However, the past is not destiny. That means that case law evolves as new decisions are applied to new circumstances in each case. The legal reasoning of case law changes as appellate courts review the decisions of trial courts and note the reasons for their decisions that consequently guide future cases. The issue of jurisdiction also heavily influences case law. Cases decided in one judicial circuit might not be as influential in other circuits. Although the decisions of the U.S. Supreme Court are important to every court, a decision of a court in Seattle may be less influential on a court in New York than in another court in Seattle. 21 case law See common law. Lecture Note Explain that decisions reached in U.S. circuit courts are less influential to other circuit courts than decisions from the U.S. Supreme Court. Types of Crime Many different types of crime cause a variety of problems to society and injuries to people. The criminal law has categorized crime according to a number of different features. For instance, the difference in the seriousness of crimes is captured by the felony versus misdemeanor distinction. Also, crimes are differentiated by who commits the behavior, as in the distinction of juvenile status offenses (underage drinking, for instance). Also, some statutes recognize criminal history in classifications for first-time offenders, career criminals, or sex offenders. Felonies Felonies are considered the most serious types of crime. They include murder, rape, assault, larceny, arson, and a host of other offenses at the state and federal level (see Tables 4.1 and 4.2). The felony distinction is important because many agencies and corporations will preclude employment to those convicted of this type of crime. Felons are also not Lecture Note Felonies carry serious punishments and are often plea bargained down to misdemeanors.

19 124 PART 1 Crime: Problems, Measurement, Theories, and Law Table 4.1 Elements of Crimes Against Persons Charge Criminal Act Criminal Intent Circumstances Causation (or Extenuation) Premeditated first-degree Unlawful killing of a person Specific intent Factual and legal murder preceded by premeditation causation and deliberation Second-degree murder Unlawful killing of a person Specific intent (without Factual and not amounting to first-degree premeditation and proximate causation murder deliberation) Felony murder Unlawful killing of a person Intent to commit Victim died in Victim s death is during the commission of a felony conjunction with causally related to felony commission of felony the committed felony or flight Voluntary manslaughter Unlawful killing of a person Intent to kill Extenuation: Reasonable Factual and provocation and sudden proximate causation passion or self-defense Involuntary manslaughter Unlawful killing of a person Occurs as a result of the Reckless or gross Factual and commission of a negligence proximate causation misdemeanor or a negligent act Battery Unlawful, harmful, or General intent Factual and offensive touching of proximate causation a person Attempted battery assault Unsuccessful attempt Specific intent to batter to batter Threatened battery assault Making a person reasonably Specific intent to make a Factual and fear imminent battery person fear imminent battery proximate causation Rape Sexual penetration without General intent consent and with use or threat of force Kidnapping Seizing, detention, and hiding Specific intent False imprisonment Unlawful confinement Specific intent and/or hiding of a person Source: Compiled and adapted from Frank A. Schubert, Criminal Law (Los Angeles: Roxbury, 2004). Used by permission. allowed to run for public office, own a firearm, or enter certain professions, such as law enforcement or medicine. Also, the penalties for felonies are often more severe than for other types of crimes. Incarceration for felonies is usually more than one year, and life imprisonment or capital punishment are specified for some types of felonies. Misdemeanors Misdemeanors are less serious crimes than felonies and are subject to less severe penalties. Usually, the maximum incarceration for a misdemeanor is up to one year

20 Criminal Law CHAPTER Table 4.2 Elements of Property Crime Charge Criminal Act Criminal Intent Circumstances Causation (or Extenuation) Common larceny Unlawful taking (caption) Specific intent to Personal property and carrying away permanently deprive of another possessor of personal property Embezzlement Entrustment, conversion Specific intent to defraud Larceny by false Accused person has Intent to defraud, knowledge Victim relied on pretenses misrepresented that material facts were misrepresented (theft by deceit) material facts misrepresented facts to transfer title Robbery Larceny by means of force Specific intent to Taken from the victim or intimidation permanently deprive or from the victim s possessor of property presence Extortion Offender intimidates Specific intent to Some jurisdictions require victim by threatening harm permanently deprive the offender to obtain to victim s person, family, possessor of property the demanded property reputation, or property from the victim Forgery Making, altering, falsifying, Specific intent to defraud signing, or reproducing writing Burglary Use of force that facilitates Specific intent during A structure (originally a entry; unconsented entry trespass to commit a dwelling house or (trespass) felony within the structure outbuildings) of another at night Arson Burning or charring General intent: accused A protected dwelling or Factual and person intends to commit structure proximate the criminal act causation Trespass to land/premises Entry/remaining on land or General intent Entry/remaining is not premises of another person without consent but after receiving written or oral notice not to enter/remain Source: Compiled and adapted from Frank A. Schubert, Criminal Law (Los Angeles: Roxbury, 2004). Used by permission. in jail. Misdemeanants spend their time in county jails or stockades as opposed to the state prison system. More often than not, misdemeanor offenders will be placed on probation, fined, or required to do some type of community service rather than be incarcerated. The distinction between felonies and misdemeanors can be confusing. A crime could be categorized as either, depending on the circumstances. Additionally, the prosecutor has wide discretion in deciding which type of crime to charge the offender with and may, as a result of plea bargaining, reduce the indictment from felony to misdemeanor. In some ways, this distinction gives the prosecutor immense power to coerce plea bargains from a defendant who is afraid of the vast consequence of being convicted as a felon as opposed to a misdemeanant.

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