Laws on Crime

This lecture note on criminal law is intended to be the most basic, rudimentary overview of the subject, in plain and simple language. First off, we will define the legal requirement of what a crime is, then present a table classifying the major crimes, and then try to explain the origins of criminal law.

A crime is a violation of law. An understanding of what the law says is a crime requires an understanding of what law is. It is important to know that "law" is not a tangible object of the real world, like a set of books or something you can touch. Law is a social invention, or convention, that societies need to survive. Law is all around us, enveloping us like a cocoon. The citizen who fills out a tax form or is dealing with criminal charges is only having to deal with legislative behavior; i.e., written codes or statutes. Legislation, codes, statutes, and courts are only the tip of the iceberg. Think of society as one big "house" and of law as the "house rules."

The world of law is a world of authoritative rules; that is, they have some authority behind them. Who's authority? The authority of those who claim and deserve the special privilege of carrying out the physical or psychological force necessary to make those rules, interpret those rules, and carry them out. Here's a couple definitions of law by a famous anthropologist and famous sociologist:

"A law or legal norm exists if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting." E. Adamson Hoebel (1954). The Law of Primitive Man. NY: Antheneum, p. 28.

"Law, legal rules, and order exist if they are externally guaranteed by the probability of coercion (physical or psychological) to bring about conformity or avenge violation, and is applied by a staff of people holding themselves specially ready for that purpose." Max Weber (in Max Rheinstein, 1954, Max Weber on Law in Economy and Society. Cambridge: Harvard Univ. Press), p. 5.

A crime is an intentional violation of the law committed without defense or excuse and penalized by the state. However, this condensed legal definition doesn't do justice to all the characteristics necessary to make some behavior a crime. Technically and ideally, a crime has not been committed unless all seven (7) of the following characteristics are present:

1. Harm -- There are external consequences that injure somebody else physically or psychologically. Thinking about committing a crime or being angry enough to commit a crime is not a crime. Victimless crimes that injure only the offender are still crimes if it can be shown that there are consequences, like harm to families, friends, or the moral fabric of society.

2. Legality -- Things less serious than crimes are called "wrongs" and although wrongs may be frowned upon, they do not consist of criminal behavior. People do a lot of bad things in this world, and just because it stimulates "there ought to be a law" response doesn't necessarily mean criminal law. Instead, crimes are forbidden things for which the evil-doing has been specified in advance. There can be no ex post facto law, which goes back retroactively and converts a wrong into a crime.

3. Actus reus -- (Guilty act) A crime always requires action, or people doing things. Inaction when the law calls for action is also a crime. For example, if parents do not provide adequate necessities for their children, this behavior of omission is just as much a crime as someone who does something actively. When the act is due to infancy, intoxication, insanity, or other bodily disease, we say that the crime has an excuse, and hold the offender less responsible.

4. Mens rea -- (Guilty mind) A crime always has certain mental aspects, such as intent and purpose, but also recklessness and negligence. These are all mental states, short of motive, that the law recognizes as worthy of blame. The law realizes that clear cut, well planned motives don't happen all that often, whether the behavior is directed toward good or evil. When the mental state involves duress, self-defense, entrapment, or necessity, we say that the crime has a justification, and hold the offender less responsible.

5. Causation -- A crime must lead directly or indirectly to the harm without too much delay. Actual cause is direct and proximate cause is indirect. Logic must be used to determine the fairness of how far back in time the setting in motion of a chain of events resulted in foreseeable harm.

6. Concurrence -- The criminal conduct (actus reus) and criminal intent (mens rea) must occur together at about the same time or within a year and a day of when the intent was formed. This element refers mostly to the circumstances surrounding the criminal behavior, such as whether motive was accompanied by opportunity and means.

7. Punishment -- This is just the definition of law as having some authority behind it, but it clearly requires some sort of penal sanction, whether retribution, restitution, compensation, regulation, or rehabilitation.

The major crimes are those that injure society, and there is some consensus about the degree of wrong done to society. Some things are just evil in themselves (mala in se), others are evil because it is in the public interest to prohibit them (mala prohibita), others are evil because of being old, outdated, or inflexible (mala antiqua), others because of being too new (mala nova), and still others because they are confusing and ambiguous (mala ambigua). In each case, the wrong is done to society, and any harm done to the victim is just incidental. There are about twelve (12) different categories of crime in criminal law, and most typologies of this kind are simply analytical devices, but at a basic level, they shed light on whatever evils in society the law is protecting us from. The following table illustrates:

CATEGORY	SOCIAL WRONG OR EVIL
Violent Crime	Killing, force, violence, threats of violence, dangerousness
Property Crime	Taking, depriving, trespass, converting, misleading, concealing
Crimes Against Morality	Fornication, seduction, illicit behavior
Crimes Against Public Order	Disorderliness, threats to public safety and peace
Crime Against Government	Rebellion, treason, sedition, perjury, corruption
Crime By Government	Genocide, torture, brutality, civil rights violations
Hate Crime	Bias, prejudice, discrimination
Organized Crime	Illegal good and services, too highly disciplined
White-Collar Crime	Deception, fixing, gouging, nonviolent illicit financial gain
Occupational Crime	Opportunism, misuse of professional capacities
Victimless Crime	Addiction, too strongly demanded, illegal exchange
High Technology Crime	Stealth, gleefulness, too sophisticated

The job of the legislature, or law-making body, is to translate these evils and wrongs into statutory language (the language of criminal statutes, codes, or ordinances). They are free to draw upon other sources, but their main inspiration comes from what are called the common law elements of a crime. These elements (enumerated below) provide the guidelines for police training and what evidence the prosecutor needs to convict. The common law (explained below) is an age-old consensus on what judges have always thought defined a crime. It is more the history of judicial decision-making than law of the land (an erroneous assumption). The process of translating the common law into statutory law is called codification, and the following table depicts some common law definitions and elements:

CRIME	DEFINITION	ELEMENTS
Murder	unlawful killing of a human being with malice aforethought	1. unlawful killing 2. of human being 3. malice aforethought
Rape	the act of unlawful carnal knowledge, forcibly and against will	1. unlawful 2. carnal knowledge 3. force or fear 4. without consent or against will
Robbery	felonious taking of money or goods with intent to steal from another, in their presence, forcibly and against will	1. trespass 2. taking 3. carrying away 4. property of another 5. with intent to steal 6. in presence 7. violence or intimidation
Assault	unlawful offer or attempted injury of another with ability to create a fear of imminent peril	1. attempt or offer 2. force or violence 3. apparent ability 4. immediate injury
Battery	unlawful touching of another in person or by some object	1. unlawful 2. application of force 3. to person of another
Kidnapping	forcibly detaining or restraining another against their will or moving them to another place	1. detaining another 2. force or without consent 3. without legal cause 4. moving another place
Arson	willful and malicious burning of a dwelling or curtilage (outbuilding)	1. burning 2. dwelling or curtilage 3. belong or occupied by another 4. maliciousness
Burglary	breaking and entering a dwelling of another at nighttime with intent to commit a felony therein	1. breaking or entering 2. dwelling 3. of another 4. nighttime 5. intent to commit felony

In American society, criminal law is usually divided into two subtypes: substantive and procedural law. Substantive law is the penal law, the codes, statutes, and ordinances that specify a punishment and spell out what people legally may and may not do. The common law definitions of offenses (such as robbery and burglary) make up the substantive law. Procedural law is also called adjective or remedial law, and governs the way suspects are put under suspicion, arrested, searched, interrogated, tried, and punished. Procedural law is the same as due process of law.

The first laws were created about 5,000 years ago, and ruled over property and marriage relations. Around 2200 B.C. the Code of hammurabi, like the Mosaic Law which came later, tended to focus on trade, family, and work-related injuries. Anglo-Saxon law (feudalism, which basically dealt with property relations) ruled England until the Norman Conquest in 1066 A.D., when the Normans (French) invented the institution of the eyre, a system of traveling judges who represented the king in local courts. It was the decisions of these judges in eyre that formed the body of legal precedent that became known as the common law. Because the common law was built case-by-case, it is also known as case law. In the year 1215, the Magna Carta placed limits on royal power, and in 1639, the colony of Connecticut created the first written constitution. Constitutional law (federal, then state) is the highest form of law, and deals with the relationship between individuals and their governments.

Constitutional law in the U.S. is what governs criminal procedural law, specifically the first ten amendments, known as the Bill of Rights, passed in 1791. The Fourteenth Amendment, passed in 1868, incorporates the first ten, making them binding on the states, but they have also been selectively, or individually incorporated by landmark Supreme Court decisions since 1937, a process known as selective incorporation. The study of these landmark Supreme Court decisions makes up the great bulk of criminal justice scholarship.

4th Amendment Jurisprudence (legal wisdom) -- The Supreme Court has consistently held to a doctrine of "reasonableness" in 4th Amendment jurisprudence. Precisely what reasonableness means remains vague after 100 years since the amendment was ratified. Since this amendment deals with searches and seizures (arrest), the most common interpretation is that police must always have a warrant before any search or seizure, and warrants can only be issued upon grounds of probable cause. Probable cause is but one of several standards of proof in criminal law, this being displayed in the following table:

STANDARDS OF PROOF IN CRIMINAL JUSTICE
Mere suspicion	Reasonable suspicion	Probable cause	Preponderance of evidence	Clear and convincing evidence	Beyond a reasonable doubt	Absolute certainty
gut feeling	more than gut feeling, ability to articulate reasons	proof that would convince a reasonably intelligent person	proof that makes an intelligent person knowing	proof that approaches certainty	proof that produces moral certainty, no nagging moral doubts	without any doubt whatsoever

Police cannot even stop anyone with mere suspicion. Stop (and frisk) requires reasonable suspicion. To search or arrest requires probable cause. Preponderance is the main standard in civil law, and in criminal law is used in cases of inevitable discovery and waivers of counsel. Clear and convincing is the main standard in federal courts, and in criminal law is used to judge insanity. Beyond a reasonable doubt is what is needed to find someone guilty in a criminal trial. No criminal justice activity requires absolute certainty.

Exceptions to the warrant rule in 4th Amendment jurisprudence exist. To date, police can conduct warrantless searches when evidence is close enough to be destroyed (Chimel v. California 1969), possibly hidden in the passenger compartment and trunks of cars (California v. Acevedo 1991), within plain view (Harris v. U.S. 1968), revealed through a protective sweep search of closets and adjoining rooms (Maryland v. Buie 1990), obtainable under consent to search even without telling people they have a right to withhold consent (Schenckloth v. Bustamonte 1973). In general, police can justify warrantless search under the exigent circumstances rule (any emergency, unforeseen circumstances).

The 4th Amendment also has some teeth in it to protect against police abuse. This is known as the exclusionary rule, first establishing in Weeks v. U.S. (1914), but applied to the states in 1961 with the case of Mapp v. Ohio. Simply put, if evidence is illegally obtained by the police, it cannot be legally admitted at trial. There are several exceptions to the exclusionary rule, however, that are not mentioned here.

5th Amendment Jurisprudence -- The Supreme Court has less consistently held onto the doctrines of "free and voluntary" and "knowingly and intelligently" with 5th Amendment jurisprudence. These doctrines reflect the law's reliance upon free will and the Constitution's purpose as a contract between each individual and the state. Because the 5th Amendment deals with confessions and other forms of self-incrimination, the legal doctrines in place are, by necessity, subjective standards, which require balancing what is in the mind of the individual with what is on the mind of the state. American police are quite good at extracting confessions; they are successful at it some 60% of the time; so the law requires balancing how "tough a nut" the suspect is to crack with how "coercive and hostile" the police interrogation is.

Specific guarantees include the protection against double jeopardy (Benton v. Maryland 1969), self-incrimination (Miranda v. Arizona 1966), the right to "plead the fifth" (Malloy v. Hogan 1964), and the right not to take the witness stand (Griffin v. California 1965). The right to a grand jury has not yet been specifically incorporated for the states.

6th Amendment Jurisprudence -- There are no less than six (6) different rights guaranteed by this Amendment: notification, assistance of counsel, speedy trial, impartial jury, confrontation, and compulsory process; and the Supreme Court has fairly consistently held to the notion of a "balancing test" for these rights. A balancing test (also called a two-prong, three-prong, or four-prong test) attempts to spell out, objectively, the criteria to be used in weighing the needs of the individual with the needs of the state.

Notification and assistance of counsel are pre-trial rights established in Twining v. New Jersey (1908) and Gideon v. Wainwright (1963) respectively, but Sixth Amendment rights can trace their origins to at least the Magna Carta, if not earlier. Fairness and orderliness are the objective criteria to be considered when balancing pre-trial rights. For speedy trial, the landmark case is Barker v. Wingo (1972) where the reason and impact of delay must be considered. Delay would be acceptable for a critical piece of evidence like the search for a missing witness, but that must also be weighed against any possible prejudicial effect of delay upon the defendant. For impartial jury, the landmark case is Duncan v. Louisiana (1968) which has to do with how cross-sectional, or representative, the jury pool is when selecting candidates for jury duty. The issue of venue (or place of trial) is a good example, and requires consideration of how great or small any local publicity is. For confrontation, the landmark case is Pointer v. Texas (1965) which, in essence, means the defendant has a right to suggest questions his or her lawyer should ask witnesses, but this is balanced by a consideration of how disruptive this would be. Compulsory process is the power of subpoena to call witnesses on one's behalf, and the landmark case is Washington v. Texas (1967). This is generally an unchallenged right, but there are important privilege exceptions for some witnesses.

8th Amendment Jurisprudence -- This Amendment prohibits excessive bail and cruel and unusual punishment. The Supreme Court has loosely held onto the standards of "wanton and freakish" and "evolving decency" with landmark cases including Wilkerson v. Utah (1878) which regarded any old punishments, such as beheading and hanging, as too old-fashioned for society, and Weems v. U.S. (1910) which reversed this historical viewpoint and created the notions of proportionality and evolving decency. Another standard, "civilized society" was created in 1958 with the case of Trop v. Dulles. In 1972, the death penalty was declared unconstitutional in Furman v. Georgia, and in 1976, it was declared constitutional once again in Gregg v. Georgia. Current concern is with how the death penalty is arrived at, and carried out, and the so-called Gregg factors require juries to consider both mitigating and aggravating circumstances before issuing the death penalty. This area of law is one of the few areas where the Supreme Court regards the "will of the people" as important, as obtained thru public opinion polls.

PRINTED RESOURCES
Alderman, E. & C. Kennedy (1991). In Our Defense: The Bill of Rights in Action. NY: Morrow.
Bedau, Hugo (1982). The Death Penalty in America. NY: Oxford Univ. Pres.
Bergman, P. & S. Berman-Barrett (2000). The Criminal Law Handbook. Berkeley, CA: NOLO.
Fletcher, G. (1998). Basic Concepts of Criminal Law. NY: Oxford Univ. Press.
Friedman, L. (1977). Law and Society. Englewood Cliffs, NJ: Prentice Hall.
Garcia, A. (1992). The Sixth Amendment in Modern American Jurisprudence. Westport: Greenwood.
Helmholtz, R. (1998). The Privilege against Self Incrimination. NY: LA Lawyer Books.
Klotter, J. (2001). Criminal Law. Cincinnati: Anderson.
Lewis, A. (1989). Gideon's Trumpet. NY: Vintage.
Webb, G. (1981). Plain Language Law: Criminal Wrongs. Atlanta: Professional Impressions.