Chapter 03 OER

This section examines the fundamental principles of criminal law. It describes the functions of formal criminal law (what criminal law does and what it cannot do), how crimes differ from civil and moral wrongs, and various classification schemes used in discussing criminal law. This section also examines the sources of substantive and procedural criminal law (where we look to find our criminal law), the limitations that the constitution places on both substantive criminal law and procedural criminal law, and the important concept of the rule of law in American jurisprudence (legal theory). After reading this section, students will be able to:

• Distinguish between a criminal wrong, a civil wrong, and a moral wrong.

• Identify the many ways in which criminal law is classified.

• Recognize the many sources of substantive and procedural criminal law.

• Identify the limitations that the federal constitution and state constitutions place on creating substantive laws and enforcing those laws.

• Recognize the importance of rule of law in American jurisprudence and understand the importance of judicial review in achieving rule of law.

1. What does formal law do well? What does formal law not do so well?

2. Should we be able to impose sanctions for violations of moral wrongs?

3. Consider the constitutional requirement of separate but equal branches of government. Why do you think the drafters of the constitution intended each of the branches of government to be a check on each other? How does that “play out” when deciding what laws should be made and what laws should be enforced? What current issues are you aware of that highlight the importance of three separate but equal branches of government?

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4. How does direct democracy (in the form of ballot measures and propositions) influence substantive criminal law (creating crimes and punishing crimes). What, if any, are the advantages of using direct democracy to create and punish crime? What, if any, are the disadvantages?

5. Consider state-wide decriminalization of marijuana possession and use across the nation and the federal statute banning possession and use of marijuana. How should this federal/state conflict be resolved? Does your opinion change if the behavior is one that you favor or disfavor?

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Law is a formal means of social control. Society uses laws (rules designed to control citizen’s behaviors) so that these behaviors will conform to societal norms, cultures, mores, traditions, and expectations. Because courts must interpret and enforce these rules, laws differ from many other forms of social control. Both formal and informal social control have the capacity to change behavior. Informal social control, such as social media (including Facebook, Instagram, and Twitter) has a tremendous impact on what people wear, how they think, how they speak, what people value, and perhaps how they vote. Social media’s impact on human behavior cannot be overstated, but because these informal controls are largely unenforceable through the courts as they are not considered the law.

Laws and legal rules promote social control by resolving basic value conflicts, settling individual disputes, and making rules that even our rulers must follow. Kerper (1979) recognized the advantages of law in fostering social control and identified four major limitations of the law. First, she noted, the law often cannot gain community support without support of other social institutions.1  (Consider, for example, the United States Supreme Court (Court) case of Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954), which declared racially segregated schools unconstitutional. The decision was largely unpopular in the southern states, and many had decided to not follow the Court’s holding. Ultimately, the Court had to call in the National Guard to enforce its decision requiring schools to be integrated.) Second, even with community support, the law cannot compel certain types of conduct contrary to human nature. Third, the law’s resolution of disputes is dependent upon a complicated and expensive fact-finding process. Finally, the law changes slowly.2

Lippman (2015) also noted that the law does not always achieve its purposes of social control, dispute resolution, and social change, but rather can harm society. He refers to this as the “dysfunctions of law.”

“Law does not always protect individuals and result in beneficial social progress. Law can be used to repress individuals and limit their rights. The respect that is accorded to the legal system can mask the dysfunctional role of the law. Dysfunctional means that the law is promoting inequality or serving the interests of a small number of individuals rather than promoting the welfare of society or is impeding the enjoyment of human rights.”3

1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.

2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 11). West Publishing Company.

3. Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications.

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Similarly, Lawrence Friedman has identified several dysfunctions of law: legal actions may be used to harass individuals or to gain revenge rather than redress a legal wrong; the law may reflect biases and prejudices or reflect the interest of powerful economic interests; the law may be used by totalitarian regimes as an instrument of repression; the law can be too rigid because it is based on a clear set of rules that don’t always fit neatly (for example, Friedman notes that the rules of self-defense do not apply in situations in which battered women use force to repel consistent abuse because of the law’s requirement that the threat be immediate); the law may be slow to change because of its reliance on precedent (he also notes that judges are also concerned about maintaining respect for the law and hesitate to introduce change that society is not ready to accept); that the law denies equal access to justice because of inability to pay for legal services; that courts are reluctant to second-guess the decisions of political decision-makers, particularly in times of war and crisis; that reliance on law and courts can discourage democratic political activism because Individuals and groups, when they look to courts to decide issues, divert energy from lobbying the legislature and from building political coalitions for elections; and finally, that law may impede social change because it may limit the ability of individuals to use the law to vindicate their rights and liberties.4

4. Lippman, M. R. (2015). Law and society (pp. 25). Thousand Oaks, CA : SAGE Publications.

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This chapter is about people committing crimes—engaging in behavior that violates the criminal law—and how society responds to these criminal behaviors. Crimes are only one type of wrong. People can also violate civil law or commit a moral wrong and not be guilty of any crime whatsoever. So, what is the difference between a civil wrong, a criminal wrong, and a moral wrong?

Civil Wrongs

A civil wrong is a private wrong, and the injured party’s remedy is to sue the party who caused the wrong/injury for general damages (money). The plaintiff (the injured party) sues or brings a civil suit (files an action in court) against the defendant (the party that caused the harm). Plaintiffs can be individuals, businesses, classes of individuals (in a class action suit), or government entities. Defendants in civil actions can also be individuals, businesses, multinational corporations, governments, or state agencies.

Civil law covers many types of civil actions or suits including: torts (personal injury claims), contracts, property or real estate disputes, family law (including divorces, adoptions, and child custody matters), intellectual property claims (including copyright, trademark, and patent claims), and trusts and estate laws (which covers wills and probate).

The primary purpose of a civil suit is to financially compensate the injured party. The plaintiff brings the suit in his or her own name, for example, Sam Smith versus Joe Jones. The amount of damages is theoretically related to the amount of harm done by the defendant to the plaintiff. Sometimes, when the jury finds there is particularly egregious harm, it will decide to punish the defendant by awarding a monetary award called punitive damages in addition to general damages. Plaintiffs may also bring civil suits called injunctive relief to stop or “enjoin” the defendant from continuing to act in a certain manner. Codes of the civil procedure set forth the rules to follow when suing the party who allegedly caused some type of private harm. These codes govern all the various types of civil actions.

In a civil trial, the plaintiff has the burden of producing evidence that the defendant caused the injury and the harm. To meet this burden, the plaintiff will call witnesses to testify and introduce physical evidence. In a civil case, the plaintiff must convince or persuade the jury that it is more likely than not that the defendant caused the harm. This level of certainty or persuasion is known as preponderance of the evidence. Another feature in a civil suit is that the defendant can cross-sue the plaintiff, claiming that the plaintiff is actually responsible for the harm.

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Criminal Wrongs

Criminal wrongs differ from civil or moral wrongs. Criminal wrongs are behaviors that harm society as a whole rather than one individual or entity specifically. When people violate the criminal law there are generally sanctions that include incarceration and fines. A crime is an act, or a failure to act, that violates society’s rules. The government, on behalf of society, is the plaintiff. A criminal wrong can be committed in many ways by individuals, groups, or businesses against individuals, businesses, governments or with no particular victim.

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Criminal Defendant Victim Examples

Individual Self or with no particular victim Gambling or drug use

Individual Other individual(s) Assault, battery, theft

Individual Business or government Trespass, welfare fraud

Group of individuals Individual(s) Conspiracy to commit murder

Group of individuals Government or no particular victim Riot, rout, disorderly conduct

Business entity Individuals Fraud

Business entity Government or no particular victim Fraud, pollution, tax evasion

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Criminal laws reflect a society’s moral and ethical beliefs. They govern how society, through its government agents, holds criminal wrongdoers accountable for their actions. Sanctions or remedies such as incarceration, fines, restitution, community service, and restorative justice program are used to express societal condemnation of the criminal’s behavior. Government attorneys prosecute, or file charges against, criminal defendants on behalf of society, not necessarily to remedy the harm suffered by any particular victim. The title of a criminal prosecution reflects this: “State of California v. Jones,”, “The Commonwealth v. Jones,”, or “People v. Jones.”

In a criminal jury trial (a trial in which a group of people selected from the community decides whether the defendant is guilty of the crime charged) or a bench trial (a trial in which the judge decides whether the defendant is guilty or not) the prosecutor carries the burden of producing evidence that will convince the jury or judge beyond any reasonable doubt that the criminal defendant committed a violation of law that harmed society. To meet this burden, the prosecutor will call upon witnesses to testify and may also

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL

SANCHEZ

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