Introduction to Criminal Justice

Section 3.1: Sources of Criminal Law

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

Clearing Up Some Confusion

The term criminal law can be confusing.

This is because some sources use it in a very general way to describe the entire spectrum of laws dealing with the criminal justice system;

others use it as a shorthand way of referring to what is also known as the substantive criminal law.

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How We Will Approach It

We will follow the latter approach by using the heading “criminal law” to refer to the substantive criminal law, which is the part of the law that describes what acts are prohibited and what punishments are associated with those acts.

Also included are legal defenses (such as the insanity defense) that apply in criminal cases.

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Felonies and Misdemeanors

This distinction depend largely on the seriousness of the offense and the type of punishment associated with the offense.

Things like petty thefts, simple assault, disorderly conduct, and public drunkenness are relatively nonserious crimes classified as misdemeanors.

Misdemeanors are usually only punishable by fine and imprisonment in a local jail for a period less than a year.

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Felonies

Felonies are serious crimes (e.g., rape, murder, burglary, kidnapping) where the punishment can be death or a long period (at least a year) of incarceration in a state-run prison.

Note that this distinction depends on the sentence; some convicts go to prison for less than a year because of early release programs such as “good time” and parole.

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Illegal v. Evil

There is also a distinction between types of criminal law based upon the inherent evil of the act.

If the act is "wrong in itself," it is considered a mala in se offense.

If an act is not necessarily evil and is only considered criminal because it is prohibited by the government, it is considered a mala prohibita offense.

Most so-called "victimless crimes" are mala prohibita offenses.

Because people's views vary so widely as to the inherent wrongness of an act, there is no absolute standard for classification.

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Visible Crime

Criminal acts that are highly visible to the public are often referred to as visible crime, ordinary crime, or street crime.

The overt nature of such crimes makes notice by police more likely, and thus prosecution more likely.

Murder is a common example: Most murders come to the attention of the police, and prosecution is more likely than for most other offenses.

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Occupational Crimes

Occupational crimes are less obvious.

These are crimes that a particular job provides the criminal opportunity for.

The most common example is embezzlement.

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Organized Crime

Crimes committed by groups with a discernable organization structure are classified as organized crime.

Organized crime is considered especially heinous because groups can cause more criminal damage, and the groups make for more difficult investigations and prosecutions.

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Cybercrime

A large swath of criminal offenses involving computers and related technologies are collectively known as cybercrime.

Cybercrime involves disparate acts such as distributing child pornography, sending out mass emails in an attempt to obtain identifying information (phishing), distributing viruses designed to damage computer systems, hacking into business computers to steal money, and so forth.

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Hate Crimes

Crimes that are motivated by bias toward a particular race, religion, ethnicity, or sexuality are known as hate crimes.

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Civil Law

At civil law, a wrong done to another person is called a tort.

When a harmed individual (the plaintiff) wins a tort case in civil court, they may also win a money award referred to as damages.

In other words, torts are private wrongs.

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Criminal Law Theory

A criminal prosecution operates under a different legal theory.

A crime, the theory holds, may harm the individual, but it also harms all of society.

Since the people are represented by the state, all criminal prosecutions are brought forward in the name of the state.

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Who Brings Criminal Charges?

What the “state” calls itself can vary from state to state; some prosecutions are done in the name of the “people”, and some are done in the name of the “commonwealth.”

Regardless of how the case is named, a prosecutor working for the government on behalf of society brings it forward.

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Criminal and Civil Interaction

It is important to note that the criminal system and the civil system sometimes interact.

A person can be found guilty of a crime in criminal court, and found liable for a tort for the exact same behavior.

In addition, individuals that have suffered losses due to criminal actions can sometimes use the civil courts to recoup their losses.

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A Matter of Statute

While the United States is a common law country, most criminal laws are a matter of statutes today.

An essential difference between a state criminal statute and a federal criminal statute is that federal laws will usually contain a jurisdictional element.

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Federal Crimes

Because of the constitutional limits placed on the authority of Congress to make criminal laws, federal criminal statutes must be tailored to a particular power delegated to Congress, such as the power to regulate interstate commerce.

Most criminal laws exist on the state level because of this limitation.

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Overlapping Jurisdiction

When a particular act is criminal on both the state and federal level, there is overlapping jurisdiction in the case.

As a matter of constitutional law, the person could be prosecuted at both the state and federal levels.

In practice, this rarely happens.

In a few high-profile cases, federal prosecutors have taken up a case when the public widely perceived that justice was not done in the state court.

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The Common Law

The term common law can be disturbingly vague for the student.

That is because different sources use it in several different ways with subtle differences in meaning.

The best way to get a grasp on the term’s meaning is to understand a little of the history of the American legal system.

Common law, which some sources refer to as “judge-made” law, first appeared when judges decided cases based on the legal customs of medieval England at the time.

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An Oral Tradition

It may be hard for us to imagine today, but in the early days of English common law, the law was a matter of oral tradition.

That is, the definitions of crimes and associated punishments were not written down in a way that gave them binding authority.

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Reporters

By the end of the medieval period, some of these cases were recorded in written form.

Over a period, imported judicial decisions became recorded on a regular basis and collected into books called reporters.

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Blackstone’s Commentaries

The English-speaking world is forever indebted to Sir William Blackstone, an English legal scholar, for collecting much of the common law tradition of England and committing it to paper in an organized way.

His four-volume set, Commentaries on the Laws of England, was taken to the colonies by the founding fathers.

The founding fathers incorporated the common law of England into the laws of the Colonies, and ultimately into the laws of the United States.

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The Modern Link to Common Law

In modern America, most crimes are defined by statute.

These statutory definitions use ideas and terms that come from the common law tradition.

When judges take on the task of interpreting a statute, they still use common law principles for guidance.

The definitions of many crimes, such as murder and arson, have not deviated much from their common law origin.

Other crimes, such as rape, have seen sweeping definitional changes.

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The Doctrine of Precedent

One of the primary characteristics of the common law tradition is the importance of precedent.

Known by the legal Latin phrase stare decisis, the doctrine of precedence means that once a court makes a decision on a particular matter, they are bound to rule the same way in future cases that have the same legal issue.

This is important because a consistent ruling in identical factual situations means that everyone gets the same treatment by the courts.

The doctrine of stare decisis ensures equal treatment under the law.

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Constitutions When the founding fathers signed the Constitution, they all agreed that it would be the supreme law of the land; the Framers stated this profoundly important agreement in Article VI.

After the landmark case of Marbury v. Madison (1803), the Supreme Court has had the power to strike down any law or any government action that violates constitutional principles.

This precedent means that any law made by the Congress of the United States or the legislative assembly of any state that does not meet constitutional standards, is subject to nullification by the Supreme Court of the United States.

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State Constitutions

Every state adopted this idea of constitutional supremacy when creating their constitution.

All state laws are subject to review by the high courts of those states.

If a state law or government practice (e.g., by the police, courts, or corrections) violates the constitutional law of that state, then it will be struck down by that state’s high court.

Local laws are subject to similar scrutiny.

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Statutes

Statutes are written laws passed by legislative assemblies.

Modern criminal laws tend to be a matter of statutory law.

In other words, most states and the federal government have moved away from the common-law definitions of crimes and established their own versions through the legislative process.

Thus, most of the criminal law today is made by state legislatures, with the federal criminal law being made by Congress.

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Codification

Legislative assemblies tend to consider legislation as it is presented, not in subject order.

This chronological ordering makes finding the law concerning a particular matter very difficult.

To simplify finding the law, almost all statutes are organized by subject in a set of books called a code.

The body of statutes that comprises the criminal law is often referred to as the criminal code, or less commonly as the penal code.

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Administrative Law

The clear distinction between the executive, legislative, and judicial branches of government becomes blurry when U.S. governmental agencies and commissions are considered.

These types of bureaucratic organizations can be referred to as semi-legislative and semi- judicial in character.

These organizations have the power to make rules that have the force of law, the power to investigate violations of those laws, and the power to impose sanctions on those deemed to be in violation.

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Who Makes these “Laws?”

Examples of such agencies are the Federal Trade Commission (FTC), the Internal Revenue Service (IRS), and the Environmental Protection Agency (EPA).

When these agencies make rules that have the force of law, the rules are collectively referred to as administrative law.

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Case Law

When the appellate courts decide a legal issue, the doctrine of precedence means that future cases must follow that decision.

This means that the holding in an appellate court case has the force of law: Such laws are often referred to as case law.

The entire criminal justice community depends on the appellate courts, especially the Supreme Court, to evaluate and clarify both statutory laws and government practices against the requirements of the Constitution.

These legal rules are all set down in court cases.

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Introduction to Criminal Justice

Section 3.2: Substantive Criminal Law

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

Defining Criminal Law

The criminal law in its broadest sense encompasses both the substantive criminal law and criminal procedure.

In a more limited sense, the term criminal law is used to denote the substantive criminal law, and criminal procedure is considered another category of law.

Most college criminal justice programs organize classes this way.

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Substantive Criminal Law

Recall that the substantive law defines criminal acts that the legislature wishes to prohibit, and specifies penalties for those that commit the prohibited acts.

For example, murder is a substantive law because it prohibits the killing of another human being without justification.

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No Crime Without Law

It is fundamental to the American way of life that there can be no crime without law. This concept defines the idea of the Rule of Law.

The rule of law is the principle that the law should govern a nation, not an individual.

The importance of the rule of law in America stems from the colonial experience with the English monarchy.

It follows that, in America, no one is above the law.

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Constitutional Limits

Unlike the governments of other countries, the legislative assemblies of the United States do not have unlimited power.

The power of Congress to enact criminal laws is circumscribed by the U.S. Constitution.

These limits apply to state legislatures as well.

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Bills of Attainder and Ex Post Facto Laws

A bill of attainder is an enactment by a legislature that declares a person (or a group of people) guilty of a crime and subject to punishment for committing that crime without the benefit of a trial.

An ex post facto law is a law that makes an act done before the legislature enacted the law criminal and punishes that act.

Both of these types of laws are strictly prohibited by the U.S. Constitution.

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Fair Notice and Vagueness

The due process clauses of the Fifth and Fourteenth Amendments mandate that the criminal law afford fair notice.

The idea of fair notice is that people must be able to determine exactly what is prohibited by the law, and so vague and ambiguous laws are prohibited.

If a law is determined to be unclear by the Supreme Court, it will be struck down and declared void for vagueness.

Such laws would allow for arbitrary and discriminatory enforcement if allowed to stand.

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The First Amendment

The First Amendment to the United States Constitution guarantees all Americans the “freedom of expression.”

Among these “expressions” are the freedom of religion and the freedom of speech.

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The First Amendment and Criminal Law

Any criminal law passed by the legislature that infringes on these rights would not withstand constitutional scrutiny.

There are, however, some exceptions.

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Clear and Present Danger

When the health and safety of the public are at issue, the government can curtail the freedom of speech.

One of the most commonly cited limiting principles is what has been called the clear and present danger test.

This test, established by the Supreme Court in Schenck v. United States (1919), prohibits inherently dangerous speech, such as falsely shouting “fire!” in a crowded theater.

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Fighting Words

Another prohibited type of speech has been referred to as fighting words.

This means that the First Amendment does not protect speech calculated to incite a violent reaction.

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Other Unprotected Speech

Other types of unprotected speech include hate speech, profanity, libelous utterances, and obscenity.

These latter types of speech are very difficult to regulate by law because they are very hard to define and place limits on.

The current trend has been to protect more speech that would have once been considered obscene or profane.

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Freedom of Religion

The freedom to worship as one sees fit is also enshrined in the Constitution.

Appellate courts will strike down statutes that are designed to restrict this freedom of religion.

The high court has protected door-to-door solicitations by religious groups and even ritualistic animal sacrifices.

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Limits on Religious Freedom

The Court, however, has not upheld all claims based on the free exercise of religion.

Statutes criminalizing such things as snake handling, polygamy, and the use of hallucinogenic drugs have all been upheld.

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The Freedom of Assembly

The First Amendment protects the right of the people to assemble publicly, but it is not absolute.

The courts have upheld restrictions on the time, place, and manner of public assemblies, so long as those restrictions were deemed reasonable.

The reasonableness of such restrictions usually hinges on a compelling state interest.

The freedom of assembly does not protect conduct that jeopardizes the public health and safety.

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The Second Amendment

The constitutionally guaranteed “right to keep and bear arms” in the Second Amendment is by no means absolute, has been the source of much litigation and political debate in recent years.

The Supreme Court has established that the second Amendment confers a right to the carrying of a firearm for self-defense, and that right is applicable via the Fourteenth Amendment to the states.

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Restrictions on the Second Amendment

Typical restrictions include background checks and waiting periods.

Some jurisdictions highly regulate the concealing, carrying, and purchase of firearms, and many limit the type of firearms that can be purchased.

Many criminal laws have enhanced penalties when they are committed with firearms.

Most gun laws and concealed carry laws vary widely from jurisdiction to jurisdiction.

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Eighth Amendment

The Eighth Amendment to the United States Constitution prohibits the imposition of Cruel and Unusual Punishments.

Both the terms cruel and unusual do not mean what they mean in everyday usage; they are both legal terms of art.

The Supreme Court has incorporated the doctrine of proportionality into the Eighth Amendment.

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Doctrine of Proportionality

Proportionality means that the punishment should fit the crime, or at least should not be grossly disproportionate to the offense.

The idea of proportionality has appeared in cases that considered the grading of offenses, the validity of lengthy prison sentences, and whether the imposition of the death penalty is constitutional.

The legal controversies of “three strikes laws” and the death penalty will be discussed at greater length later in the course.

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The Right to Privacy

Most American’s view the right to privacy as a fundamental human right.

It is shocking, then, to find that the U.S. Constitution never expressly mentions a right to privacy.

The Supreme Court agrees that such a right is fundamental to due process, and has established the right as being inferred from several other guaranteed rights.

Among these are the right of free association, the prohibition against quartering soldiers in private homes, and the prohibition against unreasonable searches and seizures.

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The Right to Privacy and Criminal Law

The right to privacy has been used to protect many controversial practices that were (at least at the time) socially unacceptable to large groups of people.

For example, early courts decided that laws prohibiting single people from purchasing contraceptives were unconstitutional based on privacy rights arguments.

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Case Law

The right to an abortion established in Roe v. Wade (1973) hinged primarily on a privacy rights argument.

More recently, in Lawrence v. Texas (2003), the court ruled that laws prohibiting private homosexual sexual activity were unconstitutional, and in the Lawrence case, privacy rights were the deciding factor.

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Introduction to Criminal Justice

Section 3.3: Elements of Crimes

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

The Importance of Elements of Crimes

The legal definitions of all crimes contain certain elements.

If the government cannot prove the existence of these elements, it cannot obtain a conviction in a court of law.

Other elements are not part of all crimes, but are only found in crimes that prohibit a particular harm.

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Distinguishes Between Offenses

Often, a difference in one particular element of a crime can distinguish it from another related offense, or a particular degree of the same offense.

At common law, for example, manslaughter was distinguished from murder by the mental element of malice aforethought.

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The Actus Reus

The First Amendment permits people to say pretty much whatever they want.

What you think and say (within limits) is protected. It is what you do—your behaviors—that the criminal law seeks to regulate.

Lawyers use the legal Latin phrase actus reus to describe this element of a crime.

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“Act” is a verb!

It is commonly translated into English as the guilty act.

The term act can be a bit confusing.

Most people tend to think of the term act as an action verb—it is something that people do.

The criminal law often seeks to punish people for things that they did not do.

When the law commands people to take a particular action and they do not take the commanded action, it is known as an omission.

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Threats and Attempts

Threatening to act or attempting an act can also be the actus reus element of an offense.

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Possession

In addition to acts and omissions, possession of something can be a criminal offense.

The possession of certain weapons, illicit drugs, burglary tools, and so forth are all guilty acts as far as the criminal law is concerned.

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Types of Possession

Actual possession is the legal idea that most closely coincides with the everyday use of the term.

Actual possession refers to a person having physical control or custody of an object.

In addition to actual possession, there is the idea of constructive possession.

Constructive possession is the legal idea that the person had knowledge of the object, as well as the ability to exercise control over it.

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Criminal Intent

A fundamental principle of law is that to be convicted of a crime, there must be a guilty act (the “actus reus”) AND a culpable mental state (the “mens rea” – which means guilty mind).

Therefore: Criminal liability = Actus Reus (Act) + Mens Rea (Intent).

Recall that culpability means blameworthiness.

In other words, there are literally hundreds of legal terms that describe mental states that are worthy of blame.

The most common is intent.

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The Model Penal Code

The Model Penal Code boils all of these different terms into four basic culpable mental states:

1. PURPOSELY 2. KNOWINGLY 3. RECKLESSLY 4. NEGLIGENTLY

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Purposely

According to the Model Penal Code, a person acts purposely when “it is his conscious objective to engage in conduct of that nature….”

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Knowingly

A person acts knowingly if “he is aware that it is practically certain that his conduct will cause such a result.”

In other words, the prohibited result was not the actor’s purpose, but he knew it would happen.

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Recklessly

A person acts recklessly if “he consciously disregards a substantial and unjustifiable risk.”

Further, “The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law- abiding person would observe in the actor’s situation.”

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Negligently

A person acts negligently when “he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.”

The idea is that a reasonably carefully person would have seen the danger, but the actor did not.

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Strict Liability

At times, the legislature will purposely exclude the mens rea element from a criminal offense.

This leaves only the guilty act to define the crime.

Crimes with no culpable mental state are known as strict liability offenses.

Most of the time, such crimes are mere violations such as speeding.

An officer does not have to give evidence that you were speeding purposely, just that you were speeding.

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Strict Liability and Seriousness

If violations such as this had a mental element, it would put an undue burden on law enforcement and the lower courts.

There are a few instances where serious felony crimes are strict liability, such as the statutory rape laws of many states.

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Concurrence

For an act to be a crime, the act must be brought on by the criminal intent.

In most cases, concurrence is obvious and does not enter into the legal arguments.

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Concurrence Example

An individual who breaks into a cabin in the woods to escape the deadly cold outside.

After entering, the person decides to steal the owner’s property.

This would not be a burglary (at common law) since burglary requires a breaking and entering with the intent to commit a felony therein.

Upon entry, the intent was to escape the cold, not to steal.

Thus, there was no concurrence between the guilty mind and the guilty act.

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Criminal Harm and Causation

In criminal law, causation refers to the relationship between a person’s behavior and a negative outcome.

Some crimes, such as murder, require a prohibited outcome.

There is no murder if no one has died (although there may be an attempt).

In crimes that require such a prohibited harm, the actus reus must have caused that harm.

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Introduction to Criminal Justice

Section 3.4: Legal Defenses

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

The Role of Defenses in Court

To successfully obtain a conviction, the prosecutor must prove all of the elements of the crime beyond a reasonable doubt in criminal court.

This is not the end of it in some cases.

It must also be shown (if the issue is raised) that the actus reus and the mens rea were present, but also that the defendant committed the act without justification or excuse.

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Types of Legal Defenses

Both justifications and excuses are types of legal defenses.

If a legal defense is successful, it will either mitigate or eliminate guilt.

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Justifications

A justification consists of a permissible reason for committing an act that would otherwise be a crime.

For example, it would be a crime to shoot a man dead on the street.

If, however, the man was a mugger and had the shooter at knifepoint, then the justification of self-defense could be raised.

A justification means that an act would normally be wrong, but under the circumstances it was the right thing to do.

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Excuse

When a criminal defendant uses an excuse, this means that the act was not the right thing to do, but society should nevertheless hold the actor less culpable because of some extenuating circumstance.

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Insanity

The term insanity under the law can be extremely misleading.

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Not All Mental Diseases Qualify

At law, merely having a mental disease or mental defect is not adequate to mitigate guilt.

It must be remembered that Jeffery Dahmer was determined to be legally sane, even though everyone who knows the details of his horrible acts knows that he was seriously mentally ill.

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Legal Requirements

To use insanity as a legal excuse, the defendant has to show that he or she lacked:

1. The capacity to understand that the act was wrong, or 2. The capacity to understand the nature of the act

Some jurisdictions have a not guilty by reason of insanity (mental disease or defect) plea.

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Logic of the Insanity Defense

The logic of the insanity defense goes back to the idea of mens rea and culpability.

We as a society usually only want to punish those people who knew what they were doing was wrong.

The logic is that blameworthiness rests on the ability to foresee and understand the nature and consequences of the act.

If a person is so mentally ill that they do not understand that what they are doing is wrong, it is morally wrong to punish them for it.

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M’Naghten Rule

Over the years, different courts in different jurisdictions have devised different tests to determine systematically if a criminal defendant is legally insane.

One of the oldest and most enduring tests is the M’Naghten rule, handed down by the English court in 1843.

The basis of the M’Naghten test is the inability to distinguish right from wrong.

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Irresistible Impulse Test

The Alabama Supreme Court, in the case of Parsons v. State (1887), first adopted the Irresistible Impulse Test.

The basic idea is that some people, under the duress of a mental illness, cannot control their actions despite understanding that the action is wrong.

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Substantial Capacity Test (MPC)

A person is not culpable for a criminal act:

“If at the time of the crime as a result of mental disease or defect the defendant lacked the capacity to appreciate the wrongfulness of his or her conduct or to conform the conduct to the requirements of the law.”

In other words, this test contains the awareness of wrongdoing standard of M’Naghten as well as the involuntary compulsion standard of the irresistible impulse test.

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Myth v. Reality

It is a Hollywood myth that many violent criminals escape justice with the insanity defense.

In fact, the insanity defense is seldom attempted by criminal defendants and is very seldom successful when it is used.

Of those who do successfully use it, most of them spend more time in mental institutions than they would have spent in prison had they been convicted.

The insanity defense is certainly no “get out of jail free card.”

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Entrapment

Entrapment is a defense that removes blame from a person who commits a criminal act when convinced to do so by law enforcement.

In other words, people have the defense of entrapment available to them when police lure them into committing a crime.

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Elements of Entrapment

A valid entrapment defense has two related elements:

1. There must be a government inducement of the crime, and 2. The defendant's lack of predisposition to engage in the criminal conduct

Mere solicitation, however, to commit a crime is not inducement.

Inducement requires a showing of at least persuasion or mild coercion.

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Self-defense

As a matter of political theory, the right to use force is handed over to the government via the social contract.

This power to use force is entrusted to law enforcement.

Thus, when force is called for to end a confrontation, people should call the police.

There are times, however, when the police are not available in emergencies.

In these rare instances, it is permissible for the average citizen to use force to protect themselves and others from violent victimization.

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The Legality Test

The legality of using force in self-defense hinges on reasonableness.

Whether a use of force decision was a reasonable one will always depend on the circumstances of each individual situation.

The amount of force used should be the minimum likely to repel the attack.

The defense also requires that the danger be imminent.

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Deadly Force Limits

The use of force cannot be preemptive or retaliatory.

Generally, deadly force can only be used to prevent loss of life.

Some jurisdictions allow the use of non-deadly force to prevent thefts.

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Voluntary Intoxication

While there is some logic to the idea that being intoxicated diminishes a person’s capacity to develop mens rea, it usually serves to enhance rather than mitigate criminal culpability.

There are some jurisdictions that allow voluntary intoxication as a factor that mitigates culpability, such as when murder in the first degree is reduced to murder in the second degree.

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Involuntary Intoxication

If a defendant has been given a drug without their knowledge, then a defense of involuntary intoxication may be available.

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Mistakes of Fact

It is often said, “Everybody makes mistakes.”

The law recognizes this, and mistake can sometimes be a defense to a criminal charge.

Mistakes made because the situation was not really the way the person thought it was are known as mistakes of fact.

These can be a criminal defense.

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Mistakes of Law

Mistakes as to matters of law (mistakes of law) can never be used as a criminal defense.

There is a presumption in American law that everyone knows the criminal law.

If a defendant could mount a defense by claiming that he or she did not know the act was criminal, then everyone could commit every crime at least once and get away with it by claiming that they did not know.

For this reason, the law has to presume that everybody knows the law.

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Necessity

The defense of necessity is based on the idea that it is sometimes necessary to choose one evil to prevent another, such as when property is destroyed to save lives.

The necessity defense is sometimes referred to as the lesser of two evils defense because the evil that he actor seeks to prevent must be a greater harm that the evil that he or she does to prevent it.

In most jurisdictions, the defense will not be available if the person created the danger they were avoiding.

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Duress

Duress, sometimes known as coercion, means that the actor did the criminal act because they were forced to do so by another person by means of a threat.

The idea is that while the actor commits the actus reus of the offense, the mens rea element was that of the person that coerced the actor to commit the crime.

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Limits of Duress

The effect of a successful duress defense is a matter of state law, so may be different in different jurisdictions.

Most jurisdictions require that the actor have no part in becoming involved in the situation.

25

Introduction to Criminal Justice

Section 3.5: Substantive Offenses

“Criminal Justice: An Overview of the System” by Adam J. McKee, is licensed under an Open Education Resource (OER) - Quality Master Source (QMS) License. https://www.docmckee.com/WP/cj/criminal-justice-an-overview-of-the-system/

1

Elements of Offenses

Unlike the social scientific definitions of crime that essentially consider only the act, legal definitions of crimes are more complex.

An important aspect of understanding these legal definitions is understanding the common elements that constitute each crime.

Once the essential elements of crimes are understood, it is a relatively easy matter to consider the elements that must be proven in court in order to obtain a conviction.

2

Common Law Murder

At common law, murder was defined as killing another human being with malice aforethought.

Malice aforethought is a legal term of art that goes beyond the obvious meaning of the two terms:

1. The term malice means the intention to do evil; sometimes defined as “ill will.” 2. Aforethought means thought about or planned beforehand.

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Not Always the Literal Meaning

“Malice Aforethought” suggests that the plan to cause harm was premeditated.

This “murder with intent to kill” is one legal way to look at it, but at common law, malice aforethought could be satisfied in other ways.

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Grievous Bodily Harm

An alternative was a murder committed when the intent was only to cause grievous bodily harm.

5

Felony Murder Rule

A person was guilty of murder if someone else was killed while committing a felony.

This is known as the felony murder rule.

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Depraved Heart Murder

Most murders require the specific intent to harm the person that dies.

When someone does something that kills somebody but there was no specific target, then there is a depraved heart murder.

A classic example of this is firing a rifle into a passenger train car.

No specific victim was intended, but it was highly likely that someone would die.

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Modern Statutes

While there are some differences in these common law classifications of murder and the modern statutory classifications, their underlying prohibitions are the same.

The Model Penal Code, for example, prohibits purposefully or knowingly killing another human being.

This functions in a nearly identical way to the common law rule against intentional murder.

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Common Law Parallels

The Model Penal Code punishes killings that come from “extreme recklessness” in a way that mimics the depraved heart murder of common law.

The Model Penal Code creates a rebuttable presumption that a killing committed during the commission of certain felonies shows extreme recklessness.

This provision mimics the felony murder rule in function.

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Assault and Battery

In everyday language, assault and battery are used interchangeably.

In many jurisdictions, however, they are two distinct offenses.

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Assault

An assault is an act that creates an imminent fear that the victim will be harmed, but no actual harm occurs.

In other words, an assault is a threat of force.

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Battery

A battery is the physical act that results in some actual harm to the victim.

Some jurisdictions include any offensive touching in the definition of battery.

Many jurisdictions define an unwanted touching of the sexual organs of another person as a sexual battery.

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Lesser Included Offense

Note that in most cases, the assault is a lesser-included offense of the battery.

That means that in jurisdictions that have both assault and battery statutes, both offenses cannot be charged against the same person for the same act.

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Common Law Rape

Rape is a crime that has evolved dramatically over time.

At common law, rape was defined as the unlawful carnal knowledge of a female without her consent.

In this common law context, the term unlawful means that law did not authorize the act.

Historically, this precluded applying the rape law to a husband who forced his wife to have sex (now known as marital rape).

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Carnal Knowledge

Carnal knowledge is synonymous with sexual intercourse.

Thus, the law was very specific; many violent sexual acts (such as those perpetrated against men) did not fit the legal definition of rape.

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Outdated Elements

Historically, rape has been a very difficult crime for the state to prove.

The most difficult element to prove in court tends to be the fact that the woman did not consent to the act.

Many jurisdictions required that the victim offer forceful resistance to the perpetrator.

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The Victim’s Character

In addition, many required that the victim be of "previously chaste character."

Defense attorneys would use this requirement to attack the victim on the witness stand, increasing the trauma of an already traumatic event.

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Rape Shield Laws

Most states have now passed what are known as rape shield laws.

These are laws designed to protect victims of rape from further trauma.

Most of these laws prohibit the introduction of evidence about the victim's past sexual history and reputation.

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Changes in the Law

The changing legal climate of rape law has influenced the definition used by the FBI's Uniform Crime Reports program.

The traditional UCR definition was “The carnal knowledge of a female forcibly and against her will.”

Many agencies interpreted this definition as excluding a long list of sex offenses that are criminal in most jurisdictions, such as offenses involving oral or anal penetration, penetration with objects, and rapes of males.

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The New FBI Definition

The new UCR definition of Rape created in 2011 is:

“Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

This language is very similar to that of the Model Penal Code's rape statute.

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Arson

Arson has always been considered a very serious crime.

At various times in history, the penalty under the common law for Arson was death by fire; and yes, it is interesting that the penalty for destroying something by fire was paradoxically, death by fire.

Common law arson was very narrowly defined as the malicious burning of the dwelling of another.

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Common Law Arson Elements

In the common law context, a malicious burning was one where the perpetrator had criminal intent.

The burning requirement did not mean that the dwelling had to be completely consumed by the fire.

Smoke and blackening were generally considered to be insufficient; some part of the structure (albeit a very small amount) must be destroyed by the fire.

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Modern Statutes

Modern statutory definitions have tended to expand on what is covered by arson.

Today, most all structures will qualify.

Many states include the burning of any valuable property in the definition of arson, setting the penalty based on the value of the property destroyed.

The model penal code requires that the arsonist have the purpose of destroying another person's building or other structure.

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Differentiating Robbery Robbery is the taking of the property of another by the use of force or threat of force.

Because of the force involved, most jurisdictions classify robbery as a crime against persons rather than a property crime.

For this reason, some force is required for a theft of property to amount to a robbery.

Purse snatching, for example, does not constitute a robbery in most jurisdictions because the only force involved was the amount necessary to acquire possession of the property.

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Grades of Robbery

Many states divide robbery into categories based on the seriousness of the offense.

The use of a weapon, especially a firearm, often elevates the crime to aggravated robbery or first-degree robbery, depending on the jurisdiction.

Most robbery statutes are state laws, but some robberies, notably those that affect interstate commerce or currency, are matters of federal law.

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Burglary

At common law, burglary required that the crime take place in the dwelling house of another at night.

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Modern Variations of Burglary

Most states have greatly broadened this requirement to include any structure at any time of day.

Many jurisdictions draw a distinction between residential burglary and commercial burglary, with the penalty being more severe for residential burglary.

Burglary is much more serious than a mere theft of property because it involves the home (which is sacred under the common law tradition), and the risk of violence is high, as most people will engage in violence to protect their homes and families.

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The Criminal Intent - Burglary

Most modern statutes require a breaking and entering into the home or other structure of another person with the intent to commit a crime therein.

Under most circumstances, the crime will be a theft.

Other offenses contemplated within the structure, such as rape, can also meet the requirements for burglary.

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3: Criminal Law

Learning Objectives

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.

Critical Thinking Questions

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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3.1. Functions and Limitations of Law

LORE RUTZ-BURRI

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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3.2. Civil, Criminal, and Moral Wrongs

LORE RUTZ-BURRI

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.

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

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

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present physical evidence suggesting the defendant committed the crime. Just as a private individual may

decide that it is not worth the time or effort to file a legal action, the state may decide not to use its

resources to file criminal charges against a wrongdoer. A victim (a named injured party) cannot force the state to prosecute the wrongdoing. Rather, if there is an appropriate civil cause of action–for example, wrongful death–the injured party will need to file a civil suit as a plaintiff and seek monetary

damages against the defendant.

Moral Wrongs Moral wrongs differ from criminal wrongs. “Moral law attempts to perfect personal character, whereas

criminal law, in general, is aimed at misbehavior that falls substantially below the norms of the community.” 1

There are no codes or statutes governing violations of moral laws in the United States.

“The Witness” Exercise

Watch the 2015 Netflix documentary “The Witness” in which Bill Genovese re-examined what was said, heard

and reported about his sister, Kitty Genovese. This frequently cited examples of a moral wrong involve the story

of thirty-seven neighbors who purportedly did nothing when “Kitty” Genovese was stabbed to death outside

their apartment building in New York City in 1964. There are many discrepancies about this story and what the

neighbors knew, or didn’t know, and what they did, or didn’t do, but the general belief is that they had at least a

moral obligation to do something (for example, call the police), and by failing to do anything, they committed a

moral wrong. Ultimately, none of the neighbors had any legal obligation to report the crime or intervene to help

Ms. Genovese.

Overlap of Civil, Criminal, and Moral Wrongs Sometimes criminal law and civil law overlap and an individual’s action constitute both a violation of

criminal law and civil law. For example, if Joe punches Sam in the face, Sam may sue Joe civilly for civil

assault and battery, and the state may also prosecute Joe for punching Sam, a criminal assault and battery.

Consider the case involving O.J. Simpson. Simpson was first prosecuted in 1994 for killing his ex-wife and

her friend (the criminal charges of murder). After the criminal trial in which the jury acquitted Simpson,

the Brown and Goldman families filed a wrongful death action against Simpson for killing Nicole Brown

and Ronald Goldman. The civil jury found Simpson responsible and awarded compensatory and punitive

damages in the amount of $33.5 million dollars. Wrongful death is a type of tort. Torts involve injuries inflicted upon a person and are the types of civil claims or civil suits that most resemble criminal wrongs.

Sometimes criminal behavior has no civil law counterpart. For example, the crime of possessing burglary

tools does not have a civil law equivalent. Conversely, many civil actions do not violate criminal law. For

example, civil suits for divorce, wills, or contracts do not have a corresponding criminal wrong. Even though

there is certainly an overlap between criminal law and civil law, it is not a perfect overlap. Because there

is no legal action that can be filed for committing a moral wrong, there really is not any overlap between

criminal wrongs, civil wrongs, and moral wrongs.

1. Gardner, T.J. (1985) Criminal Law: Principles and Cases (3rd ed., pp.7). West Publishing Company.

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3.3. Sources of Criminal Law: Federal and State Constitutions

LORE RUTZ-BURRI

Where do you look to see if something you want to do violates some criminal law? The answer is “in

many places.” Criminal law originates from many sources. Some criminal law is the result of constitutional

conventions, so you would need to review federal and state constitutions. Other criminal laws result from the

legislative or initiative process, so you will need to review state statutes or congressional acts. Other criminal

law results from the work of administrative agencies, so you need to review state and federal administrative

rules. Other criminal law, called case law, originates from appellate court opinions written by judges. These

court opinions, called “decisions”, are published in both official and unofficial reporters, but thanks to the

Internet, they are now easy to find if you know the parties’ names. Much of our criminal law descended

from the English common law. This law developed over time, through custom and tradition, and it is a bit

more difficult to locate, but it is mentioned in treatises and legal “hornbooks” (like legal encyclopedias) and

is often referred to in case decisions.

The Federal Constitution—The Constitution of the United States Although the United States Constitution recognizes only three crimes (counterfeiting, piracy, and

treason), it nevertheless plays a significant role in the American criminal justice system. Most importantly,

the Constitution establishes limits on certain types of legislation or substantive law, and it provides significant

procedural constraints on the government when it seeks to prosecute individuals for crimes. The

Constitution also establishes federalism (the relationship between the federal government and state governments), requires the separation of powers between the three branches of government (the judicial branch, the legislative branch, and the executive branch), and limits Congress’s authority to pass laws not

directly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred because they intertwined with the enumerated powers).

Constitutional Limitations on Criminal Law and Procedure The drafters of the federal Constitution were so concerned about two historic cases of abuse by English

Parliament (ex post facto laws and bills of attainder) that they prohibited Congress from passing these types

of laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post facto laws are laws that are retroactively applied, or punishments retroactively increased, or changes in the amount and types of evidence that is required of the government in order to successfully prosecute an individual.

Bills of attainders are laws that are directed at named individual or group of individuals and has the effect of declaring them guilty without a trial.

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Most of the other limitations are found within the Bill of Rights, the first ten amendments to the

U.S. Constitution. The states adopted the Bill of Rights in 1791. The statesmen had opposing viewpoints

concerning how strong the national government should be and how strong state governments should be.

Even as the original federal constitution was being circulated and ratified, the framers were thinking about

the provisions that became known as the Bill of Rights.

Music & Law Exercise

For a novel way to explore this dispute, listen to the soundtrack from Alexander Hamilton, the Broadway Musical

composed by Lin-Manuel Miranda.

The First Amendment limits Congress’s ability to pass laws that limit free speech, freedom of religion,

freedom of assembly and association. The Second Amendment limits Congress’s ability to outlaw the

personal possession of firearms. The Fourth, Fifth, Sixth and Eighth Amendments have provisions that

govern criminal procedure during the investigative, pretrial, and trial phases. The Eighth Amendment sets

limits on the government’s ability to impose certain types of punishments, impose excessive fines, and set

excessive bail. The Due Process Clauses of the Fifth and Fourteenth Amendment require that criminal justice

procedures be fundamentally fair. The Fourteenth Amendment’s Equal Protection Clause requires that, at

a minimum, there be some rational reason for treating people differently. For example, states can pass laws

prohibiting minors from purchasing and consuming alcohol because states have a reasonable interest in

protecting the health and welfare of its citizens. These amendments discussed more fully below, added several

constraints on Congress. The impact of the Bill of Rights was to place substantial checks on the federal

government’s ability to define crimes.

The Incorporation Debate

When drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal

government. Individual states each had their own guarantees and protections of individuals’ rights found

in the state constitutions. (See below.) Since 1868, the Fourteenth Amendment has become an important

tool for making states also follow the provisions of the Bill of the Rights. It was drafted to enforce the Civil

Rights Act passed in 1866 in the post-Civil War states. Section 1 of the Fourteenth Amendment enjoins

the states from depriving any person of life, liberty, or property, without due process of law. It prohibits

states from adopting any laws that abridge the privileges and immunities of the citizens of the United States

and requires that states not deny any person equal protection under the law. U.S. Const. amend. XIV, § 2.

The practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over

decades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in

one-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-by-

case, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process

Clause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of

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Rights that are “implicit in the concept of ordered liberty.” 1

For example, in 1925 the Court recognized

that the First Amendment protections of free speech and free press apply to states as well as to the federal

government. 2

In the 1960s, the Court selectively incorporated many of the procedural guarantees of the

Bill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill

of Rights to the states. Most recently, on February 20th, 2019 the Court incorporated the right to be free

from excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana, ___ U.S. ___ (2019).

First Amendment Limitations

Under the First Amendment, Congress cannot create laws that limit individuals’ speech. The Court has

recognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example,

picketing) as protected under the First Amendment’s guarantee that Congress shall not abridge freedom

of speech. The Court struck down a law banning flag burning. Texas v. Johnson, 491 U.S. 397 (1989). The Court upheld a local ordinance prohibiting public indecency when applied to business establishment

wishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has recognized political speech and commercial speech as protected by the First Amendment as well. See,

e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The Court has, however, deemed some speech not worthy of protection, and consequently may be limited. According to the Court, non-

protected speech includes libel and slander, fighting words, words that present a clear and present danger

when spoken, obscenity and profanity. See, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) “There are certain well-defined and narrowly limited classes of speech, the prevention, and punishment of which have

never been thought to raise any constitutional problem. These include the lewd and obscene, the profane,

the libelous, and the insulting or fighting words—those which by their very utterance inflict injury or tend

to incite an immediate breach of peace.” Similarly, the Court has said anti-hate crime statutes permissibly

limit individuals’ speech to the extent they are directed at conduct rather than the content of the speech.

See, e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993).

The First Amendment limits Congress’s authority to legislate in the realm of religion as well. Congress

cannot make laws that either create a religion (these violate the Establishment Clause) or target and

interfere with a person’s exercise of their own religion (these violate the Free Exercise Clause). Finally, the

First Amendment guarantees that people have the right to freely associate and assemble with others. Thus,

Congress cannot make laws that completely limit people’s ability to gather together peaceably. However,

1. Palko v. Connecticut, 302 U.S. 319 (1937). 2. Gitlow v. New York, 268 U.S. 652 (1925)

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the Court has indicated that the government can place reasonable time and manner limitations based on

the location in which the gathering is to take place. See, e.g., Cox v. Louisiana, 379 U.S. 536 (1965).

Second Amendment Limitations

Legislatures can place restrictions on weapons and ammunition purchase and possession, but they cannot

completely restrict people’s ability to possess guns for the purpose of self-defense. See, District of Columbia

v. Heller, 554 U.S. 570 (2008) (an individual’s right to possess a weapon is unconnected with service in the military). According to the Court, the Second Amendments’ protections apply equally to the states. See,

McDonald v. Chicago, 561 U.S. 742 (2010).

Fourth Amendment Limitations

The Fourth Amendment limits the government’s ability to engage in searches and seizures. Under

the least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be

reasonable. Under the most restrictive interpretation, the Amendment requires that government officers

need a warrant any time they do a search or a seizure. The Court has interpreted the Fourth Amendment in

many cases and, the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court’s constant refinement and revision. One thing is clear, the Court has never embraced the most restrictive

interpretation of the Fourth requiring a warrant for every search and seizure conducted.

Fifth Amendment Limitations

The Fifth Amendment protects against self-incrimination (having to disclose information that could

ultimately harm you) in that it states that no person “shall be compelled in a criminal case to be a witness

against himself.” Defendants have the right to not testify at trial and the right to remain silent during a

custodial interrogation. See, Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also provides for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law,

and prohibits taking private property for public use (a civil action). The Court has incorporated the double

jeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a

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person to double jeopardy. However, it has not held that states must provide a grand jury review. The Fifth

Amendment’s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated

to the states, but most states do use the grand jury at least for some types of cases. The Fifth Amendment

also entitled citizens prosecuted by the federal government to the due process of law. This is discussed more

fully below as a Fourteenth Amendment right.

Sixth Amendment Limitations

The Sixth Amendment guarantees a criminal defendant: the right to a speedy trial, the right to a public

trial, the right to a jury trial, the right to have his or her trial in the district where the crime took place, the

right to be told what charges have been filed, the right to confront witnesses at trial, the right to compel

witnesses to testify at trial, and the right to assistance of counsel. This Amendment governs the federal

court process, but because of the Fourteenth Amendment’s Due Process Clause, these rights also apply to

defendants in state criminal cases.

Eighth Amendment Limitations

Legislatures cannot make laws that make the punishment for a crime “cruel or unusual.” This means that

punishments cannot be either barbaric (causing needless pain) or disproportionate (i.e., too severe to fit the crime). In addition to the prohibition against cruel and unusual punishment, the Eighth Amendment

also prohibits the imposition of excessive bail and excessive fines. The Court has dealt with excessive fines

in terms of whether the fine is disproportionate to the crime. See, e.g., Timbs v. Indiana (above) (forfeiting defendant’s $42,000 land rover was excessive compared to the maximum fine he could get for his crime

($10,000.) The prohibition against excessive bail does not mean that courts must set bail in every case, but

rather, when courts do set bail, it must not be excessive. Bail is excessive when it is an amount more than

necessary to assure the defendant’s reappearance. Stack v. Boyle, 342 U.S. 1 (1951). *

Fourteenth Amendment limitations

The Fourteenth Amendment mandates that states do not deny their citizen’s due process of law. Due

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process can be summarized as making sure that the government treats people fairly. Part of fairness is giving

people fair warning as to what behaviors are permitted and what behaviors are not permitted—putting

people on notice of what the law is. Thus, legislators must be very careful when making new laws.

They cannot make laws that are so poorly drafted such that a person of ordinary intelligence would not

understand the law or that would allow police too much discretion in how they will interpret and apply

the law because such a law would be considered void for vagueness.

The Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot

make laws that treat people differently unless the laws are rationally related to a legitimate government

interest. When legislatures attempt to pass laws that treat people differently based on sex, then the

court reviews the law with heightened scrutiny — the law must be designed to achieve an important

government interest and the differential treatment must be based on an actual physiological difference

between the sexes and not based on archaic stereotypes. When legislatures attempt to pass laws that treat

people differently based upon their race or ethnicity, then they have to have even a more compelling

reason to do so, and even then, the courts, employing “strict scrutiny” are likely to declare such laws

unconstitutional.

Limitations Found in the “Penumbra” of the Constitution

Sometimes the Constitution doesn’t explicitly state protection or right that the courts have nevertheless

found to be inherent or found within the Constitution. Justice Douglas, writing the majority opinion in

Griswold v. Connecticut, 381 U.S. 479 (1965), stated

“[The] . . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those

guarantees that help give them life and substance. … Various guarantees create zones of privacy. The

right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third

Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without

the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the

‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone

of privacy which government may not force him to surrender to his detriment. The Ninth Amendment

provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or

disparage others retained by the people.’

The Fourth and Fifth Amendments were described … as protection against all governmental invasions

‘of the sanctity of a man’s home and the privacies of life.’ We recently referred in Mapp v. Ohio, 367 U. S. 643, 656, to the Fourth Amendment as creating a ‘right to privacy, no less important than any other right

carefully and particularly reserved to the people.’ (Footnote omitted).” 381 U.S. at 484-485.

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Thus, legislatures cannot make laws that allow the government to invade people’s privacy, even

though no specific amendment can be pointed to. The constitutional right to privacy must often be

balanced against the state’s compelling interests such as promoting public safety. The courts have found

the right to privacy in the context of reproductive freedom (See, e.g., Roe v. Wade, 410 U.S. 113

(1972) (right to abortion), Eisenstadt v. Baird, 405 U.S. 438 (1972) (the right of married persons to

possess contraceptives), Griswold v. Connecticut, 381 U.S. 479 (1965) (declaring invalid the ban on

contraceptives), Stanley v. Georgia, 394 U.S. 557 (1969) (the right to view and possess adult pornography),

and the right of adults to engage in consensual sexual contact), and Lawrence v. Texas, 539 U.S. 558 (2003) (the right of adults to engage in consensual sexual contact).

State Constitutions States’ constitutions, similar to the federal constitution, set forth the general organization of state

government and basic standards governing the use of governmental authority. Although the federal

constitution is preeminent because of the Supremacy Clause, state constitutions are still significant. State

constitutional rules are supreme as compared to any other rules coming from all other state legal sources

(statutes, ordinances, administrative rules) and prevail over such laws in cases of conflict. The federal

constitution sets the floor of individual rights, but states are free to provide more individual freedoms and

protections that are granted by the federal constitution. State constitutions are defined and interpreted by

state courts, and even identical provisions in both the state and federal constitution may be interpreted

differently. For example, the state constitution’s guarantee to be free from unreasonable searches and

seizures may mean that, under state law, roadblocks established to identify impaired, intoxicated drivers are

impermissible, but under the federal constitution, these roadblocks are permitted and are not deemed to be

unreasonable seizures.

Comparing Cases Exercise

Compare the U.S. Supreme Court holding in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) to the Michigan Supreme Court holding interpreting the same case under Michigan Constitution, 506 N.W.2d 209

(Mich. 1993).

Rule of Law, Constitutions and Judicial Review

One of the key features of the American legal system has been its commitment to the rule of law. Rule of law has been defined as a “belief that an orderly society must be governed by established principles and

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known standards that are uniformly and fairly applied.” 3

Reichel identified a three-step process by which

countries can achieve rule of law. 4

The first step is that a country must identify core, fundamental values.

The second step is for the values to be reduced to writing and written somewhere that people can point to

them. The final step is to establish a process or mechanism whereby laws or governmental actions are tested

to see if they are consistent with the fundamental values. When laws or actions embrace the fundamental

values, they are considered valid, and when the laws or actions conflict with the fundamental values, they

are invalid.

Applying this three-step process to America’s approach to law one can see that Americans have

recognized fundamental values, such as the right to freedom of speech, the right to privacy, and the

right to assemble. Second, we have reduced these fundamental values to writing and, for the most part,

have compiled them in our constitutions (both federal and state). Third, we have a mechanism, that of

judicial review, by which we judge whether our laws and our government actions comply with or violate our fundamental values found within our constitutions. Judicial review is the authority of the courts to

determine whether a law (a legislative action) or action (an executive or judicial action) conflicts with the

Constitution. Judicial review can be traced to the case of Marbury v. Madison, 5 U.S. 137 (1803), in which Chief Justice John Marshall wrote, “It is emphatically the province and duty of the judicial department to

say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret

that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

3. Feldmeier, J. P., & Schmalleger, F. (2012). Criminal Law and Procedure for Legal Professionals. Prenice Hall. 4. Reichel, P. (2018) Comparative Criminal Justice Systems: A Topical Approach. New York, NY: Pearson.

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3.4. Sources of Criminal Law: Statutes, Ordinances, and Other

Legislative Enactments

LORE RUTZ-BURRI

Statutes, Ordinances, and Other Legislative Enactments Most substantive criminal law is legislative law. State legislatures and Congress enact laws which take the

form of statutes or congressional acts. Statutes are written statements, enacted into law by an affirmative vote

of both chambers of the legislature and accepted (or not vetoed) by the governor of the state or the president

of the United States. State legislatures may also create legislative law by participating in interstate compacts, or multi-state legal agreements. An example of this includes the Uniform Extradition Act, or the Uniform

Fresh Pursuit Act. Congress makes federal law by passing acts and approving treaties between the United

States and other nation states. Local legislators, city and town councilors, and county commissioners also

make laws through the enactment of local ordinances.

Controversial Issue: Ballot Measures, Initiatives, and Referendums–Direct Democracy and Law

Making

In several states, citizens have the power to enact laws through direct democracy by putting “ballot

measures” or “propositions” up for a vote. This type of lawmaking by the people started primarily in

the Western states around the turn of the 20th century. Initiatives, referendums, and referrals have some

slight differences, but generally, these ballot measures ultimately find their way into either statutes or

the constitution, and so they are included in this section on legislative law. For example, Oregon Ballot

Measure 11, establishing minimum mandatory sentences for 17 person felonies, was voted on in November

1994 and took effect April 1, 1995. It is now found in the Oregon Revised Statutes as ORS 137.700.

Proposition 36, approved by Californians in 2012, significantly amended the “three strikes” sentencing

laws approved in 1994. Initiatives, referendums, and referrals can be effective in quickly changing the

criminal law, like the mandatory sentencing in the 1980s, and is a way to circumvent what can be a

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contentious legislative process. An example is the decriminalization of marijuana in Washington, Oregon,

Colorado, and Alaska.

States’ Authority to Pass Criminal Laws States are sovereign and autonomous, and unless the Constitution takes away state power, the states have

broad authority to regulate activity within the state. Most criminal laws at the state level are derived from

the states’ general police powers, or authority, to make and enforce criminal law within their geographic

boundaries. Police power is the power to control any harmful act that may affect the general well being of citizens within the geographical jurisdiction of the state. A state code, or state statutes, may regulate any

harmful activity done in the state or whose harm occurs within the state.

Congress’s Authority to Pass Laws Federal lawmakers do not possess police power. Instead, Congress must draw its authority to enact

criminal statutes from particular legislative powers and responsibilities assigned to it in the Constitution.

Congress’s legislative authority may be either enumerated in the Constitution or implied from its provisions,

but if Congress cannot tie its exercise of authority to one of those powers, the legislation may be declared

invalid.

Enumerated powers, for example, the power to regulate interstate commerce, are those that are specifically

mentioned in Article I Section 8 of the Constitution. Over the years, however, courts have broadly

interpreted the term “interstate commerce” to mean more than just goods and services traveling between

and among the states. Instead, interstate commerce includes any activity—including purely local or intrastate

activity—that affects interstate commerce. The affectation doctrine maintains that congressional authority

includes the right to regulate all matters having a close and substantial relation to interstate commerce.

Although the Court has found limits on what affects interstate commerce, Congress has used its broad power

to regulate interstate commerce to criminalize a wide range of offenses including carjacking, kidnapping,

wire fraud, and a variety of environmental crimes.

The implied powers of Congress are those that are deemed to be necessary and proper for carrying out

all the enumerated powers. Article I Section 8 of the Constitution states, “Congress shall have Power . .

. to make laws which shall be necessary and proper for carrying into Execution the foregoing Powers,

and all other Powers vested by this Constitution.” The implied powers doctrine expands legislative power

of Congress, and for that reason, the Necessary and Proper Clause has often been called the “expansion

clause.” Due to the implied powers found in the Necessary and Proper Clause, Congress has authority to pass

legislation and regulate a wide variety of activity to the extent that it is able to show that the law furthers one

of the enumerated powers. Nevertheless, the Court will overturn acts of Congress when it believes Congress

has overstepped its constitutional authority. So, despite the broad expanse of implied powers, Congress’s

authority is still limited and by no means is as vast as the states’ police powers.

Conflicting State and Federal Statutes Sometimes substantive federal law conflicts with state laws or policies, and sometimes the federal

government’s interest in prosecuting cases in federal court conflicts with competing interests of the states.

One recent conflict between federal interests and state interests involves Oregon’s physician-assisted suicide

law, the “Death with Dignity Act”. See, Gonzales v. Oregon, 646 U.S. 243 (2006)(upholding Oregon’s law

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by deciding that the United States Attorney General could not enforce the national controlled substance

act against Oregon physicians). Another debate surrounds the conflicting federal and state laws governing

marijuana use. Between 1996 and 2018, thirty states and the District of Columbia passed laws legalizing

the possession of small quantities of marijuana for medicinal purposes for state residents. Since 2012,

Colorado, Washington, Oregon, Alaska, California, Nevada, Massachusetts, and Maine have passed laws

through the initiative process legalizing recreational use and possession of small amounts of marijuana

by adults. In the 2018 elections, even more, states passed laws allowing for medical use, recreational

use. See, https://www.forbes.com/sites/tomangell/2018/12/06/marijuanas-ten-biggest-victories-

of-2018/#7ca0dd5232df. These popular initiatives conflict directly with the federal Controlled Substance

Act, 21 U.S.C. 13, § 841, (CSA) which holds that any use or possession of marijuana is a federal crime. In

January 2018, the Trump administration through the U.S. Department of Justice, under Attorney General

Sessions rescinded the Obama-era restraint policies on marijuana prosecutions and indicated the desire to

fully enforce the CSA. However, in April 2018, President Trump announced he was backing down on the

crackdown on recreational use of marijuana that had been announced in January 2018.

Movement Towards Codification: The American Institute and the Model Penal Code

By the 1960s and 1970s, all states had begun codifying their criminal laws. These codifications would

likely not have taken place if not for the American Law Institute (ALI) and the publication of its Model

Penal Code (MPC). Established in 1923, the ALI is an organization of judges, lawyers, and academics that draft model codes and laws. Its most important work in the criminal justice realm is the Model Penal Code.

The ALI began working on the MPC in 1951, and it proposed several tentative drafts over the next decade.

In 1962 the Model Penal Code was finally published. It consists of general provisions concerning: criminal

liability, definitions of specific crimes, defenses, and sentences. The MPC has had a significant impact on

legislative drafting of criminal statutes. Every state has adopted at least some provisions, or at least the

approach, of the MPC, and some code states have adopted many or most of the provisions in the MPC. No state has adopted the MPC in its entirety.

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3.5. Sources of Law: Administrative Law, Common Law, Case Law

and Court Rules

LORE RUTZ-BURRI

Administrative Law—Agency-Made Law State and federal legislatures cannot keep up with the task of enacting legislation on all the myriad

subjects that must be regulated by law. In each branch of government, various administrative agencies exist

with authority to create administrative law. At the federal level, for example, the Environmental Protection

Agency enacts regulations against environmental crimes. At the state level, the Department of Motor

Vehicles enacts laws concerning drivers’ license suspension. Administrative regulations are enforceable by

the courts provided that the agency has acted within the scope of its delegated authority from the legislature.

Common Law One important source of criminal law in the United States is common law. English law developed over

centuries and, generally, when we refer to American common law, we are referring to the common law rules

brought over from England to the United States when we became a nation. However, this is not necessarily

always clear. 1

LaFave describes the process by which common law was derived in England.

“. . . Although there were some early criminal statutes [in England], in the main the criminal law was originally common law. Thus by the 1600s the judges, not the legislature, had created and defined the

felonies of murder, suicide, manslaughter, burglary, arson, robbery, larceny rape, sodomy and mayhem; and

such misdemeanors as assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. During

the period from 1660 . . . to 1860 the process continued with the judges creating new crimes when the

need arose and punishing those who committed them: blasphemy (1676), conspiracy (1664), sedition (18th

century), forgery (1727), attempt (1784), solicitation (1801). From time to time the judges, when creating

new misdemeanors, spoke of the court’s power to declare criminal any conduct tending to “outrage decency”

or “corrupt public morals.” or to punish conduct contra bonos mores: thus they found running naked in the streets, publishing an obscene book, and grave-snatching to be common law crimes.

Of course, sometimes the courts refused to denote as criminal some forms of anti-social conduct. At times

their refusal seemed irrational, causing the legislature to step in and enact a statute: thus false pretenses,

embezzlement, incest and other matters became statutory crimes in England. … Some immoral conduct,

mostly of a sexual nature (such as private acts of adultery or fornication, and seduction without conspiracy)

1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.

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was punished by ecclesiastical courts in England. The common law courts never punished these activities as

criminal, and thus, they never became English common law crimes.

At the same time that judges were developing new crimes, they were also developing new common law

defenses to crime, such as self-defense, insanity, infancy, and coercion. …

About the middle of the nineteenth century, the process of creating new crimes almost came to a standstill

in England. ” 2

American courts originally relied on the decisions of the English Courts, but Kerper (1979, p. 27) notes

that

“as the number of American decisions grew, the American courts began to rely more and more on

their own decisions. At the same times, differences in social and economic conditions (and to some extent,

differences in the personalities of the judges) led the courts in different states to take different views of

the common law. As a result, while the English tradition produced a core of similarity, there developed

significant differences in common law rules in the various states. Thus, the common law standard governing

an officer’s authority to arrest for minor crimes might be substantially different in Ohio and New York,

although the general framework of the common law governing arrests was likely to be similar in both

states.” 3

In order to understand the limitations of common law, it is helpful to understand the difference between

the common law tradition followed by the United States, and other nations that follow the English model

and the civil law tradition which developed in Europe. The civil law tradition uses legislative codes as the

primary source of law. Under the civil law tradition, new substantive law replaces, rather than supplements,

old substantive law. Thus, judges in the civil law tradition are not bound by prior interpretations of

legislative codes, and all courts are free to interpret the codes according to generally accepted principles

of legal interpretation. Stare decisis, discussed below, plays no persuasive or binding role in the civil law tradition. Under the common law tradition though, new substantive law generally adds to, rather than

replaces, old substantive law.

Kerper notes that our common law tradition is not purely one of common law, and that common law is

displaced by statutes, case law, and the constitution.

“Though the description of the Anglo-American system as a “common law legal system” notes an

important distinction between it and the civil law system, that description should not lead one to ignore the

fact that legislation also constitutes an important source of law in the Anglo-American system. That system

is actually a mixed system of common law rules and statutory rules. The common law rules established by

American and English courts have always been subject to displacement by legislative enactments. Indeed,

the courts have the authority to develop common law standards only where the legislatures have not sought

to provide legislative solutions. … In our country, the common law also is subject to the legal limitations

imposed by federal and state constitutions. The supremacy of the constitutions extends over all forms of

law, including the common law. Just as legislation cannot violate a constitutional limitation, neither can a

common law rule.” 4

Common law is a source of both substantive and procedural law (discussed below), but it is important to

note that there are no federal common law crimes. If Congress has not enacted legislation to make certain

conduct criminal, that conduct cannot constitute a federal crime.

2. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 70). St. Paul, Minn: West Group. 3. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company. 4. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 28-29). West Publishing Company.

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Judge-Made Law: Case Law The term case law refers to legal rules announced in opinions written by appellate judges when deciding

appellate cases before them. Judicial decisions reflect the court’s interpretation of constitutions, statutes,

common law, or administrative regulations. When the court interprets a statute, the statute, as well as its

interpretation, control how the law will be enforced and applied in the future. The same is true when a court

interprets federal and state constitutions. When deciding cases and interpreting the law, judges are bound by

precedent.

Startare Decisise Decisis and Precedent: Been There, Done (must do) That.

The doctrine of starstare decisise decisis comes from a Latin phrase that states, “to stand by the decisions and not disturb settled points”. It tells the court that if the decisions in the past have held that a particular rule

governs a certain fact situation, that rule should govern all later cases presenting the same fact situation.

Under the doctrine of stare decisis, past appellate court decisions form precedent, that judge must follow

in similar subsequent cases. Stare decisis permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contribute to the integrity of our

constitutional system of government, both in appearance and fact.” 5

Trial courts and appellate courts must

follow the controlling case law that has already been announced in appellate court decisions from their

own jurisdiction. Trial courts must follow precedent when they decide questions of law. [Questions of

law include what a statute means, what the law states, how the constitution should be interpreted, whether

a particular law even applies under the facts in the case before them. On the other hand, questions of

fact are decided by jurors (or judges in bench trials) and include, for example, how fast was the defendant driving, what color hat the defendant was wearing, or whether the gun went off accidentally.] One way

courts get around precedent is to distinguish the facts in the case before them as much different than the

facts in the earlier case. For example, if the court may decide that the fact that the defendant was running

away from the scene, in this case, is so different from the earlier case in which the defendant was merely

walking away from the scene that there is no precedent it must follow.

The advantages of stare decisis include efficiency, equality, predictability, the wisdom of past experience, and the image of limited authority.

6 Efficiency occurs because each trial judge and the appellate judge does

not have to work out a solution to every legal question. Equality results when one rule of law is applied

to all persons in the same setting. “Identical cases brought before different judges should, to the extent

humanly possible, produce identical results. … Stare decisis assists in providing uniform standards of law for similar cases decided in the same state. It provides a common grounding used by all judges throughout the

jurisdiction.” 7

Stare decisis provides stability in allowing individuals to count on the rules of law that have been applied in the past. Kerper’s example is a police officer’s reliance on past decisions to help determine

the legality of a pending arrest. “Without regard to past decisions, the conduct of a wide variety of activities

5. Vasquez v. Hillery, 474 U.S. 254 (1986) 6. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 47-49). West Publishing Company. 7. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.

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would take on an added hazard of unpredictable legality. Without stability, the law could well loose (sic)

its effectiveness in maintaining social control.” 8

Stare decisis also ensures proper recognition of the wisdom and experience of the past. Justice Cardozo observed that “no single judge is likely to have ‘a vision at

once so keen and so broad’ as to ensure that his new ideas of wise policy are indeed the most beneficial for

society.” 9

Finally, stare decisis enhances the image of the courts as the impartial interpreter of the law.

“Stare decisis decreases the leeway granted to the individual judge to settle controversies in accordance

with his own personal desires. … Indeed, the doctrine of stare decisis indirectly serves to restrict the law- making role of the judge even in those cases presenting “open issues” not resolved by past precedent. … A

sudden change in the composition of the judiciary, even at the highest level, should not present an equally

sudden change in the substance of the law.” 10

In the federal system, all federal courts must follow the decisions of the Supreme Court as it is the final

interpreter of the federal constitution and federal statutes. If, however, the Supreme Court has not ruled on

an issue, then the federal trial courts (U.S. District Courts and U.S. Magistrate Courts) and federal appellate

courts (Circuit Courts of Appeals) must follow decisions from their own circuit. Each circuit is treated, in

effect, as its own jurisdiction, and the court of appeals for the various circuits are free to disagree with each

other.

Because stare decisis is not an absolute rule, courts may reject precedent by overruling earlier decisions.

One factor that courts will consider before overruling earlier case law is the strength of the precedent.

Another factor is the field of law involved. Courts seem to be more reluctant to override precedents

governing property or trade where commercial enterprises are more likely to have relied quite heavily

on the precedent. Courts also consider the initial source of precedent, such as statutory interpretation.

For example, if the courts decided in 1950 that the statute meant that individuals could graze their cattle

on federal lands without being in violation of any trespass laws, and then the federal government did

not subsequently change the law, the legislature’s inaction indicates the interpretation was probably right.

The most compelling basis upon which a court will overturn precedent, however, is if it perceives the

presence or absence of changed circumstances. For example, scientific or technological developments may

warrant the application of new rules. Consider the common law year and a day rule which required the government, in a murder prosecution, prove that the victim died within one year and a day of the attack.

The rule is premised on the idea that there needed to be some showing that the defendant’s act caused the

death. Medical science now makes it possible to trace the source of fatal blow, so murder statutes no longer

include the year and a day rule. One final ground for overruling a prior decision is general changes in

the spirit of the times. For example, in Trop v. Dulles, 356 U.S. 86 (1958), the Court looked to “evolving standards of decency” in deciding whether the defendant’s punishment was cruel and unusual and thus

violated the Eighth Amendment.

8. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company. 9. Cardozo, B. N. (1924). The Growth of the Law. New Haven, CT: Yale University Press.

10. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 51-52). West Publishing Company.

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Matters of First Impression or “Wow, this is new territory, what should we do now?”

If a court is dealing with a legal issue for the first time, there is no precedent to follow, and it cannot then

be bound by stare decisis. The court may look to other states to see if there is any persuasive case authority on the matter, but state courts do not have to follow established law from other states. When there is no

precedent or controlling cases, the case or issue is referred to as a matter of the first impression. In cases of the first impression, courts get to decide what the relevant rule should be. In deciding cases of the first

impression, judges will look to relevant statutes, legislative history, and cases involving similar situations

“The situation may be a new one. … Yet the judges do not throw up their hands and say the case may

not be decided; they decide it. Maybe they can use some settled law in an analogous situation. … Even

if there is no available analogy, or if there are competing analogies, the judge will make (some prefer to

say discover) the law to apply to the new situation. The new law will be decided according to the judges’

ideas (ideas they acquire as members of society) of what is moral, right, just; of what will further sound

public policy, in light of customs and traditions of the people of which the judges are members.” LaFave,

W. Criminal Law, 69(3d. ed., 2000). ”

It is not necessarily easy, to interpret the law and apply it to the facts of a case. Facts can be “messy”, the

law can be less than clear, and not everyone will agree on the appropriate meaning of the law’s mandate.

Judges, therefore, rely on several tools or approaches when interpreting the language of a statute. LaFave

has identified various approaches used by judges to interpret the law. 11

First, judges will look at the plain

meaning of the statute and rely on dictionary-like tools to discover the meaning of the words. According to

the Court in Caminetti v. United States, 242 U.S. 470 (1917), “Where the language is plain and admits of no

more than one meaning, the duty of interpretation does not arise.” Even under this strict constructionist

approach, judges can still disagree whether the language of the statute is plain. Also, there is a danger with this plain meaning approach, and courts will not follow a statute though apparently plain language when

strict application results in injustice, oppression or even an absurd consequence.

Second, judges will look to the drafter’s intent revealed in the legislative history, or records of legislative hearings and floor debates, when it exists. LeFave notes that sometimes it is easier to figure out the framer’s

intent than other times. Moreover, different lawmakers may have had different intents when they cast their

votes enacting the law. Additionally, sometimes legislators never considered the specific factual scenario

facing the court.

“It should be noted also that not all judges are enamored of the use of legislative history in interpreting

ambiguous statutes. And in any event, the legislative history is less likely to be controlling in construing

criminal statutes than civil statutes. If one purpose of a criminal statute is to warn the public of what

conduct will get them into criminal trouble, that is, if prospective criminals are entitled to a fair

11. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 86-89). St. Paul, Minn: West Group.

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warning–then the public should be able to ascertain the line between permitted and prohibited conduct

from the statute itself.” 12

Third, judges may try to focus on the original understanding or original meaning of the law. Under this

approach, the court asks itself how a common person reading the law when it was enacted, would have

understood the law. For example, when looking at a statute written in 1972, the court would ask itself how

the common person in 1972 would have understood the statute. This approach is problematic because not

all people living in 1972 would have interpreted the law in the same way.

Fourth, as discussed above, judges may interpret the law based on precedent. One drawback to this

approach is that facts of the earlier cases will always differ somewhat from the facts in the new case the

court is trying to interpret. Another difficulty occurs when the court is faced with a new situation or a new

law and there is no precedent to guide the court. LaFave identified the difficulty in adhering too closely to

precedent:

“Sometimes a court, having earlier construed a criminal statute strictly in favor of the defendant, later decides that its earlier construction was wrong. … Obviously, other things being equal, courts should

interpret statutes correctly, regardless of past mistakes. On the other hand, it may not be fair to . . .

change the rule now. The difficulty lies in the Anglo-American theory of precedents that case law operates

retroactively, and in particular that case law which overrules earlier precedents operates retroactively.

When faced with this problem–that of overruling or following an earlier erroneous interpretation . . . [one]

court felt obliged to follow case precedent with an invitation to the legislature to change the rule of for the

future; but [another court overruled the precedent.]

The choice, however, is not necessarily between following the precedent (thus letting a defendant off

but perpetuating a bad decision) and retroactively overruling it (thus eliminating a bad precedent but

putting the defendant behind bars). There are two techniques by which the defendant may go free even

if the precedent is overruled. It is not impossible for the court to overrule for the future only, letting the

defendant go but stating in the opinion that anyone who from now on conducts himself the way this

defendant did will be guilty of the crime. The second method is to overrule the erroneous precedent but

to give the defendant the defense of mistake of law induced by an appellate court. … Some courts have

gone so far as to say that the adoption of a new interpretation of an old statute is forbidden by ex post facto

constitutional provision if the new interpretation is harder on the defendant than the old.” 13

Finally, there are common law doctrines which direct the court to interpret ambiguous terms in a

specific way. For example, the rule of lenity tells the court to interpret the statute in the light that is most

favorable to the defendant. Another rule, expressio unius est exclusion alters, meaning the inclusion of one is the exclusion of all others, holds that when a legislative body includes specific items within a statute, the

assumption is that it intends to exclude all other terms. Another doctrine of in pari materia, meaning on the same matter or subject, directs the court to interpret an ambiguous statute in a light most consistent with

12. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 89). St. Paul, Minn: West Group. 13. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 96-97). St. Paul, Minn: West Group.

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other statutes on the same subject. Finally, there is a general maxim that special language controls over

general language, and later statutes control over earlier statutes.

Court Rules of Procedure The U.S. Supreme Court and state supreme courts make a law that regulates the procedures followed

in the lower courts- both appellate and trial courts- in that jurisdiction. These court rules, adopted by the

courts to facilitate the administration and processing of cases, are generally limited in scope, but they may

nevertheless provide significant rights for the defendant. For example, the rules governing speedy trials may

be governed generally by the Constitution, but very specifically by court rules in a particular jurisdiction.

Local courts may also pass local court rules that govern the day-to-day practice of law in these lower

courts. For example, a local court rule may dictate when and how cases are to be filed in that jurisdiction.

Generally, the local bar (all the attorneys in the jurisdiction) are consulted, and a workforce consisting of

judges, trial court administrators, and representatives from district attorney’s office, the public defender’s

office, assigned counsel consortiums, and private attorneys will meet every few years to decide on the local

rules.

Okay, so where do I look to see if my behavior is prohibited?

Because criminal law has many sources–constitutions, legislative enactments, administrative rules, case

law, and common law–it is not necessarily an easy task to determine whether your behavior or the

way government responds to your behavior, is lawful. First, it is always advisable to know your rights

under the federal constitution and your state constitution and understand what limits the constitution

places on legislative enactments and law enforcement actions. Still, even assuming that laws have been

properly enacted and that police have followed proper procedure, it may be difficult to determine whether

your behavior is prohibited. Because most states now codifying their criminal laws by enacting statutes,

start there. Then look to any case law which may interpret these statutes. Since courts generally follow

precedent due to the doctrine of stare decisis, one red flag that your behavior may be unlawful is that, in the past, the courts have found behavior similar to yours to be unlawful.

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3.6. Classifications of Law

LORE RUTZ-BURRI

In this section of the chapter, we turn to the various ways that criminal law has been classified. Classification

schemes allow us to discuss aspects or characteristics of the criminal law. Some classifications have legal

significance, meaning that how a crime is classified may make a difference in how the case is processed or

what type of punishment can be imposed. Some classifications historically mattered (had legal significance),

but no longer have much consequence. Finally, some classifications have no legal significance, meaning the

classification exists only to help us organize our laws.

Classifications Based on the Seriousness of the Offense Legislatures typically distinguish crimes based on the severity or seriousness of the harm inflicted on

the victim. The criminal’s intent also impacts the crime’s classification. Crimes are classified as felonies or misdemeanors. Certain, less serious, behavior may be classified as criminal violations or infractions. The term offense is a generic term that is sometimes used to mean any type of violation of the law, or it is sometimes used to mean just misdemeanors or felonies. Although these classification schemes may seem

pretty straight forward, sometimes states allow felonies to be treated as misdemeanors and misdemeanors to

be treated as either felonies or violations. For example, California has certain crimes, known as wobblers, that can be charged as either felonies or misdemeanors at the discretion of the prosecutor upon consideration

of the offender’s criminal history or the specific facts of the case.

The distinction between felonies and misdemeanors developed at common law and has been incorporated

in state criminal codes. At one time, all felonies were punishable by death and forfeiture of goods, while

misdemeanors were punishable by fines alone. Laws change over time, and as capital punishment became

limited to only certain felonies (like murder and rape), new forms of punishment developed. Now, felonies

and misdemeanors alike are punished with fines and/or incarceration. Generally, felonies are treated as

serious crimes for which at least a year in prison is a possible punishment. In states allowing capital

punishment, some types of murder are punishable by death. Any crime subject to capital punishment is

considered a felony. Misdemeanors are regarded as less serious offenses and are generally punishable by

less than a year of incarceration in the local jail. Infractions and violations, when those classifications exist,

include minor behavior for which the offender can be cited, but not arrested, and fined, but not incarcerated.

The difference between being charged with a felony or misdemeanor may have legal implications beyond

the length of the offender’s sentence and in what type of facility an offender will be punished. For example, in

some jurisdictions, the authority of a police officer to arrest may be linked to whether the crime is considered

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a felony or a misdemeanor. In many states the classification impacts which court will have the authority to

hear the case. In some states, the felony-misdemeanor classification determines the size of the jury.

Classifications Based on the Type of Harm Inflicted Almost all state codes classify crimes according to the type of harm inflicted. The Model Penal Code uses

the following classifications:

• Offenses against persons (homicide, assault, kidnapping, and rape, for example)

• Offenses against property (arson, burglary, and theft, for example)

• Offenses against family (bigamy and adultery, for example)

• Offenses against public administration (e.g., bribery, perjury, escape)

• Offenses against public order and decency (e.g., fighting, breach of peace, disorderly conduct,

public intoxication, riots, loitering, prostitution)

Classifications based on the type of harm inflicted may be helpful for the purpose of an organization, but

some crimes such as robbery may involve both harms to a person and property. Although generally, whether

a crime is a person or property crime may not have any legal implications when a person is convicted, it may

matter if and when the person commits a new crime. Most sentencing guidelines treat individuals with prior

person-crime convictions more harshly than those individuals with prior property-crime convictions. That

said, it is likely that the defense will argue that it is the facts of the prior case that matter not how the crime

was officially classified.

Mala in se Mala PrMala in se Mala Prohibitaohibita Crimes Crimes have also been classified as either mala in semala in se (inherently evil) or mala prmala prohibitaohibita (wrong simply

because some law forbids them). Mala in se crimes, like murder or theft, are generally recognized by every culture as evil and morally wrong. Most offenses that involve injury to persons or property are mala in se. All of the common law felonies (murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem and

burglary) were considered mala in se crimes. Mala prohibita crimes, like traffic violations or drug possession, are acts that are crimes not because they are evil, but rather because some law prohibits them. Most of the

newer crimes that are prohibited as part of a regulatory scheme are mala prohibita crimes. Substantive and Procedural Law Another classification scheme views the law as either substantive law or procedural law. Both criminal law

and civil law can be either substantive or procedural. Substantive criminal law is generally created by statute

or through the initiative process and defines what conduct is criminal. For example, substantive criminal

law tells us that Sam commits theft when he takes Joe’s backpack if he did so without Joe’s permission if he

intended to keep it. Substantive criminal law also specifies the punishment Sam could receive for stealing

the backpack (for example, a fine up to $500.00 and incarceration of up to 30 days). The substantive law

may also provide Sam a defense and a way to avoid conviction. For example, Sam may claim he reasonably

mistook Joe’s backpack as his own and therefore can assert a mistake of fact defense. Procedural law gives

us the mechanisms to enforce substantive law. Procedural law governs the process for determining the

rights of the parties. It sets forth the rules governing searches and seizures, investigations, interrogations,

pretrial procedures, and trial procedures. It may establish rules limiting certain types of evidence, establishing

timelines, as well as require the sharing of certain types of evidence and giving a certain type of notice. The

primary source of procedural law is judicial interpretations of the federal constitution and state constitutions,

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but state and federal statutes, particularly those adopting rules of evidence, also provide much of our

procedural law.

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3.7. Substantive Law: Defining Crimes, Inchoate Liability,

Accomplice Liability, and Defenses

LORE RUTZ-BURRI

Substantive Law Substantive law includes laws that define crime, meaning laws that tell us what elements the government

needs to prove in order to establish that this crime has been committed. Substantive law also includes the

definitions of inchoate crimes (incomplete crimes) of conspiracies, solicitations, and attempts. Substantive law also sets forth accomplice liability (when a person will be held responsible when they work in concert with others to complete a crime). Substantive law also identifies the defenses that a person may raise when they are charged with a crime. Finally, substantive law indicates the appropriate penalties and sentences for

crimes. Today, the great majority of substantive law has been codified and is found in the state’s particular

criminal code or in the federal code. Generally, criminal codes are separated into two parts: a general part

and a special part. The general part typically defines words and phrases that will be used throughout the

code (for example, the word intentionally), indicates all possible defenses and provides the general scheme

of punishments. The special part of the code typically defines each specific crime setting forth the elements of the crime (components of the crime) the government must prove beyond a reasonable doubt in order to convict a defendant of a crime.

Elements of the crime With the exception of strict liability crimes and vicarious liability crime (discussed below), the government

will always have to prove that the defendant committed some criminal act, the actus ractus reuseus element and that he or she acted with criminal intent, the mens rmens reaea element. When proving a crime of conduct, the state must prove that the defendant’s conduct met the specific actus reus requirement. The government must prove that

the defendant’s behavior was either a voluntary act (meaning not the product of a reflex or done while asleep,

or under hypnosis), a voluntary omission to act (meaning that he or she failed to act) when there was a legal

duty to do so, or that he or she possessed some item that should not have been possessed. To meet the mens

rea element, the state must prove that the defendant’s act was triggered by criminal intent. The elements of

a specific crimes may also include what is referred to as attendant circumstances. Attendant circumstances are additional facts set out in the substantive law’s definition that the state must prove to establish a crime, for

example, that the place burglarized be a dwelling, or that the property value is a at least a certain amount.

When proving a crime of causation, the state must also prove that the defendant caused specific, listed

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harm. Although generally not included in the listed elements, to prove a crime of causation, the government

must also prove that the defendant is the actual cause of the harm (actual or but/for cause) and that it is fair to hold him or her responsible (that the defendant is the legal or proximate cause of the harm).

Statutes are generally silent on the other elements of crimes of conduct or crimes of causation: legality and concurrence. The legality element is met when a law is validly enacted and puts people on notice that certain behavior is illegal. Laws are presumed to be valid, and the state generally does not have to begin each

case by proving that proper procedure was followed when the law was enacted. The concurrence element requires the state must also prove that the criminal intent triggered the criminal act–that the mens rea and

actus reus occurred at the same time.

Occasionally, a statute will be silent as to the mens rea element. When this occurs, courts need to decide whether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the law. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts

are disinclined to find in favor of strict liability statutes unless there is a clear indication that the legislature

intended to create strict liability. The courts will examine legislative history, the seriousness of harm caused

by the crime, whether the crime is male in se or mala prohibitum, and the seriousness of the punishment in deciding whether the state should be relieved of its obligation to prove criminal intent of the defendant. As

a general rule, the courts are more likely to find that a crime is a strict liability one when there is a small

punishment and when the crime is more of a recent, regulatory offense (mala prohibitum crime). Inchoate Offenses: Attempt, Conspiracy, and Solicitation In order to prevent future harm, state and federal governments have enacted statutes that criminalize

attempts to commit crimes, solicitations to commit crimes, and conspiracies to commit crimes. The common

law also recognized these inchoate offenses or incomplete offenses. With each of the inchoate crimes, the state must prove that the defendant intended to commit some other crime, the highest level of criminal

intent. For example, there is no crime of attempt, but there is a crime of attempted theft. State laws vary in the approaches and tests of whether the defendant has taken enough steps to be charged with attempt, but all

agree that mere preparation does not constitute an attempt. Conspiracies involve an agreement between at least two parties to commit some target crime. Some jurisdictions also require that there be an overt act in furtherance of the crime (some outward movement towards the commission of the target crime) which

reaffirms there is a meeting of the minds between the co-conspirators. Solicitations involve a person asking another to commit a crime on his or her behalf, and they do not even require an agreement by the person

requested to do so.

Accomplice Liability: Aiders and Abetters People who commit crimes frequently do so with assistance. Substantive criminal law describes when a

person can be found guilty for the acts of another. For example, the common law recognized four parties

to a crime: principal in the first degree, principal in the second degree, accessory before the fact, and

accessory after the fact. Many complicated legal rules developed to offset the harsh common law treatment of

most crimes as capital offenses (death penalty eligible). The modern statutory trend has been to recognize accomplices, people who render assistance before and during the crime, on one hand, and accessories after the fact, people who help the offender escape responsibility after the crime has been committed, on the other.

Accomplices, as treated as equally liable as the main perpetrator as “the hand of one, is the hand of them all.”

Accessories after the fact, under the modern trend, are charged with hindering prosecution or obstructing

justice after the crime are punished to a lesser extent than the main perpetrators.

Vicarious Liability

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A few states have enacted vicarious liability statutes seeking to hold one person responsible for the acts of another, even when they did not provide any assistance and may have not even known about the other’s

behavior. These statutes, generally violate our belief in individual responsibility that only people who do

something wrong should be blamed for the crime. Vicarious liability imputes (transfers) both the criminal

intent and the criminal act of one person to another. Courts generally invalidate these purported vicarious

liability statutes but have at times upheld liability based upon an employer/employee relationship or a parent/

child relationship.

Defenses Assuming the government has proven all the elements of a crime, defendants may nevertheless raise

defenses that may result in their acquittal. Defense is a general term that includes perfect and imperfect defenses, justifications and excuses, and procedural defenses.

Perfect and Imperfect Defenses A perfect defense is one that completely exonerates the defendant. If the defendant is successful in raising

this defense, meaning the jury believes him or her, the jury should find the defendant not guilty. An

imperfect defense is one that reduces the defendant’s liability to that of a lesser crime. If the jury believes the defendant, it should find the defendant guilty of a lesser charge.

Negative Defenses and Affirmative Defenses Sometimes the government is unable to prove all the elements of the crime charged. When this happens,

the defendant may raise a negative defense claim. The defendant doesn’t have to prove anything, instead, he or she just argues that something is missing in the state’s case, that the state did not prove everything the

statute said it had to prove, and therefore the jury should find him or her not guilty. For example, when

charging a defendant with theft, the state must prove that the defendant intentionally took the property of

another. If the jury finds that the defendant did not intend to take the property, or took property that that

was rightfully his or hers, then it should find the defendant not guilty. Negative defenses at their essence

are claims that there are “proof problems” with the state’s case. The defendant’s claim that the state failed to

prove its case does not depend on whether the defendant has put on any evidence or not.

An affirmative defense requires the defendant to put on evidence that will persuade the jury that he or she should either be completely exonerated (for a perfect defense) or be convicted only of a lesser crime (for an

imperfect defense). The defendant can meet this requirement by calling witnesses to testify or by introducing

physical evidence. Because of the presumption of innocence, the burden of proof (the requirement that the party put on evidence and persuade the fact-finder) cannot switch completely to the defendant. The state

must ultimately bear the burden of proving defendant’s guilt by putting on enough evidence that defendant

has committed the crime by proving each and every material element of the crime, and it must convince

the jury of this guilt beyond a reasonable doubt. However, when the defendant raises an affirmative defense,

the burden of production or persuasion switches, at least in part and temporarily, to the defendant. The

defendant’s burden is limited, however, to prove the elements of the defense he or she asserts.

Note the interplay of negative defenses and affirmative defenses. Even if a defendant is unsuccessful in

raising an affirmative defense, the jury could nevertheless find him or her not guilty based upon the state’s

failure to prove some other material element of the crime.

Justifications Sometimes doing the right thing results in harm. Society recognizes the utility of doing some acts

in certain circumstances that unfortunately result in harm. In those situations, the defendant can raise a

justification defense. Justification defenses allow criminal acts to go unpunished because they preserve an

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important social value or because the resulting harm is outweighed by the benefit to society. For example, if

a surgeon cuts someone with a knife to remove a cancerous growth, the act is a beneficial one even though

it results in pain and a scar. In raising a justification defense, the defendant admits he did a wrongful act, such

as taking someone’s life, but argues that the act was the right thing to do under the circumstances. At times,

the state’s view differs from the defendant’s view of whether the act was, in fact, the right thing to do. In

those cases, the state files charges to which the defendant raises a justification defense.

Justification defenses include self-defense, defense of others, defense of property, defense of habitation,

consent, and necessity, also called, choice of evils. Justifications are affirmative defenses. The defendant must

produce some evidence in support of these defenses. In most cases, the defendant must also convince the jury

that it was more likely than not (a preponderance of the evidence) that his or her conduct was justified. For

example, the defendant may claim that he or she acted in self-defense and at trial would need to call witnesses

or introduce physical evidence that supports the claim of self-defense, that it was more likely than not that

his or her actions were ones done in self-defense. State law may vary about how convinced the jury must be

(called the standard of proof) or when the burden switches to the defendant to put on evidence, but all states

generally require the defendant to carry at least some of the burden of proof in raising justification defenses.

Excuses Excuses are defenses to criminal behavior that focus on some characteristic of the defendant. With excuses,

the defendant is essentially saying, “I did the crime, but I am not responsible because I was . . . insane (or too

young, intoxicated, mistaken, or under duress).” Excuses include insanity, diminished capacity, automatism,

age, involuntary intoxication, duress, mistake of fact, and then a variety of non-traditional syndrome excuses.

Like justifications, excuses are affirmative defenses in which the defendant bears the burden of putting on

some evidence to convince the jury that he or she should not be held responsible for his or her conduct.

Procedural Defenses Procedural defenses are challenges to the state’s ability to bring the case against the defendant for some

reason. These defenses point to some problem in the process or the state’s lack of authority to bring the case

rather than facts surrounding the crime or the criminal. Procedural defenses include: double jeopardy (a defense in which the defendant claims that the government is repeatedly and impermissibly prosecuting him

or her for the same crime), speedy trial (a defense in which the defendant claims the government took too long to get his or her case to trial), entrapment (a defense in which the defendant claims the government in some way enticed him or her into committing the crime), the statute of limitations (a defense in which the defendant claims the government did not charge him or her within the required statutory period), and several types of immunity (a defense in which the defendant claims he or she is immune from being prosecuted). Although procedural defenses are considered procedural criminal law, many states include the

availability of these defenses in their substantive criminal codes.

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3.8. Substantive Law: Punishment: Incarceration and Confinement

Sanctions

LORE RUTZ-BURRI

Substantive criminal law not only defines what behaviors are crimes, but also the law that determines

the permissible punishment for the criminal behavior. All three governmental branches of government

impact criminal punishment. One of the most important duties of a judge is to impose a sentence which means determining the appropriate punishment for an offender upon conviction. Thus, punishing offenders

is a judicial function. Because of the trend toward mandatory sentencing, discussed below, much of the

discretion of sentencing has been removed from judges and placed on the prosecutors in their screening and

charging decision-making. As such, punishing offenders may rightly be considered an executive function.

Finally, the lengths of sentences and types of punishment that attach to the various crimes, without regard

to who may be committing the offense, is a product of the legislative process. In the last 30 years, through

ballot measures, propositions, referendum, and initiatives, the people (the general public through voting)

have played a large role in deciding the types and lengths of punishment.

Incarceration/Confinement Sanctions Confinement sanctions include incarceration in prisons and jails, incarceration in boot camps, house arrest,

civil commitment for violent sexual offenders, short term shock incarceration, electronic monitoring, and

split probation (when incarceration is imposed as a condition of probation). Most believe that confinement

is the only effective way to deal with violent offenders. Although people question the efficacy of prison,

regarding it as little more than a factory for producing future criminals, incarceration does protect society

outside the prison from dangerous offenders. Prison is effective at incapacitation, but rarely is it effective at

rehabilitation. In fact, serving time in prison often reinforces criminal tendencies.

State and federal approaches to incarcerating individuals have shifted in response to prevailing criminal

justice thinking and philosophy. Over time, governments have embraced four different approaches to

sentencing offenders to incarceration: indeterminate, indefinite, determinate, or definite. Criminal codes

may incorporate more than one single approach. These approaches can be seen as a spectrum of judicial

discretion. Indefinite and indeterminate sentences, at one end, are those that allow judges and parole boards the most discretion and authority. Determinate and definite sentences, at the other end, allow little or no discretion. Currently, most states are following determinate sentencing coupled with sentencing

guideline, mandatory minimums, habitual offender statutes, and penalty enhancement statutes.

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Indeterminate-Indefinite Sentencing Approach For much of the twentieth century, statutes commonly allowed judges to sentence criminals to

imprisonment for indeterminate periods. Under this indeterminate sentencing approach, judges sentenced

the offender to prison for no specific time frame and the offenders’ release was contingent upon getting

paroled, or released by a parole board after a finding that the person was rehabilitated. Because some criminals would quickly be reformed but other criminals would be resistant to change, indeterminate

sentencing’s open-ended time frame was deemed optimal for allowing treatment and reform to take

its course, no matter how quickly or slowly. The decline of popular support for rehabilitation has led

most jurisdictions to abandon the concept of indeterminate sentencing. Indefinite sentences give judges

discretion, within defined limits, to set a minimum and maximum sentence length. The judge imposes a

range of years to be served, and a parole board decides when the offender will ultimately be released.

Determinate-Definite Sentencing Approach Under determinate sentencing, judges have little discretion in sentencing. The legislature sets specific

parameters on the sentence, and the judge sets a fixed term of years within that time frame. The sentencing

laws allow the court to increase the term if it finds aggravating factors, and reduce the term if it finds

mitigating factors. With determinate sentencing, the defendant knows immediately when he or she will be

released. In determinate sentencing, offenders may receive credit for time served while in pretrial detention

and “good time” credits. The discretion that judges are allowed in initially setting the fixed term is what

distinguishes determinate sentencing from definite sentencing.

Definite sentencing completely eliminates judicial discretion and ensures that offenders who commit the

same crimes are punished equally. The definite sentence is set by the legislature with no leeway for judges or

corrections officials to individualize punishment. Currently, no jurisdiction embraces this inflexible approach

that prohibits any consideration of aggravating and mitigating factors in sentencing. Although mandatory

minimum sentencing embraces some aspects of definite sentencing, judges may still impose longer than the

minimum sentence and therefore retain some limited discretion.

Presumptive Sentencing Guidelines In the 1980s, state legislatures and Congress, responding to criticism that wide judicial discretion resulted

in great sentence disparities, adopted sentencing guidelines drafted by legislatively-established commissions. These commissions proposed sentencing formulas based on a variety of factors, but the

two most important factors in any sentencing guideline scheme were the nature of the crime and the

offenders’ criminal history. Some states enacted advisory sentencing guidelines that gave suggestions to

judges statewide of what was considered an appropriate sentence that should be followed in most cases. Some

states enacted mandatory sentence guidelines that required judges to impose presumptive sentences, the length or type of sentence that was presumed appropriate unless mitigating or aggravating factors were

identified on the record.

Sentencing guidelines generally differentiate between presumptive prison sentences and presumptive

probation sentences. Judges who depart, or (select a different sentence, from the presumptive sentences can do a dispositional departure and impose prison when probation was the presumptive sentence or impose probation instead of prison. Judges may also do a durational departure in which they sentence the offender to a term length different than the presumptive term length, for example, giving an 18-month sentence

rather than a 26-month sentence.

Guideline sentencing allows for judicial discretion, but at the same time, limits that discretion. Judges

must generally make findings when sentencing the offender to a term of incarceration that is different

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from the presumptive sentence. The judge must indicate which aggravating factors (factors indicating the offender or offense is worse than other similar crimes) or mitigating factors (factors indicating the offender or offense is less serious than other similar crimes). The Sentencing Reform Act of 1984 (18 U.S. C.A. §§

3551 et. seq. 28 U.S.C.A. §§991-998) first established federal sentencing guidelines. The Act applied to all

crimes committed after November 1, 1987, and its purpose was “to establish sentencing policies and practices

for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines

prescribing the appropriate sentences for offenders convicted of federal crimes.” Scheb, at 681. It created

the United States Sentencing Guideline Commission and gave it the authority to create the guidelines. The

Commission dramatically reduced the discretion of federal judges by establishing a narrow sentencing range

and required that judges who departed from the ranges state in writing their reason for doing so. The Act

also established an appellate review of federal sentences and abolished the U.S. Parole Commission.

Most states have adopted some version of sentencing guidelines, from the very simple to the very complex,

and many states restrict their guidelines to felonies. Although limiting judicial discretion, state sentencing

guideline schemes all allow some wiggle room if the judge finds that the case differs from the run of the

mill case. In a series of cases, the Court has found that federal and state sentencing guidelines schemes that

do not require the jury to make findings of aggravating factors which justify a harsher sentence imposed

by the judge violate the defendant’s right to a jury trial (found in the Sixth Amendment). See, Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Booker-United States v. Fanfan, 543 U.S. 220 (2005); Blakeley v. Washington, 542 U.S. 296 (2004). Accordingly, some of the sentencing guideline schemes have been invalidated and some modified.

“There is still considerable uncertainty about the efficacy of sentencing guidelines. There is evidence

that they have reduced sentencing disparities but they clearly have not eliminated this problem altogether.

There is also concern that sentencing guidelines have promoted higher incarceration rates and have thus

contributed to the problem of prison overcrowding. It is fair to say that to be successful, sentencing

guidelines must be accompanied by policies designed to effectively manage prison populations.” 1

Controversial Issue: Mandatory Minimum Sentences

Legislative enactments, ballot measures, initiatives, and referendums have resulted in mandatory

minimum sentences schemes in which offenders who commit certain crimes must be sentenced to prison terms for minimum periods. Mandatory minimum sentences take precedence over but do not completely

replace, whatever other statutory or administrative sentencing guidelines may be in place. It is possible for

a judge to impose a sentence that exceeds the mandatory minimum on an offender who, because of his or

her extensive criminal history or particular brutality of the crime, warrants a particularly harsh guideline

sentence.

Mandatory minimum sentences are a type of determinate sentence. Most mandatory minimum sentences

are for violent offenses or those involving the use of firearms. Federal law also mandates minimum prison

terms for serious drug crimes prosecuted in federal courts. For example, a person charged with possession

1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 683). Belmont, CA: Cengage.

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with the intent to distribute more than five kilograms of cocaine is subject to a mandatory minimum

sentence of ten years in prison. See, 21 U.S.C.A. §841 (b) (1)(A).

In our attempts to limit judicial discretion, we may have perhaps gone too far. Judges must impose

mandatory minimum sentences regardless of any compelling mitigating facts that warrant a lesser sentence,

even when victims fervently request leniency for the defendant. Sentencing discretion resting with a

neutral judge has been replaced by charging discretion resting with the prosecutor. Prosecutors, in filing

certain charges, can now compel negotiated pleas, and they now hold most of the cards. Also, mandatory

minimum sentencing has resulted in the over-incarceration of non-violent offenders. On December 18,

2018, a bi-partisan bill for criminal justice reform called the First Step Act passed the U.S. Senate with an

87-12 vote. The bill seeks to reverse some of the effects of overly harsh sentences for non-violent drug

offenders.

Link to Video on the above link showing the Senate Vote on the First Step Act on December

18th2018

https://d2hpjte286tc4h.cloudfront.net/wp-raycom/(Source_%20Senate%20TV/

Twitter/@realDonaldTrump/KCAL/KCBS/CNN/Pool)/2018/12/19/5c1a0dfbe4b0dcad7654b1db/

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Other Mandatory Sentences–Penalty Enhancements Legislatures have also exercised their authority over sentencing by passing laws that enhance criminal

penalties for crimes against certain victims, for crimes done with weapons, or for hate crimes. For example,

Congress passed the Violent Crime Control and Law Enforcement Act of 1994 that included several

provisions for enhanced penalties for drug trafficking in prisons and drug-free zones and illegal drug use in

federal prisons. States have passed gun enhancements and hate crime enhancements. See, e.g., ORS 161.610 (authorizing enhanced penalties for the use of a firearm during the commission of a felony); Wisconsin v. Mitchell, 508 U.S. 486 (1993) (authorizing enhanced penalties for hate crimes).

Concurrent and Consecutive Sentences Frequently, judges sentence defendants for multiple crimes and multiple cases at the same sentencing

hearing. Judges have the option of running terms of incarceration either concurrently (at the same time) or consecutively (back-to-back). States vary as to whether the default approach on multiple sentences is

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

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consecutive sentences or concurrent sentences. The Court has held that the decision to impose concurrent

or consecutive sentences was a judicial determination, not a jury determination, and thus not subject to

Apprendi’s rule that any sentencing enhancement factor must be proved to the jury beyond a reasonable doubt. Oregon v. Ice,555 U.S. 160 (2009). Justice Ginsberg wrote,

“Most States continue the common law-tradition: They entrust to judges’ unfettered discretion the

decision whether sentences for discrete offenses shall be served consecutively or concurrently. In some

States, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order

concurrent sentences upon finding cause therefor. The other States, including Oregon, constrain judges’

discretion by requiring them to find certain facts before imposing consecutive rather than concurrent

sentences.” 2

Civil Commitment of Violent Sexual Offenders Some sexual offenders may still be dangerous even after they serve their entire prison term. Both state

and federal laws allow the continued confinement of violent sexual predators after the expiration of their

criminal sentences. In 1997, the Court upheld a Kansas statute finding that such confinement did not violate

the double jeopardy or ex post facto prohibitions. Kansas v. Hendricks, 521 U.S. 346 (1997). In 2010, the Court decided that in enacting the Adam Walsh Act, 18 U.S.C. 4248, Congress had not exceeded its authority by

allowing civil commitment after an offender has served his or her criminal sanction. Justice Breyer wrote,

“the statute is a necessary and proper means of exercising the federal authority that permits Congress to

create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those

imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the

federal imprisonment of others.” 3

Link to 2015 report on Federal Sentencing (includes incarceration and alternatives) (link also included

below with split probation.

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/

alternatives/20150617_Alternatives.pdf

2. Oregon v. Ice, 555 U.S. 160, at 163-164 (2009). 3. United States v. Comstock, 560 U.S. 126, at (2010).

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3.9. Substantive Law: Physical Punishment Sentences

LORE RUTZ-BURRI

Physical Punishment Corporal Punishment Until 1978, the Supreme Court upheld the use of corporal punishment (physical punishment). Ingraham

v. Wright 430 U.S. 651 (1978). However, it is no longer an approved sanction for a criminal offense in the United States. Nonlethal corporal punishment, such as flogging, was used extensively in English and

American common law for non-felony offenses. The misdemeanant was taken to the public square, bound

to the whipping post, and administered as many lashes as the law specified.

“An American judge during the early American Republic was able to select from a wide array of

punishments, most of which were intended to inflect intense pain and public shame. A Virginia statute

of 1748 punished the stealing of a hog with twenty-five lashes and a fine. The second offense resulted in

two hours of pillory (public ridicule) or public branding. A third theft resulted in a penalty of death. False

testimony during a trial might result in mutilation of the ears or banishment from the colony. These penalties

were often combined with imprisonment in a jail or workhouse and hard labor. . .

We have slowly moved away from most of these physically painful sanctions. The majority of states

followed the example of the U.S. Congress, which in 1788 prohibited federal courts from imposing

whipping and standing in the pillory. Maryland retained corporal punishments until 1953, and Delaware

only repealed this punishment in 1972. Delaware, in fact, subjected more than 1600 individuals to whippings

in the twentieth century. This practice was effectively ended in 1978 when the Eighth Circuit Court of

Appeals ruled that the use of the strap, “offends contemporary standards of decency and human dignity and

precepts of civilization which we profess to possess.” 1

Controversial Issue: Capital Punishment: Death Penalty Capital punishment (lethal physical punishment) is a popular topic, and much has been written about the

death penalty. One excellent resource for learning about the death penalty is the death penalty information

center (DPIC), a nonprofit organization that publishes studies and analyzes trends in death penalty law and

application.

Link to Death Penalty Information Center:

https://deathpenaltyinfo.org/

1. Lippman, M.R. (2016) Contemporary Criminal Law: Concepts, Cases, and Controversies (4th ed., pp. 57). SAGE Publishing.

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Link to Death Penalty Information Center Fact Sheet

https://deathpenaltyinfo.org/documents/FactSheet.pdf

See Death Penalty Fast Facts at

https://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html

The use of the death penalty as a response to crime in industrialized nations raises many questions:

• Is the death penalty a deterrent?

• Is the death penalty justified by principles of retribution?

• Is the death penalty morally or ethically justified?

• Does it cost more to impose a death sentence or to impose a true-life sentence?

• Are factually innocent individuals erroneously executed (and if so, how often)?

• Is any particular manner of execution cruel and unusual?

• Is the death penalty, in itself, cruel and unusual punishment?

Courts answer only the last two questions, and, to date, the Court has upheld every manner of execution

that is currently approved in the United States: firing squad, electrocution, gas chamber, hanging, and lethal

injection. The Court appears willing to uphold capital punishment and has found it is not disproportionately

cruel and unusual when the crime for which the defendant was convicted resulted in the death of another.

It has reached an opposite result when the crime did not involve the victim’s death, for example, when the

defendant was convicted of rape of an adult woman and a child rape. See, Coker v. Georgia, 433 U.S. 584 (1977) The Court prohibited capital punishment for the crime of rape of an adult victim. Coker suggests that the death penalty is an inappropriate punishment for any crime that does not involve the taking of human

life. In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court invalidated a Louisiana statute that allowed for the death penalty for rape of a child less than twelve years of age. Justice Kennedy (not the defendant,

Kennedy) wrote, “the Eighth Amendment bars imposing the death penalty for the rape of a child where the

crime did not result and was not intended to result, in the death of the victim.”

Mental Illness, Mental Deterioration and the Death Penalty

According to Court interpretations, the Eighth Amendment forbids the execution of someone who is legally

insane. Ford v. Wainwright, 477 US 399 (1986). In 2007, the Court ruled that a prisoner is entitled to a hearing to determine his mental condition upon making a preliminary showing that his current mental state would bar his

execution. Panetti. v. Quarterman, 551 US 930 (2007). In one case, the Texas Court of Criminal Appeals in 2013 held that a trial court illegally ordered the forcible medication of a mentally ill death row inmate, Steven Stanley, for the

purpose of rendering him competent to be executed. See, http://www.deathpenaltyinfo.org. Staley’s mental health

began to deteriorate when he entered death row in 1991. He received an execution date in 2006 but was deemed

too ill to be executed. A court ordered that his paranoid schizophrenia is treated by forcible medication, which

continued for six years. In its ruling, the Texas Court of Criminal Appeals held that “the evidence conclusively

shows that appellant’s competency to be executed was achieved solely through the involuntary medication, which

the trial court had no authority to order under the competency-to-be-executed statute. The finding that appellant

Introduction to the American Criminal Justice System

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is competent must be reversed for lack of any evidentiary support”. The ruling did not address whether the state

constitution forbids the execution of someone forcibly drugged or whether the defendant, in this case, is too ill to

be executed at all. Another mentally ill individual, John Ferguson, was executed in August 2013 in Florida through

four mental health organizations maintained that he had suffered from mental illness for at least 40 years. Similarly,

Marshall Gore, another Florida inmate with mental illness, was executed in October 2013.

Link to mental illness and the death penalty

https://deathpenaltyinfo.org/mental-illness-and-death-penalty

A different but related issue is the constitutionality of executing mentally retarded individuals who have

committed capital offenses. In 1989, the Court held that executions of mentally retarded prisoners do not

necessarily violate the Cruel and Unusual Punishment Clause if juries are allowed to consider evidence of mental

retardation as a mitigating factor in the sentencing phase of a capital trial. Penry v. Lynaugh, 492 U.S. 302 (1989).

Later, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court reconsidered, holding that there was a sufficient national consensus for the Court to prohibit the execution of mentally retarded persons via the Eighth Amendment. Justice

Stevens concluded,

“[M]entally retarded person who meets the law’s requirement for criminal responsibility should be tried and

punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of

their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult

criminal conduct” 2 .

On February 27th, 2019 the Court affirmed that the states may not execute a death row inmate who was unable

to understand his punishments due to dementia. In Madison v. Alabama, ___ U.S. ___ (2019), the 70-year-old defendant had spent 33 years in solitary confinement after having been sentenced to death for killing a police officer

in 1985. Madison had suffered a series of strokes causing severe cognitive impairment due to vascular dementia and

the inability to remember his crime. Justice Kagan’s majority opinion held that an inmate’s failure to remember

his crime does not by itself render him immune from execution, but “such memory loss still may factor into the

‘rational understanding’ analysis that Panetti demands.” If memory loss “combines and interacts with other mental

shortfalls to deprive a person of the capacity to comprehend” his death sentence, “then the Panetti standard will be satisfied.” ____ U.S. ____, at ____ (2019)

According to the Court, it doesn’t matter if these “mental shortfalls” stem from delusions, dementia, or some other

disorder. Courts must “look beyond any given diagnosis to a downstream consequence”—whether a disorder can

“so impair the prisoner’s concept of reality” that he cannot “come to grips with” the meaning of his punishment.”

Juvenile Offenders and the Death Penalty

Historically, juveniles were treated no differently than adults in the criminal justice system, and thus,

there is a long history of executing juveniles convicted of capital crimes. In the late 1980s, the Court

2. Atkins v. Virginia, 536 U.S. 304 (2002).

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considered whether national sentiment had changed to the point where it would now be considered cruel

and unusual punishment to apply the death penalty to juveniles. The Court first held that the Constitution

prohibits executing a juvenile who was fifteen years of age or younger at the time he or she committed

the capital crime. Thompson v. Oklahoma, 487 U.S. 825 (1988). One year later, the Court, in a 5-4 decision,

held that a juvenile sixteen years or older at the time of the crime could be sentenced to death. Stanford v.

Kentucky, 492 U.S. 361 (1989). Then, in Roper v. Simmons, 543 U.S. 551 (2005), the Court said that the Constitution forbade the execution of anyone who was under eighteen at the time of their offense. The

Simmons decision pointed to the decreasing frequency with which juvenile offenders were being sentenced to death as evidence of an emerging national consensus against capital punishment for juveniles. The Court

noted that only 20 of the 37 death penalty states allowed juveniles to be executed, and since 1995, only

three states had actually executed inmates for crimes they had committed as juveniles.

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3.10. Substantive Law: Monetary Punishment Sentences

LORE RUTZ-BURRI

Monetary Punishments Fines Fines, or a sum of money the offender has to pay as punishment for the crime, are generally viewed as

the least severe of all possible punishments. Fines may either supplement imprisonment or probation, or they

may be the sole punishment. Criminal codes generally authorize fines as punishment for most crimes, but

some of the older criminal codes did not authorize fines for murder.

The Model Penal Code proposed legislative guidelines on the use of fines, but states have generally

rejected this provision. Instead, judges are given extremely broad discretion in setting the fine amounts,

and there are few limits on the judge’s ability to impose a fine. Frequently, the criminal statute will specify

the highest permissible fine. The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits

excessive fines, but courts rarely have found a fine to violate this provision. In Tate v. Short, 401 U.S. 395 (1971), the Court found that fines that punish poor people more harshly than rich people, and thus, violate

the Equal Protection Clause. Historically, magistrates had given offenders the option of paying a fine or

serving a jail sentence. Sentences were frequently “thirty dollars or thirty days”. If defendants were too poor

to pay the fine, they went to jail. The Tate Court reasoned that the state could imprison Tate for committing the crime, but by requiring either time or a fine, the state was really incarcerating Tate because he was too

poor to pay the fine. After Tate, courts began using installment plans that permit poor defendants to pay fines over a period of several months. This practice may nonetheless subject the poor to an increased punishment

if the court administration requires interest or some fee associated with a payment plan.

Civil Forfeiture Federal law allows civil forfeiture, the process by which the government confiscates the proceeds

(property or money) of criminal activities. See,18 USCA §§981-982. Laws that allow the state to forfeit the property used in illicit drug activity are particularly controversial. In deciding whether forfeiture is legal,

state courts generally look to constitutional provisions dealing with excessive fines. In Austin v. United States, 509 US 602, at 622 (1993), the Supreme Court said that civil forfeiture “constitutes payment to a sovereign

as punishment for some offense’ . . . and, as such, is subject to the limitations of the Eighth Amendment’s

Excessive Fines Clause.” However, the court left it to state and lower federal courts to determine the test

of “excessiveness” in the context of forfeiture. The Illinois Supreme Court said that three factors should be

considered in this regard: (1) the gravity of the offense relative to the value of the forfeiture, (2) whether the

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property was an integral part of the illicit activity, and (3) whether the illicit activity involving the property

was extensive. 1

Federally, a $357,144 forfeiture for failing to report to U.S. Customs that more than $10,000

was being taken out of the country was found to be “grossly disproportionate” to the offense. 2

In one

Pennsylvania case, the court found that forfeiture of a house used as a base of operations in an ongoing drug

business was not excessive. 3

Defendants, whose property has been taken through civil forfeiture, have argued that either the forfeiture

hearing or the criminal trial (whichever happened last) violated their rights to be free from double jeopardy.

However, the courts have not agreed. Instead, they hold that the double jeopardy prohibition is not triggered

because forfeiture is a civil sanction and not considered a new criminal action. United States v. Ursery 518 U.S. 267 (1996). On February 20th, 2019, the Court perhaps provided a different form of attack on civil

forfeitures. In a unanimous opinion in Timbs v. Indiana, ___ U.S. ___ (2019), Justice Ginsberg wrote that the Eighth Amendment’s excessive fines clause applies to the states as well as the federal government, and that

when Indiana civilly forfeited Timbs’ $42,000 land rover after he sold a couple of hundred dollars worth of

heroin, it was imposing an excessive fine.

In order to satisfy due process, the owner is entitled to a hearing before the property can be forfeited.

United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). Courts have found that civil forfeiture is constitutional even when the owner was not aware of the property’s criminal use. For example, in Bennis v. Michigan, 516 U.S. 442 (1996), the Court upheld the government’s seizure and forfeiture of Mrs. Bennis’s car, even though she claimed she did not know that her husband was using their car to engage in prostitution.

In 2000, Congress approved the Civil Asset Forfeiture Reform Act. This Act curbed the government’s asset

forfeiture authority and added additional due process guarantees to ensure that property is not unjustly taken

from innocent owners. Under the Act, the government must show by a preponderance of the evidence that

the property was used in some criminal venture. The Act also limited the statute of limitations to five years

and made it a crime to move or destroy property to prevent seizure for forfeiture. In a similar vein, Oregon

voters passed Ballot Measure 3, the Oregon Property Protection Act of 2000, in the November election. This

constitutional amendment imposed limits on government forfeiture, allowing forfeiture only if the person

from whom the property was seized had been already convicted of the crime, and only if the government

could prove by a clear and convincing evidence standard that the property was a proceed or instrument of

the crime.

Link to http://www.osbar.org/publications/bulletin/06nov/forfeiture.html, for a discussion of the recent

history of asset forfeiture in Oregon and the debate about Ballot Measure 3 and subsequent forfeiture cases

and statutes.

Restitution and Compensatory Fines Restitution refers to the “return of a sum of money, an object, or the value of an object that the

1. Waller v. 1989 Ford F350 Truck, 642 N.E. 2d 460 (Ill. 1994). 2. United States v. Bajakajian, 524 U.S. 321 (1998). 3. In re King Properties, 6235 A.2d 128 (Pa 1983).

Introduction to the American Criminal Justice System

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defendant wrongfully obtained in the course of committing the crime.” 4

When the judge’s sentence includes

restitution, the amount should be enough money to place the victim in the same position they would have

been had the crime not been committed. Restitution orders can include the actual cost of destroyed property,

medical bills, counseling fees, and lost wages. Several state laws require offenders to pay restitution as a

condition of probation. Judges may order defendants to pay restitution for all damages incurred during a

criminal episode, even if the charge is dismissed through negotiations. Judges may also order the defendant

to pay restitution to some party other than the victim.

Ordering restitution is not always practical. When offenders are sentenced to incarceration, they

frequently are unable to pay fines and restitution. Even offenders sentenced to probation may not be able

to make restitution payments. In order to assist crime victims when offenders cannot pay restitution, several

states have established victims’ compensations commissions. Statewide, defendants make their restitution payments to these commissions that pay out restitution claims to victims across the state. Because of the

statewide pot of money, victims can then get some, if not all, of what is needed to “make them whole.” Also,

these commissions make it possible for the victim to get compensated without having to maintain contact

with the offender.

4. Scheb, J.M. & Scheb, J.M. II (2012). Criminal Procedure (6th ed., pp. 268). Belmont, CA: Wadsworth, Cengage Learning.

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3.11. Substantive Law: Community-Based Sentences

LORE RUTZ-BURRI

In addition to incarceration and monetary sanctions, the defendant may be sentenced to some form of

community-based sanction.

Community Shaming Some judges, seeking alternatives to jail or prison, have imposed creative sentences such as requiring

offenders to post billboards, make public apologies, place signs on the door reading, “Dangerous Sex

Offender, No children Allowed,” and attach bumper stickers proclaiming their crimes. These sentences

are intended to shame or humiliate the offender and satisfy the need for retribution. Shame is part of the

restorative justice movement, but for it to be effective it needs to “come from within the offender. … Shame

that is imposed without almost always hardens the offenders against reconciliation and restoration of the

damage done” http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html

“At the heart of the current discussion of shaming offenders is the assumption that shame is a simple

emotion that comes in only two sizes: shame or no shame. But actually, shame is a complex emotion which

comes in many shapes, sizes, and degrees of intensity. Legal scholars and judges who treat shame as merely

binary are in the position of a skier who makes no distinction between the many kinds of snow. Just as

lack of knowledge of types of snow may lead a skier to disaster, so the crude treatment of shame in current

discussions could be a catastrophe.” 1

Community Service Although not necessarily specified in the criminal code, judges frequently sentence offenders to complete

community service as a condition of probation. Generally, a probation officer or probation staff member will

act as the community service coordinator. His or her job is to link the offender to the positions and verify

the hours worked.

Probation Kerper describes how states began to use probation as a sanction for criminal behavior.

“The authority to grant probation probably grew out of the traditional practice of judges of “suspending

sentences.” The judge would simply fail to set a sentence or set the sentence and fail to direct that it

be executed. The offender would then be released. If the offender’s subsequent behavior was satisfactory,

nothing more would be done. If he had further difficulty with the law, the judge, usually on request of the

1. http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html

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prosecutor, would revoke his freedom. This time the judge would set a sentence, or reinstate the previous

sentence, and the sentence would be executed. The common law authority of a judge to spend a sentence

was questionable, but many judges regularly exercised that authority.

Since the defendant released on a suspended sentence was not subject to formal supervisions, judges tended

to suspend sentences only in minor cases. In the late 1800s, courts began to experiment with a combination

of a suspended sentence and careful supervision that could be applied to more serious offenses. This new

procedure, called probation, soon was authorized by statute and provision was made for the appointment of

special probation officers.” 2

Probation is one of the most common alternatives to incarceration. Both probation and parole involve supervision of the offender in a community setting rather than in jail or prison. The primary purpose

of probation is to rehabilitate the defendant. Thus, the court releases the offender to the supervision of

a probation officer who then monitors the offender to ensure that he or she abides by the conditions of

probation. With parole, the offender is first incarcerated and is later released from prison to supervised control. Under both procedures, offenders who violate the terms of their supervision can be imprisoned to

serve the remainder of their sentences.

The Court has said little on probation since 1932 when it announced that probation conditions must

serve “the ends of justice and the best interest of both the public and the defendant.” Burnes v. United States, 287 U.S. 216 (1932). According to the Ninth Circuit Court of Appeals, “The only factors which the trial

judge should consider when deciding whether to grant probation are the appropriateness and attainability

of rehabilitation and the need to protect the public by imposing conditions which control the probationer’s

activities.” Higdon v. United States, 627 F.2d 893 (9th Circ. 1980). The Court has fashioned a two-step process for reviewing conditions of probation: first, it determines whether the conditions are permissible, and, if so,

it determines whether there is a reasonable relationship between the conditions imposed and the purpose of

probation.

Many states follow California’s standard for testing the reasonableness of probation conditions. This

approach holds that probation conditions do not serve the ends of probation and are not valid if (1) the

condition of probation has no relationship to the crime of which the offender was convicted, (2) the

condition relates to conduct which is not in itself criminal, or (3) the condition requires or forbids conduct

which is not reasonably related to future criminal act. People v. Dominguez, 64 Cal. Rptr. 290 (Cal. App. 1967) The court struck down a condition that the “probationer not become pregnant without being married,”

saying it was unrelated to her offense or to future criminality.

Courts have invalidated the following probation conditions:

• Requiring the offender to refrain from using or possessing alcoholic beverages when nothing

in the record showed any connection between alcohol consumption and the weapons violation

of which the probationer had been convicted. Biller v. State, 618 So. 2d 734 (Fla 1993).

• Requiring the defendant to submit to a search of herself, her possessions, and any place

2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 339). West Publishing Company.

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where she may be with or without a search warrant, on request of a probation officer. (The

Court noted that search of a probationer and his or her residence, with or without a warrant,

based on reasonable suspicion that probationer violated the terms of probation would be valid.)

Commonwealth v. LaFrance, 525 N.E. 2d 379 (Mass. 1988).

• Prohibiting custody of children unless it had a clear relationship to the crime of child abuse.

• Prohibiting marriage and pregnancy.Rodriguez v. State, 378 So.2d 7 (Fla. App. 1979).

• Prohibiting the defendant from fathering any children during the probation period. Burchell

v. State, 419 So.2d 358 (Fla. App. 1982).

• Requiring the defendant to maintain a short haircut. Inman v. State, 183 S.E.2d 413 (GA. App. 1971)(the court found this condition was an unconstitutional invasion of the right to self-

expression).

Courts have upheld the following conditions:

• Prohibiting offenders convicted of child pornography from having access to the internet,

possessing a computer, and requiring the offender to submit to polygraph testing. See, United

States v. Zinn, 321 F.3d. 1084 (11th Cir. 2003), United States v. Rearden, 349 F.3d 608 (9th Cir.

2003), State v. Ehli, 681 N.W. 2d 808 (N.D. 2004), People v. Harrisson, 134 Cal.App.4th 637 (2005).

• Prohibiting the probationer from fathering any additional children unless he could

demonstrate he had the financial ability to support them, and that he was supporting the nine

children he had fathered. State v. Oakley, 629 N.W. 2d 200 (Wis. 2001).

• Requiring probationers to pay all fees, fines, and restitution, refrain from contacting the

victim, undergo treatment for substance abuse, participate in alternatives to violence classes,

stay in school, not leave the state without permission, abstain from alcohol, not drive. These

conditions that apply to all probationers are referred to as “general conditions of probation.”

Many jurisdictions authorize split probation and allow the judge to sentence the offender to a short period of jail as a condition of probation. In some cases, the offender will serve his jail time before he returns to the

community under probation supervision. In others, he will be released first and serve his time on weekends.

The federal system uses a similar procedure involving a more substantial jail sentence. The judges impose a

Introduction to the American Criminal Justice System

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split sentence under which the probationer is imprisoned for a period up to six-month and then is released on probation.

Link to alternative sentencing for federal system

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/

alternatives/20150617_Alternatives.pdf

Parole and Post-Prison Supervision Because most states now use determinate sentencing, the use of parole is dwindling and is being replaced

by post-prison supervision of offenders after their incarceration. However, for offenders sentenced in the

1970s and 1980s under indeterminate sentencing schemes, parole continues to be very real hope, even if an

unlikely possibility.

Charles Manson Exercise

Consider the case of notorious California killer Charles Manson who died in state custody in November 2017 at

the age of 83. Manson was found guilty in 1969 of the murder of five people. He was sentenced to death, but his

sentence was converted in 1977 to “life with the possibility of parole” after the California Supreme Court invalidated

its state death penalty statute. Manson applied for parole for the twentieth time in 2012, he was 78 years old at

the time. Under a change in parole release law, the next time Manson would have been eligible for parole was in

2027. The board noted that if he were to complete programs designed to help deal with some of his issues, then

he could petition for release sooner. Listen to the hearing at http://abcnews.go.com/US/charles-manson-denied-

parole-dangerous-man/story?id=16111128.

“[T]he states which have adopted determinate sentencing structures have either eliminated or drastically

restricted parole. In states with indeterminate sentencing, however, parole remains an essential element of

the sentencing structure. Parole involves the release of the prisoner subject to conditions similar to those

imposed on the probationer. Parole may be granted by the responsible state agency (usually called a parole

board) after the prisoner has served his minimum sentence. The parole board usually has several members,

who are either interested citizens appointed by the governor or corrections department personnel selected

by the head of that department. Frequently the board will be assisted by special hearing officers who hold

hearings and make recommendations to the board. Most parole boards automatically schedule hearings for

every inmate as soon as he becomes eligible for parole. If he is not released at that point, subsequent hearings

will be scheduled at regular intervals.” 3

The procedures of parole hearings vary from state to state. Indeed, not all states regularly hold hearings. A

few prefer simply to review the files in the case, permitting the prisoner to submit a statement on his own

behalf. Ordinarily, hearings are rather informal affairs held before a hearing officer or one or more board

3. O'Leary, V., & Hanrahan, K. (1977). Law and practice in parole proceedings: A national survey. Crim. L. Bull., 13, 181-197..

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members. The prisoner will be informed of the material in their parole file, which relates primarily to their

offense, their prior criminal record, and their performance in prison. The prisoner also will be given the

opportunity to state their own case for parole and to ask any questions about the parole process. In almost

half of the states, they may be assisted by an attorney, and several states will appoint an attorney upon request

of an indigent prisoner. The remaining states prohibit representation by an attorney on the ground that it

interferes with the board’s evaluation of the prisoner’s statements and demeanor at the hearing. Shortly after

the hearing, most boards will provide the prisoner with a written explanation of its decision. If the prisoner

is not released on parole, they must be released after they have served their full sentence.

Parolees are subject to a variety of conditions that are similar to probation conditions. They must contact,

or “report to”, their parole officers on a regular basis and attend regular meetings. They may be released to

halfway houses, residential treatment programs, or daytime work-release programs at the beginning of their

parole in order to prepare for return into the community.

Even when states sentencing schemes utilize parole, not all inmates are eligible for parole. In some states,

prisoners forfeit their eligibility for parole if they attempt to escape or if they engage in certain violent acts.

Also, many states have true life sentences or sentences where the offender is not eligible for parole, and persons convicted of first-degree murder are frequently sentenced to life without the possibility of parole.

Post-prison supervision stems from determinate sentencing schemes that states adopted beginning in the 1980s. Post-prison supervision boards are now often combined with parole boards, and they perform a

similar function. Offenders do not apply for post-prison supervision since release is automatically given when

the determinate sentence has been served. Generally, how long a person will be on post-prison supervision

is set out in state sentencing guidelines. A post-prison supervision board will monitor whether the offender

is abiding by the conditions of release while living in the community. If an offender violates conditions of

release during post-prison supervision, he or she is entitled to a revocation hearing with the same due process

protections given to parolees, i.e: notice, opportunity to challenge government’s evidence, and the right to

assistance of counsel.

Introduction to the American Criminal Justice System

133

3.12. Procedural Law

LORE RUTZ-BURRI

As noted above, procedural law governs the process used to investigate and prosecute an individual who

commits a crime. Procedural law also governs the ways a person convicted of a crime may challenge their

convictions. The source of procedural law includes the same sources of law you have just read about which

govern substantive criminal law: the constitution, cases law or judicial opinions, statutes, and common law.

Whereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions

that interpret the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment to the U.S. Constitution, the U.S.

Code, and the state constitutional and legislative counterparts. Generally, the federal and state constitutions

set forth broad guarantees (for example, the right to a speedy trial), then statutes are enacted to provide more

definite guidelines (for example, the Federal Speedy Trial Act) and then judges flesh out the meaning of

those guarantees and statutes in their court opinions.

Phases of the Criminal Justice Process The processing of a case through the criminal justice system can be broken down into five phases:

investigative phase, the pre-trial phase, the trial phase, the sentencing phase, and the appellate or post-

conviction phase.

Investigative Phase The investigative phase is governed by laws covering searches and seizures (searches of persons and

places, arrests and stops of individuals, seizures of belongings), interrogations and confessions, identification

procedures (for example, line ups, showups, and photo arrays). This phase mostly involves what the police

are doing to investigate a crime. However, when police apply for a search, seizure or arrest warrant, “neutral

and detached” magistrates (i.e., judges) must decide whether probable cause exists to issue search warrants,

arrest warrants, and warrants for the seizure of property and whether the scope of the proposed warrant is

supported by the officer’s affidavit (sworn statement). When an individual is arrested without a warrant, judges will need to promptly review whether there is probable cause exists to hold them in custody before

trial.

Pretrial Phase The pretrial phase is governed by laws covering the initial appearance of the defendant before a judge or

magistrate; the securing of defense counsel, the arraignment process (in which the defendant is informed of

the charges which have been filed by the state); the process in which the court determines whether to release

the defendant pre-trial either with some financial surety (posting bail) or on his or her own recognizance

134

and with court-determined conditions imposed (for example, not having contact with the alleged victim);

the selection and use of a grand jury or preliminary hearing processes (in which either a grand jury or a

judge determines whether there is sufficient evidence that a felony has been committed); any pretrial motions

such as motions to suppress evidence (for examples, asking the court not to let the government use evidence

it may have obtained illegally through a search or getting a confession), motions to challenge a subpoena,

motions to change venue (to move the trial), motions to join or sever cases (for example if two or more

individuals are charged with the offense, should the trials be held together or separately). During the pretrial

phase, prosecutors and defendants through their defense attorneys will engage in plea bargaining, and will

generally resolve the case before a trial is held.

Trial Phase The trial phase is governed by laws covering speedy trial guarantees, the selection and use of petit jurors

(trial jurors); the rules of evidence (statutory and common law rules governing the admissibility of certain types of evidence such as hearsay or character evidence, the competency and impeachment of witnesses,

the existence of any privilege, and the exclusion of witnesses during the testimony of other witnesses);

the right of the defendant compulsory process (to secure favorable testimony and evidence); the right of the defendant to cross-examine any witnesses or evidence presented by the government against him; fair

trials free of prejudicial adverse pre-trial or trial publicity; fair trials which are open to the public; and the

continued right of the defendant to have the assistance of counsel and be present during his or her trial.

Sentencing Phase The sentencing phase is governed by rules and laws concerning the substantive criminal laws on

punishment (discussed above); time period in which a defendant must be sentenced; the defendant’s right of allocution (right to make a statement to the court before the judge imposes sentence); any victims’ rights to appear and make statements at sentencing; the defendant’s rights to present mitigation evidence and

witnesses; and the defendant’s continued rights to the assistance of counsel at sentencing. In capital cases in

which the state is seeking the death penalty, the trial will be bifurcated (a trial split into the “guilt/innocence phase” and the “penalty phase”) and the sentencing hearing will be more like a mini-trial.

Post-Conviction Phase (Appeals Phase) The post-conviction phase is governed by rules and laws concerning the time period in which direct

appeals must be taken; the defendant’s right to file an appeal of right (the initial appeal which must be reviewed by an appellate court) and right to file a discretionary appeal; the defendant’s right to have the

assistance of counsel in helping to file either the appeal of right or a discretionary appeal. The post-conviction

phase is also governed by rules and laws concerning the defendant’s ability to file a writ of habeas corpus (a civil suit against the entity who is currently holding the defendant in custody) or a post-conviction relief suit (a civil suit similar to a habeas corpus suit but one which can be filed by the defendant regardless if he or she is in custody). The post-conviction phase would also include any probation and parole revocation

hearings.

Introduction to the American Criminal Justice System

135

The Constitution: What Does it Say? The Constitution of the United States contains a preamble and seven articles that describe the way the government is structured and how it operates. The first three articles establish the three branches of government and their powers: Legislative (Congress), Executive (o�ice of the President,) and Judicial (Federal court system). A system of checks and balances prevents any one of these separate powers from becoming dominant. Articles four through seven describe the relationship of the states to the Federal Government, establish the Constitution as the supreme law of the land, and define the amendment and ratification processes.

Article I

Article I assigns the responsibility for making laws to the Legislative Branch (Congress). Congress is divided into two parts, or “Houses,” the House of Representatives and the Senate. The bicameral Congress was a compromise between the large states, which wanted representation based on population, and the small ones, which wanted the states to have equal representation.

Article II

Article II details the Executive Branch and the o�ices of the President and Vice President. It lays down rules for electing the President (through the Electoral College), eligibility (must be a natural-born citizen at least 35 years old), and term length. The 12th and 25th Amendments modified some of these rules.

Article III

Article III establishes the Judicial Branch with the U.S. Supreme Court as the federal court system’s highest court. It specifies that Federal judges be appointed for life unless they commit a serious crime. This article is shorter than Articles I and II. The Federal Convention le� much of the work of planning the court system to the First Congress. The 1789 Judiciary Act created the three-tiered court system in place today.

Article IV

Article IV outlines states’ powers in relationship to each other. States have the authority to create and enforce their own laws but must respect and help enforce the laws of other states. Congress may pass Federal laws regarding how states honor other states’ laws and records.

Article V

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Article V explains the amendment process, which is di�erent and more di�icult than the process for making laws. When two-thirds of the Senate and two-thirds of the House of Representatives vote to change the Constitution, an amendment goes to the state legislatures for a vote. Alternatively, two-thirds of the state legislatures can submit an application to Congress, and then Congress calls a national convention at which states propose amendments. Three-fourths of the state legislatures or state conventions must vote in favor of an amendment to ratify it.

Article VI

Article VI states that Federal law is supreme, or higher than, state and local laws. This means that if a state law conflicts with a Federal law, Federal law takes precedence.

Article VII

Article VII describes the ratification process for the Constitution. It called for special state ratifying conventions. Nine states were required to enact the Constitution. Rhode Island became the 13th state to ratify the Constitution in 1790.

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The Bill of Rights: What Does it Say?

The Bill of Rights

The Bill of Rights is the first 10 Amendments to the Constitution. It spells out Americans’ rights in relation to their government. It guarantees civil rights and liberties to the individual—like freedom of speech, press, and religion. It sets rules for due process of law and reserves all powers not delegated to the Federal Government to the people or the States. And it specifies that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The First Amendment

The First Amendment provides several rights protections: to express ideas through speech and the press, to assemble or gather with a group to protest or for other reasons, and to ask the government to fix problems. It also protects the right to religious beliefs and practices. It prevents the government from creating or favoring a religion.

The Second Amendment

The Second Amendment protects the right to keep and bear arms.

The Third Amendment

The Third Amendment prevents government from forcing homeowners to allow soldiers to use their homes. Before the Revolutionary War, laws gave British soldiers the right to take over private homes.

The Fourth Amendment

The Fourth Amendment bars the government from unreasonable search and seizure of an individual or their private property.

The Fifth Amendment

The Fi�h Amendment provides several protections for people accused of crimes. It states that serious criminal charges must be started by a grand jury.  A person cannot be tried twice for the same o�ense (double jeopardy) or have property taken away without just compensation. People have the right against self-incrimination and cannot be imprisoned without due process of law (fair procedures and trials.)

The Sixth Amendment

The Sixth Amendment provides additional protections to people accused of crimes, such as the right to a speedy and public trial, trial by an impartial jury in criminal cases, and to be informed of criminal charges. Witnesses must face the accused, and the accused is allowed his or her own witnesses and to be represented by a lawyer. 

The Seventh Amendment

The Seventh Amendment extends the right to a jury trial in Federal civil cases.

The Eighth Amendment

The Eighth Amendment bars excessive bail and fines and cruel and unusual punishment.

The Ninth Amendment

The Ninth Amendment states that listing specific rights in the Constitution does not mean that people do not have other rights that have not been spelled out.

The Tenth Amendment

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The Tenth Amendment says that the Federal Government only has those powers delegated in the Constitution. If it isn’t listed, it belongs to the states or to the people.

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