law, justice, and society: a sociolegal introduction chapter 5 crime and criminal law
TRANSCRIPT
Crime and Criminal Law
Criminal law, a.k.a. substantive law, is the law of crimesDefined by statute prescriptions proscriptions
Enforced by the statePrimary purpose is to protect the public from harm by punishing harmful acts that have occurred and seeking to avoid harm by forbidding conduct that may lead to it
Crime and Criminal Law
“[A]n intentional act in violation of the criminal law committed without defense or excuse, and penalized by the state” (Tappan 1947, 100)
1.An act in violation2.Of a criminal law for which 3.A punishment is prescribed; 4.The person committing this action must have
intended to do so5.And to have done so without any legally
acceptable defenses or justifications
What Is Crime?
Crime and Criminal LawCrime as a Subset of Harmful Acts
Core offensesMala in se
All crimesMala in se and mala prohibita
All social harmNot regulated by criminal law
All harms
Crime and Criminal Law
Mala in se: Crimes that are considered bad in of themselves Part I offenses in the UCR are the major mala in
se crimes
Mala Prohibita: Crimes that are considered crimes because we have placed restrictions on them Listed in Part II of the UCR along with some
other less serious mala in se offenses
Crime and Criminal Law
State and federal constitutionsState and federal statutesCommon law codified in most states mid-1800s
Federal law is growing source of criminal lawStatutes define elements (various parts) of a crime more specifically than common law
Sources of Criminal Law
Crime and Criminal Law
Substantive due process: There are limits to what conduct the law may seek to prohibitForbids passage of laws that infringe on the rights of individuals free speech assembly
Overbreadth doctrine: Laws are unconstitutional when they fail to narrowly define the specific behavior to be restricted
Limitations on the Criminal Law
Crime and Criminal Law
Void for vagueness: laws are unconstitutional if they fail to clearly define the prohibited act and the punishment in advanceFair notice: letting people know what is and is not permittedMust not restrict due process: laws must be enforced fairly and non-arbitrarily Must not restrict equal protection: laws cannot restrict the rights of members of suspect classifications
Limitations on the Criminal Law (cont.)
Crime and Criminal Law
Cruel and unusual punishment: punishments must be proportional to the crimeEx post facto laws: people cannot be penalized for behavior which was not illegal at the time they acted; penalties cannot be increased after the crime has been committed ex post facto laws do apply retroactively if they are
beneficial
Bills of attainder: laws that impose punishment without trial
Limitations on the Criminal Law (cont.)
Crime and Criminal Law
Elements must be present for criminal liability to attachActus reusMens reaConcurrenceCausationHarmMake up the corpus delicti
Elements of Criminal Offenses
Crime and Criminal Law
The guilty act; three forms:Voluntary bodily movementsAn omission in the face of a duty to act failure to perform a legal duty failure to prevent serious harm when a
special relationship exists
Possession if the person has some knowledge that their
possession is illegal
Actus Reus (Criminal Act)
Crime and Criminal Law
Guilty mind; inferred from circumstances surrounding the criminal actFour levels:1. Purposeful2. Knowing3. Reckless4. NegligentDoctrine of transferred intent
Mens Rea (Criminal Intent)
Crime and Criminal Law
The union of the criminal act and the criminal intent (actus reus and mens rea)
Concurrence
Crime and Criminal Law
The criminal act is the act that is the cause of the harm2 types:1. Factual cause: “but for” the actor’s conduct the harm would not have occurred2. Legal cause: consequences of an act which are not reasonably foreseeable to the actor (intervening causes) relieve the actor of some degree of criminal liability
Causation
Crime and Criminal Law
Strict liability: imposes accountability without proof of criminal intent in situations where society deems it fair to do soStatutory rapeVicarious liability (only civil law) : the imputation of accountability from one person to another
Liability Without Fault
Crime and Criminal Law
Crimes that occur in preparation for an offenseThree types: attempt solicitation conspiracy
Inchoate Crimes
Crime and Criminal Law
Doctrine of complicity—where more than one person may be held liable for criminal activity Requires that all criminal elements be present Common law recognizes four parties to a crime:
1.Principles in the first degree
2.Principles in the second degree
3.Accessories before the fact
4.Accessories after the fact
Parties to Crime
Crime and Criminal Law
Defense is a response by the defendant which allows them to avoid criminal liabilityAlibi: defendant asserts that they did not commit the crimeAffirmative defenses: defendant admits that they committed the act, but deny criminal liability Shifts both the burden of production and persuasion to the defense (preponderance of the evidence)
Defenses to Criminal Liability
Crime and Criminal Law
A defense in which the defendant admits they are responsible for the act, but claims that under the circumstances the act was not criminalSelf-defenseConsentExecution of public duties
Justification Defenses
Crime and Criminal Law
Use of force to repel an imminent, unprovoked attack, in which they reasonably believed that they were about to be seriously injured
May only use as much force as is necessary
Retreat doctrine: a person must retreat rather than use deadly force if doing so is possible
Castle doctrine: persons attacked in their home need not retreat
Can also apply to the defense of others and property
Self-Defense
Crime and Criminal Law
Persons may content to suffer what otherwise would be an objectionable injuryConsent must be voluntary, knowing, and intelligent
Consent
Crime and Criminal Law
Agents of the state are permitted to use reasonable force in the lawful execution of their duties
Execution of Public Duties
Crime and Criminal Law
One in which the defendant admits that what they did was wrong but that under the circumstances they are not responsible for their improper conduct duress intoxication age insanity
Excuse Defenses
Crime and Criminal Law
Situations involving the threat of serious, imminent harm to oneself, where the act is less serious than the threatened harmThose forced to commit a crime in such circumstances do not act voluntarily eliminates actus reus eliminates mens rea
Duress
Crime and Criminal Law
Voluntary and Involuntary Voluntary never leads to acquittal; may only mitigate Involuntary may work as a defense as the person is not responsible for their actions
Intoxication
Crime and Criminal Law
Impairs mens reaMental illness and legal insanity are not the same M’Naghten rule—right wrong ruleDurham test—product testIrresistible mpulse testSubstantial capacity testGBMI- from Insanity Defense Reform Act of 1984
Insanity
Crime and Criminal Law
It is claimed that the defendant’s due process rights were violatedDouble jeopardy, denial of speedy trial, use of illegally seized evidenceEntrapment in one of two scenarios (Sherman v. U.S. 1958)1. The crime is the result of the “creative activity” of law enforcement2. The prosecutor cannot prove beyond a reasonable doubt that the defendant was “independently predisposed” to commit the crime
Procedural Defenses
Crime and Criminal Law
Crimes against the personCrimes against propertyCrimes against societyCrimes against morality
Categories of Crime
Crime and Criminal Law
Homicide means the killing of another human being what is a human being? When is someone alive or dead? What types of homicide deserve punishment?
3 forms of criminal homicide: murder manslaughter negligent homicide
Homicide and Manslaughter
Crime and Criminal Law
Common law: the killing of another person with malice aforethoughtModel Penal Code: murder is a killing which occurs 1) purposefully, 2) knowingly, or 3) recklessly First-degree murder: deliberate and premeditatedSecond-degree murder: any killings that are intentional but not premeditated or planned
Murder
Crime and Criminal Law
Voluntary an intentional killing which occurs
under a mistaken belief that self-defense is needed
or in response to adequate persuasion while in the sudden heat of passion
Involuntary an unintentional killing occurs as a result of a
reckless act
Manslaughter
Crime and Criminal Law
An unintentional killing in which the defendant should have known that they were creating a substantial risk of death by their conductSuch conduct deviated from the ordinary level of care owed to others
Negligent Homicide
Crime and Criminal Law
An individual is held liable for an unintended killing which occurs during the commission of a dangerous felonyNo requirement of intent to either kill or inflict serious harm
Felony Murder
Crime and Criminal Law
Direct harm to a person inflicted by the actor include: assault and battery robbery sexual offenses child sexual abuse
Assaultive Offenses
Crime and Criminal Law
Common law: assault: an attempt or a threat to inflict immediate
harm battery: an unjustified, offensive physical contact
Modern assault and battery: assault and battery have been merged as “assault”
Aggravated assault: serious injury or assault with an itemAccount for 62.5 percent of all UCR Part I violent crimes
Assault and Battery
Crime and Criminal Law
Rape common law: carnal knowledge by a man of a woman
who is not his wife, forcibly and without her consent modern day: eliminated marital rape exception,
neutralized gender specificity, relaxed resistance requirements, and created rape shield laws during criminal court
Child sexual abuseDeath penalty cannot be used in rape cases, except in some states where capital punishment for raping children is allowed
Sexual Offenses
Crime and Criminal Law
“Any willful or malicious burning or attempting to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.” (FBI 2005, 61).First degree: burning of an occupied structureSecond degree: burning of an unoccupied structureThird degree: burning of personal property
Arson
Crime and Criminal Law
“[T]he unlawful entry of a structure to commit a felony or theft” (FBI 2005, 45)Seventeenth century: the breaking and entering of the dwelling of another at night with the intention of committing a felony inside the dwellingToday: burglary can occur during the dayNot entry alone -- must be unlawful entry accompanied by intent to commit another crime inside
Burglary
Crime and Criminal Law
Crimes against property (theft) are more common than crimes against the person88.3 percent of crimes reported to the police were property crimes (2005 UCR)
Theft Offenses
Crime and Criminal Law
“The unlawful taking, leading, or riding away of the possession or constructive possession of another” (FBI 2005, 49).Larceny is graded depending on method of taking and the value of the property takenGrand theft vs. petty theft (felony and misdemeanor)
Larceny/Theft
Crime and Criminal Law
“The taking or attempted taking of anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or putting the victim in fear” (FBI 2005, 31).Often classified as a violent crimeExtortion: a taking of property accomplished by the threat of future harm to person, property, or reputation
Robbery
Crime and Criminal Law
Crimes against public order are those in which the injury is to the peace and order of society
disorderly conduct unlawful assembly vagrancy
Crimes against morality are those in which the moral health of society is injured adultery prostitution obscenity
Crimes Against Public Order and Morality