Criminal law

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For the 1988 film see Criminal Law (film)

Criminal law (also known as penal law) is the body of statutory and common law that deals with crime and the legal punishment of criminal offenses. There are four theories of criminal justice: punishment, deterrence, incapacitation, and rehabilitation. It is believed that imposing sanctions for the crime, society can achieve justice and a peaceable social order. This differs from civil law in that civil actions are disputes between two parties that are not of significant public concern.

Criminal law in most jurisdictions, both in the common and civil law traditions, is divided into two fields:

• Criminal procedure regulates the process for addressing violations of criminal law
• Substantive criminal law details the definition of, and punishments for, various crimes.

Origins of criminal law

Criminal law in the United States, Canada, Australia, and many other countries is based on English common law. These, and other legal systems, are also influenced by early written codes, such as the Hammurabi Code.

Functions of criminal law

Criminal law is intended to enforce social control by discouraging behavior that is harmful to societal well-being, as well as behavior that challenges the government's authority and legitimacy. Criminal law and punishments are designed to serve as a deterrent, helping to restrain behavior. While some crimes (malum in se) are outlawed nearly universally, such as murder and rape, other crimes (malum prohibitum) reflect society's social attitudes and morality, such as laws prohibiting use of marijuana. Criminal law establishes procedure for punishing offenders, with punishment handled by the state and not the victim who might otherwise seek revenge.

Criminal law in the United States

The criminal justice process begins with an alleged crime. A complainant makes an accusation, which is investigated by the police, acting as agents of the government. A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the appropriate jurisdiction. If the offense is classified as a felony, the Fifth Amendment of the Constitution of the United States requires that a federal case be referred to a grand jury for an indictment. The Supreme Court has held that the right to a grand jury does not apply to the states. Therefore, each state has its own set of grand jury procedures. Some follow rules that mirror the federal system, but others make use of the indictment optional, and allow the prosecutor to file a complaint or information to formally charge the defendant with the crime. Two states (Connecticut and Pennsylvania) and the District of Columbia do not use grand jury indictments.

The interests of the state are represented by a prosecuting attorney, while the interests of the defendant are represented by his defense attorney or by the defendant as pro se, acting as his own attorney. The Sixth Amendment of the Constitution of the United States guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, by an impartial jury of the State and district wherein the crime was committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defence.

While the specific process varies according to the local law, the process culminates with a jury trial (as required by the Sixth Amendment), followed by mandatory or discretionary appeals to higher courts.

Criminal statutes spell out the exact behaviors, mental states, results and circumstances which constitute a particular crime. These required parts of a crime are known as the elements of the offense. Unless all the elements are proven beyond a reasonable doubt by the prosecuting authority, the defendant is not guilty of the offense. There are four kinds of elements: the act itself, the actus reus, guilty act; the requisite culpable mental state, the mens rea, guilty mind; the result, and the attendant circumstances. At common law, all crimes required, at a minimum, both a guilty act and a guilty mind. In modern American jurisprudence, the minimum requirement is that there be an act element. Today, a crime may or may not require a culpable mental state, a result, or a circumstance. If a culpable mental state is required, the prosecution must prove it existed at the time of the required act, and, generally, that the accused had the same culpable mental state with respect to all the required elements. If a result is required, the prosecution must prove that it was caused by the required act. As an example, the common law definition of burglary was as follows: unlawful entry into a dwelling house at night with the intent to commit a felony therein. It is the duty of the prosecution therefore, to prove not merely the act (unlawful entry), and the mental state (the intent to commit a crime therein), but all the attendant circumstances (that it was a dwelling house, and that it was at night). Most modern criminal statutes have modified the elements, changing the "dwelling house" to a more general structure, and eliminating the "at night" element..

In defense, the accused could argue that he had no intent to commit a crime inside the house, that it occurred during the day, or that his entry was lawful. He could also, of course, argue that the incident never happened, or that someone else committed the offense. As the burden of proving the crime occurred and was committed by the defendant rests exclusively on the prosecutor, the defendant might choose to put on no case at all, counting on the prosecution to fail in its efforts to convince the jury, or the judge in a bench (non-jury) trial.

Criminal law distinguishes crimes from civil wrongs such as tort or breach of contract. Criminal law has been seen as a system of regulating the behavior of individuals and groups in relation to societal norms whereas civil law is aimed primarily at the relationship between private individuals and their rights and obligations under the law. Although many ancient legal systems did not clearly define a distinction between criminal and civil law, in England there was little difference until the codification of criminal law occurred in the late nineteenth century. In most U.S. law schools, the basic course in criminal law is based upon the English common criminal law of 1750 (with some minor American modifications like the clarification of mens rea in the Model Penal Code). In civil cases, the Seventh Amendment guarantees a defendant a right to a jury trial in federal court, but that right does not apply to the states (in contrast with criminal cases).

References

• Farmer, Lindsay (2000). "Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45". Law and History Review 18(2).
• Fletcher, George P. (1998). Basic Concepts of Criminal Law. Oxford University Press.
• Fletcher, George P. (2000). Rethinking Criminal Law. Oxford University Press.
• Gorr, Michael, Sterling Harwood, eds. (1992). Controversies in Criminal Law. Westview Press.
• Gross, Hyman (2005, reissue). A Theory of Criminal Justice. Oxford University Press.
• Hall, Jerome (1960). General Principles of Criminal Law. Lexis Law Pub. ISBN 0-672-80035-7.
• Hart, H.L.A. (1968). Punishment and Responsibility. Oxford University Press.
• Harwood, Sterling (2000, formerly 1996). “Is Mercy Inherently Unjust?”, Crime and Punishment: Philosophic Explorations. Wadsworth Publishing Co., formerly Jones & Bartlett Publishers.
• Murphy, Jeffrie, et al. (1990). Forgiveness and Mercy. Cambridge University Press.
• Smith, K. J. M. (1998). Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800-1957. Clarendon Press.
• van den Haag, Ernest (1978). Punishing Criminals: Concerning a Very Old and Painful Question. Basic Books.

External links

• Stanford Encyclopedia of Philosophy entry on Theories of Criminal Law
• UK Criminal Law Guide