Criminal law

Crimes are generally regarded as offenses against society; even though they are often committed against single persons or small groups, the fundamental concept assumes that criminal acts injure society as a whole. Therefore, the state, acting as the injured party, begins the process of bringing criminals to justice in criminal proceedings. Violations of the criminal law can result in the imposition of punishments that express society’s outrage or displeasure with the offensive behaviors.

Criminal law is said to have numerous goals: punishment of wrongdoers, deterrence of future criminal acts by making wrongdoers examples to others, retribution justifying punishment on the ground that it is correct to inflict pain on criminals in order to prevent future crimes, rehabilitation aiming to change criminals’ behavior so that they will conform to the law, and incapacitation of criminals through confinement. Despite these goals, studies have indicated that many convicted criminals are recidivists, or repeat offenders.

Elements of a Crime

Every statutory crime has three elements: actus reus, or a wrongful act; mens rea, or criminal intent; and causation. At trial, the prosecution must prove the presence of each element of a crime separately and beyond a reasonable doubt in order to convict a wrongdoer of a crime.

For an act to be wrongful, it must be willful and not an involuntary action, such as a physical spasm or an action undertaken while sleepwalking or under hypnosis. A failure to act in a situation in which one has a legal duty to act may also constitute a wrongful act. Examples might include parents who neglect the proper care of their children or a lifeguard who does not attempt to rescue a drowning swimmer. The duty to act may also be imposed by statute, such as a citizen’s duty to file an income tax return or register with the selective service. Failure to perform moral duties does not constitute criminal omission.

Possession offenses constitute an exception to the requirement of a physical act. For example, a person found with a controlled substance, such as cocaine, in their pocket may not be engaging in any physical act, but the law would treat the fact of possession of the illegal substance as the equivalent of a wrongful act.

The principle of mens rea recognizes the mental component to crime. It focuses on the intent of wrongdoers at the moments the crimes are committed, rather than the mental state of the wrongdoers at some earlier or later times. People rarely express intent overtly. Therefore, the law determines intent by indirect or circumstantial evidence. Intent is inferred from actions in the absence of direct observation. Mens rea is said to be present when people should know that the consequences of their actions are likely to result in serious bodily injury or death, even if such consequences are not part of their original intent. A legal presumption exists that people intend the natural and probable consequences of their actions. For example, if a person shoots a loaded gun into a crowd of people intending to frighten them and someone is killed, the law supplies the mens rea to convict the wrongdoer.

The third element of criminal activity is causation. Clear links must be established between wrongful acts and their resulting harm. Criminal liability attaches to conduct that is determined to be the proximate (legal or direct) cause of the resulting harm. A person who sets in motion a chain of events that eventually results in harm may be the indirect cause of the harm. There must also be concurrence of events in order for an action to constitute a crime. For example, a person who mistakenly takes another person’s umbrella and leaves his own in its place commits a wrongful act; however, there is no wrongful intent, so no crime is committed. Some scholars regard concurrence as a fourth element of criminal activity.

Classifications of Crime

Crimes are classified as either felonies or misdemeanors. Felonies are serious crimes punishable by imprisonment of more than one year. They generally include murder, rape, aggravated assault, robbery, burglary, and arson. Misdemeanors are crimes punishable by prison sentences of less than one year or incarceration in local jails. It should be noted that precise classifications vary among different jurisdictions.

The common law classified crimes as either mala in se or mala prohibita. Mala in se (offenses in themselves) are offenses that are intrinsically bad; mala prohibita (prohibited offenses) are acts that are considered criminal only because the law defines them as such. An example of the latter would be a parking violation, which is illegal but not evil. Petty offenses or violations are punishable by imposition of fines.

Parties to Crime

The doctrine of complicity, or being a party to a crime, establishes the conditions under which more than one person incurs liability before, during, or after the commission of criminal activity. At common law, parties to a crime could fall in one of four possible categories. Principals in the first degree were those who actually committed the crimes; principals in the second degree were aiders and abettors who were present when the crimes were committed, such as lookouts, getaway-car drivers, and coconspirators; accessories before the fact were aiders and abettors who acted before crimes, such as by providing weapons to be used in their commission, but were not present when the crimes were committed; and accessories after the fact were those who acted after crimes to give aid and comfort to known criminals, such as by harboring fugitives from justice. In this system, only after principals were convicted could the government try their accessories.

Modern US statutes have largely removed these distinctions by defining accessories before the fact as accomplices, who are treated as principals under the law. (In most jurisdictions, accessories after the fact must still be treated as accessories rather than principals.) In addition, accessories of both types and principals in the second degree can be tried regardless of whether or not the principal(s) in the first degree is convicted. Courts have established that mere presence of a person at the scene of a crime is generally insufficient to establish guilt.

Based on the relationships between persons who commit crimes and others, the principle of vicarious liability applies primarily to business relationships, such as employer-employee or buyer-seller. Vicarious liability generally punishes the principals (employers) for the wrongful acts of their agents (employees) acting within the scope of their employment. States have occasionally imposed vicarious liability on parents for minor children and on owners of cars for those who drive them.

Inchoate Crimes

Certain acts are preliminary or incomplete crimes that may involve attempts, conspiracies, and solicitation. Each aspect of an inchoate crime is considered a separate offense, and each type of inchoate crime has its own elements. All share the mens rea of specific intent to commit a crime and the actus reus taken to fulfill the crime, but each falls short of completion of the crime.

Attempt to commit a crime constitutes the intent to commit the crime and some overt act taken in pursuance of the intention that falls short of completion of the crime. The law must distinguish between mere preparation to commit a crime, which is not in itself a criminal offense, and some steps taken toward its completion. If a crime ultimately is accomplished, the inchoate crime of attempt merges with the completed crime, so that the defendant is tried only for the greater offense. For example, one cannot be tried for both attempted murder and murder of the same person; the former, inchoate offense merges with the latter crime.

Conspiracy is an agreement between two or more persons for the purpose of committing an unlawful act or doing a lawful act by an unlawful means. The agreement does not have to be formal, and the parties do not have to know one another. Conspiracies are of two kinds: wheel, or hub-and-spoke, conspiracies and chain conspiracies. In the former, one or more defendants participate in every transaction; they constitute the “hub” of the wheel. Each other member of the conspiracy participates in only one transaction, thus constituting a spoke of the wheel. Chain conspiracies usually involve the distribution of some commodity such as illegal drugs. Every participant handles the same commodity at different distribution points. Failure to convict one party in the chain does not prevent conviction of other parties.

Solicitation is a command, urging, or request of a third person inducing that person to commit a crime. Criminal solicitation does not have to result in a completed criminal act. The law considers those who urge others to commit crimes dangerous enough to warrant punishment, even if the crimes are not actually committed.

Defenses to Crime

Defendants can avoid criminal liability by proffering one of a number of possible defenses. For example, a defendant may have an alibi and contend that somebody else committed the crime for which they are charged. The defendant may also offer a defense of either justification or excuse. In a defense of justification, the defendant admits their responsibility for the wrongful act but argues that what they did was right under the circumstances. In a defense of excuse, the defendant admits that what they did was wrong but argues that they were not responsible for their actions under the circumstances.

Justifications include self-defense, which justifies the use of force only when defenders are resisting unlawful force used against them by aggressors or reasonably believe that they are in imminent danger of unlawful force. Moreover, defenders can use only the amount of force they reasonably believe necessary to repel the attacks; excessive force is not permitted. Defense of others includes third persons. Nearly all states authorize the use of force to protect one’s own home and property, but this authorization does not include the use of deadly force. Execution of public duties is another justification. It applies to persons such as government executioners, soldiers killing during wartime, and police officers using force to make arrests.

Excuses include duress and brainwashing situations, in which persons commit crimes because they are coerced to do so. Such coercion negates both actus reus and mens rea. Involuntary intoxication, which occurs when persons do not know they are taking intoxicants or do so under duress, is also an excuse to criminal liability. Voluntary intoxication is not.

Mistakes of fact can excuse criminal liability if the mistakes are honest and reasonable. A mistake of law does not excuse liability under the principle that ignorance of the law is not an excuse. Immaturity has also excused criminal liability. At common law, a presumption existed that people under age seven lack the mental capacity to commit crime because they cannot form mens rea. Under common law, everyone over the age of fourteen was presumed to have mental capacity, and those between ages seven and fourteen were presumed incapable. About half the states in the United States adopted the common-law approach but altered specific ages. Other states have granted juvenile courts exclusive jurisdiction up to a certain age, generally between fifteen and sixteen.

Entrapment is another excuse for criminal liability, though it is often misunderstood. Entrapment excuses crime when law-enforcement officers lead citizens to commit crimes. If, however, a person would have committed the crime in any case, the defense of entrapment does not apply.

A final excuse to criminal liability is insanity. Four primary standards have been used to determine insanity: the M’Naghten (or McNaughton) rule, also called the right-wrong test, stating that the defendant either did not appreciate the nature and quality of their acts or did not know that their acts were wrong; the Durham rule, also called the product test, which states that the defendant's acts were the products of mental disease or defect; the irresistible impulse test, arguing that the defendant has a mental disease or defect that prevented them from controlling their conduct; and the Model Penal Code test, also called the substantial capacity test, arguing that at the time of the offense, the defendant lacked the substantial capacity to either appreciate the criminality of their conduct or conform their conduct to the law. Diminished capacity is used in a few jurisdictions, and a plea of guilty but mentally ill is allowed in others. The latter was the defense pleaded by John Hinckley Jr., who attempted to assassinate President Ronald Reagan in 1981.

Crimes against Persons

Though specific classifications of homicide, or the taking of the life of another person, vary by jurisdiction, the offense of homicide is most often divided into three main categories: murder, voluntary manslaughter, and involuntary manslaughter. Many jurisdictions further subdivide murder by degree. Premeditated, or first-degree, murder is the most serious form of homicide. Most jurisdictions include in second-degree murder all homicides that are neither first-degree murder nor manslaughter; some US states, such as Pennsylvania, also classify felony murder—that is, a homicide that occurs during the commission of a felony—as second-degree murder, although most states consider it to be first-degree murder. Some nations, such as the United States and Peru, also recognize third-degree murder, though in many US states this is the same as voluntary manslaughter.

Manslaughter is divided into voluntary and involuntary. Voluntary manslaughter is the intentional but not premeditated killing of another under circumstances constituting provocation, during the heat of passion without time to cool off. A commonly cited example of voluntary manslaughter is that of a husband who catches his wife in the act of adultery and kills her lover. Involuntary manslaughter is unintentional criminal homicide caused by reckless or negligent legal acts or the commission of illegal acts. Negligent homicide is an unintentional killing in which the actors should know that they are creating substantial risks of death by engaging in conduct that deviates grossly from the norm.

Another crime against persons is rape, or sexual intercourse by force or threat and without consent. Statutory rape is carnal knowledge of a person under the age of consent, which varies by jurisdiction. Assault and battery refers to two separate but often coupled acts: assault is a threat or attempt to make harmful, offensive, and/or unwanted contact with another person; battery is the achievement of said contact. False imprisonment is forcible detention or confinement that interferes substantially with the victims’ liberty. Kidnapping usually requires a carrying away or transportation of victims, although modern statutes in some US states have removed the transportation requirement, replacing it with the requirement that the kidnappers intend to confine or significantly restrain their victims in secret.

Crimes Against Habitation and Property

At common law, burglary was defined as the breaking into and entering of the dwelling place of another at nighttime with intent to commit a felony. Over time, the requirements have become modified, so that the element of “breaking” was satisfied simply by an unauthorized entry or surreptitious remaining, and the concept of “dwelling place” was broadened to include the dwelling structures as well as garages and yards. Vehicles are also included in many burglary statutes. The “nighttime” requirement no longer exists, and the “felony” requirement has been replaced by an intent to commit a crime of any sort. Arson is the intentional burning or setting on fire of a structure and includes the use of explosives and scorching. The structure does not have to be completely destroyed for the crime to be considered arson.

The common-law crimes against property included larceny, embezzlement, false pretenses, receiving stolen property, robbery, and extortion. Many modern statutes have grouped the first three of these under the umbrella term “theft.” Larceny included the wrongful taking and carrying away of the property of others with intent permanently to deprive the rightful owners of their possessions; it was limited to movable objects and also excluded stocks, bonds, checks, and negotiable instruments. Modern statutes include virtually all property within their scope. Embezzlement is the retention of the property of others by those already lawfully in possession of it, such as bank tellers handling customers’ money, parking-lot attendants handling other people’s cars, and dry cleaners handling customers’ clothes. False pretenses requires obtaining the property of another through false misrepresentation of a material past or present fact. Receiving stolen property requires that property taken or acquired by deception comes into the receiver’s control for at least a short time period; it also requires an intent on the part of the receiver to permanently dispossess the rightful possessors.

Robbery is the taking and carrying away of another’s property from their person or their presence, through either force or threat of force, with intent to permanently deprive them of their property. Most states have divided robbery into degrees according to the injury committed or the force or threat used. The force or threat must be imminent or immediate, in contrast to extortion, which involves threats of future harm.

The consolidated theft statutes eliminate the need to decide the nature of the action in order to distinguish among larceny, embezzlement, and false pretenses. Instead, the offenses deal with the social problem of criminal property misappropriation and group the offenses together.

Bibliography

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