After reading this section, students will be able to:
- Distinguish between a criminal wrong, a civil wrong, and 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.
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).
Critical Thinking Questions
- What does formal law do well? What does formal law not do so well?
- Should we be able to impose sanctions for violations of moral wrongs?
- 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?
- 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?
- 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?
- 3.2: Civil, Criminal, and Moral Wrongs
- 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?
- 3.6: Classifications of Law
- 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 laws.
- 3.7: Substantive Law - Defining Crimes, Inchoate Liability, Accomplice Liability, and Defenses
- 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).
- 3.8: Substantive Law - Punishment- Incarceration and Confinement Sanctions
- 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.
- 3.11: Substantive Law - Community-Based Sentences
- In addition to incarceration and monetary sanctions, the defendant may be sentenced to some form of community-based sanction.
- 3.12: Procedural Law
- Procedural law governs the process used to investigate and prosecute individuals who commits a crime. Procedural law also governs the ways people convicted of a crime may challenge their convictions. The source of procedural law includes the same sources of law that govern substantive criminal law: the constitution, cases law or judicial opinions, statutes, and common law. Most substantive criminal law is now statutory and most procedural law is found in judicial opinions.