Criminal Law
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Criminal Law

Joycelyn M. Pollock

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eBook - ePub

Criminal Law

Joycelyn M. Pollock

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About This Book

Criminal Law, Eleventh Edition, a classic introduction to criminal law for criminal justice students, combines the best features of a casebook and a textbook. Its success over numerous editions, both at community colleges as well as in four-year college criminal justice programs, is proof this text works as an authoritative source on criminal law as well as a teaching text that communicates with students. The book covers substantive criminal law and explores its principles, sources, distinctions, and limitations. Definitions and elements of crimes are explained, and defenses to crimes are thoroughly analyzed. Each chapter offers guidance to help students understand what is important, including chapter outlines, key terms, learning objectives, Legal News boxes that highlight current criminal law issues, and Quick Checks that cue the reader to stop and answer a question or two concerning the material just covered. Unique Exploring Case Law boxes offer guidance in using the accompanying cases, which are provided on the book's website. A robust collection of instructor support materials addresses teaching and learning issues

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Criminal Law
• Understand the definitions of a crime, substantive criminal law, and procedural criminal law.
• Explain the social contract as a foundation of law.
• Distinguish the three types of harms that laws are created to prevent (harm from others, from self, and harm to morals).
• Describe the origin of the common law and the difference between common law and statutory crimes.
• Explain police power and the limited power of the federal government to enact criminal laws.
• Distinguish mala in se from mala prohibita crimes and distinguish felonies from misdemeanors.
• Explain how the protections from the Bill of Rights have been “incorporated” to protect individuals against state actions.
• Be able to provide examples of the major challenges to the creation of crimes: ex post facto, vagueness, First Amendment, Second Amendment, equal protection, and privacy.
Common Law Definitions:
Keeler v. Superior Court, 470 P.2d 617 (Cal. 1970)
Federal Power to Create Crimes:
United States v. Lopez, 514 U.S. 549 (1995)
Constitutional Challenge (Vagueness):
City of Chicago v. Morales, 527 U.S. 41 (1999)
Constitutional Challenge (First Amendment):
Texas v. Johnson, 491 U.S. 397 (1989)
Constitutional Challenge (Second Amendment):
McDonald, et al. v. City of Chicago, 561 U.S. 742 (2010)
What is a crime? It seems an easy answer and perhaps you thought of murder, rape, or robbery. This text is a descriptive treatment of acts defined as crimes by states and the federal government. Before we begin our examination of specific crimes, however, we will discuss how certain acts are defined as crimes in the first place and the essential elements of all crimes. It is also important to note that this text does not describe the legal process, that is, the way a case proceeds through the criminal justice system; nor does it discuss crime rates (how many crimes of each type are reported to the police). This text is a substantive criminal law textbook, providing descriptions of the elements that make up each crime. In this first chapter, we discuss:
• the definition of crime and criminal law;
• the purpose, objective, and sources of criminal law; and
• the limitations that exist when creating new laws or interpreting existing laws.
William Blackstone, a famous English jurist, defined crime as “an act committed or omitted in violation of public law, either forbidding or commanding it.”1 In a broad sense, the word “crime” includes every violation of law, including treason, felonies, and misdemeanors.2 In its narrow sense, it does not include petty offenses that were triable without a jury at common law.3 Among many other definitions are these:
“A crime may be generally defined as the commission or omission of an act which the law forbids or commands under pain of punishment to be imposed by the state by a proceeding in its own name.”4
“A crime is a violation or a neglect of legal duty, of so much public importance that the law, either common or statute, provides punishment for it.”5
Criminal law is the branch or division of law that defines crimes and provides for their punishment.6 In a criminal case, the federal government or state is the plaintiff, and the purpose of the prosecution is to preserve the public peace, or redress an injury to the public at large. Substantive criminal law declares what acts are crimes and prescribes the punishment for committing them. Procedural criminal law regulates the steps by which one who commits a crime is to be punished. Substantive criminal law, for instance, is concerned with the definition of homicide and the elements that distinguish homicide from manslaughter. Procedural criminal law is concerned with whether or not the due process steps required during the pretrial period and during trial were followed.
The purpose of criminal law is to protect society so that members of that society can be reasonably secure in carrying out their constructive activities. Only behaviors that are detrimental to the welfare of society should be made criminal. There is always a balance to be achieved between the rights of the individual to act in any way they see fit and the protection of society. In the social contract, a concept originating with Thomas Hobbes and John Locke, individuals give up certain liberties in return for being protected by society. We give up the “right” to steal what we want in return for society’s protection against our being victimized by others. We also give up other liberties as members of a lawful society, but, in return, that society must impose only laws that have a purpose consistent with protection and that are minimally intrusive on our individual liberties.
There are three forms of harm that criminal law protects against:
• protection from the harm caused by others;
• protection from the harm caused by ourselves; and
• protection of societal morals.
The most obvious protection that the criminal law provides is protection against harm caused by others. Laws against homicide, rape, theft, and arson offer obvious protections. We feel reasonably secure that most people, most of the time, will not harm us in these or other ways, and that if we are harmed, the offender will be caught and punished.
The second form of protection that the law provides is protection against harm caused by ourselves. So-called paternalistic laws protect us against ourselves—a seat belt law is one example of a paternalistic law. Although you may prefer to drive your car without such a restraint, you will be punished with a fine if you do so because your duly elected representatives have determined that such behavior is so potentially harmful that it must be criminalized (albeit in a fairly minor manner). Other paternalistic laws include those that punish
• drivers for not having children restrained in child safety seats;
• drivers for not having chains while going over mountain passes; and
• motorcycle drivers for not wearing a helmet.
The third form of protection the law provides is protection of societal morals. This purpose of law is as old as the others and is as legitimate. In fact, we used to have many more laws that protected societal morals than we do today. For instance, laws against businesses operating on Sunday, laws against blasphemy, and laws against adultery may all be relics of the past, but some of our current laws (gambling, pornography, and prostitution) exist partially to enforce society’s morals.
In 1933, authors Michael and Adler listed three factors that should be considered when deciding whether a harmful behavior should be made criminal:
The dangers involved in using cell phones, especially the act of texting while driving, have led many states to enact laws that criminalize such behavior. Laws exist in some jurisdictions that prohibit the use of cell phones to text while driving, or, in some cases, prohibit their use entirely, except with the use of hands-free devices. Some states restrict the ban to school zones, others have a blanket prohibition while driving, and still others have enacted bans on only some drivers, for example, bus drivers and those under 21 years old. The rationale for such laws is certainly paternalistic (to protect cell phone users from having an accident), but it is also to protect harm to others, even if the proof that cell phones are more likely than other distractions to cause accidents is not clear at this time.
1. the enforceability of the law;
2. the effects of the law; and
3. the existence of other means to protect society against undesirable behavior.7
If the law is unenforceable, then the act probably should not be criminalized. A lesson learned during the Prohibition Era was that enacting unenforceable laws only breeds contempt for the law. Another example of a law that proved difficult to enforce was the 55-miles-per-hour speed limit.
If the effects of the law are more disadvantageous than advantageous, it may not be a good law. For instance, in the mid-1980s, at the height of the “crack epidemic,” new laws were passed to protect unborn fetuses. It was believed that threatening punishment to pregnant women would deter them from using drugs during pregnancy. Health professionals argued, to the contrary, that when drug-using pregnant women knew they would be prosecuted if they admitted drug use to a doctor, the effect was that women simply stopped going to doctors for prenatal care in order to avoid detection. Lack of prenatal medical care was an extremely negative effect of the prosecution of pregnant women. Thus, the effect (worse birth outcomes) may have been just the opposite of what was intended (protection of the unborn).
The final consideration is whether other means exist to control or restrict negative behavior. In protecting society and public interests, the criminal law approach is a negative one. Because there are more positive approaches to change behavior, punishment for engaging in certain acts should be a last resort. For example, “harm reduction” is argued as an alternative to drug laws, meaning treating drug use as a public health issue rather than criminalizing the act of possession. Recently, public opinion regarding marijuana seems to be shifting somewhat from a punitive response and four states (Washington, Colorado, Alaska, and Oregon) have decriminalized marijuana possession and sales, although sales are highly regulated. Proponents of marijuana decriminalization may not necessarily be in favor of marijuana use; instead they may believe that better education regarding the dangers of such use, similar to the anti-smoking campaign that has been extremely effective in reducing the percentage of Americans who smoke cigarettes, would limit the need for criminal laws.
A recent article in the New York Times by Lynn Paltrow and Jeanne Flavin describes many recent cases where pregnant women have been charged and prosecuted for injuring their fetus by the use of drugs or other noncriminal actions. Cases were cited where...

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