Criminal Law

IV

Classification of Crimes

Crimes are classified in many different ways: common law crimes versus statutory crimes, and crimes that are mala in se (evil in themselves) versus those that are mala prohibita (criminal only because the law says so). An important classification is the division of crimes into felonies or misdemeanors. This distinction is based on the severity of the crime and is rooted in common law.

In many jurisdictions in the United States, felonies are crimes punishable by death or imprisonment in a state prison or penitentiary and misdemeanors are those punishable by fine or imprisonment in a local jail. (The term jurisdiction refers to the authority of a political entity, such as a state or a county, or the territory over which that authority is exercised.) In other jurisdictions, crimes punishable by imprisonment for one year or more are felonies, and those punishable by fine or imprisonment for less than one year are misdemeanors. Since each jurisdiction determines the penalties for offenses it defines, a misdemeanor in one jurisdiction may constitute a felony in another. Some jurisdictions have an additional classification for petty offenses, also called infractions, which are usually punishable by a small fine.

V

Criminal Law in the United States

The English colonists who came to North America in the 1600s brought their legal traditions with them. After the American Revolution (1775-1783), the English common law remained as the basis of law in the United States. Although U.S. law is rooted in the English common law tradition, it has evolved in distinctive ways to meet the needs and requirements of U.S. society. In the area of criminal law, the common law provided the basis for defining criminal behavior; however, written statutes have been adopted that either modify these definitions or provide new ones. Thus, almost all criminal prosecutions today are based on criminal laws defined by statute rather than by the common law.

A

Common Law Origins

The common law began developing in England a millennium or more ago. Until the mid-17th century, the English Parliament (legislature) did not convene regularly. As a result, judges rather than legislators often created, defined, and meted out punishment for crimes. Many of the crimes thus created—called common law crimes, as distinguished from statutory crimes—still influence the definition of crime in England and the United States. Among the major common law crimes are murder and manslaughter, mayhem, rape, larceny, robbery, burglary, and arson (all common law felonies) and assault and battery, perjury, forgery, bribery, and conspiracy (all common law misdemeanors). Even in the early days, however, gaps sometimes appeared in the network of judge-made criminal law, and the legislature enacted statutes to fill the gaps in the common law definition of crimes.

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B

Statutory Crimes

Although the common law provides the basis for defining crimes, federal and state legislatures have enacted statutes that specifically define the elements (parts) of a crime. For example, common law judges defined rape as sexual intercourse by a man with a woman who was not his wife, against her will and through the use or threat of force. Some modern statutes have modified the elements of the common law crime of rape. For example, under some statutes the victim can be either male or female, and a husband can be found guilty of raping his wife. In modern times, both in England and the United States, legislatures have almost completely taken over the task of defining crimes. Judges seldom, if ever, create new definitions of crime, although in England and in many states of the United States they theoretically still have that power.

Until the late 18th century the common law predominated in defining crimes, and there were relatively few—no more than 20 or 30. Today, statutes specify hundreds of crimes in England and in the United States. Matters that judges three centuries ago never even thought about—such as carjacking, bribing college athletes, and making false statements in connection with the registration of stocks and bonds—have been classified by legislatures as new statutory crimes.

Although the trend is to add new crimes by statute, to a lesser extent there is a tendency for some crimes of one era to disappear in the next. For example, jurisdictions that once punished witchcraft by death no longer recognize it as a crime at all. Other crimes once prevalent in common law jurisdictions—such as adultery, fornication, sodomy, and blasphemy—have been eliminated by many legislatures. These activities are often ignored by law enforcement officials in jurisdictions where they remain crimes.

C

Lawmaking Authority

The United States has a federal system of government, meaning that power is divided between a central authority and many regional authorities (Federalism). Consequently the power to make law, including criminal law, is divided between the national government and the governments of the 50 states. Local governments also have the authority to enact laws.

The federal government derives its legislative power from the Constitution of the United States. The Constitution gives the federal government authority over certain limited subjects, such as the power to tax, to regulate interstate commerce, to declare war, and to regulate the mail. These powers include an implied authority to define some crimes. For example, the taxation power includes the authority to make it a crime to fail to file an income-tax return or to understate income in a return that is filed. The authority over mail includes the implied power to make it a crime to use the mail to defraud (cheat by deception) or to distribute obscene publications.

The Constitution also explicitly grants power to define criminal behavior. For example, it gives the federal government the authority to punish counterfeiting, treason, and felonies committed on the high seas (such as piracy) and to govern land areas in the United States devoted to federal uses, such as military bases and national parks. The federal government may also protect itself from harm. Thus it has defined as crimes sedition (inciting dissatisfaction with government), bribery of federal officials, and perjury (providing false testimony) in federal courts. In federal territories, the federal government has substantial power over criminal matters, a power similar to that retained by states within their own borders.

The states retain broad power to make law, including criminal law, over matters not delegated by the U.S. Constitution to the federal government or specifically denied to the states. In fact, the states have primary responsibility for defining and enforcing criminal law. The vast majority of all criminal prosecutions take place in state courts under state criminal codes. Each state, within its own territory, has so-called police powers to make and enforce such laws as it deems necessary or appropriate for promoting the public health, safety, morals, or welfare.

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