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Law, Justice, and Society: A Sociolegal Introduction


Law, Justice, and Society: A Sociolegal Introduction Chapter 5 Crime and Criminal Law Crime and Criminal Law Criminal law, a.k.a. substantive law, is the law of ... – PowerPoint PPT presentation

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Title: Law, Justice, and Society: A Sociolegal Introduction

Law, Justice, and Society A Sociolegal
  • Chapter 5
  • Crime and Criminal Law

Crime and Criminal Law
  • Criminal law, a.k.a. substantive law, is the law
    of crimes
  • Defined by statute
  • prescriptions
  • proscriptions
  • Enforced by the state
  • Primary purpose is to protect the public from
    harm by punishing harmful acts that have occurred
    and seeking to avoid harm by forbidding conduct
    that may lead to it

Crime and Criminal Law
What Is Crime?
  • An intentional act in violation of the
    criminal law committed without defense or excuse,
    and penalized by the state (Tappan 1947, 100)
  • 1. An act in violation
  • 2. Of a criminal law for which
  • 3. A punishment is prescribed
  • 4. The person committing this action must have
    intended to do so
  • 5. And to have done so without any legally
    acceptable defenses or justifications

Crime and Criminal Law
Crime as a Subset of Harmful Acts
Core offenses Mala in se
All social harm Not regulated by criminal law
All harms
All crimes Mala in se and mala prohibita
Crime and Criminal Law
  • Mala in se Crimes that are considered bad in of
  • Part I offenses in the UCR are the major mala in
    se crimes
  • Mala Prohibita Crimes that are considered crimes
    because we have placed restrictions on them
  • Listed in Part II of the UCR along with some
    other less serious mala in se offenses

Crime and Criminal Law
Sources of Criminal Law
  • State and federal constitutions
  • State and federal statutes
  • Common law
  • codified in most states mid-1800s
  • Federal law is growing source of criminal law
  • Statutes define elements (various parts) of a
    crime more specifically than common law

Crime and Criminal Law
Limitations on the Criminal Law
  • Substantive due process There are limits to what
    conduct the law may seek to prohibit
  • Forbids passage of laws that infringe on the
    rights of individuals
  • free speech
  • assembly
  • Overbreadth doctrine Laws are unconstitutional
    when they fail to narrowly define the specific
    behavior to be restricted

Crime and Criminal Law
Limitations on the Criminal Law (cont.)
  • Void for vagueness laws are unconstitutional if
    they fail to clearly define the prohibited act
    and the punishment in advance
  • Fair notice letting people know what is and is
    not permitted
  • Must not restrict due process laws must be
    enforced fairly and non-arbitrarily
  • Must not restrict equal protection laws cannot
    restrict the rights of members of suspect

Crime and Criminal Law
Limitations on the Criminal Law (cont.)
  • Cruel and unusual punishment punishments must be
    proportional to the crime
  • Ex post facto laws people cannot be penalized
    for behavior which was not illegal at the time
    they acted penalties cannot be increased after
    the crime has been committed
  • ex post facto laws do apply retroactively if they
    are beneficial
  • Bills of attainder laws that impose punishment
    without trial

Crime and Criminal Law
Elements of Criminal Offenses
  • Elements must be present for criminal liability
    to attach
  • Actus reus
  • Mens rea
  • Concurrence
  • Causation
  • Harm
  • Make up the corpus delicti

Crime and Criminal Law
Actus Reus (Criminal Act)
  • The guilty act three forms
  • Voluntary bodily movements
  • An omission in the face of a duty to act
  • failure to perform a legal duty
  • failure to prevent serious harm when a special
    relationship exists
  • Possession
  • if the person has some knowledge that their
    possession is illegal

Crime and Criminal Law
Mens Rea (Criminal Intent)
  • Guilty mind inferred from circumstances
    surrounding the criminal act
  • Four levels
  • 1. Purposeful
  • 2. Knowing
  • 3. Reckless
  • 4. Negligent
  • Doctrine of transferred intent

Crime and Criminal Law
  • The union of the criminal act and the criminal
    intent (actus reus and mens rea)

Crime and Criminal Law
  • The criminal act is the act that is the cause of
    the harm
  • 2 types
  • 1. Factual cause but for the actors conduct
    the harm would not have occurred
  • 2. Legal cause consequences of an act which are
    not reasonably foreseeable to the actor
    (intervening causes) relieve the actor of some
    degree of criminal liability

Crime and Criminal Law
  • The result of the act, the injury to another or
    to society

Crime and Criminal Law
Liability Without Fault
  • Strict liability imposes accountability without
    proof of criminal intent in situations where
    society deems it fair to do so
  • Statutory rape
  • Vicarious liability (only civil law) the
    imputation of accountability from one person to

Crime and Criminal Law
Inchoate Crimes
  • Crimes that occur in preparation for an offense
  • Three types
  • attempt
  • solicitation
  • conspiracy

Crime and Criminal Law
Parties to Crime
  • Doctrine of complicitywhere more than one person
    may be held liable for criminal activity
  • Requires that all criminal elements be present
  • Common law recognizes four parties to a crime
  • 1. Principles in the first degree
  • 2. Principles in the second degree
  • 3. Accessories before the fact
  • 4. Accessories after the fact

Crime and Criminal Law
Defenses to Criminal Liability
  • Defense is a response by the defendant which
    allows them to avoid criminal liability
  • Alibi defendant asserts that they did not commit
    the crime
  • Affirmative defenses defendant admits that they
    committed the act, but deny criminal liability
  • Shifts both the burden of production and
    persuasion to the defense (preponderance of the

Crime and Criminal Law
Justification Defenses
  • A defense in which the defendant admits they are
    responsible for the act, but claims that under
    the circumstances the act was not criminal
  • Self-defense
  • Consent
  • Execution of public duties

Crime and Criminal Law
  • Use of force to repel an imminent, unprovoked
    attack, in which they reasonably believed that
    they were about to be seriously injured
  • May only use as much force as is necessary
  • Retreat doctrine a person must retreat rather
    than use deadly force if doing so is possible
  • Castle doctrine persons attacked in their home
    need not retreat
  • Can also apply to the defense of others and

Crime and Criminal Law
  • Persons may content to suffer what otherwise
    would be an objectionable injury
  • Consent must be voluntary, knowing, and

Crime and Criminal Law
Execution of Public Duties
  • Agents of the state are permitted to use
    reasonable force in the lawful execution of their

Crime and Criminal Law
Excuse Defenses
  • One in which the defendant admits that what they
    did was wrong but that under the circumstances
    they are not responsible for their improper
  • duress
  • intoxication
  • age
  • insanity

Crime and Criminal Law
  • Situations involving the threat of serious,
    imminent harm to oneself, where the act is less
    serious than the threatened harm
  • Those forced to commit a crime in such
    circumstances do not act voluntarily
  • eliminates actus reus
  • eliminates mens rea

Crime and Criminal Law
  • Voluntary and Involuntary
  • Voluntary never leads to acquittal may only
  • Involuntary may work as a defense as the person
    is not responsible for their actions

Crime and Criminal Law
  • Persons below a certain age lack the capability
    to form mens rea

Crime and Criminal Law
  • Impairs mens rea
  • Mental illness and legal insanity are not the
  • MNaghten ruleright wrong rule
  • Durham testproduct test
  • Irresistible mpulse test
  • Substantial capacity test
  • GBMI- from Insanity Defense Reform Act of 1984

Crime and Criminal Law
Procedural Defenses
  • It is claimed that the defendants due process
    rights were violated
  • Double jeopardy, denial of speedy trial, use of
    illegally seized evidence
  • Entrapment in one of two scenarios (Sherman v.
    U.S. 1958)
  • 1. The crime is the result of the creative
    activity of law enforcement
  • 2. The prosecutor cannot prove beyond a
    reasonable doubt that the defendant was
    independently predisposed to commit the crime

Crime and Criminal Law
Categories of Crime
  • Crimes against the person
  • Crimes against property
  • Crimes against society
  • Crimes against morality

Crime and Criminal Law
Homicide and Manslaughter
  • Homicide means the killing of another human being
  • what is a human being?
  • When is someone alive or dead?
  • What types of homicide deserve punishment?
  • 3 forms of criminal homicide
  • murder
  • manslaughter
  • negligent homicide

Crime and Criminal Law
  • Common law the killing of another person with
    malice aforethought
  • Model Penal Code murder is a killing which
    occurs 1) purposefully, 2) knowingly, or 3)
  • First-degree murder deliberate and premeditated
  • Second-degree murder any killings that are
    intentional but not premeditated or planned

Crime and Criminal Law
  • Voluntary
  • an intentional killing which occurs
  • under a mistaken belief that self-defense is
  • or in response to adequate persuasion while in
    the sudden heat of passion
  • Involuntary
  • an unintentional killing occurs as a result of a
    reckless act

Crime and Criminal Law
Negligent Homicide
  • An unintentional killing in which the defendant
    should have known that they were creating a
    substantial risk of death by their conduct
  • Such conduct deviated from the ordinary level of
    care owed to others

Crime and Criminal Law
Felony Murder
  • An individual is held liable for an unintended
    killing which occurs during the commission of a
    dangerous felony
  • No requirement of intent to either kill or
    inflict serious harm

Crime and Criminal Law
Assaultive Offenses
  • Direct harm to a person inflicted by the actor
  • assault and battery
  • robbery
  • sexual offenses
  • child sexual abuse

Crime and Criminal Law
Assault and Battery
  • Common law
  • assault an attempt or a threat to inflict
    immediate harm
  • battery an unjustified, offensive physical
  • Modern assault and battery
  • assault and battery have been merged as assault
  • Aggravated assault serious injury or assault
    with an item
  • Account for 62.5 percent of all UCR Part I
    violent crimes

Crime and Criminal Law
Sexual Offenses
  • Rape
  • common law carnal knowledge by a man of a woman
    who is not his wife, forcibly and without her
  • modern day eliminated marital rape exception,
    neutralized gender specificity, relaxed
    resistance requirements, and created rape shield
    laws during criminal court
  • Child sexual abuse
  • Death penalty cannot be used in rape cases,
    except in some states where capital punishment
    for raping children is allowed

Crime and Criminal Law
  • Any willful or malicious burning or attempting
    to burn, with or without intent to defraud, a
    dwelling house, public building, motor vehicle or
    aircraft, personal property of another, etc.
    (FBI 2005, 61).
  • First degree burning of an occupied structure
  • Second degree burning of an unoccupied structure
  • Third degree burning of personal property

Crime and Criminal Law
Crimes Against Property
  • Burglary
  • Trespass
  • Theft

Crime and Criminal Law
  • The unlawful entry of a structure to commit a
    felony or theft (FBI 2005, 45)
  • Seventeenth century the breaking and entering of
    the dwelling of another at night with the
    intention of committing a felony inside the
  • Today burglary can occur during the day
  • Not entry alone -- must be unlawful entry
    accompanied by intent to commit another crime

Crime and Criminal Law
Theft Offenses
  • Crimes against property (theft) are more common
    than crimes against the person
  • 88.3 percent of crimes reported to the police
    were property crimes (2005 UCR)

Crime and Criminal Law
  • The unlawful taking, leading, or riding away of
    the possession or constructive possession of
    another (FBI 2005, 49).
  • Larceny is graded depending on method of taking
    and the value of the property taken
  • Grand theft vs. petty theft (felony and

Crime and Criminal Law
  • The taking or attempted taking of anything of
    value from the care, custody, or control of a
    person or persons by force or threat of force or
    violence and/or putting the victim in fear (FBI
    2005, 31).
  • Often classified as a violent crime
  • Extortion a taking of property accomplished by
    the threat of future harm to person, property, or

Crime and Criminal Law
Crimes Against Public Order and Morality
  • Crimes against public order are those in which
    the injury is to the peace and order of society
  • disorderly conduct
  • unlawful assembly
  • vagrancy
  • Crimes against morality are those in which the
    moral health of society is injured
  • adultery
  • prostitution
  • obscenity