Steven Briggs - Criminology For Dummies

Driving without a license

Hunting without a license

Carrying a concealed weapon

Selling a drugged horse (in Oregon)

Catching fish with your bare hands (in Indiana)

Throwing snow “missiles” (in certain parts of Missouri)

Giving alcohol to a moose (in Fairbanks, Alaska)

In England prior to the 1600s, private citizens or government officials brought cases before judges, who would then decide whether certain acts were illegal. The judges wrote opinions that contained the reasoning behind their decisions. Over time, judges came to rely on the consensus that emerged from these opinions. The collection of these written opinions came to be known as the common law. By the 1600s, the judges — not the English Parliament — had defined crimes such as murder, theft, rape, and assault.

Of course, clever citizens repeatedly found new ways to commit immoral acts, so society continued to call on judges to refine the common law by defining new crimes. For example, in the 1700s, judges concluded that inciting rebellion against the government should be criminalized; thus, they created the crime of sedition.

Sometimes judges didn’t criminalize certain conduct, such as incest, and, as a result, the English Parliament stepped in to pass a law (known as a statute ) that made familial sex a crime.

Today, common law plays a less important role than it did centuries ago. In the United States, people are prosecuted when they violate statutes — laws enacted by legislatures — rather than when they violate the common law. But, like in England centuries ago, human beings still find new ways to commit immoral acts, so legislatures must constantly refine and add to their criminal statutes.

The line between mala in se and malum in prohibita crimes isn’t always crystal clear. For example, some malum in prohibita crimes involve conduct that’s arguably immoral. I wouldn’t argue that driving without a license is immoral. However, the law against selling a drugged horse exists because unscrupulous horse traders used to sedate horses to make them more attractive to purchasers. The courts decided to regulate this conduct because society considers cheating the buyer an immoral act.

As you can see, laws can punish acts that are moral or immoral. But keep in mind that not all immoral acts are punished by laws. Legislatures don’t want to try to control every facet of human life through regulation. For example, most people agree that sleeping with your best friend’s spouse is immoral, yet doing so is completely legal.

The U.S. justice system includes many types of law, such as property law, contract law, tort law, and administrative law. These examples all fall under the broad heading of civil law. Civil law generally governs the affairs between private parties. For example, civil law decides the fault in a car accident and interprets the terms of a contract in a dispute. For a law to be considered criminal, on the other hand, it must contain certain elements and characteristics, which I explain in this section.

Most civil and criminal laws alike are created to redress wrongs or to compel good behavior. However, civil law and criminal law have unique characteristics that distinguish them from each other. For example:

A civil lawsuit is almost always between private parties, but only the government can bring a criminal proceeding.

Only in criminal law can a person lose his freedom and be sent to jail or prison. When a plaintiff (the person bringing the case) wins a civil lawsuit, he typically gets an award of money, but he can’t put the other party (the person defending the suit, otherwise known as the defendant) in jail.

In criminal law, the defendant has certain constitutional rights that a defendant in a civil lawsuit doesn’t have. The following rights are some of the more important constitutional rights a defendant has in a criminal case:The right to have a jury decide guiltThe right to confront witnesses and cross-examine themThe right to have a lawyer represent the defendantThe right to “remain silent” without that silence being used against the defendant in court (In other words, no one can force the defendant to take the witness stand.)The right to have a speedy trialThe right to be found guilty only by a standard of “beyond a reasonable doubt”

To be considered criminal, an act has to carry the possibility of a jail sentence as punishment. If the only punishment possible is a fine, such as when you fail to stop at a stop sign, the illegal act is considered a violation or infraction . (You normally can’t go to jail for that.)

A memorable example of how criminal and civil laws work in the real world is the O. J. Simpson murder case. O.J. Simpson was a Heisman Trophy winner and member of the Pro Football Hall of Fame who was arrested in 1994 for killing his ex-wife Nicole Brown Simpson and Ron Goldman. In 1995, a jury in his criminal murder trial found him not guilty. But the matter wasn’t finished. The families of Ron Goldman and Nicole Brown Simpson filed a civil suit against Simpson for causing the deaths. As a result of that civil suit, another jury found Simpson liable (not guilty because a jury can only find guilt in a criminal case) for causing the deaths of Ron Goldman and Nicole Brown Simpson. Because the verdict came from a civil suit, Simpson couldn’t be put in prison. Rather, the jury ordered him to pay over $30 million to the family of Ron Goldman and to Nicole Brown Simpson’s two children.

In the civil trial (unlike in the criminal trial), Ron Goldman’s family (the plaintiffs) forced Simpson to testify, and they didn’t have to prove “beyond a reasonable doubt” that Simpson committed the murders. Rather, the plaintiffs had to prove only that “more likely than not” (in other words, that there was at least a 51 percent chance) Simpson committed the murders.

Criminal laws are categorized according to the punishments they impose. Generally, a criminal law may be either a felony or a misdemeanor. The difference between the two is as follows:

A misdemeanor is a minor offense, and its maximum sentence usually can’t exceed one year. However, if someone is convicted of three misdemeanors, he can conceivably serve up to three years in jail. Petty larceny, such as shoplifting some cigarettes from a local convenience store, is usually a misdemeanor, and the punishment may be very light.

A felony is the more serious offense, and someone who commits a felony can be punished with more than a year in jail or prison. Theft of an expensive item, such as a Macbook Pro laptop computer, can rise to the level of a felony and be subject to serious punishment.

You can look at your state’s criminal statutes to find out exactly which crimes your state considers misdemeanors and which ones it considers felonies. After all, an act that’s a misdemeanor in New York may be a felony in Alaska and vice versa.