Steven Briggs - Criminology For Dummies

I describe the main elements or requirements of a criminal law in the following sections. If an act doesn’t include these elements (and doesn’t include the possibility of jail time as punishment), it probably isn’t considered a crime. (But there are always exceptions, which is why people have to hire lawyers.)

A criminal law almost always requires a physical act. Simply thinking bad thoughts can’t be the basis for a violation of criminal law. Also, the act must be voluntary. In other words, the person committing the crime must have acted of his own free will. You can best understand this requirement by looking at acts that the courts don’t deem voluntary, such as:

Reflexive motions, such as a sneeze that accidentally causes a person to discharge a gun

Acts that occur during sleep, such as sleepwalking

Acts that occur under the effects of hypnosis

Acts committed under orders and at gunpoint

In most cases, the failure to act can’t constitute a crime. For example, refusing to jump into a river and save a drowning child doesn’t constitute homicide.

However, in some limited circumstances, when a legal duty to act is involved, the failure to act can constitute a crime. A great example is the legal duty of all citizens to pay their taxes. Failure to act — to write a check to the government, for example — can result in a criminal prosecution. Similarly, parents have an obligation to care for their children. The failure to feed or care for kids may constitute the crime of child neglect.

Along with requiring a physical act, a crime also requires a culpable mental state. This phrase is law-school talk that means the act wasn’t an accident and the offender had some moral responsibility. For example, a person can be considered morally culpable if he planned or intended to commit the criminal act. Aside from intent, however, most states recognize three other mental states that can result in criminal responsibility.

You can find detailed descriptions of these culpable mental states in the Model Penal Code, which the American Law Institute drafted in the 1960s as a model for states as they reformed their antiquated criminal laws. Many states adopted the Model Penal Code’s definitions of the four mental states required to prove criminal responsibility, which I paraphrase in the following list. In almost every criminal case, the jurors must find that the defendant committed the crime in one of these four ways:

Intentionally (or purposely): A person acts intentionally when she has the conscious objective of engaging in criminal conduct.

Knowingly: A person acts knowingly when she’s aware that her conduct is of a certain nature that is an element of the crime. (For example, a thief acts knowingly when she steals a TV, knowing that it belongs to someone else.)

Recklessly: A person acts recklessly when she consciously disregards a substantial and unjustifiable risk that a particular result will occur. The risk must be of such a nature and degree that disregard of the risk is a gross deviation from the standard of conduct that a law-abiding citizen would observe.

Negligently: A person acts negligently when she should be aware of a substantial and unjustifiable risk that a particular result will occur. The risk must be of such a nature and degree that her failure to perceive it is a gross deviation from the standard of conduct that a reasonable person would observe.

I list these mental states in order of responsibility, so a person who acts intentionally is usually held more accountable and, thus, punished more severely than a person who acts negligently.

Using homicide as an example (although this principle applies to many crimes), an intentional killing is murder and can result in a life sentence in prison or even a death sentence. A reckless killing may be considered murder in the second degree or manslaughter and results in a lesser sentence of 10 to 20 years. A negligent killing, such as when a drunk driver kills his own passenger in a crash, can result in 5 years or less in prison.

In rare circumstances, a jury can hold a person liable for a crime without proof of any of these culpable mental states, a situation called strict liability. A great example of strict liability has to do with the crime of driving under the influence of intoxicants. When it comes to driving under the influence, most states don’t require any proof that the offender acted intentionally, knowingly, recklessly, or negligently. The prosecutor just has to prove that the defendant drove while he was intoxicated. Although strict liability is somewhat common in civil law, it’s almost unheard of in criminal law, except for the crime of driving while intoxicated, because society doesn’t want to lock people up unless they have some moral responsibility for what they did.

In a democratic society, in which laws are passed by elected representatives (or even directly by citizens through public votes called initiatives ), criminal laws generally reflect the values of that society. In this section, I explain the influence that society has on the development and implementation of criminal laws.

As society’s values change over time, the passage of new criminal laws and the repeal of old criminal laws reflect these changes. For example, until the early 1900s, you could legally possess and use both cocaine and marijuana in the United States. In 1914, Utah became the first state to criminalize marijuana. That same year, the federal government passed the Harrison Act, which treated cocaine like other illegal drugs, such as morphine and heroin. More recently, some states have legalized marijuana possession (although in 2020 it’s still illegal under federal law.)

In 1994, the federal government began requiring that convicted sex offenders register their addresses with their state government after their release from prison. As a result, the failure to register constituted a new crime. Thereafter, states began to enact laws requiring that the addresses of these sex offenders be made available to the public. These various state laws are known collectively as Megan’s Law, named after a 7-year-old girl who was raped and killed by a sex offender who lived across the street from her. Megan’s parents never even knew the sex offender was there.

Sometimes laws change not because of a legislature, but because of a court system. For example, in 1972, many states had laws that made performing an abortion a crime. But, in 1973, in the famous case of Roe v. Wade, the U.S. Supreme Court held that a woman has a constitutional right to an abortion. This ruling effectively repealed many laws criminalizing the performance of an abortion.

Here’s another example of how the courts affect criminal law: In 1986, the U.S. Supreme Court ruled in Bowers v. Hardwick that Georgia state law could criminalize sexual acts between members of the same sex. However, in 2003 the U.S. Supreme Court in Lawrence v. Texas reversed itself, ruling that laws in Texas criminalizing sexual acts between persons of the same sex were unconstitutional, effectively repealing those laws. So you can see how laws can change with the times.