21st Century Criminology

Criminal Law

This chapter examines the principles that underlie substantive criminal law from a historical context by chronicling the influences that led to its development and evolution. It also examines the foundation on which existing criminal law doctrines are premised. Topics like federalism and the U.S. Constitution are assessed, and the impact on criminal law is discussed. The chapter also identifies the ever-changing forces involved in redefining crime and criminal liability. Together, these ideas illustrate the rapid changes in criminal law.

Principles of Criminal Law

Criminal law is the area of law that deals with crimes and their respective punishments. Like other laws, criminal law has evolved over hundreds of years and remains in a constant state of flux (McClain & Kahan, 2002). Today, modern criminal law is merely the culmination of a great many influences. Those influences are as old as the traditional common law or as current as the Model Penal Code (Low, 1998). These influences tend to increase and decrease over time. In time, new laws will be adopted and old laws will be repealed (Frase, 2002). However, there is one overarching principle that remains constant: The goal of all criminal laws is the protection of the health, safety, and welfare of society.

What is Criminal Law?

Laws seek to control the conduct of a community or society while providing for the rights of the citizenry (Dressler, 2001). Most laws developed over the centuries relate to resolving disagreements between people that arise in the daily conduct of their affairs. One of the earliest known sets of laws dates back to 1750 BC (Garland, 2003). King Hammurabi of Babylon created a set of 282 laws, known as the Code of Hammurabi. However, it was not until the development of English common law in the Middle Ages that the process of creating modern written law began. Once William of Normandy conquered England, he established the Eyre, a circuit court held by itinerant royal justices who heard cases throughout the kingdom and recorded its decisions. These decisions integrated the unwritten common law of England based upon custom and usage throughout the land (LaFave, 2003).

Today, the practice of recording a court’s opinion is still in use. In the United States, the opinions of some trial and most appellate courts are preserved in a book of decisions called a reporter. Typically, decisions interpret the law, both substantively and procedurally, and decide the constitutionality of both the statute and the action of government officials in enforcing the law.

What Isn’t Criminal Law?

Criminal law and torts, a branch of civil law, are very similar in some respects. Typically, tort law includes negligence, libel, slander, assault, battery, and fraud. In some instances, a tort can be a crime. However, it is important to note that tort law is primarily concerned with a financial loss, and bad conduct is only of secondary importance. Conversely, criminal law is concerned with bad conduct irrespective of financial losses (Singer, 2002). A central theme in criminal law is that conduct that jeopardizes the health, safety, and welfare of the community should be punished despite the absence of actual harm. For example, if Fred, unbeknownst to Barney, aims and shoots a handgun outfitted with a silencer at Barney but misses, he is

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21st Century Criminology: A Reference Handbook Page 2 of 19

still criminally culpable. The fact that Barney is completely unaware of the attempted murder does not clear Fred of wrongdoing. However, Barney would likely be precluded from suing Fred at tort, having suffered no visible physical or mental damages because he is totally unaware of the attempt. The social harm that a criminal statute seeks to address distinguishes criminal law from tort law.

Tort law addresses a personal harm, and monetary compensation is typically the goal of a tort lawsuit. Moreover, the party that is harmed bears the responsibility of bringing suit and proving its case (Schulhofer, 2001). Conversely, under the criminal law regime, the government brings suit irrespective of the desires of the victim. Even when a victim does not desire a prosecution for a criminal offense, the state decides, through a prosecutor, whether to charge an individual with a crime. The prosecutor seeks to enforce the interests of the community and government, not the desires of a victim (Kadish, 1987). For example, suppose that Fred strikes Wilma and is arrested for spousal abuse. Shortly thereafter, the couple reconciles and Wilma does not want to pursue the charges against her husband, Fred. It is solely the prosecutor’s decision, however, to pursue the charges against Fred. Moreover, Wilma might be compelled to appear and testify despite her desire to have the charges dropped.


The American system of government follows the principle of federalism. Although the federal government, through the U.S. Constitution, has a duty to prevent states from infringing upon the rights of citizens, the majority of powers to regulate the conduct of citizens rest with the states. Only those powers expressly granted to the federal government by the Constitution are outside state control. For the most part, all state criminal laws and procedures must be adhered to unless they conflict with the U.S. Constitution. For example, under the police powers of the Tenth Amendment of the Constitution, Texas has the right to regulate conduct that is dangerous to its citizens. However, when Texas forbids the broadcast of any beer commercials within its state, it has created an unconstitutional law. The power to regulate commercial speech has been specifically granted to the federal government by preventing any state regulation of commercial speech in this area (Hazard, 1983).

Differences Between Criminal and Civil Law

In a criminal case In a civil case

Fines are payable to the government and restitution is limited to actual loss.

The money awarded goes to the plaintiff, not the government, and punitive damages can be assessed against the defendant.

The government has the burden of proving the charges against the defendant beyond a reasonable doubt.

The plaintiff has the burden of proof by a preponderance of the evidence.

Each state has the power to create its own criminal statutes pursuant to the police powers clause of the Tenth Amendment of the U.S. Constitution. Each state is free to define its crimes as long as the statute satisfies the principle of legality. Moreover, the statutes must also be understandable, not subject to ad hoc interpretation, and applied in favor of the accused when there is any ambiguity (Wallace & Roberson, 1996, p. 225). These requirements are mandated by the due process clause of the Fifth and Fourteenth Amendments (Torcia, 1995).

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