3 - Criminal Law

3: Criminal Law
Learning Objectives
This section examines the fundamental principles of criminal law. It describes the functions of formal criminal
law (what criminal law does and what it cannot do), how crimes differ from civil and moral wrongs, and various
classification schemes used in discussing criminal law. This section also examines the sources of substantive and
procedural criminal law (where we look to find our criminal law), the limitations that the constitution places on
both substantive criminal law and procedural criminal law, and the important concept of the rule of law in American
jurisprudence (legal theory). After reading this section, students will be able to:
• Distinguish between a criminal wrong, a civil wrong, and moral wrong.
• Identify the many ways in which criminal law is classified.
• Recognize the many sources of substantive and procedural criminal law.
• Identify the limitations that the federal constitution and state constitutions place on creating
substantive laws and enforcing those laws.
• Recognize the importance of rule of law in American jurisprudence and understand the importance
of judicial review in achieving rule of law.
Critical Thinking Questions
1. What does formal law do well? What does formal law not do so well?
2. Should we be able to impose sanctions for violations of moral wrongs?
3. Consider the constitutional requirement of separate but equal branches of government. Why do you
think the drafters of the constitution intended each of the branches of government to be a check on each
other? How does that “play out” when deciding what laws should be made and what laws should be
enforced? What current issues are you aware of that highlight the importance of three separate but equal
branches of government?
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ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
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4. How does direct democracy (in the form of ballot measures and propositions) influence substantive
criminal law (creating crimes and punishing crimes). What, if any, are the advantages of using direct
democracy to create and punish crime? What, if any, are the disadvantages?
5. Consider state-wide decriminalization of marijuana possession and use across the nation and the
federal statute banning possession and use of marijuana. How should this federal/state conflict be
resolved? Does your opinion change if the behavior is one that you favor or disfavor?
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3.1. Functions and Limitations of Law
LORE RUTZ-BURRI
Law is a formal means of social control. Society uses laws (rules designed to control citizen’s behaviors) so
that these behaviors will conform to societal norms, cultures, mores, traditions, and expectations. Because
courts must interpret and enforce these rules, laws differ from many other forms of social control. Both
formal and informal social control have the capacity to change behavior. Informal social control, such as
social media (including Facebook, Instagram, and Twitter) has a tremendous impact on what people wear,
how they think, how they speak, what people value, and perhaps how they vote. Social media’s impact on
human behavior cannot be overstated, but because these informal controls are largely unenforceable through
the courts as they are not considered the law.
Law and legal rules promote social control by resolving basic value conflicts, settling individual disputes,
and making rules that even our rulers must follow. Kerper (1979) recognized the advantages of law in
fostering social control and identified four major limitations of the law. First, she noted, the law often cannot
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gain community support without support of other social institutions. (Consider, for example, the United
States Supreme Court (Court) case of Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954),
which declared racially segregated schools unconstitutional. The decision was largely unpopular in the
southern states, and many had decided to not follow the Court’s holding. Ultimately, the Court had to
call in the National Guard to enforce its decision requiring schools to be integrated.) Second, even with
community support, the law cannot compel certain types of conduct contrary to human nature. Third, the
law’s resolution of disputes is dependent upon a complicated and expensive fact-finding process. Finally, the
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law changes slowly.
Lippman (2015) also noted that the law does not always achieve its purposes of social control, dispute
resolution, and social change, but rather can harm society. He refers to this as the “dysfunctions of law.”
“Law does not always protect individuals and result in beneficial social progress. Law can be used to repress
individuals and limit their rights. The respect that is accorded to the legal system can mask the dysfunctional
role of the law. Dysfunctional means that the law is promoting inequality or serving the interests of a small
number of individuals rather than promoting the welfare of society or is impeding the enjoyment of human
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rights.”
1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.
2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 11). West Publishing Company.
3. Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications.
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Similarly, Lawrence Friedman has identified several dysfunctions of law: legal actions may be brought
to harass individuals or to gain revenge rather than redress a legal wrong; the law may reflect biases and
prejudices or reflect the interest of powerful economic interests; the law may be used by totalitarian regimes
as an instrument of repression; the law can be too rigid because it is based on a clear set of rules that don’t
always fit neatly (for example, Friedman notes that the rules of self-defense do not apply in situations in
which battered women use force to repel consistent abuse because of the law’s requirement that the threat
be immediate); the law may be slow to change because of its reliance on precedent (he also notes that judges
are also concerned about maintaining respect for the law and hesitate to introduce change that society is not
ready to accept); that the law denies equal access to justice because of inability to pay for legal services; that
courts are reluctant to second-guess the decisions of political decision-makers, particularly in times of war
and crisis; that reliance on law and courts can discourage democratic political activism because Individuals
and groups, when they look to courts to decide issues, divert energy from lobbying the legislature and from
building political coalitions for elections; and finally, that law may impede social change because it may limit
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the ability of individuals to use the law to vindicate their rights and liberties.
4. Lippman, M. R. (2015). Law and society (pp. 25). Thousand Oaks, CA : SAGE Publications.
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3.2. Civil, Criminal, and Moral Wrongs
LORE RUTZ-BURRI
This chapter is about people committing crimes—engaging in behavior that violates the criminal law—and
how society responds to these criminal behaviors. Crimes are only one type of wrong. People can also violate
civil law or commit a moral wrong and not be guilty of any crime whatsoever. So, what is the difference
between a civil wrong, a criminal wrong, and a moral wrong?
Civil Wrongs
A civil wrong is a private wrong, and the injured party’s remedy is to sue the party who caused the
wrong/injury for general damages (money). The plaintiff (the injured party) sues or brings a civil suit
(files an action in court) against the defendant (the party that caused the harm). Plaintiffs can be individuals,
businesses, classes of individuals (in a class action suit), or government entities. Defendants in civil actions
can also be individuals, businesses, multinational corporations, governments, or state agencies.
Civil law covers many types of civil actions or suits including: torts (personal injury claims), contracts,
property or real estate disputes, family law (including divorces, adoptions, and child custody matters),
intellectual property claims (including copyright, trademark, and patent claims), and trusts and estate laws
(which covers wills and probate).
The primary purpose of a civil suit is to financially compensate the injured party. The plaintiff brings
the suit in his or her own name, for example, Sam Smith versus Joe Jones. The amount of damages is
theoretically related to the amount of harm done by the defendant to the plaintiff. Sometimes, when the jury
finds there is particularly egregious harm, it will decide to punish the defendant by awarding a monetary
award called punitive damages in addition to general damages. Plaintiffs may also bring civil suits called
injunctive relief to stop or “enjoin” the defendant from continuing to act in a certain manner. Codes of the
civil procedure set forth the rules to follow when suing the party who allegedly caused some type of private
harm. These codes govern all the various types of civil actions.
In a civil trial, the plaintiff has the burden of producing evidence that the defendant caused the injury and
the harm. To meet this burden, the plaintiff will call witnesses to testify and introduce physical evidence. In
a civil case, the plaintiff must convince or persuade the jury that it is more likely than not that the defendant
caused the harm. This level of certainty or persuasion is known as preponderance of the evidence. Another
feature in a civil suit is that the defendant can cross-sue the plaintiff, claiming that the plaintiff is actually
responsible for the harm.
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Criminal Wrongs
Criminal wrongs differ from civil or moral wrongs. Criminal wrongs are behaviors that harm society as
a whole rather than one individual or entity specifically. When people violate the criminal law there are
generally sanctions that include incarceration and fines. A crime is an act, or a failure to act, that violates
society’s rules. The government, on behalf of society, is the plaintiff. A criminal wrong can be committed
in many ways by individuals, groups, or businesses against individuals, businesses, governments or with no
particular victim.
Criminal Defendant Victim Examples
Individual Self or with no particular victim Gambling or drug use,
Individual Other individual(s) Assault, battery, theft
Individual Business or government Trespass, welfare fraud
Group of individuals Individual(s) Conspiracy to commit murder
Group of individuals Government or no particular victim Riot, rout, disorderly conduct
Business entity Individuals Fraud
Business entity Government or no particular victim Fraud, pollution, tax evasion
Criminal laws reflect a society’s moral and ethical beliefs. They govern how society, through its
government agents, holds criminal wrongdoers accountable for their actions. Sanctions or remedies such as
incarceration, fines, restitution, community service, and restorative justice program are used to express
societal condemnation of the criminal’s behavior. Government attorneys prosecute, or file charges against,
criminal defendants on behalf of society, not necessarily to remedy the harm suffered by any particular
victim. The title of a criminal prosecution reflects this: “State of California v. Jones,” “The Commonwealth
v. Jones,” or “People v. Jones.”
In a criminal jury trial (a trial in which a group of people selected from the community decides whether
the defendant is guilty of the crime charged) or a bench trial (a trial in which the judge decides whether
the defendant is guilty or not) the prosecutor carries the burden of producing evidence that will convince
the jury or judge beyond any reasonable doubt that the criminal defendant committed a violation of law
that harmed society. To meet this burden, the prosecutor will call upon witnesses to testify and may also
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Introduction to the American Criminal Justice System
present physical evidence suggesting the defendant committed the crime. Just as a private individual may
decide that it is not worth the time or effort to file a legal action, the state may decide not to use its
resources to file criminal charges against a wrongdoer. A victim (a named injured party) cannot force the
state to prosecute the wrongdoing. Rather, if there is an appropriate civil cause of action–for
example, wrongful death–the injured party will need to file a civil suit as a plaintiff and seek monetary
damages against the defendant.
Moral Wrongs
Moral wrongs differ from criminal wrongs. “Moral law attempts to perfect personal character, whereas
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criminal law, in general, is aimed at misbehavior that falls substantially below the norms of the community.”
There are no codes or statutes governing violations of moral laws in the United States.
“The Witness” Exercise
Watch the 2015 Netflix documentary “The Witness” in which Bill Genovese re-examined what was said, heard
and reported about his sister, Kitty Genovese. This frequently cited examples of a moral wrong involve the story
of thirty-seven neighbors who purportedly did nothing when “Kitty” Genovese was stabbed to death outside
their apartment building in New York City in 1964. There are many discrepancies about this story and what the
neighbors knew, or didn’t know, and what they did, or didn’t do, but the general belief is that they had at least a
moral obligation to do something (for example, call the police), and by failing to do anything, they committed a
moral wrong. Ultimately, none of the neighbors had any legal obligation to report the crime or intervene to help
Ms. Genovese.
Overlap of Civil, Criminal, and Moral Wrongs

Sometimes criminal law and civil law overlap and an individual’s action constitute both a violation of
criminal law and civil law. For example, if Joe punches Sam in the face, Sam may sue Joe civilly for civil
assault and battery, and the state may also prosecute Joe for punching Sam, a criminal assault and battery.
Consider the case involving O.J. Simpson. Simpson was first prosecuted in 1994 for killing his ex-wife and
her friend (the criminal charges of murder). After the criminal trial in which the jury acquitted Simpson,
the Brown and Goldman families filed a wrongful death action against Simpson for killing Nicole Brown
and Ronald Goldman. The civil jury found Simpson responsible and awarded compensatory and punitive
damages in the amount of $33.5 million dollars. Wrongful death is a type of tort. Torts involve injuries
inflicted upon a person and are the types of civil claims or civil suits that most resemble criminal wrongs.
Sometimes criminal behavior has no civil law counterpart. For example, the crime of possessing burglary
tools does not have a civil law equivalent. Conversely, many civil actions do not violate criminal law. For
example, civil suits for divorce, wills, or contracts do not have a corresponding criminal wrong. Even though
there is certainly an overlap between criminal law and civil law, it is not a perfect overlap. Because there
is no legal action that can be filed for committing a moral wrong, there really is not any overlap between
criminal wrongs, civil wrongs, and moral wrongs.
1. Gardner, T.J. (1985) Criminal Law: Principles and Cases (3rd ed., pp.7). West Publishing Company.
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3.3. Sources of Criminal Law: Federal and State Constitutions
LORE RUTZ-BURRI
Where do you look to see if something you want to do violates some criminal law? The answer is “in
many places.” Criminal law originates from many sources. Some criminal law is the result of constitutional
conventions, so you would need to review federal and state constitutions. Other criminal laws result from the
legislative or initiative process, so you will need to review state statutes or congressional acts. Other criminal
law results from the work of administrative agencies, so you need to review state and federal administrative
rules. Other criminal law, called case law, originates from appellate court opinions written by judges. These
court opinions, called “decisions”, are published in both official and unofficial reporters, but thanks to the
Internet, they are now easy to find if you know the parties’ names. Much of our criminal law descended
from the English common law. This law developed over time, through custom and tradition, and it is a bit
more difficult to locate, but it is mentioned in treatises and legal “hornbooks” (like legal encyclopedias) and
is often referred to in case decisions.
The federal constitution—The Constitution of the United States
Although the United States Constitution recognizes only three crimes (counterfeiting, piracy, and
treason), it nevertheless plays a significant role in the American criminal justice system. Most importantly,
the Constitution establishes limits on certain types of legislation or substantive law, and it provides significant
procedural constraints on the government when it seeks to prosecute individuals for crimes. The
Constitution also establishes federalism (the relationship between the federal government and state
governments), requires the separation of powers between the three branches of government (the judicial
branch, the legislative branch, and the executive branch), and limits Congress’s authority to pass laws not
directly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred
because they intertwined with the enumerated powers).
Constitutional Limitations on Criminal Law and Procedure
The drafters of the federal Constitution were so concerned about two historic cases of abuse by English
Parliament (ex post facto laws and bills of attainder) that they prohibited Congress from passing these types
of laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post facto
laws are laws that are retroactively applied, or punishments retroactively increased, or changes in the amount
and types of evidence that is required of the government in order to successfully prosecute an individual.
Bills of attainders are laws that are directed at named individual or group of individuals and has the effect
of declaring them guilty without a trial.
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Most of the other limitations are found within the Bill of Rights, the first ten amendments to the
U.S. Constitution. The states adopted the Bill of Rights in 1791. The statesmen had opposing viewpoints
concerning how strong the national government should be and how strong state governments should be.
Even as the original federal constitution was being circulated and ratified, the framers were thinking about
the provisions that became known as the Bill of Rights.
Music & Law Exercise
For a novel way to explore this dispute, listen to the soundtrack from Alexander Hamilton, the Broadway Musical
composed by Lin-Manuel Miranda.
The First Amendment limits Congress’s ability to pass laws that limit free speech, freedom of religion,
freedom of assembly and association. The Second Amendment limits Congress’s ability to outlaw the
personal possession of firearms. The Fourth, Fifth, Sixth and Eighth Amendments have provisions that
govern criminal procedure during the investigative, pretrial, and trial phases. The Eighth Amendment sets
limits on the government’s ability to impose certain types of punishments, impose excessive fines, and set
excessive bail. The Due Process Clauses of the Fifth and Fourteenth Amendment require that criminal justice
procedures be fundamentally fair. The Fourteenth Amendment’s Equal Protection Clause requires that, at
a minimum, there be some rational reason for treating people differently. For example, states can pass laws
prohibiting minors from purchasing and consuming alcohol because states have a reasonable interest in
protecting the health and welfare of its citizens. These amendments discussed more fully below, added several
constraints on Congress. The impact of the Bill of Rights was to place substantial checks on the federal
government’s ability to define crimes.
The Incorporation Debate
When drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal
government. Individual states each had their own guarantees and protections of individuals’ rights found
in the state constitutions. (See below.) Since 1868, the Fourteenth Amendment has become an important
tool for making states also follow the provisions of the Bill of the Rights. It was drafted to enforce the Civil
Rights Act passed in 1866 in the post-Civil War states. Section 1 of the Fourteenth Amendment enjoins
the states from depriving any person of life, liberty, or property, without due process of law. It prohibits
states from adopting any laws that abridge the privileges and immunities of the citizens of the United States
and requires that states not deny any person equal protection under the law. U.S. Const. amend. XIV, § 2.
The practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over
decades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in
one-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-by-
case, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process
Clause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of
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Rights that are “implicit in the concept of ordered liberty.” For example, in 1925 the Court recognized
that the First Amendment protections of free speech and free press apply to states as well as to the federal
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government. In the 1960s, the Court selectively incorporated many of the procedural guarantees of the
Bill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill
of Rights to the states. Most recently, on February 20th, 2019 the Court incorporated the right to be free
from excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana, ___ U.S.
___ (2019).
First Amendment Limitations
Under the First Amendment, Congress cannot create laws that limit individuals’ speech. The Court has
recognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example,
picketing) as protected under the First Amendment’s guarantee that Congress shall not abridge freedom
of speech. The Court struck down a law banning flag burning. Texas v. Johnson, 491 U.S. 397 (1989).
The Court upheld a local ordinance prohibiting public indecency when applied to business establishment
wishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has
recognized political speech and commercial speech as protected by the First Amendment as well. See,
e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The Court has, however, deemed
some speech not worthy of protection, and consequently may be limited. According to the Court, non-
protected speech includes libel and slander, fighting words, words that present a clear and present danger
when spoken, obscenity and profanity. See, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) “There are
certain well-defined and narrowly limited classes of speech, the prevention, and punishment of which have
never been thought to raise any constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or fighting words—those which by their very utterance inflict injury or tend
to incite an immediate breach of peace.” Similarly, the Court has said anti-hate crime statutes permissibly
limit individuals’ speech to the extent they are directed at conduct rather than the content of the speech.
See, e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993).
The First Amendment limits Congress’s authority to legislate in the realm of religion as well. Congress
cannot make laws that either create a religion (these violate the Establishment Clause) or target and
interfere with a person’s exercise of their own religion (these violate the Free Exercise Clause). Finally, the
First Amendment guarantees that people have the right to freely associate and assemble with others. Thus,
Congress cannot make laws that completely limit people’s ability to gather together peaceably. However,
1. Palko v. Connecticut, 302 U.S. 319 (1937).

2. Gitlow v. New York, 268 U.S. 652 (1925)
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the Court has indicated that the government can place reasonable time and manner limitations based on
the location in which the gathering is to take place. See, e.g., Cox v. Louisiana, 379 U.S. 536 (1965).
Second Amendment Limitations
Legislatures can place restrictions on weapons and ammunition purchase and possession, but they cannot
completely restrict people’s ability to possess guns for the purpose of self-defense. See, District of Columbia
v. Heller, 554 U.S. 570 (2008) (an individual’s right to possess a weapon is unconnected with service in the
military). According to the Court, the Second Amendments’ protections apply equally to the states. See,
McDonald v. Chicago, 561 U.S. 742 (2010).
Fourth Amendment Limitations
The Fourth Amendment limits the government’s ability to engage in searches and seizures. Under
the least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be
reasonable. Under the most restrictive interpretation, the Amendment requires that government officers
need a warrant any time they do a search or a seizure. The Court has interpreted the Fourth Amendment in
many cases and, the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court’s
constant refinement and revision. One thing is clear, the Court has never embraced the most restrictive
interpretation of the Fourth requiring a warrant for every search and seizure conducted.
Fifth Amendment Limitations
The Fifth Amendment protects against self-incrimination (having to disclose information that could
ultimately harm you) in that it states that no person “shall be compelled in a criminal case to be a witness
against himself.” Defendants have the right to not testify at trial and the right to remain silent during a
custodial interrogation. See, Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also provides
for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law,
and prohibits taking private property for public use (a civil action). The Court has incorporated the double
jeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a
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person to double jeopardy. However, it has not held that states must provide a grand jury review. The Fifth
Amendment’s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated
to the states, but most states do use the grand jury at least for some types of cases. The Fifth Amendment
also entitled citizens prosecuted by the federal government to the due process of law. This is discussed more
fully below as a Fourteenth Amendment right.
Sixth Amendment Limitations
The Sixth Amendment guarantees a criminal defendant: the right to a speedy trial, the right to a public
trial, the right to a jury trial, the right to have his or her trial in the district where the crime took place, the
right to be told what charges have been filed, the right to confront witnesses at trial, the right to compel
witnesses to testify at trial, and the right to assistance of counsel. This Amendment governs the federal
court process, but because of the Fourteenth Amendment’s Due Process Clause, these rights also apply to
defendants in state criminal cases.
Eighth Amendment Limitations
Legislatures cannot make laws that make the punishment for a crime “cruel or unusual.” This means that
punishments cannot be either barbaric (causing needless pain) or disproportionate (i.e., too severe to fit
the crime). In addition to the prohibition against cruel and unusual punishment, the Eighth Amendment
also prohibits the imposition of excessive bail and excessive fines. The Court has dealt with excessive fines
in terms of whether the fine is disproportionate to the crime. See, e.g., Timbs v. Indiana (above) (forfeiting
defendant’s $42,000 land rover was excessive compared to the maximum fine he could get for his crime
($10,000.) The prohibition against excessive bail does not mean that courts must set bail in every case, but
rather, when courts do set bail, it must not be excessive. Bail is excessive when it is an amount more than
necessary to assure the defendant’s reappearance. Stack v. Boyle, 342 U.S. 1 (1951). *
Fourteenth Amendment limitations
The Fourteenth Amendment mandates that states do not deny their citizen’s due process of law. Due
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process can be summarized as making sure that the government treats people fairly. Part of fairness is giving
people fair warning as to what behaviors are permitted and what behaviors are not permitted—putting
people on notice of what the law is. Thus, legislators must be very careful when making new laws.
They cannot make laws that are so poorly drafted such that a person of ordinary intelligence would not
understand the law or that would allow police too much discretion in how they will interpret and apply
the law because such a law would be considered void for vagueness.
The Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot
make laws that treat people differently unless the laws are rationally related to a legitimate government
interest. When legislatures attempt to pass laws that treat people differently based on sex, then the
court reviews the law with heightened scrutiny — the law must be designed to achieve an important
government interest and the differential treatment must be based on an actual physiological difference
between the sexes and not based on archaic stereotypes. When legislatures attempt to pass laws that treat
people differently based upon their race or ethnicity, then they have to have even a more compelling
reason to do so, and even then, the courts, employing “strict scrutiny” are likely to declare such laws
unconstitutional.
Limitations Found in the “Penumbra” of the Constitution
Sometimes the Constitution doesn’t explicitly state protection or right that the courts have nevertheless
found to be inherent or found within the Constitution. Justice Douglas, writing the majority opinion in
Griswold v. Connecticut, 381 U.S. 479 (1965), stated
“[The] . . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance. … Various guarantees create zones of privacy. The
right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without
the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the
‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone
of privacy which government may not force him to surrender to his detriment. The Ninth Amendment
provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.’
The Fourth and Fifth Amendments were described … as protection against all governmental invasions
‘of the sanctity of a man’s home and the privacies of life.’ We recently referred in Mapp v. Ohio, 367 U. S.
643, 656, to the Fourth Amendment as creating a ‘right to privacy, no less important than any other right
carefully and particularly reserved to the people.’ (Footnote omitted).” 381 U.S. at 484-485.
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Thus, legislatures cannot make laws that allow the government to invade people’s privacy, even
though no specific amendment can be pointed to. The constitutional right to privacy must often be
balanced against the state’s compelling interests such as promoting public safety. The courts have found
the right to privacy in the context of reproductive freedom (See, e.g., Roe v. Wade, 410 U.S. 113
(1972) (right to abortion), Eisenstadt v. Baird, 405 U.S. 438 (1972) (the right of married persons to
possess contraceptives), Griswold v. Connecticut, 381 U.S. 479 (1965) (declaring invalid the ban on
contraceptives), Stanley v. Georgia, 394 U.S. 557 (1969) (the right to view and possess adult pornography),
and the right of adults to engage in consensual sexual contact), and Lawrence v. Texas, 539 U.S. 558 (2003)
(the right of adults to engage in consensual sexual contact).
State Constitutions
States’ constitutions, similar to the federal constitution, set forth the general organization of state
government and basic standards governing the use of governmental authority. Although the federal
constitution is preeminent because of the Supremacy Clause, state constitutions are still significant. State
constitutional rules are supreme as compared to any other rules coming from all other state legal sources
(statutes, ordinances, administrative rules) and prevail over such laws in cases of conflict. The federal
constitution sets the floor of individual rights, but states are free to provide more individual freedoms and
protections that are granted by the federal constitution. State constitutions are defined and interpreted by
state courts, and even identical provisions in both the state and federal constitution may be interpreted
differently. For example, the state constitution’s guarantee to be free from unreasonable searches and
seizures may mean that, under state law, roadblocks established to identify impaired, intoxicated drivers are
impermissible, but under the federal constitution, these roadblocks are permitted and are not deemed to be
unreasonable seizures.
Comparing Cases Exercise
Compare the U.S. Supreme Court holding in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) to
the Michigan Supreme Court holding interpreting the same case under Michigan Constitution, 506 N.W.2d 209
(Mich. 1993).
Rule of Law, Constitutions and Judicial Review
One of the key features of the American legal system has been its commitment to the rule of law. Rule
of law has been defined as a “belief that an orderly society must be governed by established principles and
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known standards that are uniformly and fairly applied.” Reichel identified a three-step process by which
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countries can achieve rule of law. The first step is that a country must identify core, fundamental values.
The second step is for the values to be reduced to writing and written somewhere that people can point to
them. The final step is to establish a process or mechanism whereby laws or governmental actions are tested
to see if they are consistent with the fundamental values. When laws or actions embrace the fundamental
values, they are considered valid, and when the laws or actions conflict with the fundamental values, they
are invalid.
Applying this three-step process to America’s approach to law one can see that Americans have
recognized fundamental values, such as the right to freedom of speech, the right to privacy, and the
right to assemble. Second, we have reduced these fundamental values to writing and, for the most part,
have compiled them in our constitutions (both federal and state). Third, we have a mechanism, that of
judicial review, by which we judge whether our laws and our government actions comply with or violate
our fundamental values found within our constitutions. Judicial review is the authority of the courts to
determine whether a law (a legislative action) or action (an executive or judicial action) conflicts with the
Constitution. Judicial review can be traced to the case of Marbury v. Madison, 5 U.S. 137 (1803), in which
Chief Justice John Marshall wrote, “It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
3. Feldmeier, J. P., & Schmalleger, F. (2012). Criminal Law and Procedure for Legal Professionals. Prenice Hall.
4. Reichel, P. (2018) Comparative Criminal Justice Systems: A Topical Approach. New York, NY: Pearson.
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3.4. Sources of Criminal Law: Statutes, Ordinances, and Other
Legislative Enactments
LORE RUTZ-BURRI
Statutes, Ordinances, and other Legislative Enactments

Most substantive criminal law is legislative law. State legislatures and Congress enact laws which take the
form of statutes or congressional acts. Statutes are written statements, enacted into law by an affirmative vote
of both chambers of the legislature and accepted (or not vetoed) by the governor of the state or the president
of the United States. State legislatures may also create legislative law by participating in interstate compacts,
or multi-state legal agreements. An example of this includes the Uniform Extradition Act, or the Uniform
Fresh Pursuit Act. Congress makes federal law by passing acts and approving treaties between the United
States and other nation states. Local legislators, city and town councilors, and county commissioners also
make laws through the enactment of local ordinances.
Controversial Issue: Ballot Measures, Initiatives, and Referendums–Direct Democracy and Law
Making
In several states, citizens have the power to enact laws through direct democracy by putting “ballot
measures” or “propositions” up for a vote. This type of lawmaking by the people started primarily in
the Western states around the turn of the 20th century. Initiatives, referendums, and referrals have some
slight differences, but generally, these ballot measures ultimately find their way into either statutes or
the constitution, and so they are included in this section on legislative law. For example, Oregon Ballot
Measure 11, establishing minimum mandatory sentences for 17 person felonies, was voted on in November
1994 and took effect April 1, 1995. It is now found in the Oregon Revised Statutes as ORS 137.700.
Proposition 36, approved by Californians in 2012, significantly amended the “three strikes” sentencing
laws approved in 1994. Initiatives, referendums, and referrals can be effective in quickly changing the
criminal law, like the mandatory sentencing in the 1980s, and is a way to circumvent what can be a
100
contentious legislative process. An example is the decriminalization of marijuana in Washington, Oregon,

Colorado, and Alaska.
States’ Authority to Pass Criminal Laws

States are sovereign and autonomous, and unless the Constitution takes away state power, the states have
broad authority to regulate activity within the state. Most criminal laws at the state level are derived from
the states’ general police powers, or authority, to make and enforce criminal law within their geographic
boundaries. Police power is the power to control any harmful act that may affect the general well being
of citizens within the geographical jurisdiction of the state. A state code, or state statutes, may regulate any
harmful activity done in the state or whose harm occurs within the state.
Congress’s Authority to Pass Laws
Federal lawmakers do not possess police power. Instead, Congress must draw its authority to enact
criminal statutes from particular legislative powers and responsibilities assigned to it in the Constitution.
Congress’s legislative authority may be either enumerated in the Constitution or implied from its provisions,
but if Congress cannot tie its exercise of authority to one of those powers, the legislation may be declared
invalid.
Enumerated powers, for example, the power to regulate interstate commerce, are those that are specifically
mentioned in Article I Section 8 of the Constitution. Over the years, however, courts have broadly
interpreted the term “interstate commerce” to mean more than just goods and services traveling between
and among the states. Instead, interstate commerce includes any activity—including purely local or intrastate
activity—that affects interstate commerce. The affectation doctrine maintains that congressional authority
includes the right to regulate all matters having a close and substantial relation to interstate commerce.
Although the Court has found limits on what affects interstate commerce, Congress has used its broad power
to regulate interstate commerce to criminalize a wide range of offenses including carjacking, kidnapping,
wire fraud, and a variety of environmental crimes.
The implied powers of Congress are those that are deemed to be necessary and proper for carrying out
all the enumerated powers. Article I Section 8 of the Constitution states, “Congress shall have Power . .
. to make laws which shall be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution.” The implied powers doctrine expands legislative power
of Congress, and for that reason, the Necessary and Proper Clause has often been called the “expansion
clause.” Due to the implied powers found in the Necessary and Proper Clause, Congress has authority to pass
legislation and regulate a wide variety of activity to the extent that it is able to show that the law furthers one
of the enumerated powers. Nevertheless, the Court will overturn acts of Congress when it believes Congress
has overstepped its constitutional authority. So, despite the broad expanse of implied powers, Congress’s
authority is still limited and by no means is as vast as the states’ police powers.
Conflicting State and Federal Statutes
Sometimes substantive federal law conflicts with state laws or policies, and sometimes the federal
government’s interest in prosecuting cases in federal court conflicts with competing interests of the states.
One recent conflict between federal interests and state interests involves Oregon’s physician-assisted suicide
law, the “Death with Dignity Act”. See, Gonzales v. Oregon, 646 U.S. 243 (2006)(upholding Oregon’s law
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by deciding that the United States Attorney General could not enforce the national controlled substance
act against Oregon physicians). Another debate surrounds the conflicting federal and state laws governing
marijuana use. Between 1996 and 2018, thirty states and the District of Columbia passed laws legalizing
the possession of small quantities of marijuana for medicinal purposes for state residents. Since 2012,
Colorado, Washington, Oregon, Alaska, California, Nevada, Massachusetts, and Maine have passed laws
through the initiative process legalizing recreational use and possession of small amounts of marijuana
by adults. In the 2018 elections, even more, states passed laws allowing for medical use, recreational
use. See, https://www.forbes.com/sites/tomangell/2018/12/06/marijuanas-ten-biggest-victories-
of-2018/#7ca0dd5232df. These popular initiatives conflict directly with the federal Controlled Substance
Act, 21 U.S.C. 13, § 841, (CSA) which holds that any use or possession of marijuana is a federal crime. In
January 2018, the Trump administration through the U.S. Department of Justice, under Attorney General
Sessions rescinded the Obama-era restraint policies on marijuana prosecutions and indicated the desire to
fully enforce the CSA. However, in April 2018, President Trump announced he was backing down on the
crackdown on recreational use of marijuana that had been announced in January 2018.
Movement Towards Codification: The American Institute and the Model Penal Code
By the 1960s and 1970s, all states had begun codifying their criminal laws. These codifications would
likely not have taken place if not for the American Law Institute (ALI) and the publication of its Model
Penal Code (MPC). Established in 1923, the ALI is an organization of judges, lawyers, and academics that
draft model codes and laws. Its most important work in the criminal justice realm is the Model Penal Code.
The ALI began working on the MPC in 1951, and it proposed several tentative drafts over the next decade.
In 1962 the Model Penal Code was finally published. It consists of general provisions concerning: criminal
liability, definitions of specific crimes, defenses, and sentences. The MPC has had a significant impact on
legislative drafting of criminal statutes. Every state has adopted at least some provisions, or at least the
approach, of the MPC, and some code states have adopted many or most of the provisions in the MPC.
No state has adopted the MPC in its entirety.
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3.5. Sources of Law: Administrative Law, Common Law, Case Law
and Court Rules
LORE RUTZ-BURRI
Administrative Law—Agency-Made Law

State and federal legislatures cannot keep up with the task of enacting legislation on all the myriad
subjects that must be regulated by law. In each branch of government, various administrative agencies exist
with authority to create administrative law. At the federal level, for example, the Environmental Protection
Agency enacts regulations against environmental crimes. At the state level, the Department of Motor
Vehicles enacts laws concerning drivers’ license suspension. Administrative regulations are enforceable by
the courts provided that the agency has acted within the scope of its delegated authority from the legislature.
Common Law
One important source of criminal law in the United States is common law. English law developed over
centuries and, generally, when we refer to American common law, we are referring to the common law rules
brought over from England to the United States when we became a nation. However, this is not necessarily
1
always clear. LaFave describes the process by which common law was derived in England.
“. . . Although there were some early criminal statutes [in England], in the main the criminal law was
originally common law. Thus by the 1600s the judges, not the legislature, had created and defined the
felonies of murder, suicide, manslaughter, burglary, arson, robbery, larceny rape, sodomy and mayhem; and
such misdemeanors as assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. During
the period from 1660 . . . to 1860 the process continued with the judges creating new crimes when the
need arose and punishing those who committed them: blasphemy (1676), conspiracy (1664), sedition (18th
century), forgery (1727), attempt (1784), solicitation (1801). From time to time the judges, when creating
new misdemeanors, spoke of the court’s power to declare criminal any conduct tending to “outrage decency”
or “corrupt public morals.” or to punish conduct contra bonos mores: thus they found running naked in the
streets, publishing an obscene book, and grave-snatching to be common law crimes.
Of course, sometimes the courts refused to denote as criminal some forms of anti-social conduct. At times
their refusal seemed irrational, causing the legislature to step in and enact a statute: thus false pretenses,
embezzlement, incest and other matters became statutory crimes in England. … Some immoral conduct,
mostly of a sexual nature (such as private acts of adultery or fornication, and seduction without conspiracy)
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was punished by ecclesiastical courts in England. The common law courts never punished these activities as
criminal, and thus, they never became English common law crimes.
At the same time that judges were developing new crimes, they were also developing new common law
defenses to crime, such as self-defense, insanity, infancy, and coercion. …
About the middle of the nineteenth century, the process of creating new crimes almost came to a standstill
2
in England. ”
American courts originally relied on the decisions of the English Courts, but Kerper (1979, p. 27) notes
that
“as the number of American decisions grew, the American courts began to rely more and more on
their own decisions. At the same times, differences in social and economic conditions (and to some extent,
differences in the personalities of the judges) led the courts in different states to take different views of
the common law. As a result, while the English tradition produced a core of similarity, there developed
significant differences in common law rules in the various states. Thus, the common law standard governing
an officer’s authority to arrest for minor crimes might be substantially different in Ohio and New York,
although the general framework of the common law governing arrests was likely to be similar in both
3
states.”
In order to understand the limitations of common law, it is helpful to understand the difference between
the common law tradition followed by the United States, and other nations that follow the English model
and the civil law tradition which developed in Europe. The civil law tradition uses legislative codes as the
primary source of law. Under the civil law tradition, new substantive law replaces, rather than supplements,
old substantive law. Thus, judges in the civil law tradition are not bound by prior interpretations of
legislative codes, and all courts are free to interpret the codes according to generally accepted principles
of legal interpretation. Stare decisis, discussed below, plays no persuasive or binding role in the civil law
tradition. Under the common law tradition though, new substantive law generally adds to, rather than
replaces, old substantive law.
Kerper notes that our common law tradition is not purely one of common law, and that common law is
displaced by statutes, case law, and the constitution.
“Though the description of the Anglo-American system as a “common law legal system” notes an
important distinction between it and the civil law system, that description should not lead one to ignore the
fact that legislation also constitutes an important source of law in the Anglo-American system. That system
is actually a mixed system of common law rules and statutory rules. The common law rules established by
American and English courts have always been subject to displacement by legislative enactments. Indeed,
the courts have the authority to develop common law standards only where the legislatures have not sought
to provide legislative solutions. … In our country, the common law also is subject to the legal limitations
imposed by federal and state constitutions. The supremacy of the constitutions extends over all forms of
law, including the common law. Just as legislation cannot violate a constitutional limitation, neither can a
4
common law rule.”
Common law is a source of both substantive and procedural law (discussed below), but it is important to
note that there are no federal common law crimes. If Congress has not enacted legislation to make certain
conduct criminal, that conduct cannot constitute a federal crime.
Judge-Made Law: Case Law
2. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 70). St. Paul, Minn: West Group.
4. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 28-29). West Publishing Company.
104
The term case law refers to legal rules announced in opinions written by appellate judges when deciding
appellate cases before them. Judicial decisions reflect the court’s interpretation of constitutions, statutes,
common law, or administrative regulations. When the court interprets a statute, the statute, as well as its
interpretation, control how the law will be enforced and applied in the future. The same is true when a court
interprets federal and state constitutions. When deciding cases and interpreting the law, judges are bound by
precedent.
Star
taree Decisis and Precedent: Been There, Done (must do) That.
The doctrine of star

staree decisis comes from a Latin phrase that states, “to stand by the decisions and not
disturb settled points”. It tells the court that if the decisions in the past have held that a particular rule
governs a certain fact situation, that rule should govern all later cases presenting the same fact situation.
Under the doctrine of stare decisis, past appellate court decisions form precedent, that judge must follow
in similar subsequent cases. Stare decisis permits society to presume that bedrock principles are founded
in the law rather than in the proclivities of individuals, and thereby contribute to the integrity of our
5
constitutional system of government, both in appearance and fact.” Trial courts and appellate courts must
follow the controlling case law that has already been announced in appellate court decisions from their
own jurisdiction. Trial courts must follow precedent when they decide questions of law. [Questions of
law include what a statute means, what the law states, how the constitution should be interpreted, whether
a particular law even applies under the facts in the case before them. On the other hand, questions of
fact are decided by jurors (or judges in bench trials) and include, for example, how fast was the defendant
driving, what color hat the defendant was wearing, or whether the gun went off accidentally.] One way
courts get around precedent is to distinguish the facts in the case before them as much different than the
facts in the earlier case. For example, if the court may decide that the fact that the defendant was running
away from the scene, in this case, is so different from the earlier case in which the defendant was merely
walking away from the scene that there is no precedent it must follow.
The advantages of stare decisis include efficiency, equality, predictability, the wisdom of past experience,
6
and the image of limited authority. Efficiency occurs because each trial judge and the appellate judge does
not have to work out a solution to every legal question. Equality results when one rule of law is applied
to all persons in the same setting. “Identical cases brought before different judges should, to the extent
humanly possible, produce identical results. … Stare decisis assists in providing uniform standards of law for
similar cases decided in the same state. It provides a common grounding used by all judges throughout the
7
jurisdiction.” Stare decisis provides stability in allowing individuals to count on the rules of law that have
been applied in the past. Kerper’s example is a police officer’s reliance on past decisions to help determine
the legality of a pending arrest. “Without regard to past decisions, the conduct of a wide variety of activities
would take on an added hazard of unpredictable legality. Without stability, the law could well loose (sic)
5. Vasquez v. Hillery, 474 U.S. 254 (1986)

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8
its effectiveness in maintaining social control.” Stare decisis also ensures proper recognition of the wisdom
and experience of the past. Justice Cardozo observed that “no single judge is likely to have ‘a vision at
once so keen and so broad’ as to ensure that his new ideas of wise policy are indeed the most beneficial for
9
society.” Finally, stare decisis enhances the image of the courts as the impartial interpreter of the law.
“Stare decisis decreases the leeway granted to the individual judge to settle controversies in accordance
with his own personal desires. … Indeed, the doctrine of stare decisis indirectly serves to restrict the law-
making role of the judge even in those cases presenting “open issues” not resolved by past precedent. … A
sudden change in the composition of the judiciary, even at the highest level, should not present an equally
10
sudden change in the substance of the law.”
In the federal system, all federal courts must follow the decisions of the Supreme Court as it is the final
interpreter of the federal constitution and federal statutes. If, however, the Supreme Court has not ruled on
an issue, then the federal trial courts (U.S. District Courts and U.S. Magistrate Courts) and federal appellate
courts (Circuit Courts of Appeals) must follow decisions from their own circuit. Each circuit is treated, in
effect, as its own jurisdiction, and the court of appeals for the various circuits are free to disagree with each
other.
Because stare decisis is not an absolute rule, courts may reject precedent by overruling earlier decisions.
One factor that courts will consider before overruling earlier case law is the strength of the precedent.
Another factor is the field of law involved. Courts seem to be more reluctant to override precedents
governing property or trade where commercial enterprises are more likely to have relied quite heavily
on the precedent. Courts also consider the initial source of precedent, such as statutory interpretation.
For example, if the courts decided in 1950 that the statute meant that individuals could graze their cattle
on federal lands without being in violation of any trespass laws, and then the federal government did
not subsequently change the law, the legislature’s inaction indicates the interpretation was probably right.
The most compelling basis upon which a court will overturn precedent, however, is if it perceives the
presence or absence of changed circumstances. For example, scientific or technological developments may
warrant the application of new rules. Consider the common law year and a day rule which required the
government, in a murder prosecution, prove that the victim died within one year and a day of the attack.
The rule is premised on the idea that there needed to be some showing that the defendant’s act caused the
death. Medical science now makes it possible to trace the source of fatal blow, so murder statutes no longer
include the year and a day rule. One final ground for overruling a prior decision is general changes in
the spirit of the times. For example, in Trop v. Dulles, 356 U.S. 86 (1958), the Court looked to “evolving
standards of decency” in deciding whether the defendant’s punishment was cruel and unusual and thus
violated the Eighth Amendment.
9. Cardozo, B. N. (1924). The Growth of the Law. New Haven, CT: Yale University Press.
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Matters of First Impression or “Wow, this is new territory, what should we do now?”
If a court is dealing with a legal issue for the first time, there is no precedent to follow, and it cannot then
be bound by stare decisis. The court may look to other states to see if there is any persuasive case authority
on the matter, but state courts do not have to follow established law from other states. When there is no
precedent or controlling cases, the case or issue is referred to as a matter of the first impression. In cases
of the first impression, courts get to decide what the relevant rule should be. In deciding cases of the first
impression, judges will look to relevant statutes, legislative history, and cases involving similar situations
“The situation may be a new one. … Yet the judges do not throw up their hands and say the case may
not be decided; they decide it. Maybe they can use some settled law in an analogous situation. … Even
if there is no available analogy, or if there are competing analogies, the judge will make (some prefer to
say discover) the law to apply to the new situation. The new law will be decided according to the judges’
ideas (ideas they acquire as members of society) of what is moral, right, just; of what will further sound
public policy, in light of customs and traditions of the people of which the judges are members.” LaFave,
W. Criminal Law, 69(3d. ed., 2000). ”
It is not necessarily easy, to interpret the law and apply it to the facts of a case. Facts can be “messy”, the
law can be less than clear, and not everyone will agree on the appropriate meaning of the law’s mandate.
Judges, therefore, rely on several tools or approaches when interpreting the language of a statute. LaFave
11
has identified various approaches used by judges to interpret the law. First, judges will look at the plain
meaning of the statute and rely on dictionary-like tools to discover the meaning of the words. According to
the Court in Caminetti v. United States, 242 U.S. 470 (1917), “Where the language is plain and admits of no
more than one meaning, the duty of interpretation does not arise.” Even under this strict constructionist
approach, judges can still disagree whether the language of the statute is plain. Also, there is a danger with
this plain meaning approach, and courts will not follow a statute though apparently plain language when
strict application results in injustice, oppression or even an absurd consequence.
Second, judges will look to the drafter’s intent revealed in the legislative history, or records of legislative
hearings and floor debates, when it exists. LeFave notes that sometimes it is easier to figure out the framer’s
intent than other times. Moreover, different lawmakers may have had different intents when they cast their
votes enacting the law. Additionally, sometimes legislators never considered the specific factual scenario
facing the court.
“It should be noted also that not all judges are enamored of the use of legislative history in interpreting
ambiguous statutes. And in any event, the legislative history is less likely to be controlling in construing
criminal statutes than civil statutes. If one purpose of a criminal statute is to warn the public of what
conduct will get them into criminal trouble, that is, if prospective criminals are entitled to a fair
warning–then the public should be able to ascertain the line between permitted and prohibited conduct
12
from the statute itself.”
11. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 86-89). St. Paul, Minn: West Group.
12. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 89). St. Paul, Minn: West Group.
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Third, judges may try to focus on the original understanding or original meaning of the law. Under this
approach, the court asks itself how a common person reading the law when it was enacted, would have
understood the law. For example, when looking at a statute written in 1972, the court would ask itself how
the common person in 1972 would have understood the statute. This approach is problematic because not
all people living in 1972 would have interpreted the law in the same way.
Fourth, as discussed above, judges may interpret the law based on precedent. One drawback to this
approach is that facts of the earlier cases will always differ somewhat from the facts in the new case the
court is trying to interpret. Another difficulty occurs when the court is faced with a new situation or a new
law and there is no precedent to guide the court. LaFave identified the difficulty in adhering too closely to
precedent:
“Sometimes a court, having earlier construed a criminal statute strictly in favor of the defendant, later
decides that its earlier construction was wrong. … Obviously, other things being equal, courts should
interpret statutes correctly, regardless of past mistakes. On the other hand, it may not be fair to . . .
change the rule now. The difficulty lies in the Anglo-American theory of precedents that case law operates
retroactively, and in particular that case law which overrules earlier precedents operates retroactively.
When faced with this problem–that of overruling or following an earlier erroneous interpretation . . . [one]
court felt obliged to follow case precedent with an invitation to the legislature to change the rule of for the
future; but [another court overruled the precedent.]
The choice, however, is not necessarily between following the precedent (thus letting a defendant off
but perpetuating a bad decision) and retroactively overruling it (thus eliminating a bad precedent but
putting the defendant behind bars). There are two techniques by which the defendant may go free even
if the precedent is overruled. It is not impossible for the court to overrule for the future only, letting the
defendant go but stating in the opinion that anyone who from now on conducts himself the way this
defendant did will be guilty of the crime. The second method is to overrule the erroneous precedent but
to give the defendant the defense of mistake of law induced by an appellate court. … Some courts have
gone so far as to say that the adoption of a new interpretation of an old statute is forbidden by ex post facto
13
constitutional provision if the new interpretation is harder on the defendant than the old.”
Finally, there are common law doctrines which direct the court to interpret ambiguous terms in a
specific way. For example, the rule of lenity tells the court to interpret the statute in the light that is most
favorable to the defendant. Another rule, expressio unius est exclusion alters, meaning the inclusion of one is
the exclusion of all others, holds that when a legislative body includes specific items within a statute, the
assumption is that it intends to exclude all other terms. Another doctrine of in pari materia, meaning on the
same matter or subject, directs the court to interpret an ambiguous statute in a light most consistent with
other statutes on the same subject. Finally, there is a general maxim that special language controls over
general language, and later statutes control over earlier statutes.
13. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 96-97). St. Paul, Minn: West Group.
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Court Rules of Procedure

The U.S. Supreme Court and state supreme courts make a law that regulates the procedures followed
in the lower courts- both appellate and trial courts- in that jurisdiction. These court rules, adopted by the
courts to facilitate the administration and processing of cases, are generally limited in scope, but they may
nevertheless provide significant rights for the defendant. For example, the rules governing speedy trials may
be governed generally by the Constitution, but very specifically by court rules in a particular jurisdiction.
Local courts may also pass local court rules that govern the day-to-day practice of law in these lower
courts. For example, a local court rule may dictate when and how cases are to be filed in that jurisdiction.
Generally, the local bar (all the attorneys in the jurisdiction) are consulted, and a workforce consisting of
judges, trial court administrators, and representatives from district attorney’s office, the public defender’s
office, assigned counsel consortiums, and private attorneys will meet every few years to decide on the local
rules.
Okay, so where do I look to see if my behavior is prohibited?
Because criminal law has many sources–constitutions, legislative enactments, administrative rules, case
law, and common law–it is not necessarily an easy task to determine whether your behavior or the
way government responds to your behavior, is lawful. First, it is always advisable to know your rights
under the federal constitution and your state constitution and understand what limits the constitution
places on legislative enactments and law enforcement actions. Still, even assuming that laws have been
properly enacted and that police have followed proper procedure, it may be difficult to determine whether
your behavior is prohibited. Because most states now codifying their criminal laws by enacting statutes,
start there. Then look to any case law which may interpret these statutes. Since courts generally follow
precedent due to the doctrine of stare decisis, one red flag that your behavior may be unlawful is that, in the
past, the courts have found behavior similar to yours to be unlawful.
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3.6. Classifications of Law
LORE RUTZ-BURRI
In this section of the chapter, we turn to the various ways that criminal law has been classified. Classification
schemes allow us to discuss aspects or characteristics of the criminal law. Some classifications have legal
significance, meaning that how a crime is classified may make a difference in how the case is processed or
what type of punishment can be imposed. Some classifications historically mattered (had legal significance),
but no longer have much consequence. Finally, some classifications have no legal significance, meaning the
classification exists only to help us organize our laws.
Classifications Based on the Seriousness of the Offense
Legislatures typically distinguish crimes based on the severity or seriousness of the harm inflicted on
the victim. The criminal’s intent also impacts the crime’s classification. Crimes are classified as felonies or
misdemeanors. Certain, less serious, behavior may be classified as criminal violations or infractions. The
term offense is a generic term that is sometimes used to mean any type of violation of the law, or it is
sometimes used to mean just misdemeanors or felonies. Although these classification schemes may seem
pretty straight forward, sometimes states allow felonies to be treated as misdemeanors and misdemeanors to
be treated as either felonies or violations. For example, California has certain crimes, known as wobblers,
that can be charged as either felonies or misdemeanors at the discretion of the prosecutor upon consideration
of the offender’s criminal history or the specific facts of the case.
The distinction between felonies and misdemeanors developed at common law and has been incorporated
in state criminal codes. At one time, all felonies were punishable by death and forfeiture of goods, while
misdemeanors were punishable by fines alone. Laws change over time, and as capital punishment became
limited to only certain felonies (like murder and rape), new forms of punishment developed. Now, felonies
and misdemeanors alike are punished with fines and/or incarceration. Generally, felonies are treated as
serious crimes for which at least a year in prison is a possible punishment. In states allowing capital
punishment, some types of murder are punishable by death. Any crime subject to capital punishment is
considered a felony. Misdemeanors are regarded as less serious offenses and are generally punishable by
less than a year of incarceration in the local jail. Infractions and violations, when those classifications exist,
include minor behavior for which the offender can be cited, but not arrested, and fined, but not incarcerated.
The difference between being charged with a felony or misdemeanor may have legal implications beyond
the length of the offender’s sentence and in what type of facility an offender will be punished. For example, in
some jurisdictions, the authority of a police officer to arrest may be linked to whether the crime is considered
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a felony or a misdemeanor. In many states the classification impacts which court will have the authority to
hear the case. In some states, the felony-misdemeanor classification determines the size of the jury.
Classifications Based on the Type of Harm Inflicted
Almost all state codes classify crimes according to the type of harm inflicted. The Model Penal Code uses
the following classifications:
• Offenses against persons (homicide, assault, kidnapping, and rape, for example)
• Offenses against property (arson, burglary, and theft, for example)
• Offenses against family (bigamy and adultery, for example)
• Offenses against public administration (e.g., bribery, perjury, escape)
• Offenses against public order and decency (e.g., fighting, breach of peace, disorderly conduct,
public intoxication, riots, loitering, prostitution)
Classifications based on the type of harm inflicted may be helpful for the purpose of an organization, but
some crimes such as robbery may involve both harms to a person and property. Although generally, whether
a crime is a person or property crime may not have any legal implications when a person is convicted, it may
matter if and when the person commits a new crime. Most sentencing guidelines treat individuals with prior
person-crime convictions more harshly than those individuals with prior property-crime convictions. That
said, it is likely that the defense will argue that it is the facts of the prior case that matter not how the crime
was officially classified.
Mala in se Mala Pr Prohibita
ohibita Crimes
Crimes have also been classified as either mala in se (inherently evil) or mala pr prohibita
ohibita (wrong simply
because some law forbids them). Mala in se crimes, like murder or theft, are generally recognized by every
culture as evil and morally wrong. Most offenses that involve injury to persons or property are mala in se.
All of the common law felonies (murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem and
burglary) were considered mala in se crimes. Mala prohibita crimes, like traffic violations or drug possession,
are acts that are crimes not because they are evil, but rather because some law prohibits them. Most of the
newer crimes that are prohibited as part of a regulatory scheme are mala prohibita crimes.
Substantive and Procedural Law
Another classification scheme views the law as either substantive law or procedural law. Both criminal law
and civil law can be either substantive or procedural. Substantive criminal law is generally created by statute
or through the initiative process and defines what conduct is criminal. For example, substantive criminal
law tells us that Sam commits theft when he takes Joe’s backpack if he did so without Joe’s permission if he
intended to keep it. Substantive criminal law also specifies the punishment Sam could receive for stealing
the backpack (for example, a fine up to $500.00 and incarceration of up to 30 days). The substantive law
may also provide Sam a defense and a way to avoid conviction. For example, Sam may claim he reasonably
mistook Joe’s backpack as his own and therefore can assert a mistake of fact defense. Procedural law gives
us the mechanisms to enforce substantive law. Procedural law governs the process for determining the
rights of the parties. It sets forth the rules governing searches and seizures, investigations, interrogations,
pretrial procedures, and trial procedures. It may establish rules limiting certain types of evidence, establishing
timelines, as well as require the sharing of certain types of evidence and giving a certain type of notice. The
primary source of procedural law is judicial interpretations of the federal constitution and state constitutions,
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but state and federal statutes, particularly those adopting rules of evidence, also provide much of our
procedural law.
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3.7. Substantive Law: Defining Crimes, Inchoate Liability,
Accomplice Liability, and Defenses
LORE RUTZ-BURRI
Substantive Law
Substantive law includes laws that define crime, meaning laws that tell us what elements the government
needs to prove in order to establish that this crime has been committed. Substantive law also includes the
definitions of inchoate crimes (incomplete crimes) of conspiracies, solicitations, and attempts. Substantive
law also sets forth accomplice liability (when a person will be held responsible when they work in concert
with others to complete a crime). Substantive law also identifies the defenses that a person may raise when
they are charged with a crime. Finally, substantive law indicates the appropriate penalties and sentences for
crimes. Today, the great majority of substantive law has been codified and is found in the state’s particular
criminal code or in the federal code. Generally, criminal codes are separated into two parts: a general part
and a special part. The general part typically defines words and phrases that will be used throughout the
code (for example, the word intentionally), indicates all possible defenses and provides the general scheme
of punishments. The special part of the code typically defines each specific crime setting forth the elements
of the crime (components of the crime) the government must prove beyond a reasonable doubt in order to
convict a defendant of a crime.
Elements of the crime
With the exception of strict liability crimes and vicarious liability crime (discussed below), the government
will always have to prove that the defendant committed some criminal act, the actus reus element and that he
or she acted with criminal intent, the mens rea element. When proving a crime of conduct, the state must
prove that the defendant’s conduct met the specific actus reus requirement. The government must prove that
the defendant’s behavior was either a voluntary act (meaning not the product of a reflex or done while asleep,
or under hypnosis), a voluntary omission to act (meaning that he or she failed to act) when there was a legal
duty to do so, or that he or she possessed some item that should not have been possessed. To meet the mens
rea element, the state must prove that the defendant’s act was triggered by criminal intent. The elements of
a specific crimes may also include what is referred to as attendant circumstances. Attendant circumstances
are additional facts set out in the substantive law’s definition that the state must prove to establish a crime, for
example, that the place burglarized be a dwelling, or that the property value is a at least a certain amount.
When proving a crime of causation, the state must also prove that the defendant caused specific, listed
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harm. Although generally not included in the listed elements, to prove a crime of causation, the government
must also prove that the defendant is the actual cause of the harm (actual or but/for cause) and that it is fair
to hold him or her responsible (that the defendant is the legal or proximate cause of the harm).
Statutes are generally silent on the other elements of crimes of conduct or crimes of causation: legality and
concurrence. The legality element is met when a law is validly enacted and puts people on notice that
certain behavior is illegal. Laws are presumed to be valid, and the state generally does not have to begin each
case by proving that proper procedure was followed when the law was enacted. The concurrence element
requires the state must also prove that the criminal intent triggered the criminal act–that the mens rea and
actus reus occurred at the same time.
Occasionally, a statute will be silent as to the mens rea element. When this occurs, courts need to decide
whether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the
law. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts
are disinclined to find in favor of strict liability statutes unless there is a clear indication that the legislature
intended to create strict liability. The courts will examine legislative history, the seriousness of harm caused
by the crime, whether the crime is male in se or mala prohibitum, and the seriousness of the punishment in
deciding whether the state should be relieved of its obligation to prove criminal intent of the defendant. As
a general rule, the courts are more likely to find that a crime is a strict liability one when there is a small
punishment and when the crime is more of a recent, regulatory offense (mala prohibitum crime).
Inchoate Offenses: Attempt, Conspiracy, and Solicitation
In order to prevent future harm, state and federal governments have enacted statutes that criminalize
attempts to commit crimes, solicitations to commit crimes, and conspiracies to commit crimes. The common
law also recognized these inchoate offenses or incomplete offenses. With each of the inchoate crimes, the
state must prove that the defendant intended to commit some other crime, the highest level of criminal
intent. For example, there is no crime of attempt, but there is a crime of attempted theft. State laws vary in
the approaches and tests of whether the defendant has taken enough steps to be charged with attempt, but all
agree that mere preparation does not constitute an attempt. Conspiracies involve an agreement between at
least two parties to commit some target crime. Some jurisdictions also require that there be an overt act in
furtherance of the crime (some outward movement towards the commission of the target crime) which
reaffirms there is a meeting of the minds between the co-conspirators. Solicitations involve a person asking
another to commit a crime on his or her behalf, and they do not even require an agreement by the person
requested to do so.
Accomplice Liability: Aiders and Abetters
People who commit crimes frequently do so with assistance. Substantive criminal law describes when a
person can be found guilty for the acts of another. For example, the common law recognized four parties
to a crime: principal in the first degree, principal in the second degree, accessory before the fact, and
accessory after the fact. Many complicated legal rules developed to offset the harsh common law treatment of
most crimes as capital offenses (death penalty eligible). The modern statutory trend has been to recognize
accomplices, people who render assistance before and during the crime, on one hand, and accessories after
the fact, people who help the offender escape responsibility after the crime has been committed, on the other.
Accomplices, as treated as equally liable as the main perpetrator as “the hand of one, is the hand of them all.”
Accessories after the fact, under the modern trend, are charged with hindering prosecution or obstructing
justice after the crime are punished to a lesser extent than the main perpetrators.
Vicarious Liability
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A few states have enacted vicarious liability statutes seeking to hold one person responsible for the acts
of another, even when they did not provide any assistance and may have not even known about the other’s
behavior. These statutes, generally violate our belief in individual responsibility that only people who do
something wrong should be blamed for the crime. Vicarious liability imputes (transfers) both the criminal
intent and the criminal act of one person to another. Courts generally invalidate these purported vicarious
liability statutes but have at times upheld liability based upon an employer/employee relationship or a parent/
child relationship.
Defenses
Assuming the government has proven all the elements of a crime, defendants may nevertheless raise
defenses that may result in their acquittal. Defense is a general term that includes perfect and imperfect
defenses, justifications and excuses, and procedural defenses.
Perfect and Imperfect Defenses
A perfect defense is one that completely exonerates the defendant. If the defendant is successful in raising
this defense, meaning the jury believes him or her, the jury should find the defendant not guilty. An
imperfect defense is one that reduces the defendant’s liability to that of a lesser crime. If the jury believes
the defendant, it should find the defendant guilty of a lesser charge.
Negative Defenses and Affirmative Defenses
Sometimes the government is unable to prove all the elements of the crime charged. When this happens,
the defendant may raise a negative defense claim. The defendant doesn’t have to prove anything, instead,
he or she just argues that something is missing in the state’s case, that the state did not prove everything the
statute said it had to prove, and therefore the jury should find him or her not guilty. For example, when
charging a defendant with theft, the state must prove that the defendant intentionally took the property of
another. If the jury finds that the defendant did not intend to take the property, or took property that that
was rightfully his or hers, then it should find the defendant not guilty. Negative defenses at their essence
are claims that there are “proof problems” with the state’s case. The defendant’s claim that the state failed to
prove its case does not depend on whether the defendant has put on any evidence or not.
An affirmative defense requires the defendant to put on evidence that will persuade the jury that he or she
should either be completely exonerated (for a perfect defense) or be convicted only of a lesser crime (for an
imperfect defense). The defendant can meet this requirement by calling witnesses to testify or by introducing
physical evidence. Because of the presumption of innocence, the burden of proof (the requirement that the
party put on evidence and persuade the fact-finder) cannot switch completely to the defendant. The state
must ultimately bear the burden of proving defendant’s guilt by putting on enough evidence that defendant
has committed the crime by proving each and every material element of the crime, and it must convince
the jury of this guilt beyond a reasonable doubt. However, when the defendant raises an affirmative defense,
the burden of production or persuasion switches, at least in part and temporarily, to the defendant. The
defendant’s burden is limited, however, to prove the elements of the defense he or she asserts.
Note the interplay of negative defenses and affirmative defenses. Even if a defendant is unsuccessful in
raising an affirmative defense, the jury could nevertheless find him or her not guilty based upon the state’s
failure to prove some other material element of the crime.
Justifications
Sometimes doing the right thing results in harm. Society recognizes the utility of doing some acts
in certain circumstances that unfortunately result in harm. In those situations, the defendant can raise a
justification defense. Justification defenses allow criminal acts to go unpunished because they preserve an
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important social value or because the resulting harm is outweighed by the benefit to society. For example, if
a surgeon cuts someone with a knife to remove a cancerous growth, the act is a beneficial one even though
it results in pain and a scar. In raising a justification defense, the defendant admits he did a wrongful act, such
as taking someone’s life, but argues that the act was the right thing to do under the circumstances. At times,
the state’s view differs from the defendant’s view of whether the act was, in fact, the right thing to do. In
those cases, the state files charges to which the defendant raises a justification defense.
Justification defenses include self-defense, defense of others, defense of property, defense of habitation,
consent, and necessity, also called, choice of evils. Justifications are affirmative defenses. The defendant must
produce some evidence in support of these defenses. In most cases, the defendant must also convince the jury
that it was more likely than not (a preponderance of the evidence) that his or her conduct was justified. For
example, the defendant may claim that he or she acted in self-defense and at trial would need to call witnesses
or introduce physical evidence that supports the claim of self-defense, that it was more likely than not that
his or her actions were ones done in self-defense. State law may vary about how convinced the jury must be
(called the standard of proof) or when the burden switches to the defendant to put on evidence, but all states
generally require the defendant to carry at least some of the burden of proof in raising justification defenses.
Excuses
Excuses are defenses to criminal behavior that focus on some characteristic of the defendant. With excuses,
the defendant is essentially saying, “I did the crime, but I am not responsible because I was . . . insane (or too
young, intoxicated, mistaken, or under duress).” Excuses include insanity, diminished capacity, automatism,
age, involuntary intoxication, duress, mistake of fact, and then a variety of non-traditional syndrome excuses.
Like justifications, excuses are affirmative defenses in which the defendant bears the burden of putting on
some evidence to convince the jury that he or she should not be held responsible for his or her conduct.
Procedural Defenses
Procedural defenses are challenges to the state’s ability to bring the case against the defendant for some
reason. These defenses point to some problem in the process or the state’s lack of authority to bring the case
rather than facts surrounding the crime or the criminal. Procedural defenses include: double jeopardy (a
defense in which the defendant claims that the government is repeatedly and impermissibly prosecuting him
or her for the same crime), speedy trial (a defense in which the defendant claims the government took too
long to get his or her case to trial), entrapment (a defense in which the defendant claims the government
in some way enticed him or her into committing the crime), the statute of limitations (a defense in which
the defendant claims the government did not charge him or her within the required statutory period),
and several types of immunity (a defense in which the defendant claims he or she is immune from being
prosecuted). Although procedural defenses are considered procedural criminal law, many states include the
availability of these defenses in their substantive criminal codes.
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3.8. Substantive Law: Punishment: Incarceration and Confinement
Sanctions
LORE RUTZ-BURRI
Substantive criminal law not only defines what behaviors are crimes, but also the law that determines
the permissible punishment for the criminal behavior. All three governmental branches of government
impact criminal punishment. One of the most important duties of a judge is to impose a sentence which
means determining the appropriate punishment for an offender upon conviction. Thus, punishing offenders
is a judicial function. Because of the trend toward mandatory sentencing, discussed below, much of the
discretion of sentencing has been removed from judges and placed on the prosecutors in their screening and
charging decision-making. As such, punishing offenders may rightly be considered an executive function.
Finally, the lengths of sentences and types of punishment that attach to the various crimes, without regard
to who may be committing the offense, is a product of the legislative process. In the last 30 years, through
ballot measures, propositions, referendum, and initiatives, the people (the general public through voting)
have played a large role in deciding the types and lengths of punishment.
Incarceration/Confinement Sanctions
Confinement sanctions include incarceration in prisons and jails, incarceration in boot camps, house arrest,
civil commitment for violent sexual offenders, short term shock incarceration, electronic monitoring, and
split probation (when incarceration is imposed as a condition of probation). Most believe that confinement
is the only effective way to deal with violent offenders. Although people question the efficacy of prison,
regarding it as little more than a factory for producing future criminals, incarceration does protect society
outside the prison from dangerous offenders. Prison is effective at incapacitation, but rarely is it effective at
rehabilitation. In fact, serving time in prison often reinforces criminal tendencies.
State and federal approaches to incarcerating individuals have shifted in response to prevailing criminal
justice thinking and philosophy. Over time, governments have embraced four different approaches to
sentencing offenders to incarceration: indeterminate, indefinite, determinate, or definite. Criminal codes
may incorporate more than one single approach. These approaches can be seen as a spectrum of judicial
discretion. Indefinite and indeterminate sentences, at one end, are those that allow judges and parole
boards the most discretion and authority. Determinate and definite sentences, at the other end, allow
little or no discretion. Currently, most states are following determinate sentencing coupled with sentencing
guideline, mandatory minimums, habitual offender statutes, and penalty enhancement statutes.
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Indeterminate-Indefinite Sentencing Approach

For much of the twentieth century, statutes commonly allowed judges to sentence criminals to
imprisonment for indeterminate periods. Under this indeterminate sentencing approach, judges sentenced
the offender to prison for no specific time frame and the offenders’ release was contingent upon getting
paroled, or released by a parole board after a finding that the person was rehabilitated. Because some
criminals would quickly be reformed but other criminals would be resistant to change, indeterminate
sentencing’s open-ended time frame was deemed optimal for allowing treatment and reform to take
its course, no matter how quickly or slowly. The decline of popular support for rehabilitation has led
most jurisdictions to abandon the concept of indeterminate sentencing. Indefinite sentences give judges
discretion, within defined limits, to set a minimum and maximum sentence length. The judge imposes a
range of years to be served, and a parole board decides when the offender will ultimately be released.
Determinate-Definite Sentencing Approach
Under determinate sentencing, judges have little discretion in sentencing. The legislature sets specific
parameters on the sentence, and the judge sets a fixed term of years within that time frame. The sentencing
laws allow the court to increase the term if it finds aggravating factors and reduce the term if it finds
mitigating factors. With determinate sentencing, the defendant knows immediately when he or she will be
released. In determinate sentencing, offenders may receive credit for time served while in pretrial detention
and “good time” credits. The discretion that judges are allowed in initially setting the fixed term is what
distinguishes determinate sentencing from definite sentencing.
Definite sentencing completely eliminates judicial discretion and ensures that offenders who commit the
same crimes are punished equally. The definite sentence is set by the legislature with no leeway for judges or
corrections officials to individualize punishment. Currently, no jurisdiction embraces this inflexible approach
that prohibits any consideration of aggravating and mitigating factors in sentencing. Although mandatory
minimum sentencing embraces some aspects of definite sentencing, judges may still impose longer than the
minimum sentence and therefore retain some limited discretion.
Presumptive Sentencing Guidelines
In the 1980s, state legislatures and Congress, responding to criticism that wide judicial discretion resulted
in great sentence disparities, adopted sentencing guidelines drafted by legislatively-established
commissions. These commissions proposed sentencing formulas based on a variety of factors, but the
two most important factors in any sentencing guideline scheme were the nature of the crime and the
offenders’ criminal history. Some states enacted advisory sentencing guidelines that gave suggestions to
judges statewide of what was considered an appropriate sentence that should be followed in most cases. Some
states enacted mandatory sentence guidelines that required judges to impose presumptive sentences, the
length or type of sentence that was presumed appropriate unless mitigating or aggravating factors were
identified on the record.
Sentencing guidelines generally differentiate between presumptive prison sentences and presumptive
probation sentences. Judges who depart, or (select a different sentence, from the presumptive sentences can
do a dispositional departure and impose prison when probation was the presumptive sentence or impose
probation instead of prison. Judges may also do a durational departure in which they sentence the offender
to a term length different than the presumptive term length, for example, giving an 18-month sentence
rather than a 26-month sentence.
Guideline sentencing allows for judicial discretion, but at the same time, limits that discretion. Judges
must generally make findings when sentencing the offender to a term of incarceration that is different
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from the presumptive sentence. The judge must indicate which aggravating factors (factors indicating the
offender or offense is worse than other similar crimes) or mitigating factors (factors indicating the offender
or offense is less serious than other similar crimes). The Sentencing Reform Act of 1984 (18 U.S. C.A. §§
3551 et. seq. 28 U.S.C.A. §§991-998) first established federal sentencing guidelines. The Act applied to all
crimes committed after November 1, 1987, and its purpose was “to establish sentencing policies and practices
for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines
prescribing the appropriate sentences for offenders convicted of federal crimes.” Scheb, at 681. It created
the United States Sentencing Guideline Commission and gave it the authority to create the guidelines. The
Commission dramatically reduced the discretion of federal judges by establishing a narrow sentencing range
and required that judges who departed from the ranges state in writing their reason for doing so. The Act
also established an appellate review of federal sentences and abolished the U.S. Parole Commission.
Most states have adopted some version of sentencing guidelines, from the very simple to the very complex,
and many states restrict their guidelines to felonies. Although limiting judicial discretion, state sentencing
guideline schemes all allow some wiggle room if the judge finds that the case differs from the run of the
mill case. In a series of cases, the Court has found that federal and state sentencing guidelines schemes that
do not require the jury to make findings of aggravating factors which justify a harsher sentence imposed
by the judge violate the defendant’s right to a jury trial (found in the Sixth Amendment). See, Apprendi
v. New Jersey, 530 U.S. 466 (2000); United States v. Booker-United States v. Fanfan, 543 U.S. 220 (2005);
Blakeley v. Washington, 542 U.S. 296 (2004). Accordingly, some of the sentencing guideline schemes have
been invalidated and some modified.
“There is still considerable uncertainty about the efficacy of sentencing guidelines. There is evidence
that they have reduced sentencing disparities but they clearly have not eliminated this problem altogether.
There is also concern that sentencing guidelines have promoted higher incarceration rates and have thus
contributed to the problem of prison overcrowding. It is fair to say that to be successful, sentencing
1
guidelines must be accompanied by policies designed to effectively manage prison populations.”
Controversial Issue: Mandatory Minimum Sentences
Legislative enactments, ballot measures, initiatives, and referendums have resulted in mandatory
minimum sentences schemes in which offenders who commit certain crimes must be sentenced to prison
terms for minimum periods. Mandatory minimum sentences take precedence over but do not completely
replace, whatever other statutory or administrative sentencing guidelines may be in place. It is possible for
a judge to impose a sentence that exceeds the mandatory minimum on an offender who, because of his or
her extensive criminal history or particular brutality of the crime, warrants a particularly harsh guideline
sentence.
Mandatory minimum sentences are a type of determinate sentence. Most mandatory minimum sentences
are for violent offenses or those involving the use of firearms. Federal law also mandates minimum prison
terms for serious drug crimes prosecuted in federal courts. For example, a person charged with possession
1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 683). Belmont, CA: Cengage.
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with the intent to distribute more than five kilograms of cocaine is subject to a mandatory minimum
sentence of ten years in prison. See, 21 U.S.C.A. §841 (b) (1)(A).
In our attempts to limit judicial discretion, we may have perhaps gone too far. Judges must impose
mandatory minimum sentences regardless of any compelling mitigating facts that warrant a lesser sentence,
even when victims fervently request leniency for the defendant. Sentencing discretion resting with a
neutral judge has been replaced by charging discretion resting with the prosecutor. Prosecutors, in filing
certain charges, can now compel negotiated pleas, and they now hold most of the cards. Also, mandatory
minimum sentencing has resulted in the over-incarceration of non-violent offenders. On December 18,
2018, a bi-partisan bill for criminal justice reform called the First Step Act passed the U.S. Senate with an
87-12 vote. The bill seeks to reverse some of the effects of overly harsh sentences for non-violent drug
offenders.
Link to Video on the above link showing the Senate Vote on the First Step Act on December
18th2018
https://d2hpjte286tc4h.cloudfront.net/wp-raycom/(Source_%20Senate%20TV/
Twitter/@realDonaldTrump/KCAL/KCBS/CNN/Pool)/2018/12/19/5c1a0dfbe4b0dcad7654b1db/
t_cc7087e930cd408498ddba6821c2a690_name_BHDN_PY_02WE_SENATE_PASSES_CRIMINAL_JU
STICE_REFORM_BILL__4AME_CNNA_ST1_1000000004ee5b22_120_2/file_640x360-600-v3.mp4
http://HTTPS://WWW.REGISTER-HERALD.COM/CNHI_NETWORK/IN-BIPARTISAN-ACT-
SENATE-PASSES-CRIMINAL-JUSTICE-REFORM-BILL-WITH/
VIDEO_115833EC-71D2-5FC3-89BA-980428D75367.HTML
Other Mandatory Sentences–Penalty Enhancements

Legislatures have also exercised their authority over sentencing by passing laws that enhance criminal
penalties for crimes against certain victims, for crimes done with weapons, or for hate crimes. For example,
Congress passed the Violent Crime Control and Law Enforcement Act of 1994 that included several
provisions for enhanced penalties for drug trafficking in prisons and drug-free zones and illegal drug use in
federal prisons. States have passed gun enhancements and hate crime enhancements. See, e.g., ORS 161.610
(authorizing enhanced penalties for the use of a firearm during the commission of a felony); Wisconsin v.
Mitchell, 508 U.S. 486 (1993) (authorizing enhanced penalties for hate crimes).
Concurrent and Consecutive Sentences
Frequently, judges sentence defendants for multiple crimes and multiple cases at the same sentencing
hearing. Judges have the option of running terms of incarceration either concurrently (at the same time)
or consecutively (back-to-back). States vary as to whether the default approach on multiple sentences is
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consecutive sentences or concurrent sentences. The Court has held that the decision to impose concurrent
or consecutive sentences was a judicial determination, not a jury determination, and thus not subject to
Apprendi’s rule that any sentencing enhancement factor must be proved to the jury beyond a reasonable
doubt. Oregon v. Ice,555 U.S. 160 (2009). Justice Ginsberg wrote,
“Most States continue the common law-tradition: They entrust to judges’ unfettered discretion the
decision whether sentences for discrete offenses shall be served consecutively or concurrently. In some
States, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order
concurrent sentences upon finding cause therefor. The other States, including Oregon, constrain judges’
discretion by requiring them to find certain facts before imposing consecutive rather than concurrent
2
sentences.”
Civil Commitment of Violent Sexual Offenders
Some sexual offenders may still be dangerous even after they serve their entire prison term. Both state
and federal laws allow the continued confinement of violent sexual predators after the expiration of their
criminal sentences. In 1997, the Court upheld a Kansas statute finding that such confinement did not violate
the double jeopardy or ex post facto prohibitions. Kansas v. Hendricks, 521 U.S. 346 (1997). In 2010, the Court
decided that in enacting the Adam Walsh Act, 18 U.S.C. 4248, Congress had not exceeded its authority by
allowing civil commitment after an offender has served his or her criminal sanction. Justice Breyer wrote,
“the statute is a necessary and proper means of exercising the federal authority that permits Congress to
create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those
imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the
3
federal imprisonment of others.”
Link to 2015 report on Federal Sentencing (includes incarceration and alternatives) (link also included
below with split probation.
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/
alternatives/20150617_Alternatives.pdf
2. Oregon v. Ice, 555 U.S. 160, at 163-164 (2009).

3. United States v. Comstock, 560 U.S. 126, at (2010).
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3.9. Substantive Law: Physical Punishment Sentences
LORE RUTZ-BURRI
Physical Punishment
Corporal Punishment
Until 1978, the Supreme Court upheld the use of corporal punishment (physical punishment). Ingraham
v. Wright 430 U.S. 651 (1978). However, it is no longer an approved sanction for a criminal offense in
the United States. Nonlethal corporal punishment, such as flogging, was used extensively in English and
American common law for non-felony offenses. The misdemeanant was taken to the public square, bound
to the whipping post, and administered as many lashes as the law specified.
“An American judge during the early American Republic was able to select from a wide array of
punishments, most of which were intended to inflect intense pain and public shame. A Virginia statute
of 1748 punished the stealing of a hog with twenty-five lashes and a fine. The second offense resulted in
two hours of pillory (public ridicule) or public branding. A third theft resulted in a penalty of death. False
testimony during a trial might result in mutilation of the ears or banishment from the colony. These penalties
were often combined with imprisonment in a jail or workhouse and hard labor. . .
We have slowly moved away from most of these physically painful sanctions. The majority of states
followed the example of the U.S. Congress, which in 1788 prohibited federal courts from imposing
whipping and standing in the pillory. Maryland retained corporal punishments until 1953, and Delaware
only repealed this punishment in 1972. Delaware, in fact, subjected more than 1600 individuals to whippings
in the twentieth century. This practice was effectively ended in 1978 when the Eighth Circuit Court of
Appeals ruled that the use of the strap, “offends contemporary standards of decency and human dignity and
1
precepts of civilization which we profess to possess.”
Controversial Issue: Capital Punishment: Death Penalty
Capital punishment (lethal physical punishment) is a popular topic, and much has been written about the
death penalty. One excellent resource for learning about the death penalty is the death penalty information
center (DPIC), a nonprofit organization that publishes studies and analyzes trends in death penalty law and
application.
Link to Death Penalty Information Center:
https://deathpenaltyinfo.org/
1. Lippman, M.R. (2016) Contemporary Criminal Law: Concepts, Cases, and Controversies (4th ed., pp. 57). SAGE Publishing.
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Link to Death Penalty Information Center Fact Sheet

https://deathpenaltyinfo.org/documents/FactSheet.pdf
See Death Penalty Fast Facts at
https://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html
The use of the death penalty as a response to crime in industrialized nations raises many questions:
• Is the death penalty a deterrent?

• Is the death penalty justified by principles of retribution?
• Is the death penalty morally or ethically justified?
• Does it cost more to impose a death sentence or to impose a true-life sentence?
• Are factually innocent individuals erroneously executed (and if so, how often)?
• Is any particular manner of execution cruel and unusual?
• Is the death penalty, in itself, cruel and unusual punishment?
Courts answer only the last two questions, and, to date, the Court has upheld every manner of execution
that is currently approved in the United States: firing squad, electrocution, gas chamber, hanging, and lethal
injection. The Court appears willing to uphold capital punishment and has found it is not disproportionately
cruel and unusual when the crime for which the defendant was convicted resulted in the death of another.
It has reached an opposite result when the crime did not involve the victim’s death, for example, when the
defendant was convicted of rape of an adult woman and a child rape. See, Coker v. Georgia, 433 U.S. 584
(1977) The Court prohibited capital punishment for the crime of rape of an adult victim. Coker suggests that
the death penalty is an inappropriate punishment for any crime that does not involve the taking of human
life. In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court invalidated a Louisiana statute that allowed
for the death penalty for rape of a child less than twelve years of age. Justice Kennedy (not the defendant,
Kennedy) wrote, “the Eighth Amendment bars imposing the death penalty for the rape of a child where the
crime did not result and was not intended to result, in the death of the victim.”
Mental Illness, Mental Deterioration and the Death Penalty
According to Court interpretations, the Eighth Amendment forbids the execution of someone who is legally
insane. Ford v. Wainwright, 477 US 399 (1986). In 2007, the Court ruled that a prisoner is entitled to a hearing to
determine his mental condition upon making a preliminary showing that his current mental state would bar his
execution. Panetti. v. Quarterman, 551 US 930 (2007). In one case, the Texas Court of Criminal Appeals in 2013 held
that a trial court illegally ordered the forcible medication of a mentally ill death row inmate, Steven Stanley, for the
purpose of rendering him competent to be executed. See, http://www.deathpenaltyinfo.org. Staley’s mental health
began to deteriorate when he entered death row in 1991. He received an execution date in 2006 but was deemed
too ill to be executed. A court ordered that his paranoid schizophrenia is treated by forcible medication, which
continued for six years. In its ruling, the Texas Court of Criminal Appeals held that “the evidence conclusively
shows that appellant’s competency to be executed was achieved solely through the involuntary medication, which
the trial court had no authority to order under the competency-to-be-executed statute. The finding that appellant
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is competent must be reversed for lack of any evidentiary support”. The ruling did not address whether the state
constitution forbids the execution of someone forcibly drugged or whether the defendant, in this case, is too ill to
be executed at all. Another mentally ill individual, John Ferguson, was executed in August 2013 in Florida through
four mental health organizations maintained that he had suffered from mental illness for at least 40 years. Similarly,
Marshall Gore, another Florida inmate with mental illness, was executed in October 2013.
Link to mental illness and the death penalty

https://deathpenaltyinfo.org/mental-illness-and-death-penalty
A different but related issue is the constitutionality of executing mentally retarded individuals who have
committed capital offenses. In 1989, the Court held that executions of mentally retarded prisoners do not
necessarily violate the Cruel and Unusual Punishment Clause if juries are allowed to consider evidence of mental
retardation as a mitigating factor in the sentencing phase of a capital trial. Penry v. Lynaugh, 492 U.S. 302 (1989).
Later, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court reconsidered, holding that there was a sufficient national
consensus for the Court to prohibit the execution of mentally retarded persons via the Eighth Amendment. Justice
Stevens concluded,
“[M]entally retarded person who meets the law’s requirement for criminal responsibility should be tried and
punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of
their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult
2
criminal conduct” .
On February 27th, 2019 the Court affirmed that the states may not execute a death row inmate who was unable
to understand his punishments due to dementia. In Madison v. Alabama, ___ U.S. ___ (2019), the 70-year-old
defendant had spent 33 years in solitary confinement after having been sentenced to death for killing a police officer
in 1985. Madison had suffered a series of strokes causing severe cognitive impairment due to vascular dementia and
the inability to remember his crime. Justice Kagan’s majority opinion held that an inmate’s failure to remember
his crime does not by itself render him immune from execution, but “such memory loss still may factor into the
‘rational understanding’ analysis that Panetti demands.” If memory loss “combines and interacts with other mental
shortfalls to deprive a person of the capacity to comprehend” his death sentence, “then the Panetti standard will be
satisfied.” ____ U.S. ____, at ____ (2019)
According to the Court, it doesn’t matter if these “mental shortfalls” stem from delusions, dementia, or some other
disorder. Courts must “look beyond any given diagnosis to a downstream consequence”—whether a disorder can
“so impair the prisoner’s concept of reality” that he cannot “come to grips with” the meaning of his punishment.”
Juvenile Offenders and the Death Penalty
Historically, juveniles were treated no differently than adults in the criminal justice system, and thus,
there is a long history of executing juveniles convicted of capital crimes. In the late 1980s, the Court
2. Atkins v. Virginia, 536 U.S. 304 (2002).
124
considered whether national sentiment had changed to the point where it would now be considered cruel
and unusual punishment to apply the death penalty to juveniles. The Court first held that the Constitution
prohibits executing a juvenile who was fifteen years of age or younger at the time he or she committed
the capital crime. Thompson v. Oklahoma, 487 U.S. 825 (1988). One year later, the Court, in a 5-4 decision,
held that a juvenile sixteen years or older at the time of the crime could be sentenced to death. Stanford v.
Kentucky, 492 U.S. 361 (1989). Then, in Roper v. Simmons, 543 U.S. 551 (2005), the Court said that the
Constitution forbade the execution of anyone who was under eighteen at the time of their offense. The
Simmons decision pointed to the decreasing frequency with which juvenile offenders were being sentenced
to death as evidence of an emerging national consensus against capital punishment for juveniles. The Court
noted that only 20 of the 37 death penalty states allowed juveniles to be executed, and since 1995, only
three states had actually executed inmates for crimes they had committed as juveniles.
125
3.10. Substantive Law: Monetary Punishment Sentences
LORE RUTZ-BURRI
Monetary Punishments
Fines
Fines, or a sum of money the offender has to pay as punishment for the crime, are generally viewed as
the least severe of all possible punishments. Fines may either supplement imprisonment or probation, or they
may be the sole punishment. Criminal codes generally authorize fines as punishment for most crimes, but
some of the older criminal codes did not authorize fines for murder.
The Model Penal Code proposed legislative guidelines on the use of fines, but states have generally
rejected this provision. Instead, judges are given extremely broad discretion in setting the fine amounts,
and there are few limits on the judge’s ability to impose a fine. Frequently, the criminal statute will specify
the highest permissible fine. The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits
excessive fines, but courts rarely have found a fine to violate this provision. In Tate v. Short, 401 U.S. 395
(1971), the Court found that fines that punish poor people more harshly than rich people, and thus, violate
the Equal Protection Clause. Historically, magistrates had given offenders the option of paying a fine or
serving a jail sentence. Sentences were frequently “thirty dollars or thirty days”. If defendants were too poor
to pay the fine, they went to jail. The Tate Court reasoned that the state could imprison Tate for committing
the crime, but by requiring either time or a fine, the state was really incarcerating Tate because he was too
poor to pay the fine. After Tate, courts began using installment plans that permit poor defendants to pay fines
over a period of several months. This practice may nonetheless subject the poor to an increased punishment
if the court administration requires interest or some fee associated with a payment plan.
Civil Forfeiture
Federal law allows civil forfeiture, the process by which the government confiscates the proceeds
(property or money) of criminal activities. See,18 USCA §§981-982. Laws that allow the state to forfeit the
property used in illicit drug activity are particularly controversial. In deciding whether forfeiture is legal,
state courts generally look to constitutional provisions dealing with excessive fines. In Austin v. United States,
509 US 602, at 622 (1993), the Supreme Court said that civil forfeiture “constitutes payment to a sovereign
as punishment for some offense’ . . . and, as such, is subject to the limitations of the Eighth Amendment’s
Excessive Fines Clause.” However, the court left it to state and lower federal courts to determine the test
of “excessiveness” in the context of forfeiture. The Illinois Supreme Court said that three factors should be
considered in this regard: (1) the gravity of the offense relative to the value of the forfeiture, (2) whether the
126
property was an integral part of the illicit activity, and (3) whether the illicit activity involving the property
1
was extensive. Federally, a $357,144 forfeiture for failing to report to U.S. Customs that more than $10,000
2
was being taken out of the country was found to be “grossly disproportionate” to the offense. In one
Pennsylvania case, the court found that forfeiture of a house used as a base of operations in an ongoing drug
3
business was not excessive.
Defendants, whose property has been taken through civil forfeiture, have argued that either the forfeiture
hearing or the criminal trial (whichever happened last) violated their rights to be free from double jeopardy.
However, the courts have not agreed. Instead, they hold that the double jeopardy prohibition is not triggered
because forfeiture is a civil sanction and not considered a new criminal action. United States v. Ursery 518
U.S. 267 (1996). On February 20th, 2019, the Court perhaps provided a different form of attack on civil
forfeitures. In a unanimous opinion in Timbs v. Indiana, ___ U.S. ___ (2019), Justice Ginsberg wrote that the
Eighth Amendment’s excessive fines clause applies to the states as well as the federal government, and that
when Indiana civilly forfeited Timbs’ $42,000 land rover after he sold a couple of hundred dollars worth of
heroin, it was imposing an excessive fine.
In order to satisfy due process, the owner is entitled to a hearing before the property can be forfeited.
United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). Courts have found that civil forfeiture is
constitutional even when the owner was not aware of the property’s criminal use. For example, in Bennis v.
Michigan, 516 U.S. 442 (1996), the Court upheld the government’s seizure and forfeiture of Mrs. Bennis’s car,
even though she claimed she did not know that her husband was using their car to engage in prostitution.
In 2000, Congress approved the Civil Asset Forfeiture Reform Act. This Act curbed the government’s asset
forfeiture authority and added additional due process guarantees to ensure that property is not unjustly taken
from innocent owners. Under the Act, the government must show by a preponderance of the evidence that
the property was used in some criminal venture. The Act also limited the statute of limitations to five years
and made it a crime to move or destroy property to prevent seizure for forfeiture. In a similar vein, Oregon
voters passed Ballot Measure 3, the Oregon Property Protection Act of 2000, in the November election. This
constitutional amendment imposed limits on government forfeiture, allowing forfeiture only if the person
from whom the property was seized had been already convicted of the crime, and only if the government
could prove by a clear and convincing evidence standard that the property was a proceed or instrument of
the crime.
Link to http://www.osbar.org/publications/bulletin/06nov/forfeiture.html, for a discussion of the recent

history of asset forfeiture in Oregon and the debate about Ballot Measure 3 and subsequent forfeiture cases
and statutes.
Restitution and Compensatory Fines

Restitution refers to the “return of a sum of money, an object, or the value of an object that the
1. Waller v. 1989 Ford F350 Truck, 642 N.E. 2d 460 (Ill. 1994).
2. United States v. Bajakajian, 524 U.S. 321 (1998).
3. In re King Properties, 6235 A.2d 128 (Pa 1983).
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4
defendant wrongfully obtained in the course of committing the crime.” When the judge’s sentence includes
restitution, the amount should be enough money to place the victim in the same position they would have
been had the crime not been committed. Restitution orders can include the actual cost of destroyed property,
medical bills, counseling fees, and lost wages. Several state laws require offenders to pay restitution as a
condition of probation. Judges may order defendants to pay restitution for all damages incurred during a
criminal episode, even if the charge is dismissed through negotiations. Judges may also order the defendant
to pay restitution to some party other than the victim.
Ordering restitution is not always practical. When offenders are sentenced to incarceration, they
frequently are unable to pay fines and restitution. Even offenders sentenced to probation may not be able
to make restitution payments. In order to assist crime victims when offenders cannot pay restitution, several
states have established victims’ compensations commissions. Statewide, defendants make their restitution
payments to these commissions that pay out restitution claims to victims across the state. Because of the
statewide pot of money, victims can then get some, if not all, of what is needed to “make them whole.” Also,
these commissions make it possible for the victim to get compensated without having to maintain contact
with the offender.
4. Scheb, J.M. & Scheb, J.M. II (2012). Criminal Procedure (6th ed., pp. 268). Belmont, CA: Wadsworth, Cengage Learning.
128
3.11. Substantive Law: Community-Based Sentences
LORE RUTZ-BURRI
In addition to incarceration and monetary sanctions, the defendant may be sentenced to some form of
community-based sanction.
Community Shaming
Some judges, seeking alternatives to jail or prison, have imposed creative sentences such as requiring
offenders to post billboards, make public apologies, place signs on the door reading, “Dangerous Sex
Offender, No children Allowed,” and attach bumper stickers proclaiming their crimes. These sentences
are intended to shame or humiliate the offender and satisfy the need for retribution. Shame is part of the
restorative justice movement, but for it to be effective it needs to “come from within the offender. … Shame
that is imposed without almost always hardens the offenders against reconciliation and restoration of the
damage done” http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html
“At the heart of the current discussion of shaming offenders is the assumption that shame is a simple
emotion that comes in only two sizes: shame or no shame. But actually, shame is a complex emotion which
comes in many shapes, sizes, and degrees of intensity. Legal scholars and judges who treat shame as merely
binary are in the position of a skier who makes no distinction between the many kinds of snow. Just as
lack of knowledge of types of snow may lead a skier to disaster, so the crude treatment of shame in current
1
discussions could be a catastrophe.”
Community Service
Although not necessarily specified in the criminal code, judges frequently sentence offenders to complete
community service as a condition of probation. Generally, a probation officer or probation staff member will
act as the community service coordinator. His or her job is to link the offender to the positions and verify
the hours worked.
Probation
Kerper describes how states began to use probation as a sanction for criminal behavior.
“The authority to grant probation probably grew out of the traditional practice of judges of “suspending
sentences.” The judge would simply fail to set a sentence or set the sentence and fail to direct that it
be executed. The offender would then be released. If the offender’s subsequent behavior was satisfactory,
nothing more would be done. If he had further difficulty with the law, the judge, usually on request of the
1. http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html
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prosecutor, would revoke his freedom. This time the judge would set a sentence, or reinstate the previous
sentence, and the sentence would be executed. The common law authority of a judge to spend a sentence
was questionable, but many judges regularly exercised that authority.
Since the defendant released on a suspended sentence was not subject to formal supervisions, judges tended
to suspend sentences only in minor cases. In the late 1800s, courts began to experiment with a combination
of a suspended sentence and careful supervision that could be applied to more serious offenses. This new
procedure, called probation, soon was authorized by statute and provision was made for the appointment of
2
special probation officers.”
Probation is one of the most common alternatives to incarceration. Both probation and parole involve
supervision of the offender in a community setting rather than in jail or prison. The primary purpose
of probation is to rehabilitate the defendant. Thus, the court releases the offender to the supervision of
a probation officer who then monitors the offender to ensure that he or she abides by the conditions of
probation. With parole, the offender is first incarcerated and is later released from prison to supervised
control. Under both procedures, offenders who violate the terms of their supervision can be imprisoned to
serve the remainder of their sentences.
The Court has said little on probation since 1932 when it announced that probation conditions must
serve “the ends of justice and the best interest of both the public and the defendant.” Burnes v. United States,
287 U.S. 216 (1932). According to the Ninth Circuit Court of Appeals, “The only factors which the trial
judge should consider when deciding whether to grant probation are the appropriateness and attainability
of rehabilitation and the need to protect the public by imposing conditions which control the probationer’s
activities.” Higdon v. United States, 627 F.2d 893 (9th Circ. 1980). The Court has fashioned a two-step process
for reviewing conditions of probation: first, it determines whether the conditions are permissible, and, if so,
it determines whether there is a reasonable relationship between the conditions imposed and the purpose of
probation.
Many states follow California’s standard for testing the reasonableness of probation conditions. This
approach holds that probation conditions do not serve the ends of probation and are not valid if (1) the
condition of probation has no relationship to the crime of which the offender was convicted, (2) the
condition relates to conduct which is not in itself criminal, or (3) the condition requires or forbids conduct
which is not reasonably related to future criminal act. People v. Dominguez, 64 Cal. Rptr. 290 (Cal. App. 1967)
The court struck down a condition that the “probationer not become pregnant without being married,”
saying it was unrelated to her offense or to future criminality.
Courts have invalidated the following probation conditions:
• Requiring the offender to refrain from using or possessing alcoholic beverages when nothing
in the record showed any connection between alcohol consumption and the weapons violation
of which the probationer had been convicted. Biller v. State, 618 So. 2d 734 (Fla 1993).
• Requiring the defendant to submit to a search of herself, her possessions, and any place
130
where she may be with or without a search warrant, on request of a probation officer. (The
Court noted that search of a probationer and his or her residence, with or without a warrant,
based on reasonable suspicion that probationer violated the terms of probation would be valid.)
Commonwealth v. LaFrance, 525 N.E. 2d 379 (Mass. 1988).
• Prohibiting custody of children unless it had a clear relationship to the crime of child abuse.
• Prohibiting marriage and pregnancy.Rodriguez v. State, 378 So.2d 7 (Fla. App. 1979).
• Prohibiting the defendant from fathering any children during the probation period. Burchell
v. State, 419 So.2d 358 (Fla. App. 1982).
• Requiring the defendant to maintain a short haircut. Inman v. State, 183 S.E.2d 413 (GA.
App. 1971)(the court found this condition was an unconstitutional invasion of the right to self-
expression).
Courts have upheld the following conditions:
• Prohibiting offenders convicted of child pornography from having access to the internet,
possessing a computer, and requiring the offender to submit to polygraph testing. See, United
States v. Zinn, 321 F.3d. 1084 (11th Cir. 2003), United States v. Rearden, 349 F.3d 608 (9th Cir.
2003), State v. Ehli, 681 N.W. 2d 808 (N.D. 2004), People v. Harrisson, 134 Cal.App.4th 637
(2005).
• Prohibiting the probationer from fathering any additional children unless he could
demonstrate he had the financial ability to support them, and that he was supporting the nine
children he had fathered. State v. Oakley, 629 N.W. 2d 200 (Wis. 2001).
• Requiring probationers to pay all fees, fines, and restitution, refrain from contacting the
victim, undergo treatment for substance abuse, participate in alternatives to violence classes,
stay in school, not leave the state without permission, abstain from alcohol, not drive. These
conditions that apply to all probationers are referred to as “general conditions of probation.”
Many jurisdictions authorize split probation and allow the judge to sentence the offender to a short period
of jail as a condition of probation. In some cases, the offender will serve his jail time before he returns to the
community under probation supervision. In others, he will be released first and serve his time on weekends.
The federal system uses a similar procedure involving a more substantial jail sentence. The judges impose a
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split sentence under which the probationer is imprisoned for a period up to six-month and then is released
on probation.
Link to alternative sentencing for federal system
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/
alternatives/20150617_Alternatives.pdf
Parole and Post-Prison Supervision

Because most states now use determinate sentencing, the use of parole is dwindling and is being replaced
by post-prison supervision of offenders after their incarceration. However, for offenders sentenced in the
1970s and 1980s under indeterminate sentencing schemes, parole continues to be very real hope, even if an
unlikely possibility.
Charles Manson Exercise
Consider the case of notorious California killer Charles Manson who died in state custody in November 2017 at
the age of 83. Manson was found guilty in 1969 of the murder of five people. He was sentenced to death, but his
sentence was converted in 1977 to “life with the possibility of parole” after the California Supreme Court invalidated
its state death penalty statute. Manson applied for parole for the twentieth time in 2012, he was 78 years old at
the time. Under a change in parole release law, the next time Manson would have been eligible for parole was in
2027. The board noted that if he were to complete programs designed to help deal with some of his issues, then
he could petition for release sooner. Listen to the hearing at http://abcnews.go.com/US/charles-manson-denied-
parole-dangerous-man/story?id=16111128.
“[T]he states which have adopted determinate sentencing structures have either eliminated or drastically
restricted parole. In states with indeterminate sentencing, however, parole remains an essential element of
the sentencing structure. Parole involves the release of the prisoner subject to conditions similar to those
imposed on the probationer. Parole may be granted by the responsible state agency (usually called a parole
board) after the prisoner has served his minimum sentence. The parole board usually has several members,
who are either interested citizens appointed by the governor or corrections department personnel selected
by the head of that department. Frequently the board will be assisted by special hearing officers who hold
hearings and make recommendations to the board. Most parole boards automatically schedule hearings for
every inmate as soon as he becomes eligible for parole. If he is not released at that point, subsequent hearings
3
will be scheduled at regular intervals.”
The procedures of parole hearings vary from state to state. Indeed, not all states regularly hold hearings. A
few prefer simply to review the files in the case, permitting the prisoner to submit a statement on his own
behalf. Ordinarily, hearings are rather informal affairs held before a hearing officer or one or more board
3. O'Leary, V., & Hanrahan, K. (1977). Law and practice in parole proceedings: A national survey. Crim. L. Bull., 13, 181-197..
132
members. The prisoner will be informed of the material in their parole file, which relates primarily to their
offense, their prior criminal record, and their performance in prison. The prisoner also will be given the
opportunity to state their own case for parole and to ask any questions about the parole process. In almost
half of the states, they may be assisted by an attorney, and several states will appoint an attorney upon request
of an indigent prisoner. The remaining states prohibit representation by an attorney on the ground that it
interferes with the board’s evaluation of the prisoner’s statements and demeanor at the hearing. Shortly after
the hearing, most boards will provide the prisoner with a written explanation of its decision. If the prisoner
is not released on parole, they must be released after they have served their full sentence.
Parolees are subject to a variety of conditions that are similar to probation conditions. They must contact,
or “report to”, their parole officers on a regular basis and attend regular meetings. They may be released to
halfway houses, residential treatment programs, or daytime work-release programs at the beginning of their
parole in order to prepare for return into the community.
Even when states sentencing schemes utilize parole, not all inmates are eligible for parole. In some states,
prisoners forfeit their eligibility for parole if they attempt to escape or if they engage in certain violent acts.
Also, many states have true life sentences or sentences where the offender is not eligible for parole, and
persons convicted of first-degree murder are frequently sentenced to life without the possibility of parole.
Post-prison supervision stems from determinate sentencing schemes that states adopted beginning in
the 1980s. Post-prison supervision boards are now often combined with parole boards, and they perform a
similar function. Offenders do not apply for post-prison supervision since release is automatically given when
the determinate sentence has been served. Generally, how long a person will be on post-prison supervision
is set out in state sentencing guidelines. A post-prison supervision board will monitor whether the offender
is abiding by the conditions of release while living in the community. If an offender violates conditions of
release during post-prison supervision, he or she is entitled to a revocation hearing with the same due process
protections given to parolees, i.e: notice, opportunity to challenge government’s evidence, and the right to
assistance of counsel.
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3.12. Procedural Law
LORE RUTZ-BURRI
As noted above, procedural law governs the process used to investigate and prosecute an individual who
commits a crime. Procedural law also governs the ways a person convicted of a crime may challenge their
convictions. The source of procedural law includes the same sources of law you have just read about which
govern substantive criminal law: the constitution, cases law or judicial opinions, statutes, and common law.
Whereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions
that interpret the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment to the U.S. Constitution, the U.S.
Code, and the state constitutional and legislative counterparts. Generally, the federal and state constitutions
set forth broad guarantees (for example, the right to a speedy trial), then statutes are enacted to provide more
definite guidelines (for example, the Federal Speedy Trial Act) and then judges flesh out the meaning of
those guarantees and statutes in their court opinions.
Phases of the Criminal Justice Process
The processing of a case through the criminal justice system can be broken down into five phases:
investigative phase, the pre-trial phase, the trial phase, the sentencing phase, and the appellate or post-
conviction phase.
Investigative Phase
The investigative phase is governed by laws covering searches and seizures (searches of persons and
places, arrests and stops of individuals, seizures of belongings), interrogations and confessions, identification
procedures (for example, line ups, showups, and photo arrays). This phase mostly involves what the police
are doing to investigate a crime. However, when police apply for a search, seizure or arrest warrant, “neutral
and detached” magistrates (i.e., judges) must decide whether probable cause exists to issue search warrants,
arrest warrants, and warrants for the seizure of property and whether the scope of the proposed warrant is
supported by the officer’s affidavit (sworn statement). When an individual is arrested without a warrant,
judges will need to promptly review whether there is probable cause exists to hold them in custody before
trial.
Pretrial Phase
The pretrial phase is governed by laws covering the initial appearance of the defendant before a judge or
magistrate; the securing of defense counsel, the arraignment process (in which the defendant is informed of
the charges which have been filed by the state); the process in which the court determines whether to release
the defendant pre-trial either with some financial surety (posting bail) or on his or her own recognizance
134
and with court-determined conditions imposed (for example, not having contact with the alleged victim);
the selection and use of a grand jury or preliminary hearing processes (in which either a grand jury or a
judge determines whether there is sufficient evidence that a felony has been committed); any pretrial motions
such as motions to suppress evidence (for examples, asking the court not to let the government use evidence
it may have obtained illegally through a search or getting a confession), motions to challenge a subpoena,
motions to change venue (to move the trial), motions to join or sever cases (for example if two or more
individuals are charged with the offense, should the trials be held together or separately). During the pretrial
phase, prosecutors and defendants through their defense attorneys will engage in plea bargaining, and will
generally resolve the case before a trial is held.
Trial Phase
The trial phase is governed by laws covering speedy trial guarantees, the selection and use of petit jurors
(trial jurors); the rules of evidence (statutory and common law rules governing the admissibility of certain
types of evidence such as hearsay or character evidence, the competency and impeachment of witnesses,
the existence of any privilege, and the exclusion of witnesses during the testimony of other witnesses);
the right of the defendant compulsory process (to secure favorable testimony and evidence); the right of
the defendant to cross-examine any witnesses or evidence presented by the government against him; fair
trials free of prejudicial adverse pre-trial or trial publicity; fair trials which are open to the public; and the
continued right of the defendant to have the assistance of counsel and be present during his or her trial.
Sentencing Phase
The sentencing phase is governed by rules and laws concerning the substantive criminal laws on
punishment (discussed above); time period in which a defendant must be sentenced; the defendant’s right
of allocution (right to make a statement to the court before the judge imposes sentence); any victims’ rights
to appear and make statements at sentencing; the defendant’s rights to present mitigation evidence and
witnesses; and the defendant’s continued rights to the assistance of counsel at sentencing. In capital cases in
which the state is seeking the death penalty, the trial will be bifurcated (a trial split into the “guilt/innocence
phase” and the “penalty phase”) and the sentencing hearing will be more like a mini-trial.
Post-Conviction Phase (Appeals Phase)
The post-conviction phase is governed by rules and laws concerning the time period in which direct
appeals must be taken; the defendant’s right to file an appeal of right (the initial appeal which must be
reviewed by an appellate court) and right to file a discretionary appeal; the defendant’s right to have the
assistance of counsel in helping to file either the appeal of right or a discretionary appeal. The post-conviction
phase is also governed by rules and laws concerning the defendant’s ability to file a writ of habeas corpus (a
civil suit against the entity who is currently holding the defendant in custody) or a post-conviction relief
suit (a civil suit similar to a habeas corpus suit but one which can be filed by the defendant regardless if he
or she is in custody). The post-conviction phase would also include any probation and parole revocation
hearings.
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3: Criminal Law

• Distinguish between a criminal wrong, a civil wrong, and moral wrong.

• Identify the many ways in which criminal law is classified.

• Recognize the many sources of substantive and procedural criminal law.

Critical Thinking Questions

2. Should we be able to impose sanctions for violations of moral wrongs?

Criminal Defendant Victim Examples

Individual Self or with no particular victim Gambling or drug use,

Individual Other individual(s) Assault, battery, theft

Individual Business or government Trespass, welfare fraud

Group of individuals Individual(s) Conspiracy to commit murder

Group of individuals Government or no particular victim Riot, rout, disorderly conduct

Business entity Individuals Fraud

Business entity Government or no particular victim Fraud, pollution, tax evasion

“The Witness” Exercise

Overlap of Civil, Criminal, and Moral Wrongs

Music & Law Exercise

The Incorporation Debate

First Amendment Limitations

1. Palko v. Connecticut, 302 U.S. 319 (1937).

Second Amendment Limitations

Fourth Amendment Limitations

Fifth Amendment Limitations

Sixth Amendment Limitations

Eighth Amendment Limitations

Fourteenth Amendment limitations

Limitations Found in the “Penumbra” of the Constitution

Comparing Cases Exercise

Rule of Law, Constitutions and Judicial Review

Statutes, Ordinances, and other Legislative Enactments

contentious legislative process. An example is the decriminalization of marijuana in Washington, Oregon,

States’ Authority to Pass Criminal Laws

Administrative Law—Agency-Made Law

The doctrine of star

5. Vasquez v. Hillery, 474 U.S. 254 (1986)

Court Rules of Procedure

Okay, so where do I look to see if my behavior is prohibited?

Indeterminate-Indefinite Sentencing Approach

Controversial Issue: Mandatory Minimum Sentences

Other Mandatory Sentences–Penalty Enhancements

2. Oregon v. Ice, 555 U.S. 160, at 163-164 (2009).

Link to Death Penalty Information Center Fact Sheet

• Is the death penalty a deterrent?

Mental Illness, Mental Deterioration and the Death Penalty

Link to mental illness and the death penalty

Juvenile Offenders and the Death Penalty

2. Atkins v. Virginia, 536 U.S. 304 (2002).

Link to http://www.osbar.org/publications/bulletin/06nov/forfeiture.html, for a discussion of the recent

Restitution and Compensatory Fines

Courts have invalidated the following probation conditions:

Courts have upheld the following conditions:

Link to alternative sentencing for federal system

Parole and Post-Prison Supervision

Charles Manson Exercise

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