Chapter 1

SOME BASIC ISSUES IN CRIMINAL LAW

I. A BRIEF INTRODUCTION TO CRIMINAL LAW

A. Nature of criminal law: In this book, we discuss “criminal law.” More precisely, we cover “substantive” criminal law as opposed to “procedural” criminal law. Substantive criminal law is mainly concerned with how crimes are defined, how those who commit them should be punished, and what defenses or mitigating factors should be recognized once the prosecution has proved the existence of each element of a crime. (By contrast, criminal procedure is concerned mainly with how the police investigate crimes and gather evidence, with constitutional limits on the use of evidence by the prosecution, and with the mechanics by which criminal cases are tried.)

B. What is a “crime”: If substantive criminal law is concerned with how crimes are defined, we should start with an idea of what it means to say that something is a “crime.” In the broad but not-very-helpful sense, a crime is anything that any state or federal legislatures says is a crime. Dressler Hnbk, § 1.01[A][1].

1. More helpful approach: But what we really want to know is, when should a given act be treated by society as a crime rather than merely a “civil wrong” (e.g., a breach of contract or a tort)? Crimes are different from civil wrongs in several aspects:

• A crime causes “social harm,” that is, harm to the entire community, not just to the private victim (whereas civil wrongs such as torts or breaches of contract are generally perceived as injuring only some private individual);
• Crimes are therefore prosecuted by an attorney representing the community—the district attorney—rather than by a party’s private attorney (which is what happens in breach-of-contract and tort cases);
• We “punish” a criminal. Whereas in the tort and breach-of-contract scenarios we merely try to compensate the victim at the expense of the wrongdoer, in the case of a crime we attempt to impose a “societal condemnation and stigma,” typically in the form of a prison sentence or fine.

See generally Dressler Hnbk, § 1.01[A][1].

C. Felonies vs. misdemeanors: Modern criminal statutes, like the English common law, typically divide crimes into two broad categories: felonies and misdemeanors. Id. at 1.01[A][2]. Jurisdictions vary on exactly where they draw the dividing line between these two categories. A good general rule, at least for state as opposed to federal crimes, is that:

• a felony is a serious crime that is punishable by at least one year in a state prison; and
• a misdemeanor is a lesser crime for which the maximum penalty is either: (a) incarceration for less than a year, typically in a city or county jail rather than in a state prison; or (b) a fine or (c) both.

Cf. Dressler Hnbk, § 1.01[A][2].