Criminology: Connecting Theory, Research, and Practice Chapter 2 Crime and Criminal Law ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

2 Origins of U.S. Law  Founding Fathers of the United States adopted legal system and many laws of England  Common law: Process by which laws are created  Laws are created by legislation  Laws are interpreted by the courts ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

3 Origins of U.S. Law ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

4 Origins of U.S. Law: Principles Adopted from England  Principle of legality  For an act to be a crime, there must be a law criminalizing the action at the time it was committed  Criminal laws cannot be retroactive under English and U.S. law ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

5 Origins of U.S. Law: Principles Adopted from England  Principle of intent (mens rea)  For an act to be a crime, the person committing the act must have intended to commit it  This does not mean the person had to intend to commit a crime, per se  People may be held responsible for the consequences of acts they intended to commit, even if they did not intend the consequences  Mere intent to commit a crime is not a crime  Someone suffering diminished responsibility cannot be assumed to have the element of intent ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

6 Origins of U.S. Law: Principles Adopted from England  Punishment  For an act to be a crime, some punishment must be specified  A statute that outlined a behavior that is against the law but did not specify the punishment for violations would not be enforceable ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

7 Criminal and Civil Law  Criminal law  Violation is an act against the state or federal government  Government files charges against the defendant and tries the case  Civil law  Violation is an act against the person, organization, or agency that is harmed  Plaintiff brings suit against a defendant ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

8 Criminal and Civil Law ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

9 Criminal and Civil Law  It is easier to get a conviction in civil than in criminal court  Rules of evidence are more lenient  Criteria for determining responsibility are less onerous  Penalties differ  In a civil lawsuit, the defendant may be ordered to pay the plaintiff a sum of money  This is not punishment but compensation  There is less stigma associated with civil than with criminal convictions ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

10 Crime in Early England and Its Impact on U.S. Law  Prior to the Norman Conquest, crimes were treated as disputes between aggrieved parties  William the Conqueror used the criminal law as a tool to unify England under a single monarchy  Laws against theft  Laws against trespass and poaching  Laws against vagrancy ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

11 Theories of Criminal Law Creation  Consensus theory  Emile Durkheim  Criminal law is the codification of shared customs and values and reflects a consensus of social values  In reality, it appears that what constitutes crime and deviance is the result of a political process, not a simple reflection of agreed-upon ideas of right and wrong ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

12 Theories of Criminal Law Creation  Societal needs theory  Jerome Hall  Judges and legislators create new laws to meet the perceived needs of society that are not addressed by the current law  However, this does not address the question of whose needs within society are being met; for a complex modern society, not everyone shares the same basic needs ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

13 Theories of Criminal Law Creation  Ruling class theory  Karl Marx, Max Weber  The law is a reflection of the interests and ideologies of the ruling class (those who control the economic resources and political power)  This theory explains laws that are passed against the wishes of the ruling class by arguing that even when laws are against the short-term interests of the ruling class, they are essential for purposes of legitimacy  However, the ruling class is not a homogeneous group with completely shared interests ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

14 Theories of Criminal Law Creation  Pluralist theory  Lawrence Friedman  Interest groups within society compete with each other to ensure the passage of laws in their favor  However, this theory does not explain how to determine which groups are dominant and can exert enough social force to create laws  It also assumes that either all judges represent the same interests or all are influenced by the same exerted forces ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

15 Theories of Criminal Law Creation  Structural contradictions theory  William Chambliss  Builds upon the existing theories but also explains facts they fail to account for  Argues that structural contradictions are built into a society’s political, economic, and social relations; these contradictions generate conflicts that create dilemmas; legislators and judges attempt to resolve the dilemmas through the passage of new laws and the reinterpretation of existing law ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

16 Theories of Criminal Law Creation ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved. A Structural Contradictions Model of Lawmaking

17 Theories of Criminal Law Creation ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

18 Racism and Sexism in U.S. Criminal Law  Historically, criminal law has played a central role in institutionalizing race and gender discrimination  Many laws were originally focused on the oppression of particular ethnic groups  There is overwhelming evidence that minorities are disproportionately subjected to search and seizure laws and are sentenced to prison more often and for longer periods than whites for the same offense ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

19 Racism and Sexism in U.S. Criminal Law  In the 1800s and early 1900s, U.S. courts upheld the right to discriminate against women  Laws began to change only after women both collectively and individually violated the existing laws and demanded justice  Although changes have been seen, women still do not enjoy equality under the law ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

20 Racism and Sexism in U.S. Criminal Law  Racist laws in the United States date back to laws legitimizing slavery as an institution  Laws legitimized discriminatory behavior, restricting the freedom of blacks for a hundred years after slavery itself was abolished  In the 1954 case of Brown v. Board of Education, the U.S. Supreme Court decided that segregated schooling was unconstitutional  The differential treatment of blacks and whites in the criminal justice system may be the most blatant institutionalized form of discrimination today ©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.