Criminal Law and Crimes against the Persons - Essay Example

Criminal Law and crimes against the Persons Introduction: Acts of crime have existed in societies from time immemorial. What construes an act to be criminal in nature would depend upon the statutes and laws or at the least, social or moral practices in society. This paper is a review of criminal law in the United States. It can be seen that the absence of a universal criminal law governing the whole country, and the existence of separate statutes in each of the States in the Union is problematic for all sections of the society affected by crimes. In the process, the paper also reviews different types of crime and its influence on those affected by it. Hierarchy of statutes in the United States: The hierarchy of statutes in the United States is as follows – the US Constitution or the Bill of Rights and any amendments made thereof is the supreme law in the country. Next in line come the Federal laws which are for trying acts that affect the nation as a whole. As will be seen later in this paper, each of the US states has its own statutes regarding civil and criminal cases. So, state laws come next to Federal laws in the order of importance. Finally, the laws of the local governing bodies (municipal) are placed at the bottom of the list. The foundation of the judiciary and legal system is based on what is referred to as common law. According to an article titled ‘Foundations of US Law’, “most law is far from simply a collection of rules and statutes; rather, it is based on a system of precedents, or judicial opinions, that has come before. Every state, except for Louisiana (whose system is based on the French civil code) decides cases based on precedent. This collection of court decisions is known as the "common law" system, based in part on the English system” (Foundations of U.S. Law). Criminal Law: Criminal law also referred to as penal law in the United States involves government intervention for legal persecution. Unlike civil law, where one individual or organization can sue one another, criminal law requires intervention by the government and its regulatory agencies in areas that are deemed to be public concern. It essentially involves four areas of justice and punishment namely “punishment, deterrence, incapacitation, and rehabilitation”. The basic premise is that punishing the guilty can help to achieve peace and social order in the society. “A "crime" is any act or omission (of an act) in violation of a public law forbidding or commanding it. Though there are some common law crimes, most crimes in the United States are established by local, state, and federal governments. Criminal laws vary significantly from state to state. There is, however, a Model Penal Code (MPC) which serves as a good starting place to gain an understanding of the basic structure of criminal liability” (Criminal Law - Penal Law - Guide to Criminal & Penal Law, 2009). Crimes can be classified as felonies and misdemeanors. The former includes acts that are serious in nature towards the society in general and the individuals that form part of it. It can include acts like rape, murder, and terrorist activities. Misdemeanors even though considered to be criminal acts are less serious in nature and consequence can include activities like theft and jaywalking. The punishment that is meted out for felonies and misdemeanors are different and the former warrants a longer and more stringent indictment according to a legal standpoint. The following acts or areas are considered to be criminal in nature: “Appellate Law; White Collar Crime; Bribery; Counterfeiting / Forgery; Embezzlement; Fraud; Healthcare Fraud; Government Fraud; Murder / Homicide; Tax Evasion; Violent Crime; Theft / Property Crime; Drug Crime; Juvenile Crime; Child Abuse Crime” (Criminal Law - Penal Law - Guide to Criminal & Penal Law, 2009). In order for an act to be considered as criminal in nature, state intervention is essential. In other words, no individual or non-governmental organizations can label it to be in criminal in nature. There are exceptions to this rule as is seen in many instances, for example, an individual accused of murder can take recourse to insanity. But generally, it is the state and its resources that need to prove beyond doubt, that an act is criminal in nature. Crime and punishment differs from state to state in the United States. In other words, each of the states has their own laws to recognize and combat crime. But most of the states have followed the Model Penal Code in many aspects as formulated by the American Law Institute in 1961 (Criminal law: an overview). So, Federal law supersedes local ones in cases where the crime is committed against Federal property or its officers. For example, if a crime is committed against the military, it will be considered to one against the Federal Government. This provision is also applicable in cases where the crime affects more than one state. Two elements need to be present for an act to be considered a crime in the United States, namely ‘actus reus’ and ‘mens rea’: “Actus reus is Latin for "guilty act" and is the physical factor of committing a crime. It may be consummate by an action, by threat of action, or extraordinarily, by an omission to act. For example, a parents failure to give food to a young child also may offer the actus reus for a crime” (Criminal law, 2009). Mens rea (guilty mind in Latin) states that intent to commit a criminal act should be there. So a physical act combined with criminal intent should be proved in order to prosecute a person and return a verdict of guilty. Minimum requirements of culpability as per Model Penal Code: According to Brody, Acker & Logan, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense (Brody, Acker & Logan, 2001). Each of these requirements is defined individually by State laws. Most states do adopt many aspects of the Model Code. For example, the South Dakota Legislature uses the words ‘malicious/ maliciously, intent/ intentionally, knowledge/knowingly, reckless/recklessly, and negligent/negligently in its code as requirements of culpability (South Dakota Codified Laws, 2009). The individual criminal codes of different states are given provided in this paper as an appendix. The above section indicates the difficulty in defining crime and its consequences for the United States as a whole. According to Robinson and Dubber, “there is much diversity among these fifty-two criminal codes and, therefore, it is often difficult to state “the” American rule on any point of criminal law” (Robinson & Dubber). For example, most state laws do not agree with the ‘felony murder’ definition as prescribed by the Code. In majority of the cases, any killing in conjunction with an act of felony is considered to be murder, while the Model Code does not prescribe to this view. Another instance of dissimilarity is the punishment meted out for inchoate offenses. The common code prescribes a uniform treatment for all offenders in this regard while most states do not follow it. The authors are of the view that even though the Code can be described as the closest to being dubbed a national criminal code, it is far too incomplete and unsystematic for it to be followed to the letter. This is precisely why most states have their own legislations regarding crime. But this paper will take into what the Code states about the following elements for the sake of uniformity. But whatever its shortcomings, the Code had played a path breaking role in reforming the criminal laws in most states. Many of the states have laid out their individual statutes during the two decades following the publication of the Code in 1962. Lippman categorizes the various types of crimes in their descending order of seriousness. The most serious offense on US soil is acts that are considered to be against the state. Next comes crimes against persons resulting in death, and includes acts of homicide, murder, and manslaughter. Other offenses against individuals that may result in bodily and emotional harm like rape, assault, and kidnapping is next on the list. Burglary, arson, and trespassing under the heading crimes against habitation are the fourth on the list. Fifth on the list come crimes against property followed by crimes against public order. It can include behaving in an unruly manner so as to result in disturbance of public. Obstruction of justice and attempts at bribery, listed as crimes against administration of justice is the second last on the least. The least serious of crimes are those that go against common morality and can include prostitution and pornography and other acts considered to of an obscene nature (Lippman, p. 7). Murder: There is no common definition for murder as an act of crime among different state laws. Most of the definitions have been derived from the Pennsylvania Act of 1794, which primarily includes the following acts namely, killing by giving poison or any other forms of premeditated and deliberate killing of a human being. The Mode Penal Code only provides guidance for sentences for murder rather than providing definitions for the act. The Model, in its wisdom have probably (and purposely) left the definition to individual states so that an act of taking life can be legally defined as an act of premeditated killing according to individual circumstances. According to section 210.6, sentence (including death) can be awarded by a jury or court depending on aggravating and/or mitigating circumstances (Zimring & Hawkins, 1989, p. 79). Some of the sections regarding murder have come under criticism for many years, especially the felony murder rule as followed by most states. The primary criticism is that it does not take into account the ‘mens rea’ clause that is required to substantiate an act as a criminal one. According to Garoupa and Klick, “few common law doctrines have come under as much scholarly criticism as the felony murder rule. While the common law includes intent among the elements of the crime of murder, the charge of felony murder can generally be brought whenever a death results from the commission of a felony” (Garoupa & Klick, 2008, P. 407). But its supporters say that the law intends people to keep away from crime and is intended towards prevention of felony. But the possibility of conviction for first or second degree murder is possible even if the perpetuator of a crime did not play a role in the death of the victim. The case of Brandon Hein vs State of California is an example. Hein was convicted of felony murder even though he was not considered to be an active participant and there was no intention to kill. Some states have now removed the felony murder rules from their statutes, but many still follow this rather obsolete law. “The felony murder rule requires no intent to kill, or even to do bodily harm. The rule punishes consequences of an action not the intent. The felony murder rule was abolished in the United Kingdom in 1957, but remains part of the law under the Federal Government and many of the /states” (Reckless Indifference: Guide Book, 2006). As mentioned earlier, the Model Penal Code does not hold the same opinion with regard to felony murder as followed be many states in the country. Violence: Section 4B1.2 of the Federal Sentencing Guidelines defines "crime of violence" as any federal or state offense punishable by a prison term exceeding one year that "(i) has an an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary ..., arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another” (United States Court of Appeals, Ninth Circuit, 1992). Here also, there are criticisms that laws have loopholes through which perpetuators of violence can escape strong convictions. Apart from the fact that statutes for punishment and even definition of violence varies from state to state, the Model Code itself is found inadequate with regard to specific definitions of what constitutes violence. For example, forcible rape and reluctant submission are different acts of violence according to the code. According to Joan McGregor, “Submission, usually in cases without overwhelming violence, was legitimate. However, submission through intimidation, threats, or deception is not legitimate sexual conduct, and force continues to play a major part in the understanding of rape” (McGregor, 2005, 34). Reluctant submission is not considered to of serious consequence by law even though it can be construed as violence. The law in the country is still inadequate in many areas and perpetuators can escape punishment though many of the loopholes that exists in the statutes. McGregor goes on to state that only physical resistance and violence can be construed as criminal. Crimes against property: “The Model Penal Code addressed this problem by consolidating several property crimes into one larger crime called theft. Theft under MPC encompasses larceny, false pretenses, embezzlement, receiving stolen property, and blackmail and extortion” (Melone & Karnes, 2007, 504). It is interesting to note that a property owner, under common law, may use force against a third party if he or she feels that the property in question is in risk of being lost. The one step that is required prior to use of force is to actively inform the third party to desist from taking action that will result in loss of property. Section 3.06 of the Code even allows the use of deadly force against a threat to property under the following circumstances. If the victim is in danger of being physically harmed due to any acts of felony in the course of property attack or if the attacker has threatened bodily harm to the victim, then use of deadly force is justified. This was tested in the case of People vs Ceballos and the verdict was that the defendant was not justified in use of deadly force. The defendant had fixed up a trap gun which went off when his garage door was being opened by some miscreants. This was because the attacker had no intent to physically harm the defendant (Brody, Acker & Logan, 2001, p. 269). The Code defines several offenses against property starting from Article 220 and includes activities like arson, criminal mischief, and robbery. Treason: A review of literature indicates that treason is more of a federal matter than a state concern. Apart from murder and espionage, death sentence is awardable for treasonous activities. The concept of treason is so important to the nation that there is even a Treason clause in the constitution of the United States. The constitution considers treason to be a "breach of the allegiance which a person owes to the state under whose protection he lives, and the most serious crime known to the law" (Jain, 2001). There are two elements required for an act to be legally established as treason, namely ‘a two witness rule’ and an ‘overt act requirement’ which is essentially borrowed from English law much before American Independence. The US law takes treason very seriously. Terrorism: “The term "terrorism" means premeditated, politically motivated violence perpetrated against noncombatant/*/ targets by subnational groups or clandestine agents, usually intended to influence an audience” (What is terrorism?). The term now has been extended to include foreign nationals who are involved in the activities mentioned above. The citizens of the country have been exposed to terrorist activities especially after the September 11 attacks and it has now become a major threat in most parts of the world including the United States. Constitutional Rights before and After Arrest: If a person is arrested for any crime, he or she is protected by the Fifth Amendment also commonly referred to as the Miranda rights. In such instance the person has the following legal options. The person arrested can choose to remain silent or can request the presence of a lawyer before doing so. If he or she chooses to speak, whatever said can be used against that person in a court of law. If the person does not have the money to take the services of a lawyer, the state should provide such services free of cost. Even if a person starts to make a statement with a officer of law, he or she can stop the interview at any moment. Every accused has the right to remain silent immediately after an arrest. Wartime Criminal Justice: The United States has had experience with war against other nations right from its fight to gain independence. Apart from Civil War, the country had taken part in the two World Wars, allied war against terrorism, the Vietnam War, and the current conflict in Iraq and Afghanistan. It appears from past history that each of situations had brought about legislations regarding rights of citizens and prisoners of was as deemed fit by the governments ruling the nation in those times. This trend indicates that the country follows an old saying that ““In time of war the laws are silent”, or in other words, rights of citizens and others are curtailed to some extent when deemed fit. In most cases, the new laws were passed as executive orders by the President of the United States. The Alien and Seditions Act of 1798 were promulgated due to a possibility of War with France.  President Roosevelt through Executive Order 9066 ordered mass (forced) evacuation of citizens of Japanese ancestry from the West Coast. Again “After September 11, 2001, President George W. Bush and Attorney General John Ashcroft took steps to strengthen the ability of law enforcement to investigate terrorist activity in the United States. Congress also passed the “Patriot Act,” which gives additional authority to law enforcement. Some of these new measures affect only non-citizens, but others apply to American citizens as well” (Wartime and the Bill of Rights: The Korematsu Case, 2009). The President also promulgated an order that terrorist strikes against the soil and its citizens are to be seen as acts of war rather than criminal acts. Most jurists and lawmakers agree that a proper balance between protection and rights of citizens have to be adjusted in times of war. In other words, certain rights may be curtailed in order to protect innocent civilians and the society in times of war. Offenders during war are to be considered as enemies rather than as criminals. It should be noted that many of the orders had created protest and dissent from those affected by it and the public in general. Human rights violations on Iraqi prisoners of war in US prisons especially in Guantanamo Bay have made headlines in the press in the past. Crimes against the State: As mentioned earlier, acts against the state and its interests are the most serious of crimes in the United States. Treason, sedition, and espionage apart from terrorism can be considered to be acts against the state. The Alien and Sedition Act of 1798 and the Espionage Act of 1917 are some of the early statutes that govern crimes against the state. The US Patriot Act of 2001 is one of the latest statutes in place to identify and combat terrorist activities. Social Crimes: Any act that harms the society and its members can be considered to be a social crime. According to Sandra Walklate social crime “is that behavior that violates social norms (including violation of the criminal law)” (Walklate, 2005, p. 165). This is a broad definition and the matter as to whether an act constitutes crime against the society and its individual members depends on the different laws and statutes that govern the country and its states. But a criminal act or crime can be classified under social crimes as per the definition given above. The US Constitution, as mentioned earlier, has certain directions and restrictions in formation of laws. Accordingly whatever law or statute should be made available to the public so that they are fully aware as to what constitutes a criminal act against the society. The law should be impartial in nature and not be discriminatory towards a particular class or race. Common Law Defenses: “Here are some of the situations in which one person may be authorized by law to use force against another person: Self-defense; Defense of Another, Defense of Habitation, Force to Resist Arrest (Unlawful and/or Excessive Force), Defense of Property, Use of Force in Law Enforcement by Officers and Citizens Who Seek to Arrest, Search, or Stop an Escape from Arrest or Custody, Use of Force to Prevent Crime, Use of Force to Protect Life or Health, Use of Force to Discipline Those in Special-Dependency Relationships” (Moses, 2002). But it depends on the circumstances in case as to whether a person can claim common law defense in court. In the case STATE of Kansas, Appellant, v. Peggy STEWART, Appellee, the Kansas Supreme Court upheld the decision of the lower court and the latter was able to utilize the provisions of defense because she was considered to be a affected by the ‘battered wife syndrome’. The learned judge was of the opinion that “where a person believes she must kill or be killed, and there is the slightest basis in fact for this belief, it is a question for the jury as to whether the danger was imminent” (Supreme Court of Kansas, 1988). The judge later wrote that he would ‘deny the appeal’ by the prosecution. Here again, the law is complicated and it would depend on how the facts are presented to the jury. The Constitutional Right to Trial by Jury: The sixth amendment to the Constitution allows people accused of criminal acts to be tried by an impartial jury. Hence an accused can have the services of a jury as per law. Constitutional Rights - Post-conviction: Those convicted for criminal acts by state laws have the right to move to higher courts for repeal as per the Constitution. Mehren and Murray state that “Even though the state courts may have already ruled on these claims, there is no preclusive effect unless the state court rulings have been expressly affirmed by the U.S. Supreme Court” (Mehren & Murray, 2007, p. 192). Conclusions: The United States is practically governed by fifty two criminal laws. Even though there are common elements, the absence of a national law covering the entire nation is problematic for its citizens affected by crime, whether as a victim or villain. This is complicated by newer threats like terrorism and war the Presidential orders (by means of laws and statutes) in the hope of controlling, defining, and combating such acts. It would be better for the country to have a uniform penal code where every state has the same statutes with regard to assessment, identification, and punishment for crime. References Brody, D.C, Acker, J.R & Logan, W.A. (2001). Criminal law. Illustrated 2nd Edition: Jones & Bartlett Publishers. Criminal Law - Penal Law - Guide to Criminal & Penal Law. (1995-2009). Retrieved 8 July 2009, from HG.org Worldwide Legal Directories website: http://www.hg.org/crime.html Criminal law: an overview. Legal Information Institute. Retrieved 8 July 2009, from Cornell University Law School website: http://topics.law.cornell.edu/wex/Criminal_law Criminal law. (2009). Law Schools. Retrieved 8 July 2009, from Law schools website: http://www.aboutlawschools.org/law/areas/criminallaw/ Foundations of U.S. Law. American Laws and American Legal Systems. Retrieved 10 July 2009, from LivingAmerican.com: http://www.vidaamericana.com/english/uslaws.html Garoupa, N & Klick, J. (2008). Introduction. Journal Review of Law and Economics, 4 (1), The Berkeley Electronic Press. Jain, Monika. (2001). Mitigating the Dangers of Capital Convictions Based on Eyewitness Testimony through Treasons Two-Witness Rule. Journal Title: Journal of Criminal Law and Criminology, 91 (3), 761+ Lippman. The Nature, Purpose, and Function of Criminal Law. Retrieved 10 July 2009, from sagepub.com: http://www.sagepub.com/upm-data/14242_Lippman_Chp_1.pdf McGregor, Joan. (2005). Is it rape?: on acquaintance rape and taking womens consent seriously. Ashgate Publishing, Ltd. Mehren, A.T.V & Murray, PL. (2007). Law in the United States. 2nd revised Edition: Cambridge University Press. Melone, A.P & Karnes, A. (2007). The American Legal System: Perspectives, Politics, Processes, and Policies. Illustrated 2nd Edition: Rowman & Littlefield. Moses, Ray. (2002). Silver Bullets II: justifications & excuses. Retrieved 10 July 2009, from: http://stclguns.homestead.com/SilverBullets2.html Reckless Indifference: Guide Book. (2006). Felony Murder Rule. Retrieved 9 July 2009, from Choices. Inc website: http://docs.google.com/gview?a=v&q=cache%3AKyn-EtFhRPEJ%3Awww.choices.web.aplus.net%2Fguidebooks%2FRecklessGuidebook.pdf+%22felony+murder%22+model+penal+code+USA&hl=en&gl=in&pli=1 Robinson, P.H & Dubber, M.D. AN INTRODUCTION TO THE MODEL PENAL CODE. Retrieved 9 July 2009, from: http://www.law.upenn.edu/fac/phrobins/intromodpencode.pdf South Dakota Codified Laws. (2009). Retrieved 9 July 2009, from South Dakota Legislature official website: http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=22-1-2 Supreme Court of Kansas. STATE of Kansas, Appellant, v. Peggy STEWART, Appellee. No. 60896. Oct. 21, 1988. (1988). Retrieved 10 July 2009, from: http://www.soc.umn.edu/~samaha/cases/st%20v%20stewart.htm United States Court of Appeals, Ninth Circuit. (1992). Retrieved 9 July 2009, from Public.Resource.Org: http://bulk.resource.org/courts.gov/c/F2/980/980.F2d.738.92-50079.html Walklate, Sandra. (2005). Criminology: the basics. Illustrated Edition: Taylor & Francis. Wartime and the Bill of Rights: The Korematsu Case. (2009). Retrieved 10 July 2009, from CRF-USA website: http://www.crf-usa.org/america-responds-to-terrorism/wartime-and-the-bill-of-rights.html What is terrorism? Retrieved 9 July 2009, from: http://mexico.usembassy.gov/bbf/bfdossier_Terrorismo_whatis.htm Zimring, F.E & Hawkins, G. (1989). Capital Punishment and the American Agenda. Illustrated Edition : CUP Archive. APPENDIX Criminal Code by State Alabama - Title 13A Alaska- Title 11 Arizona- Title 13 Arkansas - Title 5 California Penal Code Colorado - Title 18 Connecticut- Title 53a Delaware- Title 11 District of Columbia - Title 22 Florida - Title XLVI Georgia - Title 16 Hawaii Idaho- Title 18 Illinois- Chapter 720 Indiana- Title 35 Iowa- Title XVI Kansas - Chapter 21 Kentucky - Titles XL, L; Louisiana Maine- Titles 17 and Titles 17A Maryland - Crimes and Punishments Massachusetts - Title I Michigan Minnesota- Chapters 609-624 Mississippi - Title 97 Missouri- Title XXXVIII Montana- Title 45 Nebraska - Chapter 28 Nevada - Title 15 New Hampshire- Title LXII New Jersey - Title 2C New Mexico - Chapter 30 New York - Penal North Carolina - Chapter 14 North Dakota- Title 12.1 Ohio- Title 29 Oklahoma - Title 21 Oregon - Chapters 161-169 Pennsylvania- Title 18 Rhode Island- Title 11 South Carolina- Title 16 South Dakota- Title 22 Tennessee - Title 39 Texas Penal Code Utah- Title 76 Vermont- Title 13 Virginia- Title 18.2 Washington- Title 9 West Virginia - Chapter 61 Wisconsin - Chapters 938-951 Wyoming- Title 6 Source: Criminal Law - Penal Law - Guide to Criminal & Penal Law, 2009 Read More