class: center, top, title-slide # Definitions of Crime and Law ## SOC371 ### Chuck Lanfear ### Jan 11, 2021<br>Updated: Jan 10, 2021 --- # Overview 1. Legalistic Definition of Crime 2. Legally Accepted Defenses 3. Definition of Criminal Law --- class: inverse # Definitions of Crime --- # Legalistic Crime is any **culpable** action *or inaction* prohibited by law and punishable by the state as a misdemeanor or felony. ??? Legalistic definition is by far most common definition of crime Broader norm violating, but non-criminal, behavior is under general label of deviance Common criticism of legal definition is using it reproduces idealogical bias: draws focus to what dominant groups in society have codified as wrong. -- Components: * Criminal (in)action: ***actus reus*** * Intent: ***mens rea*** + Culpability is intent *and absence of defense* ??? acteus reus is the guilty act mens rea is the guilty mind need both, and no valid defense, for it to be a crime -- From English common law (Edward Coke): .pull-left[ > *actus non facit reum nisi mens sit rea* ] .pull-right[ > an act does not make a person guilty unless their mind is also guilty ] -- *The presence of both criminal intent and criminal actions is called* ***concurrence*** --- # Criminal Act *actus reus* -- "the guilty act" ??? This merely means the court must determine beyond reasonable doubt that a criminal action occurred. -- * Crime requires action or conduct--*statuses* or *thoughts* cannot be crimes + ex: being an addict (*Robinson v. California*) + ex: thinking of murder ??? Sometimes fuzzy: Legal argument must be made Possession is considered an act in the US -- Some inactions can be criminal * Actor must have duty to act + ex: Gross negligence + ex: Medical care + ex: Command responsibility ??? Duty to act can include for parents, caregivers, medical practioners, and those under contracts. Duty of rescue applies to parents, employers, transit services, spouses (in US); also includes notifying authorities if someone is in danger. + This is unusual and usually unenforced in US / English system but common in civil law systems Can also include situations where actor creates a danger--they are obligated to address it. Can also include failure to provide information to law enforcement, report accidents, or many elements of transactions. Command responsibility is due to war crimes --- # Criminal Intent *mens rea* -- "the guilty mind" Crime is an intentional act of law violation + Intent that a criminal result occurs + Knowledge a criminal result could occur ??? Intent just means you know something illegal will result from the action -- Special classes of intent: * Constructive intent * Unintentional negligence leading to harm * Reasonable person test ??? Constructive intent is when an individual may not have intended for the outcome, but a reasonable person could foresee it as a possible result. An Example: Reckless driving that results in a death -- * Transferred Intent ??? If you intend to harm one person, but harm another by accident, the intent transfers -- * Exception: Strict liability ??? Strict liability only for most minor things in US: Parking tickets, drunk driving Also statutory rape in 22 states--applies even if defendant was misled Sometimes court entertains a "good faith" defense if defendant made active attempt to verify --- # Legally Accepted Defenses * Self defense, defense of others ??? Limited to proportional response to present, unlawful, and unprovoked attack Usually duty to retreat, can only sometimes defend property WA has true man doctrine; "true man" is one without fault and thus has no obligation to retreat; this is beyond castle doctrine -- * Consent ??? If you did something to someone which they agreed on, it may be a valid defense--such as taking property you were told you could borrow. Gets fuzzy--cannot consent to guarantee severe harm in many cases (or death) -- * Duress and Necessity ??? Crime committed to prevent more serious harm including imminent harm to self Duress supercedes consent: Your consent doesn't count under duress Necessity is not duress because it is voluntary -- * Entrapment + By estoppel ??? Law enforcement concocts a crime and persuades or tricks someone to commit it who otherwise would not have Subjective and objective tests in US: Absence of predisposition of subject vs. government actions would cause normal person to violate law. US has sometimes engaged in very predatory operations to set people up, e.g. Jacobson v. United States By estoppel prevents court from saying defendant is protected from prosecution, then charging them later -- * Double Jeopardy ??? Culpability not relevant here--they've already either been acquitted or convicted. New evidence or confessions after acquittal can sometimes override this--but not everywhere In US: Bribery of judge (no jeopardy) or second jurisdiction--military, federal, etc. -- * Insanity ??? Insanity regard impairment of mens rea In some ways analagous to handling of minors; can think of commitment as a similar parallel justice system --- # Insanity **M'Naghten Rule** (1843): Not culpable due to disease of mind 1. Did not know nature and quality of act, and/or 2. Did not know act was wrong ??? This is oldest standard. Very subjective--difficult for courts. -- **Durham Rule** (1954): Not culpable if act product of mental disease or defect * Psychiatric definition of mental disease * Burden on prosecution to demonstrate sanity. ??? Again, difficult for courts--having to prove sanity is difficult. -- **Insanity Defense Act of 1984**: Not culpable if... > as result of a severe mental disease of defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. * Defendant must prove insanity by "clear and convincing evidence" ??? This shifted burden of proof to the defense --- ## Alternate Definitions of Crime Humanistic * Identifiable Harm + Critique: Harm is subjective + ex: Harcourt's *Illusion of Order*; J.S. Mill ??? Humanistic is based on identifiable harm This raises different issues of subjectivity--what is harm? Claims of harm often used to justify establishing new crimes Counterpoint here is that if you define these as crimes they no longer reflect acts which have formal consequences--why not just call them harms? -- Constructionist * Crime is a status not a behavior ??? Crime is a label we place on behaviors Can be about studying the placing of labels--categorization; labeling theory has a lot to say about this -- Moralistic ??? That which is prohibited by common morality is a crime; obviously very specific group to group -- Political ??? That which is prohibited by government is a crime. This calls back to arbitrary power in continental Europe; need not even put a law on the books to make something criminal in many places --- class: inverse # Criminal Law --- # Definition of Criminal Law Specificity: "Whosoever engages in X shall be punished with Y." Ideal characteristics: * Politicality: Outlawed by a political authority ??? Criminal law characterized by specificity; specifies an act and punishment Non-political authorities cannot establish crimes Violation of contracts is generally non-criminal -- * Uniformity: Apply uniformly to all ??? A law which specifically excludes one category of people still applies uniformly: The exclusion is uniformly applied. -- * Penal Sanction: Punishable by the state. ??? By definition crimes carry punishments--but there is no obligation to apply the punishment (discretion) --- # Levels of Law * State vs. Federal Law vs. Local + Double jeopardy doesn't apply across state vs. federal jurisdictions ??? These are overlapping; one is subject to all at once If an act is illegal in both state and federal, you can be prosecuted separately in both Most people live under many overlapping codes: US, state, county, district, city. -- * Civil vs. Criminal + Burden of proof ??? Focus on contracts, civil wrongs, and property other than theft or destruction Civil has lower burden of proof; beyond reasonable doubt vs. clear and convincing evidence Do not confuse with the civil law system that is the European-origin counterpart to English common law -- * Statutory vs. Common Law + Statutory: From *statutes* (legislation) + Common Law: From *rulings* ??? Statutory is produced via legislation Common law is produced via judicial rulings. --- class: inverse # Origins of Law --- # Law as Consensus * Law emerges from customary, consensual morality * Origin in informal rules of interaction * Law is just a codification ??? Law as consensus is straightforward: Law is based what everyone has agreed on is unacceptable behavior. Just a codification of existing norms of interaction, as is necessary in larger more complex society --- # Law as Conflict * There are many competing moralities--but only one system of law ??? Whose morality rises to the top is what matters and has consequences -- * Stratification as cause: + Necessitates regulation of interaction + Induces the dominant to preserve position ??? This is Chambliss and Seidman's point: Complex societies need laws to regulate interaction of highly diverse groups. But that complexity produces heterogeneity in power Those in power preserve their position via law This can be seen to be related to the core Durkeheimian concern with the shift between mechanical and organic solidarity. -- * Connection to morality is tenuous + The immorality of the poor is criminal + Marxist Position: Moral capitalism ??? Immorality of the rich is ignored, tolerated, or even celebrated Codified morality is capitalist, supports ruling class and underlies legal system to maintain capitalism Some conceptions of subcultural deviance represent rejections of the morality enshrined in law--and substitution with others, which results in non-reliance on law enforcement -- * Law used to change morality ??? Law has continuously been used to attempt to change morality of target populations Most criminologists are incredibly skeptical of this--rarely works and has serious consequences Absent laws, norms often solve problems in groups--much larger lit out there on norms, sanctions, and collective action. --- # Summary * According to legalistic definition, crime is behavior in violation of criminal law + Individuals must be culpable * Criminal Law: Specific acts outlawed and punishable by the state. + The source of laws is debatable + Consensus and conflict perspectives --- class: inverse # Questions --- # For Next Time ### Readings: * Baumer, Eric P. and Kevin T. Wolff. 2014. “Evaluating Contemporary Crime Drop(s) in America, New York City, and Many Other Places.” Justice Quarterly 31(1):5-38 * Western, Bruce, and Becky Pettit. 2002. “Beyond Crime and Punishment: Prisons and Inequality.” Contexts 1:37-43. ### Things to pay attention to: 1. Trends at different levels versus deviation from trends 2. Lack of certainty about causes of changing crime trends * Compare to certainty politicians and media attach to policies 3. Disparate impacts of incarceration * Contrast impacts on inequality with impacts on crime