Fundamentals of Criminal Law
Adam J. McKee, Ph.D.
Jack Brown Ph.D.
This content is released as a draft version for comment by the scholarly community. Please do not distribute.
Due to its breadth and complexity, a concise definition of crime can be very difficult to achieve. A good definition must include who has the authority to make a law. In the United States today, that power and responsibility falls on our elected lawmakers. Because the United States has a system of government based on federalism, there are at least three major branches of government. Because of the way the Constitution of the United States was designed, most of the responsibility for making criminal law falls on the individual state governments. This has resulted in a rather complicated system where most criminal laws are made by the state and enforced by local law enforcement officers. Local governments (such as city councils) can make minor laws known as ordinances, but these usually only result in a fine. Serious crimes where life and death hang in the balance can only be made by state and federal governments.
While the vast majority of criminal laws are made by the states, there is a complete federal criminal justice system with its own law enforcement, its own courts, and its own correctional systems. Those two levels of government always maintain their independence from each other in matters of criminal law. Federal agents can only enforce federal laws, and federal prosecutors can only bring charges against an offender in federal court. Likewise, local law enforcement officers cannot arrest a person for violating a federal law and state courts cannot prosecute federal crimes.
Bond v. United States (2014)
In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. The States have broad authority to enact legislation for the public good–what we have often called a “police power.” …The Federal Government, by contrast, has no such authority and can exercise only the powers granted to it, including the power to make “all Laws which shall be necessary and proper for carrying into Execution.” For nearly two centuries it has been “clear” that, lacking a police power, “Congress cannot punish felonies generally.” …A criminal act committed wholly within a State “cannot be made an offense against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.”
Another characteristic that is essential for a crime is that something is prohibited. As we will learn in a later section, this prohibited thing is usually an act. In our everyday language, an “act” suggests an action verb. Things like kill, steal, rape, and burn come to mind. It is important to note that passive states can also be an act in criminal law, such as the possession of certain contraband. In addition, an omission also counts as an act. Persons being arrested often assert that “I didn’t do anything!” When a penal statute commands that a particular action be taken, not doing it is the criminal act. IRS agents, for example, frequently confront suspects that did not pay their taxes.
Basic human rights dictate that without an applicable law, there should be no punishment. The fundamentals of good legislation dictate that there should be no crime without an associated punishment. Such a law is worthless. In scripture, the prohibition of an act without a specified punishment makes sense because the person of faith does not want to incur the wrath of God. this practice, however, does not work within the laws of men. Most people care little about the wrath of the legislature unless that wrath results in a criminal punishment.
From the above, we can develop the definition of a crime that we will use in this text: A crime is an act prohibited by the lawful authority of the government with a prescribed punishment for committing the act. This is similar to Sir William Blackstone’s definition from the Commentaries: A crime is “an act committed or omitted in violation of Public Law forbidding or commanding it.”
References and Further Reading
“criminal law.” The Columbia Encyclopedia, 6th ed. Retrieved September 24, 2018 from Encyclopedia.com: http://www.encyclopedia.com/reference/encyclopedias-almanacs-transcripts-and-maps/criminal-law
Modification History File Created: 07/12/2018 Last Modified: 07/12/2018
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
Products from Amazon.com