Criminal Justice Major Preferred!!!! PLEASE READ the description.
Federal or State Crime?
Before completing this Assignment, review the reading on Sources of Criminal Law (pp. 6–9) in Chapter 1 of your textbook. You may also want to read the following resources.
Discover the differences in structure, judicial selection, and cases heard in both systems.
Comparing Federal & State Courts: United States Courts. Retrieved from http://www.uscourts.gov/about-federal-courts/court-role-and-structure/comparing-federal-state-courts
The line between state and federal prosecution can seem blurred at times. Here is an explanation of the duel sovereignty doctrine and how it can be applied.
Levy, R.A. (2011, September/October). Rights, powers, dual sovereignty, and federalism. Cato Institute. Retrieved at http://www.cato.org/policy-report/septemberoctober-2011/rights-powers-dual-sovereignty-federalism
For this Assignment, you will be exploring the differences between state and federal jurisdiction in criminal prosecutions with respect to crimes against persons. The primary objective of this Assignment is to explain how the same conduct may be prosecuted either in state or federal court pursuant to applicable state and federal statutes. Be sure to select a crime against person, such as certain types of sexual assault or kidnapping.
You are to identify ONE specific crime, a crime against a person, and describe the following:
Create the factual scenario giving rise to the criminal prosecution in either state or federal court.
Indicate the name of the specific crime which may be prosecuted in federal court based on the scenario and provide the definition of that crime, including a citation or reference to the applicable statute.
Similarly, indicate the name of the crime which may be prosecuted based upon the same conduct in a state court. Be sure to identify the state statute, and as you did in #2, define the crime and provide a citation to the authority.
Explain a cultural factor that may influence how the crime may be prosecuted. A cultural factor might include a person’s socio-economic, ethnic or religious background; in your response, discuss how various cultures might interpret the wording of two statutes differently. Be sure to discuss how one culture might view a crime differently than another, based on the culture’s particular viewpoints.
Your paper should be written in APA format with a length not to exceed 2 pages (excluding cover and reference pages).
Note: This Assignment requires outside research. Use at least two credible sources beyond the text material and discuss how you evaluated the credibility of the resources used
Lippman, M. (08/2015). Contemporary Criminal Law: Concepts, Cases, and Controversies, 4th Edition. [Kaplan]. Retrieved from https://kaplan.vitalsource.com/#/books/9781483379371/
Sources of Criminal Law
We now have covered the various categories of criminal law. The next questions to consider are these: What are the sources of criminal law? How do we find the requirements of criminal law? There are a number of sources of criminal law in the United States:
English and American Common Law. These are English and American judge-made laws and English acts of Parliament.
State Criminal Codes. Every state has a comprehensive written set of laws on crime and punishment.
Municipal Ordinances. Cities, towns, and counties are typically authorized to enact local criminal laws, generally of a minor nature. These laws regulate the city streets, sidewalks, and buildings and concern areas such as traffic, littering, disorderly conduct, and domestic animals.
Federal Criminal Code. The U.S. government has jurisdiction to enact criminal laws that are based on the federal government’s constitutional powers, such as the regulation of interstate commerce.
State and Federal Constitutions. The U.S. Constitution defines treason and together with state constitutions establishes limits on the power of government to enact criminal laws. A criminal statute, for instance, may not interfere with freedom of expression or religion.
International Treaties. International treaties signed by the United States establish crimes such as genocide, torture, and war crimes. These treaties, in turn, form the basis of federal criminal laws punishing acts such as genocide and war crimes when Americans are involved. These cases are prosecuted in U.S. courts.
Judicial Decisions. Judges write decisions explaining the meaning of criminal laws and determining whether criminal laws meet the requirements of state and federal constitutions. Judges typically rely on precedent or the decision of other courts in similar cases.
At this point, we turn our attention to the common law origins of American criminal law and to state criminal codes.
The Common Law
The English common law is the foundation of American criminal law. The origins of the common law can be traced to the Norman conquest of England in 1066. The Norman king, William the Conqueror, was determined to provide a uniform law for England and sent royal judges throughout the country to settle disputes in accordance with the common customs and practices of the country. The principles that composed this common law began to be written down in 1300 in an effort to record the judge-made rules that should be used to decide future cases.
By 1600, a number of common law crimes had been developed, including arson, burglary, larceny, manslaughter, mayhem, rape, robbery, sodomy, and suicide. These were followed by criminal attempt, conspiracy, blasphemy, forgery, sedition, and solicitation. On occasion, the king and Parliament issued decrees that filled the gaps in the common law, resulting in the development of the crimes of false pretenses and embezzlement. The distinctive characteristic of the common law is that it is for the most part the product of the decisions of judges in actual cases.
The English civil and criminal common law was transported to the new American colonies and formed the foundation of the colonial legal system that in turn was adopted by the 13 original states following the American Revolution. The English common law was also recognized by each state subsequently admitted to the Union; the only exception was Louisiana, which followed the French Napoleonic Code until 1805 when it embraced the common law.17
State Criminal Codes
States in the 19th century began to adopt comprehensive written criminal codes. This movement was based on the belief that in a democracy, the people should have the opportunity to know the law. Judges in the common law occasionally punished an individual for an act that had never before been subjected to prosecution. A defendant in a Pennsylvania case was convicted of making obscene phone calls despite the absence of a previous prosecution for this offense. The court explained that the “common law is sufficiently broad to punish . . . although there may be no exact precedent, any act which directly injures or tends to injure the public.”18 There was the additional argument that the power to make laws should reside in the elected legislative representatives of the people rather than in unelected judges. As Americans began to express a sense of independence, there was also a strong reaction against being so clearly connected to the English common law tradition, which was thought to have limited relevance to the challenges facing America. As early as 1812, the U.S. Supreme Court proclaimed that federal courts were required to follow the law established by Congress and were not authorized to apply the common law.
States were somewhat slower than the federal government to abandon the common law. In a Maine case in 1821, the accused was found guilty of dropping the dead body of a child into a river. The defendant was convicted even though there was no statute making this a crime. The court explained that “good morals” and “decency” all forbid this act. State legislatures reacted against these types of decisions and began to abandon the common law in the mid-19th century. The Indiana Revised Statutes of 1852, for example, proclaim that “[c]rimes and misdemeanors shall be defined, and punishment fixed by statutes of this State, and not otherwise.”19
Some states remain common law states, meaning that the common law may be applied where the state legislature has not adopted a law in a particular area. The Florida criminal code states that the “common law of England in relation to crimes, except so far as the same relates to the mode and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject.” Florida law further provides that where there is no statute, an offense shall be punished by fine or imprisonment but that the “fine shall not exceed $500, nor the term of imprisonment 12 months.”20 Missouri and Arizona are also examples of common law states. These states’ criminal codes, like that of Florida, contain a reception statute that provides that the states “receive” the common law as an unwritten part of their criminal law. California, on the other hand, is an example of a code jurisdiction. The California criminal code provides that “no act or omission . . . is criminal or punishable, except as prescribed or authorized by this code.”21 Ohio and Utah are also code jurisdiction states. The Utah criminal code states that common law crimes “are abolished and no conduct is a crime unless made so by this code . . . or ordinance.”22
Professor LaFave observes that courts in common law states have recognized a number of crimes that are not part of their criminal codes, including conspiracy, attempt, solicitation, uttering gross obscenities in public, keeping a house of prostitution, cruelly killing a horse, public inebriation, and false imprisonment.23
You also should keep in mind that the common law continues to play a role in the law of code jurisdiction states. Most state statutes are based on the common law, and courts frequently consult the common law to determine the meaning of terms in statutes. In the well-known California case of Keeler v. Superior Court, the California Supreme Court looked to the common law and determined that an 1850 state law prohibiting the killing of a “human being” did not cover the “murder of a fetus.” The California state legislature then amended the murder statute to punish “the unlawful killing of a human being, or a fetus.”24 Most important, our entire approach to criminal trials reflects the common law’s commitment to protecting the rights of the individual in the criminal justice process.
State Police Power
Are there limits on a state’s authority to pass criminal laws? Could a state declare that it is a crime to possess fireworks on July Fourth? State governments possess the broad power to promote the public health, safety, and welfare of the residents of the state. This wide-ranging police power includes the “duty . . . to protect the well-being and tranquility of a community” and to “prohibit acts or things reasonably thought to bring evil or harm to its people.”25 An example of the far-reaching nature of the state police power is the U.S. Supreme Court’s upholding of the right of a village to prohibit more than two unrelated people from occupying a single home. The Supreme Court proclaimed that the police power includes the right to “lay out zones where family values, youth values, the blessings of quiet seclusion, and clean air make the area a sanctuary for people.”26
State legislatures in formulating the content of criminal codes have been profoundly influenced by the Model Penal Code.
The Model Penal Code
People from other countries often ask how students can study the criminal law of the United States, a country with 50 states and a federal government. The fact that there is a significant degree of agreement in the definition of crimes in state codes is due to a large extent to the Model Penal Code.
In 1962, the American Law Institute (ALI), a private group of lawyers, judges, and scholars, concluded after several years of study that despite our common law heritage, state criminal statutes radically varied in their definition of crimes and were difficult to understand and poorly organized. The ALI argued that the quality of justice should not depend on the state in which an individual was facing trial and issued a multivolume set of model criminal laws, The Proposed Official Draft of the Model Penal Code. The Model Penal Code is purely advisory and is intended to encourage all 50 states to adopt a single uniform approach to the criminal law. The statutes are accompanied by a commentary that explains how the Model Penal Code differs from existing state statutes. Roughly 37 states have adopted some of the provisions of the Model Penal Code, although no state has adopted every single model law. The states that most closely follow the code are New Jersey, New York, Pennsylvania, and Oregon. As you read this book, you may find it interesting to compare the Model Penal Code to the common law and to state statutes.27
This book primarily discusses state criminal law. It is important to remember that we also have a federal system of criminal law in the United States.
Federal Statutes
The United States has a federal system of government. The states granted various powers to the federal government that are set forth in the U.S. Constitution. This includes the power to regulate interstate commerce, to declare war, to provide for the national defense, to coin money, to collect taxes, to operate the post office, and to regulate immigration. The Congress is entitled to make “all Laws which shall be necessary and proper” for fulfilling these responsibilities. The states retain those powers that are not specifically granted to the federal government. The Tenth Amendment to the Constitution states that the powers “not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The Constitution specifically authorizes Congress to punish the counterfeiting of U.S. currency, piracy and felonies committed on the high seas, and crimes against the “Law of Nations” as well as to make rules concerning the conduct of warfare. These criminal provisions are to be enforced by a single Supreme Court and by additional courts established by Congress.
The federal criminal code compiles the criminal laws adopted by the U.S. Congress. This includes laws punishing acts such as tax evasion, mail and immigration fraud, bribery in obtaining a government contract, and the knowing manufacture of defective military equipment. The Supremacy Clause of the U.S. Constitution provides that federal law is superior to a state law within those areas that are the preserve of the national government. This is termed the preemption doctrine. In 2012, the Supreme Court held that federal immigration law preempted several sections of an Arizona statute directed at undocumented individuals.
Several recent court decisions have held that federal criminal laws have unconstitutionally encroached on areas reserved for state governments. This reflects a trend toward limiting the federal power to enact criminal laws. For instance, the U.S. government, with the Interstate Commerce Clause, has interpreted its power to regulate interstate commerce as providing the authority to criminally punish harmful acts that involve the movement of goods or individuals across state lines. An obvious example is the interstate transportation of stolen automobiles.
In the past few years, the U.S. Supreme Court has ruled several of these federal laws unconstitutional based on the fact that the activities did not clearly affect interstate commerce or involve the use of interstate commerce. In 1995, the Supreme Court ruled in United States v. Lopez that Congress violated the Constitution by adopting the Gun-Free School Zones Act of 1990, which made it a crime to have a gun in a local school zone. The fact that the gun may have been transported across state lines was too indirect a connection with interstate commerce on which to base federal jurisdiction.28
In 2000, the Supreme Court also ruled unconstitutional the U.S. government’s prosecution of an individual in Indiana who was alleged to have set fire to a private residence. The federal law made it a crime to maliciously damage or destroy, by means of fire or an explosive, any building used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. The Supreme Court ruled that there must be a direct connection between a building and interstate commerce and rejected the government’s contention that it is sufficient that a building is constructed of supplies or serviced by electricity that moved across state lines or that the owner’s insurance payments are mailed to a company located in another state. Justice Ruth Bader Ginsburg explained that this would mean that “every building in the land” would fall within the reach of federal laws on arson, trespass, and burglary.29
In 2006, in Oregon v. Gonzalez, the Supreme Court held that U.S. Attorney General John Ashcroft lacked the authority to prevent Oregon physicians acting under the state’s Death With Dignity law from prescribing lethal drugs to terminally ill patients who are within six months of dying.30
The sharing of power between the federal and state governments is termed dual sovereignty. An interesting aspect of dual sovereignty is that it is constitutionally permissible to prosecute a defendant for the same act at both the state and federal levels so long as the criminal charges slightly differ. This double prosecution does not constitute double jeopardy. You might recall in 1991 that Rodney King, an African American, was stopped by the Los Angeles police. King resisted and eventually was subdued, wrestled to the ground, beaten, and handcuffed by four officers. The officers were acquitted by an all-Caucasian jury in a state court in Simi Valley, California, leading to widespread protest and disorder in Los Angeles. The federal government responded by bringing the four officers to trial for violating King’s civil right to be arrested in a reasonable fashion. Two officers were convicted and sentenced to 30 months in federal prison, and two were acquitted. Later in this chapter, you will be asked to decide whether this “double prosecution” is fair.
We have seen that the state and federal governments possess the power to enact criminal laws. The federal power is restricted by the provisions of the U.S. Constitution that define the limits on governmental power.
Constitutional Limitations
The U.S. Constitution and individual state constitutions establish limits and standards for the criminal law. The U.S. Constitution, as we shall see in Chapter 2, requires the following:
A state or local law may not regulate an area that is reserved to the federal government. A federal law may not encroach upon state power.
A law may infringe upon the fundamental civil and political rights of individuals only in compelling circumstances.
A law must be clearly written and provide notice to citizens and to the police of the conduct that is prohibited.
A law must be nondiscriminatory and may not impose cruel and unusual punishment. A law also may not be retroactive and punish acts that were not crimes at the time that they were committed.
The ability of legislators to enact criminal laws is also limited by public opinion. The American constitutional system is a democracy. Politicians are fully aware that they must face elections and that they may be removed from office in the event that they support an unpopular law. As we learned during the unsuccessful effort to ban the sale of alcohol during the Prohibition era in the early 20th century, the government will experience difficulties in imposing an unpopular law on the public.
Of course, the democratic will of the majority is subject to constitutional limitations. A classic example is the Supreme Court’s rulings that popular federal statutes prohibiting and punishing flag burning and desecration compose an unconstitutional violation of freedom of speech.31
Consider the following factual scenario that is taken from the U.S. Supreme Court’s description of the events surrounding the beating of Rodney King.33
