criminal law

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criminal law

criminal law, the branch of law that defines crimes, treats of their nature, and provides for their punishment. A tort is a civil wrong committed against an individual; a crime, on the other hand, is regarded as an offense committed against the public, even though only one individual may have been wronged. The real distinction lies in the way a remedy for the wrong is pursued. A tort is a wrong for which the remedy is pursued by, and at the discretion of, the injured individual or his or her representative, while a crime is a wrong for which the wrongdoer is prosecuted by the state for the purpose of punishment. However, the fact that a particular act has been or may be prosecuted as a crime does not necessarily preclude an injured party from seeking recovery from the offender in a civil action.

For an account of criminal law in ancient and medieval times, see composition; vendetta. See also military law; martial law; international law; piracy; war crimes.

Classification of Crimes

Crimes are usually classified as treason, felony, or misdemeanor. The fundamental distinction between felonies and misdemeanors rests with the penalty and the power of imprisonment. In general, a misdemeanor is an offense for which a punishment other than death or imprisonment in the state prison is prescribed by law. The term “degree of crime” refers to distinctions in the culpability of an offense because of the circumstances surrounding its commission. Crimes are sometimes divided according to their nature into crimes mala in se and crimes mala prohibita; the former class comprises those acts that are thought to be immoral or wrong in themselves, or naturally evil, such as murder, rape, arson, burglary, larceny, and the like; the latter class embraces those acts that are not naturally evil but are prohibited by statute because they infringe on the rights of others (e.g., acts in restraint of trade that have been made criminal under antitrust legislation).

Defining Crimes and Setting Punishment

In the United States, the power to define crimes and set punishment for them rests with the legislatures of the United States, the several states, and the territories, the principal authority being that of the individual states. This power in the states is restricted by the federal Constitution, e.g., in the Fourteenth Amendment and in prohibitions against acts of attainder (an act of attainder is a legislative declaration that a particular individual is guilty of a crime) and against ex post facto laws (laws that retroactively declare certain actions to be criminal). State constitutions may also limit state legislative action. The courts cannot look further into the propriety of a penal statute than to ascertain whether the legislature has the power to enact it. Administrative rules may have the force of law, and violations of such rules are punishable as public offenses, provided that the legislature has made such violations misdemeanors.

A common-law crime is one punishable under common law, as distinguished from crimes specified by statute. In many U.S. jurisdictions, including some in which comprehensive criminal statutes have been enacted, the common law in relation to crimes and criminal procedure has been recognized by the courts as in force, except insofar as it has been abrogated or repealed, expressly or impliedly, by statute. Thus the state may prosecute crimes that were indictable at common law even though they may not be denominated as such or be provided for by statute. In many other jurisdictions the courts have held the common law as to crimes as being abolished, and no act is punishable as a crime unless it is made so by statute, or unless the act is made punishable as a crime by the constitution. Criminal procedure is entirely regulated by statute. There are no common-law offenses against the United States, and one may be subject to punishment for crime in a federal court only for the commission or omission of an act defined by statute or regulation having legislative authority, and then only if punishment is authorized by Congress. In general, crimes must be defined in a penal statute with appropriate certainty and definiteness; the constitutional requirement of due process of law is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that the contemplated conduct is forbidden by the statute.

Except as otherwise provided by statute, to constitute a crime an overt act (actus reus) must be accompanied by a criminal intent (mens rea) or by such negligence as is regarded by law as equivalent to a criminal intent. Motive, or that which leads or tempts the mind to indulge in a criminal act, as distinguished from intent, is neither a crime nor an essential element of a crime. The motive with which an offense was committed is immaterial. Proof of motive may be material in proving that the defendant committed a particular crime, but it is not essential to a conviction.

The Right to a Defense

Every accused has the right to any and all defenses the law recognizes and permits—e.g., insanity, mistake of fact, or self-defense. An accused having the right to resort to several defenses may make an election as to the one on which he or she will rely. The fact that one undertakes a crime on the advice, or as the agent, of another is not a defense; on the other hand, except in the case of homicide, an act that would otherwise constitute a crime may be excused when committed under duress or compulsion that is present, imminent, and impending, and that produces a well-grounded apprehension of death or serious bodily harm if the act is not done (see coercion). Religious belief is not ordinarily a justification or excuse for the commission of a crime (see bigamy).

Criminal Procedure

The procedure in criminal cases is substantially the same throughout the United States. The person suspected of crime is taken into custody by a police officer, sometimes by service of a warrant of arrest. If the crime is serious, the case is first presented to a grand jury, which draws up an indictment if there is sufficient evidence to justify trial; otherwise it discharges the accused. While action is pending, the party charged may be released on bail. Trial is by jury or before a judge alone if a jury is not required, or if the defendant consents. The government presents its case (i.e., attempts to prove the allegations of the indictment), through the public prosecutor, usually called the district attorney, while the accused is represented by counsel that he or she has chosen or that the court has appointed. The legal presumption of innocence puts the burden of proving guilt beyond a reasonable doubt on the prosecution, unless, of course, the defendant pleads guilty to the charge. A defendant may agree to plead guilty as a result of plea bargaining; most U.S. criminal cases are now settled before trial in this manner. Special rules restricting the introduction of evidence in criminal trials further protect the defendant. If the accused is found or adjudged innocent, he or she is discharged; if the accused is found guilty, the judge pronounces sentence. (For types of criminal penalties, see capital punishment; corporal punishment; prison.) If the defendant is convicted, an appeal may be filed; the prosecution, however, cannot appeal an acquittal. Generally speaking, this procedure is confined to felonies; misdemeanors, being relatively less serious offenses, are handled in a more summary fashion. It is generally accepted that no court will enforce the criminal law of another jurisdiction, but by means of extradition a fugitive from justice may be delivered to the competent authorities.


See G. Williams, Criminal Law (2d ed. 1961); W. J. Chambliss, ed., Crime and the Legal Process (1969); S. H. Kadish, Criminal Law and Its Processes (1969).

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The following article is from The Great Soviet Encyclopedia (1979). It might be outdated or ideologically biased.

Criminal Law


the branch of law whose rules define which acts are recognized as socially dangerous (that is, as crimes), the measures of punishment for the commission of such acts, and the conditions for imposing punishment.

Soviet criminal law is designed to prevent criminal infringement on the Soviet social and state structure, the health and the legally protected interests of Soviet citizens, and socialist property. The fundamental principles that determine the entire content of Soviet criminal law were formulated in the first years of the Soviet state with the direct participation of V. I. Lenin.

Soviet criminal law is imbued with the spirit of socialist legality. This means primarily that criminal responsibility accrues only to a specific, socially dangerous act (a crime) covered by criminal law (that is, an act whose characteristics coincide with the formal elements of a crime) in a manner established by criminal and criminal procedural legislation.

Soviet criminal law embodies the principle of socialist humanism. The principle is expressed in the refusal to use punishment as a means of retribution, in the subordination of punishment to the goal of correction and reeducation of convicted persons, in the possibility of early release (including conditional early release) from punishment, and in the permissibility in specific cases of releasing individuals from criminal responsibility and punishment and the application of measures of social influence. Socialist humanism is also manifested in the defense of the interests of society, which requires the undeviating application of strict punishment to persons who have committed crimes against the foundations of the Soviet order, serious crimes against individuals, and crimes against peace and mankind.

The rules of Soviet criminal law are contained in all-Union and republic criminal legislation.

Soviet criminal law as a system of legal norms is divided into a general and a special part. The general part formulates general rules of criminal responsibility. It defines a crime as a socially dangerous act (action or inaction) infringing on the Soviet social or state order; the socialist system of economy; socialist property; the person of individuals; or the political, labor, property, or other rights of citizens. Other socially dangerous activities infringing on the socialist legal order may also be defined as crimes, as provided for by criminal legislation. The general part of criminal law also includes rules defining the form and content of guilt, circumstances excluding criminal liability (nonimputability, necessary defense, and extreme necessity), and the procedure and conditions for criminal responsibility for preparation for a crime, attempt, and complicity in the commission of a crime. A separate place in the general part of criminal law is given to the characterization of the purposes and types of punishment and the rules for imposition of and release from punishment.

The rules of the special part of criminal law are contained in the criminal code. They define which specific socially dangerous acts are crimes and establish the corresponding punishments for the commission of such crimes. The object of criminal infringement is taken into account when responsibility is established for various types of crimes.

The criminal codes of all Union republics first establish responsibility for crimes against the state. Responsibility is then established for other crimes in the following order: crimes against socialist ownership; crimes against the life, health, freedom, and dignity of the person; crimes against political and labor rights of citizens; crimes against personal ownership of citizens; economic crimes; official crimes; crimes against justice; crimes against the system of administration; crimes against public security, public order, and health of the population; crimes constituting survivals of local customs; and military crimes. The nature and social danger of an act are taken into account when measures for punishment for a given crime are established.

The criminal law of foreign socialist states is built upon principles and general rules in common with Soviet criminal law. Criminal codes are in effect in all socialist countries; they define the general principles of criminal law and establish the measures of punishment for specific crimes.

In modern bourgeois states criminal law is one of the means used to support and strengthen capitalist social relations. In many countries the criminal laws provide strict responsibility for participation in revolutionary and national liberation movements and for membership in Communist parties and democratic organizations.

In contradistinction to socialist criminal law, legal doctrine and legislation in bourgeois countries permit establishment of criminal responsibility for certain minor crimes without proof of fault, that is, merely by virtue of a violation of the law; examples are “purely material” crimes in France and the institution of strict liability in Anglo-American law. The criminal legislation of a number of capitalist states, besides providing punishment for specific crimes committed, also permits “security measures” to be taken against persons declared to be “dangerous to society.” In Northern Ireland, for example, the British government uses this right to intern for an indeterminate period, without investigation or court hearing, both participants in the struggle for civil rights and members of reactionary groups.

The basic source of criminal law in most capitalist states is a criminal code; however, rules establishing criminal sanctions for crimes are also contained in various acts of legislative and executive authority and in decrees by municipal bodies. One of the oldest criminal codes still in effect in a capitalist state is the criminal code established in France in 1810, which received its last major reform between 1958 and 1960. Imbued with the ideas of the classical school of criminal law, it has served as a model in the promulgation of the criminal codes of many Western European, African, and Latin American countries. In the Federal Republic of Germany a new general part of the country’s criminal code was put into effect on Jan. 1, 1975, but the special part of the 1871 criminal code of the German Empire continues in effect (with substantial corrections and additions). In Great Britain there is no criminal code, and questions of criminal responsibility are regulated by separate legislative acts, such as the 1957 law on homicide, the criminal law of 1967, and the 1968 law on theft.

In the USA the federal criminal code of 1907 regulates responsibility only for certain crimes; it is supplemented by the criminal codes and laws of individual states. The provisions of these codes differ significantly with respect to the definition of individual crimes and their punishments and the general range of punishable acts.

The Great Soviet Encyclopedia, 3rd Edition (1970-1979). © 2010 The Gale Group, Inc. All rights reserved.