Welcome Everything You Always Wanted To Know about Criminal Law

Everything You Always Wanted To Know* about Criminal Law and Procedure.

and presumably more than you’ll ever need to know

I’ll be covering a lot of material, so take out your notebooks. Warning: This stuff is so interesting that when we get to the end of this page you may start asking how to apply to law school.

At the end there will be a test, so please pay attention.

So, let’s start with the basics:

What is a crime and how do we decide which behavior to criminalize?

A crime is behavior that is punishable as a public offense.

Not everything bad or immoral is a crime. Cheating in a poker game with a friend isn’t a crime. Lying to your spouse about where you were last night isn’t a crime. Conversely, not everything that has been criminalized is bad or immoral. For example, before the Civil War, helping an enslaved person escape was a crime.

Laws — including criminal statutes — reflect the values of the lawmakers. As the culture changes, and the attitudes of lawmakers change, laws change.

For example, there was a time when it was considered bad policy to punish domestic violence. This is illustrated by the 1868 case of State v. Rhodes.

The husband, A.B. Rhodes, was charged with battering his wife. The evidence presented at his trial showed that he struck her three times with a switch about the size of one of his fingers but not as large as his thumb. The size of the switch was important because under common law at the time, a man could legally beat his wife if the switch he used was no bigger than his thumb—the so-called rule of thumb.

Rhodes’ defense was that his wife had said something that enraged him. At the trial, he couldn’t remember what it was. Because he couldn’t remember what she had said, the trial court concluded that she had done nothing to deserve the beating. Nonetheless, the court found A.B. not guilty of battery because the switch he used was smaller than his thumb.

The case went on appeal to the North Carolina Supreme Court.

The North Carolina Supreme Court rejected the Rule of Thumb and held that a husband does not have the legal right to beat his wife. If A.B. had beaten someone other than his wife, he would be found guilty of battery. However, because the wife’s injuries were not severe, the court felt that finding A.B. guilty in this case would cause greater harm to society than whatever harm his wife sustained from his beating.

The court explained that, if the beating was not severe, interfering in marital disputes would cause more harm than good because a wife could—and should—forget “temporary pain,” but if she took her domestic quarrel public, the pain of public humiliation for the family would not be easily forgotten and would cause more long-term damage to the family. Moreover, the court reasoned, courts should not try to resolve domestic quarrels because there was no way to really know who was at fault. After all, “Who can tell what significance the trifling words may have had to the husband? Who can tell what happened an hour before, and every hour or a week?”

The court referred to the beating as “moderate correction” and said, “We will not interfere with or attempt to control [families] in favor of either husband or wife, unless in cases where permanent or malicious injury is inflicted or threatened, or the condition of the party is intolerable.”

The North Carolina Supreme Court’s attitude toward domestic violence in 1868 reflected the general attitude of courts and law enforcement until relatively recently. Until late in the 20th century, police and law enforcement generally closed their eyes to domestic violence. Eventually that changed under pressure from women’s activists.

Here are three questions:

When is cheating a crime?
When is lying a crime?
When is causing another person injury a crime?

The first two are complicated and drawing the line is not easy. In general, causing another person injury is a crime when done with a criminal intention or negligence.

Types of Crimes

There are four categories of crimes: (1) Violent crimes, such as murder and battery; 2) Property crimes, such as burglary and vandalism, 3) White collar crimes, such as financial fraud, tax evasion, and embezzlement, and (4) victimless crimes where nobody is injured (drug possession is considered a victimless crime.)

Financial Crimes

Until relatively recently, white-collar crimes often went undetected because there were so few regulations or means of investigating such crimes. It wasn’t until the 1970 Bank Secrecy Act that law enforcement was given the ability to detect money laundering and bank fraud.

During the decades since, as the public has come to recognize the seriousness of financial crimes, other laws have been passed making it easier for law enforcement to gather evidence of financial crimes.

To Criminalize or Not To Criminalize (that is the question)

Not everything illegal is a crime. Some illegal actions are civil offenses. This means someone can sue you, but the police won’t come to your door.

A person can be held responsible in civil court for damage they cause when they are negligent, careless, or cause deliberate harm. With rare exceptions (such as punitive damages) a person is not punished in civil court. Instead, they are ordered to pay for the damage they cause or cease harmful behavior.

In a criminal case, the remedy is punishment.

In a civil case, one citizen brings an action against another (or a person sues the government). In a criminal case, the government brings the action against an individual.

The differences are profound. Punishment is the deliberate infliction of pain. In a criminal proceeding, the government — with its vast power — is seeking to deliberately inflict pain on an individual. This, by the way, is why I believe issues of criminal law and procedure are the most important legal issues.

Deciding which behavior should be criminalized is not as easy as you might think.

Will criminalizing (and punishing) more behavior make the country a safer place?

Some people think the way to improve the country is to criminalize more bad behaviors. They think if we punish more bad people, we will solve our woes. Others think that overcriminalization is a problem.

Let’s consider this.

A few decades ago, California was considering passing a law making it a crime for a parent to engage in domestic violence in the presence of a child. The punishments included imprisonment. An advocacy group hired me to research the proposed law and offer my analysis of whether the proposed law was sound. I did the research and learned that, under the definitions in the proposed law, “engaging in domestic violence” included getting beaten up by a domestic partner.

I’m sure that the legislator who proposed this particular law meant well. She wanted to deter bad behavior and protect children. Indeed, beating up your wife (or your husband) in front of the kids is terrible behavior that society has an interest in deterring, but it seemed to me that criminalizing (and potentially incarcerating) the person who was getting beaten was not a sensible remedy.

So I argued that such a law would criminalize the victims of domestic violence instead of offering intervention and help. In short, I argued that the law would criminalize victims, and fill the prison with people who needed help, not punishment — and therefore the law should not be passed.

The organization presented my arguments to the state legislators. The law was not passed.

The War on Drugs

In 1971, Nixon declared drug abuse “public enemy No. 1” and declared a “war on drugs.” In 1973, he created the Drug Enforcement Administration (DEA) to coordinate the efforts of all other agencies. Reagan expanded the reach of the War on Drugs. In 1980, there were 50,000 incarcerations for nonviolent drug offenses. By 1997 there were 400,000 incarcerations for nonviolent drug offenses.

The War on Drugs began winding down when people demanded changes on the grounds that drug laws were culturally biased (drugs used by Black communities, for example, were more heavily penalized than drugs used by white communities) and prisons were overflowing with drug addicts when what they needed was medical intervention.

Handle Popping in Las Vegas

More than 4,450 behaviors are criminalized in the federal code, and most crimes are state crimes. Given the vast number of crimes on the books, it is not surprising that the crimes include some rather obscure behaviors. For example, handle popping in Las Vegas.

On December 10, 1989, Timothy Childs was in John Ascuaga’s Nugget Casino in Sparks, Nevada, playing a slot machine. He’d discovered that if he pulled the handle in a particular way, one of the three reels would stop spinning prematurely. As a result, he was able to manipulate the machine and win.

Karen Fleiner, an operations manager at the casino, was watching the gamblers through a special monitor, looking for irregular or suspicious behavior. After observing the way Childs pulled the machine handle, she suspected him of cheating and called the Gaming Control Board. The Gaming Control Board sent a law enforcement agent to the casino.

The agent, Robert Johnson, arrived within a few minutes of Karen Fleiner’s call. He watched as Childs popped the handle and caused the machine to stop rotating. Childs was arrested and charged under a Nevada law that made it a crime to “vary the pull” of the slot machine handle.

Childs was charged and found guilty. The court imposed the standard penalty for violating that particular statute and sentenced Childs to six years in the Nevada state prison.

Childs appealed.

The Supreme Court of Nevada reversed the decision, finding that the law was unconstitutionally vague. The vagueness doctrine says that criminal laws must state explicitly and definitely what conduct is punishable. Criminal laws that violate this requirement are said to be void for vagueness.

The court reasoned that because varying the pull doesn’t damage or alter the machine, an innocent player not intending to cheat could stumble across the technique and use it to his advantage. Some slot machine players move from one machine to another, hoping to increase their odds. Some players pull the handle slowly or quickly, hoping to increase their odds. If these things are not cheating—the court reasoned—how could varying the pull of the handle be cheating if the construction of the machine allowed for that without damaging the machine?

The Nevada Supreme Court thus found the law unconstitutionally vague and reversed the conviction.

The story doesn’t end there.

Proving himself to be a true gambler, Timothy Childs pushed his luck. After his conviction was reversed, he went back to the casinos to pop some more handles and win some more money. Why not? After all, the Nevada Supreme Court had said it was legal.

When casino monitors again spied him popping the handles and winning lots of money, they called the police. Again he was arrested. This time he was charged with “fraudulent slot machine manipulation.” As before, the trial court found Childs guilty. He was sentenced to ten years in prison. (Ten years!)

When his case went to the Nevada Supreme Court on appeal, a majority of the Supreme Court justices again voted to overturn his conviction, reasoning that if the machine allowed for popping the handle without damaging the machine, they just couldn’t see Child’s behavior as a crime deserving of imprisonment. One of the judges disagreed and felt it was clear that Childs intended to cheat, but he was outvoted.

Once again, Childs walked away free.

I have no idea how handle popping and “fraudulent machine manipulation” became crimes in Nevada, but I assume Nevada has some kind of influential Casino Lobby.

Theories of Punishment

We tend to take for granted that punishing wrongdoing is a good idea. Now I’ll play devil’s advocate and argue that the major theories of punishment are inherently flawed.

Retribution—“An Eye for an Eye”

The phrase “eye for an eye” appears in the Book of Exodus, but the idea of retribution predates the Hebrew Bible. The first known criminal code to embody the idea of retribution for crimes is the Code of Hammurabi. (The following is from Davies, W. W. The Codes of Hammurabi and Moses, with Copius Comments, Index, and Bible References.)

Hammurabi, who wanted to make sure criminals got what they deserved, codified these punishments:

If a son strikes his father, his hand shall be cut off.
If a man hits a woman so that she loses her unborn child, he shall pay ten shekels for her loss.
If anyone is caught committing robbery, he shall be put to death.
If a man makes an accusation against a man and cannot prove it, the accuser shall be put to death.

The Code of Hammurabi shows that ideas about what pain must be inflicted on a perpetrator to compensate a victim is culturally biased. Hammurabi believed that ten shekels would compensate a woman who was battered into miscarrying, whereas if you accuse someone of a crime and can’t prove it, you die.

Immanuel Kant, who was a believer in the concept of retribution, argued that when crimes go unpunished, the moral balance of the universe is disturbed. For the moral balance to be regained, according to Kant, crimes must be punished equal to the victim’s suffering.

The first problem with Kant’s theory, of course, is that if retribution is culturally biased, how can it redress the moral imbalance in the universe? Similarly, how do you decide what pain is equal to the victim’s suffering? Suppose a person shoplifts an item worth $20 from a department store. What jail time would be equal to the department store’s suffering?

Presumably administering too harsh a punishment would also throw off the moral balance of the universe.

The second problem is that, unless all crimes can be detected, reported, and prosecuted, it is delusional to think that criminal punishment restores the moral balance of the universe and (as I argued in Part I) given the way we live today, the only way to detect all crimes is to live in a police surveillance state.

Another issue: people who are cleverer or better liars are less likely to get caught. People with lower IQs are also more likely to incriminate themselves when questioned by the police. This may be why people with lower levels of intelligence are disproportionally represented in prison populations. One study showed that fewer than 2 percent of the population has an IQ below 70, but between 12 and 20 percent of current death row inmates have an IQ below 70.

Let’s take an example.

Marvin Wilson, a resident of Texas charged with capital murder, had an IQ of 61 if you believed the defense, or 73 if you believed the prosecution. (See Marvin Lee Wilson v. The State of Texas, 1999 and Marvin Lee Wilson v. State of Texas, appeal from the 252nd District Court of Jefferson County.)

In 1994, when Wilson was thirty-two years old, an anonymous informer told the police that Wilson was a drug dealer. When the informer was found dead, Wilson and another man, Terry Lewis, were arrested and charged with the murder. It was clear from other eyewitness accounts that the murderer had been either Wilson or Lewis. There was no forensic or other evidence pointing to which of the two men actually had committed the murder.

The question for the jury was which man had pulled the trigger. The jury decided Wilson was the murderer. The evidence against him was the testimony of Lewis’s wife, who told the court she overheard Wilson confess to the crime.

The jury believed that Lewis’s wife was telling the truth and Wilson was lying. Lewis was given life in prison. Wilson was sentenced to die in the electric chair.

The U.S. Supreme Court has said that executing people with an IQ below 70 is unconstitutional because it is cruel to execute a person who may not have a complete understanding of right and wrong, and who might not even understand why he is dying. Texas law forbids the execution of anyone whose IQ is under 70. So Wilson’s life depended on whether his IQ was above or below 70.

Wilson’s family members testified that Wilson showed serious mental limitations beginning in childhood. His cousin said, “The other kids in school would always call Wilson dummy.” According to the defense, Wilson couldn’t use a phone book, couldn’t match his socks, and didn’t understand what a bank account was for. He had been known to fasten his belt to the point of nearly cutting off his circulation. When Wilson’s son was born, Wilson began sucking his own thumb.

The court determined that his I.Q. was over 70.

Wilson died by lethal injection at 6:27 p.m. on August 7, 2012. His case drew national attention because of the fear that he died not because he was guilty but because a more sophisticated accomplice was able to convince a jury that Wilson was the guilty one.

The problem with a grand theory like ‘retribution restores the balance of the universe’ is that criminal justice is carried out by mere mortals.

Finally, those with resources are better able to withstand incarceration. When people with resources are incarcerated, their families have the means to survive. On the other hand, if the person paying the rent is incarcerated, the family will be homeless. If a single parent is incarcerated, the children will suffer.

When the same punishment falls more heavily on people without resources, it seems to me that it’s hard to argue that punishment restores the moral balance of the universe. Moreover, when punishment causes additional pain to innocent families and communities (as over-incarceration does) the retribution theory falls apart.

Deterrence

Deterrence is the theory that people won’t commit crimes—or they will be less likely to commit crimes—if they know they will be punished.

The (mistaken) idea that harsh punishment deters crime led the United States to build the world’s largest prison system. I mentioned last week that the United States has one of the largest per capita prison populations in the world. (In 2014, it was the largest. We’ve improved somewhat.)

The United States also has some of the highest recidivism rates in the world. Recidivism rates prove that criminal punishment doesn’t deter crime. According to the National Institute of Justice (the research, development, and evaluation agency of the U.S. Department of Justice) almost 44% of criminals released return before the first year out of prison. In 2005, a whopping 68% of 405,000 released prisoners were arrested for a new crime within three years, and 77% were arrested within five years.

It’s almost as if criminal punishments make someone more likely to commit more crimes.

The National Institute of Justice concluded that “sending an individual convicted of a crime to prison isn’t a very effective way to deter crime” and “increasing the severity of punishment does little to deter crime.”

The theory of deterrence assumes that people can make rational decisions, but if someone has something so deeply wrong with their brain they can’t think rationally, the threat of punishment will not act as a deterrent, particularly if the person is planning to kill himself along with others.

Take Charles Whitman for example. On August 1, 1966, Whitman went on a shooting rampage, killing fourteen students and terrifying the entire campus. During the weeks leading up to the killings, he’d been complaining of headaches and an altered mental state. Before climbing the tower, he wrote a suicide note that read, “I do not really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However lately (I cannot recall when it started) I have been a victim of many irrational thoughts.” He also wrote, “After my death, I wish that an autopsy would be performed on me to see if there was any visible physical disorder.”

After Charles Whitman’s death, an autopsy revealed that he had a brain tumor pressing against the part of the brain believed to be responsible for regulating emotions. By his own admission, his thinking had been disordered and irrational in the weeks leading to his killing spree.

I worked on a defense team once where experts testified that brain scans showed that the defendant had limited ability to process information or control his behavior.

Paradoxically, deterrence does work on rational and law-abiding people. Story: One day my husband realized he’d gotten on the light rail but forgot his ticket. He was nervous until he could get off the train and purchase one. He was terrified of the embarrassment of being asked for a ticket and not having one. This meshes with the National Research Institute’s conclusion that fear of getting caught is often a bigger deterrent than harsh punishment. In other words, law-abiding people are likely to be more careful if they understand the consequences — but law-abiding people are not the problem.

Incapacitation

The idea behind incapacitation is that we put criminals in jail so that they cannot commit any more crimes. Like other theories of punishment, this one appeals to common sense. Convicted criminals cannot be involved in further crimes against society if they are in jail.

The reality is that crimes happen in jail and from jail. Very few crimes carry lifetime sentences. People often emerge from prison hardened, radicalized, and more inclined to commit crimes than before they were imprisoned.

Reformative Theory

Reformative measures, such as diversion programs (as opposed to prison) are becoming more common.

It seems to me that reformative measures work with certain kinds of crimes and certain kinds of lawbreakers. A drug addict or person with mental disorders or a person trapped in a destructive family situation is likely to be helped through reformative measures.

For corporate crime to be detered through reformative measures, it seems to me we need something more sophisticated than, “All members of this Board of Directors are required to enroll in classes so they can learn that their greed and destructive behavior is harming society.”

Criminal law functions differently in a village or community where everyone knows each other. Tens of thousands of criminal cases are filed each year in the U.S. federal system and most crimes are prosecuted in state courts. Jurors are not personally acquainted with the defendant. Criminal justice thus often resembles an impersonal conveyor belt making reformative measures less likely to be effective.

Is there justice in “Criminal Justice” if only a fraction of the people who commit crimes are punished?

The idea that punishing criminals makes the world a better place assumes that all people who commit crimes are treated equally. I will now argue that in fact, it is impossible for all people who commit crimes to be held responsible for those crimes.

Not all crimes are prosecuted because not all crimes are detected

Crimes that are committed in public or in the presence of others, like vandalism or robbery, are easier to detect than crimes that are committed in private, like money laundering and tax fraud.

Sometimes I think people imagine that law enforcement operates like a casino in Nevada with monitors watching the population for signs of suspicious or irregular behavior. When an ever-vigilant government monitor detects something suspicious — “Look at that guy! He seems suspicious” — the monitors call the authorities, who promptly arrest the person and or begin looking for evidence of a crime.

In the early 1990s, I was speaking to a visiting scientist from the former East Germany. He was educated in the former Soviet Union and had spent his entire life under communist regimes. I told him (naively) that the United States is too big for each American to be monitored the way the Stasi monitored East Germans. He was amused and proceeded to explain exactly how a secret police in the United States could be created and enabled to monitor the actions and speech of every person living in the United States and reach any evidence of crimes.

I felt horrified, and grateful for the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Our government can’t go snooping. We don’t have a secret police monitoring the population. I, for one, think this is good. Unchecked power is too easily abused.

It also means that not all crimes will be detected or prevented. No doubt there was less crime in East Germany under the Stassi than there is today in the United States.

Not all crimes that are detected are reported

Family members, friends, neighbors, and fellow community members often find solutions other than calling the police.

Not all crimes that are reported result in arrest

Police usually detect crimes when someone calls 911 to report an incident.

Sometimes the police arrive and find a situation where there is a possible crime, but for one reason or another, decide to give a warning and leave. I had one case in which neighbors were in a bitter feud and continually called the police on each other to report made-up crimes. The police have to make judgment calls.

When the police find evidence of a crime, they write up a report and submit it to a prosecutor, who then decides whether to charge the crime.

The White Collar Crime division of the FBI receives information about crimes from other law enforcement agencies and regulatory agencies such as the Securities and Exchange Commission, the IRS, the Postal Inspection Service, and other agencies. The FBI investigates and turns over findings to prosecutors.

The Statute of Limitations

Statutes of limitations are laws that limit how far back the government can go when investigating and prosecuting crimes. Because it’s difficult to gather accurate evidence of a crime that occurred many years ago, the statute of limitation ensures accurate fact-finding.

With federal crimes, most crimes have a statute of limitation of five years. Some crimes, like rape or child abuse that can take years for a victim to be able to speak, have longer statutes of limitations.

Like all laws, statutes of limitations are changing, particularly as forensic science makes it easier to verify old evidence.

And now, a story.

My stepson is a law-abiding man in his thirties, but he was once a cheeky kid who liked messing around with rules. While I was studying for the bar exam, he amused himself by reading my flash cards. As a result, he understood things like the requirement that people have fair notice of what behavior is punishable.

One night at dinner when he was about twelve he asked me, “Can I get in trouble for doing something if it isn’t listed in the school manual?”

I understood why he was asking, so I said, “Yes, you can get in trouble. Some rules are so general that they apply to lots of things. For example, you’re not allowed to do something risky that will endanger yourself or anyone else.”

“But what if it’s something that isn’t dangerous?” he asked.

“Like what?”

“Well, for example, getting up on the school roof.”

My husband looked him in the eye and said sternly, “Don’t do it.”

The next day I received a phone call from the middle school principal. You guessed it. My stepson and a friend had climbed on the roof of the two-story school building. After being brought to the principal’s office, my stepson informed the principal he had a defense: There was nothing in the list of school rules against climbing onto the school roof, so he could not be punished for it. The principal was not persuaded. My stepson was suspended from school.

Later my stepson was pleased to report that the middle school manual now contains a rule against climbing onto the school roof.

Not all crimes that reach the prosecutor’s desk result in prosecution.

In an autocratic government, the autocrat decides who should be investigated and prosecuted. In an era of mob rule (lynchings), the mob decides. The way our government is structured, an independent prosecutor decides by (ideally) following the rules and guidelines in place.

Prosecutorial discretion

Prosecutors have wide discretion about who to charge and which charges to bring. They are not obligated to prosecute every case with merit that comes their way.

(1) The prosecutor might determine that prosecuting a case would result in more harm than good.

The law permits — and sometimes requires — prosecutors to base their charging decisions on non-legal considerations.

Suppose a woman is found drunk on the street. She stumbled around and did damage to public property. The damage was minimal. The police investigate and find out that, for years, she has been trapped in an abusive relationship and suffers from mental illnesses. By the time the police found her, she moved in with her daughter, was attending a rehabilitation program, and her daughter had repaired the damaged property. Because that would be the woman’s second offense, the penalty for her crime would be up to a year in jail.

A prosecutor might decide that prosecution would do more harm than good.

(2) The prosecutor might determine that there is not enough evidence to secure a conviction.

Bringing charges that are likely to result in acquittal (1) wastes government money, (2) upends the lives of citizens, and (3) causes people to lose confidence in law enforcement which makes it harder for law enforcement officers to do their jobs well.

(3) A prosecutor may drop a case if the victim does not want to press charges.

The victim, however, does not have the final say. Charges may be brought even if the victim doesn’t want to see the perpetrator prosecuted. The prosecutor decides.

To bring charges or not to bring charges (that is the question).

A prosecutor may, under the rules of ethics, make a public statement explaining why criminal charges have been declined or dismissed, but the prosecutor must take care not to imply guilt or prejudice the interests of the victims, witnesses, or subjects of other on-going investigations.

In other words, you may never know the reason prosecutors decline to bring charges.

Because prosecutors have to make difficult decisions, being a good prosecutor requires having a high level of moral intelligence. Not all prosecutors have this.

Moreover, people can have different ideas about what constitutes a moral decision.

I once tried to persuade a young prosecutor not to seek to incarcerate a 45-year-old woman who was charged with possession of methamphetamine. She had a dual diagnosis, which means she had both mental health issues and a drug addiction. Dual diagnosis is a thing because mental disorders can contribute to drug use and drug use can make the mental disorders worse. This particular woman had a history of homelessness, but when the case came to me, was in a steady job. She didn’t deny that she was caught with drugs, but she asked for a diversion program because she wanted help with her addiction. The prosecutor didn’t want to offer her diversion. He wanted jail time.

In response to what I thought were dazzlingly persuasive arguments for why she should be offered a diversion program, the prosecutor — who I estimated to be about 27 years old — said, “If I am caught speeding, I know I will have to pay the price of the ticket. She was caught with methamphetamine. So she has to pay the price.”

I tried to explain that there is no comparison between a person privileged enough to have finished law school by his mid-twenties speeding down the highway and a drug-addicted person with a history of homelessness and mental health issues.

He just kept repeating some version of, “If you do the crime, you have to do the time.”

He wouldn’t budge. He insisted that she should go to jail.

I filed a motion arguing that the search was illegal as to her because a sleeping person can’t consent to a search.

Guess what? The judge agreed with me. During the evidentiary hearing, he turned to the prosecutor and said, “I don’t see how someone can come out of sleep and give consent.” Winning on my motion would mean that the evidence would be excluded under the exclusionary rule. (Evidence obtained in an illegal search can’t be used in court.)

As soon as it was clear which way the wind was blowing, the prosecutor asked for a recess and said he wanted to talk to me. Needless to say, the case ended to my client’s satisfaction.

Had the prosecutor probed a little more and gotten the whole story, he might have seen that the case was stronger against the truck driver, who owned the truck and actually consented to the search.

We pause now for a test question.

How would you respond to this question that recently came through my contact button:

The question that nags at me is why the state of New York never investigated Trump’s financial dealings when it has been apparent since, oh, Wayne Barrett’s 1991 book about him just how shady he is.

You can select more than one answer:

There was an unspoken agreement among New York authorities spanning more than 30 years to close their eyes to Trump’s crimes.
A book describing someone as “shady” is not grounds for opening an investigation.
During the 1990s and into the 2000, prosecutors in New York were more focused on violent crimes.
Trump was rich and the rich are never investigated.
There is no explanation. The entire criminal justice system is broken.
A more nuanced answer (“Teri must have been tired when she came up with these.”)

Here is a story I’ve told before:

Here’s the thing about lawbreakers. They get away with it—until they don’t. This is particularly true of crimes that happen behind closed doors without witnesses, but it also happens with crimes committed in public. I knew of one criminal defendant who earned his living running drugs from one place to another. He got 20K per run. That was about 20 years ago, so account for inflation when you consider how much he earned for relatively little work. He would pick up a package at point A and deliver it to point B and collect his payment.

Pro tip: If someone offers you 20K to deliver a package, don’t do it.

Anyway, he ran these packages for a long time. Then one day he was in a diner with a buddy. The guy at the table next to him was a cop. He and his friend were whispering and using the kind of slang that most people don’t understand. But they whispered a little too loudly. The cop both heard and understood. Yup. That was how he got caught. He had been thinking about retiring, but he pushed his luck a little too far.

I have observed that most people get caught when they push their luck a little too far.

Prosecutorial Discretion and Allocation of Resources

Prosecutorial discretion is also rooted in practical considerations. Even with only fraction of crimes reaching the desks of prosecutors, there are not enough resources to charge every crime that comes to prosecutors.

I mentioned last week that more than 4,500 behaviors are designated as crimes in the federal code, and most criminal prosecutions happen in state court. In the federal system alone, it is common for more than 50,000 criminal cases to be tried in a given year. Courts are working at capacity and prisons are filled.

To prosecute every crime that comes to the attention of prosecutors would require allocating far more resources to prosecutors and building more prisons, and as it is, the United States is consistently ranked among the countries with the highest prison population.

The purpose of criminal law is to protect people from harmful behavior. Punishment is the intentional infliction of pain on another person. Therefore, it’s worth pausing to consider whether criminal punishments achieve the goal of criminal law.

Someone recently asked me this:

Why are some people prosecuted for copyright infringement, and others just sued for copyright infringement?

Copyright infringement is a crime. It is also a cause of action, which means you can sue someone for it. Other offenses, like fraud, are both crimes and causes of actions. So if you defraud someone you can be prosecuted. You can also be sued by the person you defrauded.

Among the differences between criminal and civil actions are (1) who initiates the action, (2) different standards of proof, and (3) possible remedies.

In a criminal proceeding, the government files the charges. In a civil proceeding, a citizen brings the lawsuit.

In a criminal proceeding, the standard of proof is “beyond a reasonable doubt,” the highest level. In civil cases, the standard of proof is usually preponderance of the evidence, the lowest level. (Preponderance of the evidence means “more likely than not” or “there is a 51% likelihood.”) Moreover, a defendant has heightened protections in a criminal trial.

This means you are more likely to win in civil court than criminal court on the same facts.

Moreover, the remedies are different. The general idea behind a lawsuit is to make the injured person whole, generally by forcing the person who did the injury to pay the cost of the injury. Lawsuits can also be used to stop a person from being a nuisance. If your neighbors constantly have parties until 3:00 am, you can call the police and try to press charges, or you can go to court and seek an injunction to prohibit your neighbor from continuing the nuisance behavior, or both.

If you are defrauded, you can call the authorities and press charges or (if you can find the person) you can bring a lawsuit to recover your money. Sometimes those convicted are required to pay restitution to their victims, but often the best way to get reimbursed for losses is to bring a civil suit.

A prosecutor told me once that when civil litigation gets heated, lawyers will often try to initiate criminal proceedings against their opponents. He said he stays out of those squabbles. (Fact: The practice of civil law is not civil.)

Two theories of Criminal Law

The first theory is that the real problem is street crime: Theft, vandalism, burglary, gang killings, etc., and resources should be used in policing communities. (This is the view generally held by conservatives.)

The second theory is that the real problems are financial and white-collar crimes: Resources should be used to prevent corporate wrongdoing and what we think of as street crime can be better resolved through mental health and community services. (This is the view generally held by liberals.)

Here are your test questions

This one is multiple choice:

“A person in Texas was jailed for something trivial. A person in California did something far worse and is out on bail. How can that be?

How would you respond?

There is no fairness. The system is hopelessly broken.
The people in Texas elected lawmakers with different attitudes toward criminal law than the people in California.

Here are two essay questions:

Is it possible that our theories of punishment are outdated? Spanking children, for example, went out of style when medical and mental health professionals concluded that such punishment creates more aggression in children.

Why do we even have criminal law? Can we just do away with it? Is there a way to control or reduce crime through civil actions, interventions, social programs, civil remedies, and other actions that do not involve the government punishing people?

And now class is dismissed.

Click here to return to the main page