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.