criminology: connecting theory, research, and practice chapter 2 crime and criminal law ©2012, the...

Criminology: Connecting Theory, Research, and Practice

Chapter 2

Crime and Criminal Law

©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

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Origins of U.S. Law

Founding Fathers of the United States adopted legal system and many laws of England

Common law: Process by which laws are created Laws are created by legislation Laws are interpreted by the courts


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Origins of U.S. Law


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Origins of U.S. Law: Principles Adopted from England

Principle of legality For an act to be a crime, there must be a law

criminalizing the action at the time it was committed Criminal laws cannot be retroactive under English and

U.S. law


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Principle of intent (mens rea) For an act to be a crime, the person committing the

act must have intended to commit it This does not mean the person had to intend to

commit a crime, per se People may be held responsible for the

consequences of acts they intended to commit, even if they did not intend the consequences

Mere intent to commit a crime is not a crime Someone suffering diminished responsibility cannot

be assumed to have the element of intent


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Punishment For an act to be a crime, some punishment must be

specified A statute that outlined a behavior that is against the

law but did not specify the punishment for violations would not be enforceable


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Criminal and Civil Law

Criminal law Violation is an act against the state or federal

government Government files charges against the defendant and

tries the case

Civil law Violation is an act against the person, organization, or

agency that is harmed Plaintiff brings suit against a defendant


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It is easier to get a conviction in civil than in criminal court Rules of evidence are more lenient Criteria for determining responsibility are less onerous

Penalties differ In a civil lawsuit, the defendant may be ordered to pay

the plaintiff a sum of money This is not punishment but compensation

There is less stigma associated with civil than with criminal convictions©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

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Crime in Early England and Its Impact on U.S. Law

Prior to the Norman Conquest, crimes were treated as disputes between aggrieved parties

William the Conqueror used the criminal law as a tool to unify England under a single monarchy Laws against theft Laws against trespass and poaching Laws against vagrancy


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Theories of Criminal Law Creation

Consensus theory Emile Durkheim Criminal law is the codification of shared customs and

values and reflects a consensus of social values In reality, it appears that what constitutes crime and

deviance is the result of a political process, not a simple reflection of agreed-upon ideas of right and wrong


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Societal needs theory Jerome Hall Judges and legislators create new laws to meet the

perceived needs of society that are not addressed by the current law

However, this does not address the question of whose needs within society are being met; for a complex modern society, not everyone shares the same basic needs


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Ruling class theory Karl Marx, Max Weber The law is a reflection of the interests and ideologies

of the ruling class (those who control the economic resources and political power)

This theory explains laws that are passed against the wishes of the ruling class by arguing that even when laws are against the short-term interests of the ruling class, they are essential for purposes of legitimacy

However, the ruling class is not a homogeneous group with completely shared interests


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Pluralist theory Lawrence Friedman Interest groups within society compete with each

other to ensure the passage of laws in their favor However, this theory does not explain how to

determine which groups are dominant and can exert enough social force to create laws

It also assumes that either all judges represent the same interests or all are influenced by the same exerted forces


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Structural contradictions theory William Chambliss Builds upon the existing theories but also explains

facts they fail to account for Argues that structural contradictions are built into a

society’s political, economic, and social relations; these contradictions generate conflicts that create dilemmas; legislators and judges attempt to resolve the dilemmas through the passage of new laws and the reinterpretation of existing law


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A Structural Contradictions Model of Lawmaking

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Racism and Sexism in U.S. Criminal Law

Historically, criminal law has played a central role in institutionalizing race and gender discrimination

Many laws were originally focused on the oppression of particular ethnic groups

There is overwhelming evidence that minorities are disproportionately subjected to search and seizure laws and are sentenced to prison more often and for longer periods than whites for the same offense


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In the 1800s and early 1900s, U.S. courts upheld the right to discriminate against women

Laws began to change only after women both collectively and individually violated the existing laws and demanded justice

Although changes have been seen, women still do not enjoy equality under the law


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Racist laws in the United States date back to laws legitimizing slavery as an institution

Laws legitimized discriminatory behavior, restricting the freedom of blacks for a hundred years after slavery itself was abolished

In the 1954 case of Brown v. Board of Education, the U.S. Supreme Court decided that segregated schooling was unconstitutional

The differential treatment of blacks and whites in the criminal justice system may be the most blatant institutionalized form of discrimination today©2012, The McGraw-Hill Companies, Inc. All Rights Reserved.

criminology: connecting theory, research, and practice chapter 2 crime and criminal law ©2012, the...

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