CHAPTER ONE
CRIMINAL LAW: PURPOSES, SCOPE, AND SOURCES
Learning Objectives
After reading this chapter, students will be able to:
1. Identify the branches of government, and their relationship to the criminal law.
2. Describe the difference between public law and private law, including the difference
between criminal law and tort law.
3. List the reasons people commit crimes, and why they do not.
5. Know the meaning of police power.
7. Know the meaning of the phrase nulla poena sine lege.
8. List and describe five specific constitutional limitations on the power to create a criminal
law.
9. Define circumstances that would make a criminal law a status crime.
10. Trace the origin of the common law to its place in criminal law today.
Lesson Plan
Correlated to PowerPoints
I. Important Concepts in Criminal Law – Assignment 1, 3
Learning Objective 1: Identify the branches of government, and their relationship to the
criminal law.
Learning Objective 2: Describe the difference between public law and private law, including
the difference between criminal law and tort law.
Learning Objective 3: List the reasons people commit crimes, and why they do not.
A. Law as the will of the people within a democracy
1. Democracies seek to achieve their goals through laws that balance the
3. Through the three branches of government, our laws are enacted,
4. Laws are enforced in the United States by officials in each of the three
branches of government. They are: legislative, executive, and judicial
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b. Executive: responsible for enforcing and administering the laws
c. Judicial: trials occur in courts laws; are interpreted via a process
called judicial review
B. United States
1. State judicial system
a. State trial courts: jury trials occur and convictions entered
b. State appellate courts: criminal cases appealed through the state
appellate courts and possible also to the “top tier,” usually referred to
as the state supreme court
Media Tool
“United States Supreme Court”
http://www.supremecourt.gov/
o Website of the U.S. Supreme Court
o Discussion: Walk through the website and have students
familiarize themselves with the site. Discuss the importance of
Supreme Court decisions. Identify some recent decisions and how
they may impact criminal justice.
2. Federal judicial system
a. United States Supreme Court
i. Certiorari: It is a request of the Court to hear a case. If the
Court agrees, it sends a written order to the lower court for its
case materials. If a writ is denied, the conviction is final but
other post-convictions means of relief may also exist.
b. Federal district courts: typically serve as federal trial courts and are
organized into eleven circuits, plus the District of Columbia and
Federal Circuits. Each circuit also has an appellate counterpart to
address appeals from the district courts in the circuit.
3. Public law: laws that apply to everyone in a given jurisdiction
a. Public law enforcement agencies (police, prosecutors, courts,
corrections) make up the criminal justice system in England and the
United States.
C. Substantive criminal law: laws that define and regulate criminal conduct
1. Criminal wrong – state and public have a declared interest
2. Civil wrong – private wrong (contract violation)
D. Criminology and criminalistics are fields that are separate from but related to
substantive criminal law.
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2. Forensics: science and scientific testing of evidence with results used as
evidence in criminal court
Class Discussion/Activity
Have students work together as a class or in small groups to create a list of
behaviors that are considered immoral or wrong but are not considered
criminally wrong. Discuss why such conduct is not considered criminal
even though there’s societal consensus that the conduct is unacceptable.
Discuss whether some of the conduct should be made criminal. Why has
some conduct, over time, been decriminalized, such as adultery,
blasphemy, using birth control, abortion?
E. Criminal law and moral law
1. Criminal laws are strongest when they reflect the moral and ethical beliefs
of the society. When many believe that something is morally wrong and
criminal, the law is strengthened.
2. Moral law attempts to perfect personal character, whereas criminal law, in
general, is aimed at misbehavior that falls substantially below the norms of
the community.
3. Society uses many sanctions besides criminal law to encourage people to
behave properly. Examples include regulations and peer pressure
Class Discussion/Activity
The criminal and civil law are only two ways of addressing wrongdoing.
Have students list other less formal ways that society relies on to govern
our behavior, such as peer pressure, expectations of family members,
school regulations, and religious teachings. What are the strengths and
weakness of those other approaches?
II. Goals and Purposes of Criminal Law – Assignment 5
Learning Objective 4: Understand the four generally recognized goals of the criminal justice
system.
A. Goals and purposes
1. The U.S. Constitution is the supreme law of the United States.
a. Colonial times through WWI, criminal laws focused on most
serious crimes as society was still agrarian. Most believed that crime
2. The criminal justice system has generally recognized goals and purposes:
a. Discourage and deter people from committing crimes
b. Protect society from dangerous and harmful people
3. Deterrence is a major goal of the criminal justice system but crime rates
have fallen due to the aging of the crime population and falling drug and
alcohol usage.
Class Discussion/Activity
Have students break into small groups and show them how to find a well-
known U.S. Supreme Court case on their phones using the Lexis-Nexis or
Westlaw service of the institution. Try starting with Miranda v Arizona,
and then have them practice using key terms to find cases dealing with
specific topics
III. The Permissible Scope of Criminal Laws in the United States
Learning Objective 5: Know the meaning of police power.
Learning Objective 6: Identify the general limitations on the exercise of the police power by
government.
A. To prevent misuses of the criminal justice system, in the United States
constitutional limits are placed on the power of government to regulate the
conduct and lives of its citizens through the use of criminal laws.
B. Tenth Amendment to the U.S. Constitution states that rights not delegated or
prohibited reside with the people and states.
C. The use of the police power to maintain public order
1. States enact criminal laws and establish a criminal justice system under
the police power of that state.
2. The term police power refers to the broad legislative power of a state to
pass laws that promote public health, safety, and welfare.
D. Limitations on the police power of a state to regulate conduct
1. Through the use of the police power, the state regulates the conduct of its
2. There are certain limitations on the types of criminal laws a state may
enact.
3. No right is more sacred, or is more carefully guarded, by the liberty
assurance of the due process clause than the right of every citizen to the
possession and control of his own person, free from restraint or
interference by the state. However, personal freedom is not absolute and
subject to reasonable regulation.
IV. The Principle of “No Punishment without a Law for It” – Assignment 1, 2, 3
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Learning Objective 7: Know the meaning of the phrase nulla poena sine lege.
A. Criminal conduct because
2. No one can be lawfully punished unless their conduct or omission has
been clearly made a crime.
Media Tool
“The Principle of Legality”
http://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule101
o Website of the International Committee of the Red Cross
o Discussion: Have students look at website and how it defines the
principle. Ask how it is important to the Red Cross. How does
this compare to its importance in the United States?
B. The “principle of legality”
1. This principle was made part of American law by the enactment of the
Fifth Amendment.
V. Classifications of Crimes – Assignment 1, 2
A. According to source
1. Statutory, common law, administrative, or constitutional crimes
B. Felony and misdemeanor – most common classification
1. A felony is the most serious crime, generally punished by a year or more
2. A misdemeanor is considered less serious than a felony.
3. Importance of felony/misdemeanor classification
a. Felony impacts on employment, credit rating, adopting a child
VI. General Constitutional Limitations on Criminal Laws – Assignment 1, 4
Learning Objective 8: List and describe five specific constitutional limitations on the power to
create a criminal law.
Learning Objective 9: Define circumstances that would make a criminal law a status crime.
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Class Discussion/Activity
Have students work as individuals or in groups and go to the U.S. Supreme
Court Website or a similar site such as oyez.org and locate a case related
to one of the constitutional limitations on criminal law noted below. As a
class, discuss the cases they found, the importance of each, and how the
case impacted criminal justice.
A. State criminal laws
2. Laws may not violate either the state or U.S. Constitutions.
B. Ex post facto laws
2. Ex post facto restrictions apply only to criminal and not to civil laws.
4. Prohibits
a. Retroactive criminal laws
b. Laws that aggravate a crime retroactively
c. Laws that increase punishment for a crime retroactively
d. Laws that alter the legal rules of evidence and permit conviction on
less or different evidence than the law required at the time of the
commission of the offense
5. Don’t always apply
a. Not punitive in nature
i. Smith v Does 538 U.S. 84 – Sex offender registration is not
punitive.
ii.
What If Scenario
C. Bill of attainder
1. Article I, Sections 9 and 10, of the U.S. Constitution forbids Congress and
the states from enacting any bill of attainder.
2. A bill of attainder is a legislative act that inflicts punishment without the
3. Persons charged with a crime must go before a court to determine guilt.
Media Tool
“Second Amendment Gun Rights”
https://www.youtube.com/watch?v=FVJ_lA7Q6Xw
o YouTube video of Fox Interview with Pro-Gun Rights Newtown
Parent Mark Mattioli
o Discussion: Discuss the interview. Ask students if they agree with
the arguments of Mark Mattioli? Why or why not? What is the
problem with criminal legislation based on tragedies such as the
Newtown shooting?
D. The Second Amendment and gun control
1. District of Columbia v Heller case
a. Second Amendment protects an individual’s right to own and
possess firearms, at least as applied to federal criminal laws.
What If Scenario
The city of Anderson passed an ordinance making it a crime for a person(s) to refuse to leave
after a police officer ordered them to do so, whenever a nearby group was causing “serious
E. Due process, “void-for-vagueness,” and the “overbreadth” doctrine
1. The Due Process Clause of the Fourteenth Amendment prohibits a state
from depriving a person of life, liberty, or property without due process of
law. Requires minimum standards for fairness and (procedural D.P.) and
rights guarantees (substantive D.P.).
What If Scenario
Your city is tired of people “panhandling” from tourists. There is a lot of tourism in your city and
the city officials are afraid that “panhandling” is going to affect negatively the tourism industry.
2. The Due Process clause of the U.S. Constitution requires the use of clear
and precise language in a criminal statute or ordinance.
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3. Criminal statutes and ordinances may be held unconstitutional if in
violation of the overbreadth doctrine.
a. A vague statute or ordinance may be overbroad if it leaves open
4. Although the “void for vagueness” “overbreadth” tests are separate and
5. U.S. Supreme Court declares residual clause in ACCA as vague because it
defines as an unenumerated felony as violent if there is a substantial risk
of injury to someone.
Media Tool
“Let’s Not Make it a Crime to Be Homeless”
http://www.uscatholic.org/homelessness
o United States Catholics Website
o Discussion: Discuss the issues with homelessness and how
legislation avoids making it a status crime.
F. Status crimes
1. The U.S. Constitution forbids a state from making a “status” or a “chronic
condition” a crime in itself.
2. Such a statute would violate the Eighth and Fourteenth Amendments of
the U.S. Constitution.
What If Scenario
A federal law is passed stating that people in same-sex marriages do not have the right to tax
G. Equal protection of the laws
1. The Equal Protection Clause of the Fourteenth Amendment requires that
VII. Sources of Criminal Law
Learning Objective 10: Trace the origin of the common law to its place in criminal law today.
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Class Discussion/Activity
Have students work as individuals or in groups and search for the history
of criminal law in your state. How was the criminal law developed? What
are some of the important cases regarding criminal law in your state’s
history?
A. Common law crimes
2. Judges formulated the common law crimes of England that served as
precedent for future cases.
4. There are no federal common law crimes.
5. Many states have abolished common law crimes.
B. Statutory and administrative crimes
1. After the American Revolution, state legislatures began converting
common law crimes to statutory form.
3. Congress and most state legislatures may delegate to an administrative
agency the power to make rules.
5. Federal and state administrative orders and regulations are published to
inform the public.
Lecture Notes
Every state will have laws categorized as felonies and misdemeanors. Some states will also have
a category in between called gross misdemeanor. Misdemeanor offenses are usually punishable
by a fine, community service, probation, and/or maybe a short jail time. Felony offenses can
also be punishable by a fine, community service, probation, and/or depending the severity level,
might also include prison time. Some states have also recognized the need for a category of
If you intend to have students read actual court opinions as part of the assignments or
Students will also need an introduction to some of the legal lingo they’ll encounter while reading
the opinions. They may be uncertain about who the appellant is and who the appellee is. What
is a petitioner? What is a writ of certiorari? How does a case progress from the trial court
through the appellate courts? They may never have been introduced to these words and concepts
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or their memories need to be refreshed. It’s a good idea to review some of this material with
students before you assign them a case to read. Even if you are assigning edited cases or case
It is important that students understand the impact of moral law on criminal law. Discuss the
reasons for vice laws. In many cases vice laws are founded in moral law. A discussion regarding
why prostitution is illegal in most states can serve as a good foundation for understanding the
Discuss with students the constitutional limitations on the power to create a criminal law.
Although they are treated separately in the chapter the issues of ex post facto laws, bill of
attainder, due process, void for vagueness, overbreadth, status crimes, and equal protection of the
laws all address concerns about the potential for the government to infringe on the rights of the
Discuss with students what they believe is the job of the criminal justice system in your city,
town, state. Generate a list based on the discussion. Ask students to open their text and find the
identified goals and purposes of criminal law listed in the chapter. Discuss with students the
Key Terms
certiorari – A form of review of lower court decisions by the Supreme Court. Certiorari is
discretionary with the Court, and most petitions requesting it are denied. Traditional legal
doctrine is that no conclusion can be drawn from a denial of certiorari. (p. 5)
habeas corpus – A writ that compels the authority holding a person in confinement to explain
the basis for that confinement. Used frequently as a method for state and federal prisoners to
attack the constitutionality of their imprisonment. Both the federal government and states have
some form of a habeas corpus law, often called post-conviction relief laws. (p. 5)
public law – Criminal law in England and the United States. (p. 5)
tort – A non-contractual civil wrong. (p. 5)
police power – The inherent power of every state and local government, subject to
constitutional limits, to enact criminal laws. (p. 11)
nulla poena sine lege – The principle of legality; no act should be made criminal or punished
without advance warning in the form of legislative act. (p. 13)
felony – The most serious grade of crime; usually includes possibility of prison sentence. (p. 14)
misdemeanor – Offenses that carry punishment of a degree less than felonies. Usually
misdemeanor crimes do not involve prison sentences. (p. 14)
ex post facto – Criminal law made retroactive to punish prior conduct not criminal when done.
Prohibited by Article I, Sections 9 and 10, of the Constitution. (p. 17)
“void for vagueness” doctrine – The constitutional law doctrine that invalidates criminal laws
written in such a manner as to make it unreasonably difficult for a defendant to know whether or
not conduct is prohibited by the law. (p. 20)
“overbreadth” doctrine – The constitutional law doctrine that invalidates laws that regulate
conduct so broadly as to interfere with individual freedoms. (p. 21)
status crime – Criminal laws that punish a status, such as drug addiction, with no act
requirement. (p. 22)
common law crime – Crime created by judges. (p. 25)
Magna Carta – The document signed by King John in 1215 giving certain rights to his nobles.
Successive kings affirmed this charter before Parliament. (p. 26)
administrative crime – Crimes created by government administrative agencies under specific
authority and guidelines granted to the regulatory or administrative agency by law of that state or
the federal government. (p. 29)
Assignments
1. Have students consult their state’s criminal statutes and compare the range of
punishments for misdemeanor and felony offenses. They can access those statutes in any
number of different ways on the Internet. One of the easiest ways is to simply type in a
2. Have students go to their State’s legal website and conduct research on both
Misdemeanor crimes and Felony crimes. See if their State has a legal classification in
between Misdemeanor and Felony. For example, the State of MN has a term called
Gross Misdemeanor crimes. Have your students list several examples of Misdemeanor
and Felony crimes. Discuss the penalties for these crimes. Do they agree with these
penalties? Are these penalties always implemented or are lesser sentences given out?
3. Individually or in small groups have students research victims’ rights in several different
4. Individually or in small groups, assign students to research one of the constitutional
5. The goals of the criminal justice system are important to criminal law as they identify the
reasons for criminal law. Have each student/small group research criminal law in your
Case Analysis and Writing Exercises
1. Most people are aware that using a credit card to purchase merchandise involves a fee paid
by the seller to the credit card company. In some cases, the merchant passes this fee on to
the purchaser by charging a higher price for merchandise bought using a credit card. In
other cases, merchants offer a “discount” for cash purchases.
2. Los Angeles has a substantial population of homeless people. The city has sometimes
passed laws making it a crime to engage in conduct that appears to be related to
homelessness. One such law is Municipal Code section 85.02. It states that it is a crime
to use a vehicle “as living quarters either over-night, day–by–day, or otherwise.” Do you
see constitutional problems with this law? What might they be? See Desertrain v. Los
3. As we saw in this chapter, most courts have refused to hold that SORNA sex offense
registration provisions, when applied to sex offenders whose crimes pre-dated SORNA,
violated the ex post facto clause of the U.S. Constitution. However, states have their own
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constitutions, many of which include ex post facto clauses similar to the federal clause. In
Doe v. Department of Public Safety and Corrections, 62 A.3d 123 (Md. 2013) the highest
court in Maryland considered the constitutionality of the Maryland sex offender
registration laws. How was that court’s decision different from decisions under SORNA?
4. Is driving while intoxicated (DWI) a “victimless” crime? It is true, is it not, that one can
commit the crime without injuring any “victim”? Does that mean statutes that order