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Sentence length may or
may not correlate with a decrease in crime. Criminal punishment
has four basic goals: rehabilitate the offender; restrain the
offender from committing further crimes; exact revenge against
the offender; and deterring the offender and the general public
from criminal behavior. It is unclear if longer sentences
actually convince a particular offender not to commit another
crime. Recidivism rates are high, thereby suggesting that the
average offender does not "learn his lesson" in prison and
refrain from further criminal activity. One thing that does
correlate positively with a reduction in criminal activity is
increasing age; people under age thirty-five years commit most
crimes. Therefore, it could argued that sentences that keep
offenders in prison until middle age will reduce overall crime
rates.
In addition, more time
in prison could allow for more complete rehabilitation because
the offender could stay in treatment programs for a longer
period of time. Batterers are more likely to change the
controlling behavior that leads to domestic abuse if they
participate in long-term intensive educational programs. Sex
offenders may benefit from multi-level treatment plans spread
out over a period of time. In prisons with educational programs,
offenders who stay long enough may receive high school or
college degrees, or learn a trade, which will equip them to lead
a law-abiding life. However, some states do not provide adequate
resources for these rehabilitation programs.
Longer sentences do not
appear to deter the general public from criminal activity. Many
times, it is the perception of the likelihood of getting caught
that deters a person from criminal activity, not the length of
the sentence. Many crimes are committed on impulse, and the
threat of a lengthy sentence does not even enter the offender's
mind.
Finally, the cost of
longer sentences in terms of tax dollars is very high. New
prisons and jails must be built to accommodate all of the
offenders who must be incarcerated under sentencing guidelines
and mandatory minimum sentences.
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In some circumstances a
"crime" can be punished before it occurs. Many jurisdictions
have either a general "attempt" crime or individual statutes
that make attempted murder or attempted robbery or the like
crime. The purpose of these statutes is to punish an individual
who has shown himself to be dangerously inclined to commit a
crime without waiting until the criminal act is actually
completed. In order to convict a person for an attempted crime,
the government must prove beyond a reasonable doubt that the
person had the intent to do an act or bring about certain
consequences that would amount to a crime, and that he took some
step beyond mere preparation towards that goal.
Whether the offender
has the intent necessary to be convicted of attempt depends on
the mental state required by the underlying crime. If a person's
actual intention at the time he or she attacked the victim was
to cause bodily harm, he or she cannot be convicted of attempted
murder if the victim does not die. (However, he could be
convicted of the actual crime of murder if the victim died, even
if his intention was only to cause bodily harm.) Likewise, a
person whose plan to steal fails, can be convicted of attempted
theft, which requires the intention to deprive another of his
property permanently, only if he or she had the same intention
at the time the crime was attempted.
Like most crimes,
attempt requires a "bad act" as well as a bad intention.
Therefore, the government must prove the offender engaged in
conduct that tended to affect the crime. The exact nature of the
act needed to meet this "preparation" requirement varies from
case to case, depending on individual facts. For example, a
person who checked in at the ticket counter of an airport and
sat in the waiting area with a gun in his pocket was convicted
of the crime of attempting to board an airplane with a gun. A
person who planned to rob a bank messenger and drove around
looking for him on his regular route, but did not find him, was
not guilty of attempted robbery.
The punishment for the
crime of attempt can be the same as the punishment for the
completed crime. However, most jurisdictions make some
distinction and provide for a lesser punishment for attempt. For
instance, some states provide that the punishment for attempted
first-degree theft will be the same as the crime of
second-degree theft. The Model Penal Code, which is a source of
many states' criminal statutes, generally requires the same
punishment for attempt as the punishment for the underlying
crime on the rationale that a person who attempts a crime has
shown himself to be just as much in need of corrective sanctions
as the one who actually completes a crime.
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No, the punishment for
drug crimes depends not only on the criminal conduct of the
offender but also on the classification of the drug. Federal
sentencing guidelines begin with forty-three base offense levels
and add or subtract a few levels depending on certain specified
criteria. The higher the offense level, the harsher the
sentence.
The base offense level
under the federal guidelines differs for different drugs and for
different amounts of the same drug. For instance, if the
conviction is for the crime of manufacturing 300 kilograms of
heroin, the base offense level is forty-two. However if the
conviction is for manufacturing 300 kilograms of cocaine, the
base offense level is thirty-eight. Crack is a form of cocaine
and listed on the same schedule of controlled substances.
However, the quantities of crack needed to impose a certain
sentence are much less than the quantity of powdered cocaine. A
person convicted of the crime of delivering 5 grams of crack
will receive a sentence in the federal system of five to forty
years. To receive that same sentence, a person would have to be
convicted of delivering 500 grams of powdered cocaine.
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The crime of drunk
driving is generally defined in two ways: (1) having a blood
alcohol content above the limit set by law, or (2) driving under
the influence of alcohol. To find a person guilty under the
first definition, a jury must be convinced beyond a reasonable
doubt that the person's blood alcohol content (BAC) exceeded a
certain amount. In most states the legal limit is .08 percent.
Therefore, if it is proved that the person's BAC at the time of
the incident was .08 percent or greater, he or she can be
convicted of drunk driving, regardless of how much alcohol was
actually consumed.
In contrast, the second
definition does not refer to any particular BAC. It focuses on
the driving behavior of the person; if it is impaired by the
person's consumption of alcohol, he or she can be found guilty
of drunk driving. Instead of presenting evidence of the BAC to a
jury, the prosecution seeking a conviction under this definition
generally presents testimony about the person's driving and
consumption of alcohol. A police officer will often describe the
impaired driving that lead him to pull the person over and the
person's ability (or lack thereof) to perform field sobriety
tests, such as walking a straight line. Evidence is also usually
presented concerning the person's consumption of alcohol and if
the jury then concludes that the prosecution has met its burden
of proof, it will convict the person of drunk driving. A
susceptible person may exhibit impaired driving after one drink
and therefore be convicted of drunk driving.
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Ordinary crime has long
been considered to be the concern of state government. States
are authorized to protect their citizens from criminal activity
by prosecution of common law and legislatively created crimes.
The federal government, on the other hand, has a limited
jurisdiction and must link any crimes it prosecutes to its
powers under the Constitution. The most commonly used powers to
support federal criminal legislation are the commerce power, the
taxing power, and the postal power. While Congress has used
these powers all along to define crimes, there has been an
explosion of federally created crimes in the last half of the
20th century. Most of the laws controlling white-collar crime,
like the RICO Act and the Victims and Witnesses Protection Act
have been passed since 1950. In addition, Congress has become
increasingly involved in the "war on drugs" with the creation of
various drug statutes. Due to the severity of the penalties,
many local prosecutors prefer to have drug charges prosecuted in
federal court rather than file state charges. Most federal laws
have as their rationale that the particular crime addressed
needs a uniform response from the whole country or that it would
be impossible to prosecute on a state-by-state basis. Federal
gun laws provide uniformity, and federal computer laws make it
possible to punish Internet crime.
The federal
Constitution has always played a role in criminal law because it
defines important individual rights that must be preserved even
in a state prosecution of a state crime. The right to a trial by
jury in open court, the right to cross-examine witnesses, the
right to remain silent, the presumption of innocence, the right
to be represented by a lawyer, and the right to be free of cruel
or unusual punishment, are part of every state legal system in
part because they are guaranteed by the Constitution. States are
required to pay for attorneys for indigent offenders, and
federal judges provide oversight to state prisons because of
these constitutional requirements.
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Most courts have rules
that prohibit disclosure of grand jury proceedings. The rules
typically apply to the government attorneys, the grand jury
members, and the court personnel. Violators of the rules can be
held in contempt of court if a case against them is proved. It
is often times very difficult to do so because of the problems
with proving the leaked information came out of the grand jury
proceeding itself and identifying exactly who made the
prohibited disclosure.
Another problem in
keeping the proceedings secret arises because the prohibition
against disclosure often does not apply to a person subpoenaed
to appear before a grand jury. Witnesses are free to discuss
their testimony with the media or with anyone else, unless the
judge expressly orders them not to.
Persons who are the
subject of a grand jury proceeding are not entitled to any
notice regarding the scope of the investigation or the nature of
the incidents under consideration. They are generally not
allowed to have an attorney present with them in the grand jury
room, but may be permitted to leave from time to time to consult
with an attorney outside the grand jury room.
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While there is a
special court system to handle juvenile crime, there is usually
not a special juvenile criminal code. Adult criminal codes are
applied in the juvenile system, but the children are not
generally accused of crimes. Instead, they are accused of
committing delinquent acts. Sentences are designed to educate
and rehabilitate children, rather than punish them. Children
cannot be locked up in adult jails except for very limited
periods of time. A child held in an adult jail must be out of
sight and sound contact with the adult inmates.
In earlier days,
special crimes that only applied to children did exist. These
crimes were the so-called status offenses and punished behavior
that would not be criminal if committed by an adult. Status
offenses included running away from home, skipping school,
disobeying parents, and breaking curfew. The federal Juvenile
Justice and Delinquency Prevention Act made receipt of federal
funds conditioned on eliminating status offenses, and most
states have done so. However, these behaviors may still trigger
an investigation by child protective services to determine if
the child needs assistance from the court or social service
agencies.
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Probation is itself a
criminal sentence; parole is one way of completing a criminal
sentence of incarceration. In most jurisdictions, first-time
offenders are seriously considered for probation, particularly
if their offense was nonviolent. A person placed on probation is
typically given a jail or prison sentence that is suspended as
long as the person abides by the terms and conditions of
probation. Common terms require the person to contact a
probation officer once a week and to work, go to school, or look
for work. Other terms include required attendance at alcohol
treatment or narcotic-abuse programs, and educational classes on
such subjects as anger management or good driving. The probation
term is usually spelled out up front and once the person has
completed that period of time, the sentence is over and he or
she is free of court supervision.
The parole board that
oversees prison populations grants parole. Typically the
offender has been sentenced to an indeterminate number of years
in prison. After the offender has served the minimum amount of
time authorized, the parole board decides if the offender is
ready to be released from incarceration to finish out the
sentence on parole. Parole boards typically consider the nature
and seriousness of the crime, the views of the victim, the
progress the offender made in prison, how crowded the prison is,
and whether the offender has a someplace to go in the community.
If the parole is granted, the offender will have to abide by
terms and conditions similar to those for probation for a
certain period of time. If he or she completes the parole
period, the criminal sentence is discharged.
Both probation and
parole can be revoked if the offender commits another crime or
seriously violates one of the conditions of release. The
revocation proceeding requires written notice to the offender,
an opportunity to explain and call witnesses, an impartial
decision-maker, and a written decision with the reasons for the
revocation stated. A revoked parolee goes back to prison, and
the offender whose probation is revoked begins serving the
suspended sentence.
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A district attorney or
prosecutor has the discretion to decide which crimes should be
charged. In a typical scenario, the police investigate a crime
and send a report to the prosecutor. The prosecutor then must
decide whether to bring criminal charges against the subject of
the investigation. The first thing the prosecutor looks for is a
legally sound case. The case must not have any obvious defects
that will get it thrown out of court, such as violation of the
defendant's constitutional rights or destruction of evidence
crucial to the defense. The prosecutor next decides if there is
reliable evidence of the person's guilt. The prosecutor must
determine that the amount of evidence, and the quality of
evidence, makes conviction probable. Finally, the prosecutor
decides if the case fits in with the office's policy objectives.
If pre-trial diversion is available, such as an agreement by the
defendant to undergo drug treatment in return for a suspended
sentence, the prosecutor may prefer to dispose of the case that
way. The defendant's culpability may be lacking because he acted
out of a worthy motive, or has mental defects. Finally the
prosecutor must decide if he has the resources to pursue the
case or if it is a low priority for that particular office.
Many prosecutors are
elected officials and as such can be voted out of office if the
public does not like the emphasis of their office. Some
prosecutors, for instance, may focus most of their efforts and
the office's resources combating property crime, while others
may focus on domestic abuse. If the electorate does not like the
particular goals of the prosecutor, it can end the practice by
failing to reelect the individual or by seeking to have them
otherwise removed from office.
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Rape is often used as a
generic term for unwanted sexual acts. However, its common-law
definition required the sexual act to be intercourse, the rapist
to be a man, and the victim to be a woman, other than his wife.
Furthermore, the act had to be done by force or the threat of
force. Common-law rules often required the rape to be
corroborated by independent witnesses to negate the offender's
defense of consent.
Many modern-day codes
no longer use the term "rape" but instead use sexual abuse or
sexual assault to define the prohibited acts. Traditional rape
is covered by these statutes and may be designated sexual abuse
in the first degree. However, most sexual assault statutes cover
more kinds of sexual acts and apply to homosexuals as well as
heterosexuals. Husbands can generally be charged with sexual
assault of their wives, although they may receive a lighter
sentence than non-marital sexual assault. Lesser offenses, such
as unwanted touching or lascivious acts may be included in the
definition of sexual assault.
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Traffic violations can
be felonies, misdemeanors, or infractions. Felonies and
misdemeanors are crimes, but infractions are usually not thought
to be part of the criminal justice system. Driving over the
speed limit is usually classified as an infraction in those
systems that use the infraction category and as a minor
misdemeanor in those systems that do not. If driving over the
speed limit is classified as a misdemeanor, it is technically a
crime, but often such crimes are excluded from consideration in
a person's criminal record. Whether speeding is an infraction or
a crime, it is usually punished by a fine. A common scheme is
for the fine to increase in proportion to the amount over the
speed limit for which the ticket is written. Most jurisdictions
tell the speeder the amount of the fine right on the ticket and
often give instructions for pleading guilty and paying the fine
by mail. The offender may have to pay a special fee to get a
trial on the ticket and may not be entitled to a jury trial.
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The early definition of
white-collar crime focused on the status of the offenders when
it identified them as professionals or businessmen. However, the
current definition of white-collar crime focuses on the actions
committed and not on the vocation of the offender. White-collar
crime is using illegal acts involving deceit to obtain property
or services or to gain a business or professional advantage.
Drug dealers have been charged with the "white collar crime" of
mail fraud when they have delivered controlled substances
through the mail. A printer was convicted of securities fraud
when he used information he obtained in the course of printing
corporate documents to gain an advantage in the stock market.
The RICO Act is
generally thought of as a white-collar crime prevention statute.
It punishes anyone who engages in a pattern of racketeering to
generate income to buy a business or to conduct a business. The
pattern of racketeering refers to at least two criminal acts
listed in the statute that have a relationship to each other and
occur within ten years of each other. Originally passed to
control organized crime, RICO has been applied to drug dealers,
and other non-organized crime defendants.
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Our criminal law has
its roots in medieval England. Under early common law, criminal
behavior was considered a breach of the King's peace and
therefore a harm to society in general, which required
governmental action. Only the major felonies, such as treason,
rape, larceny, battery, kidnapping, murder, and arson were
prosecuted and the only sentence was death. Today, criminal law
is a vast and complex body of statutes, rules, and judicial
decisions that touch nearly every aspect of our lives. State,
federal, and municipal criminal codes have divided the old
common-law felonies into many separate crimes and now provide an
array of sentencing options. In addition, new crimes have been
defined addressing drugs, automobiles, businesses, organized
crime, computers and other modern situations.
A crime must be clearly
defined in order to pass scrutiny under the federal
Constitution, which prohibits the government from taking a
person's life, liberty, or property without due process of law.
A vague description of the crime or a lack of specific elements
needed for committing the crime leaves a person without
knowledge of exactly what is prohibited. In order to be a crime,
the prohibited conduct must include both a "mens rea" or guilty
mind and an "actus reus" or bad act. Accidentally hitting
somebody when you draw back the baseball bat to swing at a ball
is not a crime because it lacks the guilty mind. Wishing someone
would drop dead is not a crime because it lacks the bad act.
Examples of crimes and topics of interest in criminal law
include:
Drug violations
are criminalized in both federal and state criminal justice
codes, which typically list controlled substances that may not
be used except under a doctor's care. When a person uses one
of these substances in violation of the permitted uses, he or
she has committed a crime.
DWI/DUI
means "driving while intoxicated" or "driving while under the
influence" and refers to the crime of drunk driving. This
crime usually includes driving while abusing drugs and the
operation of other kinds of motorized vehicles, such as boats.
Drunk driving is defined by each state's criminal code.
Federal
jurisdiction refers to prosecution of crimes under federal
law. Crime has traditionally been thought of as the domain of
individual states, but Congress is authorized through its
powers under the commerce, postal, and taxing clauses in the
Constitution to make laws on crime in those areas. While a
person can be prosecuted for the same incident under state and
federal law, most often the choice is made to bring the action
in state or federal court based upon resources available to
investigate and prosecute the crime and on sentencing options.
Felonies are
crimes punishable by over one year in prison. Most felonies
are also punishable by a fine, but the critical determination
for considering a crime a felony is the prison sentence.
Fraud is not
a separate crime, but is an important part of property crimes
such as embezzlement and false pretenses. The lawbreaker must
knowingly and intentionally deceive the victim in some manner
for the fraud element to be satisfied.
Grand jury
proceedings are a method used by prosecutors to bring
criminal charges against a lawbreaker. A prosecutor will often
convene a grand jury when investigating complicated criminal
matters.
Juvenile crimes
are typically called delinquent acts and handled in a
different system than adult crime. The major purpose of the
juvenile system is to rehabilitate the offender, and many
sentences require counseling or other family intervention.
Juvenile court jurisdiction typically ends when a person turns
eighteen.
Misdemeanors
are crimes with a punishment of less than one year in prison.
Many crimes, such as theft, have degrees of seriousness with
the most serious being felonies and the less serious being
misdemeanors. Procedures used in misdemeanor prosecution may
be abbreviated.
Parole and
probation are used in the sentencing phase of the
criminal-justice system. Parole refers to the condition of
supervised release that occurs after an offender has spent
time in prison. Probation is a sentence imposed instead of
prison and is usually subject to terms and conditions designed
to make the offender a law-abiding citizen.
Prosecution
refers to the government's case against the lawbreaker. A
prosecutor - the lawyer presenting the government's case - has
complete discretion to decide whether to bring a charge
against an alleged offender and must prove all charges beyond
a reasonable doubt.
RICO Act
refers to the federal Racketeer Influenced and Corrupt
Organization Act passed in 1970 as part of a larger organized
crime bill. The purpose of the act is to combat the
infiltration of organized crime into legitimate businesses,
but also it has been used to prosecute individuals other than
just those associated with organized crime.
Sex offenses
include much more than the common-law crime of rape, which was
limited to unlawful sexual intercourse by a man against a
woman through the use of force or the immediate threat of
force. Most states prohibit lesser invasions, such as unwanted
touching, as well as permit prosecution of spouses for sexual
assault. In addition, sex offenses include crimes that are
defined based on the status of the victim, such as a child or
therapy patient.
Traffic
violations may be crimes or may be classified as
violations and not considered part of the criminal law. Where
they are crimes, they are typically considered the lowest
level of misdemeanor and are generally only punished by a
fine. However, some traffic violations can rise to the level
of more serious crimes, such as vehicular homicide or leaving
the scene of an accident.
Victims' rights
refers to a body of emerging law that focuses on the needs and
concerns of crime victims. Victims now have rights, for
example, to information about the prosecution of the crime
committed against them, to receive counseling and
compensation, and to participate in the sentencing process.
White-collar
crimes refer to the group of property crimes typically
committed to gain a business or professional advantage.
White-collar crimes include mail fraud, bank fraud, securities
fraud, tax crimes, and environmental pollution.
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Disclaimer
This publication and
the information included in it are not intended to serve as a
substitute for consultation with an attorney. Specific legal
issues, concerns and conditions always require the advice of
appropriate legal professionals.
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