Definition/Purpose of Criminal Law

Criminal Law

“The body of law defining offenses against the community at large, regulating how suspects are investigated, charged and tried, and establishing punishments for convicted offenders” (West, 2001, p.170).

Purpose of Criminal Law

Criminal justice researchers and professionals sometimes offer differing explanations for the specific purpose, or purposes, for enacting and enforcing criminal law. The generally accepted purposes behind criminal law would be to define criminal offenses, set boundaries for societal behavior, govern the orderly relationship between government and members of society, prevent harm, protect property, and maintain public order. For a statutory explanation of the general purposes behind criminal law, see N.Y. Penal Law § 1.05.

Fundamental Principles of Criminal Law

Two of the most fundamental aspects of criminal law are the rule of law and the principle of legality. These terms are defined as:

Rule of Law

Defined: 1. A substantive legal principle. 2. The supremacy of regular as opposed to arbitrary power; the absence of any arbitrary power; on the part of government. 3. The doctrine that every person is subject to the ordinary law within the jurisdiction; the equal subordination of all citizens and classes to the ordinary law of the land. 4. The doctrine that general constitutional principles are the result of judicial decisions determining the rights of private individuals in the courts. 5. Loosely, a legal ruling; a ruling on a point of law. (Thomson Reuters, 2021, p. 699)

Principle of Legality

Defined: “1. Strict adherence to law, prescription, or doctrine; the quality of being legal. 2. The principle that a person may not be prosecuted under a criminal law that has not been previously published–Also termed (in sense 2) principle of legality” (Thomson/West, 2000, p. 410).

Historical Origins and Evolutionary Development of Criminal Law in the United States

To fully understand the complex role criminal law plays in today’s U.S. Criminal Justice System requires taking a “virtual journey” to the historical origins of U.S. criminal law—traveling back in time over 4,400 years and crossing a distance of over 6,000 miles! It may seem hard to imagine, but modern American criminal law began in the ancient civilizations of Elba (modern-day Syria), Sumeria (also known as Sumer, modern-day Iraq), and Mesopotamia around 2,000-2,400 B.C.E. How is that possible, you ask? As civilizations expanded, collapsed, rose, and fell, the various criminal codes evolved–slowly at times–almost overnight sometimes. As is also true today, criminal codes were constantly being revised to meet the existing societal needs and cultural values of the societies and people affected. Here is the abbreviated version of “The Story of Criminal Law in the United States.” (NOTE: Dates are approximate with overlap and gaps at times.)

• Codes of Ebla (2400 B.C.E.): This codification of criminal offenses and procedures dates to about 2400 B.C.E. to what is today Syria — approximately 600 years before Hammurabi put together the more famous code (Sohma, 2017). See discussion below.
• Sumeria (2100-2000 B.C.E.): The Code of Ur-Nammu (named after the king of Sumeria) is generally accepted as the oldest continuously surviving codification of specific criminal offenses and proceedings. It addressed specific crimes such as murder, rape, robbery, kidnapping, adultery, assault, perjury, criminal mischief, and trespass (Mingren, 2021).
• Babylon (2000-1600 B.C.E.): More famous than some of the preceding criminal law codifications is the Code of Hammurabi (named after the Sumerian king credited with its creation). This later codification built upon the earlier codes and contained 282 specific criminal offenses and several procedural requirements (USHistory.org, n.d.). This codification was one of the earliest to contain rights and responsibilities specifically relating to women. “The U.S. Supreme Court building features Hammurabi on the marble carvings of historic lawgivers that [line] the south wall of the courtroom” (History.com, 2020, para. 15).
• Greece (650-550 B.C.E.): Two of the more famous of the historical law-givers were Solon (c. 638 – 558 B.C.E.) and Draco (around 600 B.C.E.). Around 620 B.C.E., Draco committed an Athenian code of laws to paper for the first time. His code included many strict penalties and death sentences, often for what seemed to be minor offenses. Thus, the word “draconian,” meaning harsh or cruel, is derived from his name (Loizides, 2015). Both of these historical figures are part of the friezes found in the U.S. Supreme Court (Office of the Curator, 2003).
• Rome (450 BCE-476 A.D.): It is interesting to note that even after the fall of the Roman Empire in 476 A.D., the basic principles found in the Roman codification of criminal offenses and procedures in the Law of the Twelve Tablets “survived” and became the “building blocks” for many of the later code revisions adopted by the various Germanic tribes and peoples who conquered Rome and later by the Anglo-Saxons in Britain (Cartwright, 2016; Zeidan, n.d.).
• Western Europe/Germanic Tribes (500-900 A.D.): “For all of the Germanic peoples, law… was basically not something laid down by a central authority, such as the king, but rather the custom of a particular nation (tribe)” (Stein & Glendon, 2013, para. 3). Tribalism eventually collapsed and was replaced by feudalism (governance by kings). When feudalism declined (12th-15th century), the creation and enforcement of criminal law to governments.
• Britain (1066-1700s): In 1066, William the Conqueror invaded and ultimately conquered the lands known as England. At that time, British criminal law was a mixed collection of laws from various historical sources. William is credited with creating a series of local court systems in which judges made decisions that were then shared with other judges/courts who would follow the previous holdings in their decision-making process. This system of precedents, known as common law (see §5.3.9.1), formed the backbone of the British judicial system and later became the legal system in the American Colonies and early United States (Stoebuck, 1968).
• American Colonies (1700s): The common law system, as developed and refined in Britain, remained the basic criminal law system in the American Colonies, although each colony often “tailored” specific provisions of British common law to meet the needs of its society and culture (Stoebuck, 1968).
• Early United States (late 1700s -1900): The British common law system of criminal law was retained by the individual states for some time after the United States was created. However, Louisiana, due to its historical and cultural roots in France, was the only exception as it adopted the French Napoleonic Code until 1805 when it changed to common law (Thomson Reuters, 2022). Further, common law was never adopted at the Federal level in the United States. Specific statutes enacted by Congress create all Federal substantive and procedural laws (Gray, 1943).
• Modern United States (1900-2000s): Eventually, states abolished common law and followed the practice of codifying all criminal law and criminal procedures (e.g., Kentucky, see Ky. Rev. Stat. § 500.020, 1975).
• Today, all 50 states have adopted some form of statutory criminal law. However, in some instances, the criminal code of a state does not define a term, and the state courts will draw upon the common law definition. In the 1960s, most states began to adopt some, if not all, of the provisions of the Model Penal Code.
• Influence of Native Americans: The influence of Native American culture on U.S. Constitutional Law (discussed in Historical Overview of the Creation of the U.S. Constitution from Constitutional Law Issues in the U.S. Criminal Justice System) was much greater than the influences on the evolution of criminal law in the United States. This difference was due mainly to the fact that criminal offenses and processes under English common law focused more on adversarial proceedings and governmental involvement rather than on conflict/dispute resolution between private parties (Armstrong et al., 1996).

Components of Criminal Law

Criminal law consists of two components: substantive law and procedural law (“Criminal law”: Thomson/West, 2000, p. 170). The definitions of these components and some examples can be found below:

Substantive law

Defined: “A crime that is complete in itself and is not dependent on another crime for one of its elements–Also termed substantive crime” (Thomson/West, 2000, pp. 487-488).

Examples: For Kentucky, the specific statutory criminal offenses (murder, robbery, burglary, rape, arson, etc.) are set out in the Kentucky Penal Code (Ky. Rev. Stat. § 50). For Washington, the specific statutory criminal offenses are set out in the Washington Criminal Code (Wash. Rev. Code § 9A). The Federal statutory criminal offenses are set out in the U.S. Code for Crimes and Criminal Procedure (18 U.S.C. §§ 1-6005).

Procedural law (Criminal Procedure)

Defined: “The rules governing the mechanisms under which crimes are investigated, prosecuted, adjudicated, and punished. It includes the protection of accused persons’ constitutional rights” (Thomson/West, 2000, p. 171).

Example: The following link to the Federal Rules of Criminal Procedure (National Court Rules Committee, 2024) prescribes the specific protocols and processes governing all criminal trials held in federal courts. For example, the specific processes governing obtaining and executing search and arrest warrants, criminal complaints, grand jury proceedings, indictments, initial appearances, arraignments, bail hearings, preliminary hearings, and sentencing are standardized for all federal courts and set out, with specificity, in these rules. Along those same lines, each state has adopted its own version of the rules of criminal procedure applicable to that jurisdiction. Finally, for an excellent discussion of the investigative and prosecutorial aspects of procedural criminal law involving Native Americans and offenses committed on Tribal lands, see “American Indians, Crime and the Law.”

Classification of Crime

Traditionally, four classifications have been used to divide substantive criminal law into broad categories. These four classifications are 1) crimes against persons v. Crimes against property; 2) mala in se v. Mala prohibitum offenses; 3) felonies v. Misdemeanors v.. Infractions; and 4) federal v. state offenses. See Table 5.3.

Beyond the traditional classifications set out in Table 5.3, other broad classifications of criminal offenses exist to describe various criminal activities. See Table 5.4 below:

Elements of Crime

Defined:

The constituent parts of a crime—usually consisting of the actus reus, mens rea, and causation—that the prosecution must prove to sustain a conviction. The term is more broadly defined by the Model Penal Code in § 1.13(9) to refer to each component of the actus reus, causation, the mens rea, and grading factors, and the negative of any defense. (Thomson/West, 2000, p. 222)

Act/Omission (Model Penal Code 2.01)

Actus Reus Defined:

The wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability; a forbidden act <the actus reus for theft is the taking or unlawful control over the property without the owner’s consent>. (Thomson/West, 2000, p. 12)

Mental State

Mens Rea Defined:

The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness <the mens rea for theft is the intent to deprive the rightful owner of the property>. Mens rea is the second of two essential elements of every crime at common law, the other being actus reus. Also termed mental element; criminal intent; guilty mind. Plural, mentes reae. (Thomson/West, 2000, pp. 435-436)

Concurrence

Concurrency is not so much a specific, separate, element of a crime as it is a requirement that the act and the mental element coincide.

Causation

Defined: “1. The causing or producing of an effect. 2. See Causality” (Thomson/West, 2000, p. 86).

Harm

Defined: “Injury, loss, or detriment” (Thomson/West, 2000, p. 302).

Attendant Circumstances

Attendant circumstances are additional, optional elements of a crime that, if present and proven beyond a reasonable doubt, will increase the sentence and/or re-characterize the offense. Examples of Attendant Circumstances are set out in Table 5.5.

Elements of Crime: Formula

The various elements of a crime discussed in 5.3.6 can be better understood when viewed as a “formula” bringing all of the elements together:

Example:

New York’s Murder in the First Degree law (N.Y. Penal Law 125.27) reads: “With intent to cause the death of another person, he causes the death of such person or of a third person.” Then there is a listing of 13 different attendant circumstances/situations that if proven, “elevate” murder to Murder in the First Degree.

Burden of Proof

The concept of allocating responsibility for producing evidence, and then using that evidence to convince the trier of fact to render a decision that they should prevail on the issues before the court, is known as the burden of proof. In civil cases the plaintiff must prove its case by a preponderance of the evidence. In criminal cases the prosecution (government) must prove its case beyond a reasonable doubt. Burden of proof is defined as follows:

Burden of Proof Defined:

“1. A party’s duty to prove a disputed assertion or charge. The burden of proof includes both the burden of persuasion and the burden of production—Also termed onus probandi. 2. Loosely, Burden of Persuasion” (Thomson/West, 2000, p. 79).

Civil Law

“Decisions are based upon a preponderance of evidence. The party suing (plaintiff) must prove their case by presenting evidence more persuasive to the trier of fact (judge or jury) than the opposing evidence” (Washington State Administrative Office of the Courts, n.d., para. 3).

“In a civil case, the plaintiff must convince the jury by a ‘preponderance of the evidence’ (i.e., that it is more likely than not) that the defendant is responsible for the harm the plaintiff has suffered” (Administrative Office of the U.S. Courts, n.d.-a, para. 6).

Criminal Law

The U.S. Court of Appeals for the Ninth Circuit has adopted the following as its definition of Beyond a Reasonable Doubt in criminal cases:

Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt. A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence. If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty. (Ninth Circuit Jury Instructions Committee, 2017, Rule 6.5)

Parties to Crimes

While a single individual is often the only person involved with the commission of most crimes, many crimes are committed by more than one person. Researchers are finding that the trend, especially concerning corporate and white-collar crime, is for multiple criminal defendants to be involved in crimes (Marcus, 2002). Accordingly, as criminal law evolved, it became necessary to more accurately identify, name, and hold accountable all parties involved or assisting with committing criminal offenses. Below is a discussion of the historical development of the principles of criminal law as they apply to multiple-defendant criminal activities.

Common law

Common Law defined:

1. The body of law derived from judicial decisions rather than from statutes or constitutions; caselaw. 2. The body of law based on the English legal system; as distinct from a civil-law system <all states except Louisiana have the common law as their legal system> 3. General law common to a country as a whole as opposed to special law that has only local application <the issue is whether the common law trumps our jurisdiction’s local rules>. 4. The body of law deriving from law courts as opposed to those setting in equity <a defense founded in common law>. 5. The body of law to which no constitution or statute applies <the common law used by trial lawyers to settle disputes>. (Thomson/West, 2000, p. 117)

Under common law, multiple offenders were defined/classified as follows:

• Principal in the first degree

• Defined: “The perpetrator of a crime–Also termed first-degree principal” (Thomson/West, 2000, p. 537).

• Principal in the second degree

• Defined: “One who helped the perpetrator at the time of the crime–Also termed accessory at the fact; second-degree principal” (Thomson/West, 2000, p. 537).

• Accessory before the fact

• Defined: “An accessory who assists or encourages another to commit a crime but who is not present when the offense is actually committed. Most jurisdictions have abolished this category of accessory and instead treat such an offender as an accomplice” (Thomson/West, 2000, p. 7).

• Accessory after the fact

• Defined: “An accessory who knows that a crime has been committed and who helps the offender try to escape arrest or punishment. Most penal statutes establish the following four requirements: (1) someone else must have committed a felony and it must have been completed before the accessory’s act; (2) the accessory must not be guilty as a principal; (3) the accessory must personally help the principal try to avoid the consequences of the felony, and (4) the accessory’s assistance must be rendered with guilty knowledge” (Thomson/West, 2000, p. 6).

Federal Statutes

As federal statutory criminal law evolved, the characterization of multiple offenders evolved as follows:

• Principals, 18 U.S.C. § 2 (1948)

“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

• Accessory After the Fact, 18 U.S.C. § 3 (1948)

“Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.

Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years.”

• Misprison of a Felony, 18 U.S.C. § 4 (1948)

“Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.”

State Laws

Complicity Statutes

Defined:

Association or participation in a criminal act; the act or state of being an accomplice. Under the Model Penal Code, a person can be an accomplice as a result of either that person’s own conduct or the conduct of another (such as an innocent agent) for which that person is legally accountable. Model Penal Code §2.06. 2. (Thomson/West, 2000, p. 122)

Initially, states defined multiple offenders in various ways, with some states relying on Common Law while others drafted specific statutes. However, with the eventual development of the Model Penal Code in the 1960s, most states enacted some variation of the language in that code (see Figure 8, the Washington Complicity statute).

Liability for conduct of another-Complicity (Wash. Rev. Code § 9A.08.020, 1975)

1. A person is guilty of a crime if it is committed by the conduct of another person for which he or she is legally accountable.
2. A person is legally accountable for the conduct of another person when:
   1. Acting with the kind of culpability that is sufficient for the commission of the crime, he or she causes an innocent or irresponsible person to engage in such conduct; or
   2. He or she is made accountable for the conduct of such other person by this title or by the law defining the crime; or
   3. He or she is an accomplice of such other person in the commission of the crime.
3. A person is an accomplice of another person in the commission of a crime if:
   1. With knowledge that it will promote or facilitate the commission of the crime, he/she:
      1. Solicits, commands, encourages, or requests such other person to commit it; or
      2. Aids or agrees to aid such other person in planning or committing it; or
   2. His or her conduct is expressly declared by law to establish his or her complicity.
4. A person who is legally incapable of committing a particular crime himself or herself may be guilty thereof if it is committed by the conduct of another person for which he or she is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his or her incapacity.
5. Unless otherwise provided by this title or by the law defining the crime, a person is not an accomplice in a crime committed by another person if:
   1. He or she is a victim of that crime; or
   2. He or she terminates his or her complicity prior to the commission of the crime, and either gives timely warning to the law enforcement authorities or otherwise makes a good faith effort to prevent the commission of the crime.
6. A person legally accountable for the conduct of another person may be convicted on proof of the commission of the crime and of his or her complicity therein, though the person claimed to have committed the crime has not been prosecuted or convicted or has been convicted of a different crime or degree of crime or has an immunity to prosecution or conviction or has been acquitted.

Washington Complicity Statute, RCW 9A.08.020

Miscellaneous Criminal Law Issues

Strict Liability Offenses

Defined: “Strict criminal liability refers to liability for the commission of an offense without regard to whether the defendant was culpable or had any intention of committing the criminal act” (Saltzman, 1978, abstract).

Example: Kentucky’s Absolute Liability (Ky. Rev. Stat. § 501.050, 1975)

“A person may be guilty of an offense without having one (1) of the culpable mental states

defined in KRS 501.020 only when:

1. The offense is a violation or a misdemeanor as defined in KRS 500.080 and no particular culpable mental state is included within the definition of the offense; or
2. The offense is defined by a statute other than this Penal Code and the statute clearly indicates a legislative purpose to impose absolute liability for the conduct described.”

Lesser Included Offenses (LIO)

Defined: “An offense that, although not the primary crime charged, is supported by the same facts or evidence. Its conviction carries a less severe punishment than the main offense” (Justia, n.d., para. 1).

Examples of LIO offenses: 1) the crime of Trespass would be an LIO of Burglary; 2) the crime of theft would be an LIO of Robbery.

Statute/Example: Washington, Conviction of Lesser Crime (Wash. Rev. Code § 10.61.010, 1909)

“Upon the trial of an indictment or information, the defendant may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime. Whenever the jury shall find a verdict of guilty against a person so charged, they shall in their verdict specify the degree or attempt of which the accused is guilty.”

Felony-Murder Rule

“Criminal law. The doctrine holding that any death resulting from the commission or attempted commission of a felony is murder. Most states restrict this rule to inherently dangerous felonies such as rape, arson, robbery, and burglary” (Thomson/West, 2000, p. 270).

Statute/Example: Washington, the felony-murder rules can be found at Murder in the First Degree (Wash. Rev. Code § 9A.32.030, 1975) and Murder in the Second Degree (Wash. Rev. Code § 9A.32.050, 1975).

Jurisdiction Over Criminal Offenses

Jurisdiction defined:

1. A government’s general power to exercise authority over all persons and things within its territory <New Jersey’s jurisdiction> 2. A court’s power to decide a case or issue a decree <the constitutional grant of federal-question jurisdiction>. 3. A geographic area within which political or judicial authority may be exercised <the accused fled to another jurisdiction>. 4. A political or judicial subdivision with such an area <other jurisdictions have decided the issue differently>. (Thomson/West, 2000, p. 377)

Examples:

• Federal Jurisdiction: Jurisdiction over federal criminal offenses (assault of a federal agent, threatening the President, espionage, treason) lies with the federal court system, and the trial for these offenses would occur in the federal court where the offense was committed. Jurisdiction over military criminal offenses is a “subset” of federal jurisdiction (See Military Law, Table 5.1, in §5.1.1 and the link found in Call-Out Box #1).
• State Jurisdiction: Jurisdiction over state criminal offenses (burglary, criminal mischief, arson) lies with the state court system, and the trial for these offenses would take place in the state court having authority over the type of offense (felony or misdemeanor) located where the offense was committed.
• Concurrent Jurisdiction: Some criminal offenses can be federal and state crimes (bank robbery, certain drug offenses, and kidnapping crimes) and can be tried in either federal or state courts. Double Jeopardy is not violated by these prosecutions in that Double Jeopardy only prevents a defendant from being tried twice for the same offense by the same jurisdiction–and federal jurisdiction is separate and distinct from state jurisdiction.
• Native American/Tribal Jurisdiction: Jurisdiction over criminal offenses involving Native Americans and offenses committed on tribal lands is complicated. The outcome depends on who committed the crime, where the crime was committed, whether concurrent jurisdiction was involved, and a host of other factors. For an in-depth discussion of jurisdiction over criminal offenses committed by Native Americans and/or criminal offenses committed on tribal lands (Kickingbird, 2023).

Overview of Criminal Offenses

Inchoate Offenses

Inchoate offense Defined: “A step toward the commission of another crime, the step in itself being serious enough to merit punishment. The three inchoate offenses are attempt, conspiracy, and solicitation—Also termed anticipatory offense; inchoate crime; preliminary crime” (Thomson/West, 2000, p. 482). See Table 5.6.

Special Defenses to Inchoate Offenses

Inchoate Offenses are very unique in that, unlike substantive crimes such as murder and rape, under very narrowly prescribed statutes, defendants can actually “undo” or terminate their criminal liability/responsibility for committing the offense. See Table 5.7.

Categories of Most Common Substantive Criminal Offenses

Table 5.8 identifies, by offense name and section number of the Kentucky and Washington criminal codes, specific substantive criminal offenses by category.

Figure 11:

Categories of Most Common Substantive Criminal Offenses

Author-created Figure

Defenses to, and limitations on, prosecuting criminal offenses

Defense defined:

1. A defendant’s stated reason why the prosecutor has no valid case; especially a defendant’s answer, denial or plea <her defense was that she was 25 miles from the building at the time of the robbery>. 2. A defendant’s method and strategy in opposing the prosecution; a doctrine giving rise to such a method or strategy <the lawyer advised her client to adopt a passive defense and to avoid taking the witness stand>. 3. One or more defendants in a trial <the defense rests>. 4. Measures taken by an individual to protect against an attack. (Thomson/West, 2000, pp. 187-188)

Table 5.9 identifies the defenses that could be raised in most jurisdictions.

5.3.11.5 Justifications for Committing Criminal Offenses

Justification defined:

1. A lawful or sufficient reason for one’s acts or omissions. 2. A showing, in court, of a sufficient reason why a defendant did what the prosecution charges the defendant to answer for. Under the Model Penal Code, the defendant must believe that the action was necessary to avoid a harm or evil and that the harm or evil to be avoided was greater than the harm that would have resulted if the crime had been committed. Model Penal Code §3.02.–See lesser-evils defense under Defense. Also termed justification defense; necessity defense. (Thomson/West, 2000, pp. 390-391)

Table 5.10 identifies the various justifications that could typically be raised in most jurisdictions.

In addition to the various defenses and justifications that are available to criminal defendants, there are a number of constitutional issues (limitations) that restrict or otherwise bar the enactment, enforcement or prosecution of a criminal offense. These Constitutional Limitations are set out in Table 5.11.

Criminal law Issues relating to criminal offenses involving discrimination, diversity, equity, inclusion, and belonging

When studying constitutional and criminal law it is important to understand the similarities and differences between specific statutory criminal offenses and various terms/phrases that “sound” like a criminal offense or criminal law term but are, in reality, a sociological, criminological term, political science or media term. Here are some examples:

• Bias (Hate) Crime: Initially referred to as a “Hate Crime” this broad sociological category of criminal offenses also became known as a Bias Crime. In fact, in Oregon, the statutory criminal offense is called a Bias Crime (Oregon Department of Justice, n.d.); see Or. Rev. Stat. § 166.165 (1981). However, in other states (Washington) the criminal offense is named Hate Crime, Wash. Rev. Code § 9A.36.080 (1981). In the simplest terms, a Bias/Hate crime must include both “bias/hate” and a “crime.” The “bias/hate” aspect of these crimes is based on the victim’s actual or perceived race, color, religion, national/ethnic origin, sexual orientation, gender, gender identity, or disability. The “crime” part of these offenses can be either crimes against persons (murder, assault, rape, harassment, stalking, etc.) or crimes against property (arson, criminal mischief, trespass, etc.) (U.S. Department of Justice, 2023b). In some jurisdictions, should the judge determine that the underlying criminal offense committed could be classified as a Bias/Hate Crime under state law definitions, then either the sentence could be increased, parole possibilities denied, or both. Further, the Bias/Hate Crime determination “may be utilized by the sentencing judge as the sole factor for denial of probation, shock probation, conditional discharge, or other form of non-imposition of a sentence of incarceration” (Ky. Rev. Stat. § 532.031, 2017, para. 3).
• Discrimination: The concept of discrimination is certainly a legal term; however, it relates more to other aspects of law rather than to criminal law. Discrimination is generally defined as favoring or disfavoring a certain class of people based solely on characteristics identified as protected by federal law (race, age sex, national/ethnic origin, religion, disability, veteran) or characteristics defined by state law or local ordinance (sexual orientation, gender, gender identity). Generally, discrimination issues alone, without some related criminal activity or other Constitutional violation, are addressed through civil lawsuits filed by individuals or by government agencies. Discrimination litigation can involve the Fifth or Fourteenth Amendments (U.S. Const. amend. V, XIV); Title VII (Civil Rights Act of 1964) or other federal laws; specific state discrimination laws; or local ordinances.
• Human Trafficking: Human trafficking, also known as trafficking in persons, is both a social science term and, as a legal term, is defined as “a crime that involves compelling or coercing a person to provide labor or services or to engage in commercial sex acts. The coercion can be subtle or overt, physical or psychological. The exploitation of a minor for commercial sex is human trafficking, regardless of whether any form of force, fraud, or coercion was used” (U.S. Department of Justice, 2023a, para. 1). Some jurisdictions have enacted specific criminal offenses titled “Human Trafficking.” See Kentucky’s Ky. Rev. Stat. § 529.100 (2020).
• Pretext Stop: A pretext stop is a sociological, media, and legal term and is broadly defined as when a law enforcement officer stops a person or vehicle for some legitimate reason (jaywalking, tail light out, failure to give a turn signal, failure to stop) when, in reality, the officer is actually interested in initiating an investigation for some other serious crime (drugs, weapons, etc.) (Office of Police Accountability, n.d.). In the case of Whren v. United States (1996), the U.S. Supreme Court upheld the pretext stop practice as not being an unreasonable seizure under the Fourth Amendment (U.S. Const. amend. IV), so long as the officer had probable cause to initially stop the person/vehicle for an offense (Civilian Complaint Review Board, n.d.; Hall, 1996). However, by local ordinance or state law, Washington and other jurisdictions have prohibited police officers from engaging in pretext stops (and a number of other police practices that federal courts have upheld) altogether (Office of Police Accountability, n.d.). In the case of California, state statutes effective January 1, 2024 significantly restrict/limit police practices relating to traffic stops to the point that pretext stops would be difficult, if not impossible, to perform (Lewis, 2023). In Illinois, effective January 1, 2024, police will no longer be permitted to pull over drivers because some object (such as fuzzy dice) was hanging from the rear-view mirror-a traffic offense frequently used to justify pretext stops (Lieb & Mulvihill, 2023). In April 2023, as part of an effort to prohibit pretext stops, the city council of Memphis, Tennessee, in a unanimous vote, enacted an ordinance (Driver Equality Act) that would prohibit minor traffic stops such as the ones involved in pretext traffic stops (Jones, 2023). However, on March 28, 2024, the governor of Tennessee signed into law legislation passed by the Tennessee General Assembly that effectively repealed the Memphis Driver Equality Act (Mattise, 2024).
• racial profiling: Defined: “The law-enforcement practice of using race, national origin, or ethnicity as a salient basis for suspicion of criminal activity” (Thomson Reuters, 2021, p. 657). Racial Profiling, sometimes known as, or associated with, Bias-Based Policing is a form of Selective Enforcement (see below) and, as such, violates the Equal Protection Clause of the Fourteenth Amendment (Civilian Complaint Review Board, n.d.). If proven, the existence of Racial Profiling in a traffic stop will be a complete defense to any criminal offenses charged, as the initial seizure of the person/vehicle would be unconstitutional. Further, proof of Racial Profiling can form the basis for a civil rights violation lawsuit against the offending officer(s).
• Selective Enforcement/Prosecution: See Table 5.11 for the definition. These are legal terms that involve specific situations where a police officer (Selective Enforcement) or a prosecutor (selective prosecution) decides to charge/prosecute someone based on impermissible criteria (race, etc.–see Bias/Hate Crime discussion) rather than on the facts of the offense committed and applicable legal standards. As outlined in Table 5.11, Selective Prosecution violates the Equal Protection Clause of the Fourteenth Amendment (U.S. Const. amend. XIV), where a defendant is singled out for enforcement or prosecution when others similarly situated have not been charged and the reasons for the legal action are impermissible. If proven, Selective Enforcement/Prosecution will be a complete defense to any criminal offense charged as a result of the action.
• Mass/Serial/Spree Murder: A mass murder is defined as the “killing of three or more people at one time and in one location. Serial murder is the killing of three or more people in more than a 30-day period, with a significant cooling-off period between the murders. A spree murder is the killing of three or more people, usually within a 30-day period and typically during the course of another felony (such as a robbery)” (Holmes & Holmes, 2001, para. 2). Generally, these three terms come from a sociological and/or criminological background rather than a “pure” criminal law background. These “categories” of offenders would be charged with multiple violations of a state’s murder (or in some jurisdictions, manslaughter) statute. Typically, jurisdictions do not enact specific statutory criminal offenses by these names. It should be noted that if these multiple murders were committed with animosity (bias/hate) toward a specific person or group (identified above in the Bias/Hate discussion), then these murder crimes could be characterized as Bias/Hate crimes, and prosecution and sentencing could be pursued under the Bias/Hate statutes.

Attributions

1. Figure 5.2: Elements of Crime Formula by SBCTC, for WA Open ProfTech, © SBCTC, CC BY 4.0