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Explainer: What is a Crime?

by Paul Creech on Thursday, August 11, 2016

Twas in the days of yore, in feudal England (where all days of yore occurred), that our fundamental system of criminal law developed. Judges traveled the country literally creating law, decision by decision (spoiler alert: judges create law with each decision today). Law was not codified in statute passed by a legislature. Rather, most crimes were articulated from Judges making up rules, unwritten except in the reasoning of judicial decisions. These laws are known as the common law. These laws got on boats and traveled to the New World. Here they branched off from the Old World as judges in England made decisions and rules and judges in the United States made decisions and rules. In the twentieth century the common law was codified by each state*, with some variation, under a democratic reform effort using a template known as the Model Penal Code. Thus, crimes were acts that judges decided were punishable.

Each crime is defined by a set of elements. Unless each and every element is proven beyond a reasonable doubt then no crime has been committed.

For example, under the common law, murder is the killing of another human being with malice aforethought, expressed or implied. Each element must be proven: 1) killing 2) of another human being, 3) with malice aforethought, expressed or implied. Overwhelming evidence that Casey killed Jack doesn’t matter unless malice can be proven.

At common law, a burglary is the: 1) unlawful 2) the breaking and 3) entering of a 4) dwelling house 5) at night 6) with the intent to commit a felony. If Jack broke into a home that he had lawful right to enter for purpose of committing an arson, he could not be convicted of a burglary. If Jack broke into a house at night with the mistaken belief that it was his house, then he could not be convicted of burglary because he lacked the intent to commit a felony.** At common law, the State would have prove the acts took place at night. Fail to put on evidence of any circumstance of the crime and there can be no conviction.

One purpose of enumerated elements is to put everyone on notice that certain conduct constitutes a crime, which allows people conform their conduct to the law.

Each crime has an a conduct portion and mental state portion.  For example, the conduct required for murder is the killing of another human being. The mental state required is malice aforethought. Some crimes do not have a mental state, but are strict liability crimes. One example is speeding. It doesn’t matter that you did it accidently, on purpose, negligently, knowingly, with malice aforethought, or hammered out of your gourd. The focus on these crimes is the result: driving while intoxicated. You may have thought those rum and cokes were Dr. Pepper, but the Government doesn’t have to prove you knew you were intoxicated or knew you were driving. In fact, you may have thought you were sober, on a space shuttle, or a passenger.

Most crimes require a guilty mind. We want to punish people for acts they know they are bad. Casey doesn’t have to know she was violating a specific penal code section or the words used by the State to describe it. It is enough that she know her actions will cause the death of this other person when she severs their spinal column with scissors.  A famous Roman maxim tells us that ignorance of the law is no excuse, that cannot always be the case. In rare cases the conduct made criminal by statute is of the quality we require that the State prove the defendant knew what they were doing was a crime.

Crimes are acts we decide to punish and are made up of elements. Those elements can be the circumstance, the act or the mental state. Almost every crime requires a guilty mind. In order to convict a person the State must prove each and every element beyond a reasonable doubt. Each and every person is entitled to the presumption of innocence by a jury.

You say, that’s criminal! They should put those people in jail! Why have there been no convictions!! Why? Usually because the acts you find criminal are not crimes, or the Government decided they could not prove one or more elements beyond a reasonable doubt. The prosecuting authority could have concluded that the time and resources required were not justified given the harm, or were better directed at other priorities. Sometimes, prosecuting authorities justify non-prosecution of criminal conduct based on other factors within their broad discretion.

*In the United States, the states have the police power. The Federal Government may not criminalize conduct absent some connection to the enumerated powers, usually the regulation of interstate commerce.

**Now, in the examples above Casey and Jack could have committed other crimes. Sometimes the Government overcharges people. A trespasser is charged with burglary. More often the Government charges a defendant with a dozen counts, knowing they only have to get the jury to find the defendant guilty on one–even if each count poses factual or legal challenges that wouldn’t stand up to individual scrutiny if each were brought independently.

These materials have been prepared for general informational and entertainment purposes only and are not intended as legal advice.

Paul Creech
Paul Creech is an attorney living in Houston, Texas. Paul has baccalaureate degrees in philosophy and political science from Utah State University, and a juris doctorate degree from Houston College of Law. He is a former U.S. Marine. Besides the law, Paul's interests include sports, art, and food.