§ 1.01 Nature of "Criminal Law"

§ 1.01 Nature of "Criminal Law"¹

The study of the criminal law is the study of crimes and the principles of criminal responsibility for those crimes.

[A] Crimes

[1] Comparison to Civil Wrongs

What is a crime? If we are to believe some judicial opinions and treatises, the answer is simple, circular, and largely useless: A "crime" is anything that lawmakers say is a crime. That could make "being left-handed" or "having the flu" a crime if a legislature chose to do so. We need to look deeper for an answer to this question and, thus, to understand how a crime differs from a civil wrong, such as a tort or breach of contract.

First, unlike torts and contracts, the criminal law involves public law. That is, although the direct and immediate victim of a crime typically is a private party (e.g., the person who was robbed, assaulted, or kidnapped), and other individuals are indirectly harmed (e.g., the family members of the direct victim), a crime involves more than a private injury. A crime causes "social harm,"² in that the injury suffered involves "a breach and violation of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capacity."³ For this reason, crimes in the United States are prosecuted by public attorneys representing the community as a whole and not by privately retained counsel.

There is more, however, that should distinguish a criminal wrong from its civil counterpart. A person convicted of a crime is punished. The technical definition of "punishment" awaits consideration in the next chapter,⁴ but what is significant here is that the "the essence of punishment . . . lies in the criminal conviction itself,"⁵ rather than in the specific hardship imposed as a result of the conviction. The hardship suffered as a result of the criminal conviction may be no greater or even less than that which results from a civil judgment. For example, a person who lacks substantial financial resources might prefer to spend a few days in jail as punishment for an offense than to pay a civil judgment of $10,000—the latter is likely to feel like a much more severe hardship. And it is not the case that a civil proceeding can never result in loss of liberty: A mentally ill person who has committed no crime may, in a civil proceeding, be committed involuntarily to a mental institution, and so-called "sexual predators" may be confined "civilly" due to their perceived dangerousness to the community.⁶ What, then, essentially distinguishes the criminal law from its civil counterpart, or at least should distinguish it, is the societal condemnation and stigma that accompanies the conviction.⁷

When the fact finder (ordinarily, a jury) determines that a person is guilty of a criminal offense, the resulting conviction is an expression of the community's moral outrage, directed at the criminal actor, for her act. It follows, therefore, that a crime might properly be deined as "an act or omission and its accompanying state of mind which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community."⁸ To the extent...