FAQ's - Criminal Defense
Wouldn't longer sentences mean less
overall crime?
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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Is there a way to punish a criminal
before he actually commits the crime he is planning?
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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Are all illegal drugs treated equally
when it comes to punishing drug dealers?
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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Can a person be guilty of drunk
driving if he only had one drink?
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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What is the role of the federal
government in criminal law?
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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Are grand jury proceedings secret?
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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Are there special crimes to control
children's behavior?
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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What is the difference between
probation and parole?
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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How does a district attorney decide
which criminals to go after?
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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What is the difference between rape
and sexual assault?
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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Is driving over the speed limit a
crime?
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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Can only businessmen be charged with
white-collar crimes?
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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Learn More: Criminal Law
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. |
