Criminal FAQ’s

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. However, 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 the age of thirty-five years commit most crimes. Therefore, it could be 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 productive, 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 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. If sentences are lengthened, new prisons and jails will need to be built to accommodate offenders who would be incarcerated under sentencing guidelines and mandatory minimum sentences.

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 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. For example, 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.
Crime has long been considered the concern of state government. States are authorized to protect their citizens from criminal activity by prosecuting criminals. States are also authorized to determine what constitutes a crime statutorily (through the legislature) and through common law. The federal government, on the other hand, has 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, often, 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 nationwide, and due to the nature of drug crimes (particularly distribution), it is difficult to prosecute drug crimes on a state-by-state basis.

Examples of successful federal criminal legislation are the federal gun laws and federal computer laws. The federal gun laws provide uniformity and the federal computer laws make it possible to punish Internet crime.

The U.S. Constitution has always played a role in criminal law because it defines important individual rights that must be preserved even in a state prosecution involving a state crime. The Constitution guarantees a right to a trial by jury in open court, the right to cross-examine witnesses, the right to remain silent (on grounds of self-incrimination), the presumption of innocence, the right to be represented by a lawyer, and the right to be free of cruel or unusual punishment. States are required to pay for attorneys for indigent offenders, and federal agencies provide oversight to state prisons to ensure compliance with these constitutional requirements.

Probation is a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are 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 can include required attendance at alcohol treatment or narcotic-abuse programs and educational classes on such subjects as anger management or good driving. The length of probation and its terms are enumerated at the sentencing and once the person has completed the terms of probation, he or she is free of court supervision.

Typically, an offender has been sentenced to an indeterminate or range 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 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 parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a specified 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 stating the reasons for revocation. If parole is revoked, the parolee goes back to prison and serves the remainder of his or her sentence in jail or prison.

A district attorney or prosecutor has the discretion to decide which crimes should be charged. In a typical case, 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. First, the prosecutor analyzes the case to determine if it is legally sound. 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. Next, the prosecutor decides if there is adequate and reliable evidence of the person’s guilt. The prosecutor must determine that the amount of evidence, and the quality of evidence, makes conviction probable. If offering a plea, such as an agreement by the defendant to undergo drug treatment in return for a suspended sentence, is appropriate, the prosecutor may prefer to dispose of the case in this manner. Additional factors which may influence the prosecutor’s decision include the defendant’s culpability, which may be lacking because he or she 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 removed from office.

Proving guilt “beyond a reasonable doubt” refers to the standard of proof the prosecution must meet in a criminal case. The standard of proof is the level of certainty each juror must have before determining that a defendant is guilty of a crime.

In practice, it is impossible to precisely define “reasonable doubt.” It can be easier to understand, however, by contrasting it to the standards of proof used in civil trials. In a civil trial, where a person’s freedom is not at stake, there are two possible standards of proof that must be met in a case. One is the “preponderance of the evidence” standard, which means certain facts or evidence presented at trial are more likely than not to be true (just over 50% is fine). The other standard is “by clear and convincing evidence,” which means that there is a high probability that a piece of evidence is true. Reasonable doubt is defined somewhat differently depending on what jurisdiction you’re in, but essentially, a juror can have some doubt in her mind, but it cannot be one that would affect a reasonable person’s “moral certainty” that a defendant is guilty. Because a defendant’s liberty is often at stake in a criminal trial, the reasonable doubt standard is the highest standard in the legal system.

Another vital component to the criminal trial is the requirement that the prosecution bears the “burden of proof.” A defendant is presumed innocent until proven guilty, and therefore it is the prosecution’s job to build a case against the defendant, not the other way around. This may seem like minor distinction, but if the prosecution simply had to accuse the defendant of a crime and then wait for the defendant to prove that he or she didn’t do it, a corrupt prosecutor could charge anyone with any crime, without proof. If, under that system, the defendant had no alibi, the jury might be forced to convict based on very little evidence.

The drafters of the Constitution were wary of a legal system with too much power, and promised that no person under the law should be deprived of life, liberty or property without due process of law. Requiring the prosecution to prove each element of a crime beyond a reasonable doubt is one way in which the justice system protects each defendant’s fundamental right to due process.

In most cases, police need a warrant to conduct a search. Police get a warrant by showing a judge or magistrate that there is sufficient probable cause to conduct a search. If the judge determines that there is sufficient probable cause, then a warrant will be issued for police to search for specific items in a specific place. Often the description of what’s being sought might be somewhat general, like “drug paraphernalia and anything associated with the buying, selling or using of illegal substances.”

There are three common exceptions to the rule that police need to obtain a warrant before conducting a search. The first, called the “plain view doctrine,” refers to situations in which the police, during the course of legal police business, see something of interest in plain view. For example, if you have consented to talk to the police inside your home, and an officer happens to see drug paraphernalia or an item fitting the description of a something that has recently been stolen, an officer can legally seize the evidence without a warrant.

Second, the police can also legally conduct a warrantless search if you give consent for them to do so. Finally, a police officer can conduct a “search incident to arrest” without a warrant. This means that during the course of a lawful arrest — one that’s based on probable cause — the police can search the arrestee and the immediate surroundings for weapons or for evidence the police fear might be destroyed. The search is limited, however, to the area within the suspect’s “immediate control.” This usually means that police cannot search beyond the room they are in when they make the arrest. If police believe there might be other armed suspects in the building, they can do what’s called a “protective sweep” to look for people who might be hiding. In the course of a protective sweep, police can then legally seize anything incriminating within plain view.

There are also emergency situations, known as “exigent circumstances,” in which a police officer can search without a warrant. For example, an officer can follow a fleeing suspect into his house and search for evidence the officer believes the suspect intends to destroy. The same holds true if an officer has reason to believe that someone is in danger. If he hears cries coming from inside a house, an officer can enter, make an arrest and perform a search incident to arrest.

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 repealed any status offenses. 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.

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 proven. However, proving that the leaked information came out of the grand jury proceeding and identifying exactly who made the prohibited disclosure is difficult in most cases.

Another challenge to 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.

The answer is yes. It is not against the law for one person to stop another in the street and ask him or her questions, and the same rules apply to police officers. They can approach you, ask you questions and even ask to search your belongings.

What the police can legally do during a stop depends largely on what the officer is thinking about you at the time. This may seem unfair, but if the police have a “reasonable suspicion” that you have been involved in a crime — even if you are totally innocent — they can detain you and even frisk you. The officer’s reasonable suspicion must be based on objective facts gleaned from the circumstances, and cannot be based on a mere hunch or general distrust. Police are not allowed to stop a person based solely on race, but racial profiling can be extremely difficult to prove.

Perhaps, for example, you fit the description of someone who has committed a crime nearby. This is a common example of a situation that might give police a reasonable suspicion to stop you. This would likely not be enough evidence for a police officer to arrest you, but it would be sufficient grounds for a stop. Once an officer has a reasonable suspicion that you have been involved in a crime, he can legally do a brief pat down to look for weapons or anything else that might put the officer or others in danger. The police can also legally prevent you from fleeing if they have reasonable suspicion, whereas if they do not, you are free to go.

If it becomes clear that law enforcement intends to detain you, it is a good idea to ask up front what their intentions are. Police are required to give you Miranda warnings if you are in custody, a procedure whose main purpose is to protect your Fifth Amendment right against self-incrimination. One crucial thing to remember is that regardless of whether you have explicitly been given the Miranda warnings, you always have a right to remain silent. In other words, you never have to questions if you don’t want to. The same is not true for showing identification, however, as many states make it a crime to refuse to show a police officer your ID if he or she asks to see it.

Rape is often used as a generic term for unwanted sexual acts. However, historically 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 committed as a result of 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 penal codes no longer use the term “rape”, but instead use sexual abuse or sexual assault to define the prohibited acts. Rape is covered by these statutes and may be designated as sexual abuse in the first degree. However, most sexual assault statutes cover intercourse as well as other sexual acts and apply to homosexuals as well as heterosexuals. Generally, husbands can 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.

Proving that you are not guilty of a crime by reason of insanity is extremely difficult. Only about one percent of criminal defendants even raise the defense, and only a quarter of those are successful. While the legal definitions of insanity vary from state to state, the essential element of insanity defenses is that the defendants lacked the required “criminal intent” to make them legally responsible for their actions.

The most widely used legal definition of insanity is known as the M’Naghten rule, named after a famous English murder case from the 1800s. In a nutshell, the M’Naghten rule requires a defendant to prove either that he did not know what he was doing, or if he did, that he didn’t know what he was doing was wrong. Boiled down even further, a defendant is insane under M’Naghten if he didn’t know right from wrong. Another standard courts will use is called the irresistible impulse test. Under this standard, defendants must prove that they knew their acts were wrong, but couldn’t control themselves.

About one-third of the states use the American Law Institute’s test for insanity, which states that a people aren’t responsible for criminal conduct if, as a result of mental disease or defect, they lack substantial capacity to appreciate the criminality of their conduct or to conform their conduct to the requirements of the law. This is a slightly more lenient standard than M’Naghten, as defendants must only show a “substantial incapacity” that they didn’t know that what they was doing was wrong, rather than having an absolute inability to know the difference.

There is good reason for having the insanity defense available, even if it is rarely used. Since putting people in prison for crime serves in part to deter future crime, it doesn’t make sense to put people in jail who had no control over what they were doing in the first place, or did not intend to do what they did. Most would also argue that treatment of the criminally insane in a mental institution is a more appropriate way to keep the public safe than prison. Rarely do those who are found not guilty by reason of insanity go free, and often their commitment to a treatment facility can last much longer than a prison sentence would have.