Criminal Law - History 
Where have we been? Where are we? Where are we going? *
copyright © 2006 Ray Moses
all rights reserved

History of Criminal Law - Then, Now, the Future
(Evaporated and Condensed)

The more things change, the more they remain in need of law.

Laws should be like clothes. They should fit the people they are designed to serve. 
Clarence Darrow

Law...begins when someone takes to doing something someone else does not like.
Karl Llewelyn

The definition of terms is the beginning of wisdom.
Socrates

It shall be unlawful for any teacher in any of the Universitis [sic], Normals and all other public schools of the
State which are supported in whole or in part by the public school funds of the State, to teach any theory that
denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has
descended from a lower order of animals.
- Act of Mar. 13, 1925, ch. 27, § 1, 1925 Tenn. Pub. Acts 50, 50-51 (1 - Scopes Trial)

The eternal struggle in the law between constancy and change is largely a struggle between
history and reason, between past reason and present needs.
Felix Frankfurter




History of Crimes and Defenses

Every point in the system of the law of crimes is determined by the circumstances of its growth. We can't properly account for the merits or demerits of the criminal law without considering its historical roots. This web site page will allow us to briefly consider several important historical developments of criminal law - where it started. You can gain an insight into a society by visiting the history of its penal laws and their administration. We can look back almost 4,000 years to the earliest codes, e.g., the ancient Code of Lipit-Ishtar, (1) and the Code of Hammurabi, regulating human conduct and feel that we have made improvements. We can glimpse the growth of codes under the Roman Empire and the birth of judge -made English common law after the Norman conquest of England. Though modern criminal law is almost always statutory, we can understand the power of the early English common law courts to create new crimes, a power that steadily diminished with the growth of legislatively defined statutes issuing from Parliament from the Tudor Period forward. But see Shaw v. Director of Public Prosecutions. We can examine our own Bill of Rights, noting the numerous historical hyperlinks on the CCJA Bill of Rights page. (1 - American leag history timeline) We can look at changes in the law of crimes in decades past, e.g., the 1962 formulation of the Model Penal Code and the drastic revision of our own 1974 Texas Penal Code. We can pinpoint some of the cutting edge social issues of the immediate past and see how the law of crimes, particularly federal crimes, responded. Finally, we can speculate upon crimes and defenses of the future. An examination of the welter of penal laws that govern our modern day American society may give future generations a chuckle, [Note: To keep things in historical perspective, remember that fossils from eastern Africa suggest that our species, homo sapiens, has only been treading around this 4.54 billion year old planet Earth for some 190,000 to 200,000 years. Our first cities, e.g., Susa, were formed only six or seven thousand years past. Of course, lately, heeding the call, we've gone forth and multiplied, more than quadrupling our numbers on the planet since 1900, 1,650,000,000 to over 7,168,786,288 potential environmental and social troublemakers as of 2013. In the U.S., we've gone from 76,000,000 in 1900 to over 320,270,350 residents in 2013.]

In your future life as a lawyer and citizen of the world, look out of the cave and consider the relationship between legal systems and/or between the rules of one or more system. Knowledge of foreign criminal law systems can be valuable not only for understanding our neighbors but also in formulating reforms of our own system of crimes and defenses. For example, we might look at modern day Islamic criminal law as it is derived from the Koran (Qur'an).(1), (2 - a detailed dissertation on Islamic law from Germany), (3), (4), (5 - Wiki - Personal Note: This wan and shriveled site is the most disappointing Wikipedia offering I have encountered in many hundreds of Wikipedia views; one almost wonders whether the lack of scholarly input flows from prior apprehension that any contribution would have put the contributor on an FBI Bush2- administration watch-list; one ventures to hope that the site will grow under the grace of President Obama's administration.), (6). Some of the criminal portions of the Koran have features akin to lex talionis (the law of an eye for and eye). It decrees punishments that might seem disproportionate to those trained in the common law, e.g., amputation of the hand or fingers of a thief, death by stoning for adultery, whipping (flogging) of up to one hundred lashes for infractions such as drinking wine, fornication, and false accusation of adultery. For example, the Iranian Penal Code forbids women to go about in public without modest dress, including the headscarf. The Iranian Code provides that a husband can kill his wife and her lover if he catches them in flagrante delicto. (This used to be the law in Texas, where it was termed "the paramour law.") Islamic penal law may seem primitive to the western mind. In theocratic states like Iran, the fact that the criminal law is administered by mullahs (clerics) may seem unsettling. Because of the First Amendment's separation of church and state, Americans would certainly not expect their religious leaders to do dual duty as judges in the court system.

The crimes and defenses of many other societies, e.g., China, Japan, Finland, Russia, etc. are worthy  of study. One way for a law student to taste the criminal law of other countries is attend one of the study abroad programs with a criminal law component. There are programs in Africa, e.g., Egypt, Kenya, South Africa; North America, e.g., Canada; Latin America, e.g., Mexico; Central America, e.g., Costa Rica; South America, e.g., Argentina, Brazil, Chile; Asia, e.g., China, Hong Kong, India, Japan, South Korea, Singapore; Australia; the Middle East, e.g, Israel; the British Isles, e.g., England, Ireland, Scotland; Eastern Europe, e.g., Croatia, Czech Republic, Hungary, Poland, Russia; Northern Europe, e.g., Austria, Belgium, Denmark, Finland, France, Germany, Netherlands, Norway, Sweden, Switzerland, Southern Europe, e.g., Greece, Italy, Malta, Portugal, Spain, Turkey. (1 - for the list of law school summer programs abroad) [Tip: Pick a program abroad offered by a law school other than the one in which you are enrolled; if you attend your school's foreign program, you'll get some of the same old parochial professors you have back in the U.S., and your coursemates will be the same folks you see at school in the fall and spring; be adventurous, and attend a program where you will have all new professors and all new coursemates; in my experience, it's a lot more enlightening to spend the six or eight weeks interacting with people from other law schools.]


Then - Our Origins in English Common Law

In every law school criminal law class students spend some time considering the common law and its history  -  (1), (2), (3), (4), (5), (6 - federal common law; the federal insanity rule is a good example of federal common law that allowed each federal circuit to establish its own rule of insanity changing to a single statutory definition of insanity), (7 - The Common Law by Oliver Wendell Holmes, Jr.), (8 & 9 - Blackstone's Commentaries), (10), (11 - The Nature of Judicial Process by Benjamin Cardozo) (12 - a good summary of common law including history) (13 - old lectures on growth of criminal law) (14 - history of English common law). One studies how substantive crimes that existed in England were to a significant extent imported to the North America by the colonists who came over the Atlantic. A summary and comparison of common law system and civil law system is found in a monograph prepared for the Federal Judicial Center by James Apple and Robert Deyling,  A Primer on the Civil Law System; look at pages 33-39 for an evaporated and condensed insight into features of the common law system vis a vis the civil law system, i.e., the Roman system still followed by most countries of Western Europe:

  • The Common Law Jury: "Soon after the conquest of England by William the Conqueror in 1066, the practice of a sworn inquest of neighbors about some issue or problem, usually involving land, was adopted as a feature of government. In fact, the Domesday Book, the record of boundaries of land in England, written between 1081 and 1086, was a compilation of jury verdicts about boundaries. In its first guise in England the jury was a group of persons, usually local citizenry or a body of neighbors, who were summoned by a public official and, after the administration of an oath, were bound to tell the truth “whatever the truth may be” in response to a specific question. The questions that were posed to these juries were not always related to specific disputes between individuals.The use of juries was not a frequent practice in England until the reign of Henry II, who decided in 1164 that a procedure using juries should be a “normal part of the machinery of justice.” Two years later Henry II mandated a procedure requiring jury trials for persons dispossessed of lands. By the time of King John in the thirteenth century, the right to a jury trial in criminal cases was so pervasive that it was immortalized in 1215 at Runnymede with the signing of the Magna Carta."  page 33

  • Historical Common Law Emphasis on Cases as Opposed to Treatises and Commentaries: "Three generalizations can be made about jurists in the common-law systems: (1) the majority of jurists, at least from a historical standpoint, and practically all the great jurists, have been judges (e.g., Kent, Coke, Blackstone, Mansfield); (2) legal writings of jurists are heavily endowed with reference to cases (e.g., restatement series) and whatever principles or trends in the law can be extracted from case law (using an inductive reasoning process like the Roman jurists’, as opposed to the deductive reasoning of the civil law); and (3) treatises and commentaries of jurists actually play a very small role in the judicial decision making process and the development of law through legislation, and exert little, if any, influence on judges and legislators. For each of the above generalizations there are exceptions, some notable. Great works of legal literature in the United States that have had a significant impact on the development of certain areas of substantive law include the treatises of Samuel Williston and Arthur Corbin on the law of contracts and John Wigmore on the law of evidence. In addition, the collective work of law professors, judges, and lawyers of the American Law Institute has produced the Restatement of the Law series, which has influenced the development of substantive law in some areas. The series of codes for individual states in the United States known as the Uniform Code series, which stand as a model for individual state legislation, could also be attributed to the collective efforts of jurists. Having noted these exceptions, it still must be emphasized that the jurists in common-law countries remain relatively unimportant. The tradition is still overwhelmingly case oriented, almost to the complete exclusion of juristic writings, which are rarely consulted by practicing lawyers and not often cited in judicial opinions. The result is that the common law is open-ended and antithetical to system-building of the type found in civil-law countries." page 35

  • Common Law Emphasis on Case Precedent (Stare Decisis) Rather Than Codes: "The codification/judicial-decision dichotomy relating to the development of legal principles has given rise to two other distinctions between the systems: the role of judicial decisions in the making of law, and the manner of legal reasoning. In civil-law systems, the role and influence of judicial precedent, at least until more recent times, has been negligible (possibly as a result of Justinian’s dictum, quoted earlier); in the common-law countries, precedent has been elevated to a position of supreme prominence. Civil-law judges or their scholar-advisers initially look to code provisions to resolve a case, while common-law judges instinctively reach for casebooks to find the solution to an Issue in a case." page 36

  • Court Structures - Common Law System vis a vis Civil Law System: "The structures of courts are distinctly different in the two systems. Common law systems favor integrated court systems with courts of general jurisdiction available to adjudicate criminal and most types of civil cases, including those involving constitutional law, administrative law, and commercial law. Civil-law systems, on the other hand, following the tradition of separate codes for separate areas of law, favor specialty court systems and specialty courts to deal with constitutional law, criminal law, administrative law, commercial law, and civil or private law. The trial process is different in the two systems. In the civil-law system, the single-event trial is unknown, and trials involve an extended process with a series of successive hearings and consultations for the presentation and consideration of evidence. There are also procedural differences relating to the role of the judge in the trial process. In civil-law system trials using the inquisitorial process, the role of the judge is elevated—the judge assumes the role of principal interrogator of witnesses, resulting in a concomitant derogation of the role of lawyers during the trial. Conversely, in the common-law system the role of the judge as the manager of the trial (and “referee” of the lawyers acting in an adversary role) is secondary to that of the lawyers, who are the prime players in the process, introducing evidence and interrogating witnesses. The contrasting roles played by the judge in the trial process of the two systems has also resulted in a difference in judicial attitudes. Judges in the civil law systems view themselves less as being in the business of creating law than as mere appliers of the law (i.e., a more technical, less active role in the development of the law than their common-law counterparts’). In civil-law countries, the judge merely applies the applicable code provisions to a case, with little opportunity for judicial creativity and often with the assistance of legal scholars and legal scholarship. The common-law judge, in contrast, is able to search creatively for an answer to a question or issue among many potentially applicable judicial precedents. There is a distinct difference in the two systems in the manner in which judges are selected and trained and in their legal education. In the civil-law tradition the judiciary is usually part of the civil service of the country—a recent law graduate selects the judiciary as a career and then follows a prescribed career path, first attending a special training institution for judges, and then acting as a judge in a particular geographical area and particular court system as assigned by the institutional body responsible for the administration of the judicial branch, often the Ministry of Justice. In contrast, common-law judges are generally selected as part of the political process for a specific judicial post that they hold for life or for a specified term, with no system of advancement to higher courts as a reward for service." page 37

  • Legal Training in Common Law vis a vis Civil Law Systems: "The tradition of legal training is different in the two systems. In civil law countries the study of law at a faculty of law follows graduation from high school, with no intermediate education in the liberal arts or other fields of learning, and with little or no exposure to subjects taught in other departments of a university. Thus a student at a faculty of law in a civil-law country rarely has a baccalaureate degree. In contrast, in a common-law country, the study of law is almost always post-graduate. The law student is exposed to other disciplines prior to matriculation in the law school, a situation that has perhaps led to a greater social consciousness among judges and lawyers about the purposes and functions of law and its application—and a greater openness and ability to confront new situations—than exists among their counterparts in civil-law countries." page 38

Take some time and read about the history of the English common law (1 - brief summary) in the Internet Medieval Sourcebook. We all know about the Norman conquest of England at the Battle of Hastings in 1066 and the subsequent issuance of the Statutes of William the Conqueror (or "William of Normandy" or "William the Bastard") as King William I (1) was affectionately known by some). King Henry II (1154-1189) was another dominant figure in the history of the common law; it was Henry II who established permanent courts of professional judges; he also established what we might consider as circuit-riders, itinerant judges who traveled regular routes (These courts on wheels doubled as tax-collectors.) Under the royal courts, instead of being judged as property crimes against individuals, crimes began to be viewed as offenses against the society as represented by the state. Finally, Henry II made use of inquisitorial juries, somewhat akin to our modern day grand jury. See Links of History of English Common Law and Customary Law for a full discussion. [Note: The word "court" that we lawyers identify as a place for the administration of justices also defines the place where the sovereign, e.g., the king, resides.]

In addition, from a procedural standpoint, the U.S. and England utilize what is denominated as an adversarial system that pits government prosecutors against defense lawyers in a courtroom setting with live witnesses. There is a whole system of well established procedural rights, obligations, and processes. See the U.S. Bill of Rights. By contrast, many of the countries of modern Western Europe use an inquisitorial (often called "civil") system of criminal justice. The term "inquisitorial" is a misnomer because the judge is not the prosecutor and the decision-maker as he was under earlier European civil law systems. One of the major differences between the U.S./English system and the civil law system is the use of a jury of lay persons as the independent decision maker in the U.S./English system and the absence of such a jury in the European civil law system, though some systems do employ mixed panels of lay persons and professional judges.

As a comparative note, let's briefly consider some of the hallmarks of the law of crimes in one  Western European country, e.g., Germany. Certain characteristics emerge when we compare the German civil law system approach to criminal law and procedure with our own, e.g.,:

  • less strict liability
  • no serious corporate criminal responsibility; most corporate infractions punished with fines only
  • unavoidable mistake of law as a defense; if avoidable, treated as a mitigating factor
  • necessity recognized as a defense
  • solicitation, conspiracy and attempt liability allowed only for certain crimes
  • accessories who merely aid, not instigate, receive mitigated punishment
  • no entrapment defense


Before Then - Codes - Our Debt to the Romans

If a man accuses someone of witchcraft practices, but he cannot prove them, the accused shall go to the River;
he shall dive into the River. If the River takes him, he who has accused him shall receive his house.
But if the River has purified this man and if he comes out of the River safe and sound, he who has accused him of
witchcraft shall be killed; the man who dived into the River shall receive the house of the one who accused him.
                                       Code of Hammurabi (1), (2) (3), Babylonian King
                                Mesopotamia, 1792-1750 B.C.
                                Excerpt from one of the first codes in recorded history

As a student of criminal law, you will study the relationship between the unwritten common law (lex non scripta) and written statutes that have been codified into a code. [In this sense, a criminal code is a set of rules governing one's conduct. Ideally, it consists of a rational system of consistent definitional and correctional rules with stated objectives. See Sections 1.02 MPC and TPC.] You will learn to read and analyze written codes. In our case it will be the written Texas Penal Code and the written Model Penal Code. Where did the idea of written codes originate? Let's briefly consider the history of codes, with particular emphasis on criminal codes. See A Primer on the Civil-Law System, pages 3-21 discuss the history and development of the civil law code based system, pages 23-31 discuss modern civil law systems. See also The Internet Medieval Sourcebook, The History of Criminal JusticeRoman Law Branch - Law Related Internet Project- University of Saarbrucken

In the modern American legal world, codes play a major role. Indeed, every state has a penal code. Despite the emphasis on the common law of crimes and defenses that you are exposed to in traditional law school criminal law courses, penal codes have been fixtures in state criminal justice systems for many years. Indeed, today, penal codes are the dominant means for expressing the operative law of crimes and defenses. So don't be fooled into believing that we live in the common law era by our antiquated way your professor my teach criminal law. To some extent your criminal law teacher is held hostage by the folks who write and grade the Multistate Bar Exam. They base their questions on the common law, even though no state has a strictly common law system of crimes and defenses. Here's a list of hyperlinks to all the penal codes, codes of criminal procedure, and law enforcement codes for all the states.

From the historical perspective, written codification of law did not originate with the English common law so strongly associated with our law of crimes and defenses. The idea of codes stems from the codes of the Roman Emperor Justinian who reigned from 527 to 565 in the Sixth Century. Justinian attempted to codify - collect, revise and put in written form - all of the pre-existing customary Roman law. (1 - an excellent resource re Roman Law) (2 & 3 - problems with roman criminal law) Under Justinian's rule, constitutions were gathered in the Codex  (Codes) and the writing's of jurists in the Digests. A basic manual of law for study by students of the law was gathered together in the Institutes (1- Institutes of Justinian). Until the Justinian Codes of Rome (1), (2) also known as the Corpus Juris Civilis, law in the Roman Empire had been decided in individual cases in a more primitive ad hoc manner by learned men who were not judges. With the gradual decline of the Roman Empire, the Corpus Juris or Justinian Codes fell into disuse. The decline was exacerbated during the Middle Ages when, for example, the northern part of Italy was invaded by Germanic tribes.

Then in the Twelfth Century, codes made a comeback as the result of the formation of the first European law school in the city of Bologna. This was a private law school with professors teaching students who came at first from Bologna and the later from all over Western Europe. The professors revived the use of the Justinian Codes. To clarify the meaning of the codes, the professors began to make explanatory notes on the original Digests of Justinian. The professors who made these notes were called glossators and the notes the made gloss. At first, only four professors were allowed to be glossators to the Digests. The glossators' notes, gloss, were an effort to explain and interpret the Digests.

One of the famous early glossators was Iznezius, the man who started the law school in Bologna. The method of teaching at the first law school was that used earlier by the Romans, i.e., the student would ask questions based on the Digests and the glossators' notes interpreting them , and then discuss the answers given by the professors. Graduates of the law school were given a symbolic crown of laurel and called "laureates." Eventually law schools were formed in other European cities, e.g., Sienna, Toulouse, Avignon, Heidelberg, Strasbourg, Bourges, Paris, Orleans, Basel, Tubingen, etc.

After the age of the glossators, the European system gave rise to a group of men, known as the commentators or postglossators, who attempted to form a system of written law based on the Codes of Justinian, the Corpus Juris. A complex mass of glosses and commentaries adhered to the Corpus Juris. The aggregate of this written material - codes, glosses and comments - became part of what came to be known as the jus commune, the common law of Western Europe.  The jus commune  was composed of a combination of (1) Roman law based on the Justinian Digests that had been fleshed out by the glossators and commentators, (2) law based on centuries of custom, and (3) canon law from some areas of Western Europe (Note however that the Protestant Reformation, beginning in 1517 in Germany {Note: During the Fifteenth Century, the German Empire aggressively adopted Roman law.] and Switzerland, resisted the power of the Catholic church to impose canon law.  The plurality of sources of law, e.g., the civil system of Roman law in the form of codes, the law of custom and tribe that had evolved over centuries, and the canon church-made law, made the legal system of Western Europe complicated, obscure, and unintelligible. On the European continent, this plurality of sources of law required one to go to the particular type of court that applied a particular type of law. Code law would be applied in one set of courts, and canon (church-made) law would be applied in others. [Note: We see a similar division of courts in common law England, where in early days there were common law courts and ecclesiastical courts; the Reformation weakened the power of the Ecclesiastical courts.]

The next major event in the growth of European codes grew out of the French Revolution of 1789. [Note: In 1532, Charles I used a statute known as the Constitutio Criminalis Carolina which was a criminal code of general application in the German Empire. The Carolina was the first code in any branch of law designed to apply throughout the Empire. There was also a Prussian Civil Code of 1794; it was not a modern code because it was a blend of private law and tribal law; it had 16,000 provisions and was based on abstract thought of scholars. It attempted to anticipate every possible situation that might arise. Germany, in former days a fragmented country of city states, promulgated another elaborate and precise civil code in 1896. The Japanese later copied their pre-war code from the German Code.]

Prior to the French Revolution, France had existed in two parts, the North which relied primarily on Germanic-based customary law and common law, and the South which relied on Roman Law. It would have a unified legal system for the whole of France only after the Revolution. Until the French Revolution, in every Western European society there was a monarchy with a King representing God on earth. The King's family members were given titles; only certain people had rights to property; society was stratified.

After the French Revolution, which accepted the fundamental concepts of (1) liberte - freedom of contract and (2) egalite - equality of all men, it was necessary to rewrite the private and public law. Someone had the idea of writing a general code of without detail that was precise enough to allow regulation of civil life, e.g., family, contract,torts, etc. This culminated in the Napoleon French Code of 1804. The French Code was a true masterpiece and took only four years to write. It was written by judges and practitioners with practical experience who attempted to anticipate all of the legal cases that might arise. Compare this to the English common law system in which law developed primarily as cases arose, rather than in reliance on anticipatory statutes.

On August 4, 1800, Napoleon appointed four important people to supervise the drafting of the French Code. Because the true makers of the French Civil Code were judges and practitioners ,not legal scholars, the French Code was relatively simple and understandable. Napoleon participated in the writing of the Code. We can say that the Napoleon French Code of 1804 was the first "modern" code because it was the first to assume the equality of men. In 3,000 Articles, it was designed to allow any judge to find the answer to a legal issue within its four corners. In applying the Code, judges were not allowed to go outside of it to find an answer, i.e., all answers to legal issues had to be found with the Code.

In actuality, the French Code was sufficiently broad in outline to give room for the exercise of judicial discretion in interpreting it. Under the Napoleonic Code, no court decisions bound anyone other than the litigants. There was no case authority or ruling case law or stare decisis as there was at English common law. Technically, lower courts in the French code system were not bound by what higher courts had said in other cases. In fact, French law over the last two centuries had changed in part as a result of "la jurisprudence" which signifies "case law" in Europe. Subsequently, the French followed the Napoleon Code of 1804 with the Criminal Procedure Code of 1808 and the Penal Code of 1810. See also French Penal Code of 1791.[Note: The contemporary French Penal Code is available at one site the Internet.]

In our own country, the USA, the influence of the French Napoleonic Code was seen in the enactment of the Civil Code of Louisiana in 1808. Louisiana borrowed heavily from the French Code. Interestingly enough, the Louisiana Code also relied on the institutional treatment of person's contained in Blackstone's Commentaries on the Law of England, showing that the lawmakers of Louisiana could also borrow and adapt from the English common law. The enactment of the Civil Code of Louisiana marked the first time that any state in the USA began to work primarily from codes. Since that time, we find that many areas of law in each of our states as well as the federal authority are defined by criminal codes. Our Texas Penal Code and Texas Code of Criminal Procedure are examples.  Of course, there are many other codes in use in modern day Texas. Here's a list of penal codes from countries around the world.

A Giant Leap Forward - The Model Penal Code (MPC) of 1962

The Official Draft of the Model Penal Code (MPC) was adopted by the American Law Institute (ALI) in May of 1962. For an excellent 18-page summary explanation of the MPC, see Professors Paul H. Robinson and Markus Dubber's An Introduction to the Model Penal Code, The ALI also issued official Commentaries explaining the MPC. In 2002, Professor Dubber wrote a handy 486-page Turning Point Series book, Criminal Law: Model Penal Code,  published by the Foundation Press; it contains many useful explanations as well as the text of the Model Penal Code. In it, Professor Dubber makes the point that the MPC's "goal was to transfer the power to make criminal law from the common-law making judiciary to the statute-law making legislature,"  i.e., common law crimes would not be a part of an MPC jurisdiction's crimes unless the legislature drafted them into law.. MPC Section 1.05(1) provides: ""No conduct constitutes an offense unless it is a crime or violation under this Code or another statute of this State." See also Section 1.03 (a) TPC

We might visualize the MPC as the centerpost in construction of modern penal codes. The MPC was not offered as a uniform law to be enacted en toto. Instead, it was proffered by the ALI as a model which could be used in whole or part by states whose legislatures were revising their penal codes. Although many parts of the MPC have been adopted by states, it has never been adopted en toto by any state. You will see references to the MPC in many of the cases in your casebook. Even though the federal law of crimes has not yet been revised to reflect the MPC approach, many federal judges consult it as a reference and refer to it in their opinions when trying to sort out legal issues. The MPC played a major role in the 1974 revised Texas Penal Code. Any law school course on the subject of criminal law that omits discussion of the MPC robs the students of basic understanding of the law of crimes and defenses. [When adopting new criminal codes, a wide variety of states have been influenced by the MPC; among those states embracing its approach and in some cases even using some of its exact language are Alabama, Arizona, Arkansas, Colorado, Delaware, Hawaii, Illinios, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, NorthDakota, Ohio, Oklahoma, Oregon, Pennsylavnia, Utah, Washington, West Virginia,  and Wisconsin. Some jurisdictions have thumbed their nose at the MPC. The California Legislature seems content with its old penal law just as Congress does with the federal "criminal code." Wikipedia reports that in 1971 the Idaho Legislature enacted a completely revised criminal code based on the Model Penal Code; however, in 1972, the legislature repealed the new code and reenacted the old criminal code.] 

Although modern students tend to take the MPC for granted, those of us familiar with the pre-MPC approach to crimes and defenses saw firsthand the remarkable impact the MPC had on crimes and defenses, as well as sentencing practices. In structure is was composed of four parts, i.e., Part I General Provisions (divided into a series of Articles, further divided into Sections; here the MPC discussed and defined subjects such as act, omission and possession; mental states (purposely, knowingly, recklessly and negligently); causation; mistake; ignorance; complicity; intoxication; duress; acting under superior military orders; entrapment, necessity; public duty; self-defense; defense of another; defense of property; use of force in law enforcement; use of force by parents, teachers, guardians, doctors, prison officials and others with a special responsibility for care, discipline or safety of others; mental disease or defect excluding responsibility (what we call "insanity"); evidence of mental disease or defect to negate state of mind (what we call "diminished capacity"), immaturity (what we call "infancy"); inchoate crimes (solicitation, conspiracy and attempt) Part II Definition of Specific Crimes (also divided into a series of Articles with Sections; here the code dealt with offenses involving danger to the person, e.g., criminal homicide, assault; reckless endangerment; terroristic threats; kidnapping, sexual offenses; offenses against property, e.g., arson, criminal mischief, burglary, criminal trespass, robbery, theft, forgery, fraudulent practices, commercial bribery; offenses against the family, e.g., bigamy, polygamy, incest, abortion, endangering child welfare; offenses against public administration, e.g., official bribery, perjury,obstructing government operations, escapes, abuse of office; offenses against public order and decency, e.g., riot, disorderly conduct, public indecency,

A Drastic and Meritorious Change - The 1974 Texas Penal Code (TPC)

In 1973 the Texas Legislature enacted a drastically changed Penal Code. The new Texas Penal Code was written by a group of intelligent lawyers and judges working under the aegis of the State Bar of Texas. They came up with a proposed penal code. The Texas Legislature then did two somewhat good things. First, the lawmakers were smart enough not to tinker with the proposed code to the point of destroying it. Though, like roaches in the cupboard they left tiny corrupting droppings, most of the proposed code remained essentially intact. Second, the Legislature enacted the code. Despite the often amateurish and sophmoric legislative tinkering with the Penal Code that takes place every two years when the politicians go to Austin, the Texas Penal Code remains one of the best in the nation. See Paul Robinson, Michael Cahill, & Usman Mohammad, The Five Worst (and Five Best) American Criminal Codes, 95 Nw. U. L. Rev. 1 (2000). Here's a brief roadmap of the initial portions of our Texas Penal Code to help you make heads and tails of it early on in the crimes and defenses course. These initial portions have remained basically unchanged since 1974. It will help if you follow along with a copy of the TPC while reading this.

Section 1.03(b) TPC. provides: "The provisions of Titles 1, 2, and 3 apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code." Thus, important principles of the TPC, such as the default requirement of a culpable mental state, apply not only to the TPC but to other offenses wherever they may be found in the Texas statutes.

Section 1.03(c) TPC provides: "This code does not bar, suspend, or otherwise affect a right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil suit for conduct this code defines as an offense, and the civil injury is not merged in the offense." This makes it clear that the TPC does not affect one's right to recover damages from a civil damage suit and that the civil injury lawsuit does not merge with the criminal lawsuit. [In some Continental countries of Western Europe, e.g., Germany, France, and Belgium, the crime victim has legal standing in the criminal proceeding and may attach his/her personal civil damage claims to the the criminal prosecution.]

Section 1.07 TPC is a list of definitions that apply to the defined terms whenever they are used anywhere in the TPC. You will also find that each chapter at the outset may contain a section with additional definitions applicable to the use of the defined terms whenever the terms are used within that particular chapter. See, for example, Section 31.01 TPC containing definitions for terms used in Chapter 31 - Theft. The same is true for certain sections of the TPC. See Section 33.021 TPC  -  Online Solicitation of a Minor - which contains definitions of terms that are applicable only to the use of such terms within that particular section. While reading definitions is not exciting, it is very important to lawyers. This is because the Legislature frequently gives words an unusual or uncommon meaning that wouldn't be found by consulting a standard layperson's dictionary, e,g. Webster's. Thus, it is an elementary rule of understanding the meaning of a statutory document that you have not completed the task until you have discovered whether there are any special meanings given to words that are relevant to the particular case or statute that you are researching.

Section 1.08 TPC establishes a preemption defense. There are many municipal ordinances that attempt to criminalize conduct. Section 1.08 provides that if the conduct covered by an ordinance is also covered by the TPC, the ordinance is void. Thus, anytime one is defending a person for an ordinance violation, it is important to bear in mind Section 1.08 and to search the appropriate sections of the TPC to determine whether the city ordinance has been preempted by a section of the TPC. [Parenthetically, there is also a potential Texas Constitutional defense under Article XI, Section 5, Tex. Const., prohibiting a home rule city from passing any ordinance "inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.". (Houston is a home rule city.) This defense is narrower on its face than the Section 1.08 preemption defense because it covers provisions inconsistent with state law, rather than with provisions on a subject covered by state law. The constitutional defense does apply to state laws outside of the TPC.] 

Section 2.01 TPC makes it clear that the prosecution has the total burden of proving every element of the offense alleged beyond a reasonable doubt. Sections 2.02, 2.03. and 2.04 TPC should be considered together. They establish three concepts, i.e., exceptions, defenses and affirmative defenses, that are central to understanding the allocation of burdens of pleading and proving justifications and excuses under the TPC. Here are several summary explanations.  An exception, though rarely encountered under the TPC,  must be negated in the charging instrument and proved beyond a reasonable doubt by the prosecution not to apply. See Section 32.441(d) TPC for an example of an exception. The defense bears the burden of production of evidence raising the issue on both a defense and an affirmative defense; Re the defense, the most commonly encountered of the three, the prosecution is not required to negate the existence of the defense in the charging instrument nor is it required as an initial matter at trial to disprove the defense. However, should evidence in support of the defense appear at trial from any source, whether from a defense or prosecution witness on direct or cross-examination, then the burden of persuasion is on the prosecutor to disprove the existence of the defense beyond a reasonable doubt. Examples of defenses include all justifications under Chapter 9 of the TPC, mistake of fact (Section 8.02) and entrapment (Section 8.06). Re the affirmative defense, the prosecution need not negate it in the charging instrument and need not disprove it if it raised by the evidence. Once the issue of the existence of the affirmative defense is raised by the evidence, the burden of persuasion is on the defense to prove the existence of the affirmative defense by a preponderance of the evidence. (Preponderance can be thought of as the greater weight, anything over 50%, of the credible evidence.) Examples of affirmative defenses include insanity (Section 8.01), mistake of law (Section 8.03), duress (Section 8.05), renunciation of inchoate offenses (Section 15.04), and due diligence in corporate crime (Section 7.24),  [Note: The Texas approach of explicitly laying out burdens of proof re exceptions, defenses and affirmative defenses is more sophisticated than the MPC which indicates little more than in Section 1.12(2)(a), regarding production, that the prosecutor is not obligated to disprove an affirmative defense unless there is evidence supporting such defense, and, on the issue of persuasion, that the prosecution is to disprove defenses once the defense has produced evidence raising the defense, except defenses where the MPC explicitly requires the defense to prove by a preponderance of the evidence. See Section 7.04 of UCL5th.]

Chapter 6 TPC contains several important  provisions. Section 6.02 TPC is perhaps the most important section of the TPC. Section 6.02(a) and (b) establish the general requirement of Texas law that, unless the definition plainly dispenses with any mental element, every criminal offense must have one of four culpable mental states, i.e., intentional, knowing, reckless or criminal negligence. Section 6.02(b) allows for strict liability crimes only when the definition plainly dispenses with any mental element. Section 6.02 (c) tells us what to do when the definition of a crime does not include a culpable mental state on its face but the legislature did not plainly dispense with the mental element. In such cases, the default position is that we read intent, knowledge or recklessness into the crime as the culpable mental state. Since the easiest culpable mental state to prove is recklessness, we might say that recklessness is the default culpable mental state for a definition of a crime that is void of a mental element but not intended to be a strict (absolute) liability offense. Remember, Section 6.02 TPC is a part of Title 2 - General Principles of Criminal Responsibility TPC and pursuant to Section 1.03 (b) TPC consequently applies to statutes outside the TPC unless the statute defining the offense provides otherwise. Also, because the law requires that elements of a crime must be pled, the charging instruments must allege (plead)and prove the culpable mental state (element).

Section 6.03 TPC defines four culpable mental states. Prior to the enactment of the TPC in 1974, Texas law contained a bewildering array of descriptions of mens rea (mental states), including willfully, intentionally, knowingly, negligently, recklessly, fraudulently, maliciously, Following the lead of the Model Penal Code, one of the purposes of the TPC revision was to organize this chaos into four separate mental states, each with its own definition. It is vital that you understand how those four culpable mental states are defined. You must look at Section 6.03, but briefly intentionally means acting with the conscious objective or desire to engage in the conduct or  cause the result. (Note that the definition of intentional expressly applies to conduct or result but, unlike the MPC, the definition says nothing about attendant circumstances.) Knowingly with respect to the nature of one's conduct or the circumstances surrounding one's conduct means acting with an awareness of the nature of the conduct or that the circumstances exist. Knowingly with respect to a result of one's conduct means awareness that one's conduct is reasonably certain to cause the result. Recklessness with respect to circumstances surrounding one's conduct or the result of his conduct means that he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Criminal negligence with respect to circumstances surrounding conduct or the result of conduct occurs when one ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. [Note: TPC's "criminal" negligence differs from ordinary tort negligence that you study in the Torts course; criminal negligence requires proof of negligence, i.e., failure to perceive a substantial and unjustifiable risk of circumstances surrounding one's conduct or the result of one's conduct, that is a gross deviation from the standard of care that an ordinary person (The MPC uses the standard of the "reasonable" person.) would exercise under all the circumstances as view from the actor's standpoint. So you'll have to have a gross deviation (departure) from the standard of care to have TPC criminal negligence, rather than a simple deviation that would characterize so-called ordinary or simple tort negligence. Of course, TPC criminal negligence does not require that one be aware of the risk or consciously disregard it; what makes one culpable for criminal negligence is failing to be aware of the risk when one ought to have been aware of it.] [Note: Remember that when the definition of an offense plainly dispenses with any mental element, you are dealing with a strict liability crime that imposes criminal liability without consideration of culpable mental state.]

Sections 7.01 and 7.02 TPC deal with the important topic of complicity. Section 7.01 tells us the three ways that a person can be responsible as party to an offense, i.e., by his own conduct, by the conduct of another for which s/he is criminally responsible or by both. When a person is held to be criminally responsible for the conduct of another, we often call this vicarious responsibility (1). Under the TPC, each party is charged with commission of the offense. All traditional distinctions between accomplices and principals are abolished by Section 7.01(c). So it is no longer necessary to charge an aider as an accomplice to the crime. None of the old common law distinctions between accessories before the fact, principals in the first and second degree matter insofar as how the crime is charged or the time frame for putting an accomplice to trial. See Bullets III - Complicity The prosecution does not have to allege in the charging instrument that the person charged with commission of the offense is guilty, if at all, only by virtue of aiding another person in commission of the offense, e.g., as an accomplice. This is a critical concept to understand; otherwise, defense counsel might be be misled into believing that the prosecution has mischarged an offense because it did not name the accused as a party to an offense rather than as a perpetrator. Under the TPC the prosecution simply charges the accused with the crime without any reference to whether its theory is that the offense was committed by the accused's own conduct or the conduct of another for which s/he is criminally responsible. At trial, if the prosecution produces evidence that the accused may have aided another to perpetrate the offense, the prosecution will be entitled to an alternative jury instruction on vicarious criminal responsibility for conduct of another based on the applicable provision of Section 7.02.

Look at Section 7.02 and you will see that it tells you four different circumstances (theories of complicity) that make a person criminally responsible for the conduct of another. Section 7.02 (a) sets out three of those methods: first, where a person, acting with the kind of culpability required for the offense, causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense (For example, this might involve use of an infant or an insane or coerced person or simply a person who had no culpable mental state.); second, where a person, acting with intent to promote or assist the commission of the offense, solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense (This is the the most frequent circumstance utilized to impose vicarious responsibility under the TPC. Note that it differs from the common law in imposing responsibility when the aider merely attempts to aid the doer.); and third, where a person with a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, fails to make a reasonable effort to prevent commission of the offense. (This circumstance of omission to act or malfeasance is most easily understood when the person is envisioned as a cop.) The fourth circumstance is found in Section 7.02(b), the Texas version of the so-called Pinkerton Rule. It says that it two or more persons conspire to commit a felony and a different felony is committed than the one contemplated by their agreement, then all of the conspirators are guilty of the felony actually committed by one or more of them provided that that the felony was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of carrying out of the conspiracy. [Note: This circumstance is based on the person being a coconspirator, not on being an aider. "Agreement to commit a different felony" is the only conduct necessary to make the person potentially liable for the felony crime(s) of his/her coconspirator. Also, this rule of coconspirator complicity does not require that the person be charged with the inchoate crime of conspiracy.]

Chapter 8 of the TPC contains general defenses and affirmative defenses to criminal responsibility. Section 8.01 TPC provides the definition of insanity as an affirmative defense. Section 8.02 TPC - mistake of fact - makes it a defense if the actor had a reasonable but mistaken belief about a matter of fact for which culpability (a culpable mental state) is required. In almost all of the cases where the defendant is trying to negate a culpable mental state with the mistake of fact, the defendant would also have available the so-called "reasonable doubt defense" that the prosecution has not proved the allegation (criminal charge) beyond a reasonable doubt because the prosecution failed to prove the element of culpability (culpable mental state) as required by the definition of the crime. Section 8.03 TPC establishes that ignorance of the provisions of any law that has taken effect is not a defense and describes the limited affirmative defense of mistake of law based on what we call official interpretation of the law. Section 8.04 TPC - intoxication - expressly provides that voluntary intoxication is not a defense to crime. It does not make expressly clear whether the accused can nevertheless show that he was unable to form the necessary element of culpability (the required culpable mental state) because of voluntary intoxication. Case law in Texas has interpreted Section 8.04 as having this intent and has barred such proof. [Note: In some states and at common law, voluntary intoxication is allowed to negate specific intent of a specific intent crime. Also, the MPC provides, with exception, in Section 2.08 that voluntary intoxication can negative an element of the offense.] Section 8.05 - duress - defines the affirmative defense of duress (some refer to it as "coercion" or "compulsion") See Bushrod 2 - Unit 11. Section 8.06 TPC - entrapment - establishes the defense of entrapment which is now interpreted quite narrowly. The prosecution oriented Texas Court of Criminal Appeals changed the interpretation to one that focuses objectively on law enforcement conduct and subjectively on the background and predisposition of the accused. See Bushrod 2 - Unit 14Section 8.07 TPC - age or infancy or immaturity - establishes rules that distinguish the jurisdiction of the criminal court from that of the juvenile court. It provides that most offenses committed prior to age 17 are subject to juvenile court jurisdiction. Generally, if the offense (other than certain offense such as traffic violations) were committed before the accused's 17th birthday, the defendant has the defense of age. Be aware that there is an entirely separate body of law relating to the juvenile courts  - Title 3 of the Texas Family Code known as the Juvenile Justice Code. Provisions in that law provide for certification and transfer or waiver of the juvenile court's jurisdiction over a minor to the criminal court for prosecution as an adult. In addition, for certain very serious crimes there are provisions allowing the juvenile court to leave  open the  possibility of imposition of adult punishment upon juveniles when they reach the age of majority. Practice under the Texas Juvenile Justice Code, beyond the scope of this web site, is closely related to practice under the Texas Penal Code, one exception being that the juvenile courts are to act in the best interests of the child. See Bushrod 1 - Unit 10.

Chapter 9 TPC contains a number of justifications for what might otherwise criminal conduct. Each of these justifications un Chapter is treated as a defense. See Section 9.02 TPC. This is important re the burden of production and persuasion under Section 2.03 TPC. Section 9.22 TPC defines the defense of necessity, which in essence says that criminal conduct is justified if the actor was compelled to engage in conduct in order to avoid a more serious harm than the conduct itself. For example, one might use the defense in a case where it was necessary to burn a house in order to create a firebreak that would keep a forest fire from destroying an entire village or destroy a door or window of a mountaintop vacation house to gain shelter from a deadly blizzard. You can think of many possible examples, e.g., a druggist might dispense a drug without the required prescription to a person in extremis, a driver taking a severely injured person to the hospital might run a stop light, a prisoner might claim necessity if he escaped jail or prison to avoid rape, serious bodily injury or death, etc. The defenses of use of justifiable force in self-defense, Sections 9.31 and 9.32 TPC, and in defense of a third person, Section 9.33 TPC, may be relevant to assaults and criminal homicide. Section 9.34 TPC authorizes the use of force (non-deadly) to protect another from suicide or inflicting serious bodily injury on himself. Use of force and deadly force against another to protect one's own property and property of a third person is covered by Sections 9.41, 9.42, and 9.43 TPC [Note: For those not familiar with Texas, our State motto is "We have a lot of folks that need killing, but no cows that need stealing." - That's a joke.] The right of peace officers and citizens to use force, and in some circumstances deadly force, to arrest and search in detailed in Section 9.51 TPC. As we examine various cases, you will see how self-defense, the right to use force to prevent certain dangerous felonies, defense of a third person, and use of force to arrest or search overlap. See Bushrod 2 - Units 12 and 13. So you might find more than one of these justifications present in a single factual scenario.

Finally, Chapter 12 of the TPC defines the punishments applicable to the various levels of felonies (capital, first degree, second degree, third degree and state jail) and misdemeanors (Class A, B, and C). Felonies are best visualized as offenses that carry possible confinement in a prison or state jail. Class A and B Misdemeanors carry confinement in a county jail as possible punishments. Class C misdemeanors are those punishable by fine alone. It's hard to imagine now, but before the TPC took effect in 1974, each felony had its own individual punishment range; visualize, for example, a situation in which there were over sixty different forms of theft. Except for so-called exceptional (enhanced) sentences, the ranges of punishment for the five categories of felonies and the three categories of misdemeanors now fall into eight categories, See Section 12.21 - Section 12.35 TPC.

Here and Now - Recent Trends in U.S. Statutory Crime

The more corrupt the state, the more numerous the laws.
Tacitus (1)

Summum ius summa iniuria - More law, less justice.
                                                                                                                       Marcus Tullius Cicero (1) (2)

Under just about any conditions, anywhere, whatever you are doing,
there is some statute or ordinance under which you could be booked
if the government looks hard enough.

Where the law is uncertain, there is no law.

Expanding Federal Jurisdiction and Increasing Criminalization

If you think the title of this section is an exaggeration, think again. Though I haven't personally counted them all, there are roughly 4,500 federal crimes (1) Every state has its own code of crimes (1 - codes of states and nations). Municipalities have punishable municipal (city) ordinances. We've come a long way since the Ten Commandments. During the past score of years, the landscape of federal criminal law changed dramatically. Congress expanded federal jurisdiction; federal prosecutions began to target white collar crimes; the federals also expanded their interest in what otherwise might be called "street crime," e.g., drug possession and carjacking; and criminal penalties were enacted to sanction conduct previously regulated through administrative procedures. (1) (2) (3) (4) (5) (6 - gangs) We have witnesses increased criminalization of environmental violations (though the Bush2 administration did little to enforce them as our planet slowly dies) and more emphasis on vicarious liability. In addition, for twenty years the process of plea negotiation (plea bargaining) in federal court changed to accommodate the Federal Sentencing Guidelines promulgated pursuant to the Sentencing Reform Act. [Note: With the Booker and FanFan decision, the Guidelines became advisory rather than mandatory.] As they moved toward concrete and formula-driven sentences and away from parole, doing  federal time ceased to be a walk in the park.

In your own time, you have seen some developments in the law of crimes, e.g., targeted prosecution and conviction of major white collar criminals such as Bernard Ebhers (WorldCom), Dennis Kozlowski (Tyco), and Jeffrey Skilling (Enron). They were preceded by prosecution and conviction of billionaire Michael Millken in the Drexel-Lambert-Burnham junk bond fraud. [Millken, who is reputed to always keep and air-conditioned car running at his estate to avoid perspiring, kept the majority of his fortune, cut a sweetheart deal and served a few years in custody.] See Silver Bullets IV.

In 2012, with well over 2 million people incarcerated in state and federal prisons and jails, our federal prisons are bursting at the seams with defendants convicted of drug crimes. Many of these convicts are merely retailers (dealers) whose place on the street is immediately filled by another greed-driven crook. Does this federalization of drug crimes makes sense? It certainly makes possible enormous taxpayer funded expenditures in the war on drugs - money that vanishes without much seeming progress in controlling illegal drug use.

Bloating the Codes with New Crimes or Keeping Up with Changing Times?

US Federal Codes - New Crimes at the Federal Level: In the past two decades, we have seen a slow and steady effort on the part of the Congress to criminalize a myriad of misconduct, some of formerly handled exclusively by state penal codes and state court prosecutions. For an example of expanding federal criminalization, see United States v. Roderigo-Moreno, 526 U.S. 275 (1999). (1 - criminal defense lawyers' complaints about  over-criminalization and over-federalization of crimes), (2 - growth of federal crimes), (3 - front group tracks and complains about expanding corporate liability).  Some have called it "federalizing the criminal justice system." For example, there has been increased reliance on federal law to regulate commercial activity and financial crimes. Some of new federal crimes may be tacked onto a legislative initiative pushed by a regulatory agency. See Podgor, The Tainted Federal Prosecutor in an Over Criminalized Justice System, 67 Wash. & Lee L. Rev. 1569 (2010). For the view, in 1995 that federalization is a myth, see Klein et al., Overfederalization of Criminal Law? It's a Myth, 28 Criminal Justice 23 (Spring 2013); Little, Myths and Principles of Federalization, 46 Hastings L. J. 1029 (1995). Video

  • Violent Street Crime - With the passage of the Violent Crime Control and Law Enforcement Act of 1994 during the Clinton years, we witnessed an expansion of federal authority into the law enforcement  and penal superstructure, e.g., funding for 100,000 new police officers on the street boot camps for delinquents, and over $9 billion for building of new prisons. Congress also placed federal bans on assault weapons (FAWA). The federal death penalty was also greatly expanded. Areas theretofore labeled as "street crime" and formerly left to the states were brought within the federal arena, e.g., sex crimes, violence against women (VAWA), gang-related crime, hate crimes, etc.. One may ask whether expansion into the area of street crime, e.g., carjacking (1) under 18 USC Sections 2119 and Jones v. United States, 528 U.S. 227 (1999), under the aegis of the commerce clause is valid policy? Re carjacking, see the discussion of the Anti-Car Theft Act of 1992 and its successors. Are there some crimes, e.g. tampering with consumer products under 18 USC 1365, that are better controlled at the national level?
  • Intellectual Property - Two years later Congress focused its attention on the misappropriation of intellectual property with the passage of the Economic Espionage Act of 1996. (1 - 18 USC Sections 1831-1839), (2 - DOJ), (3 - DOJ cybercrime, computer crime, intellectual property) (Arms Export Control Act - current amended version) recognizing that the age of technology made defense and industrial secrets more readily subject to misappropriation, the act protected both against misappropriation of trade secrets with knowledge that the misappropriation would benefit a foreign power and garden variety misappropriation of trade secrets produce for or place in interstate commerce.
  • Stalking and Domestic Violence - In the 90's, the decade of the woman, Congress passed legislation designed to curb and punish domestic violence and stalking; with computers being widely available, the offense of stalking expanded to encompass cyberstalking. See  18 USC Section 875(c), Domestic Violence and Stalking. (1 - stalking discussed), (2 - stalking defined), (3 - stalking defined), (4 - types of stalking), (5 - cyberstalking discussed), (6 - DOJ report on cyberstalking), (7 - list of states with cyberstalking statutes), (8 - Office on Violence Against Women), (9 - sexual violence).
  • Prisoners' Rights - Prison Overcrowding - In Brown v. Plata, __ U.S. __ , 131 S.Ct. 1910 (2011), a 5-4 decision with Justice Kennedy joining the four progressive/liberal members of the court,  the USSC upheld the lower court ruling that put a cap on the state prison population in California, now at over 140,000 in facilities designed to accommodate not more than 80,000. The case highlights the conflicting values of public safety vis a vis decent living conditions for the prison population. The decision neither orders nor endorses prison releases. Other means, e.g., transferring inmates to out-of-state correctional facilities, moving low risk inmates to county jails, reducing sentences for inmates' positive rehabilitative conduct, and reducing the number of parole revocations, are expected to achieve the phased reduction in prison population. 
  • Computer Crimes and Internet Fraud - See the Computer Fraud and Abuse Act of 1996, 18 USC Section 1030. See also 18 USC Sections 1028, 1029. (1 - article re computer crimes), (2 - summary re computer crimes).
  • Terrorism and the Controversial Patriot Acts - In the hysteria, fright and panic that surrounded the 9/11 tragedy, the Bush2 administration, preying on and feeding the populace's fear, and a compliant Congress took six weeks to draft and  passed the infamous and misnamed Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, the USA Patriot Act, (1 - the Act) a piece of legislation that has been roundly criticized (1 - 2 - 3 videos) as snatching some precious individual liberties from the citizenry, e.g., expanding government domestic spying on Americans, in exchange for a false sense of security; the original act was modified in the USA Patriot Improvement and Reauthorization Act of 2005 (signed into law on March 9, 2006). The Act, way too complicated and broad based to summarize here, amended old laws and created new laws in numerous areas, e.g., domestic surveillance, international money laundering, bank secrecy, currency crimes, border control, immigration, terrorism. All these changes in the role of government added new drain lines to the national treasury. [Note: When we look back into the history of violence in the US, do we find instances of bomb throwing and death? Have you heard of the Haymarket Affair and The Trial of the Chicago Arsonists? Do we find instances of violence in the rise of the labor movement in the US where workers clashed with police and mercenaries hired by management?]
  • Partial Birth Abortions - In the area of abortion rights, partial birth abortions were a matter of controversy at the turn of the century, see Partial Birth Abortions (18 USC Section 153). [Note: Although stats tell us that 1 in 5 women  will have an abortion in their lifetime, the abortion rate is currently (2008) at its lowest rate since 1974 down 33% from its peak in 1980; in 2005 1.21 million legal induced abortions occurred; from 1973 through 2005 there were 45,000,000 legal abortions. Source - Guttmacher Institute.]  [Note: The abortion debate is one part of an overall struggle for women's rights in the US that has been going on for some time, see Women's Rights Petition to the New York Legislature (1854) and the Report thereon. There are other examples of women being on the wrong end of the stick, Salem Witch Trials (1)]
  • Animal Rights - After the turn of the century, animal rights came to the fore in the form of the Animal Fighting Prohibition Enforcement Act of 2007. This law could apply to other species, e.g., cockfighting, but was prompted by the increased activity in fighting dogs. It was dramatized when well known football quarterback Michael Vick was caught in the middle of an expansive pit bull dog fighting organization and convicted in federal (in a trial by jury) and state court (by guilty plea). Vick should be out of prison in 2009. Rumors are that numerous other professional athletes, with millions of dollars but room temperature IQs, have been involved in this activity. [Note: On the other side of the coin, be aware of The Animal Enterprise Protection Act of 1992 and its successor The Animal Enterprise Terrorism Act of 2006 (AETA) that put a leash on animal rights activists.] Are you aware of the fact that the Amish and Mennonite communities are heavily involved in the cash crop not of farm crops but of not so plain "pup py mills"? (1)(2)(3) Some would find the activities immoral. Should they be illegal? The Humane Society and ASPCA reveal the problem. One extra-legal solution: Don't buy your puppy from a pet store. Check with a local vet for the name of a reputable breeder. See the HBO documentary Madonna of the Mills.
  • Maritime Piracy - In the crazy world of today, the laws of maritime piracy are poised to made a comeback as Somali pirates continue to hijack huge supertankers off the coast of Somalia, an impoverished nation ruled by warlords and without a recognized government since 1991. Late into 2008, these ocean hijackers had captured 39 ships. Shiver me timbers! If these modern day "pirates of the Barbary Coast"  nab a tanker flying an American flag, we may again hear "Millions (make that hundreds of billions) for defense, but not one red cent for tribute!" see See Piracy (18 USC Sections 1651-1661).
  • Identity Theft Enforcement and Restitution Act 0f 2008 (ITERA) - (1) This law beefs up the ability of the federal DOJ and its cadre of government prosecutors to go after identity thieves, spammers, and phishers. The law does not require that there be interstate communication. It also provides awards to victims for damages and time lost to the cybercrime. Cyberextortion is expanded to include threats to make public data that has been hacked. - See the Identity Theft and Assumption Deterrence Act of 1998, 18 USC Section 1028, and the Aggravated Identity Theft Act of 2004, 18 USC Section 1028A  (1 - article re identity theft).
  • Disproportionality of Punishment re Crack Cocaine and Powdered Cocaine Under Controlled Substances Law- Crack cocaine is a favored drug of black cocaine users/addicts; powdered cocaine is favored by white users/addicts. For many years, the federal law re controlled substances punished the possession of crack cocaine much more severely than powdered cocaine. For example, possession of 5 grams of crack was punished at the same level as possession of 500 grams of powdered cocaine, a 100;1 sentencing disparity. In August of 2011, the Fair Sentencing Act of 2010 went into effect. The new Act closes the old gap in the law, reducing the sentencing disparity to 18:1.Insead of 5 grams, it now takes 28 grams of crack cocaine to trigger the mandatory five-.year minimum sentence In July of 2011, the U.S Sentencing Commission voted to allow sentence reductions for prisoners convicted under the old law. This means that some 12,000 people sentenced before the new Act took effect could have their sentences reduced by 3 years on the average. [See Kimbrough v. United States, 552 U.S. 85 (2007); State v. Russell, 477 N.W.2d 886 (Minn. 1991) where a state court struck down a similar state law based on an argument that the law violated the state consititution's equal protection standard.]                                                                                                                                                              

New Crimes and Defenses at the State Level:

  • Knowingly or Recklessly Exposing Another to the AIDS Virus - Roughly half of the states now have laws that provide penalties for knowingly exposing others to HIV. (1 - state-by-state).
  • Schemes to Defraud the Elderly - The information age has spawned more complex scams. Of course, anyone is a potential victim of consumer fraud, but elderly Americans are particularly vulnerable targets. Consumer protection laws have sprung up to counter this trend to cheat people out of their property. TPC - Special Texas Statutes That Protect Consumers From Fraud - In Texas we have specific penal statutes that protect the consumer from fraud, e.g., Deceptive Business Practices, Section 32.42 TPC; and penal statutes that protect business, e.g., forgery, Section 32.21 TPC, credit card abuse, Section 32.31 TPC, and false statement to obtain credit, Sections 32.32 TPC; misapplication of fiduciary property or property of a financial institution, including removing mortgaged property, Section 32.45 TPC. removing mortgaged property, Section 32.45 TPC; and issuing a bad check with knowledge that there are insufficient funds on account, Section 32.41 TPC ( a class C misdemeanor, irrespective of the amount of the check and without the necessity of proving intent to steal).
  • Animal Rights - The animal rights crowd are alive and well in Texas. They passed a new Cruelty to Nonlivestock  Animals in 2007, Section 42.092 TPC,  that made significant changes in Texas law. Dog fighting also got a spruce up. See Section 42.10 TPC.


The Future of Crimes and Defenses

  • A Uniform National Penal Code - How would you feel about a uniform national penal code that would supplant the various state penal codes (and ordinances) so that the law of state crimes and ordinances would not change at every state or (county/city) line as it does now?  See Logan, The Shadow Criminal Law of Municipal Governance, 62 Ohio St. L.J. 1409 (2001).

  • Reforming Federal Criminal Laws - How about reforming the +4,450 federal criminal laws (not counting the 300,000 federal regulations, violations of some of which are punished criminally) into a comprehensive coherent code? Shouldn't we make it easier for Americans to understand the federal criminal laws that bind them? One suggestion would be to make the code smaller, ridding it of offenses that are never charged. Another would be to organize the code into Chapters or Articles that cover similar offenses and defenses, much as Part II of the Model Penal Code and our own Texas Penal Code do. Georgetown University law school Professor Julie O'Sullivan opines that the federal criminal law does not even qualify to be called a criminal code. It is instead "an ‘incomprehensible,' random and incoherent, ‘duplicative, ambiguous, incomplete, and organizationally nonsensical' mass of federal legislation that carries criminal penalties." See O'Sullivan, The Federal Criminal "Code" Is a Disgrace: Obstruction Statutes as Case Study, 96 J. Crim. L. & Criminology 643 (2006). There was a serious but unsuccessful effort made from 1972 to 1982 to enact a new federal criminal code. See Gainer, Federal Criminal Code Reform: Past and Future, 2 Buff. Crim. L. Rev. 45 (1998) (1); the 1971 Final Report on Reform of Federal Criminal Laws - A Proposed New Federal Criminal Code (Title 18, United States Code) (1) posted on the Internet by Professor Paul Robinson of the University of Pennsylvania Law School. Part One -Table of Contents and Chapters 1-9, pages 1-45; Part Two - Chapters 10-16, pages 1-64 ; Part Three - Chapters 17-36, pages 1-62; Part Four - Tables.  Perhaps now is the time to try again. [Note: Comparatively speaking, in the summer of 2009, there are about 2,324 felony offenses defined by state statute in Texas. That number goes up every time the legislature meets - perhaps giving rise to the adage "No man's life or property is safe when the Texas Legislature is in session." Not all of those felonies are in the TPC, e.g., some are in the Texas Controlled Substances Act (Chapter 481 of the Health and Safety Code), and the Transportation Code. Nevertheless, thanks to the hard work fo the State Bar of Texas in 1974, certainly not to the Texas Legislature, the TPC is still one of the best in the nation.]

  • Decriminalizing Marihuana - Should marihuana (marijuana) be legalized? (1-Info re decriminalization) (2-info re weed) (3 - facts about pot) (4 - June 2011 -CT decriminalizes possession of half and ounce or less) (5 -NY City cops arrest about 150 perople per day for possession of small amounts of marihuana) The Gallup Poll of October 2013 VIDEO indicated that 58% of Americans favor legalizing marihuana so that it can be regulated and taxed. In 2009, TIME stated that 42% of American adults, more than 90,000,000, have tried pot. The last three Presidents, as well as some Supreme Court Justices, have used the herb. (1 - VIDEO) (2 - VIDEO -President Obama in 2004) (3 - VIDEO - a pharmacologist) (4 - Video - Fox News) (5 - VIDEO - medical marihuana from a vending machine) ( 6 - VIDEO - Robin Williams on alcohol and pot) (7 - VIDEO -CNN poll re legalization) (8 - VIDEO - British Columbia's pot production for the U.S. examined in a fascinating film -The Union: The Business Behind Getting High - 2007), (9 - BBC). While pot possession by presidents doesn't mean that possession should be legal, a conviction of any of the three would probably have meant no White House and a different history for our country. [Come to think of it, in the case of one (maybe two) of those guys that might have been an excellent outcome.] Take a look at Gonzales v. Raich, 545 U.S. 1 (2005) (Stevens) in which the USSC decided 6-3 that possession of home-grown marihuana is subject to federal control; the federal Controlled Substances Act (CSA) of 1970 outlawing cultivation, possession, and use of marihuana was held to be a valid exercise of congressional power; the USSC believes that Congress's authority under the Commerce Clause includes power to proscribe intrastate, noncommercial cultivation, possession, and use of marihuana in compliance with state law. The history of marijuana (reefer, jive, sweet Mary, pot, ganja, Zuatenejo rope, Maui wowwie, etc.) and its impact on American culture is the subject of the 1999 documentary "Grass" narrated by actor Woody Harrelson. See also "The True Tale of American Marihuana." and "The History of Cannabis." Check out this 1936 anti-pot X-rated movie. PBS The Pot Republic - California Pot History and BC Grow Ops. [Query: Would it be fair to speculate that this depression-era movie featuring bare female mammary glands did more to stimulate the cultivation and use of marihuana by rural male viewers than we could calculate? Can you visualize thousands of farm boys roaming the prairie looking for loco weed or trying to grow the stuff in the back of dad's corn patch; how many bozos dreamed of replicating the skinny-dipping scene with wild-eyed farm girls at the pond?]  In November of 2012, the voters of Colorado and Washington decided by referendum  that marihuna could be poossessed in small amounts. The DOJ says it will not try to overturn the CO and WASH laws. (1)(2)

  • Allowing Medical Marihuana - In United States v. Oakland Cannabis Buyers' Cooperative (Thomas), the USSC refused to prohibit federal enforcement of the CSA against a California drug coop that provided prescribed medical-marihuana under the state medical-marihuana law. The District of Columbia and eighteen states such as Alaska, Arizona, California (Prop. 215), Colorado (1-local referendum re non-medical marihuana), Connecticut, Delaware, Hawaii, Maine, MIchigan, Montana, Nevada, New Jersey, New Mexico (in 1978 the first state to pass a medical-marihuana law), Oregon, Rhode Island, Vermont, and Washington allow prescribed use of marihuana to alleviate pain in limited circumstances. Fourteen states have rolled back criminal penalties for possession of small amounts of pot. In 2010, there were approximately 370,000 legal medicinal pot users. In July of 2010, the U.S. Dept. of Veterans Affairs made clear that its patients won't lose their federally-sponsored health care if they use medical marihuana. As yet, no state has legalized and tax pot for more than medicinal purposes. In the November 2010 election, fearing a takeover of their lucrative medical marihuana business by large agribusiness, Northern California licensed commercial pot growers helped defeat the California Prop 19 initiative which would have legalized possession of an ounce (28.5 grams) of marihuana or less. [Note: As of January 1, 2011, possession of up to an ounce of marihuana is treated by California law as a civil infraction rather than a misdemeanor crime.] See The Green Rush a MOVIE about the lives of marihuna growers in Northern California. See also Patton, The Legalization of Marihuana: A Dead End or the High Road to Fiscal Solvency, 15 Berkeley J.Crim. L. 163 (2010). VIDEO - Legalizing pot (and gay marriage) in Canada. BC Bud in British Columbia. Amsterdam - Pothead Paradise (X-Rated) Marihuana - National Geographic Film. YouTube Cannabis Channel.
  • The AMA reports that marihuana can help relieve nausea, glaucoma, spasticity (extreme muscle tension), and pain. Negative effects reported include influence on mood and behavior and the heart, lungs, sexual potency, and blood flow. (Wiki - Medical Cannabis; NORML) A TIME magazine poll in 2003 reflected that 80% of American adults thought adults should be allowed to use marihuana legally for medicinal purposes. TIME says that in 2007 there were 872,721 marihuana related arrests. It will be interesting see if the Obama administration follows the same policy as Bush2 and his "Sancho Panza" Attorney General Alberto Gonzales in pursuing federal CSA charges against those who have a lawful right to possess the drug under medical marihuana laws. See (1 - VIDEO - 1A Obama AG Eric Holder suggesting that federal raids on state authorized medical marihuana distribution facilities will cease)  (2 Frontline VIDEO Busted).
  • 2010 Editorial Note: A harbinger of things to come? As I write this from Mission Valley, CA, I am glancing at a copy of the July 1, 2010, copy of The Reader, a free local publication distributed in the San Diego area. It contains 43 large multi-color medical marihuana ads. Last year at this time, there were 8 ads. Here are the current URLS of several: (1)(2)(3)(4)(5)(6)(7)(8)(9)(10)(11)(12)(13)(14)(15)(16)(17)(18)(19)(20). Doctors offer to prescribe for such maladies as anxiety, insomnia, anorexia, depression, nausea, muscle spasm, back/joint pain, stress, high blood pressure, and 250 other (unspecified in the ad) indications; discounts are offered for referring new patients who qualify. Many of the ads offer a free joint and free gram coupons. Some offer special top shelf 1/8's for reduced prices. Some are open 7 days a week. Some offer to match any price. One offers "30+ strains with 10+ kush varieties - purples, blue dreams, skunks, exotics and lower budget strains too." Dr. Drake offers discounts for military/veterans and a free cannabis ID card. The going price for new patients seems to range from $39 to $99. With over a 500% increase in ads in one year, one wonders how much revenue these non-profit dispensaries may generate.
  • Note: Industrial hemp (1) has many utilitarian uses. Industrial hemp is a strain of cannabis sativa but has many times less potency than marihuana and doesn't get one high. (1) The Declaration of Independence was drafted on hemp paper and George Washington and Thomas Jefferson grew industrial hemp on their farms. During World War II, hemp was used to make very strong rope and the Department of Agriculture made this film,Hemp for Victory” to encourage its cultivation.

  • Reevaluating the "War of Drugs" - As we all know, over a trillion dollars has been spent in the so-called "war on drugs" since Dick Nixon, a Scotch, martini, and wine drinker who didn't hold his liquor well and whose use escalated tremendously during the Watergate Era, conceived the idea around 40 years ago. The policy has been a failure by any measure in curbing our voracious appetite for artificial paradise. (1 -Statistics) Pharmacies are overrun by druggies abusing and addicted to prescription drugs. Prisons are buldging at the seams with drug offenders as the proportion of convicts serving sentences for drug offenses has skyrocketed 1100% in the past 30 years. Isn't it time to reassess the entire situation? See Barnett, Randy, The Harmful Side Effects of Drug Prohibition, 2009 Utah L. Rev. 11.  (1)(2-  interesting VIDEO from 1999) VIDEO - AMERICAN DRUG WAR - THE LAST WHITE HOPE  AN INTERESTING EXPERIMENT OF EXPOSING THE WOOD SPIDER TO A VARIETY OF DRUGS CANNABIS: RECREATIONAL USE - BBC

  • Making Room for Voluntary Euthanasia - None of us is getting out of here alive. Will euthanasia (assisted suicide) be legalized and regulated by more states? You should watch one man's last days on Frontline's  "The Suicide Tourst." If you are anti-voluntary-euthanasia, i.e., assisted suicide, take a look at the HBO film How to Die in Oregon (2011) and see if that alters your view.

  • Cleaning Up Wall Street and the Financial Industry - There was a time when being a banker or Wall Street broker was a respected profession. Will those times return? Will the US Congress continue to be bought and paid for by the corporate moguls of America or will it begin to act in the interest of the other 99% of the population, placing realistic criminal law curbs on white-collar fraud by unscrupulously shrewd corporate officers, investment bankers, Wall Street insiders, etc.? If so, will the government enforce such restrictions and regulations? See the so-called Wall Street Reform and Consumer Protection Act of 2010 that continues to allow hedge fund speculation in deriviatives and does nothing to curb "to big to fail" big banks. Note also that the Republican Congresss has gutted the effectiveness of the legislation by declining to fund personnel for enforcement. Obama cowed at appointing the Professor Elizabeth Warren, a brilliant, straight-talking lady who would be a superb president, to direct the Consumer Financial Protection Bureau. (She was elected as a senator from MA.) See Bullets IV for a discussion of the failure to prosecute any of the fat cats whose fraud brought on the Great Recession (1) that began in December of 2007.

"All law is pig law dressed up in the judge's robes." That is, law is a means for organizing
the ruling class and for coercing, cheating and disorganizing the working class.
Gordon, Robert, Critical Legal Histories, 36 Stanford L. Rev. 57 (1984).
What do you think?

* Where you came from is gone.
Where you thought you was going never was there,
and where you are is no good unless you can get away from it.
                                                            from Flannery O'Connor's Wise Blood

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Legalizing pot? Should it be available for medicinal use?

SIDEBAR
President Obama (He inhaled - frequently.) on medical marihuana.
Note that the White House policy on drug control has shifted to calling for a balance among law enforcement, prevention, and treatment, 
(Attorney General Holder's position.)
See Mikos, A Critical Appraisal of the Department of Justice's New Approach to Medical Marujuana, 201 Stan. L. & Pol'y Rev. 101 (2011)
See CA Prop 215, SB 420, 11362.5 Health & Safety Code. Until a recent forced scaleback, there were more medical-marihuana dispensaries (600) than Starbucks in Los Angeles.
HUMAN TRAFFICKING
"HATE" CRIMES
Do they merit increased punishment? Are we adding punishment to the act because of the actor's bad thoughts? Normally the 1st Amendment keeps us from punishing  hateful speech. Motive is typically not an element of crime. See Section 12.47 TPC and Article 42.014 CCP See also, Wisconsin v. Mitchell
  ,508 U.S. 476 (1993)
SOMALI PIRACY
STREET GANGS
See Bushrod 3 for a list of US gangs.
Modern day penal codes are composed of crimes and defenses, each of which is composed of legal elements. One of your jobs is to learn how to analyze a statute and find those legal elements.

It's said that Justice Oliver Wendell Holmes told the story of a Vermont justice of the peace before whom a civil suit was brought by one farmer against another for breaking a churn. The justice the peace took time to consider, and then said that he had looked through the statutes and could find nothing about "churns." So he gave judgment for the defendants.
Hooked: Illegal Drugs and How They Got That Way
(5 parts)
"Grass: The History of Marihuana"
Woody narrates this documentary. 1:18.38.
A Brief History of Weed
(There are several parts.
(2)(3)(4)(5 - I  assume the poster was so stoned he forgot to post part 5)
The mindset of the American public toward punishment
TRAFFICKING IN HUMANS
(Plus Sex Trafficking in Thailand)
DOG FIGHTING
ORGAN TRAFFICKING
Kidneys On Ice
Two-time former New Mexico Governor Gary Johnson's video on the drug war.
PRISON OVERCROWDING
IN CALIFORNIA
(2012 -  There are over 2.3 million people in US jails and prisons; 7 million people are under supervision in jails, prisons, probation,  or  parole;
2.2 million people are employed in the police, courts  or corrections.

AKA Tommy Chong
Crimebuster and Gospel Singer AG John Ashcroft, the only person in history to lose a Senatorial race to a dead man, goes after aging Tommy Chong.
Gaps in Texas Law
re Culpable Mental States

The TPC does not give proper guidance concerning the applicability of the required  culpable mental state to the three potential nonmental
elements that may appear in the definition of a crime,i.e., nature of the conduct (conduct - act or omission is always part of the definition), result of the conduct, and circumstances surrounding the conduct. (1

The TPC did not adopt the MPC Section 2.02.(4) rule of construction that the culpable mental state apply to all the material elements of the offense unless a contrary legislative purpose plainly appears. The TPC provides no such rule and the cases have indicated that the legislature purposely omitted the MPC provision.  The TPC leaves one with no guidance as to which elements the culpable mental state applies when a statute contains conduct, result and (attendant) circumstances. This leads to case-based efforts to determine legislative intent and uninformative jury instructions. (1)