Resolute Square

Criminal Law and Criminal Procedure, Part 1: The Basics

Teri Kanefield looks at the fundamental principles that shape our understanding of crime and punishment, tracing the historical and cultural evolution of these concepts.
Published:June 13, 2024

*Published with the generous permission of Teri Kanefield. Read all of her writing here.

Teri Kanefield

Welcome to Criminal Law and Criminal Procedure 101. I’ll cover it all, so take out your notebooks. Warning: This stuff is so interesting that when we get to the end of this series you may start asking how to apply to law school.

At the end there will be a test, so please pay attention.

Before we can get to criminal procedure, we have to talk about criminal law in general. You have to know what something is before you can discuss how to enforce it. So, let’s start with the basics:

What is a crime and how do we decide which behavior to criminalize?

A crime is behavior that is punishable as a public offense.

Not everything bad or immoral is a crime. Cheating in a poker game with a friend isn’t a crime. Lying to your spouse about where you were last night isn’t a crime. Conversely, not everything that has been criminalized is bad or immoral. For example, before the Civil War, helping an enslaved person escape was a crime.

Laws — including criminal statutes — reflect the values of the lawmakers. As the culture changes, and the attitudes of lawmakers change, laws change.

The Rule of Thumb

For example, there was a time when it was considered bad policy to punish domestic violence. This is illustrated by the 1868 case of State v. Rhodes.

The husband, A.B. Rhodes, was charged with battering his wife. The evidence presented at his trial showed that he struck her three times with a switch about the size of one of his fingers but not as large as his thumb. The size of the switch was important because under common law at the time, a man could legally beat his wife if the switch he used was no bigger than his thumb—the so-called rule of thumb.

Rhodes’ defense was that his wife had said something that enraged him. At the trial, he couldn’t remember what it was. Because he couldn’t remember what she had said, the trial court concluded that she had done nothing to deserve the beating. Nonetheless, the court found A.B. not guilty of battery because the switch he used was smaller than his thumb.

The case went on appeal to the North Carolina Supreme Court.

The North Carolina Supreme Court rejected the Rule of Thumb and held that a husband does not have the legal right to beat his wife. If A.B. had beaten someone other than his wife, he would be found guilty of battery. However, because the wife’s injuries were not severe, the court felt that finding A.B. guilty in this case would cause greater harm to society than whatever harm his wife sustained from his beating.

The court explained that, if the beating was not severe, interfering in marital disputes would cause more harm than good because a wife could—and should—forget “temporary pain,” but if she took her domestic quarrel public, the pain of public humiliation for the family would not be easily forgotten and would cause more long-term damage to the family. Moreover, the court reasoned, courts should not try to resolve domestic quarrels because there was no way to really know who was at fault. After all, “Who can tell what significance the trifling words may have had to the husband? Who can tell what happened an hour before, and every hour or a week?

The court referred to the beating as “moderate correction” and said, “We will not interfere with or attempt to control [families] in favor of either husband or wife, unless in cases where permanent or malicious injury is inflicted or threatened, or the condition of the party is intolerable.”

The North Carolina Supreme Court’s attitude toward domestic violence in 1868 reflected the general attitude of courts and law enforcement until relatively recently. Until late in the 20th century, police and law enforcement generally closed their eyes to domestic violence. Eventually that changed under pressure from women’s activists.

Types of Crimes

There are four categories of crimes: (1) Violent crimes, such as murder and battery; 2) Property crimes, such as burglary and vandalism, 3) White collar crimes, such as financial fraud, tax evasion, and embezzlement, and (4) victimless crimes where nobody is injured (drug possession is considered a victimless crime.)

When Rape Was A Property Crime

Throughout most of our history, rape was a property crime, which makes sense if a woman is considered property. An unmarried girl was her father’s property. A married woman was her husband’s property. If a virgin was raped, the property damage was to her father. If she was married, the damage was to her husband.

If she wasn’t a virgin and wasn’t married, there was no crime (because the property was already damaged). A man couldn’t rape his wife (his own property) and rape of enslaved women wasn’t a crime. Attempted rape wasn’t a crime because there was no property damage.

Rape laws were generally intended to protect (white) men from false accusations. They were not intended to protect a woman from attack. (A woman was expected to guard the goods.) If she was raped, courts wanted to know what she had done to prevent, or invite, the attack. A woman’s word was generally not sufficient evidence to prove the crime of rape — unless a white woman accused a Black man. Then, she was taken at her word.

Until the second part of the 20th century, rape was difficult to prosecute. Then, in the 1970s and 1980s, under pressure from women activists, that began to change. (For more on that, see Rape is a Means of Asserting Patriarchal Power.)

Financial Crimes

Until relatively recently, white-collar crimes often went undetected because there were so few regulations or means of investigating such crimes. It wasn’t until the 1970 Bank Secrecy Act that law enforcement was given the ability to detect money laundering and bank fraud.

During the decades since, as the public has come to recognize the seriousness of financial crimes, other laws have been passed making it easier for law enforcement to gather evidence of financial crimes.

To Criminalize or Not To Criminalize (that is the question)

A person can be held responsible in civil court for damage they cause when they are negligent, careless, or cause deliberate harm. With rare exceptions (such as punitive damages) a person is not punished in civil court. Instead, they are ordered to pay for the damage they cause or cease harmful behavior.

In a criminal case, the remedy is punishment.

In a civil case, one citizen brings an action against another (or a person sues the government). In a criminal case, the government brings the action against an individual.

The differences are profound. Punishment is the deliberate infliction of pain. In a criminal proceeding, the government — with its vast power — is seeking to deliberately inflict pain on an individual. This, by the way, is why I believe issues of criminal law and procedure are the most important legal issues.

Deciding which behavior should be criminalized is not as easy as you might think.

A few decades ago, California was considering passing a law making it a crime for a parent to engage in domestic violence in the presence of a child. The punishments included imprisonment. One of my former law professors recommended that an advocacy group hire me to write an argument against passing the law.

I did the research and learned that “engaging in domestic violence” included getting beaten up by a domestic partner and that most people who were beaten up by domestic partners were women trapped in bad relationships. It was almost always the man who did the beating.

I’m sure that the legislator who proposed this particular law meant well. She wanted to deter bad behavior and protect children. Indeed, beating up your wife in front of the kids is certainly terrible behavior that society has an interest in deterring, but it seemed to me that criminalizing and incarcerating the person who was getting beaten was not a sensible remedy.

I wrote up my research and argued that such a law would criminalize the victims of domestic violence instead of offering intervention and help. The organization offered my arguments to the state legislators and emphasized a phrase I used, “The law will criminalize victims.” The law was not passed.

If you don’t like the criminal laws in your jurisdiction, pay attention to local elections and elect lawmakers who share your values about what should be criminalized and where law enforcement should focus its attention.

Some people think the way to improve the country is to criminalize more bad behaviors. They think if we punish more bad people, we will solve our woes. Others think that overcriminalization is a problem.

In 2014, the United States led the world in rates of imprisonment:

Things have improved somewhat since, but Americans remain in love with prisons:

The fact that the United States also has some of the highest recidivism rates in the world suggests that criminal punishment doesn’t deter crime. According to the National Institute of Justice (the research, development, and evaluation agency of the U.S. Department of Justice) almost 44% of criminals released return before the first year out of prison. In 2005, a whopping 68% of 405,000 released prisoners were arrested for a new crime within three years, and 77% were arrested within five years.

The National Institute of Justice concluded that “sending an individual convicted of a crime to prison isn’t a very effective way to deter crime” and “increasing the severity of punishment does little to deter crime.”

To put the matter in simple terms, some people are not deterrable because something is wrong with their brains. Instead of “teaching criminals a lesson” prison often hardens them more.

Moreover, overcriminalization when certain communities are targeted breaks up families and destroys communities.

The War on Drugs

In 1971, Nixon declared drug abuse “public enemy No. 1” and declared a “war on drugs.” In 1973, he created the Drug Enforcement Administration (DEA) to coordinate the efforts of all other agencies. Reagan expanded the reach of the War on Drugs. In 1980, there were 50,000 incarcerations for nonviolent drug offenses. By 1997 there were 400,000 incarcerations for nonviolent drug offenses.

The War on Drugs began winding down when people demanded changes on the grounds that drug laws were culturally biased (drugs used by Black communities, for example, were more heavily penalized than drugs used by white communities) and prisons were overflowing with drug addicts when what they needed was medical intervention.

Handle Popping in Las Vegas

More than 4,450 behaviors are criminalized in the federal code, and most crimes are state crimes. Given the vast number of crimes on the books, it is not surprising that the crimes include some rather obscure behaviors. For example, handle popping in Las Vegas.

On December 10, 1989, Timothy Childs was in John Ascuaga’s Nugget Casino in Sparks, Nevada, playing a slot machine. He’d discovered that if he pulled the handle in a particular way, one of the three reels would stop spinning prematurely. As a result, he was able to manipulate the machine and win.

Karen Fleiner, an operations manager at the casino, was watching the gamblers through a special monitor, looking for irregular or suspicious behavior. After observing the way Childs pulled the machine handle, she suspected him of cheating and called the Gaming Control Board. The Gaming Control Board sent a law enforcement agent to the casino.

The agent, Robert Johnson, arrived within a few minutes of Karen Fleiner’s call. He watched as Childs popped the handle and caused the machine to stop rotating. Childs was arrested and charged under a Nevada law that made it a crime to “vary the pull” of the slot machine handle.

Childs was charged and found guilty. The court imposed the standard penalty for violating that particular statute and sentenced Childs to six years in the Nevada state prison.
Childs appealed.

The Supreme Court of Nevada reversed the decision, finding that the law was unconstitutionally vague.The vagueness doctrine says that criminal laws must state explicitly and definitely what conduct is punishable. Criminal laws that violate this requirement are said to be void for vagueness.

The court reasoned that because varying the pull doesn’t damage or alter the machine, an innocent player not intending to cheat could stumble across the technique and use it to his advantage. Some slot machine players move from one machine to another, hoping to increase their odds. Some players pull the handle slowly or quickly, hoping to increase their odds. If these things are not cheating—the court reasoned—how could varying the pull of the handle be cheating if the construction of the machine allowed for that without damaging the machine?

The Nevada Supreme Court thus found the law unconstitutionally vague and reversed the conviction.

The story doesn’t end there.

Proving himself to be a true gambler, Timothy Childs pushed his luck. After his conviction was reversed, he went back to the casinos to pop some more handles and win some more money. Why not? After all, the Nevada Supreme Court had said it was legal.

When casino monitors again spied him popping the handles and winning lots of money, they called the police. Again he was arrested. This time he was charged with “fraudulent slot machine manipulation.” As before, the trial court found Childs guilty. He was sentenced to ten years in prison. (Ten years!)

When his case went to the Nevada Supreme Court on appeal, a majority of the Supreme Court justices again voted to overturn his conviction, reasoning that if the machine allowed for popping the handle without damaging the machine, they just couldn’t see Child’s behavior as a crime deserving of imprisonment. One of the judges disagreed and felt it was clear that Childs intended to cheat, but he was outvoted.

Once again, Childs walked away free.

I have no idea how handle popping and “fraudulent machine manipulation” became crimes in Nevada, but I assume Nevada has some kind of influential Casino Lobby.

Not all crimes are prosecuted because not all crimes are detected

Crimes that are committed in public or in the presence of others, like vandalism or robbery, are easier to detect than crimes that are committed in private, like money laundering and tax fraud.

Sometimes I think people imagine that law enforcement operates like a casino in Nevada with monitors watching the population for signs of suspicious or irregular behavior. When an ever-vigilant government monitor detects something suspicious — “Look at that guy! He seems suspicious” — the monitors call the authorities, who promptly arrest the person and or begin looking for evidence of a crime.

In the early 1990s, I was speaking to a visiting scientist from the former East Germany. He was educated in the former Soviet Union and had spent his entire life under communist regimes. I told him (naively) that the United States is too big for each American to be monitored the way the Stasi monitored East Germans. He was amused and proceeded to explain exactly how a secret police in the United States could be created and enabled to monitor the actions and speech of every person living in the United States and reach any evidence of crimes.

I felt horrified, and grateful for the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Our government can’t go snooping. We don’t have a secret police monitoring the population. I, for one, think this is good. Unchecked power is too easily abused.

It also means that not all crimes will be detected or prevented. No doubt there was less crime in East Germany under the Stassi than there is today in the United States.

Not all crimes that are detected are reported

Family members, friends, neighbors, and fellow community members often find solutions other than calling the police.

Not all crimes that are reported result in arrest

Police usually detect crimes when someone calls 911 to report an incident.

Sometimes the police arrive and find a situation where there is a possible crime, but for one reason or another, decide to give a warning and leave. I had one case in which neighbors were in a bitter feud and continually called the police on each other to report made-up crimes. The police have to make judgment calls.

When the police find evidence of a crime, they write up a report and submit it to a prosecutor, who then decides whether to charge the crime.

The White Collar Crime division of the FBI receives information about crimes from other law enforcement agencies and regulatory agencies such as the Securities and Exchange Commission, the IRS, the Postal Inspection Service, and other agencies. The FBI investigates and turns over findings to prosecutors.

The Statute of Limitations

Statutes of limitations are laws that limit how far back the government can go when investigating and prosecuting crimes. Because it’s difficult to gather accurate evidence of a crime that occurred many years ago, the statute of limitation ensures accurate fact-finding.

With federal crimes, most crimes have a statute of limitation of five years. Some crimes, like rape or child abuse that can take years for a victim to be able to speak, have longer statutes of limitations.

Like all laws, statutes of limitations are changing, particularly as forensic science makes it easier to verify old evidence.

I will stop here and pick up next week with investigations, prosecutorial discretion, arrest, and indictment. 

Here is today’s test question. It is multiple choice. Here is a question I often get:“A person in Texas was jailed for something trivial. A person in California did something far worse and is out on bail. How can that be?

How would you respond?

  1. There is no fairness. The system is hopelessly broken.
  2. The people in Texas elected lawmakers with different attitudes toward criminal law than the people in California.

And now, a story.

My stepson is a law-abiding man in his thirties, but he was once a cheeky kid who liked messing around with rules. While I was studying for the bar exam, he amused himself by reading my flash cards. As a result, he understood things like the requirement that people have fair notice of what behavior is punishable.

One night at dinner when he was about twelve he asked me, “Can I get in trouble for doing something if it isn’t listed in the school manual?”

I understood why he was asking, so I said, “Yes, you can get in trouble. Some rules are so general that they apply to lots of things. For example, you’re not allowed to do something risky that will endanger yourself or anyone else.”

“But what if it’s something that isn’t dangerous?” he asked.

“Like what?”

“Well, for example, getting up on the school roof.”

My husband looked him in the eye and said sternly, “Don’t do it.”

The next day I received a phone call from the middle school principal. You guessed it. My stepson and a friend had climbed on the roof of the two-story school building. After being brought to the principal’s office, my stepson informed the principal he had a defense: There was nothing in the list of school rules against climbing onto the school roof, so he could not be punished for it. The principal was not persuaded. My stepson was suspended from school.

Later my stepson was pleased to report that the middle school manual now contains a rule against climbing onto the school roof.

Why I Shut Down My Comment Section

This is my personal website so I need to moderate the comments, and the task was becoming too time-consuming. This way I can publish my blog on Saturday and take off Saturday evening and Sunday. I have deadlines with my next book and limited time.

But I often get ideas for blog posts from the comments. So here’s a contact button for questions and comments. I will probably not answer. Instead, I may select a few to answer here.