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Criminal Law And Procedure, Part 2: Why Criminal Law?

In Part 2 of Teri Kanefield's "Criminal Law" series, she picks apart the history of criminal laws, tapping into how they came to be, and how differently criminal law has been applied to different groups of people.
Published:June 20, 2024

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

By Teri Kanefield

Welcome back to Everything You Ever Wanted To Know (and presumably more than you’ll ever need to know) about Criminal Law and Procedure.

Last week, in Part 1, the Basics, I covered:

  • What is a crime and how do we decide which behavior to criminalize?
  • Types of Crimes
  • When Rape Was a Property Crime
  • Financial Crimes
  • To Criminalize or Not to Criminalize (that is the question)
  • The War on Drugs
  • Handle-popping in Las Vegas
  • Why Not All Crimes Are Prosecuted
  • Not all crimes are detected
  • Not all crimes that are detected are reported
  • Not all crimes that are reported result in arrest

Today I’ll continue with:

Not all crimes that reach the prosecutor’s desk result in prosecution.
In an autocratic government, the autocrat decides who should be investigated and prosecuted. In an era of mob rule (lynchings), the mob decides. The way our government is structured, an independent prosecutor decides by (ideally) following the rules and guidelines in place.

Prosecutorial discretion

Prosecutors have wide discretion about who to charge and which charges to bring. They are not obligated to prosecute every case with merit that comes their way.

(1) The prosecutor might determine that prosecuting a case would result in more harm than good.

The law permits — and sometimes requires — prosecutors to base their charging decisions on non-legal considerations.

Suppose a woman is found drunk on the street. She stumbled around and did damage to public property. The damage was minimal. The police investigate and find out that, for years, she has been trapped in an abusive relationship and suffers from mental illnesses. By the time the police found her, she moved in with her daughter, was attending a rehabilitation program, and her daughter had repaired the damaged property. Because that would be the woman’s second offense, the penalty for her crime would be up to a year in jail.

A prosecutor might decide that prosecution would do more harm than good.

(2) The prosecutor might determine that there is not enough evidence to secure a conviction.

Bringing charges that are likely to result in acquittal (1) wastes government money, (2) upends the lives of citizens, and (3) causes people to lose confidence in law enforcement which makes it harder for law enforcement officers to do their jobs well.

(3) A prosecutor may drop a case if the victim does not want to press charges.

The victim, however, does not have the final say. Charges may be brought even if the victim doesn’t want to see the perpetrator prosecuted. The prosecutor decides.

To bring charges or not to bring charges (that is the question).

A prosecutor may, under the rules of ethics, make a public statement explaining why criminal charges have been declined or dismissed, but the prosecutor must take care not to imply guilt or prejudice the interests of the victims, witnesses, or subjects of other on-going investigations.

In other words, you may never know the reason prosecutors decline to bring charges.
Because prosecutors have to make difficult decisions, being a good prosecutor requires having a high level of moral intelligence. Not all prosecutors have this.

Moreover, people can have different ideas about what constitutes a moral decision.

I once tried to persuade a young prosecutor not to seek to incarcerate a 45-year-old woman who was charged with possession of methamphetamine. She had a dual diagnosis, which means she had both mental health issues and a drug addiction. Dual diagnosis is a thing because mental disorders can contribute to drug use and drug use can make the mental disorders worse. This particular woman had a history of homelessness, but when the case came to me, was in a steady job. She didn’t deny that she was caught with drugs, but she asked for a diversion program because she wanted help with her addiction. The prosecutor didn’t want to offer her diversion. He wanted jail time.

In response to what I thought were dazzlingly persuasive arguments for why she should be offered a diversion program, the prosecutor — who I estimated to be about 27 years old — said, “If I am caught speeding, I know I will have to pay the price of the ticket. She was caught with methamphetamine. So she has to pay the price.”

I tried to explain that there is no comparison between a person privileged enough to have finished law school by his mid-twenties speeding down the highway and a drug-addicted person with a history of homelessness and mental health issues.

He just kept repeating some version of, “If you do the crime, you have to do the time.” I felt like I was dealing with a person incapable of making difficult decisions that require a high level of moral intelligence. I’m sure he saw the matter differently.

(Fortunately, prosecutors don’t always get their way. My client went into a diversion program.)

We pause now for a test question. 

How would you respond to this question that recently came through my contact button:

The question that nags at me is why the state of New York never investigated Trump’s financial dealings when it has been apparent since, oh, Wayne Barrett’s 1991 book about him just how shady he is.

You can select more than one answer:

  1. There was an unspoken agreement among New York authorities spanning more than 30 years to close their eyes to Trump’s crimes.
  2. A book describing someone as “shady” is not grounds for opening an investigation.
  3. During the 1990s and into the 2000, prosecutors in New York were more focused on violent crimes.
  4. Trump was rich and the rich are never investigated.
  5. There is no explanation. The entire criminal justice system is broken.
  6. A more nuanced answer (“Teri must have been tired when she came up with these.”)

I told this story on my criminal law FAQ page:

Here’s the thing about lawbreakers. They get away with it—until they don’t. This is particularly true of crimes that happen behind closed doors without witnesses, but it also happens with crimes committed in public. I knew of one criminal defendant who earned his living running drugs from one place to another. He got 20K per run. That was about 20 years ago, so account for inflation when you consider how much he earned for relatively little work. He would pick up a package at point A and deliver it to point B and collect his payment.

Pro tip: If someone offers you 20K to deliver a package, don’t do it.

Anyway, he ran these packages for a long time. Then one day he was in a diner with a buddy. The guy at the table next to him was a cop. He and his friend were whispering and using the kind of slang that most people don’t understand. But they whispered a little too loudly. The cop both heard and understood. Yup. That was how he got caught. He had been thinking about retiring, but he pushed his luck a little too far.

I have observed that most people get caught when they push their luck a little too far.

Prosecutorial Discretion and Allocation of Resources

Prosecutorial discretion is also rooted in practical considerations. Even with only fraction of crimes reaching the desks of prosecutors, there are not enough resources to charge every crime that comes to prosecutors.

I mentioned last week that more than 4,500 behaviors are designated as crimes in the federal code, and most criminal prosecutions happen in state court. In the federal system alone, it is common for more than 50,000 criminal cases to be tried in a given year. Courts are working at capacity and prisons are filled.

To prosecute every crime that comes to the attention of prosecutors would require allocating far more resources to prosecutors and building more prisons, and as it is, the United States is consistently ranked among the countries with the highest prison population.

The purpose of criminal law is to protect people from harmful behavior. Punishment is the intentional infliction of pain on another person. Therefore, it’s worth pausing to consider whether criminal punishments achieve the goal of criminal law.

Last week, someone asked me this:

Why are some people prosecuted for copyright infringement, and others just sued for copyright infringement?

Copyright infringement is a crime. It is also a cause of action, which means you can sue someone for it. Other offenses, like fraud, are both crimes and causes of actions. So if you defraud someone you can be prosecuted. You can also be sued by the person you defrauded.

Among the differences between criminal and civil actions are (1) who initiates the action, (2) different standards of proof, and (3) possible remedies.

In a criminal proceeding, the government files the charges. In a civil proceeding, a citizen brings the lawsuit.

In a criminal proceeding, the standard of proof is “beyond a reasonable doubt,” the highest level. In civil cases, the standard of proof is usually preponderance of the evidence, the lowest level. (Preponderance of the evidence means “more likely than not” or “there is a 51% likelihood.”) Moreover, a defendant has heightened protections in a criminal trial.

This means you are more likely to win in civil court than criminal court on the same facts.

Moreover, the remedies are different. The general idea behind a lawsuit is to make the injured person whole, generally by forcing the person who did the injury to pay the cost of the injury. Lawsuits can also be used to stop a person from being a nuisance. If your neighbors constantly have parties until 3:00 am, you can call the police and try to press charges, or you can go to court and seek an injunction to prohibit your neighbor from continuing the nuisance behavior, or both.

If you are defrauded, you can call the authorities and press charges or (if you can find the person) you can bring a lawsuit to recover your money. Sometimes those convicted are required to pay restitution to their victims, but often the best way to get reimbursed for losses is to bring a civil suit.

A prosecutor told me once that when civil litigation gets heated, lawyers will often try to initiate criminal proceedings against their opponents. He said he stays out of those squabbles. (Fact: The practice of civil law is not civil.)

Theories of Punishment

Now I’ll play devil’s advocate and argue that the major theories of punishment are inherently flawed.

Retribution—“An Eye for an Eye”

The phrase “eye for an eye” appears in the Book of Exodus, but the idea of retribution predates the Hebrew Bible. The first known criminal code to embody the idea of retribution for crimes is the Code of Hammurabi. (The following is from Davies, W. W. The Codes of Hammurabi and Moses, with Copius Comments, Index, and Bible References.)

Hammurabi, who wanted to make sure criminals got what they deserved, codified these punishments:

  • If a son strikes his father, his hand shall be cut off.
  • If a man hits a woman so that she loses her unborn child, he shall pay ten shekels for her loss.
  • If anyone is caught committing robbery, he shall be put to death.
  • If a man makes an accusation against a man and cannot prove it, the accuser shall be put to death.

The Code of Hammurabi shows that ideas about what pain must be inflicted on a perpetrator to compensate a victim is culturally biased. Hammurabi believed that ten shekels would compensate a woman who was battered into miscarrying, whereas if you accuse someone of a crime and can’t prove it, you die.

Immanuel Kant, who was a believer in the concept of retribution, argued that when crimes go unpunished, the moral balance of the universe is disturbed. For the moral balance to be regained, according to Kant, crimes must be punished equal to the victim’s suffering.

The first problem with Kant’s theory, of course, is that if retribution is culturally biased, how can it redress the moral imbalance in the universe? Similarly, how do you decide what pain is equal to the victim’s suffering? Suppose a person shoplifts an item worth $20 from a department store. What jail time would be equal to the department store’s suffering?

Presumably administering too harsh a punishment would also throw off the moral balance of the universe.

The second problem is that, unless all crimes can be detected, reported, and prosecuted, it is delusional to think that criminal punishment restores the moral balance of the universe and (as I argued in Part I) given the way we live today, the only way to detect all crimes is to live in a police surveillance state.

Another issue: people who are cleverer or better liars are less likely to get caught. People with lower IQs are also more likely to incriminate themselves when questioned by the police. This may be why people with lower levels of intelligence are disproportionally represented in prison populations. One study showed that fewer than 2 percent of the population has an IQ below 70, but between 12 and 20 percent of current death row inmates have an IQ below 70.

Let’s take an example.

Marvin Wilson, a resident of Texas charged with capital murder, had an IQ of 61 if you believed the defense, or 73 if you believed the prosecution. (See Marvin Lee Wilson v. The State of Texas, 1999 and Marvin Lee Wilson v. State of Texas, appeal from the 252nd District Court of Jefferson County.)

In 1994, when Wilson was thirty-two years old, an anonymous informer told the police that Wilson was a drug dealer. When the informer was found dead, Wilson and another man, Terry Lewis, were arrested and charged with the murder. It was clear from other eyewitness accounts that the murderer had been either Wilson or Lewis. There was no forensic or other evidence pointing to which of the two men actually had committed the murder.

The question for the jury was which man had pulled the trigger. The jury decided Wilson was the murderer. The evidence against him was the testimony of Lewis’s wife, who told the court she overheard Wilson confess to the crime.

The jury believed that Lewis’s wife was telling the truth and Wilson was lying. Lewis was given life in prison. Wilson was sentenced to die in the electric chair.

The U.S. Supreme Court has said that executing people with an IQ below 70 is unconstitutional because it is cruel to execute a person who may not have a complete understanding of right and wrong, and who might not even understand why he is dying. Texas law forbids the execution of anyone whose IQ is under 70. So Wilson’s life depended on whether his IQ was above or below 70.

Wilson’s family members testified that Wilson showed serious mental limitations beginning in childhood. His cousin said, “The other kids in school would always call Wilson dummy.” According to the defense, Wilson couldn’t use a phone book, couldn’t match his socks, and didn’t understand what a bank account was for. He had been known to fasten his belt to the point of nearly cutting off his circulation. When Wilson’s son was born, Wilson began sucking his own thumb.

The court determined that his I.Q. was over 70.

Wilson died by lethal injection at 6:27 p.m. on August 7, 2012. His case drew national attention because of the fear that he died not because he was guilty but because a more sophisticated accomplice was able to convince a jury that Wilson was the guilty one.

The problem with a grand theory like ‘retribution restores the balance of the universe’ is that criminal justice is carried out by mere mortals.

Finally, those with resources are better able to withstand incarceration. When people with resources are incarcerated, their families have the means to survive. On the other hand, if the person paying the rent is incarcerated, the family will be homeless. If a single parent is incarcerated, the children will suffer.

When the same punishment falls more heavily on people without resources, it seems to me that it’s hard to argue that punishment restores the moral balance of the universe. Moreover, when punishment causes additional pain to innocent families and communities (as over-incarceration does) the retribution theory falls apart.

Deterrence (Parts of this section are from my Criminal Law FAQ page. Also I mentioned some of this last week.)

Deterrence is the theory that people won’t commit crimes—or they will be less likely to commit crimes—if they know they will be punished.

The (mistaken) idea that harsh punishment deters crime led the United States to build the world’s largest prison system. I mentioned last week that the United States has one of the largest per capita prison populations in the world. (In 2014, it was the largest. We’ve improved somewhat.)

The United States also has some of the highest recidivism rates in the worldRecidivism rates prove 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.

It’s almost as if criminal punishments make someone more likely to commit more crimes.
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.”

The theory of deterrence assumes that people can make rational decisions, but if someone has something so deeply wrong with their brain they can’t think rationally, the threat of punishment will not act as a deterrent, particularly if the person is planning to kill himself along with others.

Take Charles Whitman for example. On August 1, 1966, Whitman went on a shooting rampage, killing fourteen students and terrifying the entire campus. During the weeks leading up to the killings, he’d been complaining of headaches and an altered mental state. Before climbing the tower, he wrote a suicide note that read, “I do not really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However lately (I cannot recall when it started) I have been a victim of many irrational thoughts.” He also wrote, “After my death, I wish that an autopsy would be performed on me to see if there was any visible physical disorder.”

After Charles Whitman’s death, an autopsy revealed that he had a brain tumor pressing against the part of the brain believed to be responsible for regulating emotions. By his own admission, his thinking had been disordered and irrational in the weeks leading to his killing spree.

I worked on a defense team once where experts testified that brain scans showed that the defendant had limited ability to process information or control his behavior.

Paradoxically, deterrence does work on rational and law-abiding people. Story: One day my husband realized he’d gotten on the light rail but forgot his ticket. He was nervous until he could get off the train and purchase one. He was terrified of the embarrassment of being asked for a ticket and not having one. This meshes with the National Research Institute’s conclusion that fear of getting caught is often a bigger deterrent than harsh punishment. In other words, law-abiding people are likely to be more careful if they understand the consequences — but law-abiding people are not the problem.


The idea behind incapacitation is that we put criminals in jail so that they cannot commit any more crimes. Like other theories of punishment, this one appeals to common sense. Convicted criminals cannot be involved in further crimes against society if they are in jail.

The reality is that crimes happen in jail and from jail. Very few crimes carry lifetime sentences. People often emerge from prison hardened, radicalized, and more inclined to commit crimes than before they were imprisoned.

Reformative Theory

Reformative measures, such as diversion programs (as opposed to prison) are becoming more common.

It seems to me that reformative measures work with certain kinds of crimes and certain kinds of lawbreakers. A drug addict or person with mental disorders or a person trapped in a destructive family situation is likely to be helped through reformative measures.

For corporate crime to be detered through reformative measures, it seems to me we need something more sophisticated than, “All members of this Board of Directors are required to enroll in classes so they can learn that their greed and destructive behavior is harming society.”

Criminal law functions differently in a village or community where everyone knows each other. Tens of thousands of criminal cases are filed each year in the U.S. federal system and most crimes are prosecuted in state courts. Jurors are not personally acquainted with the defendant. Criminal justice thus often resembles an impersonal conveyor belt making reformative measures less likely to be effective.

Two theories of Criminal Law

The first theory is that the real problem is street crime: Theft, vandalism, burglary, gang killings, etc., and resources should be used in policing communities. (This is the view generally held by conservatives.)

The second theory is that the real problems are financial and white-collar crimes: Resources should be used to prevent corporate wrongdoing and what we think of as street crime can be better resolved through mental health and community services. (This is the view generally held by liberals.)

I will leave you with a few questions to think about. (Consider these ungraded essay questions)

Is it possible that our theories of punishment are outdated? Spanking children, for example, went out of style when medical and mental health professionals concluded that such punishment creates more aggression in children.

Why do we even have criminal law? Can we just do away with it? Is there a way to control or reduce crime through civil actions, interventions, social programs, civil remedies, and other actions that do not involve the government punishing people?

I promise I will eventually get to what happens after indictment, arrest, and trial, but all this stuff is so interesting (don’t you think?) that we have to pause to think about what criminal law actually achieves and what it can achieve.

And now class is dismissed. I will see you back here next week.