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Criminal Defense FAQ

Criminal Defense

Wouldn't longer sentences mean less overall crime?

Sentence length may or may not correlate with a decrease in crime. Criminal punishment has four basic goals: rehabilitate the offender; restrain the offender from committing further crimes; exact revenge against the offender; and deterring the offender and the general public from criminal behavior. It is unclear if longer sentences actually convince a particular offender not to commit another crime. Recidivism rates are high, thereby suggesting that the average offender does not "learn his lesson" in prison and refrain from further criminal activity. One thing that does correlate positively with a reduction in criminal activity is increasing age; people under age thirty-five years commit most crimes. Therefore, it could argued that sentences that keep offenders in prison until middle age will reduce overall crime rates.

In addition, more time in prison could allow for more complete rehabilitation because the offender could stay in treatment programs for a longer period of time. Batterers are more likely to change the controlling behavior that leads to domestic abuse if they participate in long-term intensive educational programs. Sex offenders may benefit from multi-level treatment plans spread out over a period of time. In prisons with educational programs, offenders who stay long enough may receive high school or college degrees, or learn a trade, which will equip them to lead a law-abiding life. However, some states do not provide adequate resources for these rehabilitation programs.

Longer sentences do not appear to deter the general public from criminal activity. Many times, it is the perception of the likelihood of getting caught that deters a person from criminal activity, not the length of the sentence. Many crimes are committed on impulse, and the threat of a lengthy sentence does not even enter the offender's mind.

Finally, the cost of longer sentences in terms of tax dollars is very high. New prisons and jails must be built to accommodate all of the offenders who must be incarcerated under sentencing guidelines and mandatory minimum sentences.

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Is there a way to punish a criminal before he actually commits the crime he is planning?

In some circumstances a "crime" can be punished before it occurs. Many jurisdictions have either a general "attempt" crime or individual statutes that make attempted murder or attempted robbery or the like crime. The purpose of these statutes is to punish an individual who has shown himself to be dangerously inclined to commit a crime without waiting until the criminal act is actually completed. In order to convict a person for an attempted crime, the government must prove beyond a reasonable doubt that the person had the intent to do an act or bring about certain consequences that would amount to a crime, and that he took some step beyond mere preparation towards that goal.

Whether the offender has the intent necessary to be convicted of attempt depends on the mental state required by the underlying crime. If a person's actual intention at the time he or she attacked the victim was to cause bodily harm, he or she cannot be convicted of attempted murder if the victim does not die. (However, he could be convicted of the actual crime of murder if the victim died, even if his intention was only to cause bodily harm.) Likewise, a person whose plan to steal fails, can be convicted of attempted theft, which requires the intention to deprive another of his property permanently, only if he or she had the same intention at the time the crime was attempted.

Like most crimes, attempt requires a "bad act" as well as a bad intention. Therefore, the government must prove the offender engaged in conduct that tended to affect the crime. The exact nature of the act needed to meet this "preparation" requirement varies from case to case, depending on individual facts. For example, a person who checked in at the ticket counter of an airport and sat in the waiting area with a gun in his pocket was convicted of the crime of attempting to board an airplane with a gun. A person who planned to rob a bank messenger and drove around looking for him on his regular route, but did not find him, was not guilty of attempted robbery.

The punishment for the crime of attempt can be the same as the punishment for the completed crime. However, most jurisdictions make some distinction and provide for a lesser punishment for attempt. For instance, some states provide that the punishment for attempted first-degree theft will be the same as the crime of second-degree theft. The Model Penal Code, which is a source of many states' criminal statutes, generally requires the same punishment for attempt as the punishment for the underlying crime on the rationale that a person who attempts a crime has shown himself to be just as much in need of corrective sanctions as the one who actually completes a crime.

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Are all illegal drugs treated equally when it comes to punishing drug dealers?

No, the punishment for drug crimes depends not only on the criminal conduct of the offender but also on the classification of the drug. Federal sentencing guidelines begin with forty-three base offense levels and add or subtract a few levels depending on certain specified criteria. The higher the offense level, the harsher the sentence.

The base offense level under the federal guidelines differs for different drugs and for different amounts of the same drug. For instance, if the conviction is for the crime of manufacturing 300 kilograms of heroin, the base offense level is forty-two. However if the conviction is for manufacturing 300 kilograms of cocaine, the base offense level is thirty-eight. Crack is a form of cocaine and listed on the same schedule of controlled substances. However, the quantities of crack needed to impose a certain sentence are much less than the quantity of powdered cocaine. A person convicted of the crime of delivering 5 grams of crack will receive a sentence in the federal system of five to forty years. To receive that same sentence, a person would have to be convicted of delivering 500 grams of powdered cocaine.

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Can a person be guilty of drunk driving if he only had one drink?

The crime of drunk driving is generally defined in two ways: (1) having a blood alcohol content above the limit set by law, or (2) driving under the influence of alcohol. To find a person guilty under the first definition, a jury must be convinced beyond a reasonable doubt that the person's blood alcohol content (BAC) exceeded a certain amount. In most states the legal limit is .08 percent. Therefore, if it is proved that the person's BAC at the time of the incident was .08 percent or greater, he or she can be convicted of drunk driving, regardless of how much alcohol was actually consumed.

In contrast, the second definition does not refer to any particular BAC. It focuses on the driving behavior of the person; if it is impaired by the person's consumption of alcohol, he or she can be found guilty of drunk driving. Instead of presenting evidence of the BAC to a jury, the prosecution seeking a conviction under this definition generally presents testimony about the person's driving and consumption of alcohol. A police officer will often describe the impaired driving that lead him to pull the person over and the person's ability (or lack thereof) to perform field sobriety tests, such as walking a straight line. Evidence is also usually presented concerning the person's consumption of alcohol and if the jury then concludes that the prosecution has met its burden of proof, it will convict the person of drunk driving. A susceptible person may exhibit impaired driving after one drink and therefore be convicted of drunk driving.

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What is the role of the federal government in criminal law?

Ordinary crime has long been considered to be the concern of state government. States are authorized to protect their citizens from criminal activity by prosecution of common law and legislatively created crimes. The federal government, on the other hand, has a limited jurisdiction and must link any crimes it prosecutes to its powers under the Constitution. The most commonly used powers to support federal criminal legislation are the commerce power, the taxing power, and the postal power. While Congress has used these powers all along to define crimes, there has been an explosion of federally created crimes in the last half of the 20th century. Most of the laws controlling white-collar crime, like the RICO Act and the Victims and Witnesses Protection Act have been passed since 1950. In addition, Congress has become increasingly involved in the "war on drugs" with the creation of various drug statutes. Due to the severity of the penalties, many local prosecutors prefer to have drug charges prosecuted in federal court rather than file state charges. Most federal laws have as their rationale that the particular crime addressed needs a uniform response from the whole country or that it would be impossible to prosecute on a state-by-state basis. Federal gun laws provide uniformity, and federal computer laws make it possible to punish Internet crime.

The federal Constitution has always played a role in criminal law because it defines important individual rights that must be preserved even in a state prosecution of a state crime. The right to a trial by jury in open court, the right to cross-examine witnesses, the right to remain silent, the presumption of innocence, the right to be represented by a lawyer, and the right to be free of cruel or unusual punishment, are part of every state legal system in part because they are guaranteed by the Constitution. States are required to pay for attorneys for indigent offenders, and federal judges provide oversight to state prisons because of these constitutional requirements.

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Are grand jury proceedings secret?

Most courts have rules that prohibit disclosure of grand jury proceedings. The rules typically apply to the government attorneys, the grand jury members, and the court personnel. Violators of the rules can be held in contempt of court if a case against them is proved. It is often times very difficult to do so because of the problems with proving the leaked information came out of the grand jury proceeding itself and identifying exactly who made the prohibited disclosure.

Another problem in keeping the proceedings secret arises because the prohibition against disclosure often does not apply to a person subpoenaed to appear before a grand jury. Witnesses are free to discuss their testimony with the media or with anyone else, unless the judge expressly orders them not to.

Persons who are the subject of a grand jury proceeding are not entitled to any notice regarding the scope of the investigation or the nature of the incidents under consideration. They are generally not allowed to have an attorney present with them in the grand jury room, but may be permitted to leave from time to time to consult with an attorney outside the grand jury room.

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Are there special crimes to control children's behavior?

While there is a special court system to handle juvenile crime, there is usually not a special juvenile criminal code. Adult criminal codes are applied in the juvenile system, but the children are not generally accused of crimes. Instead, they are accused of committing delinquent acts. Sentences are designed to educate and rehabilitate children, rather than punish them. Children cannot be locked up in adult jails except for very limited periods of time. A child held in an adult jail must be out of sight and sound contact with the adult inmates.

In earlier days, special crimes that only applied to children did exist. These crimes were the so-called status offenses and punished behavior that would not be criminal if committed by an adult. Status offenses included running away from home, skipping school, disobeying parents, and breaking curfew. The federal Juvenile Justice and Delinquency Prevention Act made receipt of federal funds conditioned on eliminating status offenses, and most states have done so. However, these behaviors may still trigger an investigation by child protective services to determine if the child needs assistance from the court or social service agencies.

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What is the difference between probation and parole?

Probation is itself a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are seriously considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation. Common terms require the person to contact a probation officer once a week and to work, go to school, or look for work. Other terms include required attendance at alcohol treatment or narcotic-abuse programs, and educational classes on such subjects as anger management or good driving. The probation term is usually spelled out up front and once the person has completed that period of time, the sentence is over and he or she is free of court supervision.

The parole board that oversees prison populations grants parole. Typically the offender has been sentenced to an indeterminate number of years in prison. After the offender has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. Parole boards typically consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If the parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a certain period of time. If he or she completes the parole period, the criminal sentence is discharged.

Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision with the reasons for the revocation stated. A revoked parolee goes back to prison, and the offender whose probation is revoked begins serving the suspended sentence.

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How does a district attorney decide which criminals to go after?

A district attorney or prosecutor has the discretion to decide which crimes should be charged. In a typical scenario, the police investigate a crime and send a report to the prosecutor. The prosecutor then must decide whether to bring criminal charges against the subject of the investigation. The first thing the prosecutor looks for is a legally sound case. The case must not have any obvious defects that will get it thrown out of court, such as violation of the defendant's constitutional rights or destruction of evidence crucial to the defense. The prosecutor next decides if there is reliable evidence of the person's guilt. The prosecutor must determine that the amount of evidence, and the quality of evidence, makes conviction probable. Finally, the prosecutor decides if the case fits in with the office's policy objectives. If pre-trial diversion is available, such as an agreement by the defendant to undergo drug treatment in return for a suspended sentence, the prosecutor may prefer to dispose of the case that way. The defendant's culpability may be lacking because he acted out of a worthy motive, or has mental defects. Finally the prosecutor must decide if he has the resources to pursue the case or if it is a low priority for that particular office.

Many prosecutors are elected officials and as such can be voted out of office if the public does not like the emphasis of their office. Some prosecutors, for instance, may focus most of their efforts and the office's resources combating property crime, while others may focus on domestic abuse. If the electorate does not like the particular goals of the prosecutor, it can end the practice by failing to reelect the individual or by seeking to have them otherwise removed from office.

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What is the difference between rape and sexual assault?

Rape is often used as a generic term for unwanted sexual acts. However, its common-law definition required the sexual act to be intercourse, the rapist to be a man, and the victim to be a woman, other than his wife. Furthermore, the act had to be done by force or the threat of force. Common-law rules often required the rape to be corroborated by independent witnesses to negate the offender's defense of consent.

Many modern-day codes no longer use the term "rape" but instead use sexual abuse or sexual assault to define the prohibited acts. Traditional rape is covered by these statutes and may be designated sexual abuse in the first degree. However, most sexual assault statutes cover more kinds of sexual acts and apply to homosexuals as well as heterosexuals. Husbands can generally be charged with sexual assault of their wives, although they may receive a lighter sentence than non-marital sexual assault. Lesser offenses, such as unwanted touching or lascivious acts may be included in the definition of sexual assault.

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Is driving over the speed limit a crime?

Traffic violations can be felonies, misdemeanors, or infractions. Felonies and misdemeanors are crimes, but infractions are usually not thought to be part of the criminal justice system. Driving over the speed limit is usually classified as an infraction in those systems that use the infraction category and as a minor misdemeanor in those systems that do not. If driving over the speed limit is classified as a misdemeanor, it is technically a crime, but often such crimes are excluded from consideration in a person's criminal record. Whether speeding is an infraction or a crime, it is usually punished by a fine. A common scheme is for the fine to increase in proportion to the amount over the speed limit for which the ticket is written. Most jurisdictions tell the speeder the amount of the fine right on the ticket and often give instructions for pleading guilty and paying the fine by mail. The offender may have to pay a special fee to get a trial on the ticket and may not be entitled to a jury trial.

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Can only businessmen be charged with white-collar crimes?

The early definition of white-collar crime focused on the status of the offenders when it identified them as professionals or businessmen. However, the current definition of white-collar crime focuses on the actions committed and not on the vocation of the offender. White-collar crime is using illegal acts involving deceit to obtain property or services or to gain a business or professional advantage. Drug dealers have been charged with the "white collar crime" of mail fraud when they have delivered controlled substances through the mail. A printer was convicted of securities fraud when he used information he obtained in the course of printing corporate documents to gain an advantage in the stock market.

The RICO Act is generally thought of as a white-collar crime prevention statute. It punishes anyone who engages in a pattern of racketeering to generate income to buy a business or to conduct a business. The pattern of racketeering refers to at least two criminal acts listed in the statute that have a relationship to each other and occur within ten years of each other. Originally passed to control organized crime, RICO has been applied to drug dealers, and other non-organized crime defendants.

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Learn More: Criminal Law

Our criminal law has its roots in medieval England. Under early common law, criminal behavior was considered a breach of the King's peace and therefore a harm to society in general, which required governmental action. Only the major felonies, such as treason, rape, larceny, battery, kidnapping, murder, and arson were prosecuted and the only sentence was death. Today, criminal law is a vast and complex body of statutes, rules, and judicial decisions that touch nearly every aspect of our lives. State, federal, and municipal criminal codes have divided the old common-law felonies into many separate crimes and now provide an array of sentencing options. In addition, new crimes have been defined addressing drugs, automobiles, businesses, organized crime, computers and other modern situations.

A crime must be clearly defined in order to pass scrutiny under the federal Constitution, which prohibits the government from taking a person's life, liberty, or property without due process of law. A vague description of the crime or a lack of specific elements needed for committing the crime leaves a person without knowledge of exactly what is prohibited. In order to be a crime, the prohibited conduct must include both a "mens rea" or guilty mind and an "actus reus" or bad act. Accidentally hitting somebody when you draw back the baseball bat to swing at a ball is not a crime because it lacks the guilty mind. Wishing someone would drop dead is not a crime because it lacks the bad act. Examples of crimes and topics of interest in criminal law include:

Drug violations are criminalized in both federal and state criminal justice codes, which typically list controlled substances that may not be used except under a doctor's care. When a person uses one of these substances in violation of the permitted uses, he or she has committed a crime.

DWI/DUI means "driving while intoxicated" or "driving while under the influence" and refers to the crime of drunk driving. This crime usually includes driving while abusing drugs and the operation of other kinds of motorized vehicles, such as boats. Drunk driving is defined by each state's criminal code.

Federal jurisdiction refers to prosecution of crimes under federal law. Crime has traditionally been thought of as the domain of individual states, but Congress is authorized through its powers under the commerce, postal, and taxing clauses in the Constitution to make laws on crime in those areas. While a person can be prosecuted for the same incident under state and federal law, most often the choice is made to bring the action in state or federal court based upon resources available to investigate and prosecute the crime and on sentencing options.

Felonies are crimes punishable by over one year in prison. Most felonies are also punishable by a fine, but the critical determination for considering a crime a felony is the prison sentence.

Fraud is not a separate crime, but is an important part of property crimes such as embezzlement and false pretenses. The lawbreaker must knowingly and intentionally deceive the victim in some manner for the fraud element to be satisfied.

Grand jury proceedings are a method used by prosecutors to bring criminal charges against a lawbreaker. A prosecutor will often convene a grand jury when investigating complicated criminal matters.

Juvenile crimes are typically called delinquent acts and handled in a different system than adult crime. The major purpose of the juvenile system is to rehabilitate the offender, and many sentences require counseling or other family intervention. Juvenile court jurisdiction typically ends when a person turns eighteen.

Misdemeanors are crimes with a punishment of less than one year in prison. Many crimes, such as theft, have degrees of seriousness with the most serious being felonies and the less serious being misdemeanors. Procedures used in misdemeanor prosecution may be abbreviated.

Parole and probation are used in the sentencing phase of the criminal-justice system. Parole refers to the condition of supervised release that occurs after an offender has spent time in prison. Probation is a sentence imposed instead of prison and is usually subject to terms and conditions designed to make the offender a law-abiding citizen.

Prosecution refers to the government's case against the lawbreaker. A prosecutor - the lawyer presenting the government's case - has complete discretion to decide whether to bring a charge against an alleged offender and must prove all charges beyond a reasonable doubt.

RICO Act refers to the federal Racketeer Influenced and Corrupt Organization Act passed in 1970 as part of a larger organized crime bill. The purpose of the act is to combat the infiltration of organized crime into legitimate businesses, but also it has been used to prosecute individuals other than just those associated with organized crime.

Sex offenses include much more than the common-law crime of rape, which was limited to unlawful sexual intercourse by a man against a woman through the use of force or the immediate threat of force. Most states prohibit lesser invasions, such as unwanted touching, as well as permit prosecution of spouses for sexual assault. In addition, sex offenses include crimes that are defined based on the status of the victim, such as a child or therapy patient.

Traffic violations may be crimes or may be classified as violations and not considered part of the criminal law. Where they are crimes, they are typically considered the lowest level of misdemeanor and are generally only punished by a fine. However, some traffic violations can rise to the level of more serious crimes, such as vehicular homicide or leaving the scene of an accident.

Victims' rights refers to a body of emerging law that focuses on the needs and concerns of crime victims. Victims now have rights, for example, to information about the prosecution of the crime committed against them, to receive counseling and compensation, and to participate in the sentencing process.

White-collar crimes refer to the group of property crimes typically committed to gain a business or professional advantage. White-collar crimes include mail fraud, bank fraud, securities fraud, tax crimes, and environmental pollution.

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This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

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