When a juvenile is arrested, he’s assigned a juvenile counselor who works closely with him to get him back on the law-abiding track, which means identifying problems at home, drug use, or other environmental factors that are causing difficulty.
Most juveniles are given the chance to avoid formal trials and, thus, avoid creating permanent records by handling their cases informally. In other words, they admit their conduct to the juvenile counselor and are given some form of light punishment, such as community service.
For more serious offenses, or for chronic offenders, the system may treat the juvenile formally. This means he has the right to an attorney and a trial before a judge. If he’s found responsible (kids aren’t found “guilty”), the judge can sentence him to do some time in a local juvenile facility or even a state-run youth correctional facility — the equivalent of an adult state prison. However, recognizing that incarcerating kids is often counterproductive, there’s a strong bias against ordering kids to do time. Usually judges don’t incarcerate kids unless they repeatedly violate their probation.
For very serious offenses, such as murder or rape, all states have laws that allow judges to waive the kid into adult court. In other words, the kid is tried like an adult and, if found guilty, sentenced like an adult. So in most states, a 16-year-old murderer can be sentenced to life in prison. If you’re interested in more details about the juvenile justice system, turn to Chapter 22.
Chapter 2
What Is Crime?
IN THIS CHAPTER
In Oregon, threatening to kill someone in the future is legal, but preventing a pregnant pig from lying down can be illegal. Seriously.
The good news is that if you choose to make a pregnant pig unhappy in Oregon, you’re breaking the law but not committing a crime. What?
For an activity to be criminal, it must carry the possibility of jail time, yet some illegal acts are only punished by a fine. (For example, messing with a pregnant pig won’t send you to jail — what a relief!)
In this chapter, I explain how laws are created and why they change over time. I also show you the essential elements of a criminal law, which are important to know because the way in which criminal laws are written largely determines whether they achieve their goals in the long run.
Understanding the Two Categories of Criminal Activity
At the simplest level, you can divide criminal activity into two categories:
Acts that are inherently bad
Acts that aren’t bad but need to be regulated
Check out the following sections for more details on these categories.
Violating natural laws: Acts that are inherently bad
When you think of criminal activity, you likely think first of violent acts, such as murder, rape, kidnapping, theft, and assault. Crimes like these are known as mala in se, which is Latin for “wrong by itself.” (A few lawyers, myself included, still like to throw around Latin phrases — it makes us sound smart, right?)
Mala in se crimes are bad acts that people instinctively know are crimes. A general consensus in society says that these acts should be illegal because they’re immoral. This consensus didn’t just spring up overnight — it has been developing as part of English and U.S. common law over the last 600 years.
Today, legislatures in most states have passed laws making mala in se acts criminal, which means that the justice system no longer relies on the common law to convict someone of this type of crime. (However, common law continues to play an important role in appellate decisions — court decisions made during appeals after people are convicted of crimes. See Chapter 19 for a detailed discussion of appellate courts.)
Violating manmade laws: Acts that aren’t inherently bad
Although some acts are clearly wrong, many others aren’t naturally evil, but, nonetheless, they need to be regulated. These acts are known as malum in prohibita, meaning “wrong because prohibited.” Preventing a pregnant pig from lying down, for instance, clearly falls within this category. In fact, a large percentage of criminal laws today are malum in prohibita. Following are some other examples of malum in prohibita crimes:
Driving without a license
Hunting without a license
Carrying a concealed weapon
Selling a drugged horse (in Oregon)
Catching fish with your bare hands (in Indiana)
Throwing snow “missiles” (in certain parts of Missouri)
Giving alcohol to a moose (in Fairbanks, Alaska)
HOW THE COMMON LAW DEVELOPED
In England prior to the 1600s, private citizens or government officials brought cases before judges, who would then decide whether certain acts were illegal. The judges wrote opinions that contained the reasoning behind their decisions. Over time, judges came to rely on the consensus that emerged from these opinions. The collection of these written opinions came to be known as the common law. By the 1600s, the judges — not the English Parliament — had defined crimes such as murder, theft, rape, and assault.
Of course, clever citizens repeatedly found new ways to commit immoral acts, so society continued to call on judges to refine the common law by defining new crimes. For example, in the 1700s, judges concluded that inciting rebellion against the government should be criminalized; thus, they created the crime of sedition.
Sometimes judges didn’t criminalize certain conduct, such as incest, and, as a result, the English Parliament stepped in to pass a law (known as a statute) that made familial sex a crime.
Today, common law plays a less important role than it did centuries ago. In the United States, people are prosecuted when they violate statutes — laws enacted by legislatures — rather than when they violate the common law. But, like in England centuries ago, human beings still find new ways to commit immoral