CRIME CONTROL ACTS The vast majority of substantive criminal statutes may be characterized, in one way or another, as “crime control acts.” The term “crime control act” is often used in
Trang 1A sample
plain-language credit
cardholder agreement
(continued).
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
18 Other Charges The Total Other Charges is the sum of:
a Membership Fee We charge a membership fee of $0 per year, which will be billed to your account during the same “renewal month” each year If we assign your account a renewal month other than the month of your first billing statement, we may assess a partial Membership Fee prorated for the period until the first renewal month All Membership Fees are payable when posted to your account and are non-refundable except as otherwise provided for by law This annual fee shall be treated as a credit purchase for purposes of calculating Finance Charges unless prohibited by law.
b Late Charge If we do not receive at least your minimum required payment within 10 days after the closing date subsequent to the payment due date indicated on your billing statement, we will impose a late or delinquency charge of $25.00.
c Overlimit Charge Each time your New Balance exceeds your maximum authorized credit we will impose an Overlimit Charge
of $25.00.
d Replacement Card We reserve the right to charge you $15.00 to replace a card.
e Non-Sufficient Funds We reserve the right to charge $25.00 for non-sufficient funds.
19 If You Change Your Name or Address You agree to notify us in writing within twenty days if you change your name, your home or mailing address, or home or business telephone number.
20 Our Right to Cancel Your Account We can cancel your account at any time, or reduce the amount of your credit line, without notice
to you, except in those situations where notice is required by law If we cancel your account, you agree to destroy all Cards issued on your account by cutting them in half and returning them to us You will continue to be responsible for full payment of the balance on your account and all charges to your account, including those not yet received by us, as well as subsequent Finance Charge and other charges Each Card is our property, and you agree that the Cards are not transferable and to surrender any Card upon demand.
21 Change in Terms of Your Account We can change any terms of your account at any time We will provide you with such notice as is required by law by mailing a notice to you at the latest address shown in our records Subject to applicable law, any change will apply to the current balance of your account, as well as to future balances.
22 If Your Card is Lost or Stolen or if an Unauthorized Use May Occur You agree to notify us immediately if your card is ever lost or stolen or if an unauthorized use may have occurred The telephone number to call is (800) 325-3678, and you agree to follow up your call with notice in writing to us at: Credit Card Security Department, P.O Box 30035, Tampa, Florida 33630 You also agree to assist us in determining the facts, circumstances and other pertinent information relating to any loss, theft or possible unauthorized use of your credit card and comply with such procedures as we may require in connection with our investigation, including assisting in the prosecution of any unauthorized user.
23 Liability for Unauthorized Use of Credit Card We may hold you liable for the unauthorized use of your credit card You will not be liable for unauthorized use that occurs after you notify us orally or in writing of the loss, theft, or possible unauthorized use In any case, your liability will not exceed $50.00.
24 Credit Information You agree that we may release information to others, such as credit bureaus, regarding the status and history of your account However, we are not obligated to release any such information to anyone unless we are required by law to do so.
25 Waivers If, for any reason, we do not make use of any of our rights under this Agreement on a particular occasion, that will not limit our rights in the future in any way.
26 Our Address To send payment: Payments must be sent to the address listed on the front of the billing statement after the phrase
“make check payable to.” To inquire or send correspondence: Write us at the address indicated on the front of the billing statement after the phrase “send inquiries to.”
27 Important Notice to Our Customer Who Contacts Us by Phone Cardholder agrees that Issuer, its agents and service companies may, without the need to seek additional confirmation from Cardholder, monitor and/or record any telephone communications with Cardholder to insure that inquiries from you are handled promptly, courteously, and accurately.
28 Visa Rules and Regulations The services being provided to you under this Agreement are made possible by Issuer’s status as a licensee of Visa U.S.A You recognize Issuer’s responsibility to comply with the current Visa U.S.A rules and regulations and changes to them in order to continue to provide these services Visa cards may not be used for any illegal transaction.
29 Regulation Z Initial Disclosures By using your card, you acknowledge receipt from us of the Initial Disclosures required by Regulation Z of the Truth-In-Lending Act and that the terms contained in the Initial Disclosures apply to you and your use of the card and are incorporated in full into this Agreement The information about the terms and costs of the Card described in this Customer Agreement
is accurate as of the Effective Date This information may have changed after that date To find out what may have changed, call us or write
to us.
Write to: Erie Shores Credit Union, Inc.
Call at: (800) 248-8110 or
Plain-language Cardholder Agreement
278 CREDIT
Trang 2account due once a month An individual might
also be extended a credit line, the maximum
amount of money that a lender will put at a
borrower’s disposal In such case, an individual
enters into an agreement for the taking out of
a series of loans Because there is a fixed
limitation on the amount to be borrowed,
payments must be made to reduce the debt
incurred when the maximum is reached
A LETTER OF CREDIT, sometimes called a
creditor’s bill, is a written instrument from a
bank or merchant in one location requesting
that anyone, or some specifically named
indi-vidual, advance money or items on credit to the
individual holding, or named in, the letter
Repayment of the debt is guaranteed by the
bank or merchant issuing the letter Letters of
credit are popular in international commercial
transactions because they enable parties to
transact business without the need to exchange
large amounts of cash This type of instrument
was also popular prior to the common usage of
credit cards and travelers’ checks
Personal credit is granted based upon an
individual’s character, reputation, and business
standing regarding his or her financial reliability
Development of the Law of Credit
Traditionally, the law has sought to protect
borrowers since they are easily exploitable by
lenders Often the two parties do not have equal
bargaining opportunities to negotiate all the
terms of the agreement, and, therefore, the
stronger is able to take advantage of the more
vulnerable The established legal viewpoint is
that a lender can properly charge a fee for use of
the funds he or she lends, but the rate of interest
should be neither unfair nor unconscionable
Usury traditionally meant charging interest
or a fee in exchange for a loan, but it has come
to mean charging an illegal rate of interest
Certain credit transactions, such as the loan of
money pursuant to a mortgage, are exempt
from the provisions of usury statutes
Amortization Amortization—a system that
allows a borrower to discharge a debt in regular,
equal installments—was developed in the
nine-teenth century by savings and loan associations
To amortize a loan, the lender must calculate
the total interest due over the term of
repay-ment, add that figure to the total sum borrowed,
and divide the total by the number of payments
to determine the size of regular, periodically scheduled payments to be made by a debtor
Morris Plans The establishment of Morris plan companies, still found in some states, was a significant development in the consumer credit business These industrial banks accept deposits from the general public and issue investment certificates in the amount of each deposit The certificates entitle the holder to obtain interest
on a deposit at regularly scheduled intervals The bank utilizes the funds primarily to make small loans to wage earners who are steadily employed
It is necessary for borrowers to secure two other salaried individuals to endorse the agreement
The loan is repaid in installments during the course of a one-year period
State Consumer Laws Originally the fact that consumer loans were difficult to obtain created loan sharking—the practice of lending money at usurious interest rates—coupled with the threat
or use of extortionate methods of enforcing repayment The Russell Sage Foundation ana-lyzed the LOAN SHARK problem in 1916 and suggested that credit should be made available
to consumers It proposed a Uniform Small Loan Law for enactment by the states that defined small loans as those under $300 A maximum interest rate of three and one-half percent monthly on small loans was suggested
The interest rate was stated as a per-month charge in order to encourage legislators to adopt the act and to prevent consumers from going to loan sharks who make a practice of concealing their true rates of interest
The Uniform Small Loan Law was subse-quently revised but was important because it made way for legal lending to consumers It was created as an exception to state usury laws and furnished the pattern for the subsequent crea-tion of consumer credit legislacrea-tion
Legal Rate of Interest
Interest can be computed in a number of ways, and creditors generally attempt to use the most profitable way that is within legal limits In figuring the legal rate of interest, it is essential to determine which expenses are a part of the finance or interest charges Not customarily considered components of finance charges are fees for filing or recording a document, for payment of an individual who does an appraisal, and for the expense of preparing documents;
closing costs; and prepayment penalties
CREDIT 279
Trang 3CREDIT BUREAU
A privately owned, profit-making establishment that—as a regular business—collects and compiles data regarding the solvency, character, responsi-bility, and reputation of a particular individual or business in order to furnish such information to subscribers, in the form of a report allowing them
to evaluate the financial stability of the subject of the report
Credit bureaus ordinarily prepare and issue reports for lending institutions and stores that investigate the financial reliability of an appli-cant for credit prior to the execution of the credit agreement
Credit bureaus are regulated by the federal FAIR CREDIT REPORTING ACT (15 U.S.C.A § 1681
et seq.[1970]) and by state statute to safeguard against abusive and damaging practices
CRÉDIT MOBILIER SCANDAL The Reconstruction era after theCIVIL WARwas a time of chaos, reorganization, and corruption that affected not only lesser state officials but also federal government agents The Crédit Mobilier affair, which had its early beginnings
in 1864 but was not publicly investigated until
1873, is an example of the corrupt practices that characterized the period
In 1864, Thomas C Durant, an administrator
of the Union Pacific Railroad, bought the Pennsylvania Fiscal Agency, which was chartered
in 1859 The agency was renamed Crédit Mobilier
of America and its proposed purpose as a construction company was the building of the Union Pacific Railroad The federal government had granted the railroad generous loans and contracts for its construction, and the adminis-trators of the railroad planned to divert this money into the Crédit Mobilier Company, allowing the stockholders of the company to enjoy huge profits Government officials first became involved in 1865 when Oakes Ames, congressional representative from Massachusetts, and his brother Oliver bought shares of stock in the Crédit Mobilier and, indirectly, in the Union Pacific Railroad The Ames brothers soon became the power behind the Union Pacific, and, in 1866, Durant was replaced by Oliver Ames
The building of the railroad was fraudulently financed for approximately $50 million more than was necessary In addition, Oakes Ames sold
a large number of shares of stock in Crédit Mobilier at a reduced rate to several of his fellow congressmen This move on the part of Ames was to allay any suspicious interest in the undertakings of the two companies and to
Cartoonist Joseph
Keppler offered a
satirical portrayal of
the Crédit Mobilier
Scandal by depicting
politicians involved in
the affair as residents
in a hospital ward In
actuality, punishment
was lenient:
Representatives James
Brooks and Oakes
Ames were merely
censured.
CORBIS.
280 CREDIT BUREAU
Trang 4encourage legislation beneficial to the railroad.
This maneuver occurred in 1867, and for the next
five years rumors surrounding the activities of
Ames and other government officials circulated
The scandal erupted in 1872 when the details
of the Crédit Mobilier Company became an
issue of the presidential campaign of that year
Several important officials were involved
includ-ing vice presidential candidate Henry Wilson,
incumbentVICE PRESIDENTSchyler Colfax, future
president and member of the House of
Repre-sentativesJAMES A GARFIELD, and Speaker of the
House James G Blaine An investigation began
in 1873 The punishments for such behavior
were surprisingly lenient, however, and the
Crédit Mobilier Company and Congressman
Ames were merely publicly censured
CREDIT UNION
A corporation formed under special statutory
provisions to further thrift among its members
while providing credit for them at more favorable
rates of interest than those offered by other lending
institutions A credit union is a cooperative
association that utilizes funds deposited by a
small group of people who are its sole borrowers
and beneficiaries It is ordinarily subject to
regulation by state banking boards or
commis-sions When formed pursuant to the Federal
Credit Union Act (12 U.S.C.A § 1751 et seq
[1934]), credit unions are chartered and regulated
by the National Credit Union Administration
A credit union can be distinguished from
other financial institutions by the fact that
membership is ordinarily restricted to
indivi-duals who meet certain residential or
occupa-tional criteria In addition, it can make loans of
a more diversified nature than certain
institu-tions, such as building and loan associations
CREDITOR
An individual to whom an obligation is owed
because he or she has given something of value in
exchange One who may legally demand and
receive money, either through the fulfillment of a
contract or due to injury sustained as a result of
another’s negligence or intentionally wrongful act
The term creditor is also used to describe an
individual who is engaged in the business of
lending money or selling items for which
immedi-ate payment is not demanded but an obligation of
repayment exists as of a future date
An attachment creditor is an individual who has obtained an order of attachment from a court to command a sheriff to seize the property
of a debtor who has defaulted in the repayment
of an outstanding obligation so that the property may be used to satisfy the creditor’s claim
A judgment creditor is a party who has gone
to court and obtained a judgment against the person who owes him or her money If that judgment creditor obtains an order of attach-ment, he or she becomes an attachment creditor
AGENERAL CREDITORor creditor at large is an individual who has neither a lien nor a security interest in the property of the debtor
A junior creditor is one whose right to collect money from a debtor is subordinate to that of another individual who also has a right to collect payment of a different debt from the same debtor The person with the primary right
to payment is known as a senior creditor
A principal creditor is the party who has a claim against the debtor that is far greater than the debt owed to any other creditor, and in some instances, to all other creditors combined
A SECURED CREDITOR holds a special LEGAL RIGHT in particular property of the debtor to assure him or her of repayment of the debt
A creditor who has the protection of a lien or mortgage is secured
A single creditor has a lien on only one of the debtor’s funds or accounts
Petitioning creditors are those parties to whom one debtor owes money and who apply
to the court ofBANKRUPTCYin order to secure the debtor’s property and distribute it equitably among them
CREDITOR’S BILL
An equitable proceeding initiated by a person who has obtained—and is entitled to enforce—a money judgment against a debtor to collect the payment of a debt that cannot be reached through normal legal procedures
APLAINTIFFmight, for example, win a lawsuit against a DEFENDANT whereupon the defendant might be ordered to pay damages In the event that the defendant does not pay promptly, the usual way for the plaintiff to obtain payment is
to pay a certain designated fee to the sheriff who
CREDITOR’S BILL 281
Trang 5would seize the defendant’s property, sell it, and pay the plaintiff with the proceeds If, for example, the defendant only has property that is worth less than the plaintiff’s judgment, the plaintiff creditor might pursue the defendant’s rights to collect money from others The person can then initiate a creditor’s bill, also known as creditor’s suit, requesting that the court autho-rize a way to obtain the money affected by such rights Such funds as those that come from corporate stock, annuity checks, growing crops, and money owed to the debtor from another person can all be subjected to creditors’ suits
A creditor’s bill cannot, however, be used to obtain a liquor license, property in another state, or future unearned wages or salary
CRIME CONTROL ACTS The vast majority of substantive criminal statutes may be characterized, in one way or another, as “crime control acts.” The term
“crime control act” is often used in the titles of comprehensive bills that can be hundreds of pages long These acts can identify a broad array
of new crimes, revise existing criminal laws, enhance sentencing and other penalties attached
to those crimes, and finance the provisions of these bills Congress enacted a series of crime control statutes, especially during the late twentieth century, that has introduced a myriad
of new forms ofCRIMINAL LAWat the federal level, including provisions prohibiting MONEY LAUN-DERING, CARJACKING, drug enforcement, CRIMINAL FORFEITURE, and offenses under the Racketeer Influenced and Corrupt Organizations Act
According to the Task Force on Federaliza-tion of Criminal Law of the AMERICAN BAR ASSOCIATION, only an“initial handful” of federal statutes existed at the turn of the nineteenth century, as federal criminal law consisted of a total of 17 statutes Throughout the nineteenth century, federal criminal statutes were fairly narrow, generally protecting only federal inter-ests and interinter-ests where the states held limited power to address a particular form of crime
The number of federal crimes, however, grew considerably toward the latter part of the nineteenth century and into the early twentieth century By the 1930s Congress sought to address concerns that crime had become rampant across the United States, and that states had difficulty handling the increase of crime effectively
Many of the federal criminal statutes in the 1930s addressed specific forms of criminal activity, such as KIDNAPPING, RACKETEERING, SECURITIES FRAUD, and the illegal use and sale
of firearms In 1934 Congress enacted a series
of statutes known as the Crime Control Acts, chs 299-304, 48 Stat 780-83 (codified as amended in scattered sections of 18 U.S.C.A.) These acts included provisions for punishment for killing and assaulting federal officers, EXTORTION, transportation of kidnapped per-sons, and interstate flight, as well as provisions defining crimes in connection with the admin-istration of federal prisons and crimes commit-ted against banks operating under the laws of the United States
Although the number of federal crimes continued to grow throughout the twentieth century, the perception persisted that crime was rampant throughout the United States, particu-larly during the turbulent times of the 1960s Faced with the high incidence of crime throughout the country, Congress enacted the Omnibus Crime Control and Safe Streets Act of
1968, Pub L No 90-351, 82 Stat 197 (codified
as amended in scattered sections of 18 U.S.C.A.) When enacting this legislation, Congress ac-knowledged that crime is fundamentally a state and local problem, and that it requires the efforts
of state and local law enforcement in order to control crime effectively The 1968 statute encouraged states and units of local government
to prepare and adopt comprehensive plans to address crime in those particular states or localities Under the statute, Congress also authorized grants to the states and local entities to strengthen and improve law en-forcement, and encouraged research and development that would be aimed at the improvement of law enforcement methods, the reduction of crime, and the detection and apprehension of criminals
Included within the original Omnibus Crime Control and Safe Streets Act were a number of controversial provisions regarding wire intercepting and interception of oral communications, as well as measures to allow states and local agencies to control firearms at the local level The provisions contained in this act have been amended and revised dozens of times since the initial 1968 enactment
The federalization of criminal law continued during the 1970s The Crime Control Act of
1973, 93-83, 87 Stat 197 (codified as amended
282 CRIME CONTROL ACTS
Trang 6in scattered sections of 18 U.S.C.A.) serviced the
same general purpose as the Omnibus Crime
Control and Safe Streets Act Its primary
purpose was to provide grants and other
funding to law enforcement agencies in their
fights against crime at the state and local levels
Three years later, Congress approved the Crime
Control Act of 1976, Pub L No 94-503, 90
Stat 2407 (codified as amended in scattered
sections of 18 U.S.C.A.) The 1976 act
estab-lished the Office of Community Crime
Pro-grams and other measures that were designed to
enhance the ability of local law enforcement
agencies
Although federal criminal law had
under-gone a metamorphosis in the 1960s and 1970s,
the federal criminal code had not undergone a
comprehensive revision since the early 1900s In
1984 Congress wrangled with a major bill that
would provide this comprehensive revision,
eventually enacting the Comprehensive Crime
Control Act of 1984, Pub L No 98-473, 98
Stat 1976 Although controversial sections of
the original bill related toCAPITAL PUNISHMENT, an
exception to theEXCLUSIONARY RULE in CRIMINAL
PROCEDURE, restrictions on HABEAS CORPUS
pro-ceedings in federal courts, and liability of the
government for CIVIL RIGHTS violations were
removed before the bill was passed, the final
draft of the legislation was not satisfactory
to several members of Congress Within days
of the passage of the Comprehensive Crime
Control Act, Congress enacted the Criminal
Fine Enforcement Act, Pub L No 98-596, 98
Stat 3134, which repealed some of the
provi-sions of the Comprehensive Crime Control Act
soon after they became effective Nevertheless,
the provisions that remained intact were
significant in federal criminal law
Among the new provisions in the
Compre-hensive Crime Control Act were those
addres-sing violent offenses, federal anti-terrorism
provisions, certain economic offenses,
con-trolled substances, and a number of other
miscellaneous crimes One of the more
impor-tant measures in the act included a new system
governing sentencing for federal crimes
Chap-ter 2 of the act, the Sentencing Reform Act of
1984, established the United States Sentencing
Commission, which is responsible for drafting
and revising the Federal Sentencing Guidelines
The first of these sentencing guidelines went
into effect in 1987, although they have been
amended significantly since then The Federal
Sentencing Guidelines not only have changed the sentencing procedures in federal courts, but also have affected the ways in which state courts approach sentencing
Comprehensive crime control legislation continued into the 1990s The Crime Control Act of 1990, Pub L No 101-647, 104 Stat 4789 further revised provisions of previous crime control statutes Four years later, Congress addressed problems associated with violent crimes with the enactment of theVIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF1994, Pub
L No 103-322, 108 Stat 1796 That statute increased and enhanced punishment for violent offenders, including punishment of young offenders The statute included numerous provisions regarding crime prevention Some
of the more controversial provisions of this act were contained in title IV of the statute, known
as the Violence Against Women Act Although the statute has increased funds for research and education to enhance knowledge and awareness for judges and judicial staff in matters involving DOMESTIC VIOLENCE and sexual ASSAULT, the original statute also contained a measure that would make gender-motivated crimes a viola-tion of federal civil rights law The U.S
Supreme Court, in United States v Morrison,
529 U.S 598, 120 S Ct 1740, 146 L Ed 2d 658 (2000), struck down the latter provision as unconstitutional
Other crime control acts have addressed specific areas of concern with respect to crime
The ORGANIZED CRIMEControl Act of 1970, Pub
L No 91-452, 84 Stat 922, for instance, addressed specific problems relating to orga-nized crime, including the establishment of protected facilities to house government wit-nesses The ongoing war against drugs has similarly led to the enactment of comprehensive legislation, including the Anti-Drug Abuse Act
of 1986, Pub L No 99-570, 100 Stat 3207 and the Anti-Drug Abuse Act of 1988, Pub L No
100-690, 102 Stat 4181
Scholars have criticized the continued growth of the federalization of criminal law, as Congress continues to enact these comprehen-sive crime control bills Federal criminal law consists of more than 3,000 individual criminal offenses, many times more than the number that existed a century ago Supporters of these bills note, however, that state and local officials have not shown the ability to address many
of the criminal problems that are addressed
CRIME CONTROL ACTS 283
Trang 7under the new federal laws, and that federal law enforcement is in a better position to conduct the type of investigation that is necessary to curb incidents of crime through-out the country
FURTHER READINGS Abrams, Norman, and Sara Sun Beale 2008 Federal Criminal Law and Its Enforcement 4th ed Eagan, Minn.: West.
George, B James, Jr 1985 The Practical Guide to the Comprehensive Crime Control Act of 1984 Frederick, Md.: Aspen.
Partridge, Anthony 1985 The Crime Control and Fine Enforcement Acts of 1984: A Synopsis Washington, D.C.:
Federal Judicial Center.
Strazzella, James A., ed 1996 The Federal Role in Criminal Law Thousand Oaks, Calif.: Sage.
CROSS REFERENCES Criminal Law; Criminal Procedure; Sentencing.
CRIMES Acts or omissions that are in violation of law
Each state in the United States, as well as the federal government, maintains a body of criminal laws As populations have increased and personal interactions and business transac-tions have grown more complicated, criminal laws have likewise grown in number and complexity Most jurisdictions codify criminal statutes in a separate section in their laws
However, some crimes are placed in chapters or titles outside the designated criminal code
Generally, criminal laws are divided into several broad categories: offenses affecting public order, health, and morals; offenses involving trade, business, and professions; and offenses against the family These categories often overlap
Juveniles and minors generally receive special treatment under criminal statutes
Offenses Affecting Public Order, Health, and Morals
A number of acts are made criminal to preserve public order, health, and morals Some of these laws are based in the COMMON LAW but have undergone significant changes over the years
PROSTITUTION, if discreet and practiced indoors, was generally tolerated in colonial America, but streetwalkers were charged under lewdness, VAGRANCY, or similar laws In the late nineteenth century, states began to identify and prohibit all prostitution, in criminal statutes, where it was defined as engaging in sex for hire Prostitution
is now illegal in all states except Nevada, where
it is strictly regulated
Pandering, or inducing another into prosti-tution, is illegal in all states, including Nevada The solicitation of prostitution is illegal in all states except Nevada, where it is allowed only in licensed brothels
Public obscenity laws find their roots in the religious prohibitions of blasphemy and heresy,
or defiance of the church Laws prohibiting blasphemy and heresy were passed in colonial America, but after the passage of the FIRST AMENDMENT in 1791, states began to focus obscenity statutes on material with a sexual content In 1996, the U.S Congress passed the Telecommunications Act of 1996, Pub L
104-104, Feb 8, 1996, 110 Stat 56, which included criminal punishment for the transmission of obscenity through cyberspace
The definition of obscenity is generally a matter of contemporary community standards
In New York, for example, any material or performance is obscene if “the average person, applying contemporary community standards,” would find that the predominant effect of the work as a whole appeals “to the prurient interest in sex” (N.Y Penal Law § 235.00 [McKinney 1995]) To be defined as obscene, the material or performance must also depict or describe “in an offensive manner, actual or simulated: sexual intercourse, sexualBESTIALITY, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals.” Finally, the material or performance must lack “serious literary, artistic, political and scientific value” before its creator can be punished for obscenity Obscenity laws include the prohibition of public profanity The federal government, for example, outlaws visible written profanity in the mails and profanity on radio and television The FEDERAL COMMUNICATIONS COMMISSION makes some exceptions for certain words during nighttime hours Profanity, like obscenity, is a fluid concept, and its treatment is frequently the subject of legislation
Gambling is illegal in some states Other states allow only certain forms of gambling Even where gambling is legal, it is strictly regulated, and the regulations are enforced by criminal statutes For example, persons who maintain an unlicensed gambling operation in New Jersey may be charged with a crime of the fourth degree Fourth-degree crimes in New
284 CRIMES
Trang 8Jersey normally carry a penalty of a $7,500 fine
or eighteen months’ imprisonment, or both;
when the crime is unlicensed gambling, fines
may reach $25,000 for individuals and $100,000
for organizations
The U.S Congress and state legislatures
prohibit the manufacture, possession, and sale
of certain mood-altering substances, such as
marijuana, cocaine, heroin, and hallucinogens
Many manufactured drugs yielding
psychotro-pic effects are legal, but only under the
administration of a physician
All states maintain laws that prohibit the
driving of motorized vehicles while under
the influence of alcohol or other mood-altering
substances These driving-under-the-influence
(DUI) and driving-while-intoxicated (DWI)
sta-tutes outlaw or prohibit the drunken driving of
boats and snowmobiles in addition to passenger
vehicles and motorcycles The range of vehicles
subject to these laws is ever expanding: In 1996 a
Texas man was charged with riding a bicycle
while intoxicated Intoxication is defined by
statute at a specified blood-alcohol ratio
Some criminal statutes are mainly designed
to preserve public order For example, many
states criminalize loitering or prowling In New
Hampshire, no person is allowed to appear“at a
place, or at a time, under circumstances that
warrant alarm for the safety of persons or
property in the vicinity” (N.H Rev Stat Ann §
644:6) When challenged, however, many
loi-tering statutes are held by courts to be
unconstitutionally vague
BREACH OF THE PEACEis a generic description
for a range of DISORDERLY CONDUCT Generally,
breach-of-the-peace crimes consist of acts that
disturb public tranquility and order STALKING,
or menacing, is the related crime of continually
following or forcing unwanted contact on
another
The federal Racketeer Influenced and
Cor-rupt Organizations Act (RICO) (18 U.S.C.A §§
1961 et seq.) is designed to investigate, control,
and prosecute ORGANIZED CRIME Many states
have enacted their own RACKETEERING laws to
mirror RICO Essentially, RICO punishes a
pattern of racketeering activity that is
accom-plished through an organized enterprise
Pro-secutors have broadened the use of RICO to
support an additional criminal charge for even
the most loosely organized crimes For example,
a person who conspires with another to commit
FRAUDmay be charged with fraud and violation
of RICO, if the conspiracy was the product of an organized enterprise Youth gangs are among the organizations subject to RICO laws
State and federal statutes criminalize the unlicensed possession of firearms Firearm statutes prevent convicted felons from owning a gun State and federal laws also place an outright ban on some models of automatic firearms
Other criminal laws respecting public order, health, and morals are many and varied State and federal election laws have burgeoned since the nineteenth century to prohibit a wide range
of acts in connection with the public vote, such
as campaigning on election day, coercing voters, and engaging in fraud.IMMIGRATIONlaws provide criminal penalties for immigrating illegally and for hiring illegal immigrants All states maintain statutes to punish littering and the unauthorized dumping or storage of toxic waste In Mississippi, dueling is outlawed (Miss
Code Ann § 97-39-1), as is cruelty to animals (§ 97-41-1) In New Hampshire, desecration
of the U.S flag is punishable as a misdemeanor (N.H Rev Stat Ann § 646-A:4)
Offenses Involving Trade, Business, and Professions
Fraud, THEFT, and misrepresentation are exten-sively covered in state and federal statutes concerning virtually every occupation These laws prohibit a wide variety of acts ranging from simulating gemstones and rigging weight scales
to impersonating a doctor or a police officer, breaching confidentiality, and engaging in INSIDER TRADING(the buying or selling of publicly held corporate shares by persons with inside or advance information regarding the corpora-tion) The fraudulent use of credit cards is also the subject of criminal statutes AndCABLE TELEVISION and computers have inspired a number of criminal statutes punishing their abuse; state statutes, for example, punish the theft of cable television services
Offenses against the Family
State legislatures enact numerous statutes to protect people against members of their own family CHILD ABUSE laws make criminal the physical or mental abuse of a child Spousal abuse is also punished under state statutes
The failure of a parent to pay court-ordered CHILD SUPPORTis made criminal in state statutes
CRIMES 285
Trang 9States work together in apprehending so-called deadbeat parents through a uniform statute called the Uniform Interstate Family Support Act (U.L.A Unif Interstate Family Support Act [1995]) A divorced parent who flees with a child may be criminally charged under state and federal KIDNAPPING statutes as well as CHILD CUSTODYstatutes
Juveniles and Minors
Persons under the age of 18, known as juveniles, are presumed incapable of forming the criminal intent to commit criminal acts They are, then, generally immune from prosecution for their crimes They can still be held responsible in juvenile court for committing “delinquent acts,” which, if they were committed as an adult, would be considered crimes However,
a juvenile may be tried for a crime if the prosecution is able to convince the court to certify the juvenile as an adult A prosecutor generally reserves certification of a juvenile for serious crimes, such as MURDER or RAPE In the 1990s, some state legislatures passed statutes allowing prosecutors to certify for criminal trial juveniles as young as age 14
Minors also warrant special protection from society Criminal statutes punish adults for CONTRIBUTING TO THE DELINQUENCY OF A MINOR This crime can be any act that tends to make a child delinquent For example, giving a minor illegal drugs or pornography is criminal under these statutes State statutes also criminalize the sale of other adult materials, such as tobacco and alcohol, to minors
FURTHER READINGS Aquinas, Thomas, Richard J Regan, and William P.
Baumgarth 2003 On Law, Morality and Politics.
Indianapolis: Hackett.
Douglas, John E., and Mark Olshaker 2006 Mindhunters:
Inside the FBI’s Elite Serial Crime Unit New York:
Arrow.
Richardson, Jeb J 1998 The Ten Worst Frauds against America’s Seniors Fairfax, Va.: Seniors Coalition.
CROSS REFERENCES Computer Crime; Domestic Violence; Drugs and Narcotics;
Gaming; Juvenile Law.
CRIMINAL Pertaining to, or involving, crimes or the administration of penal justice An individual who has been found guilty of the commission of conduct that causes social harm and that is
punishable by law; a person who has committed a crime
CRIMINAL ACTION The procedure by which a person accused of committing a crime is charged, brought to trial, and judged
The main part of a criminal action is the trial in which the innocence or guilt of the accused is determined If the DEFENDANT is not found guilty, he or she will be acquitted of the charges If the defendant is found to be guilty, a suitable punishment, such as a fine, imprison-ment, or even a death sentence, will be imposed depending upon the punishment provided in the statute under which he or she was prosecuted
CRIMINAL CONVERSATION
A tort under common law that involves the seduction of another person’s spouse
A few states still permit a lawsuit for damages by the injured spouse against the wrongdoer Many states have abolished this action
Criminal conversation is not the same as ALIENATION OF AFFECTION, which does not neces-sarily involve the commission ofADULTERY
CRIMINAL FORFEITURE The loss of a criminal defendant’s rights to property which is confiscated by the government when the property was used in the commission of
a crime The seizure by law enforcement officers of
an automobile used in the transportation of illegal narcotics is a criminal forfeiture
Property that is subject to criminal forfei-ture is taken from its owner without any compensation being made because of its use
in illegal conduct The taking of such property
by the government is an exception to the principles of condemnation provided that the item is seized and retained as a result of the valid exercise of thePOLICE POWERof the state or pursuant to constitutional federal statutes
CRIMINAL LAW Criminal law includes a body of rules and statutes that define conduct prohibited by the government because it threatens and harms public safety and
286 CRIMINAL
Trang 10welfare and that establishes punishment to be
imposed for the commission of such acts
The term criminal law generally refers to
substantive criminal laws Substantive criminal
laws define crimes and may establish
punish-ments In contrast,CRIMINAL PROCEDUREdescribes
the process through which the criminal laws are
enforced For example, the law prohibiting
MURDER is a substantive criminal law The
manner in which government enforces this
substantive law—through the gathering of
evidence and prosecution—is generally
consid-ered a procedural matter
Crimes are usually categorized as felonies or
misdemeanors based on their nature and the
maximum punishment that can be imposed A
felony involves serious misconduct that is
punishable by death or by imprisonment for
more than one year Most state criminal laws
subdivide felonies into different classes with
varying degrees of punishment Crimes that do
not amount to felonies are misdemeanors or
violations A misdemeanor is misconduct for
which the law prescribes punishment of no
more than one year in prison Lesser offenses,
such as traffic and parking infractions, are often
called violations and are considered a part of
criminal law
The power to make certain conduct illegal is
granted to Congress by virtue of theNECESSARY
AND PROPER CLAUSEof the Constitution (art I, § 8,
cl 18) Congress has the power to define and
punish crimes whenever it is necessary and
proper to do so, in order to accomplish and
safeguard the goals of government and of
society in general Congress has wide discretion
in classifying crimes as felonies or
misdemea-nors, and it may revise the classification of
crimes
State legislatures have the exclusive and
inherent power to pass a law prohibiting and
punishing any act, provided that the law does
not contravene the provisions of the U.S or
state constitution When classifying conduct as
criminal, state legislatures must ensure that the
classification bears some reasonable relation to
the welfare and safety of society Municipalities
may make designated behavior illegal insofar as
the power to do so has been delegated to them
by the state legislature
Laws passed by Congress or a state must
define crimes with certainty A citizen and the
courts must have a clear understanding of a
criminal law’s requirements and prohibitions
The elements of a criminal law must be stated explicitly, and the statute must embody some reasonably discoverable standards of guilt If the language of a statute does not plainly show what the legislature intended to prohibit and punish, the statute may be declared void for vagueness
In deciding whether a statute is sufficiently certain and plain, the court must evaluate it from the standpoint of a person of ordinary intelligence who might be subject to its terms
A statute that fails to give such a person fair notice that the particular conduct is forbidden is indefinite and therefore void Courts will not hold a person criminally responsible for con-duct that could not reasonably be understood to
be illegal However, mere difficulty in under-standing the meaning of the words used, or the ambiguity of certain language, will not nullify a statute for vagueness
A criminal statute does not lapse by failure
of authorities to prosecute violations of it If a statute is expressly repealed by the legislature, but some of its provisions are at the same time re-enacted, the re-enacted provisions continue
in force without interruption If a penal statute
is repealed without a SAVING CLAUSE, which would provide that the statute continues in effect for crimes that were committed prior to its repeal, violations committed prior to its repeal cannot be prosecuted or punished after its repeal
The same principles govern pending crimi-nal proceedings The punishment that is provided under a repealed statute without a saving clause cannot be enforced nor can the proceeding be prosecuted further, even if the accused pleads guilty A court cannot inflict punishment under a statute that no longer exists If a relevant statute is repealed while an appeal of a conviction is pending, the convic-tion must be SET ASIDE if there is no saving clause However, once a final judgment of conviction is handed down on appeal, a subsequent repeal of the statute upon which the conviction is based does not require reversal
of the judgment
Generally, two elements are required in order to find a person guilty of a crime: an overt criminal act and criminal intent The require-ment of an OVERT ACT is fulfilled when the DEFENDANT purposely, knowingly, or recklessly does something prohibited by law An act is
CRIMINAL LAW 287