The Creation of Criminal Laws in the United States

     In this United States, criminal laws are entirely a product of constitutional authority and the legislative bodies that enact them. They are also affected by common law or case law interpretation and by administrative or regulatory agency decisions. Constitutions usually provide for the formation of legislative bodies empowered to perform criminal and other laws. Our U.S. Constitution creates Congress and gives it lawmaking power. The Bill of Rights of the U.S. Constitution, (which are the first ten amendments), as well as similar amendments to state constitution, also describe procedural laws that dictate how substantive laws are to be administered. Constitutions are important to the substantive criminal law because they set limits on what can be defined as a crime. Criminal laws are products of the lawmaking bodies created by constitutional authority. Federal statutes are enacted by Congress of the United States, and state statutes are enacted by state legislatures. City councils or other municipalities create laws called ordinances. Criminal statutes of particular states, as well as federal criminal statutes, and the definitions of crimes together with the penalties associated with them, can be found in penal codes for each jurisdiction.

     Ordinances and statutes apply only in the particular jurisdiction in which they were enacted. When a crime is committed, it must be prosecuted in the jurisdiction where it was committed. Federal crimes violate federal statutes, and state crimes violate state statutes, a crime in one state may not be a crime in another state, however, if one violates a federal statute, it is a crime in any state. When certain behavior violates both federal and state statutes, including local ordinances, such as drug law violations, there is an overlap in jurisdiction. These violations have a tendency to confuse who or which jurisdiction has the authority to prosecute.

     Common law or case law is the by-product of decisions made by trial and appellate court judges make laws whenever they render a particular case. The decision becomes a potential bases, or precedent, for deciding the outcomes of related cases in the future. Although any court judge has the potential to decide on a precedent, it is primarily the written decisions of appellate court judges that do. These decisions made by the appellate court judges, are the only ones that are required to be in writing. Common Law is what these decisions become. Normally, whether a precedent is binding is determined by the court's location. The main use of these precedents, guide future decisions in court cases and are called stare decisis, Latin for "to stand by decided cases." Much of the time spent by criminal lawyers is preparing for their case and trying to find legal precedents the support their arguments, the success of their case depend on how well the lawyer does with his case.

     Today, most of the laws used today were made by legislature in all states, although common law is still an important source of criminal law, but is rarely used today. There is no federal criminal common law. The lawmaking statutes made by different jurisdictions, are products of administrative or regulatory agencies. These agencies create rules, regulate and supervise activities in their areas of responsibility, and render decisions that have the force of law. Our criminal law is the result of a political process in which rules are created by human beings to prohibit or regulate the behavior of other human beings. If not for these laws, imagine what our life would be like today. We can thank our fore fathers for having the insight to put these laws into writing. This is in fact, a fairly recent phenomenon created only 5000 years ago.

Information is for educational and informational purposes only and is not be interpreted as financial or legal advice. This does not represent a recommendation to buy, sell, or hold any security. Please consult your financial advisor.