2.5: Substantive Criminal Law

State Substantive Criminal Law

While rooted in English common law, American substantive criminal law is statutory. There are no common-law crimes in the United States. In other words, the law of crimes is decided by the state legislatures (for each state) and by Congress (for the federal government). Most states, but not the federal government, have a comprehensive “code” of substantive criminal law made up of general principles of criminal responsibility, laws defining the particular criminal offenses, and laws defining excuses and justifications.

Two-thirds of the states have adopted in whole or in part the Model Penal Code (MPC), which was drafted in the 1950s and 1960s by the American Law Institute, a prominent law reform organization. The MPC is the most influential work in American substantive criminal law. One of the most deeply rooted principles in American criminal law is that there can be no criminal responsibility without culpability or blameworthiness. Under the MPC, culpability, sometimes referred to as mens rea or “state of mind,” is satisfied by a showing of purpose, knowledge, recklessness, or negligence, all of which are carefully defined by the code. Except in the case of minor offenses and some regulatory crimes, the MPC requires that there be specified culpability for every element of an offense (conduct, attendant circumstances, result). Criminal codes set out the prohibitions that constitute the law of crimes—offenses against a person (e.g., murder and rape); offenses against property (e.g., theft and arson); offenses against public order (e.g., disorderly conduct and rioting); offenses against the family (e.g., bigamy and incest); and offenses against public administration (e.g. bribery and perjury).

Federal Substantive Criminal Law

Which crimes are considered federal, and which are considered state? There is no clear answer to this question. Indeed, criminal conduct cannot be sorted into these two baskets. When a single act or course of conduct violates both federal and state criminal laws, it is even possible for both governments to prosecute because, under the “dual sovereignty” doctrine, the double jeopardy prohibition does not apply to separate prosecutions by separate sovereigns.

In theory, congressional power is limited to the powers expressly enumerated in Section 1 of the Constitution. Offenses like counterfeiting U.S. currency, illegally entering the United States, treason, and violation of constitutional and federal statutory rights are obviously within the federal government’s core jurisdiction. But, utilizing its expansive powers under the commerce clause and other elastic provisions, Congress has passed federal criminal laws dealing with drug trafficking, firearms, kidnapping, auto theft, fraud, and scores of other ordinary crimes.

The reach of federal criminal law grew inexorably throughout the 20th century. The Supreme Court has rarely found that Congress lacked authority to pass a federal criminal law. Today, federal criminal law can be used to prosecute many offenses that traditionally were regarded as a state responsibility. In practice, however, the great constraint on the reach of federal criminal law is resources. The FBI and other federal law enforcement agencies, as well as federal prosecutors, can investigate and prosecute only a small fraction of all the crimes that potentially fall within their purview.

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