Criminal and Civil Law

Within a given legal system, there are two major types of law, criminal and civil. Criminal law applies to offenses against the state. The action is punished because it harms society. Criminal law requires a statute to create the offense, its elements, and its punishment. An act is not a crime unless a written law establishes it as one. Only the government can prosecute a criminal case. A criminal case begins with an alleged crime, an arrest by the police, and a charge filed by a prosecutor. Anything that is not criminal law falls under civil law, which applies when one individual is harmed by another and seeks compensation for the harm. In civil law legal systems, civil offenses are only by statute. In common law legal systems, civil offenses can be by statute or case precedent.62

The overarching purpose of criminal laws is to protect society as a whole. There are five general purposes of criminal punishment:

  1. Incapacitation: Punishment removes the offending person from society, inhibiting their ability to cause further harm to society.
  2. Retribution: The punishment of the individual is said to satisfy the public’s desire for revenge.
  3. Deterrence: Punishing a person for committing an offense is intended to deter others from committing that same offense.
  4. Restitution: Punishment for a criminal offense may involve a financial penalty to compensate the victim of the crime monetarily.
  5. Rehabilitation: Punishment may attempt to refocus the offender’s energy on a more acceptable pursuit to prevent recidivism. Recidivism is the repetition of a crime by an individual already found guilty of and punished for the crime.63

Many countries have moved to a focus on rehabilitation as a means of stopping future crime.64 The use of rehabilitation is common in Europe, especially for nonviolent or drug offenses.65 The US state of Oregon is enacting similar policies to rehabilitate those who are found guilty of illegal drug use.66

A figure shows the purposes beyond deterrence and retribution that different types of punishments are intended to serve. Mandatory counseling and treatment center placement are intended to rehabilitate. Incarceration, the death penalty, or house arrest are intended to incapacitate, and fines are intended to require the person being punished to provide restitution for what they have done.
Figure 11.6 While all punishments are intended to serve as deterrence and retribution, many common punishments are intended to serve other purposes as well. (attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

There are two main types of offenses in criminal law: serious offenses, often called felonies, and less serious offenses, often called misdemeanors. Punishments for serious offenses may involve imprisonment for a term of several years to life—and, in a few countries, the death penalty.67 Lesser crimes are often punishable by no more than a fine. If a misdemeanor carries a prison sentence at all, that sentence is usually less than a year in length and is served in the local jail. The divisions between serious and lesser punishments and trial processes vary widely by country.68

Within serious and nonserious crimes, penalties vary by the perceived severity of the crime. The US categories, both state and federal, are typical, so they will serve as an example. The state categories align with the federal, so we will use the federal sentencing guidelines as a template.69 In the United States, misdemeanors are commonly divided into three categories:

  1. Class A misdemeanor: Punishable by a jail sentence of between six months and one year
  2. Class B misdemeanor: Punishable by a jail sentence of between 30 days and six months
  3. Class C misdemeanor: Punishable by a jail sentence of between five days and 30 days

Each level also carries a possible fine that can be imposed instead of or in addition to the sentence.

In the United States, felonies, whether state or federal, are broken down into five categories:

  1. Capital or class A felony: Punishable by life imprisonment or the death penalty
  2. First-degree or class B felony: Punishable by a prison sentence of 25 or more years
  3. Second-degree or class C felony: Punishable by a prison sentence of between 10 and 25 years
  4. Third-degree or class D felony: Punishable by a prison sentence of between five and 10 years
  5. Fourth-degree or class E felony: Punishable by a prison sentence of between one and five years

In all rule-of-law countries, including the United States, the government cannot enact any ex post facto laws. Ex post facto is Latin for “after the fact.” Thus, if something was not a crime when you did it, you cannot later be charged with a crime even if the government changes the law. For example, the posted speed limit on a road is 40 miles per hour. A camera captures you driving 40 miles per hour on Monday. On Wednesday, a new law is enacted that changes the speed limit to 25 miles per hour and is claimed to apply retroactively for the past month. This would be an ex post facto law. New laws can only apply prospectively to the future, not retroactively, to the past. In rule-by-law systems, authoritarian governments often use ex post facto laws and the lack of habeas corpus to jail opponents and keep them in jail indefinitely.

Defendants’ rights and the burden of proof for guilt are similar in rule-of-law systems. In all rule-of-law countries, the burden of proof for a criminal offense is beyond a reasonable doubt. In the United States, because a criminal case can impact a person’s liberty, the burden of proof is always on the government, and the standard of proof is always guilt beyond a reasonable doubt.

In addition, every rule-of-law country has protections for individuals who are accused of crimes.70 In the United States, individuals accused of crimes have several constitutional protections in criminal cases.

Rights and Liberties in the US Constitution that Apply to Criminal Proceedings
Art. I, sec. 9, cl. 2 Right of habeas corpus
Art. I, sec. 9, cl. 3; Art. I, sec. 10, cl. 1 No ex post facto laws
Fourth Amendment Right to be secure from unreasonable search and seizure
Fifth Amendment Right to due process before deprivation of life, liberty, or property
Right to indictment by a grand jury when charged with capital crimes
Protection against self-incrimination
Sixth Amendment Right to a speedy trial by an impartial jury
Right to a defense attorney
Eighth Amendment Protection against excessive bail, excessive fines, and cruel and unusual punishment
Table 11.2 Rights and Liberties in the US Constitution That Apply to Criminal Proceedings

Rights upon Arrest

In rule-of-law countries, police must advise you at the time of arrest of certain rights. These include the right to have an attorney assist you with your case and the right to be cautioned that anything you say can be used against you in court—what are referred to in the United States as Miranda rights. A Library of Congress report found that 108 countries, including civil law and common law legal systems, require something similar to the US Miranda rights.71 The European Convention on Human Rights and the Universal Declaration of Human Rights both contain similar provisions.

When a person is arrested in the United States, the arresting officer must read them their Miranda rights, also called a Miranda warning, and advise them of their constitutional rights under the Fifth and Sixth Amendments to the US Constitution. The text of the Miranda warning reads along the following lines:

“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand each of these rights as I have read them to you?”

There are no magic, specific words police officers must say when informing a person of their Miranda rights, but the gist of the above must be included in a language the person under arrest understands. First, the person under arrest must be allowed to contact an attorney or, upon proving themselves financially unable to afford one, request that an attorney be appointed to them. Second, if the person under arrest wishes to remain silent, they must state that wish. If they speak other than for comfort or to request an attorney, they must reinvoke the right to remain silent. The right to remain silent applies only when an arrested person is being interrogated by police. It does not apply to forensic investigative work, and it does not preclude police officers from speaking in front of the person who is under arrest or trying to trick them into saying something. It only stops them from asking a direct question.

Different rule-of-law countries have slightly different equivalents to the Miranda warning. The following table compares the US and UK versions of this warning.

Warning United States United Kingdom
Right to remain silent At time of detention: “You have the right to remain silent. Anything you say can be used against you in court.” At the time of detention: “You do not have to say anything. But it may harm your defense if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
Right to an attorney At time of detention: “You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.” The custody officer at the police station must explain the arrested individual’s rights. They have the right to receive free legal advice.
Language check At time of detention: “Do you understand each of these rights as I have read them to you?” When the custody officer explains the individual’s rights, the individual can ask for a notice in their language or an interpreter to explain the notice.
Procedural warnings Not required in the United States; implied and determined on a case-by-case basis The custody officer at the police station must explain that the individual has the rights to

  • tell someone where they are;
  • receive medical help if they need it;
  • see the rules the police must follow; and
  • see a written notice about their rights, e.g., regular breaks for food and to use the toilet.
Table 11.3 Comparison of US and British Arrest Warnings

Search and Seizure

Another way rule-of-law systems defend the rights of individuals is through protection against unreasonable searches and seizures. This means that law enforcement may perform reasonable searches and seizures, and much of the litigation in this area deals with the reasonableness of the search and seizure. The UN has created recommendations for best policing practices for all countries, including limiting the police’s right to search an arrested individual’s person, home, or belongings to this standard.72 The recommended level of proof to warrant a search is probable cause that evidence of a crime will be found in the place to be searched. Probable cause is more than suspicion but a lot less than guilt beyond a reasonable doubt. There is no exact definition of the term probable cause, and review is on a case-by-case basis. This protection in rule-of-law countries rests on recognizing a right to privacy and to be left alone by the police.73 However, many countries do not follow these limitations. In those countries, the police can search a person’s home and belongings or interrogate a person whenever they want to do so.74 This is particularly true in rule-by-law countries.

Writ of Habeas Corpus and the Right to Appear Before the Court

In all rule-of-law countries, a person held in jail has a right to demand to be brought before the court and told why they are being jailed.75 In some countries, this process is referred to as a petition for a writ of habeas corpus. In rule-by-law countries, this right is not recognized. In those countries, a person can be held indefinitely, incommunicado, without any right to seek their freedom or to demand that the government prove the charges against them.

In rule-of-law countries, the writ of habeas corpus process usually occurs automatically. Countries that adhere to the UN Charter on Human Rights follow these requirements.76 The US Constitution and state constitutions protect this automatic procedure, which is called arraignment. An arraignment is a type of court hearing held within 72 hours of arrest, at which an arrested individual is notified of the charges against them. In the United Kingdom, a person can be held for 24 to 96 hours before their first hearing, depending on the crime.77 All rule-of-law countries have some limit on the time a person can be held in custody before appearing in court to hear the charges against them and to have the court reiterate their rights to remain silent and to have an attorney.78

At an arraignment in the United States, the arrested person is allowed to enter a plea, and the court sets bail. Bail is an amount of money to be paid or an agreement to restrictions on a person’s freedom in exchange for release from jail while they are waiting for trial. Bail is not intended to be punitive; it is intended to ensure that the person being charged will appear for their court hearings and trial.79

In the United States, if someone is charged with a misdemeanor, the case moves directly from the police to the prosecutor to investigate and prepare the case against that person. If the government wants to charge someone with a felony, they must receive the approval of a grand jury. A grand jury is a group of citizens who only hear evidence from the prosecutor and must determine whether probable cause exists to proceed with the charge and trial against the accused. If the grand jury decides there is probable cause, they issue an indictment, the formal charge for the crime. Note that the standard for a grand jury to issue the indictment is only probable cause, well below the standard of guilt beyond a reasonable doubt. Further, a defendant has no right to appear or defend themselves at the grand jury hearing, so it is a one-sided presentation of the evidence.

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Jury duty is a responsibility individuals have to their communities. What should you expect if you are called for jury duty? This short video explains.

Capital Punishment

The death penalty is a form of capital punishment. Capital crimes are those for which a person who is found guilty can be sentenced to the death penalty or to automatic life in prison without parole, depending on the laws in a specific country. A person can be found guilty of a capital crime even if the country does not have a death penalty. Some countries that still impose the death penalty can impose it for crimes other than murder and are permitted to impose it on juveniles.80 These countries primarily include China and countries in the Middle East and Africa.

A world map shows all of the countries that carried out executions between 2009 and 2020. Most countries did not carry out executions during this timeframe.
Figure 11.7 From 2009 to 2020, about 35 countries, including the United States, Belarus, and several countries in central Africa, the Middle East, and Asia, carried out executions. (source: Amnesty International; attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

Many countries, including all European countries with the exception of Belarus, have abolished the death penalty.81 In these places, the maximum sentence is life in prison without parole.

SHOW ME THE DATA

A bar graph shows the number of countries that have abolished the death penalty from 1991-2020. In 1991, almost 50 countries had abolished the death penalty. By 2020, more than 100 countries had done so.
Figure 11.8 Since 1991, the number of countries that have abolished the death penalty has more than doubled. (source: Amnesty International; attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

In the United States, many assert that the death penalty violates the US Constitution’s prohibition of the imposition of “cruel and unusual punishments.” In the United States in 1972, the procedures for execution being used in some states were found to violate the “cruel and unusual” standard.82 Some states responded by changing their procedures and reinstating the death penalty. SCOTUS upheld those revisions as constitutional in 1976.83 Other states decided not to reinstate the death penalty.84 The federal government did not reinstate the death penalty for federal crimes until 1988 and has rarely imposed the death penalty or carried it out.85 Since that time, more US states have abolished the death penalty, making a total of 23 states (plus the District of Columbia) without the death penalty and three that are no longer carrying out executions.86

A map of the United States shows which states have capital punishment and which do not. Alaska, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, Virginia, Washington, West Virginia, and Wisconsin do not have capital punishment as of August 2021. All other states do.
Figure 11.9 As of August 2021, 27 of 50 US states had the death penalty, although three of those states—California, Oregon, and Pennsylvania—have imposed moratoriums on executions.87 (source: National Conference of State Legislatures; attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

In the United States, only certain types of murder, such as premeditated murder for hire or murder of certain government officials, qualify as capital crimes.88 In a few states, if someone is killed during the commission of a felony, anyone involved in committing that felony can be sentenced to the death penalty, even if they are not the one who committed the killing, under a principle called the law of the parties. Many oppose this imposition of the death penalty on someone other than the person who did the actual killing, and state legislatures are reviewing the situation.89 In the United States, even states that impose the death penalty cannot impose it on an individual who is under 18 or mentally disabled at the time of the crime.90 The harshest sentence a juvenile can receive in the United States is life in prison without parole. Even in those states that use the death penalty, it is being applied less often.

SHOW ME THE DATA

A bar graph shows how new death sentences in the United States have decreased from close to 300 in 1988 to fewer than 100 in 2018.
Figure 11.10 In the 30-year period from 1988 to 2018, new death sentences in the United States decreased from close to 300 in 1988 to less than 50 in 2018, a reduction of more than 80 percent. (source: Death Penalty Information Center; attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

The federal death penalty applies in all 50 states and US territories but is used relatively infrequently. As of November 2021, there were 45 federal prisoners on death row.91 No federal government executions occurred after 2003 until 2020, when President Donald Trump ordered federal officials to begin carrying out executions. During the remainder of his presidency, 13 federal prisoners were executed.92

SHOW ME THE DATA

A pie chart shows the race of federal death row prisoners in the United States as of November 2021: 20 Black prisoners, 17 White prisoners, 7 Latina/Latino prisoners, and 1 Asian prisoner.
Figure 11.11 As of November 2021, there were 45 inmates on federal death row in the United States. (source: Death Penalty Information Center; attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

At the end of 2018, 2,567 prisoners were on death row in US states. From 1977 to 2018, 34 states carried out 1,490 executions. Texas carried out 37 percent of those executions. While California has the most people on death row, it has not carried out any executions for many years. Since March 2019, when Governor Gavin Newsom placed a stoppage on executions, all death row inmates in California have effectively been serving life sentences.93 For more information about the death penalty and executions in the United States since 1978, visit USAFacts, where you can explore interactive graphics that provide comparative data showing how each state and the federal government has applied the death penalty.

The split internationally and between the states on support for or opposition to the death penalty reflects the general division in society over whether or not the death penalty is intrinsically cruel and unusual under current human rights standards.94 The US Supreme Court has held that the meaning of “cruel and unusual” rests on society’s “evolving standard of decency,” and thus there is no set standard.95 As society’s view of the death penalty changes, so can the application of the concept of cruel and unusual punishment.

Those who oppose the death penalty96 make a number of different arguments. Some argue that life without parole meets the purposes of criminal punishment better than execution. They say that a life without parole permanently removes from society the person who has been sentenced just as much as the death penalty would; thus, the standard of incapacitation of the person to commit another crime is met.97 Some argue that because investigations have found that some people executed or placed on death row are innocent, injustice cannot be corrected if the death penalty is carried out.98 Killing someone for the crime of killing has been held up as state hypocrisy. Additionally, there are questions about the equal application of justice in death penalty cases because racial minority defendants tend to receive the death penalty more often than White defendants who are convicted of committing the same or similar crimes.99 Further, the race of the victim is a factor. A 1990 US government report states that “in 82 percent of the studies [reviewed], race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.”100

SHOW ME THE DATA

Two pie charts show how race relates to the death penalty in the United States since 1976. The pie chart on the left shows executions by race of the defendant in the United States since 1976: 856 defendants were White, 129 defendants were Latina/Latino, 524 defendants were Black, and 25 defendants were other races. The second pie chart shows executions by race of the victims in the United States since 1976: 1,158 victims were White, 100 victims were Latina/Latino, 205 victims were Black, and 76 victims were other races.
Figure 11.12 Historically in the United States, more than twice as many Black defendants have been executed as have defendants in cases in which the victim was Black. (source: Death Penalty Information Center; attribution: Copyright Rice University, OpenStax, under CC BY 4.0 license)

Civil Law

Civil law is everything that is not criminal law. Thus, it is wide-ranging and complex, covering everything from family matters (marriage, divorce, adoption, guardianship, probate, etc.) to personal injury, workers’ compensation, medical malpractice, and business disputes. Civil law differs from criminal law in that individuals or groups file cases rather than the state. The legislature enacts laws that establish standards of conduct and recognizes relationships. The legislature will establish the duty owed and rights between individuals, what constitutes a breach, and what damages may be recovered for that breach. Because civil law topics are so wide-ranging, the burden of proof for the complaining party similarly varies. It can range from merely a preponderance of evidence to clear and convincing evidence.

Civil Law Criminal Law
Definitions Laws concerned with interpersonal disputes such as divorce, debt, personal injury Statutes that identify conduct as criminal felonies or misdemeanors; punishable by the government
Cases Filed By Individuals The government
Type of Punishment Monetary damages, disposition of property and/or a relationship Incarceration, fines, probation
Burden of Proof Ranges from a preponderance of evidence to clear and convincing evidence, depending on the topic Always guilt beyond a reasonable doubt
Appeals Filed By Any dissatisfied party The defendant
Right to a Jury Must pay a fee to have a jury Automatic in some cases, requested in others; no fee charged
Jury Verdict Does not always have to be unanimous Must be unanimous
Table 11.4 A Comparison of Civil Law and Criminal Law
Reference: OpenStax.org