1 Chapter One: Introduction to American Criminal Law

Sections in Chapter 1

What is criminal law?
Is this act a crime?
“Substance,” “Procedure,” Text, and Decision
The Power to Enforce Criminal Law

What is criminal law?

Of the various subjects a student encounters in an American law school, criminal law may appear the most familiar. From an early age, every American is exposed to depictions of various aspects of the criminal legal system. Police (and “robbers” and “burglars”) appear in children’s books and toys. Criminal investigations and prosecutions are dramatized in television and movies. In the news media, there is ample, perhaps exaggerated, coverage of crimes, arrests, trials, and punishments. Criminal law appears everywhere, in part because in the United States it is nearly everywhere: this country uses criminal legal interventions with a frequency and severity unmatched in most other nations. For this reason, many of the ideas and terms you encounter in this book will be ones you’re likely to have heard before: charges, conviction, presumption of innocence, proof beyond a reasonable doubt, to give a few examples—along with terms of critique such as mass incarceration and racial bias and overcriminalization.

Criminal law seems familiar, but the apparent familiarity can be misleading. Media or cultural depictions of criminal law are often inaccurate, and these depictions won’t teach you to practice law or to pass a bar exam. This book does pursue those goals, and others. It seeks to give you an understanding of American criminal law that will be useful whether you practice in this field or a different area of law, and indeed, an understanding that will be useful even if you do not practice law at all. With so much criminal law everywhere in the United States, understanding how this area of law operates is crucial for any lawyer.

Notwithstanding the seeming familiarity of criminal law, many students eventually find the subject to be very different from what they expected “law” to be. To minimize confusion, it is useful to begin with some basic descriptions. What makes criminal law the same as other areas of law? That is, what makes it law? And what makes criminal law different from other areas of law? What makes criminal law a distinctive field?

Philosophers have no single answer to the question, what is law, and dictionaries identify the word as one with multiple meanings. We speak of the laws of physics, for example, but those statements about the observed properties of physical objects are very different from the kinds of laws that one studies in law school. For the purposes of this book, law can be understood as a human practice that involves both authoritative written texts and decisions by public officials. Text and decision: it will be important to keep both in mind as you study criminal law. For example, a statute that defines “burglary” is a written text, and it is designed to guide official decisions by police officers, prosecutors, and judges. Official decisions are often but not always guided by a prior written text; sometimes public officials make decisions without statutory or other written guidance. And official decisions are sometimes, but only sometimes, recorded in a new written text. Decisions by police officers are often unrecorded, or recorded in a document such as an arrest report that’s soon lost to history, whereas courts frequently announce and explain their decisions in written opinions that are preserved for much longer periods. This latter kind of text, the judicial opinion or “case,” makes up much of law school reading assignments. But cases are not the only written texts that are important to the practice of law, and judicial decisions are not the only decisions that are important to law. In criminal law (and many other fields), statutes are especially important legal texts. And in criminal law (and many other fields), decisions by executive branch officials are often determinative of legal outcomes. In this book, statutes and cases are the type of legal text that you’ll encounter most often, but you will also see examples of other legal texts such as indictments (a special document stating criminal charges) and arrest reports. We will consider how these various texts reflect and shape official decisions and actions.

Here, then, is one way in which criminal law is like other areas of law that you will encounter in law school: it is a distinctive human practice that involves the use of written texts to guide, constrain, or express official decisions and actions. It bears emphasis that the decisions reached in law are decisions made by human beings. Humans are rational creatures who can deliberate about moral values, or take into account empirical evidence, or be influenced by public opinion, or rely on “common sense” as they make legal decisions. But human rationality is bounded, or limited by various factors such as imperfect information and cognitive biases. Human law, unlike the laws of physics, thus reflects various characteristics of human decisionmaking that are also observable in other contexts, such as the influence of emotion and cognitive biases. Racial bias is a particularly acute concern in criminal law, and it will be addressed later in this chapter and at various other points throughout this book. Perhaps criminal law is even more shaped by emotion and cognitive bias than other fields of human law; we will explore that possibility. For now, the key point is that legal texts are designed to guide human decisionmaking, but the relevant text may not be the only factor that shapes an official decision.

What (beyond the possibility of unusual effects of bias and emotion) distinguishes criminal law from other fields of human law? Criminal law was once more commonly called “the law of crimes,” and the concept of a crime may help us identify what is distinctive about criminal law. In popular culture and lay parlance, the term crime is likely to bring to mind images of wrongful or harmful acts. It is tempting to think of criminal law as the law that regulates (by prohibiting) acts of violence or other inflictions of serious harm. Certainly many cultural depictions of crime encourage that view, equating crime with murder, rape, or other grave physical harms. But in legal terms, a crime is any act that has been designated as a crime by the appropriate legal actors. Many acts designated as crimes do not involve any physical harm, or even conduct that is widely viewed as harmful. Public intoxication, or “loitering,” or a failure to file required paperwork, are all acts designated as criminal, as you will see in the coming chapters. We will consider a wide array of acts designated as criminal and investigate whether we can identify one or more shared characteristics of those acts. Is there an extra-legal definition of “wrong” or “harm” that predicts which acts will be labeled as crimes?

Whether or not the acts designated as criminal are in fact wrongful or harmful in all cases, the designation of a person as “a criminal” brings significant negative consequences to that person in all or nearly all cases. Criminal law is often said to be distinctive in imposing unique burdens, such as loss of liberty through a jail or prison sentence. Even when a person convicted of a criminal offense avoids incarceration, a criminal conviction carries considerable stigma and often renders a person ineligible for various social benefits.

Indeed, the burdens of a criminal conviction are a key part of the distinction between criminal law and tort law. Tort law, which you are likely to study in your first year of law school, is similar to criminal law in that it imposes legal liability for conduct designated as wrongful. In fact, the modern English word “tort” comes from the Latin term torquere (to twist, or distort) and its past participle tortum (wrong or injustice). Many acts could be classified as both crimes and torts, such as intentional inflictions of physical injury. But tort law is different from criminal law in at least two key respects. First, the sanctions are different. Tort liability usually means having to pay monetary damages to the injured party, but it does not involve custodial detention or the stigma of a criminal conviction. To be sure, criminal punishment can take the form of a fine, or monetary restitution to a victim, so the fact that a person has to pay money for some wrongdoing does not itself distinguish crimes from torts. But criminal sanctions often involve not monetary payments (or, not only monetary payments) but physical detention, in a jail or prison. Additionally, there is a stigma associated with a criminal conviction that is not typically associated with being found liable for a tort. Thus, the severity and stigma of criminal sanctions may be one point of distinction from tort law. A second way in which tort law is different from criminal law is that the decision to pursue a tort claim is usually the choice of a private party, not a public official. Police and prosecutors decide whether a given individual will be investigated and charged with a crime, but the individual or private party who is harmed by tortious conduct decides whether to file a tort suit.

Because the burdens of a criminal conviction are seen as more severe than the burdens typically imposed by non-criminal laws, criminal law contains various structures designed to limit the imposition of criminal penalties. For example, criminal punishment is said to require a higher standard of proof than is required in many other areas of law – that’s the beyond a reasonable doubt standard that you’re likely to have heard invoked before. This is another way in which criminal law differs from tort law, and it may explain why some defendants are acquitted of criminal charges but found civilly liable for the same conduct in a tort suit. (O.J. Simpson is a famous example: he was acquitted of the murders of his ex-wife and her friend Ron Goldman, but Simpson was found liable for the deaths in a subsequent civil tort suit with a lower standard of proof.) In Chapter Two, Three, and Four, we will encounter several cases that address constitutional principles arguably designed to limit the imposition of criminal law’s distinctively severe penalties. As you read those cases, you will gain a better understanding of how the United States has developed its extensive system of criminal legal interventions, notwithstanding ostensible limits on the use of criminal sanctions.

Throughout this book, we will consider the ways that criminal law is, and is not, like other areas of law. We’ll ask this question with specific focus on the conduct that the law regulates, the burdens or penalties that the law imposes, and the ways that official legal decisions are made. The aim is to help you understand criminal law in context, but if these comparisons also help you understand other fields of law, so much the better!

In the remainder of this introductory chapter, and indeed in much of the rest of this book, we will consider three types of official decisions that are especially important to criminal law. For any individual person to be convicted of a crime, each of these three decisions is necessary. First, the criminalization decision is the choice to define some category of conduct as criminal. Today, this decision usually must be made by a legislature and expressed in a criminal statute, but we will see in this chapter that criminalization decisions have not always required legislative action or a written statute.

Criminal statutes (or other texts that define activity as criminal) are not self-enforcing. For example, the existence of a statute that criminalizes the possession of cocaine is not by itself enough to ensure that all persons who possess cocaine will be convicted of violating that statute. Accordingly, a second type of decision key to criminal law is the enforcement decision, or the decision by enforcement agents such as police and prosecutors to arrest or charge a given person. In practice, the enforcement decision is usually not just one decision but two decisions or more: the decision by a police officer to investigate and perhaps arrest a person; the decision by a prosecutor to charge a particular offense; and in many instances, later decisions by a prosecutor to add or drop charges as part of a plea bargaining process.

Plea bargaining is often (but not always) a precursor to the third key decision, the adjudication decision, in which a formal, and often final, decision is made to classify the defendant as guilty or not guilty. If a criminal case involves a jury trial, then it is the jury who makes the adjudication decision. Some criminal cases involve bench trials, in which a judge serves as the factfinder and decides whether to convict the defendant or not. But the vast majority of criminal convictions are based on guilty pleas rather than jury or bench trials. When a defendant pleads guilty, it is more difficult to identify the actor who makes the adjudication decision. It could be said that the defendant himself (or herself) makes the adjudication decision, since the defendant admits his own guilt instead of asking a jury or judge to determine guilt. But what would lead a defendant to do that? In a system that promises that every defendant will be presumed innocent until proven guilty, why do so many defendants plead guilty, disclaim their own innocence, and relieve prosecutors of their burden to prove guilt? We will explore these questions more in Chapter Four and throughout the book. It will turn out that criminalization decisions and enforcement decisions can create situations in which adjudication decisions all but disappear – choices about what to criminalize, and how to enforce those laws, can make a guilty plea rather than a trial the least terrible option for many a defendant. For now, it is important simply to note that the distinctive standard of proof mentioned above – proof beyond a reasonable doubt – does not actually get tested in most criminal cases. Prosecutors don’t have to “prove” anything if a defendant pleads guilty.

In a nutshell, then, criminal law is a human practice which involves three important types of decisions: criminalization, enforcement, and adjudication. Any of these decisions may be guided by, or recorded in, an official text, but texts will not always determine how the decisions are made. This book seeks to help you understand the practice of criminal law by helping you understand each of these three types of decision, and its relation to applicable texts. We will consider similar questions about each type of decision: Who makes it? Does the decision have to take a certain form (a statute, an indictment, a verdict) in order to be recognized as legally valid? What constraints or criteria apply to the decision, and how does each decision establish constraints or criteria for other decisionmakers? For example, consider the modern view that the decision to criminalize conduct must be expressed in a written statute. What constraints, if any, apply to a legislature’s decision to enact a new statute? Once a statute is enacted, how does it then guide or constrain the decisions of police, prosecutors, judges, or juries?

Our first case focuses most directly on the criminalization decision and which institution – court or legislature – should make that decision. But as you read, look also for references to the other two decisions, the enforcement decision and the conviction decision.

Is this act a crime?

COMMONWEALTH of Pennsylvania

v.

Michael MOCHAN, Appellant

Superior Court of Pennsylvania
110 A. 2d 788

Jan. 14, 1955

HIRT, Judge.

One indictment (Bill 230), before us in the present appeals, charged that the defendant on May 4, 1953 ‘devising, contriving and intending the morals and manners of the good citizens of this Commonwealth then and there being, to debauch and corrupt, and further devising and intending to harass, embarrass and villify divers citizens of this Commonwealth and particularly one Louise Zivkovich and the members of the family of her the said Louise Zivkovich * * * unlawfully, wickedly and maliciously did then and there on the said days and dates aforesaid, make numerous telephone calls to the dwelling house of the said Louise Zivkovich at all times of the day and night, in which said telephone calls and conversations resulting therefrom the said Michael Mochan did wickedly and maliciously refer to the said Louise Zivkovich as a lewd, immoral and lascivious woman of an indecent and lewd character, and other scurrilous, opprobrious, filthy, disgusting and indecent language and talk and did then and there use in said telephone calls and conversations resulting therefrom, not only with the said Louise Zivkovich as aforesaid but with other members of the family of the said Louise Zivkovich then and there residing and then and there answering said telephone calls aforesaid intending as aforesaid to blacken the character and reputation of the said Louise Zivkovich and to infer that the said Louise Zivkovich was a woman of ill repute and ill fame, and intending as aforesaid to harass, embarrass and villify the said Louise Zivkovich and other members of her household as aforesaid, to the great damage, injury and oppression of the said Louise Zivkovich and other good citizens of this Commonwealth to the evil example of all other in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania.’

A second indictment (Bill 231), in the same language, charged a like offense committed by defendant on another date. Defendant was tried before a judge without a jury and was convicted on both charges and was sentenced. He has appealed … on the ground advanced by him that the conduct charged in the indictments, concededly not a criminal offense in this State by any statute, does not constitute a misdemeanor at common law. In a number of States and especially in the common law State of Pennsylvania the common law of England, as to crimes, is in force except in so far as it has been abrogated by statute. The indictments in these cases by their language, clearly purported to charge a common law crime not included in our Penal Code or elsewhere in our statutory law.

It is established by the testimony that the defendant over a period of more than one month early in 1953, on numerous occasions and on the specific dates laid in the indictments, telephoned one Louise Zivkovich, a stranger to him and a married woman of the highest character and repute…. His language on these calls was obscene, lewd and filthy. He not only suggested intercourse with her but talked of sodomy as well, in the loathsome language of that criminal act, on a number of occasions. The calls were coming in from a four-party line. Through cooperation with the telephone company, the defendant was finally located and was arrested by the police at the telephone after the completion of his last call. After his arrest bearing upon the question of his identification as the one who made the calls, Mrs. Zivkovich recognized his voice, in a telephone conversation with him which was set up by the police.

It is of little importance that there is no precedent in our reports which decides the precise question here involved. The test is not whether precedents can be found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law. In Commonwealth v. Miller, 94 Pa.Super. 499, 507 (1928), the controlling principles are thus stated: ‘The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government.’ Any act is indictable at common law which from its nature scandalously affects the morals or health of the community. 1 Wharton, Criminal Law, 12 Ed., § 23 (1932). … [I]n Commonwealth v. Glenny, 54 Pa. Dist. & C. R. 633 (1945), in a well considered opinion it was held that an indictment charging that the defendant took indecent liberties tending to debauch the morals of a male victim adequately set forth a common law offense. And as early as Updegraph v. Commonwealth, 11 Serg. & R. 394 (1824), it was held that Christianity is a part of the common law and maliciously to villify the Christian religion is an indictable offense.

To endeavor merely to persuade a married woman to commit adultery is not indictable. Smith v. Commonwealth, 54 Pa. 209 (1867). The present defendant’s criminal intent was evidenced by a number of overt acts beyond the mere oral solicitation of adultery. The vile and disgusting suggestions of sodomy alone and the otherwise persistent lewd, immoral and filthy language used by the defendant, take these cases out of the principle of the Smith case. Moreover potentially at least, defendant’s acts injuriously affected public morality. The operator or any one on defendant’s four-party telephone line could have listened in on the conversations, and at least two other persons in Mrs. Zivkovich’s household heard some of defendant’s immoral and obscene language over the telephone.

The name ‘Immoral Practices and Conduct’ was ascribed to the offense and was endorsed on the indictments by the District Attorney. Whether the endorsement appropriately or adequately names the offense is unimportant; the factual charges in the body of the indictments identify the offense as a common law misdemeanor and the testimony established the guilt of the defendant.

Judgments and sentences affirmed.

WOODSIDE, J., filed a dissenting opinion in which GUNTHER, J., joins.

Not unmindful of the reprehensible conduct of the appellant, I nevertheless cannot agree with the majority that what he did was a crime punishable under the laws of this Commonwealth.

The majority is declaring something to be a crime which was never before known to be a crime in this Commonwealth. They have done this by the application of such general principles as ‘it is a crime to do anything which injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer;’ and ‘whatever openly outrages decency and is injurious to public morals is a misdemeanor.’

Not only have they declared it to be a crime to do an act ‘injuriously affecting public morality,’ but they have declared it to be a crime to do any act which has a ‘potentially’ injurious effect on public morality.

Under the division of powers in our constitution it is for the legislature to determine what ‘injures or tends to injure the public.’

One of the most important functions of a legislature is to determine what acts ‘require the state to interfere and punish the wrongdoer.’ There is no reason for the legislature to enact any criminal laws if the courts delegate to themselves the power to apply such general principles as are here applied to whatever conduct may seem to the courts to be injurious to the public.

There is no doubt that the common law is a part of the law of this Commonwealth, and we punish many acts under the common law. But after nearly two hundred years of constitutional government in which the legislature and not the courts have been charged by the people with the responsibility of deciding which acts do and which do not injure the public to the extent which requires punishment, it seems to me we are making an unwarranted invasion of the legislative field when we arrogate that responsibility to ourselves by declaring now, for the first time, that certain acts are a crime.

When the legislature invades either the judicial or the executive fields, or the executive invades either the judicial or legislative fields, the courts stand ready to stop then. But in matters of this type there is nothing to prevent our invasion of the legislative field except our own self restraint. There are many examples of how carefully the courts, with admirable self restraint, have fenced themselves in so they would not romp through the fields of the other branches of government. This case is not such an example.

Until the legislature says that what the defendant did is a crime, I think the courts should not declare it to be such.

I would therefore reverse the lower court and discharge the appellant.

Notes and questions about Mochan

1. Notice the key decisions that were necessary in order for Michael Mochan to be convicted of a crime: first, the decision that “acts which injuriously affect public morality” are crimes; second, the decision that these particular phone calls constituted such injurious acts and warranted prosecution; and third, the decision that sufficient evidence exists to establish that Mochan was the person who made the calls. Which public officials made each of these decisions?
2. With Commonwealth v. Mochan, you have just read your first judicial opinion about criminal law. But do all the ideas and arguments here come from judges? Look closely at the first paragraph of the opinion, which is mostly a quotation. Whose language is the court quoting?
3. In light of the previous question, some tips for reading cases as you go forward: keep in mind that court opinions often quote other sources, or even without quoting, summarize arguments of the parties or other courts. Read carefully and consider each passage in context. This will help you determine when a judge is reporting arguments or decisions made by others, and when he or she is announcing or justifying the court’s own arguments and decision. And of course, be sure to take note of where a majority opinion ends and where a concurring or dissenting opinion begins.
4. An indictment (the type of document quoted in the first paragraph of this case) is a written document describing the defendant’s conduct and charging a specific offense. How does the prosecutor determine that Mochan’s actions are properly classified as criminal? Is there a name for the crime that Michael Mochan allegedly committed?
5. Identify Mochan’s “grounds for appeal,” or his specific argument that he should not have been convicted.
6. What is the difference between a “common law crime” and a statutory crime?
7. The majority opinion emphasizes that “to endeavor merely to persuade a married woman to commit adultery” is not a crime in Pennsylvania. What additional factors made Mochan’s conduct properly classified as criminal, in the majority’s view?
8. Once Louise Zivkovich reported obscene telephone calls to the police, were police obligated to investigate and respond? Once police investigated and identified Mochan as the person who made the calls, was a prosecutor obligated to bring charges? The court identifies as a misdemeanor “any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer” (emphasis added). The court later states that “potentially at least, defendant’s acts injuriously affected public morality.” Why is a potential effect on public morality sufficient for conviction? Does the court address the question whether the injury to public morality required the state to interfere here? Who determines whether state intervention is required?
9. Throughout this book, you can be confident that if a concurring or dissenting opinion is included in your assignment, there’s something important to be learned from that opinion. In this case, Judge Woodside’s dissenting opinion is important because his position is the majority view today: criminalization decisions (the classifications of acts as crimes) should be made by the legislative branch rather than the judicial branch. Why does Judge Woodside think that criminalization decisions should be made by a legislature rather than a court? (In Chapter Two, we will consider in more detail why Judge Woodside’s view became the prevalent view in the United States.)
10. The opinions in Mochan present two options: criminalization decisions can be made by the legislature, or criminalization decisions can be made by the judiciary. Are these the only two options? In the United States, government is usually organized into three branches, not just two – legislative, judicial, and executive. Police and prosecutors are part of the executive branch. Did executive branch officials play any role in the criminalization decision here? (In Chapter Three, we will consider in more detail the relationship between criminalization decisions, or the classification of a category of acts as criminal, and enforcement decisions, or the choice to treat a specific individual’s actions as falling within a larger category of acts defined as criminal.)
11. In your own view, which branch of government is best suited to decide that a category of actions should be classified as criminal and subject to punishment?

“Substance,” “Procedure,” Text, and Decision

Many American criminal law casebooks, and indeed many criminal law scholars, divide criminal law into “substantive law” and “procedure.” On a standard account, “substantive criminal law” refers to the definitions of crimes or defenses, or general principles of criminal liability, stated in criminal statutes and interpreted or elaborated by judicial decisions. For example, the definition of murder, and the criteria for a valid insanity defense, are “substantive law.” The general definition of a misdemeanor in Mochan, “any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer,” would similarly be classified as “substantive law.” Substantive criminal law, on this view, is determined by the legislatures who enact statutes and the judges who interpret and apply these statutes, and one can find substantive law in certain key texts: statutes and judicial opinions.

The decisions of police and prosecutors are often classified as something different – procedure – and these decisions are often given little or no attention in a course on substantive law. This conceptual division between substance and procedure has led many a student to be surprised and puzzled in the criminal law classroom, because in most cultural depictions of criminal law, prosecutors and police are portrayed as central actors – as they should be. Beyond criminal law textbooks, enforcement decisions tend to gather a fair amount of interest and attention. One reason for the attention to enforcement is that a decision to enforce a criminal statute is often a decision to exercise the government’s power to use superior physical force: to arrest someone and take them into custody, to subject someone to a prison sentence. This dimension of criminal law, its connection to state violence, can be obscured from view if we think of criminal law only in terms of crime definitions and not in terms of the decisions that are made in light of those definitions. Very roughly, one could say that the traditional curricular approach identifies “criminal law” as residing in certain texts (again, statutes and written judicial opinions about statutes or general principles of liability). The decisions that individual officials make about those texts are not themselves part of “criminal law,” at least as the subject is traditionally taught.

This book proceeds from a more practical – and more complete – conception of law. Criminal law, like other types of human law, involves the interaction of texts and decisions. Though designed for the typical first-year criminal law course, this book does not limit itself to “substantive” law, at least in the usage described above. Statutory definitions of crimes, and general principles of criminal liability, are indeed discussed at length in this book. But these “substantive” laws are important insofar as they are invoked and applied by enforcement officials – police and prosecutors. Imagine a statute that criminalizes swimming in public while wearing improper attire, or one that criminalizes the sale of a videotape without an official rating displayed on the cover. If such statutes exist on paper but are never used to arrest or prosecute anyone, they don’t really represent the “criminal law” that students need to learn, and that this book seeks to explain. Moreover, if such statutes are used to arrest and prosecute people, but it is police and prosecutors who decide what counts as “improper attire” or an “official rating,” then the study of these laws should take these decisions by enforcement officials into account. This book is about criminal law as a human practice, which means that the decisions of enforcement officials are an important part of its focus. The approach taken here might be called an integrated approach, because it integrates written texts with the decisions that the texts are supposed to guide, and it integrates decisions by legislative, judicial, and executive actors.

One advantage of this integrated approach is that it better equips us to examine distinctive features of criminal law in the United States, including the exceptionally broad scale of criminal legal interventions and stark racial disparities among those targeted for policing and punishment. More empirical information about American criminal legal practices will be presented throughout the book, but here are three key features to keep in mind from the outset:

1. Imprisonment. For many years, the United States has had the highest incarceration rate in the world by a large margin, meaning it imprisons a greater share of its population than any other country. Again, a decision to use criminal law (rather than some other form of legal intervention) is often a decision to use superior physical force, and the physical constraints of prison are one very common form of force used by the state. The U.S. incarceration rate peaked at about 1000 people imprisoned per 100,000 residents, or about 1% of the population, around 2006-2008. Since then the incarceration rate has declined to about 700 people imprisoned per 100,000. (These numbers include persons detained in both prisons and jails. The Covid-19 pandemic has caused some fluctuation in these numbers, as many U.S. prisons released persons to reduce overcrowding, but jail populations have since expanded.) For comparison, the worldwide average incarceration rate is about 155 people imprisoned per 100,000. For more data on global incarceration rates, check out https://www.prisonpolicy.org/global/2018.html. The Vera Institute of Justice is another good source of data; for a report on pandemic-related fluctuations in prison and jail populations, see https://www.vera.org/publications/people-in-jail-and-prison-in-spring-2021.
2. Criminal interventions other than imprisonment. To count only the persons incarcerated in jail or prison may be to examine only the tip of a very big iceberg. The vast majority of people who are convicted of criminal offenses receive a non-custodial sentence, such as probation. And a still larger group of Americans are subjected to forcible police interventions such as stops, frisks, or even arrests but then not convicted, often because the police activity does not uncover evidence of any crime. It is much more difficult to gather data on these interventions than on prison sentences, but it does seem clear that the United States is an outlier not only in the number of people it imprisons but also in the number of people it convicts, arrests, or simply investigates through criminal law enforcement.
3. Racial disparities in both imprisonment and other criminal interventions. For prison sentences but also nearly every other type of criminal intervention, persons of color, especially Black people, are overrepresented in relation to their population. For example, Black people are more likely than white people to be stopped by the police, to be arrested, to be the target of police violence, to be detained pre-trial, to be sentenced to prison, to be sentenced to a life term, and so on. These patterns of disparity are discussed throughout the book, but you can see an overview and visual depictions of some of the data at https://www.prisonpolicy.org/blog/2020/07/27/disparities/.

One can’t really understand these phenomena simply by reading statutory definitions of crimes, or judicial opinions parsing statutory language. Indeed, a narrow focus on statutory definitions or judicial opinions is likely to be misleading. If one thinks of criminal law only in terms of crime definitions, then it may be tempting to conclude that racial disparities in punishment must be the product of racial disparities in criminalized behavior. In other words, one might assert that persons of color are convicted and punished at higher rates just because persons of color commit crimes more often. Though a handful of commentators do make this claim, this book aims to give you a more complete and accurate understanding of racial disparities in American criminal law. Substantial evidence (some of it linked above, more of it cited later in this book) indicates that a person of color is likely to be subject to more frequent and more severe criminal interventions than a similarly situated white person. Racial disparities in American criminal law are largely a product of public officials’ choices. And while statutory definitions enable enforcement choices, the statutes themselves often don’t explain those choices. The study of statutory definitions in isolation from enforcement practices is likely to produce an idealized and inaccurate picture of criminal law as a race-neutral, carefully constrained field. This book aims to help you understand the whole picture of criminal law, as sprawling and inegalitarian as that picture may be.

Finally, this book is also “integrated” in that it attempts to give you an overview of criminal law across the entire United States, even as it emphasizes that the definitions of crimes vary by specific jurisdiction. Each state enacts its own statutes or code (a criminal code is a collection of many different statutes). You could not hope to memorize the criminal code of even one state, much less many states. But your goal should not be the memorization of crime definitions. Criminalization, enforcement, and conviction decisions often follow similar patterns from one state to another, and this book will help you become familiar with those patterns. When you know the typical patterns and basic structures of criminal law, it becomes much easier to identify and apply the relevant law of a specific jurisdiction. For example, in Chapter Five we will study property offenses, including the offense of “burglary.” You will see that various states define burglary differently, but at the same time, there are commonalities across jurisdictions. You don’t need to memorize the definition of burglary from any specific state, but you do need to learn how to read and apply any burglary statute you encounter.

On the topic of jurisdictional variations, a quick note about the Multistate Bar Exam (MBE): this licensing exam for American lawyers is not based on any single state’s law, but it includes multiple choice questions about crime definitions – including burglary! The people who write the MBE have in mind a generic definition of burglary (and generic definitions of many other crimes), and for better or worse, becoming licensed as a lawyer usually requires learning the MBE’s generic definitions. But have no fear. You can think of the MBE as itself a fictitious jurisdiction, and this book aims to leave you as well prepared to operate in that imaginary jurisdiction as any actual U.S. state.

The Power to Enforce Criminal Law

Like Commonwealth v. Mochan, the first case in this chapter, the next case comes from Pennsylvania. In that state, county sheriffs (and deputy sheriffs) are empowered to arrest drivers for traffic violations that amount to “a breach of the peace.” But Pennsylvania sheriffs do not have powers as extensive as police officers, who can in Pennsylvania and most states make an arrest for any criminal offense whether or not the offense involves “a breach of the peace” or even carries potential jail or prison time as a punishment. The legal classification of conduct as criminal gives most police officers – again, but not necessarily a Pennsylvania sheriff – power to stop, investigate, and possibly an arrest a person who is suspected of engaging in that conduct.

The federal constitution, especially its Fourth Amendment, has been interpreted and applied by courts to regulate many police decisions related to search and seizure. This book does not delve deeply into Fourth Amendment law, which you can study in an upper-level course. But it will be useful to know now that police authority to search or seize very often depends on whether the officer has adequate suspicion of criminal activity. When police search or seize without adequate suspicion of conduct that is actually criminal, any evidence they discover could be “suppressed,” or kept out of court.

In short, the classification of conduct as criminal is important not only because it subjects persons to punishment, but also because it subjects persons to policing. Very often, policing leads to the discovery of new evidence and a prosecution for conduct other than that which initially led the police to intervene, as you see below. Another way to put this point: the choice to criminalize conduct is also a choice to empower enforcement actions, such as investigations or arrests by police.

COMMONWEALTH of Pennsylvania

v.

Victor Lee COPENHAVER, Appellant

Supreme Court of Pennsylvania
229 A.3d 242

April 22, 2020

CHIEF JUSTICE SAYLOR.

In this appeal by allowance, we address whether a deputy sheriff may conduct a traffic stop on the basis of an expired registration sticker, on the theory that such a violation amounts to a breach of the peace.

In August 2015, a deputy sheriff conducted a vehicle stop of Appellant’s pickup truck. Upon approaching the truck, the deputy noticed an odor of alcohol and marijuana emanating from the passenger compartment. After administering field sobriety tests, he arrested Appellant for suspected driving under the influence of alcohol and controlled substances (“DUI”). Appellant was ultimately [convicted of DUI, possession of marijuana, and three Vehicle Code offenses].

Appellant challenged the deputy’s authority to conduct a traffic stop and sought suppression of all evidence obtained during the encounter…. The parties … agreed that:

The vehicle stop occurred as a result of the deputy … observing the tailgate to the pickup truck operated by … [Appellant] being in a down position. This caught [the deputy’s] attention. He further observed that the registration on the pickup truck was expired, and additionally, the registration number was identified as belonging to a vehicle other than the one on which it was attached[.]

Order of Stipulated Facts. In connection with the motion to suppress, Appellant argued that an expired registration tag does not give rise to a breach of the peace for purposes of a deputy’s residual common law authority to make arrests. [The fact that the truck’s tailgate was down … did not give rise to a Vehicle Code violation.]

[The trial court denied the suppression motion.]

After a bench trial, Appellant was convicted of DUI and other offenses, and he was sentenced to a term of partial confinement. Appellant lodged an appeal, arguing that his suppression motion should have been granted because operating a vehicle with an expired registration sticker does not by itself constitute a breach of the peace.

The Superior Court affirmed… [T]he Superior Court concluded that Appellant’s action in driving the pickup truck with an expired registration tag involved a breach of the peace, thus authorizing the deputy to conduct the traffic stop. Appellant sought further review in this Court….

The Commonwealth concedes that operating a vehicle with an expired registration sticker, in and of itself, may not comprise a breach of the peace. Because the expired registration belonged to a different vehicle, however, the Commonwealth argues (as it did before the Superior Court) that a reasonable possibility existed that the truck may have been stolen. Thus, the Commonwealth submits that Appellant’s Vehicle Code violations, when considered together, gave rise to a breach of the peace.

The question before this Court, however, is limited to whether operating a vehicle with an expired registration sticker, standing alone, amounts to a breach of the peace, and hence, that is the only question we will resolve. As “breach of the peace” was a criminal offense prior to the enactment of the Crimes Code, and as this Court has not yet had occasion to describe the contours of that concept, we begin by turning to the historical definition of the phrase to determine its present application.

As Appellant highlights, before the Crimes Code was enacted, Pennsylvania courts recognized that a breach of the peace “generally manifests [itself] by some outward, visible, audible or violent demonstration; not from quiet, orderly and peaceable acts secretly done.”

Consistent with this understanding, other jurisdictions have equated a breach of the peace with violent or dangerous activities or behavior. To take one example, Wisconsin’s Court of Appeals has held that driving under the influence of alcohol comprises a breach of the peace, as the dangerous nature of the offense threatens public safety. We find the thrust of these judicial and scholarly expressions persuasive. Accordingly, we now hold that – for purposes of a deputy sheriff’s common law authority to enforce the Vehicle Code – a breach of the peace arises from an act or circumstance that causes harm to persons or property, or has a reasonable potential to cause such harm, or otherwise to provoke violence, danger, or disruption to public order.

In our view, operating a vehicle with an expired registration sticker does not fit within that description, as it is not a violent or dangerous action, nor is it likely to lead to public disorder. Indeed, to the contrary, a vehicle’s registration tag expires with the passage of time and, as such, the expiration is passive in nature (although there may be intentionality or knowledge with regard to the decision to drive with an expired registration). Driving a vehicle with such a sticker, moreover, does not tend to incite violence, disorder, public or private insecurity, or the like. That being the case, we conclude that driving a vehicle with an expired registration does not entail a breach of the peace.

 … Accordingly, the order of the Superior Court is vacated, and the matter is remanded to that court for further proceedings consistent with this opinion.

Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.

Justice Wecht files a concurring and dissenting opinion.

JUSTICE WECHT:

I join the Majority’s straightforward and important holding “that driving a vehicle with an expired registration does not entail a breach of the peace.”

…

III

Since our Nation’s founding, this Commonwealth’s Constitutions have recognized the office of county sheriff. Curiously, however, while our [state] Constitution mentions the existence of the county sheriff, its text does not assign or specify any duties of that office. Twenty-six years ago, this Court confronted the question of whether a sheriff could, even in the absence of statutory authority, arrest an individual who has committed a breach of the peace. See Commonwealth v. Leet, 641 A.2d 299 (1994). … [T]he Court, after reviewing the history of the sheriff at common law, simply declared that “[u]nless the sheriff’s common law power to make warrantless arrests for breaches of the peace committed in his presence has been abrogated, it is clear that a sheriff (and his deputies) may make arrests for motor vehicle violations which amount to breaches of the peace committed in their presence,” as long as the sheriff (or her deputies) “complete[d] the same type of training that is required of police officers throughout the Commonwealth.” And that was that.

Leet was flawed at the time it was decided, and the past twenty-six years have underscored these flaws…. It is time to overrule that precedent, and it is time for our General Assembly to define the duties of our Commonwealth’s sheriffs….

B

The Framers of our Commonwealth’s and our Nation’s Constitutions had a conception of law somewhat different from our own. For them, the common law simply existed, waiting to be revealed by the “brooding omnipresence in the sky.” S. Pac. Co. v. Jensen, 244 U.S. 205 (1917) (Holmes, J., dissenting). But our Framers’ beliefs about “the source of natural justice” made way over time for the view that “law in the sense in which courts speak of it today does not exist without some definite authority behind it,” Erie R.R. CO. v. Tompkins, 304 U.S. 64 (1938). Today’s conception of common law “is rooted in a positivist mindset utterly foreign to the American common-law tradition of the late 18th century.”

The brooding-omnipresence-versus-positivist-authority debate played out most prominently on the civil side of our common law jurisprudence, especially in the area of general common law and federal diversity jurisdiction. However, when our Commonwealth adopted English common law in 1777, we not only adopted the common law of torts and contracts and property, but the common law of crime as well. Into the twentieth century, we continued to adjudicate criminal common law. See Commonwealth v. Mochan, 110 A.2d 788 (1955). However, in 1972, in line with the modern positivist trend, our General Assembly codified the criminal laws of this Commonwealth. In doing so, the General Assembly decreed: “Common law crimes abolished.–No conduct constitutes a crime unless it is a crime under [Title 18 of Pennsylvania’s Consolidated Statutes] or another statute of this Commonwealth.” Act of 1972 (codified as 18 Pa.C.S. § 107(b)). Thus, the Commonwealth can no longer bring common law charges against defendants. Rather, Pennsylvania prosecutors must look to the “definite authority” of a statute duly enacted by our General Assembly.

C

In enacting the criminal code, the General Assembly elected not to codify the common law crime of “breach of the peace.” Additionally, neither the criminal code nor the Motor Vehicle Code (“MVC”) empowers sheriffs to enforce their provisions. This is not because the General Assembly is incapable of identifying in legislation which of our law enforcement personnel can enforce our statutes. Police officers have the [statutory] authority to make warrantless arrests for violations of the criminal code, and municipal police officers are specifically empowered to enforce that same code. State police officers and “[o]ther police officers” are empowered to make arrests for violations of the MVC.

Nor is the General Assembly incapable of defining the sheriff’s duties. On the contrary. By my count, the word “sheriff” appears in over 400 statutory provisions. Most importantly, “sheriffs … shall perform all those duties authorized or imposed on them by statute.” In line with this generic grant of authority, the General Assembly has empowered our Commonwealth’s sheriffs to perform all sorts of specific tasks. A sheriff can make an arrest for the violation of a protection from abuse order committed in the sheriff’s presence…. A sheriff can investigate disputes about the custody of animals, search for gunpowder in homes within the City of Philadelphia, serve process on islands between Pennsylvania and New Jersey, remove stocks of illegal fireworks, and issue licenses for dealers of precious metals [statutory citations omitted]. Even within the confines of the MVC, a sheriff can direct that a vehicle be impounded for nonpayment of fines, and conduct public sales for impounded vehicles [statutory citations omitted]. Also within the MVC, drivers are ordered to obey a sheriff who is directing traffic, and a sheriff’s vehicle is permitted to have flashing lights, And yet, with all of these specific provisions giving various duties to sheriffs, including within the MVC itself, never did the General Assembly decree that sheriffs should have the general authority to enforce the laws of our Commonwealth, criminal or motor vehicle in nature.^[1]

As a matter of law, this lack of statutory authorization should have been the end of this debate. Then-Chief Justice Nix, the sole dissenter in Leet, thought it was. … Notwithstanding its unquestionable power to do so, the General Assembly has chosen not to alter our statutory framework with regard to sheriffs since Chief Justice Nix dissented in 1994. The dissent was convincing then, and it is convincing now. It should be the law.

D

… The Majority strives mightily to create a more precise meaning of breach of the peace, possibly in the forlorn hope that our lower courts will be able to adjudicate future cases without our recurrent intervention. Past experience of this Court suggests that this exercise will prove fruitless. The six cases preceding Copenhaver’s appeal have failed to provide authoritative guidance. Cf. Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (avoiding having to define breach of the peace, but writing that “[t]he term apparently meant very different things in different common-law contexts” and “[e]ven when used to describe common-law arrest authority, the term’s precise import is not altogether clear”). That we continually have felt bound to grant allocatur on this issue over the past quarter century is a testament to the impossibility of defining the term with precision. The General Assembly clearly is better-suited to such a task.

Our continued failure to squarely define breach of the peace does no favor to either sheriffs or average residents of (and visitors to) Pennsylvania. When a sheriff is traveling in an official vehicle and witnesses an individual disobeying some provision of the MVC, that sheriff will have to decide, on a moment’s notice, whether the observed action is a breach of the peace. While we rely upon our law enforcement officers to know the law and their duties in enforcing the law, requiring a sheriff to interpret when a particular action is a breach of a peace … seems beyond the pale, considering that even the judges and justices of this Commonwealth cannot come to an agreement.

Perhaps even more troubling is the lack of notice given to those Pennsylvanians who may violate the MVC. The average resident, who likely has less legal training than a law enforcement officer, will have no idea whether driving over an “unprotected hose of a fire department,” parking forty-nine feet from a railroad crossing, or crossing a highway in a golf cart at a forty-five degree angle [statutory citations omitted], constitutes a breach of the peace, for which a sheriff passing by could make an arrest….

A sheriff using these common law powers of arrest granted by this Court has enormous discretion. Because law enforcement resources are not unlimited, discretion is a necessary element in our criminal justice system. But as the law stands, sheriffs have discretion not only in determining who may be arrested and for what crimes they may be arrested, but also in determining (at least until court review following a suppression motion) whether sheriffs themselves have the authority to make the arrest in the first place. …

E

Leet was incorrect when it was decided, and it should be overruled. …

[W]hile I agree that an expired registration tag does not amount to a breach of the peace, I would find that sheriffs do not possess the authority to stop drivers who violate the Motor Vehicle Code, absent a directive from the General Assembly.

Notes and questions on Copenhaver

1. Defining an act as criminal creates the legal authority to punish, in that legal definitions of crime specify some penalty that can be imposed on the person who engages in the given act. Defining an act as criminal can also create the legal authority to police, in that law enforcement officers will have powers to investigate and arrest persons suspected of the act defined as criminal. In the first case you read, Commonwealth v. Mochan, the dispute between the majority and dissent focused on which branch of government should have the power to decide which acts will be subject to punishment. (Again, the dissenting opinion in Mochan represents the view that eventually came to prevail in the United States, including Pennsylvania. See Part III-B of Justice Wecht’s opinion in this case.) Commonwealth v. Copenhaver presents a parallel dispute about the power to police rather than the power to punish. Which branch of government should have the power to decide when an act, such as driving with an expired vehicle registration, subjects a person to arrest by a county sheriff?
2. Where do police officers or other law enforcement agents get their powers? Is the power to arrest just out there, like a “brooding omnipresence in the sky”? Judge Wecht contrasts the brooding omnipresence view of law with a more modern “positivist” view, one that holds “law in the sense in which courts speak of it today does not exist without some definite authority behind it.” Judge Wecht would argue that a sheriff’s power to arrest must have “some definite authority behind it,” and more specifically, some definite authority granted by the legislature.
3. But consider again: is it really significant for the legislature to grant police arrest authority, or, thinking back to Mochan, for the legislature to designate which acts are subject to criminal punishment? As Judge Wecht notes, it’s fairly easy for the legislature to grant police broad powers to enforce any offense. It’s also fairly easy for legislatures to enact new criminal statutes. And many state legislatures have indeed created very broad powers to police and punish. American criminal law is not characterized by a lack of legislative involvement; it is instead characterized by very broad criminalization choices by legislatures.
4. The Copenhaver case is included here to encourage you to consider the ways in which criminalization decisions empower, and otherwise interact with, enforcement decisions. As you begin to think about enforcement decisions, keep in mind that a criminal conviction usually involves multiple different enforcement decisions – by police officers, by prosecutors, and perhaps by judges or other judicial employees. Enforcement decisions include decisions to investigate and arrest, typically made by police officers, but also a multitude of decisions about whether and how to charge the defendant, and which paths toward (or away from) conviction to pursue. The federal Bureau of Justice Statistics publishes a classic graphic that captures many key enforcement decisions, along with adjudication decisions, which you can view at https://bjs.ojp.gov/media/image/45506. This image is misleading in some respects, most prominently in its implication that a “crime” necessarily precedes any initiation of investigation and prosecution. In fact, many investigations begin with suspicion that criminal activity may have occurred, and then never produce any proof that a crime did in fact take place. Notwithstanding the limitations of the BJS flowchart, the sections labeled “Entry into the System” (on policing) and “Prosecution and Pretrial Services” (on prosecutorial choices) give you a reasonable overview of the many enforcement choices that can shape a defendant’s fate.
5. Victor Copenhaver, the defendant in Copenhaver, was ultimately convicted of what crime or crimes? Who made the adjudication decision in this case? That is, who found Copenhaver guilty? What evidence supported the finding of guilt?
6. As you probably already know, the prosecution is required to “prove” the defendant’s guilt (unless the defendant pleads guilty, as discussed above and in more detail in Chapter Four). In principle, the prosecution should meet its burden of proof by relying only on evidence that it has obtained legally. But there are many exceptions to that principle, and many debates about whether and when evidence that government actors have obtained illegally should be “suppressed,” or excluded from court at a trial. Whatever one’s judgment about the desirability of suppressing illegally seized evidence, it is clear that as the investigative powers of the police expand, the government’s ability to obtain evidence legally also expands. Thus expansions of the power to police are also expansions of the power to convict and punish—not because new police powers necessarily define more conduct as criminal, but because new police powers will help the state obtain what it needs to prove various types of conduct already defined as criminal.
7. Notice that the term “breach of the peace” is used in a couple of different ways. As Judge Wecht notes (Part III-C), there was once a common law crime called “breach of the peace,” which was not codified when Pennsylvania abolished common law crimes and enacted a criminal code. But even if there is no specific crime called “breach of the peace” in Pennsylvania today, the term remains important because of an earlier state case, the Leet decision from 1994. In Leet, the state supreme court decided that sheriffs had the authority to make warrantless arrests for offenses that constituted breaches of the peace. In this second usage, “breach of the peace” is not one specific crime but rather a broad category of offenses that could include drunk or reckless driving (to use the majority’s example) and maybe also driving over a fire hose or crossing a highway in a golf cart at a forty-five degree angle (to use Judge Wecht’s examples).
8. As noted by the majority, the prosecution (here, “the Commonwealth”) argued that the vehicle stop was justified not merely because the deputy sheriff suspected an expired registration, but also because the deputy suspected that the truck Copenhaver was driving could be stolen. The registration sticker was not simply expired; it had been issued to a different vehicle. The problem with this argument, as discussed by Justice Wecht in a portion of his opinion not included here, was that the deputy had testified that he did not learn that the registration was issued to a different vehicle until after he had stopped the truck. This seemingly small dispute raises broad questions about the scope of law enforcement authority, most of which we will not be able to tackle in this book. In general, police and other law enforcement officials are able to stop, arrest, or search persons when they have legally adequate suspicion. This means that long after a stop, arrest, or search has taken place, prosecutors and defense attorneys will often be arguing about what the police officer knew or suspected when he decided to exercise his investigative authority. Again, in this particular case, the deputy had testified that he did not know the registration sticker didn’t match the truck until after he made the stop. But the prosecution focused on the stipulated facts, rather than the deputy’s testimony, and argued that the stipulated facts allowed a conclusion that the deputy had in fact been aware of the mismatched sticker and thus could have suspected vehicle theft. All of this is important to this case, because the state courts would almost certainly find vehicle theft to be a “breach of the peace,” even if a mere expired registration is not a breach of the peace.
9. Also on the term “breach of the peace,” notice this possible contradiction between the majority and Judge Wecht: The majority claims that the court “has not yet had occasion to describe the contours” of the concept of a breach of the peace. But Judge Wecht points out that between Leet in 1994 and Copenhaver in 2020, the state supreme court decided six cases concerning the scope of sheriffs’ authority to arrest for “breaches of the peace.” Let this small, seemingly inconsequential divergence alert you to an important feature of all judicial opinions: they are expressions of human decisions, and they are usually carefully crafted to defend a specific outcome. Judges often have some leeway to choose which legal questions to address, which facts to include in their opinions, and which authorities or precedents to invoke (or ignore). One advantage of a case with multiple opinions is that you may get a slightly fuller picture of the background facts or applicable precedents.
10. It is important to understand the role that judicial opinions play in the field of criminal law, and the role they play in a criminal law course and in this book. As you know now after reading Commonwealth v. Mochan and the accompanying notes, today criminal law is a statutory field. For a type of conduct to be classified as criminal, a legislature needs to enact a statute defining the conduct as a crime. Judicial opinions are not the primary source of crime definitions. But as we will see in the next few chapters, statutes often leave many questions open for interpretation, and judges often help determine the scope of criminal law by adopting one interpretation or another. Still, the fact that crimes are typically defined by statute means that judicial opinions play a somewhat different role in this field, and in this book, than they do in some other areas of law. We do not read cases simply to identify their holdings. We do not attempt to synthesize an overarching rule from an array of cases on a related topic. Instead, we read cases primarily as case studies: each case in this book is selected to illustrate several important aspects of criminal law in practice. The notes that follow each case will help you identify various ways in which a particular case demonstrates something important about criminal law.
11. For example, one could say that the holding of Commonwealth v. Copenhaver is that in Pennsylvania, the offense of driving with an expired vehicle registration sticker is not a “breach of the peace” that gives a county sheriff authority to stop the vehicle. But that is hardly the most important lesson that you should learn from this case. Instead, the case is included here for reasons detailed in the notes above. Most importantly, you should understand that enforcement action is the critical link between a criminalization decision and an ultimate finding of guilt. A criminalization decision—the choice to classify a type of conduct as criminal—will produce enforcement powers, and those enforcement powers must be exercised to then bring a particular defendant to court for an adjudication decision. Justice Wecht’s separate opinion also makes Copenhaver a good case to prompt reflection about different types of law and different theories of law. Is law, including the law that empowers police, a “brooding omnipresence in the sky” that exists independently of legislative action? Should we think of law as only the formal pronouncements of legislatures? Should we view judicial decisions as something other than law-making? The brooding omnipresence view is one that may overly obscure the role of human beings and their specific decisions, treating law as an abstraction that exists independently of human decisionmakers. Copenhaver is here to raise these important questions as you begin your study of criminal law. Beyond Copenhaver and throughout this book, think of each case as a case study, and use the notes after each case to help you identify the various lessons to be drawn from each case.