Criminal Law Lawmaking Authority in the United States

Criminal Law in the United States: Lawmaking Authority

Introduction to Criminal Law Lawmaking Authority

The United States has a federal system of government, meaning that power is divided between a central authority and many regional authorities (Federalism). Consequently the power to make law, including criminal law, is divided between the national government and the governments of the 50 states. Local governments also have the authority to enact laws.

The federal government derives its legislative power from the Constitution of the United States. The Constitution gives the federal government authority over certain limited subjects, such as the power to tax, to regulate interstate commerce, to declare war, and to regulate the mail. These powers include an implied authority to define some crimes. For example, the taxation power includes the authority to make it a crime to fail to file an income-tax return or to understate income in a return that is filed. The authority over mail includes the implied power to make it a crime to use the mail to defraud (cheat by deception) or to distribute obscene publications.

The Constitution also explicitly grants power to define criminal behavior. For example, it gives the federal government the authority to punish counterfeiting, treason, and felonies committed on the high seas (such as piracy) and to govern land areas in the United States devoted to federal uses, such as military bases and national parks. The federal government may also protect itself from harm. Thus it has defined as crimes sedition (inciting dissatisfaction with government), bribery of federal officials, and perjury (providing false testimony) in federal courts. In federal territories, the federal government has substantial power over criminal matters, a power similar to that retained by states within their own borders.

The states retain broad power to make law, including criminal law, over matters not delegated by the U.S. Constitution to the federal government or specifically denied to the states. In fact, the states have primary responsibility for defining and enforcing criminal law. The vast majority of all criminal prosecutions take place in state courts under state criminal codes. Each state, within its own territory, has so-called police powers to make and enforce such laws as it deems necessary or appropriate for promoting the public health, safety, morals, or welfare.” (1)

Criminal Law Legal Materials

Tthe U.S. most criminal law is enacted and enforced by the states, so you’ll find most U.S. criminal law in the individual states’ codified statutes (see “State Statutes”).

Federal criminal law resides in the U.S. Code (see “United States Code”), particularly Title 18, which covers Federal Crimes and Criminal Procedure. Title 18 includes theFederal Sentencing Guidelines and the Federal Rules of Criminal Procedure (see Federal Procedure Rules).

Anti-Bribery Laws: Some resources I have found useful: FCPA Blog (“The World’s Biggest Anti-Corruption Compliance Portal”), the FCPA Professor, Anti-Bribery Law in International Business (a Research Guide by the University of Richmond Law Library), the subscription-only articles on Main Justice (known as “Just Anti-Corruption”) andThe FCPA Report (a subscription newsletter with a very helpful topical index).

Police Reports: Vehicle accident reports, as well as some crime and incident reports, are available through PoliceReports.US and other commercial vendors. Police reports may also be available through the relevant department’s web site (e.g., Toledo), or they may be reported in a local newspaper (e.g., the Daily Chronicle). If nothing else, the department’s web site may provide information on how to request a report may be posted on the department’s web site (e.g., Philadelphia). Alternatively, you can order Police Reports through Accurint, and they will send a runner to retrieve copies. Or you can contact the department and request the report yourself.

International Criminal Law: For information and resources, see the International Criminal Law page of the ASIL Guide to Electronic Resources for International Law,Comparative Criminal Procedure: A Select Bibliography (GlobaLex, 2007) by Lyonette Louis-Jacques and/or the International Criminal Law: A Selective Resource Guide(LLRX, 2000).

Investigations: Corporate Internal Investigations (Law Journal Press) discusses corporate internal investigations in the U.S. For investigations in other countries, seeCorporate Internal Investigations: An International Guide by Lomas and Kramer (Oxford University Press) and Corporate Internal Investigations: Overview of 13 Jurisdictions, published in 2013 by Spehl and Gruetzner (Oxford and Nomi’s Verlagsgesellschaft). There are also many law firm memos on this topic.

Plea Agreements and Non-Prosecution Agreements: Professor Brandon Garrett at the University of Virginia School of Law has compiled and posted databases of Federal Organizational Plea Agreements and Federal Organizational Prosecution Agreements, arranged by company, with links to agreements, docket sheets and press releases. Other resources: (a) search PACER or a secondary vendor for agreements filed with a court, (b) review the DOJ website (note: the DOJ search engine is horrible, better to search Google and add “site:http://www.justice.gov/” to your search), (c) search the business news for significant settlements.

Resources

Notes and References

Information about Criminal Law Lawmaking Authority in the Encarta Online Encyclopedia

Guide to Criminal Law Lawmaking Authority

In this Section

In this Section, contents include, among others: Criminal Law, Criminal Law Common Law Origins and Statutory Crimes.

Criminal Law Lawmaking Authority