Criminal Law is Statutory Interpretation

Criminal law is about reading and applying statutes. Unlike your other first year classes, criminal law is largely statutory in nature – if the legislature has not prohibited particular conduct, it is generally not criminal. (With the caveat, of course, that in our world of plea bargaining, prosecutors are the ones actually "making" most law).

This has not always been the case. Traditionally, criminal law was what courts said it was. The idea of "common law crimes" – crimes defined by court decisions rather than legislatures – was widespread in England for centuries. After American independence, many states formally adopted English common law, including its definition of common law crimes.

As time went on, however, states began to codify the definitions of various crimes and nearly all abolished the idea that courts could create new crimes. (e.g. the Mochan case you are reading today is no longer good law; it was abrogated by the PA legislature). So reading the statute carefully is a big part of what we will be learning this semester. For example, many first year students are surprised to learn that burglary is defined (loosely) as breaking and entering at night with the intent to commit a felony inside. Thus, a person has completed the crime of burglary when they have entered (what we’ll call the actus reus or act) intending to steal the owners' possessions (what we’ll call the mens rea or guilty mind). TV and movies have accustomed us to thinking of the burglar as the person in the ski mask leaving a house with a sack full of stolen property. But looking, carefully, at the statute prohibiting burglary shows us that he need not actually steal anything in order to be guilty of burglary.

So what is the role of courts in this? The legislatures write the statutes -- the state’s prohibition of specific conduct – and judges determine how to interpret and apply these statutes consistent with the legislature’s intent. Ultimately, however, the legislature is in charge of the meaning of its statutes and if it disagrees with how the judiciary has interpreted its statutes, it may override that reading by making its true intent clear by amending laws and creating new ones. 

Sometimes students are confused--understandably because law school and learning the law are very different than other educational experiences--and talk about the statute (or Model Penal Code--the main statute we look at in this course) and "common law" as two distinct bodies of authority regulating people's conduct. But they are not separate--on an exam, or in real life, we always start with the statute and then look at court decisions interpreting and applying that statute. We will look at this symbiotic relationship by considering a burglary statute and case in class.

In sum, it is largely presumed that unless the legislature has prohibited the defendant’s conduct, he cannot be convicted of a crime; the courts will punish that conduct, and only that conduct, that the legislature has chosen to prohibit. This is known as the legality principle. Is this about notice/fairness to people, or about the roles of the three branches of government, and a balance of powers? We will discuss this more in class.