In this section of the chapter, we turn to the various ways that criminal law has been classified. Classification schemes allow us to discuss aspects or characteristics of criminal law. Some classifications have legal significance, meaning that how a crime is classified may make a difference in how the case is processed or what type of punishment can be imposed. Some classifications had historical legal significance, but no longer have much consequence. Finally, some classifications have no legal significance, meaning the classification exists only to help us organize our laws.

Classifications Based on the Seriousness of the Offense

Legislatures typically distinguish crimes based on the severity or seriousness of the harm inflicted on the victim. The criminal’s intent also impacts the crime classification. Crimes are classified as felonies or misdemeanors. Certain less serious behaviors may be classified as criminal violations or infractions. The term offense is a generic term that is sometimes used to mean any type of violation of the law. In states allowing capital punishment, some types of murder are punishable by death. Any crime subject to capital punishment is considered a felony. Misdemeanors are regarded as less serious offenses and are generally punishable by less than a year of incarceration in the local jail. Infractions and violations, when those classifications exist, include minor behavior for which the offender can be cited but not arrested, and fined but not incarcerated.

The difference between being charged with a felony or misdemeanor may have legal implications beyond the length of the offender’s sentence and in what type of facility an offender will be punished. For example, in some jurisdictions, the authority of a police officer to arrest may be linked to whether the crime is considered a felony or a misdemeanor. In many states, the classification impacts which court will have the authority to hear the case. In some states, the felony-misdemeanor classification determines the size of the jury.

It’s noteworthy that historical practices in Oregon once allowed for non-unanimous jury verdicts in felony cases, meaning some jurors could disagree with the verdict. However, this longstanding practice underwent a significant change. In a landmark decision in 2020, Ramos v. Louisiana, the U.S. Supreme Court ruled that the non-unanimous jury system in Oregon was unconstitutional, emphasizing the importance of unanimity in jury decisions to ensure fair and just trials. This decision marked a pivotal moment in the state’s legal history, highlighting the evolving nature of criminal justice practices and the ongoing efforts to uphold principles of fairness and impartiality in the legal system.

Classifications Based on the Type of Harm Inflicted

Almost all state codes classify crimes according to the type of harm inflicted.

The Model Penal Code uses the following classifications:

• Offenses against persons

• Examples: homicide, assault, kidnapping, rape

• Offenses against property

• Examples: arson, burglary, theft

• Offenses against family

• Examples: bigamy and adultery

• Offenses against public administration

• Examples: bribery, perjury, escape

• Offenses against public order and decency

• Examples: disorderly conduct, public intoxication, riots, loitering, prostitution

By classifying the type of harm being alleged, the prosecutor sets the tone for how they plan to try the case. The defense can then prepare to argue against the classification.

Mala in se and Mala Prohibita Crimes

“Mala in se” and “mala prohibita” are Latin terms used in criminal law to distinguish between different types of offenses based on the nature of the prohibited act.

• Mala in se:

• Definition: “Mala in se” translates to “evil in itself” in English.
• Characteristics: These are crimes that are inherently wrong or immoral, universally recognized as crimes due to their nature. They are offenses that are considered wrong regardless of whether there is a specific law prohibiting them.
• Examples: Murder, rape, theft, and assault are commonly considered mala in se offenses because they are fundamentally wrong in most societies.

• Mala Prohibita:

• Definition: “Mala prohibita” translates to “wrong because prohibited” in English.
• Characteristics: These are crimes that are considered wrong because they are prohibited by laws, even if the acts themselves may not be inherently immoral. In other words, they are offenses created by statutes and are often regulatory or statutory in nature.
• Examples: Traffic violations, tax evasion, and certain drug offenses are often considered mala prohibita because they are crimes based on statutory laws rather than inherent morality.

The distinction between mala in se and mala prohibita helps to categorize and understand the nature of offenses in the legal system. Mala in se offenses are generally seen as more serious due to their inherent moral wrongfulness, while mala prohibita offenses are often subject to changes in societal views and legal statutes.

Substantive and Procedural Law

Another classification scheme views the law as either substantive law or procedural law. Both criminal law and civil law can be either substantive or procedural. Substantive criminal law is generally created by statute or through the initiative process and defines what conduct is criminal.

Procedural law gives us the mechanisms to enforce substantive law. Procedural law governs the process of determining the rights of the parties. It sets forth the rules governing searches and seizures, investigations, interrogations, pretrial procedures, and trial procedures. It may establish rules limiting certain types of evidence, establishing timelines, as well as requiring the sharing of certain types of evidence and giving a certain type of notice. The primary source of procedural law is judicial interpretations of the federal constitution and state constitutions, but state and federal statutes also provide much of our procedural law.

Licenses and Attributions for Classifications of Law

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“Classifications of Law” is adapted from “3.6. Classifications of Law” by Lore Rutz-Burri in SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez, licensed under CC BY-NC-SA 4.0. Modifications by Sam Arungwa, revisions by Roxie Supplee, licensed CC BY-NC-SA 4.0, include minor edits and substantial revisions to the Mala in se section.