Criminal law is the body of rules that defines conduct the state prohibits and authorizes punishment for violations. Unlike civil law, where one party sues another for compensation, criminal law is prosecuted by the state on behalf of the public. The defendant faces not a private plaintiff but the government, with its full investigative and coercive apparatus.
The defining features of criminal law are the severity of its sanctions — deprivation of liberty, up to and including death in some jurisdictions — and the procedural protections that severity demands. The presumption of innocence, the right to counsel, the right to a jury trial, the prohibition on double jeopardy, the privilege against self-incrimination — these due process rights exist because the consequences of criminal conviction are so grave. The criminal justice system is, in principle, the area of law where the state’s power is most constrained.
In practice, the constraints are unevenly applied. Prosecutorial discretion — the prosecutor’s power to decide whom to charge, with what crimes, and what plea deals to offer — shapes outcomes far more than trial procedures do. Mandatory minimum sentences remove judicial discretion at sentencing. The war on drugs criminalized conduct — possession, distribution, use of certain substances — that correlates heavily with race and class, producing racially disparate incarceration rates that have defined American criminal justice for decades.
Criminalization is itself a political act. What counts as a crime is not given by nature; it is decided by legislatures and enforced by police. Vagrancy, sodomy, marijuana possession, labor organizing — each has been criminalized in some times and places and legal in others. The boundary between criminal and non-criminal conduct reflects the priorities, anxieties, and power relations of the society that draws it.
Related terms
- Civil law — the branch of law governing disputes between private parties
- Sanction — the penalties criminal law authorizes
- Incarceration — the paradigmatic criminal sanction
- Due process — the procedural protections criminal law demands
- Burden of proof — the standard the state must meet to convict
- Social control — the broader function criminal law serves