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Why does every state have its own criminal laws?

November 22, 2011

1. History, 2. Law

Why does every state have its own criminal laws?

Simple view:  Because we’re actually 50 countries that agreed to form a common union to make economics easier by and between us.

Look at it this way … Europe is not a country – it’s a geographical area.  France, Germany, Italy, et al., are individual countries.  They decided as a group to join forces in the economic sense.  They dropped tariffs and duties between them so goods could be made in one country and sold in another without getting taxed in the process.  They created a common passport so business folks didn’t have to get visas to lawfully be in other countries.  They even created a common currency – the Euro (which may be DOA soon) – so that currency fluctuations between the Lira and Franc, for example, could be eliminated in most transactions.  The European Union exists for one reason:  The freer flow of goods and services.  Even Gaddafi (who is DOA) wanted to create a united Africa which (Mo was never one for inspiration) he wanted to call the United States of Africa.

Remember one of the biggest battles back in the Revolutionary Days?  It wasn’t musket-balling the Brits as they walked in formation like some beginner-level shooter game.  It was between the Federalists and the Anti-Federalists.  We fought politically with ourselves over the strength of the federal government.  The only reason we had a President under the Articles of Confederation was because Congress was in town only a few months.  Someone or something had to address issues that came up when Members of Congress were out whoring.  It was actually a committee that was chaired by the President.  His authority flat-lined when Congress came back into town.  And the primary reason we created a Judicial Branch – being at first just SCOTUS – was because Georgia was a goof.  They’d do something ignorant to New Jersey.  The NJ court would hear the case, and be all “WTF?”  Then Georgia’s court would hear the case and respond with “FU!”  We needed a higher court that could hear disputes between the states.

And to underscore the Anti-Federalist nature of our country (countries), just read the 10th Amendment to the US Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The US Constitution is not a long document, clocking in at about 7,000 words.  At the time of passage (two parts – the Constitution in 1789, the Bill of Rights in 1791), the 10th Amendment was the last thing you read.  In essence, it tells us this:  “You all just read the Constitution and the nine amendments.  That’s it.  If it ain’t in there, you – the federal government – ain’t got it.  Leave us alone.”

So we really are like 50 countries that have agreed to delegate some duties and assign some rights to a central entity just to make interstate things (and foreign relations) run more smoothly.

That’s why each state has its own constitution, its own criminal code, its own marriage laws, and its own (insert every topic here that isn’t in the US Constitution).

So now it gets interesting.  Most of us started with the English Common Law.  Louisiana, having a heavy French influence, used Civil Law.  We see a lot of Spanish influence in the Community Property states out west, but that applies mostly to divorce law.

Pennsylvania has a simple system – Felonies are graded as 1, 2, or 3.  New York State has a more complex grading system:  A1, A2, B violent, B non-violent, C violent, C non-violent, D violent, D non-violent, and E.  But all the classifications are primarily of the same things – Rape, Robbery, Arson, etc.  A bad act in PA is still a bad act in NYS, it may just be classified differently.

But over the years, we had states diverging in the definitions of their crimes.  If you started with the Common Law definition of Burglary – the breaking and entering of a dwelling at night with the intent to commit a felony therein – and catered it to your state, your change may be different than mine.  “At night” (last I looked) was still important in NYS – it bought you a different classification.  In PA, we don’t care.  “Dwelling” got dropped everywhere, but, for example, in PA we look at the concept of a place that is set up for “overnight accommodation” – where someone would sleep – and grade that Burglary higher.  We also blow through this qualifier if someone is present – who cares if they could have been sleeping?  We also dropped the need for “breaking” because it got so watered down; we just use “entering.”

And then as the union aged, we began to run into some issues.  On very fine points of definition, what was a crime in one state may not have been a crime in another – and if wasn’t the definition of the crime itself, it may have been a defense to the crime (Excuses, Justifications).  So enter the Model Penal Code.  This was an attempt to create a single criminal code for use by the 52 governments – 50 states, the feds, and WDC.  It’s been largely successful.  We still have differences between the states – what constitutes an Insanity Defense to Murder is different in many states – but for the most part, we’ve found common ground.

So why do we have different laws in the different states?  Because Pennsylvania and New York are as different as Germany and France – or Bolivia and Egypt.  We just so happen to be next to one another, and we agreed to let a federal government oversee some aspects of our existence.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde


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