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  1. Introduction
  2. Civil and Criminal Divide
  3. The Positivistic Approach to Crime
  4. Nonpositivist Approaches to Crime
    1. Legal Moralism
    2. Social Practice View
    3. Economic Account
    4. Harm-Based Theory
  5. Bibliography


A crime is a prohibited conduct that is punishable by law. It can also be an omission rather than an act, thus a failure to act when the law requires action. Historically, criminal activities have been limited to those that hurt the interests of others. Occasionally, though, a government will outlaw an act or omission because it is damaging to the perpetrator or because it is immoral. Such laws are referred to as “victimless” crimes. The notion of a crime without a victim highlights the fundamental distinction between criminal and civil law: a crime is an offense against the public good, whereas a civil wrong is an offense against private interests. The purpose of civil damages is to compensate the victim for the harm he has experienced at the hands of the offender, while the purpose of criminal punishment is to defend the state’s interest in the common good.

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After the Norman Conquest, the concept of the public wrong replaced what was effectively a system of private plea bargaining under the Anglo-Saxons. Prior to the conquest, a wrongdoer would give his victim a sum of money to purchase the victim’s right to retaliation. These payments, known as wer, wte, and bót, were not mandated by law, but instead were negotiated between the injurer and the victim. The fact that some injuries were bóteás, or beyond monetary compensation, and a man may be put to death for them reveals the concept of a public harm at this time. The jurisdictional idea of the “king’s peace” may have been a source of the offense against the state at a later time. Under this theory, the Crown reserved the ability to govern any violent acts that may have occurred along any route the king traveled. The introduction of a public police force made the concept of a public wrong institutionally viable, but this was an even later development.

Civil and Criminal Divide

In recent years, the line between civil and criminal wrongs has blurred substantially. On the civil side, for instance, there is the institution of “punitive damages,” whereby a person is penalized for the willful infliction of an injury or the malicious breach of a contract. Punitive damages are meant to penalize the wrongdoer, as opposed to compensatory damages, which cannot exceed the amount necessary to make the sufferer whole. On the criminal side, monetary sanctions in place of jail are becoming increasingly prevalent. Typically, such penalties are paid to the victim in the form of restitution. Also on the rise is the use of criminal sanctions against corporations. Given that a company can only be penalized with monetary punishments and that punitive damages are increasingly granted in civil trials, the distinction between civil and criminal in such situations is mostly academic. It appears to consist primarily of procedural differences, such as the various proof standards and rules of evidence. The concept that crime victims have a right to counsel in the prosecution of their perpetrators has spawned a current push to strengthen the victim’s involvement in criminal procedures. Most forcefully, the concept of victim’s rights suggests a departure from the notion of crime as a public offense. It implies that the offender’s punishment helps, at least in part, to satisfy the victim’s desire for revenge. This tendency toward the “privatization” of crime is also reflected in many institutional reform proposals, such as the proposal to privatize prisons.

The acceptability of these varied adjustments to the conventional concept of crime rests in part on our conception of what a crime is. Is a crime just a ban that appears under the name “criminal” in one of the state or federal penal codes? Or is the criminal category a more fundamental category, one that does not draw its meaning from any particular application of the concept of crime? The first is what we may term a “positivism” towards the concept of an offense. It sees crime as a purely legal concept. The second would be a normative posture towards the concept of a crime that identifies the criminal category through a theory of justified prohibition. Since there is no obligatory component to the concept of a crime, there can be no objection to punishing companies or enhancing the role of the victim from a positive perspective. On the other hand, from a normative perspective, there may be reasons to oppose to these adjustments to the conventional treatment of crime. For it may turn out that, according to our best theory of justifiable punishment, punishing an offender at the victim’s request, especially if accompanied with the payment of compensation, is not legitimate.

The Positivistic Approach to Crime

Positive thinking dominates the American legal system’s attitude to crime. Henry Hart once quipped, “a crime is anything that is called a crime, and a criminal penalty is simply the punishment imposed for committing anything that has been given that name.” (p. 404). In the last fifty or so years, the U.S. Supreme Court has articulated precisely this position by refusing to acknowledge constitutional limits on the concept of an offense. For instance, the Court has concluded that a legislator may penalize action without inserting a mental state element (mens rea) in the offense’s definition (U.S. v. Dotterweich; U.S. v. Balint). It has also determined that it is within the legislative discretion to include exonerating conditions such as insanity in the definition of the offense to which they apply or to regard them as so-called affirmative defenses. The former method would require the prosecution to prove, for instance, that the defendant was not insane at the time he committed the crime, whilst the latter would lay the burden on the defendant. In a case involving the defense of extreme emotional disturbance, the Supreme Court famously articulated its commitment to the positivistic approach to crime by upholding a New York statute that shifted the burden of proof to the defendant instead of requiring the prosecution to prove the absence of the defense beyond a reasonable doubt (Patterson v. New York). Given its premise, the reasoning of the Court was flawless: It contended that while a state has the ability to eliminate a defense entirely, it must also have the ability to transfer the burden of proof to the defendant, as “the greater power implies the lesser power” (p. 211). Even the most fundamental defense, self-defense, has been demonstrated to be susceptible to the identical reasoning. However, the Supreme Court has recently demonstrated a renewed willingness to limit state burden-shifting. The case involved a New Jersey hate crime statute that enabled significantly enhanced penalties for any defendant whose crime was motivated by racial animus. The Court ruled that the Act was unconstitutional on the grounds that it evaded the state’s responsibility to show mental state by treating racial bias as a sentencing factor rather than as an element of the offense. The implication of such a judgement is that legislatures lack unrestricted power to decide whether and how to criminalize, even outside the realm of fundamental rights. For if it is unconstitutional for a state to shift the burden onto a mental state element, it would seem that it does not have unrestricted discretion to include such mental state elements in its criminal definitions. The question thus is whether the Supreme Court’s recent decision in the area of burden of proof marks a fundamental movement away from the positivist approach to crime, or whether its influence will be limited to the area of burden of proof. Is the Court beginning on a new constitutional jurisprudence of substantive criminal law, or will it continue to avoid any genuine effort to limit the substantive criminal provisions that legislatures can enact?

While the positivistic approach to crime has triumphed, the Supreme Court has traditionally endeavored to narrow the concept of offense in a few discrete instances. As a result of the due process clauses of the Fifth and Fourteenth Amendments, the majority of these prohibitions have consisted of a series of formal constraints on how legislators may construct offenses. Despite the fact that these limits pretend to address only how action is criminalized and not what is criminalized, they frequently place substantial conditions on the definition of the offense. Consider, for instance, the four significant constraints listed below on the concept of a crime.

First, under the law of vagueness, criminal statutes must identify the forbidden conduct with sufficient precision to put potential defendants on notice that they may be subject to criminal prosecution. This approach has been most prominently applied to loitering statutes, many of which are seen to give police officers too much leeway to arrest persons based on their physical appearance or manner. In many instances, more specific phrasing would not eliminate the objection to such statutes. As the Supreme Court made plain in a recent decision involving a Chicago loitering ban, occasionally a statute intrudes too far and with insufficient explanation to be legally permissible (City of Chicago v. Morales). A second, related notion is that of overbreadth, which prohibits a legislator from crafting criminal statutes in such a way that prosecution and conviction for regular, noncriminal behavior is possible. The Court will primarily throw down criminal prohibitions on grounds of overbreadth when the restriction threatens encroaching upon freedom of speech and expression (R.A.V. v. City of St. Paul). A third notion, the doctrine of legality, is likewise expressed under the rubric of “due process.’ Ordinary persons must be afforded a fair opportunity to conform their conduct to the law, which necessitates that criminal statutes provide explicit notice of the possibility of criminal penalty. For instance, punishments cannot be retroactive and must be specific and certain. The Eighth Amendment prohibition on “cruel and unusual punishment” has been construed as incorporating a proportionality criterion that serves to limit the punishment selected for a given violation (Solem v. Helm; see Harmelin v. Michigan). In the past, this theory has served to guarantee that the discipline approved for a particular offense is roughly comparable to the sanction authorized for the same conduct in other jurisdictions and is acceptable in light of the sanction authorized for other offenses in the same jurisdiction.

Nonpositivist Approaches to Crime

The aforementioned constraints on the concept of an offense show that, while the positivistic approach to offense definition may be the prevailing one in our constitutional law, our adherence to it is questionable. We do not accept that any action that a legislature desires to criminalize is properly punished, and the limitations we set on the application of the criminal sanction cannot be fully explained by the first eight amendments to the Constitution. Some actions appear so unfit for criminal prohibition that we feel it is a stretch to apply the concept of crime to them. In severe situations, the point would be obvious: Statutes that made criminal punishment retroactive rather than prospective, that punished for thoughts without corresponding actions, that enacted a separate set of prohibitions for each separate member of the community, that established a separate count of theft for each thirty-second period that a thief withheld the stolen item from its owner, or that adopted an arbitrary class of subjects to whom the prohibition would apply, would be so out of step with the way we conduct ourselves as a society. In what way would these be considered crimes? The act for which a person is imprisoned and subjected to jail or other harsh treatment does not automatically render it unlawful. Even when the legislature has sanctioned the behavior in the form of a law, it does not do so. Although one would seek to limit the use of the criminal sanction in such instances by the types of ancillary constitutional constraints on legislative discretion outlined previously, these restrictions will prove insufficient to capture our current conception of crime. Therefore, it is possible that the concept of crime itself restricts what a government can ban and how it can assure compliance with such prohibitions.

Therefore, our understanding of crime is normative as well as descriptive, at least to some extent. In instance, there may be justifications that are integral to the concept of criminality. If this is true, then one of the things we mean when we refer to a criminal violation is that the statute-authorized restriction on liberty is justified by the necessity of promoting compliance with the criminal prohibition. This approach would imply not only that punishing a person for something he had no reason to know was prohibited is not, strictly speaking, punishment, but also that the behavior thus penalized could not be correctly labeled “criminal,” even if the legislature has labeled it a crime and attached the types of penalties typically associated with so-called criminal behavior. The normative approach to crime would therefore give a method for assessing legislative uses of the authority to criminalize by identifying criteria that are intrinsic to the concept of crime. Such criteria would make it possible to state unequivocally that the legislature erred in outlawing a given type of behavior and imposing severe penalties for its occurrence, on the grounds that the prohibited behavior is not a suitable target of criminal prohibition. And while governments may have considerable discretion in choosing the permissible objects of criminal prohibition, under a normative perspective on crime, their decision-making would be constrained by a number of broadly specified parameters.

Legal Moralism

In contrast to their judicial counterparts, criminal law researchers embrace normative approaches to the concept of an offense. However, there is no nonpositivist concept of crime that would garner their unanimity. The term “legal moralism” refers to a school of criminal philosophy. The legal moralist contends that a crime is an immoral act and that, thus, all immoral acts should be punished. Not only does the legal moralist believe that every crime is in some way an immoral act, or that it leads to generate an immoral act, but also that no immoral conduct should go unpunished. One category of crime, sometimes referred to as mala prohibita, appears to offer a difficulty for legal moralists. Mala prohibita crimes are deeds that are unlawful just because they are prohibited by law. Mala in se offences, on the other hand, prohibit bad conduct in and of themselves. The legal moralist has problems with this distinction since he appears to regard all crimes as mala in se, believing that it is the inherent immorality of an act that justifies criminal prohibition. Legal moralists attempt to answer the dilemma of mala prohibita crimes by asserting that the prohibited acts are instrumentally tied to a mala in se act or state of affairs. While it is not sinful to drive on the left side of the road, it is unethical to put others at great risk of injury. In this approach, the legal moralist justifies the law mandating left-hand driving in the United States and right-hand driving in Britain as a necessary prohibition to prevent the truly immoral act of crashing into oncoming vehicles.

Social Practice View

A second nonpositivistic view of the concept of an offense views crimes as prohibited acts, with the explanation for these prohibitions being that they are prohibited by certain social practices or by those with the authority to make criminalization decisions in light of a social practice allocating the power to do so. For instance, H. L. A. Hart viewed criminal law as a series of “primary rules” designed to regulate behavior. He maintained that the primary rules are only law because they are created by officials whose authority is based on a social practice that determines when a rule becomes law. He claimed that the regulation requiring males to remove their hats in church indicates a social practice. However, not all social behaviors are legally binding. In contrast to customs and regular, quotidian norms, social rules that have the power of law are identified in a unique manner inside the practice as having legal force. Only rules developed by those authorized by “secondary rules” to create, interpret, and apply primary rules will be recognized as authoritative. The social practice view of crime may appear comparable to the positivistic approach since both consider crime as a collection of restrictions imposed by those with the authority to do so. Thus, it may be considered merely a variant of positivism. In contrast to the Supreme Court’s style of positivism on crime, Hart’s account would permit evaluative assessments of a legislature’s criminalization decisions based on their fidelity to an underlying concept of crime. A legislature that enacted draconian criminal prohibitions on the basis of a social practice perspective could be seen to have exceeded its jurisdiction as provided by the pertinent secondary norms.

Economic Account

The economic account of crime is a third significant nonpositivistic option. According to some theories, a criminal conduct is inefficient since it circumvents a free market. Criminal penalties are required to provide sufficient motivation for individuals to attain their desires through the market rather than by force. In this regard, criminal sanctions and civil penalties varied slightly. While the legal economist views civil and criminal liability rules as fulfilling the same objective, that of providing incentives for efficient action, the incentive structures required to promote efficiency for the two types of activities differ. According to the economic account of crime, criminal punishment should be applied to actions that are always inefficient. The criminal code must frighten potential defendants with severe enough punishments to deter them from committing crimes. In contrast, there are instances in which acts that contravene civil law are effective while being illegal. It is therefore occasionally efficient to permit individuals to breach a contract or endanger another person. In order to offer incentives for efficient behavior, unlike criminal sanctions, which must always force conformity, the penalty for civil wrongs need simply be equivalent to the damage caused. By requiring individuals who create harm or seek to breach a contract to “internalize” the cost of the damage they do, they will only inflict harm or breach if it is profitable to do so. Criminal sanctions are identical to civil sanctions, with the distinction that civil punishments must include a “kicker” in addition to the damage inflicted to ensure that it is never beneficial to breach the prohibitive norm. In fact, the narrowing gap between tort law and criminal law during the past decade may be evidence of the influence of law and economics on judicial and legislative procedure.

While the positivist perspective on crime enjoys a rhetorical edge in our system, the actual understanding of crime that our legal system entails appears to be a mixture of descriptive and normative truths. We rely on legislative proclamation to determine the content of the prohibitions we refer to as “crimes,” but we also make normative judgements about criminal statutes based on an implicit understanding of what constitutes a proper application of the concept of crime. Moreover, maybe because the conceptual boundaries of “crime” are pretty well-established in our public usage of the term, states do not strive to eradicate the defense of self-defense or, for the most part, make street corner conversation a crime.

Harm-Based Theory

Bentham is commonly regarded as the founder of legal positivism. But even Bentham acknowledged that the concept of crime must contain normative components. Bentham held the conventional positivist view that laws, and criminal laws in particular, are sovereign mandates. Everything that is ordered has the force of law. Bentham contended, however, that a command does not constitute law if it is not “complete.” For a law to be comprehensive, it must describe a specific damage or evil against which the legal restriction is directed. Thus, even according to Bentham, the concept of crime is founded on a pre-legislative concept, namely the concept of harm. Developing a theory of crime based on the concept of harm is the fourth nonpositivist approach. John Stuart Mill proposed the beginnings of such an account when he stated what has become known as the “harm principle.” In On Liberty, Mill stated, “The only purpose for which power may be legitimately exercised against the will of any member of a civilized community is to prevent harm to others.” (pp. 10–11). More recently, Joel Feinberg has elaborated on Mill’s fundamental strategy. However, he has maintained that injury may not be the only acceptable basis for imposing criminal sanctions. Even if Feinberg is correct that we do not adhere to the harm principle without exception, the harm principle may be central to American criminal law’s conception of a crime.


  1. BENTHAM, JEREMY. Of Laws in General. New York: Oxford University Press, 1970.
  2. COLEMAN, JULES ‘‘Crimes, Kickers and Transaction Structures.’’ Repr. in Markets, Morals and the Law. New York: Cambridge University Press, 1988. Pages 153–166.
  3. FEINBERG, JOEL. The Moral Limits of the Criminal Law. 1–4. New York: Oxford University Press, 1984–1998.
  4. FINKELSTEIN, CLAIRE. ‘‘Positivism and the Notion of an Offense.’’ California Law Review 88: (2000): 335–394.
  5. FLETCHER, GEORGE With Justice For Some: Protecting Victims’ Rights in Criminal Trials. Reading, Mass.: Addison-Wesley Publishing Co., 1996.
  6. GOEBEL, JULIUS, JR. Felony and Misdemeanor: A Study in the History of English Criminal Procedure. University of Pennsylvania Press, 1937. Reprint, 1976.
  7. HART, H. L. A. Punishment and Responsibility. Oxford, U.K.: Clarendon Press, 1967.
  8. HART, HENRY ‘‘The Aims of the Criminal Law.’’ Law and Contemporary Problems 23 (1958): 401.
  9. MILL, JOHN STUART. On Liberty (1859). Reprint. New York: W. W. Norton, 1975.
  10. MOORE, MICHAEL. Placing Blame. New York: Oxford University Press, 1997.
  11. POLLOCK, SIR FREDERICK, AND MAITLAND, FREDERIC WILLIAM. The History of English Law before the Time of Edward I. Lawyer’s Literary Club Edition, 1959.
  12. POSNER, RICHARD. ‘‘An Economic Theory of the Criminal Law.’’ Columbia Law Review 85 (1985): 1193.


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