Criminal Law

What Is a Criminal Offense?

By Janet Portman, Attorney
Criminal defendants can be incarcerated if they lose, but not civil defendants. Why not?

A criminal offense (a crime) is a type of wrongdoing that we distinguish from a civil wrong. Crimes are behaviors that society views as offending not just the specific victim, but also the sensibilities of society as a whole. Another way of explaining a crime is to say that the behavior violates society’s moral standards. By contrast, a civil wrong involves misbehavior towards specific victims, but society doesn’t consider the act to be an affront to the public or widely held moral beliefs.

For example, why is robbery a crime? Robbery is considered a crime not only because the victim has been forcefully deprived of his property, but because society as a whole will not tolerate violent personal thefts. Or, when a clerk embezzles money from her boss, the business is harmed, but so is the public (society depends on honest dealings between owners and employees).

By contrast, a civil wrong does not involve a breach of society’s moral norms and sensibilities, at least not to the same degree. For instance, imagine a shopper who trips on a poorly maintained store floor and breaks his leg. He may be able to file a civil lawsuit against the shop owner for his damages (the monetary consequences to him of sustaining a broken leg). The injured shopper’s claim—that the owner was careless, or negligent, by allowing his floor to deteriorate—is a claimed civil wrong, because although we expect owners to maintain their property, mere carelessness in failing to do so does not constitute a moral failing.

Public Versus Private Prosecutions

Because a criminal incident offends not just the specific victim but society as a whole, we leave it to society to bring the perpetrator to justice. In other words, a public prosecutor, such as a district attorney, charges and prosecutes the alleged offender (only in a couple of states, under narrow circumstances, may a private party initiate a criminal proceeding). The prosecutor’s duty is to bring justice to the victim and society as a whole.

A civil wrong, by contrast, is brought as a civil lawsuit by a private attorney (by the attorney hired by the injured shopper, for example). In some instances, public attorneys will bring civil lawsuits alleging civil wrongs, which happens when the damage done by the defendant greatly affects the public. For example, a city attorney’s office might bring a civil lawsuit against a slumlord who owns many residential rentals. The sheer number of tenants affected by the defendant’s substandard properties justifies a public intervention—but in all but the most egregious cases, the wrongs alleged are civil wrongs.

Punishment Versus Compensation

Criminal and civil wrongs can also be differentiated by the consequences to the defendants who lose such cases. Criminal defendants can lose their liberty and be sent to jail or prison; civil defendants don’t go to jail. Criminal defendants can also be fined, but the fine goes to the government (but see the related issue of restitution, below). A robbery victim can always sue the criminal defendant for the value of items taken or destroyed—but that’s a civil lawsuit.

In a broader sense, criminal defendants are incarcerated (and/or fined) because society is punishing them for having broken societal norms. Civil defendants normally pay the winning plaintiff an amount that the judge or jury thinks will compensate the plaintiff for its losses (punishment is not the goal). Occasionally, judges and juries tack on an extra bit of damages, called “punitive” damages. These are awarded when the fact finder decides that the defendant’s conduct was particularly deliberate or outrageous. When this happens, the civil defendant will certainly feel that he’s being punished.

Restitution: Punishment and Compensation in a Criminal Case

Having read the sections above, you might be tempted to conclude that victims in a criminal case won’t receive any money—after all, fines go to the government. If the victim of a robbery, for example, wishes to be “made whole” (paid for the value of the items that were taken and disposed of), she’ll have to file a civil case, alleging unauthorized “conversion” (taking) of her personal property.

There is, however, a short-cut method that judges sometimes use to help a crime victim be made whole, without having to take the onerous step of filing a civil lawsuit. If the judge grants the defendant probation (the chance to escape incarceration, or prolonged incarceration), the judge will attach conditions—violate them, and off to jail the defendant goes. Common examples of probation conditions include attending counseling or AA sessions, refraining from socializing with particular groups or individuals, maintaining employment or school status, and so on. Another condition can be paying the victim restitution for the damages the victim suffered. In the robbery example, the judge might order the defendant to pay the probation office (which will give the money to the victim) a certain amount each month, until the victim’s damages are covered. If the defendant doesn’t like this condition, he can always refuse probation (and face jail).

Questions for Your Attorney

  • I’m being sued by my ex-business partner for how I handled funds. Is there a reasonable chance that the prosecuting attorney in our county will also charge me with a crime?
  • How common is it for this judge to impose probation and require restitution? Do I have any say in the amount or the timing of payments?
  • When I called the cops to oust a long-time guest who wouldn’t leave my apartment, the policeman refused to act and said, “It’s a civil matter.” I thought trespassing was a criminal offense! What did this mean?
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