Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P30 pptx

A sample plain- language credit cardholder agreement (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. 18. Other Charges. The Total Other Charges is the sum of: a. Membership Fee. We charge a membership fee of $0 per year, which will be billed to your account during the same “renewal month” each year. If we assign your account a renewal month other than the month of your first billing statement, we may assess a partial Membership Fee prorated for the period until the first renewal month. All Membership Fees are payable when posted to your account and are non-refundable except as otherwise provided for by law. This annual fee shall be treated as a credit purchase for purposes of calculating Finance Charges unless prohibited by law. b. Late Charge. If we do not receive at least your minimum required payment within 10 days after the closing date subsequent to the payment due date indicated on your billing statement, we will impose a late or delinquency charge of $25.00. c. Overlimit Charge. Each time your New Balance exceeds your maximum authorized credit we will impose an Overlimit Charge of $25.00. d. Replacement Card. We reserve the right to charge you $15.00 to replace a card. e. Non-Sufficient Funds. We reserve the right to charge $25.00 for non-sufficient funds. 19. If You Change Your Name or Address. You agree to notify us in writing within twenty days if you change your name, your home or mailing address, or home or business telephone number. 20. Our Right to Cancel Your Account. We can cancel your account at any time, or reduce the amount of your credit line, without notice to you, except in those situations where notice is required by law. If we cancel your account, you agree to destroy all Cards issued on your account by cutting them in half and returning them to us. You will continue to be responsible for full payment of the balance on your account and all charges to your account, including those not yet received by us, as well as subsequent Finance Charge and other charges. Each Card is our property, and you agree that the Cards are not transferable and to surrender any Card upon demand. 21. Change in Terms of Your Account. We can change any terms of your account at any time. We will provide you with such notice as is required by law by mailing a notice to you at the latest address shown in our records. Subject to applicable law, any change will apply to the current balance of your account, as well as to future balances. 22. If Your Card is Lost or Stolen or if an Unauthorized Use May Occur. You agree to notify us immediately if your card is ever lost or stolen or if an unauthorized use may have occurred. The telephone number to call is (800) 325-3678, and you agree to follow up your call with notice in writing to us at: Credit Card Security Department, P.O. Box 30035, Tampa, Florida 33630. You also agree to assist us in determining the facts, circumstances and other pertinent information relating to any loss, theft or possible unauthorized use of your credit card and comply with such procedures as we may require in connection with our investigation, including assisting in the prosecution of any unauthorized user. 23. Liability for Unauthorized Use of Credit Card. We may hold you liable for the unauthorized use of your credit card. You will not be liable for unauthorized use that occurs after you notify us orally or in writing of the loss, theft, or possible unauthorized use. In any case, your liability will not exceed $50.00. 24. Credit Information. You agree that we may release information to others, such as credit bureaus, regarding the status and history of your account. However, we are not obligated to release any such information to anyone unless we are required by law to do so. 25. Waivers. If, for any reason, we do not make use of any of our rights under this Agreement on a particular occasion, that will not limit our rights in the future in any way. 26. Our Address. To send payment: Payments must be sent to the address listed on the front of the billing statement after the phrase “make check payable to.” To inquire or send correspondence: Write us at the address indicated on the front of the billing statement after the phrase “send inquiries to.” 27. Important Notice to Our Customer Who Contacts Us by Phone. Cardholder agrees that Issuer, its agents and service companies may, without the need to seek additional confirmation from Cardholder, monitor and/or record any telephone communications with Cardholder to insure that inquiries from you are handled promptly, courteously, and accurately. 28. Visa Rules and Regulations. The services being provided to you under this Agreement are made possible by Issuer’s status as a licensee of Visa U.S.A. You recognize Issuer’s responsibility to comply with the current Visa U.S.A. rules and regulations and changes to them in order to continue to provide these services. Visa cards may not be used for any illegal transaction. 29. Regulation Z Initial Disclosures. By using your card, you acknowledge receipt from us of the Initial Disclosures required by Regulation Z of the Truth-In-Lending Act and that the terms contained in the Initial Disclosures apply to you and your use of the card and are incorporated in full into this Agreement. The information about the terms and costs of the Card described in this Customer Agreement is accurate as of the Effective Date. This information may have changed after that date. To find out what may have changed, call us or write to us. Write to: Erie Shores Credit Union, Inc. P.O. Box 9037 1688 Woodlands Drive Maumee, OH 43537 Call at: (800) 248-8110 or (419) 897-8110 Plain-language Cardholder Agreement GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 278 CREDIT account due once a month. An individual might also be extended a credit line, the maximum amount of money that a lender will put at a borrower’s disposal. In such case, an individual enters into an agreement for the taking out of a series of loans. Because there is a fixed limitation on the amount to be borrowed, payments must be made to reduce the debt incurred when the maximum is reached. A LETTER OF CREDIT, sometimes called a creditor’s bill, is a written instrument from a bank or merchant in one location requesting that anyone, or some specifically named indi- vidual, advance money or items on credit to the individual holding, or nam ed in, the letter. Repayment of the debt is guaranteed by the bank or merchant issuing the letter. Letters of credit are popular in international commercial transactions because they enable parties to transact business without the need to exchange large amounts of cash. This type of instrument was also popular prior to the common usage of credit cards and travelers’ checks. Personal credit is granted based upon an individual’s character, reputation, and business standing regarding his or her financial reliability. Development of the Law of Credit Traditionally, the law has sought to protect borrowers since they are easily exploitable by lenders. Often the two parties do not have equal bargaining opportunities to negotiate all the terms of the agreement, and, therefore, the stronger is able to take advantage of the more vulnerable. The established legal viewpoint is that a lender can properly charge a fee for use of the funds he or she lends, but the rate of interest should be neither unfair nor unconscionable. Usury traditionally meant charging interest or a fee in exchange for a loan, but it has come to mean charging an illegal rate of interest. Certain credit transactions, such as the loan of money pursuant to a mortgage, are exempt from the provisions of usury statutes. Amortization Amortization—a system that allows a borrower to discharge a debt in regular, equal installments—was developed in the nine- teenth century by savings and loan associations. To amortize a loan, the lender must calculate the total interest due over the term of repay- ment, add that figure to the total sum borrowed, and divide the total by the number of payments to determine the size of regular, periodically scheduled payments to be made by a debtor. Morris Plans The establishment of Morris plan companies, still found in some states, was a significant development in the consumer credit business. These industrial banks accept deposits from the general public and issue investment certificates in the amount of each deposit. The certificates entitle the holder to obtain interest on a deposit at regularly scheduled intervals. The bank utilizes the funds primarily to make small loans to wage earners who are steadily employed. It is necessary for borrowers to secure two other salaried individuals to endorse the agreement. The loan is repaid in installments during the course of a one-year period. State Consumer Laws Originally the fact that consumer loans were difficult to obtain created loan sharking—the practice of lending money at usurious interest rates—coupled with the threat or use of extortionate methods of enforcing repayment. The Russell Sage Foundation ana- lyzed the LOAN SHARK problem in 1916 and suggested that credit should be made available to consumers. It proposed a Uniform Small Loan Law for enactment by the states that defined small loans as those under $300. A maximum interest rate of three and one-half percent monthly on small loan s was suggested. The interest rate was stated as a per-month charge in order to encourage legislators to adopt the act and to prevent consumers from going to loan sharks who make a practice of concealing their true rates of interest. The Uniform Small Loan Law was subse- quently revised but was important because it made way for legal lend ing to consumers. It was created as an exception to state usury laws and furnished the pattern for the subsequent crea- tion of consumer credit legislation. Legal Rate of Interest Interest can be computed in a number of ways, and creditors generally attempt to use the most profitable way that is within legal limits. In figuring the legal rate of interest, it is essential to determine which expenses are a part of the finance or interest charges. Not customarily considered components of finance charges are fees for filing or recording a document, for payment of an individual who does an appraisal, and for the expense of preparing documents; closing costs; and prepayment penalties. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CREDIT 279 CREDIT BUREAU A privately owned, profit-making establishment that—as a regular business—collects and compiles data regarding the solvency, character, responsi- bility, and reputation of a particular individual or business in order to furnish such information to subscribers, in the form of a report allowing them to evaluate the financial stability of the subject of the report. Credit bureaus ordinarily prepare and issue reports for lending institutions and stores that investigate the financial reliability of an appli- cant for credit prior to the execution of the credit agreement. Credit bureaus are regulated by the federal FAIR CREDIT REPORTING ACT (15 U.S.C.A. § 1681 et seq. [1970]) and by state statute to safeguard against abusive and damaging practices. CRÉDIT MOBILIER SCANDAL The Reconstruction era after the CIVIL WAR was a time of chaos, reorganization, and corruption that affected not only lesser state officials but also federal government agents. The Crédit Mobilier affair, which had its early beginnings in 1864 but was not publicly investigated until 1873, is an example of the corrupt practices that characterized the period. In 1864, Thomas C. Durant, an administrator of the Union Pacific Railroad, bought the Pennsylvania Fiscal Agency, which was chartered in 1859. The agency was renamed Crédit Mobilier of America and its proposed purpose as a construction company was the building of the Union Pacific Railroad. The federal government had granted the railroad generous loans and contracts for its construction, and the adminis- trators of the railroad planned to divert this money into the Crédit Mobilier Company, allowing the stockholders of the company to enjoy huge profits. Government officials first became involved in 1865 when Oakes Ames, congressional representative from Massachusetts, and his brother Oliver bought shares of stock in the Crédit Mobilier and, indirectly, in the Union Pacific Railroad. The Ames brothers soon became the power behind the Union Pacific, and, in 1866, Durant was replaced by Oliver Ames. The building of the railroad was fraudulently financed for approximately $50 million more than was necessary. In addition, Oakes Ames sold a large number of shares of stock in Crédit Mobilier at a reduced rate to several of his fellow congressmen. This move on the part of Ames was to allay any suspicious interest in the undertakings of the two companies and to Cartoonist Joseph Keppler offered a satirical portrayal of the Crédit Mobilier Scandal by depicting politicians involved in the affair as residents in a hospital ward. In actuality, punishment was lenient: Representatives James Brooks and Oakes Ames were merely censured. CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 280 CREDIT BUREAU encourage legislation beneficial to the railroad. This maneuver occurred in 1867, and for the next five years rumors surrounding the activities of Ames and other government officials circulated. The scandal erupted in 1872 when the details of the Crédit Mobilier Company became an issue of the presidential campaign of that year. Several important officials were involved includ- ing vice presidential candidate Henry Wilson, incumbent VICE PRESIDENT Schyler Colfax, future president and member of the House of Repre- sentatives JAMES A. GARFIELD, and Speaker of the House James G. Blaine. An investigation began in 1873. The punishments for such behavior were surprisingly lenient, however, and the Crédit Mobilier Company and Congressman Ames were merely publicly censured. CREDIT UNION A corporation formed under special statutory provisions to further thrift among its members while providing credit for them at more favorable rates of interest than those offered by other lending institutions. A credit union is a cooperative association that utilizes funds deposited by a small group of people who are its sole borrowers and beneficiaries. It is ordinarily subject to regulation by state banking boards or commis- sions. When formed pursuant to the Federal Credit Union Act (12 U.S.C.A. § 1751 et seq. [1934]), credit unions are chartered and regulated by the National Credit Union Administration. A credit union can be distinguished from other financial institutions by the fact that membership is ordinarily restricted to indivi- duals who meet certain residential or occupa- tional criteria. In addition, it can make loans of a more diversified nature than certain institu- tions, such as building and loan associations. CREDITOR An individual to whom an obligation is owed because he or she has given something of value in exchange. One who may legally demand and receive money, either through the fulfillment of a contract or due to injury sustained as a result of another’s negligence or intentionally wrongful act. The term creditor is also used to describe an individual who is engaged in the business of lending money or selling items for which immedi- ate payment is not demanded but an obligation of repayment exists as of a future date. An attachment creditor is an individual who has obtained an order of attachment from a court to command a sheriff to seize the property of a debtor who has defaulted in the repayment of an outstanding obligation so that the property may be used to satisfy the creditor’s claim. A judgment creditor is a party who has gone to court and obtained a judgment against the person who owes him or her money. If that judgment creditor obtains an order of attach- ment, he or she becomes an attachment creditor. A GENERAL CREDITOR or creditor at large is an individual who has neither a lien nor a security interest in the property of the debtor. A junior creditor is one whose right to collect money from a debtor is subordinate to that of another individual who also has a right to collect payment of a different debt from the same debtor. The person with the primary right to payment is known as a senior creditor. A principal creditor is the party who has a claim against the debtor that is far greater than the debt owed to any other creditor, and in some instances, to all other creditors combined. A SECURED CREDITOR holds a special LEGAL RIGHT in particular property of the debtor to assure him or her of repayment of the debt. A creditor who has the protection of a lien or mortgage is secured. A single creditor has a lien on only one of the debtor’s funds or accounts. Petitioning creditors are those parties to whom one debtor owes money and who apply to the court of BANKRUPTCY in order to secure the debtor’s property and distribute it equitably among them. CREDITOR’S BILL An equitable proceeding initiated by a person who has obtained—and is entitled to enforce—a money judgment against a debtor to collect the payment of a debt that cannot be reached through normal legal procedures. A PLAINTIFF might, for example, win a lawsuit against a DEFENDANT whereupon the defendant might be ordered to pay damages. In the event that the defendant does not pay promptly, the usual way for the plaintiff to obtain payment is to pay a certain designated fee to the sheriff who GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CREDITOR’ S BILL 281 would seize the defendant’s property, sell it, and pay the plaintiff with the proceeds. If, for example, the defendant only has property that is worth less than the plaintiff’s judgment, the plaintiff creditor might pursue the defendant’s rights to collect money from others. The person can then initiate a creditor’s bill, also known as creditor’s suit, requesting that the court autho- rize a way to obtain the money affected by such rights. Such funds as those that come from corporate stock, annuity checks, growing crops, and money owed to the debtor from another person can all be subjected to creditors’ suits. A creditor’s bill cannot, however, be used to obtain a liquor license, property in another state, or future unearned wages or salary. CRIME CONTROL ACTS The vast majority of substantive criminal statutes may be characterized, in one way or another, as “crime control acts.” The term “crime control act ” is often used in the titles of comprehensive bills that can be hundreds of pages long. These acts can identify a broad array of new crimes, revise existing criminal laws, enhance sentencing and other penalties attached to those crimes, and finance the provisions of these bills. Congress enacted a series of crime control statutes, especially during the late twentieth century, that has introduced a myriad of new forms of CRIMINAL LAW at the federal level, including provisions prohibiting MONEY LAUN- DERING , CARJACKING, drug enforcement, CRIMINAL FORFEITURE , and offenses under the Racketeer Influenced and Corrupt Organizations Act. According to the Task Force on Federaliza- tion of Criminal Law of the AMERICAN BAR ASSOCIATION , only an “initial handful ” of federal statutes existed at the turn of the nineteenth century, as federal criminal law consisted of a total of 17 statutes. Throughout the nineteenth century, federal criminal statutes were fairly narrow, generally protecting only federal inter- ests and interests where the states held limited power to address a particular form of crime. The number of federal crimes, however, grew considerably toward the latter part of the nineteenth century and into the early twentieth century. By the 1930s Congress sought to address concerns that crime had become rampant across the United States, and that states had difficulty handling the increase of crime effectively. Many of the fede ral criminal statutes in the 1930s addressed specific forms of criminal activity, such as KIDNAPPING, RACKETEERING, SECURITIES FRAUD, and the illegal use and sale of firearms. In 1934 C ongress enacted a series of statutes known as the Crime Control Acts, chs. 299-304, 48 Stat. 780-83 (codified as amended in scattered sections of 18 U.S.C.A.). These acts included provisions for punishment for killing and assaulting federal officers, EXTORTION, transportation of kidnapped per- sons, and interstate flight, as well as provisions defining crimes in connection with the admin- istration of federal prisons and crimes commit- ted against banks operating under the laws of the United States. Although the number of federal crime s continued to grow throughout the twentieth century, the perception persisted that crime was rampant throughout the United States, particu- larly during the turbulent times of the 1960s. Faced with the high incidence of crime throughout the country, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified as amended in scattered sections of 18 U.S.C.A.). When enacting this legislation, Congress ac- knowledged that crime is fundamentally a state and local problem, and that it requires the efforts of state and local law enforcement in order to control crime effectively. The 1968 statute encouraged states and units of local government to prepare and adopt comprehensive plans to address crime in those particular states or localities. Under the statute, Congress also authori zed grants to the states and local entities to strengthen a nd improve law en- forcement, and encouraged research and development that would be aimed at the imp rovement of law enfor cement methods, the reduction of crime, and th e detection and apprehension of criminals. Included within the original Omnibus Crime Control and Safe Streets Act were a number of controversial provisions regarding wire intercepting and interception of oral communications, as well as measures to allow states and local agencies to control firearms at the local level. The provisions contained in this act have been amended and revised dozens of times since the initial 1968 enactment. The federalization of criminal law continued during the 1970s. The Crime Control Act of 1973, 93-83, 87 Stat. 197 (codified as amended GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 282 CRIME CONTROL ACTS in scattered sections of 18 U.S.C.A.) serviced the same general purpose as the Omnibus Crime Control and Safe Streets Act. Its primary purpose was to provide grants and other funding to law enforcement agencies in their fights against crime at the state and local levels. Three years later, Congress approved the Crime Control Act of 1976, Pub. L. No. 94-503, 90 Stat. 2407 (codified as amended in scattered sections of 18 U.S.C.A.). The 1976 act estab- lished the Office of Community Crime Pro- grams and other measures that were designed to enhance the ability of local law enforcement agencies. Although federal criminal law had under- gone a metamorphosis in the 1960s and 1970s, the federal criminal code had not undergone a comprehensive revision since the early 1900s. In 1984 Congress wrangled with a major bill that would provide this comprehensive revision, eventually enacting the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976. Although controversial sections of the original bill related to CAPITAL PUNISHMENT,an exception to the EXCLUSIONARY RULE in CRIMINAL PROCEDURE , restrictions on HABEAS CORPUS pro- ceedings in federal courts, and liability of the government for CIVIL RIGHTS violations were removed before the bill was passed, the final draft of the legislation was not satisfactory to several members of Congress. Within days of the passage of the Comprehensive Crime Control Act, Congress enacted the Criminal Fine Enforcement Act, Pub. L. No. 98-596, 98 Stat. 3134, which repealed some of the provi- sions of the Comprehensive Crime Control Act soon after they became effective. Nevertheless, the provisions that remained intact were significant in federal criminal law. Among the new provisions in the Compre- hensive Crime Control Act were those addres- sing violent offenses, federal anti-terrorism provisions, certain economic offenses, con- trolled substances, and a number of other miscellaneous crimes. One of the more impor- tant measures in the act included a new system governing sentencing for federal crimes. Chap- ter 2 of the act, the Sentencing Reform Act of 1984, established the United States Sentencing Commission, which is responsible for drafting and revising the Federal Sentencing Guidelines. The first of these sentencing guidelines went into effect in 1987, although they have been amended significantly since then. The Federal Sentencing Guidelines not only have changed the sentencing procedures in federal courts, but also have affected the ways in which state courts approach sentencing. Comprehensive crime control legislation continued into the 1990s. The Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789 further revised provisions of previous crime control statutes. Four years later, Congress addressed problems associated with violent crimes with the enactment of the VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994, Pub. L. No. 103-322, 108 Stat. 1796. That statute increased and enhanced punishment for violent offenders, including punishment of young offenders. The statute included numerous provisions regarding crime prevention. Some of the more controversial provisions of this act were contained in title IV of the statut e, known as the Violence Against Women Act. Although the statute has increased funds for research and education to enhance knowledge and awareness for judges and judicial staff in matters involving DOMESTIC VIOLENCE and sexual ASSAULT,the original statute also contained a measure that would make gender-motivated crimes a viola- tion of federal civil rights law. The U.S. Supreme Court, in United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000), struck down the latter provision as unconstitutional. Other crime control acts have addressed specific areas of concern with respect to crime. The ORGANIZED CRIME Control Ac t of 1970, Pub. L. No. 91-452, 84 Stat. 922, for instance, addressed specific problems relating to orga- nized crime, including the establishment of protected facilities to house government wit- nesses. The ongoing war against drugs has similarly led to the enactment of comprehensive legislation, including the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 and the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181. Scholars have criticized the continued growth of the federalization of criminal law, as Congress continues to enact these comprehen- sive crime control bills. Fe deral criminal law consists of more than 3,000 individual criminal offenses, many times more than the number that existed a century ago. Supporters of these bills note, however, that state and local officials have not shown the ability to address many of the criminal problems that are addressed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIME CONTROL ACTS 283 under the new federal laws, and that federal law enforcement is in a b etter position to conduct the type of investigation that is necessary to curb incidents of crime through- out the country. FURTHER READINGS Abrams, Norman, and Sara Sun Beale. 2008. Federal Criminal Law and Its Enforcement. 4th ed. Eagan, Minn.: West. George, B. James, Jr. 1985. The Practical Guide to the Comprehensive Crime Control Act of 1984. Frederick, Md.: Aspen. Partridge, Anthony. 1985. The Crime Control and Fine Enforcement Acts of 1984: A Synopsis. Washington, D.C.: Federal Judicial Center. Strazzella, James A., ed. 1996. The Federal Role in Criminal Law. Thousand Oaks, Calif.: Sage. CROSS REFERENCES Criminal Law; Criminal Procedure; Sentencing. CRIMES Acts or omissions that are in violation of law. Each state in the United States, as well as the federal government, maintains a body of criminal laws. As populations have increased and personal interactions and business transac- tions have grown more complicated, criminal laws have likewise grown in number and complexity. Most jurisdictions codify criminal statutes in a separate section in their laws. However, some crimes are placed in chapters or titles outside the designated criminal code. Generally, criminal laws are divided into several broad categories: offenses affecting public order, health, and morals; offenses involving trade, business, and professions; and offenses against the family. These categories often overlap. Juveniles and minors generally receive special treatment under criminal statutes. Offenses Affecting Public Order, Health, and Morals A number of acts are made criminal to preserve public order, health, and morals. Some of these laws are based in the COMMON LAW but have undergone significant changes over the years. PROSTITUTION, if discreet and practiced indoors, was generally tolerated in colonial America, but streetwalkers were charged under lewdness, VAGRANCY, or similar laws. In the late nineteenth century, states began to identify and prohibit all prostitution, in criminal statutes, where it was defined as engaging in sex for hire. Prostitution is now illegal in all states except Nevada, where it is strictly regulated. Pandering, or inducing another into prosti- tution, is illegal in all states, including Nevada. The solicitation of prostitution is illegal in all states except Nevada, where it is allowed only in licensed brothels. Public obscenity laws find their roots in the religious prohibitions of blasphemy and heresy, or defiance of the church. Laws prohibiting blasphemy and heresy were passed in colonial America, but after the passage of the FIRST AMENDMENT in 1791, states began to focus obscenity statutes on material with a sexual content. In 1996, the U.S. Congress passed the Telecommunications Act of 1996, Pub. L. 104- 104, Feb. 8, 1996, 110 Stat. 56, which included criminal punishment for the trans mission of obscenity throu gh cyberspace. The definition of obscenity is generally a matter of contemporary community standards. In New York, for example, any material or performance is obscene if “the average person, applying contemporary commun ity standards,” would find that the predominant effect of the work as a whole appeals “to the prurient interest in sex” (N.Y. Penal Law § 235.00 [McKinney 1995] ). To be defined as obscene, the material or performance must also depict or describe “in an offensive manner, actual or simulated: sexual intercourse, sexual BESTIALITY, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals.” Finally, the material or performance must lack “serious literary, artistic, political and scientific value” before its creator can be punished for obscenity. Obscenity laws include the prohibition of public profanity. The federal government, for example, outlaws visible written profanity in the mails and profanity on radio and television. The FEDERAL COMMUNICATIONS COMMISSION makes some exceptions for certain words during nighttime hours. Profanity, like obscenity, is a fluid concept, and its treatment is frequently the subject of legislation. Gambling is illegal in some states. Other states allow only certain forms of gambling. Even where gambling is legal, it is strictly regulated, and the regulations are enforced by criminal statutes. For example, persons who maintain an unlicensed gambling operation in New Jersey may be charged with a crime of the fourth degree. Fourth-degree crimes in New GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 284 CRIMES Jersey normally carry a penalty of a $7,500 fine or eighteen months’ imprisonment, or both; when the crime is unlicensed gambling, fines may reach $25,000 for individuals and $100,000 for organizations. The U.S. Congress and state legislatures prohibit the manufacture, possession, and sale of certain mood-altering substances, such as marijuana, cocaine, heroin, and halluc inogens. Many manufactured drugs yielding psychotro- pic effects are legal, but only under the administration of a physician. All states maintain laws that prohibit the driving of motorized vehicles while under the influence of alcohol or other mood-altering substances. These driving-under-the-influence (DUI) and driving-while-intoxicated ( DWI)sta- tutes outlaw or prohibit the drunken driving of boats and snowmobiles in addition to passenger vehicles and motorcycles. The range of vehicles subject to these laws is ever expanding: In 1996 a Texas man was charged with riding a bicycle while intoxicated. Intoxication is defined by statute at a specified blood-alcohol ratio. Some criminal statutes are mainly designed to preserve public order. For example, many states criminalize loitering or prowling. In New Hampshire, no person is allowed to appear “at a place, or at a time, under circumstances that warrant alarm for the safety of persons or property in the vicinity” (N.H. Rev. Stat. Ann. § 644:6). When challenged, however, many loi- tering statutes are held by courts to be unconstitutionally vague. BREACH OF THE PEACE is a generic description for a range of DISORDERLY CONDUCT. Generally, breach-of-the-peace crimes consist of acts that disturb public tranquility and order. STALKING, or menacing, is the related crime of continually following or forcing unwanted contact on another. The federal Racketeer Influenced and Cor- rupt Organizations Act (RICO) (18 U.S.C.A. §§ 1961 et seq.) is designed to investigate, control, and prosecute ORGANIZED CRIME. Many states have enacted their own RACKETEERING la ws to mirror RICO. Essentially, RICO punishes a pattern of racketeering activity that is accom- plished through an organized enterprise. Pro- secutors have broadened the use of RICO to support an additional criminal charge for even the most loosely organized crimes. For example, a person who conspires with another to commit FRAUD may be charged with fraud and violation of RICO, if the conspiracy was the product of an organized enterprise. Youth gangs are among the organizations subject to RICO laws. State and federal statutes criminalize the unlicensed possession of firearms. Firearm statutes prevent convicted felons from owning a gun. State and federal laws also place an outright ban on some models of automatic firearms. Other criminal laws respecting public order, health, and morals are many and varied. State and federal election laws have burgeoned since the nineteenth century to prohibit a wide range of acts in connection with the public vote, such as campaigning on election day, coercing voters, and engaging in frau d. IMMIGRATION laws provide criminal penalties for immigrating illegally and for hiring illegal immigrants. All states maintain statutes to punish littering and the unauthorized dumping or storage of toxic waste. In Mississippi, dueling is outlawed (Miss. Code Ann. § 97-39-1), as is cruelty to animals (§ 97-41-1). In New Hampshire, desecration of the U.S. flag is punishable as a misdemeanor (N.H. Rev. Stat. Ann. § 646-A:4). Offenses Involving Trade, Business, and Professions Fraud, THEFT, and misrepresentation are exten- sively covered in state and federal statutes concerning virtually every occupation. These laws prohibit a wide variety of acts ranging from simulating gemstones and rigging weight scales to impersonating a doctor or a police officer, breaching confidentiality, and engaging in INSIDER TRADING (the buying or selling of publicly held corporate shares by persons with inside or advance information regarding the corpora- tion). The fraudulent use of credit cards is also the subject of criminal statu tes. And CABLE TELEVISION and computers have inspired a number of criminal statutes punishing their abuse; state statutes, for example, punish the theft of cable television services. Offenses against the Family State legislatures enact numerous statutes to protect people against members of their own family. CHILD ABUSE laws make criminal the physical or mental abuse of a child. Spousal abuse is also punished under state statutes. The failure of a parent to pay court-ordered CHILD SUPPORT is made criminal in state statutes. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMES 285 States work together in apprehending so-called deadbeat parents through a uniform statute called the Uniform Interstate Family Support Act (U.L.A. Unif. Interstate Family Support Act [1995]). A divorced parent who flees with a child may be criminally charged under state and federal KIDNAPPING statutes as well as CHILD CUSTODY statutes. Juveniles and Minors Persons under the age of 18, known as juveniles, are presumed incapable of fo rming the criminal intent to commit criminal acts. They are, then, generally immune from prosecution for their crimes. They can still be held responsible in juvenile court for committing “delinquent acts,” which , if they were committed as an adult, would be considered crimes. However, a juvenile may be tried for a crime if the prosecution is able to convince the court to certify the juvenile as an adult. A prosecutor generally reserves certification of a juvenile for serious crimes, such as MURDER or RAPE. In the 1990s, some state legislatures passed statutes allowing prosecutors to certify for criminal trial juveniles as young as age 14. Minors also warrant special protection from society. Criminal statutes punish adults for CONTRIBUTING TO THE DELINQUENCY OF A MINOR. This crime can be any act that tends to make a child delinquent. For example, giving a minor illegal drugs or pornography is criminal under these statutes. State statutes also criminalize the sale of other adult materials, such as tobacco and alcohol, to minors. FURTHER READINGS Aquinas, Thomas, Richard J. Regan, and William P. Baumgarth. 2003. On Law, Morality and Politics. Indianapolis: Hackett. Douglas, John E., and Mark Olshaker. 2006. Mindhunters: Inside the FBI’s Elite Serial Crime Unit. New York: Arrow. Richardson, Jeb J. 1998. The Ten Worst Frauds against America’s Seniors. Fairfax, Va.: Seniors Coalition. CROSS REFERENCES Computer Crime; Domestic Violence; Drugs and Narcotics; Gaming; Juvenile Law. CRIMINAL Pertaining to, or involving, crimes or the administration of penal justice. An individual who has been found guilty of the commission of conduct that causes social harm and that is punishable by law; a person who has committed a crime. CRIMINAL ACTION The procedure by which a person accused of committing a crime is charged, brought to trial, and judged. The main part of a criminal action is the trial in which the innocence or guilt of the accused is determined. If the DEFENDANT is not found guilty, he or she will be acquitted of the charges. If the defendant is found to be guilty, a suitable punishment, such as a fine, imprison- ment, or even a death sentence, will be imposed depending upon the punishment provided in the statute under which he or she was prosecuted. CRIMINAL CONVERSATION A tort under common law that involves the seduction of another person’s spouse. A few states still permit a lawsuit for damages by the injured spouse against the wrongdoer. Many states have abolished this action. Criminal conversation is not the sam e as ALIENATION OF AFFECTION, which does not neces- sarily involve the commission of ADULTERY. CRIMINAL FORFEITURE The loss of a criminal defendant’s rights to property which is confiscated by the govern ment when the property was used in the commission of a crime. The seizure by law enforcement officers of an automobile used in the transportation of illegal narcotics is a criminal forfeiture. Property that is subject to criminal forfei- ture is taken from its owner without any compensation being made because of its use in illegal conduct. The taking of such property by the government is an exception to the principles of condemnation provided that the item is seized and retained as a result of the valid exer cise of the POLICE POWER of the state or pursuant to constitutional federal statutes. CRIMINAL LAW Criminal law includes a body of rules and statutes that define conduct prohibited by the government because it threatens and harms public safety and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 286 CRIMINAL welfare and that establishes punishment to be imposed for the commission of such acts. The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and may establish punish- ments. In contrast, CRIMINAL PROCEDURE describes the process through which the criminal laws are enforced. For example, the law prohibiting MURDER is a substantive criminal law. The manner in which government enforces this substantive law—throu gh the gathering of evidence and prosecution—is generally consid- ered a procedural matter. Crimes are usually categorized as felonies or misdemeanors based on their nature and the maximum punishment that can be imposed. A felony involves serious misconduct that is punishable by death or by imprisonment for more than one year. Most state criminal laws subdivide felonies into different classes w ith varying degrees of punishment. Crimes that do not amount to felonies are misdemeanors or violations. A misdemeanor is misconduct for which the law prescribes punishment of no more than one year in prison. Lesser offenses, such as traffic and parking infraction s, are often called violations and are considered a part of criminal law. The power to make certain conduct illegal is granted to Congress by virtue of the NECESSARY AND PROPER CLAUSE of the Constitution (art. I, § 8, cl. 18). Congress has the power to define and punish crimes whenever it is necessary and proper to do so, in order to accomplish and safeguard the goals of government and of society in general. Congress has wide discretion in classifying crimes as felonies or misdemea- nors, and it may revise the classification of crimes. State legislatures have the exclusive and inherent power to pass a law prohibiting and punishing any act, provided that the law does not contravene the provisions of the U.S. or state constitut ion. When classifying conduct as criminal, state legislatures must ensure that the classification bears some reasonable relation to the welfare and safety of society. Munici palities may make designated behavior illegal insofar as the power to do so has been delegated to them by the state legislature. Laws passed by Congress or a state must define crimes with certainty. A citizen and the courts must have a clear understanding of a criminal law’s requirements and prohibitions. The elements of a criminal law must be stated explicitly, and the statute must embody some reasonably discoverable standards of guilt. If the language of a statute does not plainly show what the legislature intended to prohibit and punish, the statute may be declared void for vagueness. In deciding whether a statute is sufficiently certain and plain, the court must evaluate it from the standpoint of a person of ordinary intelligence who might be subject to its terms. A statute that fails to give such a person fair notice that the particular conduct is forbidden is indefinite and therefore void. Courts will not hold a person criminally responsible for con- duct that could not reasonably be understood to be illegal. However, mere difficulty in under- standing the meaning of the words used, or the ambiguity of certain language, will not nullify a statute for vagueness. A criminal statute does not lapse by failure of authorities to prosecute violations of it. If a statute is expressly repealed by the legislature, but some of its provisions are at the same time re-enacted, the re-enacted provisions continue in force without interruption. If a penal statute is repealed without a SAVING CLAUSE, which would provide that the statute continues in effect for crimes that were committed prior to its repeal, violations committed prior to its repeal cannot be prosecuted or punished after its repeal. The same principles govern pen ding crimi- nal proceedings. The punishment that is provided under a repealed statute without a saving clause cannot be enforced nor can the proceeding be prosecuted further, even if the accused pleads guilty. A court cannot inflict punishment under a statute that no longer exists. If a relevant statute is repealed while an appeal of a conviction is pending, the convic- tion must be SET ASIDE if there is no saving clause. However, once a final j udgment of conviction is handed down on appeal, a subsequent repeal of the statute upon which the conviction is based does not require reversal of the judgment. Generally, two elements are required in order to find a person guilty of a crime: an overt criminal act and criminal intent. The require- ment of an OVERT ACT is fulfilled when the DEFENDANT purposely, knowingly, or recklessly does something prohibited by law. An act is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIMINAL LAW 287 . to address many of the criminal problems that are addressed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CRIME CONTROL ACTS 2 83 under the new federal laws, and that federal law enforcement. Inc. P.O. Box 9 037 1688 Woodlands Drive Maumee, OH 435 37 Call at: (800) 248-8110 or (419) 897-8110 Plain-language Cardholder Agreement GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 278. dozens of times since the initial 1968 enactment. The federalization of criminal law continued during the 1970s. The Crime Control Act of 19 73, 93- 83, 87 Stat. 197 (codified as amended GALE ENCYCLOPEDIA