Journal o f Police and Criminal PsychologLv, Volume 1 1, Number 2

M O R A L I T Y IN C R I M I N A L L A W AND C R I M I N A L
P R O C E D U R E : PRINCIPLES, D O C T R I N E S , AND
C O U R T CASES
Dr. Wojeiech Cebulak
Kent State University

One of the drawbacks o f the current era c?/-predominance of Positive Law over Natural Law. is that the moral roots
o f criminal law are all too easily overlooked or even Qqnored Yet one should always keep in mind that moral
standards (and the related area of Natural Law) historically preceded any type o f criminal legislation or judicial
decisions, This Note describes some selected aspects of criminal law of the United States (both substantive and
procedural), wffh occasional references to other countries where necessao,. Particular attention is ,focused on
criminal law court cases and on how the. deal with morali_tv, The author argues that much more attention shouM be
paid to the fundamental relationship between moral values and criminal law,

I. L E G A L P R I N C I P L E S AND DOCTRINES.

A. Strict Liability.
The concept o f strict liability offenses (those requiring no mens tea, in other words, imposing liability without
fault) has been criticized on a number of grounds. One o f them is that it does no good (and it probably even does
harm) to punish individuals who have not purposely, knowingly, recklessly, or at least negligently inflicted harm or
injury on others (or at least on their property). In the end, critics maintain, strict liability does not fit well into the
criminal law because it is inconsistent with the basic nature of criminal law: to serve as a stern m o r a l code. To
punish those who accidentally injure others violates that moral code.'Apart from the fact that negligent crimes may
also be committed accidentally, there is a very clear relationship in the above excerpt, between morality and criminat
law. One should o f course keep in mind that there are also crimes which are not inherently immoral (mala prohibita
offenses like speeding, jaywalking, or possession o f forgery instruments, for instance), and on the other hand, there
are immoral acts which are not criminal (lying, cheating, adultery, moral mistreatment, lack o f patriotism, lack o f
charity, immoral lifestyles, and many behaviors or even thoughts considered sin by religious systems)'- What Samaha
means, however, is that area where criminal law and morality overlap: Behaviors which are at the same time criminal
and immoral. In that sense, it is the basic nature o f criminal law to serve as a stem moral code and because o f that
function, critics o f strict liability reject punishment o f individuals who accidentally injure others.

B. The Doctrine O f Abandonment.

Under the principle o f abandonment of an attempt to commit a crime, abandonment sometimes benefits the actor,
especially if the person, just as he or she is about to commit the act, is struck by what is popularly referred to as an
L'attack o f morality" (conscience)and it is that moral force o f conscience which makes the actor abandon the criminal
d e s i ~ . If, on the other hand, we have a case for instance o f abandonment of theft because the item turns out to be o f
lesser vatue than the would-be thief thought, it is still renunciation but the problem is o f course that it is not morally
inspired.

There are two main positions in the debate on the scope o f the doctrine o f abandonment: Some maintain that law
should encourage abandonment by rewarding those who renounce their criminal plans, regardless o f their motives
for the abandonment. Others would like to see the doctrine o f abandonment reserved only to those who are
motivated by m o r a l s t a n d a r d s in their decision to abandon. The relevance for, and the role o f moralit3' in, criminal
law, can be clearly seen in this case as well.

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 Journal o f Police and O-iminal Psychology, Volume 11, Number 2

C. Possible !~egal Duty (But No Legal One.) To Cooperate With Police In Mere Approaches.
When it comes to the United States law of criminal procedure, it has been established that in cases o f police
officers merely approaching individuals without a show of force or other display o f authority, people so approached
can lawfully walk away or refuse to respond to officers requests because there has been no seizure in Fourth
Amendment: terms? The relevance of morality here is that even though individuals may feel a psychological pressure
and perhaps also a moral duty' to cooperate with police, neither the felling of pressure nor the sense of moral duty by
themselves turn voluntary encounters into Fourth Amendment seizures. So in essence, the message to citizens is this:
If you are a very moral person, you will cooperate, but from a strictly legal standpoint (from the standpoint of a
"'legal", or positive law, not moral law), you need not cooperate, In other words, there is an acknowledgment here of
a clear discrepancy between taw and morality because the law aIlows for behaviors that could be viewed by malay' as
morally unacceptable (i.e. acts which are immoral but not illegal).

It is possible that in the future, this discrepancy between law and morality will decrease or even disappear. This
could happen as a resull of two factors (probably acting in concert): On the domestic front, both the police and
Supreme Court decisions urge cooperation by citizens in situations of mere approaches. 4 It is possible and even
probable that this mere urging could become something stronger in the future ("recommendation"?) without
violating Fourth Amendment premises.

On the international front, as positive examples from other countries' criminal justice systems become
popularized around the world, they are bound to have an impact on the more conservative countries' philosophies of
criminal law and criminal procedure. A case in point is Japan where phenomena like residential surveys, very
comprehensive voluntary, police-citizen cooperation, or even officers entering homes they find unlocked and empty
to inspect the premises fbr crime prevention habits, are normal and widely accepted, in many other countries
(including the United States), such measures would surely be regarded as "invasions of privacy" and intefference's
with "constitutional rights."SAccording to experts on Japan, such paternalism is accepted in that country because
police behavior reflects a moral norm as much as a legal one. So one can see again how important morality is for
criminal law and law enforcement. In this case, it is precisely morality (the fact that police actions reflect both moral
and legal norms) which distinguishes countries like Japan (much more progressive, one must admit) from countries
like the United States. It follows logically that the reason Americans would fmd similar behavior by their police to be
overly inmasive is precisely because in the United States, police behavior and procedures by and large do not reflect
moral norms (only legal ones).

II. C O U R T CASES.

A. State v. Crenshaw.
In State v. Crenshaw 6, the defendant was convicted of first-degree murder and argued that he had followed the
Muscovite religious faith in that it would have been improper for a Muscovite not to kill his wife if she committed
aduItery. Crenshaw also pleaded insanity based on a history of mental problems. The jury rejected his insanity
defense, found him guilty of murder in the first degree, and the Washington Supreme Court affirmed.

Morality was an issue in the case in several ways. First, Crenshaw argued that the trial court erred in defining
"right and ~q-ong" as legal "right and wrong" rather than in the moral sense. The appellate court responded by
saying that under M'Naghten, it is society's morals and not the individual's morals which are the standard for
judging right and wrong. The court further explained that if "wrong" meant "moral wrong" judged only by the
individual's own conscience, this would "seriously undermine the criminal law, fbr it would allow one who violated
the law to be excused from criminal responsibility solely because, in his ow~ conscience, his act was not morally
wrong."

One can clearly see here that in the Court's view, there is a clear distinction between the morals of society and the
morals of individuals. One could of course propose that the two "sets" of moral standards should converge as closely
as possible, but it is hard to disagree with the Court when it says that we simply cannot allow individual moral
judgments to predominate over "collective" morality, since this would lead in many cases to claims by defendants of
lack o f criminal responsibility simply because in their own minds and according to their own moral judgment, what
they did was not morally wrong (abuse of morality).

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