3.4. Sources of Criminal Law: Statutes, Ordinances, and Other Legislative Enactm
3.4. Sources of Criminal Law: Statutes, Ordinances, and Other Legislative Enactments
Lore Rutz-Burri and Kate McLean
Statutes, Ordinances, and Other Legislative Enactments
Most substantive criminal law is legislative law. State legislatures and Congress enact laws which take the form of statutes or congressional acts. Statutes are written statements, enacted into law by an affirmative vote of both chambers of the legislature and accepted (or not vetoed) by the governor of the state or the president of the United States. State legislatures may also create legislative law by participating in interstate compacts, or multi-state legal agreements. An example of this includes the Uniform Extradition Act, or the Uniform Fresh Pursuit Act. Congress makes federal law by passing acts and approving treaties between the United States and other nation states. Local legislators, city and town councilors, and county commissioners also make laws through the enactment of local ordinances.
Controversial Issue: Ballot Measures, Initiatives, and Referendums–Direct Democracy and Law Making
In several states, citizens have the power to enact laws through direct democracy by putting “ballot measures” or “propositions” up for a vote. This type of lawmaking by the people started primarily in the Western states around the turn of the 20th century. Initiatives, referendums, and referrals have some slight differences, but generally, these ballot measures ultimately find their way into either statutes or the constitution, and so they are included in this section on legislative law. For example, Oregon Ballot Measure 11, establishing minimum mandatory sentences for 17 person felonies, was voted on in November 1994 and took effect April 1, 1995. It is now found in the Oregon Revised Statutes as ORS 137.700. Proposition 36, approved by Californians in 2012, significantly amended the “three strikes” sentencing laws approved in 1994. Initiatives, referendums, and referrals can be effective in quickly changing the criminal law, and is a way to circumvent what can be a contentious legislative process. Most notably, this form of “direct democracy” has led to the decriminalization of marijuana in Washington, Oregon, Colorado, and Alaska (among other states)!
States’ Authority to Pass Criminal Laws
States are sovereign and autonomous, and unless the Constitution takes away state power, the states have broad authority to regulate activity within the state. Most criminal laws at the state level are derived from the states’ general police powers, or authority, to make and enforce criminal law within their geographic boundaries. Police power is the power to control any harmful act that may affect the general well-being of citizens within the geographical jurisdiction of the state. A state code, or state statutes, may regulate any harmful activity done in the state or whose harm occurs within the state.
Congress’s Authority to Pass Laws
Federal lawmakers do not possess police power. Instea