Criminal law is based on prohibiting acts considered to be reprehensible and punishing people for committing those acts. A criminal act is any behavior or act that society has decided should be punishable by the imposition of the death penalty, a term of imprisonment, fines, or probation. The current criminal legal system in the U.S. comes, in part, from the so-called system of “common law”, which originated in the United Kingdom.

Conceptually, crimes are divided into those criminal acts which are “mala in se,” or inherently immoral, and those which are “mala prohibita,” or criminal only because they are prohibited by a local, state or federal law. The phrase “mala in se” is a Latin phrase that means “evil or wrong in itself.” The phrase “mala prohibita” means “wrong because they are prohibited.”

Example of crimes that might be considered “mala prohibita” would be gambling, prostitution, vagrancy, disorderly conduct, public intoxication, and parking violations. Most people would agree that there is nothing inherently bad or immoral in the acts that constitute these crimes, but society has decided to make them criminal for various reasons.

This assertion is, of course, debatable. There are reasonable people who might believe that gambling is inherently wrong or immoral. Currently, many states are legalizing gambling of various kinds, e.g. sports betting, and our society in general seems to accept that there is nothing inherently wrong with gambling. The point is that in times past, these actions may not have been criminal and were not considered to be in the same class as acts that were mala in se.

It is also worth noting that currently the distinction between crimes that are mala in se and those that are mala prohibita does not have much, if any, practical importance in the administration of our current federal and state systems of criminal justice. But the concept may, in part, explain the historical origins of the death penalty and the reason for its persistence in some parts of the U.S.

What Are Mala In Se Crimes?

Mala in se crimes are defined as criminal acts that are wrong because they are inherently immoral. In the traditional British system of criminal justice, on which the American justice system is based, crimes that were considered mala in se were punished by imposition of the death penalty.

While crimes mala in se remain, in general, among the most heinous of crimes, especially when compared to crimes that are mala prohibita, they do not necessarily incur the most severe punishments any longer. For example, in most states, a third drunk-driving conviction would result in a more severe punishment than a first-time conviction for petty theft.

Today, mala in se crimes are not punishable by death in most states. Some states do still impose the death penalty for certain mala in se crimes, e.g. first degree murder, usually of a particular kind of victim. In other states, the punishments for mala in se crimes are still harsh, even if they are not punishable by death. They would be punished by lengthy prison terms or life in prison without parole.

Twenty-two states in the U.S. have abolished the death penalty and they are:

  • Alaska;
  • Colorado;
  • Connecticut;
  • Delaware;
  • Hawaii;
  • Illinois;
  • Iowa;
  • Maine;
  • Maryland;
  • Massachusetts;
  • Michigan;
  • Minnesota;
  • New Hampshire;
  • New Jersey;
  • New Mexico;
  • New York;
  • North Dakota;
  • Rhode Island;
  • Vermont;
  • Washington;
  • West Virginia;
  • Wisconsin; and
  • Washington, District of Columbia.

Three states, California, Oregon and Pennsylvania, have placed moratoria on executions. This means that a person might still be sentenced to death, but executions are not carried out.

The states listed below still have the death penalty. People under a death sentence wait on average about 14 years between sentencing and execution. Meanwhile, the death sentence was completely abolished in the United Kingdom in 1998.

  • Alabama;
  • Arizona;
  • Arkansas;
  • California;
  • Florida;
  • Georgia;
  • Idaho;
  • Indiana;
  • Kansas;
  • Kentucky;
  • Louisiana;
  • Mississippi;
  • Missouri;
  • Montana;
  • Nebraska;
  • Nevada;
  • North Carolina;
  • Ohio;
  • Oklahoma;
  • Oregon;
  • Pennsylvania;
  • South Carolina;
  • South Dakota;
  • Tennessee;
  • Texas;
  • Utah;
  • Virginia;
  • Wyoming.

As for the crimes for which the death sentence may be imposed, In Ohio, for example, an inmate may be sentenced to death if they are charged with aggravated murder in addition to specific circumstances. These include a murder that constituted the assassination of a public official, or if the victim was a peace officer, or the murder was committed while the defendant was a prisoner in a detention facility.

Other offenses for which the death penalty may be imposed in Ohio are mala in se offenses of rape, kidnapping, aggravated arson, aggravated robbery, aggravated burglary, the killing of a witness to a crime to prevent their testimony or in retaliation for testimony already given.

Ohio previously administered the death penalty by hanging and electrocution in the electric chair. Ohio now uses lethal injection for executions, although an inmate can request electrocution. Defendants who are mentally incapacitated, pregnant, or who were under 18 years old at the time of their offense may not be executed.

The U.S. federal criminal statutes list 41 offenses that are punishable by death, or “capital” offenses. Among the federal capital offenses are espionage, treason, and death resulting from aircraft hijacking. However, they are mostly various forms of murder such as murder committed during a drug-related drive-by shooting, murder during a kidnapping, murder for hire, and genocide.

Of course, the federal death penalty applies in all 50 states and U.S. territories, but the death penalty is rarely imposed in federal criminal cases. There are currently about 50 prisoners on federal death row, most of them in the maximum security prison in Terre Haute, Indiana. There have been 16 federal executions in the modern era, all by lethal injection. Thirteen executions took place in a six-months between July 2020 and January 2021.

Which Crimes Are Considered Mala In Se?

Crimes that are historically mala in se include such heinous criminal acts as:

Today, it is often the aggravated forms of these crimes that are punishable by death. However, it is clear that there is a relationship between the concept of mala in se crimes and the death penalty.

What Is the Difference between Mala In Se and Mala Prohibita?

Mala prohibita crimes are criminal acts that are wrong because they violate a statute or law rather than being an action that harms or offends our sense of morality. Most of the time, mala prohibita crimes are considered less serious than mala in se crimes. For example, a ticket for a moving violation, tax evasion, or a shoplifting are all considered to be mala prohibita crimes.

Do White Collar Crimes Fit into This Category?

White collar crimes are normally not included among mala in se criminal acts. This is because white collar crimes are generally non-violent offenses committed for financial gain. So, they are generally classified as mala prohibita crimes.

Do I Need to Talk to an Attorney about a Mala In Se Crime?

If you have been charged with a mala in se crime, you want to consult an experienced criminal defense attorney. It is possible that the crime with which you have been charged carries a more severe sentence than other crimes, so you have a stronger need for the help of an experienced attorney to handle your defense. Contact a criminal defense attorney to determine the best defense to use and how to proceed through the criminal justice system in dealing with your mala in se criminal charges.