Common law crimes are criminal offenses that judges, not legislatures, defined through centuries of court rulings. More than a dozen U.S. states still let prosecutors charge them, meaning a person can be convicted of an offense that appears nowhere in the state’s written penal code. Federal courts cannot do this. Everywhere else, the question of whether common law crimes still exist depends entirely on which state you are in.
What Makes a Crime a Common Law Crime
A statutory crime is one a legislature wrote down: the elements, the mental state required, and the penalty all appear in a code section you can look up. A common law crime is the opposite. Its definition lives in judicial opinions, some of them centuries old, and its authority comes from the fact that courts have continuously recognized the offense without a legislature ever codifying it.
The earliest offenses that emerged this way were the serious ones: murder, robbery, burglary, arson, larceny, and rape. Nearly every state has since codified those. What remains in the common law category today tends to be narrower conduct that legislatures never got around to writing into statute, or that courts kept hold of because it concerns their own authority.
Federal Prosecutors Cannot Charge Common Law Crimes
If you are facing a federal charge, it is not a common law crime. The Supreme Court settled that in 1812 in United States v. Hudson and Goodwin, holding that federal courts have no authority to prosecute offenses Congress has not defined by statute.1Legal Information Institute. The United States v. Hudson and Goodwin Congress must first define the act as a crime, attach a punishment, and give a court jurisdiction before any federal prosecution can proceed. Every federal crime therefore exists in written law, mostly in Title 18 of the U.S. Code.
The entire debate about common law crimes is a state-level issue.
States That Still Recognize Common Law Crimes
According to a survey of state criminal codes, the jurisdictions that still allow common law prosecutions include Alabama, Connecticut, the District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, North Dakota, Rhode Island, South Carolina, Virginia, and Washington.2Carolina Law Scholarship Repository. The Myth of Common Law Crimes The authority usually comes from a savings clause in the state constitution or criminal code that preserves judge-made offenses alongside the written statutes.
States that retain the authority use it differently. Michigan has a catch-all penalty: anyone who commits an offense recognized at common law, where no specific Michigan statute covers the conduct, is guilty of a felony punishable by up to five years in prison, a fine of up to $10,000, or both.2Carolina Law Scholarship Repository. The Myth of Common Law Crimes Maryland does it offense by offense. Prosecutors there routinely bring charges for specific common law crimes the legislature has never codified. Indecent exposure is one example; it is still prosecuted as a common law offense, even though the legislature has layered statutory penalties on top and enhanced the punishment when it is committed in front of a minor.3Maryland General Assembly. Maryland Code GCR 11-107 – Indecent Exposure
The Offenses Still Charged Today
Even in states that keep the authority, judges rely on a short list of recurring offenses. They fill real gaps in modern codes rather than reaching for exotic charges.
Breach of the Peace
Breach of the peace covers disorderly conduct that disturbs public order or provokes violence. It is one of the most commonly invoked common law offenses because it captures behavior that does not fit neatly into a specific statute. Someone screaming threats on a public street or starting a confrontation outside a business might face this charge. Penalties typically involve fines, short jail terms, or both.
Criminal Contempt
Criminal contempt lets judges punish people who defy court orders or disrupt proceedings. The power is rooted in judicial authority rather than any statute, and courts treat it as essential to their ability to function. A person held in criminal contempt can face jail time and fines. The Supreme Court has treated contempt carrying a sentence of six months or less as a petty offense, meaning no jury trial is required; sentences beyond six months trigger the right to a jury.4Justia. Bloom v. Illinois, 391 U.S. 194 (1968) Even the Model Penal Code, which set out to abolish common law crimes, carved out an exception preserving the court’s contempt power.
Misprision of Felony
Misprision of felony involves knowing about a serious crime and actively concealing it from authorities. At the federal level it is codified: 18 U.S.C. ยง 4 makes it a standalone offense, with up to three years in prison, a fine, or both, for anyone who knows a federal felony has been committed and conceals it rather than reporting it to a judge or other authority.5Office of the Law Revision Counsel. 18 USC 4 – Misprision of Felony Federal courts have read the statute to require active concealment, not just silence. Some states retain their own version rooted in common law, though many have replaced it with specific obstruction-of-justice statutes.
States That Have Abolished Common Law Crimes
Most states have gone the other direction and stripped judges of common law criminal authority entirely. Colorado’s code states that common law crimes are abolished and no conduct is an offense unless described in the code or another state statute. Kentucky, Minnesota, New Jersey, Utah, and Arizona use similar language.2Carolina Law Scholarship Repository. The Myth of Common Law Crimes In those jurisdictions, if the conduct is not written into a statute, it is not a crime.
Abolition does not touch common law defenses. Self-defense, necessity, and duress still exist in these states even though common law offenses do not. The concern driving codification was always government overreach in defining crimes, not limiting what a defendant can argue in response to a charge.
The Constitutional Problem With Common Law Crimes
Common law prosecutions sit in constitutional tension with due process. The Fifth and Fourteenth Amendments require fair notice of what conduct is criminal, a principle expressed in the Latin phrase nullum crimen sine lege, no crime without law.6Legal Information Institute. Nullum Crimen Sine Lege A criminal prohibition has to be definite enough that an ordinary person can understand it and police, judges, and juries are not left to enforce it based on personal judgment.
The Supreme Court has formalized this through the void-for-vagueness doctrine. In Kolender v. Lawson, the Court held that a criminal law must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”7Justia. Kolender v. Lawson, 461 U.S. 352 (1983) The doctrine lets people steer between lawful and unlawful conduct and keeps authorities from enforcing vague prohibitions selectively.8Legal Information Institute. Void for Vagueness and the Due Process Clause – Doctrine and Practice
Common law charges are especially exposed to vagueness challenges because the definitions were never written down in one place. They sit in scattered judicial opinions across different centuries and sometimes different countries. A defendant facing a common law charge in a state like Maryland or Michigan can argue that the offense fails the fair-notice test, and this is where most constitutional challenges to these prosecutions find traction.
The Model Penal Code’s Push to Codify
The strongest force behind the shift to written criminal law has been the Model Penal Code, published by the American Law Institute in 1962. The MPC was never meant to become law on its own; it served as a template state legislatures could adapt when overhauling their codes. Many states built their modern penal codes on its structure, definitions, and treatment of mental states.9Legal Information Institute. Model Penal Code (MPC)
Section 1.05 takes a direct position: “No conduct constitutes an offense unless it is a crime or violation under this Code or another statute of this State.” States that enact that language end judicial crime-creation within their borders. The only exception the MPC preserves is the court’s power to punish for contempt and enforce its own orders. The practical result is that even in states that formally keep common law authority on the books, the vast majority of prosecutions are based on written statutes with spelled-out elements and penalties. Common law charges are the exception now, not the rule, and they remain most likely to appear in the narrow categories where no statute has stepped in.