Comparative Criminal Justice Systems AN AMERICAN PERSPECTIVE on CRIMINAL LAW CHAPTER THREE Reichel

A Justice Paradigm (In Western Nations) A Justice Paradigm (In Western Nations) Two essential ingredients are: Laws(Substantive)&Enforcement(Procedural)

THE LAW IS DEFINED AS: A body of rules; Enacted by public officials; In a legitimate manner; Enforced by the state.

Two Types of Criminal Law Substantive Law & Procedural Law

Substantive Law Law that deals with the content or substance of the law – legal obligations. “that part of law which creates, defines, and regulates rights” (Blacks Law Dictionary). Criminal law examples include: murder, robbery, and burglary.

Substantive Law General Characteristics Politicality Politicality Specificity Specificity Uniformity Uniformity Penal Sanction Penal Sanction Major Principles Mens rea * Actus reus Concurrence Harm Causation Punishment Legality * (Criminal responsibility)

Procedural Law Law that outlines the legal process from arrest through sentencing. An example is the trial process including the interaction of the courtroom workgroup.

The Crime Control Model versus The Due Process Model* * Herbert Packer (1968). These are two separate value systems in the criminal justice system which represent trends along a continuum. Crime Control   Due Process The Crime Control Model versus The Due Process Model* * Herbert Packer (1968). These are two separate value systems in the criminal justice system which represent trends along a continuum. Crime Control   Due Process

The Rights of the Accused Prevention and crime control versus protecting the individual liberties of the innocent. Prevention and crime control versus protecting the individual liberties of the innocent. Due Process clauses of the Constitution limit arbitrariness of legislative and judicial authority (5 th and 14 th amendment). Due Process clauses of the Constitution limit arbitrariness of legislative and judicial authority (5 th and 14 th amendment). The Bill of Rights include individual protections within the context of criminal procedures. The Bill of Rights include individual protections within the context of criminal procedures. The Supreme Court is the final voice on the interpretation of the Bill of Rights and the specific requirements of due process. These interpretations tend to be revised over time. The Supreme Court is the final voice on the interpretation of the Bill of Rights and the specific requirements of due process. These interpretations tend to be revised over time.

The Bill of Rights and Criminal Procedure: “Incorporation:” A legal doctrine in which the Supreme Court made provisions for all major protections to be extended to the states as well as the federal government (14 th amendment). “Incorporation:” A legal doctrine in which the Supreme Court made provisions for all major protections to be extended to the states as well as the federal government (14 th amendment). Major Protections Affecting Criminal Procedure Include: 4 th Amendment: Unreasonable searches and seizures and the exclusionary rule. 4 th Amendment: Unreasonable searches and seizures and the exclusionary rule. 5 th Amendment: Self-incrimination and double jeopardy. 5 th Amendment: Self-incrimination and double jeopardy. 6 th Amendment: Right to counsel and trial by jury. 6 th Amendment: Right to counsel and trial by jury. 8 th Amendment: Cruel and unusual punishment. 8 th Amendment: Cruel and unusual punishment.

TWO MODEL COMPARISON Crime Control Model Presumption of Guilt Presumption of Guilt Priority is repression of criminal conduct Priority is repression of criminal conduct Efficient assembly line system Efficient assembly line system High rate of apprehension and conviction High rate of apprehension and conviction Focus is on the plea of guilt Focus is on the plea of guilt Premium on speed and finality Premium on speed and finality Informal administrative fact finding Informal administrative fact finding Due Process Model Presumption of Innocence Presumption of Innocence Priority is protecting the individual’s rights Priority is protecting the individual’s rights Obstacle Course Obstacle Course Based on formal structure of the law Based on formal structure of the law Adversarial fact finding process Adversarial fact finding process Demand for finality is low Demand for finality is low Insists on prevention and elimination of mistakes Insists on prevention and elimination of mistakes

TWO MODEL COMPARISON cont’d CRIME CONTROL MODEL Quantity Control Quantity Control Throws out cases which are in doubt at an early stage – proceeds as fast as possible to convict the rest (factual guilt) Throws out cases which are in doubt at an early stage – proceeds as fast as possible to convict the rest (factual guilt) Punishment Punishment Emphasizes Official Power – Emphasizes Official Power – Police & Legislature Police & Legislature Validating authority are the police and prosecutors Validating authority are the police and prosecutors Conservative approach – law enforcement is hindered and criminals benefit from loopholes. Conservative approach – law enforcement is hindered and criminals benefit from loopholes. DUE PROCESS MODEL Quality Control – Protect the factually innocent – convict the factually guilty Doctrine of legal guilt Rehabilitation Limits Official Power – Judicial & Constitutional Validating authority is judicial and the courts. Liberal approach – crime is a product of socioeconomic factors.

Examples of the Two Models Due Process Model Warren Court ( ) Warren Court ( ) Indeterminate Sentencing Indeterminate Sentencing Right to Counsel for indigents and juveniles Right to Counsel for indigents and juveniles Exclusionary Rule Exclusionary Rule Miranda Rights Miranda Rights Crime Control Model Rehnquist Court (1986 – Present). Rehnquist Court (1986 – Present). Determinate Sentencing Determinate Sentencing Sentencing Guideline Sentencing Guideline Three Strike Laws Three Strike Laws Patriot Act Patriot Act

Question How does the law affect the following issues? Law Enforcement Law Enforcement Courtroom workgroup Courtroom workgroup Plea bargaining Plea bargaining Sentencing Sentencing

Questions How do content, context, and time affect laws? How does the definition of “unlawful combatant” affect procedural law? How do you think America’s response to terrorism compares to other Western Nations?

Questions How does JUSTICE fit into the law making process? And, Which is more important when considering laws, Rights of Individuals or the Common Good?