There are 4 phenomena that stirred interest in the criminal justicesystem and led to its prominence as one of the most examined andcriticized aspects of the government.The Civil Rights MovementThe Vietnam WarThe rising crime rate and the public’s increased awareness of itThe Terrorist Attacks of September 11, 2001In many respects, these four influences were interrelated and cumulative in their effect on the criminaljustice system.MAJOR EVENTS IN USHISTORY THAT HELPEDSHAPE THE CRIMINALJUSTICE SYSTEM AS WEKNOW IT TODAY
The Civil Rights Act of 1964Protests against institutional racism and U.S. involvement in the Vietnam Warposed major challenges to the criminal justice system. Prior to the Civil RightsAct of 1964, businesses, hotels, restaurants, and public transportation could anddid refuse service with impunity to Black citizens.Autherine Lucy – University of Alabama, 1956Civil rights leader Martin Luther King Jr. promoted the tactic of civildisobedience, which also challenged the criminal justice system. One of themost well-known examples of civil disobedience occurred in 1955 when RosaParks refused to move to the rear of the bus, as required by law, and wasarrested. Although King advocated non-violence, there were many who rioted.
The Vietnam WarPolitical protests against U.S. involvement in the Vietnam War also generatedacrimonious conflict in which the police often were captured on film engaged inbrutality against the protesters.Kent State University – 1970During this period, the crime rate continued to climb to the point that, according toa 1965 Gallup poll, American’s viewed crime as the most serious problem in thecountry.In 1968 31 percent of Gallup survey respondents said they were afraid to walk intheir own neighborhoods at night. By the end of 1972, the number had risen to42%. Most citizens thought that the police were part of the cause, not thesolution, to the rising crime rate. The President’s Commission on LawEnforcement and Administration of Justice concluded that most people hadlost confidence in the ability of the police to maintain law and order.
The criminal justice system appeared to be failing. To counter theattack of crime and social disorder, on July 25, 1965, PresidentLyndon Johnson declared a War on Crime. He authorized aseries of federal presidential commissions to study crime andjustice in the United States and to recommend suggested reformsto restore public confidence.The findings of the President’s Crime Commission concludedthat fear of crime had eroded the basic quality of life for manyAmericans. It also recognized the importance of crimeprevention, as opposed to crime fighting, and the necessity ofeliminating injustices in the criminal justice system.THE WAR ON CRIME
In response to recommendations of the PCC and demands fromthe public, substantial resources were added to the criminal justicesystem.To attract better-qualified personnel, police departments had to increase salaries;as a result, policing costs skyrocketed in major cities like Kansas City.To help defray these costs, local and state governments sought assistance fromthe federal government, whose response was to pass the Omnibus CrimeControl and Safe Streets Act of 1968.This Act created the Law Enforcement Assistance Administration(LEAA)and the Law Enforcement Educational Program (LEEP).The LEAA acted as a conduit for the transfer of federal funds to state and locallaw enforcement agencies. However, these funds were not without “strings”.OMNIBUS CRIMECONTROL AND SAFESTREETS ACT OF 1968
The LEAA appointed the National Commission on Criminal Justice Standardsand Goals, which had the purpose of formulation specific standards and goalsfor police, courts, corrections, juvenile justice, and crime prevention. To receivethe generous funds available from the federal government, local and stateagencies had to show that they had implemented the commission’s standards andgoals. May of the advances made within law enforcement agencies were a resultof compliance with standards and goals necessary to qualify for federal funds.The Law Enforcement Educational Program (LEEP) was a branch of theLEAA> The goal of LEEP was to promote education among criminal justicepersonnel.After massive amounts of federal assistance, numerous reform efforts, and theadoption of innovative strategies by police, courts, and corrections, publicconfidence in the criminal justice system was restored and the crime ratedropped. Residents of large cities reported that they felt safe using publictransportation. Violent crime rates for nearly all categories dropped. Thingswere looking up for public confidence in the criminal justice system untilSeptember 11th, 2001.
The biggest crisis in the twenty-first century was caused by aforeign attack on the UnitedStates. Just as President Johnsonhad declared a war oncrime, President Bush declared aWar on Terrorism.
Criminal Law/Control Versus LibertyAfter breaking away from England, the American colonists rejectedboth the Church and the king as supreme authorities and declaredthat the United States is founded on the superiority of the rule oflaw. The rule of law declares that the standards of behavior andprivilege are established not by kings or religious leaders, but by rulesand procedures that define and prohibit certain behaviors as illegal orcriminal and prescribe punishments for those behaviors. Allpeople, regardless of rank, title, position, status, or wealth, areaccorded the same rights and privileges under the law. Three majorcategories of law are civil law, administrative law, and criminal law.
The Making of LawWhy do governments – local, state, and federal – create criminallaws? The American Law Institute, a private, voluntary associationof distinguished judges, lawyers, and law teachers, give five reasonsfor the establishment of laws:1. to forbid and prevent conduct that unjustifiably andinexcusably inflicts or threatens substantial harm to individual orpublic interests2. to subject to public control persons whose conductindicate that they are disposed to commit crimes3. to safeguard conduct that is without fault fromcondemnation as criminal4. to give fair warning of the nature of the conductdeclared to constitute an offense5. to differentiate on reasonable grounds between seriousand minor offenses.
Mala in seSpecific Laws might be passed because theyprohibit actions that are thought to be harmful tosociety. For example, Prohibitions againstmurder, rape, robbery, and arson are seen asserving all people in society. Such acts areprohibited because they are considered harmful inthemselves, or mala en se.
Mala ProhibitaOther laws might be passed because some peoplefeel that there is a need to regulate certain actions;thus for example, there are parking regulations,minimum drinking-age limits, and various licensingregulations. Acts that violate such regulations aremala prohibita- prohibited only because of thelaw and not because they are necessarily harmfulor inherently evil.
Seven benchmarks are used to assess the legality of criminal laws.Principal of LegalityEx Post Facto LawsDue ProcessVoid for VaguenessRight to PrivacyVoid for OverbreadthCruel and Unusual PunishmentTHE LIMITS OF THE LAW
#1: Principal of LegalityThe government cannot punish citizens for specific conduct if no specificlaws exist forewarning them that the conduct is prohibited or required. Theprincipal of legality, which has its roots in the Roman Empire, requires thatlaws must be made public before they can be enforced.THE LIMITS OF THE LAW
2. Ex Post Facto LawsEx post facto (“after the fact”) laws are related to the principle of legality. Theex post facto principle declares that persons cannot be punished for actionscommitted before the law prohibiting the behavior was passed.The principle of ex post facto also prohibits the government from increasingthe punishment for a specific crime after the crime has been committed.THE LIMITS OF THE LAW
#3. Due ProcessThere are two types of due process rights: substantive and procedural.Substantive due process limits the power of government to create crimesunless there is a compelling and substantial public interest in regulating orprohibiting a certain type of conduct.THE LIMITS OF THE LAW
Due process, continued……Procedural due process requires the government to follow establishedprocedures and to treat defendants equally. Procedural laws regulate theconduct of the police, the courts, and the criminal justice system in general.These laws, called rules of evidence, define, for example what is fairtreatment, what order of events must be followed, what types of evidence canbe admitted at a trial, and the rights of the defendants.THE LIMITS OF THE LAW
Procedural due process, continued….Because of procedural due process, case law precedents play a significant rolein adjudication in the U. S. system of justice. Attorneys can argue that thecourt must allow similar evidence or testimony as was admitted in the past insimilar cases. This system of case law is called stare decisis.THE LIMITS OF THE LAW
#4: Void for VaguenessThe law must say what it means and mean what it says. Laws that do notprovide reasonable guidelines that define the specific prohibited behaviors arevoid for vagueness.Laws must use wording that clearly specifies what behavior or act is unlawful.Vague wording subject to different interpretations, such as immoral,indecent, too close, and interfere with, does not provide the average personwith sufficient information to determine whether his or her behavior is inviolation of the law.THE LIMITS OF THE LAW
#5: Right to PrivacyLaws that violate reasonable personal privacy may be declared void. Theright to privacy is not clearly delineated in the U. S. Constitution, but it isa constructed right, inferred from the provisions of theFirst, Third, Fourth and Ninth amendments. Some state constitutionssuch as Alaska, Florida and Hawaii, have explicit rights to privacy.Child Pornography The Supreme Court has upheld state statutes makingit a crime to possess child pornography. Thus, privacy is not anoverarching right that permits otherwise harmful or prohibited behaviorsmerely because they are performed in one’s own home.THE LIMITS OF THE LAW
#6: Void for OverbreadthLaws that have been declared void for overbreadth are laws that have gone toofar; that is , in an attempt to prevent a specific conduct, the law not onlymakes that conduct illegal, but it also prohibit other behaviors that are legallyprotected.A law that is void for overbreadth is not vague in what it prohibits; rather itsimply prohibits legal activities as well as illegal activities.THE LIMITS OF THE LAW
#7: Cruel and Unusual PunishmentTo be valid, a law must specify the punishment to be applied for violationof the law. If that punishment is in violation of the EighthAmendment, which prohibits cruel and unusual punishment, it may bedeclared unconstitutional. This legal philosophy appears to be based onthe premise of classical criminology that punishment should beappropriate to the crime. Although the argument of cruel and unusualpunishment has frequently been applied to cases involving the deathpenalty, the focus of the prohibition is on applying the principle ofproportionality for the appropriate punishment for a crime.THE LIMITS OF THE LAW
Punishments specified by law are based on the principle ofproportionality. Less-serious harms, such as misdemeanors, carry lesserpunishments that do more serious harms, which are felonies. However,even for felonies, there are various degrees of punishment.Determining what punishment should be attached to a crime dependson the conduct and the intention of the actor or perpetrator. Theactions and intentions of a person who commits a crime are called theelements of a crime. Each crime is defined by these elements. Twoimportant elements are actus reus and mens rea.ELEMENTS OF A CRIME
Elements of Crime Definitions – Actus ReusThe Actions of the person: The law must define the actions that constitute the crime. Theaction must be voluntary in the sense that criminal law does not prosecute persons foraccidents or unintentional actions that are not negligent or reckless. However, the law doesprovide that , in two cases, actus reus can be other than direct criminal behaviors. These arefailure to act and possession.Failure to Act or Crimes of Omission: The criminal intent of a crime may be failure to actwhen there is a legal duty to act.Possession: The possession of an illegal or prohibited item can constitute actus reus.Constructive Possession: When a person knows that an item is contraband andhe or she doesn’t have actual possession, but the person is in control of the item;the mailing of contraband is an example.Knowing possession: When a person has actual possession and is aware thatwhat he or she possesses is contraband.Mere possession: When a person has actual possession but is not aware thatwhat he or she possesses is contraband.
Element of a Crime Definitions – Mens reaThe intent of the person: The person must have criminal intent or “a guilty mind.” The actionmust intend harm. The only direct evidence of mens rea is the defendant’s confession. Otherwise,in criminal law, mens rea is determined primarily be circumstantial or indirect evidence. There arefour types of criminal intent:General intent: This refers to the commonsense understanding that an action maycause harm. The law infers what commonsense suggests, even if the defendantdenies the intent.Specific intent: This refers to the actions taken to knowingly commit a crime; forinstance, larceny requires taking property with the intent to permanently deprive theowner of that property.Transferred intent: This covers incidences in which a person injures another put didnot intend to harm that person. This includes a case in which a person is intending tohurt someone, but misses and an innocent third party is injured.Constructive Intent: This refers to a situation in which a person does not intend toharm anyone but should have know that his or her actions created a risk.Shooting a gun into the air on New Year’s Even is an example of this.
The Model Penal Code distinguishes four types of intent:PurposelyKnowinglyRecklesslyNegligentlyEach has a lesser degree of criminal intent, and will have alesser punishment assigned. For instance, a person whopurposely causes the death of another is guilty ofmurder, whereas someone who causes the death recklessly isguilty of manslaughter.
The Broken Window Theory:The underlying theme of community policing is a partnership between the policeand the community. In this partnership, the police become problemidentifiers, dispute resolvers, and managers of relations rather than crimefighters, law enforcers, and the “thin blue line”.Underlying this strategy of public order is “the broken window theory”. It is aninteresting experiment – an automobile was parked in a neighborhood and left. Itwas discovered that the automobile was more quickly vandalized if a window onthe parked vehicle was broken than if the automobile was left undamaged. Themessage sent by the broken window was, “Nobody cares – other acts of vandalismare ok.”When applied to a neighborhood, the broken window theory means that if vacantbuildings are left untended, if graffiti is tolerated, and if public order violationssuch as public drinking, disruptive behavior by youths, and vandalism arepermitted, these will be signals to people that nobody cares about thecommunity, leading to more serious disorder and crime.Zero-tolerance strategy
Police Officers and the LawEven for serious felonies such as murder, rape, and child sexoffenses, failure to provide the accused the rights guaranteedto them or to follow required procedural law can result in theirrelease from the criminal justice system. The police areresponsible for the detection and investigation of crimes andfor the arrest of the alleged offender. However, as theyperform these responsibilities they are required to do sowithout violating the rights of the accused.Procedural law is a body of laws for how things should bedone at each stage of the criminal justice process.
Rules of EvidenceThe police have the primary responsibility for detecting andinvestigating crime, gathering evidence to present in court, and arrestingsuspects. However, they do not have unrestricted powers in fulfillingthese responsibilities and must perform these duties within prescribedlimits set by legislation, judicial oversight, and the Constitution. One ofthe most influential criminal justice agencies regulating police behavioris the U.S. Supreme Court. The Supreme Court has the power toreview cases to determine whether the constitutional rights of theaccused have been preserved. It also has the power to establish therules by which courts operate. Rules that relate to the presentation ofevidence in a trial are called the rules of evidence.
Rules of Evidence stipulate the requirements forintroducing evidence and define the qualifications of an expertwitness and the nature of the testimony he or she may give.According to the rules, the prosecutor must show the defense theevidence he or she has gathered against the defendant.Rules of evidence affect police officers’ conduct because collectingevidence is part of their job. If evidence is not collected properly, itcan be declared inadmissible, in which case it cannot be used againsta defendant.For example, If a defendant is on trial for the illegal possession ofdrugs and the drugs that he or she is accused of possessing aredeclared inadmissible as evidence, the prosecutor cannot present thisevidence to the jury. The prosecutor has no case.
The Exclusionary RuleEvidence can be declared inadmissible under the exclusionary rule, whichprohibits the use of evidence or testimony obtained in violation of civil libertiesand rights protected by the U. S. Constitution. The exclusionary rule originatedwith the 1914 Supreme Court case Weeks v. United States. In the Weekscase, the U.S. Supreme Court ruled that evidence against Weeks that had beenobtained without a warrant was in violation of his protections under the FourthAmendment.Initially, the exclusionary rule applied only to federal courts. The rightsguaranteed by the First Amendment (Freedom of Speech and Freedom ofAssociation), the Fourth Amendment (Privacy and Search and Seizure), theFifth Amendment (Self incrimination and double jeopardy) and the SixthAmendment (the right to confront witnesses) did not apply to the actions oflocal police or state courts. Until 1949, state courts were free to write their ownrules of evidence.
Fruit of the Poisoned Tree DoctrineAt first, the exclusionary rule established in the Weeks case applied only to primary(directly obtained) evidence, but not to secondary evidence. For example, if federalagents obtained the business books of a company by unconstitutional means, those bookscould not be used as evidence to incriminate the defendant, but a copy of the informationcould. Also, inadmissible evidence could lead to other evidence, which then could beintroduced in court. Thus, if an unconstitutional search produced a map indicating wherea defendant had buried the body of the person her or she was accused of murdering, themap could not be introduced as evidence. However, using the knowledge obtained fromthe map, police officers could find the body and introduce it as evidence.Four years after the Weeks decision, the Supreme Court reconsidered the exclusionaryrule and added another rule of evidence, known as the fruit of the poisoned treedoctrine. The name of the doctrine comes from the analogy that if the tree is“poisoned”, then the “fruit” of the tree will also be poisoned. In Silverthorne LumberCo. v. United States (1918), the Supreme Court declared that the rules of evidence appliednot only to evidence directly obtained by illegal means but also to any other evidenceobtained indirectly. Under this rule, the business books and the body found through theaid of the map are not admissible as evidence.
Application to State Courts: Mapp v. OhioHistorically, the Supreme Court did not interfere with state courts. With the incorporation ofthe exclusionary rule, this practice started to change. Without any “punishment” for gatheringevidence and obtaining confessions contrary to constitutional protections, local and state lawenforcement officers paid little attention to the federal constitutional rights of citizens. It wascommon practice for police to search without a warrant or probable cause, obtain confessionsby the use of force, and in general ignore the constitutional rights of suspects. Then, in 1961,in Mapp v. Ohio, the U.S. Supreme Court reversed itself and required state courts to use theexclusionary rule.Dolree Mapp’s case…………………
Search incident to arrest………………….Plain view searches……………………..
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