Mala in se: 도덕적으로 비난받을 만한 범죄 . Mala prohibita 의 반대개념 For example) Murder, Mala prohibita: 행위자체로서는 도덕적으로 비난할 것이 아니나 제정법에 의하여 금지된 범죄 For example) drive left or right. Using cell phone
Stalking 을 예로 들어보자 .. 만약 stalking 에 관한 법률이 없었다면 정신적인 harm 을 입혔다고 하여 처벌 할 수 없다 . 예전에 hacking 에 대하여… . Illegal download – napster 10 년전에는 불법이 아니었다 .
Saggy pants 에 대해 한번 논의해 보자 . 1960-70 년대의 한국의 장발 금지법 현재의 tatoo 금지 – 사회의 consensus 에 의해 설정
White collar crime 비교적으로 낮은 sentence
Speeding ticket: 경찰관의 discretion Loud music while driving: 30 feet 검사 : case by case 모든 discretion 은 fairness 와 discrimination 의 문제가 올 수 있다 . 또한 personal perception 도 큰 작용을 한다 .
O.J. Simpson case 같은 경우… .the celebrated cases 얼마 안되는 극단적이나 public interest 에 의해 media 의 focusing 이 틀려진다 .
Three strike out Mandatory sentencing Harsher punishment 1990 년대 초반부터 미국의 범죄율은 감소한다는 발표…처음 몇해 많은 arrest 로 인해 작은 범죄도 incarceration. Public power 가 커진다 .
인권 문제 보다 많은 civil law suit 이 일어날 가능성이 높다 .
얼마나 많은 사람들이 wrongfully accused 되나 ? 2 주전에 TX 에서 86 년에 aggravated kidnapping in the abduction and rape 으로 잡혀간 Ernest Sonnier 가 최근에 당시의 기소가 잘못되었다며 번복… .he was freed on Aug 8 th . Serious problems with Forecsic science
Criminal Justice System
Which behaviors can be considered as violation of the law?1. Chewing gum on the street.2. Wearing the sagging pants3. Singing in the bathtub4. Women go to fishing alone.5. Using sex toys
Which behaviors can be considered as violation of the law?1. Chewing gum on the street.In Singapore, it’s illegal. You can get the fine up to S$1,000.2. Wearing the sagging pantsIt’s illegal in several states. Up to $500 fine or jailed 5 years.3. Singing in the bathtubBy the law, it’s illegal in PA.4. Women go to fishing alone.In Montana, it is illegal for married women to go fishing alone onSundays, and illegal for unmarried women to fish alone at all.
Which behaviors can be considered as the violation of the law?5. Using Sex toysAll sex toys are banned in GA.Source: Chitwood, Tim. "Toying With Issues". Columbus Ledger-Enquirer. 16 Oct. 2002.Why does this law exist?In 1968 a Fulton-county resident was convicted under this law. Thisis despite the fact that the Fulton-County jury publicly stated that thelaw was "archaic" and noted such gadgets can have therapeuticvalue.
What is Crime?Legalistic PerspectiveCrime: Human behaviors against the lawThere is no crime without the law, and there is no punishment without thecrime.Political PerspectiveCrime: Human behaviors against the power groupSociological PerspectiveViolate the ruleDevianceSocial harmHuman rights violationAntisocial behavior which threats the social structure
What is Crime?Two perspectives on Crime1. Moving Target PerspectiveCriminal behaviors can be changed depending on time orlocationHomosexuality, drug abuse, infanticide, etc2. Stationary Core PerspectiveMala in se (wrong or evil in itself)Mala prohibita (the prohibited act forbidden by the policy orlaw)
Elements of Crime1. Harm2. Legality3. Actus reus4. Mens rea5. Causation6. Concurrence7. Punishment
Elements of Crime1. HarmThe behavior along with psychological, physical, and economicalharmThe thinking itself is not the crime.2. LegalityMust be defined by the law3. Actus reus (guilty act)Must violate the law
Elements of Crime4. Mens rea (guilty mind)Criminal mindExclude self-defense5. CausationDirectly or indirectly related to the harm6. ConcurrenceActus reus and Mens rea should co-exist.7. PunishmentCriminal behavior should be punished.Punishments include reimbursement, rehabilitation, punishment, andcompensation
What is CrimeDefined by the lawCrime is defined by the law in the society.As a wrong against society proclaimed by law, and if committedunder certain circumstances, punishable by society.Some ridiculous laws in our societyLouisiana – Banned the sagging pantsConsensus model vs. Conflict Model
Law reflects the need for order Law results from a consensus on widely shared values in society Basic agreement with shared norm and value Law is an impartial system to protect the public Law provides neutral means of resolving disputesOrigins of Criminal Law: Consensus View
Not an absolute definitionPolitically powerful groups influence the content of criminal law“Mala prohibita” offenses are prohibited by government but not wrongin themselvesHarsh penalties are sometimes enforced on the poor ordisadvantaged while the powerful are given lighter sentencesOrigins of Criminal Law: Conflict View
An action or activity that isPunishable under the criminal law as determined by the majorityof society or, in some cases, a powerful minorityConsidered an offense against society as a whole, andprosecuted by public officials not victimsPunishable by statutorily determined sanctions that bring aboutthe loss of freedomAn Integrated Definition of Crime
Violent CrimeProperty CrimePublic Order CrimeHigh-Tech CrimeOrganized CrimeWhite-Collar CrimeTypes of Crime
Index crime defined by FBIMurder, Forcible rape, robbery, aggravated assaultsBurglary, theft, theft of motor vehicle, arsonCrime against personsMurder, or unlawful killing of a human beingSexual assault or rapeAssault and BatteryRobberyMajor Categories of Violent Crime
The most common form of criminal activityEconomic gain or the damaging of propertyPocket pickingShopliftingThe stealing of any propertyLarceny/theftBurglaryarsonProperty Crime
Linked to the Consensus modelEx. Singapore – Public order lawPublic drunkennessProstitutionGamblingIllicit drug useSometimes as victimless crimesPublic Order Crime
An illegal act or series of acts committed by an individual or businessentity using some nonviolent means to obtain a personal or businessadvantageWhite-Collar crime
Illegal acts by illegal organizations, usually geared toward satisfyingthe public’s demand for unlawful goods and services Preferred markets Gambling Prostitution Illegal narcotics, Loan sharking Counterfeiting and credit-card scamsOrganized Crime
Growing areaAlmost every crime types in the cyber spaceSelling pornographic materialsSoliciting minorsDefrauding consumers with bogus financial investmentVoice PhishingEmail PhishingEngaging in ProstitutionCyber Crime
The major purpose of the CJ systemIn 1967, the President’s Commission on Law Enforcement andAdministration of Justice stated that the CJ system is obligated toenforce accepted to standards of conduct so as to“Protect individuals and community”The Criminal Justice System
To control crimeTo prevent crimeTo provide and maintain justiceThree Goals of the Criminal Justice System
FederalismThe government powers are shared by the national (federal)government and the states.In the US, the division of powers between the federal governmentand the fifty states is established by the ConstitutionThe National government power by ConstitutionThe power to coin moneyRaise an armyRegulate interstate commerceCrime control – local governmentsStructure of the Criminal Justice System
PoliceLocal Law EnforcementCounties + municipalsState Law EnforcementExcept HawaiiMost states – state police + highway patrolsFederal Law EnforcementFBIDEAATFDepartment of Homeland SecurityStructure of the Criminal Justice System
The Federal Court SystemJudgesAppointed by the president of the United States, subject tothe approval of the SenateLifetime appointments- Because under Article III of the Constitution they “holdtheir offices during Good Behavior”
CourtsDual court system = Federal + StateFifty-two different court systemsOne national court system (Federal)Fifty state courtsOne in the D.C.State CourtsTrial courts at the local and state levelIntermediate courts of appealsThe state supreme courtStructure of the Criminal Justice System
CourtsState CourtsTrial courts at the local and state levelsIntermediate courts of appealsState Supreme courtsFederal CourtsDistrict courtsCircuit courts of appealsThe United States Supreme CourtStructure of the Criminal Justice System
CourtsThe Criminal courtThe judge, the prosecutor, and defense attorneysCharged with the weighty responsibility of determining theinnocence or guilt criminal suspectsStructure of the Criminal Justice System
CorrectionsProbation – Most common correctional treatmentIncarceration – Prison or JailCommunity Based CorrectionsHalfway houses, residential centers, and work-release centersParoleStructure of the Criminal Justice System (cont.)
Local, State, and Federal Employeesin Our Criminal Justice System
The President’s Commission on law Enforcement and Administrationof justice asserted that the system: Is not a hodgepodge of random actions. It is rather a continuum –an orderly progression of events – some of which, like arrest andtrail, are highly visible and some of which, through of greatimportance, occur out of public view.Two Views of the Criminal Justice Process
Professor Herbert Packer, idealized criminal justice process to anassemble line:“…down which moves an endless stream of cases, neverstopping, carrying the cases to workers who stand at fixedstations and who perform on each case as it comes by the samesmall but essential operation that brings it one stop closer tobeing a finished product, or , to exchange he metaphor for thereality, a closed file….”The formal and the informal criminal justice processTwo Views of Criminal Justice (cont.)
Discretion permits justice officials at all levels to make decisions thatwill keep the system operatingDiscretion
A model of criminal justice that assumes freedom is so important thatevery effort must be made to reduce crime so things like efficiency,speed and finality are emphasized. The system must have a highcapacity to catch, convict and dispose of offenders.Crime Control Model
A different model of the criminal justice system that assumesfreedom is so important that every effort must be made to ensure thedecisions are fair and reliable based on law and formal proceedingsDue Process Model
Crime Control ModelDeter crimeProtect citizens from crimeIncapacitate criminalsProvide quick and efficient justiceDue Process ModelProtect the individual against the immense power of the stateRehabilitate those convicted of crimesCrime Control versus Due Process: Goals of the CJ System
How Goals Can Best Be MetCrime Control ModelPromoting discretion and limiting bureaucratic red tape incriminal justice institutionsMaking it easier for police to arrest criminalsReducing legal restrictions on proving guilt in a criminal trialCrime Control versus Due Process:
Due Process ModelLimiting state power by assuring the constitutional rights of theaccusedProviding even guilty offenders with full protection of the lawAssuring that all accused criminals receive the same treatmentProtecting the civil rights of prisonersCrime Control versus Due Process (cont.)
Favored PoliciesCrime Control ModelMore policeMore jails and prisonsHarsher penalties (including increased use of the deathpenalty) and longer sentencesCrime Control versus Due Process (cont.)
Due Process ModelOpen the process to scrutiny by the media and publicAbolish the death penaltyLimit police powersLimit discretion and formalize proceduresIncrease funding for rehabilitation and education in prisons andjailsCrime Control versus Due Process (cont.)
Crime Control ModelWrongdoers are responsible for their own actionsWrongdoers have violated the social contract and can therefore bedeprived of many of the rights afforded to law-abiding citizens Due Process ModelCriminal behavior can be attributed to social and biological factorsCriminals can be rehabilitated and returned to the communityCrime Control versus Due Process: View of Criminality
Responding to TerrorismAfter Sept. 11, 2001, President Bush signed the Patriot Act into law.Key provisions of the Patriots ActCreates a new crime of “domestic terrorism”Expands the definition of “engage in terrorist activity”Allows for easier detention and removalGives law enforcement agents greater abilityReduces the amount of suspicion law enforcement agents needs
Criminal Justice TodayReality Check: Violent Crime in the StatesThe Gang ProblemThe Gun ProblemThe Illegal Drugs ProblemCrime and PunishmentGrowing prison populationDivision and Execution