Chapter 3: Criminal Justice and the Law

Introduction: The Development of Law

-"Equal Justice Under the Law," a phrase inscribed on the front of the U.S. Supreme Court building in Washington, D.C. is a part of our common language. -Justice and laws differ and change according to societal norms, cultural shifts, and technology. -Retrospective examinations of the law show the fallibility of the system and at times indicate that justice is not always achieved. -Issues surrounding reproductive rights have created many conundrums in the law. -Supreme Court justice Oliver Wendell Holmes undermined fair treatment in a case of reproductive rights when he supported the sterilization of people with developmental disabilities in his biting decision in the case of Buck v. Bell (1927). -Holmes wrote: "Three generations of imbeciles are enough." -In contrast, Supreme Court justice Ruth Bader Ginsburg, who has devoted her life and career to equal treatment under the law, has noted that all types of discrimination against women in the U.S. are ever present, despite important strides since the passage of the Civil Rights Act of 1964 and Title VII. -The law on the books and the law in action may defy logic, fairness, and compassion, though the system strives to ensure justice.

Infancy

-A defense in criminal law for children who are unable to grasp the consequence of their actions, usually under the age of 7. -Children are viewed as incapable of forming mens rea and are not held responsible for crimes. -If an 8 year old child shot her friend, it is unlikely she would be charged with manslaughter and the case would be handled in the juvenile system. -Age limits vary by jurisdiction and in most states older youth can be waived to adult court depending on the nature of the crime. -If a 17 year old shot her friend, the case may be handled in adult court and an age or infancy defense would not apply.

Utilitarianism

-A doctrine stating that an action is morally right as long as the behavior is a benefit for the majority of a society. -This is the concept of the "greatest good for the greatest number."

Retribution

-A goal of law that states punishment is deserved or morally right. -In addition, it is a goal of sentencing that seeks to punish the offender for criminal behavior.

Ex post facto law

-A law legislature passed after a crime was committed. -At the time the person committed the action, it was legal and only later was the act deemed criminal.

Misdemeanor

-A less serious crime punishable by fine, forfeiture, or short term confinement. -Though in some jurisdictions gross, aggravated, or serious misdemeanors may be charged.

Crimes also are distinguished in the law by seriousness.

-A misdemeanor is a less serious crime punishable by fine, forfeiture, or short term confinement. -Though in some jurisdictions gross, aggravated, or serious misdemeanors may be charged. -The misdemeanor manslaughter rule established doctrine that a death occurring during the commission of a misdemeanor is involuntary manslaughter. -Though many states and the Model Penal Code have abolished the rule. -In most cases, a misdemeanor is punished by less than a year in jail and a felony conviction may include a year or more in prison. -Wobblers are felony crimes that may be reduced to misdemeanors. -Hitting someone with a bottle is an assault (a felony), but a prosecutor or judge may decide the case should be charged as a misdemeanor with jail time during a plea bargaining, at the preliminary hearing, or during sentencing. -A felony offense (murder, robbery, rape) is more serious and results in more severe punishment.

Duress

-A person who is forced or coerced into committing a crime may claim duress as an excuse for criminal liability. -A person acting under duress must possess a reasonable fear of harm and the perceived harm must be death or serious bodily injury. -The use of a duress defense usually is limited to situations in which someone threatens to kill you or another person if you fail to commit the crime. -Duress would apply if someone put a gun to your head and ordered you to rob a bank or be killed.

Common law

-A type of legal system originally developed in England, whereby the courts define the law and determine how to apply the law. -This is the body of law derived from judicial opinions.

M'Naghten standard

-Also called the "right-wrong" test. -Requires a jury to consider two questions: 1) Did the defendant understand what they were doing when the crime was committed? 2) Did the defendant know that their actions were wrong?

Brawner rule

-Also called the ALI rule. -It reduced "knowing right from wrong" to the capacity to appreciate the difference between the two. -In other words, a defendant must possess an "understanding of his conduct" and be able to "control his actions."

Alibi

-An alibi defense is a claim that the defendant was not present at the scene and therefore could not be the person who committed the crime. -During a criminal trial, witnesses may testify to support the defendant's alibi. -EX: Consider a defendant who is charged with committing a burglary that occurred on Friday at 9 p.m. but claims she was at a restaurant at the time with friends. -Her lawyer may consider an alibi defense. -Her friends, the wait staff and other employees can testify regarding her whereabouts at the time of the incident. -Family members, friends, or someone close to the defendant may testify for the defendant, which means the jury must decide the veracity of the testimony.

Technology

-Computers are tools for crimes such as identity theft, child porno, surveillance, gambling, sex trafficking, and fraud. -Some computer hackers or malgrammers are focused on destruction or mayhem through the use of viruses, Trojans, worms, and Zoom bombs. -Phrauders are introducing phishing, pharming and phlawing to engage in larceny and identity theft. -Sex offenders and traffickers are also using the Internet to recruit potential victims, distribute child porno and traffic children and adults. -Voyeurs and extortionists use cameras to spy on and record people in their own homes. -Often the laws around these types of behavior are unclear or ill defined. -Adjudication of the cases involving violation of copyright laws using the online music sharing website Napster took 7 years. -Napster, now defunct, allowed millions of people to download free music. -In a related case in Norway, a student was ordered by the courts to compensate the music industry $15,900 for his Napster webpage that provided links to music files for free download. -Other technologies used in the CJS have outpaced laws and remain controversial related to privacy concerns and outdated laws or lack thereof. -Perhaps the fastest growing use of technology is found in law enforcement. -Police use Global Positioning Systems (GPS) to track suspects. -The U.S. Supreme Court held that attaching a GPS to monitor and track a car for 28 days was a search under the 4th Amendment (U.S. v. Jones, 2012). -Previously, the court's precedent from U.S. v. Knotts (1983) held that a person traveling in an automobile on public roads has no expectation of privacy. -In the Knotts case a beeper was placed in a container sold to a suspected methamphetamine manufacturer. -The surveillance and other sources allowed the police to obtain a search warrant. -The Court also held the use of a thermal imaging device to locate a marijuana grow was a violation of privacy of the defendant's home (Kyllo v. U.S). -Police body cams, closed circuit TV (CCTV) cams, drones and testing for DUI of drugs with orals swabs are emerging as technologies that can easily be misused and will need the guidance of the courts. -Courts and corrections also face rapid change as technology advances. -Courts are now using efiling for cases, debating webcasts for trials, considering electronic trials and hearing cases related to new police technology.

The insanity defense was recognized in 1843 after the attempted assassination of British Prime Minister Robert Peel and murder of his private secretary.

-Daniel M'Naghten suffered from paranoid delusions and believed Peel was involved in a conspiracy against him. -Based primarily on the testimony of medical experts, the jury found M'Naghten not guilty by reason of insanity without even engaging in deliberation. -The M'Naghten standard, also called the "right-wrong" test, requires a jury to consider 2 questions: 1) Did the defendant understand what they were doing when they committed the crime? 2) Did the defendant know that their actions were wrong? -Other standards for establishing insanity include: 1) The Durham test 2) The Brawner rule. -Under Durham, a person cannot be held criminally responsible if an unlawful act was a product of mental disease or defect. -According to the Durham test, jurors are required to determine if a defendant had a mental disease or defect and if the condition was the reason for the criminal behavior. -In response to the disagreement over what insanity means at law, the American Law Institute (ALI) test was created. -The Brawner rule (also called the ALI rule) reduced "knowing right from wrong" to the capacity to appreciate the difference between the 2. -In other words, the defendant must possess an"understanding of his conduct" and be able to "control his actions." -Public opposition to the insanity defense resulted in many states' adopting the option of a "guilty but mentally ill" verdict. -This approach allows jurors a middle ground to determine that a person committed the act but also is in need of psychological or psychiatric treatment. -Recently, Kansas abolished the insanity defense and in 2020 the U.S. Supreme Court upheld the state's decision in Kahler v. Kansas, opening the door for other jurisdictions to follow suit. -Courts also adopted the irresistible impulse test as a defense. -Under these circumstances a person is not criminally responsible if mental disease prevents the person from controlling their behavior. -In other words, a person will steal an item from WalMart even though an officer is standing directly behind them (also called the policeman at the elbow test). -A widely publicized case of irresistible impulse involved an incident with Lorena Bobbitt in 1993. -Bobbitt was acquitted of cutting off her husband's penis after he allegedly raped her. -With the severed penis in hand, Bobbitt drove to an empty field and threw the appendage out the car window. -The body part was later found by the police and reattached at the hospital. -Other defenses (or what some legal experts call excuses) for criminal behavior also are used in criminal trials. -Lenore Walker introduced battered woman syndrome (BWS) in the 1970s. -This defense was developed from Walker's work to excuse or mitigate the actions of women who kill their abusers in cases of domestic violence, despite a lack of imminent danger. -The classic portrayal of BWS was seen in the movie The Burning Bed. -In this adaptation of a true story, actress Farah Fawcett, who portrayed Francine Hughes, waited until her abusive husband was asleep and set his bed on fire. -Hughes, who had been abused by her husband for 13 years was found not guilty because of temporary insanity. -Premenstrual syndrome (PMS) has been used at trial as a defense. -During the 1970s and 1980s, several women in the UK were exonerated of violent crimes. -One woman claimed she was suffering from PMS when she crushed a former lover against a lamp post with her car. -The charge was reduced to manslaughter based on her diminished capacity. -In a U.S. case, a woman claimed she was suffering from PMS when she violently attacked her 4 year old daughter. -Ultimately, her attorney dropped the defense in exchange for a plea bargain on the lesser charge of harassment.

Civil Law

-Deals with disputes between individuals or organizations and seeks some type of compensation for the harmed party. -Developed from the Roman Empire and deals with matters of law imposed by the state rather than moral law. -Addresses many areas, including torts (personal injury), estates, contracts, defamation, and property. -A tort action may arise from intentional, negligence, or strict liability. -An intentional tort involves a party who acted purposefully to cause harm. -Negligence is the lack of action to prevent harm. -In strict liability cases the corporation, agency, or person is responsible for any harm, whether the action was intentional or negligent. -Civil cases are also presented in small claims courts with limited jurisdiction and limited monetary amounts (in California a claim must be $10,000 or less depending on the party who sues). -These courts help resolve issues between individuals and small businesses or neighbors who disagree. -Since the Orenthal James Simpson case, civil proceedings are becoming more common for victims of crime to pursue in order to receive monetary compensation or some argue, a sense of justice. -In 1994, O. J. Simpson was accused and acquitted of the brutal killing of his former wife, Nicole Brown Simpson and her friend Ronald Goldman. -At the criminal trial, a jury using the higher standard of proof beyond a reasonable doubt voted to acquit Simpson in what legal experts and scholars consider the most famous trial of the 20th century. -The families of the victims, however, filed 3 wrongful death civil lawsuits seeking redress (later consolidated into 1 case). -The burden of proof in a civil case is less cumbersome and requires only a preponderance of evidence. -The jury found that Simpson was financially liable for the deaths and awarded the families compensatory damages of over $8 million and punitive damages of $25 million. -Compensatory damages are awarded to replace the loss suffered by the victim. -Punitive damages are punishment for the wrongful action and may serve as a deterrent for future bad behavior. -Class action lawsuits are civil cases involving large numbers of victims. -In a class action suit, the court authorizes a single or small faction to represent the interests of the larger group. -Class actions are undertaken when a large corporation or industry engages in wrongdoing harmful to so many victims that individual actions are impractical. -Class actions involve drug companies, fraud in manufacturing, industries, environmental, and health care. -Class action lawsuits often involve victims of white collar crime. -Litigation in these cases presents difficult obstacles. -First, victims are difficult to identify because of their reluctance to report the crimes to authorities. -Many taken in by fraudsters fail to report the crimes because of feelings of shame and self blame. -They may also be unaware of their victimization. -Second, the victims may include organizations, businesses, and individuals, which complicates settlements. -White collar crime targets all groups regardless of age, race, ethnicity, socioeconomic status, and gender, although some evidence suggests that unsafe drugs and medical devices disproportionately victimize women. -Third, particularly in medical crimes, victims often are blamed for agreeing to the procedures or use of drugs, which may include elective cosmetic surgery or birth control devices. -The harm caused by occupational and corporate crimes frequently is resolved through class action lawsuits. -Beginning in the 1990s, hundreds or perhaps thousands of class action lawsuits were filed against big tobacco firms such as Philip Morris and R. J. Reynolds seeking billions of dollars in compensation for wrongful deaths and health related harms. -Plaintiff attorneys argued tobacco companies intentionally manipulated the amount of nicotine in cigarettes to cause addiction. -A class action lawsuit was filed against the now defunct Trump University. -Students were encouraged to invest in a 3 day seminar for $1,500. -After the initial session, attendees received a sales pitch to register for the Trump Elite Programs; the 1 year mentoring program cost $20,000. -In 2011, after an investigation by NY State, a lawsuit accused the so called university of engaging in deceptive and illegal acts. -NY estimated the university duped over 5,000 people nationwide. -In April 2018, a federal judge in CA finalized a $25 million settlement for the victims with no admission of wrongdoing by Donald Trump. -The problems in pursuing civil cases, despite the lower burden of proof are numerous. -The high cost of legal representation, the investment of time away from work and family and the idea that class action lawsuits will result in adequate compensation for losses represent major obstacles. -Settlements with federal agencies offer some sense of restitution to victims of financial crime. -In April 2013, news sources reported an agreement among federal agencies and some of the largest banks in the U.S. designed to compensate the millions of Americans who were targeted in wrongful foreclosures during the housing crisis. -The settlements place no guilt on the banks and require no admission of criminal conduct. -Bank of America, Chase, Wells Fargo, and Citigroup agreed to pay $9.3 billion in cash and in reductions of mortgage balances. -From the total settlement, only $3.6 billion will go directly to borrowers who lost their homes or faced foreclosure. -The 4.2 million victims will receive payments ranging from $300 to $125,000 as compensation.

Civil law

-Deals with disputes between individuals or organizations. -Typically seeks some type of compensation for the harmed party.

Administrative Law

-Derives from a legislative body's delegation of authority over commissions or boards to regulate activities controlled by written statutes. -The Workers Compensation Act is regulated and enforced by a state's division of workers compensation through administrative rules and regulations that it promulgates pursuant to the administrative authority granted by the legislature. -Administrative statutes enumerate the legal rules and establish agencies to adopt and enforce the regulations. -Federal agencies are tasked with ensuring compliance with legislative enactments. -Agencies such as the Occupational Safety and Health Administration, the Food and Drug Administration, the Equal Employment Opportunity Commission, the Environmental Protection Agency, and the Federal Trade Commission are given authority to develop rules and regulations to ensure compliance with the law. -Licensing agencies deal with the regulatory enforcement of professional licensing requirements such as those for psychologists, social workers, dentists, chiropractors, and real estate brokers. -In some states, statutes may prohibit a person with a felony conviction from receiving any type of license. -Other states have statutes that may take the felony into consideration, though the conviction must not be used as the sole reason for licensure rejection or revocation. -An administrative law judge can rule that a car salesperson who was convicted of selling a machine gun to an undercover officer pretending to be a collector can be licensed because the felony is not related to defrauding customers.

Durham test

-Determines if a criminal act was a product of mental disease or defect. -Requires jurors to determine if a defendant had a mental disease or defect and if the condition was the reason for the criminal behavior.

Automatism

-Dreamlike states, posttraumatic stress, or severe mental disability may result in a criminal action that is unavoidable. -This type of defense may include states in which a person's muscle control is lost and they act with no consciousness. -A sleepwalker who shoots at someone while in a trance has no control over his actions or is in a state of mind in which he failed to recognize that his actions were wrong or illegal. -Because of the mental disability that often accompanies this defense, many states distinguish between noninsane automatism and insane automatism.

History of Law

-Ideas about appropriate behavior date back thousands of years, with codes of conduct and definitions of deviance traced to the Bible, the Code of Hammurabi, the Mosaic Code of the Israelites, and the Roman Twelve Tables. -Codes and edicts throughout history influence what we currently deem criminal and deviant behavior. -The widely told biblical story of Cain and Abel is the 1st well known case of homicide. -Cain killed his brother Abel in anger after God rejected his crop sacrifice. -God favored Abel's animal offerings and Cain was sent into exile as punishment. -The Code of Hammurabi, the oldest known legal code, established 300 provisions for family, trade, real property, personal property, and labor. -The code included civil matters such as marriage and divorce and criminal laws covering murder and arson; all with severe, though at the time considered proportional consequences: -If a man has accused another of laying a kispu [spell] upon him, but has not proved it, the accused shall go to the sacred river, he shall plunge into the sacred river, and if the river shall conquer him, he that accused him shall take possession of his house. -If the sacred river shall show his innocence and he is saved, his accuser shall be put to death. -If a man has bought or received on deposit from a minor or a slave, either silver or gold, male or female slave, ox, ass, or sheep, or anything else, except by consent of elders, or power of attorney, he shall be put to death for theft. -If a woman has hated her husband and has said, "You shall not possess me," her past shall be inquired into, as to what she lacks. -If she has been discreet and has no vice and her husband has gone out and has greatly belittled her, that woman has no blame, she shall take her marriage portion and go off to her father's house. -If as one has struck his father, his hands shall be cut off. -The Code of Hammurabi, according to some experts, was in use for 1,500 years. -In addition to establishing social order and designating punishment, the code endorsed a patriarchal society in which women were treated as property and afforded fewer rights than men. -Throughout history, illegal behavior has resulted in harsh and strange punishments. -Michel Foucault, a French philosopher, noted the bizarre nature of punishment in his book Discipline and Punish. -Foucault described the case of Damiens, who was found guilty of killing his parents. -Damiens was "taken and conveyed in a cart, wearing nothing but a shirt, holding a torch of burning wax weighing two pounds" and moved to a plaza where "the flesh will be torn from his breasts, arms, thighs, and calves with red hot pincers, his right hand, holding the knife with which he committed the said parricide, burnt with sulphur and on those places where the flesh will be torn away, poured molten lead, boiling oil, burning resin, wax and sulphur melted together and then his body drawn and quartered by four horses and his limbs and body consumed by fire, reduced to ashes." -Methods of punishment were gruesome and included acts such as drowning, burying alive, beheading, stoning, whipping, mutilating, and branding offenders. -Barbaric punishments and strange trials were common in early world history. -People accused of crime faced trial by ordeal. -Ordeals were a primitive form of trial in which the outcome rested in the hands of God to determine guilt or innocence by protecting an innocent person from some or all the consequences of the test. -Placing a heated piece of iron in the accused person's hand was called trial by fire. -The outcome was determined by how quickly the accused healed. -3 days after the trial an examination was conducted to check for festers. -If sores were present from the burning, the person was considered guilty. -An ordeal by water involved binding the accused and throwing the person in a lake. -Strangely, if the person sank, they were presumed innocent, though likely drowned. -If the accused floated, they were considered guilty. -Trials by water created a no win situation and established a presumption of guilt. -The trials and punishments would be considered cruel and unusual by our standards.

Criminal Defenses

-Ignorance of the law is no defense for wrongdoing. -Law enforcement and courts rarely accept the excuse "I didn't know it was illegal." -Mistake of law, however, may be used as a legitimate criminal defense. -A defendant may claim a law was unpublished or unknown to the public. -Also, a mistake of fact may be used as a defense if the mental state necessary to commit a crime is absent. -There are legitimate defenses at law, some more persuasive than others.

Mistake of Fact

-Ignorance of the law is not a defense, although ignorance of the facts may be used as a defense, particularly if used in conjunction with another defense that the actions were justifiable. -A defendant may argue they had no intent to commit a crime and the resulting offense was a misunderstanding.

The specific form of DUI elements varies by state (and in some cases by county).

-In New Mexico, the prosecutor must demonstrate that the driver or operator of the motor vehicle was previously convicted 3 times for DUI. -In contrast, in Texas, the prosecutor need demonstrate only that the driver or operator of the motor vehicle was previously convicted twice. -In FL, DUI elements include operating a motor vehicle, being under the influence of alcohol or a controlled substance and the extent of impairment. -States vary on the elements of a felony DWI, though most consider the level of blood alcohol concentration, bodily harm to another, prior convictions, the presence of children in the vehicle, and driving on a restricted, suspended, or revoked license. -Some states apply DUI laws to drunk biking and offenders may face the same penalties as people driving cars, trucks, or motorcycles. -If a state statute applies to "all vehicles" then a court may determine bicycles are included in the category. -CA law includes cyclists which means that intoxicated riders may be charged with a DUI. -Driving under the influence of marijuana has caused numerous public safety problems and raised difficult policy issues. -The detection of alcohol for a suspected drunk driver is easy to determine using a breath analyzer. -Marijuana impairment is more difficult to detect and is based on the amount of THC in the blood which is the psychoactive component. -In some cases, states have arbitrarily determined the amount of THC that indicates impairment, 5 nanograms per milliliter based on blood tests. -But because of the way the drug metabolizes it can remain in an individual's body after the impairment phase. -The use of oral swabs may be 1 solution to determining if a driver is impaired, though the validity and reliability of these devices is still being researched. -At least 3 different approaches have been identified: 1) Zero tolerance 2) Per se 3) Permissible inference. -Zero tolerance means any amount of the drug will result in an arrest. -Per se laws make a legal distinction between connecting signs of impairment and substance use and establishing that the officers' observations match the suspects' drug concentration levels. -Permissible inference is the determination of how much THC in the blood results in impairment, which is just a suggested concentration. -Marijuana affects people differently and finding a standard for driving under the influence of drugs (DUID) is challenging. -These types of DUIDs are complex and many states laws for DUI may need to be amended as technology advances.

Legal Defenses

-In a criminal trial a defendant may present an excuse or a justification for committing a crime. -An excuse for a crime provides mitigating factors that explain why the person engaged in criminal activity and relates to the status or capacity (or lack thereof) of the accused. -An event in which someone forced you to commit a crime may be excused by a duress defense. -Justification refers to the quality of the act. -An easy method of distinguishing between an excuse and a justification is to remember that insanity is an excuse ("Evil spirits commanded me to kill") and self defense is a justification ("I was protecting my family by shooting the intruder"). -Legal defenses include: 1) Alibi 2) Consent 3) Duress 4) Infancy 5) Necessity -Many types of defenses have been used in criminal cases and in some, critics have labeled them abuse excuses, although the latter's perspective is controversial. -Defenses to criminal acts may include legitimate, more recognizable claims: 1) Lawful capacity of office 2) Legal duty 3) Provocation 4) Legitimate purpose. -Specific criminal defenses, such as the Twinkie defense, the Mario Brothers video game made me do it and the idiot defense have been used but are rarely successful.

Restraint

-In some cases, defendants may claim that external forces prevented them from controlling their actions. -Consider the case of a driver who runs over several people because a landslide or tsunami pushes the car into a crowd.

Outdated Laws

-In some instances, the reach of criminal law overextends its utility, particularly related to an outdated or inappropriate court decision or statute. -Laws are difficult to change, especially when precedent has been established. -Plessy v. Ferguson established the separate but equal doctrine that upheld the constitutionality of state laws on racial segregation. -The Plessy case was precedent until 1954 when the Supreme Court issued a ruling in Brown v. Board of Education and unanimously determined that racial segregation violated the equal protection clause of the 14th Amendment. -An Internet search of outdated and strange laws will result in numerous unbelievable examples. -EX: In Iowa, children's lemonade stands are illegal. -EX: In New Orleans, the municipal code prohibits the "business of fortune telling, astrology, or palmistry to settle lovers' quarrels." -Other examples include limiting the time of bingo games, prohibiting chickens from crossing the road, forbidding weddings between cousins under the age of 65, and making it illegal to sell your eyeballs. -One commentator noted that several outdated laws were written to limit the rights of women. -EX: In Cleveland, showing any part of a woman's breast is illegal. -Several states still have laws on the books that make it illegal for an unmarried man and woman to engage in sexual intercourse. -The U.S. Supreme Court decision in Lawrence v. Texas, however, effectively decreed the end of all morals legislation. - The "Free the Nipple" movement resulted in a court decision that now allows women in 6 states to be topless in public.

Mens rea

-Latin for "guilty mind" -Used in court to prove criminal intent.

Stare decisis

-Latin for "let the decision stand" -Meaning that judges must respect precedents set in previous court cases.

Lex talionis

-Latin for "the law of retribution" -Referred to as "an eye for an eye." -This philosophy calls for retaliation in which the punishment received should fit the crime committed.

Actus reus

-Latin term meaning "guilty act" -Used to indicate the physical act of the crime. -Usually paired with mens rea to show criminal liability.

Chapter Wrap-Up

-Laws define and delineate appropriate and inappropriate behavior by citizens, police, attorneys, and judges. -The goal of the law to provide equal and just treatment is an ideal that the U.S. legal system strives to achieve. -Humans, however, are fallible and influenced by social context, technological changes, and individual or group prejudices. -Ultimately, under the rule of law, good decision making wins out over discrimination and injustice. -Reform efforts are continuously under way to make the system better.

Ex Post Facto Laws

-Laws related to sex offenders have evolved to focus on lifelong retribution. -An example of this is sex offender registry laws. -Joshua Paul Benjamin was accused of sexual assault against a minor. -Harsher laws for sex offenses were enacted and became retroactive. -Such laws (ex post facto laws) change the legal consequences of behaviors occurring prior to the enactment of the law. -Joshua's run in with the law occurred years before harsher sex offender laws were in place. -Given the nature of the crimes he is accused of, they apply to him nonetheless. -Though ex post facto laws are unconstitutional at both the state and federal levels, some sex offender registry laws are not considered ex post facto. -The Adam Walsh Child Protection and Safety Act of 2006 enacted new registration requirements on convicted sex offenders and applied the requirements to individuals who committed the crimes before the law was enacted. -In Smith v. Doe, the Supreme Court ruled that posting sex offender registry info on the Internet is not a case of an ex post facto law because in theory, they are not designed as punishment. -Many practitioners and legal experts believe that sex offenders cannot be cured, which they say justifies severe legal action, long term incapacitation and lifetime registration.

Elements of a Crime

-Legal definitions of a crime delineate certain elements, including: 1) Actus reus (the act) 2) Mens rea (the intent) 3) Causation -These elements must be proved by the prosecution beyond a reasonable doubt and found to exist by the jury in order to convict the accused. -Substantive law might state that a person commits the crime of 1st degree murder by causing the death of another person after deliberation with the intent to kill that person, although specific elements vary by state. -The federal government also has substantive law defining 1st degree murder with different elements. -Typically, the accused must be found to have engaged in the act and committed the act and both elements were present at the same time. -Additionally, proximate cause of the injury must be established. -That is, the state must show that the harm was caused by the defendant's actions. -In addition to the 2 basic elements of act and intent, prosecutors trying to prove their case beyond a reasonable doubt also contend with concurrence, harm and attendant circumstances. -Concurrence requires that the guilty act and mind occurred simultaneously, referred to as temporal. -In some instances motivational concurrence occurs, which indicates that the guilty mind, or mens rea, motivated the resulting action. -Additionally, causation and harm are connected to the bad results. -EX: Consider a bank robber who draws a gun on a teller and demands money. -An hour later the bank teller dies of a heart attack. -A prosecutor may argue the trauma of the robbery and the gun threat caused the employee to die despite the time difference between the actual criminal offense and death. -An additional element may be attendant circumstances. -This element includes external factors surrounding the case, such as the time when the crime occurred.

The Success of the Insanity Plea

-Many believe the insanity defense is abused in the courtroom. -In reality, use of the insanity defense is rare. -The majority of research suggests the defense is used in less than 1% of felony cases. -Additionally, insanity pleas rarely are successful. -Highly publicized trials give the false impression that the insanity defense is an effective way to avoid punishment. -Other defenses such as intoxication and diminished capacity are used as mitigating factors in sentencing. -Defense lawyers will argue factors that interfered with a person's ability to appreciate their actions should result in a more lenient sentence. -They can also be used as a defense if the defendant contends that the intoxication or other mental state prevented them from forming the intent to commit the charged offense.

Self-defense

-Means that a person is acting to protect themselves (or a 3rd party) from harm with a reasonable use of force. -This claim may be raised when a store clerk shoots an armed robber or a homeowner kills an intruder. -The use of deadly force for purposes of self defense requires a reasonable belief of imminent death or bodily harm. -A person generally has a duty to retreat in public spaces, meaning that they must avoid a confrontation or conflict when the opportunity presents itself. -Some states have established the castle doctrine, which no longer requires the duty to retreat.

Cole memo

-Named after former deputy attorney general James Cole. -Outlined guidelines for states related to marijuana, including use by minors, DUI and out of state trafficking.

Double Jeopardy

-Once a person is tried and acquitted of a criminal act, they cannot be taken to trial again. -Double jeopardy prevents a prosecutor from charging the person with a different offense for the same action or for behaviors that were not illegal at the time the act took place. -In the case of O. J. Simpson, who was acquitted of killing 2 people, even if new evidence were discovered that he committed the crimes, under the double jeopardy defense he could not be tried again.

Necessity

-Recognized under common law. -This defense argues that a person is forced into a no win situation and must pick the "lesser of two evils." -Cases in which necessity may be raised as a defense include trespassing on private property to save a person's life or a person escaping from prison to avoid being killed by cellmates.

Criminal law also includes statutes passed by the U.S. Congress or state legislatures.

-Statutory law is written and enacted by the legislature. -A statute provides penalties for tax evasion or price fixing. -Statutes contain procedural and substantive law and in some cases may address legal procedure. -In some jurisdictions, courts have passed rules of criminal procedure allowing jurors to ask questions during criminal trials. -While this is a common procedure in civil court, defense and prosecution lawyers object to jury participation in criminal trials. -Ordinances are municipalities' statutes and include the written legislative enactments of counties, cities, and towns. -Ordinances are limited and cannot invade the providence of the state in larger concerns. -Driving under the influence is a statewide concern and municipal ordinances are limited statutes enacted by smaller jurisdictions. -Ordinances deal with matters of local concern such as zoning, disturbing the peace, dogs without leashes, and traffic control within the municipality. -Case law is based on previous court decisions (precedent). -The legal principle of stare decisis, Latin for "let the decision stand," establishes prior case decisions as binding precedent. -The important, though at times hindering aspects of precedent are portrayed in landmark cases decided by the U.S. Supreme Court. -A landmark case establishes precedent that markedly changes the interpretation of the law or establishes new case law. -In 1857, the Supreme Court's decision in the Dred Scott case found that people of African descent were neither U.S. citizens nor protected by the Constitution. -This precedent held until the 14th Amendment was adopted in 1868, which established equal protection under the law.

A New Age of Reason

-The Age of Enlightenment brought new ways of thinking in numerous fields and many of these ideas were thoughtful reactions of outrage against the barbaric system of law and punishment just before the French Revolution in the late 18th century. -The Classical School and associated theorists critiqued the existing approach to law and punishment and sought reform in the system. -Cesare Beccaria became famous for his persistence in transforming the legal system despite attacks from traditional jurists and religious zealots who believed he was an enemy of Christianity, a wicked man, and a poor philosopher. -He received his law degree at the age of 20 and his most famous tome, On Crime and Punishment, was published in 1764 when he was 26 years old. -No stranger to arbitrary punishments, Beccaria was placed under house arrest for 3 months because his father objected to the woman he wanted to marry. -The Catholic Church condemned his work until 1962. -Beccaria emphasized rationalism, intellectualism, and humanitarianism. -His reform of the system focused on 3 major premises: 1) He believed that free will, logic, and rationality were central in decisions to commit or not commit crimes. 2) He promoted the idea of deterrence and establishing punishments proportional to the crime. 3) He asserted it is better to prevent crimes than to punish. -Specific and general deterrence are important foundations for prevention and punishment in our CJS. -Specific deterrence is directed toward the individual offender to stop bad behavior which may be accomplished through restitution or incapacitation. -General deterrence is based on the perceived negative consequences of being caught and thus, the threat of punishment will inhibit criminal behavior in all members of society. -Beccaria believed in the importance of the social contract. -In other words, citizens should be willing to sacrifice a minimum amount of liberty to help prevent anarchy and chaos. -His 3 principles of punishment are widely cited. -To be effective, punishment must be certain, swift, and proportional. -Other basic principles put forth by Beccaria include: 1) Laws should maintain the social contract. 2) Legislators should create laws. 3) Judges should impose punishment in accordance with the law. 4) Judges should not interpret the law. 5) Punishment should be based on the pleasure/pain principle. 6) Punishment should be based on the act, not the actor. 7) Punishment should be determined by the crime. 8) Punishment should be prompt and effective. 9) All people should be treated equally. -Capital punishment should be abolished except for a few crimes. -Jeremy Bentham stressed rationality in the legal system and opposed primitive and brutal methods of punishment. -Bentham, born in London, could read Latin at the age of 4. -He studied law at Oxford when he was 12 years old. -He proposed that all citizens should have their names tattooed on their wrists for facilitating police id. -In one of Bentham's more astonishing mandates, he requested that after his death his body be dissected and put on display at University College London. -Bentham still sits in the hall, though his head has been reconstructed in wax. -Despite certain odd proclivities, Bentham focused on important concepts of fairness and rationality. -He argued for a legal system designed to provide consistent and equitable approaches. -He espoused views that punishment could serve as deterrence and wrote of the felicitous or hedonistic calculus. -He believed people would weigh the costs of their actions to maximize pleasure and minimize pain. -He also grounded his work in the concept of utilitarianism, the greatest good for the greatest #. -Bentham's ideas, though often unrecognized, are ever present in the CJS and law today. -Bentham's panopticon prison design serves as a blueprint for current incarceration facilities. -His ideas about using tattoos as a means of id also came to fruition. -Though not mandatory, tattoos now are commonly used by law enforcement to facilitate id. -A recently convicted offender, nicknamed the Band Aid robber was sentenced to 520 years. -His moniker resulted from the bandages he used on his face and hands to cover tattoos that might have revealed his identity to the police. -Police easily recognize the many gang tattoos that represent unique symbols of membership or past behavior. -A spider web indicates the wearer has served time in prison. -A tear drop tattoo under the eye can be open, indicating the person has killed someone or closed to show the loss of a friend or relative. -Bentham's influential ideas related to reform and practices in the CJS have resulted in enduring practices. -Classical theorists focused on free will and rational choice with an overarching goal of reforming the legal system. -In historic and current theories, many scholars argue the decision to engage in crime is a rational choice in which the offender weighs the benefits versus the cost. -Overall, why people commit crime matters little in the law, except in defense arguments. -Criminological theories of why people commit crime, if biological, psychological, or sociological are beyond the intricacies of legal versus illegal behavior used by the CJS, although they play a major role in understanding all types of behavior.

Common Law

-The U.S. legal tradition arises from English common law. -Common law in Britain was not developed for the common man but served as a tool for English noblemen. -The common man had no rights at law. -Common law was developed by case law; courts wrote their decisions in opinions that were applied to subsequent similar cases. -Later, as common law developed along with new governments, what existed was codified or written as statutes by legislative bodies. -Critical legal study scholars argue laws continue to be used by the rich and powerful to control the behavior of the lower classes. -William Chambliss offered an analysis of the rule of law serving the powerful in his article on vagrancy. -Chambliss traced one of the 1st uses of vagrancy laws back to the 14th century. -Landowners were faced with a severely reduced labor force after the Black Death, a plague that occurred in England in the mid 1300s. -In order to rectify the situation, a law was passed that made it illegal to refuse work or quit a job. -Landowners depended on having a supply of cheap laborers. -Then in the 16th century the law shifted to help the merchant class control criminal activity. -Vagrancy laws focused on "rogues," "vagabonds" and "highwaymen" who preyed on citizens transporting goods. -The punishment for vagrancy became harsher, including whippings; later the death penalty was applied. -According to Chambliss, "shifts and changes in the law of vagrancy show a clear pattern of reflecting the interests and needs of the groups who control the economic institutions of the society." -Other scholars posit that the same shift in law occurred in the U.S. against Black slaves. -Randall Kennedy argued "When white employers faced labor scarcities, police would often arrest unemployed blacks to create pools of cheap, exploitable labor." -Legal critics argue the law discriminates against minority groups and retrospective analyses suggest this occurs with some frequency. -The history of legal decisions enslaving African Americans and disparate sentencing for crack cocaine versus powder cocaine are powerful examples. -The law, however, changes to reflect social norms and can be corrected by legislators and judges. -In 2010, Congress passed and President Obama signed, new legislation to address the disparity that largely targeted African Americans who were serving much longer sentences for the possession and distribution of crack cocaine. -In 2001, sentencing guidelines were changed to provide for harsher punishment for white collar offenses. -The lengths of many prison terms for financial crimes are now comparable with those for violent offenses. -Sentencing in the past 5 years for financial and environmental crimes has been far more punitive compared with the past. -Bernard Madoff received a 150 year prison sentence after he was found guilty of running a Ponzi scheme and defrauding investors of billions of dollars.

Federal and state constitutions give legislators the authority to adopt and enact substantive criminal laws. In many states, a prosecutor must prove the elements of the crime in order to charge an individual with felony driving while intoxicated (DWI or DUI) rather than a less serious misdemeanor. The elements of the crime may include the following:

-The accused was driving or operating a motor vehicle. -The vehicle was on a public roadway. -The driver or operator was intoxicated. -The driver or operator has prior convictions for driving while intoxicated. -The driving resulted in injury to another party. -The driver violated a statute such as speeding or running a traffic light. -The bodily injury must be proximately caused by the driver's violation of the statute.

Consent

-The defense of consent almost always requires the testimony of the victim, because the victim gave permission to the defendant to act in an illegal manner against them. -Courts recognize this defense if the act did not involve serious bodily injury, if there is acceptance of the risk, and if the conduct led to a beneficial result. -The defense is legitimate in cases of sporting events where excessive physical actions may result in death or injury, such as boxing and hockey. -Consent is not a valid defense in mercy killing or assisted suicide in most states. -In murder suicide, if 1 party survives, they cannot use the consent defense.

Procedural law

-The idea put forth in the Constitution that federal law is the "supreme law of the land." -In other words, usually federal law overrides conflicting state laws.

Key Points

-The law and CJS are based on principles of: 1) Fairness 2) Justice. -Free will and rational choice were emphasized during the Age of Enlightenment. -The primary goals of the law are: 1) Deterrence 2) Retribution 3) Restitution 4) Rehabilitation 5) Incapacitation. -Criminal and civil law have developed from many sources including: 1) English common law 2) Legislative statutes 3) Constitutions 4) Ordinances -Landmark decisions by the U.S. Supreme Court clarify due process rights under the Bill of Rights and establish legal precedent. -Actus reus and mens rea are important elements in proving a defendant committed a crime in a criminal case. -Misdemeanor crimes are less serious compared with felonies. -Defenses used at trial include: 1) Justification 2) Insanity 3) Mistake of fact 4) Mistake of law 5) Intoxication 6) Duress 7) Entrapment 8) Infancy

Goals of the Law

-The law has 4 primary goals: 1) Retribution 2) Restitution 3) Rehabilitation 4) Incapacitation. -Deterrence (both specific and general) may also be considered a goal because the law is created to prevent people from committing crimes by using the threat of punishment. -In most cases, the goals of law are associated with deterrence. -Offenders placed in prison or drug treatment facilities are under the best of circumstances, deterred from committing additional crimes. -Retribution may be best described as an "eye for an eye, a tooth for a tooth" (lex talionis). -In many sentencing decisions, offenders are court ordered to pay fines (restitution) to help compensate victims. -Restitution for the harm committed by an offender is essential to notions of justice. -Sentencing to specialty courts is a means of providing treatment or other forms of rehabilitation. -Drug courts are popular methods of offering treatment in legal procedures. -Overseen by the judiciary, specialized courts help nonviolent offenders recover from drug and alcohol addictions and avoid further entanglement with the law. -Incapacitation is based on the philosophy that removing the offender from society protects citizens from further victimization. -Incapacitation serves as a method of specific deterrence.

Precedent

-The legal principle of stare decisis. -Latin for "let the decision stand" -Establishes prior case decisions as binding precedent.

Code of Hammurabi

-The oldest known legal code. -Established 300 provisions for: 1) Family 2) Trade 3) Real property 4) Personal property 5) Labor

Constitutional Law

-The other major source of law is constitutional law, which establishes the fundamental rules and relationships among the judicial, legislative, and executive branches at the state and federal levels. -This large area of law deals primarily with governmental powers, civil rights, and civil liberties. -Interpretations of the U.S. Constitution and each state constitution by the judiciary have established precedents that apply and explain the meaning of provisions and principles in constitutions. -The courts uphold state and federal laws as constitutional if they adhere to written provisions and previous judicial interpretations.

The Rule of Law

-The rule of law mandates the application of known legal principles in governmental decision making and establishes the premise that every citizen should obey laws. -Without the rule of law as a framework for a legitimate legal system, government officials might become dictators and citizens might engage in acts that cause great harm. -The World Justice Project identified 4 principles associated with the rule of law: 1) Members of the government are accountable under the law. 2) Laws must be clear, publicized, stable, and fair, and they must protect fundamental rights. 3) Laws are enacted, administered, and enforced in a fair and efficient manner. 4) Access to justice is denied to no one. -To achieve the ideals set forth in the concept of the rule of law, scholars have identified basic principles to guide behavior by citizens and the government: 1) Laws must be prospective rather than retroactive. 2) Laws should remain stable. 3) Rules and procedures for making the law need to be well defined. 4) The judiciary must remain independent of outside influences and political agendas. 5) Discretion in the system must be used fairly. -The rule of law means many things but in short it is envisioned as a legal concept that sets boundaries for the government to establish stable, clear rules, regulations, and statutes. -Without the rule of law, the government might find that a particular act you engaged in yesterday is illegal today and therefore deserving of punishment. -The U.S. Constitution provides for individual rights and freedoms that might otherwise be placed at risk and subject to arbitrary governmental laws. -The principle of federalism developed as an important framework for the U.S. Constitution and other governing bodies to ensure justice in the legal system. -Federalism refers to the relationships between the highest level of government to the lowest on how power and authority is divided to ensure federal, state, and local municipalities can function as 1 nation with shared responsibilities. -The 3 branches of the federal government (executive, legislative, and judicial) serve as a method of checks and balances to prevent the excessive concentration of power in any one entity. -Although a specific reference to the word federalism is absent from the Constitution, The Federalist Papers, published in 1787, written by Alexander Hamilton, James Madison, and John Jay, emphasized the ratification of the Constitution would uphold the principle of popular sovereignty. -Articles 1, 2, and 3 give certain powers to the 3 branches of the federal government. -The 10th Amendment allows states to maintain powers not expressly mentioned in the Articles. -The implementation of this concept has waxed and waned but beginning in the 1990s several U.S. Supreme Court decisions reinforced the power of the states. -One example is the decision in United States v. Lopez (1995). -The Gun Free School Zones Act made the possession of a firearm in an area a person may reasonably believe is a school zone a federal offense. -The Court, however, disagreed and ruled that Congress had exceeded its authority. -The school shooting at Marjory Stoneman Douglas High School (MSD) in Parkland, Florida, prompted the hashtag #neveragainMSD which exemplifies the serious issues associated with guns in school zones. -The protest movement has accelerated the controversies of guns on school campuses at the local and federal levels. -In 2017, Arkansas and Georgia passed legislation to allow students and faculty to carry firearms which before 1995 was within the power of the federal government to decide. -Changes in the law through legislation or statutes are complex but establish who decides what might be right or wrong at different levels of government. -The U.S. Constitution is the supreme law that outlines the powers and limitations of government. -Importantly, the Constitution protects citizens' fundamental rights. -The Constitution developed from problems associated with the Articles of Confederation. -In 1787, 39 of the 55 delegates who gathered in Pennsylvania signed the document. -Several refusals to sign were related to the absence of a bill of rights and the continued practice of slavery. -Ratification (approval) of the document was then sent to the states. -The first 12 amendments were submitted to Congress in 1789 and the first 10 eventually became the Bill of Rights. -The importance of the Constitution in the development of the U.S. has an interesting history and this document continues to protect the freedoms and rights that guarantee fairness and justice. -Additionally, all states have a constitution in place and these are viewed at a level below the U.S. Constitution. -State constitutions vary in length and content. -States also may guarantee civil rights that are absent from the U.S. Constitution.

Ethical Issues: The Use of Marijuana and Working in the Criminal Justice System

-The sale of recreational and medical marijuana is creating novel legal and ethical issues. -As of January 1, 2014 when the 1st retail marijuana shop opened in Colorado, anyone 21 years or older is allowed to purchase pot from a licensed store without fear of citations or arrest, although public use is still banned. -In 2019, Colorado sales of recreational, medical, edible, and concentrate products reached a record high of $1.7 billion. -Although the marijuana industry offers a wide variety of employment opportunities and in some cases the jobs are quite lucrative, positions in the field may limit opportunities to work in the CJS. -Previous use of marijuana is a contentious matter when applying for jobs in the CJS. -The standards for law enforcement agencies vary. -In some PD's a job candidate may be disqualified if they ever smoked marijuana while in others it depends on the # of times a drug has been used across the life span or if the last incident was 1 to 5 years ago. -Many PD's consider the use of marijuana a reason for disqualification as long as it remains a federal crime. -Also, an employee's use of medical or recreational marijuana while on the job gives an employer the right to fire the user, according to the Colorado Supreme Court.

Insanity

-This defense has a long and controversial history in criminal trials. -Considering a defendant not guilty by reason of insanity is based on the belief that a select group of people who suffer from mental illness are unable to control their actions to such an extent that they cannot be held accountable for their crimes. -These individuals deserve treatment rather than punishment, though insanity is a legal, not medical, term.

Intoxication

-This defense may be voluntary or involuntary. -Involuntary intoxication may result when a person is forced to consume or inject alcohol or drugs or unknowingly takes a substance. -Involuntary intoxication may occur as a result of side effects from a legal prescription. -Numerous cases of violent behavior have been linked to psychotropic drugs such as Zoloft, Prozac, and Luvox. -Voluntary intoxication may be used to excuse certain actions. -A defense attorney can argue that the accused was so drunk and high that they lacked the capacity to form mens rea. -Many states are reluctant to recognize the voluntary intoxication defense and have eliminated this option. -A defense of getting drunk, blacking out and committing murder is unlikely to win an acquittal in a criminal trial.

Entrapment

-Typically occurs when a law enforcement officer convinces someone whether through trickery or manipulation to commit a criminal act they would not otherwise have committed. -The most famous case involved John DeLorean who designed the car with a stainless steel body and gull wing doors that was featured in the Back to the Future movies. -DeLorean, who was experiencing serious financial problems, was arrested after undercover agents presented him with the opportunity to distribute cocaine. -DeLorean, who had no prior criminal record, was viewed as susceptible to the offer to traffic drugs because he was desperate to save his company. -He was found not guilty.

The Rights of Victims

-Voters in CA approved the Victims' Bill of Rights Act of 2008 to ensure victims' rights and due process. -This bill of rights (also known as Marsy's Law) was named in honor of Marsalee Nicholas, a student at the University of CA. -In 1983, she was stalked and killed by her ex boyfriend. -Only a week after her murder, her mother, Marcella Leach encountered the accused murderer in a grocery store. -At the time, law enforcement and the courts had no legal obligation to keep the victim's family informed of the status of the accused. -Unbeknownst to the family, Marsy's former boyfriend had been released on bail. -The rights of victims are now widely recognized in the law. -Proponents of the amendment argue crime victims deserve fundamental rights, some of which are ignored in statutes and state constitutions. -Additionally, justice can be better served by the participation of victims in the CJS.

White-Collar Crimes

-White collar criminals are often charged with mail fraud, wire fraud, or tax evasion when prosecutors lack specific laws related to a certain case. -This legal maneuver is also seen in organized crime cases. -EX: Al Capone, a mobster, likely killed or ordered the execution of many people during his criminal career, but in the end he was convicted of tax evasion. -EX: Martha Stewart was believed to have engaged in insider trading over the sale of her ImClone stock but was never charged with that offense. -Instead, she was convicted of obstructing justice and making false statements. -EX: Doctors in CA who allegedly misused women's eggs in fertility treatments were charged with wire fraud, mail fraud and insurance fraud. -In 1995, when the case was discovered, CA had no written laws related to the theft of human eggs. -In many cases, technology outpaces legal mandates.

More recent legal trends have moved toward including victim rights under the law. Historically, victims had few legal rights in the CJS. Currently, most states have created statutes defining basic rights and protections for crime victims, including:

-right to attend CJ proceedings -right to apply for compensation -right to be heard and participate in CJ proceedings -right to be informed of proceedings and events in the process -right to protection from intimidation and harassment -right to restitution from the offender -right to prompt return of personal property seized as evidence -right to a speedy trial -right to enforcement of these rights

In 2013, the House of Representatives Committee on the Judiciary held a hearing on a proposed Victims' Rights Amendment (VRA). The VRA would overcome inadequacies in current state and federal legislation to provide the following:

-right to fairness, respect, and dignity -right to reasonable notice of -right not to be excluded from public proceedings related to the offense -right to be heard at any release, plea, and sentencing -right to notification of release or escape of the accused -right to due consideration of the crime victim's safety and privacy -right to restitution

Elements of 1st degree homicide under federal law:

1) Defendant unlawfully killed. 2) Defendant killed with malice aforethought. 3) Killing was premeditated. 4) Killing occurred at the known location. -According to these elements the prosecution must show the accused killed with extreme disregard for human life and planned or deliberated in order to form the intent to kill. -1st degree murder is distinguished from 2nd degree murder, which lacks the element of premeditation. -Manslaughter lacks the element of premeditation and requires that the intent was not to kill but to harm. -The police investigated but were unable to quickly identify an offender in the attack on Jennifer Schuett. -If apprehended, the offender could face a multitude of charges, including attempted capital murder, kidnapping, and rape. -During the trial, the burden of proof would be on the prosecution to show that all the elements of the 3 crimes were present. -In the Texas Penal Code, under whose jurisdiction the Schuett case occurred, capital murder is the only crime that allows for the death penalty. -The elements of a crime vary and depend on the wording of the specific statutes that may apply. -In 1978, CA passed the 1st hate crime law and 45 states now have some version of a hate or bias motivated criminal statute. -Many of the laws used the federal legislation as a model. -The federal legislation was expanded in 2009 when President Obama signed the Matthew Shepard and James Byrd Jr. Hate Crime Prevention Act (HCPA or Matthew Shepard Act; U.S.C. § 249). -The primary intent of hate crime laws was to establish protection for race, ethnicity, and religion. -The HCPA and many states later included biased categories such as sexual orientation, gender, and disability. -Only 30 of the states with criminal laws delineated sexual orientation as a protected status in their hate crime laws. -Hate crime laws may address stand alone crimes or sentencing enhancement. - In CA, under Penal Code Section 422.6, the stand alone crime includes violations of civil rights and destruction of property based on group or individual characteristics. -CA Penal Code Sections 422.7 and 422.75, the crimes of assault and vandalism must include motivation that the victim falls under 1 of the protected groups. -In contrast, other states may exclude sexual orientation as an element of the law. -Under Alabama's hate crime laws, crimes motivated by anti LGBTQ bias cannot be prosecuted.

Battered woman syndrome

A criminal defense developed to excuse or mitigate the actions of women who kill their abusers in cases of domestic violence despite a lack of imminent danger.

Felony

A criminal offense (murder, robbery, rape) that is more serious and generally results in more severe punishment than a misdemeanor.

Irresistible impulse test

A defense that fails to find a person criminally responsible if mental disease prevents the person from controlling their behavior.

Gateway drug

A drug (marijuana) believed to lead to the use of more serious substances (heroin).

Rule of law

A fundamental principle in the U.S. CJS that all government officers, including those in law enforcement, corrections, and the courts, pledge to uphold the Constitution and to follow the Constitution, not any particular human leader.

Constitutional law

A major source of law that establishes the fundamental rules and relationships among the judiciary, legislative, and executive branches at the state and federal levels.

Felicitous or hedonistic calculus

A measure indicating how much pleasure an individual gains from a specific act.

Panopticon

An architectural design developed by Jeremy Bentham that allows a single person to watch others in a prison setting without those incarcerated knowing they are being watched.

Case law

Based on previous court decisions or precedents.

Insanity defense

Based on the belief that a select group of people who suffer from mental illness are unable to control their actions to such an extent that they cannot be held accountable for their crimes.

Age of Enlightenment

Brought about new ways of thinking, including: 1) Reforms arising from outrage against the barbaric system of law 2) Punishment just before the French Revolution in the late 18th century.

Landmark cases

Cases that establish precedent that markedly changes the interpretation of a prior law or establishes new case law.

Class action lawsuits

Civil cases involving large numbers of victims in which courts authorize a single individual or small faction to represent the interests of the larger group.

Wobblers

Crimes that can be charged as either felonies or misdemeanors.

Criminal Law

Criminal law is divided into 2 primary areas: 1) Procedural 2) Substantive. -Procedural law determines how people are treated in the system. -The Bill of Rights (the first 10 amendments to the U.S. Constitution) guides procedural law pertaining to issues such as arrests, warrants, search and seizure, and trials. -Procedural law asks: How does the process work? What are the defendant's protections? -In the criminal context the laws protect defendants' rights to due process and a fair trial. -Substantive law designates what conduct is considered criminal. -It defines what constitutes 1st degree homicide as opposed to manslaughter. -Substantive law is designed to put people on notice as to what types of conduct can be charged criminally. -In other words, the law must be specific to let the accused know in advance what behavior is considered legally criminal. -Both procedural and substantive laws are written statutory laws adopted by legislatures. -Procedural criminal law in the U.S. also has a basis in federal and state constitutions. -The U.S. Constitution sets the guiding principles which must be adhered to by states, though state laws sometimes come into conflict with federal laws. -State laws in death penalty cases using gas chambers as the method of execution were considered cruel and unusual punishment prohibited by the U.S. Constitution, according to the federal courts. -After the U.S. Supreme Court ruling on the use of gas chambers, several states were required to change laws related to the method of execution. -The preemption doctrine designates federal law as the "supreme law of the land." -In other words, usually federal law overrides conflicting state laws. -The U.S. Constitution first established this mandate. -The Supremacy Clause (Article VI) states that federal laws and treaties "made under its authority, constitute the supreme law of the land." -Medical and recreational use of marijuana in many states exemplifies the conflict between state and federal laws. -Federal law regulates the drug as a controlled substance. -Recently, the Drug Enforcement Administration (DEA) contemplated changing marijuana from a Schedule I to a Schedule II drug. -Schedule I drugs are designated as having no medical use and a high potential for abuse (heroin, lysergic acid diethylamide, ecstasy, peyote). -In August 2016, the DEA rejected any change in the status of marijuana and it remains illegal under federal law. -The final report noted that marijuana is no longer considered a gateway drug. -The possession, cultivation, and distribution of marijuana are federal crimes with serious penalties. -State laws allowing the use of recreational marijuana have pitted state and federal authorities against each other in a legal battle that remains unresolved. -State laws related to the sale and uses of marijuana vary. -Marijuana production, sales and use fall into 1 of 5 categories: 1) Legal 2) Medical use only and decriminalization 3) Decriminalization only 4) Medicinal use only 5) Illegal. -As of 2020, 11 states and the District of Columbia have legalized marijuana for recreational use. -Colorado, the 1st state to allow recreational marijuana, passed a ballot initiative which is now part of the state's constitution. -Other states are debating legislative bills or ballot initiatives (referendums) to legalize marijuana for recreational use. -Numerous states have decriminalized marijuana, which means possession of a small amount of pot for personal use will not be prosecuted and in many cities law enforcement officials view it as a low priority. -Specific laws and regulations of the marijuana industry are complex. -At the federal level, under the Obama administration federal authorities respected state laws and regulations that legalized marijuana. -In 2018, Attorney General Jeff Sessions, appointed by President Donald Trump, announced he planned to rescind the Cole memo, which would allow the Department of Justice to take action against marijuana businesses and declared a war on weed. -In the summer of 2018, however, President Trump announced his support for federal legislation that would protect states that have legalized marijuana. -In 2020, however, Trump reportedly changed positions and may remove protections for the use of medical marijuana and support of state rights if he remains in office.

Administrative law

Derives from a legislative body's delegation of authority over commissions or boards to regulate activities controlled by written statutes.

Statutes

Formal rules or law, adopted by a governing body such as a state legislature.

Compensatory damages

Money awarded in a civil lawsuit for loss or injury suffered as a result of unlawful conduct.

Punitive damages

Money awarded in addition to compensatory damages to punish the defendant for recklessness, malice, or deceit.

Ordinances

Municipal or city rules.

Trial by ordeal

Primitive form of trial in which the outcome rested in the hands of God to determine guilt or innocence by protecting an innocent person from some or all the consequences of the test.

Restitution

Repayment as part of a punishment for injury or loss.

Substantive law

Rules that are used to determine the rights of individuals and collective bodies.

Incapacitation

Sentencing goal that isolates the offender from the public and takes away one's ability to commit a crime against those in the public.

Rehabilitation

Sentencing goal that seeks to reduce chances of future offending through: 1) Education 2) Alcohol or drug programs 3) Psychological programs 4) Other treatments

Bill of Rights

The first 10 amendments to the U.S. Constitution, which guide procedural law pertaining to issues such as: 1) Arrests 2) Warrants 3) Search and seizure 4) Trials

Specific deterrence

The notion that punishment deters the individual being punished from committing crime in the future.

General deterrence

The notion that the general populace will be deterred from committing crimes based on the perceived negative consequences of being caught.