Defining Crime and Other Times, Other Places Notes; Chapter 2 Book Notes
Defining Crime and Other Times, Other Places Notes; Chapter 2 Book Notes CJS 101
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This 14 page Class Notes was uploaded by Hanna Roberts on Thursday September 15, 2016. The Class Notes belongs to CJS 101 at Illinois State University taught by Savage in Fall 2016. Since its upload, it has received 4 views. For similar materials see Introduction to Criminal Justice in Criminal Justice Sciences at Illinois State University.
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Date Created: 09/15/16
Definitions of crime ● “An international violation of the criminal law or penal code, committed without defense or excuse, and penalized by the state” ● “Crime is a violation of social rules of conduct that are expressed in written code by lawmakers. Individuals who violate these rules are subject to sanctions administered by state authority” Elements of a good definition of “crime” ● Behavior ● Violates social rules ● That have been codified into formal law ● By persons with political power Consensus view of crime definitions ● Consensus view ○ Belief that majority of citizens share common ideals ○ Crimes are outlawed because they conflict with these ideals ○ People generally agree about what acts should be crimes Conflict Perspective of Crime ● Conflict view ○ The law is controlled by the rich and powerful to ensure their economic domination of society ○ Criminal law is a tool of the ruling class to provide the state with coercive force to repress the rules ● “Acts are defined as criminal because it is in the interests of the ruling class to so define them” Theme #1 Conflict Perspective ● What is defined as crime… ● What is seen as most “serious”... ● What is emphasized by law enforcement… ● Hurts “low class” offenders most ● Protects “upper class” offenders Theme #2 Conflict Perspectives ● Those responsible for collecting and disseminating information about crime have a vested interest in exaggerating the crime problem Theme #2 Examples ● Collection of crime data ● Crime trends: UCR vs. NCVS Some of the easy targets lately ● Terror Suspects: ○ The Patriot Act Sex Offender Policy ● Registration and Notification Laws ● Residence Restrictions Ways to Categorize “Crime” ● “Mala in se” ○ Bad in and of itself ● “Mala prohibita” ○ Bad because prohibited Another way to classify crimes ● Felony ○ A serious crime ○ More than > one year or more in prison ● Misdemeanor ○ A less serious crime ○ Less than < one year in jail Two Important Elements of a “Crime” ● Actus reus ○ The act itself ● Mens rea ○ Intent to commit the act “Official” Crime Data ● Uniform Crime Reports ○ Crimes known to Police ○ Aggregated and published by the FBI ● www.fbi.gov publications FBI Part I Index Offenses ● Violent Crimes ○ Homicide ○ Rape ○ Robbery ○ Aggravated assault ● Property Crimes ○ Burglary ○ Larceny ○ Motor vehicle theft “The Homicide Rate: ● Number of Homicides Reported to Police (14,196) ● Divided by Population (316,128,839) ● X 100,000 ● 2013 14,196/316,128,839 ● = 4.5 homicides per 100,000 population “The Violent Crime Rate” ● The Number of Violent Crimes ● Homicides ● + Rapes ● +Robberies ● +Aggravated Assaults ● Divided by population ● X 100,000 ● 2013: 368 violent crimes per 100,000 population National Crime Victimization Survey ● “Victimization” Rates ● Only available at national level, U.S.A. Common Punishments Over the Centuries ● Death ● Tortire ● Mutilation ● Branding ● Public humiliation ● Fines ● Forfeiture of property Middle Ages ● 5th century through 15th century a.d. ● Aka Medieval Times ● Aka The Dark Ages ● Followed the fall of the Roman Empire The Inquisition ● 12241834 ● Especially active in Spain and Holland ● Many thousands killed by torture or death penalty ● Torture used to gain confessions ● Established to counter movements that were seen as countering Christianity (heresy) The Age of Enlightenment ● Realizing “humanity's essential dignity” ● Montesquieu (1700s) ● Voltaire (1700s) ● Cesare Beccaria (1700s) ○ On crimes and punishments ● Jeremy Bentham (1700s1800s) Beccaria ● Prevention of crime is more important than punishment; punishment is only justifiable if it helps prevent crime ● Secret accusations and torture should be abolished ● There should be no capital punishment Bentham ● Reformer of the british system of Justice ● Focus on using law to address rational choice ● “Hedonistic calculus” ● Advocated removal of class differences ○ Laws that favored the upper classes ○ Arbitrary, brutal, revolting corporal and capital punishments for lower classes Transportation ● Legal sentence ● Banishes offender ● Transports him to another country ○ America ○ Australia ■ 17871875, est. 135,000 felons sent from England to Australia Other European Corrections: Cellular Prisons ● Maison de Force ○ Ghent, Belgium ● Based on Workhouses of Amsterdam ● Belgian design seen as humane ● Silence, penitence monastic contemplation Advances in Corrections: USA ● William Penn, 16441718 ● Pennsylvania ○ The Quaker Code, 16821718 ● Connecticut ○ Mine prisons ● Jails Walnut Street Jail ● Philadelphia, Pennsylvania ● First true correctional institution in America ○ longterm confinement, convicted felons ● The Pennsylvania System ○ Solitary Confinement ○ Reflection without work ● Laws are sets of rules that govern the conduct of individuals, groups, businesses, government entities, and the like. ● Laws are created and enforced by the power of the state local, state, and federal government bodies ● Constitution gives responsibility of law creation to the federal legislature, the U.S. Congress ● Constitution allowed federal court system to “interpret” laws created by the federal legislature ● State constitutions give responsibility of law creation to their respective state legislatures ● Within states legislative bodies such as county commissions and city councils create laws that apply to their geographic areas ● Law applies to everyone even those government bodies that are responsible for its creation; known as the “rule of law” History of Law in the United States ● American law is rooted in European, particularly English, law ● Historically, English relied on local customs and norms to guide conduct ○ Customs transmitted from generation to generation and altered occasionally if necessary ● Common law: law that was common to all throughout the country ● Local judges responsible for applying common law and their decisions were recorded to help guide future judges when making their decisions; known as precedent ● By 17th century, judges created the crimes of murder, robbery, arson, and rape along with less serious crimes like libel, perjury, and disturbing the peace ● Criminal law that exists today is taken from English tradition of common law ● New states incorporated the English common law and adopted many of the criminal laws ● Newly created federal government chose not to incorporate english common law; instead congress established its own laws, including criminal laws, similar in context to common law, but not directly taken from it Sources of law in the United States ● Various government bodies are responsible for shaping, applying, and interpreting the law ● Most important entities, state and federal constitutions, are the highest sources of law in the country; other entities represent all branches of government legislative, executive, and judicial ● Constitutions ○ Considered the highest sources of law in this country ○ All other laws created must abide by constitutions ○ Each state and federal government have their own constitutions which outline structure of governments and how they operate ○ Constitutional law: these constitutions designate government power, indicating what the government can and cannot do ○ All laws and state constitutions must abide by the U.S. Constitution ○ Any law or constitution that conflicts with the U.S. Constitution is not allowed to stand ● Legislative ○ Legislative brand creates government bodies that carry out some lawmaking responsibilities ○ Bodies are typically referred to as agencies, bureaus, and so forth ○ Administrative agencies include federal bodies ○ Administrative agencies have responsibility of enforcing administrative law ○ Agencies create rules and policies that govern their responsibilities ○ Agencies typically fall under the executive branch due to their regulatory and enforcement activities ● Executive ○ Has some lawcreation responsibility ○ Composed of individuals such as mayors, governors, and the president ○ Limited law making ability, and the laws created are usually narrow and issue specific but very important ● Judicial ○ Embodied by the various state and federal courts ○ Engages in law creation ○ Judges have been stripped of most of their lawmaking authority ○ Case Law: based on laws that were created by some other body; whenever a judge makes a decision in a particular case, he or she is engaging in law creation Substantive Law ● Law is either substantive or procedural in nature ● Substantive law is often called the “what” of the law, in effect, the law that defines rights and duties ○ E.g., law that defines firstdegree murder as the deliberate, premeditated killing of another ● Procedural law: describes the procedures that must be followed when carrying out the law ○ E.g., law that states that poor defendants must be given an attorney if charged with certain crimes ● Two primary examples of substantive law are civil law and criminal law ○ Civil Law ■ Deals with issues pertaining to private matters between two individuals ■ Encompasses torts (e.g. wrongful injury), contracts and property issues, and domestic relations ■ Allows individuals who feel wronged by another to take their cases to court for a remedy ○ Criminal Law ■ Concerns issues between the government and individuals who are accused of violating governmentcreated laws ■ Involves the government prosecuting an individual if that individual has committed a crime ● Substantive criminal law is defined by government bodies, and specifies what individuals can and cannot do and the punishments for wrongdoing ○ Called principle of legality; government cannot punish individuals for wrongdoing unless a law exists to define the conduct as a crime and to prescribe a punishment for it ○ Individual conduct has been defined as mala in se, or inherently bad, and mala prohibita, or prohibited but not necessarily bad ■ E.g., murder and rape are considered mala in se ■ Gambling and speeding are considered mala prohibita ● Crimes must have to elements: act and intent ● The act, called actus reus, represents the physical action involved in conduct ○ Must be voluntary, in that it is not the result of coercion or some condition that affects voluntary movement (such as a seizure) ○ Although voluntary act is needed to establish actus reus, there are instances where failure to act constitutes actus reus ■ Act of omission can result in criminal liability ● Comes into play when individuals are required by law to act but fail to do so ○ E.g., lifeguard letting someone drown ● Crime must have intent, called mens rea ○ Individual must have a blameworthy state of mind ○ Intent is usually inferred from the act ○ E.g., if someone grabs someone’s purse and runs away, we can infer they intended to commit theft ○ Most important when person’s degree of liability is in question ● Strict liability: liability is imposed without intent; applies to behaviors that are typically considered mala prohibita ● Makes no difference whether an individual intended to engage in the act or not; he or she can still be held liable Types of Crime ● Crime Against the Person ○ Personal crimes are considered the most serious crimes ■ Homicide, rape, assault, kidnapping, etc ○ Seem straightforward, but are not so easily categorized ○ Each crime carries differing degrees of liability ■ E.g., killing another person could carry a sentence anywhere from probation to the death penalty ○ Each state defines its crimes and establishes punishments for their violation ● Crimes Against Property ○ Property crimes are not treated as severely as personal crimes ■ E.g., larceny/theft, burglary, arson, embezzlement, and trespass ○ Typically do not involve harm to individuals, so the punishments are less severe ○ Have varying degrees of liability ■ Depends on specific circumstances ● E.g., if hurting someone while breaking into their house it is considered aggravated burglary and you can get up to 10 in prions, but if you do not hurt anyone it is breaking and entering and can have up to one year in prison ● Crimes Against Public Order ○ Categories of offenses that do not necessarily harm other persons or property ○ Largely victimless crimes ○ Seen as harming society as a whole ○ Aims to maintain social order ○ Committed by far more people; punished less severely ○ E.g., driving over the influence of alcohol, disorderly conduct, vagrancy, loitering ● Drug Offenses ○ Laws that criminalize the use of drugs and alcohol could be categorized as public order offenses, but they deserve a section of their own ○ Government's reaction to illegal drug use has dramatically altered how the criminal justice system deals with these offenses ○ “War on drugs” has led to an increased focus of drug offenses ○ Numerous criminal behaviors are associated with the use of drugs ○ Punishment for drug offenses depends on a variety of factors ■ Type of drug being used, amount of drugs involved, and where the drug transaction takes place ○ Because of increased attention to drug offenses by state and federal governments, the punishments for drug offenses have increased, ranging from probation to the death penalty ● WhiteCollar Offenses ○ Committed by individuals during the course of their jobs ○ Term white collar refers to idea that individuals from higher socioeconomic status are more likely to commit these types of crimes ■ However, individuals of lower socioeconomic status are capable of and do commit whitecollar offenses ○ Better know whitecollar offenses are committed by individuals who use their job positions as a mechanism to engage in illegal behavior ○ Lowerlevel offenses such as employee theft do not receive as much attention as other white collar offenses, although these are more frequent Defenses to Criminal Liability ● Justification ○ Crime is justified based on an individual's belief that what he or she did was the right thing to do ○ Best know justification is self defense ○ Self defense if used to deter an unwanted attack ○ Force is used is an individual reasonably believes it is necessary for protecting against an impending attack ■ Italicized words indicate what must be proven by an individual who claims selfdefense ■ Reasonable means that an ordinary person would believe that force is being used ■ Necessary indicates that force is needed to defend oneself ■ Protection suggests that the only reason that force is to be used is to protect oneself from hard, not to inflict harm needlessly on another person ■ Impending implies that an attack must be imminent and immediate, there is no time to escape ○ Amount of force used must be reasonable ■ E.g., cannot use deadly force if an offender merely steals a purse ○ Individuals who claim selfdefense must prove that an ordinary, reasonable person would have acted in the same way if attacked ● Mental Capacity ○ Individual can be relieved of criminal liability if his or her mental capacity is such that it renders the individual incapable of understanding the wrongness of his or her actions ■ Insanity is a common example ○ The term insanity is a legal one; defined differently from state to state ○ First legal definition of insanity was know as the M’Naghten Rule ■ Has become known as the “right versus wrong” rule ■ Individuals must prove that they were in such a state of mind that they could not know what they were doing or that they did not know that what they were doing was wrong ○ Some states and the federal government adhere to the M'Naghten Rule in some form, while other states apply the substantial capacity test Recent Trends in Substantive Criminal Law ● Criminal law is always changing; government bodies propose changes to the law on a regular basis, so that laws that are in place today may not be in effect next year ● One of the reasons that the law changes regularly is that certain events in society result in public support for new legislation ● The Internet and Substantive Criminal Law ○ Ongoing problem for criminal justice system is use of the internet to engage in criminal behavior ○ Difficult for any agency to monitor ○ Internet is home to a host of criminal behaviors ○ Betterknown violations are downloading files illegally, identity theft, posting child pornography, spreading viruses, and sponsoring terrorism ○ Early regulation of internet was primary responsibility of the federal government through the use of civil law ○ As internet has evolved so has its abuses leading to a host of criminal laws to deal with this behavior ○ State and federal government agencies, as well as private companies, are responsible for detection and control of cybercrime ○ In federal system, efforts to update legislation on computer crime are constantly being proposed to deal with changing nature of computer crime ○ Problem with the internet and crime is that there are no traditional boundaries and jurisdictions ○ Laws vary from state to state and country to country, but the internet is worldwide; difficult to determine which state or country has the jurisdiction to handle internet crime ○ Recent hacking incidents have illustrated the difficulty in pursuing the individuals involved ● Terrorism, Homeland Security, and Criminal Law ○ After 9/11 many states and the federal government implemented laws to combat acts of terrorism ○ Department of Homeland Security’s mission is to “prevent terrorist attacks within the United States; reduce the vulnerability of the United States to terrorism; and minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States” ■ Critics of definition claim it’s too broad and could net those who engage in ordinary street crime ● Number of states have used their terrorism legislation to cover gang activity ○ Legislation resulted in the convictions of over 35,000 individuals worldwide since 9/11 ○ Recent events have highlighted breaches in security regarding sensitive data Procedural Law ● Rooted in the U.S. Constitution, which has articulated policies that federal, state, and local governments must follow ● Federal constitution is essentially composed of two parts: the body of the constitution, which outlines the structure and function of the federal government, and the amendments, which involve changes to the original document ● Body of the constitution defines the three branches of government and specifies the role and responsibilities of each ○ Contains four protections of individual rights: a prohibition against ex post facto laws, a prohibition against bills of attainder, the right to habeas corpus, and the right to a trial by jury ● Ex post facto provision prohibits retroactive laws; in effect, a law that is passed tomorrow cannot be applied to behavior that one engages in today ● Provision against bills of attainder is in place to prohibit the imposition of punishment without trial ● The right to habeas corpus allows an individual to challenge illegal confinement by the government ● The right to a trial by jury guarantees that individuals are judged by a hurt of their peers instead of one or two individuals who may not be neutral ● These rights considered to be important enough to be placed in the body of the constitution ● Bill of Rights is composed of the first 10 amendments to the constitution passed in 1791 ○ Since then, it has been amended 17 times ○ Bill of rights was passed to allay the fears of those skeptical of the new federal government ● Fourth Amendment ○ In place to protect against unreasonable searches and seizures by government entities ○ If government officials wish to search an individual's home, they must secure permission to do so from a judge. This comes in the form of a warrant. Information contained in warrant is the name and address o individual or home to be searched, as well as a description of the person or items to be seized. By be justified by a standard known as probable cause ○ Probable cause exists when “the facts and circumstances… [and]... reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in belief that an offense has been or is being committed” ○ U.S. Supreme Court rules in Mapp v. Ohio (1961) that searches and seizes that violate Fourth Amendment provisions are subject to the exclusionary rule; that is, illegally seized evidence is excluded from prosecution. The exclusionary rule helps to ensure that government official conduct their procedures in a legal manner and provides a penalty when they do not ○ Amendments provisions go beyond someone's home and office to include such things as vehicles, drug tests, telephones, and computers ● Fifth Amendment ○ Features an amalgam of provisions that include a broad range of procedural rights ○ One of most important provisions is the dueprocess clause, which forces government officials to abide by fair procedures when an individual is subject to the criminal justice process ○ Encompasses all other procedural rights ○ Bestknown provision of 5th amendment is selfincrimination clause ■ Specifies an individual cannot be compelled to confess involvement (or noninvolvement) in criminal activity ○ Protection against double jeopardy ■ Prohibits the government from prosecuting someone again after that individual has been acquitted or convicted ○ Fourth provision of 5th amendment is right to a grand jury proceeding ■ Grand jury consists of a number of ordinary citizens who review the charges against an individual and decide if the charges warrant a trial ■ Grand jury requirement was deemed important by the Framers of the Bill of Rights because they felt that a prosecutor, who is a government official, would have too much power in making charging decisions ○ Sixth amendment is often called the “trial rights amendment” because of its provisions regarding aspects of the trial process ○ First provisions is the right to a speedy trial which benefits both the defense and the prosecution ○ Speedy trial helps the defense by minimizing the amount of time that an accused individual must endure until his or her case is resolved ○ Speedy trial assists the prosecutor because it ensures quick justice, provided the accused is guilty ● Right to a public trial ensures that trials are open to the public ● Accused individual also has the right to an impartial trial; means judges and juries are to be unbiased and neutral when making decisions about an accused individual’s case ○ To ensure, juries are selected through a fairly rigorous process that hopes to draw out any biases that individual jury members may have ● Right to trial by jury is included within the 6th amendment’s protections ○ 6th amendment provides that an accused individual has the right to be prosecuted in the state and country where he or she allegedly committed the crime ○ Accused individuals have the right to know what they are being charged with (in order to establish a defense against those charges), the right to know who their accusers are (to ensure that these witnesses are not fabricating the charges), and the right to call witnesses to testify on their behalf ○ Final provision in the 6th amendment is the right to counsel ○ Attorneys are able to offset any questionable governmental actions that could possibly harm the accused, such as trying to elicit confessions ○ Attorneys are present to ensure that due process is followed ○ Individuals who cannot afford attorneys can be provided them at the government's expense ● Eighth Amendment ○ Considered the “punishment amendment” because two of its three provisions deal with criminal punishment ○ First provision, right against excessive bail, was created to restrain the government from detaining individuals before they were found guilty ○ During a bail decision, a judge is prohibited from imposing a bail amount that is too high in relation to the accused individual's crime, flight risk, or threat to the community ● Right against excessive fines was created to prevent the government from imposing financial penalties that did not accord with an individual's charge ● Cruel and unusual punishment clause has a varied history, with lawmakers and judges still trying to decide what the clause actually protects ● Supreme court decisions have backed away from the disproportionality argument ● Justice Antonin Scalia declared that the cruel and unusual punishment clause says nothing about proportionality and only protects against certain forms of punishment that are not regularly used ● Some judges do consider proportionality to be an 8th amendment issue and will overturn a punishment if they feel the punishment is too severe for the offense charge ● Another issue involving 8th amendment is the use of the death penalty ○ U.S. Supreme Court has ruled that death penalty for rape was cruel and unusual, penalty for those who are mentally retarded or who were under the age of 18 at the time of their offense Incorporation ● Protection against state and local encroachment on procedural rights was not guaranteed and individuals had to rely on state constitutions to provide these protections ● Ratification of the fourteenth amendment in 1868 was the catalyst for extending the reach of the U.S. Constitution and the Bill of Rights to the states ● 14th amendment consists of 5 sections ● First section outlines a dueprocess clause that applies to states ● In Marbury v. Madison and Fletcher v. Pech cases the practice of judicial review was established, in which the U.S. Supreme Court has the power to review federal and state laws to ensure that they comply with the U.S. Constitution ● Process of incorporation was selective and timeconsuming, as the Court had to wait for cases to come before it before the Court could issue a ruling ● Court came to realize that all rights found within the U.S. Constitution and the Bill of Rights were fundamental; if they were not, they would not be there ● Some states have gone beyond what these documents specify, providing more rights to their citizens than is required ● There are scenarios involving searches and seizures that do not require a warrant or probable cause ● Number of accused individuals who come into contact with the criminal justice system is much larger than the number in 1791; system has to accommodate numbers without collapsing Trends in Procedural Criminal Law ● Courts have restricted many of the procedural rights found in the U.S. constitution and the Bill of Rights ● Internet has exploded with new technologies and new ways to conduct criminal behavior. As a result, the criminal justice system has had to improve its investigation techniques to stay ahead of cybercriminals ● Laws are in place to protect the privacy of individuals from electronic surveillance; realities of internet have stretched the original purpose of many of these laws ● U.S.A. Patriot Act has allowed federal authorities to engage in more expansive wiretapping and other electronic surveillance ○ Act allows more expansive surveillance of the phone and internet service providers as well as voicemail and email communications ○ Any activity that federal authorities deem is related to eben a remote threat to national security is subject to increased surveillance and fewer constitutional protections ● Lower courts have been divided about the warrantless use of GPS by police
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