Week 2 of outline notes
Week 2 of outline notes 007312
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This 8 page Class Notes was uploaded by Charlinda Hartfield on Monday September 21, 2015. The Class Notes belongs to 007312 at University of Southern Mississippi taught by Michael McPhail in Summer 2015. Since its upload, it has received 17 views. For similar materials see Criminal Law in Criminal Justice at University of Southern Mississippi.
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Date Created: 09/21/15
September 14 2015 CHAPTER 2 PP 2144 Crime and Punishment Constitutional Limitations and Protections Key Terms p 21 Introduction p 22 Three 3 Major Topics 1 US Constitution 2 Amendments and Protections 3 Types of Criminal Punishment United States Constitution of Criminal Law p 22 In light of the oppressive system of government that existed in England those who settled in the United States wished to design a government that would be of the people by the people and for the people The framework of the US Constitution including the Bill of Rights that is the first 10 amendments promotes a balance between government power and personal liberty Rights are guaranteed and may not be taken away or limited without certain protections The US Constitution sets forth a threepronged system of government with each branch having limited powers This doctrine of separation of powers reflects a concerted effort by the drafters of the Constitution to avoid concentrating government power in one individual such as a monarch or dictator or in one branch of government such as the judicial branch 1 Legislative 2 Executive and 3 Judicial State sovereignty is political independence System of Checks and Balances is the presence or absence of power within each branch of government regulates the system as a whole a Legislative Branch US Congress possesses the constitutional authority to enact laws in the US but its conduct is held in check by the Judicial Branch b Judicial Branch Supreme Court which interprets those laws and may even declare them unconstitutional Judicial Activism in principle the judicial branch should not be in the business of making law however in many cases critics contend that federal judges overstepped and attempt to legislate by way of court decisions c Likewise the Executive Branch President and executive officers of the federal government exercises checks on the legislative branch when the president vetoes legislation and it acts as a check on the judicial branch when the president pardons a person who has been convicted of a crime Charged with the operations or daily administration of the US d Checks on the legislative branch in turn are balanced by Congress s ability to impeach judges override the president s veto in certain situations and control funding of items on the president s agenda e In other words checks and balances are reciprocal safety mechanisms of sorts designed to prevent tyranny oppression by any single branch f This threebranch system of government is also used by the states however state governments must abide by their respective state constitution Constitutional Principles and Limitations p 23 First laws must be specific enough for an average or reasonable person to determine what conduct is or is not prohibited If a law is not sufficiently specific or clear a court may rule the law void for vagueness In other words the law is so broad or imprecise that an average person could not be expected to determine what conduct it specifies as legal or illegal Vague laws are not constitutional because they violate due process which is set forth in the 5th and 14th amendment Doctrine of overbreadth are laws so general that they could criminalize both legal and illegal behavior typically raised involving the 1St amendment protections such as freedom of assembly and freedom of speech 14 Amendment was enacted in 1868 It includes three central provisions a Privileges and Immunities clause b Due process clause c Equal protection clause Incorporation is a process whereby the protections set forth in the Bill of Rights are extended to the states by applying the 14th amendment particularly the due process clause Selective incorporation is a process of applying to the states only rights that are fundamental in nature Due Process refers to the requirement that government follow certain procedures before infringing on the life liberty or property of a citizen a Substantive Due Process is intended to preserve certain freedoms and protections that are integral to the concept of liberty b Procedural Due Process requires that at fair process be applied before a person is deprived of life liberty or property For example before one may be deprived of liberty notice of charges the opportunity to be heard and a fair trial must be provided c Equal Protection Clause prohibits states from making random and unreasonable distinctions states must be able to demonstrate sufficient justification for the classifications it chooses to establish For example states may not enact laws or regulations that allow only Native Americans to drive this would be unconstitutional distinction based on race or ethnicity a characteristic over which one has no control and that is unrelated to one s ability to drive 1 Parens patriae is a Latin term literally interpreted as quotthe parent or father of the nation This doctrine holds that the state serves ultimately as the parent or guardian ofthose who cannot make decisions for themselves such as children and people with certain disabilities Fourth Amendment p 25 The 4th amendment is crucial in guaranteeing individual rights and liberties This amendment protects citizens by limiting government authority to intrude on their privacy in order to search for evidence Probable cause is a judicial determination indicating there is a strong probability that a crime and in the individual named in the warrant application committed the crime and in the case of a search warrant that evidence of a crime will be found in the areas described in the application Exclusionary rule prohibits prosecutors in criminal trials from using evidence obtained in violation of the 4th amendment This rule is intended to discourage law enforcement from knowingly violating the 4th amendment Fifth Amendment p 26 The 5th Amendment guarantees citizens the right to be indicted by a grand jury a body of citizens drawn from the rolls of registered voters and asked to determine whether sufficient evidence exist to proceed to trial After hearing the prosecution s presentation of the evidence the grand jury may return a true bill or no bill a True bill indicates that there is sufficient evidence to proceed to trial b No bill means the opposite that there is insufficient evidence to continue As an alternative to assembling a grand jury panel the prosecutor files with the court a formal charging document called an information Double Jeopardy occurs when a citizen is twice put in jeopardy that is placed at risk of conviction or loss of liberty for the same offense a There are a few exceptions to the general prohibition against double jeopardy For example if dual sovereignty applies the defendant may be prosecuted multiple times by different governments or by different levels of government different states or by federal and state governments Self lncrimination a Privilege against selfincrimination provides that no person be compelled to act as a witness against himself Miranda v Arizona 1966 US Supreme Court addressed the need for verbal warnings regarding selfincrimination and other rights a Law enforcement officers must read the Miranda warnings to a suspect before he or she is interrogated 1 You have the right to remain silent 2 Anything you say can and will be used against you in court 3 You have the right to speak to an attorney before questioning and to have your attorney during questioning if you wish 4 If you cannot afford a lawyer one will be appointed free of charge before questioning 5 You can decide at any time not to answer any questions or make any statements The final protection provided by the 5th Amendment is that of eminent domain a requirement that citizens be given fair compensation when the government takes private property for public use Sixth Amendment p 29 Right to a speed and public trial the right to an impartial jury drawn from the venue where the crime occurred the right to receive notice of the charges brought by the government the right to confront witnesses at trial the right to compel witnesses to appear at trial and the right to assistance of counsel Speedy trial is one that occurs without unnecessary delay The 6th amendment prohibits only unreasonable or unnecessary delay rather than all delay The 6th amendment also requires that the jury trials be public this provisions reassures criminal defendants that the proceedings will be open to public scrutiny and protects them from government persecution in secret With the exception of petty offenses those facing criminal charges are entitled to have their case heard by a jury The right to an impartial jury is intended to ensure that cases are resolved by objective jurors a The process of voir dire is used to assess jurors competence uncover biases and determine whether they have any previous knowledge ofthe case or the actors involved The prosecutor and defense attorney are allowed to question or challenge prospective jurors and assess their responses to determine which citizens they wish to accept and exclude as jurors b A challenge for cause is the exclusion of a juror based on responses to questions posed during voir dire Such challenges may be made if the juror has preexisting knowledge of the case is related to or knows the defendant judge or attorneys has a conflict of interest in the case or knows other facts that may undermine the ability to be impartial in the case c An attorney can also issue a peremptory final or decisive challenge to exclude a prospective juror The 6th amendment further requires that criminal defendants receive notice of the charges against them a Notice typically takes the form of an indictment or an information containing written notice of the specific allegations b To satisfy the 6th amendment the indictment must be served personally presented to the defendant The 6th amendment includes the right to confront adverse witnesses and crossexamine them during trial The right to compel witnesses or compel the appearance of a witness who may offer favorable testimony The defendant may need a witness to testify regarding character or alibi or to contest or confirm facts of the case a The defendant may subpoena the witness to appear at trial b If the individual fails to appear law enforcement may secure his or her presence Alternatively failure to appear may be held in contempt of court The 6th amendment guarantees every criminal defendant the right to counsel a Counsel must be afforded at all critical stages of the judicial process b Thus right to counsel is triggered when formal charges are filed against the defendant and the machinery and resources of government begin to target him c After the defendant is indicted charged counsel must be present at interrogations lineups and any other legal transactions Eighth Amendment p32 The 8th Amendment provides three 3 rights for those charged with criminal offenses 1 Excessive Bail shall not be required 2 Nor excessive fines imposed 3 Nor cruel and unusual punishments inflicted Bail is a courtdetermined amount of money or property to be deposited in order to secure a defendant s release pending trial a Bail is not intended to punish the defendant for alleged wrongdoing b The court held that excessive bail is an amount in excess of that which is necessary to reasonably ensure the defendant s presence at trial In somejurisdictions a full hearing is required to set bail At such hearings each side may present evidence regarding the following factors Nature of the offense Defendant s criminal history Risk of flight or failure to appear in court Defendant s financial ability Any threat posed by the defendant to himself or others Ties to the community The 8th Amendment also places constitutional limitations on fines that may be imposed by the federal government However the Supreme Court has not extended this particular provisions to state governments through the 14th Amendment process of incorporation The Supreme Court 1910 held that the 8th Amendment requires that punishment for a crime should be graduated and proportioned to the offense a Examination of the proportionality of punishment is most apparent in cases in which the death penalty is imposed hmopcr n Criminal Punishment p 34 Retribution is often referred to as the quotjust desserts model of punishment a ts central principle is the offenders deserve punishment for their wrongful acts and that society has a responsibility to inflict punishment on those who violate its norms The principle of deterrence hinges on the effect ofthe threat of punishment on criminal offenders and on society at large a Deterrence can be divided into two categories 1 General deterrence refers to the effect an offender s punishment has on the community 2 Specific deterrence refers to the effect that the existence of certain punishments has on the offender Sever punishment will serve as a warning not to commit such crimes in the future Proponents of Rehabilitation or reformation believe that society should use punishment to transform offenders into meaningful members of society a Types of Rehabilitative Interventions 1 Education 2 Mental health services 3 Drug abuse treatment and 4 Vocational training 0 lncapacitation refers to the removal of a criminal offender from society after conviction in order to reduce the likelihood of causing future harm ie incarceration o Restorativejustice is an emerging concept that aims to reconcile the relationship between victim and offender using the assistance of a trained mediator to identify and address the consequences of the offender s act Restorative justice focuses on healing Types of Criminal Punishment 1 A fine is a court order for the offender to pay a fixed sum of money as penalty for a criminal offense a Modern fines are descendants of the wergild A wergild was compensation an offender was required to pay to the state and to the victim or his family b Determination of fines for criminal offenses is left largely to the discretion of the legislative body 2 Forfeiture refers to the seizure of real or personal property used to commit or facilitate a criminal act a Civil forfeiture refers to property loss as the result of a civil proceeding b Criminal forfeiture is property loss imposed as a penalty for criminal conduct c Forfeitures are typically used in cases involving drug trade white collar crime conspiracy and pornography 3 Incarceration or imprisonment is also a common form of punishment a The United States currently has one of the highest rates of incarceration of any industrialized nation b An indeterminate sentence occurs when legislature sets forth minimum and maximum incarceration periods abut allows a trial judge correctional authority or parole board to determine ultimately when an offender is released c A determinate sentence exists when a legislature specifies the term of imprisonment for a particular crime d Sentencing Guidelines are a type of determinate sentencing used by many states and by the federal government The chief purpose of establishing sentencing guidelines is to reduce sentencing disparity which occurs when individuals receive markedly different sentences for similar offenses n passing the Sentencing Reform Act of 1984 Congress created the Federal Sentencing Commission which is responsible for developing the Federal Sentencing Guidelines for federal courts e Mandatory sentences are another type of determinate sentencing Anger over early release caused a shift in public opinion and policy toward truthinsentencing measures such as mandatory minimum sentences f Habitual Offender and Three Strikes Laws reflect the public s growing intolerance of recidivism relapse into criminal behavior after an initial conviction Most of these statutes require that a specific sentence usually life imprisonment be imposed after a third felony g States may also specify the type of felony that qualifies as a predicate crime defined as a previous offense for which a defendant has been convicted The statute may require that the offenses occur within a particular time frame such as three violent felony convictions within a 10year period however time limitations are rare among such statutes h Capital Punishment is reserved for cases involving murder n states in which a jury determines or recommends this sentence the case may be heard only by a deathqualified jury defined as one in which the jurors have undergone voir dire regarding their willingness to impose the death penalty n death penalty cases proceedings are bifurcated A bifurcated proceeding occurs in two distinct phases 1 The guilt phase is the time period during which the defendant is tried for murder as alleged in the information or indictment 2 When the guilt phase concludes the sentencing phase may begin During this phase the judge orjury focuses solely on whether the defendant should be sentenced to death An aggravating circumstance is a factor that distinguishes one murder as more serious than others ie multiple victims murder for hire felony murder a specialstatus victim such as police officer or judge and an offender with an extensive criminal history A mitigating circumstance on the other hand is a fact that lessens a defendant s culpability ie Mental illness or deficiency a troubled childhood child abuse or neglect substance abuse history and lack of a criminal history Alternatives to Incarceration p 38 Although incarceration is politically popular because it has broad appeal among citizens it may be ineffective or unnecessary for many offenders Probation is a nonsecure method of supervising criminal offenders while maintaining them in the community Probation is also significantly less costly to administer The expense is further offset by the payment of supervision fees by probationers Another advantage is that it allows offenders to take advantage of community services Offenders are not entitle to probation rather they must meet certain qualifications For an offender who poses a greater risk to the community because of eh nature of the offense or because of a significant criminal history intensive supervision probation ISP is being used more frequently because it allows these offenders to remain in the community under much more stringent conditions Under the terms of a probation contract in order to remain free within the community an offender must meet certain terms and conditions Examples of probation conditions include the following 1 Committing no further criminal acts and avoiding criminal associates 2 Maintaining sobriety attending a drug treatment program and cooperating with drug testing 3 Securing and maintaining employment 4 Attending all meetings with probation officers 5 Paying all fees fines and restitution 6 Being on house arrest 7 Being monitored electronically 8 Other special conditions specific to the offender such as avoiding all contact with children under age 18 if the probationer is a pedophile Failure to adhere to the conditions of probation constitutes a violation which the probation officer assigned to the case reports to the sentencing court A violator may be issued a warning given additional conditions incarcerated temporarily in a local jail or ordered to report to the penitentiary to serve out the remaining months or years of his or her original sentence Restitution is also commonly used as punishment An order of Restitution requires an offender to provide services or money as compensation for wrongdoing Typically it is ordered in conjunction with other forms of punishment Its purpose is to provide accountability and to compensate victims Community service can be useful when offenders are unable to pay monetary amounts
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