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Criminal Law in Liberal Capitalist Democracies. What is the rationale for criminal law and the public criminal justice system in liberal democratic society? How has the U.S. justice system evolved over time? Is the current emphasis on crime control consistent with the original vision?.

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Criminal Law in Liberal Capitalist Democracies

What is the rationale for criminal law and the public criminal justice system in liberal democratic society? How has the U.S. justice system evolved over time? Is the current emphasis on crime control consistent with the original vision?


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Private Justice (Informal Social Control)

  • ‘Law’ is not codified.

  • State plays little role in settling disputes.

    • But possible involvement of religious officials.

  • Victim or victim’s family is at the center of the process.

  • Examples?

    • Everything from lynching to restorative justice!


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Public Justice

  • Criminal law is codified as statutes.

  • State assumes “ownership” of violations of criminal law.

  • Monarch or “society” as victim of crime.

    • Victim/victim’s family less central to the justice process.


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Advantages and Disadvantages of Public Criminal Justice Systems

  • Advantages?

    • Minimize feuding

    • Sometimes guided by rules and procedures (accountability).

  • Disadvantages?

    • Victim is de-centered, loses control

    • Can be used to buttress authority of the state


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Public Justice in Early Modern Europe Systems

  • Laws were determined by monarch.

    • But little separation of church and state.

    • And much informal social control.

  • Detection of violations by authorities was unlikely.

    • Guilt/innocence often determined in an arbitrary manner (“Trials-by-ordeal”)

  • Mercy bestowed by monarch arbitrarily.

  • Harsh physical punishments were common.


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Modern Democratic Legal Systems in Western Europe and the U.S.

  • Classical reformers sought to make criminal law and punishment

    • Democratic

    • Predictable

    • Fair (proportional)

    • Humane

  • Democratization:

    • Law and penalties determined by elected representatives. Why?


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Predictability/Equality U.S.

  • Laws apply equally to all.

    • This makes it possible to predict outcomes.

  • Predictability is key to deterrence. Why?

    • Assumed criminals rationally choose crime by weighing costs and benefits.

  • Equality and predictability key to fairness.

    • Everyone should get the same penalty.

    • Laws apply to everyone.


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Proportionality and Humanity U.S.

  • Reformers advocated punishing just enough to deter—no more.

  • Shift from torture and physical punishments to fines and incarceration.

    • More humane

    • Could be quantified

  • Rehabilitation further humanized punishment.


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Modern European and U.S.U.S. Systems of Justice

  • Combined these classical ideals with an emphasis on rehabilitation.

    • Areas of consistency between these?

      • Humanitarianism

    • Tensions between the two?

      • Rehabilitation may involve indeterminant sentences

      • Determinations of rehabilitation may lead to different outcomes

      • Represents a shift away from emphasis on deterrence


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The Post-Rehabilitative Era: U.S.Sources of Tension

  • Some lament loss of rehabilitative ideal.

    • Recent efforts to revive it.

  • Also: two co-existing visions of how the justice system should work:

    • The due process model

    • The crime control model


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The Due Process Model U.S.

  • Emphasis is on providing the accused with protections against arbitrary state power.

  • Presumption of innocence is paramount—protects individuals from government excess and error.

  • Anyone can be accused by the state and is potentially a victim of excessive state power.


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1960s: Due Process Revolution in U.S. Criminal Law U.S.

  • Mapp v. Ohio-most law enforcement searches require warrants.

  • Gideon v. Wainwright-defendants are guaranteed the right to counsel.

  • Escobedo v. Illinois-coerced confessions are inadmissible in court.

  • Miranda v. Arizona suspects must be informed of their legal rights upon arrest.


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The Crime Control Model U.S.

  • The principal goal is to control/reduce crime.

    • Assumption that victims and perpetrators are different groups.

  • The system is considered just to the extent that it is effective.

    • Efficiency is measured in terms of arrests, convictions.

  • Efficiency requires assumption of guilt rather than innocence.

    • Reduces time between crime and punishment (which enhances deterrent effect).

    • Speed enhances symbolic impact as well.


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Ascendance of Crime Control Model U.S.

  • Defendants rights have been scaled back.

    • Entrapment, search and seizure law.

    • Most extreme in cases involving non-U.S. citizens.

  • Punishments made more determinant, severe.

    • Mandatory minimums sentencing laws passed.

  • Right to appeal criminal convictions curtailed (Clinton 1996).


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Question: Is the crime control model consistent with the democratic ideals of the classical reformers?

  • How could you make the case that it is?

  • How could you make the case that it isn’t?

  • What do you think?


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