Unit 2: An American Perspective on Criminal Law

Unit 2: An American Perspective on Criminal Law CJ106 Foundations of International and Comparative Criminal Justice

Unit 2 Assignments • Read (eBook): Chapters 3 and 4 • Extra Extra! (readings) • Graded Work: -- Discussion Board (25 pts) -- Seminar (15 pts) -- Quiz (30 pts) • 70 Points Total

Discussion Boards Follow “The Rule of Threes”: • Three (3) responses minimum • Three (3) different days • Three (3) responses express critical thought and advance the discussion

Quizzes • Unlimited retakes (within unit) • Unlimited time (within unit) • Conclusion: go slow, and retake the quiz until you answer every question correctly and collect the full 30 points.

Seminar Topics: Tonight • Substantive and Procedural (criminal law) • The crime control model and the due process model • The four legal traditions • The impact the war on terrorism has had on issues of safety and liberty • Balancing security and personal liberties.

Substantive Criminal Law • What is substantive criminal law? Give an example.

Substantive Criminal Law • Substantive criminal law defines the conduct that qualifies as a crime. An example of substantive criminal law is the Illinois the Criminal Code. It contains definitions of all conduct that constitutes a crime, such as robbery, murder, theft, and kidnapping.

Procedural Criminal Law • What is procedural criminal law? Give an example.

Procedural Criminal Law • Procedural criminal law involves the rules that govern the enforcement of criminal laws. (Think of our constitutional protections in the Bill of Rights.) • Examples: -- Search and Seizure (4th Amendment) -- Privilege Against Self-Incrimination (5th Amendment) -- Right to Counsel (6th Amendment) -- No Cruel and Unusual Punishment (8th Amendment

Models of Criminal Process • Due Process model • Criminal Control model

Due Process Model • What is the due process model? • Examples?

Due Process Model • Assumes freedom is so important that every that every effort must be made to ensure that government intrusion follows legal procedure • Seeks to make decisions that identify legal guilt • Follows rules that emphasize containing the government’s level of intrusion into citizens’ lives • Emphasizes legitimacy of action • Insists on a formal, adjudicative, adversarial fact-finding process, even though such restraints, may keep the process from operating with maximal efficiency

Due Process Model Examples • Legal guilty (versus factual guilt) • See example on pp. 83-84 • Warrantless searches and seizures presumed unreasonable

Crime Control Model • What is the crime control model? • Examples?

Crime Control Model • Assumes freedom so important that every effort must be made to repress crime • Seeks to make decisions what will identify factual guilt • Follows rules that emphasize the repression of criminal activity • Emphasizes efficiency of action (i.e., speed and finality) • Requires a high rate of apprehension and conviction by early exclusion of those not likely to be guilty

Crime Control Model • Examples • Guilty pleas (barest form of adversarial process) • Probable cause to detain (Gerstein) • Finality of Conviction: constitutional right to only one appeal after conviction; no constitutional right to collaterally attack conviction

Due Process vs. Crime Control • Who is the greatest threat to our freedom? • government agents, like police or prosecutors -OR- • the criminal trying to harm us * How would each model answer the question? * Can both government and criminals deprive of property, liberty, and life? * Who do you think is the greater threat? *Which model does the United States follow?

Balancing Due Process and Crime Control • Due process = liberty • Crime control = safety/security • Liberty and safety are always at odds. • How do we balance our values of liberty and safety?

Balancing Due Process and Crime Control • Benjamin Franklin’s once said: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Do you agree or disagree with the quote? Explain.

Four Legal Traditions • Identify the four legal traditions we see in the world today?

Four Legal Traditions • Common • Civil • Socialist • Islamic (religious/philosophical)

Common Law (Origins) • Feudal practices (historical base) • Custom (common legal tradition with principles) • Equity (a sense of fairness) • Law is binding because it is based on custom

Civil Law (Origins) • Roman Law (written worldly law) • Canon Law (written spiritual law) • Codification (written and revolutionary) • Written: law enacted by recognized authority • Revolutionary: abolishes all prior laws Law is binding because it was appropriately authorized and record. **Note: common law countries have codified laws, but they supplement (not replace) prior laws.

Socialist (Origins) • Russian law • primary: decisions by princes acting as judges • Secondary: customs and Byzantine law • Law as artificial • Law is an arbitrary product of autocratic sovereigns (“Law is like a wagon tongue, it goes wherever you turn it.”) • Marxism-Leninism • law is subordinate to policy (i.e., the policy that a collectivized economy and social state is above the idea of law or individual rights). Law is a tool (to assist in achieving a communist state), not an absolute value. Law will ultimately be irrelevant.

Islamic or Shari’a Law (Origins) • Qur’an and Sunna (primary law) • Qur’an: contains rules of God for human behavior (religious, social, personal, economic) • Sunna: living by the example of the prophet Muhammad (do as he said, did, or approved). The Sunna explains, clarifies, and amplifies the Qur’an. (Sunna recorded in the hadiths) • ijma and qiyas(secondary law) • Ijma: the process whereby legal scholars reach an agreement (consensus) on questions not answered by Qur’an or Sunna)—a gap filler. • qiyas: the process of reasoning by analogy (in order to reach a consensus) • Schools of law (variations in interpreting/applying Qur’an and Sunna) • Sunni: Hanafi, Maliki, Shafi’i, and Hanbali • Shi’a: Ja’afari No distinction b/w legal system and other controls on a person’s behavior. Islamic law intrinsic to Islamic faith and life.

Cultural Comparisons • What is the position of the judiciary in relation to other government branches? • Common: courts share in balancing power • Civil: courts have equal but separate power • Socialist: courts inferior to legislature • Islamic: courts and other gov’t branches subordinate to the Shari’a

Substantive Comparisons • What is the source of law, or where do laws come from? • Common: custom • Civil: written code (provided by rulers or legislators) • Socialist: principles of the socialist revolution • Islamic: divine revelation

Procedural Comparisons • How is flexibility provided in each tradition when the source (e.g., custom or written code) doesn’t answer a question? • Common: judge-made law and particularization • Civil: different judges define and interpret written codes differently; identifying issues as questions of law • Socialist: principles of analogy and directions from higher-level courts (punish conduct not covered in criminal code by analogizing to conduct outlawed in the code) • Islamic: Mazalim courts and process and ijtihad

Unit 3 Project Relying heavily on the course material from Units 1 and 2, as well as outside research, create a 6-8 slide PowerPoint presentation (excluding the title and reference slides) that addresses the following: • Identify the sources and foundations of international criminal justice • Discuss and explain the four legal traditions that are identifiable today • How are the traditions similar? • How do the traditions differ?

Unit 2: An American Perspective on Criminal Law