Discussion 2

CHAPTER 3: JUSTICE AND THE LAW

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The Development of Law

• “Equal justice under the law.” • Inscribed on the

front of the U.S. Supreme Court in Washington, D.C.

• Laws change according to: • Societal norms. • Cultural shifts. • Technology.

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History of Law

• Codes of conduct • E.g., Code of Hammurabi.

A New Age of Reason

• Age of Enlightenment: New ways of thinking and reforms

• Before the French Revolution in the late 18th century.

ü Trial by ordeal: Primitive trial in which God was expected to protect the innocent.

https://www.youtube.com/watch?v=tEI 8SnEA7B8

ü Abolished in the Age of Enlightenment.

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History of Law • Cesare Beccaria:

• “The Classical School.”

• On Crime and Punishment (1764).

• Emphasized rationalism, intellectualism, and

humanitarianism.

• Believed free will, logic, and rationality were central

in decisions to commit crime.

• Promoted the idea of deterrence.

• PUNISHMENT should be…

1. Swift: aka“celerity”. Punishment should follow the

criminal act immediately

1. Time in between punishments can’t be long

2. Certain: you will get punished

3. Proportional: the punishment should fit the crime 4

History of Law DETERRENCE

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Specific Deterrence General Deterrence

FEAR!

PUNISH! Punishment > Benefits of crime

Specific Deterrence

• Directed toward the individual offender to stop bad behavior. It may be accomplished through restitution or incapacitation.

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General Deterrence

• Perceived negative consequences of being caught and thus, the threat of punishment will inhibit criminal behavior in all members of society.

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Bentham and Rational Choice Theory • Jeremy Bentham

• Stressed rationality in the legal system and opposed brutal methods of punishment.

• Hedonistic calculus: people weigh the costs and benefits of their actions in order to maximize pleasure and minimize pain.

• Utilitarianism: greatest good for the greatest number.

What Drives Crime?

Pros

Cons

If pros are the causes of crime, to prevent crime there needs to be an increase in cons (or the cost of crime)

Bentham and Rational Choice Theory

• Jeremy Bentham

• Panopticon prison

design: served as

blueprint for current

incarceration

facilities.

• Self-regulate

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Role and Purpose of Law – The Rule of Law

The Rule of Law

• Rule of Law: mandates the application of known legal principles in governmental decision-making and establishes the premise that every citizen should obey laws. • World Justice Project

• 5 basic principles to ensure citizens and governments abide by the laws

• Federalism: refers to how power and authority is DIVIDED to ensure federal, state, and local municipalities can function as one nation with shared responsibilities.

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Role and Purpose of Law – 5 Goals 5 Goals of the Law

1. Deterrence: law is created to deter people from committing crimes using the threat of punishment.

2. Retribution: offenders deserve to be punished for criminal behavior.

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Role and Purpose of Law – 5 Goals 5 Goals of the Law

3. Restitution: repayment as part of a punishment for injury or loss.

4. Rehabilitation: means of providing education and treatment for offenders.

5. Incapacitation: isolates the offender from the public to protect the public.

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Sources of Criminal Law Common Law • Developed by case law from court decisions and

opinions. • These court decisions are then applied to

subsequent similar cases. • Example: Brown vs. Board of Education • If you would like to watch a short video summarizing the

key points in Brown vs. Board of Education, please watch: https://www.youtube.com/watch?v=1siiQelPHbQ

• Critical legal scholars argue that laws continue to be used by the rich and powerful to control behavior. • Example: William Chambliss, who studied rule of law as is

applied to vagrancy. • Example 2: Crack vs. Cocaine punishments

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Sources of Criminal Law

Constitutional Law • Basis of all U.S. laws. • Establishes the fundamental rules and

relationships between judiciary, legislative, and executive branches at state and federal level.

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Types of Law – Criminal law

Types of laws can be divided in 2 key areas:

1. Procedural law

2. Substantive law

What do they mean?

1. Procedural law: determines how people are treated in the system.

• Bill of Rights: First 10 amendments to the U.S. Constitution.

2. Substantive law: designates what conduct is considered criminal.

• Laws must be specific to let the accused know exactly what behavior is considered legally criminal

• Remember, one of the goals of general deterrence is education of the punishment!

• **Both procedural and substantive laws are written statutory laws that are adopted by legislatures.

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Types of Law – Criminal law Criminal Law

• Preemption doctrine: Federal law is the “supreme law of the land.”

• Marijuana status: prohibited by federal law. • Gateway drug: a drug that leads to the use o more serious

substances. • Cole memo: outlined state guidelines for marijuana use

(especially use by minors, DUI, and trafficking).

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Types of Law – Criminal law

• Statutes: Formal rules adopted by a governing body. • Example: tax evasion or price

fixing. Can’t engage in either of these behaviors and there are known consequences if you were to avoid paying taxes.

• Ordinances: Municipal and city rules. • Example: DUIs, zoning, dogs

without leashes

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Types of Law – Criminal law • Case law: based on previous court decisions.

• Precedent: Establishes prior case decisions as binding. • Stare decisis: Latin for “let the decision stand,” principle

that requires judges to respect precedent. • Landmark cases: Cases that establish precedent which

changes interpretation of a prior law. • Example: Dred Scott (1857) case, which found that

people of African descent were neither U.S. citizens nor protected by the Constitution • Upheld until 1869 after the Fourteenth

Amendment was passed to ensure equal protection under the law

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Types of Law – Civil law

Civil Law • Concerned with formal laws imposed by the state rather

than moral laws. • Addresses torts, estates, contracts, defamation, and

property. • Example: Amber Heard vs. Johnny Depp trial

• Burden of proof is preponderance of the evidence. • ***Easier to determine in court vs. criminal court. • A lot of white-collar crimes are handled via civil

court due to this lower burden of proof.

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Types of Law – Civil law

Civil Law • Small claims courts: Limited

jurisdiction to settle minor disputes below a certain dollar threshold.

• Compensatory damages: Money awarded for loss.

• Punitive damages: Money awarded as a punishment to the defendant.

• Class action lawsuits: Large number of victims.

• Typically, what we think when we hear the terms, “settlement” or “settled in court”

• Still, obstacles and challenges

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Types of Law – Administrative law

Administrative Law

• Derives from a legislative body’s delegation of authority to commissions or boards to regulate activities controlled by written statutes. • E.g., Workers’ Compensation

Act. • Federal organizations like the

Food and Drug Administration are given authority to develop rules and regulations to ensure compliance with the law.

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Legal Definitions – Elements of crime

Elements of a Crime

• Three primary elements: 1. Actus reus: the physical act or

“guilty act” 2. Mens rea: criminal intent or

“guilty mind” 3. Causation: that act and intent has

caused the injury or crime

• Other elements: • Concurrence: guilty act and mind

must occur simultaneously. • Harm. • Attendant circumstances: external

factors.

• Evidence: beyond a reasonable double

Legal Definitions – Classifying crimes

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Classifying Crimes:

1. Misdemeanor: less serious crimes punishable by fine, forfeiture, or short confinement.

2. Wobblers: felony crimes that may be reduced to a misdemeanor.

3. Felony: more serious and generally results in more severe punishment.

Criminal Defenses

1. Excuse: Mitigating factors that explain why the person committed crime. • Relates to status or

capacity/incapacity of the accused, like duress. • Example: insanity

2. Justification: The quality of the fact. • Self-defense is a

justification. • Example: home

intruder

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Criminal Defenses - Types

Legal Defenses

1. Alibi: defendant was not present

2. Automatism: PTSD, severe mental disability

3. Consent: victim gave permission (not valid against assisted suicide in most states)

4. Double jeopardy: once a person is tried and acquitted of a criminal act, he or she or they can’t be taken to trial again

5. Duress: a person is forced or coerced

6. Entrapment: law enforcement officer tricks or manipulates the situation

7. Infancy: children (<7 years old) who are unable to grasp consequences of their actions

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Criminal Defenses - Types

Legal Defenses 8. Intoxication: voluntary and

involuntary (e.g., hazing, drugged)

9. Mistake of fact: ignorance of facts or misunderstanding with no intent to commit a crime

10. Necessity: no-win situation and “lesser of two evils” (e.g., speeding vs. giving birth in the car)

11. Restraint: external forces prevented them from controlling their actions

12. Self-defense: protection of self (or third party) from harm with a reasonable use of force

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Criminal Defenses - Insanity Legal Defenses

• Insanity defense standards: • M’Naghten standard: “right-

wrong” test. • Durham test: determine if a

mental defect was the reason for criminal behavior.

• Brawner rule: Appreciating the difference between right and wrong.

• Irresistible impulse test: Did mental disease prevent person from controlling their behavior?

• Battered woman syndrome: Developed to excuse or mitigate actions of women who kill their abusers.

Evolving Standards and Practices Technology

• Law enforcement may use technology unconstitutionally.

• Example: U.S. v. Jones: GPS monitor

Ex Post Facto Laws

• Laws passed after a crime. • Example: sex offender registry laws

White-Collar Crimes

• Many criminals use technology to commit offenses.

• Example: UC Irvine fertility clinic. Instead of getting in trouble for allegedly misusing women’s eggs in fertility treatment, the doctors were charged with wire, mail, and insurance fraud. In 1995, there were no laws about the “theft of human eggs.”

Outdated Laws

• Difficult to get rid of outdated laws.

• Example: Plessy vs. Ferguson (1896), illegal businesses in fortune-telling, astrology or palmistry

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The Rights of Victims

• Victims’ Rights Amendment (VRA).

• Modern trend: increase victims’ rights.

üRight to fairness, respect, and dignity.

üRight to reasonable notice of and the right not to be

excluded from public proceedings related to the

offense.

üRight to be heard at any release, plea, and sentencing

court session.

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The Rights of Victims

üRight to notification of release or escape of the

accused.

üRight to due consideration of the crime victim’s

safety and privacy.

üRight to restitution.

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