Comparative Criminal Justice Systems Notes PDF

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An international Perspective Learning Objectives: 1. Understand the local and universal benefits of an international perspective. 2. Distinguish between bilateral and multinational cooperation. 3. Describe and compare the historical, political, and descriptive approaches to an international perspective 4. Distinguish the function/procedures and the institutions/actors strategies. 5. Summarize and distinguish the synthetic and authentic classifacation strategies. Chapter Focus  Benefits of an International Perspective on Criminal Justice o Local Benefits o Universal Benefits  Describe & Compare Approaches to an International Perspective o Historical o Political o Descriptive  Comparative research/analytical strategies: o Focus on functions/procedures found in criminal justice systems o Focus on institutions/actors of criminal justice systems  Classification strategies: o Synthetic o Authentic Why Study the Legal Systems of other Countries? There are benefits of an international perspective  Local Benefits: o Facilitates development of intercultural competence  the knowledge, skills, and attitudes necessary to developing and maintaining successful global interactions & exchanges we understand and appreciate the norms and values of other countries o Establishes points of contrast – facilitates better understanding of one’s own culture via comparisons with other cultures and their legal institution.  Challenges one’s own ethnocentric perspective  the assumption that one’s way of living and institutional structures (such as criminal justice system) is the only way to live & to organize law enforcement, the courts, criminal punishment, to name a few. o Encourages viewing our system with an eye to “how we can improve” Studying the legal system of other countries informs:  Understanding of how technology and communications effects global interdependence – we need to know how other societies function  Realization that U.S. legal systems (at the federal and state levels) is not the only possible legal system – one of many!  Comparison of legal systens – identifying similarities & differences  Understanding of our own and other country’s ways of handling/resolving conflicts

A comparative view of legal systems allows an understand of the dimensions of own legal system Some examples of comparison of differences in legal systems Passive role of judges in the U.S. trial Some European legal systems use private citizens as lay judges

Vs. Vs.

Active role of judges in a civil legal system In U.S. private citizens act only as a jury member to find facts of the case

International perspective provides:  New insights about the form and structure of legal systems  Understanding of differences in criminal legal systems  New ideas – about how to improve criminal systems Note:  Legal system from one culture cannot be incorporated entirely by another culture o Why not?  Possible to adopt some aspects of another country’s legal system o E.g. mediation and dispute resolution has been used in tribal societies in Africa – part of their culture o U.S. has begun to give serious consideration of adopting mediation and dispute resolution in conflict situations. Universal Benefits of an international perspective –  Replaces one’s traditional, taken for granted parochial view of the world with a global perspective o E.g. law enforcement must take global understanding of criminal enterprises  Drug trafficking  Human trafficking  Cyber crime  Money laundering  Terrorism  Increases understanding of the relevance of neighbor cooperation among law enforcement To combat crime, need a bilateral and multinational cooperation among law enforcement – o Examples of Bilateral cooperation: o U.S. & Canada – share a border and long-standing agreements (high level of cooperation) o U.S. & Mexico – share border – formal agreements but little cooperation & implementation of agreements between law enforcement agents Question: What accounts for the differences in level of cooperation? How does Reichel address this question? Examples of Multinational Cooperation 1) International Criminal Police Organization (Interpol) o Coordinates interactions among police across Interpol member nations

o Does not investigate cases o Collects and disseminates information on international criminal activity o Assists in solving criminal cases o Secure arrests, prosecution & extradition of suspects 2) European Union (EU) – treaty of 27 independent member states (this will change to 26 with Great Britain leaving the EU) created shared institutions with delegated powers to create laws and policies that apply to member states  European Parliament  Council of the European Union  European Commission – important to combating criminal enterprises by creating a shared judicial space that stretches across borders But face difficulties – due to differences in the criminal code and criminal procedures among the member states Approaches to studying Criminal Legal Systems from an International Perspective:  Historical Approach – comparisons based on past events and conditions contributing to current structure and procedures o Facilitates identification of strengths and weaknesses in effort to avoid mistakes in adopting a country’s criminal legal system Questions addressed: o What mistakes and successes have already occurred? o What do earlier experiences tell us about the present? o How can knowledge of the past prepare us for the future?  Political Approach – focus on the country’s political system as a means to understand its criminal legal system o Why? Political philosophies often form the foundation of legal systems, including the criminal justice system o Influences how a society treats and processes offenders, conducts fact-finding, and whether the presumption of guilt drives the adjudication of defendants How politics  police system in terms of:  Police discretion to arrest  Police use a weapon  Police accountability, if any Political systems influence directly the law enforcement, courts, and corrections in a country. Questions posed from a political approach: o How does politics affect a nations justice system? o How does politics affect interaction among nations? o How is a country’s legal tradition affected by politics?  Descriptive Approach o Is essential first step in comparing criminal legal systems o Identifies similarities and differences across countries o Focuses on current structures and process of the legal system

Questions posed from descriptive approach: o How is a country’s justice system supposed to operate? o What are the main components of a justice system? o Who are the main actors in a justice system? Note: Reichel – emphasizes the descriptive approach  Concentrates on law, politics, courts, corrections  Makes comparisons across different types of systems Strategies Under the Descriptive Approach  Institutions/Actors o With this strategy the focus is on specific institutions & positions having the responsibility to carry out the specific duties – to identify similarities and differences across countries. o An example is comparing the way countries organize their police officers of identifying official positions charged with addressing pretrial detention  Functions/Procedures o With this strategy, the emphasis is on understanding the duties & procedures of criminal adjudication – examining differences across countries o An example is the procedure used for pretrial detention in various countries (France, China, U.S.) Making comparisons through classification – another strategy   Refers to grouping objects into categories based on relationships o Create categories o Place objects into appropriate category – (the category that best describes the object) o E.g. taxonomy & systematics in biology  Provides order in comparison  Facilitates summarizing similarities and differences Two Classification Strategies  Synthetic o Categories of artificial grouping (artificial: externally defined criteria is the basis for classification) o Is based on only one or two aspects of the object o Useful but does not allow implying or deducing other information about the object o The resulting classification has a practical or special purpose – bring order to diversity/differences o Results in low ability to predict!  Authentic o Categorization by natural groupings (inherent characteristics) o Is based on extensive study of the object o Uses many characteristics to categorize objects o Uses factual, verifiable characteristics o Higher ability to predict

 Final Note: Reichel’s comparison of criminal legal systems across different countries  Uses descriptive (rather than political or historical) approach  Focuses on the primary components of a large number of countries – rather than on providing an in-depth examination of only a few nations o Uses a topical approach, rather than a country-to-country approach  Descriptive approach emphasizes institutions/actors, rather than functions/procedures  Descriptive approach uses both synthetic and authentic strategies for comparisons

Domestic, Transnational, and International Crime and Justice Focus:  Distinction between comparative criminology and comparative criminal justice  Two primary problems when comparing crime in two or more countries (a challenge to criminologists)  Five grand theory explanations used in cross-national crime research  Difference between international crime and transnational crime  Five types of transnational crime  International efforts directed at domestic, transnational & international crime Distinction between comparative criminology and comparative criminal justice Comparative criminology  Studies the etiology of crime (causes of criminal behavior) is a social phenomenon and as social behavior  Asks – what are the variables that influence crime rates in different countries? o Focus on differences in crime rates across different countries and what variables account for these differences Comparative criminal Justice  Focus on difference across various countries in terms of o Criminal legal system – how social control is maintained across different countries (law enforcement practices) o How criminal offenders are adjudicated o How criminal justice is achieved Lesson 2 focuses on:  Crime as a social phenomenon  Crime as social behavior  Examples of transnational crime Comparative criminology research:  Goal is to identify commonalities and differences in crime patterns across divergent cultures Two problems/difficulties confronting researchers  Lack of similarity of data to comparison  o Definitions of specific crime behavior must be the same or very similar (e.g. similar definitions of rape, drug trafficking, embezzlement)

o Differences in legal definition of rape in Poland and Russia – make comparison of rape rates in these two countries problematic o Note: European sourcebook of Crime and Criminal Justice Statistics provides definition of specific crime across  Reporting problems o Are crime victims in the comparison countries equally likely to report crime? o Willingness of victims to report crime varies across countries – posing problems for conducting rigorous comparisons of crime rates across different countries o If differences in reporting crime are observed these differences may account for differences in crime rates – not, differences in economic, political or social variables thought to affect crimes. Critical thinking question: What are some reasons why crime is not reported?  Compiling/recording problems o Once crime is reported, do police in comparison countries follow similar recording practices o If differences in crime rates across countries may well be the result of different recording practices – not, differences in actual criminal behavior o Countries with more efficient recording may account for higher crime rates Critical thinking questions: Why would countries have different recording practices? Does access to technology affect recording practices across different contries? Note: Comparative criminology must be conducted with caution due to differences in defining, reporting & recording crime across countries Note: Reichel’s (p. 25) YOU SHOULD KNOW! Comparing With Caution Also note that studying crime rates across different countries across time pose problems  Data must be compiled/gathered & presented in useful way, with concern over ensuring standardization of reported time periods Explanations used in cross-national research Five Grand theories:  Modernization theory o Social processes related to industrial development create conditions conducive to increased criminality  Civilization theory o A historical link between crime and civility – suggesting that violent crime in societies decreased as civility transformed violent societies into more peaceful societies  World system theory o Suggests that as capitalism expanded, it disrupts indigenous cultures and traditional means of subsistence and resulted in inequality and class conflict – resulting in increased crimes, especially economic crime  Opportunity theory o Crime is the result of modern economics and social organization that provide increased opportunities to engage in criminal behavior  Feminist theory

o Focuses on how indications of gender inequality affect  Gender differences in crime rates  Victimization of women or men, and  Differences in rates of gendered crimes (domestic violence) Differences between international crime and transnational crime  International crime – behavior that threaten world order & security (e.g. crimes against humanity, war crimes , genocide)  Transnational crime – behavior that spans national borders, violating laws of several countries (e.g. cybercrime, corruption, drug trafficking, money laundering, maritime piracy, theft of art & cultural objects, trade in human body parts, human trafficking, terrorism) Reichel points out that human trafficking is the “most recognized types of transnational crime.” Major types of human trafficking: o Sex trafficking o Forced labor trafficking What are the characteristics of each of these types of human trafficking Efforts responding to transnational crime  USA National Efforts: o Department of Homeland Security (DHS)  Bureau of customs and border patrol  U.S. Secret Service o Department of Justice (DOJ)  Assest forfeiture and money laundering  Federal bureau of investigation (FBI)  Organized crime & gang section o Department of state  Office to monitor and combat human trafficking o Department of treasury  Financial crimes enforcement network

Lesson 3: An American Perspective on Criminal Law Objectives:  Define Essential components of American criminal law  Define four general characteristics of American criminal law  Understand seven principles of American criminal law  Link procedural criminal law to amendments to US constitution  Examine Two models of criminal adjudication. Essential components of Criminal Law  Substantive criminal law o Definition of the elements of the crime o Punishment the defendant is exposed to upon conviction (found in state and federal penal code)

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Procedural criminal law o Governs the procedures – the process – of case processing including preadjudication law enforcement action through adjudication, sentencing and corrections (e.g. Miranda warning – 5th amendment protection) Substantive Criminal Law: General characteristics  Politically – refers to principle that only violations of rules established by a government authority can be legally defined as criminal behavior  Specificity – refers to principle that illegal behavior must be defined as an unambiguous way prior to holding someone accountable (elements of the crime found in statutory penal code meets this principle)  Uniformity – reforms the principle that criminal liability should be applied uniformly for all persons, regardless of the person’s social background, race/ethnicity, gender, socioeconomic status  Penal sanction – refers to the principle that a punishment must be associated/attached to conviction of the illegal behavior. Substantive Criminal Law Jerome Hall (1960) provides seven criteria that constitute major principles of Western Law  Act Requirement (actus reus) o This principle requires the behavior to be a conscious interaction between mind and body o Must be a physical movement that results from the determination or effort of the actor o Central to this principle, the distinction between status and act  Status is not criminal!  Mens rea Requirement – “guilty mind” (intent to commit the act is relevant; not motivation) o The principle that no one can be guilty of a crime unless he/she acts with the knowledge of doing something wrong o It is not that a person knows the penal code – rather that the individual knows that the behavior is wrong o It is that the person know he/she has no right to engage in the specific behavior decides to do so  Exception: strict liability – a class of offenses that do not require the government to show criminal intent – usually applies to threats to public safety.  Mens Rea – is a crucial component of criminal responsibility  Changes in concept over time o “Wild beast test” – 13th century Anglo-saxon law – person does not know what he is doing, the person “lacks” in mind and reason – a “brute” o M’Naghten test (1843) – referred to as the “right from wrong” test of insanity involves:

1. “At the time the crime occurred the defendant was operating under the defect of. Reason so as to be unable to know the nature or quality of the act; or 2. if the defendant was aware of the act’s nature, he did not know the act was wrong” (primary legal defense against insanity from 1850s to 1970s in US o “irresistible impulse test” – (Some states adopted)  Assumes that a person may know that the wrongful nature of the behavior but cannot control the impulse to commit the act o Model Penal code definition of insanity (American Law institute) (from US v. Brawner, 1972)  “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.” o Criminal responsibility is tied directly to “substantial capacity to appreciate” rather than “being able to know” the wrongfulness of their action. o NOTE: Defense Reform Act required the defendant, not the prosecutor to prove insanity – making it a more difficult legal defense against criminal responsibility  Concurrence Requirement o The act must concur with an equally criminal mind o Exception to this requirement is felony murder – (the situation where a person commits a felony (example robbery and death occurs during the robbery – a person is guilty of felony murder)  Harm requirement o Harm must follow directly from the act o If the specified harm does not occur, then the specific crime has not been completed o (example, someone tries to murder someone, fails to do so – the act of murder did not occur – could be guilty of attempted murder; not murder)  Causation requirement o A crime is not complete unless the person’s behavior necessarily caused the harm without interference by someone else  Punishment requirement o There must be a law on the books that assigns punishment to the illegal behavior  Legality Requirement o The behavior must be defined as criminal prior to being treated as a crime. Procedural criminal law – defines how the state must process cases In US tied to the Bill of Rights of US Constitution  4th Amendment (right to be secure in their person, houses, papers and effects, but upon a showing of probable cause, supported by oath or affirmation  5th Amendment (protection against self-incrimination)  6th Amendment (right to a speedy and public trial before impartial jury and assistance defense counsel)

8th Amendment (protection against excessive bail excessive fines, and cruel and unusual punishment)  14th Amendment – “equal protection clause” – no state shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdicti...