Section IV Monday March 28 2011 3 30 PM A Criminal Law An Intro Deals with matters that s threat not only the victim but society as a whole Felony A more serious crime determined by criminal code so it varies from state to state Generally results in a year or more in a prison Misdemeanor Generally a year of less in local or county jail Act Intent is needed to prove someone guilty Mala in Se Crimes inherently bad things that have always been criminal Ex Murder rape arson Mala ProhibitaI Crimes that society says are crimes not necessarily inherently criminal Ex alcohol consumption gambling prostitution Sometimes referred to as victimless crimes however society has the right to define morality thereby justifying laws to prevent these Abel Ch 10 Dutch German Drug Laws Social scientists have to do natural experiments instead of direct experiments They can t create tests like chemists can Sebastian Schrer wants to know the effect of the drug boom in the 1970s In Germany Took a very stringent approach strict laws preventing drugs In the Netherlands there was a much more tolerant response and laws were less harsh Users were put through medical programs or rehab Schrer wanted to know why these two societies has different approaches to the drug boom He comes up with 3 explanations 1 2 3 There was a cultural difference German society was extremely homogeneous it was much easier to say drug use was outside the normal realm of German behavior The Netherlands has been a merchant empire they weren t as homogeneous as the Germans there were substantial minority groups Dutch were more open minded Fundamental institutional differences in Germany it was deemed a legal problem not a medical problem In the Netherlands there was a debate over whether it was a medical or legal problem Political reasons In Germany there are 2 main parties the Christian Democrats Republicans have control from 1950 70 In the 70s power is moved to the Social Democrats Democrats and they didn t want to appear soft on crime early on thus stringent laws were created In the Netherlands there was no political pressure so they didn t have to be as tough on crime The Adversarial System in Criminal Law The adversarial system is supposed to be a fight which brings about the truth the problem is that society is a litigant mean ing the defendant is going up against all of society The fight is not really a fair fight for the defendant Because of this we have safeguards against wrongful conviction Stakes are much higher in criminal law death or loss of liberty than civil law so we want to prevent false posi tives State prosecutor v Defendant Prosecutor represents all of society 4 6 2011 3 36 PM B Historical Perspective Ashford v Thorton 1819 Case took place in England It was the victim s responsibility to go to the judge and report a crime against him Goes to the English s highest court called the Law Lords of the House of Lords Writ of appeal what victims had to being to the court if they believed they were victimized Mary Ashford is a victim of rape and murder Mr Thorton was prosecuted in a normal way by the crown prosecutor Jury found him not guilty Crown prosecutor decided not to prosecute again something allowed in English law Mr Ashford goes to private attorney in order to bring the case to trial again Thorton s attorney finds that you can do a trial by battle swordfight duel or other means Idea was that god would step in and decide the truth teller Question came to law lords 1 2 Is a writ of appeals still legitimate Is a trial by battle still legitimate Supreme court would have ruled these unconstitutional English system doesn t like to overturn decisions Law Lords rule both laws legitimate Ashford drops the case Parliament soon after rids the trial by battle and reduces the writ of appeal Colonial Period 1660 1776 For many of the colonies there was a strong theological dimension to why the colony was founded People who had been oppressed got to the Free world and were able to establish their own societies free from religious pros ecution Strong motivation to change the criminal justice system based on the idea of Christian redemption a sinner can overcome his her sins and contribute to society England is an extremely harsh country whose punishments for crimes were extreme Colonists wanted to 1 2 Simplify the criminal code so that it read like the 10 commandments Not execute as much but to shame criminals by making punishment public hoping you would want to redeem yourself 1st offense letter B branded into your forehead You were shamed and had to redeem yourself 2nd offense publicly whipped 3rd offense execution These punishments were less harsh than English law where you would likely by executed after the 1st or 2nd offense If the burglary was committed during the Sabbath you committed 3 crimes 1 Burglary 2 You weren t in church 3 Took advanta ge of a person who was trying to partake in religious activities If you did this your ear was cutoff as well ad the branding Other crimes from 1606 1660 16 people were executed 4 for murder 2 for infanticide 2 for adultery for witchcraft 1 for sodomy 4 for practicing the Quaker religion Massachusetts burglary law 1760 1774 38 of convictions were for sexual offenses that are no longer crimes 13 for blasphemy or profanity Post Revolutionary War 1776 1860 Reform period movement away from a punitive English system Prosecution of crime was the subject the state law as it is today States started to differentiate types of similar crime Section IV Page 1 4 11 2011 3 51 PM States started to differentiate types of similar crime In 1794 PA established 1st and 2nd degree murder 1st degree had to be cold blooded premeditated or hot blooded in addition to another felony Results in capital punishment American criminal justice system established 3 goals Deterrence preventing individuals from committing a crime out of fear that they will go to prison Retribution You caused harm so you will be punished equally Rehabilitation Americans begin to debate over the utility of the death penalty States begin to wonder if they are doing it correctly Some states propose other punishments in lieu of capital punishment Ex Castration after rape Michigan and Wisconsin outlawed the use of the death penalty Death penalty was used more in the south and more often on blacks a result of slavery 2 attempts to democratize the justice system 1 2 Increase the power of juries Shifting away from common law to code law gives