A study on the American criminal justice system

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The American criminal justice system is an essential part of daily living for the functioning members of society that do not fall into the 7.3 million adults that are either incarcerated or on parole or probation as of 2008 (Bureau of Justice Statistics). This number has been on a steady rising trend ever since 1980, when there was only a total of 1.8 million American adults that were incarcerated or on parole or probation (Bureau of Justice Statistics).

There are four main methods of punishments for crime, either being parole, probation, prison, or jail. Probation is defined as:

A court-ordered period of correctional supervision in the community generally as an alternative to incarceration. In some cases probation can be a combined sentence of incarceration followed by a period of community supervision. These data include adults under the jurisdiction of probation agency, regardless of supervision status (i.e., active supervision, inactive supervision, financial conditions only, warrant status, absconder status, in a residential/other treatment program, or supervised out of jurisdiction). (Bureau of Justice Statistics).

Probation's counterpart, parole, on the other hand is defined as a period of conditional supervised release in the community following a prison term, including prisoners released to parole either by a parole board decision (discretionary parole) or according to provisions of a statute (mandatory parole). These data include adults under the jurisdiction of a parole agency, regardless of supervision status (i.e., active supervision, inactive supervision, financial conditions only, absconder status, or supervised out of state).(Bureau of Justice Statistics).

Now, there are two different types of institutionalization, those being jail and prison. Jail is defined strictly as confinement in a local jail while pending trial, awaiting sentencing, serving a sentence that is usually less than 1 year, or waiting transfer to other facilities after conviction. (Bureau of Justice Statistics). While most think the terms prison and jail are interchangeable, prison is defined as confinement in a state or federal correctional facility to serve a sentence of more than 1 year, although in some jurisdictions the length of sentence which results in prison confinement is longer.(Bureau of Justice Statistics). Clearly, prison is not jail, and vice versa, as they are two distinct institutions of incarceration.

There are four justifications for punishment, those being retribution, deterrence, incapacitation, and rehabilitation (Cotton 206). Retribution is widely regarded as the most ancient justification for punishment. Retribution is largely a product of the Old Testament, which proclaims in multiple places that criminals should be punished in a means equal to that of their crime, Eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe. (The Holy Bible Revised Standard Edition, Exodus 21-24). Deterrence is the almost opposite of retribution, whereas retribution is based primarily on emotion, deterrence is rooted mainly in logic. Essentially deterrence works off of the fact that if a person knows that if they get caught committing a crime, that they'll get punished, the less likely they are to commit the crime in the first place (Cotton 209). Incapacitation is the third justification of punishment, and it is similar to deterrence in that it focuses primarily on protecting society from crime, rather than avenging the crime by use of retribution. Incapacitation is essentially institutionalization, which prevents the person from committing more crimes by incarcerating them, and separating them from society, whether it is for a short period of time or permanently (Cotton 207-208). Finally there's rehabilitation, probably the most modern approach to justifying punishment out of the four reasons. This is possibly the most controversial and unpopular method as well, although there's general public support, most correctional institutes don't treat the underlying causes of crime. In short, rehabilitation is a method used to better the criminal for their own sake, as well as for the sake of society (Cotton 211-212).

Now, the criminal justice system isn't what it is today by accident, nor did it happen overnight. There has been a long evolution of the American criminal justice system since even before the American colonies were founded. The justice system holds its roots in biblical teachings, the early English monarchies, and even the Greco-Roman societies that were the precursor to most western civilizations today. (Sterling 1). One common principle of the criminal justice system is the "two or more witnesses" rule, which originated in the Bible (The Holy Bible Revised Standard Edition, Deuteronomy 17:6). This rule is extremely important in all cases dealing with capital punishment.

There are different philosophies between the American system of justice and the Roman system of justice, where there is a common misconception that both hold the same philosophical cornerstones, there is common ground, however, that being that in 375 B.C. Constantine's son introduced some elements of Christian Doctrine into some parts of Roman law (Sterling 1). In 450 B.C. Theodorus furthered the influence of Christianity in Roman law by dividing Roman law into 5 sections, each with Christian influences within it (Sterling 1). That however is where the similarities end. In Roman law, no law can be created above the level of man, which contrasts todays Christian influenced law, where the American justice system functions on the basis that most laws originated from the Creator, aka God (Sterling 1). Now, based upon the very nature of both of these philosophies comes another very vital difference, which is that American law is generally accepted to be just and immutable, while Roman law was very subjective and changed often along with the coming and going of politicians (Sterling 1).

Now, one important concept of American criminal justice is the Importance of Mens Rea (having a guilty mind) or criminal intent" (Sterling 1). This principle was put into use after the Gregorian reform in 1215 (Sterling 1). Another popular principle in modern criminal justice that was influenced by the English and put into effect during the same time as Mens Rea was Actus Reas or the guilty act, both of these concepts being extremely important to just about every decision made in England during the time period, and was also vital into the days of the American Colonies (Sterling 1). John Locke, founded a key concept of early American justice in his work Treatise on Law and Government in 1960, which was:

"..the state all men are naturally in, and that is a state of perfect freedom to order their actions and dispose of possessions and persons as they see fit. Civil authority is a proper remedy for the inconvenience of the state of nature. Every man or government is in a state of nature when there exists no civil authority to settle a dispute between them. They have not surrendered themselves to a common judge." (Sterling 1)

This concept basically states that humans are in a natural state of unconstraint and will naturally do as they please, so in order to keep people in line there must be some system of external constraint that helps them to refrain from their natural instincts.

Another concept that was started in England prior to the formation of America was the concept of Civil Duties, which was established by Sir William Blackstone, who also happened to establish many others of the founding concepts of English and American justice (Sterling 1). Civil Duties are essentially the necessary tasks every member of society must contribute to help keep order in the society and reap the benefits of the order established by the society. One very common civil duty that most are familiar with is Jury duty which is required unless there is a substantial reason as to why one cannot contribute. Another concept created by Blackstone is that the criminal justice system can only moderate and oversee the affairs between man and his fellow man, but the court system has no jurisdiction in matters of man and God, though this principle has been severely twisted from its original form, now taking the form of separation of church and state which was not the original intention of Blackstone's concept (Sterling 1). Blackstone also furthered the commonly held belief that if one's conduct does not violate God's law or is detrimental to a fellow man, that it should not be deemed illegal by civil courts. Blackstone also pointed out that restraint of individual right should be easily recognized by all those who are being asked to give up a right for the "necessary" needs of the state (Sterling 1).

All in all, there were 14 main concepts of justice that were created around this time period in England, those being:

Justice is proportionate to our actions, justice is retributive, justice is vindicatory, justice is compensatory, judgment under the law is declaratory, judgment under the law is remedial, judgment under the law is directive, burden of proof "beyond reasonable doubt", inalienable right to property, citizens cannot be treated like criminals unless they have been tried and convicted as criminals, no human law or justice can preempt natural (or God's) law, absolute rights are God given, God has placed on every civil authority the responsibility to insure that absolute rights are not infringed, and upon citizens, the government is additionally charged with protection of citizenship (relative) rights. (Sterling 1)

The change that occurred to the common English laws during the early days of the American Colonies was due almost entirely to the cultural and social differences that developed between England and the Colonies (Sterling 1). A lot of the changes that occurred were also due to the change in philosophy that the new found Americans had, which was that of enlightenment philosophy (Sterling 1). This time period also saw the beginning of the system of checks and balances which was established to maintain a balance of power between the 3 wings of government, which was due to the more complex nature of the rapidly developing colonies (Sterling 1). Another change to the justice system in early America was the power of the jury to decide both the facts and the law, this acted as an informal reform of the system without the cumbersome legislative process. (Sterling 1). Furthermore, when this produced inconsistent and often contradictory results, the rules of evidence were strengthened. The power of the judge was balanced against the power of the jury; the citizen against the state; the state against the federal government.(Sterling 1)

Now, in more modern times, the criminal justice system has evolved yet again from its early years in the colonies. One main difference is that the concepts of Actus Rea and Mens Rea, which were adopted before the colonies and carried over through the years of the colonies, were strayed from in exchange for a more modern approach to justice (Sterling 1). This change was brought about by the simple fact that the requirement of an act is one that is evidence of a choice being made and choice, of course, brings into question the state of mind (drug induced, emotion induced, medical/psychological aspects). (Sterling 1) This fact alone made the whole system of guilt more ambiguous than it previously was, thus in an effort to make the criminal justice system more uniform and predictable, judges and legal theorists sought to marginalize the element of "intent". They sought to blur the lines between criminal law and civil law by minimizing, or eliminating altogether, the requirement of Mens Rea. (Sterling 1)

In the 1800's, a man by the name of Oliver Wendell Holmes Jr. was a judge in the Supreme Court. Mr. Holmes was almost single-handedly responsible for bringing about yet another change of philosophy within the American Justice system, that being a Darwinian Positivistic legal philosophy, which argued in favor of strict liability. (Sterling 1) What this new outlook basically did was nullified the need for intent when it came to crime, instead it made it sufficient to simply prove that an act was in violation of the established laws regardless of the intent of the act. This philosophy also put the main justification for the punishment on deterrence rather than the classic retribution of the Bible (Sterling 1). So,

by eliminating the burden of proof on the prosecution to produce evidence of intent to do harm, the government is free to create a third classification of law under which they can impose sanctions on the accused. Sanctions are not punishment(which is one of the ways of distinguishing criminal conduct) therefore resulting in greater social control by bending, without breaking, the constitutional protections in the Bill of Rights. (Sterling 1)

This new philosophy of law continued to vie with the concepts of the English Common Law in the eyes of both politicians and judges, and continue to see-saw back and forth even today, thus creating an un-uniform and inconsistent foundation for crime and punishment (Sterling 1).

With these many facts in mind it is apparent that the American Criminal Justice system is a much deeper and complex system than it first appears. With many roots in religious teachings and the concepts created by civilizations past the American justice system has a solid foundation laid. The thing that sets the American justice system apart from those of other countries, however is the social and philosophical evolution that the laws and punishments have received as the country and government developed. The history of justice was shaped by the basic reasons for its existence in the first place, those being society's attempt to deter criminal behavior, exact retribution on the guilty, rehabilitate those less than functional members of society, and incapacitate those who cannot be rehabilitated from committing another crime.

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