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Criminal Justice System

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Our criminal justice system is set in place in order to protect the citizens as well as set up and enforce laws that we must abide by. We rely on the laws to support our social and business life as well as our economics and standards of living. “Because it is so deeply entwined in its citizens’ lives, any nation’s criminal justice system can serve as a barometer of the nation’s standing in the world, security of its citizens, and limits of its government’s powers” (Davenport ix, 2009). Every society, even those that aren’t as technologically advanced, has rules that they live by. Most societies have this written in law and are governed in some way. The three major topics that I will be discussing are criminal law, what is a crime, as well as Treason, Terrorism, and Wartime Criminal Justice. A crime in known as a wrong against the society or public interest (Davenport pg.38, 2009). A crime is punishable by a fine, imprisonment, or even death. Criminal law is designed to protect the public’s best interests. This is set in place by laws which the government set up. Every society, even those ones that aren’t as technologically advanced, are governed by a set of laws which they must abide by, as well as a set of punishments for those who break the rules. These are also known as society laws.

“The law is defined as the body of rules of conduct created by government and enforced by governmental authority” (Davenport pg.4, 2009). The United States is derived from a system of laws also known as Common Law. “Common Law is founded on the idea that if one set of facts yields a decision in one case, the same set of facts should yield the same decision in the next case” (Davenport pg. 5, 2009). Common law makes it so if a rule is one way in one part of the country; it is ruled along the same lines in the other parts. It is because of this that we have a much more stable and predictable law system. “The law is defined as the body of rules of conduct created by government and enforced by governmental authority” (Davenport pg. 6, 2009). Without a set of laws, life as we know it would be difficult or close to impossible. Jurisprudence is known as the study of law. Over the years scientists, philosophers, and lawyers have sat down and developed theories of laws and how they are socially and culturally accepted (Fichera, 2011). These theories of law are also known as the “school of jurisprudence”.

Some of the major theories that were brought to light were Durkheim’s Consensus Theory, Marx’s Ruling Class Theory, and Blackstone’s Theory. “Emile Durkheim (1858–1917) was a Frenchman who is often referred to as the father of sociology” (Davenport pg.4, 2009). Durkheim believed that laws were developed as a consensus made by the society of right and wrong. According to him crimes are made into crimes because the society decides that they are not whether or not the action in truly right or wrong. Marx had an opposing theory to Durkheim. “He taught that laws are a reflection of the interests or ideology of the ruling class” (Davenport pg.5, 2009). Marx believed that the upper class ruled the society and the laws were based on what best fit them and their needs. Sir William Blackstone believed that there are two different types of crime and was a mix of both Durkheim and Marx. He believed that there were some crimes that were bad, mala prohibita, and there were crimes that were pure evil, mala in se (Davenport pg.4, 2009).

There isn’t a specific theory that fits the legal system perfectly. There are many elements of each of these theories that definitely make up a large part of our legal system. Legal proceedings are classified into two groups; they are either civil or criminal. Both of these have a set of functions, procedures, and consequences. “Criminal law seeks to protect society as a whole from the aberrant (as defined by the law) behavior of some members of that society” (Davenport pg. 7, 2009). Criminal law was designed to protect the people’s rights and civil law was designed to resolve private disputes. Crimes are often put in three categories; summary offenses, misdemeanors, and felonies. These definitions can vary from state to state. Summary offenses are minor offenses like a speeding ticket or a minor traffic violation. Misdemeanors are crimes punishable by short prison sentences or a fine. Felonies are considered to be the most serious crime which are punishable by long prison sentences or death (Davenport pg. 7, 2009).

“The criminal trial process is a carefully orchestrated journey from suspicion to trial and possibly conviction or appeal. Convicted defendants may serve their sentence in full or be granted early release or parole after serving just part of the sentence” (Davenport pg. 17, 2009). The criminal process falls into four different phases; Investigation, arrest, pre-trial, trial, appeal, and serving the sentence (Davenport pg. 18, 2009). The criminal process begins when the law enforcement is alerted to a crime and they begin their investigation. If the crime is found to be committed they will arrest the criminal and begin the pre-trial. While most criminal cases are done by plea bargaining but if this does not happen the case will proceed to trial. Every defendant is entitled to some sort of appeal within 30 days with new evidence or more information. Once the trial is finished, the criminal will begin serving the sentence given to them, or wait for their appeal to be complete, at which time their sentence will start. Before anyone can be processed for a crime, the law enforcement must first find “the body of proof”. Let’s say the law enforcement was to find a dead body.

They must first figure out whether there was a crime committed or if it was an accident. Before prosecuting for any crime the state must show that there was in fact a crime committed. “The state cannot convict someone of a crime if it cannot show that the crime took place or that the confessor was tied somehow to the criminal act” (Davenport pg. 39, 2009). The three main elements of a crime are wrongful actions (actus reus) caused by a wrongful mind (mens rea) which resulted in damage or harm. In order to successfully convict someone of a crime, all areas must be proven (Davenport pg. 40, 2009). There are only a few crimes where not all have to be proven. Some scholars even include causation, this is the requirement that the act must cause harm. Other scholars have simply said that there is a principle of legality. This is the theory that an action is not a crime unless it is prohibited by law and assigned a punishment by the state. Mens rea describes a person’s intent while performing a criminal act and it is critical to distinguishing the nature of the crime.

This is the hardest part of the crime to prove because there is no specific measurement and can only be inferred from the circumstances of the crime. Strict liability crimes require only one wrongful act to require (Davenport pg. 41, 2009). Minor traffic violations, such as speeding, are an example of this. Another set of crimes that doesn’t require mens rea are vicarious liability violations, corporate liability, and respondeat superior. Vicarious liability is when someone is held responsible for someone else’s actions (Davenport pg. 41, 2009). Under corporate liability employers can be charged for a crime that their employees are carrying out. “The employer does not have to be aware of the employee’s actions to be held criminally liable; the liability comes from the employment relationship and the control that it gives the employer, or superior, over the employee” (Davenport pg. 41, 2009). The basis of strict liability is based on the criminals’ intent whereas vicarious liability relies on the standards of the superior in the relationship and what they allow those that are inferior to them do. A crime that causes harm is Actus Reus. “Furthermore, the prosecutor must persuade the jury or judge “beyond a reasonable doubt” of every fact necessary to constitute the crime charged.

In civil cases, the plaintiff needs to show a defendant is liable only by a “preponderance of the evidence,” or more than 50%” (Cornell University, 2010). A simple thought is not enough to charge someone criminally; they must follow through with the act and create harm (Davenport pg. 42, 2009). An example of this would be someone who chooses to go out and drink and then drive afterwards. This person would be held criminally liable for their actions even though the alcohol has impaired their abilities. Possession can be a huge part of this crime. For example, you can be in actual possession of drug paraphernalia, or a house guest could hide it in your spare bedroom without you knowing, which would be considered mere possession. Sometimes the failure to act is a crime known as omission (Davenport pg. 42, 2009). An example of this would be you seeing a child being abused and failing to file a report with the local police. People can also be charged for a crime should they not perform their duty by contract, such as a life guard not saving someone from drowning, or duty by relationship like a mom taking care of her children. Most crimes are a result of harm.

The severity of the crime depends on the severity of the punishment. “Crime results in five categories of harm: crimes against life, including murder, kidnapping, and battery; crimes against habitation, which include burglary and arson; crimes against property, including theft; crimes against the public order, such as traffic violations; and crimes against public morality, such as prostitution and drug use” (Davenport pg. 46, 2009). Certain actions may still be punishable even though no harm was done. An example of this would be internet hackers who intend to harm somebody’s computer with a virus but never follow through; they still accessed someone’s information which is illegal. In order to establish this, the state must show more than just a mere preparation. They must complete substantial steps in the course of committing the crime. Causation is the link between actus reas and harm. The state must be able to show that the one who caused the criminal conduct also caused the harm. “To do this, the courts rely on the concept of the but for rule—but for the defendant’s actions, the harm would not have occurred. Another name for this is sine qua non, which means “without which, not.” (Davenport pg. 47, 2009). In order to establish cause, prosecutors rely on the foreseeable consequences.

This would be something like shooting a gun in which bystanders may be shot. We are a large country that is a melting pot full of different people from different backgrounds. “The Statue of Liberty asks the world to “bring me your tired, your poor, your huddled masses yearning to breathe free.” On the other hand, as a nation we have been quick to judge and sometimes misjudge the loyalty of new arrivals, particularly in times of war or domestic turmoil” (Davenport pg. 184, 2009). Treason and sedition are crimes that show someone’s disloyalty to one’s own country. If you reside in a country, you owe it your loyalty. Treason is one of the crimes that are outwardly defined in the US Constitution. “As the Constitution states, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.’” (Finegold & Kim, 2011).

The Constitution also specifically requires one to produce more evidence against the accused than any other crime. Treason requires solid evidence or a confession in court before a conviction can be obtained (Davenport pg. 194, 2009). “Sedition is a conspiracy “to overthrow, put down, or to destroy by force the Government of the United States, or levy war against them, or to oppose the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” (Davenport pg. 197, 2009). The elements of sedition are conspiracy, overthrow of the United States, oppose by force the authority of the United States, prevent, hinder, or delay execution of law, and use of force (Hayes, 1997). To overthrow the United States is an agreement between two or more persons who engage in a criminal act (Davenport pg. 197, 2009). To oppose by force the authority of the United States is satisfied if the person(s) attempts by force to prevent actual exercise of federal authority (Davenport pg. 197, 2009).

To prevent, hinder, or delay execution of law is if the person(s) involved forcibly resist the government’s execution of the law (Davenport pg. 198, 2009). “Because treason is a crime singled out for special protection and can be hard to prove given the Constitution’s restrictions, Congress has enacted other laws designed to punish activities that serve the same purpose as treasonous behavior, but fall short of fitting the definition of treason” (Davenport pg.198, 2009). Espionage, rebellion or insurrection, and advocating overthrow of government are all seditious activities that could add up to treason but separately are considered federal crimes of terrorism (Hayes, 1997). Terrorism is the unlawful use or threat of violence especially against the state or the public as a politically motivated means of attack or coercion (Davenport pg.199, 2009). Our criminal justice is put in place in order to protect us from all of the crimes listed above.

They are not only set in place to protect us as a country, but they are set in place to protect other countries as well. Crimes can be something as simple as a misdemeanor or as large as terrorism and treason. “More commonly, criminal justice is street-level government, where everyday citizens interact with elected officials and law enforcement professionals as victims, witnesses, jurors, defendants, or convicts” (Davenport ix, 2009). Every society has laws that govern the behaviors of the members of the society. Before you prosecute anyone for a crime, the government must establish that a crime has truly been committed. The Constitution is set in place in order to give power to both the congress and the president in the time of war.


Cornell University. (2010, August 19). Criminal law. Retrieved from http://www.law.cornell. edu/wex/criminal_law
Davenport, 2009. Basic Criminal Law: The Constitution, Procedure, and Crimes, 2nd Edition. Pearson Learning Solutions.
Fichera, M. (2011, April). Criminal law beyond the state. Retrieved from http://search.proquest. com/pqrl/docview/864223254/13937A82D641F44161F/9?accountid=32521 Finegold, S., & Kim, G. (2011, December 07). Treason in the war on terror. Retrieved from

http://hpronline.org/covers/constitution/treason-in-the-war-on-terror/ Hayes, S. (1997, December 08). What is a war crime?. Retrieved from http://search.proquest. com/pqrl/docview/207584803/fulltext/13937B16E3E43E1483F/7?accountid=32521

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