Criminal Law in Liberal Capitalist Democracies

1
Criminal Law in Liberal Capitalist Democracies

• What is the rationale for criminal law and the
  public criminal justice system in liberal
  democratic society? How has the U.S. justice
  system evolved over time? Is the current emphasis
  on crime control consistent with the original
  vision?

2
Private Justice (Informal Social Control)

• Law is not codified.
• State plays little role in settling disputes.
• But possible involvement of religious officials.
• Victim or victims family is at the center of the
  process.
• Examples?
• Everything from lynching to restorative justice!

3
Public Justice

• Criminal law is codified as statutes.
• State assumes ownership of violations of
  criminal law.
• Monarch or society as victim of crime.
• Victim/victims family less central to the
  justice process.

4
Advantages and Disadvantages of Public Criminal
Justice Systems

• Advantages?
• Minimize feuding
• Sometimes guided by rules and procedures
  (accountability).
• Disadvantages?
• Victim is de-centered, loses control
• Can be used to buttress authority of the state

5
Public Justice in Early Modern Europe

• Laws were determined by monarch.
• But little separation of church and state.
• And much informal social control.
• Detection of violations by authorities was
  unlikely.
• Guilt/innocence often determined in an arbitrary
  manner (Trials-by-ordeal)
• Mercy bestowed by monarch arbitrarily.
• Harsh physical punishments were common.

6
Modern Democratic Legal Systems in Western Europe
and the U.S.

• Classical reformers sought to make criminal law
  and punishment
• Democratic
• Predictable
• Fair (proportional)
• Humane
• Democratization
• Law and penalties determined by elected
  representatives. Why?

7
Predictability/Equality

• Laws apply equally to all.
• This makes it possible to predict outcomes.
• Predictability is key to deterrence. Why?
• Assumed criminals rationally choose crime by
  weighing costs and benefits.
• Equality and predictability key to fairness.
• Everyone should get the same penalty.
• Laws apply to everyone.

8
Proportionality and Humanity

• Reformers advocated punishing just enough to
  deterno more.
• Shift from torture and physical punishments to
  fines and incarceration.
• More humane
• Could be quantified
• Rehabilitation further humanized punishment.

9
Modern European and U.S. Systems of Justice

• Combined these classical ideals with an emphasis
  on rehabilitation.
• Areas of consistency between these?
• Humanitarianism
• Tensions between the two?
• Rehabilitation may involve indeterminant
  sentences
• Determinations of rehabilitation may lead to
  different outcomes
• Represents a shift away from emphasis on
  deterrence

10
The Post-Rehabilitative Era Sources of Tension

• Some lament loss of rehabilitative ideal.
• Recent efforts to revive it.
• Also two co-existing visions of how the justice
  system should work
• The due process model
• The crime control model

11
The Due Process Model

• Emphasis is on providing the accused with
  protections against arbitrary state power.
• Presumption of innocence is paramountprotects
  individuals from government excess and error.
• Anyone can be accused by the state and is
  potentially a victim of excessive state power.

12
1960s Due Process Revolution in U.S. Criminal Law

• Mapp v. Ohio-most law enforcement searches
  require warrants.
• Gideon v. Wainwright-defendants are guaranteed
  the right to counsel.
• Escobedo v. Illinois-coerced confessions are
  inadmissible in court.
• Miranda v. Arizona suspects must be informed of
  their legal rights upon arrest.

13
The Crime Control Model

• The principal goal is to control/reduce crime.
• Assumption that victims and perpetrators are
  different groups.
• The system is considered just to the extent that
  it is effective.
• Efficiency is measured in terms of arrests,
  convictions.
• Efficiency requires assumption of guilt rather
  than innocence.
• Reduces time between crime and punishment (which
  enhances deterrent effect).
• Speed enhances symbolic impact as well.

14
Ascendance of Crime Control Model

• Defendants rights have been scaled back.
• Entrapment, search and seizure law.
• Most extreme in cases involving non-U.S.
  citizens.
• Punishments made more determinant, severe.
• Mandatory minimums sentencing laws passed.
• Right to appeal criminal convictions curtailed
  (Clinton 1996).

15
Question Is the crime control model consistent
with the democratic ideals of the classical
reformers?

• How could you make the case that it is?
• How could you make the case that it isnt?
• What do you think?