Crime and Punishment, Term Paper Example

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Term Paper

Introduction

Given the opportunity to devise a penal code and Bill of Rights for a country just coming into existence, it is advisable, if not necessary, to be guided by previous models.  Human culture typically creates varieties of justice systems, ranging from the despotic and severe to the moderate and liberal.  None are uniformly successful, if only because a culture is inherently an evolving thing and subject to influences beyond any nation’s control.  The best that can be achieved, based on historical evidence, is a system that recognizes individual liberties in a way that does not permit them to impact negatively on others.  It is always a precarious balance, as the rights of all are weighed against the rights of each, a situation that invariably creates conflict.   Nonetheless, the system that holds to a reasonable and consistent concern for the society as a whole is the most ideal.  More exactly, personal liberties must be defined only after the system takes into account the critical commonality of all persons, and their rights as a body to be secure from danger.  The following codes, then, will represent the justice system and Bill of Rights of the new nation.

Bill of Rights

Before any new Bill of Rights is considered, the question must be asked: why?  It is essential to note that the U.S. Constitution was ratified without these articles, and that they are in the form of amendments, most of which were created to address concerns regarding the power of a centralized government (Ikerd, 2005,  p. 149).   Consequently, the majority of these rights are reactive.  The right to assembly, for instance, which would seem to be a natural right, is given authority based on potentials of a government to persecute rebellion.  The right to public trial in the Sixth Amendment addresses possible injustice from powers acting unethically.  Then, as these amendments themselves have been amended, there is a consistently greater emphasis on securing personal liberty, even at the cost to society, to prevent potential abuses by the federal government (Dautrich, Yalof, 2011,  p. 91).  For example,  the Fifth Amendment guards against double jeopardy, in that a tried suspect acquitted cannot be tried again.  On one level, this seems like a reasonable protection, and one validating the sanctity of the jury system.  On another, however, it ignores the unfortunate reality that juries are sometimes less than capable of rendering a just verdict.  As with many of the Bill of Rights articles, there is a dependence on democratic principles which subverts the interests of society and, often, justice itself.  It is also accepted that the U.S. Eighth Amendment, containing the “cruel; and unusual punishment” clause, is ambiguous.  On one level, it is the only moral judgment within the Bill of Rights, and consequently virtually an understood provision.  On another, it protects the most vulnerable members of society: convicted offenders (Bodenhamer, Ely, 2008,  p. 174).

Given these conflicts, the new country will adopt a constitution that contains within it the basic premises of the U.S. Bill of Rights, with some omissions.  What is aimed at is less of a dependence on subjectivity, and more of a reinforcement of only basic rights that reflect the natural and the positive.  In the country’s constitution, it will be explicitly stated that all citizens are entitled to freedom of religion, freedom of speech, the right to a public and impartial trial, and the right to keep and bear arms.  Crucially, all rights as recognized by the government are protected under the proviso that no freedom may be exercised if it limits the freedoms of others or endangers them.  This proviso eliminates the need to modify the rights, as such modifications (in the U.S. model) tend to promote more of the same.  The more basic these rights are as presented, the less need arises to segment them.  For example, freedom of speech intrinsically translates to freedom of the press, as the right to an impartial trial equates to proper representation guaranteed for all.

Penal Code

It is in the new country’s penal code that the bulk of the U.S. models of protection will be curtailed.  The country seeks to establish a just system of criminal justice, but it is not weighted toward the rights of the suspected offenders, nor sympathetic to those offenders who evade punishment through extraneous means and the invocation of “rights” that defy the code’s intent.  For example, the Fifth Amendment’s right against self-incrimination does not serve justice.  Provided the constitution’s basic liberties are upheld and that no suspect is unduly harassed by authorities, an individual’s admission of guilt, inadvertent or otherwise, is inherently relevant.  The U.S. Miranda law, by which the police must inform a suspect of the self-incrimination right, presupposes that the police will coerce statements (Acker, Brody,  2012,  p. 354).   Again, a statute is erected on a supposition, and not to secure any actual, natural or positive right.  The new country is determined to both adhere to essentials of proper conduct without presuming breaches of it, and legislating to forestall such eventualities.

Similarly, the U.S. law prohibiting “unreasonable” search and seizure is not considered, either in criminal investigations or the public sphere.  As the U.S. has experienced, the wording of this clause has generated thousands of Supreme Court examinations of its meaning (Acker, Brody, 2012, p. 45).   In no uncertain terms, it greatly limits the police in their work, while ostensibly protecting the rights of citizens.  It ignores, however, certain basic elements the new country, or any country, must observe.  Simply, it is not in the interests of the authorities to conduct searches where there is no reason to expect evidence.  Secondly, guiding forces in the system must be empowered to exercise discretion, which would validate and initiate any search.  Probable cause, upon which most of the disputes over search and seizure rest, is viewed by the new country as inevitable motive, and not a rationale to be devised afterward.   The new justice system, again, holds to tacit and constitutional expectations based on the realistic premise that the system will be governed by responsible individuals.  If this fails on occasion, the need then arises to address the transgressions, rather than create reactive legislation.

Regarding trial processes themselves, there will be a reversal of U.S. practice, in that bench trials will preside over more serious cases, and jury trials be conducted otherwise.  The jury system is an admirable nod to democratic ideals, but the reality is that ordinary people are too often swayed by extraneous factors.  Trials in which one or more experienced jurists sit are more likely to produce just verdicts based on the law.  This will also greatly streamline the entire system, as bench trials eliminate all the time, effort, and costs of creating a jury (Schubert, 2011,  p. 167).   Similarly, the new country’s appeal process will be refined to filter out unfounded appeals.  The process will exist, but only as officiated by a stringent board permitting only exceptional cases to be retried.

The new country’s sentencing will be rational and largely inflexible.  Victimless crimes, as in prostitution and drug use, will be treated as precisely that, and given little attention.  There is no point to employing moral senses to determine criminality, as the U.S. so disastrously does.  Other crimes will be sentenced according to a template only minimally taking into account mitigating circumstances, as a crime’s severity will be determined by the degree of harm it causes.  Non-violent crimes will be sentenced on a scale removed from violent ones, as any example of the latter will draw a more strictly observed incarceration period.    Parole opportunities for violent crimes, unlike the non-violent, will be virtually non-existent, as capital punishment will be in place for intentional acts of murder, torture, and kidnapping.   The new country refuses to entertain morality questions based on mutual culpability as created by capital punishment, as it finds the concept completely inapplicable.  It asserts, rather, that certain individuals are irredeemable and undeserving of life, as it holds that a contrary view must be based on a hopeful, unrealistic ethic of Christianity that does not actually reflect justice in the Christian sense.

Conclusion

In devising the basics of the new country’s constitution and penal codes, the model of the U.S. is consistently employed, as it most closely resembles the desired state.  Nonetheless, there are significant differences.  The new country will have no Bill of Rights, but will instead maintain in its constitution principles that are not reactive, and that affirm basic human liberties.  All rights are to be governed under the premise that each is subject to revoke if it challenges the liberties of others.  As to criminal justice, the new country adopts a rational, if adamant, posture.  No laws overtly providing undue opportunities for suspects are in place, even as all suspects are guaranteed fair treatment in the courts.  Trials will be primarily of the bench model, to ensure a consistent adherence to law, and sentencing will be rigorously enforced on violent crimes, with capital punishment enacted for the most violent.  Victimless crimes will be pursued only in exceptional cases, freeing the courts to focus on true crime.  Ultimately, the new country takes the U.S. model and restructures it in a more functional way, and one more going to serving the interests of all the people.

References

Acker, James R., & Brody, David C.  (2012).  Criminal Procedure: A Contemporary Approach. Sudbury: Jones & Bartlett Learning.

Bodenhamer, David J., & Ely, James W. (2008).   The Bill of Rights in Modern America. Bloomington:  Indiana University Press.

Dautrich,  Kenneth, & Yalof, David A. (2011).   American Government: Historical, Popular, and Global Perspectives.  Belmont: Cengage earning.

Ikerd, John E.  (2005).  Sustainable Capitalism: A Matter of Common Sense.  Bloomfield: Kumarian Press, Inc.

Schubert, Frank August. (2011).   Introduction to Law and the Legal System.  Belmont: Cengage Learning.

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