Uncommon Law: America's Excessive Criminal Law & Our Common-Law Origins

Daedalus ◽  
2014 ◽  
Vol 143 (3) ◽  
pp. 62-72
Author(s):  
Jonathan Simon
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Social Order ◽  
Justice System ◽  
Common Law ◽  
The United States ◽  
Criminal Courts ◽  
The Common

This essay explores the role that U.S. criminal courts play in shaping the uniquely punitive social order of the United States. U.S. courts have long been defined against the common law of England, from which they emerged. In this essay, I consider the English legacy and suggest that while the United States does draw heavily from common-law traditions, it has also innovated to alter them, a process that has established a criminal justice system even more punitive than that of England.

Does Australia Need a Specific Institution to Correct Wrongful Convictions?

2007 ◽  
Vol 40 (2) ◽  
pp. 179-198 ◽  
Author(s):  
Lynne Weathered
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Common Law ◽  
The United States ◽  
Current Situation ◽  
Wrongful Conviction ◽  
Wrongful Convictions ◽  
International Context

In recent years, hundreds of people have been exonerated overseas after demonstrating that they were wrongly convicted of crimes for which they spent many years in prison, and these are only the ones uncovered to date. Australia has its own sampling of known wrongful convictions. England, Canada and the United States have introduced different mechanisms to address in some fashion, the facilitation of exonerations. This article considers the current situation for the wrongly convicted in Australia, placing it within this international context. This comparison will demonstrate that Australia has fallen behind these other common law countries by failing to deliver new mechanisms, establish new bodies or incorporate new avenues that would enable the correction of wrongful conviction to occur. Wrongful conviction must now be recognised as an unenviable but inevitable part of any criminal justice system and a problem that should not be tolerated. Australia's criminal justice system must meet the challenge to update its provisions rather than continue to proceed under provisions other countries have identified as failing to meet the needs of the wrongly convicted.

Scaled Punishments

2013 ◽  
Vol 16 (3) ◽  
pp. 309-363 ◽  
Author(s):  
Matthew Wansley
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Confidence Level ◽  
Justice System ◽  
The United States ◽  
Reasonable Doubt ◽  
Collateral Consequences ◽  
Criminal Defendant

This article challenges the principle that punishment is only justified after a defendant has been found guilty beyond a reasonable doubt. It proposes instead a system of scaled punishments in which a defendant’s sentence would be proportioned to the jury’s reported confidence level in the defendant’s guilt. The criminal justice system already implements a series of implicit scaled punishments in the form of plea bargains. This article defends the counterintuitive conclusion that a system of explicit scaled punishments would better satisfy the aims of retribution, incapacitation, and deterrence that we take to legitimate punishment. A system of scaled punishments would smooth out the moral discontinuity that our binary verdict structure creates. It would more precisely align the collateral consequences of criminal adjudications with the risk each criminal defendant poses. It would better distribute the costs of legal error. Paradoxically, a system of scaled punishments would likely reduce net incarceration in the United States. Factual uncertainty is pervasive in criminal law, and a system of scaled punishments would respond to uncertainty more rationally.

scholarly journals Mercy towards decarceration: Examining the legal constraints on early release from prison

Incarceration ◽  
2020 ◽  
Vol 2 (1) ◽  
pp. 263266632097780
Author(s):  
Alexandra Cox ◽  
Dwayne Betts
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Family Members ◽  
The United States ◽  
Early Release ◽  
The Us ◽  
Legal Constraints ◽  
Release From Prison

There are close to seven million people under correctional supervision in the United States, both in prison and in the community. The US criminal justice system is widely regarded as an inherently unmerciful institution by scholars and policymakers but also by people who have spent time in prison and their family members; it is deeply punitive, racist, expansive and damaging in its reach. In this article, we probe the meanings of mercy for the institution of parole.

Criminal Justice in an Era of Mass Deportation

2017 ◽  
Vol 20 (1) ◽  
pp. 12-38 ◽  
Author(s):  
Ingrid V. Eagly
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
State Level ◽  
Plea Bargaining ◽  
The United States ◽  
Criminal Court ◽  
Law Enforcement Agencies ◽  
Collateral Consequence

After a sustained period of hypercriminalization, the United States criminal justice system is undergoing reform. Congress has reduced federal sentencing for drug crimes, prison growth is slowing, and some states are even closing prisons. Low-level crimes have been removed from criminal law books, and attention is beginning to focus on long-neglected issues such as bail and criminal court fines. Still largely overlooked in this era of ambitious reform, however, is the treatment of immigrants in the criminal justice system. An unprecedented focus on immigration enforcement targeted at “felons, not families” has resulted in a separate system of punitive treatment reserved for noncitizens, which includes crimes of migration, longer periods of pretrial detention, harsher criminal sentences, and the almost certain collateral consequence of lifetime banishment from the United States. For examples of state-level solutions to this predicament, this Essay turns to a trio of bold criminal justice reforms from California that (1) require prosecutors to consider immigration penalties in plea bargaining; (2) change the state definition of “misdemeanor” from a maximum sentence of a year to 364 days; and (3) instruct law enforcement agencies to not hold immigrants for deportation purposes unless they are first convicted of serious crimes. Together, these new laws provide an important window into how state criminal justice systems could begin to address some of the unique concerns of noncitizen criminal defendants.

Do Americans Like to Punish?

Metamorphosis ◽  
2018 ◽  
Author(s):  
Robert A. Ferguson
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Western Europe ◽  
The United States ◽  
Political Values ◽  
The People ◽  
American Prison

This chapter addresses the question of whether Americans like to punish. The United States clearly punishes more heavily and for longer periods than other countries, with comparable social and political values. One can land in an American prison for life over minor offenses—a punishment not used for serious offenses in Western Europe. The leading comparativist on criminology, James Whitman, argues that a politics of dignity has instilled mercy and mildness in European systems, while leveling impulses, distrust of authority, and too much power in the people is said to have left the United States with a criminal justice system long in degradation and short on mercy.

Sex Panic and Denial

2018 ◽  
Vol 21 (3) ◽  
pp. 458-482
Author(s):  
Corey Rayburn Yung
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Sex Offenders ◽  
Sexual Violence ◽  
Criminal Justice System ◽  
Justice System ◽  
American Culture ◽  
The United States ◽  
Social Goal ◽  
Residency Restrictions

The American criminal justice system regarding sex is not just logically incoherent, it is also often morally bankrupt because it remains unexamined and poorly understood. This Article contends that there are actually common roots underlying the seemingly oppositional forces of social panic and denial, which explain why the United States has an endemic sexual violence problem. Both panic and denial reinforce the implicit, and sometimes explicit, desire to avoid substantive engagement with socially contentious issues related to sex. The use of residency restrictions and civil commitment fit the modern social goal of putting sex offenders out-of-sight and out-of-mind. Yet, those same desires also explain America’s unwillingness to believe victims of sexual violence and police failure to properly investigate criminal complaints. In this way, sex panic dovetails with sex denial—in both instances, American culture only permits a limited discussion and understanding of sex and sexual violence. The result is that our nation fails to take sex crime complaints seriously while overreacting to the few convictions that emerge from the hostile criminal justice system.

“Visible” and “Invisible” Victims in the Criminal Justice System

2021 ◽  
pp. 1-23
Author(s):  
Armando Saponaro
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Common Law ◽  
The United States ◽  
Public Prosecutor ◽  
Law System ◽  
The Public ◽  
The United Kingdom ◽  
Victim Impact Statement

This chapter outlines the “conflict” and “peace-keeping” victim-oriented justice paradigms. The latter empowers the victims of crime, putting them at the center of an encounter and using interindividual mediation or collective circles to address conflict resolution. Two models are critically discussed in the conflict victim-oriented justice paradigm. The European continental “visible victim” model structures the role of the victim as a full-fledged processual party together with the public prosecutor and offender. In this model, the victim has the same rights and powers of the defendant. The “invisible victim” common law model views the victim as a trial witness, participating, for example, through a victim impact statement (in the United States) or victim personal statement (in the United Kingdom) at the sentencing stage. The visible victim conflict paradigm model enhances a victim's role and involvement in the criminal justice system, offering a solution to existing controversial and critical common law system issues.

Comparing Plea Bargaining and Abbreviated Trial Procedures

2019 ◽  
pp. 702-727
Author(s):  
Gwladys Gilliéron
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Civil Law ◽  
Plea Bargaining ◽  
The United States ◽  
Wrongful Convictions ◽  
The U.S

This chapter compares U.S. plea bargaining with plea-bargaining-type procedures and penal orders in Continental Europe, with reference to Switzerland, Germany, and France. It first considers consensual criminal procedures across jurisdictions and why they exist, focusing on plea bargaining in the U.S. criminal justice system and abbreviated trial procedures in European civil law systems. It then examines the extent to which abbreviated trial procedures in civil law systems differ from plea bargaining in the U.S. system, the problems inherent in consensual criminal procedures, and the question of whether there are any solutions. In particular, it explains how plea bargaining and penal orders may lead to wrongful convictions. Finally, it discusses prospects for reform of plea bargaining in the United States and in civil law systems in Europe.

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