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- Comparing Courts—India and America
- Compare the U.S. Justice System Ti India's Justice System Research Paper
- Fairness in the Criminal Justice System
The charging decision is critical, because it determines whether a person will face criminal charges and ultimately risk the loss of liberty. The prosecutor is in control at this stage, even in jurisdictions where grand juries investigate and bring charges through the indictment process 1. She can dismiss the case, even if there is evidence sufficient to prove the case beyond a reasonable doubt.
Neither the judge nor any member of the community would have standing to challenge this decision 2.
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Since there is never a formal charge before these dismissals, there is no case before the judge and no need to appoint a defense attorney. The significance of this decision cannot be overstated. In most states, possession of cocaine is a misdemeanor with a maximum penalty of one year in jail while possession with intent to distribute cocaine and distribution of cocaine are felonies with mandatory minimum terms of imprisonment 3.
Depending on the statute, the mandatory prison term may be as much as five or ten years, or even more. If the defendant has prior convictions, the mandatory term may be longer. In the federal system, the drug laws carry even harsher penalties. Even if the amount is large enough for a judge or jury to conclude that the defendant possessed the drug for the purpose of distribution, the prosecutor may decide to charge the person with simple possession of cocaine.
Conversely, even if the amount seems relatively small, a prosecutor may charge the person with possession with intent to distribute if she believes she has evidence that would prove that the defendant intended to sell that amount.
Otto Obermaier, a former prosecutor in the U. If you push and pull a whole lot you can reach almost any conclusion you want about what you actually charge a person with You can call the same act by several names, and each one brings about a different result in prison time 4. Depending on the law and the existence of mandatory jail time, he may be eligible for probation if the charge is simple possession.
If the charge is possession with intent to distribute or distribution, the judge may be required to sentence him to prison for a mandatory term of years, and that mandatory term may be lengthy. Nonetheless, Ms. Smith was charged with numerous serious offenses in federal court.
Comparing Courts—India and America
After charging her with these offenses, the prosecutors attempted to make a deal that would involve dismissing most of the charges in exchange for her testimony, but Mr. Hall was murdered before any agreement was reached. Despite her minimal involvement in Mr. Smith with these offenses was totally discretionary and not necessarily defensible. Her minimal, indirect involvement in Mr. But this critical decision was left totally to the prosecutor, whose discretion was almost boundless. The prosecutor had the power to dismiss some or all of the charges, with or without a plea bargain.
His decision to go forward with the charges determined the outcome of the case because the sentencing laws did not permit the judge to exercise discretion, instead requiring a mandatory minimum term of imprisonment. Although prosecutors always have wielded a disproportionate amount of power in the criminal justice system, mandatory minimum sentencing laws and the threat of long prison terms have shifted the balance of power in a way that dangerously threatens core principals of fairness and justice.
Because the mandatory minimum sentencing laws require a specific term of imprisonment upon conviction, the judge has no power to show leniency at the sentencing hearing. Defendants plead guilty in 95 percent of all criminal cases through the plea-bargaining process 6 , which is controlled entirely by the prosecutor.
Although the defendant may make a counter offer and attempt to negotiate the best deal possible, the prosecutor must agree to the final terms of the agreement.
If a defendant is charged with several offenses and each offense carries a lengthy term of imprisonment, the defendant faces the prospect of many years in prison if he is convicted of all charges. If one or more of the offenses carries a mandatory minimum term of imprisonment, that prospect becomes a guarantee. For many defendants, the possibility that a jury or judge may acquit him of the charges is too risky and uncertain. If he accepts a plea offer, he knows how much time he faces and how much time he avoids.
Before the mandatory minimum phenomenon, even if a defendant were convicted of all charges, he would at least have the opportunity to try to convince the sentencing judge that he should be given a lenient sentence, or even probation. Mandatory minimum sentencing laws remove that possibility. Robinson was charged with a number of crack conspiracy and weapons charges.
Robinson rejected the deal, which involved dismissal of some of the charges and would have exposed him to a maximum of twenty-four to twenty-seven years in prison. He went to trial, was convicted, and was sentenced to forty-five years in prison. The prosecutors argued that he should have received more 7.
The purpose of this practice is to goad the defendant into pleading guilty to a lesser offense. For example, a prosecutor may charge a defendant with Possession with Intent to Distribute Cocaine that may carry a mandatory minimum sentence of five years. Although she may have had enough evidence to convince a grand juror that there was probable cause to believe the defendant committed the offense 8 , she may doubt whether the evidence is sufficient to prove guilt beyond a reasonable doubt at a jury trial.
So the prosecutor may offer the defendant a plea to possession of cocaine, a misdemeanor offense that carries a maximum term of one year in jail with the possibility of probation. Even an innocent defendant with an absolute defense to the lesser possession charge might plead guilty to the misdemeanor to avoid the risk of being convicted of the higher charge after trial and facing a certain five years in prison. These decisions become even more difficult when the prosecutor requires the defendant to accept or reject the offer on the spot, leaving no time for substantial consultation with counsel or investigation of possible defenses.
Some defendants feel compelled to accept the offer because the prospect of a certain and lengthy prison term is too frightening. However, she also serves a quasi-judicial role in that her primary duty is to see that justice is done.
Compare the U.S. Justice System Ti India's Justice System Research Paper
A report released by the Bureau of Justice Statistics found that a black male had a 1 in 3 chance of being imprisoned during his lifetime, compared to a 1 in 6 chance for a Latino male and a 1 in 17 chance for a white male These staggering statistics only begin to tell the story of the stark racial disparities that characterize the American criminal justice system. They include socio-economic disadvantage and its consequences 14 , disproportionate offending in certain categories of crime 15 , and discriminatory treatment in the criminal justice system Thus, the causes of and solutions to the problem lie both outside and within the criminal justice system.
Few, if any, prosecutors intentionally or even consciously make decisions based on race. However, the many race neutral decisions that prosecutors make at the charging and plea bargaining stages of the process may be the result of unconscious and deeply internalized biases that have a racially disparate, and thus harmful, effect.
These factors include the strength of the evidence, the likelihood of conviction, the interest of the victim in prosecution, and the cost and complexity of the prosecution and trial A prosecutor may unconsciously consider a case involving a white victim as more serious than a case involving a black victim. This unconscious view may influence not only the charging decision, but related decisions as well.
If a prosecutor deems a particular case to be more serious than others, she will tend to invest more time and resources in that case, both investigating and preparing for trial. Jurisprudence does not necessarily play a similar role to case law. Courts can decide if they follow jurisprudence in a given case or not.
In the United States court system , the Supreme Court is the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it, as well as the constitutionality of the various state laws; in the US federal court system , federal cases are tried in trial courts , known as the US district courts , followed by appellate courts and then the Supreme Court.
In France , the final authority on the interpretation of the law is the Council of State for administrative cases, and the Court of Cassation for civil and criminal cases. In the People's Republic of China , the final authority on the interpretation of the law is the National People's Congress. Other countries such as Argentina have mixed systems that include lower courts, appeals courts, a cassation court for criminal law and a Supreme Court.
In this system the Supreme Court is always the final authority, but criminal cases have four stages, one more than civil law does. On the court sits a total of nine justices.
This number has been changed several times. Japan 's process for selecting judges is longer and more stringent than in various countries, like the United States and in Mexico. Once appointed, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed by the Supreme Court of Japan. Judges require ten years of experience in practical affairs, as a public prosecutor or practicing attorney. In the Japanese judicial branch there is the Supreme Court, eight high courts, fifty district courts, fifty family courts, and summary courts.
Justices of the Mexican Supreme Court are appointed by the President of Mexico , and then are approved by the Mexican Senate to serve for a life term. Other justices are appointed by the Supreme Court and serve for six years. Federal courts consist of the 21 magistrates of the Supreme Court, 32 circuit tribunals and 98 district courts.
Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination. The Supreme Court justices serve for a life term or until retirement. The Supreme Court is located in Washington, D. The United States federal court system consists of 94 federal judicial districts. The 94 districts are then divided up into twelve regional circuits. Immigration courts are not part of the judicial branch; immigration judges are employees of the Executive Office for Immigration Review , part of the United States Department of Justice in the executive branch.
From Wikipedia, the free encyclopedia. System of courts that interprets and applies the law.
Fairness in the Criminal Justice System
For judicial systems of individual countries other than Japan and the US for which see below , and some US states, see "Judiciary of Main article: Judicial system of Japan. Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven: Yale University Press. Burger The High Cost and Effect of Litigation , 3 vols. Frank, Jerome Law and the Modern Mind. Levi, Edward H. Chicago: University of Chicago Press. Marshall, Thurgood Chicago: Lawrence Hill Books.
McCloskey, Robert G. The American Supreme Court , 4th ed. Miller, Arthur S. Westport, CT: Greenwood Press. Sandefur, Timothy In Hamowy, Ronald ed. The Encyclopedia of Libertarianism. Tribe, Laurence New York: Random House. Zelermyer, William The Legal System in Operation. Paul, MN: West Publishing. Cambridge: Cambridge University Press.
European legal history: a cultural and political perspective. Translated by Arriens, Jan. Cambridge, UK. Historical Introduction to the Study of Roman Law. Oxford Classical Dictionary 4th ed. Advancing his project of exploring normative issues at the heart of criminal law and criminal justice, the chapters examine the important and fascinating debates i Advancing his project of exploring normative issues at the heart of criminal law and criminal justice, the chapters examine the important and fascinating debates in which Ashworth's influence has been greatest.
The chapters fall into three distinct but related areas, reflecting Ashworth's primary spheres of influence. Those in Part 1 address the import and role of principles in the development of a just criminal law, with contributions focusing upon core tenets such as the presumption of innocence, fairness, accountability, the principles of criminal liability, and the grounds for defences.
Part 2 addresses questions of human rights and due process protections in both domestic and international law. In Part 3 the chapters are addressed to core issues in sentencing and punishment: they explore questions of equality, proportionality, adherence to the rule of law, the totality principle in respect of multiple offences , wrongful acquittals, and unduly lenient sentences.
Together they demonstrate how important Ashworth's work has been in shaping how we think about criminal law and criminal justice, and make their own invaluable contribution to contemporary discussions of criminalization and punishment. Keywords: Andrew Ashworth , criminal law , criminal justice , criminalization , criminal process , sentencing , accountability , criminal liability , human rights , due process.
Julian V. Roberts, editor Professor of Criminology, University of Oxford. Forgot password?