Criminology and the Rule of Law

Chapter 4
The Rule of Law
Overview
The chapter begins by distinguishing between two types of law. Criminal law is a formal means of social control that uses rules, interpreted and enforced by the courts, to set limits on the conduct of the citizens, to guide the officials, and to define unacceptable behavior. Civil law is a means of resolving conflicts between individuals. It includes personal injury claims (torts), the law of contracts and property, and subjects such as administrative law and the regulation of public utilities. The author defines substantive law, procedural law and due process of law.
The text defines the five ideal features of good criminal laws. They include politicality, specificity, regularity, uniformity, and penal sanction.
The origins of criminal law are explored with a brief history of law in England and the law of early America. The history of the common law in England is examined with its influence on American law. The issue of constitutional law is discussed. Other law such as administrative and regulatory law is presented.
The chapter then enters into a broad discussion of procedural law. It concentrates on the rights of the accused. The Bill of Rights is discussed as a prelude to the most important amendments in procedural law. The author then explains, in detail, the Fourteenth, Fourth, Fifth, Sixth and Eighth Amendments to the U.S. Constitution with corresponding case law citations and brief summaries.
The Fourth Amendment deals with the issue of search and seizure. It reads:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
The Fifth Amendment deals with the issues of self-incrimination. It reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

The Sixth Amendment deals with the issue of a right to an attorney. It reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
The Eight Amendment deals with the issue of cruel and unusual punishment: It reads:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The chapter ends with a discussion of the many miscarriages of justice. The legal system of the United States is unique in the world in the number of procedural rights that it provides people suspected or accused of crimes. The primary reason for procedural rights is to protect innocent people from being arrested, charged, and convicted, or punished for crimes they did not commit. One of the basic tenets of the American legal system is that a person is innocent until proven guilty. The chapter deals with these issues and presents some alternatives for reform.
Lecture Outline
I. Two Types of Law: Criminal Law and Civil Law
A. Criminal law is one of two general types of law practiced in the United States (the other is civil law). Criminal law is a formal means of social control that involves the use of rules that interpreted, and are enforceable, by the courts of a political community. The function of the rules is to set limits to the conduct of the citizens, to guide the officials (police and other administrators), and to define conditions of deviance or unacceptable behavior.
1. Substantive Law: The body of law that defines criminal offenses and their penalties.
2. Procedural Law: Procedural law governs the ways in which the substantive laws are to be administered.
B. Ideal Characteristics of the Criminal Law
1. Politicality
2. Specificity
3. Regularity
4. Uniformity
5. Penal Sanction

C. Criminal Law as a Political Phenomenon
1. Origins of Law
2. England’s Contribution to American Criminal Law
a. Magna Carta

D. Creating Criminal Laws in the United States
1. Constitution and Legislative Bodies
2. Common Law
a. Precedent
b. Stare Decisis
3. Administrative or Regulatory Agency Decisions
4. Interdependency among sources of legal authority

II. Procedural Law: Rights of the Accused A. The Bill of Rights B. The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
1. Searches
2. Seizures
a. Warrants
b. Arrests
3. Searches and Seizures with a Warrant
4. Arrests with a Warrant
5. Search and Seizure without a Warrant
a. 2009 qualified change in Arizona v. Gant
6. Arrests without a warrant
7. Standards of Proof
8. The Exclusionary Rule
9. The PATRIOT Act
a. “sneek-and-peak” searches
b. FISA
i. Changes in exigent letters ii. March 2010 extension
C. The Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
1. The State and District Wherein the Crime Shall have been committed
2. Right to be Informed of the nature and cause of the accusation
3. Right to Grand jury indictment and protection against double jeopardy
4. Protection against self incrimination
Note the 2010 Court “backed off” strict enforcement of Miranda D. The Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
1. Right to a Speedy and Public Trial
2. Right to Impartial Jury of the State and District Wherein the Crime Shall Have Been Committed
3. Right to Be Informed of the Nature and Cause of the Accusation
4. Right to Confront Opposing Witnesses
5. Right to Compulsory Process for Obtaining Favorable Witnesses
6. Right to Counsel

E. The Eighth Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
1. Protection Against Excessive Bail and Fines
2. Protection Against Cruel and Unusual Punishments

III. Protecting the Accused from Miscarriages of Justice
A. Innocence Project