LESSON III: COMPARATIVE CRIMINAL JUSTICE SYSTEM

AA. COMPARATIVE LAW ENFORCEMENT

A. Societal Type and Police System
1. FOLK – COMMUNAL SOCIETIES
– which are also called primitive societies – has little codification of law, no
specialization among police, and a system of punishment that just let things
go for a while without attention until things become too much, and then
harsh, barbaric punishment is resorted to.
-Classic examples include the early Roman gentiles, African and Middle
Eastern tribes, and Puritan settlements in North America.
2. URBAN – COMMERCIAL SOCIETIES
– which rely on trade as the essence of their market system – has civil law
(some standards and customs are written down), specialized police forces
(some for religious offenses, others for enforcing the King's law), and
punishment is inconsistent, sometimes harsh, sometimes lenient.
-Most of Continental Europe developed along this path.
--not professionalized dahil yung mga punishment ay pa-iba iba
3. URBAN – INDUSTRIAL SOCIETIES
– which produce most of the goods and services they need without
government interference – not only has codified laws (statutes that prohibit)
but laws that prescribe good behavior, police become specialized in how to
handle property crimes, and the system of punishment is run on market
principles of creating incentives and disincentives.
-England and the U.S. followed this positive legal path.
--hindi nangengelam ang gov’t
4. BUREAUCRATIC SOCIETIES, OR MODERN POST –
INDUSTRIAL SOCIETIES
– where the emphasis is upon technique or the "technologizing" of
everything, with the government taking the lead – has a system of laws
(along with armies of lawyers), police who tend to keep busy handling
political crime and terrorism, and a system of punishment characterized by
over criminalization and overcrowding.
-The U.S. and perhaps only eight other nations fit the bureaucratic pattern.
-Juvenile delinquency is a phenomenon that only occurs in a bureaucratic
society.
5. POST-MODERN SOCIETY- where the emphasis is upon the meaning
of words and the deconstruction of institutions.
---OVERCRIMINALIZATION is the cause of modernization
B. TYPES OF POLICE SYSTEMS
-It is the consensus of experts that there are four types of criminal justice
systems in the world:
1. COMMON/ COMMON LAW SYSTEMS
-are also known as Anglo-American justice, and exist in most English-
speaking countries of the world, such as the U.S., England, Australia, and
New Zealand.
-They are distinguished by a strong adversarial system where lawyers
interpret and judges are bound by precedent.
-Common law systems are distinctive in the significance they attach to
precedent (the importance of previously decided cases).
-They primarily rely upon oral systems of evidence in which the public trial
is a main focal point.
2. CIVIL/ CIVIL LAW SYSTEMS
- are also known as Continental justice or Romano-Germanic justice, and
practiced throughout most of the European Union as well as elsewhere, in
places such as Sweden, Germany, France, and Japan.
-They are distinguished by a strong inquisitorial system where less right is
granted to the accused, and the written law is taken as gospel and subject to
little interpretation.
For example, a French maxim goes like this: "If a judge knows the
answer, he must not be prohibited from achieving it by undue attention to
regulations of procedure and evidence."
By contrast, the common law method is for a judge to at least
suspend belief until the event of a trial is over. Legal scholarship is much
more sophisticated and elitist in civil law systems, as opposed to the more
democratic common law countries where just about anybody can get into
law school.
Romano-Germanic systems are founded on the basis of natural law,
which is a respect for tradition and custom. The sovereigns, or leaders, of a
civil law system are considered above the law, as opposed to the common
law notion that nobody is above the law.
3. SOCIALIST/ SOCIALIST SYSTEMS
-are also known as Marxist-Leninist justice, and exist in many places, such
as Africa and Asia, where there had been a Communist revolution or the
remnants of one.
-They are distinguished by procedures designed to rehabilitate or retrain
people into fulfilling their responsibilities to the state.
-It is the ultimate expression of positive law, designed to move the state
forward toward the perfectibility of state and mankind.
-It is also primarily characterized by administrative law, where non-legal
officials make most of the decisions.
For example, in a socialist state, neither judges nor lawyers are
allowed to make law. Law is the same as policy, and an orthodox Marxist
view is that eventually, the law will not be necessary.
--China and Russia
4. ISLAMIC/ ISLAMIC SYSTEMS
-are also known as Muslim or Arabic justice, and derive all their
procedures and practices from interpretation of the Koran.
-There are exceptions, however. Various tribes (such as the Siwa in the
desert of North Africa) are descendants of the ancient Greeks and practice
Urrf law (the law of tradition) rather than the harsher Shariah punishments.
-Islamic systems in general are characterized by the absence of positive law
(the use of law to move societies forward toward some progressive future)
and are based more on the concept of natural justice (crimes are considered
acts of injustice that conflict with tradition).
-Religion plays an important role in Islamic systems. Most nations of this
type are theocracies, where legal rule and religious rule go together.
--kinds of punishment: IMPRISONMENT, FINE, CANNING
C. COMPARATIVE COURT SYSTEM
Court systems of the world are of two types:
1. ADVERSARIAL
– where the accused is innocent until proven guilty.
-The U.S. adversarial system is unique in the world. No other nation, not
even the U.K., places as much emphasis upon determination of factual guilt
in the courtroom as the U.S. does.
--PHILIPPINES is under this system
2. INQUISITORIAL
– where the accused is guilty until proven innocent or mitigated, have more
secret procedures.
-Outside the U.S., most trials are concerned with legal guilt where everyone
knows the offender did it, and the purpose is to get the offender to apologize,
own up to their responsibility, argue for mercy, or suggest an appropriate
sentence for themselves.
D. COMPARATIVE CORRECTIONAL SYSTEM
Correctional systems worldwide can be easily distinguished by whether
they support corporal punishment (beatings) or not. Some so-called
"civilized" countries claim they are better than the U.S. because they don't
perform death penalty but actually practice such corporal punishments as
beatings and whippings. Nations that practice corporal punishment do tend,
however, to have less of a correctional overcrowding problem. Probation
and parole, where they exist cross-culturally, are applied to the country’s
citizens, and not for foreigners or immigrants.
E. COMPARATIVE JUVENILE JUSTICE SYSTEM
Juvenile Justice Systems vary widely. SCOTLAND has the toughest
system, regularly sentencing juveniles to harsh boot camps with a strict
military regimen and forced labor. GERMANY has a juvenile justice
system similar to the U.S., where more emphasis is upon education as
punishment.
F. THEORIES OF COMPARATIVE POLICING
1. ALERTNESS TO CRIME THEORY
– that as a nation develops, people's alertness to crime is heightened.
-They report more crime to police and demand the police to become more
effective in solving crime problems.
2. ECONOMIC OR MIGRATION THEORY
– that crime everywhere is the result of unrestrained migration and
overpopulation in urban areas such as ghettos and slums.
3. OPPORTUNITY THEORY
– that along with higher standards of living, victims become more careless
of their belongings, and opportunities for committing crime multiply.
4. DEMOGRAPHIC THEORY
– is based on the event when a greater number of children are being born.
-As these baby booms grow up, delinquent subcultures develop out of the
adolescent identity crisis.
--generation of people
5. DEPRIVATION THEORY
– that progress comes along with rising expectations.
-People at the bottom develop unrealistic expectations while people at the
top don't see themselves rising fast enough.
6. MODERNIZATION THEORY
– the problem as society becoming too complex.
7. ANOMIE AND SYNOMIE
– (the latter being a term referring to social cohesion on values) – that
progressive lifestyles and norms result in the disintegration of older norms
that once held people together (anomie).
BB. POLICING POLICY MODELS
A. EXPECTATION – INTEGRATION MODEL
1. ENVIRONMENTAL EXPECTATIONS
= Societal trends and problems – in general and each community – create
and environment.
= Changing social and economic trends and problems in the society or a
particular community often affect the police.
= For instance, there may be rapid growth in population, an economic
recession, a drug problem. The community environment includes problems
unique to a particular community.
--mga taong nakapaligid sayo
2. ORGANIZATIONAL EXPECTATIONS
= Organizational expectations came from both formal and informal aspects
of a police department.
= Formal expectations are derived from leaders, supervisors, training
programs, and the goals, objectives, policies, procedures, and regulations of
the police department.
= Informal expectations are derived from the officers’ peers and work
group.
= Officers are strongly influenced by their work experiences and the way
they adjust to the emotional, psychological, intellectual, and physical
demands of police.
= They must attempt to do their job in a manner that is acceptable to both the
police department and their peers, they must try not to be injured or killed or
allow other officers or citizens to be injured or killed, and their conduct must
not provoke citizen complaints.
= Together, formal and informal organizational expectations create an
organizational culture that can be defined as the pattern of basic assumptions
that the police the police have invented, discovered or developed in learning
to cope with its problem of the external adaptation and internal integration
that have worked well enough to be considered valid.
3. LEGAL EXPECTATION
= Legal expectation of the police is derived from substantial and procedural
criminal laws and legal requirements that have resulted from civil suits.
= These laws provide the basic framework in which the police are supposed
to function.
= Although the police do not always follow the law, legal expectations have
a substantial influence on what they do and how they behave.
= In addition, as noted, the police do not enforce all laws, rather, they
exercise discretion in deciding what laws to enforce and how to enforce
them. These discretionary decisions may not always be compatible with
what either the formal organization or the community expects. Attempts to
integrate environmental, organizational and legal expectations have resulted
in several recurring debates about the police role in the society.
B. LEGALISTIC OR POLITICAL
A. THE RULE OF LAW VS. COMMUNITY EXPECTATIONS
= The legalistic (or bureaucratic, quasi-military, professional or reform)
approach assumes that justice is a product of consistent application of laws
and departmental policies and procedures.
= Ideally, the laws, policies and procedures are rationally developed and free
of any bias that would be inconsistent with the fundamental principles of the
society.
= The political view of the police role rests on one of two assumptions, one
is that laws and the police primarily serves the interest of the most
influential persons in the community. Such individual is considered to be
above the law, whereas others are treated more harshly. This view leads to
politics of preference and discrimination.
= The second assumption focuses on responsiveness and individualization. It
advocates that strict enforcement of the rules does not consider the
uniqueness of the problems and needs of individuals and neighborhood
groups in the community.
B. THREE TYPES OF POLICE – COMMUNITY RELATION
1. POLITICAL MODEL – refers to the police-community relation that is
plagued by problems of preferential treatment, discrimination and
corruption.
2. LEGALISTIC MODEL – assumes that political influence has a
corrupting influence on policing, therefore, the police community –
relationship must be more structured or bureaucratic.
3. COMMUNITY POLICING MODEL – based on the desirability of the
police being responsive to individuals and groups without engaging in
preferential treatment or discrimination.
C. CRIME FIGHTER OR SOCIAL – SERVICE WORKER
= The question as to whether the police should only fight crime or also
provide social services influence the priority given to police activities, the
type of personnel selected, the way officers are trained and styles of officers.
= Crime fighters believe that crime is a function of a rational choice by the
criminals and that the primary police purpose is to patrol and conduct
investigations to deter crime and apprehend offenders.
= A social-service worker believes that crime results from a variety of causes
and there are other police activities like crime prevention education and
community building that may also reduce the crime rate.
= The social service orientation tends to result in more police community
involvement and a less aggressive and authoritarian approach to policing.
D. PROACTIVE OR REACTIVE MODEL
1. PROACTIVE POLICE
– work emphasizes police-initiated activities of the individual officers and
the department.
-Developing a response to a crime or another problem that is designed to
keep a crime from occurring is proactive.
Example: undercover decoy programs, stakeouts, etc.
2. REACTIVE POLICE
– work is more on a response to a problem by police when assistance is
specifically requested by citizens.
-Responding to specific problems based on citizens requests and following
up on those problems are reactive responses.
E. THREE METHODS USED TO DEFINE POLICE ROLE
1. VALUES
= Fundamental assumptions that guide department and the individual officer
in the exercise of discretion the values of the department determine police
goals, how resources are used, strategies, and the styles of officers.
A. LAW ENFORCEMENT ORIENTED VALUES
– Police authority is based on the law, and law enforcement is the primary
police objectives. Communities can provide police with assistance and
information in enforcing the law.
Responding to calls for service is the highest priority, and calls must receive
the possible fastest response.
Social and neighborhood problem are not the responsibility of the police
unless they threaten the breakdown of public order. Police, as experts, are
best suited to determine crime-control priorities and strategies
B. COMMUNITY - ORIENTED VALUES
– The police will involve the community in all activities, including the
development of policies that affect the quality of community life.
-The police believe that strategies must preserve and advance democratic
values. The police must structure the delivery of services so that it will
reinforce the strengths of the neighborhood. Employees must have inputs
into matters that influence job satisfaction and effectiveness.
2. GOALS
-Sometimes called purposes or objectives or aims. When the goals approach
is used to define the police role, several goals are usually listed for the
police.
SOME POSITIVE GOALS FOR THE POLICE
1. PREVENTION OF CRIMES
2. REDUCTION OF THE FEAR OF CRIME
3. MAINTENANCE OF PEACE AND ORDER
4. PROTECTION OF LIVES AND PROPERTIES
5. ENFORCEMENT OF LAWS
6. DETECTION OF CRIMES
7. APPREHENSION OF OFFENDERS
8. TRAFFIC CONTROL
9. RESPONSIVENESS TO COMMUNITY NEEDS
10. MANAGEMENT OF INTERGROUP CONFLICT
11. PROTECTION OF INDIVIDUAL RIGHTS
12. PROVISION OF ADDITIONAL PUBLIC SERVICE
3. STRATEGIES
-Broadly conceptualized police activities that are assumed to have an impact
on the attitudes and behavior of individuals.
BASIC POLICE STRATEGIES
1. LAW ENFORCEMENT STRATEGIES
– invoke the formal sanctions of government.
Example: making arrest, issuing citations, conducting investigations,
stopping suspicious persons, etc.
2. PRESENCE STRATEGY
– the police are visible, or identifiable in the community, that is, wearing
uniforms, patrolling in marked vehicles, etc.
3. EDUCATION STRATEGY
– involves providing knowledge and skills that will reduce the likelihood
they will become victimized.
-For potential and convicted criminals, education involves appeals for moral
behavior and clarifying the possible consequences of criminal conduct not
only for themselves but also for the individuals they victimize.