Paper Example on Criminal Law

INTERMEDIATE SANCTIONS

The government's power to enforce criminal punishments can be traced back to the concept of Social Contract. Essentially, this theory says that people used to live in 'the state of nature' in which everyone had 'natural rights' to do as they pleased. This stopped when people together to create a civil society for their collective safety. The Social Contract is the process of surrendering some natural rights needed for the government created to oversee civil society to do its job in exchange for social order and protection from outside threats. As a member of civil society, people still retain natural rights they would have had in the state of nature but they surrender some natural rights to the government needed to execute its mandate. This Social Contract theory has shaped the contemporary view of criminal punishments as the exercise of public powers donated to the state to limit the natural rights of people who engage in criminal activities. For example, the death penalty takes away a convict's right to life while imprisonment takes away a convict's right to liberty.

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The government's right to punish is grounded in the justification that crimes are a violation of the laws of nature and since the Social Contract transfers the natural right to punish the government, it then becomes the responsibility of the government to use the sword of justice given to it by the consent of its citizens to punish criminals. From this perspective, the traditional purpose of criminal punishment is deterrence based on the belief that people make the rational choice to do crimes. Thus by seeing a criminal offender arrested and punished by the state by taking away their natural rights, members of a society will be motivated not to break the law.

There is a need for the severity of punishments to match the seriousness of the offense. This is because a criminal justice system is seen as valuable by a society when it is considered to be fair. This fairness may be procedural or substantive. While procedural fairness means that accused persons have the benefit of due process of the law, substantive fairness means that the severity of punishments is proportional to the guilt of a convicted person. It is only when these two branches of the idea of fairness are present can public opinion view a criminal justice system as legitimate. The benefit of this kind of positive public opinion is that it promotes compliance with the law and legal institutions. This is because a criminal justice system that society thinks is procedurally unfair or substantively unjust provokes resistance that undermines the operation of criminal law.

In the contemporary world, a criminal justice system purely driven by the retributive justice aim of deterrence using imprisonment is problematic. This is because when every criminal sanction carries a jail sentence, it leads to overcrowding driving the costs of running prisons up to the detriment of taxpayers. The desire to hold offenders accountable for their actions while keeping the costs down lead to the creation of intermediate sanctions. This is an umbrella term which encompasses the use of house arrest with electronic monitoring, work release programs, and supervised labor in the community instead of jailing criminal offenders. As the number of people in America increased, the number of people in jail increased as well creating a strain on limited public resources. These intermediate sentences are an aggressive form of probation which requires that a convict diverted into them abide by certain rules in order to stay out of jail. This use of the coercive power of the state to mold behavior has the benefit of protecting society from criminality at a cheaper cost for taxpayers compared to putting more people in jail.

PRISONER NEEDS AND OBLIGATIONS

When a child is exposed to physical, emotional, and sexual abuse, they engage in criminal behavior when they are adolescents. This is because child abuse hinders their neurological development. This interrupted neurological development often means they lack the mental and emotional maturity to distinguish right from wrong. Children who have been traumatized manufacture a view of the world in which it is okay for them to harm others through a process of moral disengagement usually exhibited in clinically diagnosed psychopaths. This secondary psychopathy in victims of child abuse makes them likely to become career criminals because victims of child abuse do not have the capacity empathize with others in order to justify their delinquency. Society would be better served by putting first-time non-violent juvenile offenders through counselling programs that address the underlying causes of childhood delinquency. Corrections officers and administrators don't have the kind of training to offer mental health services to a non-violent juvenile offender that will stop them from becoming repeat offenders or escalating to more serious crimes.

Imprisonment for women creates its own problems. Women inmates are likely to have experienced physical and sexual abuse before imprisonment. There is a need to address the underlying causes of criminal behavior when women offenders become first time offenders. Jail is not the ideal environment to address these mental health needs since corrections officers or administrators aren't equipped to do so. Resources are hard to come by so even hiring staff who can meet this need is a difficult huddle to overcome. Women are also at risk of sexual abuse by staff or fellow prisoners but have no avenue for escaping the abuser. Imprisoning mothers negatively affects their children. Women who become incarcerated while pregnant are not allowed to spend time with their newborn children after birth denying the child the benefit of being nursed by their mother. This bonding is which is important to the health of an infant by this lack of contact after birth. Imprisonment of non-violent trans-sexual criminal offenders is problematic. For example, it is the policy in most prisons is that inmate placements done according to biological gender and not according to the gender a trans-person identifies with. This means that trans-women go to prisons for men while trans-men are incarcerated in prisons that house women because they are biologically female. It is also a policy position that trans-inmates be referred to by a name which is different from the name which they choose to use to match the gender they identify with. These policies are traumatic for trans-prisoners leading to depression, frustration, and anxiety.

HIV POSITIVE INMATES

The rate HIV infection in prisons is two or three times higher than what is observed in the general society. HIV infections are fatal when it develops to AIDS. There is no cure for AIDS. The presence of HIV positive inmates in correctional facilities creates problems for correction officers and administrators. Most studies show that inmates contract the HIV virus prior to their incarceration which means that they have the need to access medical assistance to prevent the onset of AIDS as they start their jail term. The virus may, however, be spread among prisoners in several ways. All that needs to happen is the exchange of bodily fluids. For example, this can happen when drug-using prisoners share needles or through sexual contact. Prison rape is a problem that administrators have had a difficult time putting a stop to and it is one of the most common way victims contract the virus. Corrections officers and prison medical staff also run the risk of contracting their virus as they do their jobs.

Given the danger that HIV poses in prisons, the policy that has been in place in most correction facilities is to segregate healthy prisoners from those who are HIV positive. From the 1980s onwards, several attempts were made to get rid of this policy of segregation on the basis that it was discriminatory and inmates were subjected to degrading or cruel treatment. These attempts failed but in two successive American cases, state courts in Louisiana and Alabama equated having HIV to living with a disability within the meaning of the American Disabilities Act of 1990(ADA). Therefore, since ADA prohibits discrimination on the basis of any disability, a policy of segregation in both a Louisiana and Alabama prison was declared to be illegal on the basis that it amounted to a violation of infected prisoners' right to privacy. These court decisions are not binding in other states and no laws are in place directing that HIV positive prisoners are not segregated from a jail's general population. There is a need to strike a balance between the desire to prevent the spread of HIV in prisons and an inmate's constitutional rights. The inherent danger posed by the spread of HIV and the cost of managing the disease on taxpayers is a reasonable justification for keeping the policy of segregation in place. What needs to be done is to ensure that prison policies and procedures do not violate an HIV positive inmate's right to dignity, privacy as well as their right not to be subjected to degrading treatment based on their health status.

JUVENILE DELINQUENCY

Children are people below the age of eighteen. They are intellectually and emotionally immature compared to adults. This is criminal law has traditionally imposed less severe criminal punishments on them. The quality of parental care determines if a child will become delinquent. The chances of juvenile delinquency increase when they lack parental supervision and love. The absence of these two things opens an avenue for physical and sexual abuse to happen to children because their home environment is not safe. When a child is exposed to physical, emotional, or sexual abuse, they suffer from Post-Traumatic Stress Disorder (PTSD) which manifests itself as criminal behavior. Childhood sexual abuse instils in victims a sense of shame. These victims then covert this shame into anger directed towards the rest of the world manifested as acts of criminal violence. Violent juvenile offending is the most harmful to the rest of society. It needs to be addressed in a more aggressive way compared to non-violent crimes committed by children. Juveniles guilty of violent offenses need to be put in juvenile jail where their mental health needs can be addressed.