3 Discussion Question and 3 Student Responses Needed

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LEG320Week123DiscussionQuestion.docx

LEG 320: Criminal Law

Week 1 Discussion

"Criminal Law and the Principle of Legality" Please respond to the following:

· From the e-Activity, specify the key differences between criminal law and moral law. Next, explain the common approaches that the judicial system takes in order to ensure that the public upholds criminal law. Provide one (1) specific example of a case within the past three years in which the judicial system applies these approaches to support your response. Next, discuss whether or not you believe there is a compelling public need for the principle of legality (aka: no punishment without law or due process of law).  Provide a rationale to support your response and respond to no less than one of your peers

In Week 1 you will read an introduction to the basic foundations of Criminal Law. 

You will read about how criminal law has evolved.  You’ve all seen “westerns”—those cowboy movies where shoot-outs in the streets appeared to be legal.  In fact, duels as a way of deciding conflicts used to be legal in colonial days.  Today’s laws protect every area of life.  I can remember early in my legal career child sexual abuse, and even physical child abuse (beatings) being considered "private family matters," not to be interfered with by the state.  Fortunately, criminal law has evolved to protect the most innocent and vulnerable of society, and children are now protected from harm within their very families.

Criminal laws, like all laws, are subject to the Constitution, both the U.S. Constitution, and the constitutions of each state.  The U.S. Constitution gives the states “police power” that enables the passage and enforcement of criminal laws to protect society. This power is not absolute, but is limited by the Constitution which requires due process of law in order to deprive any person of life, liberty, or property.  In other words, a person cannot be punished (a deprivation of liberty), put to death (deprived of life) or fined (deprivation of property) without a fair trial and notice. 

In totalitarian countries (where there is a dictatorship or lack of rights due to Nazi, Marxist, Communist, or other oppressive regimes that do not recognize individual rights) the police power trumps any constitutional protections afforded to citizens.  In the U.S., the Bill of Rights and the rest of the Constitution trump criminal laws.  You will read in your text that Congress lacks the power to pass “ex post facto” laws, for example.  This would be a law that is retroactive in its effect.  Criminal laws may only be passed prospectively.

Week One Discussion

In your Week 1 E-Activity and Discussion, you will be examining the basics of the criminal justice system.  The discussion is about “approaches” to how the judicial system “upholds” criminal laws.  In addition, we will discuss ex post facto laws.  You will read about ex post facto laws to find out what that Latin term means.  For the first part of the question, “approaches” is a very broad term.  Feel free to ponder this question.  It’s possible that everyone’s answer is different.  When asked about approaches to how our judicial system (courts) upholds criminal law, what comes to mind for me is the integrity of the system.  I don’t think we would be very successful at upholding criminal laws if society did not believe in the integrity of our system.  For the most part, we have faith in our system.  At times, however, our faith is compromised, especially if we see justice denied, delayed, or preferential treatment given.  For this discussion, be sure to support your opinions and conclusions with evidence and a logical argument! In other words, try not to bash the system or be negative without also acknowledging the positive!  Our system, in my opinion, will never be perfect because it's a human system, and humans are not perfect....ever

RESPOND TO ONE OTHER STUDENT:

Jekilda Castillo

RE: Week 1 Discussion

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Key differences between criminal law and moral law Criminal law is the law of crimes and their punishments. It’s a system of laws having specific connections with punishment of citizens who commit crimes. Moral law is generally rules that citizens live by. These rules are enhance by having basic common sense and by knowing right from wrong. According to Kant, moral law is not giving to us. It’s a humans nature, freedom and reason The common approaches that the judicial system takes in order to ensure that the public upholds criminal law are independent judiciary and due process in criminal justice system, accountable and responsive policing in upholding the rule of law independence of judges, role of public prosecutors, and defence lawyers as a fundamental support of an effective criminal justice system. The relationship with these approaches are vital to the procedural rights of every individual involved in a criminal process. A balanced judicial measures to ensure integrity, non-discrimination, fairness and the quality of justice. Every case has the right to the due process of law. The principal of legality in other words is “no punishment without a law for it”. Im not with it nor against of the public need for the principle of legality, It’s obvious that there shouldn’t be no consequences if a statute wasn’t establish at the moment that the incident occur. Now if there was a statute established & an incident occurred then yes there should be consequences to face. In order for a law to be established and for it to known that it’s a law an incident has to happened. For example, I broke a glass vase (at the moment I didn’t know nor think it was against the law) and later get charge because a law was established for breaking glass vase. Most laws seem to be established like this. An mistake or crime has to occur in order to decided whether or not it’s legal or illegal. http://www.qcc.cuny.edu/SocialSciences/ppecorino/ETHICS_TEXT/Chapter_8_Kantian_Theory/Moral_Law.htm

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LEG 320: Criminal Law

Week 2 Discussion Top of Form

"The Commerce Clause and Federal Jurisdictional Power" Please respond to the following:

· It is common knowledge that under the American system of federalism, police power gives the states the responsibility for maintaining public order and safety within each state, including the passing and enforcing of criminal laws. However, the federal government must rely on specific powers granted by the Constitution to pass criminal laws. Discuss the importance of the Commerce Clause and the jurisdictional power it grants to the federal government. Include one example of a legal case that was decided based upon the courts application of the Commerce Clause. Provide a rationale to support your response and respond to no less than one of your peers.

This week is about Jurisdiction and Elements of a Crime.  These are important legal concepts to understand.

Jurisdiction

The United States has two parallel court systems: the state system and the federal system. Local governments also have municipal courts and traffic courts to enforce laws within their boundaries.

Jurisdiction refers to a court’s power to hear cases. Jurisdiction must be established before a court can hear any case. There is subject matter jurisdiction that refers to what the case is about.  Personal jurisdiction refers to the court’s ability to bring a person under its authority.

For example, state courts have jurisdiction to hear cases that arise under state law.  Federal courts have jurisdiction to hear cases that arise under federal law.  Generally, crimes are tried in courts in the jurisdiction where the crime occurred.  Sometimes, a crime crosses state lines.  In such cases, the crime is deemed to have occurred in both jurisdictions. State criminal laws relate to crimes that happen within the state’s borders, while federal criminal laws must meet the Constitutional test of the Commerce Clause of the U.S. Constitution.  The federal government does not have the authority to regulate criminal conduct within states unless the conduct affects interstate commerce.  Therefore, federal criminal laws usually involve conduct occurring in more than one state, such as drug trafficking, kidnapping, racketeering and organized crime, etc.  In addition, federal law can prohibit crimes against the federal government such as tax evasion, treason, etc.

A court must also have personal jurisdiction over a party in order to try that person for a crime. If a party leaves the state after commission of a crime, a state must petition to have the party extradited back to the state.  This can sometimes take a while, especially if the accused is charged with crimes in more than one state. Unfortunately, an accused can also leave the country, and not all countries have treaties with the U.S. to return defendants for criminal prosecution.  A good example of lack of personal jurisdiction affecting law enforcement today is internet crime.  Most of us have received those annoying, fraudulent emails from Nigeria or other foreign countries trying to troll the internet for money.  Although I’m sure no one in this class has fallen for such a ploy, people still do get sucked into “get rich quick” schemes and often follow the fraudulent instructions in the email to send money in the hopes of receiving the millions of dollars promised in return.  The U.S. government is unable to prosecute most of these crimes originating in third world countries over whose members we have no personal jurisdiction.

Elements of a Crime

All crimes have elements, which are facts that must be proven in order to obtain a conviction of the crime.  The elements of a crime are set forth in criminal statutes.  The reason for elements is to provide notice to all citizens of what constitutes a crime.  The government cannot arbitrarily determine what conduct is criminal after the fact.  The U.S. justice system requires due process (under the 5th and 14th amendments to the Constitution) which requires notice and a hearing before anyone can be convicted of a crime.  Therefore, unless all elements are proven, a conviction cannot be made.  An example of elements of the crime of larceny would be (1) an unlawful taking of (2) someone else’s property (3) without the consent of the owner (4) with the intent of depriving the owner of his or her property.  Every element must be proven in order for the accused to be guilty of the crime.  Clearly, if the owner of the property consented to the taking or if the accused did not know the property belonged to someone else, not all elements would be met.

RESPOND TO ONE OTHER STUDENT:

Denise Marcelin

RE: Week 2 Discussion

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The commerce clause refers to the articles of the constitution giving Congress the power of regulating commerce with several states and foreign nations. The importance of the commerce clause is to control over foreign and interstate commerce (Frankfurter, 2018). The jurisdictional powers granted to the federal government include regulatory power over interstate commerce as well as the admiralty jurisdiction and power to coin money. It can also establish uniform bankruptcy laws, regulate weight and measures, grant copyrights and patents and also establish post roads and post offices (Frankfurter, 2018). An example of a case whose court application was based on the commerce clause includes the West Lynn Creamery Corporation vs. Healy in 1994. In this case, the Supreme Court struck down a state of Massachusetts tax on milk products. This is because the tax blocked interstate commercial activity through the discrimination of non-Massachusetts. This was effective in preventing the protectionist state policies aiming at favoring state business or citizens at the expense of the non-citizens that conduct their business within the state.

References

· Frankfurter, F. (2018). The Commerce Clause Under Marshall, Taney, and Waite. UNC Press Books.

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LEG320: Criminal Law

Week 3 Discussion

"Solicitation vs. Conspiracy to Commit a Crime" Please respond to the following:

· Compare and contrast the required elements of solicitation of another to commit a crime versus the required elements of conspiracy to commit a crime. Provide one (1) example of each crime in question. Provide a rationale to support your response and respond to no less than one of your peers

Chapter 4 is about Criminal Liability.  With all of the criminal laws and punishment our system enforces, it’s a wonder to me sometimes that people still commit crimes.  In fact, our system is so thorough that it prosecutes criminals who haven’t even yet committed a crime.

Attempt to commit a crime and conspiracy to commit a crime are examples of these “inchoate” (Legalese for incomplete) crimes. Inchoate is pronounced “In-KO-it.”  Other examples are solicitation, which means trying to get another to commit the crime for you (contract murders) and incitement (spurring others on to commit a crime).  These crimes do not have to be done to be prosecutable.  Still, some acts have to be taken to further the conspiracy or attempt.  Words spoken, making a phone call, email, letter, payment, etc. can form the basis for these acts.  Thoughts alone are not prosecutable.  Knowledge alone is not enough to prosecute for conspiracy, although knowledge coupled with failure to report and covering up the crime can make one liable for aiding and abetting. A special rule called the Wharton Rule states that a conspiracy, which generally requires two or more actors, will require at least three actors where it’s a crime that by its very nature requires two, such as a drug transaction or the crime of bigamy (marrying multiple partners).

Liability for conspiracy means that the conspirators who took part in agreeing to the crime don’t have to have taken part in the actual doing of the crime to be convicted.  This is called the Pinkerton Rule.  Punishment for these folks is the same as if they committed the crime themselves.

As you learned last week, every crime consists of certain elements and ALL elements must be proven before guilt or innocence can be decided by a jury.  If any element is not proven, the judge throws out the charges and the case never gets to a jury.  An element of crimes, in general is mens rea, which you also learned about in Week 1.  Mens rea means guilty mind.  In other words, the crime must be intentional.  However, sometimes criminals have accidents, but that doesn’t relieve them of criminal liability.  If a person doing a lawful act has an accident, he cannot be guilty of a crime.  However, if a person doing an unlawful act has an accident (accidentally shoots someone), then intent is inferred from the doing of the unlawful act in the first place.

Chapter 5 Criminal Responsibility and the Capacity to Commit a Crime

What if a person is not smart enough, old enough, or mentally fit enough to form the mental ability to commit a crime? 

Children are treated differently in the criminal justice system, and must be given special rights and protections in Juvenile Courts in the U.S.   In juvenile justice, the goal of the system is rehabilitation, not punishment.  In adult courts, both goals co-exist.  In juvenile justice, the minor’s records are confidential (not public) and sealed and once he or she turns of age (18), so that there is no record of the juvenile criminal history.  In juvenile justice, the juvenile is adjudged delinquent, not criminally liable. The term delinquent means the juvenile is in need of rehabilitation from the state.  The state takes on a parental role, called in loco parentis. If a juvenile commits a particularly violent or “adult” level of crime like murder or assault, the juvenile MAY (above a certain age that varies by state) be tried as an adult.

The insanity defense means that at the time of the offense, the suspect  had a mental, moral, cognitive, or volitional incapacity that excuses responsibility for the crime.  States vary in how they define insanity.  The federal government and 17 states follow the M’Naghten Rule as their definition of insanity.  This rule holds that the defendant was incapable of knowing right from wrong.   Therefore, if a defendant asserts this defense, but the facts show that he covered up his crime or kept it a secret, etc. his actions reveal that he DID know right from wrong, and the defense may not work.  The insanity defense, according to our text, only works in 2% of cases.  Even Jeffrey Dahmer, who murdered and ate his victims, did not convince a court that he was insane.  Andrea Yates, on the other hand, ultimately did.  She was the mother who in 2001 confessed to murdering all 5 of her children in Houston, Texas.  Other well-known criminals whose crimes were found to be committed while insane were John Hinckley who shot President Reagan and Lorena Bobbitt who claimed her husband repeatedly raped and beat her. Criminals found to be not guilty by reason of insanity are then confined to a mental institution until they are found not to be a danger to themselves or others.

Another defense, the defense of Diminished Capacity, can be used with limited success. Occasionally, organic brain disease or impaired functioning due to alcohol/drug consumption can be used to prove diminished capacity, leading to a lack of requisite intent and a not guilty verdict.

All defendants must be competent to stand trial. If a defendant is so impaired mentally as not to be able to participate in his own defense, the trial will be postponed

RESPOND TO ONE OTHER STUDENT:

Denise Marcelin

RE: Week 3 Discussion

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Conspiracy to commit a crime is an inchoate or incomplete crime that involves an explicit or implied agreement among people to carry out a criminal act (Robinson, 2017). There must be an overt act to commit the crime. An example is when one person pans to carry out a bank robbery and calls for a meeting with other people. Attending the meeting suffices to prosecute everyone who attends the meeting as a conspiracy to commit the crime.

On the other hand, a solicitation to commit a crime refers to an incomplete crime involving requesting, inviting, hiring, commanding or encouraging another individual to carry out a criminal offense (Robinson, 2017). During prosecution, it must be proved that a defendant intended the other individual to do what the defendant suggested. This means that making a joking suggestion to assault a person but this is taken seriously will not amount to solicitation to commit a crime. The defendant must invite, request, command and encourage that the crime is committed. An example is when Job asks John to assault Dan but John refuses. However, he is bribed to commit the act. In this case, the job has solicited John.

References

· Robinson, P. (2017). The Structure and Limits of Criminal Law. Routledge.

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