Presentation: Courts (Part 2) Transcript

Slide 1

There are several constitutional amendments that protect defendant’s rights.

The Eighth amendment provides many defendants the option of being released from jail as they await trial.

Defendants can post bail to ensure their appearance.

The Eighth amendment protects defendants against excessive bail, but this protection only extends to federal cases.

If states want to eradicate bail altogether, they can do so.

However, some states have instituted the right to bail in their own state constitutions.

The Eighth amendment also protects defendants against cruel and unusual punishment.

The Constitution also safeguards individuals against illegal detainment.

A writ of habeas corpus is a written judicial order that requires that a inmate’s case be reviewed in court, to determine if the inmate is being held unconstitutionally.

This writ was established to keep the government from detaining and punishing people illegally.

Habeas corpus cases take place in state and federal courts without juries.

The objective here is to ensure that people are not being detained for lengthy amounts of time, without a trial.

There are various goals and models of sentencing.

Once a defendant is sentenced, their offense may be retributive whereby the goal is to punish the offender for the crime.

A second goal might be to deter the offender from committing future crimes.

The goal of incapacitation aims to lock up an offender so that they can’t actually offend in the future.

Rehabilitation however, aims at getting the offender to learn specific skills so that they are less likely to reoffend in the future.

Judges are responsible for handing down sentences.

Determinate sentences identify a specific period of time in which the offender must serve.

Indeterminate sentences identify a specific time range that the individual will serve based upon their behavior while incarcerated.

In some instances, the law will set a minimum sentence that must be imposed for a specific crime. These are known as statutory minimums.

In instances whereby defendants are convicted of more than one crime, they may be handed down consecutive sentences or concurrent sentences.

Consecutive sentences require that one sentence must be served for the entire time before the next sentence begins.

Concurrent sentences permit defendants to serve more than one sentence at once.

Concurrent sentences will have the offender spending less time in prison.

Preventative detention laws address repeat offenders who have been previously convicted of prior crimes.

Habitual offender laws and three strikes and you’re out laws, are examples of these preventative detention laws.

Slide 2

Capital punishment remains a highly debated topic in corrections and sentencing practices.

Currently the federal government, US Military, and the majority of states, have capital punishment statutes.

In special circumstances (victim torture, killing for financial gain) may qualify a defendant of being charged with a capital crime.

Interestingly, most individuals who are placed on death row, will never be executed.

In Wilkerson v. Utah (1878), the Supreme Court said that it was not cruel and unusual punishment to be killed by firing squad.

In In re Kemmler (1890) the Supreme Court said it was constitutional to electrocute inmates on death row.

It was not actually until the 1970s did the Supreme Court rule against any state for the administration of capital punishment.

In 1972, the Supreme Court got rid of both state and federal capital punishment at that time.

This decision was in response to Furman v Georgia (1972). Consequently, the sentences of 600 condemned inmates were commuted to life in prison.

In Gregg v. Georgia (1976), the United States Supreme Court said that states could redraft specific laws to determine how the death penalty would be administrated.

Why? Because the Supreme Court never ruled that the death penalty in of itself was unconstitutional in Furman v. Georgia (1972)

What was regarded as unconstitutional, were the laws that were in place that determined eligibility for capital punishment.

McClesky v. Kemp (1987), brought into question the elements of racial discrimination and capital punishment.

The Court upheld that a petitioner would have to prove that they personally had been subjected to racial discrimination, in order to determine whether or not equal protection rights were violated.

There are many controversies surrounding capital punishment.

One such controversy is whether or not capital punishment actually serves as an effective deterrent.

Some research finds that capital punishment does not deter crime. Other research purports that capital punishment, specifically the act of execution, results in fewer homicides (Tanner, 2007; Manski & Pepper, 2013).

In general, capital punishment has been losing favor since the late 1990s.

Much of this disdain is attributed to the death penalty being applied unfairly.

Capital punishment data continues to show African-Americans being disproportionately represented on death row.

Furthermore, research finds that individuals of any race who decide to murder a white person, are more likely to receive the death penalty then victims of other races.

There also seems to be disparity in socioeconomic status of capital punishment defendants.

There are economic class differences with respect to the application of the death penalty as well.

Research finds that If the victim was of higher socioeconomic status, the defendant would be more likely to receive a death penalty conviction than if the victim was of a lower socioeconomic background.

The cost of capital punishment is certainly of concern.

It is actually more expensive to execute an individual than it is to pay for life imprisonment.

There are a number of states that are considering abolishing the death penalty, in large part for the high costs, but also because of the extent of wrongful convictions.

This brings into question whether or not the death penalty represents morality and justice? We will discuss this question further in a moment.

Slide 3

Victims and their experiences ought to be an important consideration in the criminal justice system.

Victims serve as witnesses, however, victims generally feel that they should have the opportunity to play a much more critical role then just serving as a witnesses.

Victims do however have the opportunity to provide victim impact statements.

The victim impact statement is generally included in the presentence investigation report (PSR).

The presentence investigation report is a document that provides background information, and history about the victim. The PSR also can include the victim’s impact statement.

Victim impact statements are not without controversy.

Victim impact statements allow the judge and jury to hear about the harms and experiences of the victim.

Some find that victim impact statements will create unfair treatment towards defendants.

The constitutionality of victim impact statements were upheld by the United States Supreme Court in 1991.

As such, victims still have the ability to make statements during the sentencing hearing about their experiences.

Slide 4

Capital punishment is very controversial and Scripture emphasizes that God prohibited murder.

Noahic covenant implies that there is a need to create a jurisdiction of power capable of ensuring that justice is protected in cases of capital punishment.

The jurisdiction of the state was founded with Noah, with the institution of capital punishment.

Noah as the head of his family, was also a nuclear magistrate in the postdiluvian world.

The state does not need to be a nation, but is a jurisdiction within it and smaller groups.

In Scripture, the “avenger of blood” is merely the aggrieved who rightly performs the execution as an agent of the court, the state, [and] the land.

This becomes clear when one notices that the Scripture says “when he [the avenger of blood] meets him [the murderer]” to execute him (Nu. 35:19) that it means, after trial.

Such is proven from Numbers 35 verse 12, “They [the cities of refuge] will be places of refuge from the avenger, so that a person accused of murder may not die before he stands trial before the assembly” (Nu. 35:12),

And by verse 30, “But no one is to be put to death on the testimony of only one witness” (Nu. 35:30).

The Bible says in Deuteronomy 19:6 “Vengeance by the avenger of the blood before this is “rage” (De. 19:6) and he would be “guilty of bloodshed” (De. 19:10) (Kickasola, pp. 14-15).

The point then is that the Bible makes provision for capital punishment, but only with a fair trial. That assumes that racism is not a factor and evidence is gathered and presented in a sound and just manner.

The verses discussed above reference first, Genesis 9:6. Since this provision for capital punishment was found in God’s covenant with Noah, we can infer that it is still relevant today, because it was not merely limited to Mosaic law and code.

On the other hand, the verses we discussed above from the books of Numbers and Deuteronomy are certainly part of Mosaic law, but they are useful for giving us guidelines to ensure a just process.

At the same time, we do not subscribe to other verses in the Mosaic law which speak to capital punishment for lesser offenses, such as the practice of witchcraft, because those penalties were specifically limited to Mosaic law.

In conclusion, assuming this interpretation of Scripture is accurate, no one should enjoy the idea of capital punishment, just like none of us should enjoy the prospect of war.

Sometimes, taking the lives of others is a terrible necessity of last resort in line with the Biblical idea of self-defense and protecting the lives of others.

It is only relevant for the highest and most severe violations of a person’s inalienable rights, specifically murder and it must be done in accordance with justice and integrity, not anger or violence.

References

Kickasola, J. (1998). The applicability of Biblical law to a pluralistic state. Unpublished

manuscript. Used with permission. p.14-15.

Manski, C. F., & Pepper, J.V. (2013). Deterrence and the death penalty: Partial

identification analysis using repeated cross sections. Journal of Quantitative

Criminology, 29(1), pp. 123-141.

Masters, R.E., Way, L.B., Gerstenfeld, P. B., Muscat, B.T., Hopper, M., Dusch, J, P., Pincu., L.,

& Skrapec, C. A. (2013). CJ realities and challenges (2nd. ed.). New York, NY: McGraw-Hill.

Tanner, R. (2007). Studies say death penalty deters crime. The Washington Post.

Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2007/06/11/AR2007061100406.html