Crime and Punishment
Иностранные языки, филология и лингвистика
The level of recorded crime and the number of people sent to prison both increased during the 1970s and 1980s. By the end of that period the average prison population was more than 50,000 and new prisons had to be built as overcrowding had become a serious problem.
Each of Britains fifty-two police forces is responsible for law enforcement in its own area. In addition there are various national and regional connections and local forces cooperate with each other.
Some special services such as the Fraud Squad (who investigate financial crimes), are available to any local force in England and Wales. In general, however, the local police forces work independently under their own Chief Constables. Each force is maintained by a local police authority. The exception is London, where the Metropolitan Police are responsible to the Home Secretary.
Police duties cover a wide range of activities, from traffic control to more specialised departments such as river police. Each independent force has a uniformed branch and a Criminal Investigation Department (CID) with detectives in plain clothes.
Britain has relatively few police approximately one policeman for every 400 people and traditionally they are armed only with truncheons except in special circumstances. However, recent years have seen some major changes in police policy in response to industrial disputes and inner city violence in Great Britain. The situation in Northern Ireland, where the Royal Ulster Constabulary are the local police force, has also meant a change in the style of maintaining law and order.
About 90 per cent of all crimes are dealt with by magistrates courts. Sentences (that is, the punishment decided by the court) vary a lot but most people who are found guilty have to pay a fine. Magistrates courts can impose fines of up to 2,000 pounds or prison sentences of up to six months. If the punishment is to be more severe the case must go to a Crown Court. The most severe punishment is life imprisonment: there has been no death penalty in Britain since 1965.
The level of recorded crime and the number of people sent to prison both increased during the 1970s and 1980s. By the end of that period the average prison population was more than 50,000 and new prisons had to be built as overcrowding had become a serious problem. By 1988 the cost of keeping someone in prison was over 250 pounds per week, which was more than the national average wage.
These are some of the punishments available to judges.
Suspended sentences: the offender does not go to prison unless he or she commits another offence.
Probation: normal life at home, but under supervision.
Youth custody: in special centres for young adults.
Short disciplinary training in a detention centre.
Community service: decorating old peoples houses, etc.
Compensation: paying, or working for, ones victim.
Fines: the punishment in 80 per cent of cases
Disqualification from driving.
Fixed penalty fines: especially for parking offences.
British law comes from two main sources: laws made in parliament, and Common Law, which is based on previous judgements and customs. Just as there is no written constitution, so England and Wales have no criminal code or civil code and the interpretation of the law is based on what has happened in the past. The laws which are made in Parliament are interpreted by the courts, but changes in the law itself are made in Parliament.
The most common type of law court in England and Wales is the magistrates court. There are 700 magistrates courts and about 30,000 magistrates.
More serious criminal cases then go to the Crown Court, which has 90 branches in different towns and cities. Civil cases (for example, divorce or bankruptcy cases) are dealt with in County Courts.
Appeals are heard by higher courts. For example, appeals from magistrates courts are heard in the Crown Court, unless they are appeals on points of law. The highest court of appeal in England and Wales is the House of Lords. (Scotland has its own High Court in Edinburgh, which hears, all appeals from Scottish courts.) Certain cases may be referred to the European Court of Justice in Luxembourg.
The legal system also includes juvenile courts (which deal with offenders under seventeen) ad coroners courts (which investigate violent, sudden or unnatural deaths.) There administrative tribunals which make quick, cheap and fair decisions with much less formality. Tribunals deal with professional standards, disputes between individuals, and disputes between individuals and government departments (for example, over taxation).
Criminal law is concerned with wrongful acts harmful to the community.
Civil law is concerned with individuals rights, duties and obligations towards to another.
There are about 50,000 solicitors, a number which is rapidly increasing, and they make up by far the branch of the legal profession in England and Wales. They are found in every town, where they deal with all the day-to-day work of preparing legal documents for buying and selling houses, making wills, etc. Solicitors also work on court cases for their clients, prepare cases for barristers to present in the higher courts, and may represent their client in a magistrates court.
There are about 5,000 barristers who defend or prosecute in the higher courts. Although solicitors and barristers work together on cases, barristers specialize in representing clients in court and the training and the career structures for the two types of lawyer are quit separate. In courts, barristers wear wigs and gowns in keeping with the extreme formality of the proceedings. The highest level of barristers have the title QC (Queens Counsel).
There are a few hundred judges, trained as barristers, who preside in more serious cases. There is no separate training for judges.
A jury consists of twelve people (jurors), who are ordinary people chosen at random from the Electorial Register (the list of people who can vote in elections). The jury listen to the evidence given in court in certain criminal cases and decide whether the defendant is guilty of innocent. If the person is found guilty, the punishment is passed by the presiding judge. Juries are rarely used in civil cases.
There are about 30,000 magistrates (Justices of the Peace, or JPs), who judge cases in the lower courts. They are usually unpaid and have no formal legal qualifications, but they are respectable people who are given some training.
Coroners have medical or legal training (or both), and inquire into violent or unnatural deaths.
CLERKS OF THE COURT
Clerks look after administrative and legal matters in the courtroom.
Supreme Court of the United States (1 court with 9 justices)
Original jurisdiction (cases begin in the Supreme Court over controversies involving:
Appellate jurisdiction (cases begin in another, lower court)
Hears appeals, under certain circumstances, from
United States Courts of Appeals (1 in each of 11 “circuits” or regions plus one in the District of Columbia)
Hear only appeals; no original jurisdiction
United States District Courts (1 in each of 94 districts)
Have only original jurisdiction; do not hear appeals
Original jurisdiction over cases involving:
The USA have a dual court system one state, one federal and this complicates enormously the task of describing what kinds of cases federal courts may hear and how cases beginning in the state courts may end up before the Supreme Court. The Constitution lists the kinds of cases over which federal courts have jurisdiction (in Article III and the Eleventh Amendment); by implication, all other matters are left to state courts. Federal courts can hear all cases “arising under the Constitution, the laws of the United States, and treaties” (these are federal question cases), and cases involving citizens of different states (called diversity cases).
Some kinds of cases can be heard on either federal or state courts. For example, if citizens of different states wish to sue one another and the matter involves more than $10,000, they can do so in either a federal or a state court. Similarly, if a man robs a federally insured bank, he has broken both state and federal law and thus he can be prosecuted in state or federal courts, or both. Lawyers have become quite sophisticated in deciding whether, in a given civil case, their clients will get better treatment in state or federal court. Prosecutors often send a person who has broken both federal and state law to whichever court system is likely to give the toughest penalty.
Furthermore, a matter that is exclusively in the province of a state court for example, a criminal case in which the defendant is charged with violating only a state law can be appealed to the Supreme Court under certain circumstances, described below. Thus federal judges can supervise state court rulings even when they have no jurisdiction over the original matter. Under what circumstances this should occur is the subject of long-standing controversy between the state and federal systems.
Some matters, however, are exclusively under the jurisdiction of federal courts. When a federal criminal law is broken but not a state one the case is heard in federal district court. If you wish to appeal the decision of a federal regulatory agency, such as the Federal Communications Commission, you can only do so before a federal court of appeals. And if you wish to declare bankruptcy, you do so in federal court. If there is a controversy between two state governments say, California and Arizona sue each other over which state is to use how much water from the Colorado River the case can only be heard by the Supreme Court.
The vast majority of all cases heard by federal courts begin in the district courts. The volume of business there is huge. Most of the cases involve rather straightforward applications of the law, and few lead to the making of new public policy. Those that do affect the interpretation of the law or the Constitution can begin with seemingly minor events.
The law governing what matters may reach the Supreme Court is complicated. At one time a large number of matters could be appealed directly from district courts to the Supreme Court, but as the latter became overloaded with work, Congress passed laws giving the court the power to control its workload by selecting, in most instances, the kinds of cases it wanted to hear. There are now essentially two routes to the Supreme Court (other than by starting there with a case that falls under its original jurisdiction). One is by means of an appeal, which the Court technically must hear (though there are ways t can avoid hearing some appeals). There are only a few matters that qualify for an appeal. In general they involve clear constitutional issues, such as when a lower federal court or the highest state court has found a federal law to be unconstitutional or has found a state law to be in conflict with federal laws or the Constitution, or when the highest state court has upheld a state law against the claim that it was in violation of federal law or the Constitution. Only about 10 percent of the Supreme Courts cases arrive by appeal.
The main route is by a writ of certiorari; certiorari is a Latin term that means, roughly, “made more certain”, and describes a procedure the Supreme Court can use whenever, in the opinion of at least four of its members, the decision of the highest state court involves a “substantial federal question” (the Supreme Court decides what that is). This procedure is also invoked when the decision of a federal court of appeals involves the interpretation of a federal law or the Constitution. Either side in a case may ask the Supreme court for certiorari (or “cert”, as the lawyers call it), and the Court can decide whether or not to grant it without divulging its reasons.
KINDS OF LAW
The differences between civil and criminal law are not precise. Generally speaking:
The Structure of the Federal Courts
The only federal court that must exist is the Supreme Court, required by Article III of the Constitution. All other federal courts and their jurisdictions are creations of Congress. Nor does the Constitution indicate how many justices shall be on the supreme Court (there were originally six, now there are nine) nor what its appellate jurisdiction shall be.
Congress has created two kinds of lower federal courts to handle cases that need not be decided by the Supreme Court: constitutional and legislative courts. A constitutional court is one exercising the judicial powers found in Article II of the Constitution, and therefore its judges are given constitutional protection: they may not be fired (they serve during “good behavior”) nor may their salaries be reduced while they are in office. The most important of the constitutional courts are the district courts (a total of ninety-four, with at least one in each state, the District of Columbia, and the commonwealth of Puerto Rico) and the courts of appeals (one in each of eleven regions, or circuits plus one in the District of Columbia). There are also certain specialized courts having constitutional status, such as the court of International Trade.
A legislative court is one set up by Congress for some specialized purpose and staffed with people who have fixed terms of office and can be removed or have their salaries reduced. Legislative courts include the Court of Military Appeals and the territorial courts.
Since the judges on the constitutional courts serve for life and since they are the chief interpreters of the Constitution, how they are selected and what attitudes they bring to the bench are obviously important. All are nominated by the president and confirmed by the Senate; almost invariably the president nominates a member of his own party.
Still, presidents do manage to tilt the Supreme Court in a liberal or conservative direction by the appointments they make. But no president can exercise much control over the lower federal courts. For one thing, who gets t be a district judge is heavily influenced by the preferences of the senators from the state in which the vacancy occurs. By the tradition of senatorial courtesy, the Senate will not confirm a judicial nominee if the senator from the candidates state and of the presidents party objects (he does by simply refusing to return to the Judiciary Committee a blue slip of paper with the nominees name on it). Of late, many senators have created expert screening panels to advise them on candidates for appointment. But the process, of necessity, remains political: nominees who fail to get their “blue slips” past their senators have little hope of appointment.
Getting to Court
In theory, the courts are the great equalizer in the federal government. To use the courts to settle a question, or even to alter fundamentally the accepted interpretation of the Constitution, one need not be elected to any office, have access to the mass media, be a member of an interest group, or be otherwise powerful or rich. Once the contending parties are before the court, they are legally equal.
It is too easy to believe this theory uncritically or to reject it cynically. In fact, it is hard to get before the Supreme Court: it rejects about 95 percent of the applications for certiorari it receives. And the costs involved in getting to the Court can be high. To apply for certiorari costs only $100 (plus forty copies of the petition), but if certiorari is granted and the case heard, the costs for lawyers and for copies of the lower court records in the case can be very large. And by then one has already paid for the cost of the first hearing in the district court and probably one appeal to the circuit court of appeals. Furthermore, the time it takes in federal court to settle a matter can be quite long.
But there are ways to make these costs lower. If you are indigent without funds you can file and be heard as a pauper for nothing; about half the petitions arriving before the Supreme Court are in forma pauperis, such as that from Gideon described earlier. If your case began as a criminal trial in the district courts and you are poor, the government supplies a lawyer at no charge. If the matter is not a criminal case and you cannot afford to hire a lawyer, interest groups representing a wide spectrum of opinion sometimes are willing to take up the cause if the issue in the case seems sufficiently important. The American Civil Liberties Union (ACLU) represents some people who believe their freedom of speech or press has been abridged or that their constitutional rights in criminal proceedings have been violated. Th NAACP brought many of the decisive civil rights cases on behalf of individuals. Although most of these interest groups in the past argued the liberal position, conservative interest groups of late have entered the courtroom on behalf of individuals. One helped sue CBS for televising a program that allegedly libeled General William Westmoreland, once the American commander in Vietnam. (Westmoreland lost.) And many important issues are raised by attorneys representing state and local governments. Several price-fixing cases have been won by state attorneys general on behalf of consumers in their states.
The Power of the Federal Courts
The great majority of the cases in federal courts have little or nothing to do with changes in public policy: people accused of bank robbery are tried, disputes over contacts are settled, personal injury cases are heard, and the patent law is applied. In most cases the courts are simply applying a relatively settled body of law to a specific controversy.
The courts make policy whenever they reinterpret the law or the Constitution in significant ways, extend the reach of existing laws to cover matters not previously thought to be covered, or design remedies for problems that involve the judges acting in administrative or legislative ways. By any of these tests, the courts have become exceptionally powerful.
One measure of that power is that over 120 federal laws have been declared unconstitutional, though since 1937 relatively few of these had broad national significance. And as we shall see, on matters where Congress feels strongly, it can often get its way by passing slightly revised versions of the voided law.
Another measure, and perhaps a more revealing one, is the frequency with which the Court changes its mind. An informal rule of judicial decision-making has been stare decisis, meaning “let the decision stand”. It is the principle of precedent: a court case today should be settled in accordance with prior decisions on similar cases. There are two reasons why precedent is important. The practical reason should be obvious: if the meaning of the law continually changes, if the decisions of judges become whole unpredictable, then human affairs affected by those laws and decisions become chaotic. A contract signed today might be invalid tomorrow. The other reason is at least as important: if the principle of equal justice means anything, it means that similar cases should be decided in a similar manner. On the other hand, times change and the Court can make mistakes.
A third measure of judicial power is the degree to which courts are willing to handle matters once left to the legislature. For example, the Court refused for a long time to hear a case about the size of congressional districts no matter how unequal their populations. The determination of congressional district boundaries was regarded as a political question that is, as a matter that the Constitution left entirely to another branch of government (in this case, the Congress) to decide for itself. Then, in 1962, the Court decided that it was competent after all to handle this matter, and the notion of a “political question” became a much less important (but by no means absent) barrier to judicial power.
By all odds, the most powerful indicator of judicial power can be bound in the kinds of remedies the courts will impose. A remedy is a judicial order setting forth what must be done to correct a situation that a judge believes to be wrong. In ordinary cases, such as one person suing another, the remedy is straightforward: the loser must pay the winner for some injury he or she has caused, or the loser, must agree to abide by the terms of a contact he has broken, or the loser must promise not to do some unpleasant thing (such as dumping garbage on a neighbors lawn). Today, however, judges design remedies that go far beyond what is required to do justice to the individual parties who actually appear in court. The remedies now imposed often apply to large groups and affect the circumstances under which thousands or even millions of people work, study, or live.
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