Loitering in Terms of the Criminal Law - Assignment Example

? Criminal Law Criminal Law Is it illegal to loiter? The first amendment of the constitution protects the due process clause, “freedom to loiter for innocent purposes.” In enactment of the ordinance proscribing loitering, it was intended that gangs were prevented from possessing dominion, over the public streets. Liability will only set in if an individual disobeys an order by a law enforcement officer, to disperse when asked to. As per the ordinance, the police have a duty of care to the residents, of maintaining peace and dispersing groups of individuals who inhibit it. Individuals must be protected from these gangs, as they induce fear to the extent that they are forced to remain indoors. In addition, they should be protected from threats, by these persons, which remain in one place without an apparent purpose, as they watch the residents’ movements and attack them at an opportune time (Scheb, 2011). The first amendment deals with the right to religion, freedom of speech, press, assembly and petition. Citizens may advocate on behalf of groups that have been labeled as terrorist groups, unless their expression bears a causal relation with substantive evil, or such advocacy is directed to inciting of imminent lawless actions. If an advocacy is performed in coordination with or at the direction of a foreign terrorist organization, pure political speech could be held as a felony of providing material support, to that designated terrorist group (Holder vs. humanitarian law). The USA Patriot Act was established, to curb and punish acts of terrorism and enhance law enforcement. Initially, the act dealt with international terrorism acts. However, domestic terrorism was added to the definition of terrorism. As provided in section 802 of the act. Any act that endangered human life, was a form of domestic terrorism. Despite criticisms on the provisions of the act, it provided determent against terrorism at the best interest of the citizens, if the terrorists actions, were intended to guide government’s policy, by intimidation or coercion. Punishment of such actions would include civil seizure of their assets, if any individual or organization is involved in planning any act of terrorism. Here, property is acquired or maintained, so as to help in supporting, conducting or concealing an act of terrorism and more so, if the property is derived from, involved in, or used to commit an act of terrorism. An assertion of a probability, of believing that an individual or an entity has committed terrorism against the country, residents or their property; calls for action and as such, any provision permitting the government to curb and punish such acts is not unconstitutional. If a person negligently fails to perform his duty of care, he/ she will be liable for damages. However, the plaintiff ought to prove beyond reasonable doubt, that he suffered loss as a result of the defendant’s negligence. Secondly, he must prove that he was within the scope of that duty, and lastly, prove that there was breach of duty, and as such, fair and reasonable to impose liability. The state statute will be held void for vagueness if it fails to justify the three conditions (Scheb, 2011). Courts are justified by all means, to impose a requirement that prosecutors prove the defendant’s intent to escape. Escape is the voluntary departure from custody. It is justified as escape, if without permission, the defendant, voluntarily leaves custody with intent to avoid confinement. Prosecution must prove that the defendant had no intent to leave and not to return. As such, intent would be held as proof of the crime of escape. In addition, the prosecution can bring forth evidence of threats and violence, as the cause for the action taken, which the jury considers. In such cases, the conditions necessitating the defendant’s departure must be relatively mild and alternative remedies such as consulting the wardens, put into consideration. The general principle, “justification by choice of lesser evil” provides that the defendant will not be guilty of offence, if he committed it because he believed that his action was necessary to avoid harm more serious than that. In this case, the prosecution may be able to prove that the defendant’s action of escape was of less harm, than remaining in custody and causing more harm like murder. However, if defendants had not turned themselves in after escape or made adequate efforts to do so, the principle, “return requirement” may hold them liable for the offense of escape (People vs. Lover camp 1974). Larcen had already served two years of his jail term. As such, he had no intent to avoid confinement. In addition, he reported to the warden of molestation by a fellow prisoner, and no action was taken in the next three days which compelled him to escape on the fourth day. In as much as Lacern voluntarily left without permission, he had contact with the police after two weeks. The public defender to Lacern, can successfully establish defense, since he did not defile the return requirement principle, and he was not avoiding confinement. Entrapment entails a conduct by a law enforcement agent, to induce a person to commit an offense, which the person would have been unlikely to commit. It only holds if; the idea came from the agent, and the agent made great efforts in trying to persuade the person to commit the crime, when the person was unwilling to commit the crime. The subjective approach to defense of entrapment exists if intent to commit the crime, was created by the officer in the mind of the defendant, who was not predisposed to commit crime of the kind. In subjective approach, the burden of proof, lays on the defendant, who had to establish that he was inducted into the action by the agent. Upon proof of being inducted, the side of prosecution was given the burden of proving a proof that, a crime was predisposed to be commuted by the defendant. On the other hand, objective approach ignores the defendant’s state of mind, when he committed the crime. It provides or gives intense focus, regarding the agent’s conduct. If the defendant committed the offense as a result of an activity of the officer, that was likely to induce a reasonable reason to commit the crime, defense is allowed. The conduct of the agent that induces a reasonable person to commit crime, whether he is predisposed or readily responds to the opportunity when given, makes the entrapment defense available for the defendant. In this case, the burden of proof lies on the defendant (Scheb, 2011). The objective approach is more, just as compared to the subjective approach to the defense of entrapment. This is because; an agent is not justified to coerce a person to commit crime and as such, predisposed or not, defendant should easily attain defense. The undercover officer persuaded Jane into buying marijuana for his friend, after asking her out. In as much as Mary was a suspect and received payment, the officer created the intent for her to commit that crime. Her defense of entrapment will be successful, because she was predisposed to buy the marijuana. In addition, she did not respond readily to the opportunity given, and as such, acted upon persuasion. Whereas both the use and the transactional immunity are granted to protect a witness against self- incrimination, use immunity is different from the transactional immunity. Use immunity prevents the use of witness’s compelled testimony against that witness. However, the witness may be prosecuted, but from evidence that is derived from a completely separate source from the protected testimony. On the other hand, transactional immunity protects the witness from any prosecution brought about by relating to transactions, to which they gave testimony. It gives full immunity from prosecution, for a crime revealed from a testimony. The witness cannot be prosecuted once granted this immunity (Scheb, 2011). A person is punishable by law, if he voluntarily gets intoxicated through use of intoxicating liquor. Actions taken after intoxication however, criminalize the person, depending on the state of his mind at the point of action. This is because intoxication can complicate the issue of criminal responsibility. Boris will be liable for damages, since he voluntarily got intoxicated. The issue of burglary will however, be determined by his state of mind at the time he got to the house. The prosecution will have to prove beyond reasonable doubt, that at the time he broke into Patty’s house, he was incapacitated to act reasonably due to the level of intoxication (Scheb, 2011). Reference Scheb, J. (2011). Criminal and procedural law. London: Cengage Learning. Read More