Critical legal issues in criminal justice - Research Paper Example

? Critical Legal Issues in Criminal Justice Legal regime permits individuals’ right to self-defense and justifies the employment of force in times of danger so that people may defend themselves from external harm and secure their lives and properties. Dictionaries define physical self-defense as the employment of physical force to counteract an immediate attack. Physical self-defense may be armed-defense or unarmed-defense. Individuals can use a wide variety of weapons as part of armed self-defense adhering to the policies of the concerned jurisdictions. Unarmed self-defense involves different styles of martial arts. In many jurisdictions, law permits people the right of self-defensive killing. However, the law states that the employment of physical force in self-defense must be proportional to the fatality of the violence. In order to avoid the misuse of the self-defensive killing, the law ensures aggressors do not claim the right of self-defense. It is on the assumption that aggressors are responsible to the attack or fatal situation, and hence they do not have the right to claim self-defense. In addition, law considers the reasonableness of belief while evaluating the self-defense claim of a defendant. Explicitly, the use of physical force must be reasonable to justify the self-defense claim. What constitutes reasonable employment of force is usually uncertain, and hence the jury has the potential to determine whether or not the defendant’s act (use of force) was reasonable. Evidently, people are not permitted to claim the right of self-defense pointing the self-generated necessity to kill; this legal provision may improve the increased murder rate in UK. More precisely, criminals cannot escape from punishment claiming self-defense after committing intentional murders. Admittedly, this legal principle can better assist individuals to free exercise their right to self-defense. Critical Legal Issues in Criminal Justice Introduction The United States v. Thomas, 34 F3d 44 (1994, 2nd Cir) was a very popular legal case which later served as a precedent in legal trials. It was a case between the US Federal government and a drug mafia that was led by Jaime Davidson. Davidson was also the head of a cocaine conspiracy that began around late 1980s. Wallie Howard, a federal agent working for the Federal Drug Enforcement Administration and the confidential informant Luther Gregory planned to arrest this drug racket through a buy-bust scheduled on 30th October 1990. However, their plans flawed as Davidson and his team had attempted to rob Gregory using firearms. During the process of assault, the gang broke Gregory’s wrist. In order to counter attack them Howard took his gun and shot off. At this time, Lawrence (one of the gang members) fired at agent Howard and killed him. As cited by the United States Court of Appeals, Second Circuit (1994), all the defendants were found guilty of charges alleged including narcotic conspiracy, murder, robbery, and international killing of a federal agent, and consequently all of them were sentenced to life imprisonment. During the course of trial, Lawrence argued that agent Howard would have killed him unless he had not shot him down. However, the court observed that the defendants’ need to defend themselves emerged out of their own aggression. The court held that the person who commits robbery using deadly weapons and gets murdered by the targeted victim on the victim’s counter-attacks to defend may not obtain the benefit of self-defense. Based on this observation, the court clearly stated that “it has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill” (United States Court of Appeals, Second Circuit,1994). This paper will critically evaluate the above court judgment and discuss why “one cannot support a claim of self-defense by a self-generated necessity to kill.” Reasonableness of Belief Reasonableness of belief is an important factor in determining the necessity of self-defense at a particular situation. More clearly, a defendant can claim self-defense only if his/her actions were reasonable. Although the concept of reasonableness has not been clearly defined, this concept is used throughout the legal proceedings to make sound decisions. As Simmons (2008) points out, what constitutes reasonable use of force is undefined, and hence it is the duty of the jury to determine after considering particular facts and circumstances whether or not a defendant’s actions were reasonable. According to Lee (2009), in a general perspective, reasonableness indicates how an average person would act under similar situations. The difficulty to determine the reasonableness of an action is further exacerbated by the need to decide whose state of mind had to be controlled. As Brody and Acker (2011) state, generally subjective criterion and objective standard are employed to determine the reasonableness of belief. Under the subjective criterion, the jury evaluates whether the action of the defendant was reasonable to him/her at the time of action. In contrast to this, the objective standard pays attention to the perspectives of an average person in the similar circumstance (p.130). Whether to determine the reasonableness of an action based on subjective criterion or objective standard is still a bone of contention among law practitioners. Some legal experts argue that evaluating reasonableness based partly on the defendant’s unique qualities and partly on the objective standard is appropriate. Based on this principle, every self-defense action that would be reasonable in a general sense may not be reasonable from the viewpoint of a jury. The R v. Lindsay case is an example for the reasonableness of belief. In this case, the defendant used his sword in self-defense against three masked and armed assailants who attacked his home, and killed one of them by repeatedly slashing. The prosecution pointed out that although the defendant had initially picked up the sword in self-defense, he eventually became aggressive and attacked the armed intruder with the clear intention of killing him. The defendant was sentenced to an eight year term of imprisonment and this ruling was confirmed by the Court of Appeal (Judgment of the court of Criminal Appeal). Here, no one had expected that the defendant would receive such a severe punishment for killing an armed intruder. Some attacks may be dangerous and some other may not be. If the attack is relatively not serious, retaliative actions that are not in proportion to the necessity of the situation are not reasonable. In contrast, if the attack is dangerous, it is reasonable to permit immediate defensive action to prevent further harms. Molan (2001) points out that people tend to employ force to hit back attackers in a situation where attack is over and no threat remains. In such cases, the act is revengeful and cannot be considered as pure aggression (p.576). Under such circumstances, the defendant cannot claim self-defense to avoid the charges. Hence, reasonableness is a major component with regard to the use of force in self-defense. Evidently, self-generated necessity does not constitute reasonableness to claim self-defense. While considering subjective criterion, self-generated necessity to kill someone can be viewed as self-defense because this action is extremely reasonable to the defendant at that particular point of time. However, the objective standard may not suggest this act reasonable as the necessity to kill was generated by the person himself. To illustrate, assume that X and Y are business partners and X knows Y’s some sensitive secrets that can have a great impact on Y’s family life and career. Recently there were hot arguments between X and Y regarding a business matter and X threatened Y that he would reveal Y’s secrets to his family members and friends. Although Y did everything possible to calm X down, X remained strong in his stance and finally Y shot him to death in order survive the situation. Here, Y had the clear intent to kill X and therefore Y’s action was not reasonable to claim self-defense. Aggressors cannot claim self defense People who are free from the faults that caused the particular dangerous situation can only claim the right of homicidal self-defense. This right is denied to people who initiate the fatal attack as they are responsible for making the deadly situation. Although the deceased had fired the first shot or initiated the first blow, the defendant cannot legalize the self-defense claim as he was the actual provoker. It is stated that “one who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation” (Lippman, 2009, p. 235). The author adds that if the aggressor communicates to his opponent his willingness to withdraw from the fatal attack and attempts to do so, he can restore his right of homicidal self-defense (Lippman). This body of doctrine is particularly based on the fundamental principle that self-defensive killing is excusable only if it is proved to be a matter of genuine necessity. Homicidal self-defense would not be excusable if the defendant could have avoided the fatal situation without taking a life. To comprehend this principle more clearly, one should understand the concept of proportionality. McMahan (2001) interprets it thus, the employment of force in self-defense should be proportionate to dangerousness of the situation; and the proportionality may also limit the number of attackers the victim can kill in self-defense (p.404). The right of self-defensive killing is given only to the victim of the fatal attack but not to the aggressor, because he (aggressor) forfeits his right to self-defense by creating the fatal situation (Quong, 2007). During a fatal attack, victim(s) will probably try to defend themselves and consequently the aggressor may receive some injuries. Pointing to the injuries they received, the aggressor often claims for the right of self-defense. It is obvious that the ultimate aim of assailants is to cause harm to the victim or their properties and they use force to execute their plans. Naturally, those aggressors clearly know that the victims tend to defend themselves and this situation may result in injuries to both sides. Since aggressors knowingly risk their life for causing harm to others, they should not be given the right of self-defensive killing even though they face threat to their life during the attack. Evidently, ensuring the right of self-defense to assailants is not sensible as they themselves are responsible for creating fatal situations. Reduction in Crime Rates The principle ‘self-generated necessity to kill cannot support the claim of self-defense’ would help to reduce crime rates. Referring to statistical figures (as cited in Edwards, 2009), European Commission points out that there is a significant percent of increase in murders, assaults, robberies, and sexual crimes in the United Kingdom. The total number of violent incidents recoded in UK in proportion to its population is higher than other European countries, US, Canada, Australia, and South Africa. The number of murders in the country in 2007 was 927, which was greater than that of any other European country. According to The Telegraph reporter Edwards, UK has become the ‘violent crime capital of Europe’. Travis (Jan 19, 2012) reports that according to 2012 Home Office figures, the murder rate in England and Wales increased by 5% previous year to 636. These statistical figures clearly indicate the fact that the UK government is struggling to control the homicide rate in the country despite the intervention and prevention measures in force. Hence, strict laws and their effective enforcement are necessary to address the issue of growing homicide rate in the country. If an individual can support a claim of self-defense by a self-generated necessity to kill, the situation would intensify the homicide rate. Under such a situation, an individual can kill anyone and claim the right of self-defensive killing based on a self-generated necessity. Even aggressors can benefit from such a law. Undoubtedly, such a legal right is likely to be exploited by murderers who have clear intent to terminate their rivals. For instance, assume that there is intense rivalry between A and B and A plans to rob B through a surprise attack at midnight. As pre-planned, A intrudes B’s home at midnight and attacks B with an iron rod. In order to save his life and properties, B points his pistol to A’s head. However, A manages to snatch the gun and shoots B to death. Here, A can claim the right of self-defensive killing if self-generated necessity is excusable from the viewpoint of law. Although A has not pre-planned to kill B, A’s aggressive act led to such a fatal situation which in turn ended up in the death of B. If self-generated necessity is an adequate reason to claim the right of self-defensive killing, criminals would be encouraged to commit assaults and murders. Such a legal provision may persuade murderers to believe that they can avoid the murder charges by claiming the right of self-defense. Sometimes murderers may claim the right of self-defensive killing even if their life is not threatened during attack. Promotion of individual rights The principle under discussion is also beneficial to promote citizens’ rights. It is clear that the right of self-defense is granted to citizens to protect their life and properties from assailants or robbers if an immediate legal assistance cannot be delivered at the time of attack. However, individuals cannot effectively use their self-defense right if self-generated necessity to kill is considered under the scope of self-defense. As discussed already, criminals can easily escape from the murder charge pointing the injuries they received during the attack if self-generated necessity to kill is excusable from the viewpoint of law. Therefore, the use of self-defense right by victims may encourage assailants to execute their intentions without fearing legal consequences. Evidently, this situation would curtail the rights of individuals. Hence, the principle that aggressors cannot claim the right of self-defensive killing would assist individuals to free exercise their self-defense rights and effectively protect their lives and properties from assailants. Conclusion In total, there are many potential reasons to deny the right of self-defensive killing for individuals who claim necessity. Evidently, allowing individuals to claim self-defense right for the self-generated necessity to kill is not reasonable because the provision of self-defense is actually meant to counter unexpected and immediate threat of violence. It is clear that the self-generated necessity to kill arises during pre-planned attacks, robberies, or other criminal activities. Criminals actually expect such a necessity and they deliberately risk their life. Hence, it is not reasonable to allow aggressors to claim the right of self-defense. In addition, making self-generated necessity to kill excusable would assist born criminals to get rid of a murder charge. Clearly, such a situation would intensify the growing murder rate in the country. If self-generated necessity to kill is included in the self-defense provision, citizens cannot effectively and freely exercise their right of self-defense. References Brody, D. C & Acker, J. R. (2011). Criminal Law. Jones & Bartlett Publishers. Edwards. R. (July 2, 2009). UK is violent crime capital of Europe. The Telegraph. Retrieved from http://www.telegraph.co.uk/news/uknews/law-and-order/5712573/UK-is-violent-crime-capital-of-Europe.html Judgment of the court of Criminal Appeal. (2013). Retrieved from http://www.courts.sa.gov.au/Judgments/Lists/Judgments/Attachments/814/2013%20SASCFC%2048.pdf Lee, C. (2009). Reasonable Provocation and Self-Defense: Recognizing the Distinction Between Act Reasonableness and Emotion Reasonableness. Retrieved from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1649674 Lippman, M. (2009). Contemporary Criminal Law: Concepts, Cases, and Controversies. SAGE. McMahan, J. (2001). The Ethics of Killing : Problems at the Margins of Life: Problems at the Margins of Life. Oxford University Press. Molan, M. T. (2001). Sourcebook on Criminal Law. Routledge. Simmons, K. W. (2008). Self defense: reasonable beliefs or reasonable self control. New Criminal Law Review, 11 (1): 51-90. Travis, A. (Jan 19, 2012). Murder rate rose 5% last year. The Guardian. Retrieved from http://www.guardian.co.uk/uk/2012/jan/19/murder-rate-rose-5-percent Quong, J. (2007). Killing in Self-Defense. Mancept working papers. Retrieved from http://www.socialsciences.manchester.ac.uk/disciplines/politics/about/themes/mancept/workingpapers/documents/DefensiveKillingFinalDraftJuly2007_000.pdf United States Court of Appeals, Second Circuit. (1994). OpenJurist. Retrieved from http://openjurist.org/34/f3d/44/united-states-v-thomas-a-a Read More