French and American Court System - Research Paper Example

 French and American Court System In the French court system, there are three degrees of organization and they are the following: 1st degree which hears the case when it is first brought up 2nd degree which hears appeals against the decisions of the first degree 3rd degree which hears appeals against the interpretation of the law by the second degree courts. The French Court System separates the ordinary civil and criminal courts from the administrative courts. The administrative courts deal with legal actions involving public servants which are being accused of any unprofessional behavior. Each system has a separate appellate structure, leading up to the Cour de Cassation for the ordinary civil and criminal matters and to the Conseil d’État for the administrative courts. (Wikipedia Online, 2006) The American Court System has basically the same degrees of organization with federal and state courts hearing the case when it is first brought up, a Court of Appeals for appeals made from the decision of the federal and state courts and the Supreme Court which has the final say when the case has not been resolved in the Court of Appeals. (American Bar Association, 2006); ( Wasby, 2000) As compared to the United States where the Supreme Court has the final authority on the interpretation of the Federal Constitution and all statutes and regulations created pursuant to it, the authority in France which has the final say on the interpretation of the law is divided into two: the Conseil d'État for administrative cases and the Court of Cassation for civil and criminal cases. Analyzing the Jury System The Jury System is a court proceeding where sentencing decision makers are people (note that it is more than one person) who may have no or little education in law and a judge as an arbiter/overseer of the proceedings such as in the United States. This is in contrast to other systems such as a Professional Judge which makes use of a career attorney delegated by the state to become a court’s sentencing decision maker. This is the mode among countries such as Japan and the Philippines. Besides from the jury which employs lay persons (lay in the sense that they may have little education in law), there also exists the lay judge where a lay person (singular) serves as the judge. This system can be found in many tribal communities where religion governs and legal codes and education are not yet well established. The jury is supposed to be the protector of the individual’s rights from the decision of the state by having the case presented to peers or equals of the accused who by being peers can understand the motivation or plight of the accused. Presumably they are to understand the actions of the accused and judge whether the actions were prudent and acceptable to common values of equals in the same society. If the actions were beyond acceptable response to the circumstance then the accused in guilty and should be punished so that future actions are discouraged and societal standards are maintained. Corporate executives would see actions in a different light than office workers etc. An all black jury would see things differently than an all white jury if the defendant was white or black. Similar cultural experiences of the accused are important in the selection of a jury. However, this places the state at a disadvantage because a jury of peers can nullify or disregard the states action against an accused based on their distaste of the state while it is an advantage to the accused such as what to the OJ Simpson trial. (Kiss, 1999) Another problem with the jury system is that they never get to hear all the evidences as legal technicalities may prevent them from doing so. A jury watches a performance and has to make a judgment of the guilt or innocence of the accused based on partial information presented to it by skilled performers, the attorneys, both prosecuting and defending. Since they never hear all of the information and evidence in a case, they have to rely on their life experiences to weigh what they have heard. This works for the accused when the accused has a jury of peers, but it works against society because a guilty person may be freed. Similarly, it works against the accused if the jurists are not peers and does not identify with the accused. A professional judge, who having been a lawyer or trained in law, knows the games that lawyers play in the presentation of their case. The judge is aware of all the facts in the case, including inadmissible evidence, and also, has knowledge of case law, that is, previous decisions on similarities in previous cases, to account for in rendering a decision. The excellent education and training of a professional judge may work against him however. That is, their mostly secluded training may form them to have attitudes and experiences quite different from those of the general public .This limited range of life experience may negatively affect the fact finding abilities of these judges. This is particularly true in the Japanese judiciary where most judges are career judges with little experience in the outside world. Furthermore, a judge, such as those in a criminal court and being confronted almost daily with criminals may reach a quick decision thinking that it is a run-of-the-mill case in spite of conflicting evidence. (Knittel and Seiler, 1972) With regards to a lay judge system, the judge may have enough cultural understanding that endows him with a sufficient fact finding abilities. However, such a system is virtually prone to many discrepancies, errors and biases as the judge does not have sufficient legal background. In the jury, we find many people deciding on a sentence providing better flow and deliberation regarding the matter as compared to a single person with no legal background and only his experiences to guide him. Probation: Comparing Japan and the US America's current system of probation and parole is currently castigated because each of the nation's probation and parole officers must supervise approximately 100 convicts. Most state probation and parole systems have a serious problem with case overload leading to a high percentage of parole and probation violations, with many offenders returning to prison. (Gardner, 1996) Japan, by contrast, has fewer than full-time professional probation and parole officers where each are recruited and trained as professionals in counseling. What they do in Japan to lower the officer-person under probation ratio is to make use of volunteer parole officers. The full time-professional officers’ real work is to assign cases to volunteer parole officers throughout the country. Volunteers come from a range of occupations, but more than half are fishermen or farmers, religious leaders, housewives, and retired people. Ninety percent of the volunteers are at least 50 years old and 80 percent are men. Their primary responsibility is to help them rejoin their families and neighborhoods as well as to monitor their movements. Japan formally codified the network of probation and parole volunteers in 1950 (Wikipedia Online, 2006). Because of the number of people qualified and volunteering to such an endeavor, the ratio is only one volunteer for two convicts. Research by the Japan’s Ministry of Justice shows that fewer than 4 percent of Japanese criminals assigned to a volunteer officer will commit another crime within a year of their release on parole or probation. Due to the low ratio, the amount of individual attention provided by the volunteer probation officer is much more as compared to the amount that his American counterpart can give. Thus, intimate relationships develop and officers are seen in Japan as friends or mentors rather than authority figures. This process is important for the convict to overcome the stigma associated with his incarceration. (Gardner, 1996) The story, however, does not end by having a low ratio. Culture and the approach undertaken by the volunteers contribute to the efficiency of their probation and parole system. Japan, with all its technological and corporate advances, is still marked by traditional values especially that of shame for having a relative convicted of a crime. What the volunteer does is to visit the offender's home to help his family overcome the shame of having a relative convicted of a crime. If this does not work, the volunteer finds the offender a place at a halfway house or with friends. With this being addressed, the volunteer helps the offender find stable employment to enable him to become a functional member of society or in other words, socially acceptable. After this has also been addresses, the volunteer officer continues to meet with his charge once or twice a month to provide counsel and to monitor his progress. The US has also been adapting this approach with many volunteer organizations having members patrol their communities or teach conflict resolution and job skills. Religious institutions have also begun to welcome and find employment for former criminals. Although this might be the case, cultural factors can provide different results for the United States. Variable Fine System The Variable fine system involves sentencing decisions characterized by two distinct steps. The sentencing decision-maker first makes an independent assessment of the gravity of the offense and then considers the means of the offender. This system is widely recognized in Western Europe and is extensively used across a wide range of offenses. When these two separate judgments are brought together, the judge can sentence offenders convicted of the offense to an equal economic burden even if they have very different financial resources. In US Courts, however, American judges have tended to use fixed fine amounts (or tariffs) for all offenders charged with the same offense. To put it simply, the fine is based on fixed “going rates” for different offense categories without regard to the economic capacity of the offender. According to the US Supreme Court, this strategy is necessary to meet the judicial goal of consistency in sentencing and the widespread view among American criminal justice practitioners that for fines to be punitive and to deter they must be large. The problem, however, is that American courts tends to set fine rates using the financial status of the lowest common denominator of offenders appearing before the court. The resulting emphasis on low fixed fine amounts has restricted the range of offenses to those at the less serious end of the wide spectrum of crimes. The jurisprudential principle of "consistency" in sentencing, although technically fulfilled by requiring the same exact fine amount for all offenders sentenced for the same crime, leads to less punitive impact of any fine sentence for the more affluent offender (Cole et al., 1987, p. 19). This limits the utility of the fine as an important, non-custodial criminal sanction in the U.S., despite its desirable qualities and its potential to effect punishment and deterrence by hitting the offender where it counts- in the pocketbook. This state of affairs has led to the inequitable treatment of the marginalized sector making them opt for short jail sentences (Cole et al., 1987, p.8). Research on European variable fining experience indicates that when this process is used, fines become more widely usable as a stand-alone sanction across a broader array of offenses of varying levels of severity. This is because the fines can be used both consistently and equitably, and because they are enforceable in the community without high rates of default resulting from indigency. (Albrecht and Johnson, 1980; Casale, 1981; Hillsman 1990; Morris and Tonry 1990; Turner and Petersilia, 1996.) References: Albrecht, Han-Jorg, and Elmer H. Johnson (1980). "Fines and Justice Administration: The Experience of the Federal Republic of Germany." International Journal of Comparative and Applied Criminal Justice 5:3-14. American Bar Association (1998) Law & The Courts, Volume II: Court Procedures, 1998 Casale, Silvia S.G. (1981). "Fines in Europe: A Study of the Use of Fines in Selected European Counties with Empirical Research on the Problems of Fine Enforcement." Working Paper no. 10. Fines in Sentencing. New York: Vera Institute of Justice. Cole, George F. (1989). "Fines Can Be Fine – and Collected." Judges Journal 28(1). Gardner, Leslie (1996) Japan's Parole Models. Policy Review,75, Heritage Foundation. Hillsman, Sally T., ed.(1990). "Fines and Day Fines." In Crime and Justice: A Review of Research, Vol. 12, edited by Michael Tonry and Norval Morris. Chicago: University of Chicago Press. Kiss, Lester (1999). Reviving the Criminal Jury in Japan. Law & Contemporary Problems, Vol. 62 p.. 261 (Spring 1999) Knittel, E. and Seiler D. (1972). “The Merits of Trial by Jury” (1972) 30(2) Cambridge Law Journal 316, at p.323. Morris, Norval and Michael Tonry (1990). Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System. New York: Oxford University Press. Turner, Susan and Joan Petersilia (1996). Day Fines in Four U.S. Jurisdictions, Santa Monica: The RAND Corporation. Wasby, Stephen L. (2000) The Supreme Court in the Federal Judicial System, Nelson- Hall Publishers Chicago, 4th ed. Wikipedia Online (2006). French Judicial System. Retrieved Dec. 9, 2006 from www.wikipedia.org Wikipedia Online (2006). Japanese Judicial System. 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