Comparison of Criminal Justice Systems - Coursework Example

Comparison of Criminal Justice Systems: Self Defense and Capital Punishment in the USA, China, and Saudi Arabia Criminal justice is a sensitive area for all countries in the globe. The variations and impacts in these systems expose the inefficiencies of a country’s criminal law or the procedures employed in delivering justice. This document compares three countries’ legal traditions: the USA, whose criminal law is based on common law; China, which uses civil law; and Saudi Arabia, whose laws are based on Islamic law or sharia. Specifically, it looks at the self-defense concept, which is embraced in all countries. The systems in the USA and Saudi Arabia’s rely on innocence till proven guilty, while China’s system is guilty till proven innocent. All three legally uphold capital punishment as a major essence of crime deterrence, though retribution is more recognized in Saudi Arabia compared to the rest. Among the capital offences, Saudi Arabia’s list includes adulterous crimes extending to the sexual life of individuals, which is not covered in the USA or China. The countries’ criminal law protects the insane, pregnant women, and minors varyingly based on their minimum age of responsibility in relation to time the crime was committed, against execution. This paper looks deeper into: immaturity defense, minimum age for criminal responsibility, legal representation, criminal procedure law, execution methods and critics on the implementation of the law. Keywords: Capital Punishment, Self Defense, Defendants, Capital Offenses, Minors, Insanity, Criminal Responsibility, Minimum Age, Common Law, Civil Law, Sharia, Islamic Law, Execution Comparison of Criminal Justice in USA, China, and Saudi Arabia Different nations across the world have different legal traditions. A majority of countries have adopted specific legal traditions based on their earlier colonizers and their legislations now fall into either common or civil laws (Mitchel et al, 2013). Former colonies of the United Kingdom (UK), like the United States of America (USA) and Australia, have deeply embedded common laws, while those of the French colonies have adopted civil law traditions. Other countries, especially in the Arabic world, have either pure Islamic legal traditions, or combine this with a set of legislations employing either common or civil laws. Despite the criticisms and flaws of each legal tradition, states rely on them to guide their behaviors and for legal practice. Other countries use less common legal traditions, like customary or international, that are incorporated together with the above three, but the focus of this paper is on Common, Civil and Islamic legal traditions. Example countries that use these three systems will be compared for self-defense and capital punishment perspectives in corrections and criminal law topics. This research looks at the USA, China and Saudi Arabia. Tracing China’s past political ideologies and then western influence, it is evident that China’s legal system has gone through a series of changes from the traditional and Confucian laws, especially since their interaction with the western power (Schafer & Jiang, 2006). Today, the main legal system of China is an elaborate civil law, with evidence of German civil codes introduced in the past dynasty (Schafer & Jiang, 2006). Civil law varies from common law through the idea of judicial precedence and in the basic idea of development. For one, judicial precedence doctrine operates in common law but not in civil, and second the civil law system employ the ideology of the state as the supreme where individuals have a role to act in obedience, while common law emphasizes on protection of individual rights from the state (Mitchell, 2013). Hong Kong, a long-time colony of the UK, still uses common laws, but the civil law system serves for the majority of China. Saudi Arabia, on the other hand, is a unique country that uses the Islamic law embedded in sharia, which is an interpretation of the teachings of Prophet Muhammad. The origins are from the Quran, and traditional customs and practices of the community. Unfortunately, it has no codified laws like China. The country follows the absolute monarchy system where the judicial system depends largely on the interpretation of the religious teachings. It immutable constitution constitutes of the elevated Sunna and Quran. The USA employs a common law system across federal and state governments. These three countries portray distinctive constitutionalities and clearly express variations of perceptions on criminal justice issues. The objective is to explore self-defense and capital punishment, specifically, considering these nations are from different continents, with different legal system backgrounds, as well as changes in society due to liberalization. Overview of Self-Defense in Criminal Law This section provides an overview of each of the three countries’ criminal laws regarding self-defense. Each country is addressed separately. USA. The USA clearly has laws that recognize the existence of individuals’ rights and unlawful use of force against people. Under the criminal law of the USA, individuals charged of crimes have a right to claim innocence until proven otherwise. Hence, any proceedings operate with the assumption that the defendant is innocent until the prosecutor proves him or her guilty beyond a reasonable doubt; it is the prosecutor’s responsibility to show the defendant is guilty and not for the defendants to prove their innocence. Considering the crimes and charges could be multiple or different, the accused can use various optional defense structures with justifiable evidence to fight the allegations. In cases where the accused does not pose any threat to society, he or she will retain freedom while waiting to appear in court and are helped a criminal defense lawyer(s) where available. Self-defense is a specific strategy that individuals use for an act they committed but feel they should not be held accountable for their actions. The concept of self-defense is moderated by the concept of unlawful force. Unlawful force is defined as “an act of force done without legal justification or excuse” (“Justification,” 2011, p.1). According to Simons (2008), USA criminal law asserts: One can only use a certain degree of force in self-defense if one honestly and reasonably believes that a serious enough threat has been posed, and if one honestly and reasonably believes that the use of force in self-defense is necessary to prevent that threat. (p. 52-53) This gives individuals a right to protect themselves against unlawful and threatening actions that are directed towards them for harm. However, that force cannot exceed what is reasonably required for defense. Basically, USA code implies that one does not need to wait until struck to execute an action of self-defense in the situation. However, it is for the jury to determine the honesty of a defendant’s “reasonable belief” that such a force used was necessary, and whether the force was actually reasonable (“Justification,” 2011). There are cases where claims of self-defense are denied, given the entirety of the alternative options the defendant had. China. The criminal code of China works on the presumption that the accused is guilty, and trials proceed to prove the innocence of the individual. The defendant is subject to answering the posed questions in these sessions, which is a way to voice their defense. Chinese law exempts criminal responsibility for harm caused in acts of self-defense. The law is clear that for acts taken to discontinue “present unlawful infringements,” an individual should not be held accountable where this act was executed to secure their interest and right against the harm intended by the infringer. Three terms need to be clear regarding relevant Chinese laws on self-defense: (1) criminal responsibility is liability for the criminal acts, (2) unlawful infringements implies any violations on individuals, and (3) the code covers even private or state-owned properties by the aggressor/infringing party. (No source, it’s based on the analysis of the various researches). Even with legitimate cases of self-defense, the code makes exemptions of legitimacy where the impact of the self-defense actions indicates excessive action. It states that a person acting in self-defense can bear criminal responsibility when they act in self-defense but in the process, cause more damage than what is allowed. The essence of determining what are necessary, or excessive acts of defense is the focus in China’s criminal law. The last phrase of article 20 in China’s criminal code extends to address excessive force used in self-defense. Essentially defense can cause death or serious injuries to the infringer, but only in ongoing assaults that could endanger personal safety. (No source, it’s based on the analysis of the various researches). A person under attack from unlawful invasions has the right to defend him or herself in China. The only aspects to consider in the course of defense are the actual type of ongoing assault, how it would risk his/her safety, and the necessary measure of defense after these considerations. For example, with other options like alarms and trapping an individual, shooting unarmed individual in a case of robbery of one’s property may not be described as a legitimate defense. The infringer had no weapon to attack, there was no on-going assault that risked the defendant’s safety, and the defendant’s measure of self-defense surpassed the necessary limits to stop the criminal. In other words, what necessary measure could the individual have taken? First, is the consideration that the defendant failed to explore these options and the crime failed to match up with the force used and impacts of self-defense. The weaponless minor could have been scared off through other means, like: shooting into the air rather than directing at the youth, possibly locking the youth into a room and calling the authorities, or even beating or physically restraining the aggressor, among others, could have been done without exceeding the limits. Saudi Arabia. The criminal legal system of Saudi Arabia adopted shari’a principles for criminal justice. From it, all crimes are defined and reasoning evaluated before penalties are considered. According to the criminal justice system of Saudi Arabia, jurists should consider the “acts of self-defense as a right of nullifying criminality” (USA IBP, 2011, p. 89). The law requires that individuals’ lives and their property be treated with respect because it is sacred. Islamic criminal justice seeks to establish the motive of the actions so that it can be classified as intentional or without intent, so that claims of self-defense can be established. The Quran states that “there shall be no hostility except against the aggressors,” which strictly forbids all acts of aggression against a person, or collective group apart from the cases of self-defense (Bassiouni, 2014, p. 165). The concept covers both individuals and the state’s defense under imminent attack or threat. Islamic law followed by Saudi Arabia puts limitations on applications of self-defense. It can only be legitimate when the imminent threat risks an individual’s death and/or fatal body injuries and no other options are available for defense to stop the assaulter, such that the individual has to use force for protection. Shari’a also gives consideration of proportionality of the force used in self-defense to ensure it does not exceed the limits, which could lead to the illegitimacy of the claim. According to Bassiouni (2014), the phrase in Surat Al Baqarah reveal’s the law of proportionality; the Quran states, “And fight in the way of Allah those who fight you, but do not transgress the limits” (p. 167). For example, just like civilians, a law enforcement officer may be justified to use a firearm in Saudi Arabia, not only to prevent perpetration of a deadly crime against others, but also for his own self-defense if faced with a seriously looming threat from an armed aggressor. Countries Compared This section compares the countries discussed in relation to each other regarding the issue of self-defense. It also looks at how these countries deal with cases involving minors and the mentally ill. Similarities in self-defense. Despite coming from three different legal perspectives, all three countries recognize self-defense. They allow for “warding off” to keep lives and property secure and most importantly to keep one’s own life secure against bodily injuries. Saudi Arabia justifies self-defense under the Islamic law (sharia), USA under common law, and China through the codified civil laws. Crimes based on self-defense could be exempted upon the juries conviction that it satisfies the determining conditions. All three countries allow the use of force to stop an on-going attack, or an imminent threat of a criminal’s action. However, they all make distinctions to limit the use of force. USA’s penal code refers to necessary force, China’s criminal law addresses it as justifiable defense, and Saudi Arabia as legitimate force. The use of excessive force is literally prohibited and subject to punishment in all three countries; however, its use in reasonable causes of defense provides an opportunity for accused offenders to escape criminal punishment and liabilities for the crime committed. Similarly, all entail a right of defense on circumstances of both anticipatory and on-going threats. They also consider defense for rare and unusual circumstances surrounding minors and mentally ill individuals. Difference of China and USA defense procedures on insanity. The USA common law is more familiar with the terms of insanity defense and requires a proof from medical reports to enable the legal system to offer an alternative treatment to the defendant. The same protection of insane people is provided in China, where relevance is given to the mental state of the person during the time of the crime execution. Completely mentally ill people are exempted from criminal responsibility, while those whose conditions are of an intermittent nature could be awarded mitigated punishment (Cohen, 1968). However, one key difference occurs in seeking defense of an insane person between China and the USA. In the USA, defenders or their lawyers can call for a mental status examination and have a right to initiate it, but not to dictate the terms of such medical evaluations. The people of China are not afforded such a right to initiate a medical evaluation; instead of the defender’s party, only the court, police or prosecutor can make the first call for psychological or mental examinations, which is conducted at the state’s expense (Lynch, 2010). The defender’s party in China is only left to exploit their rights for initiating a re-evaluation mental examination. Though it is not clear who calls for the examination in Saudi Arabia, there echoed words that declare crimes conducted by insane people who are not of their sensibility and minors to be exempted from punishment. Defense based on immaturity. All three countries provide for immaturity defenses to protect minors. However, Saudi Arabia is one country that continues to be criticized around the world for its treatment of children under criminal law. Saudi justice depends on its juvenile justice and detention laws established after the 1960s and 1970s, basic law of governance of 1992, and new legislations such as the 2001 law of criminal procedure, all based on sharia to guide juvenile justice (CRIN, 2013). They provide leniency to minors’ acts of crime in the sense that the actors of the crime were not of age to be treated as adult criminals. Initially, criminal responsibility for the minors could be borne to children as low as seven years old, but after serious considerations, this was raised to twelve years old, which is common for boys (CRIN, 2013). Its application to girls is still a controversial issue in Saudi Arabia, which shows how the nation fails to standardize its criminal treatment of minors in reference to gender. However, though changes are being introduced, judges still retain discretional powers through which they can try a minor before making a ruling. As such, minimum age for criminal responsibility by a minor is a just a figure, meaning that if their evaluation is left to their power, some minors can easily be tried as an adult. The evidence for China shows more of increased juvenile cases consisting of criminal acts for majority minors from fourteen to eighteen years old: the rate changed from thirty three thousand in the late 90s and seem headed to eighty thousands after a decade (“Crimes by Juvenile,” 2007). Contrary to Saudi Arabia, China has a higher age for bearing criminal responsibility. While the averages age at which most children are determined to engage in criminal behaviors in China remains around twelve, children between the ages of ten and eighteen are perceived to have limited capacity in the civil code. The set minimum age is fourteen in China; meaning criminal acts conducted by those below this age are immune from the law. If you evaluate clearly the minors who do not and those who bear criminal responsibility by categorizing them into 10-13 , 14-16 and remain less than 18 years old age sets, you would establish the variations on how the justice system treat them. For the fourteen-sixteen-year-old category, they bear criminal responsibility for only serious crimes, while the sixteen-eighteen-year-olds bear full responsibility, but both are awarded lighter/mitigated punishments (Xi, Sun, & Xiao, 2006, p. 258). Though immune from criminal law, children under fourteen who demonstrate to have serious problems are not left unattended. The government ensures they are entitled to a repetitive psychological assessment for a defined period to determine their problem and administer correction services. The only exception of minors over sixteen compared to adults’ treatment is the exemption from the death penalty. With clear considerations given to higher-aged minor crimes, the criminal law leaves out numerous cases of crime performed by under fourteen-year-olds. Much is left to the parents to correct their children and though the government tries to address serious crimes for the group, there is a group of crimes left unattended (since they may not be defined as serious crimes) and form the basis for delinquent behaviors that come to be noticed later. The case of the USA is quite different, and though an immaturity defense exists, minor offender could find themselves subjected to both or either criminal and juvenile courts. Here, the prosecutor determines which court should deal with the minor criminals. Though a common law system, USA does not have similar age standard as set in UK’s common law; instead it leaves each state to determine the minimum age. Different states’ statutes provide different ages of imposing a criminal responsibility. A majority of the states lack a defined minimum age, but their legal excuse for criminal liability of children’s actions are applied to children under the age of ten. Statues of states like Oklahoma set a minimum age for juvenile treatment as low as seven, while others are distributed with a majority of other states, like Texas, using fourteen years as the minimum (“State laws,” n.d.). The criminal justice system allows for determination of minor’s incapacity at the time of a crime to give insights on the future treatments, either as an adolescent, infant, or with capacity of an adult. Though USA is a federal system, the minimum age in some states is set very low to reflect the intellectual and mental maturity of the children to be capable of being responsible. Yes it’s an opinion. Overview of Capital Punishment under Correctional Systems The focus will now shift to how each country deals with capital punishment. While some countries of the world have abolished this practice, the countries under review have not. USA. The USA has a long history of capital punishment and has sent hundreds of people to death from the time of the founding fathers of the constitution to date. Each state and the federal government have its own criminal laws to decide their stance on capital punishment. According to Garland, 16 states and the district of Colombia have no death penalty, the rest have capital punishments though 15 of them, especially in the southern region actively exercise it while in others are passive (2012). However, the punishment has to meet constitutional standards against the violations of the 5th, 6th and 8th amendments, which calls for following the due process of the law, guarantees of a fair trial to every defendant and insurances of equal protection under the laws (Bianco & Canon, n.d.). USA Supreme Court in 2005 brought to an end death punishment of minors, which protects individuals who committed their crimes while under 18. Numerous changes regarding USA’s capital punishment have occurred, especially after the mid-twentieth century. The federal government, under title 18 of the United States Code, lists the various capital offenses such as murder, treason and espionage cases, and the capital sentencing procedures that protects the under aged, pregnant women, mentally disabled and people under criminal jurisdiction of an Indian tribal government (Bazan, 2005). The changing nature of society due to globalization has led to certain types of offences being removed as capital crimes, while other events, such as the increase of violence and terrorist attacks (like the 20/11 attack) forced the government to adopt other offences for the purpose of deterring such crimes. Examples of capital offences include: first-degree murders of individuals and officials while in performance of their duties, killings resulting from aircraft or motor vehicle hijackings or willful destructions, deaths resulting from civil rights offenses, genocides, retaliatory deaths of witnesses, and murders related to robbery, torture, rapes, and killings of law enforcement officials, among others. The capital sentencing procedures of USA require that the grand jury issue the indictment to the defendants. Sentencing procedures also call for specifying the aggravating factors that later need to be proven beyond a reasonable doubt, and providing the defendant with timely notice before a trial commences (Bazan, 2005). Besides knowing what defendants are charged for, they have a right to know the possible panel of jurors in the criminal trials and the list of witnesses available, unless there is a risk of their safety upon release of such information. China. The death penalty is one method China uses to solve its severe social problems. China is notorious for capital punishment, which is said to hold the largest number of executions among the countries that still retain the act. The numbers of criminal offenses that can be punishable by death are over fifty, which in fact contributes to the high number of charges. Initially, the criminal law adopted in China in the late 1970s focused on political and violent offences that seemed to persist during the time. Economic revolution and reforms later changed the crime pattern and rates causing the expansion capital offenses. China’s capital offences moved from twenty-eight during the 1970s to approximately seventy around the 1990s, and after the recent reforms, it has been pushed back to fifty-five (Lu & Miethe, 2007). The offenses dropped from capital punishment entailed nonviolent and economic-related crimes. Those left are categorized into: crimes endangering national and public security like espionage, poisoning and aircraft hijacks that lead to individuals death after the attack, encroaching on property, violation of duties of military servicemen like treason, disrupting social administration order like jail break, and infringing upon individuals rights like rape and murder (Hong, 2008). Minors under eighteen and pregnant women are exempted from execution. This is a rather controversial issue in practice. The article 34 of China’s criminal procedure law demands that every defendant get a representative defense lawyer, either personal or an assigned attorney by the state (Cao et al, 2013, p. 136). The Supreme People’s court has the ultimate power to approve or reject a death sentence of the defendant. In a review of the case, it is no longer mandatory for the court to listen to the opinion of the defense party, unless the defense lawyer requests it. Courts and defendants can now use longer periods for trials, which helps to reduce errors. Capital punishment is argued to be in line with crime deterrence in Chinese society. Saudi Arabia. The death penalty is firmly held through religious doctrines in Sharia law. The government of Saudi Arabia clearly justifies death punishment, holding the Islamic Sharia law provides for it, despite recognizing the existence of clemency and pardon. Capital offences are a definition of what the Sharia and legislated laws proposes. Traditionally, apostasy, murder and manslaughter (Qatal), acts of adultery, blasphemy, and even sorcery call for death punishment based on the Quran’s directive. The laws stipulate that people are found guilty of the 4 Hudud crimes that threaten Islam (adultery, armed robbery, rebellion and apostasy) the punishment becomes a right of Allah, which is death (Peiffer, 2005). The additional government legislatures have included drug offences and acts of sabotage and corruption to undermine security of others, as in Fatwa No. 138 and 148 (Peiffer, 2005). Foreign nationals in the country have to respect the law and those who commit these capital crimes are rarely exempted from the punishments. Capital death is approved under the criminal law for purposes of retribution for the relatives of those who lost one of their family members through crimes. It’s a common practice in the Islamic world, where Sharia declares a life for a life, and where the laws of qisas (retribution) places the right to life of an infringer (murderer of the member of the society) on the amnesty of the aggrieved party (Abiad & Mansoor, 2010). In other words, the party can claim for “blood” money, capital death, or total pardon of the offender. The criminal procedure requires sufficient proof to convict the offender, which is through witnesses and confessions and all the murder convictions must be appealed. Comparison on Capital Punishment All three countries use capital punishment as a prime factor of crime deterrence. In Saudi Arabia, it is popular because it is within their religious interpretation that is upheld in Sharia. In China, and especially considering the rate of crime and frequency of the punishment, its existence is a way for coping up with social problems. In the USA, most states have prohibited the punishment, but the USA federal government has not been reluctant to use it in crime deterrence. The effectiveness of the crime deterrence strategy, however, raises serious doubts, and instead projects a bad image of these countries. While executions of criminals are conducted in USA and China due to the legislative criminal laws, in Saudi Arabia it is primarily due to religious criminal laws as put forth in Sharia compared to the adopted legislature. Crime deterrence of Saudi Arabia is very practical compared to China and USA because a majority is done in the open or the body is displayed to the public after execution. Minors are protected against capital punishment for the crimes committed while under 18 in all three countries, though the policy application has often been ignored in Saudi Arabia. Insane individuals at the time of a crime and pregnant women at the time of execution are common exemptions in all three countries. All three governments have tried to reform their criminal laws and its procedures concerning death penalties to reduce incidences of capital crime and collaborate with international law to protect human rights. Despite the increasing number of abolition groups, even in the Islamic jurisdictions, abolitionists have not managed to trigger change. Representation and involvement. Legal representation is a must for offenders in China and is common in USA. Defendants can have private defense lawyers or an allocated state attorney. If the defendant declines representation, their wish is respected. Availability of defense lawyers in Saudi Arabia for capital crime cases is not highly embraced. Both USA and Saudi Arabia use the same concept of innocent until proven guilty, but unlike China and USA, the victims’ family plays a central role in determining capital punishment for murder offense in line with retribution purposes. Their wish (death, “blood” money, or pardon) is considered by the judging panel. Methods of execution. In the USA, execution methods have changed over the last century in order to avoid cruel methods of execution. The legal form of execution for federal prisoners in the USA is lethal injection, but individual states supporting the death penalty have other alternatives besides the common lethal injection (ACLU, 2008). States like Utah can use a firing squad, use of lethal gas in the chambers is allowed in Arizona and Wyoming and electrocution is allowed in several states (CBC news, 2014). There are examples of numerous cases going wrong in the execution of inmates that have called for the federal government to consider other humane and faster methods of lethal injection. Some individuals have been subjected to repeated attempts at execution, which could be seen as torture. The current approved method is no better because some prisoners on the death table have been subjected to repetitive injections after the first attempts failed. The executions are carried out away from the public, behind prison walls, and allow willing witnesses and few people, like family members among others, to be present at the time of the execution. In China, the state with prolifically high rates of executions provides mobile units for capital punishment, allowing for prisoners to be executed even locally. The execution vans can enable the preservation of dignity to human life and also saves extra costs of building state facilities for execution. Lethal injection methods recently adopted can be conducted inside the vans and probably close to the areas where the offender conducted the capital offence. Shooting is the other method, where the criminal is shot once in the back of the head. It is rather traditional and could interfere with human rights with the exposure of the sentence to the public. China has had to abolish numerous traditional methods in the last century in respect to humanity. Electrocution is not available in China like in some states of the USA. In Saudi Arabia, the type of death penalty depends on the types of capital crimes committed. Stoning to death for adulterous capital offences is common. Many married women who have been found guilty are sentenced to death through lashes or stoning. Death for adultery is much more common for women than men. Public beheading is also legal under sharia and occurs often for most capital offences. A few decades ago, beheading was applied to men only, but today, women and foreigners too can be executed for violent crimes under Islamic law. Firing squad method also exists, but is rarely used under the Islamic law. Reference List Abiad, N. & Mansoor, F. Z. (2010). Criminal law and the rights of the child in Muslim states: A comparative and analytical perspective. London: BIICL. ACLU. (2008, May 30). Capital punishment in the United States. Retrieved from https://www.aclu.org/files/pdfs/capital/cap_pun_in_the_us.pdf. 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