Conceptualization and Development of New Criminal Laws Essay

Pages: 4 (1410 words)  ·  Bibliography Sources: 3  ·  File: .docx  ·  Level: Master's  ·  Topic: Criminal Justice

¶ … conceptualization and development of new criminal laws and the alteration of existing criminal laws. Further, in this investigation will be included the specific roles of the political lobbyist, the media, citizen groups, the individual citizens and criminal justice agencies on this process. To illustrate this clearly, a tragic case study will suffice in the underreported passage of the National Defense Authorization Act (NDAA) and its almost signature by President Barack Obama. It is hard to imagine anytime in our constitutional history when things have been so black for civil rights when American citizens can be detained by the U.S. military on U.S. soil indefinitely without any due process and the military brig may become as common as the county jail in our very near future.

Analysis-British Common Law

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The effects of English common law on the American justice system are unmistakable. English criminal law has procured its main principles from the common law system. The main elements of a criminal act are the actus reus (doing and act that is criminal) and a mens rea (possessing the necessary criminal state of mind by intention or by recklessness). A prosecuting attorney must show that the suspect has caused the crime or that they had some pre-existing duty to take positive steps to avoid a criminal consequence. The types of crimes included for consideration range from well-known ones such as manslaughter, murder and theft on to a huge variety of statutory and regulatory and statutory infractions. The liberal and flexible nature of this common law was a cherished fixture of the founding fathers and its violation at the hands of the British were one of the foundational sparks of the American Revolution. The law's flexibility allows it a plasticity and dynamism that can see its application to a number of criminal acts as they develop in history and the line of descent from the common law can be clearly seen to the Fifth, Sixth and Amendments of the U.S. Constitution (Siegel 146).

Further Influences

Essay on Conceptualization and Development of New Criminal Laws Assignment

Certainly, the Supreme Court and other federal courts have been activist in their extension of protections to people being tried for possible criminal defenses in its role as the inter. A case study that comes to mind immediately is the classic Miranda v. Arizona Supreme Court decision of 1965. The case broadly expanded the rights of the accused to be informed of their right to consult with an lawyer before and during questioning. This included their right against self-incrimination prior to police questioning by police and that the suspect not only understood their rights, but voluntarily waive them if they were making incriminating states. Criminology and sociology scholar Abraham S. Blumberg in a 1967 article he entitled "The Practice of Law as Confidence Game: Organizational Cooptation of a Profession" says a lot about the perceived and real magnitude of the injustice that the Supreme Court ruling in Miranda was supposed to secure. Essentially, many suspects were not being properly protected under and informed of their Fifth Amendment rights. If they were not aware of them, how could they possibly be enjoying them? Certainly, Miranda v Arizona is a classic case study in how the courts can open doors for the exercise of our classic protections against unlawful prosecution (Blumberg 17). Dr. Blumberg also saw Gideon v Wainwright with the provision of an attorney's counsel to a defendant as basic to the enjoyment of rights. To enjoy them, they have to be facilitated by the state, not just enunciated in writing. To not do so was a cooptation of basic civil rights in the area of protection against unlawful prosecution (ibid., 16). One wonders what Dr. Blumberg would have thought of our next case study.

National Defense Authorization Act 1031 (NDAA)

This consideration of the NDAA is not just to condemn it as a travesty of justice. In this, the analysis is rather akin to abnormal psychology. Sometimes one can learn more about a subject by how it appears in the extreme than in the norm. Unfortunately, NDAA 1031 is a prima facie example of the worst abuses of the American criminal justice system and a case study in detail of media coverage, lobbying, citizen groups, individual citizens and criminal justice agencies… [END OF PREVIEW] . . . READ MORE

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"Conceptualization and Development of New Criminal Laws."  Essaytown.com.  December 16, 2011.  Accessed September 26, 2020.
https://www.essaytown.com/subjects/paper/conceptualization-development-new-criminal/4336516.