Essay: Criminal Justice Substantive vs. Procedural Law

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Criminal Justice

Substantive vs. Procedural Law

Substantive law includes laws that "create, define and regulate legal rights and obligations" whereas procedural law governs and defines rules law enforcement agencies use "to enforce substantive law" (ICMBA, 2007). Examples of substantive law include the rules governing contract law, which determine whether agreements are binding and enforceable (Kubasek, Brennan & Browne, 2006, p. 31). Procedural law tells law enforcement agents and other representatives how to obtain relief for violations of the law when breaches of substantive law occur (Kubasek, Brennan & Browne, 2006, p. 32).

Related to these two concepts according to Kubasek, Brennan & Browne (2006) are substantive and procedural due process; the former requires that laws that "deprive individuals of liberty" or their freedom, or property, be fair and just (p. 129). Procedural due process focuses on the steps involved in informing an offender of their rights, including their right to a fair and just trial, and the ability to confront an accuser prior to persecution or loss of property or freedom Kubasek, Brennan & Browne, 2006; Keynes, 1996).

Procedural due process stems from the fifth amendment of the constitution of the United States, which protects individuals and offenders from "self-incrimination" in many cases and protects individuals from being tried more than once for a specific crime (Kubasek, Brennan & Browne, 2006, p. 128). This process is applied in many settings, with procedural law applying not only to criminal behaviors involving incarceration but also in employment policy and procedure, public welfare procedures and more, as each requires formal steps outlining what the incumbent may or may not be entitled to in any given situation (Kubasek, Brennan & Browne, 2006). Substantive due process and law simply works to ensure that restrictions in liberties afforded by the fifth amendment are handled in a manner that is fair and just, so that laws are not made without consideration of one's rights, even if an individual has committed a crime worthy of punishment (Kubasek, Brennan & Browne, 2006).

Various Forms of Police Structures Throughout the World

There are varying policing structures throughout the world, including those in Japan that emphasize a more empathetic and rehabilitative policing structure, where police agents are encouraged to take on a more parental role in rehabilitating criminals, to that of a more socialized policing system, as that in China, where crime is addressed under more stringent and directed manners (Weiss, 2000). In Poland, the Criminal Justice system is described by Weiss (2000) as one that is privatized, represented by "growing state repressive arsenals" where corporations and individuals have more control over security and where policing takes on many different forms, reflecting formal state sanctions throughout regions of Poland (p. 1). This compared with private security firms in China that operate more as "wholly owned subsidiaries of the state Public Security Ministry" (Weiss, 2000, p. 1). Privatization is a model used in many countries aside from Poland, including in Brazil, and is often used to "deconstruct the political and state-organized nature of violent social control" many associate with other forms of policing (Weiss, 2000, p. 1). Many suggest that privatization is the key to promoting less violence, however, there is the possibility of increased brutalization and terror under such systems (Weiss, 2000).

The U.S. alternately has adopted a more democratic and state governed policing structure, whereby the Constitution governs the legal processes that embody the policing structure (Kubasek, Brennan & Browne, 2006). In the U.S., there is a greater likelihood for non-violent offenders to become incarcerated, most of which consists of "poor, uneducated youths" (Weiss, 2000, p. 1). There are some that feel that greater privatization may allow for more structure and allow a "cost-benefit" capitalization model of policing in the United States where rather than suffer incarceration, those incarcerated for mild offenses would be assigned employment and be forced to serve their term in the way of labor for private entities (Weiss, 2000, p. 1).

Pizzi (1996) comments that many view the American criminal justice and policing system as among the harshest of all, yet many see that our "elaborate system of constitutional rights" actually affords offenders or those accused of crime more opportunities and rights for defense than in other countries, especially those that privatize the policing system (p. 60). In privatized countries, those actually persecuted for violent activities are often brutally punished or maltreated, to the point of death in some instances (Pizzi, 1996).… [END OF PREVIEW]

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