Expediting the Indian Criminal Justice System

July 15th, 2009 at 02:58pm Under Criminal Law

Justice is desired by each and every person in this earth. But as we all know that Justice delayed is Justice denied, so it’s a matter of concern that how many people actually get justice in due time. Well this is a very vague question as there is no specificity to it. However it lays down the basis of a very common problem that has plagued the Indian courts. Yes the term ‘plagued’ actually represents the current scenario of the Indian Judiciary. The problem of backlog of cases have been haunting the Indian courts for a long time and it is high time that we react to the situation and do something about it. Precisely speaking the criminal trials take much longer that what they are expected to take and what actually they take. Thus it is very necessary that some sort of system is adhered to so as to speed up the trial process and relieve the courts of heavy backlog of cases. Crimes happen almost everyday and with such a large population it is quite obvious that at least thousands of crimes are committed almost everyday throughout the country. And as the literacy levels and awareness among the people has increased so they refer their problems to the courts which is the only dispute resolution system and the only place where one can expect justice. Thus it is all the more obvious that with such a rate of criminal cases pooling into the courts the available workforce falls very short of the expectations. Apart from that there are several appeals which are preferred from the trials which furthermore increase the case numbers in the court. In such a scenario it becomes a matter of concern as to how to control the problem. One such solution or alternative through which this problem could be curbed is plea bargaining which is incorporated under the provisions of Criminal Procedure Code.

Plea Bargain – An Insight

Well the first question that comes to our mind is that what is plea bargaining actually. Precisely speaking Plea Bargaining refers to an agreement in a criminal case where the prosecutor offers the defendant with the opportunity to plead his guilt. In other words it means that an option is given to the criminal defendant to accept his guilt and avoid the trial proceedings which would be instituted against the accused as it happens in a normal trial proceeding. Now one might wonder that what benefit is the accused getting by accepting his guilt and by avoiding the trial proceedings. Well the answer to this is that in a plea bargaining case the accused is generally charged of a lesser charge than the original criminal charge and the punishment is also lesser which he would have got had he been charged of the original charge. Many a times it happens that the accused while sitting through a trial is convicted of a more serious charge and also of some additional charges which might be charged along with the original offence. Thus with the help of plea bargaining the accused can relive himself from risking his case of harsher sentences. On the other hand it is beneficial to the victim also as the victim gets justice quickly as the accused accepts his/her guilt. Apart from that the time of the court is saved from carrying out the court proceedings and fulfilling the court formalities. Moreover the time of the court is saved from establishing the guilt of the accused as the accused himself/herself accepts his/her guilt. Therefore a lot of money and the time of the court is saved. Thus we can note that with the help of plea bargaining one can really speed up the criminal court proceedings.

History of Plea Bargaining in India

The concept of plea bargaining has been introduced in the Criminal Procedure Code with the help of a Criminal Law (Amendment) Act, 2005. This amendment act was passed by the parliament in its winter session. Chapter XXIA of the Criminal Procedure Code contains the requisite provisions of Plea Bargaining which is enforceable in India. Sections 265-A, 265-B, 265-C, 265-D, 265-E, 265-E, 265-F, 265-G, 265-H, 265-I, 265-J, 265-K and 265-L of the Criminal Procedure Code enumerates the provisions relating to Plea Bargaining.

However with everything mentioned above it would be quite wrong to say that the concept of plea bargaining is of recent origin. Efforts for dealing with the problem of over burdening of the criminal courts have been made much earlier. The 154th Law Commission, in order to reduce the delay in disposing criminal cases, brought forward the concept of plea bargaining and also recommended the introduction of plea bargaining as an alternative to deal with the heavy backlogs of criminal cases. After that the recommendations of the Law Commission were supported by the Malimath Committee Report. In its report, the Malimath Committee recommended that a system of plea bargaining be introduced in the Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to reduce the burden of the courts. To strengthen its case, the Malimath Committee also pointed out the success of plea bargaining system in USA. Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament. The statement of objects and reasons, inter alia, mentions that, The disposal of criminal trials in the courts takes considerable time and that in many cases trial do not commence for as long as 3 to 5 years after the accused was remitted to judicial custody.. though not recognized by the criminal jurisprudence, it is seen as an alternative method to deal with the huge arrears of criminal cases. The bill attracted enormous public debate. Critics said it is not recognized and against public policy under our criminal justice system. The Supreme Court has also time and again blasted the concept of plea bargaining saying that negotiation in criminal cases is not permissible. More recently in State of Uttar Pradesh V. Chandrika 2000 Cr.L.J. 384(386), The Apex Court held that It is settled law that on the basis of plea bargaining court cannot dispose of the criminal cases. The court has to decide it on merits. If the accused confesses its guilt, appropriate sentence is required to be implemented. The court further held in the same case that, Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced. Despite this huge hue and cry, the government found it acceptable and finally section 265-A TO 265-L have added in the Code of Criminal Procedure so as to provide for raising the plea bargaining in certain types of criminal cases. While commenting on this aspect, the division bench of the Gujarat High Court observed in State of Gujarat V. Natwar Harchanji Thakor (2005) Cr. L.J. 2957 that, The very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice, fundamental reforms are inevitable. There should not be anything static. It can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of judicial reforms.

Plea Bargaining – Relieving the Indian Criminal Courts

Quite clear from the above discussion the main object of Plea Bargaining is to reduce the risk of undesirable orders for the either side. Apart from this it is also helpful in clearing away the pending cases in the criminal courts. However it is also quite important to know that plea bargaining is not applicable to all the offences. It is only applicable to those offences for which there is a punishment for a period up to seven years. Further the provision of plea bargaining doesn’t apply to cases where the offence is committed is a socio-economic offence or else where the offence is committed against a woman or a child below the age of 14 years.

The concept of plea bargaining is very strong. It benefits both the victim and the accused at the same time and finally and the most important it benefits the court. There are two types of plea bargaining which helps the accused in confessing his guilt. One is Charge Bargain and the other is Sentence Bargain. In case of a Charge Bargain the prosecution allows the defendant to plead guilty to a lesser charge or to only some of the charges framed against him. This helps the accused to reduce the charges to a greater extent as the prosecution has a wide range of options to frame the accused of charges. Thus Charge Bargain helps the accused to negotiate with the prosecution and reduce the number of charges that the prosecution might have framed against him. In case of Sentence Bargain the accused is relieved of harsher and a higher sentence if the accused confesses his offence or pleads guilty. In this case the defendant is told in advance what his sentence would be if he pleads guilty. Thus with these two options of plea bargaining most of the cases could be resolved which are rotting in the criminal courts and which are waiting their turn to be disposed off in merits.

Shortcomings of Plea Bargaining

Though plea bargaining is a very positive concept and a welcome legislation for reducing the backlogs of the criminal courts in India, it too has some shortcomings. There are some inherent flaws inside this legislation which can be called as the drawbacks of plea bargaining. The first and foremost demerit of plea bargaining is its inapplicability to all the cases. As mentioned above it is inapplicable in cases where the offence relates to socio-economic offence and offences against women and children below 14 years. So the accused can take advantage of these loopholes and can harass the complete procedure of plea bargaining. Apart from that another drawback of plea bargaining is the involvement of the court in the plea bargaining process. Where the court is involved in the plea bargaining process the court’s impartiality becomes questionable. Also involving the victim in this process can invite corruption. There is a scope of huge amount of corruption in this regard. However the main and primary drawback of the plea bargaining process is the rejection of plead guilty application. In a case where the accused has confessed his/her offence and then the application of the accused is rejected then it would become very difficult for the accused to prove his innocence when normal trial proceedings would be instituted against him consequently.

Conclusion

Though there are some inherent problems and drawbacks associated with the provision of plea bargaining, it still remains a powerful weapon to combat the problem of heavy backlog of criminal cases in the Indian courts. It is very necessary that the shortcomings of the plea bargaining process are given a due though and solved accordingly. Most importantly in the case of rejection of the application of the pleading guilty of the accused; the rejection should be kept confidential so as to prevent prejudice to the accused. Apart from that it is an acceptable fact that the concept of plea bargaining will enhance the faith of the public in the criminal justice system and will help the Indian Courts to fight with the problem of backlog of cases.

Race Relations and Law Enforcement in the United States of America

July 14th, 2009 at 08:58pm Under Criminal Law

“Race relations and Law Enforcement in the United States of America”

By

Osasumwen Osaghae

January, 2009

Abstract

The spate of deadly shootings by the police in the process of apprehending suspects has led many commentators to suggest a racial undercurrent in the attitude of the police officers. In fact, there is the racial current in law enforcement attitudes when it comes to minorities like blacks and Latinos. There are different aspects of the racial current discuss. First, there is the white officer versus black victim scenario; black officer versus white victim scenario; black officer versus black victim scenario and black officer versus white victim scenario, (Peruche & Plant, 2006). It has been suggested citing the danger perception theory that the police are more likely to use deadly force in areas or situations where they encounter greater levels of violence or perceive their jobs to be particularly dangerous, (Best & Quigley, 2003). The place of racial sentiments in police deadly shootings is not entirely clear as there are competing theories seeking to explain police deadly shootings. There is the perceived danger perspective which attributes police shootings to the threat posed by the suspect sought to be apprehended. Even so, a study found that preconceived notions of violence associated with certain races plays a significant role in how the police officers react to threats posed by suspects, (Alpert 2007). Not all the theories share the sentiments of the minorities in the attitude of the police in apprehending black suspects. There are those who support the law enforcement community arguing that minorities should be profiled as criminals or as potential criminals because they are more likely to commit crimes. Profiling and stopping individuals for investigative procedures was therefore thought to be a rational response to the drug and crime problem among some law enforcement officers, notwithstanding the obvious ecological fallacy of targeting individuals based on group behavior, (Alpert 2007). The major question is to what extent does race impact the way law enforcement officers deal with black suspects in relation to how white suspects are treated?

The writer contends that race may be a factor in the attitude of the police in apprehending black suspects. But it is only relevant to the extent that blacks are associated with more aggression and violence than other ethnic groups. It is the fact of the association more than the race itself that triggers more aggressive policing strategies in typically black neighborhoods.

Introduction

There is a growing concern that police officers may be more aggressive in their responses to minority compared to White suspects, (Peruche & Plant). Such responses may be influenced by stereotypic expectations. For example, it is possible that the stereotype that Black men are more likely to be violent and hostile may create expectations that Black people, particularly Black men, are more likely to be violent criminals than are. This may have led to a series of deadly police shootings which will be reviewed in this paper

Culture appears to have an impact on interpersonal relationships in the society. If there is racial prejudice in a given society, the police force where dominated by the oppressive race as in white race in relation to the oppressed race (black) cannot be free from such prejudice. Consequently, a corrupt society would produce a corrupt police force even though; a different picture may be painted. The definition of culture by Linton (1945) supports the argument that police force can only be as good as the society it operates. For him, the culture of society is the way of life of its members; the collection of ideas and habits which they learn, share and transmit from generation to generation. There is another aspect of culture that is relevant to racial prejudice in policing, cultural sensitivity on the part of the police officers. Given the multi-ethnic constitution of most societies in the United States of America today, it is very possible that a police may find himself among a people, whose culture he knows little or nothing about. It is imperative therefore that police officers be trained in cultural diversity and sensitivity from time to time. In this respect, is aggression violence? Being loud or always defensive may be annoying to a law enforcement officer. But is it enough to provoke a forceful apprehension to the extent of fatally shooting a suspect?

The paper will review several incidents of deadly police shootings with a view to identifying a pattern if any and the place of race in the actions of the police officers in the shooting incidents. The crux of the matter appears to be attributing primacy to race as a determinant of police reactions or reactions to perceived danger with race as a concomitant variable in the police officers’ reactions. Among others, the paper will review the Amadou Diallo case in New York, Kathryn Jones in Atlanta and Jason Gomez in Denver.

Amadou Diallo

Amadou Diallo, an unarmed West African immigrant with no criminal record, was 22 years old when he was killed on Feb. 5, 1999, by four New York City police officers. The officers — Kenneth Boss, Sean Carroll, Edward McMellon and Richard Murphy — acknowledged firing 41 shots that night, but said they thought that Mr. Diallo was carrying a gun. Mr. Diallo, who came to America more than two years before from Guinea and worked as a street peddler in Manhattan, was hit by 19 bullets while standing in the doorway of his Bronx apartment building. The case set off massive protests across the city, and became a flashpoint for heightened frictions between minority leaders and the administration of Mayor Rudolph W. Giuliani. All four officers, who were in plainclothes, said they approached Mr. Diallo because they thought he fit the description of a man wanted in a rape case. They contended that when he pulled out his wallet to show identification they mistook it for a gun.

Kathryn Johnston

Members of a Georgia narcotics investigation team shot and killed 92-year-old Kathryn Johnston during a drug raid in her Atlanta home November 21, 2006.

A search warrant stating crack cocaine was being sold in her apartment allowed the officers to cut through the burglar bars protecting Johnston’s home and burst through her door without identifying themselves.

Johnston, who lived alone, apparently mistook the plainclothes officers for intruders and, according to the prosecutor trying the officers, fired one shot through the door and hit nothing. The police responded, firing 39 shots, killing Johnston and apparently wounding three of their own. Jason Gomez On December 19, Denver police officer Timothy Campbell was standing in the middle of the street in a west Denver neighborhood, his gun pointed at a man. The patrolman had been driving north on Irving Street when he’d passed a 1997 Saturn that seemed suspicious. When Campbell made a U-turn, the Saturn quickly sped down a side street and pulled into a driveway. As the officer drove up, a man — he looked to be in his early thirties, Hispanic, wearing a light, baggy jacket — jumped out of the car and ran. Campbell followed him on foot, through back yards and over fences. The man reached the 3200 block of West Ada Place, where he slipped on a patch of ice. He got up and continued down the street, falling twice more. By now Campbell had closed the gap, and when the man got up again, the two were facing each other, less than ten feet apart. Campbell had his service pistol drawn: a .45-caliber semi-automatic Glock. The man reached into his pants pocket, put his hand behind his back, and then started moving his hand forward. Campbell saw the glint of something metallic. He fired two rounds, paused, and then fired four more. The man fell onto a pile of dirty snow.

The Place of Race in Law Enforcement

For some inexplicable reasons or strange coincidence, it is the blacks and the Hispanics that are always caught committing some crimes, (Ruth & Reitz, 2003, P. 32). This is not to suggest that there is no merit in the claim of disproportionate prosecution for crimes involving certain races and ethnic groupings. The point is that, the races and ethnic groups involved tend to have an unusual criminal propensity. Some have argued that the way the society is structured economically places the concerned races and ethnic groups at a disadvantage. This may be a valid argument. It is also true that the African-Americans have a higher criminal propensity than any other single group in the United States of America. At this point, there cannot be any legal justification for resorting to crime and the reasons are obvious. A lot of African Americans suggest that survival is the sole reason for indulging in crime. For precisely the same reason, other persons are pursuing legitimate enterprises in a bid to survive. It is not strange that school drop outs are highest among the African Americans. It follows that if the basis is weak, the superstructure will as of necessity follow suit. There are many factors impacting the criminal propensity of African Americans. For example, the presence of several liquor stores in typically black populations is perceived as deliberate as it facilitates violent behavior and increases incidents of grievous bodily harm and homicide.

Winter (1980) contended citing other authors and quite rightly in my view that police shooting is the greatest triggering mechanism for racial violence in this United States of America today. Making the case for the racial content in police shootings, the writer noted that studies have shown that the ratio of black victims to white victims of police shootings is as high as 30-to-1 in Milwaukee and in Chicago which has the highest rate of civilian deaths, the ratio is 6-to-1. According to the writer, the solution may be in changing the attitude of the police officers themselves. Some of the officers think that controlling their power of deadly force is handcuffing them. The problem with this way of thinking is that they appear to want uncontrolled power in dealing with blacks as opposed to whites. What is probably required is a re-orientation and some form diversity tolerance training with the hope that the police officers would use deadly force less frequently on black people

Apart from the case of Kathryn Johnston, the other victims of the deadly police shooting reviewed in this paper were unarmed and curiously ethnic minorities. The reviewed cases and others like them have given rise to negative sentiments on the part of the ethnic minorities, to wit the blacks and Latinos. There has been the attitude that Police hate blacks. The sentiment is predicated on a vast history of large and small events that African Americans face from police attitudes and actions. According to this school of thought, (Brunson, 2007), blacks do not only draw from their own experiences, but also from a consistent pattern of events they are exposed to in their communities. This perception that the police do not like black people is not helped by the aggressive policing strategies employed by the police in disadvantaged African American neighborhoods, (the hood, ghetto etc). Indirect experiences have the potential to amplify or validate individuals’ interpretations of personal experiences and merit in-depth examination Based on research finding on attitudes of African Americans towards the police, there is the contention that citizens’ distrust is more widespread among African Americans than among white folks. Brunson examines in-depth interviews of 40 African-American adolescent males who resided in a disadvantaged urban neighborhood in St. Louis to better understand their experiences with the police. A major focus of the study was to develop a “detailed understanding” of how these African-American adolescent males interpret their interactions with the police, as well as the interactions of family members, friends, and neighbors, and to assess how these experiences shape their perceptions of the police. The findings suggest that either direct or indirect mistreatment by the police led to negative evaluations by the participants. A lot of the distrust emanates from media reporting of police handling of African American cases. The cases are sensationally reported highlighting the racial contents over and above the dynamics leading to the shootings as in perceived threats and dangers encountered by the police officers involved. The case of Kathryn Johnston, the 92 year old woman shot in Atlanta by the police. She had shot into the ceiling before the officers opened fire. This is not an attempt to defend the actions of the police officers. But when a gun is fired, can it reasonably said that one would not feel endangered so as to provoke a certain reaction such as to shoot with two purposes in mind: self defense and apprehension of the suspect who is armed and dangerous? Given the background of the case which was supposed to be a drug bust, should the officers have left their guards down? I think not. There is some reason in the contention that some neighborhoods are more dangerous than others. Where a neighborhood is notorious for criminal propensity, violence and drug trafficking, the policing strategies cannot be any thing but aggressive. The various cases highlighted above only served to increase citizens’ distrust of the police among blacks in the communities where the fatalities happened. Brunson (2007) recommended that a consideration should be given to the cumulative properties of police/citizen interactions in order to fully comprehend the nature of conflicts between minority communities and police.

The Brunson view is supported by a later article titled Either they don’t know or they don’t care: black males and negative police experiences by Stewart (2007). In addition, he identified race as one of the most salient predictors of perceptions and attitudes towards the police and may be a function of neighborhood context. Owing to social limitations, imagined or real, many residents of structurally disadvantaged neighborhoods feel estranged from formal institutions; they may lack the social and/or political capital to engage law enforcement in order to address various problems within their neighborhood. Often, the police may view these structurally depressed neighborhoods as crime-prone ecological units.

Some instances of police shootings tend to be indefensible. While people are prepared to accept a single officer may resort to deadly shooting based on his judgment, the people resent the use of deadly force by multiple officers involved in the shooting. This suggestion is validated by the outcry which followed the shooting of a 92 year old woman (Kathryn Johnston) in Atlanta by more than four officers under the guise of the belief that the woman was a drug trafficker. What made it worse was the discovery later that there was an attempt to cover up the events leading up to the shooting of the black woman. Curiously enough, it was another racially tainted police fatality. The position of the police officers is that they need to defend themselves against perceived dangers from the suspects and that any attempt to control their use of deadly force is a way of handcuffing them and making them defenseless. For the citizens, particularly the black population, the use of deadly force is not justifiable in most circumstances and is viewed as excessive in most cases. In the article under reference, two separate studies were conducted to investigate perceptions of Police use or misuse of deadly force. The first study found that as number of officers decreased and number of shots increased, perceptions of misuse of force were augmented. Number of shots per officer significantly predicted perceptions of misuse of force.  The second study showed a significant interaction between number of officers, number of shots fired, and social dominance orientation. This personality variable was an especially strong predictor of misuse of force in situations involving the largest number of shots fired per officer. This finding is in consonance with the racial element inherent the deadly shootings of the police. One way of testing the validity of the racial sentiment would have been to examine the rate of deadly shootings among black police officers and to see who were shot in terms of racial composition, (Perkins & Bourgeois, 2006).

The issue of police shootings took a different dimension with the suggestion that particular races are being targeted for such fatal assaults. Unfortunately, several studies seem to support the racial undertone in the shootings, according to Tennebaum (1994). Prior to the Garner case, police shooting was governed by one of four legal excuses for shooting a suspect. They are The Any-Felony Rule; the Defense-of Life Rule; The Model Penal Code; The Forcible Felony Rule. The any felony rule excused a police officer who shot at a suspect getting away running away after committing a felony. The problem with virtually all of the four rules was them they called for a judgment on the part of the officer even before the suspect has a day in court. In the Garner case, Garner brought an action against the police officer and the police department for fatally shooting his son while leaving the scene of a burglary. The suspect was unarmed. The court ruled that such shooting may not be used unless it is to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. 

There is a variant of deadly police shooting which cannot be blamed on the police because it is induced by the victims themselves. Victim induced shooting has been defined in several ways and Mckenzie considered some of the definitions describing them as confusing: killing in which the victim is the precipitator of the killing, incidents in which people bent on self destruction engage in life threatening and criminal activities to force the police to shoot them. All the definitions considered indicate a conscious act on the part of the victim. But the writer points out that not all shooting inducing act are conscious.  In this area of police shooting, race does not appear to be a factor.

On the side of the police, it must be stated that there are confusing terminologies in the race discussion. Minorities can be contextual. Blacks may be minorities in the United States of America as a whole. But not so in some communities that are predominantly black. For example, in most metropolitan Atlanta in the state of Georgia, it would be incorrect to refer to blacks as the minority because they are in majority. The fact of the racial composition of the community is significant because of claims of racial profiling. Where three of four citizens are blacks, it follows that blacks are going to form majority of those apprehended by the police in that community. It is quite possible, for example, to have all the people pulled over in a routine police check to be black because not very many whites are present in the community. It would also be possible for the police to be very active and engage in aggressive policing strategies if the people in the black community have a huge criminal propensity. One fact must be stated. Blacks tend to be more violent than other races. Moreover, how reasonable is the allegation of racial bias where the apprehending officers are blacks? It must mean that the association with aggression and violence emanates from the people and not from the police. The perception of black as violent and aggressive people appears to be the same with black police officers as it is with white police officers.

Conclusion

There appears to be statistics to support the accusation of racial bias in the law enforcement procedures involving black people. According to the Federal Household Survey, “most current illicit drug users are white. There were an estimated 9.9 million whites (72 percent of all users), 2.0 million blacks (15 percent), and 1.4 million Hispanics (10 percent) who were current illicit drug users in 1998. “And yet, blacks constitute 36.8% of those arrested for drug violations, over 42% of those in federal prisons for drug violations. African-Americans comprise almost 58% of those in state prisons for drug felonies; Hispanics account for 20.7%, (Substance Abuse and Mental Health Services Administration, National Household Survey on Drug Abuse: Summary Report 1998, cited in Race Law Enforcement & Prison, 2008). The picture painted after reading the above statistics is that more white people commit crimes than blacks, but there are more black people caught for the crimes. It is either that the white criminals are too clever for the law enforcement officers or the law enforcement officers know who the criminals are among white people, but choose not to apprehend them. It is doubtful if the latter is the case.

 In an interview conducted by the writer with Assistant Police in Dekalb, Kennis Harrell on 11/20/2008, the racial profiling assumption was flawed. The Assistant chief does not agree with claim of racial profiling. His argument was that in a predominantly black populated County like Dekalb, it is to be expected that most of the apprehended suspects would reflect the racial composition of the County. He would also not agree that blacks have a higher criminal propensity than whites. It comes down to the same argument that blacks would commit crimes in a black populated community. The same thing goes for the Latino populated areas. This argument when stretched further seems to dispel the racial content in the spate of deadly police shootings. It would appear that each case of deadly police shootings would have to be analyzed on a case by case basis. Consequently, the only theory that would apply generally to all cases would be the “danger perception” theory, (Best & Quigley, 2003). According to this theory, police officers react to the level of danger they imagine they are in. It then appears to be pure coincidence that more ethnic minorities are involved in deadly police shootings. It is definitely an issue deserving of further inquiry as the trend is disturbing. There is much truth in the suggestion made by Stewart (2007) that there should be further inquiry on what the impact of the presence of minorities in the various police departments would have on the minorities’ perception of the law enforcement agencies. Would the minorities in the police force see their kith and kin as more aggressive and more violent than others? The answer appears to be that perceptions would hardly change. The reason is that even in neighborhoods which are predominantly black both in population and in the composition of the police departments, racial profiling (so called) is not absent and feelings of unfairness and police brutality remain strong.

There is the need for African Americans to have a re-orientation; one that emphasizes industry as opposed cutting corners; one that symbolizes hard work and not seeking to reap where they have not sown; a comprehensive program for all round development as opposed to the get rich syndrome and a genuine effort at abandoning ghetto life.

References

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Brunson, R. K. (2007) “Police Don’t Like Black People”: African American Young

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Linton, R. (Ed.) (1945). Present world conditions in cultural perspective. 

, The science of man in world crisis (pp. 201-21). Columbia University Press

Mckenzie, I. (2006) Forcing the Police to Open Fire:  Cross-Cultural/ International

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Perkins, J. E. & Bourgeois, M. J. (2006) Perceptions of Police Use of Deadly Force

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Ruth, R. S. & Reitz, K. R. (2003) The Challenge of crime: Rethinking our response,

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11/21/2008

Criminal Defense Attorney

July 14th, 2009 at 02:58pm Under Criminal Law

There are many branches of law in the United States. For
instance, civil law is the law as it pertains to personal
relationships, unions such as marriage, and interpersonal
situations such as personal injury cases. Criminal Law is the
branch of law that seeks to define crimes – what a crime is, who
the victim is, and who the perpetrator is. Criminal law can be
divided into two sections, each section involving specialized
lawyers, criminal defense lawyers. The first type of criminal
law is criminal procedure. This subsection of criminal law
defines how trials are to be conducted. Criminal procedure law
dictates how claims are to be investigated and outlines how
evidence must be collected.

Criminal procedure aims to maintain an orderly legal system that
is most effective in the pursuit of justice in light of the
truth. Criminal Defense attorneys who specialize in criminal
procedure are very careful to review how evidence is collected.
They will be very specific in regards to their client’s right
and privileges under the law. A criminal defense attorney will
ensure that the ideal of “innocent until proven guilty” is
maintained through the investigation and presentation process.

The second type of criminal law is substantive. Substantive
criminal law focuses on crime and punishment. Criminal Defense
Attorneys involved in the substantive area of criminal law will
be working with individuals accused of a crime. They will begin
work when sought out by a client accused of a crime or appointed
by the court, as in cases of financial need. Criminal defense
attorneys will meet with clients and hear the details of events
from their point of view. Everything shared between a client and
his or her criminal defense attorney is confidential. A criminal
defense attorney will not turn a client in if the client admits
guilt, but will continue to help the client achieve success in
the courtroom.

A good criminal defense attorney understands that everything is
relative. The law is not black and white, but leaves a lot of
gray room for interpretation. A criminal defense attorney will
gather all of the facts of the case, both from the client and
from the state or federal investigators. Armed with the facts, a
criminal defense attorney will begin to build a case that
presents the client in the best possible light. IF the client is
guilty, the criminal defense attorney will try to present the
facts of the case in such a way as to maintain a doubt of guilt.
The jury, as the criminal defense attorney knows, is instructed
that a person on trial must be proven guilty and does not need
to be proven innocent. They will begin to comb through possible
witnesses and will divide witnesses into character witnesses and
witnesses to the actual events in question. A criminal defense
attorney knows that character witnesses to present the person
standing in trial in a good light will go a long way in the
minds of jury members.

When a criminal defense attorney is defending a client, they
will also seek to ensure the punishment fits the crime if their
client is found guilty. A criminal defense attorney will utilize
relativity to demand proportionality of punishment to crime in
their client’s best interest. A criminal defense attorney stands
by their client until the trial’s end, ensuring the outcome is
as favorable as possible for their client

The Differences Between Criminal and Civil Law

July 14th, 2009 at 08:58am Under Criminal Law

Most people don’t differentiate between civil law and criminal law, partly because the majority of news coverage in the media is dedicated to criminal law cases. Most people have heard of a civil lawsuit, but they aren’t really sure how the two are different. Civil cases aren’t as widely publicized because they don’t ever have the same dramatic punch that often comes with a big criminal case.
It may come as a surprise to many people just how different the two types of suits are – here are some of the biggest differences between criminal and civil law cases.
The Verdict and Subsequent Ruling
This is the major reason why criminal cases are so much more publicized and advertised in the media. The defendant in a criminal case runs much more of a risk – a guilty verdict can bring with it several different forms of punishment depending upon the severity of the crime committed.
Crimes are broken down into two sub categories – first are the felonies, which are the larger offenses and which will most likely result in more severe punishments. Second are misdemeanors, which are the smaller offenses and will likely yield sentences that are not quite as harsh.
A person charged with first degree murder, which is the top of the ladder as far as felonies are concerned, could receive life in prison without parole – or even the death penalty depending upon the state in which the crime was committed. Lesser felony offenses may still yield large amounts of jail time, depending upon the nature of the crime; whether there was pre-meditation, or if the person has been involved in similar criminal activity before.
Misdemeanor charges with convictions often result in one of or a combination of the following – fines, probation, community service and in some cases jail time. Again depending on the circumstances surrounding the crime, the punishment may be either more or less severe.
The defendants involved in a civil case will never, under any circumstances – regardless of the crime charged, be subject to the same forms of punishment as those convicted in criminal cases. In fact, regardless of the nature of the crime committed defendants convicted in civil cases will never do any time in prison. Defendants who are on the losing side of the verdict in a civil case are often responsible to reimburse the plaintiff or plaintiffs of the case in an amount determined by the judge or jury to be comparable to the loss that they may have suffered due directly as a result of the defendants actions. The actual monetary amount awarded in the verdicts of these cases is often hard to come to, especially in cases when more than just property is lost or damaged as a result of the defendant’s actions.
Making the Case
In a criminal case, the defendant is innocent until proven guilty. It’s is the responsibility of the side of the plaintiff to build a case that shows beyond a reasonable doubt that the defendant did, in fact commit the crime in question. If the defense can inject even the smallest shadow of doubt on the plaintiffs case the verdict in the case will (or should) return not guilty. If the jury is not very close to one hundred percent certain that the defendant committed the crime in question, then there is no conviction.
The proof required to get the desired verdict in a civil case is not nearly as high as that of a criminal case. If the plaintiff can initially convince the jury that it’s reasonably possible that the defendant is responsible, the burden for proving their innocence falls on the defense. If the evidence shows more than fifty percent probability that the defendant is responsible a guilty verdict can be returned and the defendant then becomes responsible for reparations.
Even if the defendant is convicted of the charges and ordered to pay, it still doesn’t mean that the plaintiff will receive a financial windfall as a result of the conviction. Often if the defendant has nothing to give, then the plaintiff won’t receive the judgment awarded.
Even if the charges are exactly the same, the results and subsequent penalties handed down can be drastically different in criminal cases and civil cases. Civil cases, while not nearly as dramatic to the media as criminal cases and even when a sum can’t be awarded, can provide true closure for the plaintiff if the defendant is convicted.

Criminal Law – Drink Driving Offences (vic.)

July 14th, 2009 at 02:58am Under Criminal Law

Part 5 of the Road Safety Act (Vic.) contains six types of drink-driving offences as follows:
1 Driving or being in charge of a motor vehicle under the influence of alcohol (DUI);
2 Driving or being in charge of a motor vehicle while the blood alcohol content (BAC) exceeds or is equal to the prescribed limit of 0.05;
3 “Fail the test” offences;
4 Refusing a breath test or failing to undergo a blood sample in hospital after a motor vehicle accident;
5 Failure to have a zero blood alcohol (for Probationary license holders); and
6 An accompanying driver offence.
Penalties for blood alcohol offences usually involve fines or imprisonment or license or permit disqualification. License or permit penalties for drink-driving offences involving BAC readings vary according to the nature of the driver’s BAC, prior drink-driving offences, and when the offence took place.
Conviction for more serious offences like DUI or refusing a breath or blood test, involves two years’ license disqualification for a first offence and four years license disqualification for subsequent offences.
Conviction for BAC reading offences involves license disqualification on a sliding scale according to the BAC reading. The period of disqualification is doubled for a subsequent offence.
As a result of the Road Safety (Amendment) Act 2000 (Vic.), drink-drivers with readings of 0.07 or above must have their license cancelled, irrespective of whether they were issued with a traffic infringement or a summons to appear in court. Magistrates have no discretion to alter the period of cancellation. Drink-drivers with alcohol readings of 0.05 or 0.06 may retain their licenses subject to incurring 10 demerit points whereupon VicRoads has the power to suspend or cancel licenses and permits.
Whilst difficult, it is possible to challenge BAC readings successfully. These defences are generally based upon expert evidence, using the breathalyser over-estimation and rise and fall arguments. These defences are confined to offences of being in charge of a motor vehicle while the blood alcohol content exceeds the prescribed limit.
It is more difficult to challenge “fail the test” offences where a driver has, within three hours of driving or being in charge of a motor vehicle, provided a breath sample or a blood sample which, when analysed, exceeds the prescribed BAC. In relation to those offences, challenges appear to be limited to situations where the elements of the offence are not made out. In other words, defences are that the defendant was not driving; the test was not done within three hours of driving; or where the defendant can establish that the BAC was solely due to the post-driving consumption of alcohol; or the breathalyser was on the occasion not in proper working order or not properly operated.
It is also becoming increasingly common for drink-driving charges to be challenged on grounds that the Police have failed to comply with the drink-driving legislation.
It is important for clients to seek legal advice, particularly where BAC readings are alleged to be 0.07 or above.

How to Get a Law Dissertation Done in 3 Hours?

July 13th, 2009 at 08:58pm Under Criminal Law

In a law dissertation there are more burdens placed because law abides by dictates of a formal controlling agency. Law dissertations require the supporting evidence and straightforward presentation of facts. Information from precedents is researched which is then compared to the presented case that are collected for the present exposition assessment draws out the differences and similarities of both studies. It is important that the resulting analyses should be explained in a logical sequence. Laws and regulations affect all aspects of our society. And laws vary in each country or state. The application of appropriate regulations and case laws should never be compromised on. Take the case of a UK law dissertation or a dissertation law Scotland topic, some issues and laws may be similar but not all. Commonwealth states have a group in ordinary as far as their laws are alarmed. A law dissertation AUK or degree dissertation law topic of Australia may share a lot in common. Criminal Law dissertations should have a Law dissertation title and should always prove the reasons. Competition dissertation law, dissertation law medical or dissertation guard must all go after the procedure of lawful study. A law dissertation has to be observed cautiously and must not diverge from the law dissertation topic. This requires the researcher to explore what the case is all about. Facts should be examined exhaustively before any dissertation question can be framed up. It is also important to locate sources for relevant cases, statutes, and regulations in order to exhaustively dissect the problem question. Most prominently, a time-frame has to be practical when preparing law dissertations; so timelines have to be allotted sensibly for study, analysis, writing, evaluating and reviewing the lawful dissertation. A research may require, for example, the identification, and clarification of an important subject in international contract law. A dissertation euthanasia law must involve hypothetical and theoretical structure of the study. Since there are different specializations in Law, there are different approaches in the presentation of the argument.

Sources of Hindu Law

July 13th, 2009 at 08:57am Under Criminal Law

SOURCES OF HINDU LAW

    India is a huge country not only in terms of its geography but also its population, which has various religions, customs and practices. However, India has two main personal laws i.e. Hindu law and Muslim Law. Before moving ahead, I would like to define the Law – ‘Law is a large body of rules and regulations based mainly on general principles of justice.’

      Hindu Law is a personal Law (Law of Marriage, Divorce, Adoption, inheritance etc) evolved through long period of time from many sources (mentioned below) by Hindu religious community of India. Therefore, I love to call it ‘Sedimentary Law’ because Laws from various sources Sedimented and consolidated into Hindu Law. The important sources of Hindu Law are:

     1)  Ancient Source

     2)  Modern Source

          Ancient source is the main source of Hindu Law, which further subdivided into viz –

a) Sruti: the literal meaning is – ‘what was heard’, and it is originated from Vedas i.e. Rig, Yajur, Sama, and Atharva Vedas. Basically, it is praise in the forms of hymns of the earliest Hindu tradition which deals – types of marriage, adoption, partition etc.

b) Smriti: literally means – ‘what is remembered.’ It is also known as ‘Dharma Sutras’ and available in the prose from. The important Smritis are ‘Manu Smriti, Yagnavalkya Smriti, Narada Smriti etc and, it deals the civil and criminal law, procedural law, marriage Law etc.

c) Commentaries: the discrepancy between above two gives rise a third one i.e. ‘Commentaries, which later on beget two schools i.e. Mitakshara (Vijyaneshwara school) and Dayabhaga (Jimuthvahana school) associated with particular areas.

d) Customs: it is a set of rules and norms, practice by particular society for a long period of time. However, ‘customs arise whenever a few human beings come together as no association of human beings can exit permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations’ (Vinogradoff, Collected Papers). “Indeed custom is coeval with the very birth of the community itself.” (Jurisprudences).

      Modern Source refers to the rules and regulations established through legislation by educated and intellectual people. These laws almost codified laws such as –

a) Hindu Marriage Act (1955),

b) Hindu Succession Act (1956),

c) Hindu Minority and Guardianship Act (1956) and

d) Hindu Adoptions and Maintenance Act (1956)

After independence (15 August 1947), India constituted its own Constitution, where India defines itself as a secular country, like this given space to flourish all religions with its own customs and laws. Therefore, the Indian Legal System is a Common Law-cum-Civil Law. Apparently, Hindu Law is a personal law and applicable to person and family relations only.

How Do Texas Dwi Law Firms Work

July 13th, 2009 at 02:58am Under Criminal Law

It is not an unfamiliar situation that at night on your way back to home after a dinner at your friend’s place you are stopped by the police and been asked to give a sobriety test. If they find you intoxicated then you will be charged and arrested for DWI and also they will suspend your license. In this case, you will have to appear in front of the district judge.

If you are convicted of DWI and if it is your first time then hopefully you would not be sent to prison but will be ordered to pay fine and perform community services. The judge may also order you to attend an alcohol education course. If you are in such a situation you should hire an experienced and successful Texas DWI lawyer or Texas DUI attorney. These Texas DWI lawyers are highly experienced in handling cases of drunk driving charges.

There are many Texas Criminal Law Firms and Texas DWI Law Firms. The DWI laws actually fall under the Criminal Laws, but the Texas DWI Law Firms are considered the best because they have renowned Texas DWI lawyers and Texas DUI attorneys to take such cases.

The charges you may face while driving being drunk could be driving while intoxicated, intoxication assault, endangering a child or any other case related to drunk and drive. These Texas DWI law firms also help you by dealing with Department of Public Safety during the Administrative License Revocation Hearings and try to get an occupational license for you so that you can at least drive for your job during the trial session.

If you search through the Internet you will find out Texas DWI Law Firm, Texas DUI Law Firm, Dallas DWI Law Firm and you will also find out the names of well-known DWI attorneys. These Law Firms and DWI attorneys may even guide you and provide you with some tips on how to get out of the whole mess. If you visit the websites of any Dallas DWI Law Firm or a Texas DWI Law Firm you will be able to register your name and details and hire a DWI or DUI attorney for your case.

These Texas DWI law firms handle clients within the geographical area of Texas. You can hire Texas DWI attorney to handle your trial if you live in places like Houston, San Antonio, Austin, Conroe or in any other part of Texas. Since Dallas is the most popular place in Texas you can also search the net with key words like Dallas DWI law firm or Dallas DUI attorney etc.

So if you, your friend or any of your family members are in such a trouble, then contact a Texas DWI law firm or a Texas DWI attorney to get rid of this problem.

Criminal Defense Lawyers

July 12th, 2009 at 08:58pm Under Criminal Law

Criminal, or Penal, Law, refers to the body of rules that govern punishments for a number of legal offenses, usually enforced by the government. Each state has its own set of procedures to deal with the offenses committed, but for all states, punishment is occurring for a person’s failure to comply with a set of rules or laws. These punishments can range from very simple, such as a small fine, to quite severe, such as execution.
During a trial of this type of Law, a criminal lawyer has the task of defending his or her client. It is almost never recommended that an accused person should try to represent him or herself in a criminal case. Criminal law can be difficult to understand and it takes years to become an expert. When defending yourself, you want someone who understands the situation you are in, knows what options are available, and knows the best way to proceed. Hiring a criminal lawyer is the most effective way to find this type of person.
When hiring a criminal defense lawyer, there are a number of aspects about the lawyer that one should examine. One of the most important aspects is experience, not just as a defense lawyer, but experience with the specific type of case that is being dealt with. Experience spread over a number of years is also important, not just in number of cases seen. Having been successful over a long period shows that the lawyer can adapt to changing moods and views that society goes through, and that he or she has seen a wider variety of outcomes, therefore possessing more knowledge of how to resolve a case. A long winning record is ideal, as this will make the proceedings go much more smoothly. The lawyer will be able to bring ideas and viewpoints that less experienced lawyers may not have seen or heard of yet.
If one is able to find a defense lawyer with this type of experience, it is most likely that he or she will have two other very important attributes, confidence and respect. A lawyer who is confident in the courtroom and in his or her abilities will be able to present ideas more effectively. One who has earned the respect of the community and judges will also be more effective. He or she will be able to negotiate easier, win crucial motions, and get more favorable rulings.
In addition to the courtroom side of things, a good criminal defense lawyer should also be one that cares about the client and makes an effort to understand the situation. A lawyer who is interested in the well being of his or her clients and spends the time to get to know them will be fighting harder in the courtroom than one who does not do this. These lawyers will understand what the various outcomes of a case may mean for the client. Large fines, jail time, or even just a small criminal charge can have enormous repercussions for some people, particularly those that require a license to perform their job. It is important to realize this and to fight hard to reduce those effects as much as possible.
There is no substitute for experience, and ideally, one should try to find the best lawyer available that one can afford. One who has experience and knowledge, but still possesses a passion for what they do, with a genuine concern for the client and his or her well being. Criminal cases can have devastating effects on a person’s life, and a good criminal defense lawyer is a valuable tool that should not be wasted.
The information you obtain from this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Criminal Law – Drugs: Police Sniffer Dogs

July 12th, 2009 at 02:57pm Under Criminal Law

The dogs have been let loose recently. Numerous people have been charged generally involving small amounts of cannabis and MDMA (ecstasy) as a result of over active Labradors at pubs, parties and big days out. A client who recently contacted me was apprehended walking to a dance party in the Botanical Gardens. She had in her possession, 1 joint and 1 pill. The dogs detected her and she foolishly threw away a cigarette pack containing the joint in sight of the police. As the detective was taking her 1 pill and issuing her with a court attendance notice, he blithely noted that he hoped a friend could give her a pill inside the party. Such is the hypocritical operation of drug laws in New South Wales.
What are your rights when a member of the canine constabulary shows you particular attention? The police have no power at common law to search someone prior to arrest. If you are arrested, the police can and will search you and ask you to empty your pockets and go through your clothing. Most minor drug offences are not situations where arrest would normally be appropriate.
Legislation gives the police power to ’stop search and detain’ if they form a reasonable suspicion that you have committed a drug possession offence. A ‘reasonable suspicion’ involves less than a belief but more than a possibility. There must be some factual basis for the suspicion; reasonable suspicion is not arbitrary.
For minor drug offences the issue is what is a reasonable suspicion and how do the police get their hands lawfully into your pockets. Drug detector dogs are a relatively recent phenomenon on the streets of Sydney and for the police a very useful investigatory tool. A recent Supreme Court decision noted Rocky’s (the drug detector dog) ‘nostrils will flare and he will start to sniff rapidly and he will follow the source of the scent until he has found it.’
To what extent can the police rely on an agitated Labrador trained in drug detection to justify a search? The matter was considered by the supreme Court of NSW in 2004 in Darby’s case. The Supreme Court cast doubt on the legitimacy of the use of police dogs to routinely justify searches. The court also pointed out that having an agitated Labrador jump all over you could constitute an assault and an illegal search. The court nevertheless did not state that drug dogs cannot assist a police officer in forming a reasonable belief that an offence has been committed.
On 22 February 2002, the NSW Parliament enacted the Police Power (Drug Detection Dogs) Act (The Drug Dog Act). The Drug Dog Act continues to allow police to use drug dogs to search an individual once they have formed a reasonable suspicion that an offence has been committed. The Act also gives police wide powers to enter venues and screen persons for drugs with the aid of drug dogs.
The Act provides the police with the power to enter premises and undertake ‘general drug detection’. The police may enter without a warrant any licensed premises, a sporting event, concert or artistic performance, dance part, parade and public transport facilities with a drug detector dog. The definition includes persons seeking to enter or leave any of the above. Accordingly on the train, at the pub and at the footy, the police can put the dogs over you while you are entering and leaving. Any drug detection work conducted by the police outside of this very wide definition requires a warrant.
The issue of what will form a reasonable suspicion is still left to the courts and the Drug Dog Act does not empower the police to arbitrarily search persons. The Act gets the police into venues and gives them the opportunity to screen people. The reaction of a drug dog alone likely does not amount to a reasonable suspicion. The police are told not to rely solely on the reaction of the drug detection dog and observe very closely the reaction of the person subject to screening. If a person bolts, starts walking the other way or discards a cigarette package when detection dog’s nostrils flare in their direction this can empower a police officer to search and detain the individual.
A word of warning! You have rights and the law does provide you with some protection but you should not argue with police. It is an offence to tell a police officer to get f…ked, hinder a police officer and assault a police officer. Police routinely arrest persons for these offences. Be cooperative, do not say anything other than your name and your address and get legal advice if you are charged. There is a time and a place to challenge the police and this is at court with your lawyer. The courts will exclude evidence illegally obtained and the prosecution will fail as a result.
Most importantly stay calm. What will give you away is your behaviour. It is likely that you are not the only person at the big day out who has the smell of cannabis on their clothing. The police will generally not search and detain someone unless they give them some real reason to do so. Do not make it hard on yourself, so stay calm if and when approached and ask are you being arrested; if yes call us!