Friday, February 19, 2010
DEFINING CRIME WITHIN LEGALISTIC TERMS.
There seems to be a huge misinterpretation on what crime is in many of the judicial systems throughout the world, however, this is primarily due to the way in which different governments have chosen to define crime. When it comes to the U.S, crime is defined legalistically. Our criminal code is written and made into law by legislators. It is the duty of the legislator to define right and wrong and somehow fit it into the system of laws. In our system of law there are two types, statutory and case law. Again, statutory law is law that have been passed by legislatures and placed in the state criminal code or federal criminal code and case law stands for how judges interpret law. Certain policy is set by the courts as well, when it comes to cases where possible policy may need to be reexamined (Plessy v. Ferguson). Once the law is interpreted it becomes the basis for legal rulings in future cases (stare decisis).
Crime in the U.S must be an intentional act. In our system there is something called mens rea and actus reas. To be convicted of crime the State must prove both. It has the burden of proving guilt beyond a reasonable doubt. Mens rea deals with the state of mind, while actus reas stands for the actual act. In the U.S system of laws one must have committed some act to be found guilty of a crime. Under the U.S system if you’re found guilty of violating the law then you’re “legally guilty.” I use the term legally guilty, because once a person is convicted according to law, then they’re guilty based on law and only law, nothing else. However, defining crime within legalistic terms can have devastating setbacks on society or certain members of society. Under this system it is very easy for disparities to come about and grow without a care, because people are more concerned with the legalistic definition than the sociological definitions of crime, which are studied by criminologists. The legal academy, although it tries its best to define crime within the context of law, race, and other sociological factors, they fail miserably at getting their points across due to the simple fact that they’re unable to travel outside of the legal field. Therefore, although they may write amazing articles on certain setbacks in the law, there will be certain key sociological factors missing. When it comes to legal scholars such as Paul Butler and Michelle Alexander we find that they’ve been quite successful in borrowing from the field of criminology, a unique branch of sociology to help make their profound points within their writings.
However, the vast majority of legal scholars are extremely oblivious to the field of criminology and because of that other key factors are not heard. Lawyers are in many ways synonymous with politics, and if they’re going to write on a certain issue pertaining to the law and injustice one would at least hope they’re covering all parts of the problem, but that is not the case! The courts are extremely guilty of ignoring sociological evidence. Even where evidence is presented that is overwhelming such as in the US Supreme Court decision death penalty case, McClesky v Kemp (1987), the court returns to legalistic arguments. Here the high Court was provided huge amounts of the very best statistical evidence (The Baldus study) that showed that black defendants were much more likely to be sentenced to death compared to white defendants even though the crime was the same. The US Supreme Court simply said, that even though the statistics show this pattern, in this particular case of McClesky’s appeal, he had to show specifically that he was discriminated against. The courts in short, follow legalistic arguments, not sociological.
This is precisely why racial injustice continues to exist within the court system, due to the lack of the sociological perspective being included within the writing of law. It is as though the field of criminology exists for its health. The only way to combat racial injustice in the US is to combine the two academies together. We need the best legal and criminology scholars to come together and conduct research and publishing. This is the only way to truly influence politicians on making change. Society as well, must be educated on defining crime. People must know that law on the books are written by fellow human beings whom in many cases are biased, due to party politics and they may not have your best interest in hand if you’re indeed a targeted group. When we look at the history blacks have had in the US when it comes to law enforcement it is more than clear to cite that they’re a targeted group. The field of criminology and sociology collectively, has a ton of scholarly information showcasing this sad reality, yet legislators continue to draft up law that blatantly discriminate against blacks, totally showing their ignorance to the possible effects of their bills. The prison system is comprised mostly of blacks. The public defender office, which is overburdened with cases is almost all the time utilized by poor blacks, so much for Gideon v. Wainwright (1963).
The fact is simple; law defined within legalistic terms will always be a threat to society if the field of criminology is readily ignored time and time again. Problems of injustice cannot be fixed unless the courts finally start to acknowledge the fact that all crime has a sociology to it that must be acknowledged. The courts must begin to acknowledge offenders’ socio-economical status as a possible factor to crime. It is also wise for the courts to start acknowledging one’s psycho-sociological status as well. These factors with a host of many others are covered within the field of criminology all the time, yet they receive no utilization from legislators or the legal academy. If there are loads of black men being jailed for drug offenses, the more proper approach would be to have a criminologist investigate the issue and then immediately following his findings politicians/lawyers would take those findings under consideration, and then a possible law will be drafted into a bill and voted on. Although that may sound like common sense, our current system doesn’t follow it and therefore crime continues to grow and disparities go through the roof.
This is why I ague that the rule of law is a joke. The rule of law is what the majority wants it to be, and under our system of legalistic crime, the impacts of certain crimes are not seen as important, only the amounts of those convicted, however this was not the case during prohibition when those impacted negatively were majority white. It is easy to conclude with the help of history that unless the law impact whites negatively, nothing will never come about to help those who are non-white. The only hope left is to see both academies (criminology and legal) combine together to fight off injustice. In order to truly define crime, every possible attributing factor to crime must be factored in, especially when it comes to the poor. Crime committed by those up the economic ladder is readily dismissed as frivolous acts not worthy of criminalization. According to government statistics and scholarly research, the poor is disproportionately affected by crime, therefore the law isn’t protecting or helping the poor. Incarcerating someone for his lack of being able to provide for himself is one of the biggest crimes of humanity, and the US government engages in that crime on a daily basis by ignoring the grave importance of the field of criminology. But as the saying goes, history inevitably repeats itself if people do not learn from their prior mistakes, on the other hand with the history of blacks being terrorized by the State, one must ask if the law will ever be written with their welfare in mind?