Discretion in the Criminal Justice System

      Discretion is arguably the most important tool in a criminal justice professional’s arsenal. Without it, we would be robots. Even the most primitive of beings practices discretion in their communal dealings. Discretion is such a significant concept in the criminal justice system because of how many decisions are based off of it. If we were to remove discretion completely from the system, it would cease to function and cause any chance at reformation and evolution of the system to be cast aside entirely. 

Animals use discretion in their everyday lives when communicating with each other. If one chimpanzee out of the entire group does something wrong, such as hurt a baby chimp, the other members will choose how to deal with said chimpanzee. The same can be applied to a multitude of animals, including elephants and even crows. With this in mind, wouldn’t humans have evolved to use the same discretion when figuring out how to deal with one another?

Discretion hasn’t always been pretty. During the days when the Code of Hammurabi was being enacted, people killed criminals for next to nothing. Stealing often carried the same punishment as murder. While this sounds barbaric and lacking in any real thought process on how to deal with offenders, it was still their discretion. In North Korea, up to three generations of a family can be sentenced to a labor camp for one of them committing a crime. Again, this is still discretion in action, no matter how ruthless and cruel it sounds. 

Our current criminal justice system uses discretion in a different manner. Our system evolves and changes into something that is more congruent to our interpretation of fairness. This viewpoint is, unfortunately, subjective. During the early days of the United States, lynching was often commonplace and especially used for race issues. Thankfully, our system has evolved to a point that is beyond that, but criminal justice professionals use discretion every day when making decisions that could have potentially disastrous outcomes. 

Police officers often have to make split second decisions that could affect the lives of many. Some of these decisions aren’t always the right ones, or the fairest, but that is why they are afforded the discretion to act. As a community, we put the power in their hands to make these decisions. This can be either a bad thing, or a good thing, depending on how you view the situation. In 2018 there was fifty-five police officers killed in the line of duty. (FBI, 2019) During the same year, 992 people were killed by the police. (Washington Post, 2019) Should citizens start being allowed to use discretion when dealing with the police as well? 

Defense attorneys and prosecutors have to use a different type of discretion in their duties. A defense attorney has to decide whether to go for a plea deal, try to go to trial, or not see the case at all. Everyone has the right to an attorney, but non-public defenders have the luxury of choosing their cases. If they don’t want to represent a child-sex-offender, they don’t have to. Prosecutors, on the other hand, probably have the most leeway with regards to discretion in the entire system. 

Prosecutors can choose not to prosecute an offender at all. They can also choose what charges to pursue, and in some certain cases, the punishment for the charges. If someone is arrested for murder and it seems like the case is decently solid, the prosecutor can push for the death penalty if their state allows it. They can also choose to drop the case during a mistrial or to keep pursuing it. The lead district attorney can also shape the entire system that they’re in charge of by shaping policy and making decisions. This can alter the trajectory of the criminal justice system for their district. 

Kamala Harris exercised her discretion as a district attorney when she enacted a policy that would make the parents of truant kids have to serve jail time. While she claims that she never actually jailed anyone for it while district attorney, people still went to jail when she pushed the policy statewide after becoming the attorney general. (Janes, 2019, The Washington Post) Another example of a prosecutor using discretion would be in the case of Charles Manson and how they pushed for the death penalty even though he did not actually murder anyone himself. Unfortunately, the judge used his discretion as well and when Manson was convicted, received the death sentence. 

Other than prosecutors, judges have to use discretion in almost everything that they do. In fact, the main role of a judge is to watch over a trial and ensure everything is fair and that the two sides are acting impartially. That requires the utmost discretion as they are essentially the referee and have to make decisions constantly to protect the rights of the accused and the witnesses. Even judges at the supreme court level have to use discretion every single day. When they decide to hear a case and deliberate on it, they are using their discretion to interpret the constitution. 

Discretion is used at every stage of our criminal justice system. Police use it when deciding to arrest someone or what charges to book them with, defense attorneys use it when they decide to take on a case or attempt a plea deal, prosecutors use it when they decide to prosecute a case or to drop charges, and judges use it when they are overlooking a case or having to interpret the law. Without it, we would be a robotic society that makes all of its decisions based off of a checklist. Even animals use discretion, and the further we push the safe ways to use it properly, we become better as a society as a whole. 

References

FBI. (2019, May 6). FBI Releases 2018 Statistics on Law Enforcement Officers Killed in the Line of Duty. Retrieved from FBI.gov

Janes, C. (2019, June 8). Sen. Kamala Harris defends record as prosecutor but skips some details. Retrieved from The Washington Post

Washington Post. (2019, March 31). Fatal Force. Retrieved from The Washington Post

Photo by RODNAE Productionsfrom Pexels

The Criminalization of Homelessness

    

    It is estimated that there were approximately 671,888 homeless people in America on any given night in 2009. (PBS, 2009, Facts and Figures: The Homeless) This number was projected to increase by over 1.5 million over the housing crisis that started in 2008. (PBS, 2009) The number of people that this category includes is very hard to pinpoint, as some sources do not count people in shelters, cars, or tents. Taking these out of the equation leaves an estimation of just over 500,000 people living unsheltered on any given night. (Benedict, 2018, Statistics Show that America’s Homeless Problem Is Getting Worse) Homeless as defined by PBS means, “lacks a fixed, regular, and adequate night-time residence,” meaning that the person being considered must not have a residence to sleep in that is not permanent. (PBS, 2009) This can be anyone from a person sleeping on friends’ couches while he looks for an apartment, or an aging alcoholic that sleeps in a cardboard box. 

    The consequences of chronic homelessness are extremely substantial. Homeless people tend to be the victims of crime at a much higher rate than the non-homeless, even being victimized by hate crimes more commonly as well. (Smith, 2019, Unhoused people are more frequently victims of hate crimes) There is also a very large correlation between the mentally ill and being victimized. In a study published in the journal Child Abuse and Neglect, 84% of the youth sample size had experienced some form of victimization. (Bender, Ferguson, Thompson, & Langenderfer, 2014, Child Abuse and Neglect Vol.38(10), 1628-1635) This is an overwhelmingly large number that shows the dangers that homelessness can cause. The victimization of the homeless can not be solved without groups of people working together on a solution. Throughout the history of the United States, there has been laws and regulations made in an attempt to thwart homelessness, but the problem still affects an extremely large amount of our youth, veterans, mentally ill, and people that are forced into homelessness due to no fault of their own.

    Homelessness has been an issue in civilization since the beginning of civilization. It has also been a social problem since this time as well. There has been recorded public outcry about this issue since ancient Greece was still ruling the Mediterranean. The Cynic philosopher, Diogenes of Sinope was a homeless man after he was exiled from his native city for allegedly defacing currency. (Mark, 2014, Diogenes of Sinope) This may have been why his beliefs were shaped the way they were, and a lot of his teachings focused on giving up personal possessions and living off of the charity of others. (Mark, 2014) He slept in a large, abandoned wine cask and is said to have at one point owned a cup but gave it away once he saw a boy drinking from his own hands, realizing that one not even need a cup to sustain themselves. (Mark, 2014) The man did not draw empathy from the rich, who at one time threw bones at him and called him a dog, to which he promptly agreed by urinating on them. (Mark, 2014) He did, however, garner sympathy from the people that frequented the market where he lived. At one point, children in the marketplace broke his wine cask and the locals responded by beating the children and replacing the cask for Diogenes. (Mark, 2014)

    This freedom of full autonomy can be enticing, especially when homelessness first became a widespread problem in America. The 1870’s and the railway system brought about the beginning of widespread homelessness with “tramps” using the system to travel from one town to another. (NASEM, 2018, Permanent Supportive Housing: Evaluating the Evidence for Improving Health Outcomes Among People Experiencing Chronic Homelessness) The “Great Army of Tramps,” that a twenty-one-year-old immigrant named Jason Riis was apart of and documented, was full of young, white, able-bodied men that brought the freedom of Diogenes to the railroad. This group of men craved the autonomy of not having to work for anyone consistently and constantly travelling. The men embraced hard work and did little to follow rules and regulations, initiating a counter-culture movement that veered away from societal norms and values. (NASEM, 2018) While these “tramps” of the 1870s were associated with laziness and low self-control, the term “hobo” coined in the 1880s helped the movement gain understanding in the general public’s eyes. (NASEM, 2018)

    This glorification and often romanticizing of the hobo culture rose all the way until the 1920s, when Chicago sociologist Nels Anderson popularized the term “hobohemia” to describe the freedom felt when not anchored to a town. (NASEM, 2018) Eventually, seasonal labor would start being taken by immigrant farm workers and companies started valuing longevity over temporary, hard work. (NASEM, 2018) This brought about an era of homelessness more often associated with homelessness today. Most of the homeless following WWII were most often found in Single Room Occupancy hotels or Skid Rows, which made the study of homelessness in America difficult for the time. (NASEM, 2018)

    During the 1980s, the HIV pandemic as well as the recession that took place caused homelessness to skyrocket and become more of the homelessness that we experience today. (NASEM, 2018) The demographic changed as well during this time and the new face of homelessness was younger men, typically under forty, and mostly encumbered with substance abuse and mental illness. (NASEM, 2018) This new wave of homeless were considered “literal” homeless as they had no apartments, hotels, or SROs to escape the street to. (NASEM, 2018)

    Laws and agreements passed to curb homelessness have been taking place in America since homelessness fist became widespread, but in 1977, the Stewart B. McKinney Homeless Assistance Act was passed as the first act to address homelessness directly. (NASEM, 2018) This act defined homelessness as well as provide federal aid to shelters for supporting homeless peoples. The McKinney Act also oversaw the creation of the U.S. Interagency Council on Homelessness or USICH and the Health Care for Homeless or HCH. (NASEM, 2018) Without this act, homelessness in the United States may not have ever received any sort of assistance.

    The next initiative to take place to directly help the homeless was in 2002 with the creation of the Chronic Homelessness Initiative by USICH which was a plan for local jurisdictions to be better able to help the homeless population by utilizing a ten-year plan. (NASEM, 2018) In 2003 there was another initiative passed which provided low-threshold and permanent supportive housing programs for chronic homeless persons. (NASEM, 2018) The HEARTH Act in 2009 aimed to eradicate homelessness completely by providing people with a 30-day housing plan as well as streamlined the process of applying for aid. The Obama Administration in 2010 released a federal strategic plan that culminated in four key steps, or the prevention and ending of homelessness among veterans in five years, finishing of the job of ending chronic homelessness in seven years, preventing and ending homelessness for families, youth, and children in ten years and setting a path to ending all types of homelessness eventually. (NASEM, 2018) Without the 1977 creation of the USICH, most of these acts never would have came to fruition. 

    Homelessness in Phoenix, Arizona finds its roots in most of the common societal problems as homelessness in any other state. Three main contributing factors of homelessness can be identified as substance abuse, job loss, or factors out of their control, such as mental illness or domestic violence. These are root problems that, if countered effectively, can provide answers and ultimately solutions for the homeless epidemic. 

    According to the Arizona Addiction Recovery Center, factors that lead to the misuse of drugs through adolescent homelessness are a family history of substance abuse, not handling stress efficiently, substance use in early ages and in surrounding environments, and physical or sexual abuse among others. (ArizonaAddictionCenter.org, 2019, Factors that can contribute to homelessness and substance abuse) Often, substance abuse and homelessness lead to a vicious circle of attempting to numb the discomfort of being homeless with substances that drastically lower productivity. Psychological issues can also pair with substance abuse issues to create a co-concurrent disorder which creates a damaging cycle of dependence. (ArizonaAddictionCenter.org, 2019) 

    Another main reason for homelessness, especially in the current climate of the world, is job loss. Arizona is a right-to-work state, meaning that you can be fired for anything, at any time. While attending University, I worked in odd jobs around where I live. These were typically warehousing and such, just to make enough to pay the bills to take care of my family and still attend school. The reasons that I would see people fired were ridiculous at best. Talking to one another, wearing the wrong shirt, things of this nature. If there are no repercussions for being fired for the most trivial of reasons, how can we put a stop to homelessness? All someone needs to become homeless is a lapse of one month’s rent and they are evicted.

    Mental illness is also a significant contributor to homelessness. An estimated 20-25% of homeless are severely mentally ill, compared with only 6% of the whole population. (Kim, 2017, Mental Illness and Homelessness: Facts and Figures) Another 45% of the homeless population has been diagnosed with a mental illness at some point before. These numbers are astounding and show a significant difference in homeless populations and the general population. PTSD is a mental illness that affects a wide range of people and is also a very large contributor to homelessness as well as a large side effect to being victimized while homeless as well. Anyone who has a PTSD diagnosis should be given extra treatment and a contingency plan to help them avoid homelessness at all costs.

    If PTSD is a significant factor in the homeless population, then all of the wars that have been fought have been incredible contributors of homelessness in my opinion. If the majority of homeless have a mental illness, then returning combat veterans are ripe for becoming homeless. PTSD has been a significant contributor to homelessness since the Civil War and before that. The 1870’s brought about the means for vagrants to travel and coming off of the Civil War provided the bodies and damaged minds. World War I brought about the marches of homeless people for the benefits they were supposed to have received during the war. The same thing can be said of World War II promises to veterans.

Sources pulled from:

ArizonaAddictionCenter.org. (2019, December 12). Factors that can contribute to homelessness and substance abuse. Retrieved from ArizonaAddictionCenter.org

Bender, K., Ferguson, K., Thompson, S., & Langenderfer, L. (2014). Mental health correlates of victimization classes among homeless youth. Child Abuse and Neglect Vol.38(10), 1628-1635.

Benedict, K. (2018, January 1). Statistics Show that America’s Homeless Problem Is Getting Worse. Retrieved fromTheDataFace

Couloute, L. (2018, August). Nowhere to Go: Homelessness among formerly incarcerated people. Retrieved fromPrisonPolicy.org

Kim, M. (2017, July 31). Mental Illness and Homelessness: Facts and Figures. Retrieved from Harvard

Mark, J. J. (2014, August 2). Diogenes of Sinope. Retrieved from Ancient History Encyclopedia

NASEM. (2018). Permanent Supportive Housing: Evaluating the Evidence for Improving Health Outcomes Among People Experiencing Chronic Homelessness. Washington (DC): National Academies Press (US).

PBS. (2009, June 26). Facts and Figures: The Homeless. Retrieved from PBS.org

Smith, J.-L. (2019, January 23). Unhoused people are more frequently victims of hate crimes, report says. Retrieved from StreetSenseMedia

Photo by sergio omassi from Pexels

Media Bias and the Migrant Caravan of 2019

     

    Labels are a tool used by the media to harbor specific feelings about a group of people to their audience. There has never been a time throughout history where we have been less surrounded by media than we are today. It’s on our televisions, on our computers, and even in the palm of our hands. We go to the news for information about the world around us, but when that information is disseminated through a filter that aligns with someone’s viewpoint, it is our job to put that bias on the side in order to understand the raw information being conveyed. When the media uses words such as, “rapists, criminals, and gang members,” in its reporting, it is attempting to paint a false scenario that is up to us to scrutinize fully and completely.

    In 2019 there was a large migrant caravan that was heading for the United States to cross the border illegally. The people were escaping the “barbaric crime and poverty” of Honduras, with safety in numbers being the primary reason for the size of the travelling group. (2019, Journal of Pediatrics and Child Health, 1280 - 1282) Along the way, these migrants were subjected to assault, the force-able taking of their documentation, deportation, and even murder. One unaccompanied minor named Jonathan had his phone and wallet stolen, was subjected to a tear-gas attack at the U.S. border, and watched a five-month old baby pass away. (2019, Journal of Pediatrics and Child Health, 1280 - 1282)

    There is an estimated 400,000 Central Americans that cross through Mexico and move North into the United States every year. (2019, Journal of Pediatrics and Child Health, 1280 - 1282) When the migrant caravan began its journey from San Pedro, Honduras In October 2018, there was around one-hundred people. That number increased to more than 7,000 by the time the caravan reached the Mexico – Guatemala border. (2019, Journal of Pediatrics and Child Health, 1280 - 1282) This means that there is obviously a huge desire to move north into the United States despite the risk along the way.

    If they make it to the border, the treatment by the United States is hardly any better. Because of the zero-tolerance policy, migrants crossing into the United States can be charged with a crime. When they are charged with a crime, they are detained and separated from their children. President Donald Trump signed an executive order to end the separation in June of 2018, but data from the border still suggests that as many as five children per day were still being separated from their families through the end of the year. (2019, Journal of Pediatrics and Child Health, 1280 - 1282)

    If you are wondering how atrocities can happen on U.S. soil, you can place a large part of the blame on the media. During the migrant caravan “crisis,” there were multiple stories being pitted against each other for the American people. While some were claiming that these people needed a better life and that we should welcome them with open arms, Trump and the more conservative outlets were claiming that over 600 criminals were travelling with the caravan and wished to enter into the United States to cause disruption. (Clarke, 2018, University Wire) In reality, there were a few criminals travelling with the caravan, but to know an exact number is incredibly doubtful and claiming that all members were criminals hurts the legitimacy of the people seeking asylum for a better life.

    A photo circulated on Facebook in 2018 depicting a Mexican police officer with deep gashes on his head. The photo was taken at a student protest in Mexico in 2012 and had nothing to do with the migrant caravan six years later. Still, it was shared and distributed by conservatives on social media with the caption, “"And WE are supposed to believe these are just poor, helpless refugees seeking asylum??? I am 100% behind POTUS deploying our military to protect our border and keep them out." (Timberg, Davis, & Tran, 2018, The Washington Post) This is a bold, flat-faced lie that can hurt people when shared on a media outlet.

    Social media is a finnicky source. There is no way to know the truth behind a picture without gathering more evidence for yourself first. Reporters have to interview people and present their best version of the facts, no matter how they spin the information which already makes them a bit more reliable. Social media does not have these limitations, making it extremely dangerous for the average individual reading the content. Usually it is just one or two photos with a sentence. The reader is supposed to gather all of the information from just this little snippet of data. This is why it is important for people to always fact-check information before posting something that could be destructive towards a specific group of people.

    Despite the ramifications of the media and the labeling of migrants, some positive aspects of social media are actually paving the way for migration. In a journal published by Erasmus University out of Rotterdam in the Netherlands, there are four ways in which social media transforms migrant networks. (Dekker & Engbersen, 2014, Global Networks Vol.14(4), 401-418) They allow migrants to be able to keep in contact with their home network despite migrating hundreds or even thousands of miles away, as well as, “address weak ties that are relevant to organizing the process of migration and integration.” (Dekker & Engbersen, 2014, Global Networks Vol.14(4), 401-418) They also establish a new network in the area that they have migrated to, and they allow migrants to coordinate on unofficial channels and help each other become “street smart” before they reach their destination. (Dekker & Engbersen, 2014, Global Networks Vol.14(4), 401-418)



    The use of social media by migrants helps them establish community before they reach their settlement location, keep ties with their family back in their home country, and learn things about their new home. (Dekker & Engbersen, 2014, Global Networks Vol.14(4), 401-418) While these are extremely important to the migrant’s experience, the most important thing that it does, arguably, is that it allows a flow of information between members of the group and creates a support network so that they do not have to go at it alone.



    Bias in the media will not go away on its own. This is why it is important for the public to be educated and understanding of the ways in which the media attempts to reinforce their viewpoints in ourselves. Social media is no different as this time we are being reported to by our own community of people who most likely have their own bias. When disinformation campaigns are released on the public with shock words to incite fear, such as the way the media covered the caravan incident, that fear grabs hold and causes people to act irrationally. This is why you have such groups as the minutemen in Arizona that regularly patrol the border or the egregious amount of people that are completely fine with toddlers and young, helpless children ripped away from their families and held in captivity for an undisclosed amount of time. Media, both social and corporate, contribute to xenophobia by enacting a bias on the populace against migratory peoples.

 

Sources pulled from:

Clarke, S. (2018, December 1). Top five media lies on the migrant caravan. University Wire

Dekker, R., & Engbersen, G. (2014). How social media transform migrant networks and facilitate migration . Global Networks Vol.14(4), 401-418.

Isaacs, M. (2019). Migrant Caravan. Journal of Pediatrics and Child Health, 1280 - 1282.

Timberg, C., Davis, A. C., & Tran, A. B. (2018, October 24). How years-old photo of bleeding officer is being used to stoke fears about migrant caravan. The Washington Post. Business Insights Global.

Technology and Privacy: Apple and the FBI

 

When we invite the government to encroach into our lives and privacy, we give them a foothold on our freedoms. Part of the reasoning behind the founding fathers’ break from England was to preserve the very freedoms that they held sacred. The fourth amendment was put in place because of the rampant abuse of the Writ of Assistance by the Loyalists. It has evolved over the last two-hundred years to coincide with a technologically evolving world. If our phone is an extension of ourselves, would it not make sense for the fourth amendment to extend its protections to it as well?

            As our democracy ages and matures, the federal government gains increasingly more power over our privacies. Unfortunately, the Supreme Court usually votes on and adopts resolutions that are, “…tied to fixed technological capabilities.” (The Hill) While it wouldn’t be fair to ask the Supreme Court to anticipate the changes of evolving technologies, it does mean that the average American needs to be vigilant in understanding what the lawmakers are passing and how both sides of the argument are playing out at the highest levels.

            When Syed Rizwan Farook and Tashfeen Malik attacked the Inland Regional Center in San Bernardino, California, the F.B.I. had a vested interest in the contents of the phone found at the scene of the crime. The problem with this phone, which was manufactured by Apple, was that it had a password in place that was only known by the deceased. When Apple was asked to help the F.B.I., a dangerous precedent was about to be set dependent on their answer. Regardless of the reasoning by the F.B.I., Apple stood up for the protections of freedoms for their customersand ultimately, John Q. Public as a whole. (NPR)

            While it was certainly their purview to deny the F.B.I.’s request, Apple was bypassed in the end. Unfortunately, this means that the case was dropped, and we’ll never get an official decision from the Supreme Court regarding the use of security features on a phone to bypass a warrant. The precedent that the F.B.I. set is damaging to our democracy as a whole and encroaches on the privacies that our founding fathers put in place when James Madison penned the fourth amendment.

            Fortunately, there have been cases that have been ruled on by The Supreme Court that shed light on the protections that we do have with our phones. In Carpenter v. United States, a group of robbery suspects were tracked by the F.B.I. who placedthe defendant at the scene of multiple robbery locations during the course of one-hundredand twenty-seven days. (Police One) Because the cell phone data was obtained without a warrant, the defendant moved to suppress it as evidence. The district court ruled that he did not have a reasonable expectation of privacy through his cell phone’s historical locator data and the Sixth Circuit Court of Appeals affirmed under the third-party doctrine which states that, “…any information that is shared with another, such as telephone records in the [Smith v. United States, 1979] case, lose any claimed expectation of privacy.”

            This case reached the Supreme Court where it was decided that because the locator information is not truly shared, the police needed probable cause to use the information. More importantly, it was decided that, “Cell phones and cell phoneservices are ‘such a pervasive and insistent part of daily life’ that carryingone is indispensable to daily life.” (Police One) This means that the Supreme Court was officially ruling that a cell phone is essentially an integral part of our life and we have a reasonable expectation of privacy regarding it and its contents.

            By the F.B.I. circumventing the encryption protections that Apple placed on their devices, and then asking them to create a backdoor (which in itself is wrong to ask of a company to do), they attempted to encroach on our freedoms lined out in our Bill of Rights. Something that makes our country different than a country such as China, lies in the privacy that the average citizen enjoys. Technology is going to keep evolving at a rate that our laws must keep up with. In the coming years, one of the ultimate tests our democracy will face is how it protects the privacy of citizens and the extensions of them. If acts like the F.B.I. committed regarding Farooks’ iPhone remain unchecked in the proper channels, we may become the very thing that James Madison attempted to repair over two-hundred years ago.

Sources pulled from:

Selyuhk, A., & Domonoske, C. (2016, February 17). Apple, The FBI And iPhone Encryption: A Look At What's At Stake. Retrieved fromNational Public Radio

Terrence P. Dwyer, E. (2018, December 11) Retrieved from PoliceOne

Turley, J. (2017, November 30). It's too easy for the government to invade privacy in name of security. Retrieved from TheHill

United States and Italy: Comparing the Criminal Justice Systems

One of the most prominent countries in the criminal justice field with regards to changes made and philosophy written is Italy. With some of the greatest minds throughout the medieval times and enlightenment calling Italy home, the country has always been on the forefront of understanding criminology and criminal procedure. While they do not have the most formidable or “bulletproof” system, and still considered to be in its infancy, there are a multitude of aspects about it that can rival our own.

Italy can arguably be called the birthplace of classical criminal justice, when the socialist philosopher Cesare Beccaria published his treatise On Crimes and Punishments. This happened during the Enlightenment Period and was written of the mindset that punishment above all would be the tool most useful in gaining the compliance of the peoples. Beccaria believed that people chose every action that they committed, and the fear of punishment would be the ultimate deterrent. He believed that there was a “despotic spirit” that resides inside of every person and that this spirit had to be suppressed during decisions that chose whichever result did not end in punishment. (Siegel, 2016)

Cesare Beccaria, "Father of Criminology"

            Beccaria’s main principles held that,

 “…people choose all behavior, including criminal behavior; their choices are designed to bring them pleasure and reduce pain; criminal choices can be controlled by fear of punishment; and the more severe, certain, and swift the punishment, the greater its ability to control criminal behavior.”

This was an interesting philosophy at the time because although he was a big advocate for punishment, he did believe that the punishments and routine torture of the time were too severe and also inappropriate. Punishment needed to be tailored to the individual crime and not too harsh, as this counterbalance will deter the pleasure received from committing the crime.

Classical criminology was beginning to take shape throughout Europe, and one of its main tenets held that every single person had free will, which is a stark contrast to one of the beliefs prior in that some things were determined by the divine. It also stated that criminal actions were often justified to the criminal because there were large payoffs for a seemingly small amount of work, which is why punishments need to be swift and severe without being overbearing to show criminals that crime doesn’t pay. This is the basis formed for other countries to adopt what the United States would consider the “cruel and unusual punishments” clause in their respective constitutions.

During the same time period, life in Colonial America was just gaining a foothold, and with it, court systems and a criminological system that closely resembled England at the time. During the 1700’s, there was no clear-cut system in place in the Americas, and policy varied greatly from colony to colony. (Law Library, 2019) During the mid-1700’s, a reform system was taking shape and was solidified after independence from England was finally achieved. This system greatly favored individual rights and protections under the constitution. The following years would prove to lay the foundations through court decisions and policy shaping.

By the end of the 1800’s, classical criminology would be slowly replaced by a focus on external and internal factors, like class, race, IQ, poverty, and other environmental or genetic factors. Classical criminology was still responsible, however, for the way the court systems, process, and punishments worked, it was being rejected by most mainstream criminologists in both the United States and in Italy. (Siegel, 2016)

During the 1970’s and 1980’s, both Italy and the United States would begin a vast reform in their respective systems, with Italy choosing to ultimately do away with their inquisitorial system and opting for a much more streamlined system where the respective parties, and not the judge, was responsible for conducting the investigations. The problem Italy faced was in how rooted their system was on civil law. Like most western countries, Italy’s backlog of cases was too cumbersome for the inquisitorial system to handle.

During the system laid out in the 1930’s known as the 1930 Code of Criminal Procedure, the judge was responsible for gathering the evidence and conducting the investigation, in which the investigative function dominated. Next, a public trial phase would occur, in which the evidence was developed and laid out. What ultimately ended up happening, however, was the examination phase taking the brunt of the process and the trial merely happening as a formality in a lot of cases. One of the biggest problems with this system is that the examination phase was conducted in private with the defense not being able to see any of the evidence or being notified of key findings during the investigation. According to the Yale Journal of Law, “Without the presence of the defendant or defense counsel at the examination, interrogators could put considerable pressure on witnesses who appeared before them.” (William T. Pizzi, 1992)

The system was again reformed throughout the years to allow the defense more power during the examination phase but did nothing to curb the overbearingness of this phase to allow for more participation in the trial. Finally, in 1989, the new Code of Criminal Procedure was adopted and completely restructured criminal trials along adversarial lines and took the burden of the investigation off of the judge. While an adversarial system helped Italy with their enormous backlog of cases, there are drawbacks seen in the American system such as jury selection and the observance of complex evidentiary rules, which the Italian adversarial system has no counterparts. (William T. Pizzi, 1992)

Another big difference in the systems is the way the United States relies on a full public trial while the Italian system seeks to include special procedures put in place to avoid this. There is more of an emphasis on plea bargaining in the Italian system to avoid a trial altogether, something that it has in common with the American system, with more emphasis placed on it possibly due to the backlog of cases. The plea-bargaining system currently enjoyed by both country’s criminal justice systems is an important aspect because it de-clutters the court calendar, frees up prosecutorial resources, gives the opportunity of an easier sentence or charge, and may serve to keep prisons from overcrowding when used effectively. The drawback to this procedure lies in an innocent person choosing to plead guilty in order to escape a perceived worse punishment for something they did not do in the first place. (William T. Pizzi, 1992)

Another huge difference between the Italian adversarial system and the United States’ adversarial system is the way in which we afford Miranda Rights to an individual being arrested. In the Italian system, police questioning, and statements gathered from it cannot be admissible in court, period. The only way a statement can be used in a trial is if the defendant has his legal representation available to them at the time of questioning and they are present.

This is a better system then the United States has currently because police can say anything in order to extract a confession. According to the National Registry of Exonerations, with regards to offenders under the age of eighteen, 44% were found to have falsely confessed to a homicide. This number rises to 81% when taking mental illness into consideration (all ages.) (National Registry of Exonerations, 2019) This means that if police in Italy are not able to question the individual at all before their representation is present, a lot of the problems with false confessions that the United States faces would be eradicated.

Italy also has a system in place called a “udienza preliminar” which would be called a preliminary hearing in the United States, with the main difference being the process by which it occurs. During this phase of the pre-trial process, the prosecutor can send the judge the entirety of their case collected during the investigation. When the hearing begins, no witnesses are called to the stand in lieu of the documents and results of the investigation being outlined. The defendant may be examined by the judge, but they cannot be cross-examined by the prosecution. Following this procedure, the judge decides to move forward with the case, or to dismiss it entirely. Usually a dismissal only occurs if the judge believes that the defendant did not commit the crime at all.

At the actual trial, the prosecution begins the statements, with witnesses appearing in the same order for both parties, and the defense always given the closing statements and final word. This is a stark difference from the United States’ trial system as usually the prosecution has the last word. (William T. Pizzi, 1992) Another vast difference in the Italian trial system is that the defendant can challenge anything said at any time by a witness. This is in keeping tradition with the civil law system used by the country prior to undergoing the change to the adversarial system. The defendant must also present any mitigating factors during the trial as well. Following the trial, the court has thirty to ninety days to draft the opinion of the court.

The appeals court in Italy works very differently from ours. Acquittals can be appealed, and Italy has five different acquittals that can be given following a trial. They are:

“1) that no crime was committed;
2) that there was a crime, but the defendant did not commit it;
3) that the defendant is innocent of the crime, because evidence was insufficient to convict him; 4) that there was no crime, because the defendant had a justification for his action (such as self-defense or necessity);
or 5) that it was not possible to decide the case due to a procedural fault.”

            The defendant can always appeal an acquittal to receive a better (lower number) ruling. The United States’ appeals system is hampered by only being allowed to appeal certain characteristics of the case, such as an unfair trial. The Italian system has no such problem, and anyone involved in the case can appeal anything in it, including bringing new evidence to light. (Montana, 2014)

            The Italian system has been around for a lot longer than our system, but the huge reformation it had in 1989 was a testament to how sensitive the legal process is and how much it must encompass. No system is perfect, but other systems should be scrutinized to gain an understanding of how ours can perform better. In such a huge field with a plethora of studies conducted since the medieval times, the system worldwide should be functioning close to perfect, and while no country has a perfect system, the United States is arguably on a lower rung with how we treat our defendants and convicted criminals.

 

Sources pulled from:

Davide Arcidiacono, S. C. (2015). Criminal justice system responses to intimate partner violence: The Italian Case. Criminology and Criminal Justice Vol. 15(5), 613 - 632.

Diana Kapiszewski, ,. G. (2013). Consequential Courts : Judicial Roles in Global Perspective. Cambridge: Cambridge University Press.

Law Library. (2019). The Early Years of American Law. Retrieved from Law Library: https://law.jrank.org/pages/11900/Early-Years-American-Law.html

Montana, R. (2014, February 3). Explainer: how does the Italian criminal justice system work? Retrieved from The Conversation: http://theconversation.com/explainer-how-does-the-italian-criminal-justice-system-work-22678

National Registry of Exonerations. (2019). AGE AND MENTAL STATUS OF EXONERATED. University of Michigan: NATIONAL REGISTRY OF EXONERATIONS.

Siegel, L. J. (2015). Criminology. Stamford, Conn u.a.: Cengage Leaning.

Vitiello, J. C. (2016). Public Justice and the Criminal Trial in Late Medieval Italy. Leiden, Netherlands: Brill.

William T. Pizzi, L. M. (1992). The New Italian Code of Criminal Procedure: The. Yale Journal of International Law Vol. 17:1.

The Housing Collapse of 2008, Was it Criminal?

    

    The housing market collapse of 2008 had very far-reaching consequences, both in the homeland and in the global economy. It came at a time between presidential elections when the political climate was instable at best, and completely war stricken at its worst. At the best of the recession, people stopped spending money in the market. At the worst of it, people could not afford their mortgages and faced potential homelessness. Because of rampant derivatives trading with little to no checks and balances on its design, people across the globe felt the implications.

    “Reaganomics” brought a massive shift in wealth between the classes in the United States of America. Eventually the rich would discover that they could play around in the housing market where there was a seemingly untapped potential for money. The reason that the risk was thought to be completely mitigated was because the house is seen as a home, not a toy, meaning that it was not seen as something that the common person would default on.[1] Because of many factors, including including income distribution as the rich got richer and the poor became poorer, the housing market should have slowed as less families could afford a house. This is the opposite of what happened, as proven by how house purchasing was at an all-time high.[1]

    Subprime mortgages are those that are riskier for the bank because the borrower may have a lower credit score or inconsistent work history. These mortgages only constituted a small percent of the mortgage market, roughly six to eight percent throughout the 1990’s and early 2000’s. By 2006, that number had tripled or even quadrupled to around a quarter of all mortgages. [1] This is primarily because of the increasingly lax standards that the housing market began to employ. Due to a plethora of reasons a lot of these risky subprime mortgage benefactors could not afford their mortgage. When they couldn’t pay, the bank foreclosed on their homes. Americans lost their houses, their savings, and ultimately their trust in the market. If this was rampant capitalism, a lot of young adults would be hesitant to believe in it.

    Because the housing market was in a bubble, they could be bought and sold as if they were stocks, even on the same day. This makes the market liquid and, “through a process called securitization, a bundle of real estate properties can be packaged and resold as a piece of paper; houses are converted not to homes, but to derivatives.” [1] This means that the average person’s mortgage could be tied up with multiple mortgages and sold on a piece of paper, called a security, completely behind the scenes.

    The market that sprung up around these securities was known as “hedge funds,” and the banks were making so much money from these securities, that they decided not to put the transactions on their balance sheets, effectively leaving them unregulated and unchecked.1 This made their capital reserves seem safer than they actually were and with the amount of money in these hedge funds, a catastrophe seemed imminent.

    The multiple mortgages on one piece of paper is where the market became tricky. Higher quality loans were misrepresented as being the majority of these securities, with some riskier loans stuffed in. Because of so much repackaging, however, the securities kept being cut with higher amounts of riskier loans. Eventually, where these securities should have been a vast majority of triple-A mortgages, they became overwhelmingly the opposite.

    This widespread, rampant corruption led to catastrophic delinquencies in our global economy. The recession began with the decline of Bear Stearns after they had to be bailed out by both the Federal Reserve and JP Morgan following the sub-prime mortgage conundrum. Bear Stearns, the fifth largest investment bank in the United States, collapsed entirely when a deal could not be brokered, and the Federal Reserve would not back the loan penned by JP Morgan. [1]

    The common theme behind the reasoning for the global crash following the United States’ is interconnectedness.[2] Because all European banks have vested interest in the Dublin bank, the collapse of the Irish bank on September 29th, 2008 would set the stage for the global ramifications that the United States market crash would have. In 2008, David Bartlett of Finance Director Europe predicted that, “European financial entities stand to incur $123bn in mortgage-related losses. Within the latter group, British institutions face $40bn in asset write offs, nearly matching the combined losses of the euro area ($45bn)” [2] These numbers are substantial, especially when these are just early predictions.

    Man Financial Group was a global investing firm that had its eyes on the scope of Goldman Sachs or J.P. Morgan. When it failed during the housing collapse, it would take a large number of smaller clients out with it. These clients were mainly individual investors and small business clients such as ranchers and farmers. [3] From the same article Ross states that, “In an effort to meet its obligations, MF Global admitted to accessing what should have been separate client funds. This latter action would appear to constitute fraud, though no one has been charged, as yet, with any criminal wrongdoing.” [3]

    On April 24th, 2012, Chairman Tim Johnson would hold a meeting by the Banking, Housing, and Urban Affairs Committee in the U.S. Senate. This meeting was with James W. Giddens, a trustee of MF Global, and Louis J. Freech, another trustee of MF Global among others and took place to, “examine the lessons learned from the collapse of MF Global.”[4] Chairman Johnson also says in his opening statement that over $1.6 Billion has not been recovered by hundreds of South Dakotans out of what should have been protected accounts following MF Global’s bankruptcy. [4]

    This means that ultimately, consumers and small businesses did have to foot the bill for large parts of this recession. This is especially unnerving when considering that what happened in the higher echelons of MF Global could possibly be constituted as fraud that the average citizen is being punished for. Upon testimony, Jon Corzine, the Chief Executive Officer and Head Trustee of MF Global stated that, “I simply do not know where the money is, or why the accounts have not been reconciled to date. I do not know which accounts are unreconciled or whether the unreconciled accounts were or were not subject to the segregation rules."[4] This quote was taken from testimony at one of the highest offices of land, and the best that Corzine could say is that he simply doesn’t know where $1.6 Billion dollars in his clients’ money is.
   
    There are two types of mortgage fraud according to the F.B.I.[5] There is fraud-for-housing, which is where someone misrepresents themselves on paperwork for the purpose of qualifying on a loan, and there is fraud-for-profit, in which individuals fictitiously inflate the value of the home in order to reap a profit, or they trade in properties that are non-existent.[5] An alarming statistic from around the time of the housing collapse is the forty percent rise in the number of Suspicious Activity Reports that were reported from 2007 to 2008. This directly coincides with the number of defaults on mortgages in the same year.[5]

    The study by Paul E. Carillo to test for fraud in the mortgage crisis produced a very specific result. “Specifically, it is found that homeowners who bought their homes during 2006 and defaulted on their loan payments shortly after the sale (within 1 year) paid an average premium of at least 1.8% of the home value.”[5] This is important because in a fraud-for-profit model of business, why would the pseudo homeowners pay any value of the house down? The 1.8%, although not a large number by any means, shows that the people buying homes in 2006 did intend on keeping them, whether they committed fraud on the initial applications or not. And with nobody checking the income sources, which has been extensively documented, could we really hold people accountable from trying to own a home?

    If there was a large amount of fraud to take place, it was by the higher-ups in the mortgage industry or at least perpetrated by them using normal citizens. This widespread fraud cannot be narrowed down to one or two people, but rather a trove of people that each had their own part in undermining the mortgage industry. One brokerage firm that seemingly had their hands inside of everything was AFG Financial.[6] AFG Financial was indicted in July 2009 by Manhattan D.A. Robert Morganthau in what he described as their business model being solely focused on defrauding the lending banks of millions of dollars. [6]

    The scheme was simple, recruiters would find both suitable houses and suitable people with high credit scores. They would then have these “straw buyers” stand in for the real buyers and would be compensated for it. They would then forge documents, including W-2’s and bank statements to inflate the chances of the buyer receiving the mortgage. They forged these records in an already easy-to-qualify system, showing that not only did they not only take advantage of the housing bubble, but that they took illegal steps to financially gain from the crisis. Corrupt appraisers and bank employees were also complicit in the scam.5 The article goes on to state that, “The conspirators were so brazen that in one transaction, they created a sham appraisal with a stated value of over $500,000 for a 2-family home which was, in reality, only a vacant lot.” [6]

    When all was said and done with the scheme, the houses would go into default. The straw buyers had ruined credit and the banks had worthless mortgages. AFG Financial would walk away with over $12 Million in profit that was supposed to go to the sellers and defrauded the bank for over $100 Million. [6] This was not an isolated case as this sort of behavior may have led to the crisis in the first place.

    In an August 2006 Federal Reserve Hearing, the President of The Mortgage Broker Association for Responsible Lending, had made a statement regarding the alarmingly high rate of incomes being fraudulently reported on mortgage applications. 5 His declaration came with the review of one-hundred stated income loans by the Mortgage Asset Research Institute that used tax returns to compare against the borrower’s stated income. “The analysis found that 90% of all the applicants had exaggerated their income and more than half of these borrowers had inflated their actual incomes by more than 50%.”[6] 

    Can individual people at the initial borrower level be considered responsible for the entire collapse of the system? While they have to have some small association with the crisis, it was the banks at the top that were approving these people. If someone’s family member told them about a great opportunity to buy a house, who wouldn’t want to take advantage of it. A home is the American dream, and such, should not be tampered with by the large investment groups at the top. A lot of people in these firms lost their jobs, but many more Americans lost their entire homes. This is what our market system looks like when left to the morality of bankers and institutions.

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[1] Canterbery, E. R. (2011). The Global Recession. Singapore: World Scientific.

[2] PBS Newshour. (2018, September 18). How the 2008 financial crisis crashed the economy and changed the world. Retrieved from YouTube

[3] Ross, M. L. (2019, June 25). What Happened at MF Global. Retrieved fromInvestopedia

[4] U.S. Senate Comittee on Banking, Housing, Urban Affairs. (2012). Hearing Before the Committee on Banking, Housing, Urban Affairs. Washington D.C.: U.S. Government Printing Office.

[5] Carrillo, P. E. (2013). Testing for Fraud in the Residential                     Mortgage Market: How Much Did Early-Payment-Defaults              Overpay for Housing? Journal of Real Estate Finan Econ, 36-64.

[6] Jurow, K. (2010, April 27). SPECIAL REPORT: How Widespread       Mortgage Fraud Toppled the U.S. Housing Market. Retrieved          from World Property Journal