Compare the U.S. Criminal Justice System to United Kingdom's (Britain) Criminal Justice System - Research Paper Example

Introduction The UK and the United s have extremely similar criminal justice systems, as well as extremely similar elements for a crime. This is because the American system is based upon the UK system, as both systems are based upon the common law. The criminal system is similar, in that, in both jurisdictions, there must be mens rea to be held guilty for a crime, in both jurisdictions a criminal may be exonerated for a crime, or at least held to a lesser standard, if there was sufficient provocation, and, in both systems, there is a thin or eggshell skull rule, although, in the United States, this rule is usually used exclusively for torts. These are some basic similarities to the elements for crimes in both jurisdictions. Beyond this, there are similarities in the systems themselves. Both systems treat mentally disordered offenders similarly, although England appears to have more options for this type of offender. In both systems, the victims ostensibly have rights, although these rights do not seem to be enforced as much in England as they are in the United States. In both systems, there is some form of restorative justice or reparative justice, which means that the victim gets some type of compensation for his or her distress. So, while the topic of criminal justice system, and the comparison between the two countries, is a broad one, this paper will attempt to narrow down the comparisons to some key issues regarding victims’ rights and the rights of the mentally disordered. Also included will be some basic comparisons between the elements of crimes in both jurisdictions. In the end, however, the systems are very similar, and the differences between the systems of each country are subtle. Similarities and Differences in Basic Law American criminal law and English criminal law are very similar, because American law has, as its basis, English common law. Therefore, the elements for committing a crime would be similar in both countries. For instance, in both countries, there must be the proper mens rea that would have to be established for the crime. This would mean that, in order to be found guilty of a crime, one must have the proper mental state for the crime. An example of this in England is that one must have mens rea for murder, which would mean that one intends to kill or cause great bodily harm. In this case, the “intention” would be the mental state that must be proved for murder in England (R v. Nedrick (1986) 1 WLR 1025). Similarly, in the United States, a murder must be pre-meditated to be considered first degree murder, unless it is in commission of a felony, and this would mean that one has to have the intention to kill or cause great bodily harm as well (Schad v. Arizona, 501 U.S. 624 (1991)). Both countries also have provision that murders may be mitigated by provocation, which caused the murderer to lose self-control. In England, the elements of this are 1) that the loss of self-control coincided with the killing (so you can’t be provoked and lose self-control, then commit the murder a day later); and that 2) a reasonable person would act in the same manner (R v. Camplin (1978) 1 QB 261). In America, provocation is similar, as it is defined as “whether or not defendants reason was, at the time of his act, so disturbed or obscured by some passion ... to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." (People v. Rich (1988) 45 Cal.3d 1036, 1112) Therefore, both countries recognize that people may become provoked. In England, the standard is that a reasonable man would react in the same way. In the United States, the standard is that an ordinary man would act the same way. In the United States, however, the provocation defense is slightly different, in that the loss of self-control does not have to be instantaneous with the killing, but can happen over a period of time. For instance, in People v. Barry (1976) 18 Cal. 3rd 509, the defendant killed his wife after she taunted him for a period of two weeks. Since both jurisdictions look at either reasonable or ordinary men in looking at provocation, as well as other examples of criminal law, the term reasonable or ordinary must be defined. In England, the reasonable man is one who is the same shoes as the defendant (R v. Camplin (1978) 1 QB 261. So, for instance, if a disfigured man is provoked and murders another person, then the standard would be a reasonable man who is also disfigured, not a reasonable man who does not have a disfiguration. The United States has the same standard for reasonable man, as the reasonable man must be the man who would be in the defendant’s same situation, just as in England (Berkemer v. McCarty, 468 US 420 (1984). Moreover, in both jurisdictions, the defendant must have exercise reasonable self-control (R v. Lesbini (1914) 3 KB 116; In re Newbern, 53 Cal.2d 786 (1960). Another similarity between jurisdictions is that there is a doctrine called the thin skull rule in the United States and the eggshell skull rule in England. This is the doctrine that you take the victim as you find them - for instance, if the victim is a hemophiliac, and the defendant stabs the victim just barely, so that a normal person would not bleed to death, but that particular victim does bleed to death because of his condition, you may still be liable for murder (R v. Blaue (1975) 61 Cr App R 271). However, there is a major difference between the jurisdictions when it comes to using the thin skull rule or the eggshell skull rule for murder or other crimes. While in England, the eggshell skull rule can be used to justify a charge of murder, in the United States, according to Bahr and Graham (1982), the thin skull rule is uniformly used for torts. So, in a common law tort, if there is a man who has degenerative spine disease, and a minor fender bender paralyzes him, then the defendant is liable for all the damages. However, in the United States, a situation like R v. Blaue (1975) 61 Cr App R 271 presumably would not be decided in the same way. In R. v. Blaue, a woman was stabbed, then refused a blood transfusion because of her religious beliefs. This was the cause of her death, because the evidence showed that, but for her refusing the blood transfusion, she would not have died. The Royal Court found the defendant guilty of murder, anyhow, invoking the eggshell skull rule. Similarities and Differences in the Justice System Beyond the elements of crimes, and the different defenses which can be used for these crimes, each jurisdiction has different types of justice systems. There are many major differences between the two systems. The decision to prosecute is different in each system, according to Kaufman (1980). As Kaufman (1980) explains, there is not a grand jury in the UK anymore, as there is in the United States. The decision to prosecute a case originates with the magistrate for lesser crimes, and with the Crown Court for more serious crimes. Moreover, Kaufman (1980) explains that, in the United States, the decision to prosecute is in the hands of a prosecutor, who is typically an arm of the state. In the UK, there are private prosecutions, which means that average citizens may bring cases against one another, although most citizens do not oblige themselves of this, preferring to leave prosecutions in the hands of the police. These citizens must get the permission of a court or a governmental official, plus must bear the expenses of the case, which is the main reason why citizens do not undertake private prosecutions. Kaufman (1980) further states that jury selection is different in each system, as, in the UK, juries are selected quickly and Crown objections are not likely. However, in the United States, juries are selected carefully, with intensive questioning about how the jurors feel about the crime that the potential offender is accused of. As another example of the differences in the two systems, in the UK, there is a type of restorative justice. In restorative justice, the victim may meet with the defendant and other stakeholders to the crime to come up with a solution for dealing with the impact for the crime (Wenzel et al., 2008). In restorative justice, this might mean that the victim and the defendant may go through mediation, where the victim may have the chance to tell the defendant how he or she was affected by the crime, or the meeting might take the form of a family conference (Liebmann, 2007). Restorative justice also means that the victim is compensated for his or her pecuniary loss, and the victim is also offered support, so the victim may feel more whole (Umbreit, 2001). However, the United States does not use restorative justice in a widespread way, except for college student restorative justice courts (Waye and Marcus, 2010). That said, victims are entitled to some type of restorative justice in the form of compensation and restitution. Restitution, according to the Victims Committee for the American Bar Association, is available through every state and is mandatory in many states. Federal law makes restitution mandatory for violent crime and other crimes which come under this aegis. At the same time, the United States justice system understands that criminals may not realistically be able to make proper restitution for their victims, therefore there is a Crime Victim compensation fund, which may provide some compensation for the victim’s losses and other expenses related to the crime (Victims Committee, 2006). The UK system also has a system of reparations, which means that the criminal does not serve time in prison, but, rather, works to serve the community and the victim. This may take the form of volunteer work, rehabilitation work or making financial payments. The criminal may also go through alcohol or drug programs, or may do other programs to help better him or herself, such as programs that might help the offender with finding housing, or help the offender better manage finances. Moreover, as noted below, if the offender has mental health issues, he may address this as well (McMillan, 2008). According to Anthony Duff (2001), reparations are helpful because it gives the offender an opportunity for rehabilitation, as well as helps the community, in that the offender is making reparation to the community and the victim. The United States has a similar scheme, in that the offender may complete community service, or the offender may make restitution to the victim, etc., so this is another way that the two jurisdictions are similar (Kurki, 2000). The two jurisdictions differ somewhat in how they treat the mentally ill in the criminal justice system. In the UK, there is widespread therapeutic jurisprudence for those suffering from mental illness. Included in this are outpatient and inpatient treatment for the mentally disordered offender. With the inpatient treatment, the mentally disordered offender may get treatment in prison, or may be assigned to a long-term psychiatric setting (Rice et al., 1992). Moreover, the UK also has an option for the mentally disordered offender in the form of a liaison scheme. In this scheme, according to Scott et al. (2009), mentally ill offenders are identified at the police station, then funneled through a system where the offender has access to a Community Psychiatric Nurse, who assesses the offender for a mental illness, and the offender, if he or she is found to have a mental illness, may get services instead of prison (McGilloway & Donnelly, 2004). Another major program that the UK offers is a court diversion programme, which, similar to the liaison programs, in that the mentally disordered offender might get treatment instead of prison. Unlike liaison scheme, however, the mentally disordered offender must still go through the court system (Brooker & Ullman, 2008). In contrast, in the United States, there is not an indication that there are liaison schemes. What the United States does have, which is similar to the UK, are mental health courts. These are comparable to the UK court diversion programmes. According to the Bureau for Justice Assistance, mental health courts are becoming more popular, but there is not a specific criteria, across the board, for what these programs might look like. As in the UK system, in the American system, the defendants are screen and voluntarily participate in a treatment plan. Like the UK system, the defendant goes through treatment, and, if the defendant complete the course of treatment, and meets predetermined criteria for successful treatment, then the defendant is able to escape going to prison. In each country’s justice system, victims feel left out of the judicial process, which is another similarity between the two systems. For instance, in the UK, only 3 in 10 crime victims receive the support that they request, such as emotional support, and only 1/3 felt that the UK criminal justice system met the victims’ needs. The victims also felt that they were left out of the process, as 46% stated that they were not asked to give evidence, 33% of victims did not get a visit to court before the trial, and only 10% of victims received some type of restitution. Only 44% of victims were given the chance to make a statement in court. (Victim Support, 2011). According to Townsend (2011), only half of victims are kept informed about their cases. Similarly, the victims in the United States justice system are also dissatisfied with the system as a whole. According to the National Institute of Justice (2006), many victims are so dissatisfied with the criminal justice system, that they feel that they will not call the police the next time that they need help. This report found that, while 55% of domestic violence victims are satisfied with the criminal justice system, some 17% are not satisfied. That said, there seems to be more protection for victims in the United States system, overall, then in the UK system. According to the Victim Committee of the American Bar Association, victims have an array of protections. Included in this are the fact that victims are to be consulted before a prosecutor enters into a plea agreement, and that victims have the right to confer with a prosecutor before the prosecutor dismisses a case. The ABA standards also specify that crime victims are to be given a chance to participate in the case, and victims are to be notified throughout the legal process (Victim Committee, 2006). Conclusion The systems between the UK and the United States have more similarities than differences. In the UK, private citizens may bring prosecutions. This is not the case in the United States. Moreover, in the UK, jury selection is rapid. In the United States, jury selection is painstaking. The research also shows that victims have protection under both systems, even if the research suggests that the UK is not providing these services to victims on a consistent basis. There is not research which suggests the same about the United States. The research also shows that the mentally disordered offender has additional options in dealing with the justice system. Specifically, the United States does not have liaison schemes, which are common in the UK. Other than this, however, the options seem to be similar for the mentally disordered offender. The restorative justice is slightly different between the two countries as well. It is less common, perhaps not even known, for the United States to conduct mediation between the victim and the offender, which is common in the UK. However, as in the UK, the United States makes sure that there are reparations to victims, in the form of restitution monetarily. And, the United States has Crime Victims Fund, which provides payment to victims when the defendant is unable to do so. This is another subtle difference between the two systems. As for the crimes themselves, in examining some of the elements of murder, including provocation, mens rea, reasonable man standard and thin skull, the elements are very similar for these crimes as well. This is because the two countries use the same system of law, the common law, and the United States based its system on its mother country, England. Sources Used Brooker, C. & Ullman, B. (2008) Out of sight, out of mind: The state of mental healthcare in prison. Policy Exchange. Retrieved from: www.policyexchange.org.uk Duff. A. (2001) Punishment, communication and community. New York: Oxford University Press. Kaufman, I. (1980) Criminal procedure in England and the United States: Comparisons in initiating prosecutions. Fordham Law Review, 49(1), 26-39. Kurki, L. (2000) Restorative and community justice in the United States. Crime and Justice, 27, 235-250. Liebmann, M. (2007) Restorative justice: How it works. London: Jessica Kingsley Publishers. McMillan, G., Timken, D., Lapidus, J., C’de Baca, J., Lapham, S. & McNeal, M. (2008) Under-diagnosis of comorbid mental illness in repeated DUI offenders mandated to treatment. Journal of Substance Abuse Treatment, 34(3), 320-325. McGilloway, S. & Donnelly, M. (2004) Mental illness in the UK criminal justice system: A police liaison scheme for mentally disordered offenders in Belfast. Journal of Mental Health, 13(3), 263-275. National Institute of Justice. (2006) Victim satisfaction with the criminal justice system. National Institute of Justice Journal, 253, 1-4. Rice, M., Harris, G. & Cormier, C. (1992) An evaluation of a maximum security therapeutic community for psychopaths and other mentally disordered offenders. Law and Human Behavior, 16(4), 399-412. Townsend, M. (10 Sept. 2011) Crime victims are being let down by the justice system. The Observer. Umbreit, M. (2001) The Handbook of Victim Offender Mediation: An Essential Guide to Research and Practice. San Francisco: Jossey-Bass, Inc. Victims Committee (2006) The victim in the criminal justice system. Retrieved from: http://meetings.abanet.org/webupload/commupload/CR300000/newsletterpubs/victimsreport.pdf Waye, V. & Marcus, P. (2010) Australia and the United States: Two common criminal justice systems uncommonly at odds, part 2. Faculty Publications. Paper 583. Retrieved from: http://scholarship.law.wm.edu/facpubs/583 Berkemer v. McCarty, 468 US 420 (1984) In re Newbern, 53 Cal.2d 786 (1960). People v. Rich (1988) 45 Cal.3d 1036 R v. Camplin (1978) 1 QB 261 R v. Lesbini (1914) 3 KB 116 R v. Blaue (1975) 61 Cr App R 271 R v. Nedrick (1986) 1 WLR 1025 Schad v. Arizona, 501 U.S. 624 (1991) Read More