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Even though it does effectively create impunity, this is not a unique phenomenon. Decisions on who to prosecute will always happen, and some form of bias against prosecuting powerful people is to some extent inevitable. So in practice not everyone is equal before the law. The ICC specifically builds in a way of deferring prosecutions if needed in Article 16 of the Rome Statute. This shows that the ICC accepts the need to postpone cases, possibly indefinitely. The ICC therefore in practice accepts it cannot prosecute in every case where there may be a case to answer. | |
Legal precedent for prosecution of heads of government The prosecution of high ranking government officials is part of the Nuremberg precedent that international criminal law largely dates back to. Hideki Tojo, the Prime Minister of Imperial Japan in the Second World War, was tried, convicted and executed as part of the Tokyo trials for Japan’s acts of aggression in going to war. Karl Doenitz was prosecuted despite having briefly been Germany’s head of state; that position did not nullify the crimes he carried out as commander of Germany’s unrestricted submarine warfare campaign. Following that, the ICTY tried Slobodan Milosevic, who died before the trial finished, and the Special Court for Sierra Leone convicted Charles Taylor. It is nothing new that international criminals can be prosecuted. While leaders have, and often still are, able to prevent themselves from being tied in their own country while they are in charge this should not apply the world over. | |
Head of State immunity reduces the deterrent effect of international criminal law International criminal law, like any other form of criminal law, is supposed to be a deterrent. By giving a class of individuals impunity, these people cannot be deterred by International Criminal Law from committing some of the worst crimes known to humanity, including genocide. It is plain that many people who reach the heights of political power will use any method to remain in power – thus the resort to intimidation where it can be used to affect the vote, or in the case of Silvio Berlusconi the attempt to put in place an immunity law to prevent himself from being prosecuted for corruption. [1] Immunity will enable both large and small criminal acts, neither of which should be allowed. [1] Kennedy, Duncan, ‘Berlusconi immunity law overruled’, BBC News, 8 October 2009, | |
Impunity is repugnant to the rule of law A key principle of the rule of law is that everyone is subject to the law – even the agents of states [1] . It must apply equally to the most as well as the least powerful. This must apply to international criminal law as well as the domestic criminal law. It would be unjustifiable for one individual to be able to face prosecution as a private citizen for genocide, but not a head of state who has much greater capacity to engage in such acts. It effectively would allow genocide, which is prohibited by a convention the vast majority of states have signed and ratified, as an expression of national sovereignty. [1] ‘What is the rule of law?’, United Nations Rule of Law, | |
No head of state was successfully prosecuted by a partially international court until Charles Taylor was convicted by the hybrid Special Court for Sierra Leone, the first to go on trial was in 1994. None of the post WW2 Allied trials featured a significant head of state; Hitler was dead and the entire Japanese imperial family was not charged, including emperor Hirohito, who continued serving as Japanese head of state until his death in 1989. The charges against Doenitz all pertained to his actions prior to him taking the leadership of Germany so they cannot be said to be actions taken in the role of head of state. | |
The reason why the death penalty is so expensive – 13 executions since 1978 in California costing around $4bn [1] - is the “super due process” that is necessary in capital cases, especially with the large flaws in the US justice system. Blacker makes no coherent proposal on how he would modify the appeals system. Removing or reducing it would make it very likely that more innocent people would be executed. To accuse people who want to prevent criminals deaths of wasting money is more or less victim blaming. [1] Alarcon, Arthur and Mitchell, Paula, “Executing the will of the voters? A roadmap to mend or end the California legislature’s multi-billion dollar death penalty debacle”, Loyola of Los Angeles Law Review, 2011, | |
Could be cheaper While budget should not be the primary concern of the justice system, The death penalty, when applied properly, can be cheaper. A lethal injection, or a few bullets, costs far less than keeping a person incarcerated for a long time, especially if they need long term health or other care in old age. The longer someone is in jail the greater the cost to the state. The costs of the implementation of the death penalty are driven up by anti-death penalty activists using the appeals system. Since the death penalty would only be applied to the worst of the worst when there is absolute moral certainty there would be less need for extensive appeals because there would be less marginal cases. | |
While Blecker proposes a three step test in a draft statute, it does not feature much legal certainty – it features a large amount of jury discretion, which was deemed to be a violation of the US constitution [1] . Any such elastic definition would allow prosecutors to make an argument that pretty much any case is within such a category. It also continues due use of “death qualified juries”, exclusively made up of death penalty supporters [2] , which are racially skewed toward being whiter. Would this then end up really being for the worst of the worst? [1] See Furman v Georgia, 408 US 238 (1972) [2] See Witherspoon v Illinois, 391 US 510 (1968) | |
Necessary for punitive justice The concept of punishment is inherently based on retribution. “We don’t punish to prevent crime or remake criminals. We inflict pain-suffering, discomfort-to the degree they deserve to feel it.” [1] Retribution can be distinguished from revenge – retribution does not always seek to impose punishment that is the same as the original act, and never more. The punishment must fit the crime so capital punishment is therefore an appropriate punishment for the worst of the worst – an eye for an eye. [1] Blecker, p.28 | |
By keeping a person locked up for life, which may well be appropriate for the “worst of the worst”, they are incapacitated for life. It similarly satisfied any retributive instinct, providing a total punishment, a form of internal banishment and total civil death – if one considers retributive justice desirable. Moreover this is inconsistent. If we are inflicting an eye for an eye because they deserve it then why should the death penalty reserved for the worst of the worst? Should it not be exactly proportional – which would mean all murderers should face the death penalty. | |
Those who are murdered are not some public resource – they are not our relatives. We may feel sorrow for the victims and their family but uninvolved members of society have no reason to demand punishment on account of them being members of ‘our family’. What of all those who do not feel such resentment, should society enact a death penalty simply to gratify a part of the population that feels this way. This is not a rational grounds for a death penalty even for the very worst. In order to claim that the society wants the criminals' blood, you have to make sure that a)everyone does; b)the person killed deserves to be avenged. | |
Can be reserved for the worst of the worst For those who are concerned about some of the practical objections to the American death penalty, it is possible to restrict the death penalty to those most deserving of it: “the worst of the worst”, those like Anders Behring Breivik, Charles Manson and Harold Shipman. The death penalty should not be for people who are convicted as a result of three strikes - in 2004, someone was convicted of first degree murder with a whole life sentence for lending a friend a car [1] – it should not be a default sentence. [2] [1] Liptak, Adam, “Serving Life for Providing Car to Killers”, The New York Times, 4th December 2007, [2] Blecker, p.210 | |
Killers must die to satisfy society Those who have damaged society by robbing it of one of its members must pay for their crime. Adam Smith argued “We feel that resentment which we imagine he ought to feel, and which he would feel, if in his cold and lifeless body there remained any consciousness of what passes upon earth. His blood, we think, calls aloud for vengeance.” [1] It is not just the wronged individual who needs there to be retribution but society as a whole. Everyone in society is wronged by particularly heinous crimes as Blecker says of two horrific crimes “Those were my children, my wife that Coker raped and murdered, my sister Speck killed”. [2] [1] Smith, Adam, ‘The theory of Moral Sentiments”, MetaLibri Sixth Edition, 1790, p.62 [2] Blecker, p.30 | |
This is not a higher discrepancy than imprisonment, meaning the problems may well be socio-economic rather than justice related. A reason for this discrepancy may be the felony murder rule – that any death caused by a felony, even if it would normally amount to manslaughter, constitutes murder (in some cases, first degree murder) – if that is the case, the felony murder rule should be abolished. If capital punishment were reserved for the worst of the worst then this racial bias would be almost eliminated. [1] [1] Blecker, p.237 | |
The state using the legal process being trusted to do something is different between an individual doing so. The state executing people is the only way that justice can be achieved; there is a moral difference between execution in support of society and murder against society. There is an immense difference between a murder and a lawful killing by the state. If the death penalty makes the state no better than a murderer then a soldier is one too. In a more absolutist view, if capital punishment devalues life, do fines for theft devalue property? | |
Too many innocents killed Capital punishment in the US kills too many innocent people. Over 143 people who were innocent were exonerated from death row since 1973 [1] . One person executed is too many – it has already happened in the US, with Carlos DeLuna [2] . It is likely that many innocent people have been executed in the US – it is a price not worth paying. [1] Death Penalty Information Centre, “Innocence list”, DPIC.org, 2013, [2] Pilkington, Ed, “The wrong Carlos: how Texas sent an innocent man to his death”, The Guardian, 15 May 2012, | |
Who are the worst of the worst? Killing the worst of the worst is essentially arbitrary. Even with a list of aggravators balanced by mitigations the death penalty is hardly going to be left to just the very worst. In the case of Daryl Holton who killed his four children Blecker decides “I remain convinced, but not morally certain, that he deserved to die.” [1] This shows there will always be cases that are borderline. Moreover everyone’s views of the worst of the worst are different. Is Holton the “worst of the worst” or should that category be reserved for Hitler and Pol Pot? [1] Blecker, p.197 | |
The death penalty is racist Like the rest of the American criminal justice system, capital punishment in America is institutionally racist: black men make up 6% of the US population as a whole but 40% of those on Death Row [1] . In the US, African-Americans and White people are murdered in almost equal numbers, but 80% of those executed since 1977 were convicted of the murder of a white [2] . [1] Blecker, p.237 [2] Amnesty International, “United States of America: Death by Discrimination – the continuing role of race in capital cases”, Amnesty International, 2003, | |
Hypocrisy Suggesting the death penalty should be used as a deterrent is nothing other than arguing that people should be killed to show that people killing people is wrong. There is little evidence that it works; when Canada abolished the death penalty nationally in 1976, the homicide rate fell from 3.09 in 1975 to 2.31 in 1980. [1] In that sense, imposing the death penalty makes the state no better than the murderer, and a murderer in itself by killing a person in such circumstances. If we are using the death penalty to punish the murderer then what should we use to punish the state for its actions? [1] Amnesty International, ‘Document – The Death Penalty, Questions and Answers’, accessed 3rd January 2014, | |
Regardless of the categorisation there are some who are worst of the worst. It is up to individual states and societies to determine who qualifies as the worst of the worst for them. | |
As in any activity in life, a risk will exist in any justice system – many innocent people are in prisons. But there are also risks inherent in being too lenient and letting the worst of the worst out again in the future. However, capital punishment can be used less, and a higher standard of proof can be used in capital cases. “In the end, we must risk a minuscule possibility of error for the near certainty of justice.” [1] [1] Blecker, p.275 | |
The database is immaterial to the acquittal or exclusion of non-offenders. Where a primary suspect has been identified, a DNA profile ought to be created and compared to the crime scene data. Likewise, where suspicions persist concerning the guilt or innocence of a convicted individual, a sample of DNA can be taken. The database has predominant application in 'non-suspect' cases, and not the circumstances where the suspect or felon is already identified. It is also important to keep claims regarding the efficacy of DNA matching in context, Chief Constable Sims of the British Metropolitan Police stated that of '4.9 million crimes reported each year, of which 1.3 million are 'detected' (lead to charges)' only 33,000 involve DNA matching1. 1 Home Affairs Committee. (2010, March 4). The National DNA Database. Retrieved May 19, 2011, from UK Parliament: | |
DNA evidence would reduce the risk of wrongful conviction The increased use of DNA evidence will minimize the risk of future wrongful convictions. An FBI study indicates that since 1989 DNA evidence has excluded the primary candidate in 25% of sexual assault cases1. This not only saves valuable police time, but ensures suspects are not called in for unnecessary and stressful questioning. Moreover, forensically valuable DNA can be found on evidence that has existed for decades, and thus assist in reversing previous miscarriages of justice. There have been a number of recent, high-profile cases of death row inmates being released on the grounds of DNA evidence, unavailable when they were first convicted. A DNA database would not merely render wrong verdicts right, but prevent such verdicts ever being made. 1 U.S. Department of Justice. (1996, June). Convicted by Juries, Exonerated by Science. Retrieved May 19, 2011, from U.S. Department of Justice: | |
There is no such guarantee that a DNA database would have such an effect. In fact, there is a serious risk that genetic evidence will be used to the exclusion of material that might prove the innocence of the suspect. It is further likely that more crimes will be prosecuted on account of largely circumstantial evidence. Moreover, there is the possibility that not only the police, but also the jury, will be blinded by science. It seems unlikely that juries will be able to comprehend, or more importantly, to question, the genetic information that is yielded by the database. The irony is that forensic evidence has been instrumental in establishing the miscarriages of British justice in the 1970s, but might now serve to create miscarriages of its own. | |
A DNA database would lead to more convictions, particularly in cases of violent crime Although overall levels of crime in England and Wales have decreased over the previous decade, the number of violent crimes against the person has markedly increased. These are the offences which raise most grave public concern and which are unlikely to leave conventional fingerprints. The National Commission on the Future of DNA Evidence estimates that thirty per cent of crime scenes contain the blood, semen, or saliva of the perpetrator1. DNA detection will be best equipped to identify the guilty. A full database ought to allow the use of DNA as an investigative tool where no suspect has yet been identified. Studies support this assertion; 'the overall detection rate for crimes of 23.5% rises to 38% where DNA is successfully recovered'2. Furthermore, in the United States, the number of reported rapes dropped to its lowest level in two decades due in large part to the use of DNA evidence3 1 Weathersbee, F. (1999, March 1). National Commission on the Future of DNA Evidence. Retrieved May 19, 2011, from National Institute of Justice: 2 Phillipson, G. (2009, November 19). The case for a complete DNA database. Retrieved May 18, 2011, from Guardian: 3 McGreal, C. (2009, October 8). Number of reported rapes in US drops to lowest level in two decades. Retrieved May 18, 2011, from Guardian: | |
The most serious violent crimes, notably the offences of rape and murder, are most commonly committed by individuals known to the victim. When the suspects for the commission of a crime are obvious, DNA detection is superfluous. Moreover, it is invidious to propagate the belief in the public that crimes can be solved, or criminals deterred, by computer wizardry; evidence collected by a UK Parliamentary Commission suggests DNA matching led to crime detection in as little as 0.3% of cases1. Ultimately, unless the DNA is used to identify a genetic cause for aggression, violent crimes will continue to be committed 1 Home Affairs Committee. (2010, March 4). The National DNA Database. Retrieved May 19, 2011, from UK Parliament: | |
A DNA database would reduce the time spent tracking down suspects A DNA database is not intended to replace conventional criminal investigation. The database ought to identify the potential suspects, each of whom can then be investigated by more conventional means. During 2008/09 in the United Kingdom, 'almost 6 in 10 crime scene profiles loaded to the National DNA Database were matched to a subject profile'1. There is no possibility of escaping the provision of technical evidence before a court. Doctors, ballistics experts, forensic scientists are already a common feature of the large criminal trial. The jury system is actually a bastion against conviction on account of complicated scientific facts. The British jury is instructed to acquit a defendant where they find reasonable doubt. If the genetic data and associated evidence is insufficiently conclusive, or presented without sufficient clarity, the jury is obliged to find the defendant not guilty. 1 NDNAD. (2009). National DNA Database: Annual Report 2007-09. Retrieved May 19, 2011, from | |
The use of a DNA fingerprint can scarcely be regarded as an affront to civil liberties and therefore requiring consent. Firstly, as a British Home Office spokeswoman noted, 'before a person's profile can be added to (the database), the person must have been arrested for a recordable offence. That is a significant threshold'2. Furthermore, the procedure for taking a sample of DNA is less invasive than that required for the removal of blood. The police already possess a vast volume of information relating to the citizenry. The National Crime Information Center Computer in the United States contains files relating to fifteen million Americans and receives approximately seven million queries each day2. The availability of a DNA fingerprint to the police should be seen in the context of the personal information that is already held by outside agencies. Insurance brokers commonly require an extensive medical history of their clients. Employers subject their employees to random urine tests for drug and alcohol consumption. If we are prepared to place our personal information in the private sector, why can we not trust it to the public authority of the police? The DNA will only be utilised in the detection of crime. In short, the innocent citizen should have nothing to fear. 1 Doward, J. (2009, August 9). 'Racist bias' blamed for disparity in police DNA database. Retrieved May 18, 2011, from The Observer: 2 National Crime Information Center. (2009). About Us. Retrieved May 19, 2011, from Federal Bureau of Investigation: | |
Retaining the DNA of unconvicted suspects is not unlawful, only retaining it indefinitely. New British proposals to meet the requirements of the European Court of Human Rights' judgment are to ensure the DNA of the unconvicted remains on the database for just 6 years. The law has to be laid down in a set manner rather than imprecise terms. Loopholes are often found but in the long run, they are what create a fair and just legal system. We cannot have loose laws, everything must turn on the wording. The ruling stated that the DNA of the innocent could not be saved indefinitely, so the British government is proposing that this DNA only be kept on the system for 6 years. They have done what the Court has asked them to do, to take away the permanency; a DNA database remains. | |
DNA testing is fallible, and therefore should not be used as the basis of convictions Although DNA detection might have advantages over fingerprint dusting, the test is nevertheless fallible. Environmental factors at the crime scene such as heat, sunlight, or bacteria can corrupt any genetic data. Any DNA evidence must be stored in sterile and temperature controlled conditions. Criminals have been suspected of contaminating samples by swapping saliva. There is room for human error or fraud in comparing samples taken from suspects with those removed from a crime scene. The accuracy of any genetic profile is dependent upon the number of genes examined. Where less than four or five genes can be investigated, the PCR technique serves only to exaggerate any defects or omissions in the sample. In 1995 an 18 month investigation was launched into allegations that the FBI Crime Lab was 'dry-labbing' or faking results of DNA comparisons1. Furthermore, in the United Kingdom, the company used by police to analyse its DNA samples was shown to have secretly kept the genetic samples and personal details of 'hundreds of thousands' of arrested people, stoking fears that, if lost, they could be planted as evidence2. The mere creation of a database cannot be the panacea for crime detection. 1 Johnston, D. (1997, April 16). Report criticizes scientific testing at F.B.I Crime Lab. Retrieved May 19, 2011, from New York Times: 2 Barnett, A. (2006, July 16). Police DNA database 'is spiralling out of control'. Retrieved May 18, 2011, from Guardian: | |
Having a DNA database should require individual consent The invasiveness of the database resides in the information being maintained on file, rather than in the procedure for obtaining the genetic data. The decision to pass personal information to mortgage or insurance agencies is governed by individual consent. When the citizen releases information to outside agencies he receives a service in return. In being compelled to give a sample of DNA the innocent citizen would receive the scant benefit of being eliminated from a police investigation. Moreover, medical records are already subject to a significant degree of statutory protection from investigation. The use of genetic tests by insurance companies remains highly controversial. There is considerable potential for abuse of information that is so private, the person giving the sample will probably not know its contents and they will certainly not know the possible ways the information may be used1. Finally, there is a subtle yet significant difference in the attitude of government towards the citizen that is conveyed by the creation of a database. Every citizen, some from the moment of their birth, would be treated as a potential criminal. 1 BBC News. (2007, September 5). All UK 'must be on DNA database'. Retrieved May 20, 2011, from BBC News: | |
Retaining the DNA of unconvicted suspects is unlawful The European Court of Human Rights was quite clear when it stated that retaining indefinitely the DNA and fingerprint records of unconvicted suspects is unlawful1. The Strasbourg court made a unanimous decision that the UK keeping the DNA of the unconvicted on a database permanently was contrary to human rights and therefore illegal. They stated that due to the high level of disruption to human rights, on this issue the court would not have much "margin of appreciation" or leeway. Subsequent attempts to justify the database have been dismissed by the Commission as failing to provide 'clear, justifiable reasons for holding on to the DNA data from people who had not been convicted of a crime'2. The Commission also felt the retention of DNA profiles 'failed to recognise there were a disproportionate number of young black men, vulnerable people and children on the database'2 1 BBC News. (2007, September 5). All UK 'must be on DNA database'. Retrieved May 20, 2011, from BBC News: 2 Doward, J. (2009, August 9). 'Racist bias' blamed for disparity in police DNA database. Retrieved May 18, 2011, from The Observer: | |
DNA fingerprinting has considerable advantages over conventional means of forensic crime detection, advantages that render any slight fallibility irrelevant. Conventional fingerprints attach only to hard surfaces, can be smeared, or avoided by the use of gloves. Even a clear print requires a significant degree of interpretation by investigating officers. The standard technique of comparing fourteen points between the print taken at the crime scene and the print of the accused has been subject to severe criticism. The novel 'polymerase chain reaction' (PCR) amplification technique facilitates an accurate DNA profile from very small amounts of genetic data. The fingerprint can be constructed notwithstanding contamination from oil, water or acid in the crime scene environment. The innocent and the accused should appreciate a novel fingerprinting technique that is both objective and accurate. Lastly, fears of wrongful conviction are misguided, a 2002 study found only 'two cases worldwide'1. 1 Phillipson, G. (2009, November 19). The case for a complete DNA database. Retrieved May 18, 2011, from Guardian: | |
Although protecting children domestic abuse is of vital importance curfews are not the most appropriate way of doing so. Problems at home may be the reason the young person spends so much time out on the streets in the first place. If that is the case, it could be dangerous to force them to stay where they may be at risk of abuse. Also, curfews infringe upon the rights of parents to bring up their children as they choose. Simply because we dislike the way some parents treat their children should not mean that we intervene to stop it; should we intervene in families where conservative religious beliefs are preached? 1 1 Hidden Hurt | |
Curfews also have an important role in the protection of vulnerable children The use of child curfews can help to protect vulnerable children. Although responsible parents do not let young children out in the streets after dark, not all parents are responsible and inevitably their children suffer, both from crime and in accidents, and are likely to fall into bad habits. Sir Ian Blair former chief commissioner of the Metropolitan police argued that curfews were aimed at safeguarding youngsters and stopping gangs causing trouble.1 Society should ensure that such neglected children are returned home safely and that their parents are made to face up to their responsibilities.2 1. Rosie Cowan, 2004, 2. Ward, 2000, | |
Curfews are not enforceable even if they are well known by residents and anyone can report those breaking curfew. It simply means that young people are trying to avoid the police so that they do not get fined. The police are only ever likely to catch a small number of those who are violating the curfew resulting in there being little deterrence. | |
It is best for children to be at home in the evening. There is no good reason for children to be out unaccompanied late at night, so a curfew is not really a restriction upon their liberty. Where the child does have good reasons to be out they can be covered by the exceptions. They would be better off at home doing schoolwork, schools often set more than an hour a night which the children should be doing. The time would also be better spent interacting with the rest of their family. | |
The main objective of curfews is usually crime prevention. Youth crime is a major and growing problem, often involving both drugs and violence. Particularly worrying is the rise of youth gangs who can terrorise urban areas and create a social climate in which criminality becomes a norm. Imposing youth curfews can help to solve these problems, as they keep young people off the street, and therefore out of trouble, and prevent them from congregating in the hours of darkness. Police in Philadelphia have found curfews effective in the prevention of gang violence: ‘the measure has been successful in helping to curb violent attacks by teen mobs that had severely injured several people in recent months, city officials said.’ 1 1. Associated Press, 2011, | |
Curfews are largely ineffective in preventing crime. Curfews do not target the right times of day as most juvenile crime appears to take place between 3 p.m. and 8 p.m., after the end of school and before working parents return home, rather than in the hours covered by curfews. There are many reports providing evidence that juvenile curfews do not have a significant effect upon crime figures. In addition, although society does have a problem with youth behaviour, although it is not as bad as the newspapers make out. What is often labelled anti-social behaviour today was considered normal for kids in the past – things like playing football in the street, going around in groups without an adult in charge, making a bit of noise sometimes, etc. We need to be careful to draw a line between things that some people don’t like, and actual crime.1 1 Adams, 2010. | |
Children in their mid-teens have many legitimate reasons to be out at night without adults. Many will have part-time jobs, for example in fast-food restaurants or delivering newspapers. Others will wish to participate in activities such as church groups, youth clubs or school trip. Whilst there are clauses for allowing such activity, the fear of not being believed would be a serious chilling effect on uptake. Requiring adults always to take them to and from such activities is unreasonable and will ensure that many never take place in the first place, either because adults are unwilling, or are unable to do so.1 1. NYRA, | |
A number of alternative strategies exist which are likely to do more to reduce youth crime. For example, rather than a blanket curfew covering all young people, individual curfews could be imposed upon particular trouble-makers, perhaps involving electronic tagging, breaking up gangs without labelling an entire age-group as criminal. A Scottish scheme puts plenty of police officers on the streets at night with a brief to engage with young people, deterring crime while steering them towards a range of youth activities available at clubs set up by the local council. | |
A curfew is practical. Very few children are going to be out late at night without an adult or very good reason. This helps make curfews enforceable as the police will be patrolling anyway, and any responsible adult can report children who are out after curfew. The curfew could therefore be for all young people, defined as those under the age of 18, beginning at 10pm on both weeknights and weekends and ending at sunrise, with the exceptions like those noted in the introduction. Curfew violations are punishable by fines and penalty assessments. In Los Angeles these total $675, and violations may also result in community service and driver's license restrictions. The amount can vary with Philadelphia only having a $250 fine. 1 1. Findlaw | |
Curfews are most effective when used a short-term aid to other policing measures. Other schemes aimed at reducing youth crime are highly effective but work best in conjunction with curfews. As the National Crime Prevention Council states: ‘A curfew alone won’t stop crime. More preventive measures, including recreational activities and job opportunities, are needed to reach out to young people and keep them from committing crimes.’ 1 In areas with a whole culture of lawlessness a curfew takes the basically law-abiding majority off the streets, allowing the police to engage with the most difficult element. Curfews are a tool in the struggle to improve lives in run-down areas; they often used for relatively short periods of a few weeks or months in order to bring a situation under control so that other measures can be put in place and given a chance to work. | |
Child curfews are an important form of zero tolerance policing, showing that a community will not allow an atmosphere of lawlessness to develop. Paul McKeever, Chairman of the Police Federation in England and Wales, argues that: ‘“It would send out the message that we are serious that the criminal justice system has the power to impose immediate sanctions for bad behaviour and that “no” will mean “no”. At the moment no is negotiable.1”The idea of zero tolerance comes from the theory that if low-level crimes, like graffiti-spraying, window breaking and drug-dealing (all common juvenile offences) are not acted against swiftly and effectively by the police, then a permissive atmosphere is created where violence and other serious crimes flourish and law and order breaks down entirely. 1. McKeever, 2009 | |
Curfews are easy to police compared to other forms of crime prevention, and are therefore effective. Child curfews can help to the police to establish a climate of zero tolerance and to create a safer community for everyone. | |
Curfews compromise children's rights. Youth curfews infringe upon individual rights and liberties. Children have a right to freedom of movement and assembly which curfews directly undermine, by criminalising their simple presence in a public space. They are also subject to blanket discrimination on the grounds of age and the underlying assumption that all young people are potential law-breakers. It has been established in US law in the 1976 case of Missouri v Danforth that everyone has full constitutional rights regardless of age. Thus, curfews violate the fifth amendment which guarantees a right to free movement and due process. Comparable legal principles exist in most liberal states, and there is no reason to treat children as having less substantive rights to free movement. 1 Youth curfews have great potential for abuse, raising civil rights issues. Evidence from U.S. cities suggests that police arrest far more black children than white for curfew violations. Curfews will tend to be imposed upon poor areas in inner cities with few places for children to amuse themselves safely and within the law, compounding social exclusion with physical exclusion from public spaces. These problems will also be made worse by the inevitable deterioration in relations between the police and the young people subject to the curfew. 1. Vissing, Y. (2011). Curfews. In: Chambliss, W., eds. Juvenile Crime and Justice. London, SAGE publications, Ch. 5. P.62 | |
Positive engagement would be more effective than curfews. Other successful schemes aim to work individually with young troublemakers, in order to cut their reoffending rate, for example by requiring them to meet with victims of crime so that they understand the consequences of their actions, and by pairing them with trained mentors. Overall, governments need to ensure good educational opportunities and employment prospects in order to bring optimism to communities where youngsters feel that their futures are pretty hopeless. Rather than trying to scare kids into good behaviour, why don’t we offer them a better life? Most areas with anti-social behaviour problems are poor, with bad schools, few jobs and little for kids to do with themselves. With little hope for the future, no wonder some kids go off the rails. So instead of threatening punishment, we should invest in better schools, places for kids to play and socialise, and the chance of a job.1 1. The Observer, 2004 | |
Curfews are counter-productive. Imposing child curfews would actually be counter-productive, as it would increase juvenile offending by turning millions of generally law-abiding young people into criminals. The Executive director of D.C. Alliance of Youth Advocates argues that ‘"This tells young people they're the problem, not part of the solution".’ 1Already in the USA, more children are charged with curfew offences than with any other crime. Yet once children acquire a criminal record they cross a psychological boundary, making it much more likely that they will perceive themselves as criminal and have much less respect for the law in general, leading to more serious forms of offending. At the same time a criminal record harms their opportunities in employment and so increases the social deprivation and desperation which breed crime. 1. Dvorak and Greenwell, 2006 | |
Curfews are ineffective. Curfews are not an effective solution to the problem of youth crime; research in the USA suggests that there is no link between areas that achieved a reduction in juvenile crime and areas with youth curfews. Paul McKeever, Chairman of the Police Federation in England and Wales points out that curfews are an unrealistic scheme: ‘It is fantasy to believe the police could impose an immediate sanction for somebody to stay in their home for four weeks without any kind of due process.’ 1Although some places did see a reduction in youth crime, this often had more to do with other strategies, such as zero-tolerance policing. 1. McKeever, 2009 | |
Child curfews can help to change a negative youth culture in which challenging the law is seen as desirable and gang membership an aspiration. Impressionable youngsters would be kept away from gang activity on the streets at night and a cycle of admiration and recruitment would be broken ‘in the hope that we can stop them from getting so far into trouble that they end up in the criminal justice system.1’ By spending more time with their families and in more positive activities, such as sports and youth clubs, which curfews make a more attractive option for bored youngsters, greater self-esteem and discipline can be developed. 1. BBC News, 2009, | |
Curfews do not harmfully restrict childrens’ rights to participation in activities and actually supports their right to a safe home and neighbourhood environment: ‘The curfew law has several exceptions. Youths can be out after hours if they are with a parent or guardian or doing errands at a parent or guardian's direction. They also can be at work or attending an official school, religious or recreational activity.’ 1If family breakdown means parents lose control, and in cases where parents can’t be bothered, then the police should step in. If the state has the right to take children away from cruel parents to protect them, then it also has the right to protect everyone else from dangerous youths. Most importantly, we can trust the police not to abuse this power. Our police are sworn to uphold the law and protect people, and trained to respect everyone’s rights. 1. Dvorak and Greenwell, 2006 | |
While it seems defendable that we learn moral values at a young age, the proposition argument does not look with the factual evidence about the individuals who are most likely to get involved in criminal activity. Criminologists came up with the ‘age-crime curve’. [1] This reveals that the profile of the average criminal is a male between the ages of 15 and 25. After the age of 25, the majority of criminals desist. Presuming that this pressure of social deprivation affects everyone in society in the same way, more steps need to be taken in order to explain why predominantly males between the ages of 15 and 25 seem to respond to it in this manner. This further goes to suggest that perhaps social deprivation is not a primary cause, but that factors such as age and gender play as much of a part in the likelihood of criminal activity. [1] Bottoms, Professor Sir Antony E., ‘Crime prevention for youth at risk: some theoretical concerns’, Resource Material Series, No.68, 129th International Senior Seminar Visiting Experts’ Papers, pp.21-34. | |
We acquire our knowledge of what is right and wrong through education. We are not born with an innate sense of right and wrong, a prior knowledge of what is legal and illegal. We acquire it through education, both at home and at school. The internalization of these social norms is a crucial part of becoming a law-abiding citizen and acquiring the respect toward the law our society demands. Children from poor backgrounds are more likely to be raised in environments where such distinctions are blurred, where they are exposed to negative role models within their family or community. They may also experience very erratic or low-quality schooling, This may be because the schools have inadequate levels of funding or supplies, the classes are more likely to have disruptive children or that better teachers are more sought after and thus go to other schools. As a result, they might become desensitized to crime, or violence as a result of being exposed to it on a regular basis. They might then start to view crime not as against social order but as a part of it and that will make them more likely to break the law themselves. | |
The opposition to this argument is that nothing can or should be gained through crime. There are many ways of making voices heard without resulting to criminal activity. None-violent measures such as bus boycotts, freedom rides , sit-ins and mass demonstrations were used during the African American Civil Rights Movement . This movement succeeded in bringing about legislative change, and making separate seats, drinking fountains, and schools for African Americans illegal. Another example is the 2003 Women of Libya mass Action for Peace, [1] or the more current (2011) uprisings in Syria, Egypt and Tunisia. To use an example of the Tunisian uprisings, the people spoke out against huge unemployment and government corruption. Thus though many of the protesters were from poor socioeconomic backgrounds, criminal acts were not taken and yet they still achieved the freedom that followed from the 24-year-ruling president Zine al-Abidine Ben Ali fleeing the country a month later. [2] Therefore that people feel crime is the only outlet they have cannot be a reason to support the idea that social deprivation is the primary cause of criminal activity. [1] Ekiyor, Thelma Aremiebi, and Gbowee, Leymah Roberta, ‘Woman’s Peace Activism in West Africa The WIPNET Experience, People Building Peace. [2] Alexander, Christopher, ‘Tunisia’s protest wave: where it comes from and what it means’, The Middle East Channel ForeignPolicy.com, 3 January 2011. | |
People who are destitute are more likely to turn to crime in order to satisfy basic living necessities. In some impoverished families there is simply no possibility of work and in many countries where there is no welfare benefits this means that the family cannot afford food, shelter or healthcare. Even in some places where there are benefits, this is often not enough to cover the family’s way (for example healthcare is the number one cause of bankruptcy in the US) [1] and thus some members of the family may be driven to desperate measures in order to be able to afford provisions. If no other options are open to them this desperation can result in measures such as theft, drug dealing or blackmail (See appendix). Furthermore often extreme poverty is linked to substance abuse, often as a respite from these terrible conditions. This in turn breeds more crime as people have to fund their addictions. However in this case it seems clear that it is the desperation of poverty that causes these people to commit crimes. Many people believe racism, and therefore crimes such as incitement to racial hatred or ‘hate crimes’, are more likely to occur in areas of social deprivation. The theory suggests that a mix of poverty, unemployment and segregation causes’ high tension can cause a ‘scapegoat’ culture on either, and indeed both, sides. [1] Tamkins, Theresa, ‘Medical bills prompt more than 60 percent of U.S. bankruptcies’, CNN Health, 5 June 2009, | |
Some people counter this argument by claiming it is not that people who are in extreme poverty that are more likely to take drugs, but those who take drugs are more likely to be in extreme poverty, as drugs are expensive and many drug users are unstable and therefore unable to keep a job. This could be taken to suggest that poverty is not a cause of crime in itself, but might merely be associated with other factors which cause it. Therefore to tackle the crime of drug use, we do not need to tackle social deprivation, but the drug use itself. Furthermore the argument that poverty increases the likelihood of racism or racist crime can be refuted if we acknowledge one of the most famous cases of racist crime, apartheid in South Africa. This event is now considered a crime against humanity, "committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime". [1] However, it was also created and maintained by politicians and many of the upper class in a stable and well-off society, thus this hate crime cannot be attributed to social deprivation. Even racist actions that occurred in socially deprived areas at this time or later must be looked at in a wider context and it seems clear that social deprivation alone cannot be blamed. [1] United Nations General Assembly, ‘International Convention on the Suppression and Punishment of the Crime of Apartheid’, Office of the High Commissioner for Human Rights, 30 November 1973, | |
People feel crime is the only way to get their frustrations heard. Some people, particularly those from deprived social or economic backgrounds may feel that their government is not helping them or listing to/care about their problems. When this happens to a large group of people, they may feel crime is the only way they can have their frustrations heard. One example of this would be the Brixton riots in 1981 (See Appendix). [1] In some states where government criticism is itself against the law, breaking the law is in fact the only way to have your feeling heard. However, this is of particular importance to those from socially deprived back grounds for three reasons, firstly they are often the ones most ignored by their government and secondly they are the ones who would benefit most if society were to change. Finally, for some people from poor social or economic backgrounds, crime is the only outlet they have to vent their anger or frustration as all other options have been blocked for them. [1] BBC News, ‘Brixton riots: Archive’, 10 April 2011. | |
This is ridiculous. Why is the drug dealer a drug dealer? Because he is poor and has few other prospects. He is not poor just because he is a criminal as something had to get him in to crime in the first place. In many cases that initial motivating factor was poverty or a lack of prospects. If it was true that the causation was reversed then there would be much more social mobility because those who started poor and deprived but wanted to work and were fundamentally honest would be socially mobile. | |
While the figures demonstrated in this argument clearly illustrate that these large scale crimes are more often committed by those who are not suffering from social deprivation, tax evasion constitutes a small percentage of the world wide crime rate, and thus should not be taken to prove that social deprivation is not the primary source of crime. | |
In an age of consumerism, the primary cause of crime is a greed or desperation to ‘fit in’, or ‘have it all’. We live in a culture where success and personal achievement is measured on a material scale - what you own, how much you make, what car you drive, what clothes you wear. This means that it is the way society is structured to make us crave material objects which is the primary cause of crime. As society values wealth and material goods over everything else people might turn to crime in order to acquire these much-vaunted markers of personal achievement, to which they feel entitled. Seeing no other avenue for personal and financial success, they might easily choose to get involved in illegal but somewhat profitable activities — like drug dealing, theft or burglary, running prostitution rings, racketeering, etc. However if society was to value traits such as honesty, hard work or loyalty over personal holdings then perhaps the levels of crime would not be so high. | |
The statistics about poverty and crime show correlation, not causation. While it is true that crime is correlated with people coming from poorer socio-economic backgrounds this does not in itself prove that poverty itself is the cause of crime. A lack of education or bad parenting might be equally, if not more convincing explanations for both phenomena. The causation may even be reversed, with those who indulge in violent behaviour and who seek illegal short-cuts to success rather than being prepared to hold down a steady job being more likely to end up poor. For example, recent studies have found that street-level drug dealers make less than the minimum wage. [1] So poverty is not a cause of crime in itself, but might merely be associated with other factors which cause it. In order to tackle crime, therefore, we don’t need to eradicate poverty, but improve people’s internalization of social norms through law enforcement and education. [1] Levitt, Steven D. and Sudhir Alladi Venkatesh, ‘An Economic Analysis of a Drug-Selling Gang's Finances’, The National Bureau of Economic Research, Working Paper No. 6592, (1998). | |
Some of the biggest crimes that affect society the most are committed by huge multinational companies or wealthy individuals. Tax evasion is costing the developing world around $160 billion a year [1] to those who most need it (incidentally this is more than the entire global aid budget). These are huge, global crimes that have effects of billions of people. It does not take a stretch of the imagination to illustrate how some of the tax evaders can cause poverty, illness and even death to others; as the money they do not pay in tax can therefore not be used for road safety, pensions, healthcare, world aid or many other institutions (that the tax evaders are still able to make use of). This illustrates how the crime of tax evasion can have serious consequences. In the US the most common tax evader is a male, under 50 and of the highest earning bracket. Globally the most common tax evaders are large multi-national companies. This illustrates that these large scale crimes are not being committed by those from deprived backgrounds, but rather from the greed of the wealthy to have more wealth. [1] Christian Aid, ‘Christian Aid urges G20 to crach down on tax dodging pinstripe ‘pirates’, 3 September 2009. | |
This opposition argument two is not as clear cut as it seems. While it is true that society encourages us to value material goods, and that this encourages crime, it is also clear that this effects those from socially deprived areas much more than those from stable or wealthy backgrounds. In many socially deprived societies, the lack of education and resources invested in the younger generation mean that the poverty cycle continues to define how well these young people will do as adults. The family they are born into is still the biggest predictor of a person’s life trajectory. If social mobility is not a truly viable option for young people from impoverished backgrounds to succeed, they may see crime as the only way to reach the material goods that so commonly are associated with personal achievement. One current example of this is the riots that occurred in major cities throughout the UK in 2011. Perhaps one of the most notable acts of the riots was the looting, particularly as the majority of looting was from high street stores not for necessities or for high end goods, but rather for average things the looters wanted. Zoe Williams explains the riots as such ‘this is what happens when people don't have anything, when they have their noses constantly rubbed in stuff they can't afford, and they have no reason ever to believe that they will be able to afford it’. [1] Therefore in this case criminality is caused by consumerism as the opposition argument two suggests, but this is compounded by the cyclical nature of social deprivation that looks unlikely to be solved. [1] Williams, Zoe, ‘The UK riots: the psychology of looting’, guardian.co.uk, 9 August 2011. | |
Minimum sentences have only a theoretical impact on crime rates; in reality they make no difference. The pro makes two major assumptions; first, that criminals have reasonably accurate perceptions of the legal code. Second, the pro assumes that harsh penalties have a psychological impact on potential criminals. Interviews with convicted felons found that a mere 22% even thought they knew what the punishment would be. Another 18% did not know at all, and more than a third reported that they had not thought about punishment at all at the time of the crime. [1] Thus minimum sentences are not sufficiently well publicized to have a significant deterrent effect. Furthermore, substantial evidence demonstrates that additional severity has a relatively small deterrent effect. Criminals respond much more to the chance of getting caught rather than the consequences that occur if they get caught; if a criminal’s chance of getting caught is 10%, the deterrent effect is virtually zero. [2] Thus mandatory sentences do not have a substantial deterrent effect. [1] Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 178. [2] Western, 179. | |
Mandatory minimum sentences increase deterrence. Deterrence works through several mechanisms; likelihood of getting caught, severity of punishment, and perceived public disapproval. Mandatory minimum sentences increase the effectiveness of severity as a deterrent. If potential criminals know a mild sentence is possible, they are more likely to commit crime in the hopes that they may charm a judge into sympathetically lowering their sentence. By establishing a set minimum punishment, a potential criminal with any knowledge of the penal code knows that, if caught, he/she will face a substantial punishment for his/her crime. The pro need not demonstrate that every, or even a strong majority, of would-be criminals will be deterred by mandatory minimum sentences; so long as the mandate has a reasonable deterrent effect, it will reduce crime and therefore improve the overall standard of living. | |
Safety valves are simply a reflection of the problem with mandatory sentencing. Safety valves are proof that the inflexibility of minimum sentencing leads to injustice. Safety valves are a step in the right direction, but are themselves an inflexible form of relief. For example, safety valves often do not apply if the defendant has a history of more than one very minor offense, such as passing a bad check. [1] The better way to reduce the injustice of mandatory minimum sentences would be to eliminate the system and allow judicial discretion. [1] “Federal Mandatory Minimum Reforms: Improve and Expand the Federal ‘Safety Valve,’” Smart on Crime: Recommendations for the Next Administration and Congress, 2008. [ | |
Mandatory sentencing increases consistency in the justice system. Former Supreme Justice Sandra Day O’Connor once said, “liberty finds no refuge in a jurisprudence of doubt.” [1] Without mandates, judges may have radically different ideas of just sentences. Michael Simons gives the example of Mutt and Jim- two criminals of identical background who commit the same crime. Judge Lenient sentences Mutt, while Judge Harsh sentences Jeff. Mutt might receive one day in prison while Jeff receives a sentence of twenty-five years. [2] While such an extreme is unlikely, it is noteworthy that the legal system emphasizes the importance of consistency. Consistent precedent is essential because citizens need to be able to make decisions knowing the legal consequences of their actions. Mandatory sentencing need not be overly harsh, but there should be some sort of rigidity to establish reliability in the legal system. [1] Planned Parenthood v. Casey, 505 U.S. 83, (1992). [2] Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 926. | |
Mandatory minimum sentences remove undue judicial discretion. Discretion allows for both intentional and unintentional bias. The U.S. Supreme Court recently heard a case concerning alleged corruption when a West Virginia judge ruled in favor of a plaintiff that had donated over $3 million to the judge’s election campaign. [1] Though this case is not directly linked to minimum sentences, it demonstrates that judicial corruption is an issue in the legal system today; mandatory sentencing reduces the discretion that allows unethical judicial action. Furthermore, judges may attempt to be impartial, but data shows that humans are inclined to be more sympathetic towards particular groups. For example, female defendants are less likely to receive a death sentence than male defendants, while defendants in general are seven times more likely to receive the death penalty if the victim is female; scholars suggest that these disparities are caused by societal perceptions that women need greater protection rather than any actual difference in the severity of the crime. [2] Thus even decisions that seem impartial are often not. Strict sentencing mandates are more likely to yield just decisions because they are less vulnerable to individual bias. [1] Dahlia Lithwick, “The Great Caperton Caper: The Supreme Court Talks About Judicial Bias. Kinda,” Slate, June 8, 2009. [2] “Studies: Gender Bias in Death Sentencing,” Death Penalty Information Center, 2011. | |
Mandatory sentences do not eliminate undue discretion; they merely shift the power from judges to prosecutors. Prosecutors may decide whether or not to charge defendants for violations other than the main charge. For example, a prosecutor may add weapons possession to a charge for drug sales- this additional count can drastically increase the defendant’s sentence. In the United States, defendants often cooperate with prosecutors and provide information in order to avoid such hefty sentences. Michael Simmons explains, “[…] A cooperation departure is usually the only significant sentencing factor over which a defendant has any control and– because the average cooperation departure cuts a defendant’s sentence in half- it is often a defendant’s only hope for a reduced sentence. Thus, it is not surprising that cooperation departures have fundamentally changed federal prosecutions.” [1] Prosecutors may wield this power to coerce defendants into accepting a plea bargain in cases where they might reasonably be acquitted at trial. Because prosecutors are part of the executive branch, they are more susceptible to political influence than federal judges, who are often appointed, not elected. Thus for a balance of power, it is better to allow judges to have discretion. Debaters might instead argue that mandatory sentences are not an effective means of subduing corrupt judges, as a judge has many venues for disrupting a trial. [1] Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 935. | |
Judges are capable of delivering consistency. Judges are trained professionals and must demonstrate competence in order to be appointed- they are unlikely to administer completely random sentences. In order to further reduce inconsistency, the Con supports government-issued sentencing guidelines so that judges are aware of the precedent concerning sentencing for a particular crime, so long as these guidelines are not compulsory. In the unusual occurrence that a judge administers an unjustly harsh sentence, defendants may appeal their case to a higher court. Thus judicial discretion is unlikely to result in widespread inconsistent sentencing. | |
Imprisonment only yields the benefits of incapacitation if the offenders are a likely threat to society. If the criminal that is given an extensive prison sentence was unlikely to commit another crime, then his/her incapacitation did not actually protect society. Studies within prison populations demonstrate that most offenders commit relatively little crime, while a core group commits a large portion of the crime. For example, a Rand Corporation survey found that half of all burglars committed fewer than six crimes per year, while the top 10% committed over two hundred. [1] Thus society is not particularly well serve when the bottom half of burglars face long prison sentences; few burglaries are avoided, and these criminals will now have more difficulty rejoining society. [1] Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 178. | |
Mandatory minimum sentencing can be designed to avoid injustices. The negative side effects of minimum sentencing guidelines can be avoided via “safety valves.” The U.S. federal government introduced safety valves in 1994; mandatory sentencing is suspended if the defendant meets certain criteria, such as being a low-level participant or having no prior criminal history. The safety valve allows flexibility so that low-risk offenders do not receive excessively harsh punishment. Thus mandatory sentencing guidelines have enough flexibility to recognize varying circumstances, while retaining enough rigidity to deliver consistent punishment. | |
Minimum sentences increase the effectiveness of incapacitation. Incapacitation is one of the 4 basic reasons for punishment. Mandatory minimum sentences keep criminals out of society for a longer period of time than they might otherwise be in jail, thereby reducing their window of opportunity to commit crime. The criminal justice system is obligated to refrain from cruel or unusual punishment, but its main purpose is to protect society from law-breakers through various means of preventing and punishing illegal activity. Mandatory minimum sentences should be proportionate to the severity of the crime, thus satisfying the requirement of humane punishment. Thus mandatory minimum sentencing is a just method of protecting the public. | |
Mandatory sentences need not be excessively harsh. The Pro supports mandatory sentences that account for a criminal’s prior history and the severity of the crime; mandatory sentences can be proportionate to the scope of the crime. A crime such as murder, which poses a serious threat to public safety, should have a greater minimum punishment than petty theft. But by arguing that we should not have minimum sentences for low-level criminals, the con is essentially arguing that we should not imprison offenders unless they singlehandedly pose a dire threat to society at large. All crimes are violations of the law; if the government ignores crime on the basis that the offense is “not that serious,” it signals that laws against such offenses are not legitimate and may be ignored. Thus mandatory minimum sentences are relevant and beneficial to reducing low-level crime. | |
Mandatory sentencing does not provide prosecutors any additional power to do anything unethical. “Stacking charges” is another way of saying the prosecutor charges the defendant for each crime he/she committed, meaning that the defendant is being held accountable for all of his/her actions. The Con fails to demonstrate why this is problematic. Furthermore, having democratic checks ensures that the prosecution will not bring trumped-up charges. First, a jury will dismiss such charges, and possibly dismiss all charges if they feel the prosecutor is being abusive. Second, the public is unlikely to respond positively to a district attorney that wastes time and resources on putting low-level criminals in prison for long sentences rather than focusing on serious threats to public safety. Thus the ability to “stack charges” is unlikely to have an adverse impact on justice. | |
Mandatory minimum sentences make juries reluctant to convict guilty defendants. The most publicized form of jury nullification is in the case of the death penalty, wherein jurors are reluctant to sentence a person to death. However, Nancy King of the University of Chicago finds that juries are increasingly likely to acquit if a defendant might receive an unduly harsh sentence under mandatory sentencing laws or “three-strike” laws. [1] This kind of jury nullification has two implications. First, it is harmful because defendants that are guilty and ought to go to prison (albeit not for the term demanded by sentencing laws) are not held accountable for their actions at all. Second, jury nullification (a contested practice in and of itself) is a signal in a democratic society that the public considers current legislation to be unjust. Thus the jury nullification demonstrates public opposition to the unintentionally unjust consequences of mandatory sentencing. [1] Nancy King, “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,” The University of Chicago Law Review, Vol. 65, No. 2, 1998, 438. | |
Minimum mandatory sentences are unjust. In the United States, federal minimum sentences for narcotics-related offences have forced judges on countless occasions to deliver sentences of 20 year, 30 years, or even life imprisonment to offenders that were tangentially connected to the offense. Often, such offenders are low-income young adults that turn to drug sales for a month or two out of desperation. [1] Sometimes defendants find themselves entangled in drug busts because they are living with family members that are involved in the drug trade. [2] In a well-publicized case, Weldon Angelos was sentenced to 55 years in prison for selling marijuana because he was also in possession of a firearm. [3] All criminals are not the same; there are significant differences in the level of threat that individuals pose to society, as well as the likelihood of rehabilitation. Rigid mandatory sentences are unjust because they inevitably lead to numerous cases of disproportionate punishment. These harsh punishments consequently have disastrous impacts on the individuals, as well as their family and community. [1] “DeJarion Echols,” Profiles of Injustice, Families Against Mandatory Minimums. [2] “Hamedah Hasan,” Profiles of Injustice, Families Against Mandatory Minimums. [3] “Weldon Angelos,” Profiles of Injustice, Families Against Mandatory Minimums. | |
Minimum mandatory sentences reduce the chance of rehabilitation. Minimum sentences force minor criminals to spend more time in prison, thereby increasing their exposure to more hardened criminals. This exposure reduces their chance of rehabilitation- other inmates act as a “bad influence.” [1] Furthermore, studies of labor market participation demonstrate that the more time a person spends outside the labor force, the more their human capital (i.e. marketable skills) deteriorate; their chance of finding well-paid work decreases with more time outside the labor force. [2] Longer prison sentences keep people from working, thereby keeping them in a cycle of unemployment that leads them back into crime. [1] Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 8. [2] Francine Blau, Mariannne Ferber, and Anne Winkler, The Economics of Women, Men, and Work, 5th Edition, Pearson, NJ, 2006. | |
Mandatory sentencing fills the system with “small fish.” As noted above in response to the Pro, most convicts are not high-repeat criminals; a study similar to the one mentioned above found that in a sample of a cohort of teenage boys in Philadelphia, 33% had engaged in delinquent behavior at some point, but 60% of the crime was committed by a group of recidivists that made up only 7% of the population. [1] Harsh punishments for all offenders have led to an overcrowded prison system; overcrowding decreases safety within prisons and reduces the chance of rehabilitation because prisons have fewer resources per prisoner to provide educational and work training. [2] By filling the system with “small fish,” the Pro reduce the prison system’s ability to address serious threats to society. [1] Bruce Western, Punishment and Inequality in America, Russell Sage Foundation, NY, 2006, 176. [2] Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 6. [ | |
Mandatory sentences are fairer than judicial discretion. The Con assumes that individual judges will deliver fair and proportionate punishment. However, as is discussed in the Pro arguments, judges are susceptible to many forms of implicit and explicit bias. For example, studies consistently show that minorities receive longer sentences than whites in the U.S. for comparable offenses. Mandatory sentencing eliminates the danger of individual partiality and replaces it with consistent standards. The Pro advocates a well-defined set of sentencing standards that account for factors such as prior history and cooperation so as to avoid the injustices discussed in the Con’s argument. The Pro acknowledges that sentencing standards may be imperfect, however, the flaws of these imperfections are outweighed by the elimination of personal judicial bias. | |
Mandatory sentencing gives prosecutors undue power. Prosecutors can stack charges, which they can use to scare a defendant into accepting a plea bargain. Prosecutors are part of the executive branch; they are directly answerable to elected officials (and are often elected themselves), whereas judges are generally more removed from political influence. Politicians often promote themselves as being “tough on crime.” [1] In order to make good on this claim, they may pressure prosecutors to increase conviction rates, get longer sentences, etc. Thus political pressure may lead prosecutors to handle cases in a way that makes them more popular with the public, rather than one which gives the criminal their fair due. Because judges are less susceptible to public pressure, it is safer to entrust discretion to them. [1] Michael A. Simons, “Departing Ways: Uniformity, Disparity, and Cooperation in Federal Drug Sentences,” Villanova Law Review, Vol. 47, Issue 2, 2002, 923. | |
Minimum mandatory sentences increase the chance of rehabilitation. If a person receives a light punishment for his/her action, he/she sees that the action has a low cost. Conversely, if a person has firsthand experience with strong punishment for an action, they will be more reluctant to take that action in the future. Furthermore, prisons have literacy and work training programs to benefit criminals; the majority of (American) prisoners are functionally illiterate. [1] If these criminals are in prison for a short period of time, they will not be able to reap the benefits of these rehabilitating programs. Thus longer sentences (within reason) can actually be beneficial to inmates. [1] Craig Haney, “Prison Overcrowding: Harmful Consequences and Dysfunctional Reactions,” Vera Institute of Justice, 85. | |
1) There are checks against jury nullification. The judicial system can reduce the impact of jury nullification by explaining to juries that their responsibility is to determine the guilt of the defendant. The judge can explain that nullification is not a legally acceptable form of dissenting from a law that one perceives as unjust. While King makes the observations noted by the Pro, she also notes that prosecutors may dismiss potential jurors that admit they will consider the severity of the punishment. [1] (2) A careful jury is a good jury. When juries are reluctant to convict because of the death penalty, they are often asking themselves, “am I so sure that this person committed this crime that I am willing to bet their life on it?” Such hesitation is beneficial to the justice system- it reduces the number of wrongful convictions. Similarly, mandatory minimum sentences make juries realize the significance of their decisions. While this may allow some lucky criminals to evade justice, it also prevents innocent civilians from suffering punishments they do not deserve. [1] Nancy King, “Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,” The University of Chicago Law Review, Vol. 65, No. 2, 1998,435. | |
The Second Amendment was not designed for only self defense and hunting. The idea that the common man should be reasonably able to protect themselves from tyranny, foreign invasion, and insurrection is a reasonable and just cause. But even if we were to accept that self defense and hunting are the only legitimate reasons for owning a gun then why should the state get to decide what weapons someone should use when hunting or defending themselves? That a gun may not be the best choice for these activities does not mean that it should not be a possible choice. | |
Assault weapons are not necessary for self defence or hunting. As New York Mayor Michael Bloomberg argues "We've got to really question whether military-style weapons with big magazines belong on the streets of America in this day and age.” [1] Police chiefs such as Ralph Godbee of Detroit argue "We're talking about weapons that are made for war… you can shoot 50 to 60 rounds within a minute.” [2] In a self defense scenario the person defending themselves need to have enough ammunition to provide deterrence, however they would have to be unwise to take on several assailants so there should be little need to have more than 10 rounds in the magazine. Law enforcement expert Leonard J. Supenski has testified “because of potential harm to others in the household, passersby, and bystanders, too much firepower is a hazard” as in self defense, the defenders will often fire until they have expended all the bullets in their magazine. To use an assault weapon would to spray an assailant with bullets from an assault weapon would be using disproportionate force that will not only harm the assailant but will likely hit anyone else nearby. Even those who are against an assault weapons ban such as David Kopel concede that for the most part these are not useful weapons for hunting. These weapons are “intended to wound rather than to kill” so would certainly not be useful in taking down a deer. Moreover he also concedes “a hunter will carry only a few rounds” so the large capacity magazine is also useless for sport. [3] [1] Simpson, Connor, ‘Dianne Feinstein Wants to Ban Assault Weapons’, the Atlantic Wire, 16 December 2012, [2] Jackson, Jesse, ‘Police Chiefs Are Right: Ban Assault Weapons’, Huffington Post, 3 August 2012, [3] Kopel, David B., ‘Rational Basis Analysis of “Assault Weapon” Prohibition’, Journal of Contemporary Law, Vol.20, 1994 pp.381-417, p.393, | |
Banning assault weapons is an infringement on Americans freedom to protect themselves; what minor civil liberties advances may be gained pale by comparison to this. It is also unlikely that the police and the FBI would recognise the linkage between fewer guns in the civilian population and reducing the firepower of the police. Similarly the FBI is unlikely to monitor civilians less simply because there is one less reason. The justification of “preventing homegrown attacks before they are hatched” will still remain just as strong as before they will simply be looking for different things. | |
A ban would save lives Put simply assault weapons are designed for assault, therefore their proliferation should be prohibited in law. To put things into the general context of gun crime within the United States every year 17,000 people are killed, 70 percent of them with guns and nearly 20,000 people commit suicide by shooting themselves [1] . Murder by gunfire particularly affects children, in total well over a million Americans have died in this manner and 80 people continue to be shot in the states every day. So some form of gun control is necessary and a ban on assault weapons is a good starting point. Out of 62 mass murders since 1982 almost half the weapons used, 67 out of 142, were semi-automatic handguns and more than 30 were assault weapons. [2] The period of the Federal Assault Weapons Ban from 1994-2004 with the exception of 1999, the year of the Columbine massacre (which notably involved a semi-automatic produced before the ban), was also a peaceful period in terms of numbers of mass shootings. [3] While assault weapons are responsible for a relatively small amount of total gun deaths in the USA that is not a good reason for not banning them; any life saved is worthwhile. Taking the low estimate of 1% of deaths from assault weapons that still means 90-100 people a year while the high 7% [4] means 630-700 lives that could be saved. Australia shows the advantages on implementing restrictions on guns (in Australia’s case much stricter than anything being contemplated in this debate so the effect would not be as pronounced). In the wake of a mass shooting in Port Arthur in 1996 strict gun laws were implemented. An evaluation by the Australian National University found laws saved $500 million and halved the number of people killed by guns saving 200 lives every year. [5] [1] Masters, Brian, ‘America’s deadly obsession with guns’ The Telegraph 16 December 2012, [2] Follman, Mark, et al., ‘A Guide to Mass Shootings in America’, Mother Jones, 15 December 2012, [3] Wang, Sam, ‘Did the federal ban on assault weapons matter?’, Princeton Election Consortium, 14 December 2012, [4] Matthews, Jake, ‘For Lives and Liberty: Banning Assault Weapons in America’, Harvard University Institute of Politics, 2012, [5] Peters, Rebecca, ‘Will Sandy Hook massacre be America’s tipping point’, The Sydney Morning Herald, 17 December 2012, | |
It is exactly correct that deaths as a result of assault weapons are a tiny portion of the total firearms deaths. There is also no way to know if those who were killed by these weapons would have been saved or whether their assailant would not simply have killed them with a handgun instead. Therefore to ban only certain types of guns does not address the issue satisfactorily because it does not take into consideration that any gun can kill. | |
Black plastic on a gun does not make it any more lethal than other guns with wood stocks. Stopping the manufacture of such guns would hand over a lucrative market to the Russians and Chinese rather than reducing the number of assault weapons in the world. [1] Drugs cartels would simply find new routes to get the weapons they need, after all they are already dealing in illegal activities making the guns they want illegal on both sides of the border rather than just one is unlikely to stop them. [1] Falconer, Bruce, ‘Semiautomatic for the people’, Mother Jones, July/August 2008, | |
Banning assault weapons increases liberty and security Many who are pro guns argue that it would be illegitimate for assault weapons to be banned while the police have them. Police forces, however, are going to be much more likely, and able to give them up when a ban is in place. The police don’t want to be involved in an arms race with criminals to have the biggest guns; just look at the British police force where there is little gun crime and few shootings of police officers it is not felt that there is the need to have police armed with more than a taser or even truncheon. [1] Put simply a ban on assault weapons can help reverse the arms race between police and criminals. Civil liberties would also be enhanced as law enforcement agencies would not need to devote so many resources into monitoring assault weapons purchases and those who have done the purchasing. Instead they would be able to simply target all assault weapons purchases as needing immediate attention. [2] Finally we must remember that this ban enhances the highest liberty at all; life. Today as Justice Breyer says “gun possession presents a greater risk of taking innocent lives” than not having a gun. [3] [1] Keating, Ruth, ‘This House would arm the police’, Peter Squires ed., Debatabase, 2011, [2] Matthews, Jake, ‘For Lives and Liberty: Banning Assault Weapons in America’, Harvard University Institute of Politics, 2012, [3] Masters, Brian, ‘America’s deadly obsession with guns’, The Telegraph, 16 December 2012, | |
An assault weapons ban would stop the manufacture of many of the deadliest guns. Yes a ban would not immediately take assault weapons off the streets but there would be significant long term benefits as highlighted by Connecticut Senator Joe Liberman "We ought to restore the assault weapons ban -- not to take anybody's guns away that they have now, but to stop the manufacturing of these weapons." [1] The ban would stop manufacturers from making the weapons and with the legislation improved from the 1994 version it would be possible to prevent the cosmetic changes that were made to keep guns on the market. [2] This would mean that prices both in the USA and globally would increase as there would be less supply. One positive result might also be help to change the United States’ position on the arms trade treaty which would further restrict global supply. [3] This would answer Mexican calls to cut off the supply of guns into the country that helps make the drugs violence in the country so deadly both by meaning less of the weapons are made and by helping to cut off the route through which weapons get into Mexico. [4] A ban on assault weapons would not fix Mexico but it would deprive arms smugglers of the closest, easiest and cheapest place to buy the arms used by the drugs cartels. [5] [1] Jamieson, Dave, ‘Connecticut Gov. Dannel Malloy Calls For Tougher Gun Controls’, The Huffington Post, 16 December 2012, [2] Epstein, Edward, ‘NRA clout is outgunning Feinstein / Assault weapons ban renewal in doubt’, SFGate, 28 June 2004, [3] Urquhart, Conal, ‘Arms trade treaty failure is disappointing, says William Hague’, guardian.co.uk, 28 July 2012, [4] ‘Mexico urges U.S. to review gun laws after Colorado shooting’, Reuters, 21 July 2012, [5] Chertoff, Emily, ‘Regulating U.S.-Made Assault Weapons: The International Case’, The Atlantic, 19 December 2012, | |
There is a rational basis for banning assault weapons as they are a firearm of choice among criminals. In a study of young adult purchases of handguns in California buyers with minor criminal histories were twice as likely to purchase automatic pistols as those with no criminal history. This was even higher at five times as likely for those who had been charged with two or more serious violent offenses. [1] This means those purchasing assault weapons intend for them to be used for violent ends. It is true that assault weapons are used in a small percentage of crimes, although 1% is disputable in Miami for example 15 out of 79 homicides in 2006 involved assault weapons, [2] but the opposition ignore that large capacity magazines are used in a much higher percentage of crimes; between 14 and 26% before the 1994 ban. [3] [1] Koper, Christopher S., et al., ‘An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003’, Report to the National Institute of Justice, United States Department of Justice, June 2004, p.17 [2] Associated Press, ‘Assault-weapon attacks on rise in Miami area’, MSNBC, 14 September 2007, [3] Koper, Christopher S., et al., ‘An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003’, Report to the National Institute of Justice, United States Department of Justice, June 2004, p.18 | |
Supreme court rulings have been overturned before. This is an area where the bill of rights is clearly outdated and out of touch; today’s militia is clearly the standing army and so this should just be interpreted as only granting members of the army the right to carry arms. The maintenance of “the security of a free state” clearly is not something that today is done through the citizenry having access to guns, whether assault weapons or not. Moreover it is difficult to see why if there is a right to bear arms that is unconnected with the security of the state these arms should be these particular assault weapons rather than types of weapon that we are not looking to ban. Would a rifle not be as useful in the event of invasion as a semi-automatic? The Bill of Rights was written at the end of the eighteenth century when the weapons were muzzle loading muskets it was not conceived with powerful, accurate, modern weapons that are capable of mass murder without reloading. | |
It is incoherent to ban some guns It is incoherent to attempt to ban assault weapons while allowing other weapons to remain on the streets. As professor Jacobs from New York University argues “Pistols are dangerous because they are easily carried and concealed; shotguns because they spray metal projectiles over a wide area; certain hunting rifles because they fire large calibre bullets, and certain "sniper rifles" because they are accurate over great distances. Assault rifles are not remarkable by any of these criteria.” [1] Indeed the previous ban simply used a list of guns that were banned rather than a specific definition that could then be applied universally showing the difficulty of classifying these weapons. [2] It should also be remembered that this will not affect assault weapons that are already legal in the United States so this would not even be banning all assault weapons so would leave millions in private hands, while it might be argued there is some slight difference between an assault weapon and another gun there is certainly no difference betweena a new and an old assault weapon. [1] Kopel, David B., ‘Rational Basis Analysis of “Assault Weapon” Prohibition’, Journal of Contemporary Law, Vol.20, 1994 pp.381-417, p.404, [2] Kobayashi, Bruce H., and Olson, Joseph E., ‘In Re 101 California Street: A legal and economic analysis of strict liability for the manufacture and sale of “assault weapons”’, Stanford Law and Policy Review, vol.8 No.1, 1997, | |
A ban on assault weapons would not work, it will simply encourage a black market It has already been demonstrated that most crime already takes place using other guns or even without firearms at all so it is illogical to think that this ban would make any difference to crime. For a start as the ban would not be retroactive large numbers of assault weapons would remain legally in the United States. It would create a black market in the weapons which would enrich organised crime which would simply mean that those who are intending to use those guns for ill have access to them while those who want them for self defense don’t. [1] As a response to Obama’s reelection some gun owners are already purchasing more guns and bullets, in some cases with the intention of selling them on the black market should a ban come into force. [2] It is clear therefore that the ban would do little to reduce the number of assault weapons in the United States and would likely even do little to impact on their availability. [1] Wohlferd, Clark A., ‘Much ado about not very much: The expiration of the assault weapons ban as an act of legislative responsibility’, Legislation and Public Policy, vol.8, 2005, pp.471-484, p.480 [2] Hagler, Frank, ‘Gun Sales at Record High: Sales Soar Over Fear of the Black President’, Policy Mic, November 2012, | |
Assault weapons are not used in most crimes There is little point in banning a type of weapon that is not used in most violence; assault rifles are used in fewer than 1 percent of all violent crimes in the united states at a time when gun violence is falling. [1] If assault weapons are not used in most crime then there is no rational basis for banning them. When the previous assault weapons ban expired in 2004 far from there being an increase in crime as predicted the number of murders declined by 3.6%. [2] [1] La Jeunesse, William, ‘Debate answer on assault weapons ban could cause problems for Obama’, Fox News, 1 November 2012, [2] Lott, John R., ‘The Big Lie of the Assault Weapons Ban’, Los Angeles Times, 28 June 2005, | |
An assault weapons ban would violate the second amendment The Second amendment “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed” [1] would be violated by a ban on assault weapons. This right clearly does not limit what arms a citizen may bear. The ruling of District of Columbia v. Heller clearly reaffirmed that the government can’t ban certain classes of arms and also that this right is not connected with service in a militia. [1] ‘Second Amendment – Bearing Arms’, Findlaw, | |
Of course a ban will not completely eliminate these weapons but it would reduce the supply and make it much easier for the police to seize the weapons so taking them off the streets. It would also be a step in the right direction in attempting to change public perceptions and amend the American attitude. It is understated just how relaxed American laws are in comparison to the rest of the world, even states such as Switzerland and Israel that are often highlighted by the NRA as being model states that allow gun ownership with few resulting shootings are much more restrictive than the USA. [1] There is no reason to think that a black market is somehow going to result in more of these weapons being available so the fact that it will exist after a ban is not a reason not to go ahead with the ban. It is not ideal that a ban is not retroactive so leaving a large number of such guns in private hands but this number will slowly diminish over time rather than continuing to rise as it would under the status quo. [1] Rosenbaum, Janet, ‘A League of Our Own’, Foreign Policy, 19 December 2012, | |
The point of an assault weapons ban is not to completely ban guns but to ban guns that can fire large numbers of bullets rapidly and have no purpose other than to shoot people. The ban targets those weapons that are not useful for self defence or hunting. The opposition argument is essentially that because some guns are legal all guns should be legal; the line has to be drawn somewhere and there is little reason why the line at assault weapons is less logical than a line that allows some grenade launchers and shotguns while banning others? [1] Since this line is clearly arbitrary then we should move to the only non-arbitrary line, a full ban, a move towards which this ban is a step towards. [1] Laurence, Charles, ‘Semi-automatics and grenade launchers are legal again in US’, The Telegraph, 19 September 2004, | |
While the world is globalizing, it is still in the interest of states to retain their relative competitive advantages. After all, the first duty of a state is to its own citizens. By translating these works and offering them to academics, students, and professionals, the developed world serves to erode one of its only advantages over the cheaper labour and industrial production markets of the developing world. The developed world relies on its advantage in technology particularly to maintain its position in the world and to have a competitive edge. Giving that edge up, which giving access to their information more readily does, is to increase the pace at which the developed world will be outmatched. |
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