1. Law and Due Process Chapter 10

2. LEARNING OBJECTIVES LO 10.1Analyze civil law and the policy issues related to it. LO 10.2Analyze the elements and causes of crime. LO 10.3Analyze the concepts of due process. LO 10.4Evaluate punishment and rehabilitation policies. LO 10.5Apply what you have learned about the due process of law. Copyright © 2016 Cengage Learning. All rights reserved. 2

3. INTRODUCTION Differences between criminal and civil law Civil law deals with private rights and relationships, obligations, and responsibilities. Civil suits are brought by a plaintiff and the aim is a remedy. Criminal law is concerned with public morality—concepts of right and wrong as defined by society. In criminal law, the aim is punishment. 3

4. INTRODUCTION Differences between criminal and civil law Plaintiff: The party bringing a civil suit, usually a private person or institution. Remedy: The means used to redress an injury, relief from ongoing injury or compensation for past damages. 4

5. CIVIL LAW Civil law in the states today is based in large part on centuries-old English common law. Common law is judge-made law; whether written or unwritten, it is based on precedents, previously decided cases used as a guiding principle for future cases. Law that has been passed by the legislature and is written in codebooks is statutory law 5

6. CIVIL LAW Types of Civil Law Family law As a community property state, Texas requires: that a couple divide property acquired during marriage. that a spouse is not usually responsible for the other’s support after divorce. that children have a right to be supported by their parents even if the parents are divorced. Copyright © 2016 Cengage Learning. All rights reserved. 6

7. CIVIL LAW Types of Civil Law Real estate law: Under Texas law, an individual can lose the title to a homestead for all of the following reasons. delinquency on home equity loans failure to satisfy tax liens delinquency on home improvement loans Copyright © 2016 Cengage Learning. All rights reserved. 7

8. CIVIL LAW Types of Civil Law Probate law To determine that a person’s will at the time of death, is the last and valid will of the deceased. If an individual dies without leaving a will and there are no living relatives, then his or her property passes to the state. Copyright © 2016 Cengage Learning. All rights reserved. 8

9. CIVIL LAW Types of Civil Law (cont.) Business regulations Corporate law Charter: The organizing document for corporations or a municipalities, which defines their structure, purposes, and activities. In order for a corporation to secure permission to conduct legitimate business, it must receive a charter from the Secretary of State. 9

10. CIVIL LAW Types of Civil Law (cont.) Corporate law Civil law holds that when a new corporation is chartered a new legal person is created and the new corporation is one that can sue, be sued, or be fined for criminal activity. 10

11. CIVIL LAW Types of Civil Law (cont.) Injunctions: Court orders to compel or prohibit specific actions. Texas Attorney General is responsible for bringing civil suits to seek writs of injunction to end violations of the Texas antitrust and consumer protection laws 11

12. CIVIL LAW Types of Civil Law (cont.) Labor law Right-to-work laws Laws that prohibit union shop agreements requiring new employees to join a union Torts Negligence Tort Copyright © 2016 Cengage Learning. All rights reserved. 12

13. CIVIL LAW Issues in Civil Law Tort reform: limitation of liability Advocates for tort reform include businesses, insurance companies, and health professionals Punitive damages: Judgments in excess of actual damages intended to punish a defendant in a civil suit. Copyright © 2016 Cengage Learning. All rights reserved. 13

14. CIVIL LAW Issues in Civil Law Tort reform: The legislature has passed laws reducing frivolous lawsuits restricting lawsuits by prison inmates capping jury awards of punitive damages Copyright © 2016 Cengage Learning. All rights reserved. 14

15. CIVIL LAW Issues in Civil Law Tort reform: The loser pays system is the name of the new law that says if either party refuses an out-of-court settlement and if the jury awards damages significantly different from the settlement offer, the loser must pay all of the winner’s legal expenses in the case. Copyright © 2016 Cengage Learning. All rights reserved. 15

16. CIVIL LAW Issues in Civil Law Tort reform: One area of tort reform that the Texas legislature has not seriously considered is automobile insurance. no-fault insurtance allows the insured person to collect from the individual’s own insurance company regardless of who is at fault in a vehicular accident Copyright © 2016 Cengage Learning. All rights reserved. 16

17. CIVIL LAW Issues in Civil Law Liability insurance Eminent domain: When government takes private property for public use. Copyright © 2016 Cengage Learning. All rights reserved. 17

18. CIVIL LAW Eminent Domain In Kelo v. City of New London Connecticut the U.S. Supreme Court approved seizing private residences to make way for a resort hotel, office buildings, and posh apartments. This court case caused Texas to join several other states in limiting government’s power of eminent domain. Copyright © 2016 Cengage Learning. All rights reserved. 18

19. THE ELEMENTS OF CRIME Citizens generally obey law: Because it is the law Fear of punishment It reflects their values Copyright © 2016 Cengage Learning. All rights reserved. 19

20. THE ELEMENTS OF CRIME The Crime Crime is an act that violates whatever authorized body defines as the law. Felonies: Serious crimes punishable by incarceration in state institutions Misdemeanors: Minor crimes punishable by a county jail sentence or fine Victimless crimes: Minor crimes punishable by a county jail sentence or fine 20

21. CRIME AND PUNISHMENT UNDER THE TEXAS PENAL CODE Copyright © 2016 Cengage Learning. All rights reserved. 21

22. THE ELEMENTS OF CRIME Some Felonies livestock rustling, engaging in sexual acts with a person under the age of 17, second- degree murder. A misdemeanor stalking Some Victimless Crimes prostitution, gambling, drug possession Copyright © 2016 Cengage Learning. All rights reserved. 22

23. THE ELEMENTS OF CRIME The Criminal Unwilling to accept the mores of the people who write the law Disproportionately young, poor, and members of racial or ethnic minority groups. Many have acute emotional and social problems. Copyright © 2016 Cengage Learning. All rights reserved. 23

24. THE ELEMENTS OF CRIME Crime in Texas Crime is more likely in large metropolitan areas. Minority-group members are arrested disproportionately for crime. The poor, regardless of racial or ethnic background, are more likely to commit violent crimes than members of the middle and upper classes. Copyright © 2016 Cengage Learning. All rights reserved. 24

25. THE ELEMENTS OF CRIME The Criminal (cont.) Juvenile crime The young are major perpetrators of crime. Texas juvenile facilities not only fail to correct but also serve as breeding grounds for adult crime. Many young perpetrators later graduate into more serious crime. Juvenile courts in Texas provide limited social services for delinquents. Copyright © 2016 Cengage Learning. All rights reserved. 25

26. THE ELEMENTS OF CRIME The Criminal (cont.) Gender Far more men than women arrested Urban life Drug addiction White-collar crime Bribery, bank fraud, embezzlement, tax fraud, price-fixing Copyright © 2016 Cengage Learning. All rights reserved. 26

27. THE ELEMENTS OF CRIME Copyright © 2016 Cengage Learning. All rights reserved. 27 How much should the law regulate individual conduct when it endangers society at large?

28. THE ELEMENTS OF CRIME The Victim Highest rates of victimization occur in poor sections of cities Often in neighborhoods against friends and families of the criminal Young, African-American, and residents of metropolitan areas more likely to be crime victims Copyright © 2016 Cengage Learning. All rights reserved. 28

29. THE ELEMENTS OF CRIME The Victim Victims have right to be informed of investigations and court proceedings Copyright © 2016 Cengage Learning. All rights reserved. 29

30. TEXAS CRIME RATES SINCE 1990 Copyright © 2016 Cengage Learning. All rights reserved. 30 a Total of violent and property crimes (burglary, theft, and motor vehicle theft) per 100,000 population. b Murder, rape, robbery, and aggravated assault.

31. THE DUE PROCESS OF LAW Proper procedures designed to promote justice and protect the individual from the government. Due process is essential to guaranteeing fairness before the government may deprive a person of life, liberty, or property. Copyright © 2016 Cengage Learning. All rights reserved. 31

32. THE DUE PROCESS OF LAW Searches 4 th Amendment prohibits unreasonable searches Probable cause Sufficient information to lead a “reasonable person” to believe that evidence is probably contained on the premises and thus a warrant for the invasion of privacy is justified. In Texas usually determined by JPs 32

33. THE DUE PROCESS OF LAW Searches The exclusionary rule Pursuant to the 4 th Amendment illegally obtained evidence may not be used against the accused Mapp v. Ohio made the exclusionary rule applicable to the states 33

34. THE DUE PROCESS OF LAW Searches Exclusionary rule exceptions Evidence may be admitted when law enforcement agents acted on a search warrant they believed valid when it was not. If agents would have otherwise discovered the evidence during a routine legal investigation. If the otherwise illegal evidence is seized for tax purposes rather than a trial. 34

35. THE DUE PROCESS OF LAW Arrests that an individual looks suspicious does not by itself justify an arrest warrant Warrants issued when presented with probable cause that the person has committed a crime. a prosecutor files for a writ of information. a grand jury issues an indictment. 35

36. THE DUE PROCESS OF LAW Detention The right to remain silent Overly aggressive police officers extracting confessions from an individual is a violation of the 5 th Amendment. Miranda v. Arizona extended this constitutional protection to the states. Miranda warning is required even if public safety is endangered. 36

37. THE DUE PROCESS OF LAW Pretrial Court Activities Arraignment Initial appearance before a magistrate in which the charges and basic rights are explained. The charges The right to an attorney Copyright © 2016 Cengage Learning. All rights reserved. 37

38. THE DUE PROCESS OF LAW Pretrial Court Activities Setting bail The Texas Constitution guarantees the right to bail immediately after arrest. Texas recognizes personal recognizance bonds. Bail can be denied where proof is evident in capital cases. Bail can be denied if the defendant is charged with committing a felony while released on bail. Copyright © 2016 Cengage Learning. All rights reserved. 38

39. THE DUE PROCESS OF LAW Pretrial Court Activities (cont.) Examining trials An initial court hearing to determine if there is sufficient evidence to send a case to a grand jury. Formal charges Pretrial hearings Copyright © 2016 Cengage Learning. All rights reserved. 39

40. THE DUE PROCESS OF LAW Pretrial Court Activities (cont.) Plea bargaining Reasons given by prosecutors for agreeing to plea bargains Dockets are overcrowded. It saves taxpayers money. In doing so, evidence is gathered about fellow criminals. Copyright © 2016 Cengage Learning. All rights reserved. 40

41. THE DUE PROCESS OF LAW The Trial Right to counsel guaranteed by 6 th Amendment The assigned counsel system in Texas has been criticized for cronyism when judges assigned campaign contributors to the cases of poor defendants. Copyright © 2016 Cengage Learning. All rights reserved. 41

42. THE DUE PROCESS OF LAW The Trial Trial by jury Voir dire questioning The initial questioning of jurors to determine possible biases. The adversary system Compulsory process The power to seize evidence and to force witnesses to testify under oath. 42

43. THE DUE PROCESS OF LAW The Trial The adversary system Each side can challenge the material evidence. It is a violation of due process for the government to withhold evidence. Each side can cross-examine witnesses. The prosecutor has the legal responsibility to prove guilt beyond a reasonable doubt. 43

44. THE DUE PROCESS OF LAW The Trial (cont.) Change of venue defendant in a criminal cases requests that the location of the trial be changed The jury charge The verdict The sentence Probation Copyright © 2016 Cengage Learning. All rights reserved. 44

45. THE DUE PROCESS OF LAW Post-Trial Proceedings A person who is acquitted cannot be tried again for the same offense. The appeals process Copyright © 2016 Cengage Learning. All rights reserved. 45

46. THE DUE PROCESS OF LAW The Special Case of Juvenile Courts Texas replaced all adult criminal procedures in juvenile cases with special civil procedures. Children as young as 14 may be certified to stand trial as adults. Copyright © 2016 Cengage Learning. All rights reserved. 46

47. JUVENILE OFFENDERS Copyright © 2016 Cengage Learning. All rights reserved. 47 Children tried as adults seem to be more likely to commit future crimes than those who are dealt with in the juvenile system, according to the U.S. Centers for Disease Control and Prevention. Texas allows children to be tried as adults at age 14. How should the legal rights and responsibilities of children differ from those of adults? How should the legal rights and responsibilities of children differ from those of adults?

48. REHABILITATION AND PUNISHMENT Felony Punishment Probation State Prison (TDCJ) Parole After an initial say in prison, prisoners serving the remainder of their sentences under supervision in the community. Not automatically granted Parole less expensive than incarceration 48

49. REHABILITATION AND PUNISHMENT Misdemeanor Punishment serve their terms in jails operated by local governments, usually counties. Juvenile Rehabilitation Most juvenile offenders handled by county authorities. Minor offenders released (on probation) to the custody of parents or placed in county facilities. 49

50. REHABILITATION AND PUNISHMENT Clemency Three types of clemency are available: Pardon: designed to absolve a citizen from the legal consequences of his or her crime. Commutation of sentence: a reduction in punishment. Reprieve: a temporary interruption of punishment. 50

51. REHABILITATION AND PUNISHMENT Evaluating Punishment and Rehabilitation Policies Stated purposes of Texas jails and penitentiaries include: Punishment Isolation Deterrence Rehabilitation Copyright © 2016 Cengage Learning. All rights reserved. 51

52. FBI INDEX CRIMES RATES PER 100,000 POPULATION, 2012 Copyright © 2016 Cengage Learning. All rights reserved. 52

53. PERSONS IN PRISON, ON PROBATION, AND ON PAROLE PER 100,000 POPULATION * Copyright © 2016 Cengage Learning. All rights reserved. 53 Does Texas have a high rate of imprisonment because it has a high crime rate, or does the state’s conservative political culture explain the high rate of imprisonment? *Prisoners reported per 100,000 residents; probationers and parolees reported per 100,000 adults on December 31, 2012.

54. REHABILITATION AND PUNISHMENT Sizing Up the Death Penalty Debate The case for the death penalty The case against the death penalty Texas executes more convicted capital felony inmates because Texas follows through to execute a larger share of its death row prisoners. Copyright © 2016 Cengage Learning. All rights reserved. 54 What are the ethical reasons to keep the death penalty? What ethical arguments can be made to abolish it?

55. TRACKING TRUANTS Copyright © 2016 Cengage Learning. All rights reserved. 55 Click on picture to view video

56. VIDEO DISCUSSION QUESTIONS 1.Why do most states treat juvenile offenders differently than adults? 2.Is GPS monitoring an appropriate sentence for this student? Is it likely to permanently change his behavior? 3.How do schools benefit from involving the courts in truancy cases? Copyright © 2016 Cengage Learning. All rights reserved. 56