1) American criminal law comes from a number of sources, including the common law, state-written statutes, and federal statutes. Common law was initially derived in England, and it has been passed down and memorialized through judicial interpretation in the United States. This is “judge-made law.” State statutes are generally written by state legislatures, and they are updated on a yearly basis. This can cover a wide range of different activities, from violent crime to drug crimes. The federal government only has the ability to criminalize things that impact interest commerce (like drug distribution) and things that involve federal employees (like trying to blow up a federal building). In all levels of law stare decisis is a concept that says judges should, if possible, not change settled law. This means in the criminal justice context, that rulings provided by higher courts and previous courts are not to be disturbed. Higher courts can overrule lower courts, and at times, a court can overrule its own previous ruling, but maintaining the law is favored.
2) In practice, a defendant is presumed innocent, and the state has the full burden of proving beyond a reasonable doubt that the defendant is guilty. Juries get to decide what a “reasonable doubt” looks like, and in most states, judges will not offer a distinct explanation of reasonable doubt during the jury selection process. Jurors are also excluded if they show that they cannot abide by these standards. In practice, the majority of people who make it onto juries believe, at least on some level, that a defendant would not be in court if he had not done something wrong. The presumption of innocence is largely a legal fiction, as human nature ensures that people who are accused of crimes receive very little benefit of the doubt. The playing field is not leveled in practice by this.
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3) The right to a jury of one’s peers has traditionally served to limit the power of the government and its actors. It involves the public in the process, and it serves as a check on both the law and the people who are charged with upholding the law. The trier of law is a judge. The judge gets to decide legal interpretations, making rulings when there is disagreement between the parties on how the law should shake out. The jury, on the other hand, gets to decide issues of fact. They listen to testimony and have the right to determine which set of facts they believe in any given case. In some cases – so-called “jury nullification” – juries have the right and ability to disregard the law when they think the law runs afoul of their notions of justice. This is controversial because, generally speaking, juries are required to apply the law rather than critique it.
6) Due process is designed to ensure that the US government is not allowed to take things from people without first going through some process. This is memorialized in the US Constitution in the form of both substantive due process and procedural due process. Later, the Bill of Rights provided more due process rights. The fourth amendment, for instance, restricts the ability of the government to search and seize people in certain instances. Likewise, the sixth amendment provides the right to a fair and speedy trial. This particular amendment can be applied in a number of cases. Any time a person receives a court-appointed lawyer, he or she has been afforded due process rights memorialized in the sixth amendment.
7) Retribution is society’s attempt to show its outrage that a person has decided to break the social fabric by committing a crime. It seeks, in some respects, revenge on behalf of the state for the breaking of the social contract. Deterrence can be broken down into general and specific categories, and in either, it seeks to discourage or keep people from committing crimes in the future. General deterrence means that by punishing a crime, society sends a message to all offenders that a certain action is not allowed. Specific deterrence applies to punishments of individuals. By putting a person in jail, that person will be deterred from future crime.
8) In state systems, many judges are elected to their positions in either non-partisan or partisan elections. District attorneys are generally elected as well. Assistant district attorneys, on the other hand, are hired like any other employee at the pleasure of the elected DA. In the federal system, judges and US Attorneys are appointed by the president. The president will appoint federal judges for life. This removes from their prospectus any political pressure. Many people believe that elected judges are a bad idea because those judges might be influenced in their judging by political motives. This is especially true in the criminal realm, as the public almost always pushes for harsher punishments and “tougher” judges.
9) The eighth amendment’s prohibition on cruel and unusual punishment reflects this line of thinking, as society has stated its opposition to certain types of punishment. This amendment has been found, however, not to restrict the state’s ability to kill its own citizens through the death penalty. The Enlightenment had many ideas that go against torture and capital punishment. For one, this period sought to limit the power of a centralized government, and capital punishment is arguably the biggest right a people can give to a government. Likewise, this period emphasized the sanctity of human beings. Human life was found to be sacred, especially in the wake of the Middle Ages, when life was so unsacred. This led to a desire to remove torture and capital punishment.
10) The sixth amendment is designed to ensure that all people – regardless of their financial standing – have the ability to get a fair trial by relying on a lawyer at trial. Gideon v. Wainwright was the case that established this, as Clarence Gideon argued, quite ironically, on his own behalf. He argued that being deprived of a lawyer in his criminal trial in Florida deprived him of a fair trial. Unfortunately, this ruling has been undermined by SCOTUS rulings like Strickland, which set the bar incredibly low for effective assistance of counsel. In addition, it was left up to states to determine how they would fund public defender systems. Many states use court-appointed attorneys who are overburdened with cases and not provided the resources – financial or otherwise – to do a good job at trial.
