. Should factually guilty offenders still be prosecuted even though Due Process has been violated or should Due Process always take precedence? Why?

Should factually guilty offenders still be prosecuted even though Due Process has been violated or should Due Process always take precedence? Why?

#1Jessica

WRITE THIS ESSAY FOR ME

Tell us about your assignment and we will find the best writer for your paper.

Get Help Now!

In your response posts to the student identify as to why you are agreeing with Jessica’s post. Please keep it positive, professional and give a scholarly response.

Top of Form

1. Shouldfactually guilty offenders still be prosecuted even though Due Process has been violated or should Due Process always take precedence? Why?

Due Process is there for a reason. Our Constitution was fought for so that we could have rights and those rights should absolutley be observed. In a perfect world, every criminal would be prosecuted, but at the same time, because I feel both models go hand in hand, how do we know for sure they are truly guilty if we dont follow Due Process? Alot of things can go wrong, be forgotten or end up missing, if Due Process is not followed. However, there are times when Due Process may be a simple administrative technicalityand that should not be a reason to let a factually guilty offender go free. However, if the shoe were on the other foot, and the person was innocent, that administrative technicality could be the difference between being found innocent or guilty. So for me it is hard to give a definitive answer if I am looking at it objectively.

2. Describe a real or hypotheticalsituation in which the pure DueProcess model fails to repress crime to acceptable levels. What should be done to rectify the situation?

Just as I stated in the first question, administrative technicalities or even interpretation of law directly from the books versus law in action, could cause failure in the repression of crime. For example, if we know a person is guilty through evidence and facts, but a lawyer forgot to mention something to another attorney, someone was late or did not show, evidence was not secured properly, someone forgot to ask a question, add or edit a document, an officer forgot to mirandize and the list goes on, then we let a guiltyperson go free because of a technicality. I believe there are situations that require you to do things by the book, but in reality, because laws directly from the book are only theoretical and fail to incorporate real life people versus the true application of the law, it fails to cover areas that often end up in the grey.

3. Where do you, personally, fall on the Crime Control/Due Processspectrum?

I am right in the middle because as mentioned previously, I feel that they both work together and should not be used independently. Due Process is needed to preserve our rights and ensure that things get done effectively and efficiently, but it is alsofor our protection that Crime Control is in effect and is in fact being repressed to make this world a safer place for us as well. However, one should not hinder the other but they should help each other get the job done. One should not be regarded any higherthan the other and everything cannot be done simply by the book, but there have to be exceptions on a case by case basis becauselife has never been black and white especially in the case of crime.

Reference:

Packer, H.L. (1968). Two models of the criminal process (webpage). Retrieved from http://www.hhs.csus.edu/homepages/CJ/Bikl%20two%20models%20of%20the%20criminal%20process.doc

Lisa In your response posts to the student identify as to why you are agreeing with Lisa’s post. Please keep it positive, professional and give a scholarly response.

1. Should factually guilty offenders still be prosecuted even though due process has been violated, or should due process always take precedence? Why?

I am going to start by saying that I would like to answer this question by stating that in certain situations or in specific cases, when a particularly egregious crime occurs, due process should be overlooked when the facts provide unequivocal evidence of guilt.  However, this would be based solely on an emotional response to the complete horror that must be felt by a victim and his/her family when an individual who causes grave injury is allowed to go free on a “technicality.”  However, I understand that this decision cannot be ruled by emotion and as such, I have to say, no, it should never be overlooked.  I understand that the law and its implementation cannot be arbitrary and decisions cannot be applied to some cases and not others, no matter how compelling the argument may feel or sound at the time.

Due process is a right that is guaranteed to the citizens of the United States in the fifth and fourteenth amendments to the Constitution and is the cornerstone of our legal system.  It is almost inconceivable to imagine how this could be challenged in any impartial manner.  For example, even if we wanted to allow certain evidentiary exceptions, how would/could that ever be defined in reasonable and fair terms applicable to all cases, not just one? Who makes the decision to overlook the violation?  What cases/situations would qualify without setting precedent in others?  I can think of no responses to even one of these questions that does not raise a host of other considerations that may be equally as unfair or unjustified as the original issue we are trying to resolve.

2. Describe a real or hypothetical situation (either a particular case or a set of circumstances) in which the pure Due Process Model fails to repress crime to acceptable levels. What should be done to rectify the situation?

I think the due process model fails in some cases of child sexual abuse, particularly intrafamilial abuse.  In these cases, it can seem like the alleged perpetrator is afforded more protections than the victim. For example, some attorneys know that children do not make good witnesses and as such, prosecutors end up offering plea bargains with sentences that do not begin to reflect the level of harm done; it reflects the nature of the difficulty in prosecuting the case. Children have a very hard time providing evidence against their parents, particularly when they are dependent on them and/or love them, despite the abuse.  Since individuals are innocent until proven guilty, unless a child protective services agency is involved and forces the alleged offender to leave the home, it may not happen.  While the legal process follows its course, a victim can be left to deal with the aftermath of his/her disclosure with limited support or even adversarial caretakers.  At times, because of this, by the time a trial rolls around, victims recant their stories because they simply cannot live with the consequences of the disclosure.  If they do not recant, they can be subjected to both examination and cross examination and their testimony is often the deciding factor in the case, with judges or juries ill informed about the particular psychological factors that may underlie their responses or lack thereof.

3. Where do you, personally, fall on the Crime Control/Due Process spectrum?

I fall on the spectrum between the two models.  I believe in due process and how important it is to respect the practices.  However, I also understand the need for efficiency, particularly given the vast resources it takes to truly enact and apply due process.  While due process can protect citizens from unfair prosecution, it is not equally applied; it is often driven by the resources an individual has to demand compliance.    Finally, as mentioned above, I become frustrated with the protection afforded alleged perpetrators, while victims’ needs often go unrecognized.

Baradaran, S. (2014).The presumption of punishment. Criminal Law and Philosophy,8(2), 391-406. doi:http://dx.doi.org.ezproxylocal.library.nova.edu/10.1007/s11572-013-9236-7

Stolzenberg, S. & Lyon, T. (2014). How attorneys question children about the dynamics of sexual abuse and disclosure in criminal trials. Psychology, Public Policy, and Law, Vol 20(1), 19-30.Bottom of Form