Kushay's Matter Bank Law and Security

[AK] Justice System

Source: Rifan Ibnu Rahman, Roderick Sibarani, Novelisa Wirid

Types of justice system:

Criminal justice system

Prosecution is part of the CJS. Criminal law is a violation against the state value. It is not designed to talk about damages or harm to certain individual but the damages against the states value. Harms can be a part of the prosecution; however, it should not be the sole parameter. The implication is that the feeling of victims is not the main part of the CJS (it is not enough for victims to just forgive the criminal Police will continue investigating because a crime has been committed against the state).

The infrastructure used to fulfill the CJS are most often state infrastructure, i.e. State prosecutor. This is also akin within the punishment, as the punishment used is a state punishment often in the form of prison. To start a criminal case, it is required to have an initial evidence that at least provide a reasonable suspicion that the suspect do a crime (prima facie). The finding of initial evidence can be done through state being the actor who find for it or by means of accusation (victim reporting such as in cases of domestic abuse). However, once reported, victim’s forgiveness become less important. Drop the charge very rarely can happen in CJS, most of them are in cases like fraud (where whether the existence of crime can be retracted later).

In a criminal justice system, the burden of proof is put under a beyond reasonable doubt. This means that an act is a crime if there are little to no doubt that the crime truly happens. This is a huge burden of proof. For example, the in existence of murder weapon can destroy the criminal means of conduct and this can easily set the accused free. Why is the burden of proof so high? Because the cost is so high as well, including imprisonment, destruction of reputation, etc. Generally, the punishment of a criminal law is bigger (imprisonment at most case). Therefore, caution needs to be applied.

When can a person be considered having done a crime?

1. Actus Reus

It is a concrete fact that this person has done a crime. Guilty action talks about whether the action is concrete (not only done but the likes of harms and the extent of which it happens). Study case: silence and being a bystander, fraud cases that only exist on the process or through manipulation, etc. Another interesting case is on whether materials that can inspire crime can be considered a guilty action.

2. Mens rea

There is an intention behind the crime. It is basically the motive behind a crime. Notice that evil intention does not mean premeditation. Negligence can be argued as an evil intention, even though it is not planned. An active willingness to do crime or allowing it to happen is enough to be considered as evil intention. Therefore, manipulation of data and fraud is also considered an evil intention. Granted this is a gray area where the debate often happens.

Warning: Don’t abuse the terms of acts Zeus and mens rea. It is the explanation that matters. Always explain the concreteness of the entire process of liability. Parallel examples or precedence can often aid the explanation.

What are the purposes behind the criminal justice system? (notice that sometimes you don’t have to argue for all, just the one that is relevant to your side. Also concede that sometimes your side cannot fulfill certain purpose, it is your duty to argue why the purpose that supports your side is more important than the one that you fail to give.)

1. Rehabilitation

Rehabilitation is the process of making the criminal a better person. There are two parts that are often debated here. Firstly, is a process of punishment maximizing rehabilitation? This is where you need to explain the process of how a person can change. Secondly, why is it important for rehabilitation to exist in CJS? Notice that often there is a conflict between rehabilitation and retribution or deterrence. This is where you need to explain why people deserve a second chance and such. For example, through the explanation of environmental causes that create the criminal (lack of education, bad family environment, etc.).

Eventually, this boils down to what is important to the state. The state is designed to be an education institution that educates the society to be able to coexist and develop. This is to say that peace should go beyond an absence of conflict that comes from killing all the bad guys but a genuine peace in which bad guys know they are wrong and change.

Tips: Always think of the box. Consider the features that are most relevant to the motion. Example: talk about the homogeneity of the prison, the population of it or other process. Remember that a single punishment can easily have diverse features.

2. Retribution:

Retribution is the payback done by the criminal to the victim of the crime. It needs to be proportional. The famous jargon is an eye for an eye. The reason behind why this is important is that the state is designed to maintain public order. If damage to the victim is the consideration, what happens if the victim does not feel damaged? This is where we return to the harms to the state. Obviously, this is debatable. Opponent of a victim harm retribution basically talks about how immoral the crime is. Rather than talking about proportionality, it focuses on how immoral the action is. Degree of punishment is the metric here. This is where argument of intentions rises, for example: killing just because your target is a woman is immoral.

Tips: Statement of how immoral the act can be a principle of retribution. So, it can go beyond proportionality.

There are several arguments of fairness that can be put within retribution of framework. For example, harms that happen after the punishment is over. Example of extension of harm: whether one should vote in prison (talk about the leaders you have once your term is over), same principle goes in conjugal visits. Countering these ideas are by saying that this is not a direct harm but an externality.

3. Isolation or Confinement:

Usually the type of confinement is important. There is a debate about protection, to what extent should it go. A general purpose on why this is important is on protecting the innocents. The possibility of future imposition on harms is why criminals need to be confined first till they change.

Tips: there are so many creative applications for isolation purpose. For example: putting evil religious leaders to jail to prevent dangerous ideals to spread. Another example is on whether prisoner can vote. It can be argued that prisoners don’t have the capacity to make such choices, potentially creating harms in the decision they make. Point is, containment goes beyond the physical, but even the ripple that it can create.

4. Deterrence:

In a modern debate, deterrence most of the time has the least merit (not that it is not important). So basically, deterrence is made to uphold public order. This is the stick and carrot narrative. An imposition of fear made for society. The question becomes what deters people? There is a burden to prove why certain punishment is the only way to deter people. Study case often shows how the harshness of punishment is not deterring, however frequency of capture is more deterring. This is because people are more afraid on the likelihood of them getting capture (because when criminals do crime they think they are not afraid). Basically calculate the risk that comes to the criminals.

An interesting approach is on how people accept deterrence. That is, the use of fear becomes dangerous when people are habituated to the fear. Maybe at one point, the imposition of fear is no longer fearsome to you. This is where rehabilitation is very important. Because those not educated when they are afraid can become recidivist. This is where education becomes very important.

There is a chronology within the CJS: accusation (done usually by the victim), pre-trial (on whether the case should be tried upon), trial, verdict. Notice that there are intricacies within the process. For example, on what evidence is allowed, whether the trial will be a public one, etc. In some types of crime the process don’t need to go through the fair trial mentioned above. For example, some type of crime does not go through ordinary burden of proof, this is known as extraordinary crime. In an extraordinary crime, the interest of the state to have a prosecution is higher than the interest for fair trial (such as when there is an asymmetry of power like in corruption cases, etc.). So always consider the interest of the state.

Civil justice system

Suing can be both criminal and civil. The infrastructure used to fulfill civil litigation are most often a private entity, state at best shows up in the form of a judge. Civil litigation is all about a suing of an individual or a group of individuals. It deals about the material and immaterial harms that happen to the conflicting parties. A good study case will be divorce laws, cases like who get child’s custody are put into an adjudication. Often there is a gray area, such as in blasphemy laws. Some countries consider it as a civil matter, others a criminal, while some nonexistent.

In civil litigation, court is often the last resort. There are non-court alternatives such as arbitration. Civil court uses the burden of proof balance of probability. Meaning a 51% possibility that a crime is existing is enough. On some occasions, you can prosecute a criminal crime under a civil court. This exists upon the intersection of laws on some crimes, i.e. compensation to war crimes (the victim ends up being the one suing the suspect).

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