Comparative analysis of criminal justice systems

Criminal Justice

Substantive vs. Procedural Law

Substantive law includes laws that "create, define and regulate legal rights and obligations" whereas procedural law governs and defines rules law enforcement agencies use "to enforce substantive law" (ICMBA, 2007). Examples of substantive law include the rules governing contract law, which determine whether agreements are binding and enforceable (Kubasek, Brennan & Browne, 2006, p. 31). Procedural law tells law enforcement agents and other representatives how to obtain relief for violations of the law when breaches of substantive law occur (Kubasek, Brennan & Browne, 2006, p. 32).

Related to these two concepts according to Kubasek, Brennan & Browne (2006) are substantive and procedural due process; the former requires that laws that "deprive individuals of liberty" or their freedom, or property, be fair and just (p. 129). Procedural due process focuses on the steps involved in informing an offender of their rights, including their right to a fair and just trial, and the ability to confront an accuser prior to persecution or loss of property or freedom Kubasek, Brennan & Browne, 2006; Keynes, 1996).

Procedural due process stems from the fifth amendment of the constitution of the United States, which protects individuals and offenders from "self-incrimination" in many cases and protects individuals from being tried more than once for a specific crime (Kubasek, Brennan & Browne, 2006, p. 128). This process is applied in many settings, with procedural law applying not only to criminal behaviors involving incarceration but also in employment policy and procedure, public welfare procedures and more, as each requires formal steps outlining what the incumbent may or may not be entitled to in any given situation (Kubasek, Brennan & Browne, 2006). Substantive due process and law simply works to ensure that restrictions in liberties afforded by the fifth amendment are handled in a manner that is fair and just, so that laws are not made without consideration of one's rights, even if an individual has committed a crime worthy of punishment (Kubasek, Brennan & Browne, 2006).

Various Forms of Police Structures Throughout the World

There are varying policing structures throughout the world, including those in Japan that emphasize a more empathetic and rehabilitative policing structure, where police agents are encouraged to take on a more parental role in rehabilitating criminals, to that of a more socialized policing system, as that in China, where crime is addressed under more stringent and directed manners (Weiss, 2000). In Poland, the criminal justice system is described by Weiss (2000) as one that is privatized, represented by "growing state repressive arsenals" where corporations and individuals have more control over security and where policing takes on many different forms, reflecting formal state sanctions throughout regions of Poland (p. 1). This compared with private security firms in China that operate more as "wholly owned subsidiaries of the state Public Security Ministry" (Weiss, 2000, p. 1). Privatization is a model used in many countries aside from Poland, including in Brazil, and is often used to "deconstruct the political and state-organized nature of violent social control" many associate with other forms of policing (Weiss, 2000, p. 1). Many suggest that privatization is the key to promoting less violence, however, there is the possibility of increased brutalization and terror under such systems (Weiss, 2000).

The U.S. alternately has adopted a more democratic and state governed policing structure, whereby the Constitution governs the legal processes that embody the policing structure (Kubasek, Brennan & Browne, 2006). In the U.S., there is a greater likelihood for non-violent offenders to become incarcerated, most of which consists of "poor, uneducated youths" (Weiss, 2000, p. 1). There are some that feel that greater privatization may allow for more structure and allow a "cost-benefit" capitalization model of policing in the United States where rather than suffer incarceration, those incarcerated for mild offenses would be assigned employment and be forced to serve their term in the way of labor for private entities (Weiss, 2000, p. 1).

Pizzi (1996) comments that many view the American criminal justice and policing system as among the harshest of all, yet many see that our "elaborate system of constitutional rights" actually affords offenders or those accused of crime more opportunities and rights for defense than in other countries, especially those that privatize the policing system (p. 60). In privatized countries, those actually persecuted for violent activities are often brutally punished or maltreated, to the point of death in some instances (Pizzi, 1996). Pizzi (1996) on examining policing systems globally concludes that criminals would likely prefer to be tried in the United States than anywhere else in the world, because the United States treats defendants with more sympathy and protections than one might receive elsewhere, even in countries that emphasize empathy and protections for non-violent or juvenile criminal activities.

Patterns Juvenile Delinquency Throughout the World/How Determine Who Juvenile?

Patterns in juvenile delinquency also vary throughout the world, as do the way countries define "delinquency" among juveniles. The Japanese according to Platt (2005) have taken on a much more philosophical approach to juvenile delinquency, supporting a Confucian style structure of education and support, one that works toward educating children to become part of the larger social collective (p. 965). In this environment, children are encouraged to become more socially aware and to self-regulate, often given the opportunity to reform before they are punished for wrongdoings.

This conflicts sharply with juvenile delinquency programs and structures elsewhere in the world. In Australia, juvenile delinquency is often associated with being a member of a juvenile gang, which is defined as "youth hanging out on the streets with gang activity" or street activity that has the potential to lead to mischievous behaviors (Duffy & Gillig, 2004, p. 2). Illegal activity is addressed when territorial behaviors are engaged in, whether or not juveniles act criminally in many cases (Duffy & Gillig, 2004). In Brazil, juvenile delinquency is seen as more common, and associated with children "of the streets" which comprise primarily homeless children who authorities state often engage in crime "to survive" thus are much different according to Brazilian authorities, who promote privatization of policing, than the "street gangs of Chicago or Los Angeles" (Duffy & Gillig, 2004, p. 3).

In the United States, there is more often a mixture of males and females associated with gangs than in other countries, where more commonly male juveniles from ages 12 to 24 may be associated with "juvenile" type crimes (Duffy & Gillig, 2004). This compared with the United States, where typically a child is considered a "juvenile" and subject to imprisonment in juvenile detention centers, rehabilitative centers and subject to more lenient and rehabilitative sentencing to the age of 17 or 17 (Duffy & Gillig, 2004) except in cases involving malevolent crimes, such as homicide or crimes with proven malicious intent, including rape (Duffy & Gillig, 2004; Keynes, 1996).