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Training of Trainers -Clearing the Backlog: Acceleration of Procedures for Resolution of PettyOffencesComparative Approaches:Relevant Lessons from The United StatesGerald E. Meyerman, Chief of PartyUSAID/Justice Sector Development Program II (JSDP II) gmeyerman@usaidjsdp.baJudicial& Prosecutorial Training Center for the Federation of BiHSarajevo, Bosnia HerzegovinaDecember 5 & 6, 2011
Disclaimer for Clarity: This Presentation and supporting documents were produced by the speaker, Gerald E. Meyerman, as Chief of Party of the USAID/Justice Sector Development Program II (JSDP II) Bosnia Herzegovina. The views expressed are entirely his own and do not necessarily reflect the views of the United States Agency for International Development or the United States Government
USAID JSDP II • A 5 year USD 8 million project in support of Justice Sector development. Follows up on JSDP I. • In partnership with HJPC, BiH MOJ and Judicial Institutions. • USAID JSDP II Works to Strengthen ROL through: • Strengthening judicial independence • A Better Cooridinated and Unified Justice Sector Oriented towards EU accesion; • Increased Public Confidence in the Rule of Law • Working Closely With Other BiH Institutions, CSOs/ Justice Network and International Donors.
Training the Trainer for Policy Development & Change Why Should the Backlog Concern Us?? “Justice Delayed is Justice Denied” Why are Systems Evolving? We have always done it this way ... - globalization & integration (ie EU , UN, WB) - technology brings countries closer together What Makes US / Anglo Saxon System Different from Most Continental Systems? - UK imposed controls on Kings/Queens as early as . voice for the people in taxes but also – right to confront accuser, juries, presumption of innocence, standard of guilt beyond reasonable doubt. - US has evolved further since 1776 – Royal Prerogative to States, Federal and PEOPLE
Are US and UK Systems the same? • Different iideologies drive the criminal justice in the United States and the United Kingdom. • U.S. system relies on a due process model that emphasizes the rights of the defendant, while the United Kingdom’s crime control model stresses the function of criminal justice to punish the guilty. • differences in court procedures in England and the U.S., England’s has a rigid system of conduct of barristers and solicitors while the US has a more informalproceedings focussed on the interests of the people and the accused. • UK shifted towards adopting a due process model, while the U.S. Focussed on crime control strategies. In recent years both trends seem to be reversing. (McKenzie (1994) )
UK Common Law vs. US Penal Codes • UK Courts continue to create NEW Common Law Crimes. • Most US states have abolished common law crimes. • Under US Constitution the legislatures are given the primary and often sole responsibility for defining illegal behavior.In a few States the EXECUTIVE plays that role. • few States still recognize common law crimes BUT judges generally are not permitted to create new common law crimes from the bench. • All 50 states and the District of Columbia rely on their Penal Code to shape the nature and scope of their jurisdiction's criminal laws • When the penal code designates an offense as a felony, misdemeanor, or infraction, that designation is normally deemed conclusive by the courts.
What can the US Learn from France? • The US might benefit from a variety of features in the French system such as: more careful selection and supervision of police, prosecutors and judges; more effective regulation of prosecutorial charging discretion; and increased use of alternatives to plea bargaining.(Source: Frase (1990)) BUT ..... WHAT can France Learn from the US??
WHAT can France Learn from the US?? Liberty Enlightening the World The Statue of Liberty was a gift of friendship from the people of France to the people of the United States and is a universal symbol of freedom and democracy. The Statute of Liberty was dedicated on October 28, 1886. • More similarities than differences • Historical French Civil Law system in Louisiana • Both Democracies rooted in the Rule of Law • Harmonization means recognizing & respecting common values – not all needs to be identical – US model interesting for structured dialogue discussions in BiH.
Criminal Justice: Common, Civil, Islamic and Socialist Models Four Main Systems:oufour systems of criminal justice: Common, Civil, Islamic and Socialist r systems of criminal justice: Common, Civil, Islamic and Socialist
How is Today’s Comparative Law Approach Relevant to BiH? • Comparative criminal justice studyassists to respond to current conditions transforming the world from a collection of separate nations into an interconnected and interdependent global system. • A comparative approach to criminal justice usefully contributes to finding solutions to the dilemmas and challenges that face the BiH criminal justice systems. Source: Freda Adler (1996)
Felonies, Misdemeanors, and Infractions • Every U. S. JURISDICTION retains the distinction between felony level criminal offenses and misdemeanor level offenses. • Most jurisdictions have added a third-tier of criminal offense, typically called an INFRACTION or PETTY offense. • US CRIMINAL PROCEDURE - different rules govern courts, defendants, and law enforcement depending on level of offense.
FELONY CRIMES • deemed the most serious class of offense throughout the US. Many jurisdictions separate felonies into distinct classes i.e. repeat offender convicted, first-time offender, level of violence, hatefulness etc. • Felonies are generally punishable by a fine, IMPRISONMENT for more than a year, or both. • Many felony crimes are still considered offensive to the moral – including TERRORISM, treason, arson, murder, rape, robbery, burglary, and kidnapping. • In many state penal codes a felony is defined not only by the length of INCARCERATION but also by the place of incarceration - federal - state or local prisons.
Misdemeanors: • A criminal offense that is less serious than a felony and more serious than an infraction, generally punishable by a fine or incarceration in a local jail, or both. • Frequently misdemeanors split into three classes, high or gross misdemeanors, ordinary misdemeanors, and petty misdemeanors. • Legislatures use such broad definitions giving prosecutors and judges flexibility in charging and sentencing frequently combining a fine normally assessed for a misdemeanor and an incarceration period normally given for a felony. • Gross misdemeanors is greater than that prescribed for ordinary misdemeanors and less than that prescribed for felonies, and some states even define a gross misdemeanor as "any crime that is not a felony or a misdemeanor" • Petty misdemeanors usually contemplate a jail sentence up to six months and a fine of $500 or less.
Infractions or Petty Offence • The violation of an administrative regulation, an ORDINANCE, a municipal code, and, in some jurisdictions, a state or local traffic rule. • In many states an infraction is not considered a criminal offense and thus not punishable by incarceration. • Such jurisdictions treat infractions nearly as civil offenses. Even in jurisdictions that treat infractions as criminal offenses, incarceration is not usually contemplated as punishment, and when it is, confinement is limited to serving time in a local jail. • Infractions are often defined in very broad language and may define as in Arizona "without either designation as a felony or a misdemeanor or specification of the class or penalty is a petty offense" IMPACTS POLICY AND PROCEDURES….
Procedural Consequences of Classification • Defendants charged with capital felony offenses (i.e. death sentence cases) are entitled to have their cases heard by a jury of twelve persons who must unanimously agree as to the issue of guilt. • Defendants charged with non-capital felonies and misdemeanors may have their cases heard by fewer jurors who, depending on the jurisdiction and may return a conviction on a less than unanimous vote. • Trial by jury is generally not a RIGHT for defendants charged only with infractions or petty offenses.
Police and Arrests • 4th Amendment to the U. S Constitution allows police to make warrantless arrests of suspected felons in public areas so long as the arresting officer possesses PROBABLE CAUSE that the suspect committed the crime. • Misdemeanants can only be arrested without warrant if the crime is committed in the officer's presence. • Police officers do not have the authority to shoot an alleged misdemeanant while attempting to make an arrest, unless the shots are fired in self–defense. • Officers generally have more authority to use deadly force when effectuating the arrest of a FELON.
Prosecution • PROSECUTOR: A lawyer who represents the people / the government in criminal cases (also known as the District Attorney or A.D.A., the People, or the prosecution). Many are elected in the US. • Voice of the people with legal and ethical limitations. • Interacts extensively with police and defence attorneys – as well as with Court. • Defendants may be charged by information (a formal written instrument detailing setting forth the criminal accusations against a defendant) when they are ACCUSED of a misdemeanor • Most US jurisdictions require that defendants be charged by a GRAND JURY when they are accused of a felony based on evidence presented by Prosecution.
COURTS and JUDGES • Most Judges at all levels are QUALIFIED AND RECOMMENDED by their peers – the Bar Associations. • Most senior level judges are appointed by governments and confirmed by legislatures to serve until age 75. • In many jurisdictions Judges are elected for limited terms. • Most criminal courts have limited jurisdiction over the kinds of cases they can hear. • Federal courts do not have the power to punish any act that is not forbidden by federal STATUTE. • A court with jurisdiction over only misdemeanors has no power to try a defendant charged with a felony.
LEGAL AIDE & PRESENCE IN COURT • Defendants charged with felonies or misdemeanors that actually result in confinement to a jail or prison are entitled to the advice and representation of a court appointed COUNSEL. • Defendants charged with infractions or misdemeanors that do not result in incarceration are not entitled to court appointed counsel. • Accused felons must generally be present during their trials. Can be excluded for cause. • Accused misdemeanants may agree to waive their right to be present and/or be represented by Counsel. • Many Petty Crimes can be disposed of by correspondence or on line – guilty plea and payment of a fine.
Pre-Trial Disclosures, Admissions, Fact Finding and Stipulation • Heavy US emphasis on “DUE PROCESS” and protection of the accused – especially in death penalty cases. • Limits on Police, self incrimination; strict rules of evidence. • Prosecutors “the PEOPLE” must disclose evidence, no ambushes, no suppression of exculpatory evidence, strong focus on ethics. • Evidence from “Grant Jury” only to impugn witness on stand • Extensive meetings with Defence Counsel BUT NEVER with Judge regarding a case without Defence Counsel present. • Prosecution/ Defence can “stipulate” – ie agree on some facts. Trial judge will lean on both parties before trial starts.
Especially in Economic Crime Cases – tax, competition, etc • Incredible complex, frequently many accused, multiple jurisdictions, expert witnesses, etc. – many questions of “evidence” • Dealt with in “Pre-Trial Motions” – i.e. No ’probable cause’ for arrest; suppress admission of guilt; exclude evidence illegally obtained; competence of witnesses. • Forensic, scientific, economic evidence: court may order a “mini-trial” to determine the validity of the theory on which the evidence is based. As an example, DNA evidence had to go through many mini-trials before it became generally accepted as valid evidence at trail.
INTRODUCING PLEA BARGAINING • Can only be effective if independence and integrity of CJS is respected. • A CJS deemed corrupt or not independent will suffer consequential disadvantages causing negative impacts to outweigh potential benefits. • BiH in advancing plea bargaining system must conduct a self-analysis and determine whether the initiative can be sustained. • Consider cross over for plea bargaining and alternative conflict resolution and restaurative justice opportunities – especially for infractions and petty crimes
Alternative Conflict Resolution (ACR) Mechanisms Is ACR APPLICABLE, RELEVANT and USEFUL to CJS? - Petty Offences - at nexus of civil and criminal law – probably, BUT ... the OBJECTIVE of criminal law? Important “point of entry..” Typically Five objectives for enforcement of the criminal law are:
An Example – State of Chihuahua, Mexico • Pop. 1 million, Northern Mexico, lawless, cartels, etc. • “Law on Alternative Penal Justice” 36000 crimes (2008) • ACR operated by 65 “intake workers” and 65 “case conciliation workers” – 130 workers total PLUS CJS. • 8000 wrongdoer not identified; 16000 NOT CRIMINAL EVENT – referred to social agency for resolution. • 200 more serious cases referred to prosecutor/police – of which 14 resulted in full criminal cases. • Of remaining 11,800 just over 10,000 resolved – by the Accused admitted guilt; asked victim forgiveness, paid compensation. IS THIS ENOUGH?
Criticism and Suggestions Applicable to BIH • Frequent concern - treating criminal offences as a PRIVATE matter, who protects PUBLIC interest in suppressing crime? • Example: car thief – steals 9 cars, caught with the 10th. “Sorry, please forgive me , here is your car back..” – Enough? Insurance Policy? CIVIL and CRIMINAL tension. • MY VIEW – Colombia – deterrence/ “zero tolerance policy” – ACR yes BUT with full criminal record, mug shot, fingerprints, DNA and suspended sentence – by a Judge from Bench. • NOT “arbitration” nor “private contract” – the CJS informed and BRIEFLY involved. Helps fight “impunity” argument • CANNOT be implemented by CJS alone – NEEDS a “Pre-Trial Service Department attached to each Court – BUT ... Cost effective. • CJS staff, media and CSOs (Justice Network?) must be involved.
In Conclusion • Backlogs Undermine Public Confidence • Triage of cases is good – not all of equal consequence • Optimal timelines – “Justice delayed is Justice Denied” • CJS PROCEDURE will not ‘FIX” backlog. • Lots of International Experience with ACR in CJS • Involve victims, CSOs and media • DO NOT create appearance of IMPUNITY • Do not think this can be done UNILATERALLY by CJS • It will “safe money” ultimately but investment needed • TRAIN Prosecutors, Judges, Administrators, Police and Pre-Trial ACR staff
