Law and Order and Due Process in Texas

 

Criminal Law (punishment for violations of penal code) and Civil Law (remedy sought to redress injuries [injustices/wrongs]; seeking relief or compensation)

            Juvenile Law: subset of civil law—assignment to a reform school for the purposes of correcting delinquency rather than punishing for wrongful behaviour

 

Civil Law:

English Common-Law System:

            --judge-made law

            --based upon precedents set in past cases (principle of stare decisis—letting the verdict stand, not upsetting the legal applecart with new interpretations of the law, allowing for continuity over a long period of time in interpretation of the law)

            --followed by the United States and in 49 states (Louisiana operates on the statutory/Napoleonic Code system)

 

Statutory Law (from the Roman Law/Napoleonic Code model, common in Continental Europe):

            --laws codified by the legislature

            --sometimes in Texas, and in the US in general, incorporates principles originally set forth in common law

 

Subsets of Civil Law:

            Family Law (involving marriage, divorce, child custody, community property between husband and wife, etc.)

            Homestead Law (involving rights to land holdings, property that an owner cannot be forced to sell for payment of most debts, except tax liens, home-improvement loans, mortgage loans for initial purchase of property, home equity loans; protected homesteads include the house and 200 acres in rural areas, the house and one acre in urban areas, and cemetery plots)

            Probate Law (assessment of legal validity of wills/testaments, distribution of property according to the will or, in the absence of a will distribution will be at a court’s discretion in accordance with the law; arrogation of property to the state in cases in which a person dies without any living relatives to inherit his/her property)

            Property Law (e.g., laws regarding state’s right to eminent domain [seizure of private property for public use must be compensated, property owners may sue the state if the property value may decline by 25%+ ; RIGHT OF PROPERTY OWNERSHIP DOES NOT INCLUDE MISUSE OF IT—e.g., anyone may own a gun [within legal limits] but no one may use it in a murder; anyone may own a home, but no one can use it as a bordello; anyone may own a factory, but no one may pollute above the legal limits; anyone may own a private country club, but no one may discriminate among races, ethnicities, or religions for admittance [in most cases today]; anyone can own chemical lab equipment, but no one may use it to produce crystal methamphetamines)

            Administrative Law: has the same binding effect as civil law—usually enforceable in civil courts

                                --individual persons are legal entities

                                --corporations are recognized as legal entities

 

 

Contract Law: valid agreements between private parties are enforceable in courts of law

            --courts must often decide if contracts are valid, and if they are valid, then if they have been breached by a party being sued for breach of contract or if the state has created a law impairing the obligations of contract that must then be held unconstitutional (cf. Lochner v. New York, US Sup. Ct., 1905)

            --labor law often comes under this area of the law: Texas right-to-work laws forbid contracts between labor and management that establish a closed shop (management agrees to hire only union members) or a union shop (management requires all employees to join a union or be terminated)

 

Slander and Libel: Spoken or Written defamation of character or reputation. Those defamed may sue for damages to recover monetary compensation for what may be lost in reputation and earning potential due to the comments made

 

Negligence: failure to act with prudence or care that an ordinary person would exercise

            --one’s actions result in bodily or emotional or other form of injury

            --the negligent one is liable for damages

            --personal injury suits (tort actions); tort reform has become a common campaign issue today as well as a political issue in several legislative sessions—attempting to end frivolous lawsuits that consume court time/energy/money and result in higher consumer prices and/or reduction in profits for businesses or professionals

                        --Texas legislators have passed laws restricting lawsuits filed by prison inmates, limiting liability in multi-defendant cases or cases involving government employees, enforcing residency requirements for plaintiffs, reducing frivolous lawsuits, capping punitive damages, limiting medical malpractice and pain/suffering damages

                        --insurance companies look for tort reform to solve the problem of having to pay out outrageous claims and avoid having to jack up premiums for their customers

                        --physicians seek tort reform to avoid the higher costs of malpractice insurance and having to worry about lawsuits for failed treatments that have always carried high risks in the first place; doctors today are hesitant to engage in risky treatments because of fear of lawsuits

                        --schools and universities would like to see tort reform to avoid having to deal with irate parents and guardians or students who charge them with discrimination or injury or other forms of civil negligence; instead, today, they cannot discipline students and foster a safe and effective learning environment as well as they once could

 

Criminal Law:

 

The states are responsible for approximate 95% of all criminal prosecutions in the US. The national government does not criminalize most activities that are today illegal

            Federal crimes are limited to: those committed on the high seas; those committed on federal property, territories, or reservations; those involving interstate commerce/transportation; those committed against national government employees while engaged in official duties, or the government itself

            State crimes are the vast majority of wrongs for which prosecution is possible: e.g., murder, rape, robbery, burglary, assault, speeding, jaywalking, stalking, theft, state tax evasion, cattle rustling, etc., etc., etc.)

 

Large-scale obedience of the law requires acceptance of the values protected by the law.

 

Felonies: serious crimes against society, for which fines and prison sentences involve substantial costs to the offender. (e.g., murder, rape, robbery, burglary, grand theft, arson, cattle rustling, etc.)

 

Misdemeanors: minor crimes against society, for which the fines and sentences are usually below $4000 and 1-year in jail (e.g., stalking, minor drug possession, minor DWI, petit theft, possession of flounder <12 inches, etc.)

 

Who are the criminals?—Typical criminals are young, poor, male minorities.  There are also disproportionate numbers of juvenile offenders (approx. 18% of major felonies are committed by juveniles nationwide)

            --many juvenile offenders go on to commit more serious crimes as they age

                        --little in the way of serious rehabilitation efforts in state reform schools or prisons.  Most prisons today act as human warehouses where crime is bred

            --men account for the vast majority of criminals (though women are gaining ground on them)

            --minorities disproportionately arrested and convicted in relation to Anglos, but even accounting for prejudice and bias, minority communities are subject to higher crime rates statistically.

            --poverty is a major cause of crime

                        --lack of $$ or substantial alternatives to committing crimes

                        --lack of education (most offenders in the TX prison system have less than a 12^th grade education)

                        --urban areas are more crime ridden than rural areas

                        --drug and alcohol addiction are factors in many crimes, either as causes (people doing what they wouldn’t do if they were clean) or as motivation (to finance expensive habits)

                        --sense of marginalization and victimization by society; where most criminals live perpetuates despair, low self-esteem, and weak emotional ties to “legitimate society”

                        --white collar crimes usually punished less severely than other crimes; usually are engaged in by higher class, educated, white majority.

 

 

Law Enforcement:

 

Legislature defines crimes (in most instances; in some instances, the Congress defines a crime)

            --the vast majority of law enforcement responsibilities fall upon local authorities (city police and county sheriffs); state law enforcement agencies bear little responsibility in most affairs.

            --little coordination among law enforcement agencies (partly due to a fear of a centralized police force) => confusion, mishandling of cases, low solve and arrest rates

 

State Law Enforcement:

            Usually rather specialized

                        --Department of Public Safety (headed by the Public Safety Commission, and a commission-appointed executive director)

                                    --highway patrol

                                    --Texas Rangers

                        --Alcoholic Beverage Commission (3-member commission, appointed by governor); administrator responsible for enforcement of state laws/regulations regarding manufacture, sale, and possession of alcoholic beverages.

                        --Commission on Law Enforcement Officer Standards and Education

                                    --sets minimum standards for peace officers; enforces basic training requirements before licensing of peace officers (city police, county sheriffs, DPS officers, Texas park rangers, constables, etc.)

 

Local Law Enforcement Agencies:

            These bear the heaviest burden of law enforcement

                        --County Sheriffs/sheriffs’ deputies

                                    --sheriff is elected by the county voters; deputies are appointed

                                    --operation of the county jail

                                    --usually leaves most law enforcement in urban areas within the county to the city police departments

                        --Constables

                                    --elected from the Justice precincts of the county (1-8) for 4yr term

                                    --work with JP to maintain court order, serve legal papers

                        --City Police

                                    --usually better trained and qualified than sheriffs’ dept. employees

                                    --operate within the city limits

                                    --accountable to the mayor/city manager/city council

                                    --operate usually within the lines of bureaucratic standards (merit)

 

Crime Prevention:

            Low arrest rates, little deterrence from crime as a result of physical presence of cops in the neighborhood.  Obedience to the law usually stems from acceptance of social mores (i.e., the degree of government legitimacy in the eyes of the people it serves)

 

 

Detection of Crime:

            Low respect for police => low police involvement by the public in investigations (most people are unwilling to report crimes that occur because they believe that the police will not do anything about it) – most crimes go unreported.

 

Enforcement of Law:

            Approx. 18% of reported felonies result in arrest.  That leaves approx. 82% going undetected.

            --inadequate evidence to issue an arrest warrant in many cases

            --many cases going to trial do not result in a conviction

 

Evidence:

            4^th amendment protections against unreasonable searches and seizures

                        --warrantless searches of prisoners, pedestrians, and motor vehicles is constitutional. Even these are usually conducted only with probable cause or if something is in plain sight

                        --fixed property usually is searchable only with a warrant

                        --Justices of the Peace usually determine probable cause—whether facts and circumstances “are sufficient to lead a ‘reasonable person’ to believe that evidence is probably contained on the premises” of a given property

                        --Exclusionary Rule—illegally collected evidence is inadmissible in court (since Mapp v. Ohio, 1961)

 

Arrest:

            Arrest is a form of punishment (in its earliest stages)

            Probable cause for arrest is necessary => issue of arrest warrants (warrants may also be issued after writs of information are obtained in misdemeanor cases or after grand jury indictments are obtained in felony cases; most warrants, however, are issued before formal charges are brought up)

                        --some arrests are permissible without warrants, e.g., when police have probable cause and there are circumstances that prevent obtaining an arrest warrant (as when they see a crime being committed or when crimes are immediately reported by eye witnesses)

                        --citizens’ arrests permissible when crimes are committed in the presence of the citizen(s) making the arrest.

 

Detention:

            Time between arrest and appearance before a magistrate (usually a JP)

            Accused must be informed of their “Miranda rights” 

                        --stem from Miranda v. Arizona (US Sup. Ct., 1966)

                        --meant to curtail forced confessions (testimony against oneself without a proper waiver of 5^th amendment rights) that were to show probable cause for arrest after the fact of arrest

                        --right to remain silent; anything you say can or will be used against you in court; right to an attorney/one can be appointed if you can’t afford one of your own

                        --primarily focused on voluntary confessions during interrogation (notion is that most people will not want to confess to something they have done unless they are forced to do so by illegal means—burden is on the state to remain humane and “fair”)

                                    --unsolicited confessions or other information are admissible in courts—e.g., witnesses mentioned in a confession are admissible, even if the Miranda rights were not yet read to the suspect

                                    --information and confessions given without interrogation may also be used as evidence of perjury if the suspect later testifies and contradicts what he says earlier. 

                        --Justices of the Peace are usually in charge of ensuring the Miranda warnings are given, that proper warrants are issued, etc.

 

The Criminal and the Courts:

 

Courts must balance the state’s mores with the criminal’s individual rights

            --Due Process (basic procedures designed to promote justice and protect the individual from government. Due process has changed considerably over the years, as individual rights against government have increased and notions of justice have evolved; what may be due process in one state may not be required by due process in others, or, if the US Supreme Court has ruled in some due process matters, it is uniform across the country.)

            --Due process rights will vary depending on how solicitous the courts, the prosecutors and the law enforcement agents are when handling a case

 

Pretrial Court Activities:

            Arraignment—accused is brought before a JP or other magistrate ASAP to:

                        --explain the charges against him/her

                        --remind him/her of his/her Miranda rights

                        --set bail

                        --inform the accused of a right to an examining trial (an initial court hearing to determine if sufficient evidence exists to bind a case over to a grand jury for possible indictment; during such examining trial, a case may also be dismissed or bail reduced or increased as warranted by the facts of the case up to that point)

            Custody—suspects may be held only for legal cause (must have probable cause that s/he has committed the crime in question), not on the whim of law enforcement officials or magistrates

                        --counsel may request a writ of habeas corpus requiring the accused to be presented to the magistrate and legal cause for imprisonment be demonstrated. If demonstration fails, then the accused must be released from custody (at least until such time as evidence may be gathered to warrant arrest, indictment and trial).

            Right to an attorney—has been guaranteed by the US Constitution since the beginning, in federal cases, if one could afford it. However, it was not until 1932 that states had to comply with this right (in capital cases) and appoint attorneys; 1963, Gideon v. Wainwright, interpreted right to an attorney to mean appointment for those who couldn’t afford it in all felony and Class A/B misdemeanor cases, state and national.

 

Bail—set at arraignment, posted by the accused as a way of getting out of jail between the time of arrest and the start of the trial. 

            --in practice, the right to bail goes only to those who can afford it. 

 

Formal Charges:

            --Grand jury indictment on basis of prima facie case brought by the prosecutor. Enough evidence exists to warrant a trial.  Indictments usually occur after arraignment, but may precede arrest. 

            --Indictments are meant to protect against unwarranted government harassment of the accused on unjustified charges.

 

Pre-Trial Hearings:

            --2^nd arraignment—plea is entered

                        --if plea is “not-guilty”, then case is set on the docket for trial

                        --motions are made, if necessary, for continuance, change of venue, suppression of evidence, insanity defense, etc.

                                    --rarely are insanity pleas sustained in court

                                    --tensions between freedom of the press and rights of the accused in jury selection process. Unfavorable, or broad-sweeping, media coverage may bias a potential jury pool and make selection of a fair and impartial jury nearly impossible.

 

Plea Bargaining:           

            Agreement between the accused and the prosecution in a behind-the-scenes bargaining session.  Most cases are disposed of in this way, as prosecutors and their staffs and the courts are all overworked and overwhelmed by the number of cases each year.

            --eliminates the need for a trial, as the defendant agrees to plea guilty in order to drop some charges, reduce some charges, attain a lesser sentence for the same charges, etc.

            --some defendants may be given lighter sentences in exchange for testimony against fellow offenders.

            --plea bargaining system benefits the guilty, in that they get off more lightly than they would otherwise if convicted in a trial.  Innocent people on trial may risk greater punishment if convicted than they would if they accepted a guilty plea. Defense attorneys often encourage their clients to plea guilty to save time, effort, and money and possibility of a harsher sentence.

           

The Trial:

--Trial by jury is a right preserved in Texas for ALL criminal offenses, from the most minor misdemeanor to the most severe felony.

--Jury selection

--Adversary system: both sides in a trial have equal right to present their arguments and evidence, to summon and/or subpoena witnesses, to understand the laws applicable in the cases, to review the evidence and cross-examine witnesses of the other side, etc.

--Only evidence admitted into court may be considered in the rulings of the court

--defense is under no obligation to present evidence pointing to the defendant’s guilt, nor must the defendant testify against himself in a trial (5^th Amendment rights); on the other hand, the prosecution is obligated to present all evidence, even if it may benefit the accused.  (Does this type of system encourage irresponsibility?  Does it not also encourage lying and manipulation and other immoral behaviors, at least on the part of the defense?)

--judge will read the charge to the jury, instruct them to ignore illegally presented evidence (hearsay, improperly given testimony, etc.); prosecution and defense offer closing statements, and the jury retires to the jury room to deliberate

--judges may prescribe the sentence, even if jury renders the verdict. However, the defendant may request the jury to hand down the sentence as well