Online Attorneys 4U

Archive for the ‘Criminal Law’ Category

Criminal Punishment

What happens after conviction.

After your trial, the court will impose its sentence on you for the crime you committed. The Eight Amendment to the U.S. Constitution prohibits the court from subjecting you to “cruel and unusual punishment.” Among other things, this means that the punishment must fit the crime. But deciding what punishment is permissible in light of the Eighth

While it’s fairly obvious that imposing the death penalty on someone convicted of a first time burglary is almost certainly cruel and unusual punishment, the courts have allowed persons with multiple convictions for non-violent crimes such as writing bad checks to be sentenced to life in prison without parole as habitual offenders. In other cases, persons sentenced to lengthy prison terms for the possession of small amounts of marijuana have also been upheld when challenged on Eighth Amendment grounds. On the other hand, physical abuse, such as beatings and torture, have consistently been held to constitute the kind of cruel and unusual punishment prohibited by the Eighth Amendment.

In addition to fines and imprisonment, the federal government and an increasing number of states have begun to seek the forfeiture of property used in the commission of a crime, or gained through criminal activity. In a number of cases, courts have even allowed the government to seize the property of persons who were not charged with any crimes themselves. For example, in one case a restaurant was forfeited by its owners after a bartender was charged with selling drugs on the premises, despite the fact that the owners of the restaurant had no knowledge of the bartender’s criminal activities.

With our nation’s prisons filling up more quickly than ever, criminal courts have turned to other kinds of sentences as an alternative to imprisonment. One of the more traditional alternatives is probation. Probation allows the person convicted of a crime to remain free, subject to restrictions imposed by the court. For example, a convict on probation may be required to check in with a probation officer on a regular basis, and may be prohibited from leaving the state without the court’s permission. If the convict violates these or any other reasonable terms imposed by the court, he can be imprisoned. Not every person convicted of a crime is eligible for probation; the court considers such factors as the severity of the crime, the previous history of the convicted criminal, and the potential for rehabilitation of the convict.

Another alternative form of punishment is community service. Community service is most often used in misdemeanor cases, or occasionally when the criminal has been convicted of a non-violent felony, such as embezzlement. Community service can take a variety of forms, including everything from cleaning up roadside parks to presenting speeches and seminars on the evils of crime. Community service is sometimes granted when the convict has a high level of visibility to the public. For example, celebrities such as rock musicians and movie actors may be given sentences of community service because the court believes that more good can be done for society through the celebrity’s service than through his imprisonment.

Although probation is sometimes confused with parole, and while there are similarities, they are not the same. Probation is granted at the time a convict is sentenced, while parole is granted later, after the convict has served a portion of his prison sentence. As with probation, not every convicted criminal is eligible for parole; those convicted of first degree or capital murder (the worst types of killing), and those who are found to be habitual criminals are commonly ineligible for parole.

Another similarity to probation is that parole is usually based on the convict’s obeying certain conditions set forth by the parole board. A convict who violates the terms of his parole may be returned to prison to finish the rest of his sentence.

Know your rights.

As we’ve already seen, in the United States we have two systems of courts. Similarly, we have two systems of criminal justice as well. At the federal level, you may be charged with a crime when you do something prohibited by a federal statute, and your trial on federal charges will be conducted in a federal district court. If you are found guilty and sentenced to serve a prison sentence, that sentence will be served in a federal prison.

If you commit a crime prohibited by state law, your trial will be conducted in a state criminal court, and any prison sentence imposed will be served in a state institution. In either case, however, your rights when accused of a crime are guaranteed by the U.S. Constitution. And if you are charged with a crime under state law and the state’s constitution grants criminal defendants greater rights than those contained in the federal Constitution, those safeguards will apply as well.

The most essential protections granted to individuals suspected of or accused of a crime are those contained in the Bill of Rights. And of these, the most important are those guaranteed by the Fifth Amendment.

As it has been interpreted by the U.S Supreme Court, the Fifth Amendment requires the government to take certain steps in order to ensure that you are not deprived of “life, liberty, or property, without due process of law.” If you are arrested, the police must inform you of your right to remain silent and to have the assistance of a lawyer, as well as the right to a court-appointed lawyer if you cannot afford to hire one on your own. In addition, you must be warned that anything you say may be used against you in court. This is the famous Miranda warning, named for the man whose appeal led to the Supreme Court’s decision that the failure of the police to provide notice of these rights was unconstitutional.

It’s not enough to tell you what your rights are, however. The police must give you the opportunity to exercise those rights, by letting you call a family member, friend, or an attorney. Holding an arrested suspect in isolation and refusing to let a lawyer or family member’s visit is also a violation of the suspect’s constitutional rights. And once you indicate that you want to speak to a lawyer, the police must halt all questioning unless a lawyer is present. However, if you change your mind and initiate further conversations with the police, any statements you make may be used by the government in prosecuting you.

You have a right to know the nature of the crime you have been charged with, and to appear before a judge within a reasonable period of time in order to enter your plea to the charges. If you are not released from jail on your own recognizance (your written promise to appear for trial) you have the right to have reasonable bail set.

How you can tell a misdemeanor from a felony.

Because some violations of the law pose a more serious threat to order and public safety than others, the law divides crimes into several different categories. A “petty offense,” which may also be called a “violation,” is the kind of crime that poses the least risk to society. Petty offenses include such acts as illegal parking, running a stop sign and other traffic offense, and other acts such as littering or burning leaves in violation of a state law or local ordinance.

In most cases, when you are charged with a petty offense, you will not be placed under arrest, but will instead be issued a citation, a kind of summons that orders you to either pay a fine or appear in court to defend yourself against the charge at a specified date. But if you are wanted for a more serious crime, or if you have previously ignored citations issued to you, you may be placed under arrest and taken into custody.

That’s because the law in most jurisdictions makes ignoring citations a misdemeanor, the next category of crimes. Acts classified as misdemeanors are considered to present a greater threat to the public safety than petty offenses. Some of the crimes typically classified as misdemeanors include assault (you threaten to punch your neighbor in the nose) and battery (you actually punch him). Shoplifting of inexpensive items, writing insufficient funds checks for small amounts, and committing acts of vandalism are other crimes usually considered misdemeanors.

While the penalty for committing a petty offense is generally only a fine, in most states the penalty for committing a misdemeanor may include a fine, a prison term of less than one year, or both. Depending on state law, you may or may not be entitled to a trial by jury when you are charged with a misdemeanor, since the U.S. Constitution does not require jury trials when misdemeanor charges are involved.

You are entitled to a trial by jury when you are charged with a felony, the most serious kind of crime. Typical felonies include murder, manslaughter, rape, arson, and robbery. And some crimes which might otherwise be classified as misdemeanors can be considered felonies depending on the manner in which they are committed. For example, assault and battery are usually misdemeanors, but when committed with a gun or other dangerous weapon, or when they are committed in an especially violent or brutal way, they are considered aggravated assault and battery, crimes categorized as felonies. Similarly, while shoplifting an item that costs a few dollars is usually a misdemeanor, shoplifting an item above a value specified by state law (such as $200) may be classified as a felony.

The penalties for committing a felony are the most severe allowed by law. For example, while a misdemeanor may be punishable by up to a year of imprisonment, a felony is usually punishable by at least a year in prison. A fine may also be imposed against a convicted felon. And for some very heinous felonies, such as premeditated murder, the majority of states allow the prosecution to seek the death penalty, while others may provide for a life sentence without the possibility of parole.