Уголовно-правовая система Соединённых Штатов Америки

Дата публикации: 2019-03-05 14:48:34
Статью разместил(а):
Пихтовникова Юлия Викторовна

Уголовно-правовая система Соединённых Штатов Америки

The criminal-legal system of the United States of America

 

Автор: Пихтовникова Юлия Викторовна

Российский государственный университет правосудия, Челябинск, Россия

e-mail: yuliya.pikhtovnikova@mail.ru 

Pikhtovnikova Yuliya Viktorovna

Russian State University of Justice, Chelyabinsk, Russia

e-mail: yuliya.pikhtovnikova@mail.ru

 

Аннотация: Автор статьи затрагиваeт тему уголовно-правовой системы США. В начале статьи авторы описывают круг действующих проблем, касающихся содержания американского права. Далее рассматриваются особенности законодательной системы. Также рассматривается вопрос о реформировании американского законодательства, в частности о создании Примерного (Модельного) уголовного кодекса. Далее автор приводит примеры правоприменения касательно смертной казни, лишения свободы в целом, состояния тюремной системы. Также автор рассмотрел такое понятие как пробация, и как оно действует в правовой системе США.

Abstract: The authors consider problems of the criminal legal system of the USA. At the beginning of the article, they describe the range of existing problems concerning the content of American law. The authors consider the peculiarities of the legislative system. They also consider the reformation of American law, in particular the creation of the Model Penal Code. Then they analyze following examples of law enforcement regarding the death penalty, deprivation of liberty in general and the state of the prison system. The authors also consider such concept as a probation and how it works in the US legal system.

Ключевые слова: уголовное право, правовая система, прецедент, реформа, уголовное законодательство, пробация.

Keywords: criminal law, legal system, precedent, reformation, criminal law, probation.

Тематическая рубрика: юриспруденция и право.

 

After the declaration of independence in the United States continued to operate the laws and regulations of English case law that does not contradict the Constitution and the laws of the United States. The supremacy of the Constitution is the first distinguishing feature of American law in comparison with English one. The second characteristic of American law is the combination of legislation and common law as sources of criminal law. Third feature is the ratio of these sources at the Federal and state levels. English and American law is characterized by the union in legislation of criminal law, criminal procedure and criminal Executive law [5, p.29].

The current state of criminal law is difficult to understand without an excursion into its history. Until the early 1960s, it was thought that each or nearly each state had had its own code. In most cases, it consisted of acts or rules adopted at different times in alphabetical order. State legislation was formed at different times. It influenced by different schools and trends in punitive policy and the doctrine of criminal law, as well as socio-economic and political conditions. It had differences in all main parameters: in structure, in the range of criminal acts, in regulations of the issues of General and Special parts, in sanctions for similar or identical crimes [3, p.5]. This phenomenon was observed in the USSR, when different republics of the union country had different punishments. In this regard, in 1962 the United States the criminal law reform was taken place [3, p.36]. American legal system needed to unify the criminal legislation of the States. It was created at different times and under different criminal law policies and as a result, it has significant differences in the solution of homogeneous issues, as well as in the conceptual apparatus. The desire for unification led to the creation of the Institute of American law in 1962. It became the Model Penal Code [4].

Sources of Federal criminal law are the U.S. Constitution of 1787, state constitutions, acts of Congress, and Federal by-laws, as well as international criminal law. In the United States, there is no single, nationwide criminal law system, due to the peculiarities of American federalism. The country has 53 separate systems – 50 States, Federal, District of Columbia and Puerto Rico. This gave rise to the phenomenon of legal dualism, meaning that there is law state on the territory of each state, and under certain conditions, there is the Federal right [5, p.14].

Modern American scientists attach great importance to the principle of legality in criminal law. There is a statement of J. Dressler: "The Doctrine of legality, which is characterized as reflecting the 'core values of liberal societies', is considered the first principle of American criminal law. The concept of legality is above all other criminal law doctrines. It is applied even if dangerous and morally guilty people may go unpunished as a result of its implementation» [11, p.26].

If we consider the US penal code, we will see simple structure. It consists of four parts. The first is "General provisions" or a General part. It has seven sections comprising 76 articles. The second part of the Code is "Definition of specific crimes" or a Special part. It consists of six titles. The third part of the code is "Impact and correction". It refers mainly to the penitentiary law. The last part is "organization of correctional institutions". It refers entirely to the penitentiary law [4]. In comparison, the criminal code consists of two parts - General and special. US state criminal codes are generally included as a separate Chapter or a section of the state code. In comparison, in Russia the judicial system is unified on the entire territory.

However, several important steps had been taken to reform Federal legislation, but only in the area of the institution of punishment. In 1984, the Ronald Wilson Reagan administration passed through Congress a Comprehensive law on crime control, which in the spirit of a strict criminal policy provided measures to combat dangerous criminals and recidivists and regulated other important issues. The law on the penalties reform was created by the corrections Commission. It developed guidelines for sentencing, published in the form of guidelines, which were designed to address the disparity in sentencing for Federal crimes. In 1994, the law on combating violent crime was adopted. It was described by the New York Times as the most repressive in the modern history of the United States because it increased the number of cases of the death penalty [1, p.59].

By present time, criminal law reform has been carried out in most States of the country. 38 States have adopted and entered it into force new criminal codes. Not all of them became a result of a fundamental review of criminal law in the spirit of the recommendations of the Exemplary criminal code. There are still differences in state legislation, which is often significant. For example, there are no two codes that have the same or similar structure. The reform of the criminal law of the States can not be considered completely, because in many of them it is still not revised. For example, in California continues to operate the criminal code of 1872 with all its numerous shortcomings. It was made a significant step in the direction of its ordering. However, the reform process continues. In addition, in some jurisdictions there is no criminal code [6, p.23]. Noteworthy, American scientists tend to justify the existence of legislation containing uncertain provisions. John Samaha writes: "Words are not as precise as numbers... In addition, legislators are not able to foresee all the options that may arise in connection with the application of the Statute; ambiguity is inherent in all laws» [12, p.45]

In the United States, there were different views on the issue of the limits of judicial interpretation. Firstly came the strict construction intended to limit the scope of application of criminal law. Over time, it was replaced by the doctrine of broad interpretation, which allowed to strengthen criminal repression or even to extend it to new areas [2, p.11].

In turn, the criminal codes of fifty American States were adopted and changed in different historical periods. Under the influence of conflicting trends in punitive policy and the doctrine of criminal law over time they began to reveal significant and unjustified differences in the definition of the range of punishable acts, signs of individual crimes and punishments. These circumstances and the outdated nature of many provisions of most codes have often become a serious obstacle in the fight against crime, especially organized crime [1,p.63].

In US criminal law, the principle of legality has significant specificity. This principle, as American scientists believe, is considered the first principle of American jurisprudence. "It applies," writes J. Dressler, -even if dangerous and morally guilty people may be unpunished "[11, p.35]. On this basis, I. D. Kozochkin had rightly corrected the definition of the principle of legality in relation to the legal system of the United States. He said: "there is no crime, no punishment without indication in the law, common law and regulations» [3, p.202]. It gives reason to agree with I. D. Kozochkin that "it can be stated that in the generally accepted understanding in the United States the principle of law does not work or just operates problematically " [2, p. 118].

The legislation of the American States according to the tradition of English law divides crimes into two categories: felonies and misdemeanors. The difference between these groups is made by the legislator, based on the size of the threatening punishment or type of detention. Criminal offenses are distinguished in a separate group. United States code (§ 1 part I of section 18) includes that felonies are any offence punishable by death or imprisonment for more than one year. Any other violations related to the class of misdemeanours, with the exception of minor encroachments which can be punished with imprisonment for a term not exceeding six months or a fine. Convicted people for a felony lose their civil rights for all life [5, p.20].

The scope of the death penalty has been steadily narrowing. The movement against the death penalty, particularly intensified after the second world war, led to its abolition in a number of States. However, thirty seven States currently retain this measure. US Federal law provides serious state, military, and ordinary crimes for the death penalty. In 1988, Congress added to this list the murder of a Federal employee made by drug traffickers [3, p.48]. Federal legislation also retains the death penalty for certain serious state, military and ordinary crimes. Thus, even for crimes committed in States that have abolished the death penalty, it can be applied by the Federal court under Federal law. For example, Russia has introduced a moratorium on the death penalty. According to George Dressler, such legislation, which has become "common in Russia, is incompatible with US constitutional system" [11, p.28].

US has a humane prison system. Such phenomenon has its reasons. In the late nineteenth century expensive prison system has become replaced by different types of parole, probation or imprisonment. According to the latest it was installed minimum stay in prison usually for one year. In case of good behavior condemned "earned" his lenient sentence or exemption [3,p.75].

In recent years, however, many States have moved away from traditional forms of probation and release. Thus, in the States of Maine and Illinois, the probation councils were abolished. Apparently, the negative features of these legal institutions are affected, for example, by the dependence of the real term of imprisonment or by the administrative official, not the court. The criminal code of New York includes probation, conditional release, and "early conclusion" to the "canceled orders" which are considered a test as long as they are not modified or canceled. It is also possible a conditional release, the terms of which establishes Parole Board on probation. During this period, the convicted person is subject to supervision. Failure to comply with the conditions or to oppose the warden leads to actual imprisonment or arrest. Probation is often provided for by American lawmakers as an alternative to imprisonment for less serious crimes and it is widely used in practice. The essence of probation is to leave the convict person for a certain period (not more than five years) at liberty under the control of a special official. A breach of the conditions of probation is replaced by the real deprivation of freedom [3,p.15].

The fine is widely applied for minor and moderate crimes, as the only main punishment for a number of serious crimes. It is used as an alternative or in addition to imprisonment.

Thus, the US criminal law system is a complex structure. The main feature of the legal system is in its case-law. Another feature is the disunity of codes in all States. This reveals are the main problems of the application of criminal penalties for the same crimes in different parts of the country.

 

Список литературы:

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References in English:

1. David R. Basic legal systems of modernity. - Moscow: International relations, 2001

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3. Kozochkin I. D. Criminal law of the United States: successes and challenges of reform. SPb., 2007. p.478 .

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5. Makhov V. N., Peshkov M. A. criminal process of the USA. Textbook. M., 1998.

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7. Nikiforov, B. S., Reshetnikov F. M Attempts to reform Federal criminal law. - M., 1992. p.180.

8. R. Walker. The English judicial system. M., 1980. p.136.

9. Criminal law of foreign countries. Issue. 1. Sources of criminal law. - M., 1971. p.93.

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13. Samaha J. Criminal Law. 8th ed. Belmont, 2005. p.86.