Executive Summary
Global legal systems vary from one country to another depending on the people’s culture, religion and level of liberalization. In the legal practice, between the United States and Saudi Arabia, the lawyers decide on the most convenient way that they would deal with criminal cases, according to the legal provisions of the federal constitution and the Islamic law respectively. All the decisions about punishment for the offenders in both countries do not disregard the provisions of the law and/or the code of ethics of the profession.
In criminal cases, the lawyer must not violate the value that required her to promote and respect informed decision making before making judgment on the kind of punishment that the offenders should receive. Besides, it would be appropriate for the lawyers and judges to use ethical and professional zeal during their duty.
Furthermore, given the possibility that the lawyer or judge might be summoned for the tort of negligence, it becomes clear that the decision he/she makes on punishing criminals may breach the ethical principles, cultural practice, religious belief, and/or the legal provisions of the country.
Introduction
Under the study of criminal law, one of the most eminent topics is the study of criminal procedure. According to criminologists, criminal procedure refers to the process between the prosecution of a criminal and the determination of whether or not that individual is guilty or not. This study is mainly guided by the commonly known guiding law that a suspect is innocent till proven guilty. During this process, the criminal is faced to prove that he or she is innocent beyond reasonable doubt.
On the other hand however, the prosecutor’s job is to prove to the jury that the criminal is guilty beyond reasonable doubt. Upon hearing the confessions and witnesses observations of either side, the Jury holds a sitting with the judge and reasons together. A determination based on the information provided by either side is passed. In the next hearing, the judge passes the final judgment. If a criminal is found guilty, a sentence is passed and if he or she is found innocent, then he or she is set free.
This is the basic theory underlying the criminal procedure. However, to draw a more concise picture of the situation, common questions arising under this study have been selectively highlighted and presented as follows. The presentation is done in a question answer format.
Rationale for Punishment
Need for Punishment
The only way of ensuring that the people adhere to the rule of law is through punishment of offenders. Indeed, when the offenders are severely punished, it creates deterrent on criminal activities, but when left in freedom, it increases the rate of crime. In this regard, there should be zero tolerance to crime and punishment for criminal activities must be effected adequately and severely depending on the nature of the unlawful act. Ethical consideration in the legal practice is currently dominant and demands that the lawyers would observe the code of ethics in their respective areas of practice.
However, the process would be marked by several challenges ranging from the lawyer’s insincerity’ in applying the specific legal provisions, in relation to the code of ethics in the practice. This legal aspect should address the political, social, cultural and economic challenges that the legal suit should consider. Increasing diversity of the people under such legal suits should not compromise the final judgment because it is another major challenge facing the profession, magistrates, judges, and the lawyers. Therefore, punishment for the offenders is justifiable in any country or cultural setup.
Advantages of Punishment
The main advantage of punishment is to create deterrent in criminal behavior. Due to severe punishment, the offenders might not be tempted to commit similar or other crimes. Punishment also restores sanity in the community by changing the perception of the people about the unlawful acts. Moreover, it might increase morality among the people, thereby being capable of coexisting harmoniously.
Disadvantages of Punishment
In some criminal cases, the judge might not exercise his/her task to deliver judgment according to the ethical responsibilities outlined in the code of ethics, in practice standards and constitution. In addition, the judge might violate several values of the profession in deciding to base judgment on assumptions other than tabling and considering the facts. In criminal cases, the lawyer representing the accused should explain concisely to him or her about the charges so that they speak in the same language during defense. This might be lacking and the accused might be wrongly sentenced.
Types of Punishment
Economic Punishment
In the United States and Saudi Arabia, economic punishment takes various forms, which have great consequences on the business community. The economic sanctions in the United States include court injunctions, restraint-of-trade agreements, and federal boycotts. They have financial implications on the economy, thus must be addressed immediately and adequately to prevent further damage to the economy.
Corporal Punishment
This kind of punishment was used mainly in the traditional society, but thrives to the present date. It involves whipping the offenders either publicly or when he/she is under detention as a means of deterring them from committing other crimes. Though considered to be inhuman, corporal punishment is common for petty offences. In most cases both the United States and Saudi Arabia, the parents may choose corporal punishment for disciplining their children, but not so articulate as in the case of developing countries.
Incapacitative Sanctions
These are the kinds of punishments, which employ physical limitations of the extent to which the offenders could engage in criminal acts. They include confinement, transporting the offenders to other places, forcing someone to go for exile, kidnapping, censorship, incarceration, and harshness among others.
These restraints prevent the possibility of the person engaging in behaviour that would compromise the legal provisions of the country. Since the actions limit the interactions among the people, they reduce the opportunities that would create room for committing crime. Notably, Incapacitative sanctions apply in the United States and Saudi Arabia.
Public Opinion on Punishment
Public Interest on Punishment
In executing punishment for offenders, the public interest may be expressed, though in most cases, such interests must be unconstitutional. Therefore, the public interest should only be considered to the extent that they adhere to the constitution and common good. In the process of criminal proceedings, there are several moves that the government can take to invade into a case, and they might violate the public interest. For instance, the government can invade for the justification of a case and so on.
There is a relation between the degree of government invasion and the objective basis to justify the invasion. Whenever a government makes a move to invade a court case, there are several ways to which that move’s magnitude can be viewed. For instance, a government may choose to let free a suspect under trial regardless of the courts standing orders. Also, the government may choose to pardon several sentences passed to those found guilty.
The objectivity of argument in the government’s move is normally national security or other individual behavioral considerations. The government is justified to objectively let go a criminal under custody for reasons of classified national security interests. This justification could also possibly be made by an individual’s offer to buy their freedom in exchange of information of interest to the government. As if not enough, the government on keen scrutiny of the subject suspect or prisoner may choose to pardon the individual sentenced. Most probably, an individual is pardoned on basis of their psychological attributes, previous records of misconduct and age.
Variations of Government Approach
In the exercise of law, the government has different approaches that it deems significant for deterring the criminal activities. Therefore, under the topic of criminal procedure, the variations raise another question of adversity. As described by the free online dictionary, adversity as a word refers to the difference in perspectives while articulating the law. In the courts, the adversarial system in the form of law enactment that is relevant to the national jurisdiction whose results depend on the advocate’s skill in arguing their perspective, before an impartial judge.
The basic features characterizing the government approach are as seen in the process of jurisdiction. Here, the government should allow the criminal to be at liberty to choose on whether to employ a skilled advocate to represent him in the trial or to do it by themselves. Further, the argument process is through testifying their side of the story, questioning the opposing party and presenting evidence and witness testimonials. The term cross-examination is common in this process. It insinuates the interviewing process of the criminal. There is more detail into this system.
Overview of the Global Legal System & Punishment
Discretion and Societal Complexity
During the criminal or civil process, discretion and thorough understanding of the societal complexity are very important. The ability to decide responsibly is indeed appreciated over the world as knowledge and wisdom. Therefore, discretion and societal complexity in the criminal process is necessary for fair and just judgment of the criminal.
Discretion in judgment during the criminal process is necessary to satisfy the parties involved. Furthermore, discretion is necessary in promotion of transparency so that the societal complexity are addressed. Transparency is one of the most anticipated institutional values and if well carried out in the legal system, it is attributed to discretion.
Lastly, discretion is necessary to cultivate accountability. Again, among the treasured values of institutionalism, accountability is in the top of the list. Accountability in the court is cultivated through discretion and addresses the issues of societal complexity. In overall, if discretion is upheld in the criminal process, no chaos is likely to result as aftermath of the case.
Legal Systems
Legal systems require a balance of extremes. This is the reason why for a law to be considered just, it must always be free and fair. In this regard, there has been a balanced strike between the process and result phases in the criminal procedures and subsequent punishment. As suggested by the terms, the process precedes the result. To successfully underpin the differences in the two, it is worth discussing each as a phase on its own.
The Process
The process involved in criminal procedures is a product of several steps. The process of criminal proceedings is marked by the conviction that an individual has committed a crime and thus has to be arrested. Upon arrest, this person is only considered a suspect, not guilty. After that individual has been arrested, they are put under custody in a law enforcement center. While there, the process moves on through booking of the individual. In this step, a person’s information is taken and further, administrative information from them is taken in form of a statement.
After booking, the step that follows is arraignment. Before the arraignment, a date is set and the arrested individual is informed in advance so that they can prepare to testify in course. On the arraignment date, the arrested is obligated with one task, to plead either “guilty” or “not guilty”.
After the arraignment, a date for a hearing or trial is set if the criminal has pleaded “not guilty”. The criminal at this time may be held by the legal agencies in jail or set free on bail. When the trial date comes, the proceedings begin with opening statements, witnessing, and lastly evidence. Either sides of the prosecutor and the criminal are given equal chance to present these before the jury. After the trial, then the result phase follows.
Results
Depending on the conclusions made from the trial process, the Jury gives the verdict. At this point, the criminal can be termed either guilty or not. If deemed guilty, the criminal is sentenced and if not, they are set free. Upon sentencing, a criminal may feel unconvinced by the Jury’s verdict. There is therefore a further chance that the criminal, already sentenced at this time, can appeal his or her sentence. An appeal reopens the case to be heard again.
During the appeal, either party is not allowed to bring in new evidence or misconduct of the accused. Thus, if an appeal is given, the whole process repeats from the booking to the trial, and the jury again passes their verdict. Thus, it is true to say that there is a difference between the process and result with regards to criminal procedure. There is need to create harmony in these two processes and through the set rules of the procedure, the two indifferent phases have been able to strike a balance.
Relevant Theories Explaining Punishment
Retribution Theory
This theory explains the traditional method of punishment that has been used for a long time. Although not legal, it is still persistent in some cases among the people who justify it as the best. This form of punishment takes the aspects of retribution and revenge. Here, the offenders get punishment immediately for the crimes they commit against the other to serve as an example for the rest.
Sometimes, it takes the form of mob justice, for instance, when a person is caught stealing, he could be killed instantly without putting him/her to trial. It creates fear among the public who then avoid doing such mistakes. It is justified from the Biblical perspective that states, “An eye for an eye”. According to those who execute such punishment, they assume that the offenders deserve this kind of punishment.
The philosophy of redistribution is categorical and the assumption is that the kind of punishment that the offender is subjected to, should be commensurate to the crime he/she has committed, nevertheless, this is not upheld when executing such punishment. For example, if the offender has stolen 50 Dollars, then a mob caught up with him/her, killing him or her on the spot, this punishment does not commensurate with the offence, though the mob would justify it.
Deterrence Theory
In the application of law, the proponents of deterrent theory believe that harsh punishment is the best option of deterring crime. Often, deterrence is applied to prevent the recurrence of crime. Deterrence could be in form of sanctions against the offenders to control deviance. Research has shown that the severity of punishment is the most effective way of creating deterrence among the hard-core criminals. In addition, severe punishment creates fear among the offenders and this is necessary for ensuring deterrence from crime, while enhancing ethical conduct.
When a person is left to exercise the freedom of choice, it would be possible for him or her to engage in activities, which compromise the integrity of others. In this regard, it is easier for such people to commit crime. However, when the people are aware of ruthless punishment for crime, this would act as a deterrent and reduce the level at which the person might engage in an unruly behaviour. Some of the deterrence punishment include monetary, corporal, informal, and Incapacitative among others.
Therefore, when they are executed with the highest level of harshness, those punishments have the capability of enhancing deterrent behaviour among the people.
The United States, for example, has adopted the principle of “get tough” in dealing with criminal engaged in capital offence. In this regards, the United States federal law classifies crimes such as terrorism and drug trafficking as capital, thus attracting very harsh penalties to create deterrent on the behaviour. Though deterrent punishment is responsible for limiting the rate of crime in both the United States and Saudi Arabia, some people have a passion for deviant behaviour.
The increasing level of crime in both the United States and Saudi Arabia is an indication that the criminal activities are based on the moral and ethical principles of the person, and has limited regards to the law. This is because the two countries have some of the harsh laws in dealing with the criminals, but has witnessed severe consequences of criminals such as the terrorist attack on the Twin Towers and the pentagon in the United States, on September 11, 2001.
Incapacitation Theory
This kind of punishment borrows heavily from the utilitarianism. Specifically, it lowers the person’s ability to commit an offence. In this regard, the law provides for measures that would physically and control the person from engaging in a criminal activity. Some of the ways of executing Incapacitative punishment include confinement, censorship, incarceration, transporting the offenders to other places, forcing someone to go for exile, kidnapping, and harshness among others.
Notably, these kinds of punishments are widely practiced in America and Saudi Arabia, either legally or without following the rule of law. Kidnapping, for instance is a way of executing unlawful punishment and is majorly carried out by criminal groups.
In the United States, there has been selective incapacitation that targets particular criminals. Though this is a recent practice in the country, it helps in dealing with the risky offenders, who in most cases suffer from other social, cultural and economic problems.
Rehabilitation Theory
This theory anticipates that punishment should be aimed at restoring the criminals by changing their perception about the crime. This means, the punishment under the rehabilitation theory is not executed in a harsh manner, thus taking the form of education, counseling, training, and treatment.
Currently, the punishment under rehabilitation theory terms the detention facilities as “reformatories.” Other scholars refer to them as “correctional facilities” that aim at reforming the behavior of the convicts. In this regard, rehabilitation focus is on developing the person’s character other than punishing him/her in a cruel manner.
The proponents of rehabilitation theory argue that the application of therapeutic methodologies of changing the people actions is widely recommended in dealing with different crimes. This is because the people committing such crimes might have psychological problems that force them to such actions.
Though the correctional facilities are suitable for character development, anger management, and drug addicts’ rehabilitation, the United States policy makers reported in 1970s that the methods had not given the appropriate results, thus questioning its validity. Despite the attempt to change the people’s behaviour in the correctional facilities, the restraints levels remained relatively low, thus to many, the ideology of rehabilitation did not convince many people.
Instead, a number of the citizens demanded for heavy penalties for the criminals to deter them from committing criminal activities. The United States citizens argued that to suppress the rise in crime, the authorities had to impose tough penalties than rely on rehabilitation.
Restoration Theory
The restoration philosophy about punishment is a recent phenomenon from a liberal perspective. It tries to change the people’s perception on issues relating to criminal acts and fairness. Though it is a recent phenomenon, the restoration of justice is more common in the United States than in Saudi Arabia, and advocates for the proper treatment of the victims and victims alike. Under this philosophy, all the aggrieved parties including the entire community are restored to normalcy in an appropriate manner.
Under the restoration theory, the offenders must own to the crime and start the process of forgiveness and reconciliation to the people who suffered from the criminal acts. This is to make sure that all the parties benefit from the process. Once the offenders have owned to the crime after noting the magnitude and the victims accept to forgive, it would limit the repetition of the unlawful act, and the victims would easily recover from the ordeals. Using this principle, the offenders could adequately be re-integrated into the community and harmoniously live with the rest.
The process of restoration is only carried out through mediation and the intermediary person must be neutral. Once the two parties agree to follow the negotiated terms, they can be left to live once more in the same community. This method is also gaining popularity in the United States, but is not well developed in Saudi Arabia.
Punishment in the Saudi Arabia
Islamic Law on Punishment
In Islam, the judges use the Holy Quran in delivering sentences for the criminals. According to Islamic law, offences such as extramarital sex are only punishable if four people witness the act. This makes the offence very difficult to attract punishment because it is difficult to produce the four witnesses during the act. Moreover, on the Islamic law, the person found to be guilty of unfaithfulness is convicted to death. Generally, death penalty is accepted as a mode of punishment for hardcore criminal according to Islamic regulation. However, the sentence for single people engaging in sex outside marriage is corporal punishment; sometimes the convicts could be jailed for a number of years.
Punishment Execution in Saudi Arabia
Since Saudi Arabia is practicing Islam as their religion, the country uses Islamic laws in executing punishment for offenders. In reality, the laws against certain crimes are very strict and have deterred criminal activities in the region for a long time. For example, in the country, there is a well-known practice of chopping off the hands of those who are found stealing.
Depending on the item that the person steals or the nature of stealing, he/she would get this punishment. Particularly, this punishment target capital offenders such as robbers. When discussing the issue of punishment in Saudi Arabia, “cutting off the hands” is very pronounced.
In Saudi Arabia, sex outside marriage and Khilwa (unrelated couple) are considered as serious and punishable offences. In this regard, if unrelated couples hang together, they could not be convicted for engaging in extramarital sex, but Khilwa. However, in case of admission, the judges have to determine if there was consent or it was simply a forced sexual relationship. Furthermore, the judge would establish if the two had previous relationship or they were interested in getting married.
The culture of the people in Saudi Arabia differs from that of the United States, thus making the mode of punishment to vary. As a result of low levels of education among the women in Saudi Arabia, and strict adherence to the Islamic culture, the rules governing punishment for the criminals are not liberal as the case of the United States.
In Saudi Arabia, the freedom of women is limited to the decisions that emanate from their fathers or husbands, especially for the married people. The Islamic law does not allow the women to participate in elections. The limitation of the women’s freedom is similar to incapacitation punishment and was very common in Saudi Arabia.
Punishment in the United States
Historical Aspects
The history of punishment in the United States traces to the formation of the federal laws which spelt out the desired codes of behaviour among the people and the relationship among the states. Notably, the federal laws and regulations govern all criminal proceedings in the United States. However, the other federal states in the US also have different laws for punishment of particular crimes, which may vary significantly, but must not violate the provisions of the federal law.
Under the criminal proceedings in the US, there would be four situational analysis in regards to the law and ethics in the legal system. In this regard, a lawyer’s action may be both legal and ethical for instance; a lawyer carries out legal orders as per the federal or state law. If the orders are appropriate and applicable, then the action would be both legal and ethical. Another situation would occur when the lawyer’s actions are legal but not ethical.
The third situation would be when the lawyer’s actions are considered ethical but not legal. The final situation would be when the lawyer would be faced with an action that is neither legal nor ethical.
Criminal Punishment in America
Though the United States government does not advocate for, and harshly punish crimes, the law is against death penalty unless the person convicted for the offence is a threat to national security. The procedure in criminal law takes the steps of arrest, arraignment, trial and sentencing as described above.
Much as the objective of courts is to enforce law and order, they are also obligated with a duty to ensure justice and fairness in carrying out their tasks. However, the justice passed is depended on the information passed to them. If a person chooses to lie and successfully convinces the jury, then justice is not passed. Fairness is abused as well. Therefore, to enable justice and fairness in the criminal process, facts are important.
On one hand, the prosecutor is obligated with a duty to render factual truth in the prosecution process. At times, the prosecutor may lie in seeking of worsening the criminal case to the disadvantage of the prosecuted. However, the case may turn out otherwise, and find the prosecutor himself or herself prosecuted for false accusation before a court of law, hence the essence of punishment.
On the other hand, a criminal seeking to win freedom may twist their argument before the court. This is very dangerous since if it dawns to the jury that such an individual is lying, this may attract a larger sentence, could be a double sentence for the prosecution and the false factual presentation before the court of law. Thus, either party in the criminal procedure must uphold the spirit of truthfulness and factual presentation in the process; to promote justice and fairness.
One of the federal laws that could be applicable in criminal case would be the law of negligence is similar to the Canadian law. According to this particular Criminal Code of Canada, “everyone could be negligent when by doing anything or by omitting to do anything that would be in their duty to do, would perpetuate reckless disregard for the lives, and safety of other persons.”
The lawyer in such criminal case could be said to have been negligent to the extent that the values of the federal law. In the criminal case, the lawyer is deemed not to have considered the details and the required information, thus being taken to be negligent of the legal provisions. If the accused could prove of the damage that he/she suffered due to the lawyer’s refusal to make judgment based on the truth, then the lawyer would be found liable for the tort of negligence.
The other law that could be applied in such criminal case is the law of consent. In the legal profession, consent would imply that the accused has to be fully informed about his/her crime in a language he/she understands best. This would enable him/her either accept or reject the chargers so that the judge could make justified judgment on the crime. In criminal proceedings, the lawyer should vividly know the mental condition of the accused before making the final judgment.
Conclusion
In the execution of punishment, there are significant variations between the United States and Saudi Arabia. The research evidenced that the laws of punishment in Saudi Arabia are very stringent as they follow the Islamic rules. In the United States, punishment follows the rule of law and adheres to the provisions of the federal constitution. Therefore, punishment may vary according to the government’s discretion and cultural attributed of the people.
In practice, not all governments employ similar approaches in dealing with crime. In this study, the Federal Government of the United States and that of Saudi Arabia employ various approaches in articulating the rule of law. Theoretically, economic, corporal and incapacitation punishments are the major types of punishment that the countries practice.
In addition, the theories used in explaining punishment include retribution, deterrence, incapacitation, rehabilitation, and restoration. Depending on the offence that the person commits or the nature of the action, the person should get equal punishment. Predominantly, the punishment should target capital offenders such as robbers, terrorists and rapists. Therefore, whether the discussion is on the issue of punishment in Saudi Arabia, for instance “cutting off the hands” or the liberal ones exercised in the United States, offenders should receive tough penalties to reduce the unruly behaviour.
The research also concluded that in other criminal proceedings, the legal expert must not, at any time violate the value that required her to enhance and the standing legislations. In this sense, he/she would make informed decisions before rendering judgment about the kind of punishment that the offenders should receive.
In addition, it became clear that the magistrates should allow the defendants to consult appropriately their lawyers so that they articulate their cases in a manner that is convenient to them. Therefore, the judges should use ethical and professional passion during their duty so that the judgment that they deliver does not incline to one side.
Moreover, since there is the possibility that the lawyer or judge might be summoned for the mistake or negligence, it becomes evident that the decision he/she makes on delivering the punishing the offenders may breach the ethical and legal principles, cultural practice, religious belief, and/or the legal provisions of the country. This calls for the parties involved in criminal proceedings to uphold professionalism and ethics throughout.
Recommendation
Concerning punishment, it is recommended that there should be a universal law of punishing offenders according to the magnitude of crime. Cultural diversity should also be a factor that the law enforcers should consider when executing punishment because the people from the United States and those from Saudi Arabia profess different faith. Failure to consider the person’s religious background could lead to civil conflict. The other recommendation is that while dealing with criminal cases, the judges should look beyond the offences to find ways of mitigating similar activities in the future.
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