Mexican DTO’s Vs. Colombian DTO’s

Drug trafficking organizations (DTO’s) are complex groups with powerful structures which produce, transport, and supply illicit drugs across countries. They operate against the law of the United States which has prohibited drug trafficking. Trafficking involves use of weapons and violence which pave the way for other crimes like warfare thus promoting insecurity and economic deterioration in the involved states. The organizations are paramilitary and they use armed fighters to protect their drugs from the first stage of growth till the final products are delivered. Mexican DTO’s are the major trafficking organizations which are a threat to the United States. Statistics show that Mexican DTO’s supply illicit drugs to over 230 cities in America. Colombian DTO’s are another threatening drug organizations. These groups established unique transportation methods and they managed to build a strong bond with the local gangs, thus gaining a lot of control in the US market. However, Mexican DTO’s are gaining control over the market recently, thus the competition for states and territories between the two organizations is so stiff thus leading to increased violence. This paper will discuss the differences and similarities between the Mexican  and Colombian DTO’s in terms of organizational structures, membership diversity, market, product distribution, use of power and control, logistics, and financing.

The Mexican and Colombian drug cartel’s workers are a significant asset in the organization. However, these people differ according to their level of education. Their education is not formal, but it is focused on how well one can perform in a certain trade. Most workers and executives work their way up from the bottom through experience. Those with the least experience operate on the low level of doing small deliveries locally. El Chapo Guzman, a leader of Mexico’s DTO dropped out of school in third grade. He struggled to read and write in his adulthood and even had a personal assistant who could help him write letters to his lovers (Walker, 1996). However, he was a very successful cartel. Similarly, the Colombian drug cartel, Pablo Escobar, received little formal education, but he was successful in the drug industry. Therefore, both organizations select their leaders according to their abilities to maximize profits without the risk of being caught. Leaders should also be risk takers and effective planners as the chances of death are very high.

Both Mexican and Colombian DTO’s target to sell their products in the United States. These drugs are grown and processed in Mexico and Colombia and later distributed to the United States through different trafficking routes and undetectable transportation methods.  Colombia used to dominate the American market for two decades through drug distribution. They were successful because they established a good relationship with the local gang, thus making drug distribution easy. Multi-billion Colombian drug organization’s defeat contributed to decline in Colombia’s superiority over the Mexican DTO’s. In the same way, Mexico’s DTO market their products in the United States cities. According to Bosworth & Collins (2002), Mexican DTO’s are the biggest suppliers of Heroin and Cocaine with methamphetamines in the US thus superseding Colombia. They have managed to maneuver as the major drug distributors in the US market through manipulation of law in Mexico thus escaping the government’s measures to eradicate the Mexican cartels. This has led to increased violence between the Mexican and Colombia organizations fighting for market territories and states.

Both Mexican and Colombian DTO’s get their revenue from the drug distribution and control of territories. Mexican DTO’s control the borders and small scale drug distributors are forced to pay tax to cartels in order to be allowed access. When they refuse to pay tax, they are killed thus imposing fear on the other tax payers (Walker, 1996).  Colombian DTO’s work with domestic gangs both in Columbia and the US who help them to charge taxes from the street drug dealers. Drug distribution brings large profits to traffickers and their trade involves the use of cash to avoid suspicions by the government. They later lander their money into legal businesses which drains the company economically and can cause great financial loss to the local banks. The money is also spent on paying the distributors, hiring contractors, bribing the government officials, and purchasing of equipment in preparation for war to protect their stocks. Some cartels also use the money to give back to the society and help the poor. For example, Progbar Escobar used some of his money to build slums which could house the homeless.

Both Mexican and Colombians DTO’s possess power and control towards the people and the government in order to manage their illegal businesses. The Mexican cartels advance their operations through corruption and bribing the government officials and they had previously tried to overpower the Colombian government. The police, city municipals, and states work together with the drug cartels to make deals which lead to mutual benefits to both parties. Pax Mafioso is the most popular form of corruption in Mexico. This is where a politician turns a blind eye on a drug cartel in exchange for fame and votes. In the year 2008, an operation was done to identify and eject corrupt officials from power and it led to some being arrested for selling critical government information to the cartels. Similarly, the Colombia drug dealers occupy the position of the government in many instances. The cartels have used their wealth to purchase weapons, form militia groups and bribe the government officials. If this is not controlled, the cartels influence might grow more powerful and it is difficult for the government to control their political influence. The former Colombian president, Virgilio Barco Vargas, referred to drug traffickers as the mortal enemies of democracy (Walker, 1999).

Even though Mexican and Colombian DTO’s have a lot of similarities, they also have their differences. First, Colombian DTO’s are organized into Hierarchical command structure while Mexican DTO’s are organized into an independent system of decentralized system. Mexico’s DTO’s distributes duties amongst its workers, uses unique communication techniques, use of advanced security, and uses violence and threats to organization members in order to secure their territories. Also, Mexican cartels kidnaps popular people and assassinate innocent people publicly to pass a message to the government. This increases their fame as they are feared by both the people and the government. Mexico has emerged superior lately due to rampant corruption made possible by drug money.  On the other hand, Colombian’s DTO’s structures are hierarchical which range from the executives to the street dealers. They use their illicit money to invest in highly profitable legal businesses. The organizational structure of Mexicans is superior to that of the Colombians thus leading to victory by the Mexican DTO’s and they have recently dominated most cities and territories that were previously owned by Columbian DTO’s (Bagley, 1988).

While Colombian cartels are interested in fame and sovereignty, the Mexican cartels are only interested in cash. Colombia’s main rebels FARC led the Guerilla war in the name of Marxist ideology. The movement was controlled by drug cartels in Columbia who wanted to overthrow oligarchy and take over. According to Thuomi (2002), the movement took money from coca producers and traffickers to fund the insurgency and later started their own labs in partnership the traffickers. Escobar used his money to build fields, building houses and giving to the poor. This made him popular and people saw him as a man of the people thus making him a great threat to the government. This attracted the attention of the government and it was the start of his failure. On the other hand, Mexican cartels aim at trading their products without any interference from the authorities. In most cases, traffickers manipulate the police and the mayors. They apply bulling and blackmailing to transport their products which has given them power. However, the Mexican cartels do not aim at owning schools, cleaning the streets or building roads. They do not form rebel movements and their violence is directed to their fellow gangs and not the government. This has led to rapid growth in the Mexican DTO’s because they are less threatening to the government thus facing less threats and opposition.

Mexican DTO’s distribute their products directly into the USA while Colombian DTO’s distribute their products indirectly through different routes. Mexican use the scouts of the use army when reporting border movement using solar radios and then report back to the US government if the border is clear or not. According to Bosworth & Collins, (2002), the Mexican DTO’s wait for the scouts to report to the government and if the way is clear, they run across the border into the United States. Also, they use tractors which have ramps and shock absorber to enable them to carry heavy tones of drugs. This enables another truck carrying the drugs to cross the border without touching the border fence to avoid raising any suspicions. This operations take place mostly at night. On the other hand, Colombia products follow different routes before going into the US cities. The products pass through Mexico and the Central America where they finally get to the USA through the Mexico border by the Mexican DTO’s. This is also a contributor to the ongoing failure of Colombians cartels.

Drug trafficking is a threatening global issues which has many negative effects on countries. They promote crimes and war in the countries involved. Economic deterioration is also a major problem caused by drug trafficking. This is because the profits are used to invest in big businesses like real estates and the banks end up in big loses because they cannot account for the money. Drug addictions has also led to many deaths and increased cases of insanity. Therefore, the governments of the countries involved should combine efforts to combat the illicit drugs trafficking through seizing the drugs cartels because most organizations cannot run successfully without their leaders. This will help to prevent more damages in the future and protect the future generation from drug addictions.

References

Walker. (1996). Drug in the Western Hemisphere: An Odyssey of Cultures in Conflict.

            Wilmington, Delaware: Scholarly Resources Inc.

Bagley, M. (1988). Colombia and the War on drugs. United States: Council on Foreign

            Relations.

Bosworth B, & Collins, S. (2002). Coming Together: Mexico- U.S Relations. United States:

            Brookings Institution Press.

Thoumi, F. (2002). Illegal Drugs in Colombia: From Illegal Economic Boom to Social Crisis. United Nations University Press.

A Persuasive Paper for Business Law on Tort Law and Negligence

Introduction

Laws are developed to generate an orderly society through the creation of limitations with regard to behaviors and to guard the freedom of citizens. Laws usually exist in three different forms which include tort, contract, and criminal laws. Tort law refers to a civil immoral, while criminal law is wrong that is committed publicly and contract laws refer to a violation or a contract which is either written or oral. Tort law is a branch of privatized regulations that are involved with discriminating and tortious behaviors that lead to harm to another person. In that, the law mainly operates in solving conflicts amid parties that are engaged in differences without the judgment of any criminal activity. According to Smith, (2011) Tort law is grounded on the mutual concepts and understanding of the existing differences among people in their daily interactions. On the other hand, negligent torts are not intentional actions but generally refers to an individual who and fails to act reasonably to a person who they owe a duty to. Tort law and negligence are interconnected as the crime of negligence must have occurred and caused damages for the law to be applied. The assertion that tort law mainly entails dealing with civil wrongs based on the guiding moral principles in the United States has generated controversial debates in disregard. Tort law is effective in creating a safe environment but there are needs for laws immediate reforms to enhance legal justice while protecting morality.

Torts incorporate wrongdoings. In the past tort was widely recognized as a lawful classification within the appropriate classification which is regarded as private wrongs (Smith, 2011). However, in the contemporariness of the modern legal setting, tort cases mainly offers a perspective of the judge acting as the respondents of offenders who are obligated to the responsibility of ensuring that they do not engage in any violation. With respect to torts law, the individual who is engaged in tortious activities is regarded as tortfeasor and the one that is affected is the plaintiff. Tort law refers to legal provisions that govern wrongdoings. The affected person has the obligation to make claims to the incurred harms. In this context, the ruling that is provided by judges that are grounded in facts and actual damages that are incurred by the victim. Court's discourse on the establishment of whether the duties have been infringed (Goldberg and Zipursky, 2010). The substantial tort assertion is full of principles and concepts that communicate the thought of an individual wronging the other. Logically, based on the past reflections that generate the claim that tort law entails dealing with civil wrongs has been part of major controversy today, perhaps in disregard. The main cause of the issue is that the thought of conducting wrongs with obvious moral implications, and yet certain fundamental aspects of the tort and negligence law appears to be creating doubt on whether the law holds anything to do with wrongful deeds. In other words, tort law has minimal liability despite the fact that it creates much liability in the case that an economic loss, defamation or psychological harm has occurred.

It appears that most researchers have in different concepts and theories included tort law as the thought of wrongs rather than losses. However, on the other hand, there are those that hold that since the law mainly seeks to offer compensation to those that have suffered damages, it is a law of losses. In this notion, tort law is unique when compared to the criminal law based on its capability to cater for the incurred losses. Since the law mainly deals with wrong deeds the objective should be to subject punishment to those involved. Contrary tort law shifts damages since a loss of mainly established after proper grounds for holding the offender as morally accountable for the wrongs is found (Goldberg and Zipursky, 2010). More so, the kind of accountability that leads to tort responsibility is the moral obligation for the harm that an individual has incurred rather than the accountability for committing the wrong. In justifying the concept of corrective justice, the law holds that the wrongdoer is one that has created losses to another and conducted the act through strategies that lacks the application of the standard of moral norms. This is an adequate rationale for considering the loss of the offender’s moral accountability while the victim remains blameless (Goldberg and Zipursky, 2010). Based on this notion, it is evident that the loss responsibility lies with the offender and thus while the victim requires some compensations, the perpetrator gets legal punishment.

Despite the fact that tort law covers all the damages resulting in wrongs by the offenders who  fail to meet the moral standards in the society which in this case refers to acting negligently, it fails to cover, psychological, defamation, accidental or economic losses. The provision of compensation to the victims holds no inherent benefit since while the loss responsibility falls on the individual that caused it, no legal punishment is implemented. This view is justified, since the loss is accounted as being caused by the offender who participated in a wrongful act (Smith, 2011). This means that torts entails some form of moral wrongs that incorporates the lack of using the provided resources effectively. Tort law has the responsibility of creating an enabling surrounding for all those that are involved. The law achieves the duty by ensuring that those that causes harm to others take the liability for such wrongs (Goldberg and Zipursky, 2010). Through this deterrence is the main objective, as being responsible discourages most individuals from engaging in crimes.

Tort law entails accountability for wrongful acts. If harm has been subjected to another individual, the responsibility is grounded on the offender (Volokh, 2014). It means that tort law is a composition of different wrongs such as injuries, trespass and unjustified imprisonment. Since the law is a body of responsibility, it entails more than a moral subject as it seeks to promote equality and standardization. Tort law is viewed as the legal aspects that seeks to guard individual’s privacy. The advancement of technology has however violated this norm since information can be assessed without the knowledge of the owner (Volokh, 2014). Based on the composition of the law that seeks to establish the wrong committed and the moral basis to make it certain that the offenders accountable, the law creates needless lawsuits. Such instances usually creates an intense burden on the court in dealing with the cases for the damages to be compensated while guarding those that have been affected. The justifications of the deeds is based on the moral provisions. In that for an act that caused loss to be accounted as a wrong in tort law it must have failed to meet the moral provisions in general. However, within courts the legal justification is mainly incorporated which in turn affects the responsibility of the law by generating a more complex setting (Volokh, 2014). The effectiveness of the law is dependent not just on the resulting harm but also the fact that the actor failed to adhere to certain moral standards thus creating a violation.

Negligence is found in tort law and within the element the obligation of care is presents which assists in making informed choices on whether compensation is to be enacted. The theory of negligence is a challenging one based on its complexity which is eased by its division. In that for negligence to be have taken place then one must have owed a care responsibility to the victim, violated the principle and causes losses to the claimant that results from the neglect and breaching of the care obligation (Smith, 2011). Negligent torts represent the most common torts. Negligent torts does not involve the intentional actions but rather entails an individual who has failed to act realistically towards an individual that they owed care to. The negligent deed that exists in certain torts results in personal or financial damages. In this composition, since the claimant has the burden of fully proving that the action of the offender resulted in harm, in the case when a psychological harm has been caused it is not only challenging to prove but it is close to impossible. In that, the law is more suitable for an observable loss while it offers less efficiency in the determination of certain liabilities. For instance if an individual suffers from an accident injury that was caused by thoughtless driving then there is a burden since they have to fully justify the argument that it was the recklessness of the driver that resulted in the harm (Raupp, 2011).

Negligence in general deals with, compensating individual’s for the suffered harm that results from an individual’s inattentiveness to other people (Raz, 2010). However, the law does not offer a solution to those that have been affected. While tort law seeks to establish the conducted wrong the law comes in to cater for the compensation aspect of the existing loss. The law is founded on the Duty of Care (Raz, 2010). Based on the neighbor provision one must adopt reasonable care standards in ensuring that actions which might be viewed to result in harm are omitted. This does not necessarily imply that good care is owed to those that lives close but all those that might be indirectly or unswervingly affected impacted by the actions. In other words, the law holds that one must contemplate in full prior to acting when seeking to address certain issues. The significance of these principle within the tort law can best be established as the extension of the care responsibility that works to ensure that negligence which might result in bodily, economic loss and so on is deterred.

Tort law and negligence is limited with regard to compensation or subjecting the loss liability to the offender when an economic or personal injury is not the resulting damage. The moral rather than the legal foundation of the laws further the problem (Smith, 2011). Instead of dealing with the losses or implications and providing legal support to the affected person the law mainly deals with establishing the moral wrongs created and those that are accountable. The controversy of the law is based on the notion that it is a wrong law that mainly seeks to establish the act that resulted in the harm and not losses. This can be justified by the fact that negligence law has the responsibility of compensating the harm that results from an individual making reasonable choices prior to acting to avoid the occurrence of harm. The laws entail establishing the moral and legal justification of the loss experienced as well as the most appropriate compensation for the case (Smith, 2011). Despite the broad application of the law with reference to torts certain wrongs are not covered fully and the liability is not comprehensive. Negligence law has, however, developed over time to covering cases that deal with conflicts between individuals even without the presence of a contract while following a feasible and financial stand to ensure that measures are adopted to avoid damages.

The negligence tort refers to a legal violation which is mainly determined by the moral provisions for the loss that is obtained by an individual at the care of a person who negligent the standards for proper care, in omitting what would sensibly be called the foreseeable threat (Raz, 2010). Morally speaking, some acts such as pushing an individual would lead to a fall which can be foreseen by any rational person and this would cause physical harm or even doubt. Negligent therefore involves knowing that the act would lead to such losses and still doing nothing to avoid. In most instances there are some predetermined associations between persons such as the relationship between a doctor and the respective patient. In this case, the doctor has the obligation of care which involves ensuring that the health needs of the person are addressed without causing harm. Thus, if the doctor violates the principle then negligence and tort are both present. Based on tort law, the doctor, in the case if the offender who needs to take accountability for the loss so that the patient can be compensated. However, the contractual connection is not a necessity for the modern law which acknowledges that the neighbor principle covers more than relationship. In that, in the community one has the unstated responsibility of acting in a manner that not only offers benefits to self but also by noting resulting in the suffering of others (Raz, 2010). Thus if the duty is violated, it then means that a negligence tort has resulted and those affected by the wrong should be compensated.

Tort law is argued to be a moral wrong for several reasons. To begin with, torts encompasses moral rather than legal wrongs because the justification does not involve violating the provisions of the constitution but ethical norms (Volokh, 2014). For the rational individual contemplating about an act as desirable or negative is the norm and this should be the practice that assists one in omitting any wrongs. The ability to distinguish amid the right and wrong thing is more of a moral principle that seeks to guide individual’s behaviors as required by law for individuals to coexist peacefully (Smith, 2011). However, for distinct cases or ideas, torts are however categorized as legal wrongs. However, in acting in the manner, the judiciaries have felt the compellation to concede that the alternative normally clears the ordinary aspect of that torts and wrongs are equal. This, therefore, creates a moral controversy.  The second issue is generated by the fact that torts create a specified form of response from the legal ground. This is the subjection of liability in the instance when the private claimant effectively proves the assertion against the actor. The thought that tort law deals particularly with moral wrongs has caused troubling thoughts to most individuals based on the expectation that the law would be used differently within the legal setting.

Tort laws fail to respond to the incorporated wrongs through subjecting the liability through legal punishment to the offer such as sentencing. In this regard tort law normally respond by drawing the losses incurred by the plaintiff as subjected by the offender through the unreasonable act to the wrongdoer as a form of ending the conflict (Volokh, 2014). The absence of the existing punishment with the extensive dominance of the financial responsibility for the acquired harm leads to the destruction of the argument that tort entails legal wrongs. The notion is perceived as useless and unjustified due to the absence of coherence in dealing with different civil wrongs. The other reason that justifies torts are moral wrongs is that the law is mainly described based on an injury incorporated strategy. Any offender is not classified as guilty of committing a tort unless the possible damaging act has resulted in harm. Based on this perception, it is evident that the description is borrowed from the morality standards (Smith, 2011). The law, therefore, acts in assessing an individual’s moral conduct rather than the outcome of the act. In this case, it becomes evident that since torts cannot be justified without a moral violation this makes them moral wrongs. In addition, the problem that the law seeks to solve is that of the conduct that resulted in the stated outcome. This shows that torts are mainly based on the establishment of wrongs that one commits due to being negligent of the care responsibility or negligence thus leading to harm to the claimant.

In preventing the occurrence of reimbursements on others, as tort law has shown might utilize different styles. Potential damages can be lowered by investing more in increased care. This notion is provided by the negligence law which encourages individuals to account for the losses that might result from a given action. For instance, drivers are necessitated to focus on slow driving because speed is bound to lead to accidents, injuries and lives losses (Gilo and Ehud, 2009). In a moral context, individuals should consider if their actions only seek to offer personalized benefits while harming others. Since every individual is entitled to caring for others then the decisions should be well thought and organized.

Conclusion

The objective of tort law is creating an enabling environment for individuals to live in. a reform of the la is necessary in enhancing legal justice. The law mainly grounded in solving conflicts that arise from individual’s daily interactions. A tort is a violation of the already set legal or moral standards which is classified as a wrong. On the other hand, the negligence tort is mainly incurred by an individual due to the improper actions of another who does not assess any foreseeable threats. The obligation of offering care to others is the major determinant of whether there was a committed wrong that led to the damages. Acting in negligence implies that certain options were present but the individual settled for the alternative that would cause losses. Tort law creates a moral controversy because despite the fact that it seeks to establish wrongs and subjecting the responsibility to the offender it fails to implement any form of punishment. It is worth noting that even though those that are accountable for the wrongs are held accountable finically the law does not provide any legal justice by failing to legally rather than financially punishing individuals.

References

Gilo, David, and Ehud Guttel. (2009)."Negligence and Insufficient Activity: The Missing Paradigm in Torts." Michigan Law Review, vol. 108, no. 3, pp. 277-321, ProQuest Central. Retrieved from: http://search.proquest.com.ezproxy.hacc.edu/docview/201149414?accountid=11302.

Goldberg, John C. P., and Benjamin C. Zipursky. (2010). “Torts as Wrongs." Texas Law Review, vol. 88, no. 5, pp. 917-986, ProQuest Central. Retrieved From: http://search.proquest.com.ezproxy.hacc.edu/docview/203719457?accountid=11302.

Raupp, Michael T. (2011). "The Multiplication of Indivisible Injury*." Texas Law Review, vol. 90, no. 1, pp. 259-282, ProQuest Central. Retrieved From: http://search.proquest.com.ezproxy.hacc.edu/docview/916010900?accountid=11302.

Raz, J. (2010). Responsibility and the Negligence Standard, Oxford Journal of Legal Studies, Volume 30, Issue 1, Pages 1–18, https://doi.org/10.1093/ojls/gqq002

Smith E. Henry. (2011). Modularity and Morality in the Law of Torts (October 8, 2011). Journal of Tort Law, Vol. 4, No. 2. Available at SSRN: https://ssrn.com/abstract=1940943

Volokh, Eugene. (2014). "Tort Law vs. Privacy." Columbia Law Review, vol. 114, no. 4, pp. 879-948, ProQuest Central. Retrieved from: http://search.proquest.com.ezproxy.hacc.edu/docview/1812228531?accountid=11302.

Sample cases argued using the 12(b) (6)

The lawsuit raised from Plaintiff accusations that they were illegally `halted and detained by the county sheriffs and his deputy due to their race or origin. As an outcome, they filed plaintiff filed a case against the officers (Gleklen, 2004).

12(b) (6)

 12(b) (6) is a governmental decree of the civil operations. It evaluations forms and sufficiency of statements of a particular claim under liberal pleading rule. However, since a federal rule tries to be adoptive to the successes of code pleading and at the same time avoid failure. In general, if another time is not specified by the rule, the time meant for serving a reaction is as articulated. An appellant should supply an answer in a period of 21 days after the summoning and charge .If it has a duration put off service, within the 60 days after the requesting for the waver or within   the 90days after it was released it to the defendant located in any location with the United States of America. Another party must serve the court with a counterclaim within   their first 21 days after being served with pleading. Also, a party should   reply to an answer within 21 days after receiving the order unless an order states anything different than the obvious (Gleklen, 2004).

A complaint can be dismissed if it the plaintiff does not prove beyond any doubt with facts or evidence of his claims. In considering a motion for dismissal, when it fails to define a claim, all facts or allegations of the complainant are assumed to be truth and all logical inferences are generated in favor of on moving party e.g. Rhodes v Robinson. Although, a legal conclusion ca not be made until the facts of the case are laid bare before the court (Gleklen, 2004).

In  a case of Aatrix verses Green shades, the federal institution reversed and remanded the court’s rule 12(b)(6) on grounds that the complaint’s factual allegations termed as true, blocked resolving  the eligibility query .Plaintiff Aatrix claimed that patents meant for systems and methodology for designing ,generating and upgrading information  into a consumable format and reports. The defendant Green Shades moved to dismiss the court for the case under law 12(b) (6) on the grounds that a declared patent was not qualified beneath portion 101 of the patent. Aatrix debated that the  case should be thrown out of the court and should be termed as premature if the generation of the claim was absent. The court granted Green shades their request and held each claimed made the Aartrix ineligible under section 101.Aatrix moved in for an appeal and an amendment but the court t denied their request hence their amendment was futile. The appeal was also reversed (Gleklen, 2004).

Initially, the matter that the court erred in holding one of the accusations was in eligible because it was an intangible item. The plaintiff the claim cited that a data processing system that needed a computer operating software for operation was a tangible. Meaning though intangible, the work it did could quantified due to its output (Gleklen, 2004).

Sufficiency of complaint or information

Before proceeding with a case to a due procedure of hearing, the complaint made should be seen as sufficient. While federal pleading standards have for a while, required that a complainant have enough facts that are plausible (Bevans, 2017).

A complaint or information’s sufficiency states that that the names of the accused persons or individuals; designating of the offense given by the statute; the action or omission complained of as constitutes the offenses; the names of the offended parties; the approximated date of the commission of the offenses and the location where the offenses were perpetrated. When a n offense is carried out by two or one individuals, all of them should be included in the complaint data sheet. A complaint can be seen as ineffective or insufficient when it states the name of the accused individual .The designating of n offense as per the statute (Bevans, 2017).

In coming up with a system of pleading, aims must be well defined. These objectives should be linked to economic and social systems that exist within the society. He coding system failed to come up with an effective system to measure sufficiency. Sufficiency of a complaint should be liberal, simple and noticeable .As for liberal, it is pegged on policies adopted by judges who apply the laws and express command (Bevans, 2017).

In a case dubbed people of Philippines v Robert Balao, the court denied the plaintiff, Felicisimo’s motion. This because his case was not based on solid evidence but rather speculation .he did not conducted necessary research to link his clams with necessary information required to bring the motion into court. No laboratory examinations were very carried out and presented in court for the judge and everyone to ascertain the claims and accusations were true. In fact, there was no primary study conducted on the disputed site. Evidence makes a case heavier and reasonable to prosecute (Bevans, 2017).

Reference

Bevans, N. R. (2017). Civil law and litigation for paralegals

Gleklen, J. I. (2004). Antitrust law developments: Suppl. Chicago, Ill: American Bar Assoc.

EVALUATING TESTATOR'S CAPACITY 

Introduction

There are various Court cases where the capacity of a testator to write a valid will has been challenged based on the idea that the person mental capacity does not allow him or her to do so. The Bank' v Goodfellow case formed the basic aspects that a testator should satisfy for the will to be valid. The courts have sought practitioners' opinion on the capacity of a person to make a will.

 Review

Testamentary capacity, in legal terms, refers to a person mental and legal ability to make a valid will or to alter it.  If a testator makes a will but does not have the testamentary capacity at the time of its execution, the will is considered invalid (The Gazette, n.d).   The Mental Capacity Act of 2005 that started being implemented in 2007 has not been clearly defined the case of testamentary capacity and courts have not yet provided a solid guidance in terms of its application (Jacob, & Gunn, 2013). It has not clearly given the clear guidance in relation to the extent of its application and where such has been provided, whether the extent to which it influences courts to practice in determining testamentary capacity.  Different cases in the past have brought forward where the capacity of a testator has been challenged in that he was unable to mentally do so.  This issue was complicated once Mental Capacity Act 200 was enacted and as aforementioned, it is silent in terms of will make. However, it can surely influence the decisions of the court in considering the issues of the capacity of a testator (Jacob, & Gunn, 2013).  The major starting point when considering the issue of testator's capacity is the Banks v Goodfellow case that formed the basis of aspects that a testator must fulfill. He or she should have an understanding of nature if making a will and the possible effects. He should also understand the scope of the property he is disposing of and must have the capability to comprehend and realize the claims to which they should give effect.  The testator should not be disabled mentally in a way that distorts their sense of right or hinders them from exercising their natural faculties in their wilful disposal of the property (Sloan, 2017).

These principles laid down in the judgment formed a general criterion that is accepted for determining whether a person is able to make a will especially in countries that based their laws in the Anglo-Saxon tradition.  In Bank's v Goodfellow case, the person who made the will had a paranoid delusion that he would be harmed by a fictitious person. At the time of deliberating the case, it was found that the Mr. Banks' delusion did not influence his decision to give his niece by marriage the money instead of giving to a distant blood relative (Sloan, 2017).  Other court cases have also handled the issue of testamentary capacity. The case of Simon v Byford and others can explain more on Court's approach in determining the testator's capacity to make a will. The case involved a testator who was paralyzed and incapable of speaking due to multiple sclerosis, the hearing judge implied that it was important for the testator to have enough understanding so as to make a will that is "rational, fair and just" (Jacoby & Steer, 2007).  There was no good reason for the testator to disinherit the daughters of his property in favor people who managed his stud farm. 

 The decision by judges to declare this will invalid was upheld in the Court of Appeal and it was clearly noted that the there was no alteration of the fundamental validity of this test as Banks v Goodfellow was being interpreted (Jacoby & Steer, 2007). The requirement that a person should know the extent of his estate does need him to know its whole value.  The courts do not require evidence of actual understanding on the testator's part but their capacity to comprehend these issues. In legal terms, capacity may be needed through the appropriate explanation.  The know-how of the moral claims of people whom a testator should supposedly consider in the will frequently result in trouble. The testator is permitted by the English law offer their wealth to any person he or she pleases but the statutory safeguards for their dependents have to be considered (Jacoby & Steer, 2007). However, this is allowed as long as the Banks v Goodfellow test is satisfied. However, the above court's decision does not mean that delusions necessarily invalidate a specific will except when the disposition of the testator is influenced by the same.   For instance, if a person with psychotic problems leaves all his property to his wife under the belief that he will be executed for evading tax, such a will may most likely be termed valid since his disposition of the property was not influenced by the delusions (Jacoby & Steer, 2007).

There is also a golden rule that courts follow in determining a testator's capacity to make a will and this is seen in the judgement issued for Kenward v Adams case.  In this case, Mr. Justice Templeman outlined s golden rule that should always be observed in relation to a testator who is aged or one with serious illness. This is regardless of how simple the issue may seem or how hard or clumsy it may be appear to suggest the need for taking precaution (Jacoby & Steer, 2007). The rule holds that the writing of the will by this testator should be approved or witnessed by a medical professional with knowledge of understanding and capacity of the testator and one that has findings, records and examinations of the person in question (Jacoby & Steer, 2007).  This means that a court will seek the opinion of a medical practitioner when determining the capacity of the testator to write a will. This golden rule is very critical although some potential pitfalls have been pointed out. To begin with, even though the doctor is required to examine the testator, some practitioners are reluctant to participate or just prefer to write a letter on the basis of their understanding of the patient. This involves paying little attention to the required legal tests. In addition, lawyers at times ask the doctors to witness the writing of the will but fail to advise them of the specific legal tests and thus may fail to conduct full examination of the testators' mental state. Finally while the golden rule offers strong evidence in case of litigation in future it does not guarantee the will's validity. In this case, the position taken by one judge, His Honour Alastair Norris QC, is that doctors and lawyers must consider the rule in provision of quality evidence in case of a legal challenge (Jacoby & Steer, 2007).

In conclusion, the Mental Capacity Act of 2005 has attempted to address the issue of testamentary capacity but is silent on the making of a will. The Banks' v Goodfellow case laid the foundation of other court's decisions on the capacity of a testator in writing a will. The information provided by doctors on mentally challenged testators does not necessarily invalidate a will but offers enough evidence where legal challenges arise.

References

Jacob, R., & Gunn, M. J. (2013). Mental Capacity Legislation: Principles and Practice. RCPsych Publications.15-20

Jacoby, R., & Steer, P. (2007). How to assess capacity to make a will. Bmj, 335(7611), 155-157.

Probert, R. (2011). Family Law in England and Wales. Kluwer Law International. 216-220

Sloan, B. (2017). Borkowski's Law of Succession. Oxford University Press. 70-71

The Gazette, (n,d). What is testamentary capacity? Retrieved from: https://www.thegazette.co.uk/all-notices/content/100844

A Federal Case on Juries

A major aspect of the Bill of Rights involves a person's right to be tried before a jury, and this forms a critical part of justice systems. A jury trial for any offense that attracts a punishment of six-month imprisonment or more is guaranteed by the Sixth Amendment for anybody but such trial is not provided to cases involving juvenile delinquency for minors (Joseph, 2017).  The jury has an important role of checking the unregulated powers of the prosecutors who wield much if it when making a decision about whether to bring criminal charges on a defendant. It is important to study the role of a jury, especially in relation to access to evidence presented by the prosecutor such as films, tapes, and transcript at the time of deliberations (Joseph, 2017). This also involves the provision non-testimonial films exhibit that has been presented as evidence to the jury.

Seventh Circuit in United States v. Loughry F.3d

Facts

The case involved Roger Loughry, the defendant, who had been prosecuted for offenses related to child pornography. In 2008, the federal police officers carried out a search warrant on the defendant’s home and this resulted to the seizure of compact discs and a computer, and both contained videos and images that related to child pornographic materials. The defendant’s computers was found to have bookmarks that allowed a person to fast access  Cache , by then a website that uploaded child pornographic materials. Ultimately, the defendant was indicted on various charges relating to advertisement of child pornographic materials, distribution of such materials and a conspiracy to distribute them.   The jury indicted him on all the accounts at the initial trial. Following an appeal, the conviction was vacated by the Seventh Circuit. Also, the case was remanded for another trial on the argument that the videos introduced at the trial were prejudicial. The jurors had been provided with a red binder that had images of child pornography from the computer cache and other related white binders and this formed the basis of convicting the defendant (Federal Evidence Review, 2013).

The defendant appeal

 The defendant appealed for the case and claimed that the trial court was wrong by accepting that the red binder with child pornography to be seized from his home and then provided to the jury at the time of deliberations.  The defendant claims were based on the notion that there was "a great danger of prejudice" (Federal Evidence Review, 2013).  In addition, he cited the evidence was inflammatory in nature and was prone to abuse and misuse when sent back to the jury. Therefore, Loughry's only challenge was the decision made by the district court to send evidence to the jury. He argued that the court had violated it discretions when it presented the jurors with the images and the depictions of young girls' in sexually explicit engagement was likely to inflame emotions of the jurors and then prevent them from assessing his guilt in a rational way (Federal Evidence Review, 2013).

Seventh Circuit decision

The court of appeal recognized that jurors are normally entitled to view any exhibits that the prosecutors properly admitted as evidence.  The court cited previous cases where the district court was found to have violated its discretion by declining to send exhibits that had properly been admitted to the jury at the time of deliberations as had been requested by the plaintiff. However, the court did not need to always give the jury with any exhibit obtained as evidence and that in some circumstances; the district court may enforce its discretionary authority over the jurors to put leave out even an exhibit that had properly been admitted (Federal Evidence Review, 2013). The Court of Appeal held that even if the defendant's points were valid in relation to the impact of child pornography from home, there was no violation of discretion in permitting the materials to be provided to the jury as evidence.  The evidence produced was of highly probative nature and thus, it was found that the district court had remained within its discretion. The appeal Court concluded that any existing prejudice risk to the defendant did not warrant the evidence to be excluded from the jury room. In fact, the Seventh Circuit recognized that the claim put across did not involve admissibility of the images containing child pornography, but providing it to the jury room (Federal Evidence Review, 2013).

 Analysis

 The case is important since it addresses the issue of providing films or tapes to the Jury while the case is being deliberated upon.  The question involves whether a jury should be allowed to view, touch or even manipulate a give demonstrative inside a jury room. It also highlights the important factors that should be considered by a trial court while making decisions in case some evidence is not presented to the jury while deliberating on a case.  The decision should be made on the basis of the line drawn between exhibits of non-testimonial evidence and the testimonial evidence.  In essence, exhibits considered to be testimonial should be presented to the jurors, regardless of whether they have been a presented as evidence so as to prevent the case of unnecessary emphasis while disregarding the oral testimony.

References

Joseph, G. P. (2017). Modern visual evidence. Law Journal Press. 6-44

Federal Evidence Review, (2013).On providing the Jury Access to the Exhibits Admitted At Trial. In the United States Court of Appeals. Retrieved from: http://federalevidence.com/pdf/2013/12Dec/US.v.Loughry.pdf

Law essay

 In contract formation, the element of intent is very vital, whereby the intention of a person to establish a binding contract is determined by the outward and objective facts. For a contract to be binding there are various requirements that should be met lack of which will mean that not contract is formed.

Offer

This element involves a promise by a party to act or desist from acting in turn the other party gives a similar return promise. Other offers may not involve a return of another promise but require the other part to perform the act or desist from acting. Preliminary negotiations are different from legal offers in that the persons involved in preliminary negotiations do not presently have intent to enter into a contract (Miller & Jentz, 2010).

Acceptance

This element involves assenting to the terms of the contract and should be made according to the specifics of the offer.  If the offer does define the manner of acceptance, a reasonable manner under the prevailing circumstances may specify the acceptance. The valid of an acceptance is only upheld if the offeree is aware of such an offer and his behavior indicates that he intends to accept and the expression of the acceptance does not involve conditional or ambiguous agreement to its terms (Miller & Jentz, 2010).  

Consideration

Every party should provide something valuable that will persuade the other to establish the agreement, and such value does not have to comprise a currency.  Rather, it may comprise of promise to carry out an act that a person is not legally bound to do or to desist from performing an act that is his or her legal entitlement (Miller & Jentz, 2010).

Mutuality of obligation

The principle of mutuality of obligation holds that each party should be bound to carry out their obligated acts. Otherwise, the agreement will be treated under the law as if none of the party is bound by it. After exchanging the performance agreement, no party may be given the unlimited or absolute right to dissolve their contract (Miller & Jentz, 2010).

Competency and capacity

The aspect of competency and capacity involves the fact that a natural person who is a party to a contract has full legal capacity to bear liability for duties he or she agrees to perform. The exception is in case the individual is unable due to intoxication, mental incapacity or he or she is a minor (Miller & Jentz, 2010).

Writing requirement

There are bodies of laws that have been enacted specifying that some contracts should be written to be binding. This is referred to as the statute of frauds.  Not all contracts needs to be written since oral contracts are also binding (Miller & Jentz, 2010).  

In a surety agreement, one person (surety) enters into an agreement with a creditor to perform the obligations of principal debtor (Cipollone, 2014). In the above case, liability of the surety (Kevin) is determined by whether the debtor (Bonnie) will default on payment of the debt or not. In this suretyship agreement, the salesmen wanted the Kevin to bind himself as a co-principle debtor with Bonnie so that Kevin was liable in similar manner with Bonnie, the principle creditor. In this case, a default by Bonnie means that Kevin would liable for the loan taken and is responsible to the creditor for the purchase of the lawn mower. A Surety stands more favored in law than the principal debtor since his or her liability is trimmed to a level that can be perceived acceptable by the court.  The law takes a more vigilant approach by construing sureties’ obligation or limiting their liability to the specific terms of the agreement (Cipollone, 2014).   This means that the surety’s liability or guarantor’s liability cannot go beyond what is implied in the defined terms of the contract.   Kevin in this case is responsible to the salesman who loaned money to Bonnie and therefore, will have to pay the debt since Bonnie defaulted on payment. Also, Bonnie is responsible to Kevin for the mower. After a surety makes the payment for the debt to the creditor, all the creditor’s rights are shifted to the surety by sub-rogation (Cipollone, 2014). From that times moving forward, the surety will be the creditor. In this case, Kevin can take ownership of the mower if Bonnie fails to refund the money.

To begin with, Hallie has no legal capacity to enter into a contract with Meta Education because she is a minor as per the Stare of Stuart.  The basic rule while entering into a contract with a minor is that the minor can void the contract as long as the contract does not involves necessaries.  The aim is to protect the young persons who may not be able to fully understand the effects of some contracts. This means that the minors are allowed to exit such contracts at their own discretion, a right that the other party does not possess (MILLER, 2018).  The above case means that Hallie has the right to void the contract while Meta Education does not have such rights.

References  

Miller, R. L. R., & Jentz, G. A. (2010). Fundamentals of business law: Excerpted cases. Mason, OH: South-Western Cengage Learning. 160-163

Cipollone, D. (2014). The Liabilities of Sureties. WJ Legal Stud., 4, 1.

MILLER, R.,  (2018). BUSINESS LAW: Text & exercises. S.l.: SOUTH-WESTERN.

Introduction

Judges have impacted or influenced numerous lives through their decisions making in the courtroom. This is the main reason why this topic is being studied and prevalent in each and every society. The issue is very critical. It is not easy to understand why a judiciary is an isolated place which has formed a ‘class'  around a particular group of individuals yet it has an impact on the outside community. Isolation of the judiciary from the community is outrageous (Alarid, Cromwell, Carmen & Cromwell, 2008).

Different communities have varied expectations of individuals they have entrusted with any power or authority. Decision makers or ‘judges’ in this context are needed to be ‘in touch' with community, members. To be described as an ‘elite' is now a severe criticism. It is utilized as a form of condemnation when applied in the confines of the judiciary. Judges are supposed to be very upright people responding to a community's values. Knowing communities values is not an easy task, although it appears to be easy (Christensen, & Levinson, 2008).

 Whether right or wrong, it is evident that judges are ‘out of touch’ with the rest of the community hence their sentencing does not directly reflect the average individual's concern, safety, interests, and wellbeing. Sentences delivered by judges need to be impartial containing both values and interests of the public and, to directly reflect the proven legal fundamentals and principles that can only be applied by a brilliant  legal mind such as theirs. The Penalties and sentencing Act requires a judge to abide by or follow some procedures for them to come up with sound judgment. The act also requires specific factors considered when making a sentence. The elements may include an age of the perpetrator and the extent to which the offender is vulnerable, the existence of any mitigating and aggravating situations that may involve the o perpetrator and the bodily or physical and psychological or mental harm that might have befallen the victim of the crime (Coffey, 2010).

Reasons why judges make unsound judgments

The Judge is the senior most post in ‘corridors’ of law and order in any society. Therefore they should be ‘in touch' with their community and deliver an ‘up to date' or sound and satisfactory judgments. This does not necessarily mean that their judgment should be too harsh or too lenient, but the community should be able to apparently read between the lines and conclude that justice was delivered effectively.  Community have no reason to complain or think the Judge was incompetent or unfair in hire or her judgment (Collins & Ringhand, 2013).

Judges and lawyers are known for their lack of diversity. They wine and dine with other ‘learned friends'. Judges and Lawyers   do not take their time to interact with other people in touch with the community other than themselves. Birds of a feather flock together is the motto they live by. For instance, the Supreme Court bench of Queensland was accused of having only Anglo-Saxon Judges.  Lack of diversity limits their exposure since diversity comes with varied opinion on various issues affecting the society as a whole. Therefore this upbringing naturally separates judges from communities at an early start of their careers. Also   the nature of their work isolates them from their communities as they spend most of their time networking with other lawyers or people of the same career path. Hence, in the end, they run out of information that might assist them to become more relevant to a community. The environment created with other legal minds often limits judges becoming ‘all-rounded' individuals (Haggerty, 2003)

Few judges have experience of serving at courts located in multicultural communities or societies. For instance, helping at various international courts of justice or other similar places has a lot of advantages. One of them being that it might give them the expertise they require to understand multiple communities and their perceptions at once.   The judges have spent most of their lives serving ate one bar which limits their experience of what or how to handle a more globalized and multicultural nation. The fact that they have not served as or judged in other international law courts do not deny them the fact that they are great ‘legal Minds’ but it puts a limit to their  experience and this in turn affects their  judgment in important cases that they may require specific multicultural experience (Persily, Citrin& Egan,2008).

Being senior in the ‘world of law' is a fundamental unit lawyers use to judge other lawyers. The more senior one is, the more the respect, and the more he or she rises above the ranks. This actually means that they will address the judges first as compared to other lawyers hence giving them the chance, power, and persuasion to make a first good impression that will sway the judge to make a decision based on the merit of the lawyer rather than his own judgment. A judge is more likely to be convinced by a lawyer of higher standing and reputation than other people who may be more right than the other famous lawyer (Waldrep, 2010).

Some lawyers are accused of not having enough expertise as lawyers, yet they are promoted to judges without any consultations   from other main stake holders. This type of judges end up making very ‘reckless’ decisions that are out of touch with the community (Zuger & Mooney,2010).

Measures that judges can take to ensure that they remain relevant to the community.

May be one of the ways through which the judges can keep ‘ in touch or ‘stay relevant' with the community is by carrying out regular surveys that will give them public opinion of what the community thinks on their decisions or what they expect to from them as judges. They can also come up with ways though which they can get feedback from the litigants immediately after making a judgment these are just some of the ways that can assist judges to incorporate their decisions together with community expectations (Waldrep, 2010).

What is perceived as ‘public opinion' is a deceptive concept and it is not as simple as it tends to appear. It is okay to say that in relation of most of the daily activities of most judges, there is no room for them to incorporate public opinion into their judgement .Most of the members of some communities do not attend court sessions and for those who attend, it is a rare affair or a ‘once in a life time occasion' (Waldrep, 2010).

In the days when juries participated often in the delivery of civil justice, some community members had a different opinion of civil courts .participation of juries in civil courts gave the community an opportunity to know how the courts work and this shifted their opinion of the courts .Although some members of the community maintain their unfavorable opinion on the judiciary or on an individual judge. Presently, the community has very little exposure to the judicial civil structure and the way it operates .The society views judiciary system in terms of its outcomes and a place where disputes are settled .They do not think their opinions matters to the judiciary. individuals whose cases have been handled by a judge  and  they came out as winners are more likely to have a positive opinion of judges' decisions .On  the other hand ,losers might have a different opinion on a   judge's decision. Others might form a rather wider impartial perspective on the decision judges pass as they assume that the judge has a wise decisions due to his ‘hand –on' knowledge in law. Some may take a keen interest while others will mostly likely ignore. Nevertheless, the society normally leaves constitutional law to judges and other experienced personnel in the fields (Waldrep, 2010).

In order to catch the attention of a community and focus is interest on judiciary is through crimes and punishment. This topic normally gains and tractions in the public sector hence the community is forced to engage in it .Opinion on such a topics are widely and expressed   in an honest sincere manner. There is a lot of community participation in crime and Punishment type of cases. Serious crimes are normally handled with the help of a jury. Therefore to get the varied opinion on a judge's decision and the public attitude toward judges (Waldrep, 2010).

The claim that judges are ‘out of touch' is normally leveled at a judge due to sentencing served by the judge to a particular offender. A community will probably react to a sentence made by the judge without considering the underlying factors that contributed to the arrival of the decision. A community's attitude toward a judge's decision or sentencing can only change when the details of the case are laid bare I for the public to understand. The meaning of the charges. Indicators that reveal if the reason behind the charges are true or false .the circumstances that influenced the decisions. Some communities speculate that some sentences may be politically based, not in the sense of political parties but based on the relationship between the community and the judiciary system (Persily, Citrin& Egan, 2008).

Although some judges claim that they know and acknowledge community's values, they may be confusing their personal values with community values for rhetorical reasons and without any tangible evidence that the community share the same values. Judges do not have the ‘know-how' or techniques of evaluating public participation. They generally do not seek to sway public opinions (Persily, Citrin& Egan, 2008).

After acknowledging that there is a major disconnect between a judge's sentencing with the community, the first thing to consider are the implications. Some may be rumors meant to destroy the name of a judge with a good standing and might not have any grounds. If there is more than ‘meets the eye’, it actually means that some judges take some cases lightly as opposed to the public. For instance a murderer may be sentenced to less than ten year in prison yet the community expected a hung sentence to serve as a lesson to anyone who would try to commit the same mistake in the community. The repercussions may cause the community to react by taking laws into their ‘own hands’. They may need up killing people they think deserved a heftier price than the one judge granted them .A plausible sentence which id guided by principles and procedure of law will most likely reflect attitudes of a society toward crime and punishment .Of course nobody believes that a judge should make their decision d based on the roar of a crowd. On the other hand, if there is any part that the judiciary must always maintain contact with is the public ethics while making their decisions. Parliament has major role to play to ensure the public opinion is well represented in court .parliament ensures that sentencing, both maximum and minimum are done in the right manner. Even so, the major role is still with the judiciary (Persily, Citrin& Egan, 2008).

The community most of the times knows the manner in which judges arrive at their decisions .Unlike most decision makers or other forms of leadership, judges must give out reasons behind their sentences to the public to justify and solidify their decisions and assure the public that justice was indeed delivered .The public may end up being unsatisfied by the decision as nobody puts into consideration what the public thinks of the case. Therefore, there is a need to enlighten and bring into account public opinion issues that are crucial to the community .Passing of a judgement without having a  second thought of what the community, might be going through   can lead to a negative attitude toward an institution. Opinion of the public on the judiciary is an important aspect that needs to be looked into by law experts (Alarid, Cromwell, Carmen & Cromwell, 2008).

References 

Alarid, L. F., Cromwell, P. F., Del Carmen, R. V., & Cromwell, P. F. (2008). Community-based corrections. Belmont, CA, Thomson/Wadsworth.

Christensen, K., & Levinson, D. (2008). Encyclopedia of community: From the village to the virtual world. Sage

Coffey, K. (2010). Spinning the law: trying cases in the court of public opinion. Amherst, N.Y., Prometheus Books.

Collins, P. M., & RINGHAND, L. A. (2013). Supreme Court confirmation hearings and constitutional change.

Haggerty, J. F. (2003). In the court of public opinion: winning your case with public relations.

Persily, N., Citrin, J., & Egan, P. J. (2008). Public opinion and constitutional controversy. Oxford, Oxford University Press.

Waldrep, C. (2010). Jury discrimination: the Supreme Court, public opinion, and a grassroots fight for racial equality in Mississippi. Athens, Ga, University of Georgia Press.

Zuger, M., & Mooney, S. (2010). Public attitudes toward civil justice: a report. New York, N.Y. (110 William St., New York 10038), Insurance Information Institute.

Death Penalty

Claim: Victorian Supreme Court judge Lex Lasry articulates that death penalty does not put off crime but is rather a dreadful thing to do.

Verdict:  There is a limited study on whether the death penalty discourages crimes. Professionals who have reflected on the issue of the death penalty as a penalty for murder claims there is no adequate proof to conclude that death penalty prevents crimes.

Support: Tshe death penalty is not an established deterrent for future murderers 

The final reprimand of a crime of the highest degree is death penalty. There is no other recognized penalty than death itself. At the moment, fifty-eight nations carry out the death penalty and the United States is one of them.  Presently, the U.S l use death penalty if a person is held responsible for a first-degree murder.  Those who believe in death penalty suppose that capital punishment will discourage murderers. In this essay, I will argue that death penalty does not discourage criminals and that states that carry out death penalty should veto the practice.

Before making an argument, it is important to present some backdrop of the death penalty. The initiative of capital punishment was introduced from Britain when the founding fathers affirmed sovereignty. The predecessors loved the initiative of death penalty given that it was a universal part of life. Europeans practiced death penalty for a variety of crimes. The first recorded execution in America took place in Jamestown in the year 1608 once a man identified as George Kendal was put to death for disloyalty. In the previous colonial time, laws relating to capital punishment differed from region to the other. Throughout the 19th century, the death penalty altered noticeably at it started to lose its recognition. States did not commit open executions. Instead, all execution was practiced confidentially. Ultimately, some states put an end to the death penalty.

Punishment as a prevention has been an aim that has not succeeded for ages. This model has failed to work though some people still think that it should be used to all criminals. In an article, “Death Penalty Is Deterrence”, the writers claim that by carrying out the death penalty, brutal crimes will lessen. It is true that brutal transgressions have reduced by 11% with massacres showing the prime decline (Harrell, 2016). This has occurred to some extent as a result of the powerful indication that death penalty is for aggressive criminals as well as murderers.

Revenge has as well been an objective for ages. Understandably, if a murderer is executed, killing would come to an end. Supporters of the death penalty believe that when a person’s life is taken, the stability of fairness is troubled. Unless that stability is restored, society surrenders to rule of violent behavior.  Only the death sentence of the killers restores and allows the social order to persuasively show that murder is an unbearable offence which will be penalized in kind. This philosophy has lots of faults mainly with death issues. For instance, if a state is disciplining an individual for a massacre, what gives that state the privilege to kill?

Lots of studies appear to invalidate the assumption that death penalty is an excellent prevention against brutal crimes and assassinations.  As per the Death Penalty Information Center, countries that do not practice death penalty have lesser execution rates (imonović, I., & United Nations Human Rights Office of the High Commissioner, 2014). The reason why the death penalty does not work as a deterrent is that the criminal does not think they will be caught. Reasonably, no one would commit an offence with the knowledge that they will be caught and executed. Prevention is a mental procedure thus lawbreakers do not believe that actual threat is present and there will be no avoidance.

Death penalty as vengeance no longer makes sense in the humanity today.  By execution of a criminal, the government conveys subconscious messages regarding execution. The position of capital punishment is for the reason that the administration wants to articulate that murder is an unbearable crime. By murdering a criminal, the administration challenges itself. Additionally, death penalty appears as settling of scores.  Two mistakes cannot make a right and assassination of a murderer will not re-establish the life or the executed. Currently, scandalous laws should reflect higher values than a vengeance.

Currently, the death penalty cannot be declared a competent form of vengeance. There are massive delays in practicing the death sentence of a convict. Figures confirm that there is an over eight year’s wait prior to carrying out an execution. Actually, nearly all death row convicts die of old age prior to their execution verdict. For instance, there are around seven hundred convicts on California’s death row. In case the fashion continues in the same approach, it would mean that most convicts would die of normal causes prior to their execution sentence.

Individuals who consider the death penalty as vengeance fail to accommodate the execution processes in the criminal justice structure. Lawfully, a convict is allowed to petition for their cases. A petition is essential because the procedure is intended to defend against human faults. A typical petition can take more than ten years.  There are basically not adequate judges to act in response to all petition cases assessments. For instance, the U.S Supreme Court collects thousands of case appraisals yearly but since there are just nine judges in the Supreme Court, only some of the cases are assessed (Arrigo, 2012). For these reasons, the death penalty cannot be declared as a competent room for justice.

Death penalty often happens to the poor. States that still practice death penalty should be free of execution but instead, have the most murder and vice versa. Conviction of the blameless occurs and death makes a miscarriage of fairness permanent. For instance, Maine and Rhode Island put an end to the death penalty as a result of community embarrassment and penitence after they discovered the death sentence of blameless men.  Was that not a good enough reason to disprove the efficiency of a death sentence? In addition, some criminologists maintain having statistically confirmed that when a capital punishment is exposed, more assassinations take place in the day as well as following weeks. A good example of this is the abduction of Linberg (Feser & Bessette, 2017). A number of countries espoused the death penalty for such offences but records demonstrated an increase in the abduction. Exposure might persuade offences instead of preventing it.  There is no proof that death penalty yield augmented protection against execution. This argument for the persistence of the death penalty is probably prevention but has been unsuccessful as a disincentive.

In conclusion, the death penalty should be put to an end since it does not solve its intended purpose. There is no convincing proof that supports those who believe that death penalty works.  There is proof though that death penalty is deteriorating. Executing a death row convict is extensive than a simple task. There can be elongated postponements in the execution procedures. Convicts die before their execution sentence.  Looking at the question of what is achieved to put someone on death row, it is obvious that death penalty is not a solution. The victim is already departed and executing the criminal will not bring him back to life. When the antagonists feel that panic of death will stop one from committing execution, it is not true because killings are done at the heart of fervor when a person cannot think reasonably. Consequently, death penalty makes mistakes permanent and the probability of mistake is unavoidable when based on the human ruling.

References

Arrigo, B. A. (2012). Introduction to forensic psychology - court, law enforcement, and

 corrections.

Feser, E., & Bessette, J. M. (2017). By man shall his blood be shed: A Catholic defense of capital

 punishment.

Harrell, M. P. C. M. U. (2016). What is the argument? - an introduction to philosophical

            argument and analy.

Šimonović, I., & United Nations Human Rights Office of the High Commissioner.

(2014). Moving away from the death penalty: Arguments, trends and perspectives. New York: United Nations Human Rights Office of the High Commissioner.

Gerard Baden Clay Case

The tragic story of Gerard Baden Clay fits the criteria of newsworthiness. When Gerard Baden Clay called the police on April 2012 to report his wife’s missing, he did some of the things that raised doubts about the missing case thus resulting him to be selected as the prime suspect in the murder of Allison. The court ruled that there lacked sufficient evidence to prove that Baden-Clay intentionally killed his wife. This ruling has sparked a public agitation as they regard the ruling to be unjust (ABC news, 2016, N. P).

Statistically, 36% of all homicide cases in Australia over the years, 2008-2010 were domestic related. Most of these cases are classified as those that have been committed by intimate partners. However, though the intimate partner homicide may be the actual cause of domestic violence, in most of the scenarios the incidents are not reported as domestic violence. According to Jewkes (2011), editors and journalists will choose a case and present the news according to the widespread professional criteria that are used as measures of determining a story’s newsworthiness. Gerard Baden Clay case was that of an intimate partner homicides case but it, however, posed a challenge for the investigators since the police had to determine whether the case was actually a committed offense or whether the victim had just gone missing where she experienced a premature death. The victim’s body was not discovered for about seven days and when it was found, it became more crucial as the forensic examination failed to offer a clear cause of death. Intimate partner cases are often associated with lies from the offenders and this is the leading factor that causes the investigators to look into the partner as a prime suspect as in most cases there lacks evidence on the cause of death as it happened in Baden-Clay case. It is from this that the police regard the case to be a motive case and thus they all work towards identifying the motive behind the criminal act as most people kill with intent.

Not all crime stories make a headline as some happen and only attract minimal media attention while other cases attract a huge media attention that can even last for a longer period. Some of the major reasons as to why these cases attract media attention is that they are cases that have a high social value, high popularity, sexual influence and a case surrounding children. Gerard Baden Clay case had all of these elements and actually, it became more enticing during the police briefings during the process of investigation and into live blogging especially during the court hearing. All of these news sources fitted perfectly into the daily news cycle. According to Jewkins’ elements of news value that makes scenario newsworthy, this particular case had the captivating elements of a newsworthy case. The cause of death was not determined, the victim was glamorous, the issue on Baden mistress, the monetary constraints and to an extent, the pretense of having a happy and a normal couple increased to the trickery. The one by one releasing of the information on this particular case during the investigation and the hearing sustained the public attention in the case. According to Jewkins, he argues that the media more than often requires a spectacle which enables them to offer a visual and dramatic influence on the audience. For instance, Baden had face scratches and the media greatly used the pictures that were taken during the briefs so as to support their theory. Hence there was more to the story and this maintained the public interest hence resulting to the media regarding the case as newsworthy. The case was not all about sensational media story but it rather was all about the loss of a mother and thus the case also involved her daughter.

This case has demonstrated to be a trial by media form of a case where the public judgment was influenced by the media coverage of the case. This caused an outrage over the case’s manslaughter verdict as they regarded as hysteria as it was being driven by a trial by media. The extraordinary interest in this case and the extremely high media coverage on this case prompted the Judge to invoke a seldom-used power in order to question the attitudes of the prospective jurors towards the defendant. This case dragged down into a manslaughter case through a unanimous decision which was made by the Queensland Court of Appeal (Hews et al, 2017, 1608). This decision was followed by the Court of appeal led to a high public outcry and in response to this, the Queensland Director appealed to the high court of Australia for a reinstatement of Baden-Clay’s murder conviction. It is thus important to note that the publicity that surrounded the case during the trial and also during the investigation could not at any time be ignored by the court.

This extraordinary publicity was caused by the criticism offered by the media in their coverage and some of the ill-formed comments that led the media to have more of sensational coverage which played a big role in the jury’s verdict. However, we can all conclude that the media coverage, in this case, was quite extreme and thus the impact that this publicity had on the ruling of this case was big as it even led to a correction by the court of appeal which according to the public was necessary and inevitable. This case, therefore, raises questions about the potential for the biased information on the social media and the influence it had on the verdict (Hews et al, 2017, 1608).

According to Warren’s chief justice discussion on justice, it is argued that justice means different things to different parties. To ordinary people, for instance, the public in the case surrounding the Baden Clay case, they regarded justice to mean due punishment to Gerard Baden-Clay, the offender when he was sentenced for the crime. To the media covering the case of Baden Clay case, they regarded justice to be served when a harsh punishment was given and when the primary focus was on the strong retribution and deterrence. Justice to Baden Clay, the offender meant fairness through a just court hearing and sentencing that does not punish him cruelly. Unfortunately, the sense of impartiality for Baden Clay was susceptible and an issue of sensation and also pressure.

Criminal offenses such as when a person is murdered just like Allison provoke profound and enduring grief. It is as a result of this grief that the public and the family members are intrigued to fight for justice for Allison.  However, to some of the philosophers in the same case, justice to them was based on morality and is equated with fairness (Fox, 2000, 1). The lawyers in the case expected justice to prevail by the rule of law as this is the conviction of implementing the legal laws that had been developed over the years to offer solutions to disputes amongst citizens. Justice to the judges also aimed at applying the rule of law in the case without fear of favor or rather affection. Judges in the case of Baden-Clay attracted differences of public opinion which was a good thing but their obligation was based on liberty from public opinion and thus their decision was accounted to law and also applied the standards of the society to which they were part of.  It is true that the committing a cruel and violent crime such as the case of Baden-Clay offends a society and hence any representation in regards to the case will call upon the criminal justice system to verdict a just degree of sentence for Baden (ABC news, 2016, N. P). Thus in most cases, such as murder-related cases, the prosecutor often in favor of the society in influencing a much longer sentence. The outcome of the case, however, did not favor all of these parties as the verdict was handed down basing on the rule of law of Queensland (ABC news, 2016, N. P). It is as a result of this that the Queensland prosecution has alleged an appeal to the high court seeking that the high court would reconsider reinstating the original verdict of murder on Baden-Clay. However, it is important to recognize and protect the human rights regardless of whether a person is an offender or the victim as it is only through this that equality is enhanced.

References

Hews, R. and Suzor, N., 2017. Scum of the Earth: An Analysis of the Prejudicial Twitter Conversations during the Baden-Clay Murder Trial. UNSWLJ, 40, p.1604.

ABC News (2016). Gerard Baden-Clay murder conviction reinstated by High Court. Retrieved from: http://www.abc.net.au/news/2016-08-31/gerard-baden-clay-murder-conviction-to-stand-high-court/7800556

JEWKES, Y. (2011). Media and crime. London, SAGE.

FOX, R. (2000). Justice in the twenty-first century. London, Cavendish Pub. http://site.ebrary.com/id/10272969.

Forensic Assessments in Criminal Cases: The Insanity Defense

Legally, an individual has to be sane so that they can be held accountable for their actions (Jacquin, 2016). The insanity defense is valid if the defendant was not sane at the time that the offense occurred which is caused by a mental disorder, reasoning obstruction or serious disruption of consciousness and thus cannot comprehend the real state of their actions due to the incapability to judge (Jacquin, 2016). An individual that is insane means that they never held a guilty mentality. For case 1 it is evident that Davidson meets the insanity criteria. This is because he did not comprehend that his actions were illegal since his judgmental ability was affected by Schizophrenia is a mental disorder. In other words, the experienced relapse affected the defendant’s conscious mind. This means that his actions were fueled by the mental behavior and this being a psychological illness he best qualifies to be categorized as insane. In addition, he has the inability to appreciate the wrongfulness of their actions which thus shows that he was not able to control his response and never acted in free will.

In the case of Davidson, I choose to use McNaugton’s definition. McNaughton asserts that insanity is when the individual never understood the state of their actions as being wrong because of their mental defect (Jacquin, 2016). This definition suits the offender since at the time that the offense occurred he was experiencing a psychological disorder that was mainly fueled by Schizophrenia. He would not, therefore, be able to control their behavior nor understand the wrongness of such as act in general. This is not, therefore, a faked condition as he has no competence to control his mental demands which have reached the chronic stage.

On the other hand, for case 2 it is evident that Jacobs meets the insanity defense criteria. This means that the defendant is not accountable for his actions because of the constant psychiatric illness at the time that the illegal acts were conducted. The defendant is associated with a diminished ability because he does not have the motive that is needed to conduct the crime but he had some degree of free will on the ground that his family had been killed on the assumption that he failed to protect them and therefore he wished that he would be punished for the mistake. Due to the psychological disorder that is ceased by depression, this affected his control in some way but this does not imply that he was not willing to engage in the activities despite the fact that he was fully aware of their illegality (Jacquin, 2016).

Brawner’s definition of insanity is suitable for the case. This is because of the psychological defect that resulted from depression the offender is not able to acknowledge the illegality of the act and he has no ability to control his behaviors (Jacquin, 2016). In that, in order to be considered sane, the offender should have full understanding and judgment of their actions when the crime was committed (Jacquin, 2016). However, in the case, Jacobs would not be able to control his actions as he was mainly driven by the psychological defect that obstructed his ability to make decisions or substantial judgment without fail. He, therefore, acted in a manner that was not rational due to the mental illness.

Reference

Jacquin, K. (2016). Assessment of Insanity. https://www.youtube.com/watch?v=8S9XkaZmuzw&feature=youtu.be

Discussion Board 3

In the last few years, the utilization of different alternative and innovative strategies rather than incarceration has been encouraged within the United States and globally as a means of lowering the congestion level in prisons (Bergman and Berman, 2018). Thus, the utilization of such methods is essential in steadying the prison populace while eliminating the associated issues. Criminal sentencing is usually aimed are assisting in the provision of rehabilitation and punishment of the offenders in the request of discouraging the participation of individuals in crime. However, based on the recent trends which have in turn highlighted the existing issues within the setting it is evident that the facilities are mainly focused on punishing rather than rehabilitation in order to transform the individuals while changing their behaviors. This is the rationale behind the development of the alternative options which have been encouraged as a means of ensuring that rehabilitation is achieved (Bergman and Berman, 2018). Some alternative sentencing strategies incorporate drugs rehabilitation, house arrest. Probation, and fines.

All these sentencing options are characterized by some practical outcomes such as decreasing the prisons populace, cost saving and increased effectiveness within the justice system. It cannot be denied that the sentencing principles were mainly created within the Criminal Justice System in the quest of creating and sustaining order. In this order, the primary goal is rehabilitation unless for certain offenses where the offenders can only be sentenced for life. Rehabilitation is essential because it not only helps in the restoration of an individual but helps in sustaining order within the society by creating some form of therapy to the society as a whole. The alternative options are fundamental in lowering the rate of discrimination as well as ensuring behavioral change because their major objective is to create transformation rather than focusing on punishments. The government is saving many resources by choosing the options and eliminating the issues of trauma within the society and illnesses that result due to congestion in the poorly equipped facilities.

Religion has been widely acknowledged for its persistent condemning of evil acts and thus encourages punishment and rehabilitation of those involved in offenses (McFarlane, 2010). According to Judeo Christian viewpoint, the Bible illustrates the different evils committed by individuals and offers some options through which individuals can be discouraged to take part. This religion asserts that God is not usually happy when individuals focus on doing evil things. It is thus asserted that crimes which are evil are involved in making an individual impure (Lipskar, 1996). The American is mainly assumed to be highly connected with the Judeo-Christian religion which although it discourages immorality it does not promote incarceration and is, therefore, more focused on the opting of differentiated strategies for dealing with punishment as well as discouraging individuals from committing crimes (McFarlane, 2010). The religion mainly asserts that even in the biblical era it is evident that even those that were involved in offenses were never incarcerated and most of them were sent to the refuge places in order to change their behaviors in general (Lipskar, 1996).

In summing up, CRS punishments are supposed to create positive implications that benefit all the involved parties and the society in general.  In this context, it becomes evident that imprisonment never serves the intended responsibilities and it does not, therefore, offer any benefits to the affected persons. Incarceration is also costly for the government while it emotional destroys the families of those involved which creates recidivism due to bitterness. In this context, the innovative and alternative approaches are the best ways of solving the existing issues ranging from cost to high crime level.

References

Bergman, P. and Berman S. (2018). Sentencing Alternatives: Prison, Probation, Fines, and Community Service. Retrieved from https://www.nolo.com/legal-encyclopedia/sentencing-alternatives-prison-probation-fines-30294.html

McFarlane, A. (2010). Can community sentences replace jail? BBC News. Retrieved from http://www.bbc.com/news/magazine-10725163

Rabbi Sholom D. Lipskar. (1996). A Torah Perspective on Incarceration as a Modality of Punishment and Rehabilitation. Retrieved from https://www.jlaw.com/Articles/PrisonerRights.html

LESSON ONE

1. Read the Constitution and identify one clause or section relevant to business. Write a brief summary of that about that clause/section.

            Section 8 of Article 1 is related to business. According to the section the congress is responsible for the development of taxes, imposts and duties that are aimed at paying debts to the provision of strong defense and improving the welfare of the country (National Archives, N.D). However, all the taxes should be uniform throughout the country. The section is related to business since if the taxes are high the revenue of business is affected as well as investments. This relates also to the duties that are imposed on borrowed money to run business. It is the same trends that play part in the regulation of bankruptcies and facilitating the development of the economy.

2. What impact did this decision have on American business? Write a brief summary.

The Heart of Atlanta Motel VS United States is the seminal case on the expansion of the Commerce Clause to include the regulation of in state economic activities that discriminate against groups protected from discrimination under the Constitution.

            The heart of Atlanta Motel was charged with discrimination as it failed to offer accommodation to black persons on the ground of race.  Based on Title II of the Civil Rights Act of 1964 racial based prejudice is illegal as the act not only affect business but social integration (Oyez, 2018). With the motel refusing to accept black people it was thus, infringing Title II (Justia, 2018). The court ruled that the application of Title II is particularly restrained to commercials that have rather direct and adequate association with the movement of both people and commodities, the conclusion was that the accommodation facilities had no authority to selecting guests that they believed to be suitable as that works against the regulation of the government. In my opinion, I believe that the decision had positive effects on businesses in the U.S because it not only discouraged discrimination but also expanded business target markets to include the whole population. With this, the revenue gained by the businesses is bound to increase.

3. Read the Citizens United Supreme Court decision and two other articles related to that decision. Answer the following question:
4. What clauses in the Constitution are the bases for the decision?

            Title II is the constitutional clause that was used as the base of the case’s decision. In that based on the clause discrimination by commercial facilities is forbidden given that it affects business and welfare of the country.

1. What does the decision mean for this most recent election cycle?

            The decision implies that for the recent election cycle the government should strive to protect human rights and corporations privileges being a major priority in developing the economy.

1. Should corporations be classified as persons under the law? Why or why not?

            Corporations should be classified as persons constitutionally in order to guard their rights. This is because similar to human beings they are entitled to their freedoms and privileges which should be guarded for their wellness and all those that are involved (Liptak, 2012).

References

Oyez. (2018). Heart of Atlanta Motel, Inc. v. United States. Retrieved from https://www.oyez.org/cases/1964/515

Justia. (2018). Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). Retrieved from https://supreme.justia.com/cases/federal/us/379/241/case.html

Liptak, A. (2012). Court Declines to Revisit Its Citizens United Decision. Retrieved from http://www.nytimes.com/2012/06/26/us/supreme-court-declines-to-revisit-citizens-united.html

National Archives. (N.D). the Constitution of the United States: A Transcription. Retrieved from https://www.archives.gov/founding-docs/constitution-transcript