NCJ Number
61269
Journal
Journal of Politics Volume: 40 Issue: 4 Dated: (NOVEMBER 1978) Pages: 898-907
Date Published
1978
Length
10 pages
Annotation
THE CONVENTIONAL RULE OF LAW IS ANALYZED IN TERMS OF HOW THE CRIMINAL JUSTICE SYSTEM MAY PROPERLY RESPOND TO CULTURAL CLEAVAGE AND IN RELATION TO SOCIALIZATION AND DISCRETIONARY JUSTICE.
Abstract
SOME WRITERS EQUATE THE RULE OF LAW IN CRIMINAL JUSTICE WITH EQUALITY UNDER THE LAW; WITH EQUALITY IN A BROAD POLITICAL, ECONOMIC, AND SOCIAL SENSE; OR WITH SOCIAL ORDER AND INDIVIDUAL FREEDOM AND RESPONSIBILITY. SCHEINGOLD VIEWS THE RULE OF LAW IN TERMS OF EQUALITY. HE FAVORS DISCRETIONARY CRIMINAL JUSTICE OR PERHAPS SEPARATE RULE OF LAW SYSTEMS BASED ON CULTURAL CLEAVAGE AND IGNORES THE FACT THAT MUCH CRIME TAKES PLACE BETWEEN AND NOT WITHIN SOCIAL GROUPS. IT IS CONTENDED THAT SCHEINGOLD'S IDEAS MISAPPLY THE RULE OF LAW BECAUSE THE RULE OF LAW'S AIM IS TO ACHIEVE JUSTICE IRRESPECTIVE OF EQUALITY IN THE SOCIAL CLASS SENSE. DISCRETIONARY JUSTICE CAN EXIST WITHIN THE RULE OF LAW, ALTHOUGH THERE ARE LIMITATIONS. IN SENTENCING, JUDGES MUST KEEP THEIR SENTENCES WITHIN STATUTORY LIMITS AND JUSTIFY PARTICULAR SENTENCES BY REFERENCE TO ACCEPTED SOCIAL NORMS. THE RULE OF LAW IDEAL, AS APPLIED TO THE CRIMINAL PROCESS, SHOULD NOT BE PREMISED ON THE BELIEF THAT SOCIAL DIFFERENCES CAN AND SHOULD BE SCREENED FROM CRIMINAL PROCEEDINGS. RATHER, THE RULE OF LAW IDEAL SHOULD BE BASED ON THREE ISSUES, I.E., THAT THE STATE CANNOT IMPOSE PENAL SANCTIONS FOR CONDUCT UNLESS IT CLEARLY PRESCRIBES CONDUCT BY LAW, UNLESS THE STATE PROCEEDS IN AN IMPARTIAL FORUM WHERE IT BEARS THE BURDEN OF PROOF, AND WHERE THE STATE DOES NOT COERCE THE ACCUSED TO WAIVE PROTECTIONS AFFORDED BY THE LEGAL SYSTEM. WHATEVER OPINION IS HELD ABOUT CULTURAL CLEAVAGE, IT IS UNLIKELY THAT FURTHER FRAGMENTATION OF THE CRIMINAL JUSTICE SYSTEM IS DESIRABLE EVEN THOUGH IT IS LIKELY THAT THE FAILURE OF SOCIALIZATION IS RESPONSIBLE FOR CULTURAL CLEAVAGE. FOOTNOTES ARE INCLUDED. (DEP)