Federal Constitution and international treaties or agreements: Case Analysis
Reid V. Covert
I. Facts of the case
Mrs. Covert was a civilian dependent on her husband, Mr. Covert, a sergeant in the United States air force who was stationed in the United Kingdom. Mrs. Covert murdered her husband in an airbase in the United Kingdom. Pursuant to an agreement between US and UK, which granted permission to martial court to take action against criminals for any offence committed in the United Kingdom by any American armed force serviceman or any of their dependent, Mrs. Covert was convicted by martial court as per article 2(11) of the Uniform State Code of Military Justice without any protection of indictment by the grand jury or right to jury trial.
Initially, the US court confirmed her conviction. She filed for a writ of habeas corpus and alleged that she was denied her constitutional right to have her charge presented to a grand jury or a right to jury trial as provided under the fifth and sixth amendments. She was sent to the US to await rehearing on her case. On rehearing, her petition was accepted (Haljan, 2013).
II. The issue
The main issue of the case is to solve the conflicting provisions of the Federal Constitution and international treaties or agreements and to know whether an American employed in the armed forces or their dependents living abroad found guilty of capital offence retain their right to jury trial as conferred under the Federal Constitution, thus rendering the trial by martial court as per article 2(11) of Uniform Code of Military Justice unenforceable.
III. Rules
The case involves two decisions so we have different set of rules which are given as below.
(a) Rule applicable during first decision
The first hearing on the case was based on Article 2(11) of Uniform Code of Military Justice (UCMJ) provides that all Americans serving with the armed forces or their dependents living in the UK are subject to provisions of this Code. Section 118 of Uniform Code of Military Justice provide for trial by the court martial for any capital case.
(b) Rules applicable during second Decision
Civilians found guilty of any crime are entitled to their constitutional right of protection on indictment by the grand jury as provided under the Fifth Amendment and right to jury trial as provided under the Sixth Amendment. The supremacy of the Constitution provides all rights to American citizens even if they are residing abroad.
Any legislation, treaty or foreign agreement must comply with provisions of the Constitution. The supremacy clause does not provide that any treaty or foreign agreement or any legislation passed does not have to comply with provisions of the Constitution. If the US government enters into any agreement or treaty with the foreign government and implement any legislation which is in conflict with provisions of the Constitution, then such agreements or legislation will be invalid.
The US government can act against its citizens residing abroad only if the specified limitations are imposed under the Constitution including Article III, section 2, 5th and 6th amendments.
IV. Analysis
First hearing on case
The Federal Constitution provides the right to jury trial to any American before his conviction. During the hearing of the case for the first time, the interpretation given by the US government was that the Constitutional right to the jury trial is available to Americans residing within the US territorial limits and is not available for American servicemen or their dependents living abroad.
Mrs. Covert, an American citizen, was tried by the martial court for the murder of her husband in the United Kingdom. She was denied to her constitutional right because she was living outside the United States and her conviction was affirmed by the US court. The court also provided for the provision of the jury trial if Congress finds it to be reasonable.
Second hearing of case
Second time, the decision was based on Article 2(11) which empowers the military courts to act against offences committed by American servicemen or their dependents in the UK territory without any jury trial cannot supersede Article III, Section 2 and the sixth amendment of the Federal Constitution which grant the right to jury trial to civilians abroad. The constitutional rights extend even beyond the boundaries of the US to Americans overseas. When the US government approaches out to punish a criminal, the constitutional rights of American citizens in abroad to protect own life does not go away on the ground of being in another land. So civilians cannot be tried by the court martial.
The supremacy clause given in Article VI of the Federal Constitution does not provide about non-compliance of provisions of the Constitution after enactment of any agreement or treaty with the foreign government.
There was no such intention of the law makers to set up a rivalry system between civil courts and military courts, where they compete with each other to exercise their jurisdiction over the civil criminals who are dependent on someone employed in the armed force. It seems incredible if the civil criminals are tried by the martial court and denied their right to jury trial.
The founders of the law used to accept the trial of soldiers by martial court for any offence during peace time with grudges. It will be again an annoying fact if Mrs. Covert is tried by martial court for the capital case committed during peace time.
Moreover, whatever jurisdiction the military court acquires as a result of the application of article 2(11) of UCMJ is lost when the convicted is handed over to the custody of the United States authorities. The article 2(11) of Uniform Code of Military Justice (UCMJ) became inoperative when Mrs. Covert was sent to the US and handed over to US authorities. On the basis of above rules, the petition of Mrs. Covert for the writ of habeas corpus was accepted.
V. Conclusion
The decision on this case was given twice in the US Supreme Court. The decision given during the second time was reversed by the court itself which happened for the first time in the US history.
Mrs. Covert who was convicted by martial court for the murder of her husband on the basis of Article 2(11) of Uniform Code of Military Justice (UCMJ) and was denied her constitutional right but was ultimately granted this right on the basis of the Supremacy clause of the sixth amendment which provides for compliance of all provisions of the Constitution by all treaties and foreign agreements. The Federal Constitution is a supreme source of law and no other state law, treaties or foreign agreements or legislation can supersede it.
Prison litigation refers to cases filed by inmates in the public courts of law. The number of prison litigation in the 1980’s skyrocketed to 23,230 filed in the US district courts under the Title 42 within the Federal Statute. The number increased by 49% in the 1996 an aspect that necessitated the Congress to pass the Prison Litigation Reform Act (PLRA) to reduce the number of cases (Bureau of Justice Statistics, 2014). The PLRA has two pillars, which are the prospective relief provision and the prisoner litigation provisions.
The two pillars have three major facets that hold the prison litigation in place. The prisoners need to go through all the administrative channels before going to the federal courts. Secondly, prisoners filing forma pauperis are required to pay the courts and filing cost via their funds that are present in the correctional trust fund. Lastly, the prisoners are not permitted to file forma pauperis if they have filed cases that have were terminated by the courts due to malevolence (Campbell, 2009).
The PLRA amendments served to benefit one party that is the courts by reducing the number of cases in the courts but were disadvantageous to the prisoners. The amendment makes it difficult for the prisoners to be guaranteed fair hearing in the federal and state courts. The amendment provides a long chain for the prisoners to follow before they file their cases in the court termed as exhaustion requirement.
According to Margo Schlanger who has done research on the impact of PLRA, she discovered that most of the cases filed within the system are discarded for frivolous issues. Some of them include missing a deadline, filing the documents with red ink or attaching medical records to support their claims in their submissions. The aspect makes it harder for the prisoners to not only file their cases but also win them (Sullivan, 2013). The legal system needs to make sure that the rights of all citizens by the fact that they are human beings are upheld, but inmates are shunned under the pretext of the PLRA.
The second effect is that it does limit the number of experienced lawyers willing to represent the prisoner. The reason for this is that the PLRA does limit the contingent rates that the lawyers can recover to 150% of the judgment and the hourly fees to 150% of the appointed counsel rates by the courts. This aspect coupled with the fact that the chances of winning are minimal deters them from taking the cases hence placing the inmates at a disadvantageous point.
Based on Booker (2016), only 5% of the cases involving inmates in 2012 was represented by lawyers when compared to 65% of the cases involving non-incarcerated individuals. The disparity reduces the chances of the inmates to get a fair trial and have an equal chance of winning the cases filed against the system.
Thirdly, the policy restricts the inmates from recovering from mental or emotional injury without proving a physical injury took place. In the prison case scenario, inmates are at times coerced into sex, discriminated against regarding religion, ethnicity among other violations within the constitution that do not involve physical injury. The prison and the legal system have a duty of ensuring such aspects do not occur, and in the case, they do the perpetrators face punishment. Based on this aspect the inmates end up adopting violence as a coping mechanism in the harsh environment while some commit suicide as a way of escaping their torture (Bark, 2014)
Prisons are areas where the criminals are expected to reform, but with the PLRA the reform involves infringing immensely on their rights as human beings. The courts have minimal authority when it comes to altering the prison policies to protect the inmates. The incapacitation of the courts gives more power to the administrators to set up more hurdles when the inmates are filing their cases (Schlanger and Shay, 2008). The increase in procedures and policies set do frustrate the inmates as it limits the chances of addressing their grievances.
Question 2
According to Schlanger and Shay (2008) jails play an integral role in the criminal justice system as they hold inmates as they await their trial, sentencing or charges. The jails serve to separate the criminals from the innocent people in the society. The aim of the separation is to keep the society safe from the criminal who wants to create havoc. Jails are typically run by the local government while others by cities or managed by people privately through contracts with the local government
The jail system holds criminals who have done petty offenses or those serving a sentence of less than one year. The inmate, in this case, is run through a system that will help them change their perspective on life, in other words, make them fit in the society. Jail system has a rehabilitation program that does give the inmates skills that will enable them to get employment after their sentence (Terry, 2009).
Furthermore, the jails decongest the state prisons hence ensuring manageable numbers. The USA as an estimate of 3,300 jails that hold 1/3 of 2 million inmates, the number has increased tremendously over the years due to the lifestyle changes in the society. It is true that there is a negative correlation between the rate of criminal increase and the jails in the country resulting in overcrowding in the system (Sullivan, 2013).
I believe the jail system is necessary as it does deter people from engaging in crime. The harsh conditions in the present jail system make many people rethink their decision to commit a crime. Moreover, the jail system does punish the criminals by taking away some privileges they enjoyed in the free world and aid them in reforming. Retribution is part and parcel of the jail system as it saves to bring a reformed individual to the society.
Question 3
Three punishment and incarceration theories form the basis of treatment programs they include utilitarian, retributive and denunciation. The utilitarian theory focuses on punishing the criminals to serve as a lesson to them and other members of the society. Under the utilitarian theory, offenders go to jail or prison to deter them from engaging in the same crime for a period (Mallik, 2014). When they are under the system, the system does introduce harsh living conditions that will make them regret their mistake.
The regret is what leads to the next step, which is rehabilitation. Rehabilitation deals with treating mental illness, violent behavior, and drug dependency. It also does incorporate educational skills that give the inmates skills and knowledge that will enable them to get jobs when they integrate into the society (Schlanger and Shay, 2008).
The second treatment program focuses on the retributive theory where the criminal gets punished for their offense (Mallik, 2014). In the USA, some states still have the capital punishment for offenders. The capital punishment serves to punish the offenders for the crime they committed and does give justice to the victims. The severity of the issue does make many potential offenders abstain from engaging in any criminal activity that will cost them their lives (Gottschalk, 2006).
The last one is the denunciation whereby the society subjects an individual to societal condemnation (Mallik, 2014). An example is when someone gives out information to a competitor in the business world. The publication of their name in the newspapers and the media serves to condemn them for their actions, and the business industry will shun their serves.
Treatment programs serve as a means of reforming the criminals into productive citizens. The programs give the criminals a second chance to achieve their potentials which do result in the growth of the nation. The treatment programs give the society an opportunity to deter potential criminals from engaging in crime. The major disadvantage is that managing the programs is costly and does add an immense burden to the state and federal system (Lowenkamp, Latessa and Smith, 2006).
Based on my analysis, I can conclude that they are necessary for ensuring that the victims get justice and the offender gets punished for their offense. The treatment programs provide the society with an opportunity to move forward from a negative event in their lives.
Question 4
Correctional system in the USA has undergone many amendments with the aim of formulating means to reduce the over congestion in the prisons and jail system. The first correctional policy is the reduction in the harsh sentences within the criminal judicial system. Many states in the USA have eradicated capital punishment in preference for the rehabilitation sentences (Lowenkamp et al., 2006).The adoption of the utilitarian approach with the aim of appearing democratic has increased the number of offenders hence increasing the number of inmates in the system.
Secondly, the AB 109 also known as the realignment bill serves the purpose of diverting the risk of punishing low-risk offender to the counties from the state. It also altered the three strikes law……” where the defendant convicted of any new felony, having suffered one prior conviction of a serious felony to be sentenced to state prison for twice the term otherwise provided for the crime…,’’ (California’s Three Strikes Sentencing Law – criminal_justice, 2017).
The AB 109 does increase the chances of criminals viewing the system as being lenient hence increasing their chances to engage in serve crimes. An example of the negative impact of this is the shooting of Whittier police officer Keith Boyer by an offender who was on a locally supervised probation instead of jail (Realignment (AB 109) in California, 2017).
The third correctional policy is the hands-off doctrine that eliminated the supreme court’s involvement in prison operations. The policy has resulted in the correctional facilities being under the direct control of the administrators. In the case, an inmate feels offended by the jail system and want their grievances addressed the long channels tend to limit them from getting justice (Gendreau, Goggin, and Smith, 2000). The hands-off policy is closely tied to the denunciation theory where the society does shun the inmates, in this case, the administrators. The aspect as resulted in the increase in violence in various jails and prisons around the country.
As discussed in this paper there is a conflict of goals that tend to affect the future corrections system. Different states apply different correctional policies when it comes to dealing with offenders. The drive is often political, civil or economic pressures faced by the legislature. The conflict in goals leads to lenient policies that favor one party while ignoring the other party directly or indirectly involved in a crime.
The second challenge is getting adequate funding. The correctional facilities in the current are underfunded by the federal and the state government. In 2016, the total budget allocated to the correctional facility was $71 billion which is not proportional to the high number of inmates in these facilities.
Thirdly, the correctional facilities have understaffed an aspect that makes it difficult to enroll the correctional programs fully. The aspect results in the offenders viewing jail term as a break from their real lives instead of a period to reform. The perception has led to the increase in the number of second-time offenders across the country (Gottschalk, 2006).
Lastly, there is a lack of proper coordination between the different agencies involved in the criminal justice system when it comes to correctional activities. The lack of a seamless flow of information on how to reform the inmates and decongest the system has rendered the correctional system ineffective (Gendreau et al., 2000).
In conclusion, the future seems bleak in the correctional system if the legislature and the society do not take a step to work together. The joint effort will enable the future generations to grow up with morals and the institution of progressive correctional policies that will reduce the rate of crime in the country.
REFERENCES
Bark, N. (2014). Prisoner mental health in the USA. Int Psychiatry, 11, 53-5.
Bureau of Justice Statistics, US Dep’t of Justice, (2014). Survey of State Criminal History Information Systems.
California’s Three Strikes Sentencing Law – criminal_justice. (2017). Courts.ca.gov. Retrieved 2 July 2017, from http://www.courts.ca.gov/20142.htm
Gendreau, P., Goggin, C., & Smith, P. (2000). Generating rational correctional policies: An introduction to advances in cumulating knowledge. Corrections Management Quarterly, 4, 52-60.
Gottschalk, M. (2006). The prison and the gallows: The politics of mass incarceration in America. Cambridge University Press.
Lowenkamp, C. T., Latessa, E. J., & Smith, P. (2006). Does correctional program quality really matter? The impact of adhering to the principles of effective intervention. Criminology & Public Policy, 5(3), 575-594.
Mallik, A. (2014). Theories of Punishment in the Ethics of Philosophy. Scholarly Research Journal for Humanity Science & English Language.
Schlanger, M., & Shay, G. (2008). Preserving the rule of law in America’s jails and prisons: The case for amending the Prison Litigation Reform Act.
Sullivan, K. T. (2013). To free or not to free: Rethinking release orders under the prison litigation reform act after Brown v. Plata. BCJL & Soc. Just., 33, 419.
All over the world, the criminal justice system of any state serves two major objectives; enforcement of the law of the land, and correction of offenders through various reform institutions. In this regard, criminal justice can be construed to mean a system governed by standard practices that aim to uphold social control, detecting and preventing crime, and most importantly sanctioning offenders through the use of various forms of punishments.
Significantly, criminal punishment is applied as a way to encourage proper conduct between individuals in the society and at the same time make one take responsibility for a wrongful act committed against another. In this respect, retaliatory acts are avoided because victims of crime will be satisfied that the wrongdoer has faced equal punishment in comparison with the act done. Notably, Lollar (2014) asserts that punishments can also be used as a compensatory tool towards victims of crime.
Retributive punishment
Foremost, this type of punishment is founded on the belief that the best way to respond to a wrongful act is by using a proportionate punishment. According to Flanders (2014) retributivists are of the opinion that when an offender commits an illegal act, the criminal justice system should make such a person suffer an equal and proportionate punishment.
Amusingly, retributivists attach their justification for proportionate punishment from ancient religious laws such as the ones contained in the Holy Bible, for instance, Exodus 21:23 avers that if any person commits harm, then the resulting punishment should be equal, hence the catchphrase “a life for a life, an eye for an eye, tooth for tooth, hand for hand, foot for foot.” Notably, similar sentiments are proclaimed in Biblical verses such as 5:38 and Deuteronomy 19:21.
Retributivists argue that as long as the damage has been done, there is nothing that can be done to reverse such damage hence the only way to administer justice is by giving equal punishment (Flanders, 2014). Seemingly, such reasoning can be said to be backward looking such that it does not take into consideration that at times crime may be committed in a unpremeditated way such that punishing an offender for the same would be harsh or excessive.
Another going concern for this form of punishment is that it may encourage revenge and promote retaliation in the society. Also, in some instances, it may be hard to draw the line between punishment that is sufficient and from the punishment that is excessive.
An example of a retributive form of punishment is the death penalty which according to Luliano (2015) is no punishment at all because it only seeks to insert pain as a measure of administering justice but does not address the root causes of crime or even ways of helping individuals refrain from such crime.
Utilitarian Punishment
First, from a wider scope, the utilitarian theory developed by Jeremy Bentham emphasizes that any action within the society should be directed towards achieving maximum satisfaction and catering for the well being of the majority members of the society. The utilitarian form of punishment, threads on the same footing by asserting that the laws that guide the conduct of the people in the society, should be used to maximize the happiness of the society (FERRARO, 2013).
Hence, crime and punishment should be kept to a minimum because they are inconsistent with happiness which the utilitarian theory of punishment asserts. Importantly, proponents of this theory of punishment recognize that having a crime free society may be a fallacy as such recommend that the form of punishment handed down to a wrongdoer should be directed to producing “good” from the person. In this respect, the punishment should not be unlimited.
Unlike the retributive form of punishment, which is said to be backward looking, the utilitarian form of punishment is largely presumed to be proactive on crime. For instance, the laws that direct how punishment should be handed down on crime should be designed to deter future crimes of the same nature.
Accordingly, rehabilitation of criminal offenders can be said to be one of the methods that the utilitarian form of punishment emphasizes as a way of administering justice. Rehabilitation mainly aims at reforming an offender rather than punish so that they may be integrated back into the society. Equally, jailing as a form of incapacitation of an offender also falls under the utilitarian form of punishment because, by removal of the offender’s ability to commit offenses from the society, future crimes of the same nature may be prevented.
Preferred rationale/form of punishment
First, it is important to appreciate the fact that in certain instances, the commission of a criminal act may not be planned such that one will be deemed unswervingly guilty of the act. Offenses such as murder may happen due to provocation such that one may end up taking another one’s life in the heat of passion. Similarly, minors and persons of unsound mind are not spared either when it comes to the commission of a crime. However, such a category of persons may be deemed to a special group because of the underlying issues such as the lack of understanding of the consequence that a particular act may lead to.
From the examples mentioned above, a retributive form of punishment will certainly administer justice in the wrong way because of its backward-looking nature of offering proportionate punishment. Without taking into consideration factors that may have led to a crime, any form of punishment handed down to an individual may be excessive or uncalled for.
By the same token, criminals are presumed to be ordinary persons such that one factor changed that status, for instance, one may seek to steal due to poverty. Alternatively, another person may engage in crime as an act of revenge for a wrongful act done on them. Under such circumstances, the form of punishment handed down should be directed towards enabling such a person reform and be integrated back into the society so as to continue developing.
Notably, even under religious laws, the principle of forgiveness is widely discussed. In this respect, retributive punishment does not give individuals any opportunity to reform or even afford the wrong persons with the chance to deliberate on pardoning the person after serving their sentence as an act of compassion.
Hence, I will argue that the utilitarian form of punishment stands out as the best-placed method for punishing offenders because it not only takes into considerations of the underlying factors that may have led to a crime but it also focuses on handing down the punishment that in the long run will stem out goodness from a person. Goralski (2015) is of the same views by asserting that models of punishment that presume criminals to be bad people who deserve harsh punishments should be relatively be avoided because this leads to vengeance rather than reform.
Philosophy of Imprisonment
Borrowing meaning from the Law Dictionary (2016), imprisonment means restraining or putting an individual in confinement such that his liberty is subjugated. In this respect, imprisonment can be said to be a tool of crime deterrence going by the fact that is limits one’s movement and activities.
Arguably, the rationale for imprisonment as a form of punishment can be said to have stemmed from the belief that by subjecting a person to a place whereby their rights and freedoms were limited to a minimal level, then people would be careful not to commit crime because of the hardships that one would experience while in prison.
However, one can say that imprisonment only acts as a form of banishment of an individual. This is to say, prisons only act as means of putting an individual away from his ordinary life such that he is disassociated with the society. Hence, for imprisonment to reform an individual, an extra effort must be provided a failure to which the individual will only lack his privileges which may not be enough to deter future crimes.
Stuart Greenstreet (2017) argues that imprisonment does not serve its purpose of preventing crime. In his discourse, “Prison Doesn’t work” he asserts that the reason why prisoners even after being released are likely to commit crime is based on the fact that by putting together equal minded people that share similar criminal mindsets, the likelihood of having a worse crime is high because of the perception that jail is used as a way of punishing them.
Also, innocent persons may be subjected to imprisonment such that if they are not helped in having a changed mentality of a criminal justice system, then the likelihood of prisons remodeling such a person by just having them locked up can be equaled to a time bomb.
From a personal point of view, imprisonment only serves to confine people to a place whereby they can no longer commit the crime, but it is not effective in deterring the occurrence of future crimes. Imprisonment should be supported with other special programs that help prisoners have a different perception of prisons and importantly assist them on being integrated back to the society.
Restorative Justice
Restorative Justice largely emphasizes on the usage of alternative measures to solve crimes and social disorders. According to Walgrave (2013) restorative justice embraces the ideology that wrongdoers should be empowered to rehabilitate, reform and be reconciled back to the community. Seemingly, any form of crime causes harmto another as such focusing on repairing the harm in perceived to be vital in assisting the warring parties. United Nation’s office on drug and crime asserts that restorative justice seeks to put things right between conflicting parties while at the same time preventing occurrences of similar misconducts through the use of corrective strategies and programs.
Nevertheless, this concept has been purported as being too ambitious in a bid to restore ties between the victims of crime and the offenders, especially when compared with traditional models which emphasizes on the punishment of offenders for any crimes committed. However, restorative justice must be applauded for promoting values such as forgiveness, dialogue, accountability and fraternity (Arlene Gadreault, 2015). Evidently, the main aim of restorative justice is to give both the offenders and victims of crime a bigger role to play within the criminal justice system so as to yield positive outcomes and at the same time offer the necessary assistance to both parties.
Notably, restorative justice can be regarded as an alternative dispute resolution mechanism, which uses less punitive channels often in the form of diversion programs under various state agencies that are meant to aid the involved parties to resolve the previous conflict. Accordingly, restorative justice affords offenders with the opportunity to take responsibility for the harm or injuries caused to victims and consequently, make adequate compensation.
Bentham project
Foremost, Bentham being a prominent law scholar that developed various law theories such as the utilitarian school of thought theory, it is then important to have a deep understanding of the message that he intended to put across through the use of his works. Thus, the Bentham project can be said to largely focus on Bentham’s writings and how they can be made relevant to the modern world’s activities.
The Bentham Project also can be said to focus on how to formulate basic codes of conduct within the society. For instance, the utilitarian theory of punishment can be said to follow the guidelines of Bentham’s utilitarian theory.
Lastly, this project is of great significance especially for learners to get to know the foundation and originality of various concepts that are applicable in today’s world. Having a deep understanding of the origin of things or events is important in assisting one to comprehend their significance in the society.
References
Arlene Gadreault (2015, January 7th). The Limits of Restorative Justice, School of Criminology,
