Comparative law and justice/United States

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Scale of justice 2 new.jpeg Subject classification: this is a comparative law and justice resource.

See also US States, which teaches about the U.S. states and includes a quiz.

Part of the Comparative law and justice Wikiversity Project Mlarthur 01:22, 24 August 2009 (UTC)

Basic Information[edit]

The United States is the third largest country in the world by landmass[1] and the fourth largest in population,[2] occupying a large portion of the landmass of North America. It is bordered on the north by Canada, on the south by Mexico, on the east by the Atlantic Ocean, and on the west by the Pacific Ocean. In addition, it has sovereignty over several outlying island territories, including most significantly Puerto Rico. The total landmass of the United States is 6,106,013 square miles[3]. Its geographical features include several large mountain ranges (the Rocky Mountains being the largest); many rivers with economic and historical importance, such as the Mississippi and the Hudson; and lakes including the Great Lakes. The climate of the United States varies considerably across its territory, ranging from the temperate seasonal climate of the Northeast to the desert conditions of Nevada; from the tropical warmth of Hawaii to Alaskan towns north of the Arctic Circle.

Map of the United States
Map of the United States

The total population of the United States is 307,255,427 as of August 23, 2009[4]. While its capital is located in Washington, D.C., the cities with the largest population include New York City (8.4 people), Los Angeles (3.8 million people), Chicago (2.9 million people), and Houston (2.2 million people) [5]. The total population has 0.97 males for every female; 20% are under the age of 15, while 13% are over the age of 65 [6].

The United States is characterized by a high degree of ethnic and religious diversity. The most common religions are Protestant (51%) and Roman Catholic (24%), while smaller groups hold other religions including Mormon, Jewish, Muslim, and Buddhist [7]. 62% of residents formally practice some religion [8]. The original inhabitants of the country, Native Americans, now make up only 1.6% of the population[9]. Most other ethnic groups arrived in the United States through immigration, though African Americans, who make up 13% of the population[10], were imported to the country as slaves. 66% of the population is White, 4.5% is Asian American or Pacific Islander, and 15% is Latino/a, with the remainder identifying as multiracial or with another racial group[11]. Today, the most common ethnic ancestries include German, Irish, English, and Italian[12]. While the United States has no official language, English is the most commonly spoken language, spoken as a primary language by 82% of the population (11% speak Spanish as their primary language)[13].

Economic Development, Health, and Education[edit]

The United States is considered a developed, industrialized country; its Gross Domestic Product is $14.29 trillion, ranked second in the world [14]. The GDP per capita is $47,000 (10th in the world)[15]. The United States economy is driven by information and service sector work; it is a gross exporter of motor vehicle parts, computers, telecommunications equipment, aircraft, and organic chemicals and a gross importer of crude oil, consumer goods, and machinery [16]. The currency is the dollar.

Despite its status as a developed, industrialized country, the United States ranks fairly low on measures of health status. Its infant mortality rate is 6.26 per 1,000 live births, placing it below 44 other nations [17]. Males have a life expectancy of 76 years, while females have a life expectancy of 81 years, placing the United States below 49 other countries [18].

29% of those over the age of 25 have earned a bachelor's or higher degree [19]. In 2008, 88% of 25 to 29 year-olds had graduated from high school[20], which requires 12 years of formal schooling. The literacy rate of both males and females is 99% [21]. This is driven by compulsory schooling through the teenage years; the exact age at which individuals are permitted to leave school varies by state, but all states require a minimum age of 16 or the completion of the 10th grade in order to leave school, while several do not permit school-leaving prior to age 18 even with parental consent [22].

Brief History[edit]

The United States was primarily colonized by England in the 17th century, with portions colonized by France, Spain, and the Netherlands but later acceding to English control. Independence from England was declared in 1776 and completed after military revolution by 1783. The former colonies became states and loosely confederated into one nation under the Articles of Confederation ratified in 1781, subsequently abandoned in 1788 upon ratification of the U.S. Constitution which remains the governing constitution today and which established an enduring federal government alongside the existing state governments. Periods of western expansion followed, including purchasing much of the interior continent from France in 1803, conquering the American southwest from Mexico in the 1830s and 1840s, and obtaining the Pacific northwest from England by treaty. Much of the southern portion seceded in the early 1860s but was retrieved after a bloody civil war. Alaska was purchased from Russia in 1867, and Hawaii was conquered in the 1890s. The United States obtained significant colonies during an 1898 war with Spain, including Puerto Rico and Guam, which remain unincorporated United States territories today.

Governance[edit]

The United States is a common-law country tracing its legal heritage to England, with the exception of Louisiana, which retains the civil law tradition inherited from France. Its government can best be described as a federated constitutional republic. The World Bank rates the United States below just 16 other countries for its control of corruption and for its rule of law [23].

The United States is governed by one federal government, organized under the Constitution, and fifty state governments, organized under fifty separate state constitutions. The federal government contains three branches with a balance of power between them. The Congress is a bicameral legislature consisting of a House of Representatives (whose 435 members are apportioned by population and directly elected by district) and a Senate (whose 100 members are apportioned by state, with each state having two senators directly elected by the citizens those states). The federal executive branch consists of a nationally elected President and numerous administrative agencies whose personnel are appointed by the President or other administrative personnel. The federal judiciary consists of a nine-member Supreme Court, more than a dozen circuit courts of appeals, numerous district courts, and other specialty courts. Most judges serve lifetime appointments and are selected by Presidential nomination and Senate confirmation. State governments vary in structure, but 49 of 50 have a bicameral legislature (all except Nebraska). The Constitution provides only that each state have a republican form of government. This governmental structure was established with the signing of the Constitution in 1787, though some changes in the electoral process were made after that date.

Each house of the bicameral legislature votes on bills by majority vote, subject to various political procedures affecting whether or not bills are able to come to a vote. Bills can then can be signed into law or vetoed by the President; if the President vetoes a bill, it can be passed by a super-majority of the legislature.

Elections[edit]

Elections are conducted locally and overseen by states, even as to federal elections. Most adult citizens are allowed vote. Although voters enjoy certain legislative and constitutional protections, there is no explicit constitutional right to vote. Rather, the vote may not be deprived for certain categorical reasons, such as race or age (for voters over eighteen). Felons are routinely disenfranchised, and most states limit voting rights for individuals with certain mental disabilities. The President of the federal government is elected by an electoral college, whose membership is selected by voters in each state and which is apportioned in the same way as the state’s federal legislators. The United States operates a two-party system, effectively blocking access to federal office by third party candidates. Elections are won by majority vote. Representation is thus majoritarian rather than proportional.

Judicial Review[edit]

Befitting its common law history, there is a significant role for judicial review in the United States. The Supreme Court hears cases on issues of Constitutional significance as well as disputes between the states and other federal matters. It has the power to overturn or alter laws when they conflict with the Constitution and has broad latitude to render decisions as it sees fit after consulting whatever resources it chooses to consult.

Courts and Criminal Law[edit]

Courts in the United States are organized in a hierarchical fashion, providing those involved in litigation the ability to appeal to a higher court. On the state level, initial matters are handled in state or local courts, depending on their seriousness. Different states offer two or three levels of higher courts, depending on population, to which cases may be appealed. Federal district courts offer the initial locations for federal matters, which may be appealed to circuit courts and ultimately to the Supreme Court. However, the Supreme Court accepts less than 2% of cases appealed to it, meaning that this option is open to very few. Alongside the regular court system for civil and criminal matters, there are a variety of specialized courts dealing with administrative law and other issues.

The United States has an adversarial legal system. Trials incorporate a judge, lawyers for both sides, and in many cases a jury.The right to a jury trial is guaranteed in both federal and state criminal proceedings. Federal criminal juries have twelve members, and state juries have between six and twelve members depending on the state. However, criminal juries have declined in usage given that individuals can waive their right to a jury trial and more importantly due to the option of plea bargaining, or pleading guilty to charges so as to avoid a trial. Grand juries are used federally and in some states. Juries in civil trials vary in size and usage, and there is no constitutional right to a civil trial jury.

There is a constitutionally guaranteed presumption of innocence, and guilt must be proved “beyond a reasonable doubt”. There is a constitutional right against self incrimination, although voluntary confessions and other voluntary statements are freely admissible. Criminal verdicts can be appealed by the defendant, but they cannot be appealed by the prosecution due to the protections against double jeopardy The accused has a constitutional right to have a lawyer, and indigent criminal defendants must have one appointed for them at government expense if they cannot afford one; it is rarely possible for individuals to choose private prosecution and instead must depend on the willingness of government prosecutors to bring a case. There is no constitutional right to have a lawyer appointed in civil trials.

Punishment[edit]

Most criminal offenses are punished by confinement in prisons or by fines, though several alternatives such as electronic monitoring, home confinement, and community service are also used. Severe crimes such as murder, assault, or theft tend to be punished with relatively long prison terms. Most states and the federal government used capital punishment for premeditated murder, treason, and terrorism; it is prohibited for sexual assault and child offenders. Despite its widespread availability and its rank as fourth in the world in capital punishment usage (after China, Iran, and Saudi Arabia)[24], a handful of states--Texas, Virginia, and Florida--account for the majority of executions. Executions generally employ lethal injection, though some states offer other methods. When fines are used they are tied to the offense rather than to the resources of the offender; victims rarely receive compensation from offenders, though many states have victim's compensation funds available.

As of 2001, incarceration rates in the United States were the highest in the world, with 1 in 37 adults currently or previously serving time in prison. There are significant disparities in imprisonment by gender and race. Black men have a 1 in 3 lifetime chance of imprisonment, while Latino/a men have a 1 in 6 chance and White men have a 1 in 17 chance. Only 6.6% of prison inmates are female, while 57% are under age 35 [25]. Analysts project that by 2010, 3.4% of all adults in the United States will have had prison experience [26]. Approximately one quarter of all prison inmates are incarcerated for drug offenses, and the majority of these crimes are non-violent [27].

Prison conditions tend to be severe, with prisoners facing strict separation from the outside world, spartan living conditions, regimented control, and the risk of physical or sexual violence. However, some offenders are contained in minimum security conditions that allow for work release and more recreational opportunities. Prisoners are guaranteed medical care and the right to practice their religions. Though some states provide more access than others, rehabilitative opportunities such as job training, mental health counseling, and higher education opportunities are rare. Instead, punishment in the United Stats emphasizes retribution, revenge, and confinement. Juvenile offenders have more access to rehabilitative services, but increasingly juveniles are tried as and confined with adults.

Torts and Civil Law[edit]

Private disputes are settled by civil litigation or alternative dispute resolution. Punitive damages are sometimes used to punish defendants who lose, although the award of such depends on the type of lawsuit, and they remain subject to constitutional caps on size (under the constitutional right against excessive fines). Individuals and organizations who may expect to be sued, such as doctors, often carry liability insurance to protect them against the financial risk of large judgments.

Legal Personnel[edit]

Federal judges are nominated by the President and confirmed by the Senate and serve lifetime terms with salaries that cannot be diminished. States vary in how they choose judges, with some having direct elections of judges. Judges do not require any additional training beyond the same legal education that lawyers receive. In fact, some local judges may be selected even without legal background.

Lawyers are trained in two- or three-year law schools that require an undergraduate degree for admissions. Law schools are selective in their admissions, but graduates are not eligible to practice law upon graduation. First, they must take a bar examination in the state in which they wish to practice. The application for this exam requires a substantial criminal background check and the disclosure of considerable personal information. Bar examination pass rates vary by state, and in some states, potential lawyers also must sit for interviews with the bar committee. After bar passage, lawyers are eligible to practice in any of the courts of the state. However, if they wish to practice in the courts of a different state, they must be admitted to the bar in that state separately. This often requires sitting for an additional bar examination, though some states waive that requirement after five years of practice.

Law Enforcement[edit]

The United States has had an uncoordinated and decentralized police structure [28], although that has changed since 9/11/2001, with large amounts of federal money, training, equipment and rules changes creating paramilitary police forces across the United States that work closely with, and sometimes under the direction of, the federal government. This means that there had been no centralized authority governing the law enforcement apparatus of the entire country; in addition, there is a vast array of different law enforcement agencies that did not systematically coordinate their activities with one another, excepting things like the National Crime Information System, joint task forces, and extraditions between states (which are routine). These law enforcement agencies range from many federal agencies, such as the Federal Bureau of Investigation, to local town police departments. Each law enforcement agency has distinct responsibilities and thus those operating at higher levels typically do not have a hierarchical relationship with those at the more local level, though of course they can request cooperation. Law enforcement agencies tend to be organized in a paramilitary fashion, with systematic hierarchies within agencies.

Law enforcement officers gain their employment through a variety of methods, depending on the particular agency in question. In some cases, potential officers need simply to apply and pass a physical exam; in other cases, selection requires completion of 2-4 years of higher education and the passing of both a physical and a standardized test. After selection, most law enforcement agencies require several months or more of training in a police academy that emphasizes physical, classroom, and practical training. Additional training may be necessary for those seeking to rise up the ranks, but is not required by all law enforcement agencies. The military forces in the United States are all-volunteer and are quite distinct from law enforcement; there is even a separate law enforcement and court system within the military. State-based National Guard forces may be called in by government officials to restore order in the aftermath of a natural disaster or significant civil disruption, but these responsibilities are separate from law enforcement powers.

Crime Rates and Public Opinion[edit]

Rates Per 1,000 Persons/Households
of Key Crimes in the United States[29]
Homicide[30] Theft Sexual
Assault
Physical
Assault
Household
Burglary
6.2 121.9 1.1 20.7 30.2

Crime rates are higher in the United States than in many similar countries. The most common offenses include theft and other property crimes [31]. Crime data in the United States are collected from a variety of sources, including local, county, state, and federal law enforcement officials' reports; arrest and conviction rates; and victimization surveys. It is likely that significant under-reporting of crime occurs, particularly in relation to sexual assault rates and crimes targeting immigrant neighborhoods, though victimization surveys do mitigate some of these data problems. 25 out of every 1,000 persons were victims of personal crimes in 2006, while 160 out of every 1,000 households were victims of property crime [32].

Public Opinion on Crime and Criminal Justice[edit]

People in the United States on average favor a "tough on crime" perspective. In 2008, 64% were in favor of the death penalty for an individual convicted of murder. 37% are afraid to walk alone at night, and a majority believed as of 2008 that too little money is spent on halting crime or on addressing drug problems. However, in 2006, 65% believed that attacking social problems would go further in reducing the crime rate than would increasing law enforcement. In 2008 58% reported having a great deal of confidence in the police, while only 20% reported a great deal of confidence in the criminal justice system overall[33].

Rights[edit]

Family Law[edit]

Family law matters are governed by the individual states. Generally there are few restrictions on the marriage of adult couples consisting of one male and one female; polygamy and polyandry are illegal. Those restrictions that do exist focus on residency requirements, minimum age limits (generally between 14 and 18, with younger individuals eligible to marry in many states if they have parental permission), and limitations on the marriage of close blood relatives. Six states allow same-sex couples to marry and one permits civil unions, although such marriages and unions are not recognized by other states or the federal government.

Forty nine states have no-fault divorce (all but New York), although three states (Arizona, Arkansas, and Louisiana) allow couples to choose “covenant” marriages that cannot be dissolved by no-fault divorce. Though division of property after divorce is subject to legal negotiation, the assumption is that property held by the couple will be divided evenly; those who enter into marriages with substantial property may choose to create a pre-nuptial agreement so as to preserve their rights to this property. Spouses that were dependent during the marriage may be granted some alimony, or spousal support, for a limited term or until their remarriage. Custody arrangements vary, with the general standard being "the best interests of the child." In the absence of abuse or other factors that clearly demonstrate the superiority of one parent, the most common custody arrangements are joint legal custody, with one parent having primary physical custody and the other parent having custody on weekends and during school vacation periods. The parent with primary custody generally receives child support payments until the child has reached the age of majority.

There is no Constitutional right to child-bearing, and children may be removed from their parents' care due to findings of abuse or neglect. In addition, adoption rights are not guaranteed. However, both domestic and international adoptions are legally permissible and are not infrequent as ways of building a family. Adoption statutes vary by state. Two states (Arkansas and Florida) expressly prohibit gays from adopting, and a third (Utah) limits adoptions to married couples. Some states allow second-parent adoptions, whereby a child can be adopted without severing all existing parental relationships. Matters of divorce and adoption are generally decided by a special class of state courts called family courts.

Inheritances are generally governed by private wills. Spouses are generally entitled to at least a minimum percentage of their spouses’ estate (typically a third). In the absence of a will, a decedent’s property devolves upon surviving relatives according to the state’s intestacy rules, typically half to a spouse and the remainder split among the children. Historically, legitimacy concerns were significant in governing inheritance, but the Supreme Court has found that legitimacy discrimination is subject to heightened constitutional scrutiny. Inheritance matters are generally decided by a special class of courts called probate courts.

Social Inequality[edit]

Women officially have full citizenship rights and they account for the majority of voters. However, an attempt to pass a constitutional amendment guaranteeing legal equality for women was unsuccessful. Therefore, despite legal prohibitions to the contrary, women remain likely to experience income, employment, and other forms of inequality. Unpaid family and medical leave is guaranteed for the majority of workers, excluding those working for small businesses and in homes, but paid parental leave is not provided by the government. While pregnancy discrimination is prohibited, parenthood discrimination is permissible. As might be expected, women bear the brunt of these conditions.

Minors do not have full citizenship rights and are subject to certain legal disabilities and protections. Elders are generally not treated differently from other adults, although because elders make up a disproportionate share of voters, elders receive certain extra government entitlements. Age discrimination in favor of or against elders is constitutionally permitted but sometimes barred by statute.

Governmental discrimination against certain categories of people (“suspect” or “quasi-suspect” classes) is prohibited, including race and sex. Governmental discrimination on the basis of certain categories of protected interests (“suspect” or “quasi-suspect” classifications) such as religion, parental legitimacy, or national origin. There is no constitutional right against discrimination by private entities, although federal and state legislation prohibit certain types of private discrimination such as sex discrimination in employment. Despite these protections, racial inequality still exists, as can be seen from the imprisonment statistics above. In addition, the government is able to discriminate when there is a substantial government interest in doing so, a rationale that has allowed the prohibition of certain religious practices despite the formal freedom of religion.

Human Rights[edit]

Rights in the U.S. are generally framed as negative rights against governmental encroachment, rather than positive rights. Federal constitutional amendments protect rights to free speech, assembly, religion; to bear arms (the scope of which is currently a matter of hot legal dispute); to be free of unreasonable searches and seizures; to compensation when governments take private property for public use; certain procedural rights in criminal trials and federal civil trials; to bail and against cruel and unusual punishments and excessive fines; to due process and equal protection of the law; against slavery; not to be denied the right to vote because of race, sex, or age (for adults over eighteen); certain reproductive rights including contraception and abortion; and to travel. These rights are secured in practice by constitutional review of criminal convictions and by private suits seeking judicial review of state and federal legislation. There are no economic constitutional rights.

The precise contours of these rights vary; immigrants who have not attained citizenship are in practice routinely denied many rights. Citizenship is automatic upon being born on the territory of the United States, while the process of attaining rights of residence and of citizenship can be complicated for immigrants, including those brought to the country as infants. The United States is a signatory to some international human rights treaties, but has not agreed to be subject to the jurisdiction of the International Criminal Court. It does accept refugees but has also been cited by other nations for violation of human rights, for instance in its internment of so-called enemy combatants in Guantanamo Bay [34]

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