The history of punishment

For the most history punishment has been both painful and public in order to act as deterrent to others. Physical punishments and public humiliations were social events and carried out in most accessible parts of towns, often on market days when the greater part of the population were present. Justice had to be seen to be done.

A particularly harsh punishment is sometimes said to be draconian, after Draco, the lawgiver of ancient Athens. Draco’s laws were shockingly severe, so severe that they were said to have been written not in ink but in blood. Under Draco’s code death was the penalty for almost all criminal offences. But as the adjective Spartan still testifies, its wholly militarized rival Sparta was the harshest a state of law can be on its own citizens.

Punishmentis the practice of imposing something unpleasant on a wrongdoer as a response to something unwanted that the wrongdoer has done. In psychological terms this is known as "positive punishment". "Negative punishment", on the other hand, is when something is removed from or denied to the punished. A prisoner, for example, is both positively and negatively punished. He has an unpleasant thing imposed on him and also his freedom is removed.

Criminal Law

Criminal law, also termed as Penal law, encompasses the rules and statutes written by Congress and state legislators dealing with any criminal activity that causes harm to the general public, with penalties. It also covers criminal procedure connected with charging, trying, sentencing and imprisoning defendants convicted of crimes. It regulates how suspects are investigated, charged and tried. Criminal law also includes decisions by appellate courts that define and interpret criminal law and regulate criminal procedure, in the absence of clear legislated rules. In order to be found guilty of violating a criminal law, the prosecution must show that the defendant intended to act as he/she did. In other words, there had to be intention. Criminal law is typically enforced by the government. The state, through a prosecutor, initiates the suit. Criminal law encompasses Substantive Criminal law; Criminal Procedure; and the special problems in administration and enforcement of criminal justice.

Substantive Criminal law defines the crimes committed against the state and may establish punishment. It defines how the facts in the case will be handled, the classification of the crimes (such as, whether the crime is a felony or a misdemeanor), as well as how the crime should be charged. In essence, it deals with the “substance” of the matter. Criminal statutes determine which courts will hear what cases and who will prosecute those cases.

Criminal Procedure describes the methods through which the criminal laws are enforced. For example: when the accused can be searched; when evidence can be seized; and when eyewitnesses can be investigated. Criminal Procedure deals with a defendant's individual, constitution rights - including the right to remain silent, the right to a speedy, public trial by a jury, the right to a competent attorney, and the defendant's right to confront his or her accuser.

Enforcement of criminal laws in the United States has traditionally been a matter handled by the states. Criminal statutes, which vary by jurisdiction, describe the type of conduct that has been deemed a crime, the intent required, and in some instances, the proper punishment. In the application of punishment, there are typically five objectives: retribution; deterrence; prevention/incapacitation; rehabilitation; and restitution. There are limitations on the punishment that may be imposed. The U.S. Constitution's Eighth Amendment states: 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' A number of state constitutions also contain the same, or similar, provisions.

Criminal procedure

Criminal procedure deals with the set of rules governing the series of proceedings through which the government enforces substantive criminal law. Municipalities, states, and the federal government each have their own criminal codes, defining types of conduct that constitute crimes. Title 18 of the U.S. Code outlines all federal crimes. Typically, federal crimes deal with activities that either extend beyond state boundaries or directly impact federal interests.

The U.S. Supreme Court, pursuant to its authority under the Rules Enabling Act, first promulgated the Federal Rules of Criminal Procedure, (F.R.Crim.Pro.) which Congress, in turn, passed. The Federal Rules outline the procedure for conducting federal criminal trials. Similarly, states have their own codes of criminal procedure of which many closely model the Federal Rules. The Federal Rules incorporate and expound upon all guarantees included within the U.S. Constitution's Bill of Rights. A few of the rights guaranteed to criminal defendants by the Constitution include the guarantees of due process and equal protection under the laws, the right to have legal counsel present, the right to confront witnesses, the right to a jury trial, and the right to not testify against oneself. While state constitutions and procedural rules may increase the protection afforded to criminal defendants, they may not offer less protection than that guaranteed by the U.S. Constitution.