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Criminal Background Checks
Criminal background checks (CBC) are conducted to determine whether an applicant for a job has a criminal record or not. It is a comprehensive database search of state, local and federal government files and it exposes all convictions in the past, if any, regardless of the state of domicile.A criminal background check is a legal and inexpensive way of obtaining pertinent data about a person. Details of past convictions are stored in criminal records and other manuals of the court. Each state stores records and details of individuals with a criminal history in their respective courts. CBCs access these records to prepare a profile of the person concerned.
Criminal background checks are important to ensure that you are hiring an honest and trustworthy employee. It is an unfortunate reality that many employees seeking employment often withhold any data pertaining to criminal records. With the number of white collar crimes increasing, a criminal background check is the only way of ensuring that you are hiring a person without any previous history of fraud, felony, deception, criminal theft or violence. In the case of certain jobs, a criminal background check is statutory. For instance, in the US, a criminal background search is necessary for positions in educational institutions, nursing homes and adult health care centers.
There are different kinds of criminal background searches. So, when conducting a CBC, make sure that you are conducting the right kind. Many employers are happy with a basic CBC for the state of domicile. However, such a check only reveals criminal offences committed in that particular state. There is no mention of federal charges, if any. That is why you need to conduct a comprehensive criminal background search.
A comprehensive CBC reveals all cases of previous conviction. For example, if a crime was committed in a state where the individual previously lived, a CBC will contain the corresponding report. Similarly, all convictions will be revealed, unlike a state search where a check for sexual abuse will only reveal a history of sexual abuse while remaining silent on any other criminal activities. A federal criminal background search is important because federal criminal charges are more serious than state criminal charges. A basic CBC may not expose serious criminal tendencies like drug abuse, arson, smuggling or kidnapping.
A basic CBC can be obtained from government organizations like the Dept. of Justice. But the data you get from these agencies will be greatly limited in nature and cannot form the basis for hiring a person. Criminal background checks must always be conducted by a professional background screening company. These companies are legal and have wide access to a comprehensive database containing records from databases of courthouses across the country.
Criminal background checks are very important to ensure the safety of your loved ones and property. Whether you are hiring an employee or giving out your place on rent, you have to consider the potential liability you may face if the person you choose commits a crime. In that case, your best defense is to show that you have used the best possible means to check out the applicant’s history before you hired them. If you fail to do so, for whatever reason, you may be wiped clean by a court that will hold you responsible for negligent hiring.
People With Criminal Records Can Still Find a Job
If you have had previous criminal records, it is usually hard to find a job. This is because this kind of record stops an employer from hiring you with the fear that you might lose your calm in the future and do something bad. What is more, your capability to work is doubted once you acquire an arrest or criminal record. Unless you are residing in Wisconsin where it is illegal not to hire an applicant with a previous criminal or arrest record, you will definitely find it difficult to land work. But in this state, you will not get the vacant position if it is related with the reason why you have been arrested and filed with criminal records. This is due to the fact that your previous record is a hindrance from being able to carry out your work properly. The Best Jobs for Individuals with Past Criminal Records No matter how much you try to convince your employer that you are trying to change and you want to prove it by finding work, your past criminal records will say otherwise. This goes especially if the employer or company owner is very particular about the employees that he or she is hiring. If this is happening to you, you still have other job options.One of these is searching for a vacancy in the military or within military bases. With this kind of employer, you are guaranteed that your records will be waived. On the other hand, you can earn your own income by engaging in a home-based business or job. Since you will be communicating with other people through the web, it will not be so hard to look for work. There are a lot of businesses that are searching for individuals that are willing to work within their homes. The owners of these businesses will not ask you whether you have been filed with previous criminal records or not. Getting Into Online Telecommunications One kind of home-based job that is perfect for individuals with past criminal records is telecommunications. There are several telecommunications companies on the Internet. These companies hire individuals and allow them to work within their homes. What is more, plenty of these employers do not mind that you have a previous run-in with the law. Telecommunication jobs are usually offered by online call centers. You can work as data specialist, customer care representative, secretary, researcher, or encoder. On the other hand, you can also work as a telemarketer. The Benefits of the Internet for People with Criminal Records Who says that your criminal records will stop you from finding work? With the advancement of the web, it is easy for you to land a job even if you have been arrested. Online jobs do not have personal interviews wherein you will be asked with a lot of questions regarding your past experiences. What is more, online employers are not fussy with background checks. As long as you know what you are getting into, you are hired.
Through the Looking Glass part 2
NO-BAIL: A LOST BARGAINThere are two kinds of offences, bailable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody. The process of anticipatory bail, arrest, regular bail, filing of charge sheet, if any, have to follow the registration of an FIR. Given the nature of matrimonial disputes, straightway registering an FIR, which triggers the criminal justice process, can place the parties in an inflexible position and thereafter less inclined to reconcile their differences. Here comes in the notorious Crime Against Women Cell (CAW Cell), which has been notified as a Police station. The complaint, at the stage at which it is referred to the CAW Cell by the police, has not been registered as an FIR. The reference of the complaint to the CAW cell has increasingly gained recognition as supposedly having the effect of postponing the activation of the criminal justice process by facilitating dialogue between the parties with the help of the police. The Supreme Court has in some of its decisions recognized the practice of the police conducting a preliminary enquiry before registering an FIR. Now the CAW cell is not bound to follow the statutory procedure for investigation as under the Criminal Procedure Code, since it is only a pre-enquiry stage. So the cell devises its own methods to identify the nature of offence, collection of evidence and examination of witnesses. Even vague, unspecific or exaggerated allegations bereft of any evidence of any physical or mental harm or injury inflicted upon the woman cater to the cells quest to hound the husbands with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail. Thousands of such complaints and cases are pending and are being lodged day in and day out. Read between the lines, this is the tyranny of corrupt CAW cells. Picture Jasbir Kaur Vs State , where instead of making an effort to bring about amicable settlement between the parties, the cell blackmailed the husband with threats of registering immediately an FIR against him. Leading dailies have been documenting statistical evidence of the number of fake cases before such CAW cells, and yet we have figures such as over 100,000 women being arrested since 2004, u/s 498A!
Losing our reins over the mushrooming CAW cells is one aspect; the other is the sheer abandon of a citizens A.21 right under the constitution. When the basic criterion that whether there is any prima facie evidence to connect the accused with the crime is overlooked, and each time a bail plea is rejected even without giving opportunity of hearing to the defence counsel, it is a sheer violation of the basic principles of natural justice. The amended S.437(2), CrPC lends support to the contention that in deciding the question of grant of bail, the seriousness of the offence is of no consequence unless and until the nexus between the accused and the crime is highlighted by the prima facie evidence.
A RETURN-PATH TOWARDS LAW AND ORDER
The use of S.498A by reading in part or in isolation to each other, of the provisions of the Criminal (Amendment) Act No. 46 of 1983, is resulting in a stark deviance from the literal meaning of the section. Exigent is a reversion to the golden rule of interpretation here. 498A was never developed as a weapon of mass-destruction, but that is what it easily mirrors itself into, the moment the thin line between judicial activism and gross misconstruction of the provision is ignored. To save such ignominy of the well-intended provision, certain authoritative observations, such as the following, may be taken guidance of:
1.The Apex Court has set out in some detail, the categories of cases where the High Court may exercise its power relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice. Significant among them are:
1.Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
2.Where a criminal proceeding is manifestly attended with mala fides and where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
3.If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 of Cr.P.C would not be a bar to the exercise of power of quashing. The court considering the special features of the matrimonial matters, has observed that it is the duty of the court to encourage general settlement of matrimonial disputes U/S 498-A by quashing the criminal proceedings under that section. Further, it would not be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded.
4.An attitude that has the potential to uncover great institutional damage is that justice is required to be done only in the courts. It should instead be taken to be that any and every authority under the statute has to discharge its duties in a just manner, otherwise people will lose faith in the governance. Public authorities should stringently desist from unnecessarily burdening courts by placing before it frivolous and fabricated cases.
5.Section 498A is intended to protect the women from cruelty of husband or his relatives. It has been widely reported that this provision has been misused and is also harsh as it is non-bailable and non-compoundable. It is desirable to provide a chance to the estranged spouse to come together and therefore it is proposed to make the offence under Section 498A IPC, a compoundable one by inserting this Section in the Table under sub section (2) of Section 320 of CrPC, wherein it can be compounded with permission of the Court.However, as has been detailed above, the ordeal does not end at the withdrawal of petition. To treat this malady, an amendment to the effect of making the misuse of the law as a valid ground for divorce, is suggested. Furthermore, all marriages ending up with false dowry cases should not be allowed alimony and child custody.
A cardinal principal of the sentencing policy is that it is better to forgive ten suspected criminals than to punish one innocent person but today, the IPC 498A is powerfully working its way towards uprooting the very foundation of any such Rule of Law.
Through the Looking Glass part1
Lawmaker Manu's oft-quoted statement, that women are not worthy of freedom, exhaustively underscores the Indian Paradigm that was sought to be negated by the legislature, when it set out to pass the Criminal Law (Second Amendment) Act No. 46 of 1983, introducing for the first time, to a nation seemingly never full of dowry deaths and cruelty to married women, Section 498A the debutante in a code which lacked the intrinsic aspect of protection to the hapless victim of marriage in a patriarchal society. The 20th century had been the Dark Age for women the world over, who had been subjected to different standards than men. They had been consistently oppressed in nearly all aspects of life, from political to personal, public to private. Women were always a weaker section of the society, which denied them basics such as education, nutrition and expression. Consequently, marriage too weighed against them; statistical testimonies being the number of dowry-related harassment and domestic violence cases that are on record from that era.Section 498A of the IPC defined a new cognizable offence, namely, cruelty by husband or relatives of husband. It is directed against the husband and/or his relative, who is guilty of the offence of subjecting the wife of such husband to cruelty, and can be invoked by such wife, or daughter-in-law, or her relative, against the offenders. The term cruelty has been given a wide berth, a protectively, non-evasive connotation in the explanation to the section, and includes both forms physical as well as mental. The offence is non-bailable, non-compoundable and cognizable on a complaint made to the police officer by the victim or by designated relatives.
The legislatures bona fide attempt in re-asserting, through the passage of the aforesaid provision, a womans right to be treated with due care and respect, has been successful in its own right. It is only now that women are learning to use the laws put in place for their protection. This law has laid the foundation for the demand of a civil law to protect women and children. Domestic violence has since 1983 been recognised as a crime and also constitutes a considerable part of the workload of police, prosecutors and the courts.
However, 498A in leading the pack of Indian 'women-protection laws', and in assuming that wives are always honest victims of marital wrath, therefore requiring no proof of their claims before initiating action against the accused, quite unwittingly overlooks the possible emergence of a reverse trend in the aforesaid scenario. The victim turning into the abuser!
The section, today, has metamorphosized into a unilateral and indefeasible weapon in the hands of married women, which can be easily abused if intended. The scope and limitations of the section have not been defined and demarcated which makes the situation worse. Many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive.
POLICE PROCEDURES: FIRST IN LINE FOR THE SCANNER!
No arrest can be made because it is lawful for the Police Officer to do so.
Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence. S.498A was intended, by the legislature, to be invoked by way of private complaint to the Judicial Magistrate First Class or the Metropolitan Magistrate, who will take cognizance of the complaint, if it is found to be up to his judicial satisfaction, and issue summons to the opposite party, directing them to apply for bail. Nowhere in this scheme, does a clause of unconditional arrest book a place. But evidently, the Police has pushed to the backward recesses of the systems memory, the fact that the existence of the power to arrest is one thing, while the justification for its exercise is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. No arrest can be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person''s complicity and even as so as to the need to effect arrest. A person is not liable to arrest merely on the suspicion of complicity in an offence. It is not imperative that in each and every cognizable offence, the accused must be arrested merely because an F.I.R. has been lodged against him. The officer in charge, if comes to the conclusion that there is no sufficient ground for entering on an investigation, shall not proceed to investigate the allegations made in the report, and in such a situation, he shall inform accordingly to the informant.
Thus even a special women-oriented law like the 498A itself, is untenable where statistics such as the one indicating arrest of 30,000 innocent women annually based solely on the F.I.R lodged by a living tortured daughter-in-law or sister-in-law, are concerned. The law was not designed as ultra vires the constitution, and never was its true implementation intended to give way to any such defence of the section.
If any special treatment need be given to the said section, it shall touch upon the fact that S.498A unlike regular penal laws is a matrimonial law. Levying of other penal sections in addition to S.498A is a sure indicator of abuse of the process to cause arrest for ulterior motives. This additional levying causes a repetition of charges, because the said section is not entirely bereft of the elements of dowry demand. This is a clear abuse of police powers to arrest, by abetting the woman and her side to authoritatively implement her ulterior design to commit extortion in the garb of a prosecution for cruelty.
COMPOUNDING OF NON-COMPOUNDABLE OFFENCES
Based on whether a criminal complaint can be withdrawn, and investigations against the opposite party compromised to give effect to private settlement between parties to the complaint, offences under the penal code are divided into compoundable and non-compoundable offences. S.498A is a non-compoundable offence under the code. An offence under S.498A or any other offence under the Code which is not specifically enumerated in Section 320 of the Code cannot be compounded by the apex court in exercise of its powers under Section 320 and by High Court in exercise of its inherent powers under Section 482 of the Code.
However in a recent case of the Bombay High Court, it was added to this position of law, that, the inherent powers under Section 482 of the Code include powers to quash FIR, Investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. These powers are neither limited nor curtailed by any other provisions of the Code including Section 320 of the Code. The Court could exercise this power in offences of any kind, whether compoundable or non-compoundable. However, such inherent powers are to be exercised sparingly and with caution. Further, the Court should ensure that object and purpose of passing any order in exercise of its inherent powers should be confined to one of the three categories stated in Section 482 of the Code.
This fresh observation may be supplemented with the legislatures intention to not apply ordinary judicial procedure to the sensitive area of personal relationships. Litigation concerning or involving affairs of the family, therefore, seems to require a special approach in view of the serious emotional aspects involved.
A Division Bench of The Bombay High Court relying upon the judgment of the Supreme Court in B.S. Joshi''s case and expanding the principles of socio-welfare interpretation to the provisions of the Code, has thus ruled that the decision of the Supreme Court gives powers to the High Court to permit compounding of matrimonial offences and the High Court has powers to quash the criminal proceedings, FIR or complaint.
For the woman armed with skewed intentions though, and coupled with the executives inclination towards rampant abuse of police powers, as detailed under the preceding sub-heading, this newfound judicial activism serves as the perfect artillery to avenge and extort. Where the courts are allowing the withdrawal of the case when the parties agree to reconcile or settle case, in real terms it amounts to the fact that if you pay up, the case goes away, if you dont you will get stuck with a criminal case that will go on for years. Every year, close to 4,000 innocent senior citizens are arrested under IPC Section 498A. Many retired elders have been ill treated, thrown out of their own homes and deprived of their meager means of sustenance by greedy or vengeful daughters-in-law. A visit to the Crime Against Women Cell shall reveal hoards of Men and their relatives being tortured by the legal machinery at the behest of women.
Thus we are witnessing an era of misconstruction at its best, of the meaning and implication to be given to the compounding of this matrimonial offence.
7 Steps to Clearing Your Record
You don’t have to be stuck with a criminal conviction on your record. Your Washington State criminal conviction can be expunged if you meet the criteria. And after your conviction is expunged, Washington State law permits you to state you have not been convicted for employment purposes.Expungement is an often misunderstood term and process. In Washington State expungement of a criminal record or criminal conviction is accomplished by Vacating the Criminal Conviction. The terms Expungement and Vacating are largely interchangeable, the difference being that Vacating is the legal term.
Expungement of a criminal record by vacating the conviction does not destroy or seal the file. However, it is possible to destroy, or expunge, an arrest record if the eligibility requirements are met. When an arrest record is expunged, the booking photos and fingerprints are destroyed and removed from the police record.
In Washington State, the expungement process differs between felony and misdemeanor convictions. The following 7 steps are an overview of what is involved.
1.The Required Time Period has Passed Since the Case Completed.
The first eligibility requirement to expunge your conviction in Washington State is passage of the required time period. For a misdemeanor, the time period begins to run on the date the case is Closed. For a felony conviction, the time period begins to run on the date a document called a Certificate of Discharge is filed with the court. In both instances, a case is Closed or a Certificate of Discharge is filed after all the sentence conditions are completed as required.
2.The Conviction is Eligible for Expungement.
Certain convictions, and classifications of convictions, are not eligible for Expungement in Washington State. Generally, class A felonies (the most serious), sex crimes, and violent crimes cannot be expunged in Washington State. Among misdemeanors, Washington State does not permit a DUI conviction to be expunged.
3.You Meet the Clean Behavior Requirement.
Two situations will make your conviction ineligible for expungement. For a misdemeanor, if you were convicted of another crime on a later date then you would not be eligible to have the misdemeanor expunged. For example, if you were convicted of a misdemeanor in 1995, and another crime in 1997, then the 1995 crime would not be eligible to be expunged. For a felony, if you were convicted of another crime after the date the Certificate of Discharge was filed then you cannot expunge the felony.
4.Special Rule for Misdemeanors.
Washington State has an interesting rule that applies only to misdemeanor convictions. To expunge a misdemeanor, you cannot have had any other conviction expunged (vacated). What this means is if a person has a felony conviction and a misdemeanor conviction, and the person expunged the felony conviction first, then the misdemeanor could no longer be expunged. However, if the misdemeanor was expunged first, and if the misdemeanor conviction occurred before the felony conviction, then the felony could still be expunged.
5.Preparation.
An expungement, or vacation of a criminal conviction, requires a judge to sign a court Order. The court process is begun by filing a Motion to Vacate Conviction with the court. Prior to filing the Motion, you should get copies of the Docket and the Judgment & Sentence from the court clerk. You should also obtain a criminal history report, called a WATCH Report, from the Washington State Patrol website.
6.Your Day In Court.
Most Washington State courts require a hearing to Expunge, or Vacate, a criminal conviction. Most courts do not require you to attend if you have a lawyer appearing at the hearing on your behalf. If the preparation has been done properly, then the hearing should go very smoothly and the judge will sign the Court Order Vacating your criminal conviction.
7.Your Criminal Record is Cleared.
The court clerk processes the Order and sends a certified copy to the Washington State Patrol, which removes the conviction from the public database. The FBI record is updated based on the Washington State record. And, if the Order was prepared correctly, a copy will also be sent to the police department that handled the case and your record will also be cleared in their file. Your conviction has now been expunged (vacated), and your criminal record is cleared.
As you can see, you don’t have to be stuck with a criminal conviction on your record. It is not difficult to expunge a conviction in Washington State if you meet the straightforward criteria. In most cases, these 7 steps take only a few weeks to complete.
When The Police Can Arrest You Without Warrant
ARREST IN CRIMINAL CASESArrest means a physical restraint put on a person as a result of allegation of accusation that he has committed as crime or an offence of quasi criminal nature.
In Criminal cases the word arrest plays an important role. The police has power to arrest the accused persons. This is the crux of law governing arrest of Accused persons.
If a police officer arrests and takes an Accused into custody, if it appear to him that the investigation of the case can not be completed in 24 hours, he must produce the Accused along with the records of the case before the nearest magistrate.
As per the latest judgment of the supreme court the police after arrest of the Accused shall give notice of arrest to the relative or friend of the Accused.
The magistrate upon production of the arrested person may remand the Accused to custody for a period not exceeding 15 days. In case the police seek further police custody for the purpose of investigation, the magistrate may grant the arrested to the police custody.
If the investigating authority after arrest and investigation found that there are no materials or evidence against the Accused to implicate in the case, he can set him free directing him to co operate for investigation.
In case of bailable offences the police officer can release the Accused on bail by obtaining adequate surety to appear before the police station or court whenever required. If the offence is nonbailable one the Accused shall be produced before the magistrate and bail application shall be filed before the Magistrate court for release of such arrested person.
These are the provisions of the Code of Criminal Procedure pertaining the Arrest.
SECTION 41. WHEN POLICE MAY ARREST WITHOUT WARRANT.
(1) Any police officer may without an order from a Magistrate and without a war rant, arrest any person-
(a) Who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) Who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c) Who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) In whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) Who is reasonable suspected of being a deserter from any of the Armed Forces of the Union; or
(g) Who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which lie is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) Who, being a released convict, commits a breach of any rule made under subsection (5) of section 365; or
(i) For whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any, person, belonging to one or more of the categories of person specified in section 109 or section 110.
SECTION 42. ARREST ON REFUSAL TO GIVE NAME AND RESIDENCE.
(1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India
(3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
SECTION 43. ARREST BY PRIVATE PERSON AND PROCEDURE ON SUCH ARREST.
(1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
SECTION 44. ARRESTS BY MAGISTRATE.
(1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
SECTION 46. ARREST HOW MADE.
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be it submission to the custody by word or action.
(2) If such person forcibly resists the Endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
Federal Prison Consultant, Why Do I Need One?
Currently, the federal government through the Department of Justice has taken a strong stance on the prosecution of white-collar crime. White-collar criminals today are taking the brunt of the prosecution as compared to those white-collar criminals from years ago. There is no more Club Fed in the Bureau of Prisons' system. More and more white-collar criminals today are ending up at higher security prisons. It is no longer automatic for white-collar criminals to go to a Federal Prison Camp. Those days are over. It is no longer automatic for white-collar criminals to be sentenced to a facility close to their home and family. Prison overcrowding has made it much more difficult for a white-collar federal defendant to go to the prison of his choice. Defendants are now designated to facilities that have available space and that are consistent with the defendant's security designation.1.Designation to a Federal Prison Camp, or
2.Designation to a Federal Prison near his residence and family, or
3.Guaranteed stay of six months in a halfway house or home confinement, or
4.Guaranteed admission to the 500-Hour Residential Drug Abuse Program, and even if he graduates from the program, he may not be guaranteed a sentence reduction if he has certain items in his PSI which may disqualify him.
The federal government currently has a 97% guilty plea rate in federal criminal cases. Federal prosecutors have over a 75% conviction rate following trial, and 91% of federal criminal defendants receive a prison sentence. It is no longer a question of will I go, it is a question of how long will I be there. Frantz stated that with those statistics it is only prudent to hire a Federal Prison Consultant. How can a federal criminal defendant afford not to?
Full-service Federal Prison Consultants such as Frantz, have the expertise of representing their clients both before and after sentencing. It is important to have a Federal Prison Consultant that will position his clients for not only the many BOP programs and quality of life enhancements that the Bureau of Prisons' currently offers, but also to assist the inmate while in prison and after his release. Frantz helps in all these areas including job procurement, regaining your rights, and expunging or clearing your record.
Frantz works closely with the client's legal defense team to provide the client with the best possible net sentence. He said he is not an attorney. He does not take the place of the client's attorney. He works in cooperation and conjunction with the client's attorney. He is an expert in the BOP's policies and programs as well as positioning his clients for admission to the BOP's sentence reduction program. Criminal attorneys are charged with the task of preparing cases, negotiating possible plea agreements, and centering on the non-mandatory U.S. Sentencing Guidelines to determine the best possible gross sentence. They are uniquely disciplined and highly qualified in arguing cases before the court, developing defensive strategies, and reviewing Pre-Sentencing Investigation Reports. However, many attorneys are not fully knowledgeable in the Bureau of Prisons' policies, procedures, and Program Statements. After all, there are over 289 of them. A good Federal Prison Consultant is an expert in the BOP's policies, procedures, and program statements and can position his clients for these valuable programs.
Why Wrongful Convictions Happen
In a presentation made by a Virginia based non-profit organization entitled "Truth in Justice", a comprehensive statistics of the truths behind wrongfully accused people can definitely shed a light on the problems of wrongful convictions. Some of the common myths they presented about wrongful convictions include the following:-The idea that everyone in prison claims to be innocent.
- Only those people who live on the edge are charged with crimes they didn't commit.
- People who were exonerated must have done something to get charged in the first place.
- The justice system works because exoneration exists.
- The idea of "it can't happen to me".
According to research, almost 5% to 10% of the US prison population are factually innocent of the crimes they were convicted. What this means is that almost 200,000 convicts are innocent; 90% of which pled guilty of their crime. It has been assumed by the public in recent years that false accusations, false evidence, and wrongful convictions are only part of unfortunate inconsistencies in a supposedly well functioning justice system. It is also quite unacceptable for most of us why a suspect would plead guilty of a crime he/she didn't actually commit. However through recent research here are the top reasons why wrongful convictions happen.
1. Eye Witness Error - Due to confusion or faulty memory, eye witnesses commit mistakes in pointing out the real suspect. There are police investigators who manipulate witnesses to convict a target suspect by using underhand techniques such as six photo spread of similar looking photos and composite sketches of the alleged suspect.
2. Junk Science - This is caused by mishandled or fraudulent evidence such as debunked theories and erroneous DNA matching. Presenting unqualified experts who tamper the results of tests either through concealing or faking.
3. Government Misconduct - This refers to both police and prosecutor misconduct. Police officers have been reported to randomly pick suspects without valid evidence and also force false confessions from through manipulation. There are also some cases when the prosecution knowingly tolerate faulty evidence and false confessions just to compel a guilty verdict.
4. Bad Defense Lawyering - Lawyers who simply do not perform their duties properly. This includes lack of proper investigation, no hiring of experts, no effective cross examination, and no objections or arguments during the court trial. Contrary to popular belief, this is applicable for both public and private attorneys.
5. False Confessions - Witnesses who have experience police torture and/or bribery are likely to provide false testimonies. In rare cases, mentally retarded witnesses may also give out false confessions.
6. Snitch Testimony - Similar to the bottom fishing technique, police officers often search the jails for snitches willing to frame suspects in exchange for sentence reduction.
7. Others - Hearsay and other insubstantial evidence fall under this category.
The process of overturning wrongful convictions requires a complex process. With the help of a civil rights lawyer, the complainant will undergo several criminal, civil, and administrative proceedings to prove the claim. If successful, the complainant should file a separate civil action to receive a compensation. This will entail a similar series of complex court proceedings until prosecution misconduct has been proven. The complainant will receive fees and compensation for the physical and emotional damages, lost wages, and medical expenses.
Protecting your Rights with a Criminal Lawyer
Criminal law is a complex and overwhelming system. Attempting to represent yourself in court over criminal charges will often result in failure, unless you have prior legal knowledge. Your are entitled to legal representation so if you are facing criminal charges it is wise to hire in the services of an experienced criminal lawyer to prepare and deliver your defense.Protecting your legal rights is one the main tasks your criminal lawyer is charged with and they should also work with your best interests in mind. This include ensuring your defense seeks to obtain the best possible outcome for your case taking into account the circumstances of the crime and the evidence against you. Getting professional legal advice and help from a criminal lawyer is something you should do as early as possible as putting together a good defense can take time and a lot of work.
Finding a criminal lawyer can be as easy as asking around friends and family for recommendations. This is often the best way of finding the best lawyer for your case. Other options for finding a lawyer include checking out online legal directories which often carry adverts and profiles for lawyers in your local area. Checking out local press such as directories and newspapers for adverts and finally approaching the local bar association for a referral.
The cost of hiring a criminal lawyer can vary widely and will depend on many different factors. Many lawyers will work to an hourly rate, whilst others may agree a standard fee with you. It is a good idea to arrange to meet with at least two or three lawyers and talk to them about your case, their experience and fee structures. This first consultation is usually free of charge and you are under no obligation to hire them afterwards. When you decide to hire a lawyer you should get any agreement over fees in writing first and make sure it includes any additional charges, costs or fees such as court fees, administration costs and hire costs for additional legal personnel to work on your case.
If hiring a private criminal lawyer is beyond your financial means then you maybe able to find a lawyer to represent you who will work for reduced costs or ‘pro bono' which means they will take the case on for no fee (although other costs may be applied). You can also negotiate with a lawyer over fees and come to an agreement which suits you both, although not every lawyer is willing to negotiate over fees.
Your final option is to ask for a court appointed lawyer at your arraignment hearing. Court appointed lawyers are paid for by the state and although you have the right to free legal representation, many states require defendants to prove they do not have the financial means to pay for private representation. If you are eligible then a lawyer will be appointed to you straight away.
Hiring a criminal lawyer does not need to be a difficult and overwhelming process. It is worth remembering that any lawyer you hire works for you so you should not be afraid to ask any and all questions you may have.
Who Are They And What Should Society Do About Them?
It is essential in an ordered society to believe that citizens who do wrong can be rehabilitated. This must be true for a society to function properly. In the U.S., our sentencing structures and guidelines are built with this very thing as a foundation.However, there is a small portion of our society who despite all opportunities to rehabilitate, do not. This small portion of society who willingly choose to continue their lives of crime after having multiple types of intervention such as prison time, probation, alternative sentencing, drug court, inpatient drug treatment, etc..., are recognized as career criminals.
For several decades, studies have been conducted on crime and causalities by various bodies including major universities, criminologists and even the U.S. Department of Justice. These studies have found that approximately 80% of all crime is committed by 20% of all criminals. Some of the studies have provided slightly different numbers but all of them have found that a small group of criminals commit a vastly disproportionate number of crimes than their peers. (Wolfgang et al ., 1972; Petersilia et al ., 1978; Williams, 1979; Chaiken and Chaiken, 1982; Greenwood with Abrahamse, 1982, and Martin and Sherman, 1986).
These criminals are very antisocial and refuse any form of rehabilitative programs. The only time they might participate in such programs is when they are having their prison sentences shortened or risk of going to prison decreased because of their participation. They call it "buying time" because they know they are getting time off their sentences by participating in rehabilitative programs.
It is not uncommon for law enforcement officials all across the U.S. to encounter criminals on the streets who have amassed 10 or more felony convictions and that have been to prison 3, 4, 5 or more separate times in their past. When their background is examined, it is always found that these criminals have benefited from weak plea deals on cases, dismissals of cases in exchange for guilty pleas in other cases and various other forms of settlements of cases based on judicial economy rather than the two things that should be considered the most, protection of society and punishment.
Knowing all of this, it therefore seems to be common sense that law enforcement and the justice system should focus greater energy and resources toward those that commit the majority of the crimes. This is the very purpose of habitual criminal laws; to address the recidivists. In all 50 States and on the Federal level, there are habitual criminal laws of one kind or another. Some are very effective and some are not. 26 states currently have habitual criminal laws that include sentences of life without parole.
California has what is probably the most publicized campaign against habitual criminals known as the three strikes law. There is plenty of evidence that the laws in California have provided significant benefits both in protecting citizens from further harm but also in fiscal impact to the California prison system.
Calculations based on the California Crime Index indicate that between March of 1994 when three strikes was first signed into law and the summer of 2004, there was a dramatic drop in California's crime rate. Whether or not such a decline over those 10 years could be attributable to the three strikes sentencing scheme, other sentencing legislation enacted during the decade, changes in demographics, economic trends, or a combination of these factors, the crime rate in California fell by approximately 45% during this 10-year period. (Prosecutors' Perspective on California's Three Strikes Law - A 10-Year Retrospective, published 2004)
The prison system in California has seen its prison population numbers stabilize and has actually seen a massive reduction in the rate of increased spending in the budget for corrections. During the 10 years preceding three strikes (1984 to 1994), state expenditures for corrections increased nearly 220%. This is more than four times greater than after the enactment of three strikes.
"Many police officers, corrections officers and others, both inside and outside the criminal justice system, have noted that criminals fear three strikes. These people have also found that some criminals have modified their behavior. For once felons are worried about the criminal justice system and that has proven to be a deterrent factor. Despite predictions that the law would incarcerate many youthful offenders, for the 83 three-strikers sentenced to date (1997), the average age is 37 years old. These are career criminals, not likely to "outgrow" their antisocial behavior with added maturity". (Washington Policy Center, "Three Strikes You're Out; A Reform that Worked", published 1997)
The U.S. Supreme Court has frequently recognized that a State may punish persistent criminal offenders more severely than it punished other offenders:
Solem v Helm, 1983
Rummel v Estelle, 1980
Oyler v Boles, 1962
Graham v West Virginia, 1912
Even more recently on March 5th of 2003, the U.S. Supreme Court reviewed a California recidivist statute in Ewing v California. The finding was, habitual criminal sentences do not violate the Eighth Amendment of the U.S. Constitution which prohibits "cruel and unusual punishment". The court noted "...it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated."
In Nevada, there are habitual criminal laws that are similar to those in California. At the end of February 2009, there were 525 inmates in the Nevada prison system that were serving habitual criminal sentences that essentially vary from between 5-20 years, 10 years to life or life without parole. This is only 3.9% of the total Nevada inmate population. Based on the decades of criminological studies showing that 80% of all crime is committed by 20% of all offenders, shouldn't the number of inmates in prison who are serving habitual sentences be closer to 20% or even higher since this is the special breed of criminal that needs to be incarcerated the most?
One prime example of the positive effects of the habitual criminal laws in Nevada is a 2006 case on a defendant named Daimon Monroe, aka Daimon Hoyt (8th District Court of Nevada, case # 06-C-228752). Monroe had previously been convicted of 15 felony counts in a criminal case in 1992, 2 felony counts from a criminal case in 1993 and 2 felony counts from a criminal case in 1996. Almost all of his felony convictions involved him committing commercial burglaries. One of his prior convictions was for being an ex-felon in possession of a firearm. Another was for evading a police officer which arose from a car chase that resulted in a roll over crash. Monroe had been to prison two times before.
Monroe completed his second stint in prison and got out in 2001. Monroe returned to committing commercial burglaries almost immediately after getting out of prison. Monroe continued committing commercial burglaries between 2001 and 2006 without being caught by law enforcement.
It is conservatively approximated that Monroe had committed several hundred burglaries which was substantiated by testimony of his longtime girlfriend. The investigation resulted in the seizure of approximately $2,000,000 in stolen property from Monroe. Monroe had also amassed close to $200,000 in bank accounts from the sales of stolen property, which was seized. Monroe was arrested in 2006 and was convicted of over 30 more felony counts in three different jury trials.
In 2008, after the second of three different trials on Monroe, he was sentenced as a habitual criminal by District Court Judge Stewart Bell. At sentencing, Judge Bell told Monroe that in his 30 plus years of experience in the justice system that Monroe was the most prolific criminal he had ever encountered or had heard of. Judge Bell sentenced Monroe to consecutive terms of life without the possibility of parole.
To finish this story on Mr. Monroe, it should be known that he has also since been tried for soliciting the murder of a District Court Judge, a Prosecutor and the Police Detective who investigated him. He was convicted by a jury on three counts of soliciting murder and is awaiting sentencing. He is now a 48 time convicted felon and has never shown even the smallest hint of remorse whatsoever. He will also be standing trial in the near future for the sexual abuse of two juvenile female family members. Also, in late 2009, one of the cases that Monroe was convicted in was overturned on a legal technicality and sent back for re-trial. So it seems that his courtroom affairs will continue on for quite some time.
Is this the kind of criminal that can be rehabilitated? Is this the sort of person that should be granted some kind of leniency and allowed to exist in society? Monroe is not a lone wolf. Stories like his dot the map across the country. These truly dangerous and inalterable criminals cannot exist in society without them trying to find various ways of taking advantage of others to the point of committing serious crimes against them.
Another defendant who received life without parole was Gregory Hermanski (8th District court of Nevada, case # 00-C-167783). Hermanski had previously been convicted of 12 felonies including multiple separate times for armed robbery and bank robbery. Hermanski had served 6 prior prison terms in Florida and in Federal prison prior to being treated as a habitual criminal in Nevada. Hermanski was convicted of Robbery with a Deadly Weapon and Burglary with a Deadly Weapon and was sentenced in 2003.
A presentencing report on Hermanski stated, "Mr. Hermanski has been afforded numerous opportunities to cope with his personal problems. He has been psychologically evaluated on repeated occasions. Counseling and coping mechanisms have been offered to him in virtually every form of therapeutic milieu. However, the defendant has refused to cooperate with any agency that has made an attempt to assist him. As a result, he has compiled an extensive criminal record. A review of that record is reflective of an individual who is a very serious threat to the safety of others."
Is this the sort of individual that our system of jurisprudence should trust to exist in society? Would the justice system bear some responsibility if this person was ever released from prison and someday ended up harming someone? The Police, Prosecutors and Judges are empowered and entrusted by the people of their communities to protect them from these very kinds of predators.
The argument of barbarism often comes up when people discuss life sentences of criminals. I believe that it is a privilege to live in the United States of America. In many countries, these kinds of criminals would have been executed long before they established their prodigious rap sheets. It is not barbaric to separate predators from the prey. I argue that it is barbaric to continue letting the predators feast mercilessly on innocent people.
For those of you who live in jurisdictions that have strong habitual criminal laws, you should be thankful. For those of you that live in jurisdictions without, you should write your lawmakers.
Bradley is currently Co-Authoring a true crime story entitled "Repeat Offender; The true story of how the biggest thief Las Vegas ever knew was brought down".
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