Issues in Comparative Criminal Justice

Introduction to criminal justice: Criminal justice, which basically deals with criminal conduct, covers terrorism, computer crimes, drug abuse and trafficking and legal issues. Different nations have different criminal justice systems.

Inquisitorial criminal justice system: It is a type of a criminal justice system in which the court is actually involved in investigations pertaining to the case. Its sole aim usually is to find both incriminating and exonerating evidence without bias or prejudice.

The mafia and crimes they commit: The mafia, also known as the Cosa Nostra, is an unlawful society that is from Sicily in Italy. It carries out organized crimes, which mainly involve killings. Other unlawful deeds they get involved in are production of forged goods and distribution and abuse drugs. Since the mafia is a large and widespread group, it has hierarchies that make management of the group easier.

Prevalence: There are reported cases of mafia in the United States of America, but the mafia’s origin is Sicily, making it more prevalent in Italy.

The criminal justice system in Italy: An inquisitorial system was introduced by the Roman Catholic Church, but after some time it was dismissed as assorted, and therefore some reforms were made on it. These reforms covered the police and magistrates involved in investigations. The reformed system gave more privileges to the accused, and this was a great drawback on the efforts to fight the mafia.

Introduction to criminal justice

Criminal justice is the study and application of laws on the subject of criminal conduct (Zagaris 2010, pp 22). The arms of government involved in criminal justice are the executive arm (the police) and the judiciary, which includes judges and lawyers (Zagaris 2010, pp 22). It also refers to the activities that lead to prosecution of an accused person, and the system used by the government to uphold justice and to govern order (Zagaris 2010, pp 22). The topics addressed in criminal justice include computer crimes, terrorism, drug and substance trafficking and abuse, prisons and other legal issues (Champion 2005, pp231).

Through out history, the system of criminal justice has continually evolved in terms of the types of sentences given, the rights given to criminals and victims of crime and the law enforcement system (Gibson 2008, pp99). The evolution of this system can be traced back to the biblical principles governing criminal justice (Samaha 2005, pp93). The commonly known phras4e “an eye for an eye and a tooth” actually represents a system that was used to uphold justice. This statement represents the law used today known as the “rule of proportionality” in that one should be penalized in accordance to the loss they have caused. Therefore, it was not as literal as many think it was (Samaha 2005, pp93).

This law system later evolved, and there was an additional phrase “with two or more witnesses”. This represents the modern system of justice, which requires the presence of direct witnessing backed up by a second direct witness that is similar to the first during prosecution before a sentence is passed (Samaha 2005, pp93). This evolved to another system, which is widely used today, in which the most judicious were left to discern and judge in cases where there was a clash between the law and fairness (Siegel 2008, pp215). This is seen in the biblical statement “between blood and blood”, which meant that in cases of murder there was need to make an assessment of the degree to which the accused was responsible and deserved to be blamed for the crime (Samaha 2005, pp93).

The New Testament, which is but a reflection of the old, continues to make it clear that the law was unnecessary for those who were obedient but its purpose was to keep the defiant in check (Samaha 2005, pp93). The same case applies today, because one is in a position to have the law working for or against them depending on their actions. The law works for the obedient in that it protects their welfare and rights from violation; it works against the defiant by making them face the consequences for their actions against the laws of the land (Samaha 2005, pp93).

Another principle reflected in the biblical criminal justice system was the phrase “do not avenge, vengeance is mine” (Samaha 2005, pp93). This is applied in every system of justice today, and it is, in other terms, ‘taking the law into your own hands’. An example of this is the execution of mob justice which may seem just but is actually a crime in as much as its main aim is to ‘teach the criminal and his likes a lesson’ (Siegel 2009, pp118). Justice today, which was referred to as vengeance in history, belongs to the arms of the government. The legislature makes the laws to punish the defiant and to defend the innocent (Fabri 2000, pp100). The executive sees to it that there is observance of the laws and order. The judiciary is involved in prosecution of those found not obeying the law (Fabri 2000, pp100). Once the sentence is passed, the executive sees to it that the sentence is served in accordance to the orders of the judiciary.

Any criminal justice system, though, has many a failing. This is reflected when innocent people are sentenced to jail unjustly because many legal representatives give in to pressure exerted on them politically and try to make a point that they are hard-hitting on crime (Samaha 2005, pp93). This results to another major problem faced by every criminal justice system- prison overcrowding (Gibson 2008, pp99). This should be controlled by sending the violent offenders to jail first, instead of sentencing to jail, instead of rehabilitation centers, offenders who are not violent but are alcoholics, drug addicts or the not seemingly mental (Gibson 2008, pp99).

In many systems, most prisons are rugged, overcrowded and non compliant to public health rules and regulations (Gibson 2008, pp99). The administration personnel are either poorly trained or underperforming. The underperforming personnel are so because they are underpaid and they work under poor conditions; they lack motivation and inspiration (Samaha 2005, pp93). This translates to bitterness in them and, consequently, undue harshness to prisoners. As a result of all this, the rehabilitation and transformation that the prisoners are supposed to have undergone by the time they are done with their sentence is not reaped as expected (Gibson 2008, pp99). This explains why there are so many cases of prisoners who complete their jail term and are set free only to involve themselves in even worse crimes.

Inquisitorial criminal justice system

A type of a criminal justice legal system is the inquisitorial criminal justice system. This is a system in which part of the court actually takes part in looking into the particulars of the case; this is as opposed to the adversarial system in which the court is passive and only acts as an unprejudiced arbitrator between the plaintiff and the defendant (Samaha 2005, pp93). The inquisitorial system is only involved in deciding how the legal enquiries and assessment will be made, not the category of crimes for which they will be put on trial or the punishment they will bear (Siegel 2008, pp215).

In most inquisitorial systems, the defendant is not required to answer any question that directly concerns the actual crime for which he is being prosecuted but he answers other questions such as his historical background; something the adversarial system may find irrelevant and time wasting (Siegel 2008, pp215). The defendant usually is the first to give his own side of the story unlike in the adversarial system where the defendant is not required to talk through out the trial- his lawyer does all the talking (Siegel 2008, pp215). At this point, it is presumed that the accused is neither guilty nor innocent, as in the case of the adversarial system (Samaha 2005, pp93). The main aim of the judge usually is to find both incriminating and exonerating evidence (Samaha 2005, pp94).

Interestingly, the verdict in an inquisitorial trial is not only reached upon by having a collective vote of judges. A limited number of lay evaluators are randomly selected from the public, who give their opinion and judgment about the case by voting (Gibson 2008, pp104). The judges vote after the evaluators are through with voting so as to avoid swaying their opinions concerning the case to the incriminating or the exonerating side (Gibson 2008, pp99). This is as opposed to the adversarial system of trial, where the verdict is reached upon by a unanimous vote by the jury only-the public is not involved (Gibson 2008, pp99).

This system, like any other, has its pros and cons. Since the judge in an inquisitorial system is actively involved in finding the facts and evidence related to a case, there is a reduction of competition between the plaintiff’s party and that of the defendant, something that is obvious in an adversarial system (Siegel 2008, pp217). It also reduces the risk of wrong judgment when an advocate who has exceptional argumentative skills unjustly tips the equilibrium of the trial (Champion 2005, pp231). This results in a reduction of dispute between advocates, which is a major source of distraction and time wastage in adversarial trials (Champion 2005, pp231).

Unlike in the adversarial system, a presiding judge in an inquisitorial trial examines both the plaintiff and the accused, because finding the truth is his aim and because not all plaintiffs are sincere in their accusations (Fabri 2000, pp102). A trial in the inquisitive system is usually long because the proceedings can be cancelled due to unstable evidence (Siegel 2009, pp120). This is advantageous because in cases where there is weak or false evidence, most accusers will give up proceeding with the trial (Siegel 2009, pp120).

The inquisitorial system is very time consuming because of the time involved in finding evidence from both parties before the trial (Zagaris 2010, pp 28). The supporters of the adversarial system claim that the inquisitorial system is centralized around one person, and tends to undermine the competence and ability of advocates by side lining them a lot (Zagaris 2010, pp 28). The claims that the inquisitorial system is free from any political influence is also questioned, because the presiding judges in this system are also human and are therefore susceptible to influence and corruption like the judges or advocates in the adversarial system (Fabri 2000, pp102).

The main places which use the inquisitorial criminal justice system are Germany, France, Belgium, Netherlands and Italy (Zagaris 2010, pp 22). The Roman Catholic Church was the first one to make use of such system during the medieval period (Champion 2005, pp217). During this period, between the twelfth and the thirteenth century, a system was introduced where the judge used to oversee an oath which would be taken by the accused and the witnesses before questioning, who swore to be truthful in all that they would say in that trial (Champion 2005, pp217). The system was found to be quite effective and was accepted in England at around the sixteenth century. This greatly helped in the fight against specific crimes that were almost impossible to solve before (Champion 2005, pp218).

The mafia and crimes they commit

The Cosa Nostra, commonly referred to as the Mafia, is an unlawful society that is from Sicily (Paoli 2003, pp271). It is believed to have become known in the nineteenth century and was the first group to be called by the name mafia, though it was not the first criminal group in Italy (Paoli 2003, pp271). The Cosa Nostra identifies itself with other honorable names like “men of respect” and “The Honoured Society”. This group, which has a specific code of conduct, comprised of subgroups within itself referred to as “clan”, “family” or “cosca” which claim ruler ship over any region in which it has its operations(Paoli 2003, pp272).

Each cosca has a certain hierarchy whose overall head is called a boss (Dickie 2004, pp350). He is assisted by an “underboss” followed by a number of caporegime, who are the leaders of crews of several soldiers (Dickie 2004, pp350). This group also uses other people by the name “associates”, who are in the society, for their operations but they do not totally treat them as members. They are considered to be mere tools of convenience (Fijnaut 2004, p299). These associates include corrupt government officials, who also play a big role in leaking out information from the government to the cosca leaders (Fijnaut 2004, p299).

The Commission is a large organization belonging to the Mafia, whose main role is making decisions on the course of action that the group will take, as well as straightening out disagreements in the group (Fijnaut 2004, p293). It also acts as an agent from which to seek advice for self-governing families whose decision are reached at by agreement (Fijnaut 2004, p293). The Commission consists of capo mandamento or rappresentate, who are official ambassadors of a mandamento, which is a ‘district’ of three physically adjacent families (Paoli 2003, pp272). The Mafia extends its structure to a provincial level, and each province also has a Commission (Paoli 2003, pp272).

The Mafia is a group that carries out organized crime. Organized crime is much more dangerous than any other form of crime, because it involves many killings and atrocious terrorism (Dickie 2004, pp350). An advantage that a group of organized crime enjoys is continuity (Climent 2008, pp40). This means that the group continuously thrives even when a boss or a rappresentate dies, is arrested or defects, because he will be replaced by another (Climent 2008, pp40). The Mafia, like any other similar group, uses force to achieve their missions (Paoli 2003, pp274). They murder, beat people, destroy or burn assets in order to gain the attention they want (Paoli 2003, pp274).

The Mafia also controls membership on the basis of background, family relationship and race (Covey 2010, pp280). They have their binding rules which are called ‘the commandments’. These state that none should never look at the wife of another, or be seen in the pubs or in the presence of cops (Lombardo 2009, pp212). The members are commanded to respect their wives and to honour meetings without fail, even when their wives are about to give birth (Dickie 2004, pp350). This group forbids some people to join, namely: those who have relatives who are police, any mafia member who is suspicious and any one who does not uphold their set of moral values (Dickie 2004, pp350).

The criminal justice system in Italy

Though there are some reported cases of it in America, the Cosa Nostra is mainly prevalent in Sicily, Italy (Schneider 2003, pp240). The criminal justice system in Italy is established on the Code of Criminal Procedure (CCP) ratified in 1930 (Siegel 2008, pp215). Since then, there have been various amendments, the major one being in 1955 (Siegel 2008, pp215). The complainant was allowed to be present during questioning of the suspect by the police (Fabri 2000, pp104). However, a proviso which allowed for examination of the suspect in the absence of the defense in cases where the investigation necessitated immediate interrogation was made in 1978 (Fabri 2000, pp104).

A new Code of Criminal Procedure was approved and came into power in October 1989 (Zagaris 2010, pp 34). It warranted more superior privileges to the defendant and transformed the supposedly assorted inquisitorial system into a principally adversarial system (Zagaris 2010, pp 34). This was because they were dissatisfied by the inquisitorial system. The mandate that the judge previously had to examine the accused and to participate in the gathering of evidence was abolished (Siegel 2008, pp215). The system’s way of trial was to have an oral witness given on trial, as opposed to the system in which the evidence used is purely what was collected during analysis of the case (Zagaris 2010, pp 35).

Also, the reform saw it that the magistrate who was involved in the questioning of the accused before the actual trial would not appear on the trial date(s), and that the judge on trial would not have any information collected from the investigative stage of the trial (Fabri 2000, pp105). The focal intention for this was to ensure that both the complainant party and the accused party were on the same platform and that there was room for the plaintiff’s advocate to test against the accused using evidence he had, instead of depending on the facts assembled during investigation (Schneider 2003, pp240).

At the opening hearing, the magistrate who was involved in the questioning of the accused before the actual trial establishes the justification for the case brought about by the prosecutor (Siegel 2008, pp219). The complainant party, the defendant party and the magistrate are present, and a provision of appeal for the decision he puts forward is made (Gibson 2008, pp107). The final judge’s role is to see to it that the procedures of the trial are held justly (Gibson 2008, pp107). He can do so by requesting that the complete findings of the investigation be read out and by ordering for gathering and presentation of more proof in cases where there is need for more proof before passing judgment (Fabri 2000, pp107).

One of the things slowing down the fight against the mafia is the manner in which leaders in the Italian government perceive the mafia. They are only startled into the reality of the existence of the mafia when a massacre or an assassination has occurred (Schneider 2003, pp240). They forget that the Cosa Nostra has been in existence for over a hundred years, and that the group’s hierarchy system gives it an advantage of longevity and continuity (Gibson 2008, pp99). Therefore, staying for quite a while without reports of mafia-like killings is not reason enough to sit back and assume that the mafia no longer exists. This form of ‘silence’ usually is a time where such groups take time to organize crimes (Fabri 2000, pp108).

A good example of the laxity with which the look out for the mafia has been treated with is the sentencing of one of the major leaders of the mafia, Liggio Luciano (Allum 2003, pp150). During his lifetime, he stood in the dock countless times as a murder suspect (Schneider 2003, pp240). All of these times, he escaped going to jail because the cases were cancelled due to ‘lack of substantial incriminating evidence’. There is only one time in Luciano’s life where there was ‘substantial evidence’ to prove him guilty of murder, yet he was widely known to be a staunch mafia member (Zagaris 2010, pp 29).


To say that the criminal justice system of Italy has not succeeded in eliminating the Cosa Nostra would be an understatement, because the mafia has never been as strong as it is at the moment in Italy. The brutality and the number of killings, some of which are done in broad daylight, are increasing by the day. The forged goods producers that the mafia has command over are internationally based. The impact of the Cosa Nostra has been felt in the economy of Italy. The current legal system operating in Italy should have major reforms done to it, if the fight against the mafia is to succeed. Corrupt government officials who slow down the progress of fighting the mafia should be dealt with severely.


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