The criminal law does not, despite all television shows to the contrary, belong to “the people.” Only the relatively recent creation of ‘victim’ rights has done much to change the face of a criminal law system that is, in terms of years, almost five centuries old. Fortunately, the popularity of crime dramas has done much to acquaint the public with the various issues confronting our enormous system. For example, America has the highest per capita incarceration rate of any industrialized nation. And for all of the focus on some criminal issues, most people still fail to recognize the fundamental distinction between civil and criminal offenses.

Civil wrongs occur between individuals. Criminal law exists as a confrontation of the government against some proscribed conduct, committed by an individual or group of individuals.

The American experience is also historically unique. For example, debtor prisons were once allowed because unpaid debt was regarded as fraud or theft. The American system categorizes debt as a civil matter: i.e., a dispute between two private parties. When a crime is alleged, however, it is not up to the victim to prosecute. In fact, the state may choose to prosecute against the wishes of a victim.

Five thousand years ago, the Code of Hammurabi was revolutionary…in terms of setting down written legal codes and practices. But the Code of Hammurabi was hardly enlightened, and beyond cementing the existing barbarity of the age (such as “an eye for an eye”) could hardly be described as the forefather of American justice. Instead, the unique melding of a Judaeo-Christian ethic, with its embrace of European enlightenment, led to the world’s pre-eminent system of individual protections.

The basis of American criminal justice is, first of all, uniquely written, and is initially contained in either the federal Constitution, or one of the varied state Constitutions. The beginning of a criminal case is first built upon issues of jurisdiction…was an offense a state or federal crime? The overwhelming majority of crimes committed (more than 75%) are state offenses. Only relatively recently has the criminal justice system tolerated the idea of successively charging a defendant in both federal and state courts for the same alleged crimes. When police in California were acquitted of beating Rodney King, that state acquittal was followed by federal prosecution. The officers tested the recurring trials as a matter of “double jeopardy.” The police lost the argument, were convicted and imprisoned.

Regardless of which jurisdiction charges, there are some common parameters. Because of the passage of the federal 14th Amendment after the Civil War, a handful of our basic federal rights are binding on state proceedings. These basic rights are the modern foundation of our criminal justice system.

Generally, most of the U.S. Constitution’s 4th, 5th. 6th, and 8th Amendments apply to state criminal law cases. These guarantees include rights relating to being secure from, for example, unreasonable searches, self-incrimination, or a lack of legal representation. Some federal rights are not applicable to state criminal cases: e.g., 2nd (right to bear arms); 5th (right to a grand jury indictment before prosecution). and 8th (right to reasonable, non-excessive bail)

One distinction even more frequently overlooked than jurisdictional choices is that most state constitutions have the same—or even more extensive—individual guarantees of liberty. The real importance of the federal rights being extended to state cases is in applying federal case law: many state courts have varied interpretations of the fundamental rights of individuals. Applying these federal court cases has had the effect of making more uniform the application of criminal justice.

Similarly, there are also commission studies that recommend standardized criminal codes in all states. Despite these efforts to a fairly consistent set of laws, each state retains great latitude in defining the requisite “elements” of a crime.

Many political leaders now discuss a sort of “internationalization” of the American criminal justice system. A new Supreme Court justice has even spoken of adopting more Continental practices of law. Yet, for all the 2009 talk of embracing European “justice,” too many people seem to forget the Continental system of “justice” still retains the maxim of “guilty until proven innocent.” This brings to bear the importance of the British system of justice, and the American acceptance of “innocence until proven guilty” by a Court. The American Revolution of 1776 seemed to have settled the question of Lords and Kings in determining guilt or innocence. The role of democracy guaranteed the right to trial by jury.