Category: Law 2955

Introduction

While there are many lawful matters in this incidence, the rescue services managers discharge based on his alleged neglect and the legality of this fire are the key items of concern. The soundness of this discharge can thus be founded on the legitimacy of the alleged negligence on the side of the entity fire service manager. If by any chance the negligence fails to be recognized in this case then the proof for discharge will be unacceptable and hence unlawful. To examine this case explicitly, I shall first examine the basis of the purported negligence to determine its liability. I shall then move on to discuss the matters surrounding the dismissal.

Analysis

In this case, the duty of care owed by the fire serviceman will be examined about the Fire and Rescue Services Act 2004, since it is legislative in form. In other words, services rendered by fire servicemen will be looked at from a legal standpoint as they aim at benefiting the whole public.

To ascertain the charge of negligence, I will first establish whether there was a duty of care or not. In case I find out that there was a duty of care, then the next step will be to determine the element that this duty was owed to. I will first consider this to enable me to define the breach.

The moment I conclude that a duty subsisted and was consequently infringed, inspection will revolve around the chain of causation and the query of remoteness (McBride and Bagshaw, 2008). In case the harm due to the infringement of the duty is so remote that it was not predictable at the occasion the alleged negligence happened, then accountability in negligence will lack.

As aforementioned, the fire and rescue manager owed a duty of care to the whole public. Since the time he was alerted about the fire by the proprietor of the factory, the fire service manager owed a duty to the whole community to guarantee that no damage or harm would be caused by the fire. As explained under section 38 of the Fire and Rescue Services Act, it was also his duty to make sure that adequate water was on hand for utilizing in extinguishing the fire (Great Britain, 2004). When the fire service manager arrived at the site, he carried out a full inspection in his duty to protect the proprietor of the factory and the whole public from any possible dangers of fire. By doing so, he evaded from breaching the statutory duty of care (Moran, 2007).

Considering this, the damage caused by the fire that he found when he was called for the second time could not be linked to his performance. However, the fact that he failed to identify a source of water to extinguish the fire broke the chain of causation by a Novus actus intervention (Baudoin and Linden, 2010). The Fire and Services Rescue Service Act explains that it is upon the fire services authority to provide water to extinguish fire either by entering into an agreement with a water undertaker or doing it individually. Going by this, there was a breach of care by the fire services authority (Great Britain, 2004). Since it is clear that this breach of care was predictable when negligence happened, then a prima facie claim exists against the involved fire service authority for breach of duty in the tort of negligence (Hattiangadi, 2007).

From the above discussion, it is clear that the fire service manager as an individual is not guilty. Instead, liability fell on the side of the fire service authority as a department. At the same time, there was no personal liability as the Fire and Rescue Services Act only contains provisions that address a collective breach of duties.

At this point, we can argue that as the fire services manager did not neglect his duties, his discharge was baseless and illegal.

To determine if or not the discharge of the fire service manager was just or unjust, the Employment Rights Act of 1996, mainly under section 98 offers statutory direction. The Employment Rights Act stipulates that a discharge will be just so long as it is grounded on either of these possible bases: the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; the conduct of the employee; the fact that the employee is now redundant; or that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment (Great Britain, 1996).

Firstly, it is obvious that the fire service manager was not unskilled or missing the pertinent credentials that were essential for him to carry out his duties. Secondly, he was not redundant and there existed no legislative ratification that would stop the legitimate continuance of his place of service (McBride and Bagshaw, 2008). Thus, the conduct would have been the sole existing basis for a just dismissal in this case.

This case should have centered on whether or not the neglect to set up and keep water supplies as stipulated in section 38 of the Fire and Rescue Services Act was a result of the fire service managers behavior. In case this transpired to be the case, it should have been publicized that this duty, or direct management of this duty considering that he was a manager, was in the sphere of activity of his trained errands (Moran, 2007). Furthermore, there was no other person who could have been seen as liable for this breach. However, this could not be a favorable suggestion due to several explanations. To begin with, if it was favorable, the responsibility for the supply and sustenance of water amenities was the lone duty of the fire service manager, so the fire service authority should have been legally responsible for not controlling and supervising its tasks efficiently. Again, since this role was very significant, more than one individual must have been liable for warranting compliance.

From this perspective, this discharge appears to have been unjust. The fire services authority as a group owed the duty of care to sustain adequate water amenities, but not the fire service manager as an individual. The damage was a result of negligence by the authority, not the fire service manager. In addition, this discharge seems to have been carried out incorrectly.

Similarly, the Employment Rights Act stipulates that workers should be given notice that is calculated based on the duration that a certain employee has worked for an institution (Great Britain, 1996). However, the fire service manager, in this case, does not seem to have been given any notice period. He was also entitled to a document with written grounds for his discharge. For that reason then, it would have been important for the fire service manager to request a document explaining the reasons for his impromptu discharge.

As noted by Lunney and Oliphant (2008), the key objective of the fire service manager in this situation would be to guarantee that his repute as a fire service manager is restored to avoid difficulties in acquiring new employment. The gauge of compensation he could have anticipated would have been founded on all losses, including loss of income and losses related to the search for new employment, which he could have encountered after discharge (Scrope and Barnett, 2008).

However, there were some informal, managerial procedures that the fire service manager must have thought about before founding proceeds to issue against his previous boss. First, he could have argued that his former boss did not carry out any proper investigation on the matter, as he had just decided to fire him as the most blameworthy. If that was the case then, he would have talked with his boss and informed him that he was planning to challenge the legitimacy of his discharge in court. Most likely, it could have turned out that the boss would be ready to compensate him silently (Lunney and Oliphant, 2008). This decision would also have benefited both parties. For the fire service manager, he would have benefited in that he would receive compensation for his discharge, save time and money that could otherwise have been spent in following the claim in courts. At the same time, his record of employment would have been safeguarded. On the other hand, the employer would have saved money that he otherwise would have spent in defending the claim and at the same time. Also, he would have saved the reputation of his organization.

Conclusion

In conclusion, the fire and rescue manager owed a duty of care to the whole public. Since the time he was alerted about the fire by the proprietor of the factory, the fire service manager owed a duty to the whole community to guarantee that no damage or harm would be caused by the fire. However, the grounds for this dismissal were unjust. This is simply because the fire service manager as an individual was not liable as liability fell on the side of the fire service authority as a department. Also, the Fire Services Act only contains provisions that address a collective breach of duties, but not individual liabilities. Considering the Employment Rights Act, this act was also illegal. This is because workers should be given notice that is calculated based on the duration that a certain employee has worked for an institution (Great Britain, 1996). The fire service manager in this case was not given any notice period. Therefore, going by the reasons discussed in this essay, the verdict to discharge the fire service manager, in this case, was illegal and translates to a right to compensation.

References

Baudoin, Jean Louis and Linden, Allen (2010) Tort law in Canada. New York: Oxford University Press.

Great Britain (1996) Employment Rights Act 1996.London, HMSO.

Great Britain (2004) Fire and Rescue Services Act 2004. London, HMSO.

Hattiangadi, Anandi (2007) Oughts and thoughts: rule- following and the normativity of content. London, Sage.

Lunney, Marl and Oliphant, Ken. (2008) Tort law: text and materials. New York, Oxford University Press.

McBride, NJ and Bagshaw, Clive (2008) Tort law. London, Pearson Education.

Moran, Jordan (ed) (2007) Employment law.. London, Prentice Hall.

Scrope, Henry and Barnett, Daniel (eds) (2008) Employment law handbook. London, Elsevier.

The use Miranda rights in the United States is so common that a trial judge once commented that its use in television investigative dramas series has made the laws part of the American culture. Many citizens now believe that every encounter with the law enforcement officers require the Miranda rights to be read. However, it is only in situations that may lead to arrest, interrogation and or conviction that law enforcement officers ought to read the Miranda rights.

According to Crawford (1997), this is done for purposes of upholding the fifth amendment of the constitution and subsequently shielding the citizenry from giving self-incriminating information to the arresting officers.

In Texas, just like in other states in the country, the Miranda rights state that a person has the right to remain silent, any thing he or she says can be used against them in court, has a right to have a defense lawyer, and the right to have the state appoint him a defense lawyer, should he be unable to afford one (Maedgen, 2008). These rights are made known to a person before he or she is interrogated by the arresting officers.

Though the policies in Texas require that arresting officers to read the arrested person the Miranda rights, there is no denying that the laws have overtime become a complex maze that confuse both the law enforcement officers and the public at large. As Crawford (1997) notes, no interrogation can be done successfully by the police, without his subject suspecting that the police officer may arrest him afterward. Even when the law enforcement officers assure the subject that he or she is not under arrest, there is no assurance that self-incriminating details would not lead to arrest.

The courts in Texas, just like everywhere else in the country have not spent much political incentives on the Miranda rights. According to Stuntz (cited in Thomas, 2003), this can be explained by perceived explanations of how the courts expected that Miranda would work. The laws clearly divide suspects into three distinct categories: those who prefer not to talk unless legal counsel is availed, those who waiver their Miranda rights and talk freely to the officers, and those who talk just as long as the interrogations are not intimidating or threatening (Thomas, 2003).

A case in point is the 2001 Texas v. Cobb case where the latter was accused of burglary. To this accusation, Cobb sought the services of an attorney. However, when his father informed the police that his son (Cobb) had admitted killing a mother and her child from the same home he had broken into, an attorney was not present to provide legal counsel or represent him in court. This was however not a voluntary action by Cobb (Daddio, 2004). Cobb was convicted of two counts of murder and sentenced to death. He however appealed against the court ruling claiming that his confessions to the murders should not have been used by the court since his right to legal representation had been invoked during the earlier charges on burglary and was therefore not applicable in the subsequent interrogations about the murders.

The Court of Criminal Appeals in Texas granted him the appeal stating that the polices interrogation findings were inadmissible since the interrogations into the murder cases were done by police in the absence of legal counsel. As such, it did not matter that Cobb had waived his Miranda rights in the first case, thereby choosing to speak to police freely. Delivering the ruling, justice William Rehnquist stated that the right to an attorney as provided for in the sixth amendment is offense specific. As such, he noted that factually related cases must be treated separately from previous cases, which the person in question has already been charged for (DAddio, 2004).

Although the Cobb case may have taught law enforcement officers a lesson about following the rules to the latter, Texas, like other states still have loopholes to the proper administration of the Miranda rights. One such loophole has it basis in the fact that Miranda warnings are not mandated in the constitution. As such, a violation of the same does not attract as much seriousness as a constitutional violations does. When a suspect in custody invokes his Miranda rights, the police officers are well aware that the chances of obtaining incriminating information from a suspect are slim if legal counsel is provided. As such, some may continue interrogating the suspect in the hope that they will get some incriminating information or at least some admissible statements for later use. Usually, officers do this because they are aware that ignoring Miranda rights only helps them build a case against the suspect and have no severe legal consequences (Crawford, 1997).

Being a border state, Texas has its fare share of immigrants. However, as Briere (1997) notes, The Miranda rights are administered in an arguably complex language, which would pose some level of aural knowledge difficulties to people with limited English speaking and comprehension capabilities. Briere (1997) says that an eight grade student would have problems reading the laws, while a 13^th grade student would have problems understanding the contents. As such, it is clear that the rights may not be understood by everybody and therefore are not effective on informing all arrested people that they need not answer any questions from the interrogating officers. Overall, Miranda rights ensure that every arrested citizen is informed accordingly about his or her rights under the fifth constitution amendment. Drawing the line between violations of the rights by the police officers and upholding the same is not always a black and white thing. This is especially so when normal questioning by police leads to an arrest. Although evidence gained by the police during such an incidence is inadmissible in most Texan courts, it always gives the police an undue advantage over the suspect.

References

Briere, Eugene J. (1978). Limited English Speakers and the Miranda Rights. TESOL Quarterly, Vol. 12(3), 235-245

DAddion, D. (2004). Dual Sovereignty and the Sixth Amendment Right to Counsel. Yale Law Journal online. Web.

Maedgen, W. (2008). Texas Law-Miranda Rights. Web.

Thomas III, G. (2003). Mirandas Illusion: Telling Stories in the Police Interrogation Room. Book Review. Web.

Introduction

The Sarbanes- Oxley Act was legislated in the year 2002 to enhance new rules and standards for all US public companies, management, and public accounting firms. The sponsors of the law did it due to the public outcry on the increased cases of scandals which were affecting many public companies in the USA, with some collapsing and shares prices declining resulting in huge losses. As a result of this, public confidence in securities investment was dented. To ensure the enhanced standards are followed, the act contains corporate board responsibilities as well as penalties chief executive officers can face in case of mismanagement (Institute of Internal Auditors, 2008).

Analysis of new or expanded standards for all US public company boards of directors, management, and audit firms required by SOX

With the new enhanced standards, public companies are supposed to control all their information controls and audit reports. With technology advancements, most companies use Information Technologies to manage and control data thus the requirement of the controls as indicated by the SOX act. Under the SOX act, the chief information officers are supposed to be accountable for the issues of information security and accuracy.

The information officers should also ensure that their Information Technology systems are reliable to ensure instances of alteration are minimized. The Sarbanes- Oxley act contains two clauses with either crime or civil certifications. The act further contains a set of internal procedures which are designed to ensure there is honest and accurate disclosure of financial information (Cihon & Castagnera, 2008). Under this act, the signing officers should always ensure that they are the responsible party for establishing and maintaining internal controls.

They should certify that the designed internal controls have been set in such a way that the material information relating to the company or its subsidiaries is known to all the responsible parties especially during report making. In addition, the chief information officers are supposed to test the reliability and credibility of the companys internal controls to ensure that the reports given reflect the situation on the ground (Cihon & Castagnera, 2008).

Under the SOX act, it is a requirement for the management to constantly produce an (internal control) report. In this report, the management is usually expected to reaffirm its efforts in ensuring that the internal controls have been established and financial reporting procedures maintained as recommended under the act. The report must also contain an assessment of the just-concluded fiscal year of the company.

In the end, the external independent auditors should be able to provide the reports about the internal controls to the manager recommending adjustments if necessary after evaluating them. The SOX Act states that the audits should always be held once or twice a year to ensure the internal controls have not been modified.

Why the New Enhanced Standards Are Necessary

The new enhanced standards are necessary since they have resulted in reduced cases of fraud within many public organizations in the United States. This has been made possible by the increased liability the act puts on the CEOs. The new enhanced standards have ensured that cases of fraud or mismanagement are noted earlier, as a result, making it easier to rectify the situation and minimize losses. However, some people argue that though the act was introduced as a savior of the public companies it hasnt been a savior since all the action has done is to force the chief executive officers of public companies to face criminal charges if they present documents, which were are genuine

The Benefits and Costs of the SOX

Under the SOX Act, the Chief Executive Officers are held responsible for all the accounting information, and in case of misconduct penalties or sanctions follow. This means that CEOs must take full responsibility and provide well-detailed evidence showing that their internal controls are working as failures could result in jail terms.

The SOX act enables the investors to evaluate the process and performance of the management responsibilities and to them during an end of a financial year. The improved disclosure also helps the company in detecting cases of fraud if any at earlier stages thus there are fewer adverse effects with the expected quick response and early rectification of the situation. The act also ensures that there is accountability from all those who deal with financial statements preparations and reports (Holt, 2008).

The SOX act provides a system that merges the activities taking place in the company ranging from workflow to document management as well as publishing creating compliance processes that manage the company both efficiently and effectively. However, due to the assessments needed and the hiring of external auditors, the act leads to increased costs for the company. Implementation costs especially during the first year for any company are also very high due to the new devices and modifications required. This affects the profitability of public companies and also their competitiveness compared to private organizations (Aquila, 2004).

Reference List

Aquila, J.M. (2004). Tallying the Cost of the Sarbanes-Oxley Act. Web.

Cihon, J.P., & Castagnera, J.O. (2008). Employment & Labor Law. 6th Edition. London: Cengage Learning.

Holt, M.F. (2008). The Sarbanes-Oxley Act: costs, benefits, and business impact. New York: Butterworth-Heinemann Publishers.

Institute of Internal Auditors (2008). SARBANES-OXLEY SECTION 404: A Guide for Management by Internal Controls Practitioners. Web.

Situation A: Provisions of the Family and Medical Leave Act (FMLA) of 1993

The Family and Medical Leave Act (FMLA) became effective on August 5, 1993, after former President Bill Clinton fulfilled his campaign promise and signed it into law in his first term of office. In its provisions, an eligible employee is entitled to take an unpaid, job-protected leave of 12 weeks each year for a particular family and medical grounds (Vikesland, 2006). The law promised abundant protections to workers after it became obvious that there was a growing need to balance work, family, and personal obligations.

The law allows employees to take the specified leave after it becomes obvious that such an employee is unable to perform his or her duties due to a serious health condition, wants to take care of a newborn daughter or son, or wants to take care of a sick family member. These extended leaves of absence are undertaken without the concerned employees being forced into lower job categories or without fear of being terminated upon their return.

According to the provisions of the FMLA, no federal acts and labor relations acts of employee X have been violated, and as such, the employee should feel contented with what is been offered by the new departmental manager. Besides being offered his old job back, the act is clear that any leave undertaken by any eligible employee should be unpaid. The leave should also not extend more than 12 weeks, a provision well met by employee X as he undertook a leave of 11 weeks to take care of his prematurely born twins. This is a serious health condition on the part of immediate family members, a provision well covered under the act.

According to Vikesland (2006), for any employee to be eligible for the leave, the employer must have at least employed 50 or more workers within a radius of 75 miles. In addition, the worker must have worked for the employer for a minimum of 1 year and 1,250 hours in the previous year. No federal, State, or labor act appears to may have been violated on these accounts since employee X has indeed worked for the company for 2 years, and the company has a total of 75 employees.

The employee has indeed been protected for exercising rights preferred upon him under the Act. The employer has not in any way denied or interfered with the rights of the employee. According to the provisions of the Act, all benefits accruing to the employee must be protected while on leave, and must also be reinstated upon return to employment. This indeed has been taken care of since the new departmental manager has promised to accommodate employee X back to his previous job, and at the previous rate of pay and benefits. No violation of the rights of the employee has therefore occurred under the Act.

Situation B: Age Discrimination in Employment Act of 1967

Under SEC. 621 [Section2] of the Age Discrimination in Employment Act (ADEA) of 1967, the Congress of the United States of America found and declared that older workers were finding it difficult to retain employment, especially in their efforts to regain employment opportunities after being displaced from their jobs due to rising productivity and affluence in the society (ADEA, 2008). It was becoming common practice for employers to set arbitrary age limits regardless of an employees ability or potential to perform on the job.

This was working to the disadvantage of older workers. Also, it was revealed that incidences of long-term employment that resulted in deterioration of skill, employer acceptability, and morale were relative among young workers and high among older workers. This further served to compound an already grave situation of unemployment that was affecting older employees. It was therefore imperative to promote the employment of older employees based on their potential to perform on the job rather than age; to curtail subjective age discrimination in employment and help workers and employers find solutions to problems cropping up from the impact of age on employment.

Under Sec. 623 [Section 4] of the Act, it is therefore unlawful for any employer to segregate, limit, or classify workers in any manner that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals age or& (ADEA, 2008). The Act provides protection to workers who are 40 years of age or older from any form of discrimination in employment. It is therefore unlawful to discriminate against any individual based on his or her age with respect to any condition, term, or privilege of employment, including promotion, compensation, job assignments, benefits, training, hiring and firing (Age Discrimination, 2008).

As such the rights of Employee B, who was 68 years old and performed above average during the annual performance review were greatly violated. She could have received the promotion, not because of her advancing age but rather because of her performance.

Situation C: The Americans with Disabilities Act of 1990

The Americans with Disabilities Act (ADA) makes it illegal for any State, local government, private employer, labor union, or employment agency to discriminate against qualified individuals with disabilities in job application procedures, job training, advancements, hiring, firing, and other terms, circumstances, and opportunities that come with employment (Disability Discrimination, 2008).

However, employers must have a minimum of 15 employees to be covered under the act. In the case scenario, the job applicant is disabled due to paralysis of both legs and requires the use of a wheelchair to move around the entire company offices. Under the Act, such an individual has a disability since he has a physical impairment that substantially limits his ability to move around the offices using his legs. He is qualified for the job since under the Act; he is capable of performing the important job requirements with reasonable accommodation.

Under the Act, the company is supposed to offer individual C reasonable accommodation to facilitate him in performing his chore duties since he is qualified for the job. The Act is specific that the employer must make any existing facility that is to be used by the disabled readily accessible and usable. The employer has the options of restructuring the job that is to be done by the disabled, modifying work schedules, reassigning the disabled to any other vacant position, acquire or modifying the equipments to be used by the disabled, among many other options under the Act (The Americans with Disabilities, 2007).

In this respect, there was a serious violation of the Act since the employer did not consider all the said options before declining to employ the disabled job seeker. The employer was supposed to lower the keypads in two of the four elevators  a provision well covered under the Act.

However, the Act goes on to say that such provision of reasonable accommodation to a disabled person must not cause undue hardship on the part of the company. Under the Act, the term signifies any action that requires a substantial expense or difficulty, when such an action is considered in respect of the following factors:

• The cost and nature of the reasonable accommodation needed by the disabled
• The general financial position of the facility or facilities that will be involved in the provision or making of reasonable accommodation, the number of employees, and the impact on resources and expenses that such reasonable accommodation is expected to generate on the operations of the facility or facilities.
• The general financial reserves of the covered entity (employer), its overall size with respect to the number of workers; and the location, number, and type of its facilities.
• The type of operations of the covered entity, including its structure, compositions and functions of the workers; and the administrative, geographic separateness, or fiscal association of the facility or facilities to the covered entity (The Americans with Disabilities, 2007).

Based on the above factors, the Act is very clear that individualized evaluation of the current situation and circumstances must be undertaken to show that a particular reasonable accommodation would cause the companys significant expense or difficulty. In my view, this was not undertaken. All options for external funding must first be scrutinized before jumping into the conclusion that a specific accommodation is costly.

According to the Act, an employer is obliged to first determine whether funding for the reasonable accommodation needed can be available from an external source such as the state rehabilitation agency, or whether the employer can be eligible for state tax deductions or credits that can assist in offsetting the cost of the accommodation (Enforcement Guidance, 2002). This was not done too. Lastly, it is difficult to understand how a company employing 15 employees could argue that lowering the keypads in two of the four elevators was an activity that could have caused them undue hardship. In that respect, it is imperative to conclude that serious violations of the Act indeed occurred.

References

Age Discrimination. (2008). The U.S. Equal Employment Opportunity Commission. Web.

Disability Discrimination. (2008). The U.S. Equal Employment Opportunity Commission. Web.

Enforcement Guidance: Reasonable Accommodation and undue hardship under the Americans with disabilities Act. (2002). The U.S. Equal Employment Opportunity Commission. Web.

The Age Discrimination in Employment Act (ADEA) of 1967. (2008). The U.S. Equal Employment Opportunity Commission. Web.

The Americans with disabilities Act of 1990, Titles 1 and V. (1997). The U.S. Equal Employment Opportunity Commission. Web.

Vikesland, G. (2006). The Family & Medical Leave Act. Web.

The criminal world grows every day and at the same time, the powers which are aimed to fight with it also do not stay aside. More and more new techniques are investigated every day in order to optimize the work of powerful forces and to increase the rate of caught criminals. Criminal profiling is a technique that helps to analyze the crime committed and to create an opinion about the criminal. This technique is aimed to help police to follow the criminals actions and to guess the next criminals steps. There are two points of view about criminal profiling. Some people consider it as junk science, as there is no empirical evidence there, the others view it as a solid emerging scientific technique, which is very valuable in the world of criminal investigations.

Investigating the readings on the problem it was pointed out that most of the scholars come to the conclusion that criminal profiling is conceptually old (Kocsis & Palermo, 2006, p. 2). In other words, they consider the idea of criminal profiling rather valuable, but a lot of changes should be provided. The notion of criminal profiling was created many years ago. It may be seen in Arthur Conan Doyles works and other notable policemen in the XVIII-XIX centuries. The fundamental concept of criminal profiling remained unchanged till our time and is considered to be remarkably old (Kocsis & Palermo, 2006, p. 6). Criminal profiling is difficult to consider universally, but still, Kocsis (2007) defines it as the application of psychological theory and behavioral evidence analysis (p. 62).

The first problem is that criminal profiling is a rather secret affair and it is impossible to show lots of facts and methods which are used in order to improve the technique of criminal profiling. Considering the problem of criminal profiling, Tuvey and Baeza (2002) say that the criminal profiling community must begin to communicate and agree upon the standards, practices, terminology and methods (p. xx). The other problem is the different understanding of diagnostic and treatment tools by criminal profilers. This problem is in close interconnection with the absence of good statistics of errors that appear during the process, and one and the same mistake may be committed several times. And the main problem, which is the reason for criminal profiling being old, is the lack of objective criterion against which to test a sample of actual profiles (Tuvey & Baeza, 2002, p. 604). So, it may be seen that the field of criminal profiling is not investigated according to the modern level of technical progress.

So, considering the offered readings we may come to the conclusion that most of the scholars consider the concept of criminal profiling rather old. Criminal profiling is not offered to be rejected, but it should be rearranged. There are a lot of problems that exist in criminal profiling: the absence of good statistics, the repetition of errors, the impossibility to create the common method and the structure of criminal profiling as the information in most cases is secret, so it is impossible to follow the process and find out the errors in order to remove problems. The idea of criminal profiling is good, but the methods which are used do not correspond to the modern world technical conditions, and the opportunity of investigation could give more reasonable answers and could remove the problems in limited terms.

Reference List

Kocsis, R. N (2007). Criminal Profiling: International Theory, Research, and Practice. Humana Press.

Kocsis, R. N. & Palermo, G.B. (2006). Criminal profiling: principles and practice Humana Press.

Turvey, B. E. & Baeza, J. J. (2002). Criminal profiling: an introduction to behavioral evidence analysis. Academic Press.

The Articles of Confederation was the first constitution of the United States put together by the 13 original states and approved by Congress in 1777 and ratified by the states in 1781. They created a loose confederation of sovereign states with most of the power allocated to state governments. In 1789, they were replaced by the present United States Constitution, having proved their ineffectiveness in addressing the issues facing the new nation.

The first reason behind the failure was the general weakness of the central government established by the Articles. They did not provide for three separate branches of government: execute, legislative, and judicial. The government had the power to pass laws, but no power to enforce them upon the states. If a state did not approve the law, it could simply ignore it (Graebner et al. 75). No federal court system or organized military force was established, making the government unable to protect the union of the states.

The second group of reasons behind the failure was financial. As set by the Articles, Congress had no power to levy taxes and relied on the voluntary efforts of the states to send money to the central government (Graebner et al. 139). No uniform system of currency was introduced, and the government had no power to regulate trade, making it unable to settle the countrys debts from the Revolutionary War.

The third reason was the poor representation of the states in Congress. Each state was given only one vote regardless of its size, which was an issue with the larger states whose population was misrepresented (Van Cleeve 299). The votes of nine states were required to pass the law, and with the states votes representing a disproportionate percentage of the countrys population, a very small part of the population could turn the bill down.

The Articles of Confederation sought to create a system aimed at preserving as much liberty and freedom as possible but failed to provide enough structure to maintain it. With each state retaining its sovereignty, it could act independently from the central government in pursuit of its own interests. The central government was weak and unable to enforce its authority and protect the union of the states.

Works Cited

Graebner, Norman, et al. Foreign Affairs and the Founding Fathers: From Confederation to Constitution, 17761787. ABC-CLIO, 2011.

Van Cleeve, George. We Have Not a Government: The Articles of Confederation and the Road to the Constitution. University of Chicago Press, 2017.

Introduction

The United States of America has been keen on improving its judicial system by making better policies and guidelines. Criminal cases are handled through a set of procedures which are governed by a series of guidelines. The sentencing phase is very critical during the trial of an offender. The jury normally refers to some rules before it makes a ruling In order to come up with a proper sentence, judges follow a grid, which identifies a sentence to be charged on a person who has committed a given crime (Champion, 1989). These laws were put into practice in 1984 by the congress. Apart from the sentencing guidelines, there are three sentencing systems: those featuring determinate-sentencing statutes; those using indeterminate-statutes; and those applying sentencing guidelines (Champion, 1989).

Sentencing Guidelines

Sentencing guidelines are categorized into: voluntary and presumptive (Champion, 1989). Voluntary guidelines were mainly used before the enactment of presumptive guidelines. Voluntary guidelines aim at reducing sentencing lapses by ensuring that future sentencing decisions conform to the past practices. Voluntary guidelines are enacted by a group of judges who are supervised by the administrative officials of the courts. These guidelines lack enforcement mechanisms. However, judges are usually encouraged to use them in the process of sentencing an offender.

Presumptive sentencing guidelines are enacted by commissions set by federal courts and they are only exercised after the legislatures consent. Unlike voluntary guidelines, presumptive guidelines do not claim to describe past sentencing practices; rather, they prescribe policies that the officials ought to follow in future (United States sentencing commission, 2009). The presumptive guidelines are generally better than the voluntary sentencing guidelines.

Impact of Sentencing Guidelines

Altering Sentencing Patterns

Sentencing guidelines aim at changing preexisting sentencing patterns. In this case the judges may modify the guidelines with an aim of making the penalties more serious. Hence, the seriousness of the penalties charged for all categories of cases may increase very first. The amendment of the guidelines also improves the dispensation of justice in the sense that, only the relevant guidelines are put into practice, while the outdated ones are repealed.

Impact on correction facilities

The increasing number of convicts in correction facilities has been partly contributed by the sentencing guidelines. Imprisonment has been given priority in criminal justice. Through the application of these guidelines many people found guilty of minor offences have ended up being incarcerated. This has led to a high population of prisoners in the correction facilities. Such individuals could be given alternative punishments in stead of being given prison sentences.

The high population in the prisons reduces their effectiveness in correcting the offenders. The high population of incarcerated individuals in the correction centers has received a lot of criticism from many people. This is because U.S citizens pay a lot of taxes that are used for maintaining the congested prisons (Champion, 1989). The problem of congestion can possibly be solved by giving alternative punishments to minor offenders. The judicial officers should also ensure that sanctions are applied more uniformly and equitably (Champion, 1989).

Impact on Court Work Load

Since the implementation of the sentencing guidelines, there has been a modest increase in the number of court cases. This is because the guidelines provide steps that must be followed by the judges before they determine the penalties (Champion, 1989). The effects of these guidelines on court cases have not been constant in all the States. In Minnesota very few changes have been witnessed in the handling of cases. Even though the number of some cases in Minnesota has increased slightly, they have been effectively handled through the reduction of other cases. The increase in the amount of time taken between filling and disposition of cases has led to delays in clearing of cases in the federal courts (Champion, 1989).

Effect on plea negotiations

When the sentencing guidelines were enforced, some critics anticipated a reduction in the rate of plea bargaining, because they believed prosecutors would have less flexibility to offer inducements in return for guilty pleas (White, 2000). Studies have however shown that the amount of guilty pleas that came from plea bargains is still constant. The guidelines that are used to determine prison and non prison sentences have different effects: offenders for whom prison has been recommended are less likely to plead guilty, while those for whom non prison sentences have been recommended are more likely to plead guilty (Champion, 1989).

Many offenders have also been bargaining for the reduction of penalties charged against them. This has enabled offenders to face moderate charges. For example those charged with capital offences can be given less serious punishments if they negotiate for reduction of charges.

Effect on sentencing uniformity and proportionality

Before the guidelines were enforced, there used to be so many disparities in handling of court cases. These disparities have been bridged through the following methods. The main aim of presumptive guidelines is to promote fair sentencing for all criminal cases. In this case it ensures that penalties are charged according to the crime committed. For example, those people who engage in serious offences are given serious punishments, while those who commit minor offences are given moderate punishments. Individuals that repeatedly engage in crime also get tough penalties than those who engage in crime for the first time. The sentencing guidelines, in conjunction with Federal mandatory minimum sentences, have resulted in longer prison sentences for offenders who violate Federal drug laws (Champion, 1989).

Uniformity of the sentencing process is further enhanced by giving similar punishments to offenders who engage in a similar offence. Variations in the penalties only occur in special circumstances if valid reasons are given.

Effect on Neutrality

The federal courts have been affected by discrimination in the dispensation of justice for a very long time. This discrimination was based on gender and race. For example, Afro Americans were subjected to long imprisonment before these guidelines were enforced by the federal courts. Nonetheless, there have been positive changes since the introduction of the guidelines. According to Washington sentencing commission, racial, ethnic, and gender differences in sentencing have declined, but substantial differences by race, ethnicity, and gender have persisted in the use of non confinement (Champion, 1989).

Conformance to Guidelines by Judges

The judges have been compelled to subscribe to the sentencing guidelines when giving penalties. Federal judges have been criticizing the guidelines, mainly because they limit their discretion in sentencing, especially in drug matters (Champion, 1989).

Even the judges who oppose the sentencing guidelines always obey them. Rates of conformity appear to be higher in systems that establish narrow grounds for departing from the guidelines and in States where case law strongly reinforces guideline policies (United States sentencing commission, 2009). Conformity to the guidelines has improved the effectiveness of criminal justice. Sentencing commissions normally use reliable data in making the sentencing guidelines. This data also help the commissions to predict the possible impact of the proposed sentencing guidelines on the criminal justice system (Champion, 1989).

Conclusion

The introduction of the sentencing guidelines has led to a substantial improvement of criminal justice system. The uniformity in the sentencing of criminals has also improved to some extent. This is because the judges consider the defendants criminal history, the severity of the crime, and other aggravating or mitigating factors before they give penalties to the offenders (White, 2000). There are mixed feelings about the sentencing guidelines.

For example, some people think that they are too rigid and harsh, while others think that they are very flexible and not strict enough to give effective penalties. And still others champion them as a necessary deterrent to crime because of the certainty of the sentence to be served (Champion, 1989). The government should therefore try to correct the sentencing guidelines that are disputed by the judges, in order to make them more effective. In addition to this, the correction facilities should also be expanded in order to accommodate more prisoners.

References

Champion, D. (1989). The U.S. sentencing guidelines: implications for criminal justice. New York: Praeger Publishers.

United States sentencing commission. (2009). Federal civil procedure and rules. Malden: Thomson West.

United States sentencing commission. (2009). Federal sentencing manual, 2009: United States sentencing commission including amendments to sentencing guidelines. New York: West Group.

White, J. (2000). Uniform commercial code. Malden: West Publishing Company.

This research work aims to discuss the relationships between criminal liability and professional regulations. In particular, it is necessary to define these concepts and identify the similarities and distinctions between them. In addition to that, we need to show how misconduct in the workplace can be connected with legal responsibility. The problem, which is still briskly debated by lawyers, is how to draw a distinct line between the violation of law and professional error. Most importantly, who should draw this line? There are several areas where these issues are extremely acute, for example, health care, law reinforcement agencies, insurance, pharmacy, social service, and so forth (Schneid and Schumann, 2006). Yet, it seems that this topic is vital for any field of business. Every person, who takes responsibility for the well-being of other people, has to avoid the pitfalls that may occur in the course of his or her career. Therefore, this discussion can be helpful from theoretical and practical standpoints. Although it is too early to jump to any conclusion, we may say that professional ethics and legislation are often incompatible with one another, which means that the same action can be treated as appropriate or inappropriate. It depends on the person or organization that has to decide, either judicial authorities or professional committees. Furthermore, the decision-making becomes even more complicated due to the discrepancies, existing in American legislation. In this respect, we need to speak about regional differences. All these questions require thorough examination.

On the whole, criminal liability can be interpreted as a legal obligation that arises out of wrongs, committed against the community: a person, group of people, government, or environment (Schneid and Schumann, 2006). To explain this question, we need to illustrate different forms of such behavior; it may include theft, forgery, fraud, murder, etc (Mercier, 2009, p 69). Unfortunately, this type of misconduct exists in the modern workplace, even in those organizations which are intended to serve for the benefit of the community. Normally, they are punished by the restriction of personal freedoms, like imprisonment, fines, and other penal measures. In their turn, professional regulations can be explained as a set of rules and principles, established among the representatives of a certain profession: lawyers; medical workers, policemen, etc. Very often these regulations may depend on the specific agency or company in which the person works. A companys statutes can profoundly affect the ethical and professional standards of performance. Nevertheless, we need to take into account that there exist external supervisory bodies[1] which perform the function of monitoring; they ensure that the practices of the company are consistent with the federal or national standards.

At first glance, one may suggest that there is no connection between these notions but it should be borne in mind that under some circumstances, violation of law and violation of professional regulations can produce the same effect. For instance, the error of a health care professional can easily result in the death of a patient, this error may entail both suspense of license and criminal punishment (Dekker, 2007, p 831). This is why it is of crucial importance to differentiate between them. The thing is that occasionally it is practically impossible to do it. The exact extent of guilt is not always obvious, and even experts who specialize in this field cannot agree while returning the verdict. Such controversies are very typical of the healthcare system and legal profession (Dekker, 2007; Schneid & Schumann, 2006).

We have previously mentioned that such crimes as theft, fraud, or forgery are extremely widespread in many fields of human activities. They contradict the ethical principles of every industry. Then the question arises of what should be done when this guilty person has served his or her sentence. In other words, does he or she have a right to continue professional activities? Thus, at this stage, we can argue that legal and professional crimes may bear a strong resemblance to one another. Yet, it is not always clear how they should be discussed, from a legal or professional perspective, or both.

To answer these questions we need to describe the situations that show how difficult it is to interpret such cases. One of the most notorious examples is the accusation of negligence, especially if we are speaking about health care professionals. First of all, it should be pointed out that American legislation gives the following definition to this term, negligence is the failure to use a reasonable level of skill whether by omitting to do something that a prudent person would do or by doing something that no reasonable person would do (Dekker, 2007, p 831). It has to be admitted that the negligence of physicians can be fatal and the possibility of the event should be reduced to a minimum. But we may also argue that this definition gives room for various interpretations because it is not quite clear what exactly constitutes a reasonable level of skills. In this regard, it should be noted that the criminal law of the United States does not offer clear guidelines for evaluating professional misconduct. As a rule, the verdict is returned by the colleagues of this individual. This is one of the reasons why such cases may be difficult to investigate. The thing is that professional ethics tacitly prohibits incrimination of ones colleagues. Undoubtedly, this policy is not officially declared but some professionals can simply shield their co-workers against the law.

We may speak about other examples such as the automobile industry. It is possible to construct such a hypothetical scenario: the company releases the vehicle, containing some defects, which may be very dangerous for the safety of the passengers. The management knows about the drawback yet, nothing is done to rectify this problem[2]. This is one of those situations when judicial officials find it rather hard to prove negligence and demonstrate that it could be avoided. Again, this evidence tells that the distinctions between crime and violation of professional regulations are often untraceable.

There is another peculiar feature that makes it rather difficult to fix a border between a legal and professional crime. American legislation varies from one state to another, and the same behavior can be regarded differently. One of such cases is euthanasia. Assisted suicide has achieved legal status in some parts of the United States, like Texas, Oregon, or Montana, certainly, only if all the requirements are met and the patient is eligible for this procedure. However, in the rest of the country, euthanasia is still prosecuted by the state (Cavan & Dolan, 2000). Furthermore, even medical workers themselves cannot fully agree on this point. Some theorists argue that assisted suicide entirely contradicts the major ethical tenets of the medical profession, namely the principle of nonmaleficence[3], whereas others believe that a physician must facilitate the sufferings of the patient (Cavan & Dolan, 2000, p 22). Thus, we can say that there are situations when neither legal nor professional regulations give virtually no explanation about professional misconduct. In the eye of the law, euthanasia is an actual murder, and normally, such a deed entails either life imprisonment or even capital punishment. Yet, it can be observed that under some circumstances this practice can be justified by the state.

The discussion of these cases indicates that sometimes law and professional regulations can come into direct conflict. In other words, the same behavior might be permissible in terms of professional ethics, yet, it is not tolerated by the law. On the whole, we should not speak only about healthcare services, because the representatives of other trades have to face similar pitfalls. An unintentional mistake of a construction engineer or a pilot can lead to the deaths of a great number of people. Ironically, he or she may be acquitted by the court but there is very little likelihood that this person will ever continue his practice.

As for the prevention of unethical or illegal behavior in the workplace, we may say that various federal and national institutions aim to identify and eliminate misconduct in companies and other organizations. These institutions are extremely diverse, we may enumerate only some of them such as BBB (Better Business Bureau, the organization which ensures that private enterprises comply with the standards set by the government), IRS (Internal Revenue Service), AMA (American Medical Association). These agencies may be of lesser scale, like city boards and committees. Still, they intend to investigate both legal and professional implications of the misconduct.

It would not be an exaggeration to say that there are very few guidelines for the prevention of professional or legal malpractices. In some cases, preventive measures are limited only to the suspension of license for a certain period. This individual will not be eligible to work in the capacity of practitioner, accountant, policeman, etc. One should not think that this is mere termination of the contract because, the person who has been found guilty, cannot work in any organization that provides similar services, for instance, a hospital or law firm. Afterward, his or her case can be reviewed, but the verdict may be the same. Criminal punishment can be imposed only if the degree of misdemeanor is so severe that it poses an immediate threat to the welfare of the community.

The differences between professional and legal misconduct are not always observable. Sometimes, they may fully coincide, if we are speaking about crimes committed in the workplace. But as a rule, they belong to entirely separate dimensions. Felonies are much conspicuous; the law clearly defines them; while the interpretation of workplace misconduct may depend on the ethical views of the specific profession. Finally, legislation and professional regulations can treat the same behavior differently.

Reference List

Cavan S., & Dolan S. (2000). Euthanasia: the debate over the right to die. NY: The Rosen Publishing Group.

Dekker, S. W. (2007). Criminalization of Medical Workers: Who draws the Line? ANZ Journal of Surgery, vol. 77, pp 831-837.

Huber P.W. & Litan R.E (1991). The Liability maze: the impact of liability law on safety and innovation. Brookings Institution Press.

Mercier. C.A. (2009). Criminal Responsibility. New York BiblioBazaar, LLC. Schneid, T. D. & Schumann, M.S.(2006). Legal Liability: A Guide for Safety And Loss Prevention Professionals. New York: Jones & Bartlett Publishers.

Introduction

As reported by Pittsburgh radio station KDKA (2009), an 11-year-old boy Jordan Brown that is accused of murdering his fathers fiancée and her unborn son is not likely to be tried as a juvenile offender. It is natural that the boys attorneys are expected to appeal for letting the boy to be moved to the juvenile facility (Mandak, 2010, para. 3). Though Lawrence County District Attorney John Bongivengo is not likely to oppose the decision to move Brown to the juvenile facility, he offered the now 12-year-old boy to be tried as an adult (2010).

Case Analysis

It is natural that sometimes young children are jealous of their parents, especially when there are younger children in the family. This case demonstrates the feeling of jealousy which caused a murder of a 26-year-old Kenzie Marie Houk who was a fiancée of the boys father. Everything happened in their farmhouse in New Galilee when Jordan Brown took a 20-gauge gunshot and shot Houk which lead to the death of a male fetus; Houk was 8 1/2 months pregnant when she died of a shotgun blast to the back of her head as she lay in bed; the male fetus died from a resulting lack of oxygen. (Mandak, 2010, para. 2). The boy is not likely to admit his guilt as he does not demonstrate a clear recognition of what had happened.

The accused was examined by two doctors, while in both cases he denied his guilt and the fact of murder and tended to minimize his wrongdoing and to deny and shift blame for his misdeeds. (Daily American, 2010, para. 11). It is natural that the judge is basing his decision on the evidence presented by doctors. Moreover, the judge Dominick Motto is refusing to move Brown to the juvenile facility because This offense was an execution-style killing of a defenseless pregnant young mother. A more horrific crime is difficult to imagine (Daily American, 2010, para. 3). Besides, there is a clear evidence of that the victim was murdered with a 20-gauge shotgun, while he threw the spent shell casing along a path on his way to a bus and went to school (Daily American, 2010, para. 6). This means that the boy was concealing the direct evidence of crime.

The boy, now 12, is still denying his guilt; a year ago his attorneys had filed a petition asking to move him to the juvenile detention facility: The proof of the minor childs guilt is not evident; the presumption of guilt is not great; and at this point, it is unlikely that this 11 year old defendant will spend life in prison (KDKA, 2009, para. 4). As we can see, the boy is still expected to be tried as an adult waiting for the decision of the judge in the jail for adult offenders.

Conclusion

Though the boy is very young (12 years old), he is expected to be tried as an adult because he does not accept his guilt and some minor possibility of offense again, as claimed by defense psychologist Kirk Heilbrun (Daily American, 2010, para. 10). There is no decision on the case yet but defense attorneys and prosecutors are likely to agree on moving Jordan Brown accused of shooting his fathers fiancée and a fetus to the juvenile detention facility.

Reference List

Mandak, J. (2010). Boy faces adult trial in death of Pa. woman, fetus. Web.

KDKA. (2009). Da wont fight 11-year-olds move from adult jail. Web.

Daily American. (2010). Adult trial for boy in death of Pa. woman, fetus. Web.

Summary

Akers social learning theory posits that individuals develop the urge to engage in criminal activities and the techniques to execute these acts through interacting with peers or within their social circle. According to Nodeland and Morris (2018), people master new deportments, attributes and aspirations through direct encounters as well as monitoring other individuals behavior through negative or positive impulses. Some of the concepts in this postulation include differential association, imitation, definition, and differential reinforcement.

Differential association

The differential association consists of two major dimensions: identification or affiliation with distant reference groupings and behavioral interactions. The latter elucidates deviance as an action triggered by the direct interaction or association with individuals participating in specific deportments. Within these social contexts, people become exposed to different definitions of unacceptable and appropriate behaviors and the pertinent models that reinforce non-criminal and offensive conduct. The nature, frequency, length, and timing of contact represent the crucial behavioral determinants.

Imitation

This conceptualization is based on the belief that people participate in a specific behavior after witnessing its execution by other individuals. The discerned behavioral impact observed deportments, and features of the model ascertain the extent to which particular conducts are mimicked. Nodeland and Morris (2018) further argue that witnessing other peoples activities, especially those close to us, can influence our involvement in both adhering and non-conforming deportments. Imitation also accounts for the performance and acquisition of novel conduct compared to the already established behavioral patterns termination or sustenance.

Definitions

The definition refers to an individuals exclusive perspectives and values regarding acceptable and undesirable behavior. Nodeland and Morris (2018) identify the above conceptualization as the rationalizations, orientations, situation-related elucidations, and other moral and evaluative viewpoints that delineate the commission of an act as either wrong or right, bad or good, unjustified or justified. These values and attitudes are usually learned and fortified through the differential association mechanism. Aker links ones morality and views on the impact triggered by specific and general definitions.

Differential Reinforcement

This concept is based on the assumption that an acts perceived consequences ascertain the action to be executed by a person. Value, belief, and attitude reinforcement occur through imitation and differential association (Nodeland & Morris, 2018). Positive augmentation to criminal deportment occurs when ones act is rewarded with positive outcomes and behavioral responses. On the other hand, negative reinforcement entails eradicating negative reactions or impacts to increase the probability of engaging in certain activities. The likelihood, frequency, and degree of occurrence are linked directly to the extent of differential reinforcement.

References

Bystrova, E. G., & Petter, G. (2015). Social conflict theory and white-collar criminals: Why does the ruling class punish their own? Pakistan Journal of Criminology, 7(1):1-15. Web.