Individual Rights (Due Process) vs Public Order (Crime Control)

Public Order or Individual Rights What Prevails Today? Both have been present throughout the 20th Century Early 1900’s saw the Public Order or Crime Control in action 1950’s and 1960’s saw the due process revolution and Individual Rights Earl Warren Supreme Court significantly expanded rights of the accused, limiting police power Rising Crime rates in 1970’s and 1980’s increased pressure on politicians and judges to “Get Tough on Crime” slowed down the due process revolution

Public Order & Crime Control Public Order supports and advocates for crime control The belief according to Herbert Packer is that police are in a better position than the courts to determine guilt. Believes that Judges should operate on a presumption of guilt, that suspects brought before the court are probably guilty The few restrictions should be put on police investigations

Individual Rights & Due Process Believe that individual rights rely heavily on the court and its role in upholding the legal procedures of establishing guilt Accepts that a person who is factually guilty should be allowed to be free if the criminal justice system fails to follow legal procedures in proving guilty Relies heavily on formality in the criminal justice system

US Supreme Court For the past 30 years the U.S. Supreme Court has interpreted the 4th, 5th, 6th and 8th Amendments of the Bill of Rights in the manner protective of the rights of suspects, defendants and prisoners. In recent years, however, the focus has shifted from restrictions on the police and conduct of trials to concerns of about sentencing and punishment

U.S. Supreme Court The U.S. government is the only institution in society that has a legitimate right to exert physical force over us. Therefore we have a right not to be arrested and punished for what we have said or done except under certain clearly specified conditions.

Individual Rights Protects individuals from restrictive government actions against life and liberty against individuals living in America Civil Rights Era (Mid 1950s -1970s) Brought forth injustices occurring in America Recognized fundamental personal rights previous denied illegally to many people based on their gender, race, ethnicity, sexual preference or disability Expanded to rights of criminal defendants, probationers, parolees, inmates and victims of crimes Limited police power in apprehension, search and seizure and interrogation of suspects. Contributed to the development of new laws and court decisions

Individual Rights in America Rights guaranteed by the U.S. Constitution, particularly the first 10 amendments (Bill of Rights), to individuals living in America. Protects and guarantees certain inalienable rights to all U.S. citizens and most non-citizens living in the U.S. Especially important to criminal defendants facing formal processing by the Criminal Justice System

BILL OF RIGHTS First Amendment Fourth Amendment Fifth Amendment (Freedom of religion, speech, assembly, and the Press) Fourth Amendment (Freedom from unreasonable searches and seizures.) Fifth Amendment No person to be deprived of life, liberty or property without due process of law.

BILL OF RIGHTS Sixth Amendment Eighth Amendment Fourteenth Amendment Right to a speedy public trial by an impartial jury, right to be informed of the facts of the accusation, right to confront witnesses and have the assistance of counsel. Eighth Amendment No excessive bail or cruel and unusual punishment shall be imposed. Fourteenth Amendment All persons (citizens and non-citizens) within the US are entitled to due process and the equal protection of the laws.

Individual Rights (Due Process) Assumes freedom is so important that every effort must be made to ensure the decisions are fair and reliable, based on law and formal proceedings. Due Process values hold that the State must prove a person’s guilt within the confines of a process designed to safeguard personal liberties as enumerated in the Bill of Rights Protect the individual against the immense power of the state

Individual Rights Goals Limiting state power by assuring the constitutional rights of the accused Providing even guilty offenders with full protection of the law Assuring that all accused criminals receive the same treatment Protecting the civil rights of prisoners

Individual Rights Favored Policies Due Process Model Open the process to scrutiny by the media and public Abolish the death penalty Limit police powers to arbitrary search, interrogate and seize criminal suspects Limit discretion and formalize criminal justice procedures so that all suspects and convicted offenders receive the same treatment Increase funding for rehabilitation and education in prisons and jails

Individual Rights: View of Criminality Criminal behavior can be attributed to social and biological factors Criminals can be rehabilitated and returned to the community

Public Order (Crime Control) Assumes freedom is so important that every effort must be made to reduce crime so things like efficiency, speed and finality are emphasized. The system must have a high capacity to catch, convict and dispose of offenders. Values emphasize speed and efficiency in criminal justice system. The benefits of lower crime rates outweigh any possible costs to individual rights Deter crime Protect citizens from crime Incapacitate criminals Provide quick and efficient justice

Public Order Goals Promoting discretion and limiting bureaucratic red tape in criminal justice institutions Making it easier for police to arrest criminals Reducing legal restrictions on proving guilt in a criminal trial

Public Order Favored Policies Crime Control Model More police More jails and prisons Harsher penalties (including increased use of the death penalty) and longer sentences

Public Order Wrongdoers are responsible for their own actions Wrongdoers have violated the social contract and can therefore be deprived of many of the rights afforded to law-abiding citizens

Public Order In recent years Public Order supporters saw individual rights/civil rights as a contributing factor to the increase of crime in America. Public Order supporters saw individual rights as protecting the rights of dangerous criminals and lobbied for “Get Tough on Crime” laws. Public Order advocates believe that under certain circumstances, the interest of society should take precedence over individual rights. USA Patriot Act of 2001 Law resulting from the 9/11 Tragedy is supported by Public Order Advocates

USA Patriot Act of 2001 Expands terrorism laws to include “domestic terrorism” which could subject political organizations to surveillance, wiretapping, harassment, and criminal action for political advocacy. Expands the ability of law enforcement to conduct secret searches, gives them wide powers of phone and Internet surveillance, and access to highly personal medical, financial, mental health, and student records with minimal judicial oversight.

USA Patriot Act of 2001 Allows FBI Agents to investigate American citizens for criminal matters without probable cause of crime “intelligence purposes.” Permits non-citizens to be jailed based on mere suspicion and to be denied re-admission to the US for engaging in free speech. Suspects convicted of no crime may be detained indefinitely in six month increments without meaningful judicial review.

Public Order Advocates USA Patriot Act Some key points of the act that designed to support the effort against terrorism: Counterterrorism Fund, and increased funding for the technical support center at the Federal Bureau of Investigation. Expansion of National Electronic Crime Task Force Initiative. Trade sanctions. The act also has specific sections geared toward preventing money laundering, border protection, the strengthening of criminal laws, and providing for victims of terrorism.

Public Order Public order advocates believe that Individual Rights may have to sacrificed because of the following Terrorism Organized Crime Computer and Internet Crime Gang Violence Drugs in America Get Tough on Crime

Individual Rights Advocates Believe that individual rights must be protected at all times as the U.S. Constitution guarantees certain inalienable rights to all people living in America. The County was built on the foundation of individual freedom against government intrusion in individual’s rights to privacy. Democracy is threaten by increasing government intrusions on private persons http://www.talkjustice.com/links.asp?453053937