Individual Rights Individual Rights (Due Process)(Due Process)

vsvsPublic OrderPublic Order

(Crime Control)(Crime Control)

Public Order or Individual RightsPublic Order or Individual RightsWhat Prevails Today?What Prevails Today?

Both have been present throughout the Both have been present throughout the 2020thth Century Century

Early 1900’s saw the Public Order or Crime Early 1900’s saw the Public Order or Crime Control in actionControl in action

1950’s and 1960’s saw the due process 1950’s and 1960’s saw the due process revolution and Individual Rightsrevolution and Individual Rights

Earl Warren Supreme Court significantly Earl Warren Supreme Court significantly expanded rights of the accused, limiting expanded rights of the accused, limiting police powerpolice power

Rising Crime rates in 1970’s and 1980’s Rising Crime rates in 1970’s and 1980’s increased pressure on politicians and increased pressure on politicians and judges to “Get Tough on Crime” slowed judges to “Get Tough on Crime” slowed down the due process revolutiondown the due process revolution

Public Order & Crime ControlPublic Order & Crime Control

Public Order supports and advocates for Public Order supports and advocates for crime controlcrime control

The belief according to Herbert Packer is The belief according to Herbert Packer is that police are in a better position than the that police are in a better position than the courts to determine guilt.courts to determine guilt.

Believes that Judges should operate on a Believes that Judges should operate on a presumption of guilt, that suspects presumption of guilt, that suspects brought before the court are probably brought before the court are probably guiltyguilty

The few restrictions should be put on The few restrictions should be put on police investigationspolice investigations

Individual Rights & Due ProcessIndividual Rights & Due Process

Believe that individual rights rely Believe that individual rights rely heavily on the court and its role in heavily on the court and its role in upholding the legal procedures of upholding the legal procedures of establishing guiltestablishing guilt

Accepts that a person who is factually Accepts that a person who is factually guilty should be allowed to be free if guilty should be allowed to be free if the criminal justice system fails to the criminal justice system fails to follow legal procedures in proving guiltyfollow legal procedures in proving guilty

Relies heavily on formality in the Relies heavily on formality in the criminal justice systemcriminal justice system

US Supreme CourtUS Supreme Court For the past 30 years the U.S. Supreme For the past 30 years the U.S. Supreme

Court has interpreted the 4Court has interpreted the 4thth, 5, 5thth, 6, 6thth and and 88thth Amendments of the Bill of Rights in Amendments of the Bill of Rights in the manner protective of the rights of the manner protective of the rights of suspects, defendants and prisoners.suspects, defendants and prisoners.

In recent years, however, the focus has In recent years, however, the focus has shifted from restrictions on the police shifted from restrictions on the police and conduct of trials to concerns of and conduct of trials to concerns of about sentencing and punishmentabout sentencing and punishment

U.S. Supreme CourtU.S. Supreme Court

The U.S. government is the only The U.S. government is the only institution in society that has a institution in society that has a legitimate right to exert physical legitimate right to exert physical force over us.force over us.

Therefore we have a right not to be Therefore we have a right not to be arrested and punished for what we arrested and punished for what we have said or done except under have said or done except under certain clearly specified conditions.certain clearly specified conditions.

Individual RightsIndividual Rights Protects individuals from restrictive Protects individuals from restrictive

government actions against life and liberty government actions against life and liberty against individuals living in Americaagainst individuals living in America

Civil Rights Era (Mid 1950s -1970s)Civil Rights Era (Mid 1950s -1970s) Brought forth injustices occurring in AmericaBrought forth injustices occurring in America Recognized fundamental personal rights Recognized fundamental personal rights

previous denied illegally to many people based previous denied illegally to many people based on their gender, race, ethnicity, sexual on their gender, race, ethnicity, sexual preference or disabilitypreference or disability

Expanded to rights of criminal defendants, Expanded to rights of criminal defendants, probationers, parolees, inmates and victims of probationers, parolees, inmates and victims of crimescrimes

Limited police power in apprehension, search Limited police power in apprehension, search and seizure and interrogation of suspects.and seizure and interrogation of suspects.

Contributed to the development of new laws Contributed to the development of new laws and court decisionsand court decisions

Individual Rights in AmericaIndividual Rights in America Rights guaranteed by the U.S. Rights guaranteed by the U.S.

Constitution, particularly the first 10 Constitution, particularly the first 10 amendments (Bill of Rights), to amendments (Bill of Rights), to individuals living in America.individuals living in America.

Protects and guarantees certain Protects and guarantees certain inalienable rights to all U.S. citizens inalienable rights to all U.S. citizens and most non-citizens living in the U.S.and most non-citizens living in the U.S.

Especially important to criminal Especially important to criminal defendants facing formal processing defendants facing formal processing by the Criminal Justice Systemby the Criminal Justice System

BILL OF RIGHTSBILL OF RIGHTS

First Amendment First Amendment (Freedom of religion, speech, (Freedom of religion, speech,

assembly, and the Press)assembly, and the Press)

Fourth AmendmentFourth Amendment (Freedom from unreasonable searches (Freedom from unreasonable searches

and seizures.)and seizures.)

Fifth AmendmentFifth Amendment No person to be deprived of life, No person to be deprived of life,

liberty or property without due liberty or property without due process of law.process of law.

BILL OF RIGHTSBILL OF RIGHTS

Sixth AmendmentSixth Amendment Right to a speedy public trial by an impartial Right to a speedy public trial by an impartial

jury, right to be informed of the facts of the jury, right to be informed of the facts of the accusation, right to confront witnesses and accusation, right to confront witnesses and have the assistance of counsel.have the assistance of counsel.

Eighth AmendmentEighth Amendment No excessive bail or cruel and unusual No excessive bail or cruel and unusual

punishment shall be imposed.punishment shall be imposed. Fourteenth AmendmentFourteenth Amendment

All persons (citizens and non-citizens) within All persons (citizens and non-citizens) within the US are entitled to due process and the the US are entitled to due process and the equal protection of the laws.equal protection of the laws.

Individual Rights (Due Process)Individual Rights (Due Process)

Assumes freedom is so important that Assumes freedom is so important that every effort must be made to ensure the every effort must be made to ensure the decisions are fair and reliable, based on decisions are fair and reliable, based on law and formal proceedings.law and formal proceedings.

Due Process values hold that the State Due Process values hold that the State must prove a person’s guilt within the must prove a person’s guilt within the confines of a process designed to confines of a process designed to safeguard personal liberties as safeguard personal liberties as enumerated in the Bill of Rightsenumerated in the Bill of Rights Protect the individual against the immense Protect the individual against the immense

power of the statepower of the state

Individual Rights Goals Individual Rights Goals

Limiting state power by assuring the Limiting state power by assuring the constitutional rights of the accusedconstitutional rights of the accused

Providing even guilty offenders with Providing even guilty offenders with full protection of the lawfull protection of the law

Assuring that all accused criminals Assuring that all accused criminals receive the same treatmentreceive the same treatment

Protecting the civil rights of prisonersProtecting the civil rights of prisoners

Individual Rights Favored PoliciesIndividual Rights Favored Policies

Due Process ModelDue Process Model Open the process to scrutiny by the media and Open the process to scrutiny by the media and

publicpublic Abolish the death penaltyAbolish the death penalty Limit police powers to arbitrary search, Limit police powers to arbitrary search,

interrogate and seize criminal suspectsinterrogate and seize criminal suspects Limit discretion and formalize criminal justice Limit discretion and formalize criminal justice

procedures so that all suspects and convicted procedures so that all suspects and convicted offenders receive the same treatmentoffenders receive the same treatment

Increase funding for rehabilitation and Increase funding for rehabilitation and education in prisons and jailseducation in prisons and jails

Individual Rights:Individual Rights: View of Criminality View of Criminality

Criminal behavior can be attributed Criminal behavior can be attributed to social and biological factorsto social and biological factors

Criminals can be rehabilitated and Criminals can be rehabilitated and returned to the communityreturned to the community

Public Order (Crime Control)Public Order (Crime Control) Assumes freedom is so important that Assumes freedom is so important that

every effort must be made to reduce crime every effort must be made to reduce crime so things like efficiency, speed and finality so things like efficiency, speed and finality are emphasized. The system must have a are emphasized. The system must have a high capacity to catch, convict and dispose high capacity to catch, convict and dispose of offenders.of offenders.

Values emphasize speed and efficiency in Values emphasize speed and efficiency in criminal justice system.criminal justice system.

The benefits of lower crime rates outweigh The benefits of lower crime rates outweigh any possible costs to individual rightsany possible costs to individual rights Deter crimeDeter crime Protect citizens from crimeProtect citizens from crime Incapacitate criminalsIncapacitate criminals Provide quick and efficient justiceProvide quick and efficient justice

Public Order Goals Public Order Goals

Promoting discretion and limiting Promoting discretion and limiting bureaucratic red tape in criminal bureaucratic red tape in criminal justice institutionsjustice institutions

Making it easier for police to arrest Making it easier for police to arrest criminalscriminals

Reducing legal restrictions on Reducing legal restrictions on proving guilt in a criminal trialproving guilt in a criminal trial

Public Order Favored PoliciesPublic Order Favored Policies

Crime Control ModelCrime Control Model More policeMore police More jails and prisonsMore jails and prisons Harsher penalties (including increased Harsher penalties (including increased

use of the death penalty) and longer use of the death penalty) and longer sentencessentences

Public OrderPublic Order

Wrongdoers are responsible for their Wrongdoers are responsible for their own actionsown actions

Wrongdoers have violated the social Wrongdoers have violated the social contract and can therefore be contract and can therefore be deprived of many of the rights deprived of many of the rights afforded to law-abiding citizensafforded to law-abiding citizens

Public OrderPublic Order In recent years Public Order supporters saw In recent years Public Order supporters saw

individual rights/civil rights as a contributing individual rights/civil rights as a contributing factor to the increase of crime in America. factor to the increase of crime in America.

Public Order supporters saw individual rights Public Order supporters saw individual rights as protecting the rights of dangerous as protecting the rights of dangerous criminals and lobbied for “Get Tough on criminals and lobbied for “Get Tough on Crime” laws.Crime” laws.

Public Order advocates believe that under Public Order advocates believe that under certain circumstances, the interest of society certain circumstances, the interest of society should take precedence over individual should take precedence over individual rights.rights.

USA Patriot Act of 2001 Law resulting from USA Patriot Act of 2001 Law resulting from the 9/11 Tragedy is supported by Public the 9/11 Tragedy is supported by Public Order AdvocatesOrder Advocates

USA Patriot Act of 2001USA Patriot Act of 2001 Expands terrorism laws to include Expands terrorism laws to include

“domestic terrorism” which could subject “domestic terrorism” which could subject political organizations to surveillance, political organizations to surveillance, wiretapping, harassment, and criminal wiretapping, harassment, and criminal action for political advocacy.action for political advocacy.

Expands the ability of law enforcement to Expands the ability of law enforcement to conduct secret searches, gives them wide conduct secret searches, gives them wide powers of phone and Internet surveillance, powers of phone and Internet surveillance, and access to highly personal medical, and access to highly personal medical, financial, mental health, and student financial, mental health, and student records with minimal judicial oversight.records with minimal judicial oversight.

USA Patriot Act of 2001USA Patriot Act of 2001 Allows FBI Agents to investigate American Allows FBI Agents to investigate American

citizens for criminal matters without citizens for criminal matters without probable cause of crime “intelligence probable cause of crime “intelligence purposes.”purposes.”

Permits non-citizens to be jailed based on Permits non-citizens to be jailed based on mere suspicion and to be denied re-mere suspicion and to be denied re-admission to the US for engaging in free admission to the US for engaging in free speech.speech.

Suspects convicted of no crime may be Suspects convicted of no crime may be detained indefinitely in six month detained indefinitely in six month increments without meaningful judicial increments without meaningful judicial review.review.

Public Order Advocates USA Patriot ActPublic Order Advocates USA Patriot Act

Some key points of the act that Some key points of the act that designed to support the effort against designed to support the effort against terrorism: terrorism: Counterterrorism Fund, and increased Counterterrorism Fund, and increased

funding for the technical support center at funding for the technical support center at the Federal Bureau of Investigation. the Federal Bureau of Investigation.

Expansion of National Electronic Crime Expansion of National Electronic Crime Task Force Initiative. Task Force Initiative.

Trade sanctions. Trade sanctions. The act also has specific sections geared The act also has specific sections geared

toward preventing money laundering, toward preventing money laundering, border protection, the strengthening of border protection, the strengthening of criminal laws, and providing for victims of criminal laws, and providing for victims of terrorism. terrorism.

Public OrderPublic Order

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

Individual Rights AdvocatesIndividual Rights Advocates

Believe that individual rights must be Believe that individual rights must be protected at all times as the U.S. protected at all times as the U.S. Constitution guarantees certain inalienable Constitution guarantees certain inalienable rights to all people living in America.rights to all people living in America.

The County was built on the foundation of The County was built on the foundation of individual freedom against government individual freedom against government intrusion in individual’s rights to privacy. intrusion in individual’s rights to privacy.

Democracy is threaten by increasing Democracy is threaten by increasing government intrusions on private personsgovernment intrusions on private persons

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