Bill of Rights and Today's Criminal Justice Essay

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Bill of Rights and Today's Criminal Justice System

The administration of justice and security in America is based upon Constitutional powers, originally drafted in the Bill of Rights. While the Constitution has been amended several times since its inception, its laws still stand and have been defined by courts in landmark cases that have decided how particular amendments may be interpreted. In the light of these cases and the Constitution itself, federal, state and local law enforcement agencies face various challenges in the pursuit of their objectives. This paper will analyze five amendments to the U.S. Constitution, show the relationship between these amendments and the administration of justice and security, and compare and evaluate the various areas of the criminal justice system and security.


Briefly stated, the First Amendment forbids Congress from restricting Americans the right to establish and exercise their religion of choice, to exercise their free speech or the press, to exercise their right to assemble or "to petition the government for a redress of grievances" (U.S. Const. Amend. I). This Amendment is designed to protect the people from the tyranny of government.

The Fourth Amendment is designed to protect citizens from unlawful search and seizure, warranting them the right "to be secure in their persons, houses, papers, and effects" (U.S. Const. Amend IV). In the landmark case Burdeau v. McDowell, this Amendment was designed as protecting citizens from unlawful search and seizure by the government (Dempsey, 2011, p. 94).

The Fifth Amendment guarantees citizens the right to a grand jury when charged with capital crimes; protects them from being charged twice for the same crime (double jeopardy), from testifying against oneself; and guarantees due process of the law. The Sixth Amendment follows closely on the heels of the Fifth by guaranteeing citizens the "right to a speedy and public trial, by an impartial jury," as well as the right to confront and to obtain counsel (U.S. Const. Amend VI).

The Fourteenth Amendment concerns citizenship. Ratified in 1865, its basis was in the Civil War, but it serves as the blueprint for the states rights of citizenship, privileges and immunities, due process, equal protection under the law, and the apportionment of representatives. It disqualifies insurrectionists and rebels from becoming members of Congress or a Representative. It also forbids citizens from questioning "the validity of the public debt of the United States" (U.S. Const. Amend XIV).

Each of these amendments has its own relationship to the administration of justice and security, and that relationship has been defined through the judicial branch of the government in the Supreme Court. The original Bill of Rights only meant to protect citizens from the federal government: it said nothing of tyranny exercised by state or local powers. The tyranny of states was not addressed until the Fourteenth Amendment, which asserted that "no State shall…deprive any person of life, liberty, or property, without due process" (U.S. Const. Amend. XIV).

The Earl Warren decision concerning due process changed the way the Bill of Rights was interpreted on a national level. As chief justice of the Supreme court until 1969, his Warren Court set a new precedent by deciding that the Bill of Rights applied to state and local governments as well as to federal. The Warren Court asserted that the Fourth, Fifth and Sixth Amendments applied to state criminal cases, a decision that revolutionized the criminal justice system at state and local levels. It gave greater rights to citizens and diminished the power of state and local law enforcement agencies.

Objectives and Challenges


Today, it is difficult to weigh the importance of the Bill of Rights and Constitutional Law in the criminal justice system. With the passing of the Patriot Act and the National Defense Authorization Act, critics see Constitutional Law being abandoned for an Orwellian advancement of totalitarian law. The National Defense Authorization Act essentially abolished the "due process revolution" put in place by the Warren Court. As long as one is suspected of being a "terrorist," his rights are virtually denied him. Signed into law in 2011 by Obama, it is the first instance in American history of law being passed providing details on the "indefinite military detention without charge or trial" of civilians (NDAA, 2012). The objectives of the federal criminal justice system have, therefore, substantially changed. With heavy emphasis on national security and war on terrorism, federal law enforcement agencies are changing their directives as we speak.

The Department of Justice includes the agencies of U.S. Marshals, the FBI, the Drug Enforcement Administration (DEA), the ATF, and others. The post-9/11 established Department of Homeland Security (DHS) is now one of the most prominent federal law enforcement departments. Its primary objective is to respond to terror threats. The main challenge it faces is working around the remaining shreds of the Bill of Rights that have not yet been obliterated by Congress or Executive Order.


Thanks to technological advancement and pushes towards uniformity and unity, state law enforcement agencies now work more closely with federal agencies than ever before. The National Law Enforcement Telecommunications Systems (NLETS) is a network that covers the entire nation and "links all states and many federal agencies together for the exchange of criminal justice information" (Dempsey, 2000, p. 101). Yet, in spite of this and other systems, one of the main challenges of state law enforcement agencies in post-9/11 America is the problem of information sharing. As Captain David Dethlefs (2003) states, over $370 billion has been spent by the federal government on establishing an information-sharing infrastructure, yet "problems persist in creating a collaborative information-sharing environment" (p. 1). This analysis provides a macro-view of state law enforcement concerns with regard to federal objectives. However, on a micro-level, state law enforcement agencies are charged with monitoring state highways, inspecting motor vehicles according to federal regulations, conducting criminal investigations. Like local law enforcement agencies, the state agencies act according to their jurisdiction.


Local agencies, such as city police, suffer from a conflict of objectives. On the one hand, they are constantly monitored by local citizens' rights advocacy groups and always under pressure to maintain healthy public relations. On the other hand, they are charged with enforcing the criminal code, investigations, and patrol. Patrols are often criticized for racial profiling, which is just one example of the ways in which civil liberties conflict with law enforcement objectives in the social/public sphere. The overall challenge of local agencies is to appease both local citizens and watchdog groups and conduct their business at the same time. As local police will state, it is not an easy balance to keep.

Private Security

As John S. Dempsey (2011) shows, judicial courts basically define private security personnel as being given authority from the same right that any person would have in "protecting his or her own property" (p. 94). In this sense, private security is viewed as an extension of the rights afforded U.S. citizens. Private security personnel therefore do not have the same broad powers of arrest as those given to local, state or federal police. General police regarding the challenges facing private security, such as mall security, is that in order to detain a suspect the personnel must observe the suspect steal, for instance, a piece of merchandise. This puts private security personnel at a much less advanced degree of enforcement. With respect to private and corporate protection, private security goals are different. With the threat of terrorism now emphasized so thoroughly, executive protection/security plans have been adopted by "most multinational corporations," and major security services are often hired with the goal of protecting against kidnapping, etc.

The Juvenile Justice System

Juvenile courts were instituted in the late 19th and early 20th centuries under the auspices of a dominant social philosophy of the time, which focused on reformation and prevention: "The idea behind juvenile court was that the children in trouble with the law should be helped rather than punished" (Roberts, 2000). With the rise of juvenile crime, however, states are attempting to enforce greater control over the problem by lowering the age at which children can be tried as adults from 18 to 16. The days of reformation and prevention appear to meeting tougher times as the nation begins to see itself as a battlefield, if one congressman from the South may be referenced.

Possible Solutions to Challenges Faced by Various Departments

The federal level of law enforcement faces only one real challenge and that is the voice of public approbation. With more power than ever before, federal law agencies with the Department of Justice and the DHS at the helm, the biggest challenge to federal law agencies is simply sharing effectively all the information they accumulate. This is no easy problem, and in spite of billions spent on communications, the problem still exists. One solution might be to decentralize and cut back on the necessity of sharing information. More power would therefore need to be given to state law enforcement agencies. This, however, would be challenged by groups…[continue]

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