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The term "play in the joints" refers to flexibility within the law that allows for a certain amount of discretion to occur within the prosecution and judge. Even though there is discretion within the manner in which the Judge may interpret sentencing, procedure and rulings, there are still formal rules of law that provide for a basis for upholding the Constitution. In a given situation, for example, the Judge may have the discretion to put someone on parole, or sentence them from x-y months/years. Depending on the circumstances of the offense, and the offender's reputation, prior record, attitude of remorse, etc., a judge may "play with the" rules to a certain extent. Another way of thinking about this topic is that since individuals are different, there may be different circumstances that caused the commission of a crime, there may be levels of that crime (e.g. stealing a loaf of bread vs. grand theft auto, etc.), and even circumstances surrounding the purported crime. These individual differences allow the Judge to exercise some level of interpretation regarding the case (Samaha, 2008. pp. 14, 22).
2. In the United States, under the Constituition, there must be a balance between a person's individual liberties and Rights, the protection of society, and the balance of values (laws) held by that society. In many ways this is like ulilitarianism and deontology; utilitarianism asks us to look at what is the best for the largest number of people -- ends; deontology asks us to also look at the manner in which those ends were met -- the means. In modern law, there must be a balance for the search for the truth and the protection of individual rights. After 9/11 this became quite apparent when many citizens of Arabian descent were profiled or even questioned for criminal activity simply because of their ethnicity. The balance needs to be between the threat of terrorism and protecting most of society vs. The potential of stepping upon someone's Constitutional rights. The protection of those rights is the basis for the American legal system and thus must include fairness in order to ensure all are treated relatively equally (Samaha, p. 7).
3. The Patriot Act that was implemented just after 9/11 was put into place to protect American society. However, there are several examples within the act that challenge individual rights: increased electronic surveillance, search and seizure, data gathering power and even the detaining of individuals suspected of terrorist. The emergency was, of course, the Al-Qaida attack upon the U.S.; the response was to keep the community safe; individual autonomy is lessened through programs like "Carnivore" which surveys the individual's conversations on the web and cell-phone network; and the idea that there is more latitude in search and seizure, as well as longer rules of suspect detention erode, some say, the rights of the individual guaranteed by the Constitution (Olson, 2001).
4. Constitutions are living documents that lay down principles and rules, as well as overall functions of how law should be used within society. Constitutions tend to be macro in scope, in that they define responsibilities between the three organs of U.S. Government (Judicial, Legislature and Executive). Laws are individual (micro) edicts that are made to define specific issues under the Constitution. The Constitution is the basic framework, or the strategic direction of law; defining relationships and allowing for reasons that are fundamental to other laws (e.g. privacy, search, etc.). Laws are the manner in which the tactics of the legal system and/or philosophy are carried out and used within society. A Constitution defines the theoretical basis of law, while laws incorporate the process of law and allow the government and its officers to use the Constitution to frame and enforce laws based on a philosophical and fundamental belief system (Samaha, p. 36). The six characteristics of constitutionalism are: 1) Constitutions are a higher form of law that also speak with political authority; 2) Constitutions speak for the will of the entire population (the will of the people); 3) Constitutionalism binds all phases of government; 4) Constitutions cannot be changed on a whim, but are structures of the governmental system; 5) Constitutions can only be changed by direct action of the representative population; and, 6) Constitutions embody the fundamental rights of the population under government (Samaha, p. 26).
5. The Supreme Court is the highest court in the United States but does not have the power to initiate its own cases. Cases are heard based on recommendations from lower courts so an individual Justice cannot select a specific policy that he or she disagrees with and then brings it to the Court for ruling. Second, the Supreme Court is not empowered to enforce its own rulings, but relies on the Executive and Legislative branches to do so. The idea of fundamental fairness is more strategic and vague and the incorporation doctrine more tactical and specific. Both focus on ways to apply the Bill of Rights to individual states. The BOR is designed to protect individual rights from government infringement, but usually applies only to Federal law. The fundamental fairness doctrine was one of the ways in which the Supreme Court found ways to ensure that states would adhere to the BOR. Indeed, states may interpret law, and there may be different procedures, but each interpretation had to be fundamentally fair and in the spirit of the actual federal law. The incorporation doctrine was mean to deal with the often said ambiguity of fundamental fairness. It is more specific in that states must follow certain aspects of the BOA -- it is more specific than strategic (Samaha, pp. 35-7).
6. The elements of the trespass and privacy doctrines are part of tort law: Trespass to the person, chattels and land. Essentially this means wrongful interference with something possessed by an individual. The privacy doctrine refers to the idea that individual citizens should have a reasonable expectation of privacy based upon the Fourth Amendment. In theory, the privacy doctrine should balance the power of the government against unwarranted search and seizure; in practice there is a great deal of leeway in what law enforcement indicates it sees or hears when investigating a case. However, there is still the assumption that a reasonable citizen has the expectation of privacy and, as in Katz v U.S. is subjective depending upon the circumstances and state involved (Samaha, p. 54).
Stop and Frisk -- Seizures of Persons-
1. Police powers for arrest and detaining have evolved since the Constitution, alternatively depending he government in power and their focus. In general, though, arrests must be used only when there is corroborating materials available and legal justification for such. A lawful arrest requires to major elements: 1) The suspect must be involved in the commission of a crime, 2) there must be reasonable grounds that an illegal act has occurred or is about to occur -- the exercise of arrest powers are subject to a necessity based on the nature and circumstances of the individual offense. Over time, police have had to contend with some limits of their powers for search and seizure, and particularly in the late 20th century, have had to ensure that they inform the individual of their Constitutional Rights as well as a right to counsel. Some of these issues have been mitigated and tested based on the Homeland Security Act after 9/11, but still require a basis in Constitutional test to remain legal. Besides ensuring there is a valid reason for arrest, an arrest can be made if it is to prevent the person in question from harming themselves or others or to protect society at large (Powers of Arrest, 2009).
2. The Ratio of Stops to Arrest in modern society is highly dependent upon the geographic area, which then tends to be somewhat dependent on demographic and psychographic tendencies. In New York City, for example, one study showed that only about 5.37 of all stops between 2004 and 2009 resulted in arrests, while studies of the same area in the 1990s indicated about 9.4 as a total ratio (Oberholtzer, 2012; Samaha, p. 108). Legal scholars have identified four overall realities that surround the idea of "stop and frisk" in contemporary American society: 1) Law enforcement will actually stop and frisk many individuals who have done nothing wrong and are not armed; 2) Most of these individuals do want higher levels of police protection, especially in high-crime areas and actually need more police protection than in safer neighborhoods; 3) Particularly in high-crime areas, both law-abiding and law-breaking individuals form their opinions about police and law based on stop and frisk procedures; and, 4) Nationally, stop and frisk are not applied euqally to all citizens; persons of color, particularly in urban and high-crime areas are disproportionately stopped and frisked (Samaha, p. 86).
3. The Fourth Amendment to the Constitution is part of the Bill of Rights and prevents unreasonable searches and seizures and requires that any warrant for search to be supported…[continue]
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