Contemporary Issues in Criminal Justice

¶ … growth and use of the First, Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution using the modern day criminal justice system.

According to Webster's dictionary of Law, Judicial Activism is defined as: "The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent compare judicial restraint." Over the past 4 decades, since the practice of judicial activism has been created by then NAACP lead attorney Thurgood Marshall in order to forward the progress of civil rights legislation, liberal political interests have pursued a practice of judicial activism in order to expand the powers of the government into the lives of U.S. citizens by bypassing the legislative limits defined in the constitution. Through this practice, small minorities of political interests have hijacked a political system which was purposefully designed to include checks and balances in order to prevent exactly what judicial activists have been able to accomplish.

For example, the first amendment is written in three clauses. Typically called the free speech amendment, the first amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The first and third clauses have been used to bludgeon the second clause out of existence. Congress is currently making laws which restrict and prohibit the free exercise of religion on the basis of "separation of church and state" even through the phrase 'separation of church and state' does not exist in the constitution. Through judicial activism, the power of this amendment has been expanded to remove prayer from public schools, question the presence of 'under God' in the Pledge of Allegiance, and remove plaquards of the 10 commandments from court house buildings. The founding fathers never meant for the government to be able to squash the presence of religion from public life, they intended to keep government power and religious power separate.

Unfortunately, expansion of the fourth amendments powers has occurred within recent years, and the passage of the patriot act. The fourth amendment, which reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" has been bent hopelessly beyond recognition by the Patriot act. The Patriot act permits the government various powers to exercise search and seizure of information and assets in the pursuit of terrorist threats, and perceived terrorist threats. (Henderson, 2002) As a result, this act is being currently challenged in court as to its constitutionality. (O'Neil, 2003)

Related to the recent terrorist events in the country, the 5th, 6th, and 8th amendments are currently being bypasses by the government by holding terrorists in detention centers in Cuba rather than populating them in jails. They right to a speedy trial, due process, and other rights related to the prosecution of an individual who is accused of a crime is being ignored as the terrorists are being labels as military combatants. As a result, the constitution does not apply to them, or at least is removed from being applicable to them in their current state of detention.

Question #2: Explain the factors that have contributed to prison overcrowding.

Elliott Currie in his study Crime and Punishment in America has argued that since 1972 the United States has been engaged in an unprecedented, unparalleled, and largely unnoticed social experiment. Since the society has been "testing the degree to which a modern industrial society can maintain public order through the threat of punishment" or, more specifically, imprisonment. (Currie, 1998) Jailing population has turned from a purpose of punishing the offender to maintaining order in society. While the former created deterrence, the later paradigm as only created the expectation of the society that prison is a holding cell for the offender, rather than a place to implement, punishment, and/or attempt rehabilitation. Marc Maier of the Sentencing Project makes a similar point in Race to Incarcerate, noting that "during this period public policy in the U.S. has resulted in... A second wave of the great 'experiment' in the use of incarceration as a means of controlling crime."(Maier, 1999) Still, this most recent prison experiment, which has sought to determine "whether a massive and unprecedented use of imprisonment would effectively control crime," has generated a corrections boom which is extraordinary even by U.S. standards and has led to the construction of the largest prison system in human history. (Ibid.)

The scope and impact of this experiment, the flip side of our nation's long-running wars on crime and drugs, may be measured in a variety of ways. Between 1972 and 1998 the population of our state and federal prisons more than sextupled, growing from less than 200,000 to over 1.2 million. By mid-1999 the total U.S. prison and jail populations was 1,860,520 and was projected to reach 2 million by the end of 2001. (McCormick, 2000)