Criminal justice systems and practices

Criminal Justice

Do you agree that for police action to be "just" it must recognize the rights of individuals while at the same time holding them accountable to the social obligations defined by law?

Law enforcement is an essential component of any civilized society. The alternative to some form of penal law enforcement is a state of complete anarchy in which individual citizens are at the mercy of other citizens absolutely free to rape, rob, pillage, and plunder without any consequences. On the other hand, the polar opposite, a society with unjust laws (or unjust principles of law enforcement), is little better than complete anarchy. A "police state" in which government may intrude into the ordinary lives of its citizens without restriction, cause, or justification other than the general aim of enforcing its laws does so at the expense of individual freedom and fundamental rights, such as those recognized by American penal philosophy..

In the words of one renowned ethical philosopher, "... It is not the criminal law and its efficient and vigorous enforcement that enslaves, but the absence of such law, or its creation and enforcement in the light of ill-conceived principles." (Taylor, 1980) The goal of a society designed to protect its citizens must balance two equally important and legitimate needs: (1) to protect them from harming each other by establishing and enforcing social regulations, and (2) to avoid enforcement practices and procedures that do so only at the substantial expense of basic civil liberties and reasonable freedom from unjustifiable, unregulated, and arbitrary police intrusion into ordinary life.

Given only the choice between absolute civil anarchy governed by the "natural law" of might makes right and completely unchallenged and unjust state regulation, most individual citizens are probably somewhat safer risking governmental oppression and law enforcement abuse than they would be without any social rules whatsoever to protect the weaker from the whims of the stronger. Ultimately, the moral goal of a civilized society is to establish principles of laws (and rules for their enforcement) that maximize the protection of its citizens while minimizing unjustifiable intrusions into ordinary life that are almost -- if not quite exactly -- every bit as harmful as no governmental regulation, enforcement, or protection of law at all.

Have the courts provided adequate protection to citizens against overzealous police officers? In which Areas of search and seizure and interrogation law do you think the courts have not gone far enough? In which areas do you think the courts have gone too far?

Yes. Ever since the Miranda decision in 1966, the Supreme Court has continually expanded protections afforded under constitutional rights against unwarranted search and seizure and self-incrimination. Under the fruit of the poisonous tree doctrine, police action determined to have violated constitutional principles results in excluding any evidence generated thereby, together with any evidence subsequently derived from it.

Other modern-era lines of Supreme Court decisions regulate all major areas of law enforcement against citizens and provide national standards that require compliance in all

50 states.

One could argue that certain areas of search and seizure laws still allow police conduct that violates those valuable underlying principles. In particular, the Drayton decision (122 S. Ct. 2105, 2002) rejected the suggestion that ordinary citizens are not likely to believe they are free to decline a police officer's request for consent to a search of their person or belongings without probable cause. In Drayton, the defendants were passengers on a bus when two uniformed police officers boarded the vehicle and initiated conversations with passengers as part of routine drug and weapons interdiction practices.

The defendants consented to a specific request of the officer to search their bags and then their persons and the officer found cocaine concealed in the clothing of both men. The officers had no probable cause to suspect the defendant of any wrongdoing, and the defendant would have been lawfully entitled to refuse such consent without consequences. The Eleventh Circuit Court determined that the defendants had both been illegally seized, because, under the circumstances and confined space aboard the bus, they did not realize that they were perfectly free to decline conversation with the officers or to leave the bus without explanation had they wished to do so. (U.S. Department of Justice LEB, 2006)

Similar situations arise daily, when, after a routine traffic enforcement stop, officers probe for voluntary consent to search persons and vehicles (without reasonable suspicion of wrong doing or probable cause). In many cases, the officers very deliberately insinuate by their tone of voice, choice of words, and the totality of their control of the surrounding circumstances that refusing consent is not a practical option.