Balancing individual rights and public safety in post-9/11 criminal procedure

Crime Control/Procedures

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 with probable cause and issued by a Judge. There are at least three potential interpretations of the Fourth Amendment: 1) It applies only to full searches and arrest; not short of partial situations; 2) Even brief street detentions are technically arrests, especially pat down searches, and should be executed only if there is probable cause; and 3) Stop and searches are searches and seizures, but only minor ones so have a lesser standard of proof needed than full stops and searches -- there is more discretionary power for law enforcement. In Terry v. Ohio, the Court seems to favor #3 above, and in particular wishes to protect the safety of law enforcement but insists that stops and searches cannot be whimsical, but still need enough facts that a Judge or objective party would find reasonable (Samaha, pp. 88-9).

4. In general, there are three types of police encounters: 1) voluntary -- in which there is willing contact and no physical or mental coercion; 2) brief (defined as minutes), in which on-the-spot detentions are used to access information -- but still require reasonable suspicion; and 3) arrests (hours or days) in which the individual is transported to the Police or Law Enforcement office for detention. The Fourth Amendment applies to reasons 2 and 3; and yet can sometimes be subjective depending on the officer, individual, time, place and event involved (Samaha, p. 98).

5. Custodial arrests are defined as a law enforcement officer taking a person into custody and holding them for interrogation about criminal charges. An arrest, according to one author, is like a zone of continuum -- it can be a short detention in public lasting just a few minutes or a full arrest in which the suspect is "booked," and held in a more formal manner. The differences between Fourth Amendment Stops and full custodial arrests center on degree and seriousness, as well as time and location. The more serious the crime, the more burden of proof required; custodial arrests require the most amount of proof as well as a longer period of time and a higher predisposition towards guild (Samaha, pp. 170-1).

6. A full custodial arrest requires more burden of proof than a stop and search, and is characterized by more formal reading of rights, letting the individual know they are "under arrest" for a specific charge, the individual is photographed and fingerprinted, and interrogation or line-ups may be used. One may see the differences between the two also in degree -- the least intrusive on the continuum is a simple stop and search with informal questions, etc. -- the most intrusive a complete booking and arrest in which the individual is typically handcuffed and transported to a central legal institution at which time they are completely searched, their property inventoried and often held in a locked cell (Samaha, p. 141). There are a number of negative consequences to arrest: unreasonable force, false arrest and detention, public relations fall-out, lack of sufficient evidence for holding which ruins the future case, out of control law enforcement and overcrowding of jails based on divergent standards of arrest (Samaha, pp. 165-71).

7. When a law enforcement professional believes that an arrest is needed, there are two kinds of information they can rely on to satisfy what the Courts have indicated is reasonable: Direct information and hearsay. Direct information is firsthand data known to officers through their senses (what they saw, heard, tasted, felt or smelled). It does not automatically make the case for arrest, but does contribute to the overall view of a pattern or a suspicion that needs to be taken seriously. For example, if an officer sees a suspect fleeing, resisting officers, hiding, giving contrary information, attempting to destroy evidence; or there is proof of matching fingerprints, DNA or other fluids, then the information is considered direct. Hearsay rules do not allow for the guilt of innocence of a person, but if the sources are reliable and truthful, or if a pattern can be found, then usually the Court finds that it is reasonable for arrest. Of course, not all hearsay is identical -- eyewitnesses can be reliable or unreliable based on proximity, their condition, time of day, etc.; professional informants may also have degrees of reliability as well depending on the perception of reasons for their testimony. Again, there is considerable latitude the Courts have given; largely because arrest and conviction are seen as two extremes of using the law to prevent crime (Samaha, pp. 142-3).

Self-Incrimination

1. In criminal law, a confession is a statement made by a suspect in a crime that indicates they have performed an action, usually illegal. It is a statement that acknowledges facts that may be used for prosecution and has had a long history of legal philosophy. In historical times, confessions were all that was often needed for complete prosecution (e.g. during the Middle Ages and the Inquisition. On one hand, the reliability of the confession is dependent upon the manner in which it occurs: a confession made under duress or torture is not reliable; and even without torture, a confession made might be false because of memory, plea bargaining, mental illness or other circumstances. From a scientific point-of-view, the literature suggests that people often implicate themselves unknowingly, that they are not always clear of the facts, and that through the use of intimidation or psychological tactics, many innocent people make confessions (Kassin, 2008).

2. One research study from 2003 examined 125 proven cases of people giving confessions to crimes they did not commit. The research proved the preponderance of false confessions through four empirical models: 1) The crime never happened; 2) The defendant could not have possibly committed the crime; 3) Another person has been proven to have committed the crime; and 4) DNA evidence proved that the confessor was not the criminal. Further, over 80% of those proven innocent were actually convicted of the crime; a number of vulnerable populations (young people, the mentally ill or retarded) confess to crimes they did not commit, and the idea of false confessions is a far more serious issue than previously thought (Samaha, pp. 290-1; (Drizin & Leo, 2003-4).