Individual Rights in Criminal Justice

¶ … criminal justice are that of public order and that of individual rights. While each side has its merits and in some sense complements the other, there are those who favor either perspective. Public order advocates argue that the safety of citizens and the cohesion of civil society is paramount. Individual rights advocates are more focused on the autonomy of each person, even where it threatens the cohesion of society. Without some degree of social cohesion, it would be impossible for the state or society to exist in any effective capacity. In this case, it is difficult to see who would ensure the protection of individual rights. Similarly, a society that fails completely to protect any individual rights is ultimately serving none of the people within it and will end up collapsing. Therefore, there is a balancing act between the two perspectives that is necessary.

In many cases, it is difficult if not impossible to foresee all of the possible effects that decriminalizing a specific activity can have. This makes it difficult to decide whether or not a public order or individual rights perspective should be dominant in each conversation. For example, Colorado's recent decriminalization of marijuana has been the subject of many studies, ranging from DUI rates to economic impact to effects on the community's health. In most of these cases, even now, it is too early to determine the exact effects that cannabis is having.

Looking retrospectively at history, the individual rights perspective comes out looking much better than the public order perspective. For example, there was a point when it was illegal in every state for certain sex acts, including homosexual sexual intercourse, to occur (Nagourney 2003). A public order advocate might have argued that those acts violated the morality of the society and therefore threatened social cohesion. Today, it is difficult to be sympathetic to such a view, and most people are glad that these acts have been decriminalized at the federal level. Laws relating to abortion, and their public reception, are rapidly coming to a similar point.

At the same time, there are those cases where it can be argued that a public order perspective has won out. For example, our society's understanding of rape has evolved quite a bit over the last few decades. There was a point when the idea of "marital rape" would have confused many people, and certainly most forms of sexual harassment were considered much more acceptable. A male employer who slapped the buttocks of his female employee during the first half of the 20th century would have been shocked to be accused of committing a crime and would have felt that this was an unfair restriction of his liberties. In part this is due to the shifting nature of social relations: in the eighteenth century, when the Constitution was drafted, it would have been difficult to find a workplace with men and women as equal co-workers, just as the Constitution is written in language that assumes the male gender for those politically enfranchised. As a result, the notion of a power imbalance between men and women is partly a matter of making corrections for historical realities that fell short of egalitarian principle as enunciated in law. Thus an employer who slaps his female employee's buttocks is a recent phenomenon, and to raise voice in complaint against his action more recent still.