NDAA, Common Law, and Criminal Justice Lawmaking

Introduction

This essay describes the factors that have influenced the conceptualization and development of new criminal laws, as well as the alteration of existing ones. The investigation includes the specific roles of political lobbyists, the media, citizen groups, individual citizens, and criminal justice agencies in this process. To illustrate these dynamics clearly, a tragic case study is drawn from the underreported passage of the National Defense Authorization Act (NDAA) and its near-signature by President Barack Obama. It is difficult to imagine a moment in American constitutional history when civil rights have appeared so imperiled: under this legislation, American citizens can be detained by the U.S. military on U.S. soil indefinitely, without any due process, making the military detention facility a potential substitute for the county jail in the very near future.

The Influence of British Common Law

The effects of English common law on the American justice system are unmistakable. English criminal law derived its main principles from the common law system. The foundational elements of a criminal act are the actus reus — performing an act that is criminal — and the mens rea — possessing the necessary criminal state of mind, whether by intention or by recklessness. A prosecuting attorney must demonstrate that the suspect caused the crime or that they had a pre-existing duty to take positive steps to avoid a criminal consequence. The types of crimes subject to this framework range from well-known offenses such as manslaughter, murder, and theft to a wide variety of statutory and regulatory infractions.

The liberal and flexible nature of common law was a cherished fixture of the Founding Fathers, and British violations of it were among the foundational sparks of the American Revolution. The law's flexibility gives it a plasticity and dynamism that allows it to be applied to criminal acts as they develop historically. The line of descent from common law can be clearly traced to the Fifth, Sixth, and other Amendments of the U.S. Constitution (Siegel 146).

Courts, Civil Rights, and Landmark Cases

The Supreme Court and other federal courts have been active in extending protections to individuals tried for criminal offenses. A case that comes to mind immediately is the landmark Miranda v. Arizona Supreme Court decision of 1966. The ruling broadly expanded the rights of the accused to be informed of their right to consult with an attorney before and during questioning, including their right against self-incrimination. It also required that suspects not only be informed of these rights but that any waiver of them be made voluntarily and with full understanding.

Criminology and sociology scholar Abraham S. Blumberg, writing in his 1967 article "The Practice of Law as Confidence Game: Organizational Cooptation of a Profession," speaks extensively to the perceived and real magnitude of the injustice that the Miranda ruling was designed to remedy. Many suspects had not been properly informed of their Fifth Amendment rights; if they were unaware of those rights, they could not meaningfully exercise them. Miranda v. Arizona stands as a classic example of how courts can open doors for the exercise of fundamental constitutional protections (Blumberg 17).

Blumberg also addressed Gideon v. Wainwright, viewing the provision of legal counsel to defendants as essential to the enjoyment of rights more broadly. To be meaningful, rights must be facilitated by the state, not merely declared in writing. Failing to do so, Blumberg argued, amounted to a cooptation of basic civil rights in the area of protection against unlawful prosecution (ibid., 16).

Conclusion

One wonders if the recent travesty of NDAA Section 1031 will prove to be the high-water mark of the dilution of criminal justice protections that Americans have enjoyed for more than 220 years. Unfortunately, with the Obama administration having essentially continued the Bush-era legacy on these issues, the outlook is not entirely positive. It is to be hoped that the outcry over violations of the Bill of Rights will become so overwhelming that public pressure demands a swing of the pendulum away from what appears to be an Orwellian destination.