Criminal Justice Paper- The Differences Between Due Process and Crime Control

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Criminal Procedure for the Criminal Justice Professional
10th Edition

John N. Ferdico

Henry F. Fradella

Christopher Totten

Prepared by Carolyn D’Argenio

Individual Rights Under the United States Constitution

Chapter 1

Criminal Procedure as the Balance Between Due Process and Crime Control

The Need for Balance

  • One of the biggest challenges for the criminal justice system is to keep its competing notions of due process and crime control in balance.
  • The law of criminal procedure is designed to balance the important governmental functions of maintaining law and order and protecting the rights of citizens.

Herbert Packer’s Crime Control vs. Due Process Models

Due Process Model Crime Control Model
Primary Goal: Protection of the innocent; limiting governmental power. Primary Goal: Apprehension, conviction, and punishment of offenders.
Focus: Due process; respect of individual rights. Focus: Crime Control; repression of criminal conduct.
Mood: Skepticism Mood: Certainty
“Obstacle Court Justice”—presents numerous obstacles to prevent errors and wrongful convictions. “Assembly-Line Justice”—processes cases quickly and efficiently to promote finality of convictions.
Concerned with legal guilt—the assumption that someone is innocent until proven guilty beyond a reasonable doubt. Relies on formal, adjudicative, adversary fact-finding processes. Concerned with factual guilt—assumes that someone arrested and charged is probably guilty. Relies on informal, non-adjudicative fact-finding—primarily by police and prosecutors.
Dignity and autonomy of both the accused and the system are to be preserved. Expedition processing of offenders to achieve justice for victims and society as a whole.

Shifting the Balance Over Time

  • The criminal justice system has had different emphases at different times.
  • First half of 20th century—crime control
  • Urbanization, immigration, industrialization
  • Increased diversity
  • 1960s—due process revolution
  • Civil rights era
  • Social consciousness & equal justice
  • Nixon era to present—tough of crime
  • War on drugs
  • War on terror

A Brief History of the Constitution

The Law of England

  • English common law gave procedural protections to the criminally accused, including:
  • The right to have adequate notice of what is prohibited by law before being punished for violating law;
  • The right to a fair trial; and
  • The protection of property or possessions
  • These guarantees were not always honored.

Drafting a New Constitution

  • In light of their experience with governmental tyranny, the Founding Fathers of the United States had a strong commitment to the protection of individual rights from governmental abuse.
  • This commitment was embodied in the original Constitution of 1788 and in the Bill of Rights, adopted shortly thereafter.

The Original Constitution

  • The Constitution of 1789 has served as the fundamental instrument of our government for almost all of our country's history.
  • The original Constitution of the United States is divided into seven parts—a preamble and six articles. Each article addresses a different topic relevant to the structure and operations of government.

The Power of Judicial Review

  • Article VI, Section 2 of the U.S. Constitution is known as the Supremacy Clause. It declares that the Constitution is the "supreme law of the land."
  • Constitutional law trumps all other forms of law including statutory law, common law, and administrative law.
  • Judicial review is the duty of the court to decide when other laws are in violation of the spirit of the constitution.

The Bill of Rights

  • Shortly after the adoption of the constitution, ten amendments, the Bill of Rights, were added to it to guarantee basic individual liberties, including freedom of speech, freedom of the press, freedom of religion, and freedom to assemble and petition the government.
  • Originally applied only to acts of the federal government.
  • Many rights extended to states with the Fourteenth Amendment (1868).

Individual Rights in the Original Constitution

Habeas Corpus

Article I, Section 9, Clause 2:

The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion

the public Safety may require it.

  • This guarantee enables a person whose freedom has been restrained in some way to petition a federal court for a writ of habeas corpus to test whether the restraint violates the Constitution or laws of the United States.

Bills of Attainder

Article I, Section 9, Clause 3:

No Bill of Attainder . . . shall be passed [by the federal

government].

Article I, Section 10, Clause 1:

No State shall . . . pass any Bill of Attainder. . . .

  • A bill of attainder is a special act of a legislature declaring that a person or group of persons has committed a crime and imposing punishment without a court trial.

Ex Post Facto Laws

Article I, Section 9, Clause 3:

No . . . ex post facto Law shall be passed [by the federal

government].

Article I, Section 10, Clause 1:

No state shall . . . pass any . . . ex post facto Law. . . .

  • These two clauses prohibit the states and the federal government from enacting any ex post facto law, literally a law passed "after the fact."

Trial Rights

Article III, Sections 1 and 2

Article III, Sections 1 and 2, of the Constitution deal with

the judicial system of the United States and are too long to

be reproduced here.

  • Article III, Section 1, of the Constitution outlines the structure and power of our federal court system and establishes a federal judiciary.
  • Article III, Section 2, guarantees that the trial of all federal crimes, except impeachment, will be by jury.

Conviction for Treason

Article III, Section 3:

Treason against the United States, shall consist only in

levying War against them, or in adhering to their Enemies,

giving them Aid and Comfort. No Person shall be convicted

of Treason unless on the Testimony of two Witnesses to

the same overt Act, or on Confession in open Court. The

Congress shall have power to declare the Punishment of

Treason, but no Attainder of Treason shall work Corruption

of Blood, or Forfeiture except during the Life of the Person

attainted.

  • Treason is the only crime defined by the Constitution.

Individual Rights in the Bill of Rights

Amendment I

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.

First Amendment Guarantees

  • Freedoms of Speech, Expression, and Peaceable Assembly
  • Free Speech includes symbolic speech.
  • Governmental entities are entitled to regulate the time, place, and manner of speech.
  • Defamation, words that incite immanent lawlessness, and obscenity lie beyond the realm of First Amendment protection.
  • The establishment clause restricts establishment of government-sponsored religion.
  • The free exercise clause allows people to practice religion without undue government interference.

Amendment II

A well regulated Militia, being necessary to the

security of a free State, the right of the people

to keep and bear Arms, shall not be infringed.

Second Amendment Guarantees

  • The Supreme Court has held that the state and federal governments may pass laws prohibiting the carrying of concealed weapons, requiring the registration of firearms, and limiting the sale of firearms for other than military uses.

Amendment III

No Soldier shall, in time of peace be quartered

in any house, without the consent of the Owner,

nor in time of war, but in a manner to be

prescribed by law.

Third Amendment Guarantees

  • Before the American Revolution, colonists were frequently required, against their will, to provide lodging and food for British soldiers. The Third Amendment prohibited the continuation of this onerous practice.

Amendment IV

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.

Fourth Amendment Guarantees

  • The Fourth Amendment protects people and their property from unreasonable searches and seizures by governmental officers.

Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

Fifth Amendment Guarantees

  • Indictment by grand jury
  • Before a person is tried in federal court for an infamous crime, he or she must first be indicted by a grand jury.
  • Freedom from double jeopardy
  • Protects against multiple criminal punishments for the same offense.
  • Also contains the dual sovereignty and collateral estoppel doctrines.
  • Privilege against self-incrimination
  • Protects people from being incriminated by their own compelled testimonial communications.

Fifth Amendment Guarantees Con’t.

  • The right to due process
  • Provides procedural due process, substantive due process, and equal protection of law.
  • The right to just compensation
  • The power of the government to acquire private property is called eminent domain.

Amendment VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

Sixth Amendment Guarantees

  • Right to a speedy and public trial
  • Right to trial by an impartial jury
  • Right to notice of charges
  • Right to confrontation of witness
  • Through face-to-face witness testimony and an opportunity for cross-examination.
  • Guarantee of compulsory process
  • Right to compel the attendance of favorable witnesses at trial, usually through a court-issued subpoena.
  • Right to Representation by Counsel
  • For all prosecutions that may result in imprisonment.

Amendment VII

In suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and no

fact tried by a jury, shall be otherwise re-

examined in any Court of the United States,

than according to the rules of the common law.

Seventh Amendment Guarantees

  • Except as provided by local federal court rules, if a case is brought in a federal court and a money judgment is sought that exceeds twenty dollars, the party bringing the suit and the defendant are entitled to have the controversy decided by the unanimous verdict of a jury of twelve people.
  • Applies only to federal civil trials and not to civil suits in state courts.

Amendment VIII

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

Eighth Amendment Guarantees

  • No excessive bail
  • Everyone does not have the right to bail, but if granted, the bail may not be excessive.
  • Freedom from cruel and unusual punishment
  • Limits sanctions that violate the principle of proportionality.

Amendment IX

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or

disparage others retained by the people.

Ninth Amendment Guarantees

  • Powers of government are limited by the rights of the people.
  • The Constitution did not intend, by expressly guaranteeing certain rights of the people, to grant the government unlimited power to invade other rights of the people.

Amendment X

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively,

or to the people.

Tenth Amendment Guarantees

  • Embodies the principle of federalism, which reserves for the states the remainder of powers not granted to the federal government or expressly withheld from the states.

Later Amendments Dealing with
Individual Rights and Liberties

Amendment XIII

Section 1. Neither slavery nor involuntary

servitude, except as a punishment for crime

whereof the party shall have been duly

convicted, shall exist within the United States,

or any place subject to their jurisdiction.

Section 2. Congress shall have power to

enforce this article by appropriate legislation.

Thirteenth Amendment Guarantees

  • Prohibits slavery.
  • Prohibits certain state laws that had the effect of jailing debtors who did not perform their financial obligations.

Amendment XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws. . . .

Section 5. The Congress shall have power to enforce,

by appropriate legislation, the provisions of this article.

Fourteenth Amendment Guarantees

  • The right to due process
  • The right to equal protection of the laws
  • Prevents any state from making unreasonable, arbitrary distinctions between different persons as to their rights and privileges.

Standards of Judicial Review for Equal Protection Clause Litigation

Standard of Review When Used Test Usual Outcome
Strict Scrutiny 1. Fundamental Rights (speech, privacy, voting, religion, running for office, access to courts, interstate travel). 2. Suspect Classifications (race, religion, national origin) 1. Compelling Governmental Interest 2. Narrowly tailored means in the law must be used to achieve the ends identified as a the compelling governmental interest. Law is presumed unconstitutional unless government can prove it has a compelling governmental interest that cannot be achieved in a less restrictive way.
Intermediate Scrutiny Quasi-Suspect Classifications (gender and illegitimacy) 1. Important Governmental Interest 2. Substantially-related means to achieving ends No presumption.
Rational Basis Test For everything else 1. Legitimate Governmental Interest 2. Rational connection between means (the law) and ends (the identified legitimate governmental interest) Law is presumed constitutional unless the challenger to the law can show no legitimate governmental interest, or show irrational basis for how the law achieves the stated ends.

Amendments Protecting Voting Rights

Amendment XV

Section 1. The right of citizens of the United

States to vote shall not be denied or abridged

by the United States or by any State on

account of race, color, or previous condition of

servitude.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

Amendment XIX

Section 1. The right of citizens of the United

States to vote shall not be denied or abridged

by the United States or by any State on

account of sex.

Section 2. Congress shall have power to

enforce this article by appropriate legislation.

Amendment XXVI

Section 1. The right of citizens of the United

States, who are eighteen years or older, to vote

shall not be denied or abridged by the United

States or any State on account of age.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

Amendments XV, XIX, and XXVI

  • Together these three amendments ensure the right to vote.
  • May not be denied to any citizen over the age of eighteen because of race, color, previous condition of servitude, or gender.
  • The Twenty-Sixth Amendment lowered the voting age for all elections from twenty-one to eighteen years of age.
  • These amendments, together with the Fifth and Fourteenth, prohibit any arbitrary attempt to disenfranchise any American citizen.

Amendment XXIV

Section 1. The right of citizens of the United States

to vote in any primary or other election for President

or Vice President, for electors for President or Vice

President, or for Senator or Representative in

Congress, shall not be denied or abridged by the

United States or any State by reason of failure to pay

any poll tax or other tax.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

No presumption.1. Important

Governmental Interest

2. Substantially-related

means to achieving ends

Quasi-Suspect

Classifications

(gender and illegitimacy)

Intermediate

Scrutiny

Law is presumed

constitutionalunless

the challenger to the

law can show no

legitimate

governmental

interest, or show

irrational basis for

how the law achieves

the stated ends.

1. Legitimate

Governmental Interest

2. Rational connection

between means (the law)

and ends (the identified

legitimate governmental

interest)

For everything else

Rational

Basis

Test

Law is presumed

unconstitutional

unless government

can prove it has a

compelling

governmental interest

that cannot be

achieved in a less

restrictive way.

1. Compelling

Governmental Interest

2. Narrowly tailored

means in the law must

be used to achieve the

ends identified as a the

compelling

governmental interest.

1. Fundamental Rights

(speech, privacy, voting,

religion, running for

office, access to courts,

interstate travel).

2. Suspect Classifications

(race, religion,

national origin)

Strict

Scrutiny

Usual OutcomeTestWhen UsedStandard of

Review