CHAPTER 2

IDEOLOGICAL FRAMEWORK OF CRIME CONTROL

I. CRIME CONTROL IN A DEMOCRACY

A. In the U.S., CRIMINAL JUSTICE and CRIME CONTROL co-exist with SOCIAL JUSTICE.

        1.    Justice - the principle of fairness; the ideal of moral equity.
        2.    Social Justice - an ideal which embraces all aspects of civilized life and which is linked to fundamental notions of fairness and to cultural beliefs about right and wrong.
        3.    Criminal Justice - those aspects of social justice which concern violations of the criminal law (criminal law/criminal procedure/all aspects of the enforcement of criminal law. Cannot be separated from Social Justice because the kind of justice carried out in the criminal courts is a reflection of basic American understandings of right and wrong. So, in one sense, the study of Criminal Justice is the study of how Social Justice is achieved in the criminal courts.

    B.    Ideological Framework of Crime Control

        1.    Society seeks balance, through law, between rights of the individual and society's interests. From the perspective of social order, law is an instrument of social control (social control - use of sanctions and rewards available through a group to influence and shape the behavior of individual members of that group). Laws set limits on behavior and define particular forms of social interaction as unacceptable. Laws, including whatever inequities they may embody, are a primary device for order creation in any society. Basically two type of counteracting forces;

            a.    Individual rights advocates: In the context of a person's perspective of the criminal justice system, those who seek to protect personal freedom.
            b.    Public order advocates: In the context of a person's perspective of the criminal justice system, those who suggest that, under certain circumstances involving criminal threats to public safety, the interests of society should take precedence over individual rights.

        2.    Rights and Protections Guaranteed by the U.S. Constitution

            a.    The right of/to
                i.    Presumed innocence
                ii.    Fair questioning by police
                iii.   Legal counsel
                iv.   Trial by jury
                v.    Full knowledge of charges filed against you
                vi.    Cross-examination of prosecution witnesses
                vii.    Speak and present witnesses in own behalf
                viii.    Due process of law
                ix.    Speedy trial
                x.    Equal treatment before the law regardless of race, gender, religious preference and other personal attributes (DOES THE QUALITY OF LEGAL REPRESENTATION GIVE ONE AN EDGE?)

            b.    Protection against

                i.    Unreasonable searches of person or residence/vehicle
                ii.    Arrest without probable cause
                iii.    Unreasonable seizure of personal property
                iv.    Self-incrimination
                v.    Physical harm throughout the justice process
                vi.    Cruel or unusual punishment
                vii.    Excessive bail
                viii.    Excessive fines
                ix.    Multiple trials for the same crime (double jeopardy)

        3.    The Role of the Supreme Court in the Criminal Justice System

            a.    Does the Court follow or lead the public?

        4.    Basic tenets/principles of the American Criminal Justice System

            a.    Due Process of Law
            b.    Fundamental Fairness
            c.    Propriety
            d.    Freedom from Cruel and Unusual Punishment
            e.    Equal Protection
            f.    Presumption of Innocence

II. AMERICAN CRIMINAL JUSTICE

A. System or Non-System

        1.    The American Criminal Justice System - the aggregate of all operating and administrative or technical support agencies that perform criminal justice functions: law enforcement agencies/courts/corrections.

        2.    Two views of the Criminal Justice System

            a.    CONSENSUS - Perspective which assumes the system's sub-components work together harmoniously to achieve that social product we call "justice". The movement of cases and people through the system is smooth due to the cooperation between the components of the system (SYSTEMS VIEW)
            b.    CONFLICT - Perspective which assumes the system's sub-components function primarily to serve their own interests. "Justice" is more a product of conflicts among agencies than a result of cooperation among agencies. Agencies compete for scarce resources, public recognition, stats (NON-SYSTEMS VIEW)

III.    MODELS OF CRIMINAL JUSTICE

    A.    The Crime Control (Conservative Theology) Model

        1.    Basic Tenet: Presumption of guilt
        2.    Basic Purpose: The repression of criminal conduct
        3.    How to Achieve Purpose: The efficient arrest and conviction of criminal offenders.
        4.    Methodology:
            a.    Speedy processing of offenders - swift and sure processing/unfettered use of discretion by the fact finders
            b.    Finality - minimize the occasions for challenging the process (Example - recent federal legislation limiting the number of appeals a prisoner may make from their conviction). Uses high rates of arrests; quickly eliminate the innocent; convict as many offenders as possible, preferably by guilty pleas

                i.    Methodology: utilization of discretion (informality); treat all offenders the same (uniformity); unrestricted by unnecessary rules and regulation

            c.    Assembly-line conveyer belt image of justice (factory)
            d.    Efficiency in processing - mistakes happen. If an innocent person is wrongly processed as a criminal, too bad. Just one of the costs of preventing crime.

5. The two possible outcomes for someone caught up in this type of system:

            a.     An administrative fact-finding process leading

                i.    To exoneration of the suspect
                ii.    To the entry of a guilty plea

B. The Due Process (Liberal Theology) Model

        1.    Basic Tenet: Presumption of innocence
        2.    Basic Purpose: Protection of the individual from injustice
        3.    How to Achieve Purpose: By placing on the criminal justice process constitutional rules and prohibitions that obstruct the power the state can exercise in regard to its citizens. Accountability before the law, not only for the alleged criminal offender, but also the administrative fact-finders.
(Basically by measuring the actions of the criminal justice agencies against the 1^st, 4^th, 5^th, 6^th, 8^th, 13^th, and 14^th amendments of the U.S. Constitution)
        4.    Methodology:

            a.    A statute creating and defining the offense must exist prior to the alleged criminal act
            b.    There must be an impartial tribunal with jurisdiction over the case
            c.    Accusation must be in proper form -indictment/information
            d.    Notice and opportunity to defend
            e.    Trial according to established procedure
            f.    Right to counsel
            g.    Discharge from all restraints or obligations unless convicted

    C.    Which "Model" is Followed by the United States?

1. Crime Control through Due Process