Controversies in criminal justice

by Matt Kelley

Published October 05, 2008 @ 06:54PM PT

By its nature, criminal justice is often adversarial. In a system that finds truth through argument, controvery is bound to follow. Here are five of the more raging disputes in the field at the moment:

The Death Penalty: The U.S. Keeps Strange Company

The practice of capital punishment has endured for thousands of years around the world, but it sits today at a moral crossroads around the world. Proponents argue that the threat of the death penalty deters violent crime and that it is the only fitting punishment for some murders. Others, however, oppose any practice in which the state takes a life. They argue that the death penalty represents the "cruel and unusual punishment" outlawed in the U.S. Constitution. They also say it doesn't deter crime, costs more to carry out than incarcerating a prisoner for life, is disproportionately applied to poor defendants and presents the risk of executing an innocent person.

Most countries in Europe and Latin America have abolished the death penalty, and only eight countries worldwide have executed more than ten people a year in recent years: China, Iran, Saudi Arabia, the United States, Pakistan, Yemen, Vietnam and Jordan. Thirty-six states allow the death penalty for some murders and 70 percent of Americans say they support the practice, but the number of executions carried out in the U.S. has declined steadily since 1999.

The movement to abolish the death penalty

Death Penalty Information Center - History of the death penalty

Pro-Death-Penalty.com

U.S. Capital punishment statistics - Bureau of Justice Statistics

Capital punishment - wikipedia

http://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States

2. The War on Drugs: Mandatory Minimums and Increased Incarceration

For decades, the U.S. has consumed more illegal drugs than any other nation on Earth, and efforts to curb demand and trafficking have failed. Since President Nixon declared the "War on Drugs" in 1971, use of illegal drugs in United States has remained relatively steady, and there has been a fourfold increase in incarcerated Americans, many of them jailed for non-violent offenses. As a result, state and federal governments spend $55 billion a year on the corrections industry today.

In the 1970s and 1980s, the federal government and many states passed laws requiring judges to give mandatory minimums sentences for certain crimes, including possession and distribution of drugs, based on drug type and amount. Predictably, the U.S. prison population exploded over the next two decades; more than 80 percent of the growth in federal prisons has been from drug convictions. Mandatory minimums have increased racial disparities in prison as well - opponents to the Drug War argue that mandatory minimums have built-in racial disparities. In addition, the War on Drugs has torn apart poor families and communities in American inner-cities, furthering the cycle of poverty.

Growing movements in the United States and around the world seek to decriminalize or fully legalize drug possession, partly in response to these and other disparities. Others seek to replace long prison sentences with services such as drug treatment, housing and job training.

Chart: Incarceration rates in U.S. history

Frontline: Drug Wars

Drug Policy Alliance: What's wrong with the drug war

U.S. Office of National Drug Control Policy

3. Originalism vs. A Living Constitution

The debate between originalists - who believe in interpreting the Constitution according the original intent of the founders - and those in favor of a "living Constitution" that adapts to modern social mores and customs, has affected all areas of criminal justice. The famous Miranda v. Arizona decision in 1966 - which required law enforcement officers to read suspects their rights before arrest - was celebrated as a victory by human rights advocates and the left while derided by originalists and constructionists as an unlawful addition to the Constitution. After its passage, President Richard Nixon promised to appoint strict constructionists to the court.

Originalists continue to consider many of the rights since extended by courts to criminal defendants - and some of the limits on the death penalty - to be unnecessary extensions of the Constitution.

Edwin Meese III - "The case for originalism" - Pittsburgh Tribune Review 6/5/05

Wikipedia - Miranda v. Arizona

4. Juvenile justice

Most U.S. states - and most countries around the world - have separate criminal court systems for juveniles and adults, with juvenile courts often intended to provide rehabilitation for young people. But children charged with violent crimes or high-profile offenses are sometimes tried and sentenced as adults. More than 2,200 people are currently serving life without parole in the U.S. for crimes committed as juveniles. At the heart of this disagreement is the question of whether children who commit serious violent crimes such as murder or rape can be rehabilitated.

In the two decades before 2005, when the U.S. Supreme Court struck down the juvenile death penalty, 22 inmates in the U.S. were executed for crimes committed as juveniles. Iran, Nigeria and Saudi Arabia still have the death penalty for crimes committed as juveniles. Although Chinese leaders claimed to outlaw the practice in 1997, a juvenile offender was reported executed in China in 2003.

Frontline: Juvenile Justice

Amnesty International - Discarded Lives: Children Sentenced to Life Without Parole

Poll: Fund rehabilitation for juveniles, not prison

5. Prison and Parole: Rehabilitation or Punishment

As the United States prison population grew by 400% between 1980 and 2000, many argued that policymakers had abandoned the concept of rehabilitation and viewed prisons as a form of punishment only. Indeed, although spending on corrections has exploded along with prison populations, most dollars go to basics like housing and food, rather than to education, drug treatment, job training or services for the mentally ill. In a sense this is a political issue; sensational crimes and the issue of public safety sometimes play an outsized role in elections, while the thought of spending tax dollars on prisoner education and services is often unpopular with voters. Supporters of prisoner services believe that incarcerating millions of Americans in crumbling prisons and failing to provide them with adequate services is a recipe for recidivism and the further destruction of families and communities.

There is also disagreement about the rules governing parole, probation and sex offender registries. While "zero-tolerance" policies have been passed seeking to ensure public safety, many believe these have snared more people under intrusive state supervision and left them feeling hopeless for a chance to change and escape the cycle of punishment. Several states strictly limit the right of felons to register to vote, furthering the disconnection convicted people feel from society.

New York Times - Harsh Medicine - As Health Care in Jails Goes Private, 10 Days Can Be a Death Sentence

Southern California Public Radio: The Politics of Prisoner Rehabilitation