8th Edition Joel Samaha
Crime Control in a Constitutional Democracy
We live in a constitutional democracy, where neither a single dictator nor an overwhelming majority of the people has total power.
A majority of elected representatives have wide latitude to create criminal laws, but in enforcing the criminal law, officials are much more restricted by the law of criminal procedure.
Balancing Values in Constitutional Democracy
Our constitutional democracy balances the need to provide for the public’s safety and security against other equally important values—individual liberty, privacy, and ...view middle of the document...
“Due process of the law” “Equal protection of the laws”
Balancing Values in Criminal Procedure
At the heart of our constitutional democracy is the difficult task of balancing values:
Community security vs. individual autonomy Ends vs. means
Community Security and Individual Autonomy
The objective of community security is the feeling of safety in the community. The objective of individual autonomy is being able to control one’s own life.
Community security and individual autonomy are equally important. Striking balance is difficult and doesn’t satisfy everyone. Balance is flexible - falling within a zone.
Ends and Means
The balance between ends and means is like a balance between results and process.
Ends—the search for the truth to obtain the correct result in individual cases
Catching, convicting, and punishing the guilty Freeing, as soon as possible, innocent people
Means—the commitment to fairness in dealing with suspects, defendants, and offenders
The History of Balancing Values
Throughout the history of criminal justice, the pendulum has swung between periods of result and process.
When there was an excess of one, the pendulum swung back to the other. In the 1960s, The Warren Court tilted the balance toward process and individual rights in what came to be known as the due process revolution. From the late 1960s to today, the pendulum is swinging back to result.
Balancing Values in Emergencies
The balance between community security and individual autonomy and between ends and means has been tested during emergencies, especially the “wars” on drugs and terror.
Most of the history of criminal procedure, especially state criminal procedure since the Civil War, developed in response to racial discrimination.
The search for justice also targets class, gender, ethnic, religious, and economic discrimination.
Understanding the importance of discretion is key to...