14 Section 2.2: Politics in Criminal Justice

Politics is the art and science of running a government and guiding governmental policy. The nature of politics in America is conflict and debate about policy, and criminal justice policy falls into that arena. The American political system and the criminal justice system involve actions of the President, Congers, courts, bureaucracies, interest groups, elections, and the media. These groups are mirrored on the state level and to some degree on the local level. The actions of elected officials have a direct impact on the system, and the policies they implement directly affect how justice is done.

  The Politics of Selecting Decision Makers

In a democratic republic, one of two ways selects criminal justice decision makers: They either are elected by the public, or are appointed by a public official (often an elected one). Elected mayors, for example, often appoint chiefs of police. The President of the United States (an elected official) appoints Supreme Court justices with the confirmation of the U.S. Senate (a body of elected officials). Both methods are highly political and cannot be understood without understanding something of the political process.

  The Politics of Law Making

Although the federal legal system and that of most states relies on the old common law for its historical foundations, criminal law is mostly a matter of statute these days. That is, criminal laws are made by legislative assemblies that decide which acts are prohibited, and what punishments are appropriate for those that commit those acts in violation of the law. Obviously, politics influences the laws that assemblies pass. Today the nation finds itself at the conclusion of what has been a “get tough” era of criminal justice. Ushered in by the “crack epidemic” of the early 1980s, this has been a period of harsher punishments, longer prison sentences, less therapeutic programs, and skyrocketing corrections budgets. The pendulum seems to have reached the far right, and now may be swinging back toward the middle. Many states have begun concentrated efforts at finding alternatives to incarceration, and the federal government is considering early release for drug offenders sentenced under the “get tough” drug laws of the previous two decades.

  The Politics of Policing

Most police departments try to distance themselves from the vicissitudes of politics as much as possible. To be effective, law enforcement must be seen as fair and impartial, serving all of the community without favoritism or political patronage. The political climate of a community can have a huge impact on the police department. Elected officials appoint police administrators, and can often fire them just as easily. The style of law enforcement, formal departmental policy, and informal norms can all be heavily influenced by local politics. The structure of local government can have an impact on how police services are delivered. Professional city managers, for example, are less likely to get involved in police affairs than are mayors and city council members.

  The Politics of Prosecution

While police departments are often somewhat shielded from politics and influenced by it indirectly, prosecutors in most jurisdictions are elected officials and thus highly political. At the federal level, an essentially political process appoints U.S. attorneys. The career paths of these federal lawyers tend to be linked to one particular political party or the other. It is common to see prosecutors at both the state and federal level using their tenure as prosecutors to launch political careers. This fact gives rise to the unethical possibility of political prosecutions against political enemies. In fact, many at the time stated that this was the sort of thing that was happening with the impeachment proceedings launched against then-President Bill Clinton.

  The Politics of the Judiciary

There is a tendency among academic writers to view the judiciary as somehow above partisan politics. In the modern American reality, this is a pleasant fiction. Judges at all levels of government are either elected or appointed, and this fact makes them political creatures. Elected judges fear public reactions to issues with political foundations, such as appearing “soft on crime” or being in favor of the death penalty, or for it, depending on the political climate in the judge’s jurisdiction. Those political affiliations and beliefs necessarily inform judges’ decisions. Conservative courts tend to side with law and order, willing to sacrifice some civil liberties to maintain law and order. Liberal judges tend to take the opposite, ruling in favor of civil liberties at the expense of (in the minds of the opposition) public safety. It has been said that the real job of appellate courts is balancing the civil rights of the people with the desire of the people to be safe from crime. Obviously, the political belief of the justices making these decisions weighs heavily in the outcome of important cases.

  The Politics of Corrections

As with the other elements of the criminal justice systems, corrections is a highly politicized aspect of government. At the local level, the operation of jails is tied to the office of sheriff in many jurisdictions, which ties jail operations to the politics of particular individuals being elected and reelected as sheriff. At the state level, departments of corrections are highly political, with administrators and budgets being politically determined. Another highly political aspect of corrections is the membership and functioning of parole boards, which is established by appointment of the governor in most jurisdictions. If parole boards make release decisions that later reflect badly on the board members, the bad press will ultimately turn to the governor.

  The Politicization of Justice

As politics is such an integral part of criminal justice, a high potential for serious problems generated by politics exists. Rash decisions can be made, poorly considered policies can be implemented, and ill-conceived laws can be written that hamper the efficient and ethical administration of justice. Unscrupulous politicians can easily make appeals to people’s emotions, fears, and prejudices to improve their own chances at reappointment or reelection. Sadly, emotionally charged decisions do not tend to be rational decisions. In the high-stakes world of criminal justice, clear, rational thinking is often overshadowed by politically charged emotionality.

  Crime Control versus Due Process

Herbert Packer (1964) outlined two competing models of the value systems operating within criminal justice today: The crime control model and the due process model. These two models of how the justice system should operate reflect two opposing sets of political ideologies that have a massive impact on criminal justice decision-making at all levels. The divide is not as simple as Democrat or Republican. Both models represent core values in the American way of life. After all, every good citizen wants to see crime controlled. We want to live in safe, orderly communities. As Americans, we also highly value freedom. We loath the idea of oppressive governments that interfere with our personal liberties. We are proud of our rights to be free from government oppression, and we value our right to privacy.

According to Packer, “The value system that underlies the Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process.” There is a definite political philosophy that underlies this assertion: “The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom. If the laws go unenforced, which is to say, if it is perceived that there is a high percentage of failure to apprehend and convict in the criminal process, a general disregard for legal controls tends to develop.” Therefore, adherents of the Crime Control Model advocate enhancing the powers of the police to investigate and prosecute criminals. These necessarily include enhanced powers of search and seizure. Under this philosophy of criminal justice, the primary focus of the system should be discovering the truth and establishing the facts.

The Due Process Model takes a rather opposite view of how the system should operate. The key to understanding this position is that it hinges on protecting the civil rights of every citizen. Under this philosophy, the most important function of the criminal justice system is to ensure procedural due process, which mean maintaining fundamental fairness in all aspects of the criminal justice process. A major policy implication if this view is to limit police powers in order to prevent the oppression of the individual citizen. Adherents of this position hold that merely establishing guilt is not adequate; the government must show guilt in a fair and legal way that respects the rights of the accused.

In reality, the courts and other elements of the criminal justice system have to strike a balance of these two positions. It must be realized that the relative importance of each of these positions is not static: There is a constant tug of war between the two positions. As the makeup of America’s high courts change, so too does the underlying philosophy that dominates the decisions of those courts. Liberal courts establish broad civil liberties, and conservative courts erode those liberties in the name of law and order.

The Juvenile Justice System

The 1800s saw a revolution in the way Americans controlled juvenile delinquency. The movement away from treating juveniles as adults began as early as 1825 when the Society for the Prevention of Juvenile Delinquency began advocating separate facilities for juvenile offenders. Privately run juvenile facilities sprang up, and soon generated controversy over reported abuses. This criticism led many states to create their own juvenile detention facilities.

Detention facilities were not the only facet of the system that was changing. Illinois passed the Juvenile Court Act of 1899, which established the America’s first juvenile court. The British policy of parens patriae (the government as parent) was the rationale for the state becoming involved in the lives of children differently than it did with adult offenders. The doctrine was interpreted to mean that the state had both the right and the obligation to intervene when natural parents failed to adequately discipline and protect children. A critical aspect of the developing juvenile justice system was a focus on the welfare of the child. Delinquent youths were seen as being in need of the benevolent guidance of the court. Rather than merely punishing delinquents for their wrongdoings, juvenile courts sought to turn delinquents into productive citizens through treatment rather than the punitive measures used in adult cases.

By 1910, 32 States had established juvenile courts, and many of those had established probation services. By 1925, all but two States had established the foundations of a juvenile justice system. The statutes that created these courts made the doctrine of parens patriaeexplicit. The different philosophy of the juvenile courts led to both substantive and procedural differences between adult cases and juvenile cases. Ultimately, most states had systems where those accused of crimes and less than 18 years of age had their cases heard in juvenile courts. An important difference was that juvenile courts were not adversarial in nature, and prosecutors were not responsible for bringing cases before the court. Juvenile courts tended to handle their own intake. Juvenile courts were prone to consider extralegal factors when deciding how to deal with a particular case. Many juvenile courts had intake procedures that allowed for the informal diversion of youthful offenders where no formal judicial action was taken.

Another major difference between juvenile courts and adult courts was the level of formality. Juvenile proceedings were handled in a much less formal way than adult trials. Because the court used the best interest of the child standard, many due process protections afforded adult defendants were considered unnecessary. A wide range of dispositions were available for juvenile judges seeking to rehabilitate wayward children. The doctrine of proportionality did not necessarily apply, and delinquent children could receive anything from a verbal warning to being locked up in a secure detention facility. The duration of these dispositions was very fluid. The child would continue his or her “treatment” until they were cured, or became an adult.

By the 1960s, many people had become disillusioned with the juvenile courts and their ability to rehabilitate. The treatment options available to juvenile judges never achieved the level of success that the public demanded. The underlying assumptions about the validity of individualized treatment of delinquent youths was not widely challenged, but the application of the philosophy by the juvenile courts was brought into question.

The 1960s saw a radical change in society and the United States Supreme Court’s opinions regarding civil liberties. These changes, while causing radical changes in police procedure, were also felt by the juvenile justice system. The justices believed that children should be afforded many of the same constitutional safeguards to their liberty as adult offenders. Accordingly, they made several rulings in a short span of time that protected these rights. A side effect of these procedural protections was the formalization of the juvenile courts. Juvenile courts started to look much more like adult courts than they did at their inception. Delinquents facing the possibility of confinement were guaranteed the right to an attorney, protection against self-incrimination, and the right to receive notice of the charges. The standard of proof changed from a preponderance of the evidence to beyond a reasonable doubt in juvenile cases.

The Supreme Court declined to extend all adult rights to children. They, for example, determined that juveniles had no right to a trial by jury. Congress was not silent on juvenile justice issues during this time. In the Juvenile Delinquency Prevention and Control Act of 1968, congress recommended that children charged with nonserious status offenses be handled outside the court system. This was the beginning of a movement toward community based sanctions, deinstitutionalization, and moving juvenile offenders away from adult offenders.

The “get tough on crime” movement that swept the Nation during the 1980s did not leave the juvenile justice system unscathed. The public perception was that serious juvenile crime was on the rise, and that the juvenile courts were too lenient on offenders. Many states responded to this public outcry for tougher sanctions by passing more punitive laws. One of the most controversial strategies was the removal of certain classes of offenders from the juvenile system and placing them in the adult system. Others revamped their juvenile courts to operate more like adult courts. As a result, offenders charged with certain offenses are excluded from juvenile court jurisdiction or face mandatory waiver to criminal court. Prior to this time, waivers to adult courts was possible, but it was relatively rare and done on a case by case basis.

Every state made modifications to the juvenile justice system during the 1990s. These were widely varied. Three major components were changed in nearly every state. State legislatures passed laws that made it easier to transfer juveniles from the juvenile justice system to the criminal justice system. Most states passed laws that gave criminal and juvenile courts expanded sentencing options. Most legislatures also modified or removed traditional juvenile court confidentiality provisions by making records and proceedings more open to the public.

Key Terms

Best Interest of the Child, Crime Control Model, Deinstitutionalization, Doctrine of Proportionality, Due Process Model, Extralegal Factors, Informal Diversion, Juvenile Court Act of 1899, Juvenile Delinquency, Juvenile Delinquency Prevention Act of 1968, Parens Patriae, Parole Board, Partisan Politics, Policy, Politicized, Politics, Preponderance of the Evidence, Sheriff, Static, Waiver


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