Discuss which of the 21st Century policy challenges are the most serious
Our text discusses several significant challenges for criminal justice policy makers in the 21st century. Pick one of these issues and discuss why you think it represents the most significant challenge. Justify your selection and can you offer any additional ways to address it?
Incarceration and Realignment: The Case of California
Over the past three decades, tough on crime sentencing practices resulted in dramatic increases in prison populations nationwide. This trend is exemplified by events in California. In 1980, California’s prisons held a mere 24,569 individuals: 98% of the incarcerated were men, 38.6% were White, 24% were Hispanic/Latino, and 35.4% were African American (Good & Rouse, 1980). Fast-forward to the end of 2010, and the state’s prison population grew to 162,821: 82% of the incarcerated were men and 25.2% were White, 39.8% were Hispanic/Latino, and 28.9% were African American (California Department of Corrections and Rehabilitation (CDCR), 2011a). In an effort to accommodate the rising incarcerated population, the state opened 21 new prison facilities. Today, the 33 state prisons are designed to hold 84,597 inmates (CDCR, n.d.). However, with a current population that almost doubles this capacity, it is fair to say that California is faced with a serious prison overcrowding problem.
Prison overcrowding leads to a number of issues, including many which run the risk of violating the constitutional rights of inmates. Despite their status as an incarcerated individual, inmates retain a number of basic rights under the constitution. However, this was not always the case. Prior to the 1960s, the courts adopted a “hands-off ” doctrine when it came to convicted offenders. The U.S. Supreme Court decision in Cooper v. Pate (1964) led to significant changes in the role of the courts for the incarcerated population. The Cooper decision held that state prisoners have the right to sue in Federal court to address grievances under the Civil Rights Act of 1871. As a result, the gates to the judiciary were thrown open to prisoner claims of constitutional violations under the 1st, 4th, 6th, 8th, and 14th amendments. Since then, several notable cases were decided that relate to the issues of prison conditions. These include Estelle v. Gamble (1976), which held that the deliberate indifference to the medical needs of prisoners is a violation of the cruel and unusual doctrine of the 8th amendment, and Coleman v. Wilson (1990), which held that prisoners must be provided with basic mental health care.
In response to the poor conditions in California’s prisons, inmates filed a class action lawsuit alleging that the state engaged in deliberate indifference in providing quality medical treatment. In 2011, the U.S. Supreme Court decided in favor of the inmates, citing overcrowding as a key factor in the state’s inability to provide basic quality physical and mental health care. In response to the decision by the Court, a three judge panel mandated a significant reduction in the state prison population such that the “in-state prison capacity is brought to within 137.5% of institutional design capacity” (Brown v. Plata, 2011).
In order to reduce the prison population, the state began to shift lower-level offenders to local custodial and community supervision programs. This process, otherwise known as realignment, posits that “officials at the local level are better situated to identify the needs of their communities and create specialized programs for implementation” (Smude, 2012, p.153). There are three major benefits in realignment for California’s correctional system. First, the financial costs of incarcerating the largest prison population nationwide have taken its toll. It costs over $47,000 a year to incarcerate an individual, due to rising security and health care costs (Legislative Analyst Office (LAO), 2008–2009). The current state budget crisis led to significant cuts to many areas in the state, including social services, education, government services, and public works. Second, the crisis forced the reduction because of overcrowding in the state prisons as ordered by the courts under Brown v. Plata (2011).
Finally, California’s correctional system failed to effectively rehabilitate offenders. A review of recidivism rates for those offenders released during the 2007 to 2008 fiscal year demonstrates that 47.4% were returned to prison within one year of release, and 59.2% were returned to prison within two years of release (CDCR, 2011b). In addition, California’s rates are generally 15 to 20% higher than national recidivism rates. The majority of these offenders do not return to prison for new offenses. Rather, they violate the technical rules of their release (such as curfew violations, failure to obtain a job, etc.).
California’s realignment plan involves a complete overhaul of the state’s correctional system in a number of ways. First, California Assembly Bill AB 109 allows for nonviolent, nonserious, and nonsexual offenders to serve their sentence in county jails instead of state prison facilities. While convicted jail inmates are generally convicted of misdemeanors and incarcerated for less than one year, the Public Safety Realignment Act of 2011 revised the definition of felony to permit certain offenders to serve sentences greater than one year in jail facilities. This shifts not only the management of these offenders to local jurisdictions, but the costs of supervising these offenders as well. However, counties are allowed to contract with the state to send these offenders to state facilities (CDCR, 2010). Second, each county created a post-release community supervision (PRCS) program administered by the county probation department as an alternative to parole. The shift of post-incarceration supervision to the county level is limited to three groups: (a) non-violent offenders, (b) non-serious offenders, and (c) low-risk sexual offenders. PRCS applies to these individuals who are released after October 1, 2011. Third, on their release from prison, CDCR no longer has jurisdiction over the individual. This is particularly important in cases of parole revocation. Instead of returning these cases to state prisons, revocations of PRCS will be sent to local jails and sentences will last no longer than 180 days. For those low-level offenders who were sentenced to parole prior to realignment, the state parole agency has the authority to terminate an individual’s parole, if they have been violation free for six months. Finally, each county created an executive committee charged with making recommendations for implementing realignment at the local level. The executive committee is composed of the chief probation officer, chief of police/sheriff, district attorney, public defender, presiding judge of the Superior Court, and a representative from the Division of Health and Human Services (CDCR, 2011b).
Even though counties received funds from the state to ensure that they do not bear the financial burden of the realignment process, there was little direction at the state level as to how counties should spend the money and what types of programs to implement (Lofstrom, Petersilia, & Raphael, 2012). As communities consider the types of programming to implement, scholars argue that a successful realignment plan should include wraparound services that focus on collaborative relationships between multiple agencies both at the public and private level. Inmates face a variety of challenges related to the reentry process, including finding a job, a place to live, and dealing with substance abuse issues. Prior to realignment, many offenders did not have access to realignment services. A study by Vera Institute of Justice indicates that only 13% of inmates serving time at the Los Angeles County Jail received any sort of reentry programming while in jail (Sandwick, Tamis, Parsons, &Arauz-Cuadra, 2013). In addition, counties should look to evidence-based research when developing and implementing policies and programs (Krisberg& Taylor-Nicholson, 2011).
To date, we have seen several positive examples of realignment in action. In Santa Clara County, representatives from a variety of public agencies and community partners have come together to streamline services for offenders. Their plan focuses on education, employment, housing, health and well-being, and family reunification as the cornerstones toward successful rehabilitation and reentry (Wilson, 2013). In Merced and San Bernardino counties, professionals from law enforcement, probation, human services, and mental health are housed together at day reporting centers in an effort to work together as a team to serve the needs of AB 109 clients (Giwargis, 2013; San Bernadino County, 2012). These types of collaborative efforts in the community place fewer fiscal demands as the costs of housing an inmate in jail is $156 per day, compared to the $17 per day cost of AB 109 monitoring (Giwargis, 2013).
To increase public safety in this austere budget environment, we must support cost-effective efforts by states that are grounded in the “best practices” and draw on the latest innovations from public corrections and the faith-based community … For many years, reducing recidivism seemed nearly impossible. Now, many states are starting to turn a corner through commonsense and cost-effective reforms. (Pew Center on the States, 2011, p. 6)
While realignment creates significant opportunities for California to transform their correctional system, there are significant risks as well. The legislature created pathways to fund realignment, but many question whether these allocations are sufficient to manage the caseload placed on local jurisdictions. Some officials also expressed concerns about whether local communities could be at risk for due process and equal protection legal challenges by inmates—challenges based on the counties’ ability to effectively deliver services due to costs as well as variations between the types of programming that each county offers (Krisberg& Taylor-Nicholson, 2011). While the intent of AB 109 was to create community alternatives to incarceration, many counties focused on expanding jail facilities to house offenders (Reentry Court Solutions, 2013).
Counties that choose to expand their jail capacity will encounter large capital budget outlays, extended periods for design and construction of new facilities, and little public support for more local spending on corrections as opposed to education, sustainable new job creation, health care, and other vital community needs. (Krisberg& Taylor-Nicholson, 2011, p. 5)
If successful, California’s realignment plan could represent a model for states nationwide. While critics question whether public safety will be compromised with the expansion of community supervision programs and jails in lieu of prison, only low-risk and low-level offenders will be shifted to these types of programs. In addition, the state may benefit from substantial cost savings by utilizing local criminal justice agencies instead of prisons for low-level offenders (Vuong, Hartney, Krisberg, &Marchionna, 2010). In addition, research indicates that the use of short periods of incarceration or intensive community supervision options are more effective in preventing recidivism (Kleiman, 2009). Finally, the ability to use discretion when determining punishments is key. Unlike state parole, which imposes a mandatory three-year intensive supervision to all offenders released from state prison, the ability to utilize flexible options and customize both individual programs and the system as a whole ultimately benefits the unique needs of individual offenders (Krisberg& Taylor-Nicholson, 2011).
Zero Tolerance and Tough on Crime: Rolling Back on Juvenile Offending
In 1899, the first juvenile court was formed in Chicago, Illinois, under the doctrine of parenspatriae. Under this philosophy, the state assumed responsibility for wayward children, removed them from their parents’ care, and placed them in institutions under the guise of acting in the best interests of the child. States began to distinguish between the criminal actions of adults and the delinquent actions of youth. By separating juveniles from adult offenders, the juvenile court developed its own set of procedures and practices for dealing with cases of delinquency. This shift represented a new philosophy: “children had to be treated, not punished and the judge should act as a wise and kind parent” (Regoli, Hewitt, &DeLisi, 2009, p. 19). By 1945, all states had juvenile courts (Ferdinand, 1991).
By the end of the 20th century, many of the practices in the juvenile court reflected the retributive philosophy that governed the adult criminal court system. As you learned in Chapter 12 of this text, the use of juvenile waiver policies dominated this practice, as states began to send a message of “do the adult crime, do the adult time” to juveniles by transferring youth who had committed serious infractions to the adult court. Much of these get tough on juvenile crime policies rose to power as a result of growing concerns about significant increases in the number of violent offenses committed by juveniles. Projections by researchers like Wilson (1995) and Dilulio (1996) added fuel to the fire that juvenile superpredators would fuel a crime wave with significant increases to the violent crime rate. Despite the fact that the superpredators never materialized and that violent crimes actually decreased nationwide (Federal Bureau of Investigation (FBI), 2012), these fears led to an increase in tougher laws designed to combat juvenile crime. In addition to increasing the option of transferring juveniles to adult court, states expanded their sentencing options for juvenile offenders, modified confidentiality clauses which created greater open access to juvenile court proceedings and juvenile records, developed additional correctional programs for juvenile institutions, and increased victims’ rights within juvenile proceedings (Lawrence & Hesse, 2010).
The expansion of juvenile sentencing practices meant that youth were treated more like adults. While in 1989 the option of the death penalty was prohibited for youth under the age of 16 (see Stanford v. Kentucky),nineteen states had laws on the books permitting the use of capital punishment for youthsaged 16 and 17. Between 1990 and 2003, 19 people who committed crimes as juveniles were executed in Louisiana, Texas, Georgia, Missouri, Oklahoma, and Virginia (Death Penalty Information Center (DPIC), 2003). The juvenile death penalty was abolished nationwide in 2005 with the U.S. Supreme Court decision in Roper v. Simmons. As a result of the “evolving standards of decency that mark the progress of a maturing society,” the Court held that the practice of executing juveniles violated the 8th and 14th amendments of the Constitution. As a result, 71 inmates on death rows across twelve states saw their sentences commuted to life without the possibility of parole.
Even in states that either opposed the practice of death entirely, or limited the application to adult offenders, life without parole was available in 39 states for juveniles over the age of 14 (Malcolm & Slattery, 2012). Perhaps one of the most controversial uses of this practice occurred in the case of Lionel Tate. Tate was a 14-year-old boy who was sentenced to life without the possibility of parole in Florida in 1999 for the death of his 6-year-old neighbor. Tate became the youngest offender in the United States to receive a life without parole (LWOP) sentence. Following national attention in opposition to the punishment, his sentence was overturned in January 2004 and he was released on probation. However, he was arrested in 2005 for armed burglary with battery and armed robbery. As a result, he was sentenced to thirty years in prison for violating his probation (Aguayo, 2006).
Tate’s case was one where the nature of the charge led to the imposition of a mandatory sentence under the law. In the case of Miller v. Alabama (2012), the court held that use of mandatory life without the possibility of parole for juveniles is unconstitutional. Writing for the majority, Justice Kagan cited that 85% of all juvenile LWOP sentences come from states where the sentence is mandatory, which takes away the sentencing discretion in these cases. While the court did not prohibit the use of LWOP sentences for juveniles in general, many states began to implement alternative practices. For example, the Nebraska senate is currently considering a bill to replace juvenile LWOP with a 20-year minimum sentence (Swift, 2013). In 2012, the California legislature passed Senate Bill 9, which involves juveniles sentenced to life without the possibility of parole and permits judges to revisit sentences in these cases after fifteen years and to make adjustments to their sentences, a practice that would “allow judges to go back and review past sentences and look at who this individual has grown up and become” (Burke & Cavanaugh, 2012). Despite a positive record as a juvenile, not all youth successfully transition to their adult lives outside of prison. Like Lionel Tate, John Engel was 14 years old when he was charged with murder in Colorado in 1999. Engel was convicted of murdering his adoptive mother and grandmother. Initially sentenced to thirty-two years, his sentence was converted to a community corrections sentence after serving eight years in a juvenile facility (Shields, 2008). Within three months of his release, Engel was charged with technical violations related to his release and was returned to prison (Aguilar, 2009). Perhaps one of the most ironic twists in this case was that Engel was only five days past his 14th birthday at the time of his crime—under Colorado law, youths under the age of 14 receive a maximum sentence to age 21 to be served in a juvenile facility (Shields, 2008).
At the same time that we saw increases in punitive policies in the juvenile court, zero-tolerance policies began to emerge within school environments. Zero-tolerance policies focus on the reduction ofdrug abuse and violence in schools and requires punishment for any infraction, regardless of its degree of severity, whether it was an accidental mistake or other extenuating circumstance. Zero-tolerance laws gained popularity beginning in 1994, when Congress passed a law requiring a one-year expulsion for any youth who brought a firearm to school (Gun-Free Schools Act, 1994). Despite the intent to create safe spaces in schools for students, zero-tolerance policies resulted in a range of negative consequences. “Zero tolerance often leads to indiscriminate suspensions and expulsions for both serious and mild infractions and disproportionately impacts students from minority status backgrounds and those with disabilities” (National Association of School Psychologists (NASP), 2001).
The roots of zero-tolerance policies are based in the broken windows model of policing, which suggests that communities can prevent larger acts of violence by enforcing minor law infractions, such as loitering, drinking in public, graffiti, and other public nuisance crimes (Wilson &Kelling, 1982). As high profile events of school violence, such as Columbine and Virginia Tech, began to dominate the news, the popularity of zero-tolerance policies in schools increased significantly. Even cases like Sandy Hook, while not a case of school violence per se, impact how school administrators engage in disciplinary decision making. Yet, research demonstrates that such policies have a negative impact, not only on the consistency of discipline in schools, but also decrease the academic achievements of students (American Psychological Association (APA), 2008). In addition, many schools are now utilizing the juvenile justice system to manage classroom disciplinary issues rather than deal with these minor infractions internally (Casella, 2003; APA, 2008).
Recently, many jurisdictions started to rollback zero-tolerance policies, citing concerns that such practices actually increased crime in their schools and communities. “From kids getting kicked out of school for playing games with fingers pointed like guns on the Eastern Shore to chewing their breakfast pastry into “gun-like” shapes in Baltimore” (Allard, 2013), events like these demonstrate that the broad application of zero-tolerance has exceeded its original intent. In Los Angeles, school police officers agreed to stop writing citations for truancy and other minor infractions, and instead refer students to youth programs that help students with the challenges that they face (Watanabe, 2012). In March 2013, Maryland State Senator Jennings introduced The Reasonable School Discipline Act of 2013 (Senate Bill 1058, 2013). Rather than provide a one-size-fits-all philosophy, this proposed bill allows for greater discretion when handing out disciplinary infractions, such as school suspensions and expulsions. In the Denver Public Schools, school resource officers now only respond to serious criminal actions, while the school district implemented restorative justice practices to deal with disruptive students. As a result, the district saw significant decreases in the number of youth who are suspended or expelled (Hing, 2003).
Gun Control Policy: A Renewed Interest in the Second Amendment
Every time a horrific incident involving a gun-toting shooter occurs, there is a strong call to pass tougher gun legislation. There is also an equally strong call to leave our gun laws alone. Few, if any, criminal justice policies are as contentious as gun control. This is because no policy issue is more emblematic of the necessity to balance our desire to control crime against the protection of our constitutional rights than gun control (except possibly the ability of government to invade our privacy).
Like so many other issues, gun policy is greatly impacted by public response to high profile incidents. In fact, it has taken front stage lately with the occurrence of several unfortunate and dreadful events involving shooters killing unsuspecting victims with high-powered, and sometimes illegally obtained, weapons. Mass shootings, in particular those committed by young people, have devastated communities and dominated the news in recent years. You may be familiar with some of the most horrific recent examples.
Dylan Klebold and Eric Harris (both 17 years old) murdered 12 students and a teacher (and injured 21 others) during a rampage at Columbine High School in Colorado on April 20, 1999.
Cho Seung-Hui, a 23-year-old student at Virginia Tech, killed 32 students (2 in a dorm and 30 in a classroom) before committing suicide on April 16, 2007.
A former graduate student at Northern Illinois University, Stephen Kazmierczak, shot and killed 5 students and himself (and injured 17 others) when he opened fire in a classroom on February 14, 2008.
Jared Loughner, a 22-year-old with suspected mental health problems, shot and killed 6 people (and injured 13 others) at a public rally for Senator Gabrielle Giffords in Tucson, Arizona, on January 8, 2011.
James Holmes (24 years old) set off tear gas in a crowded movie theater showing the premiere of The Dark Knight Rises, then shot and killed 12 moviegoers (and injured 58 others) on July 20, 2012.
Adam Lanza (20 years old) shot and killed 26 people (20 of them 1st graders) at Sandy Hook Elementary School in Newtown, Connecticut, on December 14, 2012.
In a standard year, approximately 30,000 people die from firearm-related incidents (Center for Disease Control (CDC), 2011). Some of these shootings, such as the ones above, received major national news coverage, while many others received only scant local coverage. These stories not only captured the headlines in recent years, they also caused people to question their stance on gun control policies. The latest tragedy in particular, the one in Newtown, Connecticut, shined a bright spotlight on gun control and spurred the nation to investigate and vigorously debate the role of gun policy in these and similar crimes. Immediately after the Newtown incident there was a loud call for tougher gun control and the percent of Americans who supported stricter gun control was at a 10-year high (57%) (Constantini, 2012). That strong support appears to have been short lived, as three months later the percentage of Americans who support stricter gun control dropped to 47% in March of 2013 (Peralta, 2013).
Immediately after the Newtown shooting, President Obama and others called on Congress to pass meaningful gun legislation. This proposed legislation includes controversial measures, such as expanding the use of background checks, particularly at gun shows. While over 40% of guns are sold at gun shows and are often exempt from requiring background checks, opponents of tightening these legislations suggest that such procedures only limit the rights of those who legally possess these weapons. Yet, Adam Lanza, James Holmes, and Jared Loughner all used weapons that were legally obtained. Another hotly debated component of Obama’s plan involves the assault weapons ban. Initially passed by Congress in 1994, the assault weapons ban prohibited the manufacturing of all fully automatic firearms and selected semi-automatic firearms as well as high capacity ammunition magazines, though it did not limit the ownership or sales of any of these weapons manufactured prior to the ban. Some questioned the efficacy of the ban, including Senator Lindsay Graham (R) from South Carolina, who stated that “we had the assault weapons ban from 1994 to 2004 and the conclusion was, it did not change crime…. in an appreciable way” (Jackson &Madhani, 2013, p. 6A). In his proposal, President Obama not only called to reinstate the assault weapons ban, but to limit ammunition magazines to ten rounds,1 and to ban the possession of armor piercing ammunition. In addition, Obama’s plan calls for increased funding to improve policing resources (hire more officers, increase training, etc.), resume social science research on gun violence, reinforce school safety initiatives, and provide funding toward early identification and intervention in our mental health system (Jackson &Madhani, 2013).
1 Both the Sandy Hook and Aurora Movie Theater shootings involved the use of high capacity magazines, which some have argued contributed to the high death count of victims.
As evidence of the contentious nature of gun control policy discussions, Congress has yet to agree on any gun policy issues. Even though more than 90% of Americans support universal background checks for all gun purchasers, Congress cannot agree on several particulars (for example, whether back-ground checks are necessary for gun transfers, private sales, or online sales) (Rucker & O’Keefe, 2013). Another major item being debated is the legality of assault-style weapons. Here, one of the main problems is that there is not an agreed-on definition of what constitutes an “assault-style weapon” and the process of defining the term is highly contentious. In general, definitions are cosmetic in nature and defined by several features that are typically associated with military weapons, such as magazines that hold a high number of rounds, having a folding stock, a pistol grip, or able to fire a specific number of rounds per second. Given the strength of the National Rifle Association (NRA), and its stance on this issue, it is unlikely that we will see any compromise on this issue in the near future.
For this reason, we are most likely to see substantive gun policy passed at the state level rather than the federal level. This is because politicians at the state level can more easily pass legislation that fits with the personality of their state, without exposing themselves to the risk of not being reelected. We have already seen several states pass comprehensive gun legislation. For example, Colorado Governor Hickenlooper signed landmark legislation in March 2013 that requires background checks for private and online gun sales, and bans magazines that hold more than 15 rounds of ammunition (Moreno, 2013). California, Delaware, and a dozen other states are in the midst of voting on a number of gun laws to ban or strengthen existing bans or restrictions on particular weapons, high capacity magazines, and/or bulk purchases of ammunition, as well as require registration of guns and gun parts (O’Keefe, 2013).
The debate about gun policy has reached new heights, in part because of a 2008 U.S. Supreme Court decision (District of Columbia v. Heller). Heller, a Washington, DC, special policeman, carried a gun for work, but was denied a license to keep the gun at home. The U.S. Supreme Court (USSC) held in District of Columbia v. Heller (2008) that the Second Amendment protects an individual’s right topossess a firearm for lawful purposes. The USSC’s decision was a dramatic departure from earlier precedent because prior to this point, the Second Amendment was interpreted narrowly, within the framework of gun carrying for the purposes of militia service only.2
Although the USSC took a strong stand on the Second Amendment’s protections, its decision left open many issues regarding our right to bear arms. In his majority opinion, Justice Scalia firmly stated that the Second Amendment guarantees the “individual right to possess and carry weapons in case of confrontation” (District of Columbia v. Heller, 2008). He specifically noted the ability of lawmakers to restrict and control who ownsfirearms (prohibiting felons and the mentally ill from owning is acceptable), how they are carried (concealed weapon prohibitions are acceptable), and where they can be carried (sensitive area prohibitions are acceptable).
Why is Gun Policy so Contentious?
At the heart of the issue is our Second Amendment right to bear arms contrasted against our strong desire to protect innocent individuals from gun violence. Herbert Packer’s due process and crime control models of criminal justice help us understand the issue more clearly. On one side of the issue, the due process side, are individuals who interpret the U.S. Supreme Court’s decision to mean that individuals have a constitutional right to possess any type of firearm and that right is more important than public safety concerns. These folks, mostly Libertarians and Republicans, want no restrictions (or very few) restrictions on gun possession and ownership. They contend that any restriction on gun possession weakens and infringes on our constitutional rights.
2 McDonald v. City of Chicago (2010) solidified this new precedent and incorporated this decision to the states through the 14th Amendment.
On the other side of the issue, the crime control side, are individuals who support legislation that limits and controls Americans’ access to guns in order to protect public safety. These folks, mostly Democrats, favor what they call “sensible gun policy” that places some restrictions on who can carry, where people can carry, when people can carry, and what people can carry. Crime control advocates argue that if a gun feature is not necessary to protect one’s person or property, it should be outlawed (e.g., assault-style weapons). They want to close loopholes that allow criminals and other restricted individuals from purchasing guns and increase penalties on straw purchasers (i.e., people who purchase guns for people who cannot legally purchase them). A good example of this side’s views is New York City Mayor Michael Bloomberg’s pro-gun control advertising campaign, which featured a gun rights advocate asserting “with rights come responsibilities.”
Interestingly, one of the reasons this is such a thorny issue is because individuals who typically support a due process model find themselves advocating a crime control view and vice versa. Under most circumstances, certainly when discussing 4th and 5th Amendment issues, Democrats and Libertarians support a model that preferences our due process rights over our crime control efforts, and Republicans typically support a model that favors government’s ability to control crime over our due process rights. On this issue, however, both sides are on foreign soil—Republicans and Libertarians are joined in a fight to uphold every ounce of our 2nd Amendment constitutional rights while Democrats are in the unique position of arguing to restrict rights in favor of crime control. Of course, the issue is not completely black and white and there are many, many shades of gray.
Given the vast ideological differences on this issue, it is instructive to consult the available scientific research for evidence on effective gun policies. Unfortunately, there is not enough quality research on gun policy to provide guidance about which gun laws tend to work in which circumstances. One of the reasons for this dearth of research is a lack of government funding on the issue. Since 1996, the Center for Disease Control (CDC) has been prohibited from funding any research that may “advocate or promote gun control” (Plumer, 2013). New York City Mayor Michael Bloomberg’s advocacy group estimates that this law single-handedly reduced studies on gun violence by 60% (Mayors Against Illegal Guns, 2013).3 Their recently published report describes how the Washington gun lobby successfully restricted academic studies on gun violence as well as the ability of law enforcement, military, and medical professionals to share information about guns or gun violence (Mayors Against Illegal Guns, 2013). Although government-sponsored grants are not the only source of funding for academic research, they play a pivotal role in setting research agendas. Fortunately, this situation should change shortly, as President Obama signed an executive order in January 2013 directing the CDC to, once again, study the “causes of gun violence.” However, shortly after President Obama signed that order, the NRA (the most powerful gun lobby in the nation), mounted a campaign to keep language in the 2014 budget that limited data collection and research on gun violence (Stachelberg, Gerney, & Parsons, 2013). At the end of the day, this demonstrates how politically charged some criminal justice policy research can be; but, the important question that needs to be asked is: Why is the NRA so afraid of scientific research?
3 The NRA retorted with their own “School Safety Report” that recommended arming school personnel and adding armed security guards (or police officers) to schools as a viable and preferred strategy to prevent school violence (Hutchinson, 2013).
Search and Seizure in the 21st century
The issue of emerging technology has posed challenges for the courts since wiretapping was introduced in the 1870s. The courts, however, are often slow to respond to constitutional issues pertaining to the use of new technologies because of our lengthy judicial process. In fact, it took 60 years before Congress placed the first restrictions on law enforcement’s powers to use wiretapping for investigative purposes and 90 years before the Supreme Court required police to obtain a warrant prior to placing a wiretap (Katz v. United States, 1967). The use of thermal scanning, pen registers, and trap and trace devices provide additional examples of the courts’ failure to protect our 4th Amendment rights from newer and more invasive technologies.
As police continue to take advantage of emerging technology in the 21st century, our 4th Amendment rights (written in the 18th century) inevitably and necessarily will come under much closer scrutiny by the courts. As forward thinking as the framers of the constitution were, they could not possibly have imagined the technological world we live in today. For this reason, the U.S. Supreme Court, as well as our lower courts of appeal, are called on regularly to interpret the intentions of the framers as they pertain to the expanded capacity of today’s technology. As a society, we need to consider the significant opportunities and consequences that come with our latest technological innovations and find a balance between protecting public safety and protecting our due process rights. Some important 4th Amendment issues on the horizon that will very likely have a potent effect on average citizens are: the use of drones for law enforcement purposes, collection and use of DNA, and the circumstances under which police may utilize specific technological devices and applications (such as GPS, cell phones, social media) to establish probable cause and/or build a case against a suspect.
The 4th Amendment of the Constitution provides Americans the right “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 …” However, this permanent right is subject to an ever changing interpretation of “unreasonable search.” In order for a search to be considered “unreasonable,” (a) an individual must have an expressed expectation of privacy, and (b) that expectation must be reasonable (Katz v. United States, 1967). This is the cornerstone of our 4th Amendment rights; however, it is important to appreciate that the court’s interpretation of “reasonable” will change as technology advances and societal expectations of privacy change. For example, closed-circuit cameras are now part of our daily lives and we expect that we are on camera when we shop at retailers, put gas in our vehicle at the service station, and drive through certain intersections. As such, if we commit a crime or traffic infraction in one of these places we expect that we might get caught, prosecuted, and punished.
Every generation for at least 150 years was concerned with the capabilities of new and remarkable technological innovations to place behavior under surveillance and see or hear things that we thought to be private. Today, just like past generations, astonishing technologies allow the government to look into our daily lives in new ways that require us to consider the implications of those methodologies under the 4th Amendment.
Drones
Drones, or Unmanned Aerial Vehicles (UAVs), are “aircraft that can fly without an onboard humanoperator” (Thompson, 2012, summary, Para. 2). They can fly on autonomous programming or can be controlled remotely by a ground operator. Drones, which range in size from the size of an insect to the size of a standard jet, were initially developed to be used by our military overseas; but, with the winding down of the war, surplus drones are beginning to enter the U.S. marketplace. A recent government report estimates that there will be 30,000 drones in our airspace by 2033 (Thompson, 2012). Currently, drones can only be flown under 400 feet by persons or agencies that have an FAA-issued Certificate of Authorization to operate an UAV (Thompson, 2012). Although there are only about 300 drones in use in the United States today, Congress signed a bill in 2012 to make it easier to get drone licenses and plans to integrate significantly more drones into our airspace starting in the fall of 2015 (Wolfgang, 2012; Couts, 2012).
Drones are versatile, easy to operate, and relatively inexpensive, which makes them ideal for surveillance, reconnaissance, and many other law enforcement (and non-law enforcement) purposes. For example, drones equipped with laser radar (LIDAR) and license plate readers could render traditional traffic officers obsolete. Depending on if, when, where, and how Congress or the U.S.S.C. allow them to be used for traffic enforcement, drones have the potential to change the driving habits of prudent motorists across the nation.
Additionally, drones can be equipped with a variety of specialized equipment, such as electromagnetic radar (which can create 3D images of concealed objects) and thermal imaging (which uses heat-sensitive technology to display images of things and people). Drones equipped with these powerful technologies will have the awesome (and frightening) capability to see through solid objects (such as walls and ceilings) (Thompson, 2012). Drones can also be equipped with facial or soft biometric recognition software which would allow them to surveil and track specific individuals (Thompson, 2012). Given the capacity to store vast amounts of highly personal information, this feature has important 4th Amendment considerations. Drones could even be equipped with Tasers, bean bags, and other weapons. Despite the fact that only a few law enforcement agencies currently have access to drones, this technology has the potential to revolutionize policing in the very near future.
In June 2011, Rodney Brossart of North Dakota became the first person arrested with the assistance of a drone (Koebler, 2012). He unsuccessfully argued that his 4th Amendment rights were violated when police deployed a borrowed drone to pinpoint his location on his property during a standoff with police (Wolverton, 2012). For purposes of the 4th Amendment, courts will probably liken drones to helicopters and other manned aerial vehicles. While aerial searches (for suspects or over property) do not violate 4th Amendment protections (as was the case above), drone surveillance may.
When determining whether drone surveillance violates the 4th Amendment, the court will likely look at several considerations. The first consideration, and probably the most important, is the location of the search (Thompson, 2012). Individuals have the strongest protections against unreasonable searches inside (and in this case, directly above) their homes. Fourth Amendment protections diminish the farther one goes from the house. Curtilage (the area immediately surrounding one’s home—e.g., backyard, patio, possibly the driveway) usually provides some privacy protections while open fields provide virtually no privacy protections over public spaces. Thus, drones probably will not be able to legally look through your ceiling or wall into your house, but they probably will be able to check out what is growing or stashed in your backyard. Protections against unreasonable search at or near international borders are almost nonexistent, so we can expect the courts to continue to provide great leeway to law enforcement in these locations.
The length of tracking will also be an important determinant of whether a search warrant is required (Thompson, 2012). The U.S.S.C. ruled in United States v. Jones (2012) that long-term tracking constitutes a search and requires a warrant due to the amount of information that can be collected. Other cases have upheld law enforcement officers’ ability to track individuals in public for shorter periods of time without a warrant.
Also, the sophistication of technology attached to the drone will most certainly matter in whether or not a warrant is required (Thompson, 2012). Technologies that are accessible to everyone (binoculars, for example) are generally more permissible than are sophisticated, specialized equipment (infrared, radar, etc.). Thus the government (the courts and/or policy makers) will most certainly need to weigh in on the types of equipment that can be affixed to drones for surveillance purposes (standard zoom lenses or high-powered infrared cameras, still photos or video, facial recognition software, etc.) as well as how long the information can be retained and how it can be used.
As drones and other technologies become widely available, the amount of privacy that individuals insist on will shrink. As our expectations of privacy shrink, so too will our 4th Amendment protections against unreasonable searches. This is because our protection against unreasonable searches is premised on our reasonable expectations of privacy in certain situations, and those expectations change with technological innovations. For example, how many drones there are and how they are used will likely change people’s minds about the type of surveillance activity that is considered reasonable and thus not protected by the Fourth Amendment (as an example, consider cameras in public spaces).
Despite some generally accepted law enforcement uses for drones (locating missing persons, capturing fleeing criminals, or surveying damage and locating victims after natural disasters), it is clear that the increased surveillance capacity of drones is frightening to many Americans. In addition to the three bills addressing the use of drones by law enforcement currently being debated in Congress (Thompson, 2013), several cities, counties, and states initiated creating their own laws that dictate when, how, and for what purposes police can (or cannot) use drones (Sengupta, 2013). This type of lawmaking at the local level is unusual (though not unheard of) and demonstrates the high level of anxiety that many officials possess regarding this new technology.
DNA
The ability to collect and analyze individuals’ DNA is another technological advance that provides a very powerful crime-solving tool for law enforcement agents; yet also challenges our 18th century constitutional protections. Since California v. Greenwood (1988), state courts have consistently equated discarded DNA to trash and allowed law enforcement officials to collect discarded DNA for investigative purposes without a warrant. The reasoning is, if you leave it behind (say on a cup or utensil), it is considered abandoned and you have no expectation of privacy. This ruling allows cops (in the real world and on television) to sift through a suspect’s trash, or offer a suspect a drink or meal, in order to collect his or her DNA and solve the crime.
All 50 states and the federal government have laws that allow DNA samples to be collected from persons convicted of a felony (Chemerinsky, 2013). But what about collecting DNA from individuals arrested for, yet not convicted of, a crime? Is that legal? At least 21states4 have laws that allow (or require) the collection of DNA from persons arrested for certain crimes (usually serious, violent, or all felonies). Traditionally, the courts upheld these laws as legal and allowed for the collection of DNA from felony arrestees by likening DNA to fingerprints (see State of Maryland v. Raines, 2004; Anderson v. Commonwealth of Virginia, 2007) (www.dnaforensics.com/arrestees).
4 The following states allow this practice: Alabama, Alaska, Arizona, California, Colorado, Florida, Indiana, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia (www.dnaforensics.com).
In 2012, the U.S. Supreme Court granted certiorari in the case of Maryland v. King. The central issue before the court in Maryland v. King is whether DNA can be collected for the purpose of linking a suspect to other crimes, crimes that he is not suspected of committing (Chemerinsky, 2013). In other words, can the police “go fishing” with a criminal’s DNA without a warrant and without probable cause because the technology exists to do so? In this case, the defense argued that DNA is qualitatively different than fingerprints and that because the DNA was used to link the individual to other crimes, the government needed probable cause and a warrant (Chemerinsky, 2013). The government, on the other hand, asked the court to apply a balancing test and affirm the law based on the minimal intrusion to the suspect in comparison to the potentially great benefits to law enforcement and society (Chemerinsky, 2013). After hearing oral arguments in the case Justice Alito commented that the case is “perhaps the most important criminal procedures case that this court has heard in decades” (Cassens-Weiss, 2013). In June 2013, the U.S. Supreme Court held that the collection of DNA from detained individuals is a legitimate component of the booking process and does not violate the protection against unreasonable search and seizure of the fourth amendment (Maryland v. King, 2013).
Another concern is what happens to an arrestee’s DNA if the charges against the individual are dropped or the individual is acquitted? Can the person’s DNA stay in a countywide or statewide DNA database if they are never convicted of a crime? Moreover, how do familial DNA matches (DNA matches based on a relative’s DNA) figure into this conversation about rights and privacy. The answer at the current time is: It depends on the rules established in each state. Federal courts have not ruled on these issues yet, but it is probably only a matter of time.
ther Emerging Technologies
Beyond drones and DNA, GPS, cell phones, and social media are all recent technological innovations that also pose conundrums for the courts and law enforcement agents. Each of these can be used to track our movements and our social connections. The ability to attach a GPS device to a suspect’s car means officers less frequently conduct “stakeouts” in the traditional sense. Attaching a GPS to a suspect’s car does, however, constitute a search and may require a warrant (United States v. Jones, 2012). Short-term tracking is generally allowed without a warrant, as long as the device is affixed to the car while it is parked in public and in a state whose state constitution does not prohibit it5 (United States v. Pineda Moreno, 2010; United States v. Jones, 2012).
5 State constitutions may be more restrictive of government conduct than our federal constitution. Massachusetts, New York, and Washington prohibit the use of tracking devices by government agents unless they have probable cause and a warrant.
Cell phones can also provide law enforcement officers with a wealth of information about a person’s life and activities–including evidence of wrongdoing. There are already several cases testing the limits of various aspects of this technology (e.g., accessing email, texts, calls, contacts, pictures, and social media accounts as well as GPS functionality with and without warrants). There are too many cases and situations to summarize here, but in general, cell phones can be searched incident to arrest (Seligman, 2012). Although the U.S. Supreme Court has not addressed the issue of warrantless cell phone searches, the Sixth Circuit recently held that police can track suspects via their cell phones without a warrant (United States v. Skinner, 2012). It is unclear whether a password-protected smartphone can be searched without a warrant—on the one hand password protecting one’s phone demonstrates an expressed expectation of privacy, but on the other hand courts ruled that there is no expectation of privacy when data are transmitted over public airwaves.
In determining whether law enforcement officers need a search warrant to access information on a suspect’s social media account, justices are considering the suspect’s privacy settings along with the size of his or her circle of “friends” to determine the individual’s expectation of privacy (the larger the circle of “friends” or “followers,” the less expectation of privacy).
There is little doubt that modern technology has eroded our reasonable expectations of privacy. With so many new technologies it can be hard to predict which ones may infringe on our 4th Amendment rights. Yet, we can expect courts throughout the nation to be called on frequently to apply our 18th century constitutional guarantees to our 21st century technology.
Conclusion
We Americans hold dear to our constitutional freedoms; however, sometimes those rights threaten our ability to effectively prevent crime and protect public safety. In these circumstances, we must carefully consider every goal and potential consequence of a policy or piece of legislation. While policy must always operate within the confines of the Constitution, policy can sometimes be dictated by constitutional challenges. For example, correctional realignment in California was a direct response to that state’s violations of prisoner’s rights. Similarly, recent U.S. Supreme Court rulings concerning the punishment of juveniles has impacted many state’s juvenile justice policies and changed how criminal justice practitioners and society respond to our youngest residents. In some cases, such as the case with gun control policy, the court provides broad constitutional strokes as a framework for policy construction, but leaves the particulars to be debated by state, federal, and sometimes local policy makers. Likewise, new and emerging technologies pose significant constitutional questions for our courts. It remains to be seen how policies like these will be addressed by the courts in the future, and the greater implications of the implementation of these practices for our criminal justice system.
Criminal Justice Policy, Stacy L. Malicoat& Christine L. Gardiner (Sage Publishing, 1st ed.)
