BATTLEGROUND: CRIMINAL JUSTICE

Gregg Barak

Editor

Greenwood Press, 2007

Preface

Content

Battleground: Criminal Justice is a comprehensive two-volume set that discusses the major controversies or issues involving the administration of criminal justice. The 100 entries of this reference work, written by approximately 100 expert contributors span the criminal justice system of the United States, with a few entries included that deal with instructive foreign criminal justice issues, such as prison problems in the Caribbean and post-apartheid justice in South Africa. They also include entries on some of the crimes or criminals caught up in these controversies of crime control, such as those involving domestic violence and sexual assault or acts by sexual offenders or perpetrators who have been diagnosed as legally insane. In addition, these entries address controversies of criminal justice, as they cut across a full array of institutional arrangements, including social, political, economic, and legal. These entries move beyond criminal justice and are inclusive of all sectors of society.

Perhaps, what is most significant about these “controversies in criminal justice” are the cultural imprints that these entries represent. That is say, the controversies hoisted and elucidated upon here reflect a multiplicity of cultural stances, including “liberal,” “moderate,” “radical,” and “conservative” points of view. The important relevant arguments pertaining to any of these controversies will be found within this two-volume encyclopedia. The leading principle in presenting the information on these controversies is, wherever possible, to locate and to be guided by the empirical (research) realities underlying these debates, controversies, or disagreements.

Arrangement

The issues of criminal justice profiled here are arranged alphabetically. Following the table of contents is a list of all the entries in alphabetical order. As a further guide to the reader, however, a topically arranged list of all the entries, “The Guide to Related Entries,” which follows the alphabetical list. Here you will discover if you have not already done so that I have classified the 100 entries into six areas or clusters: Law and Society; Law Enforcement; Prosecution, Courts, and Adjudication; Punishment and Corrections; Science and Criminal Justice; and Society, Crime, and Justice. Although I have classified them into the six clusters, some of these could have been ordered under another heading. For example, “The Exclusionary Rule,” The Second Amendment,” or “Expert Witness Testimony” could each be catalogued under Prosecution, Courts, and Adjudication.. The comprehensive index at the end of the second volume will give the reader more options for subject access to the contents of this work.

Entries

Each entry runs from approximately 2,000 to 2500 words. Although there are some deviations specific to most of the entries, all entries present a sequence of the following sections:

• Introduction, where the controversy is briefly summarized.
• Background, where the controversy is presented historically.
• Key Events, where important dealings, ideas, or persons are reviewed.
• Future Prospects, where the controversies are speculated as to what they might look like.
• Recommend Reading, with usually 5 to 7 suggested books or articles or an occasional website.
• Endnotes, where particular citations quoted from or used appear.

The encyclopedia closes with a bibliography of useful materials on general topics in criminal justice and a subject index.

Criminal Justice Issues in This Work

There are at least four trends or common denominators that apply to most of the entries in this encyclopedia. First, although fresh controversies emerge from time to time, especially propelled by new technologies such as the use of DNA testing to convict or extricate an alleged offender of a crime, or by the introduction of pioneering laws such as those prohibiting “stalking” or the expanded “pollution” of the environment, most controversies in criminal justice or between the rights of the individual versus the rights of the state have a relatively long history, some dating as far back as the signing of the Magna Carta in 1215. In that historic moment, in a small borough outside of London called Runnymede, King John acquiesced to his barons and agreed to document the protected rights of feudal lords, setting the stage for what would eventually evolve into legal procedures —the “rule of law”—that both subjects and kings alike would have to abide by or suffer the legal consequences.

Second, although the policies and practices surrounding some of the newer controversies in criminal justice have not been reviewed or tested by appellate courts, let alone the U.S. Supreme Court, most of these have an established legal history as well, lone that is legislative, if not also judicial. For example, the legal definitions of the insanity defense have been changing for more than 150 years. More generally, what is considered as “criminal” or as “criminal violence” has been evolving at least since the 13^th century and continues right up to this day. Similarly, the consequences or punishments for violating the criminal law have also varied considerably. For example, not all states in the U.S. have the death penalty and for a brief three year period, 1973 to 1976, the Supreme Court outlawed the death penalty across the nation.

Third, although many of the controversies examined here are complex, most come to be viewed dualistically or in terms of one side versus another side. In terms of the public’s attitudes toward the death penalty or the Patriot Act, for example, or regarding the views of the efficacy of these practices by professional justicians, sides are usually reduced to those who are either “pro” or “con,” “in favor of” or “opposed to.” On closer scrutiny, however, there are usually more sides to these controversies than these simple dichotomies. While some folks may be opposed to or in favor of the death penalty, there are others who find the death penalty acceptable under certain conditions and unacceptable under other conditions. Similarly, when it comes to the controversial Patriot Act, Homeland Security Act, or the Military Commissions Act (related to “unlawful enemy combatant,” such as those held at Guantanamo Air Base, there are also persons who are in favor of some provisions and opposed to other provisions.

Fourth, from time to time a few of these controversies seem to have been put to sleep, such as the right of all persons accused of a felony crime to be represented by an attorney at law, whether they can afford one or not, as was the case in 1963 with Gideon v. Wainwright, but most of the controversies in criminal justice will continue to be debated well into the future like treatment versus punishment, gun control, or the police use of racial profiling. And “settled issues” often spawn or evolve into related issues of controversy. In the case of post-Gideon matters of legal representation, for example, one issue today has to do with whether or not and when is it acceptable for an indigent criminal defendant to waive his or her right to appointed counsel? Finally, even when the law eliminates or abolishes certain policies or practices such as the United States did with indeterminate sentencing in the 1970s or federal parole in the 1980s, controversies may persist around the value of resurrecting these. In the 1970s, for example, the death penalty was declared to be unconstitutional by the Supreme Court and executions were stopped for a short period of time, until it subsequently reversed itself a few years later.

Thus, even when practices and policies seem fixed or permanent in stature, without controversies surrounding them, they may, in fact, be subject to change. For example, the original human right (the “Great Writ”) of habeas corpus giving every citizen the right to challenge the legality of his or her detention by the state, first codified by the British Parliament in 1640 and 1679 and one of a handful of common laws explicitly referred to and protected in the U.S. Constitution, seemed to be invincible or beyond reproach. In 2006, however, the Great Writ was substantially weakened by the passage of the Military Commissions Act. This act passed by the Congress and signed by President George W. Bush eliminated habeas corpus for anyone defined as an “unlawful enemy combatant,” as well as all aliens, including permanent residents—green card holders—in the United States. It appears that federal courts, at least for the time being, have been stripped of their historical role in assessing the legality of detentions, so long as the executive branch claims that these arrests are part of the “war on terror.” Of course, it will not be too long before a test case of the Military Commissions Act finds itself winding up to the U.S. Supreme Court for review of its constitutionality.

In sum, when it comes to “law and order” or to “equal [criminal] justice for all,” virtually no policies or practices are absolute or constant; all are subject to reform, change, repudiation, or innovation. From time to time these policies, controversial or not, will be subjected to new laws and new interpretations of those rules, reflecting a much older social and cultural controversy about where we as a civil society draw the lines between the rights of the individual to his liberty or freedom “versus” the rights of the state to maintain the peace, property, and security of all. Hence, as you read these different thought-provoking entries on and beyond criminal justice, keep in mind that most of these controversies will have a past, a present, and a future.

Gregg Barak, Eastern Michigan University

General Editor

Law and Society (18)

• Anti-Terrorist Laws
• Controlling State Crime
• Enforcement of Immigration & Employment Laws
• Enforcing International Humanitarian Law
• Espionage Act of 1917
• Exclusionary Rule
• Felony Disenfranchisement Laws
• Foreign Intelligence Surveillance Act
• Gang Injunction Laws
• Homeland Security Act
• Patriot Act
• Search Warrants
• Second Amendment
• Sex Offender Law
• Stalking Laws
• Supremacy of International Law to National Law
• Three Strike Laws
• Torture and Enemy Combatants

Law Enforcement (10)

• Community Policing
• Driving While Black
• Lethal Force
• Militarization of Policing
• Miranda Warnings
• Police Brutality
• Police Corruption
• Police Minority Relations
• Police Use of Force
• Psychological Screening of Police

Prosecution, Courts, and Adjudication (14)

• Adversarial Justice
• Alternative Responses to Crime
• Bail
• Cameras in the Courtroom
• Conspiracy and Substantial Assistance
• Eye Witness Identification
• International Criminal Court
• Problem-Solving Courts
• Prosecutorial Discretion
• Representing Indigent Defendants
• Restorative Justice
• Sentencing and Judicial Discretion
• Trial Consultants
• Tribal Courts

Punishment and Corrections (25)

• Boot Camps
• Clemency
• Convict Criminology
• Corporal Punishment
• Correctional Education
• Cruel and Unusual Punishments
• Dangerous Offenders
• Death Penalty
• Determinate and Indeterminate Sentencing
• Faith Based Prison Programming
• Guantanomo
• Incarcerated Hawaiians
• New Penology
• Parole
• Prison Construction
• Prison Privatization
• Prison Rape
• Prison Sexual Assault
• Prison Violence in the Caribbean
• Prisoner Experimentation
• Prisoner Litigation
• Spiritual Care of Inmates
• Supermax Prisons
• Televised Executions
• Treating Juveniles as Adults

Science and Criminal Justice (10)

• COMPSTAT and Crime Reduction
• CSI Effect
• DNA
• DWI and Drug Testing
• Environmental Crime
• Expert Witness Testimony
• Forensic Psychology
• Marihuana Medicalization (“Legalization”)
• Mental Health and Insanity
• Technological Surveillance

Society, Crime, and Justice (24)

• African American Justice
• Class Justice
• College Sexual Assault
• Consuming Culture and Crime Control
• Defining Criminal Violence
• Domestic Violence Practices
• Equal Justice and Human Rights
• Gendered Justice
• Gun Control
• Juvenile Justice
• Juveniles and Social Justice
• Media Portrayal of Criminal Justice
• Miscarriages of Justice
• Peacemaking Criminology
• Post-Apartheid Justice in South Africa
• Provoking Assaults and High-Profile Crimes
• Racial Profiling
• Risk Management
• School Violence
• Sex Offender Registries
• Social Justice
• South African Criminal Justice
• The Crime Control Industry
• War on Drugs