Taking Sides: Clashing Views in Criminal Justice / Edition 1by Thomas Hickey, Gene T. Straughan
Pub. Date: 12/14/2005
Publisher: McGraw-Hill Higher Education
This debate-style reader introduces students to current controversies in the field of criminal justice. The readings are written by scholars and experts in the field and reflect a variety of viewpoints presented in a pro/con format. Topics include: gun control, continued criminalization of drug use, the Miranda ruling, police lineups, plea bargaining, jury nullification, the three strikes rule, and prisoner rights.
Table of Contents
PART 1. Systemic Issues
ISSUE 1. Are U.S. Crime Problems a Result of Our Failure to Get Tough on Crime? YES: James Q. Wilson, from Thinking About Crime, rev. ed. (First Vintage Books Edition, 1985) NO: Jeffrey Reiman, from The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice, 7th ed. (Pearson, 2004)
Professor and celebrated author James Q. Wilson argues that criminal behavior is a rational choice. Crime rates will decline when society increases the penalties of such behavior and makes the alternatives to crime more attractive. Philosopher Jeffrey Reiman argues that the U.S. criminal justice system is designed to fail because the current system produces substantial benefits for those in power. Moreover, he asserts that the wealthy use ideology to convince people that our present justice system is the best one that people can create and therefore cooperate with an unjust social order.
ISSUE 2. Does the United States Have a Right to Torture Suspected Terrorists? YES: Andrew A. Moher, from “The Lesser of Two Evils? An Argument for Judicially Sanctioned Torture in a Post-9/11 World,” Thomas Jefferson Law Review (Spring 2004) NO: Elisa Massimino, from “Leading by Example? U.S. Interrogation of Prisoners in the War on Terror,” Criminal Justice Ethics (Winter 2004)
Attorney Andrew A. Moher argues that judicially sanctioned torture of terrorists is appropriate for the purpose of preventing a greater evil. He further contends a judicially monitored system in the United States would be far superior to the current policy of practicing torture "under the radar screen" in other countries. Elisa Massimino believes that the use of torture is immoral and counterproductive for the United States. She asserts that if the United States wishes to rely on the protections of the Geneva Conventions, then it must comply with its provisions prohibiting the torture of prisoners.
ISSUE 3. Should Serious Sex Offenders Be Castrated? YES: Lawrence Wright, from “The Case for Castration,” Texas Monthly (May 1992) NO: Kari A. Vanderzyl, from “Castration as an Alternative to Incarceration: An Impotent Approach to the Punishmnent of Sex Offenders,” The Northern Illinois University Law Review (Fall 1994)
Attorney Lawrence Wright argues that while castration may not be an ideal solution, if we treat it as therapy rather than punishment, as help instead of revenge, and if we view offenders as troubled victims, not monsters, then perhaps castration will become an accepted and humane option for sex offender treatment. Attorney Kari A. Vanderzyl asserts that castration should be rejected as an unacceptable, ineffective, and unconstitutional alternative to imprisonment for sex offenders.
ISSUE 4. Will Strict Gun Control Laws Reduce the Number of Homicides in the United States? YES: Franklin E. Zimring, from “Firearms, Violence, and the Potential Impact of Firearms Control,” The Journal of Law, Medicine & Ethics (Spring 2004) NO: Lance K. Stell, from “The Production of Criminal Violence in America: Is Strict Gun Control the Solution?” The Journal of Law, Medicine & Ethics (Spring 2004)
Professor Franklin E. Zimring argues that there is a strong relationship between gun use and the death rate from violent crime and that handgun use increases the death rate from violence by a factor of three to five. Professor Lance K. Stell asserts that strict gun control institutionalizes the natural predatory advantages of larger, stronger, violence-prone persons and increases the risks of violent victimization for less well-off law-abiding citizens.
PART 2. Legal Issues
ISSUE 5. Should the United States Abolish the Exclusionary Rule of Evidence in Criminal Cases? YES: Akhil Reed Amar, from “Against Exclusion (Except to Protect Truth or Prevent Privacy Violations),” Harvard Journal of Law and Public Policy (Winter 1997) NO: Yale Kamisar, from “In Defense of the Search and Seizure Exclusionary Rule,” Harvard Journal of Law and Public Policy (Winter 2003)
Yale law professor Akhil Reed Amar argues that if reliable evidence is excluded from trials, wrongful acquittals and erroneous convictions will result. Moreover, he believes that the exclusionary rule of evidence hurts innocent defendants while helping the guilty ones. University of Michigan law professor Yale Kamisar contends that the exclusionary rule is the sole effective remedy to secure compliance with the Constitution by the police and that admitting evidence obtained illegally requires courts to condone lawless activities of law enforcement officers.
ISSUE 6. Is "Black Rage" a Legitimate Defense in Criminal Proceedings? YES: Paul Harris, from Black Rage Confronts the Law (NYU Press, 1997) NO: Alan M. Dershowitz, from The Abuse Excuse: And Other Cop-Outs, Sob Stories, and Evasions of Responsibility (Little, Brown and Company, 1994)
Attorney and law professor Paul Harris argues that black rage, which contends that a defendant’s crimes are a product of social racism, is a legitimate defense in criminal cases. Harris maintains that this type of defense brings the racial reality of America into court by presenting "social context" evidence. Harvard Law School professor and author Alan M. Dershowitz, in contrast, asserts that a history of racial victimization is not a license to commit crimes. Moreover, he believes that the black rage defense is an abuse of legitimate criminal defenses that is leading to a backlash in society.
ISSUE 7. Should U.S. Courts Abandon the Miranda Rule? YES: Paul G. Cassell, from “Miranda’s ‘Negligible’ Effect on Law Enforcement: Some Skeptical Observations,” Harvard Journal of Law and Public Policy (Winter 1997) NO: Stephen J. Schulhofer, from “Bashing Miranda Is Unjustified—and Harmful,” Harvard Journal of Law and Public Policy (Winter 1997)
U.S. District Court Judge Paul G. Cassell argues that Miranda’s social costs are significant and that this cornerstone of the Warren Court’s criminal procedure jurisprudence places unprecedented shackles on the police. Professor Stephen J. Schulhofer, in contrast, contends that the Miranda protections are required by the U.S. Constitution and that the potential damage to effective law enforcement is not a sufficient reason to disregard a constitutional requirement.
ISSUE 8. Should a Judge Be Permitted to Admit Evidence About an Alleged Rape Victim’s History as a Prostitute? YES: Martha B. Sosman, from Opinion, Commonwealth v. Richard Harris, Supreme Judicial Court of Massachusetts (March 24, 2005) NO: Margaret H. Marshall, from Dissenting Opinion, Commonwealth v. Richard Harris, Supreme Judicial Court of Massachusetts (March 24, 2005)
Associate Justice Martha B. Sosman, writing for the Supreme Judicial Court of Massachusetts, asserts that trial judges should have the discretion to admit into evidence an alleged rape victim’s past conviction of a crime involving sexual conduct solely for the purpose of impeaching her credibility. Chief Justice Margaret H. Marshall, in a dissenting opinion, contends that giving trial judges the discretion to admit evidence of a past conviction of a crime involving sexual conduct is contrary to the intent and spirit of the state’s rape shield law.
PART 3. Processional Issues
ISSUE 9. Should the United States Abolish Plea Bargaining in Criminal Cases? YES: Jeff Palmer, from “Abolishing Plea Bargaining: An End to the Same Old Song and Dance,” American Journal of Criminal Law (Summer 1999) NO: Douglas D. Guidorizzi, from “Should We Really ‘Ban’ Plea Bargaining? The Core Concerns of Plea Bargaining Critics,” Emory Law Journal (Spring 1998)
Jeff Palmer argues that plea bargaining must be abolished in order to reinstate justice in the United States and restore the public’s confidence in the criminal justice system. Attorney Douglas C. Guidorizzi asserts that accepting plea bargaining as a natural feature of the adversarial system allows the criticisms of the practice to be addressed with tailored reforms. Moreover, he believes that the corruption of institutional values associated with plea bargaining can be avoided by eliminating the bargaining aspect of this practice.
ISSUE 10. Should the United States Abolish the Juvenile Court Systems? YES: Barry C. Feld, from “Abolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy,” Journal of Criminal Law & Criminology (Fall 1997) NO: Thomas F. Geraghty, from “Justice for Children: How Do We Get There?” Journal of Criminal Law & Criminology (Fall 1997)
Law professor Barry C. Feld argues that juvenile courts have become deficient criminal courts in which children receive neither therapeutic treatment nor sufficient due process safeguards. Attorney Thomas F. Geraghty, who frequently represents children in juvenile court, contends that juvenile courts should be retained after being reinvigorated with financial and human resources.
ISSUE 11. Should Cameras Be Allowed Inside U.S. Courtrooms? YES: Steven Brill, from “Courtroom Cameras,” Notre Dame Law Review (May 1997) NO: Anonymous, from “Judicial Conference Nixes Cameras in Courtrooms,” Defense Counsel Journal (September 6, 2000)
Steven Brill, the founder of the Courtroom Television Network, asserts that the public lacks confidence in the U.S. legal system because they have not been exposed to the real workings of the system. Brill believes that cameras in the courtrooms may remedy this problem and restore the public’s faith in the court system. U.S. Court of Appeals Chief Judge Edward R. Becker contends that camera coverage can do irreparable harm to a citizen’s right to a fair trial and create privacy concerns and courtroom security problems.
ISSUE 12. Do "Three Strikes" Sentencing Laws Help to Reduce Serious Crime? YES: John R. Schafer, from “The Deterrent Effect of Three Strikes Law,” FBI Law Enforcement Bulletin (April 1999) NO: Michael Vitiello, from “Three Strikes Laws,” Human Rights (Spring 2002)
FBI Special Agent John R. Schafer argues that strictly enforced three strikes laws are an effective crime control policy and may break the cycle of crime for youthful offenders. Attorney Michael Vitiello asserts that three strikes laws have not delivered on their promises to reduce serious crime. Moreover, the costs of such laws appear to outweigh their benefits.
PART 4. Punishment
ISSUE 13. Does Confining Sex Offenders Indefinitely in Mental Hospitals After They Have Served Their Prison Sentences Violate the Constitution? YES: Stephen Breyer, from Dissenting Opinion, Kansas v. Hendricks, U.S. Supreme Court (1997) NO: Clarence Thomas, from Opinion, Kansas v. Hendricks, U.S. Supreme Court (1997)
Associate Justice Stephen Breyer asserts that if a state’s law attempts to inflict additional punishment on an offender after he has served a prison sentence, it will violate the federal Constitution. Associate Justice Clarence Thomas, writing for the Court, contends that post-imprisonment civil confinement laws do not violate the Constitution.
ISSUE 14. Should Homosexual Prison Inmates Have a Right to Share the Same Cell? YES: Jeffrey P. Brinkman, from "Veney v. Wyche: Not in My Cell—The Constitutionality of Segregating Prisoners Based on Their Sexual Orientation," Law & Sexuality (2003) NO: Karen J. Williams, from Opinion, Veney v. Wyche, Fourth Circuit U.S. Court of Appeals (2002)
Attorney Jeffrey P. Brinkman argues that giving prison officials the discretion to segregate homosexual prisoners has helped to justify the isolation that homosexuals feel not only in prisons, but also in society as a whole. Judge Karen J. Williams, writing the majority opinion for the U.S. Court of Appeals in Veney v. Wyche, asserts that safety and security are legitimate penological interests that justify a prison policy of not allowing homosexual males to live in double-occupancy cells.
ISSUE 15. Are Supermax (Control Unit) Prisons an Appropriate Way to Punish Hardened Criminals? YES: Gregory L. Hershberger, from “To The Max,” Corrections Today (February 1998) NO: Rodney J. Henningsen, W. Wesley Johnson, and Terry Wells, from “Supermax Prisons: Panacea or Desperation?” Corrections Management Quarterly (Spring 1999)
Federal Bureau of Prisons Regional Director Gregory L. Hershberger contends that the challenges posed by hardened prison inmates support confining all of its dangerous offenders in one supermax prison facility. This approach may increase the safety of staff and inmates at other locations in the system and allow them to operate in a more effective manner. Rodney J. Henningsen, W. Wesley Johnson, and Terry Wells argue, however, that supermax prisons are symbolic of the desperation Americans face in trying to reduce crime using traditional formal social control methods. Moreover, as the cost of incarceration continues to increase, public officials may be forced to consider a more balanced approach to crime control.
ISSUE 16. Should Private "For Profit’ Corporations Be Allowed to Run U.S. Prisons? YES: Wayne H. Calabrese, from “Low Cost, High Quality, Good Fit: Why Not Privatization?” in Gary W. Bowman, Simon Hakim, and Paul Seidenstat, eds., Privatizing Correctional Institutions (Transaction Publishers, 1993) NO: Jeff Sinden, from “The Problem of Prison Privatization: The U.S. Experience,” in Andrew Coyle, Allison Campbell, and Rodney Newfeld, eds., Capitalist Punishment: Prison Privatization & Human Rights (Clarity Press, 2003)
Wayne H. Calabrese, vice president of the Wackenhut Corporation, argues that the privatization of U.S. prisons saves money and provides quality services. Jeff Sinden, managing editor of Human Rights Tribune, contends that the private prison industry has failed to achieve substantial cost savings and that there have been systemic human rights abuses in for-profit correctional institutions.
PART 5. Social Justice Issues
ISSUE 17. Is the Death Penalty an Unacceptable Punishment for Juveniles? YES: Anthony Kennedy, from Opinion, Roper v. Simmons, U.S. Supreme Court (2005) NO: Antonin Scalia, from Dissenting Opinion, Roper v. Simmons, U.S. Supreme Court (2005)
Associate Justice Anthony Kennedy, writing for the Court, asserts that the death penalty is an unacceptable punishment for juveniles who commit murder because it constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Associate Justice Antonin Scalia, dissenting in the same case, argues that there is no clear social consensus that would favor abolishing the death penalty in these cases and that in doing so the Court’s majority is usurping the powers of state legislatures.
ISSUE 18. Should Law Enforcement Agencies Use Affirmative Action Programs to Increase the Number of Minority Police Officers? YES: Brad Bennett, from “Beyond Affirmative Action, Police Response to a Changing Society,” Journal of California Law Enforcement (vol. 33, no. 2, 1999) NO: Jan Golab and Erica Walter, from “How Racial P.C. Corrupted the LAPD, ” The American Enterprise (June 2005)
Dr. Brad Bennett, chief of police and fire for South Lake Tahoe, California, asserts that although there has been a recent backlash against affirmative action programs, the acceptance of diversity is essential to modern police organizations. Authors Jan Golab and Erica Walter argue that the Los Angeles Police Department (LAPD) was once regarded as the world’s best police department due to its stringent screening of police recruits; however, in an effort to appease racial activists and meet federal court decrees, strict screening and testing measures were dismantled. Golab and Walter believe that this has resulted in the wholesale corruption of this once fine police department.
ISSUE 19. Are Female Police Officers as Effective as Male Officers? YES: Jeanne McDowell, from “Are Women Better Cops?” Time (February 17, 1992) NO: Erica Walter, from “Cops and Gender P.C.,” The American Enterprise (June 2005)
Author Jeanne McDowell contends that in some important ways, including a cool, calm, and communicative demeanor, female police officers may be more effective than their male counterparts in defusing violent situations. Writer Erica Walter asserts that law enforcement organizations must respect the reality that male and female officers are not interchangeable. Moreover, female officers’ limited ability to handle violent encounters with citizens may endanger both the police and the public.
ISSUE 20. Do Crack Cocaine Laws Discriminate Against African-Americans and Other Minority Groups? YES: Michael Coyle, from “Race and Class Penalties in Crack Cocaine Sentencing,” The Sentencing Project (2002) NO: Randall Kennedy, from “The State, Criminal Law, and Racial Discrimination: A Comment,” Harvard Law Review (April 1994)
Michael Coyle, a research associate with The Sentencing Project, asserts that crack cocaine sentencing policy is unconscionable in light of its impact on minority group members. Moreover, crack cocaine laws punish poor people more severely because they obtain the more affordable form of the drug, while wealthier people, who are more likely to use powdered cocaine, are punished less stringently. Harvard Law School Professor Randall Kennedy contends, however, that racial disparities in crack cocaine sentencing are not a mark of discrimination by white legislatures against blacks as much as a sensible response to the desires of all law-abiding people for protection against criminals.
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