Essay: Bill of Rights and Justice Administration

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¶ … Bill of Rights and Justice Administration

The First Amendment and the Administration of Justice and Security:

According to the portion of the First Constitutional Amendment most relevant to the modern administration of criminal justice and national security, "Congress shall make no law & #8230; abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (Friedman, 2005). In the age of the Global War on Terrorism (as it was called under the most recent presidential administration of George W. Bush), the modern interpretation and application of the First Amendment is most important in the realm of the freedom to publish critical opinions of the government without fear of reprisal in the form of arrest or criminal prosecution.

The war in Iraq, both before its formal beginning and ever since, has been a ripe topic for political dissent, as were the many allegations of improper use of surveillance on American citizens in connection with domestic efforts to prosecute the "war on terror" in the United States. But for the protections of the First Amendment, individuals who criticized the President, other government executives, and the policies of the presidential administration could be prosecuted in the same manner that they are in more repressive countries such as North Korea, where publishing critical opinions of the government often result in lengthy prison sentences (Dershowitz, 2002).

In that regard, both political speech and the freedom of the press are considered to be the most highly protected of all forms of speech, precisely because of their value to society and because of their long history of severe repression in Britain prior to the colonization of the New World and the American Revolution that followed.

The Fourth Amendment and the Administration of Justice and Security:

According to the portion of the Fourth Constitutional Amendment most relevant to the modern administration of criminal justice and national security, "The right of the people 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (Freidman, 2005).

The modern relevance of the rights and protections guaranteed by this provision cannot possibly be overstated, particularly in the age of domestic and international terrorism. The Fourth Amendment protects individuals from being searched at the mere whim of law enforcement agents and from having their homes, businesses, and other property searched without a warrant. The significance of the requirement for a search warrant is that probable cause must first be established to the satisfaction of a judge or magistrate without which law enforcement agents may not enter private property without permission or conduct any searches for evidence of a crime (Dershowitz, 2002;

Schmalleger, 2008; Zalman, 2008).

The Fourth Amendment also protects individuals from random searches of their person while in public absent probable cause. Likewise, individuals in public who are not breaking the law may not be stopped for questioning without an articulable justification, normally referred to as reasonable suspicion on the part of law enforcement officers. Without the protections of the Fourth Amendment, individuals could be detained by law enforcement officers at will and without any legitimate objective basis justifying the deprivation of liberty.

The Fifth Amendment and the Administration of Justice and Security:

According to the portion of the Fifth Constitutional Amendment most relevant to the modern administration of criminal justice and national security, "No person shall

be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury & #8230; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law & #8230;" (Friedman, 2005).

The first quoted portion of the Fifth Amendment requires that persons accused of serious crimes (i.e. felonies punishable by more than one year of incarceration) must first be inducted by a grand jury (Schmalleger, 2008). However, by far the most important of the protections afforded by the Fifth Amendment are the right against self-incrimination and the right to the due process of law throughout the criminal process. Prior to the modern era of American jurisprudence, it was not at all uncommon for police to extract evidence of crimes and/or confessions from persons under arrest through the use of physical force, intimidation, and deprivation of food and water (Conlon, 2004; Dershowitz, 2002).

That aspect of American criminal law changed dramatically in the 1960s and 1970s as a result of a line of cases that included Miranda v. Arizona that established the so-called "Miranda rights" according to which arrestees are entitled to refuse to answer questions once in police custody and must be advised of those rights, as well as of their Sixth Amendment right to counsel as a condition of the admissibility of any statements or evidence they provide during questioning (Dershowitz, 2002; Schmalleger, 2008; Zalman, 2008).

The due process rights guaranteed by the Fifth amendment govern the entire process of criminal justice administration from arrest, through arraignment, indictment, appointment of counsel (if necessary), and the pretrial and post-judgement phase (i.e. The appeal) of criminal trials.

The Sixth Amendment and the Administration of Justice and Security:

According to the portion of the Sixth Constitutional Amendment most relevant to the modern administration of criminal justice and national security, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial & #8230; and to have the Assistance of Counsel for his defense. The protections afforded to persons under the Sixth Amendment are particularly important in the age of domestic terrorism and the global war on terror and were severely tested by the most recent presidential administration's refusal to limit the period of detention for many persons accused of various terrorism-related crimes since 2001 (Schmalleger, 2008; Zalman, 2008).

The other important protection afforded by the Sixth Amendment guarantees that no person subject to criminal prosecution will be convicted as a result of not being able to secure competent legal representation. This also is particularly relevant in the age of modern terrorism for at least two reasons. First, foreign nationals may not speak the language and could easily be convicted without the opportunity to present a defense to criminal charges. Second, without the provision entitling all criminal defendants to competent counsel irrespective of the nature of the crimes for which they stand accused, certain criminals could find it impossible to secure any representation if private attorneys refused to represent them or feared the consequences of doing so (Dershowitz, 2002). This amendment entitles criminal defendants to court-appointed counsel whenever necessary to ensure that their cases are represented in their best interests.

The Fourteenth Amendment and the Administration of Justice and Security:

According to the portion of the Fourteenth Constitutional Amendment most relevant to the modern administration of criminal justice and national security, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The impact of the Fourteenth Amendment is monumental because it is through this amendment that the ten amendments of the Bill of Rights are applied to the individual states. Prior to the incorporation of the rights granted under the First, Fourth, Sixth, and portions of the Fifth Amendment related to modern criminal

justice administration through the Fourteenth Amendment, the Bill of Rights applied only to the federal government and not… [END OF PREVIEW]

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