• PDF / 208,602 Bytes
• 15 Pages / 419.528 x 595.276 pts Page_size
• 61 Downloads / 251 Views

DOWNLOAD

REPORT

---

If justice requires the decriminalization of drug offenses, what m ­ easures does it require for offenses that involve harm to others? Preventing one person from injuring another is the standard concern of criminal justice, so it might be said that the previous chapter was a detour from the critical questions that arise about taming state power. Those questions center on a trade-off, one in which the state’s power to interfere with individual freedom is weighed against the benefits it confers by protecting people from harm. The trade-off matters because the state can ruin lives while promoting public safety. For instance, the state has the resources to conduct dragnet searches for violent criminals—and so can detain hundreds of innocent suspects in the course of arresting a genuine criminal. Similarly, it can prosecute numerous people who have not committed crimes in order to secure the conviction of one who is actually guilty of a crime. And most important of all, the state has the resources to impose draconian punishments on those who’ve wronged others. It can impose disproportionate sentences. It can single out minorities for unequal treatment. It can operate prisons with hellish conditions. And it can systematically degrade convicts, thereby adding inhumanity to the denial of liberty. © The Author(s) 2019 W. C. Heffernan, Rights and Wrongs, Critical Criminological Perspectives, https://doi.org/10.1007/978-3-030-12782-4_6

95

96     W. C. Heffernan

Each of these examples is concerned with a function the state ought to perform. Each, however, is concerned with improper performance of this function, for important as it is to have an enforcement agency that vindicates the security interests of the public at large, it’s also important to restrain officials of that agency as they go about their jobs. It might be argued that there is no need to comment from the ­perspective of justice on the matters mentioned above given the many provisions of the United States Constitution that seek to restrain the government’s exercise of power. The Fourth Amendment, for example, places limits on the government’s investigative authority through its prohibition of unreasonable searches and seizures. The Fifth Amendment guards against the exercise of force in securing confessions. The Sixth Amendment guarantees a right to trial by jury. And the Eighth Amendment prohibits cruel and unusual punishments. Taken together, these provisions of the Bill of Rights, when considered in conjunction with other portions of the constitutional text, make it unnecessary to appeal to justice when thinking about state power, someone might contend. Because the Constitution itself aims at taming the power of the state, it could be contended, it’s superfluous to invoke considerations of justice when thinking about the restraints essential to the fair investigation of crime and the punishment of offenders. But the Constitution doesn’t guard against every possible miscarriage of justice. There are two reasons why it falls short in this respect. One has to