Justice and Due Process versus Crime Control

This paper has two parts. The first part of this paper shall deal with the question of the place of honesty in a justice system. The second part shall deal with the conflict between due process and crime control. A rejoinder of the two issues shall comprise the postscript of this paper. I The question of the place of honesty in a system that promotes justice has spurred constant discussion in the field of Criminal Justice.

The very question revolves around the problem of the extent that honesty could be skipped in the name of the pursuit of justice. This issue becomes very stark especially when the issue of the use of deception is used to be able to gain enough evidence, and therefore to pursue justice, in a criminal case. Could policemen reasonably use deception to get incriminating evidence? To be able to sufficiently discuss this problem, this paper shall first deal with the concepts of justice and honesty.

Afterwards, this paper shall discuss the more concrete case of the use of deception in undercover investigation for a more concrete picture of the problem. Then, a short conclusion shall follow. Retributive justice refers to “a systematic infliction of punishment justified on grounds that the wrongdoing committed by a criminal has created an imbalance in the social order that must be addressed by action against the criminal” (O’Connor, 2006).

In this system, a criminal who, in accordance with the Model Penal Code purposely, negligently, knowingly, and recklessly created a certain imbalance by committing a criminal act ought to be rehabilitated through punishment. One thing that ought to be clarified is the fact that in the retributive system, rehabilitation does not refer to concrete restoration of what was lost from the victim (this is restorative justice); instead, what is rehabilitated is the effect that a criminal act has on the state.

It espouses a legalist morality wherein a punishment has to be done not to appease the emotional or physical trauma that a crime has done but plainly that “the necessity of punishment under retributivism must be done for no other reason than it needs to be done — cold, emotionless, and out of consideration for the state's ‘will to power,’ the motive of power being the only motive worthy of ethical admiration” (O’Connor, 2006).

In contrast to how many think of retribution as taking revenge, retributive justice refers to plainly giving punishment because the state has to do so in accordance with its moral code (that has to be observed at all times, a legalist perspective of morality), and what has to be rehabilitated is the state’s power that gets imbalanced once a criminal act is done. This is not the state aiding in the vengeance of the victim; this is plainly the state doing what it should, as the law says, when a criminal act has been committed.

Restorative justice, on the other hand, refers to “a systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders and communities caused or revealed by the criminal behavior” (O’Connor, 2006). This is the type of justice where the damage done to a victim is put into consideration. American legislation has many aspects containing restorative justice such as family law, environmental law, etcetera, which means that this sort of justice goes beyond the penal code.

What, then, is the place of honesty in either or both kinds of justice? In the pursuit of retributive justice, honesty is an ideal that may or may not always be enforced. In the pursuit of a criminal whose offense the state must put into place, the state may choose to use the many means at its hands to impose the necessary punishment. This is the justice system in many other countries, North Korea included. Honesty, on the other hand, becomes a necessary factor in restorative justice.

In cases of fraud, identity theft, and many other crimes where honesty has been undermined, the criminal ought to put this disorder through the aid of the state. The state then becomes a restorative agent that brings dignity back to be victim at the same time doing what it can to correct the offender. The American Criminal Justice system is a combination of retributivist and restorative. As such, honesty may sometimes be plainly an ideal and sometimes a necessary element. We could see this concretely in individual cases of police deception.

We will look at two cases where deception (by undercover cops) is involved. The first case is the typical case of deception that is typically considered to not have any ethical dilemma (Marx, 1999). This is the case of the female undercover cop who pretends to be a helpless victim to catch a suspected rapist. Obviously, the female cop is not a helpless victim, there are many men watching her and ensuring her safety. It is also not a question whether she is trying to deceive.

Deception is the main plot to catch the criminal. But, in the field of Criminal Justice, this sort of lack of honesty has no ethical problems. The second case is the case that poses an ethical problem. This is the case of the undercover cop who uses a suspect sexually and gains her trust to get the necessary information. According to Gary Marx (1999), this case is ethically problematic, and can rarely be justified because it involves undermining intimate relationships, it involves seduction.

In this instance, the suspect becomes some sort of a victim and according to restorative justice, such sort of policing should not be allowed because it plays with the very essence of honesty. Thus, in the American system, honesty is sometimes an ideal that may or may not be put into consideration (such as the first case); but sometimes becomes the necessary factor that should be considered in determining the ethics of police activities. II The question of crime control versus due process protection is a very big issue in our present Criminal Justice system.

The dilemma goes like this: The Constitution says that  “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” but at the same time, law enforcers have the typical problem of making the constitutional rights “conflict” with crime control such as the situations when crime suspects were discharged because of inappropriate police operation.

There have been cases when rape suspects were allowed to set free because the police broke the Exclusionary Rule.

This second dilemma posed by the apparent conflict between crime control and due process protection is not easy to resolve, nevertheless, it is also at this point when law enforcers would have to learn that given their legal discretion at the same time prohibited by restrictions, crime prevention would have to be done not by committing other crimes (such as when the exclusionary rule is violated, or the rule on warrants is violated) but by working within the system that is made to protect the citizen’s constitutional rights in the first place.

At this point, it should be made clear that crime control is at place at the service of the constitutional rights of citizens, and due process is one of them. Thus, crime control has to act within the constitution and not against it. Postscript Justice and honesty are two virtues that the American government should work on. As stated above, there are situations when honesty can be excluded in the equation, especially if the constitutional rights of victims are at stake.

Nevertheless, there are times when honesty is the very thing that has to be restored and thus justice, through the systems of crime prevention, has to act to restore the honesty that was lost.

Reference List:

Carls, M. The ongoing debate: crime control v due process protection. In Minnesota Center for Community Legal Protection. Retrieved September 29, 2007 from www. civicallyspeaking. org.