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On Our Dysfunctional Criminal Justice System

Public Domain

Invasive airport scanners, innocent men executed, and the largest prison population in the world

, but it has led, of course, to more criminality in the first place—and increasingly degraded and brutal kinds of it.  
Other troubling developments concern criminal law enforcement. The tendency, when confronted with more and more criminal activity, is to lower the standards of proper conduct expected of those in the criminal justice system and to allow traditional liberties to be more and more compromised. We think that we have to make their jobs easier for the sake of our own protection. So, we witness such things as: astoundingly invasive full-body scans at airports; security cameras watching our every move in many parts of our cities; the storing of massive amounts of data on vast numbers of our citizens and routine criminal background checks for an increasing array of activities; an explosion of plea-bargaining so police and prosecutors don’t have to go to the trouble of building cases and the criminally accused don’t get their Sixth Amendment right to a trial (over 90% of criminal cases nationally are settled by plea bargains); the routine keeping of arrest records (even when there is no conviction or if an arrest was illegal); the erosion of traditional common law requirements such as mens rea (which holds that there must be criminal intent for there to be a crime); the routine use of various kinds of sting operations, even though many are virtually entrapment; police who seem so weak on knowledge of basic citizen liberties that they see no problem doing things like providing back-up for CPS operatives so they can force their way into the homes of innocent, hapless families to interrogate children and find reasons to accuse parents; and, as became clear in the recent Boston Marathon bombing case, in the name of combating terrorism we will even go to the point of letting police and investigators stretch Miranda rights requirements and impose lockdowns of whole communities to pursue a single suspect (which may become a precedent for future cases that have nothing to do with terrorism). At the lower end of the offense scale, we witness not just police speed traps but increasingly pervasive traffic cameras whose purpose appears to be the mere raising of revenue (what the “Men of ‘76” might have called “eating out our substance”). We could go on and on about abuses in American criminal justice today.
Once again, a lot of this hardly encourages respect for the rule of law, nor does it seem fitting for a free people or even respectful of human dignity. Is a pervasive “security state” promotive of human dignity? For that matter, does it even truly insure security? In recent years, fighting terrorism has been a major justification for this, but in the cases of 9/11, the 2009 Christmas Day airline bomber, and apparently also in the Boston Marathon bombing, bureaucratic bungling by the very agencies that have fashioned such security regimens helped cause the problems.
On the punishment side, we increasingly witness an almost reflexive tendency to imprison offenders, warehousing, and high rates of recidivism. The purpose of imprisonment—and more broadly of punishment—seems to be obscured. Should most of those guilty of white-collar crimes be imprisoned? How about those convicted of political crimes, such as campaign-finance violations or influence-peddling? Might long-term civil fines, removal from prominent corporate positions, and restitution—which victims of economic and property crimes seldom receive—be better for the former, and a permanent ban from public office and public disgrace for the latter? Shouldn’t prisons perhaps be primarily for people who pose a physical danger to others or the community? In light of today’s prison conditions, is a sentence just to time behind bars or also to the brutal possibility of physical and sexual assault? Also, what about the fact that it’s said that our prisons today are full of mentally ill people? Do we perhaps have to reflect more on what to do differently about offenders whose mental illness or psychiatric problems were major factors in their crimes? Do we not have to ask if we are doing something wrong when we have the largest prison population in the world? Illicit drug use is also in the equation, since it is tied to so many crimes today and has been a major factor ballooning the prison population. While the libertarians’ solution of legalizing these drugs would be a disaster, it seems clear that how to deal with this requires renewed reflection and debate.
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