Article by Gary Kent
Our criminal justice system is designed to have built in checks and balances. These have evolved from hundreds of years of practice, as well as judicial interpretation and precedent. In important ways, they enjoy Constitutional sanction.
Law enforcement is reined in principally by amendments 4, 5, 6, 7, and 8. Amendment 9 should not be forgotten in this regard, though its importance is often overlooked.
Warrants issued by a judge limit searches under amendment 4 and protect people from potential police abuse of privacy. If law enforcement can establish probable cause to conduct a search, a judge may grant a warrant allowing the search. Searches are supposed to be “reasonable” and specific as well.
Amendment 5 provides protection against self-incrimination. Precedent has added the so-called Miranda warning before other than routine questioning. Under amendment 5, once someone is found innocent, a prosecutor cannot give it another try on the identical charge. Amendment 5 requires “due process” before anyone may be deprived of “life, liberty, or property.” Following due process involves providing the accused all the protections and procedures provided under the law.
Numerous important protections for the accused are contained in amendment 6. Among these is the right to counsel. Under amendment 6, an accused is entitled to subpoena witnesses in his/her behalf. This amendment safeguards people against overzealous prosecution.
The Constitution requires an indictment process. Prosecutors must convince a grand jury to indict a person suspected of breaking the law. Only then may the accused be forced to go to trial before a judge and jury capable of deciding guilt or innocence. Trials are supposed to be “speedy.” Precedent and law have helped define what “speedy” means.
Law enforcement and prosecution are typically separate in order to permit each to limit the other. A district attorney (prosecutor) can wish to take someone to trial for loss of “life, liberty, or property,” but cannot do so unless he/she can get a law enforcement agency to make an arrest.
Similarly, without an indictment from a grand jury, the arrested person cannot be put at further risk in a trial before a judge and jury. In this way, a prosecutor can restrain law enforcement (the police). In practice, it is fairly rare for a grand jury not to indict. A district attorney may decide not to even seek an indictment, thereby checking, and often frustrating, law enforcement.
For the system we have to work properly, each human component of it must behave even-handedly and ethically. In practice, abuse is difficult to determine. If it was ever in doubt, the 14th amendment made it clear that justice must also be “blind.”
Most independent are federal judges and those state judges who are appointed. District attorneys and sheriffs have to face elections, though, in many instances, the public may fail to hold them accountable due, in part, to politics and political party enrollments.
A question about the Major Felony Crimes Task Force came up during the S.C.O.P.E. forum. Two of the candidates indicated no problem with having this law enforcement arm under the direction of the prosecutor (district attorney). Coincidentally, or not, the candidate who won the election thought the Major Felony Crimes Task Force should be run by the sheriff.
The problem with the way it is now is that putting a law enforcement “arm” under the prosecutor’s direction circumvents the system of checks (limits) described above. A district attorney who controls an important part of the enforcement mechanism is no longer being kept separate from law enforcement. In this case, there is less control over the district attorney’s power.
While, in fact, they normally work closely, appearances are also important in order for the public to have confidence in the system. For the system to work effectively, keeping law enforcement and prosecution separate provides important limits on both and can contribute to much-needed public confidence.