This paper addresses two related questions about the American criminal justice system. The first examines how judicial activism has shaped the interpretation and application of the First, Fourth, Fifth, Sixth, and Eighth Amendments, arguing that liberal political interests have used activist jurisprudence to expand government power beyond constitutional limits — with particular attention to religious expression, Fourth Amendment search-and-seizure protections under the PATRIOT Act, and the detention of suspected terrorists. The second question analyzes the factors contributing to prison overcrowding in the United States, drawing on scholarship by Elliott Currie and Marc Mauer to trace the dramatic growth of the incarcerated population since 1972, including the war on drugs, increased policing, victim advocacy, recidivism, and punitive sentencing policy.
According to Webster's Dictionary of Law, judicial activism is defined as: "The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent — compare judicial restraint." Over the past four decades, since the practice of judicial activism was pioneered by then-NAACP lead attorney Thurgood Marshall in order to advance civil rights legislation, liberal political interests have pursued judicial activism to expand the powers of the government into the lives of U.S. citizens by bypassing the legislative limits defined in the Constitution. Through this practice, small minorities of political interests have hijacked a political system that was purposefully designed with checks and balances to prevent exactly what judicial activists have been able to accomplish.
The First Amendment is written in three clauses. Typically called the free speech amendment, it states:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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."
The first and third clauses have been used to effectively neutralize the second clause. Congress is currently making laws that restrict and prohibit the free exercise of religion on the basis of "separation of church and state," even though the phrase "separation of church and state" does not appear anywhere in the Constitution. Through judicial activism, the power of this amendment has been expanded to remove prayer from public schools, to challenge the presence of "under God" in the Pledge of Allegiance, and to remove plaques of the Ten Commandments from courthouse buildings. The Founding Fathers never intended for the government to suppress the presence of religion from public life; rather, they intended to keep government power and religious power separate.
The expansion of the Fourth Amendment's powers has occurred in recent years, most notably through the passage of the PATRIOT Act. The Fourth Amendment reads: "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."
This amendment has been stretched far beyond its original scope by the PATRIOT Act, which permits the government broad powers to conduct searches and seize information and assets in the pursuit of terrorist threats and perceived terrorist threats (Henderson, 2002). As a result, the Act has been challenged in court regarding its constitutionality (O'Neil, 2003).
"Detainee rights bypassed through enemy combatant designation"
Elliott Currie, in his study Crime and Punishment in America, argues that since 1972 the United States has been engaged in an unprecedented, unparalleled, and largely unnoticed social experiment. Society has been "testing the degree to which a modern industrial society can maintain public order through the threat of punishment" — or, more specifically, through imprisonment (Currie, 1998). The purpose of jailing has shifted from punishing the individual offender to maintaining social order. While the former paradigm created deterrence, the latter has created the expectation that prison is merely a holding cell for offenders, rather than a place to impose punishment and attempt rehabilitation.
Marc Mauer of the Sentencing Project makes a similar point in Race to Incarcerate, noting that "during this period public policy in the U.S. has resulted in… a second wave of the great 'experiment' in the use of incarceration as a means of controlling crime" (Mauer, 1999). This most recent prison experiment — seeking to determine "whether a massive and unprecedented use of imprisonment would effectively control crime" — has generated a corrections boom extraordinary even by U.S. standards and has led to the construction of the largest prison system in human history (Ibid.).
The scope and impact of this experiment, the flip side of the nation's long-running wars on crime and drugs, may be measured in a variety of ways. Between 1972 and 1998, the population of state and federal prisons more than sextupled, growing from fewer than 200,000 to over 1.2 million. By mid-1999, the total U.S. prison and jail population was 1,860,520 and was projected to reach 2 million by the end of 2001 (McCormick, 2000).
Several factors have contributed to the increasing numbers of incarcerated individuals:
First, the aggressive government policy of a "war on drugs" has led to increased federal and state funding for policing. The increased role of victims and victim advocacy groups in the court process has expanded the length of court proceedings and added bed capacity demands to the correctional system. Increasing levels of recidivism among the offender population have also contributed significantly to overcrowding.
Second, convicted inmates are remaining incarcerated for a greater portion of their court-imposed sentences rather than being paroled or receiving good-behavior time credits.
Third, a "tough on crime" policy has narrowed the criminal justice system's use of discretion, pushing it toward a more conservative approach to punishing convicted offenders. The public and the media have increasingly supported more punitive responses to convicted offenders. As a result, this attitude has forced changes in criminal justice practices. By focusing narrowly on punishment, alternative sanctions and community-based supervision of sentenced criminals have become less appealing options for the courts, departments of corrections, and parole boards.
The aggressive government policy of a "war on drugs," increased federal and state funding for policing, and a "tough on crime" attitude have together forced fundamental changes in criminal justice practices. By creating a narrow focus on punishment, the system has moved away from alternative sanctions and community-based supervision. These combined pressures — alongside recidivism and mandatory sentencing trends — explain the dramatic and sustained growth of the U.S. prison population over recent decades.
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