CRIMINAL JUSTICE ISSUE – Crime Control v. Due Process Exemplified in Disaster Lawmaking.
There is probably no better example of a Federal statute embodying Packer’s crime control and due process models of the criminal justice system than the Patriot Act of 2001. In his 2015 Capital Law Review Article entitled, “THE PATRIOT ACT AND CRISIS LEGISLATION: THE UNINTENDED CONSEQUENCES OF DISASTER LAWMAKING”, Kyle Welch touches on the main issues praised by law enforcement, prosecution and citizens, as well as the main issues criticized by civil libertarians and citizens. The main issue he writes about at length is the tension between the crime control camp who by and large praise the legislation and the due process who by and large are for re-evaluating the statute.
“Many of the Patriot Act’s provisions that were criticized were only incidentally related to the terrorism that the Patriot Act purported to stop — both in practice and by design” (Welch, 2015, p. 483). The whole article carries with it a relative stay in judgment about whether author feels that the legislation has gone too far in allowing the Federal Government to encroach on the rights of citizens. Welch rightly posits that the motivation for the Patriot Act of 2001 was very well motivated, but that the act was by and large being used against “garden variety criminals instead of terrorists” (Welch, 2015, p. 484).
Welch goes on to say that though the Patriot Act might be the best piece of legislation (Welch, 2015, p. 484) since the Voting Rights Act, it is still crisis legislation and as such is a perversion of the legislative process. The tragedy of 9-11 was used in the context of the Patriot Act to include sections on wiretapping and money laundering that legislators “had sitting around” and that prosecutors had “on their wish lists for years” (Welch, 2015, p. 501). The main wish list item is the “sneak-a-peak” warrant from Section 213 of the Patriot Act. They have been primarily used for criminal investigations and not terrorism and have successfully been challenged as unconstitutional in the 9th circuit (Mayfield v. United States, 504 F. Supp. 2d 1023, 1042-43 (D. Or. 2007), vacated for lack of standing, 599 F. 3d 964 (9th Cir. 2010)).
Exploiting a crisis to pass laws can be a very dangerous tactic and we can possibly throw some of our constitutional babies out with their bath waters. It might have been 100% necessary to sacrifice some of our liberties for a time to fight terrorism, or it might have set the stage for too much power in the federal government. This is what many libertarians are afraid of and it does seem to be a thing our founding fathers did not want. Obviously at the same time we want to protect our nation, our constitution and our way of life and if we let ourselves be destroyed by terrorism, then what liberties will we have left then? Welch made a great case for the dangerousness of crisis legislation as well as a good description of the gut level fears that motivate honest and good legislators to take a potential constitutional risk.
Welch, K. (2015). THE PATRIOT ACT AND CRISIS LEGISLATION: THE UNINTENDED
CONSEQUENCES OF DISASTER LAWMAKING.
Capital University Law Review, 43(3), 481-554.
Retrieved from: https://law.capital.edu/Volume43Issue3/