Criminal Justice
Introduction
Police power is crucial in the American constitution. The State has the mandate to enact legislation for the purpose of promoting population safety and welfare. Focusing on the police governmental powers, the research paper follows the principle of federalism which states that all levels of the government should excise power and authority. For example, the federal government, the states governments, and the individual citizens have certain powers which allow each level to address problems, manage conflict, improve efficiency and increase political participation. These police government powers create different police organizations and each play a significant role in enforcing law among other sets of responsibilities. In other words, the police department is decentralized and this is an efficient system as it prevents too much concentration of power and each level is responsible and accountable to a specific group of people. The research paper also finds that the police power was established by the U.S constitution and implemented in the Tenth Amendment. The latter recognizes that the U.S should grant States the power to regulate issues such as health and welfare, and policing activities. Prior to the subdivision of police powers, the police used the ‘dossier system' back in the 1920s but later, it was found that the method was associated with police misconduct and the courts recommended the use of intelligence files since these were associated with legal and ethical standards. Intelligence agencies were developed and they coordinated and shared information to meet a common goal of maintaining national security. Later, there was a recommendation for jurisdictional transformation or the separation of the intelligence units into local law enforcement, and state law enforcement. The political subdivisions of the government police powers were developed to increase the efficiency of the criminal justice system and fulfill its goal of crime reduction at both local and state level. The subdivision police powers have the authority to establish laws and policies and to address community issues.
In 1920, law enforcement intelligence used the ‘dossier system' to collect and record information about the crime. Rather than using the intelligence files, the police agencies relied on diverse raw information on people who were suspected to be criminals and threats to community safety (Carter, 2005). The police agencies were influenced by the great depression to use the ‘dossier system' to respond to the economic crisis. In addition, the police agencies relied on the same system to deal with the communism. The supporters of the Communists argued Communists had constitutional rights and they expressed their grievances that the police agencies were causing damage in terms of loss of jobs (Carter, 2005). Nonetheless, the law enforcement continued to use the dossier system to maintain national security. The dossier system has also helped the police agencies to address threats from social movements such as the anti-Vietnam War movement where the participants created instability to the nation. The purpose of the dossier system was not to address specific crimes but its purpose was to keep information that would be needed during investigation or prosecution (Carter, 2005). However, there was a concern on the use of the dossier system since the U.S Supreme Court met the liberal decision with disfavor. There was a need to come up with new strategies to protect constitutional rights as well as civil rights. In addition, the new strategy could prevent police misconducts such as the use of excessive force and lack of evidence of criminality.
Given that the dossier system or rather the domestic intelligence activity undermined the rights of Americans, there was a concern on checking the abuse of power. After World War 2, the congressional commission that was the head of the Intelligence Community operations was concerned with the effectiveness of the intelligence agency activities toward preventing the Soviet Union from threating the national security (Carter, 2005). The congressional commissions were so much interested to improve the Intelligence Community in terms of its structure, and coordination. The Hoover Commission that was responsible for the administrative changes recommended a working coordination and information sharing between the Intelligence Community and the Central Intelligence Agency (Carter, 2005). In addition, the Dulles Report evaluated the Intelligence Community operations and recommended a strong coordination between the Central Intelligence Community with the FBI and other agencies. The purpose of the coordination recommendations was to increase efficiency and effectiveness. However, these intelligence recommendations were not met as expected since the CIA and the FBI violated the civil rights of the Americans in conducting the operations. Following the abuses of power, the public expressed their frustrations and grievances and the congressional committees implemented a new strategy known as the public investigations (Carter, 2005). The purpose of public investigations was to examine the legality and efficiency of the actual operations.
In order to understand the police governmental powers, Carter (2005) states that in 1975, the commission that evaluated the Central Intelligence Agency activities reported that it was important to restrict the power of CIA in domestic intelligence operations. In addition, the DCI and the FBI were to give guidelines concerning the agencies that they should serve. In 1976, the Committee on Intelligence suggested that the agencies for national security and the agencies for law enforcement intelligence should not overlap (Carter, 2005). In other words, a wall of separation, as well as the jurisdictional reformations, were needed for the purpose of developing an operational boundary. For example, it was recommended that the CIA should not operate in the domestic intelligence but rather it should act as the oversea operational arm, and the FBI should have the authority to operate in the U.S domestic intelligence (Carter, 2005). The recommendations to separate the police powers emerged from these recommendations but the separation did not mean lack of coordination but rather, it was recommended that the FBI and the CIA should share information and coordinate.
Despite the separation of powers between the FBI and the CIA, it was recommended that these agencies should work with the local law enforcement to combat the organized crime. However, to strengthen the coordination between the state and local law enforcement agencies, it was recommended that there should be intelligence units in the city police department (Carter, 2005). These units would play the role of investigating organized crime cartels and gathering information. In 1971, the National Advisory Commission was established and its purpose was to make recommendations concerning the goals and standards of the criminal justice system. It was recommended that in the state levels, there should be a centralized agency to assist the local departments through information-sharing (Carter, 2005). Also, local law enforcement should connect its intelligence functions with that of the state. Despite the recommendations toward the law enforcement's capabilities, in the 1980s there were an array of illegal activities and the intelligence units could not address the problem due to lack of expertise. Both the state and the local intelligence were unable to use a systematic and analytical method for data collection, and they did not have adequate knowledge to utilize the intelligence products effectively (Carter, 2005). The intelligence units have also been reactive in nature rather than being proactive, they failed to address critical matters and they could not offer relevant information in a timely manner. Modern recommendations have been made on abuses of power and the need to put civil rights into concern. Today, the intelligence agency is held accountable for unethical conduct.
In his article, Bybee (2000) analyses the Tenth Amendment and the police powers from the federal government by stating that in the ‘Allegory of the Cave', Plato says that men are imprisoned in a cavernous chamber where they cannot have freedom. Outside the cave, there is a light but prisoners do not see the light but rather they see shadows. Similarly, the federal government provides power to its branches such as the States and the powers are distributed to the people who are the source of the power (Bybee, 2000). The Tenth Amendment distributed the power amongst the federal, the state and the Congress. In relation to Plato's thoughts, people have been imprisoned in the Constitution. However, the constitutional federalism came up with a political thought of separating the powers between the national government and the states. The Tenth Amendment supported the separation of power between the State and the Congress. Even though it does not grant power to the political authorities, it acknowledges that the State has a pre-existing power to perform some functions. Thus, the Tenth Amendment established the State powers and congressional powers for the purpose of providing them with real authority (Bybee, 2000). Note that the New York financial crisis fueled the need for public agency and the state's efforts to address state interest. In the 1930s the amendment was interpreted in relation to the commerce and the need to provide the Congress with the power to regulate local activities such as manufacturing and agriculture.
Gerstle (2010) reviews the Federalism in America and states that the states should have the power and political right to stay away from the federal authority and address critical matters on their own. The liberal groups also supported the federalism since the federal government failed to address economic and social issues. Supporters of federalism argue that the state governments would be more influential and resilient in addressing economic and social issues (Gerstle, 2010). However, for the state government to be effective, there should be a police power that would control civil society. However, the civil war challenged the doctrine of police power but the state legislatures and the federal courts supported the doctrine and by 1960s to 1970s, the state was given the political authority. During the 19th century, the state government could address economic affairs and other internal initiatives. In addition, the states governments brought many internal improvements such as mixed enterprises, private instruments among other state activity (Gerstle, 2010). The State government also had freedom of action in other activities such as public health, moral behavior, immigration, and other activities. It is important to understand that freedom of action was as a result of the ‘police power'. Note that in the 19th century, the Supreme Court of Massachusetts supported the state police power that would play a significant role in establishing laws and statutes and more importantly protect the life and property, control capital and labor, control moral behavior, and other activities related to promote the public welfare (Gerstle, 2010). However, the Tenth Amendment stated that the State and the local governments exercised excess power not only in good deeds like regulating commerce but also in non-economic behaviors such as prostitution, gambling, and hazardous activities. However, the New Deal established new federal States and a police power that protected the public welfare.
Focusing on police powers, Kozlowski (2018) asserts that most jurisdictions have abolished governmental immunity and have implemented the tort claims. For many years, the states have relied on the governmental immunity where the government has been making independent judgment in decision making and this resulted in many discretional actions. The governmental immunity became a concern when there were shots in Benito Juarez Park in the Miami-Dade Country. The county had no authority to employ off-duty police and argued that it was under the state law and so it was not liable for security issues. The appeal court argued that the rules and regulations that the County's park was supposed to follow would not justify the liability but rather the case would be upon the governmental immunity (Kozlowski, 2018). The county power was under the governmental immunity and it was the role of the government to protect the public and to determine the rules and the regulation that the park could follow. The appeal courts concluded that the city should be responsible for its actions and more importantly exercise the police powers. It should also employ strategies and tactics on how to exercise the powers (Kozlowski, 2018). This example shows that political subdivisions such as the county have the right to exercise police powers to address internal activities such as protecting the public. Rather than relying on governmental immunity, it should make its own decisions and policy concerning security. However, there should be coordination between the county and the government so that it can provide the required police resources as well as the rules and the regulations the political subdivision should follow.
Washburn (2017) adds that the U.S developed trust responsibility toward the American Indians in North America. The purpose of the trust responsibility was to provide administrative control, make decisions and limit the governmental authority. However, there is a gap between the federal government and tribal priorities. In other words, the federal government has limitations in that it has diminished its responsibility and do not have the willingness to address the breach of trust and the misuse of power (Washburn, 2017). The trust responsibility has failed to fulfill its purpose and for this reason, the political branches have shown efforts in restoring the federal trust responsibility. Remarkably, the political branches have restructured the trust responsibility by creating a paternalistic model that aims at addressing the needs of the impoverished Native Americans. The political branches stated that the federal government should support the tribal government and the tribal sovereign powers by establishing criminal jurisdiction (Washburn, 2017). More importantly, the political branches have supported the need to provide the tribes with federal trust functions. This article shows that the tribal governments also have authority over economic, social and cultural affairs. In other words, the Indian Americans have a self-governance which has allowed to create economic development.
Seaton (2012) asserts that the role of the police powers is to regulate the safety and the welfare of the people. In 1824, Justice Marshall defined police powers as the power to regulate the State issues such as the health, internal commerce among other activities. This means that the police powers have the right to regulate all State affairs. The police powers are entitled to regulate harm and maximize the public good (Seaton, 2012). Using the diminution of value theory, the police powers should regulate the property to create economic value. In other words, the police powers should regulate the property owners to prevent them from causing harm to the public. The state has the ability to exercise police powers and more importantly exercise freedom in maintaining public safety and welfare (Seaton, 2012). State and local issues should be within the police powers so that the police can have the ability to understand the nature of the problem and protect the rights of the people.
Conclusion
The political subdivisions of police powers that were established to maintain security and reduce crime in local and state levels. When the world war two came to end, there was a need to create an Intelligence Community that would prevent threats from the Soviet Union. To improve the operations of the intelligence community, other agencies such as the CIA, DCI, and FBI were established and they played a significant role in maintaining the national security and promoting the public welfare through information sharing and coordination. However, the law enforcement intelligence were separated into state and local levels for the purpose of forming a centralized agency. The separation of police powers is supported by the 10th amendment which states that the federal government should grant states the power to regulate internal activities. Since the development of law intelligence agencies and the separation of powers, the intelligence units have been efficient in maintaining local and national security.
References
Carter, D. L. (2005). Brief History of Law Enforcement Intelligence: Past Practice and
Recommendations for Change. Trends in Organized Crime, 8(3), 51–62. https://doi.org/10.1007/s12117-005-1037-5
Gerstle, G. (2010). Federalism in America: Beyond the Tea Partiers. Dissent, 57(4), 29-36.
Bybee, J. S. (2000). The Tenth Amendment among the Shadows: On Reading the Constitution in
Plato’s Cave. Harvard Journal of Law & Public Policy, 23(2), 551. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=aph&AN=3229209&site=ehost-live
Kozlowski, J. C. (2018). Governmental Immunity for Park Security Policy. Parks &
Recreation, 53(7), 26–31. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=hjh&AN=130596404&site=ehost-live
Washburn, K. K. (2017). What the Future Holds: The Changing Landscape of Federal Indian
Policy. Harvard Law Review, 130(6), 200–232. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=122431050&site=ehost-live
Seaton, K. (2016). Taking a Closer Look at Just Compensation: State Regulation of Groundwater
Withdrawals as an Appropriate Use of their Police Powers. Journal of Corporation
Law, 41(4), 1009–1023. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=114559359&site=ehost-live
