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  2. 2. 13th Amendment    The framers of the Constitution wanted to prevent excessive federal authority They wanted to give states more authority, but resulted in problems the national government could not overlook There were several issues:  State bank and money versus national banks and currency, federal aid versus state aid to improve roadways and railway and freedom versus slavery
  3. 3. 13th Amendment   During debates about these issues emerged two theories during the 1830 Great Debate Sen. Robert Hayne and Sen. Daniel Webster   Hayne asserted that the Union the Constitution created was a compact between sovereign states, a league of independent states, and states may lawfully withdraw from the Union if they wish Webster asserted that the Constitution created established an indivisible Union with laws binding on the states, and states couldn’t leave the Union.
  4. 4. 13th Amendment  President Lincoln was elected in 1960    Soon after many states passed a resolution to withdraw from the Union President Lincoln was faced with trying to keep the Union together He promised to abolished slavery in the territories, but under the Constitution, slavery was legal in the states where it had been established
  5. 5. 13th Amendment  Dre d Sc o tt v. Sa nd fo rd  Supreme Court ruled that even free blacks could not be citizens of the United States and that they “had no rights which a white man was bound to respect”  The southern states were not convinced and the Civil War ensued  It pitted American against American and sometimes brother against brother  Hundreds of thousands wounded and killed  Caused a divide that still affects the country to this day
  6. 6. 13th Amendment   April 1862, slavery was abolished in the District of Columbia and 2 months later in all the territories January 1, 1863, President Lincoln declared free all the slaves in all districts of the United States in his Emancipation Proclamation   Set a national tone toward abolishing slavery 13th Amendment was ratified in 1865 and abolished slavery
  7. 7. 14th Amendment  Even though slavery was now abolished with the 13th Amendment, states continued to discriminate    Many southern states passed Black Codes Congress passed the 14th Amendment in 1868 which gave blacks citizenship, and granted citizenship to all persons born or naturalized in the United States The 14th Amendment also forbids the states to deny their citizens due process of law or equal protection of the law  Certain provisions of the Bill of Rights were made applicable to the states as well
  8. 8. 14th Amendment  1833 Ba rro n v. M y o r a nd City Co unc il o f a Ba ltim o re   Drew attention to the contradictions caused when different standards applied to federal and state governments Plaintiff challenged the constitutionality of Baltimore taking his land for public use and not adequately compensating him (mandated by the 5th Amendment)
  9. 9. 14th Amendment  1833 Ba rro n v. M y o r a nd City Co unc il o f a Ba ltim o re   The Supreme Court ruled that such a case involving local governments had no place in federal court because the firs 10 Amendments to the Constitution were not applicable to state governments The Bill of Rights were meant to be a check on the new national government by limiting its control of state laws
  10. 10. 14th Amendment   It made no sense to permit states to violate rights the federal government could not The 14th Amendment sought to prevent both the federal and state governments from infringing on the majority of constitutionally guaranteed rights
  11. 11. 14th Amendment   Section 1 of the 14th Amendment states that all people born or naturalized in the United States are citizens of the United States and of the state in which they reside, effectively overriding the Dred Scott decision It also prevents federal and state governments from abridging the privileges of citizens or to deny any citizen equal protection of the law or deprive them of life, liberty or property without due process of the law
  12. 12. 14th Amendment  Due process of law   The idea that basic fairness must remain part of the process, provides rule and procedures to ensure fairness to an individual and to prevent arbitrary actions by government Equal protection of the law  A constitutional requirement that the government give the same legal protection to all, like people must be treated in like ways
  13. 13. Current Events Striking a Balance   There is a challenge of balancing individual and government rights Cases will continue to come before the Supreme Court to determine the constitutionality of government practices   The Nationwide Suspicious Activity Report Initiative Familial DNA Database Searches
  14. 14. Discrimination versus Prejudice      Prejudice- is an attitude, commonly known as a negative attitude regarding a person or thing Discrimination- is an action or behavior based on prejudice In a democratic society, people are free to think what they want When these thoughts become socially unacceptable behaviors, the government is justified in intervening Laws exist to punish the actor and protect the victim
  15. 15. The Roots of Racial Discrimination   Racial discrimination existed well before colonization and the Constitution The 13th Amendment did not outlaw unequal treatment or change racial attitudes   Dred Scott (1856) decision ruled that freed slaves did not have the right to remain free in a territory where slavery was still legal Ple s s y v. Fe g us o n (1896) showed the Court’s desire to avoid civil rights issues, declaring discrimination to be outside the realm of the Court
  16. 16. The Roots of Racial Discrimination   Racial tension mounted as states passed laws to ensure that Whites could maintain their privileged status These laws were known as Jim Crow Laws  Strictly segregated Blacks from Whites in schools, restaurants, streetcars, hospitals, and cemeteries
  17. 17. Issue of Separate but Equal  Bro wn v. Bo a rd o f Ed uc a tio n (1954)    Established that “separate but equal” schools were illegal Denial of equal protection under the law The momentum of this case led to one of the greatest civil rights advances in our history  1964 Civil Rights Act
  18. 18. The Struggle for Equality    America continued with the struggle of what equality meant Women were not allowed to vote until 1920, 50 years after 15th Amendment Gender discrimination remained during the 1960s   Women were denied equal pay for equal work Women would not be promoted, excluded from certain professions and were permitted to serve limited roles in the military
  19. 19. The Struggle for Equality  Many laws were passed that prohibited discrimination based on race, color, religion, sex or national origin in employment and education in public and private sectors at the federal, state and local levels     The Equal Pay Act of 1963 The Civil Rights Act of 1964 The 1972 Equal Opportunity Act 1972 Equal Education Act
  20. 20. The Struggle for Equality  Unite d Sta te s v. Virg inia (1996)  The federal government brought suit against the state of Virginia and the male only admission policy of the Virginia Military Institute  The exclusion of females from the Institute was unconstitutional
  21. 21. The Rise of Affirmative Action Programs    The Nixon Administration formed the affirmative action programs They were created to spread equal opportunity throughout the diverse American population They were designed to cure discrimination in hiring and eliminate past, present and future discrimination using race, sex, color, and age as deciding criteria
  22. 22. The Rise of Affirmative Action Programs  Re g e nts o f the Unive rs ity o f Ca lifo rnia v. Ba kke    Supreme Court upheld the University of California’s use of race as one factor in determining admission Court stated “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids” The Supreme Court continues to rule on notable affirmative action cases
  23. 23. Reverse Discrimination  Consists of giving preferential treatment in hiring and promoting women and minorities to the detriment of White males   You cannot cure discrimination with counter discrimination It is necessary to assure that all citizens have access to the American Dream, the belief that through hard work anyone can have success and ample material possessions.
  24. 24. Reverse Discrimination  Ric c i v. De s te fa no (2009)  The city of New Haven did not certify the results of the exam that led to promotions for firefighters  White   candidates outperformed minority candidates White and Hispanic firefighters sued the city who claimed they were denied a chance at promotions when the exams were not certified The city claimed that if they were to use the results the could face liability under Title VII of the Civil Rights Act for using a test that had a disparate impact on minority firefighters
  25. 25. Reverse Discrimination  Ric c i v. De s te fa no (2009) continued  Defendants granted summary judgment by the district court and affirmed by the Second Circuit Court of Appeals  Summary judgment is a request to the court to review the evidence and without a trial reach a decision to dismiss the case or move against the movant because there is no dispute of the material fact that a jury needs to resolve  The Supreme Court reversed and remanded the case, holding that New Haven’s actions of discarding the test violated the Civil Rights Act
  26. 26. Reverse Discrimination  In evaluating race based practices it is important to understand  Disparate treatment  Intentional acts of employment discrimination based on race, color, religion, sex, and national origin  Disparate impact  Policies or practices that are not intended to discriminate but, in fact, have a disproportionately negative effect on minorities
  27. 27. Racial and Gender Equality in the 21st Century   The recent appointments to the Supreme Court will continue to take the issue of affirmative action programs in one direction or the other Public sentiment seems to be turning against the concept of affirmative action programs
  28. 28. Current Events Fis he r v . Univ e rs ity o f Te x a s a t A tin us     Supreme Court heard oral arguments on this case in October of 2012 Ms. Fisher is suing the University of Texas because she was rejected for admission Her claim is that individualized, discretionary admission policies violated her rights and favored African-American and Hispanic applicants over whites and Asian-Americans A ruling should be issued early 2013
  29. 29. Other Forms of Discrimination    Religious discrimination has been addressed in various cases Discrimination against people with disabilities affects criminal justice in many ways Discrimination because of sexual orientation is a challenge for the criminal justice system
  30. 30. Current Events Don’t Ask, Don’t Tell   Since 1993 the American military historically practiced the policy that service men and woman would not be asked about their sexual orientation but they would be discharged if their homosexuality was made public In December 2010 President Obama signed a repeal of this policy
  31. 31. The Immigration Issue     At one time the United States had a welcoming philosophy for immigrants Today, immigration issues challenge these past beliefs and the future of America Illegal immigration is a controversial issue today for lawmakers Courts continue to struggle with the constitutional interpretation  The 14th Amendment protect “persons”, not just c itiz e ns
  32. 32. The Immigration Issue   The Supreme Court has struck down a number of state laws that differentiate between residents and nonresidents or between citizens and aliens The public clearly has concerns about illegal immigration and wants the government to control the borders to deal with the millions of illegal immigrants
  33. 33. The Immigration Issue  Challenges for law enforcement in jurisdictions with large immigrant populations:      Many people who do not speak English well (or at all) Immigrants reluctance to report crime Fear of police Misunderstanding based on cultural differences Personal interaction between immigrants and police officers that damage the trust
  34. 34. Current Events The 2010 Arizona Immigratio n Law Arizona S.B. 1070 made Arizona the first state to criminalize illegal immigration by defining it as a trespass The law requires officers, while enforcing other laws, to check a person’s immigration status if there is a reasonable suspicion that the person is here illegally  Caused lots of divide across the country  The Federal government filed a lawsuit challenging the constitutionality of the law  In June of 2012 the Supreme Court struck down key components of the law and upheld the authority of the federal government to set immigration policy and 
  35. 35. Equal Protection in the Criminal Justice System  Must distinguish between discrimination and disparity   Disparity is a difference, but one that does not necessarily involve discrimination Discrimination is the differential treatment of groups without reference to an individual’s behavior or qualifications  The degree and prevalence of discriminatory treatment within the criminal justice system exists along a continuum between the extremes of pure justice and systematic discrimination
  36. 36. Equal Protection in the Criminal Justice System  Criminal justice system is characterized by contextual discrimination  Racial minorities are treated more harshly at some points and in some places in the criminal justice system but no differently than Whites at other points and in other places
  37. 37. Discrimination in Law Enforcement    There is a lot of discretion granted to police officers  Discretion lets officers treat different people differently Some police officers, particularly males, have been accused of gender discrimination, treating women more leniently than men The most frequent alleged discrimination is racial profiling  Racial profiling is the process of using certain racial characteristics, such as skin color, as indicators of criminal activity  Officer’s admit that a citizen’s race and socioeconomic status can lead to unequal treatment and even unwarranted physical force by the police
  38. 38. Discrimination in the Courts   Even before a defendant appears in court, discrimination in the jury process may negatively affect the outcome of the case The equal protection clause was used as a legal tool to abolish statutes excluding African Americans from jury selection
  39. 39. Discrimination in the Courts  Stra ud e r v. We s t Virg inia (1879)   Supreme Court struck down a statute explicitly prohibiting African American from serving on juries N rris v. A ba m a (1935) o la   Court acknowledged that exclusion of African Americans on juries constituted an equal protection violation The ruling was ineffectual and African Americans remained underrepresented on juries
  40. 40. Discrimination in the Courts  Ba ts o n v. Ke ntuc ky (1986)  The Court ruled that the use of peremptory challenges to deliberately produce a racially unbalanced jury was unconstitutional  The defendant was African American  The prosecutor in the 1st trial used the state’s peremptory challenges to remove all four prospective black jurors, leaving an all white jury that ultimately convicted Batson.  Later in J.E.B. v. Alabama (1994) the court extended the this ruling to gender
  41. 41. Discrimination in the Courts     Just as discrimination can affect court proceedings before a trial, it can also affect the stage after trial— sentencing A common tactic used by prosecutors to secure a guilty plea is to offer the defendant a lesser charge Consequently, the sentence received is based on the charges brought, not necessarily on the act committed Leads to great variation among the sentences received by offenders convicted of the same offense  Sentencing guidelines have tried to provide for more uniformity and proportionality in sentencing
  42. 42. Current Events Fair Sentenci ng Act of 2010    Signed by President Obama in August 2010 Changed sentencing guidelines that allowed longer prison terms for crack cocaine offenders compared to power cocaine offenders Reduced the 100 to 1 ratio to an 18 to 1 ratio and eliminated the 5-year mandatory minimum sentence for the first-time possession of crack cocaine
  43. 43. Discrimination in Corrections    The field of corrections changed forever in 1968 when television and their media had their first look inside prisons—they were horrified The Attica Prison riot followed by the New Mexico Penitentiary riot shocked the public Not only the deplorable conditions by inmates, but also the way law enforcement and correctional personnel were treating inmates made the government look like criminals
  44. 44. Discrimination in the Corrections   Americans learned that even a system based on law and order needs due process in the correctional setting as well Ex parte Hull (1941) the Supreme Court acknowledged that even prisoners had rights and that previous and routine practice of censoring and discarding prisoner’s legal petitions to courts was unconstitutional
  45. 45. Discrimination in the Corrections  Co o p e r v. Pa te (1964)    Inmates could sue the warden for depriving them of their constitutional rights under Section 1983 of the U.S. Code Right- a legally protected claim Privilege- a claim that is not legally protected
  46. 46. Discrimination in the Corrections  Race discrimination   Segregating racial groups, assuming they will be in conflict otherwise, violates the equal protection component of the 14th Amendment Discrimination against the Disabled  Correctional facilities were required to provide special accommodations, programming and services to disabled inmates
  47. 47. Discrimination in the Corrections  Disciplinary Hearings  Wo lff v. M Do nne ll (1974) c  Involved a claim that Nebraska’s disciplinary procedures, particularly those relating to loss of good time were unconstitutional  Prisoners are not owed the full due process rights as defendants on trial  Minimum requirements • • • Right to receive advanced notice of the infraction Time to prepare a defense, call witnesses, seek counsel Written statement of the findings
  48. 48. Discrimination in the Corrections  Access to Court    Cruz v. Ha uc k (1971) - ready access to court is one of the most fundamental constitutional right Bo und s v. Sm ith (1977) - ruled that North Carolina must furnish each correctional institution with an adequate law library Jo hns o n v. A ery (1969) - Supreme Court ruled it v acceptable for inmates to help each other with legal work in case preparation, unless the correctional facility provided other reasonable assistance
  49. 49. Balancing State and Federal Power and Individual Rights   Just like a company’s bylaws, state’s constitutions sets forth some general guidelines to operate under State constitutions limit and restrict the state government’s inherent power, prescribing how he state is to exercise its inherent power, and affirming the existence of certain powers  For example, capital punishment
  50. 50. Selective Incorporation   Prevents state or local governments from infringing on people’s rights when federal government would not be allowed to It holds that only the provision of the Bill of Rights fundamental to the American scheme of justice are applied to the states through the due process clause of the 14th Amendment
  51. 51. Selective Incorporation  Which rights within the Bill of rights apply to the states?  All 10 Amendments except:  5th Amendment’s guaranteeing criminal prosecution only on a grand jury indictment  7th Amendment’s guarantee of a jury trial in a civil case
  52. 52. Current Events M Do na l c d v. Chic a g o (2010)   The Supreme Court made a landmark decision when they held that the 2nd Amendment is incorporated by the due process clause of the 14th Amendment The right to bear arms is applies to the states
  53. 53. A Check on Federal Power    The federal government can exceed their power The courts can get involved and invalidate federal laws Recent cases  Unite d Sta te s v . Lo p e z (1995)  Struck down a 1990 federal law aimed at banning firearms at schools, ruling was the Congress exceeded its power under the commerce clause  Jo ne s v. Unite d Sta te s (1999)  Limited the read of a federal arson law