Members

Blog Posts

Barkemeyer Law Firm Criminal Lawyers Near Me: All The Stats, Facts, And Data You'll Ever Need To Know

Substantive Due Process Analysis of the Incarceration of Drug Offenders

A. Framework

In Washington v. Glucksberg, Chief Justice Rehnquist defined the framework for substantive credited process analysis:

Our established method of substantive-due-process analysis has two primary features: First, we've frequently observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," and "implicit in the idea of ordered liberty," in a way that "neither liberty nor justice would exist if indeed they were sacrificed." Second, we've required in substantive-due-process instances a "careful explanation" of the asserted fundamental liberty curiosity. Our Nation's history, legal traditions, and procedures thus provide the crucial "guideposts for accountable decisionmaking," that direct and restrain our exposition of the Credited Procedure Clause. As we stated lately in Flores, the Fourteenth Amendment "forbids the government to infringe . . . 'fundamental' liberty interests at all, regardless of what process is offered, unless the infringement is definitely narrowly customized to serve a compelling condition interest."

Applying this method, one must first look at independence from incarceration to determine if it is a fundamental right. If so, authorities policies that want the incarceration of offenders, including drug offenders, must serve compelling interests and be narrowly tailored DWI lawyer New Orleans to attain them. This article assumes with regard to argument that drug problems bring about compelling state interests. It then reviews the passions asserted by the government in its pursuit of its drug war plans and the outcomes of these policies to determine if the policy of incarcerating drug offenders is narrowly tailored to those asserted passions.

B. THE ESSENTIAL Liberty Interest: Freedom from Incarceration

Federal and state laws and regulations subject drug offenders to incarceration. Incarceration is certainly a significant deprivation of https://en.search.wordpress.com/?src=organic&q=Louisiana arrests liberty that creates the protections of the Credited Process Clause. The Supreme Court has recognized this right on a number of occasions. In DeShaney v. Winnebago County DSS for instance, the court held:

[I]t is the State's affirmative work of restraining the individual's freedom to do something by himself behalf--through incarceration, institutionalization, or other comparable restraint of personal liberty--which is the "deprivation of liberty" triggering the protections of the Due Process Clause . . . .

Perhaps the earliest explicit recognition by the Supreme Court of freedom from incarceration simply because a fundamental right under substantive due process came in Allgeyer:

The 'liberty' mentioned in [the fourteenth] amendment means, not only the proper of the citizen to get rid the mere physical restraint of his person, as by incarceration, however the term is regarded as to embrace the right of the citizen to be free in the enjoyment of most his faculties; to be absolve criminal defense attorney near me Barkemeyer Law Firm to use them in all lawful methods; to live and work where he'll; to acquire his livelihood by any lawful calling; to pursue any livelihood or avocation; and for that purpose to enter all contracts which might be proper, required, and essential to his undertaking to an effective conclusion the purposes previously listed.

An 1891 law review article noted that Blackstone described "freedom from restraint of the individual" as "probably the most important of all civil legal rights," and that Lord Coke felt "the liberty of a man's person is even more valuable to him than everything else that's mentioned [in the Magna Charta]." Blackstone claims that "the rights of all mankind . . . could be reduced to three principal or principal articles; the proper of personal security, the right of personal liberty, and the right of private property." Indeed, the original Latin in the Magna Charta's "regulation of the property" clause uses the word "imprisonetur."

No courtroom has invalidated a criminal statute through the use of substantive due process analysis to the fundamental correct of freedom from incarceration. Simultaneously, no court offers ruled to the contrary. The Supreme Courtroom avoided the question in Reno v. Flores:

The "freedom from physical restraint" invoked by respondents isn't at issue in cases like this. Surely not really in the feeling of shackles, chains, or barred cells, given the Juvenile Care Agreement. Nor even in the feeling of the right to arrive and move at will, since, as we have said elsewhere, "juveniles, unlike adults, are always in some form of custody," and where in fact the custody of the mother or father or legal guardian fails, the government may (indeed, we've said must) either exercise custody itself or appoint someone else to do so.

This analysis would not connect with adult drug offenders. The Fourth Circuit also avoided addressing freedom from incarceration as a simple correct in Hawkins v. Freeman:

Hawkins's rhetorical reference to the right as being "independence from unjust incarceration," and that of amicus, American Civil Liberties Union of North Carolina, as the "right to be free from arbitrary incarceration," are issue-begging generalizations that cannot serve the inquiry. An adequately precise description can, however, be found in the facts and legal authorities relied upon by Hawkins in support of his state. From these, we deduce that the precise right asserted is definitely that of a prisoner to stay free of charge on erroneously granted parole as long as he did not contribute to or find out of the mistake and has for an appreciable period remained on great behavior to the idea that his expectations for continued independence from incarceration have "crystallized."

Hawkins is distinguishable since it deals http://www.thefreedictionary.com/Louisiana arrests with an inmate whose parole was revoked. In any event, the casual dismissal as an "issue-begging generalization" flies when confronted with nearly 800 years of common law custom and over a century of Supreme Courtroom decisions recognizing independence from incarceration as a fundamental right. Indeed the vocabulary of the Supreme Court's Ingraham decision works with the use of substantive due process proposed in this paper:

While the contours of the historic liberty interest in the context of our federal system of government have not been defined specifically, they will have been considered to encompass freedom from bodily restraint and punishment. It really is fundamental that the condition cannot hold and physically punish an individual except relative to due process of law.

The https://www.sharingmarketplace.com Courtroom also stressed this fundamental liberty interest in Foucha v. Louisiana, a case involving the confinement of a person found not guilty by reason of insanity:

Freedom from bodily restraint is definitely at the core of the liberty protected by the Thanks Process Clause from arbitrary governmental action. "It really is clear that dedication for any purpose takes its significant deprivation of liberty that requires due process protection." We have always been careful not to "reduce the importance and fundamental nature" of the individual's to liberty.

As the Foucha Court indicated that "circumstances might imprison convicted criminals for the purposes of deterrence and retribution," the remark was dicta and did not involve http://query.nytimes.com/search/sitesearch/?action=click&conten... any discussion of substantive limits on the authorities power. In Meachum v. Fano the Courtroom made a similar remark in the context of a case coping with prison conditions: "[G]iven a valid conviction, the criminal defendant offers been constitutionally deprived of his liberty to the degree that the Condition may confine him." Again there was no dialogue of substantive limits on the police power. Indeed the previous sentence noted: "The Due Procedure Clause by its own force forbids the State from convicting anybody of criminal offense and depriving him of his liberty without complying completely with criminal lawyer near me Barkemeyer Law Firm the requirements of the Clause."

Lately in Zadvydas v. Davis, the Court noted:

The Fifth Amendment's Thanks Process Clause forbids the federal government to "depriv[e]" any "person ... of ... liberty ... without due process of law." Independence from imprisonment--from government custody, detention, or various other types of physical restraint--lies in the centre of the liberty that Clause shields.

Freedom from incarceration is not just a fundamental right. It's the perhaps one of the most fundamental of rights.

C. Identifying the State's Interests

Governmental drug policy interests identified in federal statutes include "demand reduction," "supply reduction," and "reducing substance abuse and the consequences of drug abuse in the usa, by limiting the availability of and reducing the demand for illegal drugs."

Federal law sets particular goals for the National Drug Control Strategy. Included in these are:

"Reduced amount of unlawful drug use to 3 percent criminal lawyers near me of the populace";

"Reduction of adolescent unlawful drug use to 3 percent of the adolescent population";

"Reduction of the availability of cocaine, heroin, marijuana, and methamphetamine";

"Reduced amount of the respective nationwide typical street purity levels for cocaine, heroin, marijuana, and methamphetamine"; and more.

Views: 13

Comment

You need to be a member of On Feet Nation to add comments!

Join On Feet Nation

© 2024   Created by PH the vintage.   Powered by

Badges  |  Report an Issue  |  Terms of Service