Criminal Justice

Posted March 21, 2003

The foundation of U.S. criminal procedure is the U.S. Constitution, including the first 10 amendments, which form the Bill of Rights. Of the 23 separate rights noted in the first eight amendments to the Constitution, 12 concern criminal procedure. Criminal procedure refers to the constitutional, statutory and administrative limitations on police investigations -- searches of persons, places and things; seizures and interrogations -- as well as to the formal steps of the criminal process. The federal Constitution sets a floor, not a ceiling, on the rights of the citizenry.

Before World War II, these rights were held only to protect the individual against the federal government. Since World War II, practically all of these rights have been incorporated through the Fourteenth Amendment's due process clause and applied to state law enforcement as well.

Every state and the federal government has its own "substantive criminal law" (specifying crimes and defenses) and "criminal procedure" (specifying the stages of the criminal process from arrest through prosecution, sentencing, appeal and release from prison). Each state legislature promulgates that state's criminal law, which is enforced by state and county prosecutors, adjudicated in local and state-level courts, and punished in state prisons or local jails. Congress passes federal criminal laws, which are enforced, prosecuted, adjudicated and punished by federal law enforcement agencies, prosecutors, courts, prisons and probation and parole systems.

Which crimes are considered federal and which are considered state? In theory, congressional power is limited to the powers expressly enumerated in Section 1 of the Constitution. Offenses like counterfeiting U.S. currency, illegally entering the United States, treason, and violation of constitutional and federal statutory rights are obviously within the federal government's core jurisdiction. But, utilizing its expansive powers under the commerce clause and other elastic provisions, Congress has passed federal criminal laws dealing with drug trafficking, firearms, kidnapping, racketeering, auto theft, fraud, and so forth.

The governor of each state has the power to pardon or commute the sentences of offenders in that state. The president of the United States has similar authority for federal offenders. Frequently, the law provides for the appointment of a pardon board, which sifts through petitions, conducts investigations and makes affirmative recommendations to the chief executive. Governors, especially in the most prolific death sentencing states, are frequently called upon to commute death sentences. Unlike in many countries, general amnesties are not a part of American law nor
tradition.

Abridged from U.S. State Department IIP publication and other U.S. government materials.