Issues in the Criminal Justice System

There's no consensus on what constitutes the top highly contested issues in the criminal justice system, but these four make most lists: policing practices, drug policies, incarceration rates and the death penalty.

Several of the most contentious issues related to the criminal justice system today are reactions to what critics of the current system contend are flawed reactions to earlier problems. Important among these is today's growing dissatisfaction with the arrest rates of minorities, particularly young African-American males. Many of these arrests, critics have noted, are for relatively minor infractions, such as jaywalking.

This kind of zero-tolerance policing came about as a reaction to rising crime rates in the 1970s. Those in the criminal justice community who support the policy named it the "broken windows theory." In brief, it proposes that allowing minor offenses, like breaking windows, to go unpunished leads to general lawlessness in the community. Those who oppose this kind of rigorous policing claim it targets minorities as a means of social control without any offsetting social benefit.

Another current issue with roots in the 1970s is the treatment of drug use. Even liberal authorities like Nelson Rockefeller, New York governor from 1959 to 1973, thought the best way to reduce drug use was to criminalize it further – most of the targeted drugs had always been illegal in the United States – by prescribing longer prison terms. Anti-drug advocate, Attorney General Jeff Sessions, has stated bluntly that legalizing marijuana would inevitably "lead to violence."

Nonetheless, support for the legalization of marijuana reached new highs in 2018. Adults can legally use the drug in ten states and Washington DC, and 33 states have legalized the use of marijuana for medical purposes. Business Insider reports that there are now more legal marijuana dispensaries in Colorado than McDonald's and Starbucks stores combined. Advocates of drug legalization present statistical evidence showing that increasing the severity of punishments for drug use has little effect on drug use. Others point out that marijuana is a relatively benign drug that is less addicting than alcohol.

A 2015 Washington Post article on U.S. incarceration rates noted that, according to the Council of Europe Annual Penal Statistics, the median European prison population rate in 2013 was 133.5 inmates per 100,000 persons in the general population. In the United States, the rate was 478 per 100,000, about 3.5 times the median rate for Europe.

Even Americans as conservative as the Koch brothers think that too many Americans are imprisoned and further disadvantaged by excessive penalties. The disagreements over incarceration rates arise over both the causes of the situation and the remedies for it. Many attribute the high rate to an ill-advised war on drugs. Others believe it results from institutional racism. A view first proposed in 2017, however, presents statistical evidence that neither of these are primary causes. This theory suggests that the real problem is the imbalance between well-financed offices of district attorneys and underfunded and understaffed offices of public defenders, resulting in more than 90 percent of defendants accepting plea bargains rather than engaging in the unequal courtroom contest between prosecutor and public defender.

The United States is the only country in the seven leading industrial nations that still executes prisoners. Opponents of the death penalty provide statistical evidence showing that states with death penalties do not have lower murder rates than states without them.

Yet despite arguments against the death penalty, as of 2016 it remained in force in 31 states. Perhaps the most important reason for this is that the American public supports the penalty by a two-to-one margin. Until this changes, many states will very likely continue to impose the death penalty no matter how many arguments opponents of the penalty put forward.