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The judicial system divides responsibilities for prosecution and incarceration between the local, state, and federal levels. Advocacy and changes at each level are critical for ending mass incarceration.

Most crime legislation and prosecution is handled at the state level. However, the federal government can get involved through its ability to set conditions for funding projects such as prison construction. Additionally, some crimes, such as drug offenses, may violate both state and federal laws and may be charged at either level.

Federal involvement in criminal justice legislation has the potential to bring a degree of consistency to a patchwork of state criminal justice codes.

Federal involvement in criminal justice legislation has the potential to bring a degree of consistency to a patchwork of state criminal justice codes. However, in recent years, federal legislative involvement has had a negative effect on criminal justice, as Congress has passed laws dictating mandatory minimum sentences, extending the death penalty, and limiting death penalty appeals.

The federal government is also responsible for ensuring that constitutionally-guaranteed rights of all persons (convicts, defendants, and people on the street, alike) are not trammeled by the criminal justice system. For example,

  • The Fourth Amendment protects against unreasonable search and seizure.

  • The Fifth Amendment protects persons against double jeopardy and self-incrimination, and provides for due process.

  • The Sixth Amendment guarantees defendants a speedy and public trial, the opportunity to confront witnesses for the prosecution and to obtain witnesses for the defense, and to have counsel.

  • The Eighth Amendment protects against cruel and unusual punishments.

  • The Fourteenth Amendment assures equal protection of the laws for all in the U.S.

The Supreme Court may be called on to decide whether a particular practice violates one of these rights. However, when local or state governments are accused of practices that selectively violate the civil rights of people of color, the U.S. Department of Justice (DOJ) may get involved. The DOJ, which is responsible for enforcing federal anti-discrimination legislation, may initiate an investigation, develop a corrective action agreement, or take legal action against entities found guilty of discrimination.

Thus, all three branches of the federal government (legislative, judicial, and executive) may be involved in criminal justice activities at the state and local level.

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