Fluent Essays

Please see attached the assignment details/rubric and course materials. The assignment MUST be at least 5 pages (1 page per question), APA format, and MUST use the attached course materials. THIS IS DUE SATURDAY! Please do not accept this assignment if you cannot meet this short time constraint. Assignment 4 Hide Assignment Information Instructions A little background: As you have learned, Criminal Justice is a system comprised of police, courts and corrections.  As such, decisions made by one person/group of people in one part of the system affects the others. It is important to understand the various components of the system to be able to analyze the impact that their interactions and inter- relatedness have on the administration of justice. The study of Criminal Justice involves cumulative learning and thought. At this point, you have learned about the different systems and now it is time to apply what you have learned! Directions:  For this assignment you are to reflect upon the course material that you read. Please answer each of the following questions as thoroughly as possible and be sure to back up your answers with scholarly resources.  1. What are the main components of the Criminal Justice system? 2. How are these components interrelated? 3. How might these components conflict? 4. Based off of your answers in questions 1-3; describe the steps of the criminal justice process and the role that each component plays within each step.  Specifically describe the decision making points that influence the next step in the process. (hint: be sure to look at the chart of the steps of Criminal justice contained in the week 1 readings). 5. In your opinion, how does the interrelatedness and interactions between the components affect the administration of justice? Format Requirements: Paper must be double spaced, 11 or 12 pt font and 1”margins all around. All APA 7th edition format requirements must be followed (cover page, in text citations, reference page). Refer to APA/UMGC - learning resources found in the content page of this course. You must have resources to support your thoughts/opinions/information.  These must be cited both in text as well as at the end of the document. Your paper should not contain direct quotes, sourced material must be paraphrased. Questions should be answered in 1, 2, 3, 4, 5 format javascript:// While there is not a firm page requirement, it is expected that to thoroughly answer these questions, your assignment will likely be a minimum of 2 pages and a maximum of 5 100 Assignment #4 Rubric Course: CCJS 100 6980 Introduction to Criminal Justice (2215) / 20 Criteria Exceeds Expectations Meets Expectations Approaching Expectations Below Expectations Criterion Score Content 20 points Student clearly, fully and superbly listed and described the main components of the CJ system Student used at least 3 resources to describe the main components Students demonstrated exemplary critical thinking by describing how each component is interrelated and gave excellent specific examples Student gave 3 or more examples of how each component may conflict Student described 2 or more decision making points in each step of the CJ process and clearly articulated how each decision 17.9 points Student clearly and fully listed and described the main components of the CJ system Student used at least 2 resources to describe the main components Students demonstrated critical thinking by describing how each component is interrelated and gave specific examples Student gave 2 or more examples of how each component may conflict Student described 2 or more decision making points in each step of the CJ process and mostly articulated how each decision point affects the next 15.9 points Student listed and described the main components; some description is lacking or missing Student used 1 resources to describe the main components Student did not demonstrated critical thinking when discussing how components may be interrelated; did not give specific examples Student gave 1 example of how each component may conflict; did not discuss each component Student did not describe all decision making points; incorrectly described or lacked articulation of relationship and 13.9 points Student did not fulfill one or more requirements for this assignment Points available D: 12-13.9 Points available F: 0-11.9 Paragraph Lato (Recom… 19px Criteria Exceeds Expectations Meets Expectations Approaching Expectations Below Expectations Criterion Score point affects the next Student provided at least two ways in which the administration of justice is affected by the interrelatedness and interactions of components Student demonstrated exemplary command of CJ process; demonstrated exemplary critical thinking throughout the assignment Points available: 18-20 Student provided at least one way in which the administration of justice is affected by the inter-relatedness and interactions of components Student demonstrated sound command of CJ process; demonstrated critical thinking throughout most of the assignment Points available: 16- 17.9 its effect on next step Student did not provide ways in which the administration is affected by the inter-relatedness and interactions of components Student demonstrated marginal command of CJ process; demonstrated marginal critical thinking Points available: 14- 15.9 Total / 30 Overall Score / 10 Criteria Exceeds Expectations Meets Expectations Approaching Expectations Below Expectations Criterion Score Format/Gram mar/Spelling/ Timeliness 10 points Student followed APA format correctly (Cover page, in text citations and reference page) Student followed all format directions for this assignment Student had no more than 1 grammar or spelling error Student submitted assignment on time Points available: 9-10 8 points Student mostly used APA format correctly, but does have one or more errors (Cover page, in text citations, reference page) Student mostly followed all format directions for this assignment but has 1 or more errors Student submitted assignment on time Points available: 8-8.9 6 points Student did not follow APA format correctly and has two or more errors (Cover page, in text citations, reference page) Student mostly followed the format directions for this assignment but has 2 or more errors student submitted assignment on time or within 2 days of deadline passing Points available: 7-7.9 4 points Did not fulfill format/grammar/ spelling/timeline ss expectations for this assignment Assignment was past due date Points available D: 6-6.9 Points available F: 0-5.9 Exceeds Expectations - Equivalent to an A 27 points minimum Meets Expectations - Equivalent to an B 24 points minimum Approaching Expectations - Equivalent to an C 21 points minimum Below Expectations - Equivalent to a D or an F 0 points minimum Introduction to Criminal Justice Section 4.1: Early History of Policing Prepared by Adam J. McKee 1 English Origins The legal system of the United States traces its roots back to the common law of England. The enforcement of those ancient laws was the responsibility of a criminal justice system that grew and evolved over a protracted period. 2 English Heritage The protections against the abuse of police power that Americans enjoy today have their roots in English constitutional documents such as the Magna Carta . Important features of modern American policing attributable to its English colonial past: 1. Legally limited police authority 2. Decentralized organizational structure 3 Ancient Policing Historians and anthropologists regard the earliest system of law enforcement as kin policing . In this primitive system, members of a clan or tribe banded together to enforce the rules of the group on rogue members. The essence of kin policing was the idea that an attack on one member of the group was tantamount to an attack on the entire group. 4 Formal v. Informal Note that this method was extremely informal: there were no courts or written system of laws. Behavioral expectations were derived from group norms and customs. When formal, written laws emerged, the need to enforce those laws emerged concurrently. 5 Ancient Codes King Hammurabi of Babylon is credited with the first written criminal code. The Code of Hammurabi was carved in large stones in the tenth century B.C. The codes of ancient Greece and Rome have had an influence on Western law, as has the Mosaic Code . 6 The Mutual Pledge System Among the earliest documented Western systems of law and law enforcement was the mutual pledge system . The mutual pledge system consisted of groups of ten families bound to uphold the law, bring violators to court, and keep the peace. These groups of ten families were known as tithings . Each tithing was governed by a tithingman . 7 How The System Worked All men over the age of twelve were required to raise the hue and cry when a crime was detected, and pursue the criminal with all of the men of the tithing. A group of ten tithings was called the hundred , and the office of constable developed out of this organizational unit. If a criminal could not be produced in court, then the Crown could fine the entire hundred. In other words, every man was responsible for the conduct of every other man. 8 The Shire-Reeve Hundreds were combined into administrative units known as Shires (or Counties), under the jurisdiction of the shire -reeve . The shire -reeve, whose job it was to maintain the Kings peace in the Shire, was later shortened to the modern term sheriff. Th e s h e riff h a s t h e p o we r t o ra is e a ll a b le -b o d ie d m e n in t h e co u n t y t o p u rs u e a crim in a l. Th is p o we r wa s kn o wn b y t h e La t in p h ra s e p o s s e co m it a t u s . 9 The Norman Era In 1066, the Normans invaded England and seized the throne. The Norman King, William the Conqueror, quickly modified the mutual pledge system to aid in the consolidation of his power. The modified system —known as the frankpledge system —was a tightening of the system then Normans found in place. 10 The Constable System By the end of the thirteenth century, the constable system had developed into the system of rural law enforcement common to all of England. The office of constable was filled by yearly elections within each parish (a religious division similar to a County). The constable had the same responsibility as the tithingman, with the additional duties of being a royal officer. 11 Urban Policing In urban areas, the watch and ward system developed along similar lines. Officers of the watch would guard the town gates at night, conduct patrols to prevent burglary, arrest strangers appearing at night, and put out fires. By the 1361 A.D., the old system had given way to constables working under justices of the peace. This system would remain in place until the industrial revolution. 12 Colonial America When the early colonists set up a system of laws and law enforcement in America, they brought the common law system of England with them. In this early system, the county sheriff was the most important law enforcement official. The duties of the sheriff in those times were far more expansive than they are today. 13 Many Hats Then the sheriff collected taxes, supervised elections, and so forth. As far as law enforcement goes, the role of the sheriff in colonial America was completely reactive. If a citizen complained, the sheriff would investigate the matter. If evidence could be collected, an arrest would be made. There were no preventive efforts, and preventive patrol was not conducted. 14 Decentralization The United States has followed a different path than many other countries. Whereas many western nations have national police forces, the United States is still very fragmented. Policing is done mostly on the local level. One term for this decentralized . 15 Criticisms of Decentralization While there are some rather abstract political advantages to a decentralized system of law enforcement, it is not without cost. Many critics call for the amalgamation and centralization of police forces, citing a wide variety of reasons such as preventing wasted effort and wasted resources. The decentralized nature of modern American policing stems from its roots in the English past. 16 The Met In 1829, Home Secretary Robert Peel convinced the Parliament in England to pass the Metropolitan Police Act. The primary purpose of the Act was to do away with the ineffectual patchwork of policing measures then practiced in London, and establish an around the clock, uniformed police force charged with preventing disorder and crime. 17 Peel’s Innovations Peel is credited with many innovations that became standard police practice around the world. A major shift was an effort at crime prevention rather than “raising the hue and cry” after a crime was committed. In other words, the focus of policing efforts shifted from reactive to proactive . This shift meant that the new police force was tasked with preventing crime before it occurred rather than responding to it after the fact. 18 Preventive Patrol A key element of this proactive strategy was preventive patrol . Police constables became known as “Bobbies” after Robert Peel. The city of London was divided up into beats, and the Bobbies were ordered to patrol their beats on foot. The idea was that the presence of these uniformed officers on the streets would deter crime. 19 Military Character The militaristic nature of most modern police forces was also one of Peel’s innovations. He used a military -style organizational structure, complete with ranks like sergeant, lieutenant, and captain. While commonplace now, military -style uniforms were an innovation. Command and discipline were also conducted along military lines. 20 Why We Didn’t Nationalize It was not long before the value of such police forces was noted by America’s largest cities and the idea was selectively imported. The main element of the British model that Americans rejected was the nationalization of police services. Americans at the time were still fearful of strong central authority, and elected to establish police forces on a local level. 21 Political Influence While arguably more democratic, decentralized police forces organized on the local level were not nearly as well insulated from local politics as their British counterparts. Political leaders were able to exert a large amount of influence over police hiring, policy making, and field practices. 22 Policing in America There is some debate amongst the concerned departments as to whether Boston or New York City was the first modern police force in the United States. Boston’s day watch was established in 1838, and many credit this as the first modern police force. New York City formed its police force in 1844. Most other large cities soon followed suit, and full -time, salaried officers became the norm. 23 Early Problems Early police forces were highly political. Graft and corruption were rampant. Police ranks were filled with officers of particular ethnic groups to garner votes for particular politicians. Criminals paying off the police to ignore vice crimes was also common. Policing was more about political advantage than protecting public safety in many neighborhoods. 24 The Political Era Efforts to eliminate corruption were doomed from the start because the very politicians that had the power to end it benefited from it. This period from approximately 1940 to 1920 has become known as the political era of policing due to these political ties. 25 The Reform Era The end of the 19 th century saw progressive thinkers attempt to reform the police. Progressivism was a broadly focused political and social movement of the day, and the police were swept up in this wave of progress, improvement, and reform. The status quo of policing would not withstand its momentum. A primary objective of the police reformers of this era was to reduce substantially the power of local politicians over the police. 26 Civil Service An important reform was the institution of civil service . The aim of civil service was to make selection and promotion decisions based on merit and testing rather than by the corrupt system of political patronage of the previous era. Within police circles, the progressive movement spawned an interest in the professionalization of policing. Model professional police departments would be highly efficient, separated from political influence, and staffed by experts. 27 Introduction to Criminal Justice Section 4.2: The Structure and Nature of Policing Prepared by Adam J. McKee 1 The Myth Perhaps the most enduring myth of criminal justice is the actual role of the police officer in our society. From early television programs such as Dragnet u p t o t o d a y’s m o s t co m p e llin g crim e d ra m a s , co p s live a life fu ll o f d a n ge r, a lwa ys e n co u n t e rin g d a n ge ro u s fu git ive s , s e ria l kille rs , a n d o t h e r villa in s t h a t m u s t b e o u t wit t e d , o u t fo u gh t , a n d o u t gu n n e d . 2 The Reality Of course, danger is part of the police job. It is a mistake to assume that this is the only job that the police do. Most of what the police do on a daily basis is to deal with what Herman Goldstein (1990) called “the residual problems of society.” 3 Police Functions Movies and television have defined the role of the police in the popular imagination as that of “crime fighter.” In reality, catching “bad guys” and investigating crimes is only a small fraction of what the police are called upon to do every day. Calls for social services order maintenance tasks are far more common. 4 Police Problems A large fraction of the average police officer’s shift is spent helping people with problems that have nothing to do with apprehending felons. People get hurt in automobile accidents, and police officers are there to render aid. People lose things ranging from cell phones to children, and expect the police to help find them. 5 The Average Day Some authors estimate that well over fifty percent of calls for police services involve these kinds of social service tasks. By comparison, these same authors estimate that only about 20\% of calls for police services relate to crime. 6 Arrests & Order Maintenance Many law enforcement activities have to do with keeping society running smoothly. These things —such as traffic control, crowd control, and moving prostitutes off the streets —are frequently referred to as “order maintenance” activities. A key difference between law enforcement and order maintenance is that order maintenance activities are not generally concerned with the letter of the law, but rather keeping the peace. 7 Informal Solutions Arrest is always an option when an officer is trying to preserve the peace, but less formal solutions are far more commonly employed. For example, when the driver of a stopped car that is blocking traffic complies with an officer’s request to move along, no citation is issued. 8 Police Functions The American Bar Association (1986), in a document called Standards Relating to the Urban Police Function, lists 11 responsibilities of the police: (a) identify criminal offenders and criminal activity and, where appropriate, to apprehend offenders and participate in subsequent court proceedings; (b) reduce the opportunities for the commission of some crimes through preventive patrol and other measures; (c) aid individuals who are in danger of physical harm; 9 Police Functions (Cont.) (d) protect constitutional guarantees; (e) facilitate the movement of people and vehicles; (f) assist those who cannot care for themselves; (g) resolve conflict; (h) identify problems that are potentially serious law enforcement or governmental problems; 10 Police Functions (Cont.) (i) create and maintain a feeling of security in the community; (j) promote and preserve civil order; and (k) provide other services on an emergency basis. 11 24/7 The last element in this list provides the primary reason why the police are called upon to deal with the “residual problems” of society : There is no one else available twenty -four hours a day, seven days a week . 12 Police and the Use of Force Another key factor that makes the police unique is what some authors have referred to as a “monopoly on the use of force.” The authorization to use force means that the police hold a position of great power within our society, and this translates into a great responsibility to use that force ethically. 13 Police Discretion Despite all of that power, there is a trend among policing experts to call for broad discretion for police officers. Officers who have their hands bound by excessive policies and procedures cannot solve community problems. Officers must have the authority to identify community problems, tailor solutions to those problems, and implement those solutions. 14 Even in departments where community policing is not the dominant p a ra d igm , o ffice rs s t ill h a ve a gre a t d e a l o f d is cre t io n . Fo r e xa m p le , o ffice rs d e cid e ● wh o ge t s a wa rn in g ● wh o ge t s a cit a t io n ● wh o is a rre s t e d Office rs d e cid e wh e n fo rce is n e ce s s a ry. 15 The Decision to Arrest Some obvious factors are used by officers when making a discretionary decision. The seriousness of a crime and the strength of evidence are factors in the decision to make or not make an arrest. Personal factors also come into play; researchers discovered long ago that the demeanor of the suspect plays an important role in the decision to arrest. Respectful and deferential citizens are less likely to be arrested than rude or belligerent ones. 16 The Structure of Policing Local police departments make up more than two -thirds of the 18,000 state and local law enforcement agencies in the United States. BJS defines a local police department is a general purpose law enforcement agency, other than a sheriff’s office, that is operated by a unit of local government such as a town, city, township, or county. Tribal police are classified as local police BJS statistics. 17 Local Law Enforcement In 2008, local police departments had about 593,000 full -time employees, including 461,000 sworn officers. About 60\% of all state and local sworn personnel were local police officers. 18 The FBI The Federal Bureau of Investigation (FBI): The FBI is housed within the United States Department of Justice. The FBI is rather unique in that it has both law enforcement and national security concerns as part of its mission. As the FBI’s Mission Statement puts it, they are a “... national security organization with both intelligence and law enforcement responsibilities…” 19 The Bureau of Alcohol, Tobacco, and Firearms (ATF) The ATF has a reputation for dealing with illegal firearms. Its mission is rather broader in reality. Housed within the United States Department of Justice, the ATF protects American communities from violent criminals, criminal organizations, the illegal use and trafficking of firearms, the illegal use and storage of explosives, acts of arson and bombings, acts of terrorism, and the illegal diversion of alcohol and tobacco products . 20 The Drug Enforcement Administration “The mission of the Drug Enforcement Administration (DEA) is to enforce the controlled substances laws and regulations of the United States and bring to the criminal and civil justice system of the United States, or any other competent jurisdiction, those organizations and principal members of organizations, involved in the growing, manufacture, or distribution of controlled substances appearing in or destined for illicit traffic in the United States; and to recommend and support non -enforcement programs aimed at reducing the availability of illicit controlled substances on the domestic and international markets” 21 The U.S. Marshals Service The U.S. Marshals Service (USMS) is the nation’s oldest and most versatile federal law enforcement agency. Federal Marshals have served the country since 1789, often times in unseen but critical ways. The USMS is the enforcement arm of the federal courts, and as such, it is involved in virtually every federal law enforcement initiative. Presidentially appointed U.S. Marshals direct the activities of 94 districts — one for each federal judicial district. 22 The Secret Service : The United States Secret Service began as an agency dedicated to the investigation of crimes related to the Treasury, and then evolved into the United States most recognized protection agency. The Secret Service was a part of the Department of the Treasury until March 1, 2003, when it became a part of the Department of Homeland Security. 23 The Secret Service Mission The mission of the United States Secret Service is to safeguard the nations financial infrastructure and payment systems to preserve the integrity of the economy, and to protect national leaders, visiting heads of state and government, designated sites and National Special Security Events. 24 The Citizenship and Immigration Service (USCIS) U.S. Citizenship and Immigration Services is the government agency that oversees lawful immigration to the United States. USCIS will secure America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system. The agency is composed of over 19,000 government employees and contractors of USCIS working at 223 offices across the world. 25 Transportation Security Administration (TSA) The primary mission of the TSA is to protect travelers and interstate commerce . TSA uses a risk -based strategy and works closely with transportation, law enforcement, and intelligence communities to set the standard for excellence in transportation security . 26 State Law Enforcement Every state in the United States has a state -level police force with the exception of Hawaii. The largest of these state -level agencies is the California Highway Patrol. One of the major purposes of the state police in most jurisdictions is to provide patrol services, especially on remote highways where local law enforcement is sparse. 27 State Police Roles State police are often called upon to aid local law enforcement in criminal investigations that are complex or cross local jurisdictional lines. Often they are responsible for maintaining centralized criminal records for the state, operating crime labs, and training local officers. 28 Policing in America In the United States today, there is a Hollywood generated myth that the federal government does major fraction of the law enforcement workload. This is not true. The vast majority of criminal cases are generated by local agencies such as sheriffs’ departments and local police departments. 29 Sheriffs’ Departments An estimated 3,012 sheriffs’ offices performing law enforcement functions in the United States employed 369,084 sworn and civilian personnel. Sheriffs’ offices represented approximately a fifth of the estimated 15,600 general -purpose law enforcement agencies operating in the United States. Although sheriffs’ offices may have countywide responsibilities related to jail operation, process serving, and court security, their law enforcement jurisdictions typically exclude county areas served by a local police department. 30 Local Police Departments About half of local police departments employed fewer than 10 sworn personnel, and about three -fourths served a population of less than 10,000. In 2007, about 1 in 8 local police officers were women, compared to 1 in 13 in 1987. About 1 in 4 officers were members of a racial or ethnic minority in 2007, compared to 1 in 6 officers in 1987. 31 Wilson’s Police Management Styles James Wilson (not to be confused with O. W. Wilson), identified three police management styles: The watchman style of management focuses on order maintenance. Officers often ignore minor violations of the law, unless the violation constitutes a breach of the peace. Minor violations and disputes between citizens are largely handled in an informal way. 32 The Legalistic Style The legalistic style tends to handle matters formally. In other words, policing is done “by the book.” The administrative emphasis is on reducing line officer discretion and effecting unvarying, impartial arrests for all violations. 33 The Service Style The service style emphasizes community service above enforcing the law. Arrest is often seen as a last resort, used only when referrals to social service organizations and agencies will be ineffectual. 34 Quasi-military Features As one of Peel’s major innovations, the organization of police agencies along military lines has withstood the test of time. Police officers in most jurisdictions still wear uniforms, carry weapons, and have military ranks. These ranks suggest a military style, authoritarian command structure where orders come down from the top. 35 Introduction to Criminal Justice Section 4.3: Police Methods Prepared by Adam J. McKee 1 Traditional Police Methods For most of its history in America, the work of the patrol officer and the investigator constituted the vast majority of police work . Uniformed officers patrolled the streets of America’s cities, serving as a highly visible deterrent to crime and attempting to catch criminals in the act. If patrol failed, the investigator’s job was to follow up, solving crimes by questioning victims, witnesses, and suspects . 2 The Proactive Shift Only since the 1960s has empirical research highlighted the limits of both preventive patrol and criminal investigations in dealing with America’s crime problem. It was not until the early 1990s that this research spawned a new wave of police reform aimed at proactive policing strategies. These proactive strategies meant that police efforts would shift (at least to some degree) from responding to calls for service to initiating action. 3 Patrol Patrol is often called the “backbone” of the police department, and for good reason. Patrol consumes most of the average police department’s resources. The basic philosophy and strategy of preventive patrol has not changed from Peel’s time: the patrol officer makes circuits through a specified area, often called a beat. During Peel’s time, most patrols were done on foot, with the occasional horse patrol. 4 Technology and Change Technology ushered in the automobile, and modern police forces take full advantage of the benefits offered by cars. The most important of these advantages is the area that a single officer can cover. Automobile patrol officers can cover much wider beat areas than officers on foot. 5 Police Cars The bottom line is that because an officer in a car can cover a much wider geographic area, departments need fewer officers. This translates into huge savings. Automobile patrol is much cheaper than foot patrol. 6 Patrol Effectiveness The effectiveness of patrol operations within a department is usually judged by three major functions. These include 1. answering calls for service 2. deterring crime by a highly visible police presence 3. investigating suspicious circumstances Of these three major functions of patrol, crime deterrence is the most controversial. 7 Does Patrol Deter Crime? The historical assumption, stemming from Peel’s day, was that a highly visible officer patrolling a beat would serve as a deterrent to would -be criminals. Research evidence since the 1970s has supported the idea that random preventive patrol has very little if any impact on crime. 8 The Kansas City Preventive Patrol Experiment In the 1970s, criminal justice researchers began to question the underlying assumption of preventive patrol. They designed an experiment to find out of preventive patrol reduced crime and made citizens feel safe from crime. They also wondered about patrol strength. Did the number of officers on patrol in a given area have an impact on both actual crime and citizens’ perceptions of crime? 9 The Results What the researchers found staggered the world of policing: There was almost no difference in actual crime or citizens fear of crime. Citizen’s opinions about how good a job the police were doing did not change. It seemed that law -abiding citizens and criminals alike simply did not notice the changes. As one would expect, this caused a flurry of opinions to come out regarding the interpretation of these findings. 10 Fundamental Changes Some argued that the findings must be wrong, and that preventive patrol was and always had been a good thing. Others argued that patrol was just a bad idea and that the police should focus on different things. Many stood the middle ground, focusing on making patrol more effective by changing the way it was done. One of the few things that almost all commentators agreed on was that just pouring more officers out on the street would have little impact on crime. 11 The Nature of the Paradigm Shift Proactive patrol operations shift from random to targeted. Specifico ffe n d e rs , specific p la ce s , a n d specific t yp e s o f vict im s a re co n s id e re d . Myria d t a ct ics fa ll u n d e r t h is ge n e ra l p h ilo s o p h y: ● u n d e rco ve r o p e ra t io n s ● t h e u s e o f in fo rm a n t s ● u s in g d e co ys ● s a t u ra t in g p ro b le m a re a s ● fre q u e n t p a t ro ls o f “h o t s p o t s ” 12 It’s Not a Random Problem An important argument in how to better utilize patrol is that random patrols do not work well because crime is not a random phenomenon. While it may seem fair, giving every neighborhood in a city an equal amount of police time and resources is horribly inefficient. A smarter use of resources is to concentrate police resources in high crime areas, and limit resources in areas that experience very little crime. 13 The Research Findings Research evidence suggests that this strategy does indeed have a positive impact on crime. Researchers found that the 911 system received a heavy amount of calls for service from a small number of locations. Brief periods of intensive patrolling in those high crime areas effectively reduced robberies and other crimes. 14 Example Strategies Other strategies, such as those used in the San Diego Field Interrogation Study, have shown that aggressively interrogating suspicious persons can lead to a reduction in both violent crime and disorder. The New York City Street Crimes Unit has had success using decoys to apprehend repeat offenders. By having an undercover officer play a “perfect victim,” officers were able to increase dramatically arrests of muggers. 15 Problem Oriented Policing The traditional model of policing in the United States was decidedly reactive in nature. The primary methods used by police were preventive patrols and retroactive investigations. Early efforts at innovation were designed to be proactive, but they focused on the deterrence of crime through a limited toolbox of arrests, summons, and citations. 16 … Introduction to Criminal Justice Section 5.1: State and Federal Courts Prepared by Adam J. McKee 1 A Complex System The U.S. court system is very complex due to dual federalism . Ea ch le ve l o f go ve rn m e n t —s t a t e , lo ca l, a n d fe d e ra l—h a s it s o wn co u rt s . Pe rh a p s t h e e a s ie s t crim in a l co u rt s ys t e m t o u n d e rs t a n d is t h e fe d e ra l s ys t e m . 2 Who Hears a Case? When an act violates a federal criminal law, the suspect is tried in federal court. When a suspect violates a state law, it can be tried at the local or state level, depending on the state. 3 Many Courts, Many Differences No two of the fifty state courts are exactly alike. The federal government operates courts within each of the fifty states. The vast majority of criminal cases are tried in state courts. Most state court systems and the federal court system can be described as hierarchical or “pyramid shaped.” 4 Lower Courts At the bottom of the court hierarchy are the lower courts . Th e m a jo rit y o f ca s e s h e a rd b y t h e s e co u rt s a re t ra ffic vio la t io n s a n d m is d e m e a n o r ca s e s . Th e n a m e s va ry wid e ly, d e p e n d in g o n t h e s t a t e : Mu n icip a l co u rt s , p o lice co u rt s , a n d t ra ffic co u rt s a re co m m o n e xa m p le s . Th e re a re a ls o m a n y s p e cia lize d co u rt s a t t h is le ve l: Ju ve n ile co u rt s o ft e n e xis t a t t h is le ve l. 5 Duties of the Lower Courts These courts tend to hear relatively minor matters. Many can, however, sentence violators to jail and impose large fines. Some of these courts also deal with preliminary matters in criminal cases, such as conducting arraignments and preliminary hearings. These felony cases are subsequently transferred to a higher court for trial. Many people —especially those appearing in them —are critical of the “assembly line” justice offered by many municipal courts. 6 Courts of General Jurisdiction While the lower courts can only hear nonserious matters, this level of the court system can hear felony cases. Courts of general jurisdiction a re t h e t ria l co u rt s o f re co rd o f t h e s t a t e co u rt s ys t e m s . Ge n e ra lly, t h e s e co u rt s o p e ra t e m o re fo rm a lly a n d p ro fe s s io n a lly t h a n t h e lo we r co u rt s . Th e re a re fe we r o f t h e m . 7 What Are They Called? The name varies depending on the state; in some states, they are called district courts, and in others, they are called circuit courts. This can be very confusing in states that are the reverse of the federal system (where district courts are trial courts and circuit courts are appellate courts). 8 Work Load Only a small fraction of cases filed by prosecutors ever go to full trial in these courts. The vast majority end in a plea bargain. 9 Courts of Appellate Jurisdiction When a party is dissatisfied with the results of a trial, then they can appeal to a higher court. Appellate courts m o s t ly h e a r a p p e a ls ca s e s , a n d a re h igh e r u p in t h e co u rt h ie ra rch y. Th e n u m b e r o f le ve ls o f a p p e a ls co u rt s d e p e n d s la rge ly o n t h e p o p u la t io n o f t h e s t a t e . 10 State to State Differences In states with relatively small populations, the losing party at trial can appeal directly to the state’s highest court, the state supreme court . In larger states, there is usually an intermediate appeals court that lightens the workload of the state supreme court . The supreme courts usually have a broad discretion in deciding whether to hear a case or not . The judges are free in many circumstances to decide what cases are important, and to only hear those . 11 The Federal Court System Federal courts are organized along very similar lines to state courts, although the more general subject matter jurisdiction of federal courts makes them more streamlined that many state systems . 12 U.S. District Courts In the hierarchy of courts, the trial courts of general jurisdiction are always near the bottom. At the federal level, these workhorses of the court system are the 94 U.S. District Courts . Eve ry s t a t e in t h e Un it e d St a t e s h a s a t le a s t o n e d is t rict co u rt , a n d s o m e s t a t e s h a ve s e ve ra l. 13 U.S. Courts of Appeals Above the federal district courts in the federal court hierarchy are the U.S. Courts of Appeal . Th e y s e rve m o s t ly t o h e a r a p p e a ls fro m t h e d is t rict co u rt s . Ap p e a ls ju d ge s d o n o t s it a lo n e wh e n d e cid in g ca s e s , b u t ra t h e r s it in p a n e ls o f t h re e ju d ge s . Ra r e a n d im p o rt a n t ca s e s a re s o m e t im e s h e a rd en banc , m e a n in g a ll o f t h e ju d ge s in th a t cir cu it h e a r th e ca s e to ge t h e r . 14 U.S. Supreme Court The U.S. Supreme Court crowns the hierarchy of United States Courts. It hears appeals that come out of both federal and state courts. Considering there are only nine justices, the workload of the Supreme Court is very heavy. 15 What Cases are Heard? The Supreme Court is different than lower level courts in that they exercise certiorari power. Th is m e a n s t h a t t h e ju s t ice s ge t t o d e cid e wh ich ca s e s t o re vie w a n d wh ich t o p a s s o ve r. Th e ca s e s t h a t t h e y d o s e le ct t e n d t o h a ve ve ry b ro a d n a t io n a l im p lica t io n s . Be ca u s e t h e Su p re m e Co u r t fu n ct io n s m o s t ly a s a co u rt o f a p p e a ls , m o s t o f t h e ca s e s t h e y d e cid e re s u lt in a lo we r co u rt ’s d e cis io n e it h e r b e in g affirmed o r reversed . 16 Problems with the Courts One of the biggest problems facing the courts today is the high volume of cases. For example, in 2013, combined filings for civil cases and criminal defendants in the U.S. district courts totaled 363,914. According to the Court Statistics Project, o ve r 10.6 m illio n ca s e s we re p ro ce s s e d in s t a t e t ria l co u rt s in 2009 (t h e la s t ye a r fo r wh ich d a t a is a va ila b le ). 17 The Impact of “Get Tough” Laws The tough drug sanctions of the recent past caused a steadily increasing caseload for the courts . A majority of state courts are perpetually behind on hearing cases. Accordingly, there has been an increasing interest on both the state and federal level with how to reduce caseloads and speed up the flow of cases. 18 Perhaps t h e m o s t p o p u la r e ffo rt t o re d u ce ca s e lo a d s h a s b e e n t h e a d ve n t o f drug courts . A b ig d iffe r e n ce b e t we e n d ru g co u rt s a n d re gu la r co u rt s is t h a t d ru g co u rt s t e n d to s e n t e n ce n o n vio le n t , firs t -tim e o ffe n d e rs t o d ru g t re a t m e n t ra t h e r t h a n p ro b a t io n o r p ris o n . Th e m a in p u rp o s e s o f d ru g co u rt s a re t o re d u ce re cid ivis m a n d re d u ce th e ca s e lo a d o f t h e re gu la r co u rt s . Th e e m p irica l re s e a rch s u gge s t s t h a t d ru g co u r t s a re m o r e e ffe ct ive a t r e d u cin g r e cid ivis m t h a n t ra d it io n a l p ro b a t io n o r p r is o n . 19 Reducing Caseloads Speeding Up the Courts When there are too many cases being processed by the courts, the speed at which cases can be processes slows down, sometimes dramatically . This is especially problematic in criminal courts where defendants have a constitutional guarantee of a speedy trial . For this and other reasons, the public is dissatisfied when case resolution becomes a long, drawn -out process . 20 The Speedy Trial Act of 1974 At the federal level, there has been legislation to force the courts to run faster . The Speedy Trial Act of 1974 sets time standards for two different stages in the federal progression . The law stipulates that the prosecutor has a maximum of thirty days from the time of arrest to arraign a suspect, and an additional seventy days from the indictment to the trial . Every state has followed the federal example by enacting some form of speedy trial law . 21 The Role of Judges The many responsibilities of the trial court judge extend throughout the entire criminal court process . From the time of an arrest, judges make critical decisions that have a deep impact on the cases and lives of those accused of crimes . Because they must evaluate probable cause and issue search and arrest warrants, judges are often involved in criminal cases before an arrest takes place. 22 Functions of Trial Judges Once the offender is arrested, the judge must decide if bail is to be granted, the amount of bail, rule on pretrial motions made by both the prosecution and the defense, hear pleas, referee trials, and pass sentences . At all stages of the process, the judge must perform a balancing act, protecting the rights of the accused while also protecting the best interest of the public . 23 Functions of Appellate Judges Appeals court judges have different responsibilities than trial judges . While trial judges are mostly referees in the adversarial battle between prosecution and defense, appeals court judges serve as legal scholars by researching, clarifying, and writing opinions on legal issues. 24 Federal Judges Federal judges tend to be the cream of the crop . They tend to come from families with a long history of public service and attend the finest law schools in the world . Some critics argue that those families are also wealthy, and that federal judges are selected from the social and cultural elite and that the process is unfair . 25 State Judges and Politics State level judges tend to be drawn heavily from whichever political party dominates that particular state . There are a variety of ways that judges are selected, depending on state law . Some states have partisan elections, meaning that candidates for judgeships run under the banner of a particular political party . 26 Other Methods of Selecting Judges In other states, judges are elected, but they run as nonpartisan candidates, meaning that they state no allegiance to a particular political party. Some states use an appointment system, where the governor of the state appoints judges. Still other states select judges by legislative appointment. Some states, such as Missouri, use a merit system. 27 Judicial Decision Making The very nature of being a judge requires making important decisions . Judges make decisions that have an enormous impact on the lives of defendants . Trial court judges are often called upon to make decisions in an instant, while appeals court judges have more time to ponder weighty issues and seek input from colleagues and staff . 28 Stare Decisis Because of the doctrine of stare decisis , t h e d e cis io n s o f ju d ge s a r e t e m p e r e d b y t h e e xis t in g le ga l la n d s ca p e . Th a t is , m o s t ju d ge s fo llo w p re ce d e n t wh e n it is a va ila b le , a n d t ry t o u s e th e le ga l lo gic o f p a s t ca s e s t o gu id e t h e m wh e n n o ve l le ga l q u e s t io n s a ris e . Po litica l va lu e s o ft e n co m e in t o p la y, a lth o u gh t h e s e a r e n o t a s re a d ily re co gn ize d a s is le ga l t ra d it io n . 29 Judicial Misconduct Judges have an awesome amount of power, and this power sometimes corrupts . Judges, like other criminal justice professionals, sometimes act in unethical and illegal ways. These inappropriate activities undermine the public confidence in the judiciary and create injustice . Each state has some sort of mechanism in place to deal with unethical conduct by judges . At the federal level, judges can only be removed by impeachment by the Senate 30 Judicial Independence The founding fathers decided early on that the courts should be independent of the other branches of government . There are several reasons for this separation of powers . Perhaps the most important reason for judicial independence is that it allows judges to preside over cases in a just and impartial way. Another important reason is that the courts serve as a check on the power of the executive and legislative branches . 31 Influence on the Judiciary It is a mistake, however, to view the judiciary as completely independent. The other branches of government have the ability to influence the judiciary. The executive often has the power of appointment over judges. The legislative branch has the power of the purse, controlling the budget of the courts. These powers, while significant, are limited. 32 Judicial Insulation Federal judges, for example, are appointed for life tenure . That means that once appointed by the executive, they cannot be fired . The founding fathers formed government in this way because they understood that a judge fearful of losing his job could not be a neutral and detached magistrate that is willing to rule against the legislative or the executive . 33 Juveniles and the Courts Just as with the adult criminal justice system, the courts powerfully influence the juvenile justice system. This is true at both the juvenile court level, and at the appellate level. 34 Juvenile Courts Perhaps the most important member of the juvenile justice system is the juvenile court judge . Juvenile judges have the role of a traditional judge, but this role is greatly expanded when a judge presides over a juvenile court . In many jurisdictions, the juvenile judge oversees not only the operations of the juvenile court, but juvenile probation departments as well . In many small jurisdictions, juvenile court judges are responsible for the fiscal management of the courts as well as probation departments . 35 Personal Characteristics The beliefs, attitudes, and behaviors of juvenile judges can have an incredible impact on other criminal justice agencies in particular, and the entire community in general . For example, judges that do a poor job of dealing with juvenile delinquency in the schools runs the risk of creating a disruptive and lawless learning environment . At the other end of the spectrum, judges that are overly punitive in their decisions run the risk of violating the doctrine of parens patriae . 36 Conflicting Roles Much of what juvenile court judges do can be described as a balancing act. Juvenile judges must ensure that all processes and decisionmaking are carried out in a fair and unbiased manner . They must make sure that all decisions balance the best interests of the juvenile with the best interests of the victim and community . In addition, they must ensure that the constitutional rights of all parties are upheld . 37 The Supreme Court and Juveniles Historically, juvenile proceedings rarely made it to the U.S. Supreme Court. Starting with the Warren court in the 1960s, however, the Supreme Court handed down several cases that dramatically altered the structure and function of the juvenile justice system. 38 Kent v. United States(1966) Held that juveniles must be afforded due process rights in court proceedings. 39 In re Gault (1967) Held that juveniles accused of crimes must be afforded many of the same due process rights as adults. 40 Breed v. Jones(1975) Held that finding a child delinquent in a juvenile court then trying the child in adult court amounts to double jeopardy. 41 Schall v. Martin(1984) Held that the preventive detention of a juvenile does not necessarily violate due process. 42 Doe v. Renfrow(1981) Upheld a lower court decision that a search of schoolchildren for narcotics by a drug dog is not rights violation. 43 New Jersey v. TLO(1985) Set the evidentiary standard for searches of students by school officials at reasonable suspicion. 44 Qutb v. Strauss (1993) Held that curfew laws were constitutional because they are designed to protect the community. 45 Introduction to Criminal Justice Section 5.2: The Prosecution and Defense Prepared by Adam J. McKee 1 An Adversarial Process Recall that the United States has an adversarial legal system . This means that all criminal matters decided by the courts are a contest between a lawyer for the state and (in most cases) a lawyer for the defense . These adversaries are ethically required to do their utmost to prevail in court . 2 Prosecutors Prosecutors at the federal level prosecute different types of crimes than their state court counterparts. Regardless of the level of government, it is the prosecutors job to present the governments case against criminal defendants. The purpose of this is to demonstrate guilt to the finder of fact. 3 Conflicting Duties? Prosecutors often work with law enforcement personnel to ensure that evidence is in order prior to launching criminal proceedings . It is also among the duties of the prosecutor to see that justice is done ; this can mean sharing evidence that tends to prove the defendants guilt . 4 U.S. Attorneys In federal courts, prosecutors are known as United States Attorneys . All 94 fe d e ra l co u rt d is t rict s in t h e Un it e d St a t e s h a ve a U.S. At t o rn e y. Th e y a re a p p o in t e d b y t h e Pre s id e n t , a n d fu n ct io n m a in ly a s a d m in is t ra t o rs . Assistant U.S. Attorneys u s u a lly co n d u ct a ct u a l p ro s e cu t io n s . 5 What They Go After The almost 2,000 assistant federal prosecutors investigate violations of federal laws, focusing on matters beyond the scope of local law enforcement operations, such as ● public corruption ● large scale drug trafficking ● white collar crime 6 District Attorneys At the state and local level of government, prosecutors are usually called District Attorneys (D.A.). So m e ju ris d ict io n s , s u ch a s Illin o is , ca ll t h e s e go ve r n m e n t la wye r s St a te s At t o rn e ys . Dis t rict At t o rn e ys h a ve a la rge a m o u n t o f d is cre t io n . Officia l a ct io n fo r p ro s e cu t o ria l m is co n d u ct is ra re , a n d d iffe r e n t ju ris d ict io n s d e a l wit h it in d iffe r e n t wa ys . 7 City Attorneys Some jurisdictions allow for the prosecution of violations and some misdemeanors at the local level. These City Attorneys prosecute minor offenses that often only result in fines such as traffic offenses, nuisance offenses, and violations involving alcohol . Some jurisdictions allow these attorneys to prosecute misdemeanor cases that can result in jail time . 8 Independent Counsels Independent counsels are lawyers that serve as prosecutors in cases where high -level government officials are charged with misconduct . The reason they exist is to prevent the abuse of government power . The U.S. attorney general has the power to appoint an independent counsel when he or she determines that there is sufficient evidence to warrant the investigation of high -ranking government officials, including members of the United States Congress. 9 Prosecutorial Discretion Prosecutors arguably have the most discretion of any actor in the criminal justice system . They make decisions as to who to charge, what to charge them with, when charges should be dropped, and whether or not to plea bargain . While the discretion of prosecutors is nearly unfettered, it is most commonly used in three main areas: the discretionary decisions to file charges, dismiss charges, and offer plea bargains . 10 Charging While police initially inform criminal defendants of the charges against them, it is up to the prosecutor to decide what the exact formal charges will be. First, however, the prosecutor must make the decision to prosecute persons accused by the police, or to not prosecute them. The decision to prosecute is linked to several factors. Perhaps the most important factor is the strength of the evidence against the accused. Ob vio u s ly, p ro s e cu t o rs d o n o t like t o m o ve fo rwa rd wit h ca s e s t h e y ca n n o t win . 11 Other Factors The seriousness of the offense is another important factor . Offenses that are more serious are more likely to be prosecuted . Other factors are resource based . The prosecutor must consider both prosecutorial resources and the size of the court’s docket . Community resources are also important : Prosecutors can only seek alternatives to prosecution and prison when those resources are available . 12 Defendant Characteristics The characteristics of the defendant are important as well . The defendant’s degree of culpability and criminal history factor into the equation, influencing the prosecutor to prosecute more aggressively and to seek harsher punishments . Cooperation with the police and a willingness to help prosecute others influence the prosecutor to seek lighter sentences . 13 Dropping Charges Once charges are filed by a prosecutor, there is still a wide discretion as to how to move the case forward . The prosecutor can decide to go forward to trial with the case. An alternative is to make a plea bargain where the defendant is offered a lighter sentence for a guilty plea . 14 nolle prosequi The prosecutor can also enter a nolle prosequi . A n o lle p ro s e q u i is a fo rm a l s t a t e m e n t b y a p ro s e cu t o r s t a t in g t h a t a ca s e will b e d ro p p e d . Pro s e cu t o r s ca n e n t e r a n o lle p ro s e q u i (o ft e n a b b re via t e d a s nol. pros.) wh e n t h e ca s e is d e e m e d t rivia l, e vid e n ce is d e t e rm in e d b y t h e co u rt t o b e in a d m is s ib le , t h e r e is in s u fficie n t e vid e n ce , a n d wh e n it is d is co ve re d th a t fa ls e a ccu s a t io n s we re m a d e . 15 Plea Bargains Prosecutors have a great deal of discretion when negotiating plea bargains wit h t h e d e fe n s e . A p le a b a rga in is a n a gre e m e n t in wh ich t h e p ro s e cu t o r p e rm it s t h e d e fe n d a n t t o p le a d gu ilt y in e xch a n ge fo r co n ce s s io n s s u ch a s re d u ce d ch a rge s o r le n ie n t s e n t e n ce re co m m e n d a t io n s . Bo t h t h e p ro s e cu t io n a n d t h e d e fe n s e ca n b e n e fit fro m p le a b a rga in s . 16 Plea Bargain Benefits For the defense, the obvious benefit is a reduced sentence . For the prosecution, plea bargaining is a matter of conserving resources, both the prosecutor’s resources and the courts . If plea bargaining did not occur, the work of the courts would slowly stop . 17 The Defense The role of the defense attorney is to champion the defense at every stage adversarial legal process . This role is critical to maintaining fairness in the criminal justice system . Many different tasks are the responsibility of the defense attorney . Defense attorneys protect the rights of the accused in pretrial processes such as police interrogations and lineups . 18 Defense Attorney Roles Defense attorneys must work with prosecutors and determine the strength of the cases against their clients . They must represent their clients at bail hearings, suppression hearings, and other pretrial matters . Defense attorneys must devise a defense strategy that can include plea bargaining or going on to trial . 19 After Trial When cases do go on to trial, defense attorneys represent their clients in court . When clients are found guilty, defense attorneys represent their clients at sentencing hearings, arguing against the measures proposed by the prosecution . Defense attorneys also represent their clients in appeals when the results of a trial are unfavorable . 20 Types of Defense While there are a staggering number of variations when specific details are examined, there are three basic ways that criminal defendants can defend themselves in court : 1. hire their own private attorney 2. utilize legal services provided by the government for the poor 3. represent themselves Because self-representation is a notoriously bad idea, most criminal defendants choose one of the first two options . 21 Legal Services for the Indigent In the criminal justice system, most criminal defendants cannot afford to hire a private lawyer to represent them. Historically, this meant that only the wealthy could have lawyers to represent them in many state courts. In 1963, this situation changed. It was in this year that the Supreme Court handed down the famous Gideon v. Wainwright d e cis io n . 22 Gideon v. Wainwright In this case, the court held that an indigent defendant charged in state courts with a felony offense had a due process right to be represented by counsel . Later, in a 1972 case styled Argersinger v. Hamlin , th e co u rt r e fin e d t h is ru le b y e xt e n d in g t h e righ t t o co u rt-a p p o in t e d co u n s e l wh e n e ve r t h e re wa s a d a n ge r o f t h e d e fe n d a n t b e in g s e n t e n ce d t o p ris o n . Th is re m a in s t h e s t a n d a rd t o d a y. Th o s e a ccu s e d o f m in o r o ffe n s e s t h a t re s u lt o n ly in a fin e , s u ch a s t ra ffic vio la t io n s , a re n o t e n t it le d t o s t a t e -fu n d e d a t t o rn e ys . 23 What Does “Indigent” Mean? The term indigent can be misleading . The term poor u s u a lly d e fin e it , b u t m o s t s t a t e s d o n o t re q u ir e t h a t a d e fe n d a n t b e wit h o u t a n y m e a n s a t a ll t o q u a lify fo r a p p o in t e d co u n s e l. It is h a rd t o b e s p e cific a b o u t th e s e re q u ir e m e n t s b e ca u s e e ve r y s t a t e m a ke s it s o wn ru le s . Th e q u a lifica t io n s a re s u fficie n tly b ro a d in s co p e t h a t m o r e t h a n 80\% o f crim in a l d e fe n d a n t s a ccu s e d o f a fe lo n y u s e a p p o in t e d co u n s e l fo r t h e ir d e fe n s e . 24 Controversies Many advocates believe that free legal defense services are underfunded in the United States because the concept of providing tax -funded legal services to “criminals” is politically unpopular . Many believe that this state of affairs causes unacceptably high caseloads, which forces attorneys to recommend actions that are not in the best interest of the client, such as accepting plea bargains . 25 Retained Counsel The typical private defense attorney has several years’ experience working with criminal cases as a government employee, such as with a prosecutor’s office or a public defender’s office . Veteran criminal defense attorneys can set very high fees. The amount of fees charged is also related to the complexity of the case and whether the attorney has to appear at trial . 26 Self-representation There is an old adage in the legal community that “a lawyer that represents himself in court has a fool for a client .” The very nature of our adversarial system makes it very difficult to mount an effective legal defense for one’s self. It is nearly impossible, for example, to cross-examine yourself without looking foolish . If this is true for legal professionals, then it is even more so for non -lawyers . 27 Faretta v. California Despite the lack of efficacy, the Supreme Court determined in Faretta v. California (1975) t h a t t h e p e o p le h a ve a righ t t o s e lf-re p re s e n t a t io n in crim in a l ca s e s . Th e re a re a fe w re s t rict io n s p la ce d o n t h e s e in d ivid u a ls . Th e ke y le ga l re q u ire m e n t is t h a t t h e d e fe n d a n t s knowingly and voluntarily wa ive t h e righ t t o co u n s e l. 28 Defendant’s Rights Woven into the very fabric of our legal system is the idea that the process should be fair to everyone . Fairness often means that the legal system has to treat every individual the same way, regardless of race, creed, religion, sex, and so forth . This idea that everybody has to be treated by the government in the same, fair way is summed up in the term procedural due process . Th is id e a is e n s h rin e d in th e Bill o f Righ t s , a n d ca n b e fo u n d in b o t h t h e Fift h a n d t h e Fo u rt e e n t h Am e n d m e n t s . 29 Criticisms of Defendant’s Rights Some critics argue that these measures serve to protect criminals and should accordingly be done away with. This is not a very carefully considered position. Un d e r o u r le ga l s ys t e m , t h o s e a ccu s e d o f crim e s a re a s s u m e d in n o ce n t u n t il p ro ve n gu ilt y in a co u rt o f la w. 30 The Price of Freedom? Most American’s are not willing to accept such blatant abuses of human rights, and so our constitution protects us from them by design. There is just no way to protect the rights of everyday citizens without protecting the rights of criminals along with them until the criminals can be convicted in a court of law. 31 Why We Need These Rights If these rights were not protected for all people , then every citizen, regardless of any wrongdoing, would be subject to searches of their persons, vehicles, and houses . They would be subject to arrest, confinement, and questioning under duress or even torture . 32 Introduction to Criminal Justice Section 5.3: Pretrial Process Prepared by Adam J. McKee 1 The Myth Television legal dramas have trained the American people to … Introduction to Criminal Justice Section 3.1: Sources of Criminal Law Prepared by Adam J. McKee Clearing Up Some Confusion The term criminal law ca n b e co n fu s in g. Th is is b e ca u s e s o m e s o u rce s u s e it in a ve r y ge n e ra l wa y t o d e s crib e t h e e n t ire s p e ct r u m o f la ws d e a lin g wit h th e crim in a l ju s t ice s ys t e m ; o th e r s u s e it a s a s h o rt h a n d wa y o f re fe r rin g t o wh a t is a ls o kn o wn a s t h e substantive criminal law . 2 How the Text Does It The text follows the latter approach by using the heading criminal law to refer to the substantive criminal law , wh ich is t h e p a rt o f th e la w t h a t d e s crib e s wh a t a ct s a re p ro h ib it e d a n d wh a t p u n is h m e n t s a re a s s o cia t e d wit h th o s e a ct s . Als o in clu d e d a re legal defenses (s u ch a s t h e in s a n ity d e fe n s e ) t h a t a p p ly in crim in a l ca s e s . 3 Felonies and Misdemeanors This distinction depend largely on the seriousness of the offense and the type of punishment associated with the offense . Things like petty thefts, simple assault, disorderly conduct, and public drunkenness are relatively nonserious crimes classified as misdemeanors . Mis d e m e a n o r s a r e u s u a lly o n ly p u n is h a b le b y fin e a n d im p ris o n m e n t in a lo ca l ja il fo r a p e rio d le s s t h a n a ye a r. 4 Felonies Felonies are serious crimes (e.g., rape, murder, burglary, kidnapping) where the punishment can be death or a long period (at least a year) of incarceration in a state -run prison . Note that this distinction depends on the sentence ; some convicts go to prison for less than a year because of early release programs such as “good time” and parole . 5 Illegal v. Evil There is also a distinction between types of criminal law based in the inherent evil of the act. If the act is wrong in itself, it is considered a mala in se o ffe n s e . If a n a ct is n o t n e ce s s a rily e vil a n d is o n ly co n s id e r e d crim in a l b e ca u s e it is p ro h ib it e d b y t h e go ve rn m e n t , it is co n s id e re d a mala prohibita o ffe n s e . Mo s t s o -ca lle d vict im le s s crim e s a re m a la p ro h ib it a o ffe n s e s . Be ca u s e p e o p le s vie ws va r y s o wid e ly a s t o t h e in h e r e n t wro n gn e s s o f a n a ct , t h e re is n o a b s o lu t e s t a n d a rd fo r cla s s ifica t io n . 6 “Visible Crime” Criminal acts that are highly visible to the public are often referred to as visible crime , ordinary crime , o r street crime . Th e o ve rt n a tu re o f s u ch cr im e s m a ke s n o t ice b y p o lice m o r e like ly, a n d t h u s p ro s e cu t io n m o re like ly. Mu rd e r is a co m m o n e xa m p le : Mo s t m u rd e r s co m e t o t h e a t t e n t io n o f t h e p o lice , a n d p ro s e cu t io n is m o re like ly t h a n fo r m o s t o t h e r o ffe n s e s . 7 Occupational Crimes Occupational crimes are less obvious. These are crimes that a particular job provides the criminal opportunity. The most common example is embezzlement . 8 Organized Crime Crimes committed by groups with a discernable organization structure are classified as organized crime . Organized crime is considered especially heinous because groups can cause more criminal damage, and the groups make for more difficult investigations and prosecutions . 9 Cybercrime A large swath of criminal offenses involving computers and related technologies are collectively known as cybercrime. Cybercrime in vo lve s d is p a ra t e a ct s s u ch a s d is t rib u tin g ch ild p o rn o gra p h y, s e n d in g o u t m a s s e m a ils in a n a t t e m p t t o o b t a in id e n tifyin g in fo rm a t io n (p h is h in g), d is t rib u tin g viru s e s d e s ign e d t o d a m a ge co m p u te r s ys t e m s , h a ckin g in t o b u s in e s s co m p u t e rs t o s t e a l m o n e y, a n d s o fo rt h . 10 Hate Crimes Crimes that are motivated by bias toward a particular race, religion, ethnicity, or sexuality are known as hate crimes . 11 Civil Law At civil law, a wrong done to another person is called a tort . Wh e n a h a rm e d in d ivid u a l (t h e p la in t iff) win s a t o rt ca s e in civil co u rt , t h e y m a y a ls o win a m o n e y a wa rd re fe rre d t o a s damages . In o t h e r wo rd s , t o rt s a re p riva t e wro n gs . 12 Criminal Law Theory A criminal prosecution operates under a different legal theory . A crime, the theory holds, may harm the individual, but it also harms all of society . Since the people are represented by the state, all criminal prosecutions are brought forward in the name of the state . 13 Who Brings Criminal Charges? What the “state” calls itself can vary from state to state ; some prosecutions are done in the name of the people, and some are done in the name of the “commonwealth .” Regardless of how the case is named, a prosecutor working for the government on behalf of society brings it forward . 14 Criminal and Civil Interaction It is important to note that the criminal system and the civil system sometimes interact . A person can be found guilty of a crime in criminal court, and found liable for a tort for the exact same behavior . In addition, individuals that have suffered losses due to criminal actions can sometimes use the civil courts to recoup their losses. 15 A Matter of Statute While the United States is a common law country, most criminal laws are a matter of statutes today . An essential difference between a state criminal statute and a federal criminal statute is that federal laws will usually contain a jurisdictional element . 16 Federal Crimes Because of the constitutional limits placed on the authority of Congress to make criminal laws, federal criminal statutes must be tailored to a particular power delegated to Congress, such as the power to regulate interstate commerce . Most criminal laws exist on the state level because of this limitation . 17 Overlapping Jurisdiction When a particular act is criminal on both the state and federal level, there is overlapping jurisdiction in the case. As a matter of constitutional law, the person could be prosecuted on both the state and federal level. In practice, this rarely happens . In a few high -profile cases, federal prosecutors have taken up a case when the public widely perceived that justice was not done in state courts (e.g., the Rodney King police brutality case). 18 The Common Law The term common law ca n b e d is t u rb in gly va gu e fo r t h e s t u d e n t . Th a t is b e ca u s e d iffe re n t s o u rce s u s e it in s e ve ra l d iffe re n t wa ys wit h s u b t le d iffe re n ce s in m e a n in g. Th e b e s t wa y t o ge t a gra s p o n th e t e r m ’s m e a n in g is to u n d e r s t a n d a lit t le o f t h e h is t o ry o f t h e Am e rica n le ga l s ys t e m . Co m m o n la w, wh ich s o m e s o u rce s r e fe r t o a s “ju d ge -m a d e ” la w, firs t a p p e a r e d wh e n ju d ge s d e cid e d ca s e s b a s e d o n t h e le ga l cu s t o m s o f m e d ie va l En gla n d a t t h e t im e . 19 An Oral Tradition It may be hard for us to imagine today, but in the early days of English common law, the law was a matter of oral tradition. That is, the definitions of crimes and associated punishments were not written down in a way that gave them binding authority. 20 Reporters By the end of the medieval period, some of these cases were recorded in written form . Over a period, imported judicial decisions became recorded on a regular basis and collected into books called reporters . 21 Blackstone’s Commentaries The English-speaking world is forever indebted to Sir William Blackstone, an English legal scholar, for collecting much of the common law tradition of England and committing it to paper in an organized way. His four -volume set, Commentaries on the Laws of England , wa s ta ke n to t h e co lo n ie s b y t h e fo u n d in g fa t h e rs . Th e fo u n d in g fa th e r s in co r p o ra t e d t h e co m m o n la w o f En gla n d in to t h e la ws o f t h e Co lo n ie s , a n d u lt im a t e ly in t o t h e la ws o f t h e Un it e d St a t e s . 22 The Modern Link to Common Law In modern America, most crimes are defined by statute. These statutory definitions use ideas and terms that come from the common law tradition. When judges take on the task of interpreting a statute, they still use common law principles for guidance. The definitions of many crimes, such as murder and arson, have not deviated much from their common law origin. Other crimes, such as rape, have seen sweeping changes. 23 The Doctrine of Precedent One of the primary characteristics of the common law tradition is the importance of precedent . Known by the legal Latin phrase stare decisis , th e d o ct rin e o f p re ce d e n ce m e a n s t h a t o n ce a co u r t m a ke s a d e cis io n o n a p a rt icu la r m a t t e r, t h e y a re b o u n d t o ru le t h e s a m e wa y in fu t u re ca s e s t h a t h a ve t h e s a m e le ga l is s u e . Th is is im p o rt a n t b e ca u s e a co n s is t e n t ru lin g in id e n t ica l fa ct u a l s it u a tio n s m e a n s t h a t e ve ryo n e ge t s t h e s a m e t re a t m e n t b y t h e co u rt s . Th e d o ct rin e o f stare decisis e n s u re s e q u a l t re a t m e n t u n d e r t h e la w. 24 Constitutions When the founding fathers signed the Constitution, they all agreed that it would be the supreme law of the land ; the Framers stated this profoundly important agreement in Article VI. Aft e r t h e la n d m a rk ca s e o f Marbury v. Madison (1803), t h e Su p re m e Co u rt h a s h a d t h e p o we r t o s t rike d o wn a n y la w o r a n y go ve rn m e n t a ct io n th a t vio la t e s co n s t it u t io n a l p rin cip le s . Th is p re ce d e n t m e a n s t h a t a n y la w m a d e b y t h e Co n gr e s s o f t h e Un ite d St a t e s o r t h e le gis la t ive a s s e m b ly o f a n y s t a t e t h a t d o e s n o t m e e t co n s t it u t io n a l s t a n d a rd s is s u b je ct t o n u llifica t io n b y t h e Su p re m e Co u rt o f t h e Un it e d St a t e s . 25 State Constitutions Every state adopted this idea of constitutional supremacy when creating their constitutions . All state laws are subject to review by the high courts of those states . If a state law or government practice (e.g., police, courts, or corrections) violates the constitutional law of that state, then it will be struck down by that state’s high court . Local laws are subject to similar scrutiny . 26 Statutes Statutes are written laws passed by legislative assemblies . Modern criminal laws tend to be a matter of statutory law . In other words, most states and the federal government have moved away from the common -law definitions of crimes and established their own versions through the legislative process . Thus, most of the criminal law today is made by state legislatures, with the federal criminal law being made by Congress. 27 Codification Legislative assemblies tend to consider legislation as it is presented, not in subject order. This chronological ordering makes finding the law concerning a particular matter very difficult. To simplify finding the law, most all statutes are organized by subject in a set of books called a code. Th e b o d y o f s t a t u t e s t h a t co m p ris e s t h e crim in a l la w is o ft e n re fe rre d t o a s t h e crim in a l co d e , o r le s s co m m o n ly a s t h e penal code . 28 Administrative Law The clear distinction between the executive, legislative, and judicial branches of government becomes blurry when U.S. governmental agencies and commissions are considered . These types of bureaucratic organizations can be referred to as semi - legislative and semi -judicial in character . These organizations have the power to make rules that have the force of law, the power to investigation violations of those laws, and the power to impose sanctions on those deemed to be in violation . 29 Who Makes these “Laws?” Examples of such agencies are the Federal Trade Commission (FTC), the Internal Revenue Service (IRS), and the Environmental Protection Agency (EPA). When these agencies make rules that have the force of law, the rules are collectively referred to as administrative law . 30 Case Law When the appellate courts decide a legal issue, the doctrine of precedence means that future cases must follow that decision . This means that the holding in an appellate court case has the force of law: Such laws are often referred to as case law . The entire criminal justice community depends on the appellate courts, especially the Supreme Court, to evaluate and clarify both statutory laws and government practices against the requirements of the Constitution . These legal rules are all set down in court cases. 31 Introduction to Criminal Justice Section 3.2: Substantive Criminal Law Prepared by Adam J. McKee Defining Criminal Law The criminal law in its broadest sense encompasses both the substantive criminal law and criminal procedure . In a more limited sense, the term criminal law is used to denote the substantive criminal law, and criminal procedure is considered another category of law. Most college criminal justice programs organize classes this way. 2 Substantive Criminal Law Recall that the substantive law defines criminal acts that the legislature wishes to prohibit and specifies penalties for those that commit the prohibited acts. For example, murder is a substantive law because it prohibits the killing of another human being without justification. 3 No Crime Without Law It is fundamental to the American way of life that there can be no crime without law. This concept defines the idea of the Rule of Law. The rule of law is the principle that the law should govern a nation, not an individual. The importance of the rule of law in America stems from the colonial experience with the English monarchy. It follows that, in America, no one is above the law. 4 Constitutional Limits Unlike the governments of other countries, the legislative assemblies of the United States do not have unlimited power. The power of Congress to enact criminal laws is circumscribed by the Constitution. These limits apply to state legislatures as well. 5 Bills of Attainder and Ex Post Facto L A bill of attainder is an enactment by a legislature that declares a person (or a group of people) guilty of a crime and subject to punishment for committing that crime without the benefit of a trial. An ex post facto law is a law that makes an act done before the legislature enacted the law criminal and punishes that act. The prohibition also forbids the legislature from making the penalty for a crime more severe retroactively. Both of these types of laws are strictly prohibited by the Constitution. 6 Fair Notice and Vagueness The due process clauses of the Fifth and Fourteenth Amendments mandate that the criminal law afford fair notice. The idea of fair notice is that people must be able to determine exactly what is prohibited by the law, so vague and ambiguous laws are prohibited. If a law is determined to be unclear by the Supreme Court, it will be struck down and declared void for vagueness . Such laws would allow for arbitrary and discriminatory enforcement if allowed to stand. 7 The First Amendment The First Amendment to the United States Constitution guarantees all Americans the “freedom of expression.” Among these “expressions” are the freedom of religion and the freedom of speech. In general, Americans can say pretty much whatever they like without fear of punishment. 8 The First Amendment and Criminal La Any criminal law passed by the legislature that infringes on these rights would not withstand constitutional scrutiny. There are, however, some exceptions. 9 Clear and Present Danger When the health and safety of the public are at issue, the government can curtail the freedom of speech. One of the most commonly cited limiting principles is what has been called the clear and present danger test . This test, established by the Supreme Court in Schenck v. United States (1919), prohibits inherently dangerous speech, such as falsely shouting “fire!” in a crowded theater. 10 Fighting Words Another prohibited type of speech has been referred to as fighting words . This means that the First Amendment does not protect speech calculated to incite a violent reaction. 11 Other Unprotected Speech Other types of unprotected speech include hate speech, profanity, libelous utterances, and obscenity. These latter types of speech are very difficult to regulate by law because they are very hard to define and place limits on. The current trend has been to protect more speech that would have once been considered obscene or profane. 12 Freedom of Religion The freedom to worship as one sees fit is also enshrined in the Constitution. Appellate courts will strike down statutes that are designed to restrict this freedom of religion . The high court has protected door -to -door solicitations by religious groups and even ritualistic animal sacrifices. 13 Limits on Religious Freedom The Court, however, has not upheld all claims based on the free exercise of religion. Statutes criminalizing such things as snake handling, polygamy, and the use of hallucinogenic drugs have all been upheld. 14 The Freedom of Assembly The First Amendment protects the right of the people to assemble publicly, but it is not absolute. The courts have upheld restrictions on the time, place, and manner of public assemblies, so long as those restrictions were deemed reasonable. The reasonableness of such restrictions usually hinges on a compelling state interest . The freedom of assembly does not protect conduct that jeopardizes the public health and safety. 15 The Second Amendment The constitutionally guaranteed “right to keep and bear arms” in the Second Amendment is by no means absolute has been the source of much litigation and political debate in recent years. The Supreme Court has established that the second Amendment confers a right to the carrying of a firearm for self -defense, and that right is applicable via the Fourteenth Amendment to the states. 16 Restrictions on the Second Amendme Typical restrictions include background checks and waiting periods. Some jurisdictions highly regulate the concealing, carrying, and purchase of firearms, and many limit the type of firearms that can be purchased. Many criminal laws have enhanced penalties when they are committed with firearms. Most gun laws and concealed carry laws vary widely from jurisdiction to jurisdiction. 17 Eighth Amendment The Eighth Amendment to the United States Constitution prohibits the imposition of Cruel and Unusual Punishments. Both the terms cruel and unusual do not mean what they mean in everyday usage; they are both legal terms of art. The Supreme Court has incorporated the doctrine of proportionality into the Eighth Amendment. 18 Doctrine of Proportionality Proportionality means that the punishment should fit the crime, or at least should not be grossly disproportionate to the offense. The idea of proportionality has appeared in cases that considered the grading of offenses, the validity of lengthy prison sentences, and whether the imposition of the death penalty is constitutional. The legal controversies of three strikes laws and the death penalty will be discussed at greater length in a later section. 19 The Right to Privacy Most American’s view the right to privacy as a fundamental human right. It is shocking, then, to find that the Constitution never expressly mentions a right to privacy. The Supreme Court agrees that such a right is fundamental to due process and has established the right as being inferred from several other guaranteed rights. Among these are the right of free association, the prohibition against quartering soldiers in private homes, and the prohibition against unreasonable searches and seizures. 20 The Right to Privacy and Criminal Law The right to privacy has been used to protect many controversial practices that were (at least at the time) socially unacceptable to large groups of people. Early courts decided that laws prohibiting single people from purchasing contraceptives were unconstitutional based on privacy rights arguments. 21 Case Law The right to an abortion established in Roe v. Wade (1973) h in ge d p rim a rily o n a p riva cy righ t s a rgu m e n t . Mo re re ce n t ly, in Lawrence v. Texas (2003), t h e co u rt ru le d t h a t la ws p ro h ib it in g p riva t e h o m o s e xu a l s e xu a l a ct ivit y we re u n co n s t it u t io n a l. In t h e Lawrence ca s e , p riva cy righ t s we re t h e d e cid in g fa ct o r. 22 Introduction to Criminal Justice Section 3.3: Elements of Crimes Prepared by Adam J. McKee The Importance of Elements of Crime The legal definitions of all crimes contain certain elements . If the government cannot prove the existence of these elements, it cannot obtain a conviction in a court of law. Other elements are not part of all crimes, but are only found in crimes that prohibit a particular harm . 2 Distinguishes Between Offenses Often, a difference in one particular element of a crime can distinguish it from another related offense, or a particular degree of the same offense. At common law, for example, manslaughter was distinguished from murder by the mental element of malice aforethought . 3 The Actus Reus Nobody can read minds, and the First Amendment means that people can say pretty much whatever they want. What you think and say (within limits) is protected. It is what you do —your behaviors —that the criminal law seeks to regulate. Lawyers use the legal Latin phrase actus reus t o d e s crib e t h is e le m e n t o f a crim e . 4 “Act” is a verb! It is commonly translated into English as the guilty act. The term act ca n b e a b it co n fu s in g. Mo s t p e o p le t e n d t o t h in k o f t h e t e rm a ct a s a n a ct io n ve rb —it is s o m e t h in g t h a t p e o p le d o . Th e crim in a l la w o ft e n s e e ks t o p u n is h p e o p le fo r t h in gs t h a t t h e y d id n o t d o . Wh e n t h e la w co m m a n d s p e o p le t o t a ke a p a rt icu la r a ct io n a n d t h e y d o n o t t a ke t h e co m m a n d e d a ct io n , it is kn o wn a s a n o m is s io n . 5 Threats and Attempts Threatening to act or attempting an act can also be the actus reus e le m e n t o f a n o ffe n s e . 6 Possession In addition to acts and omissions, possession of something can be a criminal offense. The possession of certain weapons, illicit drugs, burglary tools, and so forth are all guilty acts as far as the criminal law is concerned. 7 Types of Possession Actual possession is the legal idea that most closely coincides with the everyday use of the term. Actual possession refers to a person having physical control or custody of an object. In addition to actual possession, there is the idea of constructive possession . Constructive possession is the legal idea that the person had knowledge of the object, as well as the ability to exercise control over it. 8 Criminal Intent A fundamental principle of law is that to be convicted of a crime, there must be a guilty act (the actus reus) and a culpable mental state . Recall that culpability means blameworthiness. In other words, there are literally hundreds of legal terms that describe mental states that are worthy of blame. The most common is intent . 9 The Model Penal Code The Model Penal Code boils all of these different terms into four basic culpable mental states: 1. purposely 2. knowingly 3. recklessly 4. negligently 10 Purposely According to the Model Penal Code, a person acts purposely when “it is his conscious object to engage in conduct of that nature….” 11 Knowingly A person acts knowingly if “he is aware that it is practically certain that his conduct will cause such a result.” In other words, the prohibited result was not the actor’s purpose, but he knew it would happen. 12 Recklessly A person acts recklessly if “he consciously disregards a substantial and unjustifiable risk.” Further, “The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” 13 Negligently A person acts negligently when “he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” The idea is that a reasonably carefully person would have seen the danger, but the actor did not. 14 Strict Liability At times, the legislature will purposely exclude the mens rea e le m e n t fro m a crim in a l o ffe n s e . Th is le a ve s o n ly t h e gu ilt y a ct t o d e fin e t h e crim e . Crim e s wit h n o cu lp a b le m e n t a l s t a t e a re kn o wn a s s t rict lia b ilit y o ffe n s e s . Mo s t o f t h e t im e , s u ch crim e s a re m e re vio la t io n s s u ch a s s p e e d in g. An o ffice r d o e s n o t h a ve t o give e vid e n ce t h a t yo u we re s p e e d in g p u rp o s e ly, ju s t t h a t yo u we re s p e e d in g. 15 Strict Liability and Seriousness If violations such as this had a mental element, it would put an undue burden on law enforcement and the lower courts. There are a few instances where serious felony crimes are strict liability, such as the statutory rape laws of many states. 16 Concurrence For an act to be a crime, the act must be brought on by the criminal intent. In most cases, concurrence is obvious and does not enter into the legal arguments. 17 Concurrence Example An individual who breaks into a cabin in the woods to escape the deadly cold outside. After entering, the person decides to steal the owner’s property. This would not be a burglary (at common law) since burglary requires a breaking and entering with the intent to commit a felony therein. Upon entry, the intent was to escape the cold, not to steal. Thus, there was no concurrence between the guilty mind and the guilty act. 18 Criminal Harm and Causation In criminal law, causation refers to the relationship between a person’s behavior and a negative outcome. Some crimes, such as murder, require a prohibited outcome. There is no murder if no one has died (although there may be an attempt). In crimes that require such a prohibited harm , the actus reus must have caused that harm. 19 Introduction to Criminal Justice Section 3.4: Legal Defenses Prepared by Adam J. McKee The Role of Defenses in Court To successfully obtain a conviction, the prosecutor must show all of the elements of the crime beyond a reasonable doubt in criminal court. This is not the end of it in some cases. It must also be shown (if the issue is raised) that the actus reus a n d t h e mens rea wa s p re s e n t , b u t a ls o t h a t t h e d e fe n d a n t co m m it t e d t h e a ct wit h o u t ju s t ifica t io n o r e xcu s e . 2 Types of Legal Defenses Both justifications and excuses are types of legal defenses. If a legal defense is successful, it will either mitigate or eliminate guilt. 3 Justifications A justification consists of a permissible reason for committing an act that would otherwise be a crime. For example, it would be a crime to shoot a man dead on the street. If, however, the man was a mugger and had the shooter at knifepoint, then the justification of self -defense could be raised. A justification means that an act would normally be wrong, but under the circumstances it was the right thing to do. 4 Excuse When a criminal defendant uses an excuse, the act was not the right thing to do, but society should nevertheless hold the actor less culpable because of some extenuating circumstance. 5 Insanity The term insanity comes from the law; psychology and medicine do not use it. The everyday use of the term can be misleading. If a person acts abnormally, they tend to be considered by many as “crazy” or “insane.” 6 Not All Mental Diseases Qualify At law, merely having a mental disease or mental defect is not adequate to mitigate guilt. It must be remembered that Jeffery Dahmer was determined to be legally sane, even though everyone who knows the details of his horrible acts knows that he was seriously mentally ill. 7 Legal Requirements To use insanity as a legal excuse, the defendant has to show that he or she lacked 1. the capacity to understand that the … Introduction to Criminal Justice Section 6.1: Jails Prepared by Adam J. McKee 1 Jails The idea of jails has a long history, and the historical roots of American jails are in the gaols of feudal England. Sheriffs operated these early jails, and their primary purpose was to hold accused persons awaiting trial. This English model was brought over to the Colonies, and the function remained the same. In the 1800s, jails began to change in response to the penitentiary movement. 2 The Evolved Role of Jails Their function was extended to housing those convicted of minor offenses and sentenced to short terms of incarceration . They were also used for other purposes, such as holding the mentally ill and vagrants. The advent of a separate juvenile justice system and the development of state hospitals alleviated the burden of taking care of these later categories. 3 Today’s Jails Todays jails are critical components of local criminal justice systems. They are used to address the need for secure detention at various points in the criminal justice process. Jails typically serve several law enforcement agencies in the community, including local law enforcement, state police, wildlife conservation officers, and federal authorities . Jailsrespond to many needs in the criminal justice system and play an integral role within every tier of American criminal justice. 4 A Dynamic Need These needs are ever changing and influenced by the policies, practices, and philosophies of the many different users of the jail. Running a jail is a tough business, usually undertaken by a county sheriff . Often, much of the Sheriffs authority is delegated to a jail administrator . 5 Population Diversity Running a jail is such a complicated endeavor partly because jails serve an extremely diverse population . Unlike prisons where inmate populations are somewhat homogenous, fails hold vastly different individuals. Jails hold both men and women, and both children and adults. Most state prisoners are serious offenders, whereas jails old both serious offenders as well as minor offenders who may be vulnerable to predatory criminals. Those suffering from mental illness, alcoholism, and drug addiction often find themselves in jail. 6 Major Functions It is in this environment that jail staff must accomplish the two major functions of jails: 1. Intake 2. Custody 7 Booking and Intake The booking and intake function of jails serves a vital public safety function by providing a secure environment in which potentially dangerous persons can be assessed,and the risk these individuals pose the public can be determined . 8 Custody The second major function of jails is the idea of custody. That is, people are deprived of their liberty for various reasons. The two most common of these reasons are 1. pretrial detention 2. punishment 9 Pretrial Detention A major use of modern jails is what is often referred to as pretrial detention . In o th e r wo rd s , ja ils re ce ive a ccu se d p e rs o n s p e n d in g a rra ign m e n t a n d h o ld th e m a wa itin g tria l, co n victio n , o r s e n te n cin g. Mo re th a n h a lf o f ja il in m a te s a re a ccu se d o f crim e s a n d a re a wa itin g tria l. Th e a ve ra ge tim e b e twe e n a rre s t a n d s e n te n cin g is a ro u n d s ix m o n th s . 10 Other Judicial Hearings Jails also readmit probation and parole violators and absconders, holding them for judicial hearings. The major purpose of pretrial detention is not to punish offenders, but to protect the public and ensure the appearance of accused persons at trial. 11 How Many Jails Are There? According to the Bureau of JusticeStatistics, there are around 3,300 jails currently in operation within the United States. This large number points to a very important fact: Jails are primarily a local concern . Jails(and detention centers) are facilities designed to safely and securely hold a variety of criminal offenders, usually for a short period . The wide variety of offenders comes from the fact that jails have dual roles. 12 Jail Size The size of jails can vary widely depending on the jurisdiction the facility serves. Both geographic and legal jurisdiction must be considered. The single most important determinant of jail size is population density: The more people a given jurisdiction has, the more jail inmates they are likely to have. Many rural jails are quite small, but America’s largest population centers tend to have massive jail complexes. Most counties and many municipalities operate jails, and a few are operated by federal and other non -local agencies. 13 Regional Facilities There has been a trend for small, rural jurisdictions to combine their jails into regional detention facilities. These consolidated operations can increase efficiency, security, and better ensure prisoners’ rights . 14 Judicial Influence A primary function of jails is to house criminal defendants after arrest . Within a very narrow window of time, the arrestee must appear before a judge. The judge will consider the charges against the defendant and the defendant’s risk of flight when determining bail. The judge may decide to remand the defendant to the custody of the jail until trial, but this is rare. Most often, pretrial release will be granted . 15 Jails for Punishment As a criminal sanctioning option, jails provide a method of holding offenders accountable for criminal acts. Jailshouse offenders that have been sentenced to a jail term for misdemeanor offenses, usually for less than one year. There are many ways that jail sentences can be served, depending largely on the laws and policies of the particular jurisdiction . A central goal of incarceration as punishment in the criminal justice system is the philosophical goal of deterrence. 16 Other Goals Rehabilitation and reintegration are sometimes considered secondary goals of incarceration . These goals are not usually deemed amenable to the jail environment, and few programs designed to meet these goals exist. Many local jails do make a modest effort to provide inmates with opportunities for counseling and change to deter future criminal behavior, but always within the constraints of scant resources. 17 Misc. Functions Jails in some jurisdictions are responsible for transferring and transporting inmates to federal, state, or other authorities . Jails are also tasked with holding mentally ill persons pending their transfer to suitable mental health facilities where beds are often unavailable. 18 Other Government Purposes Jails also hold people for a variety of government purposes ; they hold individuals ● Wanted by the armed forces ● For protective custody (individuals who may not be safe in the community) ● Found in contempt of court ● As witnesses for the courts Jails often hold state and federal inmates due to overcrowding in prison facilities. Jails are commonly tasked with community -based sanctions, such as work details engaged in public services. 19 Jail Populations Arrestees often arrive at the jail with myriad many problems . Substance abuse, alcohol abuse, and mental illness often mean that jail inmates are not amenable to complying with the directions of jail staff. Many have medical problems, psychological problems, and emotional problems . 20 Emotional & Behavioral Problems Inmates can display the full gambit of human emotions : fail staff may see fear, anxiety, anger, and depression every day. Behaviors often mirror emotional state, and at times staff must deal with noncompliant, suicidal, or violent inmates. While inmates are in custody, the jail is responsible for their health and wellbeing. 21 Outside Influences on Jails Jails function in a role as a service provider for the rest of the criminal justice community . Jailadministrators have very little discretion in who goes to jail and how long they remain in custody. Law and policy play a big role in dictating who goes to jail, as do the discretionary decisions of probation and parole officers, law enforcement, and judges. 22 Juvenile Detention Many jails temporarily detain juveniles pending transfer to juvenile authorities. 23 Juvenile Trends The trend in juvenile incarceration is toward lower numbers and a move toward local facilities. The juvenile offender population dropped 14\% from 2010 to 2012, to the lowest number since 1975. In the March 2015 report, it was noted that for the first time since 2000, more offenders were in local facilities than were in state operated facilities. 24 Physical Security The degree of security present in juvenile facilities tends to vary widely between jurisdictions . An important measure of security used in OJJDPreports is locking youth in sleeping rooms . More than half of all facilities reported that they had one or more confinement features in addition to locking juveniles in their sleeping room (which usually happens at night). These security features usually consist of locked doors and gates designed to keep juveniles within the facility. 25 Types of Juvenile Facilities Unlike adult jails, juvenile detention takes place in a variety of different environments . According to the OJJDPstudy, the most common type of facility were facilities that considered themselves to be residential treatment centers, followed by those that considered themselves to be detention centers. The classifications of group home, training school, shelter, wilderness camp, and diagnostic center are also used. Group homes and shelters tended to be privately owned, and detention centers tended to be state run facilities. 26 Introduction to Criminal Justice Section 6.2: Prisons Prepared by Adam J. McKee 1 Assessment As inmates enter a prison system after sentencing, they are typically assessed at a classification or reception facility based on ● the nature of their crime ● criminal history ● escape risk ● health needs ● any behavioral issues that must be addressed 2 Goals of Assessment The goal of these assessments is to determine the dangerousness of the offender and the viability of various treatment options. Based on the assessment results, prison personnel will assign the offender to a particular prison facility. The primary concern when assigning an inmate to a facility is safety, followed by practical concerns about bed space. The needs of the inmate are also considered in the process. 3 Prisoner Choice? Prisoners thus have almost no control of where they are confined. Some prisons do allow for transfers to facilities closer to family, but these requests are subject to security concerns and bed space. Often, female inmates are housed far from family because the small number of female facilities often means that there are no options close to family. 4 Development of Prisons Prior to the 1800s, common law countries relied heavily on physical punishments. Influenced by the high ideas of the enlightenment, reformers began to move the criminal justice system away from physical punishments in favor of reforming offenders. This was a dramatic shift away from the mere infliction of pain that had prevailed for centuries. 5 Penitentiaries Among these early reformers was John Howard, who advocated the use of penitentiaries. Penitentiaries , a s t h e n a m e s u gge s t s , we re p la ce s fo r o ffe n d e rs t o b e p e n it e n t . Th a t is , t h e y wo u ld e n ga ge in wo rk a n d re fle ct io n o n t h e ir m is d e e d s . To a ch ie ve t h e a p p ro p ria t e a t m o s p h e re fo r p e n it e n ce , p ris o n e rs we re ke p t in s o lit a ry ce lls wit h m u ch t im e fo r re fle ct io n . 6 Pennsylvania System Philadelphia’s Walnut Street Jail wa s a n e a rly e ffo rt t o m o d e l t h e Eu ro p e a n p e n it e n t ia rie s . Th e s ys t e m u s e d t h e re la t e r b e ca m e kn o wn a s t h e Pennsylvania System . Un d e r t h is s ys t e m , in m a t e s we re ke p t in s o lit a ry co n fin e m e n t in s m a ll, d a rk ce lls . A ke y e le m e n t o f t h e Pe n n s ylva n ia Sys t e m is t h a t n o co m m u n ica t io n s wh a t s o e ve r we re a llo we d . 7 Criticisms of the Pennsylvania System Critics of this system began to speak out against the practice of solitary confinement early on. They maintained that the isolated conditions were emotionally damaging to inmates, causing severe distress and even mental breakdowns. Nevertheless, prisons across the United States began adopting the Pennsylvania model, espousing the value of rehabilitation. 8 The New York System The New York system evolved along similar lines, starting with the opening of New York’s Auburn Penitentiary in 1819. This facility used what came to be known as the congregate system. Under this system, inmates spent their nights in individual cells, but were required to congregate in workshops during the day. Work was serious business, and inmates were not allowed to talk while on the job or at meals. 9 Did It Work? By the middle of the nineteenth century, prospects for the penitentiary movement were grim. No evidence had been mustered to suggest that penitentiaries had any real impact on rehabilitation and recidivism. 10 The Lease System Prisons in the South and West were quite different from those in the Northeast. In the Deep South, the lease system d e ve lo p e d . Un d e r t h e le a s e s ys t e m , b u s in e s s e s n e go t ia t e d wit h t h e s t a t e t o e xch a n ge co n vict la b o r fo r t h e ca re o f t h e in m a t e s . Pris o n e rs we re p rim a rily u s e d fo r h a rd , m a n u a l la b o r, s u ch a s lo ggin g, co t t o n p ickin g, a n d ra ilro a d co n s t ru ct io n . 11 Deplorable Conditions Disillusionment with the penitentiary idea, combined with overcrowding and understaffing, led to deplorable prison conditions across the country by the middle of the nineteenth century. New York’s Sing Sing Prison was a noteworthy example of the brutality and corruption of that time. 12 The Reformatory Movement A new wave of reform achieved momentum in 1870 after a meeting of the National Prison Association (which would later become the American Correctional Association). At this meeting held in Cincinnati, members issued a Declaration of Principles . Th is d o cu m e n t e xp re s s e d t h e id e a t h a t p ris o n s s h o u ld b e o p e ra t e d a cco rd in g t o a p h ilo s o p h y t h a t p ris o n e rs s h o u ld b e re fo rm e d , a n d t h a t re fo rm s h o u ld b e re wa rd e d wit h re le a s e fro m co n fin e m e n t . Th is u s h e re d in wh a t h a s b e e n ca lle d t h e Re fo rm a t o ry Mo ve m e n t . 13 The Elmira Reformatory One of the earliest prisons to adopt this philosophy was the Elmira Reformatory , wh ich wa s o p e n e d in 1876 u n d e r t h e le a d e rs h ip o f Zebulon Brockway . Bro ckwa y ra n t h e re fo rm a t o ry in a cco rd a n ce wit h t h e id e a t h a t e d u ca t io n wa s t h e ke y t o in m a t e re fo rm . Cle a r ru le s we re a rt icu la t e d , a n d in m a t e s t h a t fo llo we d t h o s e ru le s we re cla s s ifie d a t h igh e r le ve ls o f p rivile ge . 14 The Mark System Under this “mark” system, prisoners earned marks (credits) toward release. The number of marks that an inmate was required to earn in order to be released was established according to the seriousness of the offense. This was a movement away from the doctrine of proportionality, and toward indeterminate sentences and community corrections. 15 The Rehabilitation Model The next major wave of corrections reform was known as the rehabilitation model, which achieved momentum during the 1930s. This era was marked by public favor with psychology and other social and behavioral sciences. Ideas of punishment gave way to ideas of treatment, and optimistic reformers began attempts to rectify social and intellectual deficiencies that were the proximate causes of criminal activity. 16 The Medical Model This was essentially a medical model in which criminality was a sort of disease that could be cured. This model held sway until the 1970s when rising crime rates and a changing prison population undermined public confidence. 17 The Crime Control Model After the belief that “nothing works” became popular, the crime control model became the dominate paradigm of corrections in the United States. The model attacked the rehabilitative model as being “soft on crime.” “Get tough” policies became the norm throughout the 1980s and 1990s, and lengthy prison sentences became common. The aftermath of this has been a dramatic increase in prison populations and a corresponding increase in corrections expenditures. 18 Reform Still Needed Those expenditures have reached the point that many states can no longer sustain their departments of correction. The pendulum seems to be swinging back toward a rehabilitative model, with an emphasis on community corrections. While the community model has existed parallel to the crime control model for many years, it seems to be growing in prominence. 19 Prison Classifications Prisons in the United States today are usually distinguished by custody levels. Super -maximum -security prisons (Su p e r Ma x) a re u s e d t o h o u s e t h e m o s t vio le n t a n d m o s t e s ca p e -p ro n e in m a t e s . Th e s e in s t it u t io n s a re ch a ra ct e rize d b y a lm o s t n o in m a t e m o b ilit y wit h in t h e fa cilit y, a n d fo rt re s s -like s e cu rit y m e a s u re s . Th is t yp e o f fa cilit y is ve ry e xp e n s ive t o b u ild a n d o p e ra t e . Th e firs t s u ch p ris o n wa s t h e n o t o rio u s fe d e ra l p ris o n Alcatraz , b u ilt b y t h e Fe d e ra l Bu re a u o f Pris o n s in 1934. 20 Maximum-security Prisons Maximum -security prisons are fortresses that house the most dangerous prisoners. Only 20\% of the prisons in the United States are labeled as maximum security, but, because of their size, they hold about 33\% of the inmates in custody. Because super -max prisons are relatively rare, maximum -security facilities hold the vast majority of America’s dangerous convicts. 21 Maximum Security Characteristics These facilities are characterized by very low levels of inmate mobility, and extensive physical security measures. Tall walls and fences are common features, usually topped with razor wire. Watchtowers staffed by officers armed with rifles are common as well. Security lighting and video cameras are almost universal features. 22 Death Row States that use the death penalty usually place death row inside a maximum - security facility. These areas are usually segregated from the general population, and extra security measures are put in place. Death row is often regarded as a prison within a prison, often having different staff and procedures than the rest of the facility. 23 Medium-security Prisons Medium -security prisons use a series of fences or walls to hold prisoners that, while still considered dangerous, are less of a threat than maximum - security prisoners. The physical security measures placed in these facilities are often as tight as for maximum -security institutions. The major difference is that medium -security facilities offer more inmate mobility, which translates into more treatment and work options. These institutions are most likely to engage inmates in industrial work, such as the printing of license plates for the State. 24 Minimum-security Prisons Minimum -security prisons are institutions that usually do not have walls and armed security. Prisoners housed in minimum -security prisons are considered to be nonviolent and represent a very small escape risk. Most of these institutions have far more programs for inmates, both inside the prison and outside in the community. 25 Minimum Security Differences Part of the difference in inmate rights and privileges stems from the fact that most inmates in minimum -security facilities are “short timers” --they are scheduled for release soon. The idea is to make the often problematic transition from prison to the community go more smoothly. Inmates in these facilities may be assigned there initially, or they may have worked their way down from higher security levels through good behavior and an approaching release date. 26 Women’s Prisons Women are most often housed in women’s prisons. These are distinguished along the same lines as male institutions. These institutions tend to be smaller than their male counterparts are, and there are far fewer of them. 27 Gender Differences Women do not tend to be as violent as men are, and this is reflected in what they are incarcerated for. The majority of female inmates are incarcerated for drug offenses. Inmate turnover tends to be higher in women’s prisons because they tend to receive shorter sentences. 28 Gender Segregation A few states operate coeducational prisons where both male and female inmates live together. The reason for this is that administrators believe that a more normal social environment will better facilitate the eventual reintegration of both sexes into society. The fear of predation by adult male offenders keeps most facilities segregated by gender. 29 Private Prisons In the recent past, the dramatic growth in prison populations led to the emergence of private prisons. Priva t e o rga n iza t io n s cla im e d t h a t t h e y co u ld o wn a n d o p e ra t e p ris o n s m o re e fficie n t ly t h a n go ve rn m e n t a ge n cie s ca n . Th e Corrections Corporation of America is t h e la rge s t co m m e rcia l o p e ra t o r o f ja ils a n d p ris o n s in t h e Un it e d St a t e s . Th e p o p u la rit y o f t h e id e a h a s wa n e d in re ce n t ye a rs , m o s t ly d u e t o le ga l lia b ilit y is s u e s a n d a fa ilu re t o re a lize t h e h u ge s a vin gs p ro m is e d b y t h e p riva t e co rp o ra t io n s . 30 Special Populations A major problem affecting the operation of prisons in the United States is what is known as special populations. Among these are elderly inmates. An a gin g p o p u la t io n in ge n e ra l co u p le d wit h m a n d a t o ry s e n t e n cin g la ws h a s ca u s e d a n e xp lo s io n in t h e n u m b e r. Th is is a n e xp e n s ive p ro p o s it io n fo r t h e Am e rica n co rre ct io n a l s ys t e m . A s u b s t a n t ia l re a s o n fo r t h is in cre a s e d co s t is t h e in cre a s e d m e d ica l a t t e n t io n p e o p le t e n d t o re q u ire a s t h e y gro w o ld e r. 31 Prison Overcrowding While the trend in prison population data is down, prison overpopulation is still a major problem in many states. Many of those states are under court order to fix overcrowding problems, which are unconstitutional. Governments have responded with many programs aimed at reducing prison overcrowding. 32 Prison Programs Prisons are like small cities in many respects. All of the requirements of life must be met, and rehabilitative objectives must be facilitated. Medical services must be rendered, and religious needs must be met. Inmates have a right to some types of recreation. Many prisons have labor and industry programs. Rehabilitative programs include job training, addiction treatment, therapy for psychological and emotional problems, and many other programs are common. 33 Introduction to Criminal Justice Section 6.3: Prisoner’s Rights Prepared by Adam J. McKee 1 Prisoner’s Rights in America American courts were reluctant to get involved in prison affairs during most of the 19th century. Until the 1960s, the courts used a hands -off approach to dealing with corrections. Since, it the court has recognized that “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution” ( Turner v. Safley, 1987). Pris o n e rs d o give u p ce rt a in righ t s b e ca u s e o f co n vict io n , b u t n o t a ll o f t h e m . 2 Hudson v. Palmer(1984) “While prisoners enjoy many protections of the Constitution that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration, imprisonment carries with it the circumscription or loss of many rights as being necessary to accommodate the institutional needs and objectives of prison facilities, particularly internal security and safety.” 3 Political Rights The phrase political right is used to refer to rights related to the participation in the democracy of the United States: Chief among these is the right to vote. The Constitution of the United States allows states to revoke a person’s right to vote upon conviction, but does not require it. Several states revoke the right to vote while a person is incarcerated but restore the right once the person is released from prison. 4 Status and Voting Rights A few states revoke the right to vote for life when a person is convicted of a felony. The right to vote cannot be denied to those who are pretrial detainees confined to a jail, or someone who is a misdemeanant. These individuals are usually given the right to vote by absentee ballot. 5 Free Speech and Assembly The First Amendment right of prisoners to free speech is curtailed, but not eliminated. Prison administrators must justify restrictions on free speech rights. The rights to assemble is generally curtailed. As a rule, prison administrators can ban any inmate activity that is a risk to the security and safety of the institution. 6 Freedom of Religion Generally, prisoners have the right to free exercise of their religious beliefs. These, however, can be curtailed when the health and safety of the institution are at risk. To be protected, the particular religious beliefs must be “sincerely held.” Prison officials may not, however, legally show a preference for one religion over another. 7 Policy v. Religion In practice, some religious customs have conflicted with prison policies, such as requiring work on religious holidays that forbid labor. These types of policies have been upheld by the courts. 8 Access to the Courts The First Amendment guarantees the right “to petition the Government for a redress of grievances.” For prisoners, this has translated to certain types of access to the courts. The two major categories of petitions that can be filed by prisoners are criminal appeals (often by habeas corpus petitions) and civil rights lawsuits. The right to petition the courts in these ways is referred to as the right of access to the courts. 9 Freedom from Retaliation Inmates who file complaints, grievances, and lawsuits against prison staff have a constitutional right to be free from retaliation. The Supreme Court based this right on the logic that retaliation by prison staff hampers the exercise of protected constitutional rights. In practice, this right has been difficult for inmates to assert. Prison staff can often find legitimate reasons for taking action that was intended as retaliation. 10 Disciplinary Proceedings In the landmark case of Wolff v. McDonnell (1974), t h e Su p re m e Co u rt d e fin e d t h e co n t o u rs o f p ris o n e r righ t s d u rin g p ris o n d is cip lin a ry p ro ce e d in gs . Wh ile n o t a ll d u e p ro ce s s righ t s d u e a crim in a l d e fe n d a n t we re d u e t h e p ris o n e r in a d is cip lin a ry p ro ce e d in g, s o m e righ t s we re p re s e rve d . 11 Wolff: Advanced Notice Advance written notice of charges must be given to the disciplinary action inmate, no less than 24 hours before his appearance before the Adjustment Committee. 12 Wolff: Record of Evidence There must be a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action. 13 Wolff: Preparing a Defense The inmate should be allowed to call witnesses and present documentary evidence in his defense if permitting him to do so will not jeopardize institutional safety or correctional goals. 14 Wolff: Confrontation The inmate has no constitutional right to confrontation and cross -examination in prison disciplinary proceedings, such procedures in the current environment, where prison disruption remains a serious concern, being discretionary with the prison officials. 15 Wolff: Appointed Counsel Inmates have no right to retained or appointed counsel. 16 Right to Privacy The right to privacy is closely related to the law of search and seizure. In the landmark case of Hudson v. Palmer (1984), t h e Co u rt d e t e rm in e d t h a t in m a t e s d o n o t h a ve a re a s o n a b le e xp e ct a t io n o f p riva cy in t … Introduction to Criminal Justice Section 1.1: Major Components Prepared By Adam J. McKee “The” System? In reality, there is no one criminal justice system in the United States. There are many similar systems. Each state has its criminal justice system, and the Federal government has another still. This section considers how these various systems are composed by looking at the major components common to them all. 2 Traditional Divisions Traditionally, the criminal justice system can be divided into three major components: 1. Police 2. Courts 3. Corrections 3 The Rule of Law It may seem that there is no real common thread to this system. In the United States, the thing that binds all of the components together and regulates them is the Rule of Law. Th e ru le o f la w is t h e id e a t h a t e ve ry p e rs o n is s u b je ct t o t h e la w, e ve n t h o s e t h a t m a ke t h e la w, in t e rp re t t h e la w, a n d e n fo rce t h e la w. 4 The Constitution The most potent law in the United States is the Constitution of the United States. This body of laws provides all Americans with civil liberties that the government cannot violate. If a state law or a federal law violates any of these protections, then the law will be declared void. 5 The Role of the Courts It is up to the appellate courts, most notably the Supreme Court, to interpret these laws and determine the exact nature and scope of specific civil liberties in the United States. Further, if an agent of the state or federal government violates a persons rights, that person has remedies available. 6 Remedies Citizens can sue government employees that violate their rights under Section 1983 of the United States Code . An important remedy in criminal justice is the exclusionary rule . The exclusionary rule was established by the Supreme Court ( SCOTUS) to prevent police misconduct. The rule states that illegally obtained evidence (evidence obtained in violation of someones constitutional rights) cannot be admitted as evidence in court. 7 Police People tend to use the word police generically to indicate those individuals with law enforcement responsibility. The majority of these are municipal police officers. There are many sheriffs’ deputies as well as state and federal agents that do not technically fit under the umbrella term “police.” 8 Police Functions Enforcing the law is only a small fraction of what the police do every day. They maintain order and provide many services to the communities they serve. The police also have the responsibility of investigating crimes, collecting evidence, and work with prosecutors to obtain convictions in court. 9 The Gatekeepers The police are often called the “gatekeepers of the criminal justice system.” This description is accurate because entry into the system requires formal action on the part of law enforcement. Police officers have incredible decision -making authority when dealing with citizens and suspects. An officer can choose to ignore an offense, issue a verbal warning, issue a written warning, issue a citation, or formally arrest the person. 10 Limits on Discretion Of course, the seriousness of the crime plays a major role in how the police exercise discretion . An officer would not ignore or issue a citation to a person engaged in a serious felony crime. 11 Specialization in Policing The duties of police officers can be very general in the case of a patrol officer, or they can be very specialized in the case of a homicide detective. The level of specialization depends largely on the size of the agency where the officer works. Large, urban police departments tend to have more resources, more officers, and a higher degree of specialization. 12 The Backbone of Policing The backbone of policing is the patrol division, and patrol is always a generalist function. The successful patrol officer is a jack -of -all-trades. 13 Courts When law enforcement and prosecutors accuse a person of violating a criminal law, it is up to the courts to determine if the person did indeed violate the law. If so, it is up to the court prescribe the appropriate punishment. Sentencing is limited by the sentencing laws in that courts jurisdiction. 14 Our Adversarial System Because the American legal system is adversarial in nature, there must always be two teams in any court case. In a criminal matter, a lawyer known as the prosecutor presents the governments case. A major goal of the prosecutor is to see the defendant found guilty of the alleged crime. 15 The Defense The defense attorney has the job of trying to show that the defendant is not guilty. The judge serves as a referee, making sure that both sides diligently follow the rules of the game. The jury is tasked with deciding (at the end) who the winner is. In the adult criminal justice system, all cases are adversarial in nature. 16 Finders of Fact In a jury trial, the jury serves as the finder of fact. The term finder of fact in this case means that the jury decides whether the defendant is innocent or guilty. In serious cases, the defendant has a right to trial by jury. It is allowable, however, that the defendant consent to a bench trial. A bench trial is a trial where the judge takes on the role of the jury as finder of fact. 17 Corrections is another umbrella term that encompasses many diverse crim in a l ju s t ice a ct ivit ie s . Co rre ct io n s ca n in clu d e : ● p ro b a t io n ● p a ro le ● ja il ● p ris o n ● m a n y co m m u n it y-b a s e d s a n ct io n s 18 Corrections What is it for? A problem with accurately defining corrections is a general disagreement about the philosophy of incarceration. ● Does society send people to prison as p u n is h m e n t , o r for p u n is h m e n t ? ● Do we e xp e ct p ris o n s t o p u n is h o r re h a b ilit a t e ? Mo s t p e o p le ca n a gre e o n o n e t h in g: Th e p u b lic e xp e ct s co rre ct io n a l in s t it u t io n s t o e n s u re t h e p u b lic s a fe t y. 19 Jails Jailsare usually operated at the local level, most often under the leadership of a county sheriff . Jails are most commonly thought of as holding individuals that have been arrested and are awaiting a first appearance in court. Other jail inmates have been convicted of relatively minor offenses (misdemeanors) and are serving sentences of less than one year. Other prisoners may have been convicted of serious offenses, and are housed in the local jail awaiting transfer to a state prison. 20 Prisons Persons convicted of serious crimes can be sentenced to a prison term. A prison is generally larger, more secure, and provides more services than a jail. The reason for these extra services is that prisons are designed for long sentences (relative to jail sentences). Prisons are most often run at the state level of government, but there are also many federal prisons. 21 Defining Justice One of the overarching goals that brings the components of the criminal justice system together is that each is designed (in some way) to promote justice. Everyone has an idea of what justice is, but pinning down a definition that will be widely agreed upon proves to be a challenge. There are several different ways of looking at the idea. 22 Justice as Equality One way to view justice is in terms of equality . In economic language, equality means that everyone gets the same amount, regardless of what they put in. 23 Justice as Equity Another perspective is to view justice in terms of equity . When viewed this way, it means that people get what they deserve. Many feel that just deserts means that criminal punishments should be in proportion to the harm done. This concept of just deserts in criminal justice has been referred to as retributive justice . 24 Lex Talionis The idea of wrongdoers being deserving of repayment in kind is known by the Latin phrase Lex Talionis, o r t h e law of retribution . In it s p u re s t fo rm , le x t a lio n is is t h e Bib lica l d o ct rin e o f a n e ye fo r a n e ye , a t o o t h fo r a t o o t h . In t o d a ys crim in a l ju s t ice s ys t e m , t h e id e a o f re t rib u t io n t a ke s o n t h e m e a n in g o f va ria b le le n gt h s o f p ris o n s e n t e n ce s . 25 Justice as Fair Process Another way to look at the idea of justice is to examine the process. In other words, an act is just if it was done using a fair process. Justice viewed in terms of fair process is often referred to as procedural justice . This idea leaves room for debate as to what sort of processes are to be considered fair. Accessibility and predictability are common criteria. 26 Due Process In the United States, the idea of procedural justice is closely tied to the idea of due process . In a philosophical sense, due process means that agents of the criminal justice system conduct criminal proceedings in a fundamentally fair way. In a practical sense, due process means that the state must respect all legal rights of accused persons. 27 Due Process and the Constitution What criminal justice procedures are required under due process is a dynamic body of rules. These rules are most often judicial determinations of what exactly the Constitution means in practice. The idea of due process is represented throughout the Bill of Rights , as well as being specifically guaranteed by the 1. Fifth Amendment (applies to the federal government) 2. Fourteenth Amendment (applies to state government) 28 Introduction to Criminal Justice Section 1.2: Roles, Objectives, and Limits Prepared by Adam J. McKee Three Branches of Government Because the criminal justice system represents a function of the “state,” each of the Three Branches of Government has a role to play. Each branch has different responsibilities; thus, each branch depends on the other to function properly. Each of the three exists on the federal, state, and local level. Each of these levels of government dominates some aspect of the criminal justice system. Which Level of Government? Law enforcement is primary a local government function, as are jail operations. Making criminal laws and operating corrections agencies is primarily a state function. The federal government duplicates all criminal justice functions on a national scale. Ultimately, prisons, jails, and corrections programs can be operated at all levels of government. The Role of Legislatures The term legislature refers to lawmaking assemblies such as the Congress of the United States or the law making bodies of all the states. Legislatures have many important functions in the criminal justice system. Perhaps the most direct function is that the legislature determines what acts are crimes and what the punishment is for particular crimes. Statutes and Codes They do this by enacting statutes. Official versions of the law that are organized by subject are called codes. Thus, when we refer to the criminal code (also called the penal code ) we are referring to a collection of statutes that define crimes. Legislatures and Federalism In the dual federalist criminal justice system of the United States, state legislatures are the source of the bulk of criminal laws. Another crucial role of the legislature is to provide funding for criminal justice agencies and programs. Without funding, criminal justice activities would halt. The Role of the Judiciary The role of the judiciary in criminal justice is complicated by the hierarchical nature of the court systems. This hierarchy can be simplified by dividing courts into two major categories: 1. trial courts 2. appellate courts Trial courts adjudicate the guilt of people charged with crimes and impose sentence on those determined to be guilty. Myth v. Reality Hollywood leads to the conclusion that most criminal cases result in a trial by jury. This is substantially incorrect. The fact is that most criminal defendants who do not have their charges dropped prior to being formally charged will plead guilty. Most of those guilty pleas are a result of plea bargaining , an unglamorous but necessary process that takes place largely out of the public view. Appellate Courts Appellate courts are different in that they do not conduct criminal trials. Rather, they hear complaints raised by people who were not satisfied with their treatment by the trial court or some other aspect of the criminal justice system. Judicial Review The appellate courts can hear these complaints because they have the power of judicial review . Judicial review means that the appellate courts can review a law made by the legislature and determine if it meets constitutional standards. At the federal level, this means the standards set forth in the Constitution of the United States. At the state level, state appellate courts can determine if state legislatures have acted within the limits of that state’s particular constitution. Unconstitutional Statutes If the high court determines that a law is unconstitutional , then the law becomes void. Sometimes lawmakers will attempt to redraft the law to meet constitutional standards, and other times they delete it entirely. Appeals Courts Appeals courts also have the power to review the actions of government employees, such as law enforcement officers and correctional officers. The most important appellate court in the United States is the Supreme Court . The day-to -day activities of police officers are heavily influenced by Supreme Court decisions dictating how the police must treat suspects and evidence. The United States has dual court systems due to the structure of the American government. The Role of the Executive The executive branch of government includes the offices of the president of the United States, governors of the fifty states, and the mayors of America’s many towns and cities. Often these individuals are directly responsible for many appointments within the criminal justice system. Executive Appointments Mayors appoint chiefs of police in many towns and cities. Governors appoint law enforcement heads as well as correctional leadership. The President appoints federal judges, including those who sit on the Supreme Court. Agenda Setting & Public Opinion The executive has a key role to play in setting criminal justice agendas and galvanizing public opinion. Discretion in Criminal Justice A theme that permeates any discussion of the criminal justice system is the use and misuse of discretion . The term discretion is used to indicate the power that agents of the criminal justice system have to make decisions based on personal judgments. At this point, the discussion centers on discretion at the highest levels of government, and how that discretion influences the criminal justice system. Common Objectives The Bureau of Justice Statistics (1993) has identified three common goals of every element of the criminal justice system. These are: 1. efficiency 2. effectiveness 3. fairness Efficiency Efficiency means economically applying available resources to accomplish statutory goals as well as to improve public safety. Effectiveness Effectiveness refers to carrying out justice system activities with proper regard for equity, proportionality, constitutional protections afforded defendants and convicted offenders, and public safety. Fairness Fairness refers to justice issues such as assuring equal treatment and handling of like offenders and giving equal weight to legally relevant factors in sentencing. Fairness is of such great importance because it is enshrined in the Constitution of the United States under the catchall phrase due process . Procedural Due Process Note that the Supreme Court has focused on procedural due process as the ultimate measure of justice in the United States. That is, the system of concerned with everyone being treated the same as they are processed through the system. More often than not, the fairness of individual outcomes is of little concern. The Constitutional Framework No matter where you live in the United States, you are protected by two independent criminal justice systems. There is always the federal system as well as the system of the state. This means that at both the state and federal level we find those who enforce the law, those who adjudicate the law, and those who punish and rehabilitate offenders. While these broad goals are the same, the particulars are quite different. Which Level of Government? The system is further complicated by the fact that most law enforcement in the United States is done on a local level. Thus, local officers are enforcing state laws. Offenders sentenced to a period of incarceration can serve their time in local jails or state run penitentiaries. The federal system is less convoluted in that federal agents investigate federal crimes, and federal prosecutors take those cases to federal courts. The Criminal Justice Burden By far, state and local government takes on the largest share of the criminal justice burden. As citizens, the local police departments and sheriff’s departments that serve us are whom we depend on to protect us from criminal harms. The Nonsystem Argument One of the most enduring debates about the criminal justice system of the United States is whether it is a system at all. The term system suggests components that work together to achieve some overarching goal. Critics argue that no such thing happens in American criminal justice. What the Naysayers Say They argue that the police, courts, and corrections agencies act independently of each other with different financial resources and different goals and objectives. Many critics see a failure to organize around a central purpose, and thus we find that the criminal justice system is no system at all. This position is known as the Nonsystem Argument . The Role of Rules in Criminal Justice One common aspect of all criminal justice systems within the United States is the abundance of rules that govern criminal justice activities. These rules are hierarchical. The most important and enduring rules that must be followed by agents of the criminal justice system are those enshrined in the Constitution of the United States. The Bill of Rights Most of the safeguards of American civil liberties against intrusion by the government are contained in the Bill of Rights . The Bill of Rights is the first ten Amendments to the Constitution. Codes After the federal constitution and the constitution of the states comes federal and state statutes. The collection of federal statutes organized by topic is called the United States Code. St a t e s h a ve a crim in a l co d e s a s we ll. Court Rules and Agency Regulations There are also court rules established by the high courts that bind the lower courts as well as agents of the criminal justice system. At the federal level, these are known as the Federal Rules of Criminal Procedure. In a d d it io n t o t h e s e va rio u s la ws , t h e re a re a ge n cy ru le s a n d re gu la t io n s t h a t a ge n t s o f t h e crim in a l ju s t ice s ys t e m m u s t fo llo w. Why We Need Discretion Discretion refers to the authority the public gives agents of the criminal justice system to make decisions based on their own professional judgment. Discretion is necessary because formal rules cannot take into account every contingency criminal justice professionals encounter in practice. To function effectively, criminal justice professionals must make judgment calls. Juvenile Justice: The Bad Old Days For much of history in the United States, children were treated the same as adult criminals. According to common law, the defense of infancy was available to children below the age of seven. The idea was that very young children were not culpable because they lacked the capacity to understand the wrongfulness of their actions. After age seven, the infancy defense disappeared, and children could face prison and even death. Reform During the 19 th century, society’s view of children began to change. People began to realize that children were not merely miniature adults. They were still developing cognitively and morally. This new view of adolescence spawned a revolution in juvenile justice and led to a completely separate way of dealing with youths that committed crimes. The Juvenile Court Movement The Juvenile Court Movement began in the United States at the end of the Nineteenth Century. From the juvenile court statute adopted in Illinois in 1899, the system has spread to every State in the Union, the District of Columbia, and Puerto Rico. The Focus The rigid and cold adult system was not appropriate for children. Both the substantive and the procedural criminal law had to be discarded in favor of a system that fostered the best interest of the child . Thus, from inception the focus of the juvenile system was treatment or rehabilitation. Introduction to Criminal Justice Section 1.3: Defining and Measuring Crime Prepared by Adam J. McKee Defining Crime A crime is an act or omission that is prohibited by law. For a law to be valid, a particular punishment or range of punishments must be specified. In the United States, the most common punishments are fines and imprisonment. As a matter of legal theory, a crime is a failed duty to the community for which the community will exact some punishment. 2 Types of Crimes Historically, legal scholars differentiated between things that were wrongs in themselves, which were referred to as mala in se offenses. These were distinct from mala prohibita offenses, which represented acts that were criminal merely because the government wished to prohibit them. Many criminal justice scholars use these terms to differentiate between heinous crimes like rape and murder and victimless crimes such as gambling and vagrancy. 3 Misdemeanors Today, the most common and most basic division of crimes is based on the seriousness of the offense, and thus the possible punishment. Misdemeanors are less serious crimes that are punishable by fine and confinement in a local jail for a period not to exceed a year. 4 Felonies Felonies are more serious crimes that the government punishes by fines, imprisonment (most commonly under the auspices of the state’s Department of Corrections) for a period exceeding a year, or death. The distinction between misdemeanors and felonies is of ancient origin, coming to us through the Common Law of England . 5 Common Law Felonies Common law felonies included: 1. murder 2. rapemayhem 3. robbery 4. sodomy 5. larceny 6. arson 7. manslaughter 8. burglary 6 Common Misdemeanors What is classified as a misdemeanor largely depends on the jurisdiction. Common examples are: ● petty theft ● prostitution ● public intoxication ● simple assault ● disorderly conduct ● vandalism 7 Dual Classifications Some crimes can be both misdemeanors and felonies, depending on the circumstances. A battery that results in a handprint on the victim’s face may be classified as a misdemeanor, while a kick that breaks the victim’s ribs may be a felony. Similarly, an arson that does relatively little damage (in terms of financial costs) may be a misdemeanor, while an arson that destroys a home will be a felony. 8 Labeling Offenders These distinctions have made it into our popular culture, where criminals who commit felonies are often known as felons . Less commonly used is the term misdemeanant , who is a person convicted of misdemeanor. 9 Violations Most jurisdictions recognize a class of offenses that do not result in any period of incarceration, and are punished with only a fine. These minor breaches of the law are usually called violations . 10 Crime Statistics To understand crime and the criminal justice system, we need to understand the prevalence of crime. Good crime statistics are critically important to understanding crime trends. The more federal and state agencies know about crime trends, the more intelligently they can allocate precious resources and maximize efforts at crime suppression and prevention. Crime statistics are also frequently used as an evaluation tool for justice programs. 11 Crime Rates If the rate of a particular crime is falling, then what the system is doing will seem to be working. If the rate of a particular crime is rising, then it will seem to indicate that the criminal justice system is failing. 12 Uniform Crime Reports In the United States, the most frequently cited crime statistics come from the FBI’s Uniform Crime Reports (UCR) . The UCR are crime data collected by over 16,000 local and state law enforcement agencies on crimes that have been brought to the attention of police. These law enforcement agencies voluntarily send information to the FBI, which compiles them into an annual published report along with several special reports on particular issues. 13 Criticisms of the UCR Since its inception in the 1930s, many people have been critical of the UCR system for a variety of reasons. Among these reasons are: ● only crimes reported to the police are included ● only counts the most serious crime committed in a series of crimes ● does not differentiate between completed crimes and attempts ● does not include many types of crimes(e.g., white -collar and federal crimes). 14 Social Scientists’ Complaints Scholars complained that the UCR did not obtain potentially important information about the victim, the offender, the location of the crime and so forth. Without this information, social scientists could not use the UCR data in attempts to explain and predict crime. These complaints eventually led to the development of a much more informative system of crime reporting known as the National Incident Based Reporting System (NIBRS). 15 Defining NIBRS The NIBRS is an incident-based reporting system in which agencies collect data on each single crime occurrence. NIBRS data come from local, state, and federal automated records’ systems. 16 What NIBRS Includes The NIBRS collects data on each single incident and arrest within 22 offense categories made up of 46 specific crimes called Group A offenses. For each of the offenses coming to the attention of law enforcement, specified types of facts about each crime are reported. In addition to the Group A offenses, there are 11 Group B offense categories for which only arrest data are reported. 17 Benefits of NIBRS ● Can furnish information on nearly every major criminal justice issue facing law enforcement today. ● Legislators and other stakeholders have access to more comprehensive crime information than the summary reporting can provide. ● ·Law enforcement can better make a case to acquire the resources needed to fight crime. ● Enables agencies to find similarities in crime -fighting problems so that agencies can work together to develop solutions. ● Provides statistics to enable a law enforcement agency to provide a full accounting of the status of public safety within the jurisdiction. 18 Problems with NIBRS The major problem with NIBRS today is that it has not been universally implemented. Agencies and state Programs are still in the process of developing, testing, or implementing the NIBRS. In 2004, 5,271 law enforcement agencies contributed NIBRS data to the UCR Program. The data from those agencies represent 20 percent of the U.S. population and 16 percent of the crime statistics collected by the UCR Program. 19 The Dark Figure of Crime A commonly cited problem with the UCR is that there are many, many crimes that do not come to the attention of police. This problem is not limited to minor offenses. For example, it is estimated that nearly half of all rapes go unreported. These undocumented offenses are often referred to as the dark figure of crime . 20 National Crime Victimization Survey ( This is the reason that the United States is the Bureau of Justice Statistics (BJS) developed the National Crime Victimization Survey (NCVS) . The NCVS, which began in 1973, provides a detailed picture of crime incidents, victims, and trends. 21 What the NCVS Measures Today, the survey collects detailed information on the frequency and nature of the crimes of: ● rape and sexual assault ● personal robbery ● aggravated and simple assault ● household burglary ● theft ● motor vehicle theft. It does not measure homicide or commercial crimes. 22 The NCVS Data Two times a year, U.S. Census Bureau personnel interview household … Introduction to Criminal Justice Section 2.2: Politics in Criminal Justice Prepared by Adam J. McKee Defining Politics Politics is the art and science of running a government and guiding governmental policy . The nature of politics in America is conflict and debate about policy, and criminal justice policy falls into that arena . The American political system and the criminal justice system involve actions of the President, Congers, courts, bureaucracies, interest groups, elections, and the media . 2 Local Politics These groups are mirrored on the state level and to some degree on the local level. The actions of elected officials have a direct impact on the system, and the policies they implement directly affect how justice is done . 3 The Politics of Selecting Decision Ma In a democratic republic, one of two ways selects criminal justice decision makers : They either are elected by the public, or are appointed by a public official (often an elected one). Elected mayors, for example, often appoint chiefs of police . The President of the United States (an elected official) appoints Supreme Court justices with the confirmation of the U.S. Senate (a body of elected officials) . Both methods are highly political and cannot be understood without understanding something of the political process . 4 The Politics of Lawmaking Although the federal legal system and that of most states rely on the old common law for their historical foundations, criminal law is mostly a matter of statute these days. That is, criminal laws are made by legislative assemblies that decide which acts are prohibited, and what punishments are appropriate for those that commit those acts in violation of the law . 5 The “Get Tough” Era Obviously, politics influences the laws that assemblies pass. Today the nation finds itself at the conclusion of what has been a “get tough” era of criminal justice . Ushered in by the “crack epidemic” of the early 1980s, this has been a period of harsher punishments, longer prison sentences, less therapeutic programs, and skyrocketing corrections budgets . 6 The Political Pendulum The pendulum seems to have reached the far right, and now may be swinging back toward the middle . Many states have begun concentrated efforts at finding alternatives to incarceration, and the federal government is considering early release for drug offenders sentenced under the “get tough” drug laws of the previous two decades. 7 The Politics of Policing Most police departments try to distance themselves from the vicissitudes of politics as much as possible . To be effective, law enforcement must be seen as fair and impartial, serving all of the community without favoritism or political patronage . The political climate of a community can have a huge impact on the police department . Elected officials appoint police administrators, and can often fire them just as easily. 8 Local Politics and Policing The style of law enforcement, formal departmental policy, and informal norms can all be heavily influenced by local politics . The structure of local government can have an impact on how police services are delivered . Professional city managers, for example, are less likely to get involved in police affairs than are mayors and city council members . 9 The Politics of Prosecution While police departments are often somewhat shielded from politics and influenced by it indirectly, prosecutors in most jurisdictions are elected officials and thus highly political . At the federal level, an essentially political process appoints U.S. attorneys . The career paths of these federal lawyers tend to be linked to one particular political party or the other . 10 Politically Motivated Prosecutions It is common to see prosecutors at both the state and federal level using their tenure as prosecutors to launch political careers . This fact gives rise to the unethical possibility of political prosecutions against political enemies . In fact, many at the time stated that this was the sort of thing that was happening with the impeachment proceedings launched against then - President Bill Clinton . 11 The Politics of the Judiciary There is a tendency among academic writers to view the judiciary as somehow above partisan politics . In the modern American reality, this is a pleasant fiction . Judges at all levels of government are either elected or appointed, and this fact makes them political creatures . Elected judges fear public reactions to issues with political foundations, such as appearing “soft on crime” or being in favor of the death penalty, or for it, depending on the political climate in the judge’s jurisdiction . 12 The Impact of Ideology Those political affiliations and beliefs necessarily inform judges’ decisions . Conservative courts tend to side with law and order, willing to sacrifice some civil liberties to maintain law and order . Liberal judges tend to take the opposite, ruling in favor of civil liberties at the expense of (in the minds of the opposition) public safety . 13 Judicial Decisions Are Political It has been said that the real job of appellate courts is balancing the civil rights of the people with the desire of the people to be safe from crime . Obviously, the political beliefs of the justices making these decisions weighs heavily in the outcome of important cases. 14 The Politics of Corrections As with the other elements of the criminal justice systems, corrections is a highly politicized aspect of government . At the local level, the operation of jails is tied to the office of sheriff in many jurisdictions, which ties jail operations to the politics of particular individuals being elected and reelected as sheriff . At the state level, departments of corrections are highly political, with administrators and budgets being politically determined . 15 The Politics of Parole Another highly political aspect of corrections is the membership and functioning of parole boards, which is established by appointment of the governor in most jurisdictions . If parole boards make release decisions that later reflect badly on the board members, the bad press will ultimately turn to the governor . 16 The Politicization of Justice As politics is such an integral part of criminal justice, a high potential for serious problems generated by politics exists . Rash decisions can be made, poorly considered policies can be implemented, and ill -conceived laws can be written that hamper the efficient and ethical administration of justice . 17 Politics and Emotional Decision Maki Unscrupulous politicians can easily make appeals to people’s emotions, fears, and prejudices to improve their own chances at reappointment or reelection . Sadly, emotionally charged decisions do not tend to be rational decisions . In the high -stakes world of criminal justice, clear, rational thinking is often overshadowed by politically charged emotionality . 18 Crime Control versus Due Process Herbert Packer (1964) outlined two competing models of the value systems operating within criminal justice today : The crime control model a n d th e due process model . Th e s e t wo m o d e ls o f h o w t h e ju s t ice s ys t e m s h o u ld o p e ra t e re fle ct t wo o p p o s in g s e t s o f p o lit ica l id e o lo gie s t h a t h a ve a m a s s ive im p a ct o n crim in a l ju s t ice d e cis io n -m a kin g a t a ll le ve ls . 19 Democrat versus Republican? The divide is not as simple as Democrat or Republican. Both models represent core values in the American way of life. After all, every good citizen wants to see crime controlled. We want to live in safe, orderly communities. 20 But... As Americans, we also highly value freedom. We loath the idea of oppressive governments that interfere with our personal liberties. We are proud of our rights to be free from government oppression, and we value our right to privacy. 21 The Crime Control Model According to Packer, “The value system that underlies the Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process.” 22 The Crime Control Philosophy There is a definite political philosophy that underlies this assertion: “The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom. If the laws go unenforced, which is to say, if it is perceived that there is a high percentage of failure to apprehend and convict in the criminal process, a general disregard for legal controls tends to develop.” 23 Policy Outcomes Adherents of the Crime Control Model advocate enhancing the powers of the police to investigate and prosecute criminals . These necessarily include enhanced powers of search and seizure . Under this philosophy of criminal justice, the primary focus of the system should be discovering the truth and establishing the facts . 24 The Due Process Model The Due Process Model takes a rather opposite view of how the system should operate . The key to understanding this position is that it hinges on protecting the civil rights of every citizen . Under this philosophy, the most important function of the criminal justice system is to ensure procedural due process, which mean maintaining fundamental fairness in all aspects of the criminal justice process . 25 Policy Outcomes A major policy implication if this view is to limit police powers in order to prevent the oppression of the individual citizen . Adherents of this position hold that merely establishing guilt is not adequate ; the government must show guilt in a fair and legal way that respects the rights of the accused. 26 A Dynamic Process In reality, the courts and other elements of the criminal justice system have to strike a balance of these two positions . It must be realized that the relative importance of each of these positions is not static : There is a constant tug of war between the two positions . 27 The Makeup of the Court As the makeup of America’s high courts change, so too does the underlying philosophy that dominates the decisions of those courts . Liberal courts establish broad civil liberties, and conservative courts erode those liberties in the name of law and order . 28 The Juvenile Justice System The 1800s saw a revolution in the way Americans controlled juvenile delinquency. The movement away from treating juveniles as adults began as early as 1825 when the Society for the Prevention of Juvenile Delinquency began advocating separate facilities for juvenile offenders. Privately run juvenile facilities sprang up, and soon generated controversy over reported abuses. This criticism led many states to create their own juvenile detention facilities. 29 American Beginnings Detention facilities were not the only facet of the system that was changing. Illinois passed the Juvenile Court Act of 1899, which established the America’s first juvenile court. 30 Parens Patriae The British policy of parens patriae (t h e go ve rn m e n t a s th e p a re n t ) wa s t h e ra t io n a le fo r th e s t a t e b e co m in g in vo lve d in th e live s o f ch ild re n d iffe r e n t ly t h a n it d id wit h a d u lt o ffe n d e rs . Th e d o ct rin e wa s in te rp r e t e d t o m e a n th a t t h e s t a t e h a d b o t h t h e righ t a n d t h e o b liga t io n t o in t e r ve n e wh e n n a t u ra l p a re n t s fa ile d to d is cip lin e a d e q u a t e ly a n d p ro t e ct ch ild re n . 31 The Welfare of the Child A critical aspect of the developing juvenile justice system was a focus on the welfare of the child . Delinquent youths were seen as being in need of the benevolent guidance of the court . Rather than merely punishing delinquents for their wrongdoings, juvenile courts sought to turn delinquents into productive citizens through treatment rather than the punitive measures used in adult cases. 32 Expansion By 1910, 32 States had established juvenile courts, and many of those had established probation services. By 1925, all but two States had established the foundations of a juvenile justice system . 33 Introduction to Criminal Justice Section 2.3: The Policymaking Role of the Supreme Court Prepared by Adam J. McKee The Supreme Court and Policy The Supreme Court of the United States has an extremely important policymaking role, and this has an enormous impact on the criminal justice system . The Supreme Court has the power of judicial review. Th is p o we r wa s firs t e xe r cis e d in th e la n d m a r k ca s e o f Marbury v. Madison , d e cid e d in 1803. Marbury v. Madison (1803) The Court struck down a statute that it considered repugnant to the Constitution . This case served as the precedent for judicial review, and the Supreme Court has exercised the power ever since that time . Judicial review is th e a u t h o rit y o f t h e Su p re m e Co u r t t o re vie w t h e a ct s o f Co n gre s s , a n d d e t e rm in e if t h o s e a ct s m e e t t h e s t a n d a rd s s e t fo rt h in t h e Co n s t it u t io n . The Due Process Clause The Due Process Clause has proven very important in the Courts shaping of policy through judicial review . What exactly constitutes due process is extremely vague, and when the Court decides whether something is required by due process, they are in effect making policy . The evolution of police procedure during the Warren Court years is an enduring example of this policy -making power at work . Judicial Modesty In theory, Supreme Court justices should practice what constitutional scholars have called judicial modesty . Ju d icia l m o d e s t y r e fe rs t o t h e id e a t h a t ju s t ice s s h o u ld o n ly s t rike d o wn a ct s o f t h e le gis la tive b ra n ch wh e n th o s e la ws a r e in d ire ct co n flict wit h a co n s t it u t io n a l p ro vis io n . Th e re h a s b e e n a h is t o rica l t re n d o f ju d icia l s e lf-re s t r a in t a m o n g a t le a s t s o m e ju s t ice s . “Modest” Justices These justices feel that policy is best left in the hands of the legislative and executive branches . Striking down a law merely because a majority of justices disagrees with the legislature is wrong under this doctrine . The way our system functions, there is nothing to stop the justices from doing this . “Activist” Justices Other justices take the position that the court should be active in cases of civil liberties and civil rights . When it comes to allowing political agendas enter into the judicial decision - making process, the justices must police themselves . The Political Lens Supreme Court justices, in theory, sit in order to interpret the law . This interpretation is, in reality, filtered through a political lens. No matter how well meaning these justices may be, their perceptions of what is right or wrong in the law are impacted by their personal political beliefs . “Liberal” v. “Conservative” While there are always individual differences, a common way to divide the political leanings of the court is to use the terms liberal a n d conservative t o d e s crib e b o t h in d ivid u a l ju s t ice s , t h e co u rt in ge n e ra l, a n d p a rt icu la r d e cis io n s . Illu s t ra t io n s o f liberal decisions a re d e cis io n s fa vo rin g crim in a l d e fe n d a n t s , p e o p le cla im in g d is crim in a t io n , a n d t h o s e cla im in g vio la t io n s o f civil righ t s . De cis io n s t h a t a p p e a r t o fa vo rin g p o lice , p ro s e cu t o r s , a n d o t h e r go ve rn m e n ta l e n t it ie s a re s a id t o b e conservative . The Recent Court Currently, the Supreme Court as a distinct cluster of four judges that consistently vote liberal, and another cluster of four justices who vote conservative . Justice Anthony Kennedy sits right in the middle of the political spectrum, and is the “swing” vote that makes predicting the outcome of Supreme Court decisions very difficult . With the vacancy created upon the death of Justice Scalia (a staunch conservative), the future of the Court is in question . Individual Differences Not all liberal justices are equally liberal . In the 2013 term, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan cast liberal votes 70 percent of the time . While still left leaning, Justice Stephen Breyer is substantially more conservative than his female counterparts . Activism v. Restraint There are two major vantage points from which to regard the work of the Supreme Court . The first is that the constitution should be interpreted as it is written . A second is that the Constitution must be interpreted in the context of modern life and modern problems . The is debate has been characterized as one between judicial activism and judicial restraint . Judicial Activism Judicial activism represents the idea that the Court should actively seek to right wrongs that other branches of government actively promote or will not do anything about . The majority of justices on the Warren Court were known as judicial activists . These justices believed that the court should take an active role in ensuring the civil rights of all Americans . Judicial Restraint Judicial restraint is the idea that the democratic process should direct changes in policy . That is, policy should be set by legislative enactments that represent the will of the people . Advocates of judicial restraint commonly argue that since Justices are appointed rather than elected, they are not the proper body to make policy changes. Some Caveats Note that while the Warren court was liberal in its judicial activism, that courts example should not lead to the conclusion that activism is always liberal . The reality is that there will always be a tug of war between a strict constructionist view of the constitution and the dynamic body of ideas envisioned by extreme judicial activists . The reality of an evolving society utilizing evolving technology dictates that the Constitution be somewhat dynamic . The Necessity of Change A literal interpretation of the constitution would indicate that your phone calls, texts, and emails are all subject to seizure by the government without a warrant . Those things did not exist when the Fourth Amendment was written, so the they could not be protected . The fundamental question that remains is one of striking a balance between nullifying the democratic process and not allowing the Constitution to remain relevant over time . Limits on Judicial Activism The legal framework that judges work within limits judicial activism to some extent. Before a federal court can hear a case, certain conditions must be met. Under the Constitution, federal courts exercise only judicial powers. This means that federal judges may interpret the law only through the resolution of actual legal disputes, referred to in Article III of the Constitution as “Cases or Controversies.” Standing Second, assuming there is an actual case or controversy, the plaintiff in a federal lawsuit also must have legal standing t o a s k t h e co u rt fo r a d e cis io n . Th a t m e a n s t h e p la in t iff m u s t h a ve b e e n a ggrie ve d , o r le ga lly h a rm e d in s o m e wa y, b y t h e d e fe n d a n t . Th u s , o r ga n iza t io n s s u ch a s t h e Am e rica n Civil Lib e rt ie s Un io n ca n n o t s u e t h e p o lice d ire ct ly, b u t t h e y ca n fu n d le ga l a s s is t a n ce fo r a p a rt y t h a t a ct u a lly a lle ge s h a rm d o n e b y t h e p o lice . Jurisdiction of the Courts In addition, the case must present a category of dispute that the law in question was designed to address, and it must be a complaint that the court has the power to remedy . That is, the court must be authorized, under the Constitution or a federal law, to hear the case. For example, if there is no substantial federal question , th e Su p r e m e Co u r t ca n n o t re vie w a ca s e o rigin a t in g in s t a t e co u rt s . Moot Cases In addition, the case cannot be moot . A ca s e is moot if it d o e s n o t p re s e n t a n o n go in g p ro b le m fo r t h e co u r t t o re s o lve . Th e fe d e ra l co u rt s , t h u s , a r e co u rt s o f lim it e d ju ris d ict io n b e ca u s e t h e y m a y o n ly d e cid e ce rt a in t yp e s o f ca s e s a s p ro vid e d b y Co n gr e s s o r a s id e n t ifie d in t h e Co n s t it u t io n . The Power of the Court Even with these limits, the policymaking role of the Supreme Court should not be underestimated . The rulings of the court are just as consequential as acts of congress and the executive decisions of the president . Many times, the ruling of the court is not based merely on a literal reading of the law . In many cases, the justices are invoking their own interpretations of what the law should be, and not what it objectively is. Introduction to Criminal Justice Section 2.4: The Civil Rights Revolution Prepared by Adam J. McKee The Political Pendulum A political pendulum, swinging back and forth from liberal to conservative, marks the history of the U.S. Supreme Court. Obviously, conservative courts are courts composed of conservative justices, usually appointed by conservative presidents. Liberal courts, on the other hand, are composed of liberal justices, usually appointed by liberal presidents. The Warren Court These courts are often characterized by the name of the chief justice at the time . During the 1960s, the pendulum swung to the apex of liberalism when Chief Justice Earl Warren (1953 – 1969) led it . The Warren Court adhered to Packer’s Due Process Model, at least after the judicial activists achieved a majority on the Court with the retirement of Justice Frankfurter’s retirement in 1962. This date marks the true beginning of the civil rights revolution . The Civil Rights Revolution This liberal court, headed by Warren, emphasized civil rights across the legal spectrum . The most enduring changes in criminal justice occurred in their interpretations of the Fourth Amendment and Fifth Amendments, with many landmark cases coming down that were designed by the court to shield citizens from the abuse of police powers . Rapid Change Prior to the 1960’s, the Supreme Court rarely interfered in the way that states ran their own criminal justice systems. The 1960s was a time of rapid social change, and that change is reflected in the decisions of the Warren Court. When the Warren court passed down its decision in Mapp v. Ohio in 1961, t h e crim in a l ju s t ice s ys t e m in Am e rica wa s ch a n ge d fo re ve r. The Agenda Over the remainder of Warren’s tenure as Chief Justice, the court would hand down many more decisions that would redefine the American legal landscape in terms of civil liberties . Mapp v. Ohio A more conservative Supreme Court, back in 1949, stated that the exclusionary rule applied only to federal law enforcement officers . According to the ruling in Wolf v. Colorado (1949), if citize n s h a d a n y p ro t e ct io n a ga in s t ille ga lly o b t a in e d e vid e n ce b e in g u s e d a ga in s t t h e m in co u rt , it wa s u p t o s t a t e s u p re m e co u rt s t o in t e rp re t s t a t e co n s t it u t io n s in s u ch a wa y. Wh e n Mapp o ve r ru le d Wolf, th e exclusionary rule wa s a p p lie d t o a ll la w e n fo r ce m e n t in t h e Un ite d St a t e s , n o m a tt e r wh a t le ve l o f go ve rn m e n t e m p lo ye d t h e m . Chimel Another landmark decision influencing law enforcement practice passed down by the Supreme Court was Chimel v. California (1969). Today, we teach that Chimel established an exception to the warrant requirement known as a search incident to arrest . As a n e xce p t io n t o th e s e a r ch wa r ra n t re q u ire m e n t , t h is m a y s e e m like a ca s e t h a t fit s Pa cke r’s crim e co n t ro l m o d e l. Th is is b e ca u s e a n e xce p t io n t o th e s e a r ch wa rr a n t re q u ire m e n t is ge n e ra lly co n s id e re d t o b e n e fit la w e n fo r ce m e n t , a n d is t h u s a vict o r y fo r la w a n d o rd e r a t t h e e xp e n s e o f a civil righ t. The Facts of Chimel The facts of the case paint a different picture. When the police arrested Chimel in his home for burglary, they searched his home for stolen coins that were the fruits of his crime. The coins were found in a garage attached to the house. The court ruled that while the search was incident to the arrest, the search of the garage went too far. The Impact of Chimel The proper scope of a search incident to arrest was the area in the suspect’s “immediate control .” We can see from this that the court limited a common police practice, effectively doing away with an unwritten arrest exception to the search warrant requirement of the Fourth Amendment . Because this was deemed a due process issue by the Supreme Court, that clause of the Fourteenth Amendment was used to apply the Fourth Amendment rule to state law enforcement . Gideon While the decisions of the Warren court had a weighty impact on many aspects of American life, the most profound effects on the criminal justice system were in the area of due process and defendants’ rights. In Gideon v. Wainwright (1963), t h e co u rt h e ld t h a t in d ige n t d e fe n d a n t s fa cin g ja il t im e h a d t h e righ t t o a p p o in t e d co u n s e l if t h e y co u ld n o t a ffo rd t h e ir o wn la wye r. Miranda In Miranda v. Arizona (1966), t h e Wa rre n Co u rt ru le d t h a t p o lice m u s t in fo rm s u s p e ct s o f ce rt a in righ t s p rio r t o a cu s t o d ia l in t e rro ga t io n . Du e t o p o p u la r cu ltu re , m o s t e ve r y Am e rica n kn o ws t h e s t a t e m e n t t h a t is re a d t o s u s p e ct s b y t h e p o lice : “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you by the state.” Terry Not every case decided by the Warren Court served to benefit criminal defendants . In Terry v. Ohio (1968), fo r e xa m p le , t h e Co u rt ru le d t h a t t h e p o lice co u ld s e a rch s u s p e ct s fo r we a p o n s wit h le s s t h a n p ro b a b le ca u s e . The Pendulum Swings Back The pendulum began to swing the other way in the 1970s. This swing occurred because the composition of the court began to change . As liberal justices retired from the court, Republican presidents such as Nixon, Reagan, and Bush replaced them . By the end of the first Bush administration, the court had transitioned from the very liberal Warren Court to a much more conservative body . The Conservative Courts These conservative courts hammered out many exceptions to the blanket protections created by the Warren Court . This has created an increasingly broad scope of lawful investigative activity for law enforcement . This shift from the Due Process Model to the Crime Control Model did not take place only within the courts . It took place in the executive and the legislative branches as well . The Burger Court The Burger Court (1969 – 1986) was far more conservative than the Warren Court, but there was no conservative majority . One of the most controversial cases decided by the Burger Court was Furman v. Georgia (1972), wh ich a b o lis h e d t h e d e a t h p e n a lty a s it wa s e n a ct e d a t th e t im e . Th is wa s n o t in ke e p in g wit h th e co n s e rva t ive e xp e ct a t io n s o f t h e Bu r ge r Co u rt b e ca u s e Wa rre n Bu rge r wa s a co n s e rva t ive a p p o in t e d b y Pr e s id e n t Rich a rd Nixo n . Slowing Change Conservatives hoped that a court led by Burger would be far more conservative, even to the point of overruling the more liberal of the Warren Court’s rulings --This was not to happen . The court may have chipped away at the major Warren Court doctrines, but it declined to overturn them . The chief justice may have been conservative when Furman was handed down, but the remnants of the Warren Court still sitting on the bench kept the court liberal, at least to a degree, in its majority decisions . Gregg Because the composition of the court had shifted, some conservative decisions were handed down. Burger voted with the majority of the court in 1976 to reinstate the death penalty in Gregg v. Georgia(1976). Chipping Away at Warren The Rehnquist Court (1986 - 2005) was far more conservative than the Burger Court. These conservative courts, perhaps out of concern for the time -honored tradition of cohesion and unity of the Supreme Court, did not overrule many of the liberal decisions of the Warren Court. Rather, they “chipped away” at them by creating scores of exclusions. That is, things like the exclusionary rule still existed as a matter of law, but there would be many exceptions that were created during the Reagan -Bush years. Justice Rehnquist Rehnquist was a strong believer … SOU-CCJ230 Introduction to the American Criminal Justice System SOU-CCJ230 Introduction to the American Criminal Justice System Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez Open Oregon Educational Resources SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License, except where otherwise noted. Contents What is an OER textbook? 1 A Bit About Our Collaboration Project 2 Author Bios 3 Goals, Learning Objectives, and Skills 5 Table of Contents 7 Dedication 8 1: CRIME, CRIMINAL JUSTICE, AND CRIMINOLOGY 1.1. Crime and the Criminal Justice System Shanell Sanchez 11 1.2. Deviance, Rule Violations, and Criminality Shanell Sanchez 14 1.3. Social Norms: Folkways, Mores, Taboo, and Laws Shanell Sanchez 16 1.4. Interactionist View Shanell Sanchez 20 1.5. Consensus View and Decriminalizing Laws Shanell Sanchez 24 1.6. Conflict View Shanell Sanchez 27 1.7. The Three C’s: Cops, Courts, and Corrections Shanell Sanchez 29 1.8. The Crime Control and Due Process Models Shanell Sanchez 36 1.9. How Cases Move Through the System Shanell Sanchez 39 1.10. Media Coverage of Crimes Shanell Sanchez 43 1.11. Wedding Cake Model of Justice Shanell Sanchez 48 1.12. Street Crime, Corporate Crime, and White-Collar Crime Shanell Sanchez 51 1.13. Different Types of Crimes and Offenses Shanell Sanchez 55 1.14. Victims and Victim Typologies Shanell Sanchez 57 1.15. Victim Rights and Assistance Shanell Sanchez 60 1.16. Spare the Rod, Spoil the Child Myth/Controversy 65 2: DEFINING AND MEASURING CRIME AND CRIMINAL JUSTICE 2.1. Dark or Hidden Figure of Crime Shanell Sanchez 69 2.2. Official Statistics Shanell Sanchez 71 2.3. Victimization Studies Shanell Sanchez 77 2.4. Self-Report Statistics Shanell Sanchez 79 2.5. Misusing Statistics Shanell Sanchez 82 3: CRIMINAL LAW 3.1. Functions and Limitations of Law Lore Rutz-Burri 87 3.2. Civil, Criminal, and Moral Wrongs Lore Rutz-Burri 89 3.3. Sources of Criminal Law: Federal and State Constitutions Lore Rutz-Burri 92 3.4. Sources of Criminal Law: Statutes, Ordinances, and Other Legislative Enactments Lore Rutz-Burri 100 3.5. Sources of Law: Administrative Law, Common Law, Case Law and Court Rules Lore Rutz-Burri 103 3.6. Classifications of Law Lore Rutz-Burri 110 3.7. Substantive Law: Defining Crimes, Inchoate Liability, Accomplice Liability, and Defenses Lore Rutz-Burri 113 3.8. Substantive Law: Punishment: Incarceration and Confinement Sanctions Lore Rutz-Burri 117 3.9. Substantive Law: Physical Punishment Sentences Lore Rutz-Burri 122 3.10. Substantive Law: Monetary Punishment Sentences Lore Rutz-Burri 126 3.11. Substantive Law: Community-Based Sentences Lore Rutz-Burri 129 3.12. Procedural Law Lore Rutz-Burri 134 4: CRIMINAL JUSTICE POLICY 4.1. Importance of Policy in Criminal Justice Alison S. Burke 139 4.2. The Myth of Moral Panics Alison S. Burke 142 4.3. The Stages of Policy Development Alison S. Burke 147 4.4. Importance of Evidence Based Practices Alison S. Burke 151 4.5. Re-Evaluating Policy Alison S. Burke 153 5: CRIMINOLOGICAL THEORY 5.1. What is Theory? Brian Fedorek 159 5.2. What Makes a Good Theory? Brian Fedorek 161 5.3. Pre-Classical Theory Brian Fedorek 163 5.4. Classical School Brian Fedorek 164 5.5. Neoclassical Brian Fedorek 167 5.6. Positivist Criminology Brian Fedorek 170 5.7. Biological and Psychological Positivism Brian Fedorek 172 5.8. The Chicago School Brian Fedorek 174 5.9. Strain Theories Brian Fedorek 176 5.10. Learning Theories Brian Fedorek 179 5.11. Control Theories Brian Fedorek 183 5.12. Other Criminological Theories Brian Fedorek 186 6: POLICING 6.1. Policing in Ancient Times Tiffany Morey 191 6.2. Sir Robert Peel Tiffany Morey 193 6.3. Policing Eras Tiffany Morey 196 6.4. Levels of Policing and Role of Police Tiffany Morey 207 6.5. Recruitment and Hiring in Policing Tiffany Morey 224 6.6. Recruitment and Hiring Websites for Future Careers Tiffany Morey 235 6.7. Police Misconduct, Accountability, and Corruption Tiffany Morey 244 6.8. Current Issues: Police Shootings Tiffany Morey 247 6.9. Current Issues: Use of Force and Vehicle Pursuits Tiffany Morey 250 6.10. Current Issues: Stereotypes in Policing Tiffany Morey 252 6.11. Current Issues: Accountability Tiffany Morey 255 6.12. Current Issues: Internal Affairs and Discipline Tiffany Morey 257 6.13.Current Issues: Body Cameras Tiffany Morey 260 6.14. Myth: “Police Only Write Speeding Tickets to Harass Citizens and it is Entrapment.” Tiffany Morey 261 7: COURTS 7.1. Introduction to the U.S. Court System Lore Rutz-Burri 265 7.2. Jurisdiction Lore Rutz-Burri 266 7.3. Structure of the Courts: The Dual Court and Federal Court System Lore Rutz-Burri 269 7.4. Structure of the Courts: State Courts Lore Rutz-Burri 276 7.5. American Trial Courts and the Principle of Orality Lore Rutz-Burri 279 7.6. The Appeals Process, Standard of Review, and Appellate Decisions Lore Rutz-Burri 280 7.7. Federal Appellate Review of State Cases Lore Rutz-Burri 284 7.8. Courtroom Players: Judges and Court Staff Lore Rutz-Burri 286 7.9. Courtroom Players: Prosecutors Lore Rutz-Burri 293 7.10. Courtroom Workgroup: Defense Attorneys Lore Rutz-Burri 297 8: CORRECTIONS 8.1. A Brief History of The Philosophies of Punishment David Carter 311 8.2. Retribution David Carter 313 8.3. Deterrence David Carter 315 8.4. Incapacitation David Carter 318 8.5. Rehabilitation David Carter 321 8.6. Prisons and Jails David Carter 324 8.7. A Brief History of Prisons and Jails David Carter 325 8.8. Types of Jails David Carter 329 8.9. Who Goes to Jail? David Carter 332 8.10. Growth of Prisons in the United States David Carter 334 8.11. Types of Prisons David Carter 336 8.12. Prison Levels David Carter 339 8.13. Who Goes to Prison? David Carter 342 9: COMMUNITY CORRECTIONS 9.1. Diversion David Carter 347 9.2. Intermediate Sanctions David Carter 349 9.3. Probation David Carter 352 9.4. Boot Camps/Shock Incarceration David Carter 357 9.5. Drug Courts David Carter 359 9.6. Halfway Houses David Carter 360 9.8. House Arrest David Carter 362 9.9. Community Residential Facilities David Carter 363 9.10. Restorative Justice David Carter 365 9.11. Parole David Carter 367 9.12. Current Issues in Corrections David Carter 371 9.13. Current Issues in Corrections: Mass Incarceration David Carter 372 9.14. Current Issues in Corrections: War on Drugs and Gangs David Carter 376 9.15. Current Issues in Corrections: Aging and Overcrowding David Carter 379 9.16. Current Issues in Corrections: Reentry and the Future of Corrections David Carter 384 10: JUVENILE JUSTICE 10.1. Youth Crime Alison S. Burke 389 10.2. Juvenile Justice Alison S. Burke 390 10.3. History of the Juvenile Justice System Alison S. Burke 392 10.4. Delinquency Alison S. Burke 396 10.5. Juvenile Justice Process Alison S. Burke 398 10.6. Due Process in the Juvenile Court Alison S. Burke 399 10.7. The Juvenile Justice and Delinquency Prevention Act of 1974 Alison S. Burke 402 10.8. Getting Tough: Initiatives for Punishment and Accountability Alison S. Burke 403 10.9. Returning to Rehabilitation in the Contemporary Juvenile Justice System Alison S. Burke 407 10.10. The Structure of the Juvenile Justice System Alison S. Burke 410 10.11. Juvenile Institutions Alison S. Burke 413 Glossary 417 We hope you are as excited about this textbook as we were writing it. This is a free academic resource and a free textbook that can be printed at low-cost if you prefer paper. Southern Oregon University’s Disability Resource has reviewed this textbook for accessibility to all students. Introduction to the American Criminal Justice System is an Open Educational Resource (OER) https://en.wikipedia.org/wiki/Open_educational_resources that is licensed under the Creative Commons (CC 4.0) format https://creativecommons.org with support to complete this project from Open Oregon Educational Resources https://openoregon.org. This introductory textbook is unique because it was a collaborative effort by all Criminology and Criminal Justice professors at Southern Oregon University (SOU) in Ashland, Oregon. This textbook will meet the learning objectives outlined through SOU and as a community college transfer course, as well as cover all other topics expected to find in an introductory course. This book can be used on a quarter or semester system, as well as cover topics that may get left out of some introductory texts such as controversial issues in the criminal justice system. Further, we made it as comprehensive as possible to cover core concepts and areas in the criminal justice system including theory, policing, courts, corrections, and the juvenile justice system. Additionally, we created examples that will help make difficult concepts or ideas more relatable. Every section provides an overview of key terms, critical thinking questions for course engagement, assignments, and other ancillaries such as multimedia links, images, activity ideas, and more. Feel free to ask any questions. Email Shanell Sanchez at [email protected] with any specific questions about the book or any other professor if it is specific to their page. 1 A Bit About Our Collaboration Project This OER could not be possible without the support from many different people. Our financial support came from a grant through Open Oregon https://openoregon.org. Dr. Shanell Sanchez wants to personally thank all her colleagues at SOU for taking on this endeavor with her. The first plan was to adapt and edit an existing OER, but after an exhaustive search of OER’s, we found there is a dearth of CCJ OER’s. We realized that if we wrote this book, we would be one of the first CCJ OER’s available. The initial idea seemed a bit overwhelming, but watching it come together was amazing. Dr. Sanchez had a vision for what an ideal textbook should look like for first-year students and our newest majors or potential majors, but it was not possible without all of us working together. Amy Hofer at Linn-Benton Community College served as our grant manager, but she went beyond that. She has served as an excellent resource, mentor, and helped us find opportunities to present our experiences at conferences. Dr. Jeffrey Gayton is our university librarian at Southern Oregon University and helped coordinate this project from the start of our application to the release of our OER going live. Brian Stonelake, a professor in the Mathematics department at Southern Oregon University, provided excellent guidance and insight to us when we were applying for the grant. Christina Richardson was our student that served as a contributing editor, as well as created our glossary for this OER. She went through the entire book to pose suggestions, edits, and comments that helped make the end product better. 2 Author Bios Alison S. Burke, Ph.D., Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/burke.html Alison S. Burke is a professor of criminology and criminal justice at Southern Oregon University. She earned her Ph.D. from Indiana University of Pennsylvania and her MCJ from the University of Colorado Denver. While in Denver, she worked with adjudicated youth in residential treatment facilities and group homes. She has published a variety of journal articles and book chapters related to juvenile justice, delinquency, and gender, and her primary research interests involve women and crime, juvenile justice and delinquency, and pedagogy in higher education. Her most recent book is titled Teaching Introduction to Criminology (2019). David E. Carter, Ph.D., Associate Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/davidcarter.html David E. Carter joined the Criminology and Criminal Justice Department in 2008. He received his Ph.D. from the University of Cincinnati. Dave served in the U.S. Army for 8 years as a linguist prior to attending school. He has published works in the Journal of Research in Crime and Delinquency in the area of life- course research, as well as in the Corrections Compendium, where he wrote about U.S. inmate populations. He also works with local agencies (in a consultative role) providing evidence-based practices and evaluations for correctional programs in the area of effective interventions and evidence-based programming. At SOU, Dave has helped facilitate the Lock-In event and annual that provides students with a hands-on experience of the justice system. Brian Fedorek, Ph.D., Associate Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/brianfedorek.html Brian Fedorek earned his doctorate at the Indiana University of Pennsylvania in Criminology. He has taught classes in Terrorism, Comparative Criminal Justice, Theories of Criminal Behavior, and introductory courses. His research interests include media and crime, criminological theory, and criminal violence. He has served on the board of the Western Association of Criminal Justice. Tiffany L. Morey, M.S., Instructor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/tiffany-morey-m-s.html Tiffany L. Morey has an almost three-decade career in the law enforcement arena. She retired as a Lieutenant from a police department in Las Vegas, Nevada. Her expertise is in the law enforcement, crime scene investigation (CSI), and forensics fields. During her tenure in policing in Las Vegas she worked in patrol, the crime prevention division, community services, recruitment, special events, problem-solving unit (first ever unit/substation for her department in a high gang and drug area), undercover prostitution 3 and narcotics stings, search warrant service assistance, mounted unit departmental work, CSI (crime scene investigator), forensics, Sergeant and Sergeant field training program and master trainer, Lieutenant and Lieutenant field training program, and finally Acting Captain. During this time, she was also chosen and paid by an independent firm to travel the country and conduct oral board interviews and assessment center testing and recruiting for law enforcement agencies and fire departments. She developed a ground-breaking class to assist candidates in the law enforcement hiring process and is now under contract to publish the related textbook/study guide. Tiffany continues to operate in the field of CSI and forensics as an expert investigator and witness on violent crime. She also runs a Crime Prevention Through Environmental Design (CPTED) business, offering citizens and owners of businesses CPTED reviews to ensure the safety of their homes and buildings. Finally, in her free time, she runs SOAR Wildlife Center (SoarWildlife.org), which is a non-profit organization, that rehabilitates sick, injured, or orphaned fawns and other baby mammals. Lore Rutz-Burri, J.D., Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/rutz.html Lore Rutz-Burri is a 1982 graduate of Southern Oregon State College (now SOU) with a Bachelors of Arts degree in Criminology and Political Science. After graduating, she lived in Southern Austria until 1984. Upon returning to the states, she earned an M.C.J (Master’s degree in Criminal Justice) from the University of South Carolina. In 1985 she started in a Ph.D. program at the University of Maryland, College Park, but early on decided she would rather pursue a law degree. In 1989 she graduated “order of the coif” with her doctor of jurisprudence (JD) from the University of Oregon School of Law. Following law school, Lore clerked for the Superior Court of Alaska in Fairbanks for one year and then worked for 5 years as a deputy district attorney in Josephine County, Oregon. There, she prosecuted a variety of crimes, but mostly assault cases. In 1995, she began teaching criminology and criminal justice at SOU. Since 2015 she has been a part-time Circuit Court judge in the Josephine County courts. Lore has been married for over 27 years to her husband, Markus (a Swiss national). They have two sons– Severin (who studied at SOU and majored in psychology) and Jaston (who studied at U of O and majored in philosophy). She has both case books and introductory text on criminal law and criminal procedure. Shanell K. Sanchez, Ph.D., Assistant Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/dr-shanell-sanchez.html Shanell Sanchez joined the Criminology and Criminal Justice department at Southern Oregon University in Ashland, Oregon in 2016. Prior to that, Shanell was an Assistant Professor in Criminal Justice at Colorado Mesa University in Grand Junction, Colorado. She received her Ph.D. from the University of Nebraska- Lincoln in Sociology in 2012. Her research and teaching interests are centered around social change and justice, inequality, and comparative crime and justice. ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ 4 Goals, Learning Objectives, and Skills There is a dearth of OER textbooks in Criminology and Criminal Justice, which made creating this textbook all the more exciting. At times we faced challenges about what or how much to cover, but our primary goal was to make sure this book was as in-depth as the two textbooks we were currently using for our CCJ 230 introduction course. The only way we were willing to undertake this project as if it was as good, or better than the current books students read. We have had very positive feedback about the required textbooks in the course but consistently heard how expensive the books were to buy. We also needed to ensure we met the learning outcomes outlined by SOU for a general education course, as well as the state of Oregon, to make sure this textbook helps students meet those outcomes. SOU’s catalog course description for CCJ 230 states this course surveys the functional areas of criminal justice in the United States. This OER covers law enforcement, criminal courts, sentencing, penal institutions, and community-based sanctions. It also includes historical and contemporary perspectives on components of the criminal justice system, as well as the legal and constitutional frameworks in which they operate. Learning Objectives • Students will increase the breadth of their knowledge and understanding of the American Criminal Justice System. • Students will enhance their critical thinking skills via writing, reading, and discussion. • Students will learn the history, functions, responsibilities, processes, and importance of each component of the criminal justice system. • Students will become familiar with research and its relationship to criminal justice policy. • Students will use the foundations learned about the American criminal justice system in future CCJ courses. Additionally, myths and controversies are incorporated in the course covering the above-noted content areas in the American criminal justice system. In our experience, this tends to be the most exciting part of the class. It also helps students build all learning outcomes through assignments, readings, and materials covered in class. The primary goal when writing this book was to make it easy to read, with fun examples, thought- 5 provoking discussion questions, and is accessible to all to ensure that students would read. The content level targeted first-year students who are taking their first course in Criminology and Criminal Justice, but also as a general education course for those that may not intend to major. In order to ensure each area has accessible materials for the course and meets our learning objectives and goals, we have conducted preliminary research in order to determine our best option is moving forward. ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ 6 Table of Contents 1. Crime, Criminal Justice and Criminology 2. Defining and Measuring Crime and Criminal Justice 3. Criminal Law 4. Criminal Justice Policy 5. Criminological Theory 6. Policing 7. Courts 8. Corrections 9. Community Corrections 10. Juvenile Justice 7 Dedication We dedicate this book to our students at Southern Oregon University, who continuously work hard in our classes and develop lasting relationships with us. We also dedicate this book to all our partners, children, fur babies, and friends that supported us in the writing process. 8 1: Crime, Criminal Justice, and Criminology Learning Objectives This section will broadly introduce crime, criminal justice, and criminology. This section is designed to be a broad overview of what the subsequent chapters will cover in detail. It also demonstrates how the United States create laws, policies enacted to enforce laws, and the role of the media. After reading this section, students will be able to: • Understand the differences between deviance, rule violations, and criminality • Explain the differences between the interactionist, consensus, and conflict views in the creation of laws • Identify the three components of the criminal justice system • Discuss the differences between crime control and due process model, and application examples to each • Describe the wedding cake model theory and application examples to each tier • Briefly explain the role of the media and how media may spread myths in society • Briefly understand the unique role of victims in the criminal justice process Background Knowledge Probe: The goal here is to assess current knowledge about the criminal justice system at the start of the course. Each of these topics is covered throughout the course, and they will often be a controversial topic and topic for debate. You will indicate whether you know each statement to be True or False, but there is no right or wrong answer since it is just to assess your background knowledge. 1. Blacks commit more crime than any other racial group. 9 2. The United States has the lowest recidivism rates in the world (return to prison). 3. The death penalty is cheaper than life imprisonment. 4. Politicians shape our thoughts on crime, even if they are inaccurate. 5. Children are most likely to be killed by a stranger. 6. A stranger is most likely to physically harm you. 7. White-collar crime costs our country more every year than street-crime. 8. Juveniles are more violent today than ever before. 9. Immigrants commit more crime than native-born people. 10. Violent crime has risen in the United States over the last 20 years. ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ 10 1.1. Crime and the Criminal Justice System SHANELL SANCHEZ Theft as a Child The first lesson in crime and criminality I remember was when I was in second grade and stole something from a local drug store. I thought that the bracelet was shiny and perfect. At first, I remember wanting to try it on, but then I did not want to take it off. I had more questions than my Nana may have been ready to answer about why I did it and why I could not keep it. I had to take the bracelet back, which hurt because I loved it. Because of guilt or shame, I told my grandma what I did. Think about a time in your life that you may have done something similar. Was this first lesson in crime and criminality from the person you were raised by such as a parent(s) or grandparent(s)? Did they teach you that what you did was a crime and, hopefully, how to correct this wrong at a young age? You were probably punished, and they may have consisted of helping out with more chores or losing your allowance to pay back what you stole. Imagine all the questions you may have for your parents at the moment: Why was it wrong? What would happen to me if I did not tell you? What is a crime? Who decides what makes a crime? What happens to me if I commit a crime and get caught? What is my punishment? Why was it wrong when there were so many polishes there? Further, I had to help out around the house for the weekend. In exchange for all this, she did not tell my dad because she knew her punishment was sufficient and to tell him may be excessive. She took a balanced approach to punishment and I think this is why it was so effective. It was not too strict, it was hard to complete, and I had to think about what I did. Most criminologists define crime as the violation of the laws of a society by a person or a group of people who are subject to the laws of that society (citizens). Thus, crime as defined by the State or Federal government. Essentially, crime is what the law states and a violation of the law, stated in the statue, would make actions criminal. 1 1. Lynch, M., Stretesky, P., Long, M. (2015). Defining crime: A critique of the concept and its implication. Palgrave Macmillan: US. 11 For example, if someone murdered another individual in the process of stealing their automobile most people would see this as a criminal and a straight-forward example of crime. We often see murder and robbery as wrong and harms society, as well as social order. However, there are times crime is not as straight- forward though and people may hesitate to call it criminal. The community I live in, and many others throughout the area, post signs that it is illegal to give food and other items to homeless individuals in need. If one were to violate this law and give food to a homeless person it would not involve harm to individuals, but the social order. Adele MacLean joined others in an Atlanta park to feed the hungry the Sunday before Thanksgiving and was given a citation and a summons to appear in court. Ultimately, MacLean’s case was dropped when she showed up in court, but she and her lawyers argued the citation for serving food without a permit was improper and demonstrates callousness toward the homeless. The city and some advocates say feeding people on the streets can hinder long-term solutions and raises sanitation concerns. 2 Approximately 40 cities across the nation have active laws to restrict food sharing, and a few dozen more had attempted such restrictions, according to the National Coalition for the Homeless. 3 We will talk later about how we may create laws based on what can cause harm. Harm can be to the social order, physical, economic, social, emotional, environmental, and more. In order to ensure that people receive justice in today’s society, we use the criminal justice system to administer punishment or reward, and those crimes are often punished based on morals and norms. The criminal justice system is a major social institution that is tasked with controlling crime in various ways. Police are often tasked with detecting crime and detaining individuals, courts often adjudicate and hand down punishments, and the correction system implements punishments and/or rehabilitative efforts for people who have been found guilty of breaking the law. Criminal Justice Process When the law is broken, the criminal justice system must respond in an attempt to make society whole again. The criminal justice system is made up of various agencies at different levels of government that can work independently and together, but each attempting to deal with crime. Challenges may arise when agencies do not work together or attempt to work together inefficiently. The notorious serial killer Ted Bundy was an example of U.S. law enforcement agencies not working together because of lack of technological advancement to freely exchange information and resources about killings in their area. Bundy exploited gaps in the traditional law enforcement, investigative processes throughout different jurisdictions, and ultimately was able to avoid arrest and detection. If various agencies at the Federal, State, and Local law enforcement level had worked together they could have potentially stopped Ted Bundy sooner. Following Ted Bundy, a Multi-agency Investigative Team manual, also known as the MAIT Taskforce, was created through the National Institute of Justice to develop information about the crime, it causes and how to control it https://www.ncjrs.gov/pdffiles1/Digitization/110826NCJRS.pdf. One of the values of the United States is that local agencies will control their local community, but at times this may create unexpected complications. Working Together? 2. Brumback, K. (2017). Cities, volunteers clash over feeding homeless in public. Associated Press. https://www.seattletimes.com/nation- world/cities-volunteers-clash-over-feeding-homeless-in-public/ 3. National Coalition for the Homeless. (2018). ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ 12 You are to create an argument for or against law enforcement agencies working together. Some countries have national police forces, whereas we do not. Be prepared to defend your position in the class. Although agencies may operate differently, the way cases move through the criminal …