b'SOU-CCJ230 Introduction to the American Criminal Justice System\n\n\x0c\x0cSOU-CCJ230 Introduction to the\nAmerican Criminal Justice System\n\nAlison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore\nRutz-Burri, and Shanell Sanchez\n\nOpen Oregon Educational Resources\n\n\x0cSOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany\nMorey, Lore Rutz-Burri, and Shanell Sanchez is licensed under a Creative Commons Attribution-ShareAlike 4.0 International\nLicense, except where otherwise noted.\n\n\x0cContents\n\nWhat is an OER textbook?\n\n1\n\nA Bit About Our Collaboration Project\n\n2\n\nAuthor Bios\n\n3\n\nGoals, Learning Objectives, and Skills\n\n5\n\nTable of Contents\n\n7\n\nDedication\n\n8\n\n1: CRIME, CRIMINAL JUSTICE, AND CRIMINOLOGY\n\n1.1. Crime and the Criminal Justice System\nShanell Sanchez\n\n1.2. Deviance, Rule Violations, and Criminality\nShanell Sanchez\n\n1.3. Social Norms: Folkways, Mores, Taboo, and Laws\nShanell Sanchez\n\n1.4. Interactionist View\nShanell Sanchez\n\n1.5. Consensus View and Decriminalizing Laws\nShanell Sanchez\n\n1.6. Conflict View\nShanell Sanchez\n\n1.7. The Three C\xe2\x80\x99s: Cops, Courts, and Corrections\nShanell Sanchez\n\n1.8. The Crime Control and Due Process Models\nShanell Sanchez\n\n1.9. How Cases Move Through the System\nShanell Sanchez\n\n1.10. Media Coverage of Crimes\nShanell Sanchez\n\n11\n14\n16\n20\n24\n27\n29\n36\n39\n43\n\n\x0c1.11. Wedding Cake Model of Justice\nShanell Sanchez\n\n1.12. Street Crime, Corporate Crime, and White-Collar Crime\nShanell Sanchez\n\n1.13. Different Types of Crimes and Offenses\nShanell Sanchez\n\n1.14. Victims and Victim Typologies\nShanell Sanchez\n\n1.15. Victim Rights and Assistance\nShanell Sanchez\n\n1.16. "Spare the Rod, Spoil the Child" Myth/Controversy\n\n48\n51\n55\n57\n60\n65\n\n2: DEFINING AND MEASURING CRIME AND CRIMINAL JUSTICE\n\n2.1. Dark or Hidden Figure of Crime\nShanell Sanchez\n\n2.2. Official Statistics\nShanell Sanchez\n\n2.3. Victimization Studies\nShanell Sanchez\n\n2.4. Self-Report Statistics\nShanell Sanchez\n\n2.5. Misusing Statistics\nShanell Sanchez\n\n69\n71\n77\n79\n82\n\n3: CRIMINAL LAW\n\n3.1. Functions and Limitations of Law\nLore Rutz-Burri\n\n3.2. Civil, Criminal, and Moral Wrongs\nLore Rutz-Burri\n\n3.3. Sources of Criminal Law: Federal and State Constitutions\nLore Rutz-Burri\n\n3.4. Sources of Criminal Law: Statutes, Ordinances, and Other Legislative Enactments\nLore Rutz-Burri\n\n3.5. Sources of Law: Administrative Law, Common Law, Case Law and Court Rules\nLore Rutz-Burri\n\n3.6. Classifications of Law\nLore Rutz-Burri\n\n87\n89\n92\n100\n103\n110\n\n\x0c3.7. Substantive Law: Defining Crimes, Inchoate Liability, Accomplice Liability, and Defenses\nLore Rutz-Burri\n\n3.8. Substantive Law: Punishment: Incarceration and Confinement Sanctions\nLore Rutz-Burri\n\n3.9. Substantive Law: Physical Punishment Sentences\nLore Rutz-Burri\n\n3.10. Substantive Law: Monetary Punishment Sentences\nLore Rutz-Burri\n\n3.11. Substantive Law: Community-Based Sentences\nLore Rutz-Burri\n\n3.12. Procedural Law\nLore Rutz-Burri\n\n113\n117\n122\n126\n129\n134\n\n4: CRIMINAL JUSTICE POLICY\n\n4.1. Importance of Policy in Criminal Justice\nAlison S. Burke\n\n4.2. The Myth of Moral Panics\nAlison S. Burke\n\n4.3. The Stages of Policy Development\nAlison S. Burke\n\n4.4. Importance of Evidence Based Practices\nAlison S. Burke\n\n4.5. Re-Evaluating Policy\nAlison S. Burke\n\n139\n142\n147\n151\n153\n\n5: CRIMINOLOGICAL THEORY\n\n5.1. What is Theory?\nBrian Fedorek\n\n5.2. What Makes a Good Theory?\nBrian Fedorek\n\n5.3. Pre-Classical Theory\nBrian Fedorek\n\n5.4. Classical School\nBrian Fedorek\n\n5.5. Neoclassical\nBrian Fedorek\n\n159\n161\n163\n164\n167\n\n\x0c5.6. Positivist Criminology\nBrian Fedorek\n\n5.7. Biological and Psychological Positivism\nBrian Fedorek\n\n5.8. The Chicago School\nBrian Fedorek\n\n5.9. Strain Theories\nBrian Fedorek\n\n5.10. Learning Theories\nBrian Fedorek\n\n5.11. Control Theories\nBrian Fedorek\n\n5.12. Other Criminological Theories\nBrian Fedorek\n\n170\n172\n174\n176\n179\n183\n186\n\n6: POLICING\n\n6.1. Policing in Ancient Times\nTiffany Morey\n\n6.2. Sir Robert Peel\nTiffany Morey\n\n6.3. Policing Eras\nTiffany Morey\n\n6.4. Levels of Policing and Role of Police\nTiffany Morey\n\n6.5. Recruitment and Hiring in Policing\nTiffany Morey\n\n6.6. Recruitment and Hiring Websites for Future Careers\nTiffany Morey\n\n6.7. Police Misconduct, Accountability, and Corruption\nTiffany Morey\n\n6.8. Current Issues: Police Shootings\nTiffany Morey\n\n6.9. Current Issues: Use of Force and Vehicle Pursuits\nTiffany Morey\n\n6.10. Current Issues: Stereotypes in Policing\nTiffany Morey\n\n191\n193\n196\n207\n224\n235\n244\n247\n250\n252\n\n\x0c6.11. Current Issues: Accountability\nTiffany Morey\n\n6.12. Current Issues: Internal Affairs and Discipline\nTiffany Morey\n\n6.13.Current Issues: Body Cameras\nTiffany Morey\n\n6.14. Myth: \xe2\x80\x9cPolice Only Write Speeding Tickets to Harass Citizens and it is Entrapment.\xe2\x80\x9d\nTiffany Morey\n\n255\n257\n260\n261\n\n7: COURTS\n\n7.1. Introduction to the U.S. Court System\nLore Rutz-Burri\n\n7.2. Jurisdiction\nLore Rutz-Burri\n\n7.3. Structure of the Courts: The Dual Court and Federal Court System\nLore Rutz-Burri\n\n7.4. Structure of the Courts: State Courts\nLore Rutz-Burri\n\n7.5. American Trial Courts and the Principle of Orality\nLore Rutz-Burri\n\n7.6. The Appeals Process, Standard of Review, and Appellate Decisions\nLore Rutz-Burri\n\n7.7. Federal Appellate Review of State Cases\nLore Rutz-Burri\n\n7.8. Courtroom Players: Judges and Court Staff\nLore Rutz-Burri\n\n7.9. Courtroom Players: Prosecutors\nLore Rutz-Burri\n\n7.10. Courtroom Workgroup: Defense Attorneys\nLore Rutz-Burri\n\n265\n266\n269\n276\n279\n280\n284\n286\n293\n297\n\n8: CORRECTIONS\n\n8.1. A Brief History of The Philosophies of Punishment\nDavid Carter\n\n8.2. Retribution\nDavid Carter\n\n311\n313\n\n\x0c8.3. Deterrence\nDavid Carter\n\n8.4. Incapacitation\nDavid Carter\n\n8.5. Rehabilitation\nDavid Carter\n\n8.6. Prisons and Jails\nDavid Carter\n\n8.7. A Brief History of Prisons and Jails\nDavid Carter\n\n8.8. Types of Jails\nDavid Carter\n\n8.9. Who Goes to Jail?\nDavid Carter\n\n8.10. Growth of Prisons in the United States\nDavid Carter\n\n8.11. Types of Prisons\nDavid Carter\n\n8.12. Prison Levels\nDavid Carter\n\n8.13. Who Goes to Prison?\nDavid Carter\n\n315\n318\n321\n324\n325\n329\n332\n334\n336\n339\n342\n\n9: COMMUNITY CORRECTIONS\n\n9.1. Diversion\nDavid Carter\n\n9.2. Intermediate Sanctions\nDavid Carter\n\n9.3. Probation\nDavid Carter\n\n9.4. Boot Camps/Shock Incarceration\nDavid Carter\n\n9.5. Drug Courts\nDavid Carter\n\n9.6. Halfway Houses\nDavid Carter\n\n347\n349\n352\n357\n359\n360\n\n\x0c9.8. House Arrest\nDavid Carter\n\n9.9. Community Residential Facilities\nDavid Carter\n\n9.10. Restorative Justice\nDavid Carter\n\n9.11. Parole\nDavid Carter\n\n9.12. Current Issues in Corrections\nDavid Carter\n\n9.13. Current Issues in Corrections: Mass Incarceration\nDavid Carter\n\n9.14. Current Issues in Corrections: War on Drugs and Gangs\nDavid Carter\n\n9.15. Current Issues in Corrections: Aging and Overcrowding\nDavid Carter\n\n9.16. Current Issues in Corrections: Reentry and the Future of Corrections\nDavid Carter\n\n362\n363\n365\n367\n371\n372\n376\n379\n384\n\n10: JUVENILE JUSTICE\n\n10.1. Youth Crime\nAlison S. Burke\n\n10.2. Juvenile Justice\nAlison S. Burke\n\n10.3. History of the Juvenile Justice System\nAlison S. Burke\n\n10.4. Delinquency\nAlison S. Burke\n\n10.5. Juvenile Justice Process\nAlison S. Burke\n\n10.6. Due Process in the Juvenile Court\nAlison S. Burke\n\n10.7. The Juvenile Justice and Delinquency Prevention Act of 1974\nAlison S. Burke\n\n10.8. Getting Tough: Initiatives for Punishment and Accountability\nAlison S. Burke\n\n389\n390\n392\n396\n398\n399\n402\n403\n\n\x0c10.9. Returning to Rehabilitation in the Contemporary Juvenile Justice System\nAlison S. Burke\n\n10.10. The Structure of the Juvenile Justice System\nAlison S. Burke\n\n10.11. Juvenile Institutions\nAlison S. Burke\nGlossary\n\n407\n410\n413\n\n417\n\n\x0cWe hope you are as excited about this textbook as we were writing it. This is a free academic resource and\na free textbook that can be printed at low-cost if you prefer paper. Southern Oregon University\xe2\x80\x99s Disability\nResource has reviewed this textbook for accessibility to all students.\nIntroduction to the American Criminal Justice System is an Open Educational Resource (OER)\nhttps://en.wikipedia.org/wiki/Open_educational_resources that is licensed under the Creative Commons\n(CC 4.0) format https://creativecommons.org with support to complete this project from Open Oregon\nEducational Resources https://openoregon.org.\nThis introductory textbook is unique because it was a collaborative effort by all Criminology and Criminal\nJustice professors at Southern Oregon University (SOU) in Ashland, Oregon. This textbook will meet the\nlearning objectives outlined through SOU and as a community college transfer course, as well as cover all\nother topics expected to find in an introductory course. This book can be used on a quarter or semester\nsystem, as well as cover topics that may get left out of some introductory texts such as controversial issues in\nthe criminal justice system. Further, we made it as comprehensive as possible to cover core concepts and areas\nin the criminal justice system including theory, policing, courts, corrections, and the juvenile justice system.\nAdditionally, we created examples that will help make difficult concepts or ideas more relatable. Every\nsection provides an overview of key terms, critical thinking questions for course engagement, assignments,\nand other ancillaries such as multimedia links, images, activity ideas, and more.\nFeel free to ask any questions. Email Shanell Sanchez at sanchezs2@sou.edu with any specific questions\nabout the book or any other professor if it is specific to their page.\n\n1\n\n\x0cA Bit About Our Collaboration Project\n\nThis OER could not be possible without the support from many different people. Our financial support came\nfrom a grant through Open Oregon https://openoregon.org.\nDr. Shanell Sanchez wants to personally thank all her colleagues at SOU for taking on this endeavor with\nher. The first plan was to adapt and edit an existing OER, but after an exhaustive search of OER\xe2\x80\x99s, we found\nthere is a dearth of CCJ OER\xe2\x80\x99s. We realized that if we wrote this book, we would be one of the first CCJ\nOER\xe2\x80\x99s available. The initial idea seemed a bit overwhelming, but watching it come together was amazing.\nDr. Sanchez had a vision for what an ideal textbook should look like for first-year students and our newest\nmajors or potential majors, but it was not possible without all of us working together.\nAmy Hofer at Linn-Benton Community College served as our grant manager, but she went beyond that.\nShe has served as an excellent resource, mentor, and helped us find opportunities to present our experiences\nat conferences.\nDr. Jeffrey Gayton is our university librarian at Southern Oregon University and helped coordinate this\nproject from the start of our application to the release of our OER going live.\nBrian Stonelake, a professor in the Mathematics department at Southern Oregon University, provided\nexcellent guidance and insight to us when we were applying for the grant.\nChristina Richardson was our student that served as a contributing editor, as well as created our glossary\nfor this OER. She went through the entire book to pose suggestions, edits, and comments that helped make\nthe end product better.\n\n2\n\n\x0cAuthor Bios\n\nAlison S. Burke, Ph.D., Professor of Criminology and Criminal Justice, Southern Oregon University,\nhttps://inside.sou.edu/criminology/faculty/burke.html\nAlison S. Burke is a professor of criminology and criminal justice at Southern Oregon University.\nShe earned her Ph.D. from Indiana University of Pennsylvania and her MCJ from the University of\nColorado Denver. While in Denver, she worked with adjudicated youth in residential treatment facilities\nand group homes. She has published a variety of journal articles and book chapters related to juvenile justice,\ndelinquency, and gender, and her primary research interests involve women and crime, juvenile justice\nand delinquency, and pedagogy in higher education. Her most recent book is titled Teaching Introduction to\nCriminology (2019).\nDavid E. Carter, Ph.D., Associate Professor of Criminology and Criminal Justice, Southern\nOregon University, https://inside.sou.edu/criminology/faculty/davidcarter.html\nDavid E. Carter joined the Criminology and Criminal Justice Department in 2008. He received his Ph.D.\nfrom the University of Cincinnati. Dave served in the U.S. Army for 8 years as a linguist prior to attending\nschool. He has published works in the Journal of Research in Crime and Delinquency in the area of lifecourse research, as well as in the Corrections Compendium, where he wrote about U.S. inmate populations.\nHe also works with local agencies (in a consultative role) providing evidence-based practices and evaluations\nfor correctional programs in the area of effective interventions and evidence-based programming. At SOU,\nDave has helped facilitate the Lock-In event and annual that provides students with a hands-on experience\nof the justice system.\nBrian Fedorek, Ph.D., Associate Professor of Criminology and Criminal Justice, Southern Oregon\nUniversity, https://inside.sou.edu/criminology/faculty/brianfedorek.html\nBrian Fedorek earned his doctorate at the Indiana University of Pennsylvania in Criminology. He has\ntaught classes in Terrorism, Comparative Criminal Justice, Theories of Criminal Behavior, and introductory\ncourses. His research interests include media and crime, criminological theory, and criminal violence. He has\nserved on the board of the Western Association of Criminal Justice.\nTiffany L. Morey, M.S., Instructor of Criminology and Criminal Justice, Southern Oregon\nUniversity, https://inside.sou.edu/criminology/faculty/tiffany-morey-m-s.html\nTiffany L. Morey has an almost three-decade career in the law enforcement arena. She retired as a\nLieutenant from a police department in Las Vegas, Nevada. Her expertise is in the law enforcement, crime\nscene investigation (CSI), and forensics fields. During her tenure in policing in Las Vegas she worked\nin patrol, the crime prevention division, community services, recruitment, special events, problem-solving\nunit (first ever unit/substation for her department in a high gang and drug area), undercover prostitution\n3\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nand narcotics stings, search warrant service assistance, mounted unit departmental work, CSI (crime scene\ninvestigator), forensics, Sergeant and Sergeant field training program and master trainer, Lieutenant and\nLieutenant field training program, and finally Acting Captain. During this time, she was also chosen and paid\nby an independent firm to travel the country and conduct oral board interviews and assessment center testing\nand recruiting for law enforcement agencies and fire departments. She developed a ground-breaking class\nto assist candidates in the law enforcement hiring process and is now under contract to publish the related\ntextbook/study guide. Tiffany continues to operate in the field of CSI and forensics as an expert investigator\nand witness on violent crime. She also runs a Crime Prevention Through Environmental Design (CPTED)\nbusiness, offering citizens and owners of businesses CPTED reviews to ensure the safety of their homes and\nbuildings. Finally, in her free time, she runs SOAR Wildlife Center (SoarWildlife.org), which is a non-profit\norganization, that rehabilitates sick, injured, or orphaned fawns and other baby mammals.\nLore Rutz-Burri, J.D., Professor of Criminology and Criminal Justice, Southern Oregon\nUniversity, https://inside.sou.edu/criminology/faculty/rutz.html\nLore Rutz-Burri is a 1982 graduate of Southern Oregon State College (now SOU) with a Bachelors of\nArts degree in Criminology and Political Science. After graduating, she lived in Southern Austria until 1984.\nUpon returning to the states, she earned an M.C.J (Master\xe2\x80\x99s degree in Criminal Justice) from the University\nof South Carolina. In 1985 she started in a Ph.D. program at the University of Maryland, College Park, but\nearly on decided she would rather pursue a law degree. In 1989 she graduated \xe2\x80\x9corder of the coif\xe2\x80\x9d with her\ndoctor of jurisprudence (JD) from the University of Oregon School of Law. Following law school, Lore\nclerked for the Superior Court of Alaska in Fairbanks for one year and then worked for 5 years as a deputy\ndistrict attorney in Josephine County, Oregon. There, she prosecuted a variety of crimes, but mostly assault\ncases. In 1995, she began teaching criminology and criminal justice at SOU. Since 2015 she has been a\npart-time Circuit Court judge in the Josephine County courts. Lore has been married for over 27 years to\nher husband, Markus (a Swiss national). They have two sons\xe2\x80\x93 Severin (who studied at SOU and majored in\npsychology) and Jaston (who studied at U of O and majored in philosophy). She has both case books and\nintroductory text on criminal law and criminal procedure.\nShanell K. Sanchez, Ph.D., Assistant Professor of Criminology and Criminal Justice, Southern\nOregon University, https://inside.sou.edu/criminology/faculty/dr-shanell-sanchez.html\nShanell Sanchez joined the Criminology and Criminal Justice department at Southern Oregon University\nin Ashland, Oregon in 2016. Prior to that, Shanell was an Assistant Professor in Criminal Justice at Colorado\nMesa University in Grand Junction, Colorado. She received her Ph.D. from the University of NebraskaLincoln in Sociology in 2012. Her research and teaching interests are centered around social change and\njustice, inequality, and comparative crime and justice.\n\n4\n\n\x0cGoals, Learning Objectives, and Skills\n\nThere is a dearth of OER textbooks in Criminology and Criminal Justice, which made creating this textbook\nall the more exciting. At times we faced challenges about what or how much to cover, but our primary goal\nwas to make sure this book was as in-depth as the two textbooks we were currently using for our CCJ 230\nintroduction course. The only way we were willing to undertake this project as if it was as good, or better\nthan the current books students read. We have had very positive feedback about the required textbooks in\nthe course but consistently heard how expensive the books were to buy. We also needed to ensure we met\nthe learning outcomes outlined by SOU for a general education course, as well as the state of Oregon, to\nmake sure this textbook helps students meet those outcomes.\nSOU\xe2\x80\x99s catalog course description for CCJ 230 states this course surveys the functional areas of criminal\njustice in the United States. This OER covers law enforcement, criminal courts, sentencing, penal\ninstitutions, and community-based sanctions. It also includes historical and contemporary perspectives on\ncomponents of the criminal justice system, as well as the legal and constitutional frameworks in which they\noperate.\nLearning Objectives\n\n\xe2\x80\xa2\n\nStudents will increase the breadth of their knowledge and understanding of the American Criminal\nJustice System.\n\n\xe2\x80\xa2\n\nStudents will enhance their critical thinking skills via writing, reading, and discussion.\n\n\xe2\x80\xa2\n\nStudents will learn the history, functions, responsibilities, processes, and importance of each\ncomponent of the criminal justice system.\n\n\xe2\x80\xa2\n\nStudents will become familiar with research and its relationship to criminal justice policy.\n\n\xe2\x80\xa2\n\nStudents will use the foundations learned about the American criminal justice system in future CCJ\ncourses.\n\nAdditionally, myths and controversies are incorporated in the course covering the above-noted content areas\nin the American criminal justice system. In our experience, this tends to be the most exciting part of the\nclass. It also helps students build all learning outcomes through assignments, readings, and materials covered\nin class. The primary goal when writing this book was to make it easy to read, with fun examples, thought5\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nprovoking discussion questions, and is accessible to all to ensure that students would read. The content level\ntargeted first-year students who are taking their first course in Criminology and Criminal Justice, but also as\na general education course for those that may not intend to major. In order to ensure each area has accessible\nmaterials for the course and meets our learning objectives and goals, we have conducted preliminary research\nin order to determine our best option is moving forward.\n\n6\n\n\x0cTable of Contents\n\n1. Crime, Criminal Justice and Criminology\n2. Defining and Measuring Crime and Criminal Justice\n3. Criminal Law\n4. Criminal Justice Policy\n5. Criminological Theory\n6. Policing\n7. Courts\n8. Corrections\n9. Community Corrections\n10. Juvenile Justice\n\n7\n\n\x0cDedication\n\nWe dedicate this book to our students at Southern Oregon University, who continuously work hard in our\nclasses and develop lasting relationships with us. We also dedicate this book to all our partners, children, fur\nbabies, and friends that supported us in the writing process.\n\n8\n\n\x0c1: Crime, Criminal Justice, and\nCriminology\n\nLearning Objectives\n\nThis section will broadly introduce crime, criminal justice, and criminology. This section is designed to be a\nbroad overview of what the subsequent chapters will cover in detail. It also demonstrates how the United States\ncreate laws, policies enacted to enforce laws, and the role of the media. After reading this section, students will be\nable to:\n\xe2\x80\xa2\n\nUnderstand the differences between deviance, rule violations, and criminality\n\n\xe2\x80\xa2\n\nExplain the differences between the interactionist, consensus, and conflict views in the creation of\nlaws\n\n\xe2\x80\xa2\n\nIdentify the three components of the criminal justice system\n\n\xe2\x80\xa2\n\nDiscuss the differences between crime control and due process model, and application examples to\neach\n\n\xe2\x80\xa2\n\nDescribe the wedding cake model theory and application examples to each tier\n\n\xe2\x80\xa2\n\nBriefly explain the role of the media and how media may spread myths in society\n\n\xe2\x80\xa2\n\nBriefly understand the unique role of victims in the criminal justice process\n\nBackground Knowledge Probe: The goal here is to assess current knowledge about the criminal\njustice system at the start of the course. Each of these topics is covered throughout the course, and they will\noften be a controversial topic and topic for debate.\nYou will indicate whether you know each statement to be True or False, but there is no right or wrong\nanswer since it is just to assess your background knowledge.\n1. Blacks commit more crime than any other racial group.\n\n9\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n2. The United States has the lowest recidivism rates in the world (return to prison).\n3. The death penalty is cheaper than life imprisonment.\n4. Politicians shape our thoughts on crime, even if they are inaccurate.\n5. Children are most likely to be killed by a stranger.\n6. A stranger is most likely to physically harm you.\n7. White-collar crime costs our country more every year than street-crime.\n8. Juveniles are more violent today than ever before.\n9. Immigrants commit more crime than native-born people.\n10. Violent crime has risen in the United States over the last 20 years.\n\n10\n\n\x0c1.1. Crime and the Criminal Justice System\n\nSHANELL SANCHEZ\n\nTheft as a Child\n\nThe first lesson in crime and criminality I remember was when I was in second grade and stole something from\na local drug store. I thought that the bracelet was shiny and perfect. At first, I remember wanting to try it on, but\nthen I did not want to take it off. I had more questions than my Nana may have been ready to answer about why I\ndid 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\nshame, I told my grandma what I did.\nThink about a time in your life that you may have done something similar. Was this first lesson in crime and\ncriminality from the person you were raised by such as a parent(s) or grandparent(s)? Did they teach you that what\nyou did was a crime and, hopefully, how to correct this wrong at a young age?\nYou were probably punished, and they may have consisted of helping out with more chores or losing your\nallowance to pay back what you stole.\nImagine all the questions you may have for your parents at the moment: Why was it wrong? What would happen\nto 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\ncrime and get caught? What is my punishment? Why was it wrong when there were so many polishes there?\nFurther, I had to help out around the house for the weekend. In exchange for all this, she did not tell my dad\nbecause she knew her punishment was sufficient and to tell him may be excessive. She took a balanced approach to\npunishment and I think this is why it was so effective. It was not too strict, it was hard to complete, and I had to\nthink about what I did.\n\nMost criminologists define crime as the violation of the laws of a society by a person or a group of\npeople who are subject to the laws of that society (citizens). Thus, crime as defined by the State or Federal\ngovernment. Essentially, crime is what the law states and a violation of the law, stated in the statue, would\n1\nmake actions criminal.\n1. Lynch, M., Stretesky, P., Long, M. (2015). Defining crime: A critique of the concept and its implication. Palgrave Macmillan: US.\n\n11\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nFor example, if someone murdered another individual in the process of stealing their automobile most\npeople would see this as a criminal and a straight-forward example of crime. We often see murder and\nrobbery as wrong and harms society, as well as social order. However, there are times crime is not as straightforward though and people may hesitate to call it criminal. The community I live in, and many others\nthroughout the area, post signs that it is illegal to give food and other items to homeless individuals in need.\nIf one were to violate this law and give food to a homeless person it would not involve harm to individuals,\nbut the social order.\nAdele MacLean joined others in an Atlanta park to feed the hungry the Sunday before Thanksgiving and\nwas given a citation and a summons to appear in court. Ultimately, MacLean\xe2\x80\x99s case was dropped when she\nshowed up in court, but she and her lawyers argued the citation for serving food without a permit was\nimproper and demonstrates callousness toward the homeless. The city and some advocates say feeding people\n2\non the streets can hinder long-term solutions and raises sanitation concerns. Approximately 40 cities across\nthe nation have active laws to restrict food sharing, and a few dozen more had attempted such restrictions,\n3\naccording to the National Coalition for the Homeless.\nWe will talk later about how we may create laws based on what can cause harm. Harm can be to the social order,\nphysical, economic, social, emotional, environmental, and more. In order to ensure that people receive justice in\ntoday\xe2\x80\x99s society, we use the criminal justice system to administer punishment or reward, and those crimes are often\npunished based on morals and norms.\nThe criminal justice system is a major social institution that is tasked with controlling crime in various ways.\nPolice are often tasked with detecting crime and detaining individuals, courts often adjudicate and hand down\npunishments, and the correction system implements punishments and/or rehabilitative efforts for people who have\nbeen found guilty of breaking the law.\nCriminal Justice Process\nWhen the law is broken, the criminal justice system must respond in an attempt to make society whole\nagain. The criminal justice system is made up of various agencies at different levels of government that\ncan work independently and together, but each attempting to deal with crime. Challenges may arise\nwhen agencies do not work together or attempt to work together inefficiently. The notorious serial killer\nTed Bundy was an example of U.S. law enforcement agencies not working together because of lack of\ntechnological advancement to freely exchange information and resources about killings in their area. Bundy\nexploited gaps in the traditional law enforcement, investigative processes throughout different jurisdictions,\nand ultimately was able to avoid arrest and detection. If various agencies at the Federal, State, and Local law\nenforcement level had worked together they could have potentially stopped Ted Bundy sooner. Following\nTed Bundy, a Multi-agency Investigative Team manual, also known as the MAIT Taskforce, was created\nthrough the National Institute of Justice to develop information about the crime, it causes and how to control\nit https://www.ncjrs.gov/pdffiles1/Digitization/110826NCJRS.pdf. One of the values of the United States is\nthat local agencies will control their local community, but at times this may create unexpected complications.\nWorking Together?\n\n2. Brumback, K. (2017). Cities, volunteers clash over feeding homeless in public. Associated Press. https://www.seattletimes.com/nationworld/cities-volunteers-clash-over-feeding-homeless-in-public/\n3. National Coalition for the Homeless. (2018).\n\n12\n\n\x0cIntroduction to the American Criminal Justice System\n\nYou are to create an argument for or against law enforcement agencies working together. Some countries have\nnational police forces, whereas we do not. Be prepared to defend your position in the class.\n\nAlthough agencies may operate differently, the way cases move through the criminal justice system is\nconsistent. The first step after getting caught stealing something from a store is involvement with police\nwhen law enforcement is called. The next step in the process is to proceed through the court system to\ndetermine guilt or innocence. If you are found guilty then you will receive a sentence that will be carried\nout in the next step. After conviction, you move to the correctional system for formal punishment and/or\ntreatments as determined by the courts. An individual may not go through the entire process and criminal\njustice officials decide whether the case should continue on to the next stage. Perhaps the officer decides not\nto cite you and your contact ends there. However, it may be the district attorney (DA) that decides to drop\nyour case before it even goes to trial. Regardless, the process is typically cops, courts, and then corrections.\nWe will explore each of these in greater detail later on.\n\nNews Box: In 2016, more people were arrested for marijuana possession than for all crimes the FBI\n4\n\nclassifies as violent. Overall in 2016, roughly 1.5 million people were arrested for drug-related offenses, up\n5\n\nslightly year-over-year Marijuana enforcement and criminalization goes to the heart of some of the most\npressing issues facing the criminal justice system, policymakers, citizens, and the world. Is criminalizing\ndrug use effective, especially for marijuana? Is spending money on enforcing drug laws, prosecuting drug\ncrimes, and punishing drug offenders effective? The United States has taken a get-tough approach towards\nthe War on Drugs, created mandatory minimum sentences, and punished people in large numbers but is it\neffective?\n\n4. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-18\n5. Ingraham, C. (2017). More people were arrested last year over pot than for murder, rape, aggravated assault, and robbery \xe2\x80\x94\ncombined. The Washington Post. https://www.washingtonpost.com/news/wonk/wp/2017/09/26/more-people-were-arrested-last-yearover-pot-than-for-murder-rape-aggravated-assault-and-robbery-combined/?noredirect=on&utm_term=.62735d3474ea\n\n13\n\n\x0c1.2. Deviance, Rule Violations, and Criminality\n\nSHANELL SANCHEZ\n\nNude Ultimate Frisbee\n\nImagine you recently moved to Oregon for work from Georgia after graduating college and hope to make new\nfriends. Georgia has been your home forever, so Oregon is entirely new. Then one day at the dog park you run\ninto a guy that seems like someone you would like to hang out with and he tells you to come out and play ultimate\nfrisbee this weekend. You decide to take the leap and meet new people, play a new sport, and have some fun.\nYou arrive on the field, but notice something that stands out as different to you and wonders \xe2\x80\x98is this allowed\nin Oregon?\xe2\x80\x99 Some women and men are naked, some fully and some just certain parts exposed, but no one seems\nuncomfortable. You look around at the topless players, all adults, and wonder if this is the wrong place. Other\npeople in costume walk around like Unicorns, Mario, Rainbow Brite, among others. Suddenly, thoughts start\nracing through your mind: \xe2\x80\x9cWhy are people dressed strangely? Is it legal to be nude in public in the state of\nOregon? Why does no one seem to mind? Can I keep my clothes on? What will my family in Georgia think?\nShould I just go back to my apartment now?\xe2\x80\x9d\nSuddenly, the guy from the dog park runs up and tells you to come on over so he can introduce you to the\nteam. Situations like this are often examples we use in the college classroom to demonstrate the difference between\ndeviance, rule violations, and criminal violations. Sometimes there are times that behaviors that appear to be deviant\nare not illegal, but other times behaviors that are illegal are not deviant.\n\nJust about everyone in society has done something that someone else would disagree with and see as deviant.\nFor example, I recently wore clothes to the gym that were out of style but how did I know they were out of\nstyle? Well, easy! The reaction of others to my lack of style in the gym was clear that it is no longer cool to\nwear knee-high socks with athletic shorts to the gym.\nAnother time I was at Thanksgiving dinner with my family and I expressed open support for a politician\nthat no one else in the family supported. Their reactions to my support of him made it evident that I\nwas the deviant one that was not going along with the typical political views expected in my reasonably\nconservative, Republican family.\nAlternatively, perhaps I am deviant when I tell you my favorite show on television is, and always will\n14\n\n\x0cIntroduction to the American Criminal Justice System\n\nbe, the Golden Girls, which seems odd for someone in their early thirties. Perhaps someone thinks it is\nutter nonsense and \xe2\x80\x98crazy\xe2\x80\x99 wasting my time watching such shows. These are just a few examples where my\nbehavior, thoughts, actions, or beliefs may be different from those around me.\nFrom a sociological perspective, social norms are all around us and are accepted norms and behaviors\nthat defined within a specific group. The group you are in can change, which would mean the norms and\nbehaviors that are acceptable at any given time may change.\n1\n\nDeviance is behavior that departs from the social norm. Goode argues\nthat four things must happen in order for something deviant to take place\nor exist:\n1) a rule or norm must be established; 2) someone has to violate that\nrule or norm; 3) there must be an audience or someone, that witnesses\nthe act and judges it to be wrong; 4) and there is likely going to be a\nnegative reaction from that audience that can come in many forms (i.e.,\ncriticism, disapproval, punishment, and more).\nTo commit an act of deviance one does not need to violate a\ndangerous norm, and not all acts that are deviant are criminal. Not all\ncriminal acts are deviant either. Deviance falls on a spectrum that can\nrange from really deviant to not so deviant but remember it is dependent\non the audience. Think back to the previous comment about the show\nGolden Girls. My grandma would not find that as deviant as my husband\ndoes because we grew up watching it together. We spent many hours on\nthe couch laughing away at the silliness of it all, so we would both agree\n2\nit is a beautiful show.\n\n\xe2\x80\x9cFacial Tattoos and Piercings\xe2\x80\x9d\n\nApplying Knowledge\n\nAssignment: Apply Goode\xe2\x80\x99s definition of what needs to happen in order for something to be considered deviant\nin no less than 500 words and following the example below.\nExample: The awkward outfit to the gym: knee socks, athletic shorts, and an oversized Broncos t-shirt\nmentioned above could be deviant. Based on Goode\xe2\x80\x99s definition of deviance, this attire departed from the social\nnorm at the gym in 2018. Whether we realize it or not some specific rules or norms established in the gym (1);\nsometimes we have a dress code, but other times, you have to keep up with current \xe2\x80\x98hip trends\xe2\x80\x99 such as yoga pants\nfor women in 2018. Next, I violated that norm by my attire (2); since it was a busy Monday night lots of people\nsaw my attire, my audience, that was able to witness my act and then judge it (3). Lastly, they cannot kick me out\nfor not dressing cool, but the awkward smirks, stares, and giggles were all I needed to know that my clothes were\ndeviant and not cool (4). This could certainly have not been true in 1950, 1980, or even early 2000s. If I think back\nto when I started lifting over a decade ago, yoga pants were unheard of and no one wore anything \xe2\x80\x98tight\xe2\x80\x99 to the\ngym. Today yoga pants are regular and in some parts of the country for women and men.\n\n1. By Tuerto - [1], CC by-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=26526042\n2. Goode, E. (2015). Deviant Behavior, (10th ed.). New York: Pearson, Education.\n\n15\n\n\x0c1.3. Social Norms: Folkways, Mores, Taboo, and Laws\n\nSHANELL SANCHEZ\n\nSocial Control Exercise\n\nAssignment: We rely on informal social control to influence people\xe2\x80\x99s behavior, such as giving the stink eye, cold\nshoulder, or correcting someone\xe2\x80\x99s behavior in order to ensure people conform. Think about a time when a parent,\nguardian, coach, employer, or teacher (agents of social control) used informal social control to respond to your\nbehavior. What did the agent of informal social control do? Provide an example when informal social control was\napplied to another person. What were they doing and how was their behavior controlled through informal social\ncontrol?\nExample: Talking on the phone with a work-related matter and kids start bickering over slime. I am unable to\nput the phone down, so I relied on hand motions to show them it was unacceptable. There was no need to hang up\nor say anything at all. The eye actions indicated they were acting inappropriate and their behavior changed.\n\nNorms can be internalized, which would make an individual conform without external rewards or\npunishments. There are four types of social norms that can help inform people about behavior that is\nconsidered acceptable: folkways, mores, taboos, and law. Further, social norms can vary across time, cultures,\n1\nplace, and even sub-group.\nThink back to your first experiences in school and surely you can identify some folkways and mores\nlearned. Folkways are behaviors that are learned and shared by a social group that we often refer to as\n2\n\xe2\x80\x9ccustoms\xe2\x80\x9d in a group that are not morally significant, but they can be important for social acceptance. Each\ngroup can develop different customs, but there can be customs that embraced at a larger, societal level.\n\n1. Goode, E. (2015). Deviant Behavior, (10th ed.). New York: Pearson, Education.\n2. Augustyn, A., Bauer, P., Duignan, B., Eldridge, A., Gregersen, E., Luebbering, J.E., etc..., (N.D.). Folkway, Encyclopedia Britannica.\n\n16\n\n\x0cIntroduction to the American Criminal Justice System\n\nFolkway Example\n\nImagine sitting in the college classroom with sixty other people around. As a professor who teaches early morning\nclasses, it is always encouraged to eat if hungry. However, everyone must be considerate of those around them.\nYou should not chew loudly. That would be considered rude, and it is against class \xe2\x80\x98customs\xe2\x80\x99 to do so. To make it\nworse, imagine burping without saying \xe2\x80\x98excuse me.\xe2\x80\x99 These would be folkway violations. Remember, this may not\nbe disrespectful in all cultures, and it is very subjective.\n\nPerhaps stricter than folkways are more because they can lead to a violation of what we view as moral\nand ethical behavior. Mores are norms of morality, or right and wrong, and if you break one it is often\n3\nconsidered offensive to most people of a culture. Sometimes a more violation can also be illegal, but other\ntimes it can just be offensive. If a more is not written down in legislation, it cannot get sanctioned by the\ncriminal justice system. Other times it can be both illegal and morally wrong.\nMore Example\n\nIf one attended a funeral for a family member, no one would expect to see someone in bright pink clothes or\na bikini. Most people are encouraged to wear black clothing out of respect. Although there may not be specific\nrules or laws that state expected attire to wear to a funeral, it would be against what most of American society\nviews as right and wrong to attend a funeral in a bikini or be in hot pink leotards. It would be disrespectful to the\nindividual people are mourning. Both mores and folkways are taught through socialization with various sources:\nfamily, friends, peers, schools, and more.\n\nA taboo goes a step farther and is a very negative norm that should not get violated because people will be\nupset. Additionally, one may get excluded from the group or society. The nature and the degree of the taboo\n4\nare in the mores.\nTaboo Example\n\nA student once gave the example of a man in their neighborhood in Colorado that had multiple wives and\nalso had ten different children from the women. In most of American culture, it is seen as unacceptable to have\nmore than one spouse/partner. However, there are instances where having children with multiple people would\nnot be seen as taboo. Specifically, if a man or woman remarries and then has another child with their new partner.\nHowever, again, this is more acceptable today than in the past because of the greater societal acceptance of divorce\nand remarriage.\n\n3. Sumner, W. (1906). Folkways.\n4. Sumner, W. (1906). Folkways.\n\n17\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nIf one is religious think of something taboo in that specific religion? How about a sports team in college? Band?\nAny ideas?\n\nLastly, and most important to the study of crime and criminal justice, our laws. Remember, a social norm is\nan obligation to society that can lead to sanctions if one violates them. Therefore, laws are social norms that\nhave become formally inscribed at the state or federal level and can laws can result in formal punishment for\nviolations, such as fines, incarceration, or even death. Laws are a form of social control that outlines rules,\nhabits, and customs a society uses to enforce conformity to its norms.\nLaw Example\n\nLet us go back to our example of having multiple wives for a moment. It is illegal, a violation of law, to have\nmultiple wives in American culture. It has not always been this way, and it is not true in every country, but in the\nUnited States, it was viewed as so taboo, morally and ethically wrong, that there are laws that can punish people\nfor marrying more than one person at a time. However, there may be some people that do not think it is wrong or\nsome groups, but regardless, it is still illegal.\n\nThe following link is for Oregon statue ORS 163.515 Bigamy https://www.oregonlaws.org/ors/163.515\n\nRemember our previous discussion on being the new person to Oregon and trying to figure out if it is\nallowed to be nude at an ultimate frisbee practice, but they do not feel morally or ethically wrong. The first\nthing one may do is go home and look up some rules and see if they are violating ultimate frisbee rules.\nNext, one may check out Oregon laws governing clothing to see if they are violating laws by being nude.\nIn the end, one finds out that it is not \xe2\x80\x98illegal,\xe2\x80\x99 so you cannot call the cops, but you certainly did find a case\nin Eugene, Oregon that determined not wearing clothes can be a violation of rules on the college campus.\nhttps://www.oregonlive.com/news/index.ssf/2009/04/uo_board_says_no_clothes_no_ul.html\nHowever, this is a recreational league, and it does not appear to have any formal rules established. Now one\nhas to make a decision that is hard: Does one want to be part of a subculture that endorses nudity? Does this\ngo against one\xe2\x80\x99s morals and ethics? Alternatively, is one willing to be part of the team and encourage\nacceptance of a new norm? The criminal justice system cannot act for merely violating norms, but at times,\nwhat feels like a norm can lead to criminal justice involvement. For example, walk a town or city, and\nmany may be found jaywalking because it may be safer, faster, or more accessible. A person can get a ticket\nfor it in most communities because it is technically violating a law. That is the thing with the line between\ndeviance, rule violations, and criminality\xe2\x80\x94it does not allow mean we agree. There are many examples of\nlaws that are not deviant and things that are deviant some subcultures may wish to be illegal. Most, but not\nall crimes are deviant, and not all deviant acts are criminal. The question then becomes: well, how then do\nwe as a society decide who does and does not have the opportunity to make law?\n18\n\n\x0cIntroduction to the American Criminal Justice System\n\nJaywalking\n\nAdam Ruins Everything: Why Jaywalking is a Crime? https://www.trutv.com/shows/adam-ruinseverything/videos/why-jaywalking-is-a-crime.html\n\n19\n\n\x0c1.4. Interactionist View\n\nSHANELL SANCHEZ\n\nTattoos at Work\n\nAn article by Forbes in 2015, encourages employers to revisit their dress code expectations, with a specific\nsuggestion on lifting the \xe2\x80\x98tattoo taboo.\xe2\x80\x99 The article argues \xe2\x80\x9callowing employees to maintain their style or grooming\nallows your company to project how genuine you are as a brand to employees and to the customers they support.\xe2\x80\x9d\nSo, instead of suggesting tattoos are taboo in the workforce to employees, according to the article, one can\nencourage people to \xe2\x80\x98project who they are\xe2\x80\x99 by accepting tattoos and ultimately, improve your business. This\nexample demonstrates how societal changes in how deviance can change through time and space.\nRead the Forbes article to learn more about this discussion:\nhttps://www.forbes.com/sites/micahsolomon/2015/01/12/how-rethinking-employee-dress-codes-tattoos-andpiercings-improves-customer-service-and-the-customer-experience/#7b923ad54312\n\nTypically, in our society, a deviant act becomes a criminal act that can be prohibited and punished under\n1\ncriminal law when a crime is deemed socially harmful or dangerous to society.\nIn criminology, we often cover a wide array of harms that can include economic, physical, emotional,\nsocial, and environmental. The critical thing to note is that we do not want to create laws against everything\nin society, so we must draw a line between what we consider deviant and unusual verse dangerous and\ncriminal. For example, some people do not support tattoos and would argue they are deviant, but it would be\nchallenging to suggest they are dangerous to individuals and society. However, thirty years ago, it may have\nbeen acceptable to put into dress code, rules guiding our physical conduct in the workspace, that people may\nnot have visible tattoos and people may not be as vocal as they would today. Today, tattoos may be seen as\nmore normalized and acceptable, which could lead to a lot of upset employees saying those are unfair rules\nin their work of employment if they are against the dress code.\nNow that we have a basis for understanding differences between deviance, rule violations, and criminal\nlaw violations, we can now discuss who determines if a law becomes criminalized or decriminalized in the\n1. Goode, E. (2016). Deviant Behavior. Routledge: New York.\n\n20\n\n\x0cIntroduction to the American Criminal Justice System\n\nUnited States. A criminalized act is when a deviant act becomes criminal and law is written, with defined\n2\nsanctions, that can be enforced by the criminal justice system.\nJaywalking\n\nIn the 1920s, auto groups aggressively fought to redefine who owned the city street. As cars began to spread to\nthe streets of America, the number of pedestrians killed by cars skyrocketed. At this time, the public was outraged\nthat elderly and children were dying in what was viewed as \xe2\x80\x98pleasure cars\xe2\x80\x99 because, at this time, our society was\nstructured very differently and did not rely on vehicles. Judges often ruled that the car was to blame in most\npedestrian deaths and drivers were charged with manslaughter, regardless of the circumstances. In 1923, 42,000\nCincinnati residents signed a petition for a ballot initiative that would require all cars to have a governor limiting\nthem to 25 miles per hour, which upset auto dealers and sprang them into action to send letters out to vote against\nthe measure.\n\nVote No\n\nIt was at this point that automakers, dealers, and others worked to redefine the street so that pedestrians, not\ncars, would be restricted. Today, these law changes can be seen in our expectations for pedestrians to only cross at\ncrosswalks.\n\n2. Farmer, L. (2016). Making the modern criminal law: Criminalization and civil order. Oxford: Oxford University Press.\n\n21\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nDon\xe2\x80\x99t Jaywalk\n\nThe Vox Article below has an excellent summary of what we discussed:\nhttps://www.vox.com/2015/1/15/7551873/jaywalking-history\n\nThe creation of jaywalking laws would be an example of the interactionist view in lawmaking. The\ninteractionist view states that the definition of crime reflects the preferences and opinions of people who\nhold social power in a particular legal jurisdiction, such as the auto industry. The auto industry used their\n3\npower and influence to impose what they felt was to be right and wrong and became moral entrepreneurs.\nA moral entrepreneur was a phrase coined by sociologist Howard Becker. Becker referred to individuals\nwho use the strength of their positions to encourage others to follow their moral stances. Moral\nentrepreneurs create rules and argue their causes will better society, and they have a vested interest in that\n4 5\ncause that maintains their political power or position.\nThe auto industry used aggressive tactics to garner support for the new laws: using news media to shift\n\n3. Vuolo, M., Kadowaki, J., & Kelly, B. (2017). Marijuana\'s Moral Entrepreneurs, Then and Now. https://contexts.org/articles/marijuanasmoral-entrepreneurs/\n4. Becker, H. (1963). Outsiders: Studies in the sociology of deviance. New York: Free Press.\n5. Cole, J.M. (2013). Guidance regarding marijuana enforcement. Washington, DC: Department of Justice, Office of the Deputy Attorney\nGeneral. Better known as the "Cole Memorandum,"\n\n22\n\n\x0cIntroduction to the American Criminal Justice System\n\nthe blame for accidents of the drivers and onto pedestrians, campaigned at local schools to teach about the\n6\nimportance of staying out of the street, and shame by suggesting you are in the wrong if you get hit.\n\nFun fact: Most people may be unaware that they word \xe2\x80\x98jay\xe2\x80\x99 was derogatory and is similar today to being\ncalled a hick, or someone who does not know how to behave in the city. The tactic of shaming was\npowerful and has been used many times in society by moral entrepreneurs to garner support and pass laws\nagainst jaywalking.\n\n6. Norton, P. (2007). Street rivals: Jaywalking and the invention of the motor age street. Fighting traffic: The dawn of the motor age in the American\ncity\n\n23\n\n\x0c1.5. Consensus View and Decriminalizing Laws\n\nSHANELL SANCHEZ\n\nAnother view of how laws become created is the consensus view, which as it states, implies consensus\n(agreement) among citizens on what should and should not be illegal. This idea implies that all groups come\ntogether, regardless of social class, race, age, gender, and more, to determine what should be illegal. This\nview also suggests that criminal law is a function of beliefs, morality, and rules that apply equally to all\n1\nmembers of society.\nOne Child per Family Policy in China\n\nIn modern society, we tend to have consensus in the United States that people cannot kill their baby at birth\nbecause they wanted the opposite gender. If a person killed their child, murder charges would occur. At certain\npoints in history in other countries, such as China, this was occurring and was not as deviant as some Americans\nwould like to think it should have been, but it was still illegal. However, when the Chinese Government introduced\na One Child per Family Policy, there was a surge in female infanticide. There was immense pressure on families\nto have sons because of their higher earning potential and contributions to the family. Again, that line between\ndeviance and criminality can often blur, especially when trying to gain consensus. Read the BBC article below for\nmore information.\nRead the BBC article below for further information.\nhttp://www.bbc.co.uk/ethics/abortion/medical/infanticide_1.shtml\n\nLet us take a consensus approach to create laws, but apply it to decriminalizing laws. An act becomes\ndecriminalized when it is no longer criminal and becomes legalized, ultimately reducing or alleviating\npenalties altogether. Some have proposed a hybrid between decriminalization and criminalizing behaviors,\n2\nsuch as prostitution to ensure rights to prostitutes and punish offenders who harm them. An act can be\ndecriminalized at the State level, but not necessarily the Federal level.\n1. Dawe, A. (1970). The two sociologies. The British Journal of Sociology, 21(2), 207-218.\n2. Lutnick, A. & Cohan, D. (2009). Criminalization, legalization or decriminalization of sex work: what female sex workers say in San\nFrancisco, USA. Reproductive Health Matters, 17(34), 38-46.\n\n24\n\n\x0cIntroduction to the American Criminal Justice System\n\nMarijuana Legalization\n\nOne example of decriminalization that came from a vote of consensus in states like Colorado, Washington,\nand Oregon was the legalization of recreational marijuana. Recently, Texas has shown signs of potentially\ndecriminalizing marijuana and seeking reform laws. According to the latest University of Texas/Texas Tribune\npoll, more than half of the state\xe2\x80\x99s registered voters support marijuana legalization in the state (a consensus), and\nonly 16 percent said possession of marijuana should remain illegal under any circumstances. Marijuana is certainly a\ngreat example of decriminalization, whether it is for recreational or medicinal purposes. University of Texas/Texas\nTribune Poll, June 2018 \xe2\x80\x94 Summary\n\nUniversity of Texas/Texas Tribune Poll, June 2018 \xe2\x80\x94 Summary\n\nRead the article below for more information on Texas proposing changes:\nhttps://www.texastribune.org/2018/06/27/marijuana-democrats-young-adults-texas-poll/\n\nAdam Ruins Everything YouTube Link: The Sinister Reason Weed is Illegal https://www.trutv.com/\n\n25\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nshows/adam-ruins-everything/videos/the-sinister-reason-weed-is-illegal.html\n\n26\n\n\x0c1.6. Conflict View\n\nSHANELL SANCHEZ\n\nA third perspective of how we define crime or create laws is referred to as conflict view, commonly\nassociated with Karl Marx in the 1800s. Conflict view sees society as a collection of diverse groups that\ncan include owners, workers, wealthy, poor, students, professionals, younger older, and more. This view\nrecognizes that the creation of laws is unequal and may not have consensus like in the example discussed\n1\npreviously.\nFurther, the conflict view takes a very Marxian perspective and suggests that these groups are often in\nconstant conflict with one another. Unlike the consensus perspective, the conflict view would suggest that\nthe crime definitions are controlled by those with wealth, power, and social position in society. Essentially,\nlaws are made by a select group in society, and the laws protect the \xe2\x80\x98haves.\xe2\x80\x99 Criminality shapes the values of\n2\nthe ruling class and is not of \xe2\x80\x98moral consensus\xe2\x80\x99. There are many examples we use in the criminal justice field\nthat demonstrates the conflict view in action.\nEdwin Sutherland: White Collar Crime\n\nEdwin Sutherland, a sociologist, first introduced white-collar crime during his presidential address at the\n3\n\nAmerican Sociological Society Meeting in 1939 and later published articles and books on the topic. Specifically, he\nwas concerned with the criminological community\xe2\x80\x99s preoccupation with the low-status offender and \xe2\x80\x9cstreet crimes\xe2\x80\x9d\nand the lack of attention given to crimes that were perpetrated by people in higher status occupations.\nSutherland wrote a book, White Collar Crime, that sparked lots of debate.\n\n4\n\nHowever, there is a limited focus\n\non white-collar crime and even less enforcement of it in the United States. From the conflict view, this would be\nbecause white-collar and corporate crime is committed by the \xe2\x80\x98haves\xe2\x80\x99 and they write their laws and define what is\nor is not a crime. Going back to how we define crime in society, white-collar crime is still a contested one.\n\n1. Hawkins, D. (1987). Beyond anomalies: Rethinking the conflict perspective on race and criminal punishment. Social Forces, 65(3),\n719\xe2\x80\x93745, https://doi.org/10.1093/sf/65.3.719\n2. Boundless. (2016). The conflict perspective. Sociology \xe2\x80\x93 Cochise College Boundless, 26.\n3. Sutherland, E. (1940). White collar criminality. American Sociological Review, 5(1), 1-12.\n4. Sutherland, E. (1949). White collar crime. Dryden Press.\n\n27\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n5\n\nSutherland wrote a book, White Collar Crime, that sparked lots of debate. However, there is a limited focus on\nwhite-collar crime and even less enforcement of it in the United States. From the conflict view, white-collar and\ncorporate crime gets committed by the \xe2\x80\x98haves,\xe2\x80\x99 and they write the laws and define what is or is not a crime. Going\nback to how we define crime in society, white-collar crime is still a contested one.\nCurrently, there are different views of how one should define white-collar crime: defining white-collar crime\nbased on the type of offender, type of offense, studying economic crime such as corporate and/or environmental law\nviolations, health, and safety law violations, and/or the organizational culture rather than the offender or offense.\nThe FBI studies white-collar crime in terms of offense, so official data for white-collar crime will not focus on the\nbackground of the offender, which can make the use of Uniform Crime Report Data, UCR data tricky to use if\ntrying to determine a typical offender. The UCR will be covered more fully in chapter two, but it is data collected\nfrom police departments, and the FBI compiles reports. Again, conflict view may suggest the lack of focus on whitecollar crime in U.S. society would be because the \xe2\x80\x98haves\xe2\x80\x99 creates the laws, not the \xe2\x80\x98have-nots.\xe2\x80\x99 https://ucr.fbi.gov/\nnibrs/nibrs_wcc.pdf\n6\n\n5. Sutherland, E. (1949). White collar crime. Dryden Press.\n6. Barnett, C. (N.D.). The measurement of white-collar crime using: Uniform crime reporting (UCR) data. U.S. Department of Justice.\nFederal Bureau of Investigation\n\n28\n\n\x0c1.7. The Three C\xe2\x80\x99s: Cops, Courts, and Corrections\n\nSHANELL SANCHEZ\n\nThe Three C\xe2\x80\x99s\n\nAs previously stated, the criminal justice system is not confined to one level of government and is made\nup of local, state, and federal governments. The agencies associated with these levels can work together or\nwork separately. In the previous example about marijuana legalization, the federal government has not legalized\nrecreational or medicinal marijuana, but some states have; states have disagreed with federal law, but federal law\nessentially has the final say. If the federal government wanted to punish states for selling marijuana they indeed\ncould since it remains a Schedule I drug.\nWe will spend time exploring the three main components of the criminal justice system, or an easy way to\nremember this is the three main C\xe2\x80\x99s: cops, courts, and corrections. This section will briefly introduce the police,\ncourts, and correctional systems and how they often function with each other, whereas subsequent chapters will\nfurther focus on how they each operate as their entity.\n\nCops\nImagine walking downtown on a Friday night and witness a robbery in action. The first thing a person\nwould typically do is call 911. Then the person would tell the 911 operator, referred to as dispatch, what\nthey saw, where the event occurred, and any other relevant information. The operator would then send out\nthe call or dispatch it to nearby police on duty. The first point of contact with the criminal justice system\nfor most individuals is the cops. We often refer to them as first responders. We will use a variety of terms\nfor cops, such as police officers and law enforcement, but recognize we are always talking about the men\nand women who enforce laws and protect the people of the United States. The police respond to calls and\ncan apprehend the offender. Because of technology, the police respond quickly.\nOther times, police may witness a crime while on patrol. Police make initial contact, investigate crimes,\napprehend offenders/potential offenders (arrest), and then book them in the local jail. Law enforcement does\n1\nnot determine guilt or innocence, hand down punishments, or implement the punishment.\n1. Fuller, J. (2019). Introduction to criminal justice: A brief edition. New York Oxford: University Press\n\n29\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nDuring an investigation, police officers may need to obtain a search warrant. The Fourth Amendment of\nthe Constitution requires that police officers have probable cause before they search a person\xe2\x80\x99s home, their\nclothing, car, or other property, with some exceptions explored later on. In order to ensure due process,\nsearches usually require a search warrant, issued by a \xe2\x80\x9cneutral and detached\xe2\x80\x9d judge. Arrests also require\nprobable cause and often occur after police have gotten an arrest warrant from a judge. Depending on the\n2\nspecific facts of the case, the first step may be an arrest. As stated above, if they catch a person in the\ncommission of a crime, they will arrest first and investigate later.\nPolice on Standby\n\nPolice on Standby\n\nCourts\nThe next phase of the criminal justice system is the courts. The courts may consist of prosecutors, defense\nattorneys, judges, and a reasonable jury of one\xe2\x80\x99s peers. The primary role of the courts is to determine\nwhether an offender should be charged with a crime and if so, what charges should exist. The officers will\nforward over information to the district attorneys for review, and the district attorney will determine what\n\n2. United States Department of Justice. (N.D.). Investigation. https://www.justice.gov/usao/justice-101/investigation\n\n30\n\n\x0cIntroduction to the American Criminal Justice System\n3\n\ncharges are filed against an offender, also known as the defendant. In the above scenario, if the\nprosecutor\xe2\x80\x99s office has determined there is enough evidence to charge the individual of robbing the business\ndowntown, then charges will be filed, and the suspect is charged with a specific crime. The defendant in\nthe robbery will be informed of all their rights that are afforded to them by the Constitution and that they\nhave the right to legal counsel or a defense attorney. There are private defense attorneys as well as public\ndefenders who are appointed if a person is indigent, or unable to afford their attorney. A defendant, or the\naccused, will enter a plea of guilty or not guilty, and a trial date is set.\nThe prosecutor\xe2\x80\x99s office will evaluate the type and quality of evidence they have when deciding to move\nforward or drop the charges. Direct evidence is evidence that supports a fact without an inference, such as a\ntestimony of an eyewitness to a crime because the person saw the crime. The other type of evidence,\ncircumstantial evidence, would be something that happened before or after the crime or information\nobtained indirectly or not based on the first-hand experience by a person. Circumstantial evidence includes\npeople\xe2\x80\x99s impressions about an event that happened which they did not see. For example, if you went to bed\nat night, and there was no gas in your tank, and then you awoke to a full tank of gas, while you didn\xe2\x80\x99t\nactually see your dad fill your tank, you assume the did it while you slept because gas tanks cannot fill\n4\nthemselves.\nIf a defendant pleads guilty, there may be a plea bargain given.\nA plea bargain is similar to a deal will be made for a reduced sentence since the defendant pleads guilty.\nPlea bargains get used a lot for the vast majority of cases in our CJ system, and debates often ensue over the\nethics behind them. A defendant should only plead guilty if they committed the crime and must admit to\ndoing so in front of the judge. Once the defendant admits to the crime, they agree they are guilty and\nagree that they may be \xe2\x80\x9csentenced\xe2\x80\x9d by the judge presiding over the court. The judge is the only person\nauthorized to impose a sentence. However, with the current number of cases entering our system every\n5\nday, pleas bargains have often called a \xe2\x80\x98necessary evil.\xe2\x80\x9d\nLet us say the defendant chooses to go to trial. The prosecution and defense will then present their cases\nbefore a jury and judge to determine if there is enough evidence to convict the defendant. The prosecutor\nmust prove they have probable cause that the defendant is the one who committed the crime, and the\ndefense ensures the rights of the accused get upheld while defending their client. Judges are important and\noften get referred to as an impartial moderator or referee in the courtroom. The judge receives guidance\nand assistance from several sources in order to sentence a defendant. Over time, Congress has established\nminimum and maximum punishments, and the United States Sentencing Commissions has produced a set\nof sentencing guidelines that recommend certain punishments for certain crimes while considering various\nfactors. Further, the judge will look at a pre-sentence report and consider statements from the victims, as well\nas the defendant and lawyers. The judge may consider a variety of aggravating or mitigating factors. These\ninclude whether the defendant has committed the same crime before, whether the defendant has expressed\n6\nregret for the crime and the nature of the crime itself.\nIf a defendant is convicted, then that defendant is found guilty. Let us imagine surveillance camera caught\nthe robber downtown and fingerprints that were left behind matched the offender; this would make a\nconviction more likely. This phase is known as adjudication. If found guilty, the court is responsible for\n3. Anoka County Attorney\'s Office. (N.D.). Roles in the Criminal Justice System. https://www.anokacounty.us/1434/Roles-in-the-CriminalJustice-System\n4. United States Department of Justice. (N.D.). Investigation. https://www.justice.gov/usao/justice-101/investigation\n5. United States Department of Justice. (N.D.). Plea bargaining. https://www.justice.gov/usao/justice-101/pleabargaining\n6. United States Department of Justice. (N.D.). Sentencing. https://www.justice.gov/usao/justice-101/sentencing\n\n31\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nhanding down a punishment. In the vast majority of criminal cases, the judge decides the sentencing hearing,\nbut in some cases, a jury determines the outcome. Although this was a brief overview, it is essential to\nknow that the courts charge defendants, holding a preliminary hearing, arraignment, potential plea bargains,\nadjudication, and sentencing.\nAfter a defendant is found guilty, they have the right to appeal the outcome if they believe they were\nwrongly convicted or the sentence was too harsh. An appeal is not another trial, but an opportunity for the\ndefendant to try to raise specific errors that might have occurred at trial. A common appeal is that a decision\nfrom the judge was incorrect \xe2\x80\x93 such as whether to suppress certain evidence or to impose a certain sentence.\nAppeals are complicated and sometimes result in the case going back to the trial court. A conviction can\nget reversed, a sentence altered, or a new trial may be ordered altogether if the Appeals Court decides that\nparticular course of action. If a circuit court judge decides the appeal, then a defendant can try to appeal\nthat decision to the United States Supreme Court in Washington, D.C. The United States Supreme Court\nis the highest appellate court in the American court system, and they make the final decision concerning a\ndefendant\xe2\x80\x99s appeal. The Court is not required to hear an appeal in every case and takes only a small number\n7\nof cases each year.\n\nMore details\nThe courtroom in Valley County Courthouse in Ord, Nebraska. The Beaux-Arts building was constructed in 1920. It is listed in the\nNational Register of Historic Places.\n\n7. United States Department of Justice. (N.D.). Appeal. https://www.justice.gov/usao/justice-101/appeal\n\n32\n\n\x0cIntroduction to the American Criminal Justice System\n\nIn\n\nThe\n\nNews:\n\nBrendan\n\nDassey\n\nBrendan Dassey, featured in the Netflix documentary The Making of a Murderer in 2015, was charged\nwith murder as a juvenile. Dassey\xe2\x80\x99s 2007 conviction was questionable because his videotaped confession\nwith police was problematic. Dassey was 16 without a lawyer or parent present during his confession. He\nappeared scared and unaware of the gravity of his situation on camera, and his lawyers say he had a low\nIQ in the seventh percentile of children his age, making him susceptible to suggestion. Dassey was found\nguilty as an accessory to murder with his uncle Steven Avery in the 2005 murder of Teresa Halbach, a\n25-year-old photographer in Manitowoc, Wisconsin. The United States Supreme Court declined to hear\nhis case and did not provide a statement as to why.\n\n8\n\n33\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nVideo Link Adam Ruins Everything: Why the Public Defender System is So Screwed\nUp https://www.trutv.com/shows/adam-ruins-everything/videos/why-the-public-defender-system-is-soscrewed-up.html\n\nCorrections\nOnce a defendant has been found guilty, the correctional system helps carry out the punishment that is\nordered by the court. The defendant may be ordered to pay financial restitution or a fine and not serve time\nunder a form of incarceration. When an offender gets sentenced to a period of incarceration, at either a jail\nor prison, they will serve their sentence under supervision. Offenders that get sentenced to less than a year\nwill serve their sentence in a local jail, but longer sentences will serve time in prison. However, offenders\ncan also get sentenced to community-based supervision, such as probation. In this situation, an offender\nwould get assigned a probation officer (PO), and there would be specific rules they are required to follow.\nIf an offender violates rules, the PO may request the offender be incarcerated in jail or prison to serve the\n9\nremainder of the sentence. Lastly, an essential part of corrections is helping former inmates with prisoner\nre-entry or reintegration into society through parole, community-based supervision after serving time in a\nlocked facility, and may require drug-testing, help with finding employment, education, and social support.\n10\n\n8. Victor, D. (2018). Supreme Court Won\'t Hear Appeal of \xe2\x80\x98Making a Murderer\' Subject Brendan Dassey. The New York Times.\nhttps://www.nytimes.com/2018/06/25/us/brendan-dassey-supreme-court.html\n9. , Fuller, J. (2019). Introduction to criminal justice: A brief edition. New York: Oxford University Press.\n10. RAND Corporation. (1994-2018). https://www.rand.org/topics/prisoner-reentry.html\n\n34\n\n\x0cIntroduction to the American Criminal Justice System\n\n35\n\n\x0c1.8. The Crime Control and Due Process Models\n\nSHANELL SANCHEZ\n\nCrime Control and Due Process Model\nThe criminal justice system can be quite complicated, especially in the attempt to punish offenders for\nwrongs committed. Society expects the system to be efficient and quick, but the protection of individual\nrights and justice fairly delivered. Ultimately, the balance of these goals is ideal, but it can be challenging to\ncontrol crime and quickly punish offenders, while also ensuring our constitutional rights are not infringed\nupon while delivering justice.\nIn the 1960s, legal scholar Herbert L. Packer created models to describe exceeding expectations of the\ncriminal justice system. These two models can be competing ideologies in criminal justice, but we will\ndiscuss how these models can be merged or balanced to work together. The first tension between these\nmodels is often the values they place as most important in the criminal justice system, the crime control\n1\nmodel and the due process model.\nThe crime control model focuses on having an efficient system, with the most important function being\nto suppress and control crime to ensure that society is safe and there is public order. Under this model,\ncontrolling crime is more important to individual freedom. This model is a more conservative perspective.\nIn order to protect society and make sure individuals feel free from the threat of crime, the crime control\nmodel would advocate for swift and severe punishment for offenders. Under this model, the justice process\nmay resemble prosecutors charge an \xe2\x80\x98assembly-line\xe2\x80\x99: law enforcement suspects apprehend suspects; the courts\ndetermine guilt; and guilty people receive appropriate, and severe, punishments through the correctional\n2\nsystem. The crime control model may be more likely to take a plea bargain because trials may take too\nmuch time and slow down the process.\nMurder in the Gym: Crime Control Model Example by Dr. Sanchez\n\nImagine working out at the local gym, and a man starts shooting people. This man has no mask on so he is\neasy to identify. People call 911 and police promptly respond and can arrest the shooter within minutes. Under\n\n1. Packer, H. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113(1)\n2. Roach, K. (1999). Four models of the criminal process. Journal of Criminal Law and Criminology, 89(2), 671-716.\n\n36\n\n\x0cIntroduction to the American Criminal Justice System\n\nthe crime control model, the police should not have to worry too much about how evidence gets collected and\nexpanded. Investigative, arrest, and search powers would be considered necessary. A crime control model would\nsee this as a slam dunk and no need to waste time or money by ensuring due process rights. If there were any\nlegal technicalities, such as warrantless searches of the suspects home, it would obstruct the police from effectively\ncontrolling crime. Effective use of time would be to immediately punish, especially since the gym had cameras\nand the man did not attempt to hide his identity. Any risk of violating individual liberties would be considered\nsecondary over the need to protect and ensure the safety of the community in this model. Additionally, the criminal\njustice system is responsible for ensuring victim\xe2\x80\x99s rights, especially helping provide justice for those murdered at the\ngym.\nThe due process model focuses on having a just and fair criminal justice system for all and a system that does not\ninfringe upon constitutional rights. Further, this model would argue that the system should be more like an \xe2\x80\x98obstacle\ncourse,\xe2\x80\x99 rather than an \xe2\x80\x98assembly line.\xe2\x80\x99 The protection of individual rights and freedoms is of utmost importance and\nhas often be aligned more with a liberal perspective.\n\n3\n\nThe due process model focuses on having a just and fair criminal justice system for all and a system that\ndoes not infringe upon constitutional rights. Further, this model would argue that the system should be more\nlike an \xe2\x80\x98obstacle course,\xe2\x80\x99 rather than an \xe2\x80\x98assembly line.\xe2\x80\x99 The protection of individual rights and freedoms is of\n4\nutmost importance and has often be aligned more with a liberal perspective.\nMurder in the Gym: Due Process Model by Dr. Sanchez\n\nBack to the gym murder, the due process model would want to see all the formalized legal practices afforded to\nthis case in order to hold him accountable for the shooting. If this man did not receive fair and equitable treatment,\nthen the fear is this can happen to other cases and offenders. Therefore, due process wants the system to move\nthrough all the stages to avoid mistakes and ensure the rights of all suspects and defendants. If the man in the gym\npled not guilty due to the reason of insanity, then he can ask for a jury trial to determine whether he is legally insane.\nThe courts would then try the case and may present evidence to a jury, ultimately deciding his fate. The goal is not\nto be quick, but to be thorough. Because the Bill of Rights protects the defendant\xe2\x80\x99s rights, the criminal justice system\nshould concentrate on those rights over the victim\xe2\x80\x99s rights, which are not listed. Additionally, limiting police power\nwould be seen as positive to prevent oppressing individuals and stepping on rights. The rules, procedures, and\nguidelines embedded in the Constitution should be the framework of the criminal justice system and controlling\ncrime would be secondary. Guilt would get established on the facts and if the government legally followed the\ncorrect procedures. If the police searched the gym shooters home without a warrant and took evidence then that\nevidence should be inadmissible, even if that means they cannot win the case.\n\n5\n\n3. Packer, H. (1964). Two models of the criminal process, 113 U. PA. L. Rev. 1; Yerkes, M. (1969). The limits of the criminal sanction, by\nHerbert L. Packer (1968). Loyola\n\nof Los Angeles Law Review 176, 2(1).\n\n4. Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968). Loyola\n\nof Los Angeles Law\n\n5. Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968). Loyola\n\nof Los Angeles Law\n\nReview 176, 2(1).\nReview 176, 2(1).\n\n37\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nThere are several pros and cons to both model; however, there are certain groups and individuals that side\nwith one more often than the other. The notion that these models may fall along political lines is often\nbased on previous court decisions, as well as campaign approaches in the U.S. The crime control model is\nused when promoting policies that allow the system to get tough, expand police powers, change sentencing\npractices such as create \xe2\x80\x9cThree Strikes,\xe2\x80\x9d and more. The due process model may promote policies that\nrequire the system to focus on individual rights. These rights may include requiring police to inform people\nunder arrest that they do not have to answer questions with an attorney (Miranda v. Arizona), providing all\ndefendants with an attorney (Gideon v. Wainwright), or shutting down private prisons who often abuse the\nrights of inmates.\nTo state that crime control is purely conservative and due process if purely liberal would be too simplistic,\nbut to recognize that the policies are a reflection of our current political climate is relevant. If Americans\nare fearful of crime, and Gallup polls suggest they are, politicians may propose policies that focus on\ncontrolling crime. However, if polls suggest police may have too many powers and that can lead to abuse,\n6\nthen politicians may propose policies that limit their powers such as requiring warrants to obtain drugs.\nAgain, this may reflect society, a reflection of a part of society, or the interests of a political party or specific\npolitician.\nExercise\n\nDiscuss what the primary goal of the criminal justice system should be: to control crime, ensure due process, or\nboth? Explain how this opinion may get influenced by individual factors, such as age, gender/sex, race/ethnicity,\neconomic situation, a country born in, and more. Could goals change with the more education given about\ncriminal justice? If so, make an argument in favor of education. If not, make an argument against educating the\npublic on criminal justice.\n\n6. Davis, A. (2016). In the U.S., concern about crime climbs to 15-year high. Gallup Poll.\n\n38\n\n\x0c1.9. How Cases Move Through the System\n\nSHANELL SANCHEZ\n\nHow Cases Move Through the System\nThe criminal justice process is not what gets portrayed on television, and most cases do not go to trial\nor result in a prison sentence. Part of the problem is that our current system is overloaded and ensuring\ndue process and crime control can be more challenging than one thinks. In order to effectively process\ncases through the criminal justice system, discretion is an important tool for police, prosecutors, judges, and\ncorrectional officials. Discretion provides freedom to make decisions, specifically it is the power to make\ndecisions on issues within legal guidelines. Many people see discretion as for the most powerful tool of the\n1 2\ncriminal justice system.\nExercise on Discretion\n\nProvide an example of discretion, which can be from a teacher in school, a dean, an officer, a judge, or boss.\nDescribe what discretion impacted life outcomes today. When I was pregnant, my sister and I argued over the\nphone. This caused me to cry and emotions took over, which led to being pulled over. I encountered an officer\nwho was understanding. He then told asked me to drive safely, and because my record was clean, he was not going\nto cite me. I was fortunate that I did not have to lose money for a ticket, and still, today, have never had a ticket.\n\nEthics refers to the understanding of what constitutes good or bad behavior and helps to guide our\nbehaviors. Ethics are important in the criminal justice system because people working in the system get\n3\nauthority, power, and discretion by the government. Imagine in the above case where the speeding and\nswerving occurred because the person drove drunk due to the break-up. It would be unethical for police to\nallow them to drive home because they were drinking and driving, which is a crime. Most people would see\nit an abuse of discretion if the officer said, \xe2\x80\x9cI know you are drunk, but break-ups suck. Please stop crying,\ndrive home, and forget this happened.\xe2\x80\x9d Ethics and discretion often go hand-in-hand.\n1. Kessler, D. & Piehl, A. (1998). The role of discretion in the criminal justice system. The Journal of Law, Economics, and Organization,\n14(2), 256-276\n2. Gottfredson, M., & Gottfredson, D. (1988). Decision making in criminal justice: Toward the rational exercise of discretion. New York: Plenum\n3. Sellers, B. (2015). Ethics in policing. Wiley online library.\n\n39\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nIn the News: How Would an Ethical Officer React? The New York Times wrote an article about\nethical policing. Tobkin often asked his recruits, in any given situation, \xe2\x80\x9cHow would an ethical officer\nreact?\xe2\x80\x9d All recruits were required to take an ethics class called Police Legitimacy, which deals with how\nofficers are viewed by the public and what they can do to improve or erode those perceptions. \xe2\x80\x9cThere is\nabout one patrol officer for every thousand citizens, so if the public does not see us as legitimate and they\ndo not acknowledge our authority, then we are in big trouble,\xe2\x80\x9d Tobkin said. Recruits also closely study the\ndepartment\xe2\x80\x99s \xe2\x80\x9cuse-of-force continuum,\xe2\x80\x9d which dictates what level of force is appropriate in response to a\nsuspect\xe2\x80\x99s behavior: tasers and batons on when a suspect is kicking or punching an officer, but generally not\nwhen a suspect is simply trying to get away.\n\n4\n\nSamuel Walker referred to the criminal justice system as a funnel. In 1967, The President\xe2\x80\x99s Commission on\nLaw Enforcement and the Administration of Justice published a report on the funneling effect of the criminal\n5\njustice system. The criminal justice system is often referred to as a funnel because most cases do not go\nthrough all steps in the system, some because of discretion, and a large portion because they are unknown\nto police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting,\nand punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report\nand said the report did not account for the crimes unknown to police, often referred to as the dark figure of\ncrime. He also recognized that the most serious crimes are often reported the most, which may confuse the\n6\npublic about the reality of other crimes. Others also criticized the report for only looking at reported crimes\nand adult crimes, but those issues will be highlighted in our next chapter on data in the criminal justice\nsystem. It is important to recognize that the disparity between crimes that were reported and not reported.\nThis discrepancy was a shock in the 1970s, especially after the United States started asking people about their\nvictimization. The number of crimes people say they experienced far exceeded the crimes they reported to\n7\nthe police.\nThe main idea to understand is that the funnel effect is said to represent how cases move through the\nsystem by the offenses unknown to police verse known, arrests then made, prosecutions, plea bargains or\n8\ntrials, sentencing, and whether the individual receives probation, prison, or parole.\n\nIn the News: The Crime Funnel The New York Times wrote an example of the crime funnel.\nFederal agencies publish numbers of crime that constitute a big funnel. For example, the \xe2\x80\x9c35 million\ncrimes committed each year pour in at the top that can include everything from shoplifting, auto theft and\ndrunken fights to rapes and murders. Of these, about 25 million are serious, since they involve violence or\n\n4. Sessini, J. (2016). How would an ethical officer act? The New York Times.\n5. The challenge of crime in a free society. 1967. NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf\n6. Walker, S. (2006). Sense and nonsense about crime and drugs. Cengage: Wadsworth.\n7. Anderson, D. (1994). The crime funnel. The New York Times.\n8. The challenge of crime in a free society. (1967). NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf\n\n40\n\n\x0cIntroduction to the American Criminal Justice System\n\nsizable property loss. But millions of these crimes go unpunished because the victims never report them.\nOnly 15 million serious crimes come to the attention of the police.\xe2\x80\x9d\n\n9\n\nSamuel Walker referred to the criminal justice system as a funnel. In 1967, The President\xe2\x80\x99s Commission on\nLaw Enforcement and the Administration of Justice published a report on the funneling effect of the criminal\n10\njustice system. The criminal justice system is often referred to as a funnel because most cases do not go\nthrough all steps in the system, some because of discretion, and a large portion because they are unknown\nto police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting,\nand punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report\nand said the report did not account for the crimes unknown to police, often referred to as the dark figure of\ncrime. He also recognized that the most serious crimes get reported the most, which may confuse the public\n11\nabout the reality of other crimes.\nOthers also criticized the report for only looking at reported crimes and adult crimes, but those issues\nwill get highlighted in our next chapter on data in the criminal justice system. It is important to recognize\nthat the disparity between crimes that were reported and not reported. This discrepancy was a shock in\nthe 1970s, especially after the United States started asking people about their victimization. The number of\n12\ncrimes people say they experienced far exceeded the crimes they reported to the police.\nThe main idea to understand is that the funnel effect is said to represent how cases move through the\nsystem by the offenses unknown to police verse known, arrests then made, prosecutions, plea bargains or\n13\ntrials, sentencing, and whether the individual receives probation, prison, or parole.\nFunnel Effect Example\n\nImagine selling marijuana to friends every week. No one alerts the cops and the person never gets caught, which\nmeans this remains in the category of offenses unknown to police. However, a friend gets busted selling too close\nto an elementary school, so the offense immediately is classified as known to police. An officer can choose to arrest\nor not, depending on the amount. If it is illegal in that state to deal, then an ethical officer would arrest and set\ndiscretion aside. However, it is up to the prosecutor to decide whether or not to file charges. If charges get filed, the\nfriend may be encouraged to plead guilty and \xe2\x80\x98get it over with.\xe2\x80\x99 This would be more likely under a crime control\nmodel. However, his/her mom may say \xe2\x80\x9cNo, I want you to go to trial,\xe2\x80\x9d which would be more likely under a due\nprocess model and now that friend now has to decide. If he/she takes the plea bargain, they can skip the trial and\ngo straight to sentencing. Let us say the plea bargain allowed the friend to avoid jail time and serve 300 hours of\ncommunity service, but if convicted this friend could serve one year. Most may take the community service option\n\n9. Anderson, D. (1994). The crime funnel. The New York Times.\n10. The challenge of crime in a free society. 1967. NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf\n11. Walker, S. (2006). Sense and nonsense about crime and drugs. Cengage: Wadsworth.\n12. Anderson, D. (1994). The crime funnel. The New York Times.\n13. The Challenge of crime in a free society. (1967). NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf\n\n41\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nand be under community supervision such as probation. If it were a more serious offense, they may serve a prison\nsentence and get paroled under community supervision after a specific amount of time.\n\nThe funnel is one way to look at the criminal justice system, but we will see later how it can be much\nmore complicated then this analogy suggests. It is important to know many crimes are unknown to police,\nwhich we will often refer to as the dark figure of crime. Additionally, plea bargains are a comprehensive\ntool, especially since it would cost our society so much to prosecute and allow a trial for every individual\nthat committed a crime. Costs are a genuine issue that the system faces daily, and if the U.S. were to\npunish everyone for violating the law, there would not have any money left over for important things like\neducation, healthcare, repairing highways, and so much more. We would see most of our taxpayers paying\nfor just crime control, which may not be the best use of all that money. Again, bringing in the importance\nof discretion in the criminal justice system.\nSometimes taking away discretion is excellent and sometimes having too much is wrong, but finding that\nbalance is very important. Sometimes a judge may use discretion to release a domestic violence offender to\ncommunity probation when an officer did not have the discretion to arrest. The judge\xe2\x80\x99s discretion may cause\nthe victim to get revictimized, but it may not. Some offenders may be at a higher risk of reoffending and able\nto determine this is valuable. We will discuss this later when talking about using evidence-based practices in\nthe criminal justice system.\n\n42\n\n\x0c1.10. Media Coverage of Crimes\n\nSHANELL SANCHEZ\n\nViolent Times Example\n\nOne morning, after checking email, which is a pretty standard task, my grandfather writes a daily email. This\nmorning he discusses the violent times we are all living in and how murder is everywhere. He discusses how he\nworries about the future of his family members because the United States is a dangerous place to live. He often\nprovides explanations for this \xe2\x80\x98increase in crime\xe2\x80\x99 that I, as a criminologist, know to be untrue. Sometimes he will say\nkids are violent because of social media or video games, other times he will blame it on immigrants. Regardless, my\ngrandfather lives in fear. He is fearful of someone breaking into his home, and at the age of 80, had a security screen\ninstalled in their nice suburban area in Colorado. He avoids downtown Denver because of his belief it is overrun by\n\xe2\x80\x98gang bangers.\xe2\x80\x99 However, where could all these ideas come from for him. My grandfather has never worked in the\ncriminal justice system, he never studied it, he did not attend college but has such strong thoughts about policies\nthat need to get enacted, problems with society, and he often states them as a fact. The answer: THE NEWS.\nPerhaps watching too much television can cause an overestimation of rates of crime both in reality and on television.\n1\n\nMedia is not a terrible thing that is conspiring to ruin our minds. Please know it is very beneficial and can\nhelp share information, but we need to be aware of the downfalls of media and even which media we choose\nto watch. Do not want to say \xe2\x80\x9cI am over the news\xe2\x80\x9d because it serves an important purpose! Also, keep in\nmind that crime is going DOWN and has been consistently doing so. However, research has shown that\n2\nentertainment and news media create an image that we are living in a dangerous world. It can be easy\nto become fearful after watching too much news if we let ourselves fall trap to losing the facts. \xe2\x80\x9cFactfulness\nrecognizes when we get negative news, and remembering that information about bad events is much more\n\n1. Hetsroni, A., & Tukachinsky, R. H. (2006). Television-world estimates, real world estimates, and television viewing: A new scheme for\ncultivation. Journal of Communication, 56, 133-156.\n2. Jewkes, Y. (2015). Media and crime (3rd ed.).Thousand Oaks, CA: Sage.\n\n43\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nlikely to reach us. When things are getting better, we often do not hear about them, which can lead to a\n3\nsystematically too-negative impression of the world around us, which is very stressful.\xe2\x80\x9d\nPublic knowledge of crime and justice derived largely from the media. Research has examined the impact\nof media consumption on fear of crime, punitive attitudes, and perceived police effectiveness. Studies have\n4 5\nfound that the more crime-related media an individual consumes, the more fearful of crime they are.\nHowever, we also are attracted to specific types of crime and victims when we choose to consume media.\nIn other words, the media is aware of our crime preferences and will report on those more. Glassner (2009)\ndescribes what he calls the \xe2\x80\x98ideal crime story\xe2\x80\x99 for journalists to report. He notes that society likes to read about\n6\ninnocent victims, likable people, and the perpetrator needs to be scary and uncaring about the crime.\nOur society is fascinated with crime and justice, where we spend hours watching films, reading books,\nnewspapers, magazines, and television broadcasts that keep us constantly engaged in crime \xe2\x80\x9ctalk.\xe2\x80\x9d Perhaps\nwhat we do not always realize is the mass media plays an important role in the construction of criminals,\ncriminality and the criminal justice system. Our understanding and perceptions of victims, criminals,\n7\ndeviants, and police largely determined by their portrayal in the mass media.\n8 9 10\nThe majority of public knowledge about crime and justice derived from the media.\nSince Gallup\npolls began asking whether a crime had increased in 1989, a majority of Americans have usually said there is\nmore crime than there was the year before. There is only one year where people did not think it did, which\n11\nfollowed 9/11.\nDespite decreases in U.S. violent and property crime rates since 2008, most voters say crime has gotten\n12\nworse during that span. Mostly, Americans\xe2\x80\x99 perceptions of crime are often at odds with the data. Research\nhas also shown that there are stark differences across party lines. Specifically, almost eight-in-ten voters who\nsupported President Donald Trump (78%) said this, as did 37% of backers of Democrat Hillary Clinton.\nJust 5% of pro-Trump voters and a quarter of Clinton supporters said crime has gotten better since 2008,\n13\naccording to the survey of 3,788 adults. All of this is at odds with official data reports that will get discussed\nin more detail in the next chapter. Since this is the case, how do people have this misperception about crime\nand criminality? Where do these myths develop?\n\n3. Rosling, H. (2018). Factfulness: Ten reasons we are wrong about the world--and why things are better than you think. Flatiron Books\n4. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive\nattitudes, and percieved police effectiveness. Journal of Criminal Justice & Popular Culture, 10, 109-126.\n5. Kort-Butler, L., & Sittner-Hartshorn, K. (2011). Watching the detectives: Crime programming, fear of crime, and attitudes about the\ncriminal justice system. The Sociological Quarterly, 52, 36-55.\n6. Glassner, B. (2009). The culture of fear: Why Americans are afraid of the wrong things (Rev. ed.). New York: Basic Books.\n7. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive\nattitudes, and perceived police effectiveness. Journal of Criminal Justice & Popular Culture, 10(2), 109-126.\n8. Roberts, J., & Doob, A. (1986). Public estimates of recidivism rates: Consequences of a criminal stereotype." Canadian Journal of\nCriminology 28, 229-241;\n9. Surette, R. (1990). The media and criminal justice policy: Recent research and social effects. Springfield, IL: Charles C. Thomas.\n10. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice. (5th ed). Long Grove: Waveland Press, Inc.\n11. Swift, A. (2016). Americans\' Perceptions of U.S. Crime Problem Are Steady. Gallup. Social Policy and Issues. https://news.gallup.com/\npoll/197318/americans-perceptions-crime-problem-steady.aspx\n12. Gramlich, J. (2016). Voters\' perceptions of crime continue to conflict with reality. Pew Research Center. http://www.pewresearch.org/\nfact-tank/2016/11/16/voters-perceptions-of-crime-continue-to-conflict-with-reality/\n13. Gramlich, J. (2016). Voters\' perceptions of crime continue to conflict with reality. Pew Research Center. http://www.pewresearch.org/\nfact-tank/2016/11/16/voters-perceptions-of-crime-continue-to-conflict-with-reality/\n\n44\n\n\x0cIntroduction to the American Criminal Justice System\n\nIn the News: This clip was broadcast and could create fear in young women and parents of young\nwomen who may want to go running in broad daylight. The initial comments that they believed it was a\nstranger-rape makes it frightening, even if that is not the most common victimization. https://6abc.com/\nnews/new-video-shows-ny-woman-on-run-hours-before-murder-/1509645/\n\nThe media plays an important role in the perception of crime and the American public\xe2\x80\x99s understanding of\nhow the criminal justice system operates and policies Americans are willing to support for reform. Public\n14\nopinion gets connected with pressure to change crime policies. , especially when there is a high fear of\n15\na certain crime The media can provide the public with an estimation of how much crime there is, the\ntypes of crime that are common, trends in crime rates, and the daily operations of the criminal justice system.\n16\nHowever, the media often does not portray an accurate portrayal of crime and criminal justice.\n\nIn the News: Follow Up to Case Above https://www.huffingtonpost.com/entry/mistrial-karinavetrano-killing_us_5bf5909ce4b0eb6d930ad6f9\n\n\xe2\x80\x9cFear is produced more readily in the modern community than it was earlier in our history because of increased\npublicity\xe2\x80\x9d Edwin Sutherland.\n\n17\n\nResearch by the Pew Research Center found that most Americans get their news from social media, despite\nhaving concerns about the accuracy and reliability of those sources. Almost 66 percent of Americans get\nnews on social media. The majority (57%) say they expect the news they see on social media to be mostly\n18\ninaccurate. It appears that convenience outweighs concerns with accuracy.\n\n14. Toch, H., & Maguire, K. (2014). Public opinion regarding crime, criminal justice, and related topics: A retrospect. Journal of Research in\nCrime & Delinquency, 51, 424-444.\n15. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive\nattitudes, and percieved police effectiveness. Journal of Criminal Justice and Popular Culture, 10, 109-126.\n16. Kappeler, V. & Potter, G. (2018). The mythology of crime and criminal justice, (5th ed.). Long Grove: Waveland Press, Inc.\n17. Sutherland, E. (1950). The Diffusion of Sexual Psychopath Laws. American Journal of Sociology, 56, 142-148.\n18. Matsa, K., & Shearer, E. (2018). News use across social media platforms. The Pew Research Center. http://www.journalism.org/2018/09/\n10/news-use-across-social-media-platforms-2018/\n\n45\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nMedia Exercise\n\nGo about a daily routine, but record every time crime is discussed. Write down every time it happens such\nas watching TV, listening to the news, scrolling through newsfeeds, reading, and more. What was the message?\nListening to the radio on the way to work? The goal is to record anything heard in the day related to crime and\nattempt to see the messages one may be receiving. Once enough instances get recorded, write a summary of the\nfindings.\n\nThe media focus their attention on crimes that will capture viewers attention. The more shocking, upsetting,\ngruesome, and dramatic the case the better! In the above case of Katrina Vetrano, it is shocking that a\n30-year-old woman goes out for a jog and winds up raped and murdered. It is even more shocking that it\nis in the day and then adds to it by a stranger. People will click on this case because it preys upon fears, but\nthis causes problems. How do we devise policies that protect people if we get driven by fear? Women are\nmore likely to be victimized by people they know, not strangers. However, the media makes it seem like it\nis strangers that are most likely to victimize women. Is this problematic? Yellow journalism is the practice of\nusing sensational stories in print media to attract readers and increase profit, and it works, but not without\n19\nproblems.\nWhile the media plays an important role in creating fear of crime and myths, they are not the only ones\n20\nthat do so. In subsequent chapters, we will talk about the government, politicians, and power-elites. In the\nnext section, we will discuss the wedding cake model in an attempt to understanding how what we most\ncommonly see in the news media can distort our understanding of crime frequency and types of crimes. The\nmedia may report on the stuff that will appear to be interesting, \xe2\x80\x98If it bleeds, it leads,\xe2\x80\x99 even if that is the crime\nthat is less common. Homicides account for more than a quarter of the crime stories on the evening news,\n21\nbut they represent less than 1 percent of all crimes. In order to get people to read or listen to the story, they\nhave to capture our attention. How many people want to read about another marijuana arrest? Not many\nprobably! Most of us want to hear the gruesome crimes that keep us up at night; despite them being rare. By\ncovering these crimes in-depth, we create fear and distorted reality of crime, criminals, and criminal justice.\nImmigration and Crime Exercise\n\nThe fear of immigrants bringing crime to the United States is popular rhetoric right now, especially among\npoliticians\n\nhttps://www.washingtonpost.com/news/politics/wp/2018/06/22/the-original-source-for-trumps-\n\nclaim-of-63000-immigrant-murders-bad-data-from-steve-king-in-2005/?utm_term=.f6a353aa5109. In the 2016\nelection, immigration and crime were one of the most perpetuated myths by Republican candidates, such as Donald\nTrump. He demonized media, suggesting they do not also perpetuate this myth https://www.washingtonpost.com/\nnews/post-politics/wp/2016/08/27/trump-in-undocumented-immigrants-we-are-going-to-get-rid-of-the-\n\n19. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice. (5th ed.). Long Grove: Waveland Press, Inc.\n20. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice (5th ed.). Long Grove: Waveland Press, Inc.\n21. Dorfman, L., & Schiraldi, V. (April 2001). Off Balance: Youth, Race & Crime in the News. Retrieved April 2006, from\nhttp://www.buildingblocksforyouth.org/media/media.html.\n\n46\n\n\x0cIntroduction to the American Criminal Justice System\n\ncriminals/?utm_term=.d9962af916ee. Be aware that this fear tactic is not unique to Donald Trump and his campaign\nand has been going on forever. Additionally, fear may change, but fear is an excellent tool to get people to\nsupport an agenda. Border control became a hot button, and the argument was that we would remove crime\nand criminals. This myth was created and \xe2\x80\x98sold\xe2\x80\x99 to citizens via social media, news, films, and other media\noutlets.\nFirst, find two news articles that argue that immigrants are dangerous and bring crime to the United States.\nSecond,\n\nread\n\nboth\n\nNPR\n\nlinks\n\nhttps://www.npr.org/2018/06/22/622540331/fact-check-trump-illegal-\n\nimmigration-and-crime https://www.npr.org/templates/story/story.php?storyId=5365863\nThird, evaluate current belief systems before and after reading these. Write a summary of the knowledge gained\nfrom merely double-checking news outlets.\nBONUS: To learn even more go and find peer-reviewed research and government research to support the\nargument that immigrants do not bring crime and are not more dangerous. Start with Sampson. 2008. Rethinking\nCrime and Immigration https://journals.sagepub.com/doi/pdf/10.1525/ctx.2008.7.1.28\nChavez, L. (2001). Covering immigration: Popular images and the politics of the nation. About this book: Media\nimages not only reflect the national mood but also play a dominant role in shaping national discourse. This book\nbrings new questions about the media\xe2\x80\x99s influence over the public\xe2\x80\x99s increasing fear of immigration.\nImmigration\n\nReduces\n\nCrime http://www.umass.edu/preferen/You%20Must%20Read%20This/\n\nLee%20Immigration%20and%20Crime.pdf\n\nThe article below is a great opinion piece about media and crime.\nhttp://articles.latimes.com/2001/apr/15/opinion/op-51152\n\n47\n\n\x0c1.11. Wedding Cake Model of Justice\n\nSHANELL SANCHEZ\n\nWedding Cake Model\nAnother model of justice was developed by Samuel Walker that attempts to demonstrate how cases move\nthrough the system and may be treated differently by media and society. This model referred to as the\nWedding Cake Model Theory, is unique because it differentiates types of crimes by how serious the offense\n1\nis, the offenders criminal record, and the victim and offender relationship. It is referred to as a wedding\ncake because of the different tiers or layers on a cake. Take a moment to glance at the wedding cake image\nbelow and notice that wedding cakes often have different layers and the bottom tends to be the largest with\nthe top being the smallest. This section will explain what each layer would resemble in the criminal justice\nsystem.\n\nWe are going to work our way from the bottom of the cake, or the most significant piece, to the smallest\npiece on top. In the criminal justice system, the bottom layer of the model would represent the most\n1. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson\n\n48\n\n\x0cIntroduction to the American Criminal Justice System\n\nsignificant number of cases handled by the system, which often includes misdemeanors and traffic violations.\n2\nThis layer may also get comprised of first-time offenders of less severe crimes. Misdemeanors are the\nleast dangerous types of crimes which can include, depending on where location, public intoxication,\nprostitution, graffiti, among others. Imagine getting caught tagging a park wall and never being caught for\na crime before, which is where this crime would fall. These are often the crimes most of us have committed,\nbut also most of us may not have been caught or punished. A misdemeanor may result in a monetary fine,\nrather than jail time.\nBottom-Layer Example (The Largest Portion) Dr. Sanchez\n\nIf a person were speeding five over on the interstate, it is unlikely they would get pulled over, or spend time in\ncourt. They are likely to pay the fine which admits guilt. However, if they cannot afford the fine, it would require\nthem to go to jail, which brings in a whole host of other issues. The bottom layer of the cake often does not require\na person to go to trial because most people with minor crimes are given and accept plea bargains. If one were to go\nto jail for a misdemeanor, it is typically for less than one year.\n\nWhen we previously talked about crime control resembling an assembly line, this tier would be an\nexample of that: people get cited for everyday violations, people pay their fines rather than go to court,\nby paying fines they admit guilt, and their interaction with the system will end. These crimes are the\nones that are seen as so common newspapers will rarely report on them. How often would you like to\nread about someone getting cited for speeding ten mph over? Or being arrested for small possession of\nmarijuana? Although most of these are common marijuana arrests have increased alongside legalization in the\nU.S. they are annoying to read about from https://www.forbes.com/sites/tomangell/2018/09/24/marijuanaarrests-are-increasing-despite-legalization-new-fbi-data-shows/#43134be64c4b\nThe second tier, or next layer, is comprised of lower-level felonies that may be violent or non-violent.\n3\nAgain, many of these cases end in a plea bargain and do not end in significant jail or prison time. However,\nthey consume a significant amount of the courts\xe2\x80\x99 time. For example, Oregon has three different levels or\nclasses of felonies. Class A is the most serious and can result in up to 20-years imprisonment, Class B can\n4\nresult in up to 10 years imprisonment, and Class C is the least serious with up to five years. The second tier\nwould be comprised mostly of Class C felonies.\nThe third tier is comprised primarily of what most of us know as serious felonies that tend to be violent\nand involve offenders with significant criminal histories. In this tier\xe2\x80\x99s cases are more likely to go to trial if the\noffender pleads not guilty, and if found guilty, will result in prison time. As stated in the Oregon example,\nthis would most likely be Class B Felonies and maybe some Class A felonies.\nLastly, the top tier often referred to as celebrated cases, would be the smallest part of the cake and would\nbe made up of the high-profile cases that tend to be profiled by the media. If found guilty, offenders could\nreceive significant punishments which may include life imprisonment or the death penalty. The top tier\nis less common than the others, but it also the crime we like to think of as really bad. It is also the cases\nthat garner a lot of news time, and perhaps it is a case that made it to the United States Supreme Court.\n2. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson\n3. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson\n4. https://www.criminaldefenselawyer.com/resources/criminal-defense/felony-offense/oregon-felony-class.htm\n\n49\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nTherefore, the media may glorify these cases, especially if it is a well-known case like O.J. Simpson, Bernie\nMadoff, Kobe Bryant, Michael Jackson, Jeffrey Dahmer, and Ted Bundy. Most people know about these\ncases, and it may have struck fear into the public, but again, these are garnered more attention because they\nare uncommon, committed by people who are famous or shock the public consciousness.\nTed Bundy Obsession Example\n\nOur society is so obsessed with the celebrated cases that we often talk a lot about them, cover them extensively\non the news, and live in fear because of them. Students in a class that are pro-death penalty often say, \xe2\x80\x9cI reserve it\nfor all the Ted Bundy\xe2\x80\x99s in the world.\xe2\x80\x9d They are rare, but we fear them! Take this news link that shares images of his\nlast meals on death row.\nhttps://www.cbsnews.com/pictures/last-meals-of-death-row/8/\n\nThe Wedding Cake Model theory not only helps us better understand the operation of the criminal justice\nsystem but also how our perceptions of crime and criminality can be skewed by what gets reported in the\nnews. It is uncommon for us to hear or read reports on the most common types of crimes, the bottom tier.\nWhen we get bombarded with the crimes that are more at the top, celebrated cases, we may begin to think\nthat is the reality.\nWedding Cake Model Exercise\n\nFind a case for each tier of the wedding cake model in the news and write up a 500 word summary of where it\nfits and why. Lastly, discuss how it may get influenced by our extensive coverage or rare, yet essential news cases.\n\n50\n\n\x0c1.12. Street Crime, Corporate Crime, and White-Collar Crime\n\nSHANELL SANCHEZ\n\nAs previously demonstrated, crime can be broadly defined, but the two most common types of crime\ndiscussed are, street crime and corporate or white-collar crime. Most people are familiar with street crime\nsince it is the most commonly discussed amongst politicians, media outlets, and members of society. Every\nyear the Justice Department puts out an annual report titled \xe2\x80\x9cCrime in the United States\xe2\x80\x9d which means street\ncrime but has yet to publish an annual Corporate Crime in the United States report. Most Americans will\nfind little to nothing on price-fixing, corporate fraud, pollution, or public corruption.\nStreet Crime\nStreet crime is often broken up into different types and can include acts that occur in both public and\nprivate spaces, as well as interpersonal violence and property crime. According to the Bureau of Justice (BJS),\nstreet crime can include violent crime such as homicide, rape, assault, robbery, and arson. Street crime also\nincludes property crimes such as larceny, arson, breaking-and-entering, burglary, and motor vehicle theft.\nThe BJS also collects data on drug crime, hate crimes, and human trafficking, which often fall under the\n1\nlarger umbrella of street crime.\nFear of street crime is real in American society; however, street crime may not be as rampant as many\nthink. In a 2017 report, the BJS found that the rate of robbery victimization increased from 1.7 per 1,000\npersons in 2016 to 2.3 in 2017. Overall, robbery happens to a small percentage of Americans, which also\nseems to be a similar trend when looking at the portion of persons age 12 or older who were victims\nof violent crime. The BJS noted an increase from 0.98% in 2015 to 1.14% in 2017, but note the small\npercentage overall. Further from 2015 to 2017, the percentage of persons who were victims of violent\ncrime increased among males, whites, those ages 25 to 34, those age 50 and over, and those who had never\nmarried. There are clear risk factors that can be taken into account when attempting to develop policy,\nwhich discussed in subsequent chapters of the book. There were also areas where the BJS noted a downward\ntrend in crime, such as the decline in the rate of overall property crime from 118.6 victimizations per 1,000\n2\nhouseholds to 108.4, while the burglary rate fell from 23.7 to 20.6.\nPolls have consistently found that people are worried about crime in the United States, specifically street\ncrime. Riffkin (2014) found that people worry about various crimes such as homes getting burglarized\nwhen they were home, the victim of terrorism, attacked while driving their car, murdered, the victim of a\n1. https://www.bjs.gov/index.cfm?ty=tp&tid=316\n2. Morgan, R., & Truman, J., (December, 2018). NCJ 252472\n\n51\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nhate crime, and sexually assaulted https://news.gallup.com/poll/178856/hacking-tops-list-crimes-americansworry.aspx. For most people in society, people can go about their daily lives without the fear of being a\nvictim of street crime. Street crime is important to take seriously, but it is reassuring to note that it is unlikely\nto happen to most people. The conversation should happen around why fears are high, especially amongst\nthose less likely to be a victim. For example, elderly citizens have the greatest fear of street crime, yet they\nare the group least likely to experience it. Whereas younger people, especially young men, are less likely to\n3\nfear crime and are the most likely to experience it.\n\nGallup polls\n\nBecause Americans are often fearful of street crime, for various reasons, resources are devoted to prevention\nand protecting the public. The United States spends roughly $265.2 billion dollars a year and employs\nmore than one million police officers, almost 750,000 correctional officers, and more than 490,000 judicial\n4\nand legal personnel on street crime. The Uniform Crime Reports (UCR) estimated in 2015 that financial\nloses from property crime at $14.3 billion in 2014 (FBI, 2015a), but keep that number in mind for a\n\n3. Doerner, W. G., & Lab, S.P. (2008). Victimology (5th ed.). Cincinnati, Ohio: Lexis-Nexis.\n4. Kyckelhahn, T. (2012). Justice expenditure and employment extracts. Bureau of Justice Statistics\n\n52\n\n\x0cIntroduction to the American Criminal Justice System\n5\n\nminute. Although it is crucial to recognize that street crime does occur, and it impacts certain groups\ndisproportionately more than others, it is also important to recognize other types of crime less commonly\ntalked discussed. In fact, the BJS does not have a link that directs people to the next two types of crime\ndiscussed when on their main page of crime type.\nCorporate Crime\nWhen most people think of crime, they think of acts of interpersonal violence or property crime. The\ntypical image of a criminal is not someone who is considered a \xe2\x80\x98pillar\xe2\x80\x99 in society, especially one who may\nhave an excellent career, donate to charity, devote time to the community, and engage in \xe2\x80\x98normal\xe2\x80\x99 behavior.\n6\nCorporate crime is an offense committed by a corporation\xe2\x80\x99s officers who pursue illegal activity (various\nkinds) in the name of the corporation. The goal is to make money for the business and run a profitable\nbusiness, and the representatives of the business. Corporate crime may also include environmental crime if a\n7\ncorporation damages the environment to earn a profit. As C. Wright Mills (1952) once stated, \xe2\x80\x9ccorporate\n8\ncrime creates higher immorality\xe2\x80\x9d in U.S. society. Corporate crime inflicts far more damage on society than\nall street crime combined, by death, injury, or dollars lost.\nCredit Suisse pled guilty to helping thousands of Americans file false income tax returns, and the company\ngot fined $2.6 billion. Last year, BNP Paribas pled guilty to violating trade sanctions and was forced to pay\n$8.9 billion, which exceeds the yearly out of pocket yearly costs of all the burglaries and robberies in the\nUnited States ($4.5 billion in 2014 according to the FBI). Another example is health care fraud. The estimates\n9\nsuggest this costs Americans $100 billion to $400 billion a year.\nIn 2001, the energy company Enron committed accounting and corporate fraud, where shareholders lost $74\nbillion in the four years leading to its bankruptcy, thousands of employees lost jobs, and billions of dollars\n10\ngot lost in pension plans.\nIn addition to financial loss, corporate crime can be violent. In 2016, the FBI estimated the number\n11\nof murders in the nation to be 17,250. Compare 54,000 Americans who die every year on the job or\nfrom occupational diseases such as black lung and asbestosis and the additional tens of thousands of other\nAmericans who fall victim every year to the silent violence of pollution, contaminated foods, hazardous\n12\nconsumer products, and hospital malpractice. A vast majority of these deaths are often the result of criminal\nrecklessness. Americans are rarely made aware of them, and they rarely make their way through the criminal\njustice system.\nThe last major homicide prosecution brought against a major American corporation was in 1980. A\nRepublican Indiana prosecutor charged Ford Motor Co. with homicide for the deaths of three teenaged girls\nwho died when their Ford Pinto caught on fire after being rear-ended in northern Indiana. The prosecutor\nalleged that Ford knew that it was marketing a defective product, with a gas tank that crushed when rearended, spilling fuel, where the girls incinerated to death. Ford hired a criminal defense lawyer who in turn\nhired the best friend of the judge as local counsel, and who, as a result, secured a not guilty verdict after\n5. FBI. (2015b), September 28). Latest crime stats released. Washington, DC: US Department of Justice.\n6. Fuller, J.R. (2019). Introduction to criminal justice. New York, Oxford: Oxford University Press.\n7. Fuller, J.R. (2019). Introduction to criminal justice. New York, Oxford: Oxford University Press.\n8. Horowitz, I. (Ed.) (2008), Power, politics, and people. Wright Mills, C. (1952). A diagnosis of moral uneasiness (pp.330-339). New York:\nBallantine.\n9. (2000). License To Steal: How Fraud Bleeds America\'s Health Care System. Westview Press.\n10. Folger, J. (November, 2011). The Enron collapse: A look back. Investopedia. Retrieved from https://www.investopedia.com/updates/\nenron-scandal-summary/\n11. FBI: UCR. 2016. FBI Murder. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/murder\n12. Mokhiber, R. Corporate crime & violence: Big business power and the abuse of the public trust. Random House, Inc.\n\n53\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n13\n\npersuading the judge to keep key evidence out of the jury room. https://www.history.com/this-day-inhistory/fatal-ford-pinto-crash-in-indiana.\nSometimes the terms corporate and white-collar crime are used interchangeably, but there are important\n14\ndistinctions between the two terms.\nWhite-Collar Crime\nIn contrast to corporate crime, white-collar crime usually involves employees harming the individual\ncorporation. Sometimes corporate and white-collar crime goes hand in hand, but not always. An example\nof white-collar crime would be the financial offenses of Bernard Madoff, who defrauded his investors of\napproximately $20 billion. Instead of trading stocks with his clients\xe2\x80\x99 money, Madoff had for years been\noperating an enormous Ponzi scheme, paying off old investors with money he got from new ones.\nBy late 2008, with the economy in free fall, Madoff could no longer attract new money, and the scheme\ncollapsed, which resulted in hundreds of investors, including numerous charities, being wiped out. As of\ntoday, a court-appointed trustee has managed to recover about $13 billion, which is most of the money\nMadoff\xe2\x80\x99s investors put into his funds. The trustee sold off Madoff family\xe2\x80\x99s assets, including their homes in the\n15\nHamptons, Manhattan, and France and a 55-foot yacht named Bull.\nDr. Sanchez\xe2\x80\x99s Professor in Graduate School\n\nIn 2008, many people were negatively impacted by Madoff, one of which was a former professor for Dr. Sanchez.\nHe lost his retirement, which required him to keep teaching well into his 80\xe2\x80\x99s, as well as lost his home. The impact\nof Madoff was far-reaching and although most may call it a purely economic crime, people committed suicide and\nlost everything in this scandal.\n\nNo official program measures corporate and white-collar crime like there is with street crime occurring in\nthe United States. Therefore, we estimate costs to society, and who the victims are. Additionally, unlike street\ncrime where the crime can often be discovered instantly and investigated quickly, corporate and white-collar\ncrime can take years to investigate and even longer to prosecute. Remember, Madoff was involved in fraud\n16\nmost of his working life but were not caught until he was nearing the end at the age of 71.\n\n13. Steinzor, R. (Dec. 2014). It\xe2\x80\x99s called \'Why Not Jail?\': Industrial catastrophes, corporate malfeasance, and government inaction. Cambridge\nUniversity Press.\n14. Kleck, G. (1982). On the use of self-report data to determine the class distribution of criminal and delinquent behavior." American\nSociological Review, 427-433.\n15. Zarroli, J. (2018). For Madoff victims, scars remain 10 years later, National Public Radio, https://www.npr.org/2018/12/23/678238031/\nfor-madoff-victims-scars-remain-10-years-later\n16. Fuller, J.R. (2019). Introduction to Criminal Justice. New York: Oxford, Oxford University Press.\n\n54\n\n\x0c1.13. Different Types of Crimes and Offenses\n\nSHANELL SANCHEZ\n\nOnce an act gets identified as a crime, the law then attempts to define crime in a way that can distinguish\nthe harm done and the severity of the crime. There are different types of crime and two different types of\noffenses that will get discussed. In the previous section, street crime, corporate crime, and white-collar crime\nget discussed. However, more broadly, there are crimes against the person, crimes against property, crimes\nagainst public order, and drug crime that typically get counted and fall under street crime.\nCrimes Against the Person\nCrimes against the person are often considered the most serious and may include homicide, rape,\nassault, kidnapping, and intimate partner violence. Each of these crimes can carry a different penalty\nbased upon the seriousness of the crime. For example, because Ted Bundy murdered women, rather\nthan \xe2\x80\x98just\xe2\x80\x99 assaulted, Bundy was eligible for capital punishment in the U.S. The state defines the crime\nand the punishment.\nCrimes Against Property\nProperty crimes are widespread and seen as less severe than crimes against the person. Property crimes\nmay include larceny, burglary, arson, and trespassing. There are varying degrees of liability depending\non the circumstances of the case.\nCrimes Against Public Order\nPublic order crimes may not harm other people or property but impact social order. Think back to\nthe example of feeding homeless in community\xe2\x80\x99s where that is illegal. Other typical examples would\nbe disorderly conduct, loitering, and driving under the influence. The victim is society, and the goal\nis to maintain social order. Many debates whether certain crimes against public order are more or less\nsevere, but get inappropriately punished. For example, driving while intoxicated can take lives and may\nbe more severe. However, the law will charge for vehicular manslaughter or murder if life gets taken\nbecause someone drove drunk.\nDrug Offenses\nMost often drug offenses can be seen as a crime against public order, but the United States reaction to\nillegal drug use has altered the resources of the CJ system because of the \xe2\x80\x9cwar on drugs.\xe2\x80\x9d Some examples\nof drug offenses can be possession of illegal drugs, being high, and selling. Punishment will vary based\non the drug, how much of the drug is in possession or sold, and where it gets sold.\nMisdemeanor\n55\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nA misdemeanor is considered a minor criminal offense that is punishable by a fine and jail time for up\nto one year.\nFelony\nA felony is an offense that is punishable by a sentence of more than one year in state or federal prison\nand sometimes by death.\nMany different types of crimes and punishments can be handed out by the criminal justice system. Each\nstate determines what and how this will operate if discussing state-level crime. Other crimes are defined in\nfederal statutes and can get punished at the federal level such as treason. Some crimes are seen as more severe,\nespecially if they are violent in nature or harm people. Others may get seen as a \xe2\x80\x98victimless\xe2\x80\x99 or behavior that\ngets seen as consensual, yet undesirable to those making the laws. This general overview demonstrates the\ncomplexity of defining crime and understanding the role society has in shaping these perceptions.\n\n56\n\n\x0c1.14. Victims and Victim Typologies\n\nSHANELL SANCHEZ\n\nIt was not until 1660 that the word victim was first used to in the sense of a person who is hurt, tortured or\nkilled by another. A victim of crime did not exist until well into the 17th century. Why were victims ignored\n1\nfor so long? A victim is an integral part of the system, in fact, some say without a victim there would be no\nneed for the CJ system. Victims are the people or communities that suffer physical, emotional, or financial\nharm as a result of a crime. Over the years different typologies of victims have been created to demonstrate\nthe unique role or position of victims in relation to crime. Typically, when people hear someone has been a\nvictim of a crime we often think of them as completely innocent. In fact, a lot of new legislation and policy\nchanges created to provide the victim with a greater role in the CJ offers the stereotypical view of the victim\n2\nas completely innocent.\nTypologies of Crime Victims\nTheorists have developed victim typologies that are concerned primarily with the situational and personal\ncharacteristics of victims and the relationship between victims and offenders. Benjamin Mendelsohn was one\nof the first criminologists to create a victim typology, in the 1950s, but was not without controversy. Below\nis a table of Mendelsohn\xe2\x80\x99s typology of crime victims and as you can see he placed a lot of emphasis on most\n3\nvictims attitude that leads to their victimization.\nMendelsohn\xe2\x80\x99s Typology of Crime Victims\n\n1. Hagemann, O., Sch\xc3\xa4fer, P., & Schmidt, S. (Eds.) (2010). Victimology, Victim Assistance, and Criminal Justice: Perspectives Shared by\nInternational Experts Wemmers, J. A short history of victimology. at the Inter-University Centre of Dubrovnik. 2010. Available at SSRN:\nhttps://ssrn.com/abstract=2482627\n2. Fuller, J.R. (2019). Introduction to Criminal Justice: New York: Oxford University Press.\n3. Mendelsohn, B. (1976). Victimology and contemporary society\'s trends. Victimology, 1(1), 8-28.\n\n57\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nInnocent victim\n\nSomeone who did not contribute to the victimization and is in\nthe wrong place at the wrong time. This is the victim we most\noften envision when thinking about enhancing victim rights.\n\nThe victim with minor guilt\n\nDoes not actively participate in their victimization but\ncontributes to it in some minor degree, such as frequenting\nhigh-crime areas. This would be a person that continues to go\nto a bar that is known for nightly assault.\n\nThe guilty victim, guilty offender\n\nVictim and offender may have engaged in criminal activity\ntogether. This would be two people attempting to steal a car,\nrob a store, sell drugs, etc.\n\nThe guilty offender, guiltier victim\n\nThe victim may have been the primary attacker, but the\noffender won the fight.\n\nGuilty victim\n\nThe victim instigated a conflict but is killed in self-defense. An\nexample would be an abused woman killing her partner while\nhe is abusing her.\n\nImaginary victim\n\nSome people pretend to be victims and are not. This would be\nsomeone falsifying reports.\n\nOther criminologists developed similar typologies but included other elements. For example, Hans Von\nHentig expanded his typology from situational factors that Mendelsohn looked at and considered the role\nof biological, sociological and psychological factors. For example, Von Henting said the young, elderly, and\nwomen are more susceptible to victimization because of things such as physical vulnerabilities. It is important\nto recognize that some crimes, and ultimately crime victims, are excluded in these typologies such as white4 5\ncollar and corporate crime.\nVon Hentig\xe2\x80\x99s Typology\nYoung people\n\nImmature, under adult supervision, lack physical strength and\nlack the mental and emotional maturity to recognize\nvictimization\n\nFemales/elderly\n\nLack of physical strength\n\nMentally ill/intellectually disabled\n\nCan be taken advantage of easily\n\nImmigrants\n\nCannot understand language or threat of deportation makes\nthem vulnerable\n\nMinorities\n\nMarginalized in society, so vulnerable to victimization.\n\nDull normals\n\nReasonably intelligent people who are naive or vulnerable in\nsome way. These people are easily deceived.\n\nThe depressed\nThe acquisitive\n\nGullable, easily swayed, and not vigilant.\nGreedy and can be targeted for scammers who would take\nadvantage of their desire for financial gain.\n\nThe lonesome and broken-hearted\n\nOften prone to victimization by intimate partners. They desire\nto be with someone at any cost. They are susceptible to\nmanipulation.\n\nTormentors\n\nPrimary abusers in relationships and become victims when the\none being abused turns on them.\n\nBlocked, exempted, and fighting victims\n\nEnter situations in which they are taken advantage such as\nblackmail.\n\nVon Hentig\xe2\x80\x99s work was the basis for later theories of victim precipitation. Victim precipitation suggests\n4. Burgess, A. W. (2013). Victimology: Theories and applications. (3rd ed.). Burlington: Jones and Bartlett.\n5. Von Hentig, H. (1948). The criminal and his victim: Studies in the sociobiology of crime. New Haven: Yale University Press.\n\n58\n\n\x0cIntroduction to the American Criminal Justice System\n\nmany victims play a role in their victimization. First, the victim acted first during the course of the\n6\noffense, and second that the victim instigated the commission of the offense. It is important to note that\ncriminologists were attempting to demonstrate that victims may have some role in the victimization and\nare not truly innocent. Today we often recognize the role in victimization without blaming the individual\nbecause ultimately the person who offended is the person who offended.\n\n6. Smith, M., & Bouffard, L. A. (2014). "Victim precipitation." The Encyclopedia of Criminology and Criminal Justice, Wiley Online Library.\n\n59\n\n\x0c1.15. Victim Rights and Assistance\n\nSHANELL SANCHEZ\n\nDefinition of a Victim\nThe CJ system refers to a victim as a person who has been directly harmed by a crime that was committed\nby another person. In some states, victims\xe2\x80\x99 rights apply only to victims of felonies (more serious crimes) while\nother states also grant legal rights to victims of misdemeanors (less serious crimes). Some states allow a family\nmember of a homicide victim or the parent or guardian of a minor, incompetent person, or person with a\n1\ndisability to exercise these rights on behalf of the victims.\nThe U.S. criminal justice system first introduced services for victims of federal criminal offenses during the\n1980s. In the 1990s it was made law and Congress created the Victim\xe2\x80\x99s Rights and Restitution Act H.R.5368.\nThe Act requires all Federal law enforcement agency officers and employees to make their best efforts to\naccord victims of crime with the right to (1) be treated with fairness and respect for the victim\xe2\x80\x99s dignity and\nprivacy; (2) be protected from their accused offenders; (3) notification of court proceedings; (4) attend public\ncourt proceedings related to the offense under certain conditions; (5) confer with the Government attorney\nassigned to the case; (6) restitution; and (7) information about the conviction, sentencing, imprisonment, and\nrelease of the offender. Directs Federal law enforcement agency heads to designate the persons responsible\nfor identifying the victims of a crime and providing certain services to such victims such as: (1) informing\nthem where to receive medical care and counseling; (2) arranging protection from an offender; and (3)\nkeeping the victim informed of developments during the investigation and prosecution of the crime and\n2\nafter the trial such as the arrest of a suspected offender or an escape of a convicted offender.\nThe state prosecutes criminal offenses in the name of society, which is why cases are Smith v. Colorado,\nso victims and families were often not included in the process since they were not a necessary part of the\ncourt system. Today we have introduced various rights and include victim-impact statements. Victimimpact statements given an account by the victim, the victim\xe2\x80\x99s family, or others affected by the offense that\n3\nexpressed the effects of the offense.\n\n1. The National Center for Victims of Crime. (2012). Victim\'s rights. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletinsfor-crime-victims/victims%27-rights\n2. https://www.congress.gov/bill/101st-congress/house-bill/5368 H.R.5368 - Victims\' Rights and Restitution Act of 1990 101st Congress\n(1989-1990)\n3. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/victims%27-rights\n\n60\n\n\x0cIntroduction to the American Criminal Justice System\n\nVictim Impact Statements Video: Listen and Learn\n\nYou will watch victim impact statements that were created to help educate people on the impact of various\ncrimes. Warning: It is hard to watch at times and may cause you to feel upset, sad, angry, or more.\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nFirst, watch the youtube video https://www.youtube.com/watch?v=_ghpl4vDZ3s\nSecond, write a 500-word response about the benefits of victim-impact statements, the impact the\nfilm had on you, and any other general thoughts you had while watching.\n\nVictim Rights\nToday, all states and the federal government have passed laws to establish a set of victims\xe2\x80\x99 rights. The main\ngoal of these laws is to provide victims with certain information and protections. It is important to note that\nvictims\xe2\x80\x99 rights, just like criminal offenses, will depend on the jurisdiction where the crime is investigated and\n4\nprosecuted. The rights may vary state, federal or tribal government, or military installation.\nOverview of Victim\xe2\x80\x99s Rights\nBelow is a list of basic victims\xe2\x80\x99 rights from the National Center for Victims of Crime that are provided by\nlaw in most jurisdictions. Again, it is important to remember these rights vary, depending on federal, state,\nor tribal law.\n\n1.\n\nRight to be Treated with Dignity, Respect, and Sensitivity\n1.\n\nVictims generally have the right to be treated with courtesy, fairness, and care by\nlaw enforcement and other officials throughout the entire criminal justice process.\nThis right is included in the constitutions of most states that have victims\xe2\x80\x99 rights\namendments and in the statutes of more than half the states.2 Victim impact\nstatements allow crime victims, during the decision-making process on sentencing\nor parole, to describe to the court or parole board the impact of the crime on\ntheir lives. The victim impact statement may include a description of psychological,\nfinancial, physical, or emotional harm the victim experienced as a result of the crime.\nA judge may use information from these statements to help determine an offender\xe2\x80\x99s\nsentence; a parole board may use such information to help decide whether to grant\nparole and what conditions to impose in releasing an offender. Many victims have\nreported that making victim impact statements improved their satisfaction with the\ncriminal justice process and helped them recover from the crime. In some states, the\n\n4. The National Center for Victims of Crime. (2012). Victim\'s rights. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletinsfor-crime-victims/victims%27-rights\n\n61\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nprosecutor is required to confer with the victim before making important decisions.\nIn all states, however, the prosecutor (and not the victim) makes decisions about the\ncase.\n2.\n\nRight to Be Informed\n1.\n\nThe purpose of this right is to make sure that victims have the information they\nneed to exercise their rights and to seek services and resources that are available to\nthem. Victims generally have the right to receive information about victims\xe2\x80\x99 rights,\nvictim compensation (see \xe2\x80\x9cRight to Apply for Compensation,\xe2\x80\x9d below), available\nservices and resources, how to contact criminal justice officials, and what to expect\nin the criminal justice system. Victims also usually have the right to receive\nnotification of important events in their cases. Although state laws vary, most states\nrequire that victims receive notice of the following events:\n\xe2\x96\xaa\n\nthe arrest and arraignment of the offender\n\n\xe2\x96\xaa\n\nbail proceedings\n\n\xe2\x96\xaa\n\npretrial proceedings\n\n\xe2\x96\xaa\n\ndismissal of charges\n\n\xe2\x96\xaa\n\nplea negotiations\n\n\xe2\x96\xaa\n\ntrial\n\n\xe2\x96\xaa\n\nsentencing\n\n\xe2\x96\xaa\n\nappeals\n\n\xe2\x96\xaa\n\nprobation or parole hearings\n\n\xe2\x96\xaa\n\nrelease or escape of the offender\n\nStates have different ways of providing such information to victims. Usually,\ninformation about court proceedings is mailed to the victim. Some states have an\nautomated victim notification system that automatically calls or e-mails the victim\nwith updates on the status of the offender, while others require the victim to\ntelephone the authorities to receive such updates.\n3.\n\nRight to Protection\n1.\n\nIn many states, victims have the right to protection from threats, intimidation, or\nretaliation during criminal proceedings. Depending on the jurisdiction, victims may\nreceive the following types of protection:\n\n62\n\n\x0cIntroduction to the American Criminal Justice System\n\n\xe2\x96\xaa\n\npolice escorts\n\n\xe2\x96\xaa\n\nwitness protection programs\n\n\xe2\x96\xaa\n\nrelocation\n\n\xe2\x96\xaa\n\nrestraining orders\n\nSome states also have laws to protect the employment of victims who are\nattending criminal proceedings (see \xe2\x80\x9cRight to Attend Criminal Proceedings,\xe2\x80\x9d\nabove).\n4.\n\nRight to Apply for Compensation\n1.\n\nAll states provide crime victim compensation to reimburse victims of violent\ncrime for some of the out-of-pocket expenses that resulted from the crime. The\npurpose of compensation is to recognize victims\xe2\x80\x99 financial losses and to help them\nrecover some of these costs. All states have a cap on the total compensation award\nfor each crime, and not all crime-related expenses are covered. To be eligible for\ncompensation, victims must submit an application, usually within a certain period of\ntime, and show that the losses they are claiming occurred through no fault of their\nown. Some types of losses that are usually covered include:\n\xe2\x96\xaa\n\nmedical and counseling expenses\n\n\xe2\x96\xaa\n\nlost wages\n\n\xe2\x96\xaa\n\nfuneral expenses\n\nCompensation programs seldom cover property loss or pain and suffering. Also,\nvictim compensation is a payer of last resort; compensation programs will not cover\nexpenses that can be paid by some other program, such as health insurance or\nworkman\xe2\x80\x99s compensation.\n5.\n\nRight to Restitution from the Offender\n1.\n\nIn many states, victims of crime have the right to restitution, which means the\noffender must pay to repair some of the damage that resulted from the crime. The\npurpose of this right is to hold offenders directly responsible to victims for the\nfinancial harm they caused. The court orders the offender to pay a specific amount of\nrestitution either in a lump sum or a series of payments. Some types of losses covered\nby restitution include:\n\n2.\n\nlost wages\n\n3.\n\nproperty loss\n\n63\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n4.\n6.\n\ninsurance deductibles\n\nRight to Prompt Return of Personal Property\n1.\n\nCrime investigators must often seize some of the victim\xe2\x80\x99s property as evidence\nfor a criminal case. In most states, authorities must return such property to the\nvictim when it is no longer needed. To speed up the return of property, some states\nallow law enforcement to use photographs of the item, rather than the item itself, as\nevidence. The prompt return of personal property reduces inconvenience to victims\nand helps restore their sense of security.\n\n7.\n\nRight to a Speedy Trial\n\n8.\n\nRight to Enforcement of Victim\xe2\x80\x99s Rights\n1.\n\nTo be meaningful, legal rights must be enforced. States are beginning to pass\nlaws to enforce victims\xe2\x80\x99 rights, and several states have created offices to receive and\ninvestigate reports of violations of victims\xe2\x80\x99 rights. Other states have laws that permit\nvictims to assert their rights in court.\n\n5\n\n5. National Center for Victims of Crime. (2012). http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/\nvictims%27-rights\n\n64\n\n\x0c1.16. "Spare the Rod, Spoil the Child" Myth/Controversy\n\nThis unit delved into theories of criminal behavior, and the previous unit sought crime control policies.\nEach theory suggests an appropriate means to reduce or prevent violence. Some work and some do not.\nDeterrence theories operate on the assumption that people want to minimize pain. Learning theories suggest\npeople may learn how to be a criminal (or learn how not to be a criminal). Disciplining children is a primary\nfunction of the family. Many people believe it is acceptable, or even necessary, to spank their children.\nSpanking is a form of corporal punishment. Why do parents spank their children? For some parents, they\nspank as a form of punishment (Remember operant conditioning? It is a form of positive punishment). They\nare using physical means to stop a behavior from happening again. These are ideological beliefs.\nOther parents might say that they\xe2\x80\x99ve been spanked as a child, and they turned out fine. This belief\nreinforces the family upbringing myth. Additionally, other parents might feel pressure to discipline their\nchild with physical force. Some parents \xe2\x80\x9cthink\xe2\x80\x9d they seem \xe2\x80\x9cweak\xe2\x80\x9d if they do not spank their child.\nFurthermore, grandparents and other family members might encourage new parents to spank their children.\nPlease listen or read the National Public Radio\xe2\x80\x99s podcast on spanking (NPR\xe2\x80\x99s \xe2\x80\x93 \xe2\x80\x9cThe American Academy\nof Pediatrics On Spanking Children: Don\xe2\x80\x99t Do It, Ever.\xe2\x80\x9d)\nThere is a difference between physical discipline and physical abuse, but it is a fine line. If you are in favor\nof spanking, would you let another family member spank your child? Would you let a stranger? Why or\nwhy not? It is not illegal to spank children in the United States, but decades of research have recommended\nother methods of punishment and discipline besides physical force. At the very least, it is easy for children\nto learn that violence (spanking) is an appropriate method to get what you want. Parents who spank their\nchildren because their child \xe2\x80\x9chit\xe2\x80\x9d another child or sibling might want to reflect on a child may learn \xe2\x80\x93 \xe2\x80\x9cI\xe2\x80\x99m\ngoing to hit (spank) you for hitting another person. Don\xe2\x80\x99t hit!\xe2\x80\x9d\n\n65\n\n\x0c\x0c2: Defining and Measuring Crime\nand Criminal Justice\n\nLearning Objectives\n\nIn the previous section, we spent much time trying to understand how to define crime, whereas this section will\nfocus on the task of measuring crime. Measuring crime is quite complex and requires an understanding of different\ndata sets and how we use them. Defining crime seems complex, but measuring crime is just as complicated of a task.\nWithout crime, there is no need for the criminal justice system. We must have a clear and accurate understanding\nof crime in order to create effective policies to combat it or help minimize it. This section will teach students how\nto obtain accurate measures of crime so that they can be an informed citizen. Further, if we have an accurate picture\nof crime and trends, we can better predict the needs of our society, such as increased patrol, rehabilitation services,\nand more. We will also spend some time talking about evidence-based practices, discussed in greater detail later.\nAfter reading this section, students will be able to:\n\xe2\x80\xa2\n\nDevelop an understanding of the different data sources used to gather precise and accurate measures\nof crime\n\n\xe2\x80\xa2\n\nRecognize the difference between official or reported statistics, self-report statistics, and victimization\nstatistics\n\n\xe2\x80\xa2\n\nEvaluate the reliability of statistics and data heard about the criminal justice system\n\nCritical Thinking Questions\n\n1.\n\nWhat are the three different types of data sources we often rely on in CJ?\n\n2.\n\nWhat are the strengths and limitations of each data source?\n\n3.\n\nIdentify when each type of data source would be appropriate for different crimes and why.\n\n67\n\n\x0c\x0c2.1. Dark or Hidden Figure of Crime\n\nSHANELL SANCHEZ\n\nIt is difficult to determine that amount of crime that occurs in our communities every year because many\ncrimes never come to the attention of the criminal justice system. There are various reasons that will be\ndiscussed, such as victims not reporting, victims not realizing they are victims, and offenders not getting\ncaught. Research reveals, that on average, more than half of the nation\xe2\x80\x99s violent crimes, or nearly 3.4 million\nviolent victimizations per year, went unreported to the police between 2006 and 2010, according to a\n1\nnew report published by the Bureau of Justice Statistics (BJS). Because of this underreporting of crime,\ncriminologists often refer to a concept known as the dark figure of crime.\nThere are three general sources of crime statistics that will be covered in this chapter: official statistics,\nwhich we often describe as reported statistics, self-report statistics, and victimization statistics. Each of these\nsources of crime statistics has pros and cons, and we will spend time discussing those as well. Additionally, we\nwill discuss the importance of looking at crime trends over time, relying upon statistics and research when\ndeveloping policy, and how data should be a tool that enhances the criminal justice system.\nIf we have accurate and reliable crime statistics, we can evaluate criminal justice policies and programs. For\nexample, we could use crime statistics to see if incarcerating drug offenders is effective. Such effectiveness\nis studied in the correctional system via the \xe2\x80\x98risk principal,\xe2\x80\x99 or classifying people based on the level of risk.\nhttps://heinonline.org/HOL/LandingPage?handle=hein.journals/fedsen27&div=37&id=&page=\nRelying on official statistics can be problematic to grasp a correct understanding of crime in society\nbecause many crimes never even come to the attention of the criminal justice system. Official statistics are\noften the crimes that are known or reported to police or others. It may seem shocking that people do not\nreport crimes, but it is more common than we think. Let us take the example of looking at the gap between\nreported and unreported crimes.\nDark Figure of Crime Example\n\nMy father-in-law grew up in a small town in South Dakota. When his family moved to Colorado, they still had\na rural mindset to their property. They often think people should not touch other peoples things, so there is no\n\n1. Bureau of Justice Statistics. (2012). Nearly 3.4 million violent crimes per year. https://www.bjs.gov/content/pub/press/vnrp0610pr.cfm\n\n69\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nneed to lock up their house, car, or other property. He leaves his vehicle, house, and garage unlocked in Colorado\nbecause of that mindset. However, they live in a large, populous part of Colorado in a suburb outside Denver. Most\npeople do not know the neighbor three doors down. One morning he woke up to his truck gone! The first thing\nhe did was realize he left the keys in the truck and the truck was unlocked (normal to him). Next, he decided to\ntake a walk to look for it before phoning the police. He located the truck, and it was damaged. It appeared that kids\ntook it for a joy ride, as evidence from the beer cans and odor. He chose not to call the police. Why? He was happy\nthe property had was located, yet he believed \xe2\x80\x98it was his fault,\xe2\x80\x99 and he had to get to work. Is this type of reaction\nmore common than we may think?\nA friend of mine was a victim of domestic violence for over nine months and never told anyone, especially police.\nHer boyfriend was only presented as perfect, loving, and romantic on social media and around people. When she\ndid come forward, it was after she landed in the emergency room due to him assaulting her. People may initially\nthink domestic violence victims would always call the police, but there are so many reasons people do not come\nforward.\nWhen victims of crime do not report, or police are not made aware of a crime these crimes go uncounted in the\nofficial statistics. They become part of the \xe2\x80\x98dark figure of crime\xe2\x80\x98 that we will learn about throughout this section.\n2\n\nSome Reasons People May Not Report\n\n3\n\n1. The victim may not know a crime occurred\n2. The offender is a member of the family, a friend, or an acquaintance\n3. The victim thinks it is not worth reporting\n4. The victim may fear retaliation\n5. The victim may also have committed a crime\n6. The victim does not trust the police\n\n2. Biderman, A., & Reiss, A. (1967). On exploring the "dark figure of crime." The Annals of the American Academy of Political and Social\nScience. 374(1), 1\xe2\x80\x9315. https://doi.org/10.1177/000271626737400102\n3. Brantingham, P., & Brantingham, P. (1984). Patterns in Crime, New York: Macmillan.\n\n70\n\n\x0c2.2. Official Statistics\n\nSHANELL SANCHEZ\n\nDespite being aware that crime does go unreported, it is still important to estimate and attempt to measure\ncrime in the country. However, it is essential always to be aware of the data sources strengths and weaknesses\nwhen reading crime statistics. Also, be cautious of how changing data collection techniques may alter\nstatistics. For example, if a survey never collected data on prescription drug abuse but then all of a sudden\ndoes it could seem like prescription drugs are being abused at high rates. However, it is most likely just\nbecause it is the first time the questions got asked and there are no comparison groups.\nOfficial statistics are gathered from various criminal justice agencies, such as the police and courts, and\nrepresent the total number of crimes reported to the police or the number of arrests made by that agency.\nRemember, if an officer uses discretion and does not arrest a person, even if a crime was committed, this does\nnot get reported.\nThe Federal Bureau of Investigation\xe2\x80\x99s (FBI\xe2\x80\x99s) Uniform Crime Reports (UCR) is the largest, most common\ndata on crime currently available. The UCR lists the number of crimes that were reported to the police\nand the number of arrests made. The link below can take you to the UCR homepage https://www.fbi.gov/\nservices/cjis/ucr.\nThe UCR Program\xe2\x80\x99s primary objective is to generate reliable information for use in law enforcement\nadministration, operation, and management. Various groups and agencies rely upon the UCR crime data,\nsuch as law enforcement executives, students, researchers, the media, and the public at large seeking\n1\ninformation on crime in the nation. The UCR began in 1929 by the International Association of Chiefs of\nPolice to meet the need for reliable uniform crime statistics for the nation. In 1930, the FBI was tasked with\ncollecting, publishing, and archiving those statistics. Every year there are four annual publications produced\nfrom data received from more than 18,000 city, university and college, county, state, tribal, and federal law\n2\nenforcement agencies voluntarily participating in the program.\nThe UCR Program consists of four data collections: The National Incident-Based Reporting System\n(NIBRS), the Summary Reporting System (SRS), the Law Enforcement Officers Killed and Assaulted\n(LEOKA) Program, and the Hate Crime Statistics Program. The UCR also publishes special reports on\nCargo Theft, Human Trafficking, and NIBRS topical studies. The UCR Program will manage the new\nNational Use-of-Force Data Collection.\n1. U.S. Department of Justice. (2017). UCR Reports\n2. U.S. Department of Justice. (2017). UCR Reports\n\n71\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nNational Incident-Based Reporting System, or NIBRS\nThe National Incident-Based Reporting System, or NIBRS, was created to improve the overall quality\nof crime data collected by law enforcement. NIBRS is unique because it collects data on crimes reported\nto the police, but also incidents where multiple crimes are committed, for example when a robbery\n3\nescalates into a rape. NIBRS also collects information on victims, known offenders, relationships between\nvictims and offenders, arrestees, and property involved in the crimes. See the link to go directly to\nNIBRS https://www.fbi.gov/services/cjis/ucr/nibrs\nHate Crime Statistics\nCongress passed the Hate Crime Statistics Act, 28 U.S.C. \xc2\xa7 534, on April 23, 1990. This required\nthe attorney general to collect data \xe2\x80\x9cabout crimes that manifest evidence of prejudice based on race,\nreligion, sexual orientation, or ethnicity.\xe2\x80\x9d Hate crime statistics may assist law enforcement agencies, provide\nlawmakers with justification for certain legislation, provide the media with credible information, or simply\nshow hate crime victims that they are not alone (FBI, 2018). See the link to go to the FBI\xe2\x80\x99s hate crime\nstatistics link https://www.fbi.gov/services/cjis/ucr/hate-crime.\n\nThe FBI UCR Program\xe2\x80\x99s Hate Crime Data Collection gathers data on the following biases:\nRace/Ethnicity/Ancestry\n\xe2\x80\xa2\n\nAnti-American Indian or Alaska Native\n\n\xe2\x80\xa2\n\nAnti-Arab\n\n\xe2\x80\xa2\n\nAnti-Asian\n\n\xe2\x80\xa2\n\nAnti-Black or African American\n\n\xe2\x80\xa2\n\nAnti-Hispanic or Latino\n\n\xe2\x80\xa2\n\nAnti-Multiple Races, Group\n\n\xe2\x80\xa2\n\nAnti-Native Hawaiian or Other Pacific Islander\n\n\xe2\x80\xa2\n\nAnti-Other Race/Ethnicity/Ancestry\n\n\xe2\x80\xa2\n\nAnti-White\n\nReligion\n\xe2\x80\xa2\n\nAnti-Buddhist\n\n\xe2\x80\xa2\n\nAnti-Catholic\n\n\xe2\x80\xa2\n\nAnti-Eastern Orthodox (Russian, Greek, Other)\n\n\xe2\x80\xa2\n\nAnti-Hindu\n\n3. Rantala, R. R. (2000). Effects of NIBRS on crime statistics. Bureau of Justice Statistics Special Report. U.S. Department of Justice, Office of\nJustice Programs. Washington, DC.\n\n72\n\n\x0cIntroduction to the American Criminal Justice System\n\n\xe2\x80\xa2\n\nAnti-Islamic\n\n\xe2\x80\xa2\n\nAnti-Jehovah\xe2\x80\x99s Witness\n\n\xe2\x80\xa2\n\nAnti-Jewish\n\n\xe2\x80\xa2\n\nAnti-Mormon\n\n\xe2\x80\xa2\n\nAnti-Multiple Religions, Group\n\n\xe2\x80\xa2\n\nAnti-Other Christian\n\n\xe2\x80\xa2\n\nAnti-Other Religion\n\n\xe2\x80\xa2\n\nAnti-Protestant\n\n\xe2\x80\xa2\n\nAnti-Atheism/Agnosticism/etc.\n\nSexual Orientation\n\xe2\x80\xa2\n\nAnti-Bisexual\n\n\xe2\x80\xa2\n\nAnti-Gay (Male)\n\n\xe2\x80\xa2\n\nAnti-Heterosexual\n\n\xe2\x80\xa2\n\nAnti-Lesbian\n\n\xe2\x80\xa2\n\nAnti-Lesbian, Gay, Bisexual, or Transgender (Mixed Group)\n\nDisability\n\xe2\x80\xa2\n\nAnti-Mental Disability\n\n\xe2\x80\xa2\n\nAnti-Physical Disability\n\nGender\n\xe2\x80\xa2\n\nAnti-Male\n\n\xe2\x80\xa2\n\nAnti-Female\n\nGender Identity\n\xe2\x80\xa2\n\nAnti-Transgender\n\n\xe2\x80\xa2\n\nAnti-Gender Non-Conforming\n\n73\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nThe types of hate crimes reported to the FBI are broken down by specific categories. The aggregate hate\ncrime data collected for each incident include the following:\n\xe2\x80\xa2\n\nIncidents and offenses by bias motivation: Includes crimes committed by and against\njuveniles. Incidents may include one or more offense types.\n\n\xe2\x80\xa2\n\nVictims: The types of victims collected for hate crime incidents include individuals (adults\nand juveniles), businesses, institutions, and society as a whole.\n\n\xe2\x80\xa2\n\nOffenders: The number of offenders (adults and juveniles), and when possible, the race and\nethnicity of the offender or offenders as a group.\n\n\xe2\x80\xa2\n\nLocation type: One of 46 location types can be designated.\n\n\xe2\x80\xa2\n\nHate crime by jurisdiction: Includes data about hate crimes by state and agency.\n\nLaw Enforcement Officers Killed and Assaulted Program LEOKA\nLEOKA provides data and training that helps keep law enforcement officers by providing relevant,\nhigh quality, potentially lifesaving information to law enforcement agencies focusing on why an incident\n4\noccurred as opposed to what occurred during the incident, with the hope of preventing future incidents.\n\n4. FBI (2017). https://www.fbi.gov/services/cjis/ucr/leoka\n\n74\n\n\x0cIntroduction to the American Criminal Justice System\n\nLEOKA Data\n\nExclusions from the LEOKA Program\xe2\x80\x99s Data Collection\nDeaths resulting from the following are not included in the LEOKA Program\xe2\x80\x99s statistics:\n\xe2\x80\xa2\n\nNatural causes such as heart attack, stroke, aneurysm, etc.\n\n\xe2\x80\xa2\n\nOn duty, but death is attributed to their own personal situation such as domestic violence,\nneighbor conflict, etc.\n\n\xe2\x80\xa2\n\nSuicide\n\nExamples of job positions not typically included in the LEOKA Program\xe2\x80\x99s statistics (unless they meet the\nabove exception) follow:\n\xe2\x80\xa2\n\nCorrections/correctional officers\n\n\xe2\x80\xa2\n\nBailiffs\n\n\xe2\x80\xa2\n\nParole/probation officers\n\n\xe2\x80\xa2\n\nFederal judges\n\n\xe2\x80\xa2\n\nThe U.S. and assistant U.S. attorneys\n\n75\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n\xe2\x80\xa2\n\nBureau of Prison officers\n\n\xe2\x80\xa2\n\nPrivate security officers\n\nAll of these official statistics are a great starting point, although, recognize they are imperfect in nature. Police\nagencies can change their attention to certain events, which can change the overall number of arrests. For\nexample, if police begin cracking down on domestic violence the statistics may go up. This crackdown can\nmake it appear that the problem has increased, although it can be related to the crackdown. Just remember,\nif the crime is not reported, or no arrest is made it will not get captured in the data.\nBureau of Justice Statistics Exercise\n\nThe BJS is relatively user-friendly. Look at crime statistics by state, region, or city, and explore different years\nand crime types.\nhttps://www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm\nExamine current state AND city crime trends in the past five years.\nSecond, pick a state AND city interested in living in and examine the crime trends for the past five years.\n\n76\n\n\x0c2.3. Victimization Studies\n\nSHANELL SANCHEZ\n\nVictimization studies attempt to fill in where police reports are missing by asking people if they have been\na victim of a crime in a given year, reported or not. The National Crime Victimization Survey (NCVS) is\nthe primary source of information on criminal victimization in the United States. The NCVS helps fill in\ngaps that the UCR and NIBRS cannot fill in because that data is only crimes known to police. Every year the\nU.S. Census Bureau administers the survey and gathers data on frequency, characteristics, and consequences\nof criminal victimization from approximately 135,000 households, composed of nearly 225,000 persons. The\nNCVS collects information on nonfatal personal crimes (i.e., rape or sexual assault, robbery, aggravated and\nsimple assault, and personal larceny) and household property crimes (i.e., burglary, motor vehicle theft, and\n1\nother theft) both reported and not reported to police. It is important to help fill in the gap of the dark figure\nof crime previously discussed.\nThe NCVS collects information on age, sex, race and Hispanic origin, marital status, education level, and\nincome, and whether they experienced victimization. Additionally, the NCVS collects information about\nthe offender about age, race and Hispanic origin, sex, and victim-offender relationship, characteristics of the\ncrime (e.g., time and place of occurrence, use of weapons, nature of injury, and economic consequences),\nwhether the crime get reported to police, reason(s) the crime was or do not get reported, and victim\n2\nexperiences with the criminal justice system. See the link below to explore the NCVS https://www.bjs.gov/\nindex.cfm?ty=dcdetail&iid=245\n\nSee the report below on findings of repeat victimization from the NCVS: https://www.bjs.gov/\nindex.cfm?ty=pbdetail&iid=6046\n\nNCVS Exercise\n\n1. Bureau of Justice Statistics, Data Collection: National Crime Victimization Survey (NCVS)\n2. Bureau of Justice Statistics, Data Collection: National Crime Victimization Survey (NCVS)\n\n77\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nGo to the NCVS page and use the analysis tool that allows you to examine the National Crime Victimization\nSurvey (NCVS) data on both violent and property victimization. You can select the victim, household, and incident\ncharacteristics.\nYou can instantly generate tables with national estimates of the numbers, rates, and percentages of victimization\nfrom 1993 to the most recent year that NCVS data are available. The pre-set Quick Tables show you trends in\ncrime and reporting to the police. If you would like more detail, use the Custom Tables analyze victimization by\nexcellent characteristics.\nhttps://www.bjs.gov/index.cfm?ty=nvat\n\nAs with any data source, there are challenges and limitations to victimization surveys. Respondents may\nhave issues recalling victimization, which can lead to underreporting or overreporting. If an individual was\ntraumatized the event may blur together, and it may have occurred in 2017 rather than 2018, but gets\nreported as 2018. Other times respondents may lie or omit information for various reasons such as shame,\nfear, confusion, and a lack of trust. If the respondent is uncomfortable with the interviewers, they may\nnot want to tell them that their partner abused them, out of fear it will get reported to police. However,\nmethodological techniques can attempt to minimize these challenges buy bounding to mitigate the chances\n3\nof this happening.\n\n3. Lab, S., Holcomb, J., & King, W. (2013). Criminal justice: The Essentials. Oxford University Press: Oxford.\n\n78\n\n\x0c2.4. Self-Report Statistics\n\nSHANELL SANCHEZ\n\nSelf-report statistics are stats that are reported by individuals. Self-report statistics get gathered when people\nare asked to report the number of times they may have committed a particular crime during a set period in\nthe past, regardless of getting caught or not. For example, in-class students take a criminal activity checklist\nand report behaviors they have engaged in at some point in their lives. People should be honest since the data\nhas no identifying information collected, and report even if no one ever found out what we find during class\ntime it that all the students, for over eight years of teaching, have committed a crime. However, the amount\nof students that have to get caught is minimal, especially those that received formal sanctioning from the CJ\nsystem (funneling of crime).\n\nMonitoring the Future is an ongoing study of the behaviors, attitudes, and values of American secondary\nschool students, college students, and young adults. Each year, a total of approximately 50,000 8th, 10th,\nand 12th-grade students get surveyed (12th graders since 1975, and eighth and 10th graders since 1991).\nBesides, annual follow-up questionnaires are mailed to a sample of each graduating class for some years\nafter their initial participation. The Monitoring the Future Study has been funded under a series of\ninvestigator-initiated competing research grants from theNational Institute on Drug Abuse, a part of the\nNational Institutes of Health. MTF is conducted at the\nSurvey Research Center in the Institute for Social Research at theUniversity of Michigan.\n\nMonitoring the Future Drug Use Amongst Teens\n\nHow do we get estimates on drug use amongst teens if most of them do not get caught? We rely on reports\nlike the one above from the MTF. Monitoring the Future (MTF) is a long-term study of substance use\n79\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\namong U.S. adolescents, college students, and adult high school graduates through age 60. The survey is\nconducted annually, which allows us to examine long term trends. MTF findings identify emerging\nsubstance use problems, track substance use trends, and inform national policy and intervention strategies.\nRespondents are confidential, which means we cannot link their answers to them. Therefore, people may\n1\nbe more likely, to tell the truth.\n\nIn the Report: One Form of Drug Use Showed a Sharp Increase in Use in 2018\nThe most important findings to emerge from the 2018 survey is the dramatic increase in vaping by\nadolescents. Vaping is a relatively new phenomenon, so we are still developing measures related to this\nbehavior, which included asking separately for the first time in 2017 about the vaping of three specific\nsubstances\xe2\x80\x94nicotine, marijuana, and just flavoring. As the section on vaping in this monograph shows,\nthere was a significant and substantial increase in 2018 in the vaping of all three of these substances,\nincluding some of the most substantial absolute increases MTF has ever tracked for any substance. Given\nthat nicotine is involved in most vaping, and given that nicotine is a highly addictive substance, this\npresents a severe threat.\n\n2\n\nSelf-report statistics are great because they can help discover problems we were unaware of, such as vaping.\nFurther, it helps us identify victimless crimes, or crimes to where there is no victim such as drug use,\ngambling, and underage drinking. Lastly, we uncover offenses that are not as serious such as shoplifting,\n3\nwhich are less likely to be known to police.\nHowever, self-report data also has its limitations. Respondents may exaggerate or underreport their\ncriminal behavior, for various reasons. For example, in the class activity we do, many students did not\nknow what they did was illegal behavior until the statute was read, so they would never have thought they\ncommitted a crime. Lastly, if we do not capture a large sample, we may limit who gets the survey. If we are\nsurveying kids in school about substance abuse, but not reaching out to all kids even if they get suspended,\n4\nwe may miss important data.\nWhich Data Should We Use?\n\nIn each type of data (official, self-report, and victimization) there are pros and cons. Additionally, each source is\nmore likely to produce a better picture of what is occurring depending on the area of study. If a person wanted to\n\n1. Johnston, L.D., Miech, R.A., O\xe2\x80\x99Malley, P.M., Bachman, J.D., Schulenberg, J.E., & Patrick, M.E. (2018). MTF. 2018 Overview Key\nFindings on Adolescent Drug Use\n2. ohnston, L.D., Miech, R.A., O\xe2\x80\x99Malley, P.M., Bachman, J.D., Schulenberg, J.E., & Patrick, M.E. (2018). MTF. 2018 Overview Key Findings\non Adolescent Drug Use\n3. Hindelang, Hirschi, & Weis, (1981). Measuring delinquency. Thousand Oaks, CA: Sage Pubs.\n4. Lab, S., Holcomb, J., & King, W. (2013). Criminal justice: The Essentials. Oxford University Press: Oxford.\n\n80\n\n\x0cIntroduction to the American Criminal Justice System\n\nget the best statistics on reported homicides in the US, which source would be best? How about domestic violence?\nWhat if we were interested in finding out drug abuse rates amongst teens in high school?\n\n81\n\n\x0c2.5. Misusing Statistics\n\nSHANELL SANCHEZ\n\nGenocide: Misuse of Statistics Exercise\n\nThe misuse of statistics promotes crime myths and generates fear of crime. There are various ways that we\ncan misuse statistics, such as limiting public access to critical information, intending to mislead the public by\npresenting false information, or using deceptive formats to present information.\n\n1\n\nExercise: Find a news article that demonstrates an apparent misuse of statistics for a crime OR an article that\ndemonstrates that people are trying to get release accurate and reliable information about a crime. Specifically,\ndiscuss how it is a misuse of statistics or not and why that particular article was picked in 500 words.\nFor example, the article I found is about the genocide in Myanmar. The article is titled, \xe2\x80\x9cWhat is happening in\nMyanmar is genocide. Call it by its name\xe2\x80\x9d in the Washington Post. For a long time, no one referred to this crime\nas a genocide, and there were deliberate attempts by the government in Myanmar and the world to not refer to\nit as genocide. Despite visual evidence that a genocide was occurring, the government tried to deny it. The news\nsaid, \xe2\x80\x9cNO MORE. Call it what it is.\xe2\x80\x9d\nhttps://www.washingtonpost.com/opinions/global-opinions/what-is-happening-in-myanmar-is-genocidecall-it-by-its-name/2018/08/29/611a1090-aafe-11e8-a8d7-0f63ab8b1370_story.html?utm_term=.9e76f629a8b3\n\n1. Kappler, V., & Potter, G. 2018. The Mythology of Crime and Criminal Justice (5th ed.). Waveland Press, Inc: Long Grove.\n\n82\n\n\x0cIntroduction to the American Criminal Justice System\n\nGenocide of Rohingya families\n\nWatch the video link embedded at the top of the CNN news clip where the Monks say the international\ncommunity is wrong and it is not genocide. However, the United Nations took a stance by calling it genocide\nand calling for the end of it. https://www.cnn.com/2017/11/25/asia/myanmar-buddhist-nationalism-mabatha/\nindex.html\n\nMisusing statistics can happen all the time, and sometimes it is intentional, others accidental. When\nwe think back to the example of my grandfather, he would just cite stats out of nowhere. However, he had\nnever really studied any of the issues and his sources were unreliable. As a child, I often wondered how\nhe knew this? He did not intend to spew inaccurate facts but accidentally did to us because he listened to\nsomeone who thought they had knowledge. This happens often when people give \xe2\x80\x98opinions\xe2\x80\x99 without facts,\nwhich they are merely opinions. It is important to be able to distinguish this.\n\n83\n\n\x0c\x0c3: Criminal Law\n\nLearning Objectives\n\nThis section examines the fundamental principles of criminal law. It describes the functions of formal criminal\nlaw (what criminal law does and what it cannot do), how crimes differ from civil and moral wrongs, and various\nclassification schemes used in discussing criminal law. This section also examines the sources of substantive and\nprocedural criminal law (where we look to find our criminal law), the limitations that the constitution places on\nboth substantive criminal law and procedural criminal law, and the important concept of the rule of law in American\njurisprudence (legal theory). After reading this section, students will be able to:\n\xe2\x80\xa2\n\nDistinguish between a criminal wrong, a civil wrong, and a moral wrong.\n\n\xe2\x80\xa2\n\nIdentify the many ways in which criminal law is classified.\n\n\xe2\x80\xa2\n\nRecognize the many sources of substantive and procedural criminal law.\n\n\xe2\x80\xa2\n\nIdentify the limitations that the federal constitution and state constitutions place on creating\nsubstantive laws and enforcing those laws.\n\n\xe2\x80\xa2\n\nRecognize the importance of rule of law in American jurisprudence and understand the importance\nof judicial review in achieving rule of law.\n\nCritical Thinking Questions\n\n1.\n\nWhat does formal law do well? What does formal law not do so well?\n\n2.\n\nShould we be able to impose sanctions for violations of moral wrongs?\n\n3.\n\nConsider the constitutional requirement of separate but equal branches of government. Why do you\nthink the drafters of the constitution intended each of the branches of government to be a check on each\nother? How does that \xe2\x80\x9cplay out\xe2\x80\x9d when deciding what laws should be made and what laws should be\nenforced? What current issues are you aware of that highlight the importance of three separate but equal\nbranches of government?\n\n85\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n4.\n\nHow does direct democracy (in the form of ballot measures and propositions) influence substantive\ncriminal law (creating crimes and punishing crimes). What, if any, are the advantages of using direct\ndemocracy to create and punish crime? What, if any, are the disadvantages?\n\n5.\n\nConsider state-wide decriminalization of marijuana possession and use across the nation and the\nfederal statute banning possession and use of marijuana. How should this federal/state conflict be\nresolved? Does your opinion change if the behavior is one that you favor or disfavor?\n\n86\n\n\x0c3.1. Functions and Limitations of Law\n\nLORE RUTZ-BURRI\n\nLaw is a formal means of social control. Society uses laws (rules designed to control citizen\xe2\x80\x99s behaviors) so\nthat these behaviors will conform to societal norms, cultures, mores, traditions, and expectations. Because\ncourts must interpret and enforce these rules, laws differ from many other forms of social control. Both\nformal and informal social control have the capacity to change behavior. Informal social control, such as\nsocial media (including Facebook, Instagram, and Twitter) has a tremendous impact on what people wear,\nhow they think, how they speak, what people value, and perhaps how they vote. Social media\xe2\x80\x99s impact on\nhuman behavior cannot be overstated, but because these informal controls are largely unenforceable through\nthe courts as they are not considered the law.\nLaws and legal rules promote social control by resolving basic value conflicts, settling individual disputes,\nand making rules that even our rulers must follow. Kerper (1979) recognized the advantages of law in\nfostering social control and identified four major limitations of the law. First, she noted, the law often cannot\n1\ngain community support without support of other social institutions. (Consider, for example, the United\nStates Supreme Court (Court) case of Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954),\nwhich declared racially segregated schools unconstitutional. The decision was largely unpopular in the\nsouthern states, and many had decided to not follow the Court\xe2\x80\x99s holding. Ultimately, the Court had to\ncall in the National Guard to enforce its decision requiring schools to be integrated.) Second, even with\ncommunity support, the law cannot compel certain types of conduct contrary to human nature. Third, the\nlaw\xe2\x80\x99s resolution of disputes is dependent upon a complicated and expensive fact-finding process. Finally, the\n2\nlaw changes slowly.\nLippman (2015) also noted that the law does not always achieve its purposes of social control, dispute\nresolution, and social change, but rather can harm society. He refers to this as the \xe2\x80\x9cdysfunctions of law.\xe2\x80\x9d\n\xe2\x80\x9cLaw does not always protect individuals and result in beneficial social progress. Law can be used to repress\nindividuals and limit their rights. The respect that is accorded to the legal system can mask the dysfunctional\nrole of the law. Dysfunctional means that the law is promoting inequality or serving the interests of a small\nnumber of individuals rather than promoting the welfare of society or is impeding the enjoyment of human\n3\nrights.\xe2\x80\x9d\n1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.\n2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 11). West Publishing Company.\n3. Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications.\n\n87\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nSimilarly, Lawrence Friedman has identified several dysfunctions of law: legal actions may be used to\nharass individuals or to gain revenge rather than redress a legal wrong; the law may reflect biases and\nprejudices or reflect the interest of powerful economic interests; the law may be used by totalitarian regimes\nas an instrument of repression; the law can be too rigid because it is based on a clear set of rules that don\xe2\x80\x99t\nalways fit neatly (for example, Friedman notes that the rules of self-defense do not apply in situations in\nwhich battered women use force to repel consistent abuse because of the law\xe2\x80\x99s requirement that the threat\nbe immediate); the law may be slow to change because of its reliance on precedent (he also notes that judges\nare also concerned about maintaining respect for the law and hesitate to introduce change that society is not\nready to accept); that the law denies equal access to justice because of inability to pay for legal services; that\ncourts are reluctant to second-guess the decisions of political decision-makers, particularly in times of war\nand crisis; that reliance on law and courts can discourage democratic political activism because Individuals\nand groups, when they look to courts to decide issues, divert energy from lobbying the legislature and from\nbuilding political coalitions for elections; and finally, that law may impede social change because it may limit\n4\nthe ability of individuals to use the law to vindicate their rights and liberties.\n\n4. Lippman, M. R. (2015). Law and society (pp. 25). Thousand Oaks, CA : SAGE Publications.\n\n88\n\n\x0c3.2. Civil, Criminal, and Moral Wrongs\n\nLORE RUTZ-BURRI\n\nThis chapter is about people committing crimes\xe2\x80\x94engaging in behavior that violates the criminal law\xe2\x80\x94and\nhow society responds to these criminal behaviors. Crimes are only one type of wrong. People can also violate\ncivil law or commit a moral wrong and not be guilty of any crime whatsoever. So, what is the difference\nbetween a civil wrong, a criminal wrong, and a moral wrong?\nCivil Wrongs\nA civil wrong is a private wrong, and the injured party\xe2\x80\x99s remedy is to sue the party who caused the\nwrong/injury for general damages (money). The plaintiff (the injured party) sues or brings a civil suit\n(files an action in court) against the defendant (the party that caused the harm). Plaintiffs can be individuals,\nbusinesses, classes of individuals (in a class action suit), or government entities. Defendants in civil actions\ncan also be individuals, businesses, multinational corporations, governments, or state agencies.\nCivil law covers many types of civil actions or suits including: torts (personal injury claims), contracts,\nproperty or real estate disputes, family law (including divorces, adoptions, and child custody matters),\nintellectual property claims (including copyright, trademark, and patent claims), and trusts and estate laws\n(which covers wills and probate).\nThe primary purpose of a civil suit is to financially compensate the injured party. The plaintiff brings\nthe suit in his or her own name, for example, Sam Smith versus Joe Jones. The amount of damages is\ntheoretically related to the amount of harm done by the defendant to the plaintiff. Sometimes, when the jury\nfinds there is particularly egregious harm, it will decide to punish the defendant by awarding a monetary\naward called punitive damages in addition to general damages. Plaintiffs may also bring civil suits called\ninjunctive relief to stop or \xe2\x80\x9cenjoin\xe2\x80\x9d the defendant from continuing to act in a certain manner. Codes of the\ncivil procedure set forth the rules to follow when suing the party who allegedly caused some type of private\nharm. These codes govern all the various types of civil actions.\nIn a civil trial, the plaintiff has the burden of producing evidence that the defendant caused the injury and\nthe harm. To meet this burden, the plaintiff will call witnesses to testify and introduce physical evidence. In\na civil case, the plaintiff must convince or persuade the jury that it is more likely than not that the defendant\ncaused the harm. This level of certainty or persuasion is known as preponderance of the evidence. Another\nfeature in a civil suit is that the defendant can cross-sue the plaintiff, claiming that the plaintiff is actually\nresponsible for the harm.\n89\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nCriminal Wrongs\nCriminal wrongs differ from civil or moral wrongs. Criminal wrongs are behaviors that harm society as\na whole rather than one individual or entity specifically. When people violate the criminal law there are\ngenerally sanctions that include incarceration and fines. A crime is an act, or a failure to act, that violates\nsociety\xe2\x80\x99s rules. The government, on behalf of society, is the plaintiff. A criminal wrong can be committed\nin many ways by individuals, groups, or businesses against individuals, businesses, governments or with no\nparticular victim.\n\nCriminal Defendant\n\nVictim\n\nExamples\n\nIndividual\n\nSelf or with no particular victim\n\nGambling or drug use\n\nIndividual\n\nOther individual(s)\n\nAssault, battery, theft\n\nIndividual\n\nBusiness or government\n\nTrespass, welfare fraud\n\nGroup of individuals\n\nIndividual(s)\n\nConspiracy to commit murder\n\nGroup of individuals\n\nGovernment or no particular victim\n\nRiot, rout, disorderly conduct\n\nBusiness entity\n\nIndividuals\n\nFraud\n\nBusiness entity\n\nGovernment or no particular victim\n\nFraud, pollution, tax evasion\n\nCriminal laws reflect a society\xe2\x80\x99s moral and ethical beliefs. They govern how society, through its\ngovernment agents, holds criminal wrongdoers accountable for their actions. Sanctions or remedies such as\nincarceration, fines, restitution, community service, and restorative justice program are used to express\nsocietal condemnation of the criminal\xe2\x80\x99s behavior. Government attorneys prosecute, or file charges against,\ncriminal defendants on behalf of society, not necessarily to remedy the harm suffered by any particular\nvictim. The title of a criminal prosecution reflects this: \xe2\x80\x9cState of California v. Jones,\xe2\x80\x9d, \xe2\x80\x9cThe Commonwealth\nv. Jones,\xe2\x80\x9d, or \xe2\x80\x9cPeople v. Jones.\xe2\x80\x9d\nIn a criminal jury trial (a trial in which a group of people selected from the community decides whether\nthe defendant is guilty of the crime charged) or a bench trial (a trial in which the judge decides whether\nthe defendant is guilty or not) the prosecutor carries the burden of producing evidence that will convince\nthe jury or judge beyond any reasonable doubt that the criminal defendant committed a violation of law\nthat harmed society. To meet this burden, the prosecutor will call upon witnesses to testify and may also\n90\n\n\x0cIntroduction to the American Criminal Justice System\n\npresent physical evidence suggesting the defendant committed the crime. Just as a private individual may\ndecide that it is not worth the time or effort to file a legal action, the state may decide not to use its\nresources to file criminal charges against a wrongdoer. A victim (a named injured party) cannot force the\nstate to prosecute the wrongdoing. Rather, if there is an appropriate civil cause of action\xe2\x80\x93for\nexample, wrongful death\xe2\x80\x93the injured party will need to file a civil suit as a plaintiff and seek monetary\ndamages against the defendant.\nMoral Wrongs\nMoral wrongs differ from criminal wrongs. \xe2\x80\x9cMoral law attempts to perfect personal character, whereas\n1\ncriminal law, in general, is aimed at misbehavior that falls substantially below the norms of the community.\xe2\x80\x9d\nThere are no codes or statutes governing violations of moral laws in the United States.\n\xe2\x80\x9cThe Witness\xe2\x80\x9d Exercise\n\nWatch the 2015 Netflix documentary \xe2\x80\x9cThe Witness\xe2\x80\x9d in which Bill Genovese re-examined what was said, heard\nand reported about his sister, Kitty Genovese. This frequently cited examples of a moral wrong involve the story\nof thirty-seven neighbors who purportedly did nothing when \xe2\x80\x9cKitty\xe2\x80\x9d Genovese was stabbed to death outside\ntheir apartment building in New York City in 1964. There are many discrepancies about this story and what the\nneighbors knew, or didn\xe2\x80\x99t know, and what they did, or didn\xe2\x80\x99t do, but the general belief is that they had at least a\nmoral obligation to do something (for example, call the police), and by failing to do anything, they committed a\nmoral wrong. Ultimately, none of the neighbors had any legal obligation to report the crime or intervene to help\nMs. Genovese.\n\nOverlap of Civil, Criminal, and Moral Wrongs\nSometimes criminal law and civil law overlap and an individual\xe2\x80\x99s action constitute both a violation of\ncriminal law and civil law. For example, if Joe punches Sam in the face, Sam may sue Joe civilly for civil\nassault and battery, and the state may also prosecute Joe for punching Sam, a criminal assault and battery.\nConsider the case involving O.J. Simpson. Simpson was first prosecuted in 1994 for killing his ex-wife and\nher friend (the criminal charges of murder). After the criminal trial in which the jury acquitted Simpson,\nthe Brown and Goldman families filed a wrongful death action against Simpson for killing Nicole Brown\nand Ronald Goldman. The civil jury found Simpson responsible and awarded compensatory and punitive\ndamages in the amount of $33.5 million dollars. Wrongful death is a type of tort. Torts involve injuries\ninflicted upon a person and are the types of civil claims or civil suits that most resemble criminal wrongs.\nSometimes criminal behavior has no civil law counterpart. For example, the crime of possessing burglary\ntools does not have a civil law equivalent. Conversely, many civil actions do not violate criminal law. For\nexample, civil suits for divorce, wills, or contracts do not have a corresponding criminal wrong. Even though\nthere is certainly an overlap between criminal law and civil law, it is not a perfect overlap. Because there\nis no legal action that can be filed for committing a moral wrong, there really is not any overlap between\ncriminal wrongs, civil wrongs, and moral wrongs.\n\n1. Gardner, T.J. (1985) Criminal Law: Principles and Cases (3rd ed., pp.7). West Publishing Company.\n\n91\n\n\x0c3.3. Sources of Criminal Law: Federal and State Constitutions\n\nLORE RUTZ-BURRI\n\nWhere do you look to see if something you want to do violates some criminal law? The answer is \xe2\x80\x9cin\nmany places.\xe2\x80\x9d Criminal law originates from many sources. Some criminal law is the result of constitutional\nconventions, so you would need to review federal and state constitutions. Other criminal laws result from the\nlegislative or initiative process, so you will need to review state statutes or congressional acts. Other criminal\nlaw results from the work of administrative agencies, so you need to review state and federal administrative\nrules. Other criminal law, called case law, originates from appellate court opinions written by judges. These\ncourt opinions, called \xe2\x80\x9cdecisions\xe2\x80\x9d, are published in both official and unofficial reporters, but thanks to the\nInternet, they are now easy to find if you know the parties\xe2\x80\x99 names. Much of our criminal law descended\nfrom the English common law. This law developed over time, through custom and tradition, and it is a bit\nmore difficult to locate, but it is mentioned in treatises and legal \xe2\x80\x9chornbooks\xe2\x80\x9d (like legal encyclopedias) and\nis often referred to in case decisions.\nThe Federal Constitution\xe2\x80\x94The Constitution of the United States\nAlthough the United States Constitution recognizes only three crimes (counterfeiting, piracy, and\ntreason), it nevertheless plays a significant role in the American criminal justice system. Most importantly,\nthe Constitution establishes limits on certain types of legislation or substantive law, and it provides significant\nprocedural constraints on the government when it seeks to prosecute individuals for crimes. The\nConstitution also establishes federalism (the relationship between the federal government and state\ngovernments), requires the separation of powers between the three branches of government (the judicial\nbranch, the legislative branch, and the executive branch), and limits Congress\xe2\x80\x99s authority to pass laws not\ndirectly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred\nbecause they intertwined with the enumerated powers).\nConstitutional Limitations on Criminal Law and Procedure\nThe drafters of the federal Constitution were so concerned about two historic cases of abuse by English\nParliament (ex post facto laws and bills of attainder) that they prohibited Congress from passing these types\nof laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post facto\nlaws are laws that are retroactively applied, or punishments retroactively increased, or changes in the amount\nand types of evidence that is required of the government in order to successfully prosecute an individual.\nBills of attainders are laws that are directed at named individual or group of individuals and has the effect\nof declaring them guilty without a trial.\n92\n\n\x0cIntroduction to the American Criminal Justice System\n\nMost of the other limitations are found within the Bill of Rights, the first ten amendments to the\nU.S. Constitution. The states adopted the Bill of Rights in 1791. The statesmen had opposing viewpoints\nconcerning how strong the national government should be and how strong state governments should be.\nEven as the original federal constitution was being circulated and ratified, the framers were thinking about\nthe provisions that became known as the Bill of Rights.\nMusic & Law Exercise\n\nFor a novel way to explore this dispute, listen to the soundtrack from Alexander Hamilton, the Broadway Musical\ncomposed by Lin-Manuel Miranda.\n\nThe First Amendment limits Congress\xe2\x80\x99s ability to pass laws that limit free speech, freedom of religion,\nfreedom of assembly and association. The Second Amendment limits Congress\xe2\x80\x99s ability to outlaw the\npersonal possession of firearms. The Fourth, Fifth, Sixth and Eighth Amendments have provisions that\ngovern criminal procedure during the investigative, pretrial, and trial phases. The Eighth Amendment sets\nlimits on the government\xe2\x80\x99s ability to impose certain types of punishments, impose excessive fines, and set\nexcessive bail. The Due Process Clauses of the Fifth and Fourteenth Amendment require that criminal justice\nprocedures be fundamentally fair. The Fourteenth Amendment\xe2\x80\x99s Equal Protection Clause requires that, at\na minimum, there be some rational reason for treating people differently. For example, states can pass laws\nprohibiting minors from purchasing and consuming alcohol because states have a reasonable interest in\nprotecting the health and welfare of its citizens. These amendments discussed more fully below, added several\nconstraints on Congress. The impact of the Bill of Rights was to place substantial checks on the federal\ngovernment\xe2\x80\x99s ability to define crimes.\n\nThe Incorporation Debate\nWhen drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal\ngovernment. Individual states each had their own guarantees and protections of individuals\xe2\x80\x99 rights found\nin the state constitutions. (See below.) Since 1868, the Fourteenth Amendment has become an important\ntool for making states also follow the provisions of the Bill of the Rights. It was drafted to enforce the Civil\nRights Act passed in 1866 in the post-Civil War states. Section 1 of the Fourteenth Amendment enjoins\nthe states from depriving any person of life, liberty, or property, without due process of law. It prohibits\nstates from adopting any laws that abridge the privileges and immunities of the citizens of the United States\nand requires that states not deny any person equal protection under the law. U.S. Const. amend. XIV, \xc2\xa7 2.\nThe practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over\ndecades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in\none-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-bycase, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process\nClause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of\n\n93\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n1\n\nRights that are \xe2\x80\x9cimplicit in the concept of ordered liberty.\xe2\x80\x9d For example, in 1925 the Court recognized\nthat the First Amendment protections of free speech and free press apply to states as well as to the federal\ngovernment.\n\n2\n\nIn the 1960s, the Court selectively incorporated many of the procedural guarantees of the\n\nBill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill\nof Rights to the states. Most recently, on February 20th, 2019 the Court incorporated the right to be free\nfrom excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana, ___ U.S.\n___ (2019).\n\nFirst Amendment Limitations\nUnder the First Amendment, Congress cannot create laws that limit individuals\xe2\x80\x99 speech. The Court has\nrecognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example,\npicketing) as protected under the First Amendment\xe2\x80\x99s guarantee that Congress shall not abridge freedom\nof speech. The Court struck down a law banning flag burning. Texas v. Johnson, 491 U.S. 397 (1989).\nThe Court upheld a local ordinance prohibiting public indecency when applied to business establishment\nwishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has\nrecognized political speech and commercial speech as protected by the First Amendment as well. See,\ne.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The Court has, however, deemed\nsome speech not worthy of protection, and consequently may be limited. According to the Court, nonprotected speech includes libel and slander, fighting words, words that present a clear and present danger\nwhen spoken, obscenity and profanity. See, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) \xe2\x80\x9cThere are\ncertain well-defined and narrowly limited classes of speech, the prevention, and punishment of which have\nnever been thought to raise any constitutional problem. These include the lewd and obscene, the profane,\nthe libelous, and the insulting or fighting words\xe2\x80\x94those which by their very utterance inflict injury or tend\nto incite an immediate breach of peace.\xe2\x80\x9d Similarly, the Court has said anti-hate crime statutes permissibly\nlimit individuals\xe2\x80\x99 speech to the extent they are directed at conduct rather than the content of the speech.\nSee, e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993).\nThe First Amendment limits Congress\xe2\x80\x99s authority to legislate in the realm of religion as well. Congress\ncannot make laws that either create a religion (these violate the Establishment Clause) or target and\ninterfere with a person\xe2\x80\x99s exercise of their own religion (these violate the Free Exercise Clause). Finally, the\nFirst Amendment guarantees that people have the right to freely associate and assemble with others. Thus,\nCongress cannot make laws that completely limit people\xe2\x80\x99s ability to gather together peaceably. However,\n\n1. Palko v. Connecticut, 302 U.S. 319 (1937).\n2. Gitlow v. New York, 268 U.S. 652 (1925)\n\n94\n\n\x0cIntroduction to the American Criminal Justice System\n\nthe Court has indicated that the government can place reasonable time and manner limitations based on\nthe location in which the gathering is to take place. See, e.g., Cox v. Louisiana, 379 U.S. 536 (1965).\n\nSecond Amendment Limitations\nLegislatures can place restrictions on weapons and ammunition purchase and possession, but they cannot\ncompletely restrict people\xe2\x80\x99s ability to possess guns for the purpose of self-defense. See, District of Columbia\nv. Heller, 554 U.S. 570 (2008) (an individual\xe2\x80\x99s right to possess a weapon is unconnected with service in the\nmilitary). According to the Court, the Second Amendments\xe2\x80\x99 protections apply equally to the states. See,\nMcDonald v. Chicago, 561 U.S. 742 (2010).\n\nFourth Amendment Limitations\nThe Fourth Amendment limits the government\xe2\x80\x99s ability to engage in searches and seizures. Under\nthe least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be\nreasonable. Under the most restrictive interpretation, the Amendment requires that government officers\nneed a warrant any time they do a search or a seizure. The Court has interpreted the Fourth Amendment in\nmany cases and, the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court\xe2\x80\x99s\nconstant refinement and revision. One thing is clear, the Court has never embraced the most restrictive\ninterpretation of the Fourth requiring a warrant for every search and seizure conducted.\n\nFifth Amendment Limitations\nThe Fifth Amendment protects against self-incrimination (having to disclose information that could\nultimately harm you) in that it states that no person \xe2\x80\x9cshall be compelled in a criminal case to be a witness\nagainst himself.\xe2\x80\x9d Defendants have the right to not testify at trial and the right to remain silent during a\ncustodial interrogation. See, Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also provides\nfor a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law,\nand prohibits taking private property for public use (a civil action). The Court has incorporated the double\njeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a\n\n95\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nperson to double jeopardy. However, it has not held that states must provide a grand jury review. The Fifth\nAmendment\xe2\x80\x99s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated\nto the states, but most states do use the grand jury at least for some types of cases. The Fifth Amendment\nalso entitled citizens prosecuted by the federal government to the due process of law. This is discussed more\nfully below as a Fourteenth Amendment right.\n\nSixth Amendment Limitations\nThe Sixth Amendment guarantees a criminal defendant: the right to a speedy trial, the right to a public\ntrial, the right to a jury trial, the right to have his or her trial in the district where the crime took place, the\nright to be told what charges have been filed, the right to confront witnesses at trial, the right to compel\nwitnesses to testify at trial, and the right to assistance of counsel. This Amendment governs the federal\ncourt process, but because of the Fourteenth Amendment\xe2\x80\x99s Due Process Clause, these rights also apply to\ndefendants in state criminal cases.\n\nEighth Amendment Limitations\nLegislatures cannot make laws that make the punishment for a crime \xe2\x80\x9ccruel or unusual.\xe2\x80\x9d This means that\npunishments cannot be either barbaric (causing needless pain) or disproportionate (i.e., too severe to fit\nthe crime). In addition to the prohibition against cruel and unusual punishment, the Eighth Amendment\nalso prohibits the imposition of excessive bail and excessive fines. The Court has dealt with excessive fines\nin terms of whether the fine is disproportionate to the crime. See, e.g., Timbs v. Indiana (above) (forfeiting\ndefendant\xe2\x80\x99s $42,000 land rover was excessive compared to the maximum fine he could get for his crime\n($10,000.) The prohibition against excessive bail does not mean that courts must set bail in every case, but\nrather, when courts do set bail, it must not be excessive. Bail is excessive when it is an amount more than\nnecessary to assure the defendant\xe2\x80\x99s reappearance. Stack v. Boyle, 342 U.S. 1 (1951). *\n\nFourteenth Amendment limitations\nThe Fourteenth Amendment mandates that states do not deny their citizen\xe2\x80\x99s due process of law. Due\n\n96\n\n\x0cIntroduction to the American Criminal Justice System\n\nprocess can be summarized as making sure that the government treats people fairly. Part of fairness is giving\npeople fair warning as to what behaviors are permitted and what behaviors are not permitted\xe2\x80\x94putting\npeople on notice of what the law is. Thus, legislators must be very careful when making new laws.\nThey cannot make laws that are so poorly drafted such that a person of ordinary intelligence would not\nunderstand the law or that would allow police too much discretion in how they will interpret and apply\nthe law because such a law would be considered void for vagueness.\nThe Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot\nmake laws that treat people differently unless the laws are rationally related to a legitimate government\ninterest. When legislatures attempt to pass laws that treat people differently based on sex, then the\ncourt reviews the law with heightened scrutiny \xe2\x80\x94 the law must be designed to achieve an important\ngovernment interest and the differential treatment must be based on an actual physiological difference\nbetween the sexes and not based on archaic stereotypes. When legislatures attempt to pass laws that treat\npeople differently based upon their race or ethnicity, then they have to have even a more compelling\nreason to do so, and even then, the courts, employing \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d are likely to declare such laws\nunconstitutional.\n\nLimitations Found in the \xe2\x80\x9cPenumbra\xe2\x80\x9d of the Constitution\nSometimes the Constitution doesn\xe2\x80\x99t explicitly state protection or right that the courts have nevertheless\nfound to be inherent or found within the Constitution. Justice Douglas, writing the majority opinion in\nGriswold v. Connecticut, 381 U.S. 479 (1965), stated\n\xe2\x80\x9c[The] . . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those\nguarantees that help give them life and substance. \xe2\x80\xa6 Various guarantees create zones of privacy. The\nright of association contained in the penumbra of the First Amendment is one, as we have seen. The Third\nAmendment in its prohibition against the quartering of soldiers \xe2\x80\x98in any house\xe2\x80\x99 in time of peace without\nthe consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the\n\xe2\x80\x98right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches\nand seizures.\xe2\x80\x99 The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone\nof privacy which government may not force him to surrender to his detriment. The Ninth Amendment\nprovides: \xe2\x80\x98The enumeration in the Constitution, of certain rights, shall not be construed to deny or\ndisparage others retained by the people.\xe2\x80\x99\nThe Fourth and Fifth Amendments were described \xe2\x80\xa6 as protection against all governmental invasions\n\xe2\x80\x98of the sanctity of a man\xe2\x80\x99s home and the privacies of life.\xe2\x80\x99 We recently referred in Mapp v. Ohio, 367 U. S.\n643, 656, to the Fourth Amendment as creating a \xe2\x80\x98right to privacy, no less important than any other right\ncarefully and particularly reserved to the people.\xe2\x80\x99 (Footnote omitted).\xe2\x80\x9d 381 U.S. at 484-485.\n\n97\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nThus, legislatures cannot make laws that allow the government to invade people\xe2\x80\x99s privacy, even\nthough no specific amendment can be pointed to. The constitutional right to privacy must often be\nbalanced against the state\xe2\x80\x99s compelling interests such as promoting public safety. The courts have found\nthe right to privacy in the context of reproductive freedom (See, e.g., Roe v. Wade, 410 U.S. 113\n(1972) (right to abortion), Eisenstadt v. Baird, 405 U.S. 438 (1972) (the right of married persons to\npossess contraceptives), Griswold v. Connecticut, 381 U.S. 479 (1965) (declaring invalid the ban on\ncontraceptives), Stanley v. Georgia, 394 U.S. 557 (1969) (the right to view and possess adult pornography),\nand the right of adults to engage in consensual sexual contact), and Lawrence v. Texas, 539 U.S. 558 (2003)\n(the right of adults to engage in consensual sexual contact).\n\nState Constitutions\nStates\xe2\x80\x99 constitutions, similar to the federal constitution, set forth the general organization of state\ngovernment and basic standards governing the use of governmental authority. Although the federal\nconstitution is preeminent because of the Supremacy Clause, state constitutions are still significant. State\nconstitutional rules are supreme as compared to any other rules coming from all other state legal sources\n(statutes, ordinances, administrative rules) and prevail over such laws in cases of conflict. The federal\nconstitution sets the floor of individual rights, but states are free to provide more individual freedoms and\nprotections that are granted by the federal constitution. State constitutions are defined and interpreted by\nstate courts, and even identical provisions in both the state and federal constitution may be interpreted\ndifferently. For example, the state constitution\xe2\x80\x99s guarantee to be free from unreasonable searches and\nseizures may mean that, under state law, roadblocks established to identify impaired, intoxicated drivers are\nimpermissible, but under the federal constitution, these roadblocks are permitted and are not deemed to be\nunreasonable seizures.\nComparing Cases Exercise\n\nCompare the U.S. Supreme Court holding in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) to\nthe Michigan Supreme Court holding interpreting the same case under Michigan Constitution, 506 N.W.2d 209\n(Mich. 1993).\n\nRule of Law, Constitutions and Judicial Review\nOne of the key features of the American legal system has been its commitment to the rule of law. Rule\nof law has been defined as a \xe2\x80\x9cbelief that an orderly society must be governed by established principles and\n\n98\n\n\x0cIntroduction to the American Criminal Justice System\n\n3\n\nknown standards that are uniformly and fairly applied.\xe2\x80\x9d Reichel identified a three-step process by which\n4\n\ncountries can achieve rule of law. The first step is that a country must identify core, fundamental values.\nThe second step is for the values to be reduced to writing and written somewhere that people can point to\nthem. The final step is to establish a process or mechanism whereby laws or governmental actions are tested\nto see if they are consistent with the fundamental values. When laws or actions embrace the fundamental\nvalues, they are considered valid, and when the laws or actions conflict with the fundamental values, they\nare invalid.\nApplying this three-step process to America\xe2\x80\x99s approach to law one can see that Americans have\nrecognized fundamental values, such as the right to freedom of speech, the right to privacy, and the\nright to assemble. Second, we have reduced these fundamental values to writing and, for the most part,\nhave compiled them in our constitutions (both federal and state). Third, we have a mechanism, that of\njudicial review, by which we judge whether our laws and our government actions comply with or violate\nour fundamental values found within our constitutions. Judicial review is the authority of the courts to\ndetermine whether a law (a legislative action) or action (an executive or judicial action) conflicts with the\nConstitution. Judicial review can be traced to the case of Marbury v. Madison, 5 U.S. 137 (1803), in which\nChief Justice John Marshall wrote, \xe2\x80\x9cIt is emphatically the province and duty of the judicial department to\nsay what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret\nthat rule. If two laws conflict with each other, the courts must decide on the operation of each.\xe2\x80\x9d\n\n3. Feldmeier, J. P., & Schmalleger, F. (2012). Criminal Law and Procedure for Legal Professionals. Prenice Hall.\n4. Reichel, P. (2018) Comparative Criminal Justice Systems: A Topical Approach. New York, NY: Pearson.\n\n99\n\n\x0c3.4. Sources of Criminal Law: Statutes, Ordinances, and Other\nLegislative Enactments\n\nLORE RUTZ-BURRI\n\nStatutes, Ordinances, and Other Legislative Enactments\nMost substantive criminal law is legislative law. State legislatures and Congress enact laws which take the\nform of statutes or congressional acts. Statutes are written statements, enacted into law by an affirmative vote\nof both chambers of the legislature and accepted (or not vetoed) by the governor of the state or the president\nof the United States. State legislatures may also create legislative law by participating in interstate compacts,\nor multi-state legal agreements. An example of this includes the Uniform Extradition Act, or the Uniform\nFresh Pursuit Act. Congress makes federal law by passing acts and approving treaties between the United\nStates and other nation states. Local legislators, city and town councilors, and county commissioners also\nmake laws through the enactment of local ordinances.\n\nControversial Issue: Ballot Measures, Initiatives, and Referendums\xe2\x80\x93Direct Democracy and Law\nMaking\nIn several states, citizens have the power to enact laws through direct democracy by putting \xe2\x80\x9cballot\nmeasures\xe2\x80\x9d or \xe2\x80\x9cpropositions\xe2\x80\x9d up for a vote. This type of lawmaking by the people started primarily in\nthe Western states around the turn of the 20th century. Initiatives, referendums, and referrals have some\nslight differences, but generally, these ballot measures ultimately find their way into either statutes or\nthe constitution, and so they are included in this section on legislative law. For example, Oregon Ballot\nMeasure 11, establishing minimum mandatory sentences for 17 person felonies, was voted on in November\n1994 and took effect April 1, 1995. It is now found in the Oregon Revised Statutes as ORS 137.700.\nProposition 36, approved by Californians in 2012, significantly amended the \xe2\x80\x9cthree strikes\xe2\x80\x9d sentencing\nlaws approved in 1994. Initiatives, referendums, and referrals can be effective in quickly changing the\ncriminal law, like the mandatory sentencing in the 1980s, and is a way to circumvent what can be a\n\n100\n\n\x0cIntroduction to the American Criminal Justice System\n\ncontentious legislative process. An example is the decriminalization of marijuana in Washington, Oregon,\nColorado, and Alaska.\n\nStates\xe2\x80\x99 Authority to Pass Criminal Laws\nStates are sovereign and autonomous, and unless the Constitution takes away state power, the states have\nbroad authority to regulate activity within the state. Most criminal laws at the state level are derived from\nthe states\xe2\x80\x99 general police powers, or authority, to make and enforce criminal law within their geographic\nboundaries. Police power is the power to control any harmful act that may affect the general well being\nof citizens within the geographical jurisdiction of the state. A state code, or state statutes, may regulate any\nharmful activity done in the state or whose harm occurs within the state.\nCongress\xe2\x80\x99s Authority to Pass Laws\nFederal lawmakers do not possess police power. Instead, Congress must draw its authority to enact\ncriminal statutes from particular legislative powers and responsibilities assigned to it in the Constitution.\nCongress\xe2\x80\x99s legislative authority may be either enumerated in the Constitution or implied from its provisions,\nbut if Congress cannot tie its exercise of authority to one of those powers, the legislation may be declared\ninvalid.\nEnumerated powers, for example, the power to regulate interstate commerce, are those that are specifically\nmentioned in Article I Section 8 of the Constitution. Over the years, however, courts have broadly\ninterpreted the term \xe2\x80\x9cinterstate commerce\xe2\x80\x9d to mean more than just goods and services traveling between\nand among the states. Instead, interstate commerce includes any activity\xe2\x80\x94including purely local or intrastate\nactivity\xe2\x80\x94that affects interstate commerce. The affectation doctrine maintains that congressional authority\nincludes the right to regulate all matters having a close and substantial relation to interstate commerce.\nAlthough the Court has found limits on what affects interstate commerce, Congress has used its broad power\nto regulate interstate commerce to criminalize a wide range of offenses including carjacking, kidnapping,\nwire fraud, and a variety of environmental crimes.\nThe implied powers of Congress are those that are deemed to be necessary and proper for carrying out\nall the enumerated powers. Article I Section 8 of the Constitution states, \xe2\x80\x9cCongress shall have Power . .\n. to make laws which shall be necessary and proper for carrying into Execution the foregoing Powers,\nand all other Powers vested by this Constitution.\xe2\x80\x9d The implied powers doctrine expands legislative power\nof Congress, and for that reason, the Necessary and Proper Clause has often been called the \xe2\x80\x9cexpansion\nclause.\xe2\x80\x9d Due to the implied powers found in the Necessary and Proper Clause, Congress has authority to pass\nlegislation and regulate a wide variety of activity to the extent that it is able to show that the law furthers one\nof the enumerated powers. Nevertheless, the Court will overturn acts of Congress when it believes Congress\nhas overstepped its constitutional authority. So, despite the broad expanse of implied powers, Congress\xe2\x80\x99s\nauthority is still limited and by no means is as vast as the states\xe2\x80\x99 police powers.\nConflicting State and Federal Statutes\nSometimes substantive federal law conflicts with state laws or policies, and sometimes the federal\ngovernment\xe2\x80\x99s interest in prosecuting cases in federal court conflicts with competing interests of the states.\nOne recent conflict between federal interests and state interests involves Oregon\xe2\x80\x99s physician-assisted suicide\nlaw, the \xe2\x80\x9cDeath with Dignity Act\xe2\x80\x9d. See, Gonzales v. Oregon, 646 U.S. 243 (2006)(upholding Oregon\xe2\x80\x99s law\n101\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nby deciding that the United States Attorney General could not enforce the national controlled substance\nact against Oregon physicians). Another debate surrounds the conflicting federal and state laws governing\nmarijuana use. Between 1996 and 2018, thirty states and the District of Columbia passed laws legalizing\nthe possession of small quantities of marijuana for medicinal purposes for state residents. Since 2012,\nColorado, Washington, Oregon, Alaska, California, Nevada, Massachusetts, and Maine have passed laws\nthrough the initiative process legalizing recreational use and possession of small amounts of marijuana\nby adults. In the 2018 elections, even more, states passed laws allowing for medical use, recreational\nuse.\nSee,\nhttps://www.forbes.com/sites/tomangell/2018/12/06/marijuanas-ten-biggest-victoriesof-2018/#7ca0dd5232df. These popular initiatives conflict directly with the federal Controlled Substance\nAct, 21 U.S.C. 13, \xc2\xa7 841, (CSA) which holds that any use or possession of marijuana is a federal crime. In\nJanuary 2018, the Trump administration through the U.S. Department of Justice, under Attorney General\nSessions rescinded the Obama-era restraint policies on marijuana prosecutions and indicated the desire to\nfully enforce the CSA. However, in April 2018, President Trump announced he was backing down on the\ncrackdown on recreational use of marijuana that had been announced in January 2018.\n\nMovement Towards Codification: The American Institute and the Model Penal Code\nBy the 1960s and 1970s, all states had begun codifying their criminal laws. These codifications would\nlikely not have taken place if not for the American Law Institute (ALI) and the publication of its Model\nPenal Code (MPC). Established in 1923, the ALI is an organization of judges, lawyers, and academics that\ndraft model codes and laws. Its most important work in the criminal justice realm is the Model Penal Code.\nThe ALI began working on the MPC in 1951, and it proposed several tentative drafts over the next decade.\nIn 1962 the Model Penal Code was finally published. It consists of general provisions concerning: criminal\nliability, definitions of specific crimes, defenses, and sentences. The MPC has had a significant impact on\nlegislative drafting of criminal statutes. Every state has adopted at least some provisions, or at least the\napproach, of the MPC, and some code states have adopted many or most of the provisions in the MPC.\nNo state has adopted the MPC in its entirety.\n\n102\n\n\x0c3.5. Sources of Law: Administrative Law, Common Law, Case Law\nand Court Rules\n\nLORE RUTZ-BURRI\n\nAdministrative Law\xe2\x80\x94Agency-Made Law\nState and federal legislatures cannot keep up with the task of enacting legislation on all the myriad\nsubjects that must be regulated by law. In each branch of government, various administrative agencies exist\nwith authority to create administrative law. At the federal level, for example, the Environmental Protection\nAgency enacts regulations against environmental crimes. At the state level, the Department of Motor\nVehicles enacts laws concerning drivers\xe2\x80\x99 license suspension. Administrative regulations are enforceable by\nthe courts provided that the agency has acted within the scope of its delegated authority from the legislature.\nCommon Law\nOne important source of criminal law in the United States is common law. English law developed over\ncenturies and, generally, when we refer to American common law, we are referring to the common law rules\nbrought over from England to the United States when we became a nation. However, this is not necessarily\n1\nalways clear. LaFave describes the process by which common law was derived in England.\n\xe2\x80\x9c. . . Although there were some early criminal statutes [in England], in the main the criminal law was\noriginally common law. Thus by the 1600s the judges, not the legislature, had created and defined the\nfelonies of murder, suicide, manslaughter, burglary, arson, robbery, larceny rape, sodomy and mayhem; and\nsuch misdemeanors as assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. During\nthe period from 1660 . . . to 1860 the process continued with the judges creating new crimes when the\nneed arose and punishing those who committed them: blasphemy (1676), conspiracy (1664), sedition (18th\ncentury), forgery (1727), attempt (1784), solicitation (1801). From time to time the judges, when creating\nnew misdemeanors, spoke of the court\xe2\x80\x99s power to declare criminal any conduct tending to \xe2\x80\x9coutrage decency\xe2\x80\x9d\nor \xe2\x80\x9ccorrupt public morals.\xe2\x80\x9d or to punish conduct contra bonos mores: thus they found running naked in the\nstreets, publishing an obscene book, and grave-snatching to be common law crimes.\nOf course, sometimes the courts refused to denote as criminal some forms of anti-social conduct. At times\ntheir refusal seemed irrational, causing the legislature to step in and enact a statute: thus false pretenses,\nembezzlement, incest and other matters became statutory crimes in England. \xe2\x80\xa6 Some immoral conduct,\nmostly of a sexual nature (such as private acts of adultery or fornication, and seduction without conspiracy)\n1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.\n\n103\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nwas punished by ecclesiastical courts in England. The common law courts never punished these activities as\ncriminal, and thus, they never became English common law crimes.\nAt the same time that judges were developing new crimes, they were also developing new common law\ndefenses to crime, such as self-defense, insanity, infancy, and coercion. \xe2\x80\xa6\nAbout the middle of the nineteenth century, the process of creating new crimes almost came to a standstill\n2\nin England. \xe2\x80\x9d\nAmerican courts originally relied on the decisions of the English Courts, but Kerper (1979, p. 27) notes\nthat\n\xe2\x80\x9cas the number of American decisions grew, the American courts began to rely more and more on\ntheir own decisions. At the same times, differences in social and economic conditions (and to some extent,\ndifferences in the personalities of the judges) led the courts in different states to take different views of\nthe common law. As a result, while the English tradition produced a core of similarity, there developed\nsignificant differences in common law rules in the various states. Thus, the common law standard governing\nan officer\xe2\x80\x99s authority to arrest for minor crimes might be substantially different in Ohio and New York,\nalthough the general framework of the common law governing arrests was likely to be similar in both\n3\nstates.\xe2\x80\x9d\nIn order to understand the limitations of common law, it is helpful to understand the difference between\nthe common law tradition followed by the United States, and other nations that follow the English model\nand the civil law tradition which developed in Europe. The civil law tradition uses legislative codes as the\nprimary source of law. Under the civil law tradition, new substantive law replaces, rather than supplements,\nold substantive law. Thus, judges in the civil law tradition are not bound by prior interpretations of\nlegislative codes, and all courts are free to interpret the codes according to generally accepted principles\nof legal interpretation. Stare decisis, discussed below, plays no persuasive or binding role in the civil law\ntradition. Under the common law tradition though, new substantive law generally adds to, rather than\nreplaces, old substantive law.\nKerper notes that our common law tradition is not purely one of common law, and that common law is\ndisplaced by statutes, case law, and the constitution.\n\xe2\x80\x9cThough the description of the Anglo-American system as a \xe2\x80\x9ccommon law legal system\xe2\x80\x9d notes an\nimportant distinction between it and the civil law system, that description should not lead one to ignore the\nfact that legislation also constitutes an important source of law in the Anglo-American system. That system\nis actually a mixed system of common law rules and statutory rules. The common law rules established by\nAmerican and English courts have always been subject to displacement by legislative enactments. Indeed,\nthe courts have the authority to develop common law standards only where the legislatures have not sought\nto provide legislative solutions. \xe2\x80\xa6 In our country, the common law also is subject to the legal limitations\nimposed by federal and state constitutions. The supremacy of the constitutions extends over all forms of\nlaw, including the common law. Just as legislation cannot violate a constitutional limitation, neither can a\n4\ncommon law rule.\xe2\x80\x9d\nCommon law is a source of both substantive and procedural law (discussed below), but it is important to\nnote that there are no federal common law crimes. If Congress has not enacted legislation to make certain\nconduct criminal, that conduct cannot constitute a federal crime.\n2. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 70). St. Paul, Minn: West Group.\n3. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.\n4. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 28-29). West Publishing Company.\n\n104\n\n\x0cIntroduction to the American Criminal Justice System\n\nJudge-Made Law: Case Law\nThe term case law refers to legal rules announced in opinions written by appellate judges when deciding\nappellate cases before them. Judicial decisions reflect the court\xe2\x80\x99s interpretation of constitutions, statutes,\ncommon law, or administrative regulations. When the court interprets a statute, the statute, as well as its\ninterpretation, control how the law will be enforced and applied in the future. The same is true when a court\ninterprets federal and state constitutions. When deciding cases and interpreting the law, judges are bound by\nprecedent.\n\nStare\ntare Decisis and Precedent: Been There, Done (must do) That.\nThe doctrine of stare decisis comes from a Latin phrase that states, \xe2\x80\x9cto stand by the decisions and not\ndisturb settled points\xe2\x80\x9d. It tells the court that if the decisions in the past have held that a particular rule\ngoverns a certain fact situation, that rule should govern all later cases presenting the same fact situation.\nUnder the doctrine of stare decisis, past appellate court decisions form precedent, that judge must follow\nin similar subsequent cases. Stare decisis permits society to presume that bedrock principles are founded\nin the law rather than in the proclivities of individuals, and thereby contribute to the integrity of our\n5\n\nconstitutional system of government, both in appearance and fact.\xe2\x80\x9d Trial courts and appellate courts must\nfollow the controlling case law that has already been announced in appellate court decisions from their\nown jurisdiction. Trial courts must follow precedent when they decide questions of law. [Questions of\nlaw include what a statute means, what the law states, how the constitution should be interpreted, whether\na particular law even applies under the facts in the case before them. On the other hand, questions of\nfact are decided by jurors (or judges in bench trials) and include, for example, how fast was the defendant\ndriving, what color hat the defendant was wearing, or whether the gun went off accidentally.] One way\ncourts get around precedent is to distinguish the facts in the case before them as much different than the\nfacts in the earlier case. For example, if the court may decide that the fact that the defendant was running\naway from the scene, in this case, is so different from the earlier case in which the defendant was merely\nwalking away from the scene that there is no precedent it must follow.\nThe advantages of stare decisis include efficiency, equality, predictability, the wisdom of past experience,\n6\n\nand the image of limited authority. Efficiency occurs because each trial judge and the appellate judge does\nnot have to work out a solution to every legal question. Equality results when one rule of law is applied\nto all persons in the same setting. \xe2\x80\x9cIdentical cases brought before different judges should, to the extent\nhumanly possible, produce identical results. \xe2\x80\xa6 Stare decisis assists in providing uniform standards of law for\nsimilar cases decided in the same state. It provides a common grounding used by all judges throughout the\n7\n\njurisdiction.\xe2\x80\x9d Stare decisis provides stability in allowing individuals to count on the rules of law that have\nbeen applied in the past. Kerper\xe2\x80\x99s example is a police officer\xe2\x80\x99s reliance on past decisions to help determine\nthe legality of a pending arrest. \xe2\x80\x9cWithout regard to past decisions, the conduct of a wide variety of activities\n\n5. Vasquez v. Hillery, 474 U.S. 254 (1986)\n6. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 47-49). West Publishing Company.\n7. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.\n\n105\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nwould take on an added hazard of unpredictable legality. Without stability, the law could well loose (sic)\n8\n\nits effectiveness in maintaining social control.\xe2\x80\x9d Stare decisis also ensures proper recognition of the wisdom\nand experience of the past. Justice Cardozo observed that \xe2\x80\x9cno single judge is likely to have \xe2\x80\x98a vision at\nonce so keen and so broad\xe2\x80\x99 as to ensure that his new ideas of wise policy are indeed the most beneficial for\n9\n\nsociety.\xe2\x80\x9d Finally, stare decisis enhances the image of the courts as the impartial interpreter of the law.\n\xe2\x80\x9cStare decisis decreases the leeway granted to the individual judge to settle controversies in accordance\nwith his own personal desires. \xe2\x80\xa6 Indeed, the doctrine of stare decisis indirectly serves to restrict the lawmaking role of the judge even in those cases presenting \xe2\x80\x9copen issues\xe2\x80\x9d not resolved by past precedent. \xe2\x80\xa6 A\nsudden change in the composition of the judiciary, even at the highest level, should not present an equally\nsudden change in the substance of the law.\xe2\x80\x9d\n\n10\n\nIn the federal system, all federal courts must follow the decisions of the Supreme Court as it is the final\ninterpreter of the federal constitution and federal statutes. If, however, the Supreme Court has not ruled on\nan issue, then the federal trial courts (U.S. District Courts and U.S. Magistrate Courts) and federal appellate\ncourts (Circuit Courts of Appeals) must follow decisions from their own circuit. Each circuit is treated, in\neffect, as its own jurisdiction, and the court of appeals for the various circuits are free to disagree with each\nother.\nBecause stare decisis is not an absolute rule, courts may reject precedent by overruling earlier decisions.\nOne factor that courts will consider before overruling earlier case law is the strength of the precedent.\nAnother factor is the field of law involved. Courts seem to be more reluctant to override precedents\ngoverning property or trade where commercial enterprises are more likely to have relied quite heavily\non the precedent. Courts also consider the initial source of precedent, such as statutory interpretation.\nFor example, if the courts decided in 1950 that the statute meant that individuals could graze their cattle\non federal lands without being in violation of any trespass laws, and then the federal government did\nnot subsequently change the law, the legislature\xe2\x80\x99s inaction indicates the interpretation was probably right.\nThe most compelling basis upon which a court will overturn precedent, however, is if it perceives the\npresence or absence of changed circumstances. For example, scientific or technological developments may\nwarrant the application of new rules. Consider the common law year and a day rule which required the\ngovernment, in a murder prosecution, prove that the victim died within one year and a day of the attack.\nThe rule is premised on the idea that there needed to be some showing that the defendant\xe2\x80\x99s act caused the\ndeath. Medical science now makes it possible to trace the source of fatal blow, so murder statutes no longer\ninclude the year and a day rule. One final ground for overruling a prior decision is general changes in\nthe spirit of the times. For example, in Trop v. Dulles, 356 U.S. 86 (1958), the Court looked to \xe2\x80\x9cevolving\nstandards of decency\xe2\x80\x9d in deciding whether the defendant\xe2\x80\x99s punishment was cruel and unusual and thus\nviolated the Eighth Amendment.\n\n8. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.\n9. Cardozo, B. N. (1924). The Growth of the Law. New Haven, CT: Yale University Press.\n10. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 51-52). West Publishing Company.\n\n106\n\n\x0cIntroduction to the American Criminal Justice System\n\nMatters of First Impression or \xe2\x80\x9cWow, this is new territory, what should we do now?\xe2\x80\x9d\nIf a court is dealing with a legal issue for the first time, there is no precedent to follow, and it cannot then\nbe bound by stare decisis. The court may look to other states to see if there is any persuasive case authority\non the matter, but state courts do not have to follow established law from other states. When there is no\nprecedent or controlling cases, the case or issue is referred to as a matter of the first impression. In cases\nof the first impression, courts get to decide what the relevant rule should be. In deciding cases of the first\nimpression, judges will look to relevant statutes, legislative history, and cases involving similar situations\n\xe2\x80\x9cThe situation may be a new one. \xe2\x80\xa6 Yet the judges do not throw up their hands and say the case may\nnot be decided; they decide it. Maybe they can use some settled law in an analogous situation. \xe2\x80\xa6 Even\nif there is no available analogy, or if there are competing analogies, the judge will make (some prefer to\nsay discover) the law to apply to the new situation. The new law will be decided according to the judges\xe2\x80\x99\nideas (ideas they acquire as members of society) of what is moral, right, just; of what will further sound\npublic policy, in light of customs and traditions of the people of which the judges are members.\xe2\x80\x9d LaFave,\nW. Criminal Law, 69(3d. ed., 2000). \xe2\x80\x9d\nIt is not necessarily easy, to interpret the law and apply it to the facts of a case. Facts can be \xe2\x80\x9cmessy\xe2\x80\x9d, the\nlaw can be less than clear, and not everyone will agree on the appropriate meaning of the law\xe2\x80\x99s mandate.\nJudges, therefore, rely on several tools or approaches when interpreting the language of a statute. LaFave\nhas identified various approaches used by judges to interpret the law.\n\n11\n\nFirst, judges will look at the plain\n\nmeaning of the statute and rely on dictionary-like tools to discover the meaning of the words. According to\nthe Court in Caminetti v. United States, 242 U.S. 470 (1917), \xe2\x80\x9cWhere the language is plain and admits of no\nmore than one meaning, the duty of interpretation does not arise.\xe2\x80\x9d Even under this strict constructionist\napproach, judges can still disagree whether the language of the statute is plain. Also, there is a danger with\nthis plain meaning approach, and courts will not follow a statute though apparently plain language when\nstrict application results in injustice, oppression or even an absurd consequence.\nSecond, judges will look to the drafter\xe2\x80\x99s intent revealed in the legislative history, or records of legislative\nhearings and floor debates, when it exists. LeFave notes that sometimes it is easier to figure out the framer\xe2\x80\x99s\nintent than other times. Moreover, different lawmakers may have had different intents when they cast their\nvotes enacting the law. Additionally, sometimes legislators never considered the specific factual scenario\nfacing the court.\n\xe2\x80\x9cIt should be noted also that not all judges are enamored of the use of legislative history in interpreting\nambiguous statutes. And in any event, the legislative history is less likely to be controlling in construing\ncriminal statutes than civil statutes. If one purpose of a criminal statute is to warn the public of what\nconduct will get them into criminal trouble, that is, if prospective criminals are entitled to a fair\n\n11. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 86-89). St. Paul, Minn: West Group.\n\n107\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nwarning\xe2\x80\x93then the public should be able to ascertain the line between permitted and prohibited conduct\nfrom the statute itself.\xe2\x80\x9d\n\n12\n\nThird, judges may try to focus on the original understanding or original meaning of the law. Under this\napproach, the court asks itself how a common person reading the law when it was enacted, would have\nunderstood the law. For example, when looking at a statute written in 1972, the court would ask itself how\nthe common person in 1972 would have understood the statute. This approach is problematic because not\nall people living in 1972 would have interpreted the law in the same way.\nFourth, as discussed above, judges may interpret the law based on precedent. One drawback to this\napproach is that facts of the earlier cases will always differ somewhat from the facts in the new case the\ncourt is trying to interpret. Another difficulty occurs when the court is faced with a new situation or a new\nlaw and there is no precedent to guide the court. LaFave identified the difficulty in adhering too closely to\nprecedent:\n\xe2\x80\x9cSometimes a court, having earlier construed a criminal statute strictly in favor of the defendant, later\ndecides that its earlier construction was wrong. \xe2\x80\xa6 Obviously, other things being equal, courts should\ninterpret statutes correctly, regardless of past mistakes. On the other hand, it may not be fair to . . .\nchange the rule now. The difficulty lies in the Anglo-American theory of precedents that case law operates\nretroactively, and in particular that case law which overrules earlier precedents operates retroactively.\nWhen faced with this problem\xe2\x80\x93that of overruling or following an earlier erroneous interpretation . . . [one]\ncourt felt obliged to follow case precedent with an invitation to the legislature to change the rule of for the\nfuture; but [another court overruled the precedent.]\nThe choice, however, is not necessarily between following the precedent (thus letting a defendant off\nbut perpetuating a bad decision) and retroactively overruling it (thus eliminating a bad precedent but\nputting the defendant behind bars). There are two techniques by which the defendant may go free even\nif the precedent is overruled. It is not impossible for the court to overrule for the future only, letting the\ndefendant go but stating in the opinion that anyone who from now on conducts himself the way this\ndefendant did will be guilty of the crime. The second method is to overrule the erroneous precedent but\nto give the defendant the defense of mistake of law induced by an appellate court. \xe2\x80\xa6 Some courts have\ngone so far as to say that the adoption of a new interpretation of an old statute is forbidden by ex post facto\nconstitutional provision if the new interpretation is harder on the defendant than the old.\xe2\x80\x9d\n\n13\n\nFinally, there are common law doctrines which direct the court to interpret ambiguous terms in a\nspecific way. For example, the rule of lenity tells the court to interpret the statute in the light that is most\nfavorable to the defendant. Another rule, expressio unius est exclusion alters, meaning the inclusion of one is\nthe exclusion of all others, holds that when a legislative body includes specific items within a statute, the\nassumption is that it intends to exclude all other terms. Another doctrine of in pari materia, meaning on the\nsame matter or subject, directs the court to interpret an ambiguous statute in a light most consistent with\n\n12. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 89). St. Paul, Minn: West Group.\n13. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 96-97). St. Paul, Minn: West Group.\n\n108\n\n\x0cIntroduction to the American Criminal Justice System\n\nother statutes on the same subject. Finally, there is a general maxim that special language controls over\ngeneral language, and later statutes control over earlier statutes.\n\nCourt Rules of Procedure\nThe U.S. Supreme Court and state supreme courts make a law that regulates the procedures followed\nin the lower courts- both appellate and trial courts- in that jurisdiction. These court rules, adopted by the\ncourts to facilitate the administration and processing of cases, are generally limited in scope, but they may\nnevertheless provide significant rights for the defendant. For example, the rules governing speedy trials may\nbe governed generally by the Constitution, but very specifically by court rules in a particular jurisdiction.\nLocal courts may also pass local court rules that govern the day-to-day practice of law in these lower\ncourts. For example, a local court rule may dictate when and how cases are to be filed in that jurisdiction.\nGenerally, the local bar (all the attorneys in the jurisdiction) are consulted, and a workforce consisting of\njudges, trial court administrators, and representatives from district attorney\xe2\x80\x99s office, the public defender\xe2\x80\x99s\noffice, assigned counsel consortiums, and private attorneys will meet every few years to decide on the local\nrules.\n\nOkay, so where do I look to see if my behavior is prohibited?\nBecause criminal law has many sources\xe2\x80\x93constitutions, legislative enactments, administrative rules, case\nlaw, and common law\xe2\x80\x93it is not necessarily an easy task to determine whether your behavior or the\nway government responds to your behavior, is lawful. First, it is always advisable to know your rights\nunder the federal constitution and your state constitution and understand what limits the constitution\nplaces on legislative enactments and law enforcement actions. Still, even assuming that laws have been\nproperly enacted and that police have followed proper procedure, it may be difficult to determine whether\nyour behavior is prohibited. Because most states now codifying their criminal laws by enacting statutes,\nstart there. Then look to any case law which may interpret these statutes. Since courts generally follow\nprecedent due to the doctrine of stare decisis, one red flag that your behavior may be unlawful is that, in the\npast, the courts have found behavior similar to yours to be unlawful.\n\n109\n\n\x0c3.6. Classifications of Law\n\nLORE RUTZ-BURRI\n\nIn this section of the chapter, we turn to the various ways that criminal law has been classified. Classification\nschemes allow us to discuss aspects or characteristics of the criminal law. Some classifications have legal\nsignificance, meaning that how a crime is classified may make a difference in how the case is processed or\nwhat type of punishment can be imposed. Some classifications historically mattered (had legal significance),\nbut no longer have much consequence. Finally, some classifications have no legal significance, meaning the\nclassification exists only to help us organize our laws.\nClassifications Based on the Seriousness of the Offense\nLegislatures typically distinguish crimes based on the severity or seriousness of the harm inflicted on\nthe victim. The criminal\xe2\x80\x99s intent also impacts the crime\xe2\x80\x99s classification. Crimes are classified as felonies or\nmisdemeanors. Certain, less serious, behavior may be classified as criminal violations or infractions. The\nterm offense is a generic term that is sometimes used to mean any type of violation of the law, or it is\nsometimes used to mean just misdemeanors or felonies. Although these classification schemes may seem\npretty straight forward, sometimes states allow felonies to be treated as misdemeanors and misdemeanors to\nbe treated as either felonies or violations. For example, California has certain crimes, known as wobblers,\nthat can be charged as either felonies or misdemeanors at the discretion of the prosecutor upon consideration\nof the offender\xe2\x80\x99s criminal history or the specific facts of the case.\nThe distinction between felonies and misdemeanors developed at common law and has been incorporated\nin state criminal codes. At one time, all felonies were punishable by death and forfeiture of goods, while\nmisdemeanors were punishable by fines alone. Laws change over time, and as capital punishment became\nlimited to only certain felonies (like murder and rape), new forms of punishment developed. Now, felonies\nand misdemeanors alike are punished with fines and/or incarceration. Generally, felonies are treated as\nserious crimes for which at least a year in prison is a possible punishment. In states allowing capital\npunishment, some types of murder are punishable by death. Any crime subject to capital punishment is\nconsidered a felony. Misdemeanors are regarded as less serious offenses and are generally punishable by\nless than a year of incarceration in the local jail. Infractions and violations, when those classifications exist,\ninclude minor behavior for which the offender can be cited, but not arrested, and fined, but not incarcerated.\nThe difference between being charged with a felony or misdemeanor may have legal implications beyond\nthe length of the offender\xe2\x80\x99s sentence and in what type of facility an offender will be punished. For example, in\nsome jurisdictions, the authority of a police officer to arrest may be linked to whether the crime is considered\n110\n\n\x0cIntroduction to the American Criminal Justice System\n\na felony or a misdemeanor. In many states the classification impacts which court will have the authority to\nhear the case. In some states, the felony-misdemeanor classification determines the size of the jury.\nClassifications Based on the Type of Harm Inflicted\nAlmost all state codes classify crimes according to the type of harm inflicted. The Model Penal Code uses\nthe following classifications:\n\xe2\x80\xa2 Offenses against persons (homicide, assault, kidnapping, and rape, for example)\n\xe2\x80\xa2 Offenses against property (arson, burglary, and theft, for example)\n\xe2\x80\xa2 Offenses against family (bigamy and adultery, for example)\n\xe2\x80\xa2 Offenses against public administration (e.g., bribery, perjury, escape)\n\xe2\x80\xa2 Offenses against public order and decency (e.g., fighting, breach of peace, disorderly conduct,\npublic intoxication, riots, loitering, prostitution)\nClassifications based on the type of harm inflicted may be helpful for the purpose of an organization, but\nsome crimes such as robbery may involve both harms to a person and property. Although generally, whether\na crime is a person or property crime may not have any legal implications when a person is convicted, it may\nmatter if and when the person commits a new crime. Most sentencing guidelines treat individuals with prior\nperson-crime convictions more harshly than those individuals with prior property-crime convictions. That\nsaid, it is likely that the defense will argue that it is the facts of the prior case that matter not how the crime\nwas officially classified.\nMala in se Mala Prohibita Crimes\nCrimes have also been classified as either mala in se (inherently evil) or mala prohibita (wrong simply\nbecause some law forbids them). Mala in se crimes, like murder or theft, are generally recognized by every\nculture as evil and morally wrong. Most offenses that involve injury to persons or property are mala in se.\nAll of the common law felonies (murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem and\nburglary) were considered mala in se crimes. Mala prohibita crimes, like traffic violations or drug possession,\nare acts that are crimes not because they are evil, but rather because some law prohibits them. Most of the\nnewer crimes that are prohibited as part of a regulatory scheme are mala prohibita crimes.\n\nSubstantive and Procedural Law\nAnother classification scheme views the law as either substantive law or procedural law. Both criminal law\nand civil law can be either substantive or procedural. Substantive criminal law is generally created by statute\nor through the initiative process and defines what conduct is criminal. For example, substantive criminal\nlaw tells us that Sam commits theft when he takes Joe\xe2\x80\x99s backpack if he did so without Joe\xe2\x80\x99s permission if he\nintended to keep it. Substantive criminal law also specifies the punishment Sam could receive for stealing\nthe backpack (for example, a fine up to $500.00 and incarceration of up to 30 days). The substantive law\nmay also provide Sam a defense and a way to avoid conviction. For example, Sam may claim he reasonably\nmistook Joe\xe2\x80\x99s backpack as his own and therefore can assert a mistake of fact defense. Procedural law gives\nus the mechanisms to enforce substantive law. Procedural law governs the process for determining the\nrights of the parties. It sets forth the rules governing searches and seizures, investigations, interrogations,\npretrial procedures, and trial procedures. It may establish rules limiting certain types of evidence, establishing\ntimelines, as well as require the sharing of certain types of evidence and giving a certain type of notice. The\nprimary source of procedural law is judicial interpretations of the federal constitution and state constitutions,\n111\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nbut state and federal statutes, particularly those adopting rules of evidence, also provide much of our\nprocedural law.\n\n112\n\n\x0c3.7. Substantive Law: Defining Crimes, Inchoate Liability,\nAccomplice Liability, and Defenses\n\nLORE RUTZ-BURRI\n\nSubstantive Law\nSubstantive law includes laws that define crime, meaning laws that tell us what elements the government\nneeds to prove in order to establish that this crime has been committed. Substantive law also includes the\ndefinitions of inchoate crimes (incomplete crimes) of conspiracies, solicitations, and attempts. Substantive\nlaw also sets forth accomplice liability (when a person will be held responsible when they work in concert\nwith others to complete a crime). Substantive law also identifies the defenses that a person may raise when\nthey are charged with a crime. Finally, substantive law indicates the appropriate penalties and sentences for\ncrimes. Today, the great majority of substantive law has been codified and is found in the state\xe2\x80\x99s particular\ncriminal code or in the federal code. Generally, criminal codes are separated into two parts: a general part\nand a special part. The general part typically defines words and phrases that will be used throughout the\ncode (for example, the word intentionally), indicates all possible defenses and provides the general scheme\nof punishments. The special part of the code typically defines each specific crime setting forth the elements\nof the crime (components of the crime) the government must prove beyond a reasonable doubt in order to\nconvict a defendant of a crime.\nElements of the crime\nWith the exception of strict liability crimes and vicarious liability crime (discussed below), the government\nwill always have to prove that the defendant committed some criminal act, the actus reus element and that he\nor she acted with criminal intent, the mens rea element. When proving a crime of conduct, the state must\nprove that the defendant\xe2\x80\x99s conduct met the specific actus reus requirement. The government must prove that\nthe defendant\xe2\x80\x99s behavior was either a voluntary act (meaning not the product of a reflex or done while asleep,\nor under hypnosis), a voluntary omission to act (meaning that he or she failed to act) when there was a legal\nduty to do so, or that he or she possessed some item that should not have been possessed. To meet the mens\nrea element, the state must prove that the defendant\xe2\x80\x99s act was triggered by criminal intent. The elements of\na specific crimes may also include what is referred to as attendant circumstances. Attendant circumstances\nare additional facts set out in the substantive law\xe2\x80\x99s definition that the state must prove to establish a crime, for\nexample, that the place burglarized be a dwelling, or that the property value is a at least a certain amount.\nWhen proving a crime of causation, the state must also prove that the defendant caused specific, listed\n113\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nharm. Although generally not included in the listed elements, to prove a crime of causation, the government\nmust also prove that the defendant is the actual cause of the harm (actual or but/for cause) and that it is fair\nto hold him or her responsible (that the defendant is the legal or proximate cause of the harm).\nStatutes are generally silent on the other elements of crimes of conduct or crimes of causation: legality and\nconcurrence. The legality element is met when a law is validly enacted and puts people on notice that\ncertain behavior is illegal. Laws are presumed to be valid, and the state generally does not have to begin each\ncase by proving that proper procedure was followed when the law was enacted. The concurrence element\nrequires the state must also prove that the criminal intent triggered the criminal act\xe2\x80\x93that the mens rea and\nactus reus occurred at the same time.\nOccasionally, a statute will be silent as to the mens rea element. When this occurs, courts need to decide\nwhether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the\nlaw. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts\nare disinclined to find in favor of strict liability statutes unless there is a clear indication that the legislature\nintended to create strict liability. The courts will examine legislative history, the seriousness of harm caused\nby the crime, whether the crime is male in se or mala prohibitum, and the seriousness of the punishment in\ndeciding whether the state should be relieved of its obligation to prove criminal intent of the defendant. As\na general rule, the courts are more likely to find that a crime is a strict liability one when there is a small\npunishment and when the crime is more of a recent, regulatory offense (mala prohibitum crime).\nInchoate Offenses: Attempt, Conspiracy, and Solicitation\nIn order to prevent future harm, state and federal governments have enacted statutes that criminalize\nattempts to commit crimes, solicitations to commit crimes, and conspiracies to commit crimes. The common\nlaw also recognized these inchoate offenses or incomplete offenses. With each of the inchoate crimes, the\nstate must prove that the defendant intended to commit some other crime, the highest level of criminal\nintent. For example, there is no crime of attempt, but there is a crime of attempted theft. State laws vary in\nthe approaches and tests of whether the defendant has taken enough steps to be charged with attempt, but all\nagree that mere preparation does not constitute an attempt. Conspiracies involve an agreement between at\nleast two parties to commit some target crime. Some jurisdictions also require that there be an overt act in\nfurtherance of the crime (some outward movement towards the commission of the target crime) which\nreaffirms there is a meeting of the minds between the co-conspirators. Solicitations involve a person asking\nanother to commit a crime on his or her behalf, and they do not even require an agreement by the person\nrequested to do so.\nAccomplice Liability: Aiders and Abetters\nPeople who commit crimes frequently do so with assistance. Substantive criminal law describes when a\nperson can be found guilty for the acts of another. For example, the common law recognized four parties\nto a crime: principal in the first degree, principal in the second degree, accessory before the fact, and\naccessory after the fact. Many complicated legal rules developed to offset the harsh common law treatment of\nmost crimes as capital offenses (death penalty eligible). The modern statutory trend has been to recognize\naccomplices, people who render assistance before and during the crime, on one hand, and accessories after\nthe fact, people who help the offender escape responsibility after the crime has been committed, on the other.\nAccomplices, as treated as equally liable as the main perpetrator as \xe2\x80\x9cthe hand of one, is the hand of them all.\xe2\x80\x9d\nAccessories after the fact, under the modern trend, are charged with hindering prosecution or obstructing\njustice after the crime are punished to a lesser extent than the main perpetrators.\nVicarious Liability\n114\n\n\x0cIntroduction to the American Criminal Justice System\n\nA few states have enacted vicarious liability statutes seeking to hold one person responsible for the acts\nof another, even when they did not provide any assistance and may have not even known about the other\xe2\x80\x99s\nbehavior. These statutes, generally violate our belief in individual responsibility that only people who do\nsomething wrong should be blamed for the crime. Vicarious liability imputes (transfers) both the criminal\nintent and the criminal act of one person to another. Courts generally invalidate these purported vicarious\nliability statutes but have at times upheld liability based upon an employer/employee relationship or a parent/\nchild relationship.\nDefenses\nAssuming the government has proven all the elements of a crime, defendants may nevertheless raise\ndefenses that may result in their acquittal. Defense is a general term that includes perfect and imperfect\ndefenses, justifications and excuses, and procedural defenses.\nPerfect and Imperfect Defenses\nA perfect defense is one that completely exonerates the defendant. If the defendant is successful in raising\nthis defense, meaning the jury believes him or her, the jury should find the defendant not guilty. An\nimperfect defense is one that reduces the defendant\xe2\x80\x99s liability to that of a lesser crime. If the jury believes\nthe defendant, it should find the defendant guilty of a lesser charge.\nNegative Defenses and Affirmative Defenses\nSometimes the government is unable to prove all the elements of the crime charged. When this happens,\nthe defendant may raise a negative defense claim. The defendant doesn\xe2\x80\x99t have to prove anything, instead,\nhe or she just argues that something is missing in the state\xe2\x80\x99s case, that the state did not prove everything the\nstatute said it had to prove, and therefore the jury should find him or her not guilty. For example, when\ncharging a defendant with theft, the state must prove that the defendant intentionally took the property of\nanother. If the jury finds that the defendant did not intend to take the property, or took property that that\nwas rightfully his or hers, then it should find the defendant not guilty. Negative defenses at their essence\nare claims that there are \xe2\x80\x9cproof problems\xe2\x80\x9d with the state\xe2\x80\x99s case. The defendant\xe2\x80\x99s claim that the state failed to\nprove its case does not depend on whether the defendant has put on any evidence or not.\nAn affirmative defense requires the defendant to put on evidence that will persuade the jury that he or she\nshould either be completely exonerated (for a perfect defense) or be convicted only of a lesser crime (for an\nimperfect defense). The defendant can meet this requirement by calling witnesses to testify or by introducing\nphysical evidence. Because of the presumption of innocence, the burden of proof (the requirement that the\nparty put on evidence and persuade the fact-finder) cannot switch completely to the defendant. The state\nmust ultimately bear the burden of proving defendant\xe2\x80\x99s guilt by putting on enough evidence that defendant\nhas committed the crime by proving each and every material element of the crime, and it must convince\nthe jury of this guilt beyond a reasonable doubt. However, when the defendant raises an affirmative defense,\nthe burden of production or persuasion switches, at least in part and temporarily, to the defendant. The\ndefendant\xe2\x80\x99s burden is limited, however, to prove the elements of the defense he or she asserts.\nNote the interplay of negative defenses and affirmative defenses. Even if a defendant is unsuccessful in\nraising an affirmative defense, the jury could nevertheless find him or her not guilty based upon the state\xe2\x80\x99s\nfailure to prove some other material element of the crime.\nJustifications\nSometimes doing the right thing results in harm. Society recognizes the utility of doing some acts\nin certain circumstances that unfortunately result in harm. In those situations, the defendant can raise a\njustification defense. Justification defenses allow criminal acts to go unpunished because they preserve an\n115\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nimportant social value or because the resulting harm is outweighed by the benefit to society. For example, if\na surgeon cuts someone with a knife to remove a cancerous growth, the act is a beneficial one even though\nit results in pain and a scar. In raising a justification defense, the defendant admits he did a wrongful act, such\nas taking someone\xe2\x80\x99s life, but argues that the act was the right thing to do under the circumstances. At times,\nthe state\xe2\x80\x99s view differs from the defendant\xe2\x80\x99s view of whether the act was, in fact, the right thing to do. In\nthose cases, the state files charges to which the defendant raises a justification defense.\nJustification defenses include self-defense, defense of others, defense of property, defense of habitation,\nconsent, and necessity, also called, choice of evils. Justifications are affirmative defenses. The defendant must\nproduce some evidence in support of these defenses. In most cases, the defendant must also convince the jury\nthat it was more likely than not (a preponderance of the evidence) that his or her conduct was justified. For\nexample, the defendant may claim that he or she acted in self-defense and at trial would need to call witnesses\nor introduce physical evidence that supports the claim of self-defense, that it was more likely than not that\nhis or her actions were ones done in self-defense. State law may vary about how convinced the jury must be\n(called the standard of proof) or when the burden switches to the defendant to put on evidence, but all states\ngenerally require the defendant to carry at least some of the burden of proof in raising justification defenses.\nExcuses\nExcuses are defenses to criminal behavior that focus on some characteristic of the defendant. With excuses,\nthe defendant is essentially saying, \xe2\x80\x9cI did the crime, but I am not responsible because I was . . . insane (or too\nyoung, intoxicated, mistaken, or under duress).\xe2\x80\x9d Excuses include insanity, diminished capacity, automatism,\nage, involuntary intoxication, duress, mistake of fact, and then a variety of non-traditional syndrome excuses.\nLike justifications, excuses are affirmative defenses in which the defendant bears the burden of putting on\nsome evidence to convince the jury that he or she should not be held responsible for his or her conduct.\nProcedural Defenses\nProcedural defenses are challenges to the state\xe2\x80\x99s ability to bring the case against the defendant for some\nreason. These defenses point to some problem in the process or the state\xe2\x80\x99s lack of authority to bring the case\nrather than facts surrounding the crime or the criminal. Procedural defenses include: double jeopardy (a\ndefense in which the defendant claims that the government is repeatedly and impermissibly prosecuting him\nor her for the same crime), speedy trial (a defense in which the defendant claims the government took too\nlong to get his or her case to trial), entrapment (a defense in which the defendant claims the government\nin some way enticed him or her into committing the crime), the statute of limitations (a defense in which\nthe defendant claims the government did not charge him or her within the required statutory period),\nand several types of immunity (a defense in which the defendant claims he or she is immune from being\nprosecuted). Although procedural defenses are considered procedural criminal law, many states include the\navailability of these defenses in their substantive criminal codes.\n\n116\n\n\x0c3.8. Substantive Law: Punishment: Incarceration and Confinement\nSanctions\n\nLORE RUTZ-BURRI\n\nSubstantive criminal law not only defines what behaviors are crimes, but also the law that determines\nthe permissible punishment for the criminal behavior. All three governmental branches of government\nimpact criminal punishment. One of the most important duties of a judge is to impose a sentence which\nmeans determining the appropriate punishment for an offender upon conviction. Thus, punishing offenders\nis a judicial function. Because of the trend toward mandatory sentencing, discussed below, much of the\ndiscretion of sentencing has been removed from judges and placed on the prosecutors in their screening and\ncharging decision-making. As such, punishing offenders may rightly be considered an executive function.\nFinally, the lengths of sentences and types of punishment that attach to the various crimes, without regard\nto who may be committing the offense, is a product of the legislative process. In the last 30 years, through\nballot measures, propositions, referendum, and initiatives, the people (the general public through voting)\nhave played a large role in deciding the types and lengths of punishment.\nIncarceration/Confinement Sanctions\nConfinement sanctions include incarceration in prisons and jails, incarceration in boot camps, house arrest,\ncivil commitment for violent sexual offenders, short term shock incarceration, electronic monitoring, and\nsplit probation (when incarceration is imposed as a condition of probation). Most believe that confinement\nis the only effective way to deal with violent offenders. Although people question the efficacy of prison,\nregarding it as little more than a factory for producing future criminals, incarceration does protect society\noutside the prison from dangerous offenders. Prison is effective at incapacitation, but rarely is it effective at\nrehabilitation. In fact, serving time in prison often reinforces criminal tendencies.\nState and federal approaches to incarcerating individuals have shifted in response to prevailing criminal\njustice thinking and philosophy. Over time, governments have embraced four different approaches to\nsentencing offenders to incarceration: indeterminate, indefinite, determinate, or definite. Criminal codes\nmay incorporate more than one single approach. These approaches can be seen as a spectrum of judicial\ndiscretion. Indefinite and indeterminate sentences, at one end, are those that allow judges and parole\nboards the most discretion and authority. Determinate and definite sentences, at the other end, allow\nlittle or no discretion. Currently, most states are following determinate sentencing coupled with sentencing\nguideline, mandatory minimums, habitual offender statutes, and penalty enhancement statutes.\n117\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nIndeterminate-Indefinite Sentencing Approach\nFor much of the twentieth century, statutes commonly allowed judges to sentence criminals to\nimprisonment for indeterminate periods. Under this indeterminate sentencing approach, judges sentenced\nthe offender to prison for no specific time frame and the offenders\xe2\x80\x99 release was contingent upon getting\nparoled, or released by a parole board after a finding that the person was rehabilitated. Because some\ncriminals would quickly be reformed but other criminals would be resistant to change, indeterminate\nsentencing\xe2\x80\x99s open-ended time frame was deemed optimal for allowing treatment and reform to take\nits course, no matter how quickly or slowly. The decline of popular support for rehabilitation has led\nmost jurisdictions to abandon the concept of indeterminate sentencing. Indefinite sentences give judges\ndiscretion, within defined limits, to set a minimum and maximum sentence length. The judge imposes a\nrange of years to be served, and a parole board decides when the offender will ultimately be released.\nDeterminate-Definite Sentencing Approach\nUnder determinate sentencing, judges have little discretion in sentencing. The legislature sets specific\nparameters on the sentence, and the judge sets a fixed term of years within that time frame. The sentencing\nlaws allow the court to increase the term if it finds aggravating factors, and reduce the term if it finds\nmitigating factors. With determinate sentencing, the defendant knows immediately when he or she will be\nreleased. In determinate sentencing, offenders may receive credit for time served while in pretrial detention\nand \xe2\x80\x9cgood time\xe2\x80\x9d credits. The discretion that judges are allowed in initially setting the fixed term is what\ndistinguishes determinate sentencing from definite sentencing.\nDefinite sentencing completely eliminates judicial discretion and ensures that offenders who commit the\nsame crimes are punished equally. The definite sentence is set by the legislature with no leeway for judges or\ncorrections officials to individualize punishment. Currently, no jurisdiction embraces this inflexible approach\nthat prohibits any consideration of aggravating and mitigating factors in sentencing. Although mandatory\nminimum sentencing embraces some aspects of definite sentencing, judges may still impose longer than the\nminimum sentence and therefore retain some limited discretion.\nPresumptive Sentencing Guidelines\nIn the 1980s, state legislatures and Congress, responding to criticism that wide judicial discretion resulted\nin great sentence disparities, adopted sentencing guidelines drafted by legislatively-established\ncommissions. These commissions proposed sentencing formulas based on a variety of factors, but the\ntwo most important factors in any sentencing guideline scheme were the nature of the crime and the\noffenders\xe2\x80\x99 criminal history. Some states enacted advisory sentencing guidelines that gave suggestions to\njudges statewide of what was considered an appropriate sentence that should be followed in most cases. Some\nstates enacted mandatory sentence guidelines that required judges to impose presumptive sentences, the\nlength or type of sentence that was presumed appropriate unless mitigating or aggravating factors were\nidentified on the record.\nSentencing guidelines generally differentiate between presumptive prison sentences and presumptive\nprobation sentences. Judges who depart, or (select a different sentence, from the presumptive sentences can\ndo a dispositional departure and impose prison when probation was the presumptive sentence or impose\nprobation instead of prison. Judges may also do a durational departure in which they sentence the offender\nto a term length different than the presumptive term length, for example, giving an 18-month sentence\nrather than a 26-month sentence.\nGuideline sentencing allows for judicial discretion, but at the same time, limits that discretion. Judges\nmust generally make findings when sentencing the offender to a term of incarceration that is different\n118\n\n\x0cIntroduction to the American Criminal Justice System\n\nfrom the presumptive sentence. The judge must indicate which aggravating factors (factors indicating the\noffender or offense is worse than other similar crimes) or mitigating factors (factors indicating the offender\nor offense is less serious than other similar crimes). The Sentencing Reform Act of 1984 (18 U.S. C.A. \xc2\xa7\xc2\xa7\n3551 et. seq. 28 U.S.C.A. \xc2\xa7\xc2\xa7991-998) first established federal sentencing guidelines. The Act applied to all\ncrimes committed after November 1, 1987, and its purpose was \xe2\x80\x9cto establish sentencing policies and practices\nfor the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines\nprescribing the appropriate sentences for offenders convicted of federal crimes.\xe2\x80\x9d Scheb, at 681. It created\nthe United States Sentencing Guideline Commission and gave it the authority to create the guidelines. The\nCommission dramatically reduced the discretion of federal judges by establishing a narrow sentencing range\nand required that judges who departed from the ranges state in writing their reason for doing so. The Act\nalso established an appellate review of federal sentences and abolished the U.S. Parole Commission.\nMost states have adopted some version of sentencing guidelines, from the very simple to the very complex,\nand many states restrict their guidelines to felonies. Although limiting judicial discretion, state sentencing\nguideline schemes all allow some wiggle room if the judge finds that the case differs from the run of the\nmill case. In a series of cases, the Court has found that federal and state sentencing guidelines schemes that\ndo not require the jury to make findings of aggravating factors which justify a harsher sentence imposed\nby the judge violate the defendant\xe2\x80\x99s right to a jury trial (found in the Sixth Amendment). See, Apprendi\nv. New Jersey, 530 U.S. 466 (2000); United States v. Booker-United States v. Fanfan, 543 U.S. 220 (2005);\nBlakeley v. Washington, 542 U.S. 296 (2004). Accordingly, some of the sentencing guideline schemes have\nbeen invalidated and some modified.\n\xe2\x80\x9cThere is still considerable uncertainty about the efficacy of sentencing guidelines. There is evidence\nthat they have reduced sentencing disparities but they clearly have not eliminated this problem altogether.\nThere is also concern that sentencing guidelines have promoted higher incarceration rates and have thus\ncontributed to the problem of prison overcrowding. It is fair to say that to be successful, sentencing\n1\nguidelines must be accompanied by policies designed to effectively manage prison populations.\xe2\x80\x9d\n\nControversial Issue: Mandatory Minimum Sentences\nLegislative enactments, ballot measures, initiatives, and referendums have resulted in mandatory\nminimum sentences schemes in which offenders who commit certain crimes must be sentenced to prison\nterms for minimum periods. Mandatory minimum sentences take precedence over but do not completely\nreplace, whatever other statutory or administrative sentencing guidelines may be in place. It is possible for\na judge to impose a sentence that exceeds the mandatory minimum on an offender who, because of his or\nher extensive criminal history or particular brutality of the crime, warrants a particularly harsh guideline\nsentence.\nMandatory minimum sentences are a type of determinate sentence. Most mandatory minimum sentences\nare for violent offenses or those involving the use of firearms. Federal law also mandates minimum prison\nterms for serious drug crimes prosecuted in federal courts. For example, a person charged with possession\n\n1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 683). Belmont, CA: Cengage.\n\n119\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nwith the intent to distribute more than five kilograms of cocaine is subject to a mandatory minimum\nsentence of ten years in prison. See, 21 U.S.C.A. \xc2\xa7841 (b) (1)(A).\nIn our attempts to limit judicial discretion, we may have perhaps gone too far. Judges must impose\nmandatory minimum sentences regardless of any compelling mitigating facts that warrant a lesser sentence,\neven when victims fervently request leniency for the defendant. Sentencing discretion resting with a\nneutral judge has been replaced by charging discretion resting with the prosecutor. Prosecutors, in filing\ncertain charges, can now compel negotiated pleas, and they now hold most of the cards. Also, mandatory\nminimum sentencing has resulted in the over-incarceration of non-violent offenders. On December 18,\n2018, a bi-partisan bill for criminal justice reform called the First Step Act passed the U.S. Senate with an\n87-12 vote. The bill seeks to reverse some of the effects of overly harsh sentences for non-violent drug\noffenders.\n\nLink to Video on the above link showing the Senate Vote on the First Step Act on December\n18th2018\nhttps://d2hpjte286tc4h.cloudfront.net/wp-raycom/(Source_%20Senate%20TV/\nTwitter/@realDonaldTrump/KCAL/KCBS/CNN/Pool)/2018/12/19/5c1a0dfbe4b0dcad7654b1db/\nt_cc7087e930cd408498ddba6821c2a690_name_BHDN_PY_02WE_SENATE_PASSES_CRIMINAL_JU\nSTICE_REFORM_BILL__4AME_CNNA_ST1_1000000004ee5b22_120_2/file_640x360-600-v3.mp4\nhttp://HTTPS://WWW.REGISTER-HERALD.COM/CNHI_NETWORK/IN-BIPARTISAN-ACTSENATE-PASSES-CRIMINAL-JUSTICE-REFORM-BILL-WITH/\nVIDEO_115833EC-71D2-5FC3-89BA-980428D75367.HTML\n\nOther Mandatory Sentences\xe2\x80\x93Penalty Enhancements\nLegislatures have also exercised their authority over sentencing by passing laws that enhance criminal\npenalties for crimes against certain victims, for crimes done with weapons, or for hate crimes. For example,\nCongress passed the Violent Crime Control and Law Enforcement Act of 1994 that included several\nprovisions for enhanced penalties for drug trafficking in prisons and drug-free zones and illegal drug use in\nfederal prisons. States have passed gun enhancements and hate crime enhancements. See, e.g., ORS 161.610\n(authorizing enhanced penalties for the use of a firearm during the commission of a felony); Wisconsin v.\nMitchell, 508 U.S. 486 (1993) (authorizing enhanced penalties for hate crimes).\nConcurrent and Consecutive Sentences\nFrequently, judges sentence defendants for multiple crimes and multiple cases at the same sentencing\nhearing. Judges have the option of running terms of incarceration either concurrently (at the same time)\nor consecutively (back-to-back). States vary as to whether the default approach on multiple sentences is\n120\n\n\x0cIntroduction to the American Criminal Justice System\n\nconsecutive sentences or concurrent sentences. The Court has held that the decision to impose concurrent\nor consecutive sentences was a judicial determination, not a jury determination, and thus not subject to\nApprendi\xe2\x80\x99s rule that any sentencing enhancement factor must be proved to the jury beyond a reasonable\ndoubt. Oregon v. Ice,555 U.S. 160 (2009). Justice Ginsberg wrote,\n\xe2\x80\x9cMost States continue the common law-tradition: They entrust to judges\xe2\x80\x99 unfettered discretion the\ndecision whether sentences for discrete offenses shall be served consecutively or concurrently. In some\nStates, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order\nconcurrent sentences upon finding cause therefor. The other States, including Oregon, constrain judges\xe2\x80\x99\ndiscretion by requiring them to find certain facts before imposing consecutive rather than concurrent\n2\nsentences.\xe2\x80\x9d\nCivil Commitment of Violent Sexual Offenders\nSome sexual offenders may still be dangerous even after they serve their entire prison term. Both state\nand federal laws allow the continued confinement of violent sexual predators after the expiration of their\ncriminal sentences. In 1997, the Court upheld a Kansas statute finding that such confinement did not violate\nthe double jeopardy or ex post facto prohibitions. Kansas v. Hendricks, 521 U.S. 346 (1997). In 2010, the Court\ndecided that in enacting the Adam Walsh Act, 18 U.S.C. 4248, Congress had not exceeded its authority by\nallowing civil commitment after an offender has served his or her criminal sanction. Justice Breyer wrote,\n\xe2\x80\x9cthe statute is a necessary and proper means of exercising the federal authority that permits Congress to\ncreate federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those\nimprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the\n3\nfederal imprisonment of others.\xe2\x80\x9d\n\nLink to 2015 report on Federal Sentencing (includes incarceration and alternatives) (link also included\nbelow with split probation.\nhttps://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/\nalternatives/20150617_Alternatives.pdf\n\n2. Oregon v. Ice, 555 U.S. 160, at 163-164 (2009).\n3. United States v. Comstock, 560 U.S. 126, at (2010).\n\n121\n\n\x0c3.9. Substantive Law: Physical Punishment Sentences\n\nLORE RUTZ-BURRI\n\nPhysical Punishment\nCorporal Punishment\nUntil 1978, the Supreme Court upheld the use of corporal punishment (physical punishment). Ingraham\nv. Wright 430 U.S. 651 (1978). However, it is no longer an approved sanction for a criminal offense in\nthe United States. Nonlethal corporal punishment, such as flogging, was used extensively in English and\nAmerican common law for non-felony offenses. The misdemeanant was taken to the public square, bound\nto the whipping post, and administered as many lashes as the law specified.\n\xe2\x80\x9cAn American judge during the early American Republic was able to select from a wide array of\npunishments, most of which were intended to inflect intense pain and public shame. A Virginia statute\nof 1748 punished the stealing of a hog with twenty-five lashes and a fine. The second offense resulted in\ntwo hours of pillory (public ridicule) or public branding. A third theft resulted in a penalty of death. False\ntestimony during a trial might result in mutilation of the ears or banishment from the colony. These penalties\nwere often combined with imprisonment in a jail or workhouse and hard labor. . .\nWe have slowly moved away from most of these physically painful sanctions. The majority of states\nfollowed the example of the U.S. Congress, which in 1788 prohibited federal courts from imposing\nwhipping and standing in the pillory. Maryland retained corporal punishments until 1953, and Delaware\nonly repealed this punishment in 1972. Delaware, in fact, subjected more than 1600 individuals to whippings\nin the twentieth century. This practice was effectively ended in 1978 when the Eighth Circuit Court of\nAppeals ruled that the use of the strap, \xe2\x80\x9coffends contemporary standards of decency and human dignity and\n1\nprecepts of civilization which we profess to possess.\xe2\x80\x9d\nControversial Issue: Capital Punishment: Death Penalty\nCapital punishment (lethal physical punishment) is a popular topic, and much has been written about the\ndeath penalty. One excellent resource for learning about the death penalty is the death penalty information\ncenter (DPIC), a nonprofit organization that publishes studies and analyzes trends in death penalty law and\napplication.\nLink to Death Penalty Information Center:\nhttps://deathpenaltyinfo.org/\n1. Lippman, M.R. (2016) Contemporary Criminal Law: Concepts, Cases, and Controversies (4th ed., pp. 57). SAGE Publishing.\n\n122\n\n\x0cIntroduction to the American Criminal Justice System\n\nLink to Death Penalty Information Center Fact Sheet\nhttps://deathpenaltyinfo.org/documents/FactSheet.pdf\nSee Death Penalty Fast Facts at\nhttps://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html\nThe use of the death penalty as a response to crime in industrialized nations raises many questions:\n\xe2\x80\xa2 Is the death penalty a deterrent?\n\xe2\x80\xa2 Is the death penalty justified by principles of retribution?\n\xe2\x80\xa2 Is the death penalty morally or ethically justified?\n\xe2\x80\xa2 Does it cost more to impose a death sentence or to impose a true-life sentence?\n\xe2\x80\xa2 Are factually innocent individuals erroneously executed (and if so, how often)?\n\xe2\x80\xa2 Is any particular manner of execution cruel and unusual?\n\xe2\x80\xa2 Is the death penalty, in itself, cruel and unusual punishment?\nCourts answer only the last two questions, and, to date, the Court has upheld every manner of execution\nthat is currently approved in the United States: firing squad, electrocution, gas chamber, hanging, and lethal\ninjection. The Court appears willing to uphold capital punishment and has found it is not disproportionately\ncruel and unusual when the crime for which the defendant was convicted resulted in the death of another.\nIt has reached an opposite result when the crime did not involve the victim\xe2\x80\x99s death, for example, when the\ndefendant was convicted of rape of an adult woman and a child rape. See, Coker v. Georgia, 433 U.S. 584\n(1977) The Court prohibited capital punishment for the crime of rape of an adult victim. Coker suggests that\nthe death penalty is an inappropriate punishment for any crime that does not involve the taking of human\nlife. In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court invalidated a Louisiana statute that allowed\nfor the death penalty for rape of a child less than twelve years of age. Justice Kennedy (not the defendant,\nKennedy) wrote, \xe2\x80\x9cthe Eighth Amendment bars imposing the death penalty for the rape of a child where the\ncrime did not result and was not intended to result, in the death of the victim.\xe2\x80\x9d\nMental Illness, Mental Deterioration and the Death Penalty\n\nAccording to Court interpretations, the Eighth Amendment forbids the execution of someone who is legally\ninsane. Ford v. Wainwright, 477 US 399 (1986). In 2007, the Court ruled that a prisoner is entitled to a hearing to\ndetermine his mental condition upon making a preliminary showing that his current mental state would bar his\nexecution. Panetti. v. Quarterman, 551 US 930 (2007). In one case, the Texas Court of Criminal Appeals in 2013 held\nthat a trial court illegally ordered the forcible medication of a mentally ill death row inmate, Steven Stanley, for the\npurpose of rendering him competent to be executed. See, http://www.deathpenaltyinfo.org. Staley\xe2\x80\x99s mental health\nbegan to deteriorate when he entered death row in 1991. He received an execution date in 2006 but was deemed\ntoo ill to be executed. A court ordered that his paranoid schizophrenia is treated by forcible medication, which\ncontinued for six years. In its ruling, the Texas Court of Criminal Appeals held that \xe2\x80\x9cthe evidence conclusively\nshows that appellant\xe2\x80\x99s competency to be executed was achieved solely through the involuntary medication, which\nthe trial court had no authority to order under the competency-to-be-executed statute. The finding that appellant\n\n123\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nis competent must be reversed for lack of any evidentiary support\xe2\x80\x9d. The ruling did not address whether the state\nconstitution forbids the execution of someone forcibly drugged or whether the defendant, in this case, is too ill to\nbe executed at all. Another mentally ill individual, John Ferguson, was executed in August 2013 in Florida through\nfour mental health organizations maintained that he had suffered from mental illness for at least 40 years. Similarly,\nMarshall Gore, another Florida inmate with mental illness, was executed in October 2013.\nLink to mental illness and the death penalty\nhttps://deathpenaltyinfo.org/mental-illness-and-death-penalty\nA different but related issue is the constitutionality of executing mentally retarded individuals who have\ncommitted capital offenses. In 1989, the Court held that executions of mentally retarded prisoners do not\nnecessarily violate the Cruel and Unusual Punishment Clause if juries are allowed to consider evidence of mental\nretardation as a mitigating factor in the sentencing phase of a capital trial. Penry v. Lynaugh, 492 U.S. 302 (1989).\nLater, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court reconsidered, holding that there was a sufficient national\nconsensus for the Court to prohibit the execution of mentally retarded persons via the Eighth Amendment. Justice\nStevens concluded,\n\xe2\x80\x9c[M]entally retarded person who meets the law\xe2\x80\x99s requirement for criminal responsibility should be tried and\npunished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of\ntheir impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult\n2\n\ncriminal conduct\xe2\x80\x9d .\nOn February 27th, 2019 the Court affirmed that the states may not execute a death row inmate who was unable\nto understand his punishments due to dementia. In Madison v. Alabama, ___ U.S. ___ (2019), the 70-year-old\ndefendant had spent 33 years in solitary confinement after having been sentenced to death for killing a police officer\nin 1985. Madison had suffered a series of strokes causing severe cognitive impairment due to vascular dementia and\nthe inability to remember his crime. Justice Kagan\xe2\x80\x99s majority opinion held that an inmate\xe2\x80\x99s failure to remember\nhis crime does not by itself render him immune from execution, but \xe2\x80\x9csuch memory loss still may factor into the\n\xe2\x80\x98rational understanding\xe2\x80\x99 analysis that Panetti demands.\xe2\x80\x9d If memory loss \xe2\x80\x9ccombines and interacts with other mental\nshortfalls to deprive a person of the capacity to comprehend\xe2\x80\x9d his death sentence, \xe2\x80\x9cthen the Panetti standard will be\nsatisfied.\xe2\x80\x9d ____ U.S. ____, at ____ (2019)\nAccording to the Court, it doesn\xe2\x80\x99t matter if these \xe2\x80\x9cmental shortfalls\xe2\x80\x9d stem from delusions, dementia, or some other\ndisorder. Courts must \xe2\x80\x9clook beyond any given diagnosis to a downstream consequence\xe2\x80\x9d\xe2\x80\x94whether a disorder can\n\xe2\x80\x9cso impair the prisoner\xe2\x80\x99s concept of reality\xe2\x80\x9d that he cannot \xe2\x80\x9ccome to grips with\xe2\x80\x9d the meaning of his punishment.\xe2\x80\x9d\n\nJuvenile Offenders and the Death Penalty\nHistorically, juveniles were treated no differently than adults in the criminal justice system, and thus,\nthere is a long history of executing juveniles convicted of capital crimes. In the late 1980s, the Court\n\n2. Atkins v. Virginia, 536 U.S. 304 (2002).\n\n124\n\n\x0cIntroduction to the American Criminal Justice System\n\nconsidered whether national sentiment had changed to the point where it would now be considered cruel\nand unusual punishment to apply the death penalty to juveniles. The Court first held that the Constitution\nprohibits executing a juvenile who was fifteen years of age or younger at the time he or she committed\nthe capital crime. Thompson v. Oklahoma, 487 U.S. 825 (1988). One year later, the Court, in a 5-4 decision,\nheld that a juvenile sixteen years or older at the time of the crime could be sentenced to death. Stanford v.\nKentucky, 492 U.S. 361 (1989). Then, in Roper v. Simmons, 543 U.S. 551 (2005), the Court said that the\nConstitution forbade the execution of anyone who was under eighteen at the time of their offense. The\nSimmons decision pointed to the decreasing frequency with which juvenile offenders were being sentenced\nto death as evidence of an emerging national consensus against capital punishment for juveniles. The Court\nnoted that only 20 of the 37 death penalty states allowed juveniles to be executed, and since 1995, only\nthree states had actually executed inmates for crimes they had committed as juveniles.\n\n125\n\n\x0c3.10. Substantive Law: Monetary Punishment Sentences\n\nLORE RUTZ-BURRI\n\nMonetary Punishments\nFines\nFines, or a sum of money the offender has to pay as punishment for the crime, are generally viewed as\nthe least severe of all possible punishments. Fines may either supplement imprisonment or probation, or they\nmay be the sole punishment. Criminal codes generally authorize fines as punishment for most crimes, but\nsome of the older criminal codes did not authorize fines for murder.\nThe Model Penal Code proposed legislative guidelines on the use of fines, but states have generally\nrejected this provision. Instead, judges are given extremely broad discretion in setting the fine amounts,\nand there are few limits on the judge\xe2\x80\x99s ability to impose a fine. Frequently, the criminal statute will specify\nthe highest permissible fine. The Eighth Amendment\xe2\x80\x99s Cruel and Unusual Punishment Clause prohibits\nexcessive fines, but courts rarely have found a fine to violate this provision. In Tate v. Short, 401 U.S. 395\n(1971), the Court found that fines that punish poor people more harshly than rich people, and thus, violate\nthe Equal Protection Clause. Historically, magistrates had given offenders the option of paying a fine or\nserving a jail sentence. Sentences were frequently \xe2\x80\x9cthirty dollars or thirty days\xe2\x80\x9d. If defendants were too poor\nto pay the fine, they went to jail. The Tate Court reasoned that the state could imprison Tate for committing\nthe crime, but by requiring either time or a fine, the state was really incarcerating Tate because he was too\npoor to pay the fine. After Tate, courts began using installment plans that permit poor defendants to pay fines\nover a period of several months. This practice may nonetheless subject the poor to an increased punishment\nif the court administration requires interest or some fee associated with a payment plan.\nCivil Forfeiture\nFederal law allows civil forfeiture, the process by which the government confiscates the proceeds\n(property or money) of criminal activities. See,18 USCA \xc2\xa7\xc2\xa7981-982. Laws that allow the state to forfeit the\nproperty used in illicit drug activity are particularly controversial. In deciding whether forfeiture is legal,\nstate courts generally look to constitutional provisions dealing with excessive fines. In Austin v. United States,\n509 US 602, at 622 (1993), the Supreme Court said that civil forfeiture \xe2\x80\x9cconstitutes payment to a sovereign\nas punishment for some offense\xe2\x80\x99 . . . and, as such, is subject to the limitations of the Eighth Amendment\xe2\x80\x99s\nExcessive Fines Clause.\xe2\x80\x9d However, the court left it to state and lower federal courts to determine the test\nof \xe2\x80\x9cexcessiveness\xe2\x80\x9d in the context of forfeiture. The Illinois Supreme Court said that three factors should be\nconsidered in this regard: (1) the gravity of the offense relative to the value of the forfeiture, (2) whether the\n126\n\n\x0cIntroduction to the American Criminal Justice System\n\nproperty was an integral part of the illicit activity, and (3) whether the illicit activity involving the property\n1\nwas extensive. Federally, a $357,144 forfeiture for failing to report to U.S. Customs that more than $10,000\n2\nwas being taken out of the country was found to be \xe2\x80\x9cgrossly disproportionate\xe2\x80\x9d to the offense. In one\nPennsylvania case, the court found that forfeiture of a house used as a base of operations in an ongoing drug\n3\nbusiness was not excessive.\nDefendants, whose property has been taken through civil forfeiture, have argued that either the forfeiture\nhearing or the criminal trial (whichever happened last) violated their rights to be free from double jeopardy.\nHowever, the courts have not agreed. Instead, they hold that the double jeopardy prohibition is not triggered\nbecause forfeiture is a civil sanction and not considered a new criminal action. United States v. Ursery 518\nU.S. 267 (1996). On February 20th, 2019, the Court perhaps provided a different form of attack on civil\nforfeitures. In a unanimous opinion in Timbs v. Indiana, ___ U.S. ___ (2019), Justice Ginsberg wrote that the\nEighth Amendment\xe2\x80\x99s excessive fines clause applies to the states as well as the federal government, and that\nwhen Indiana civilly forfeited Timbs\xe2\x80\x99 $42,000 land rover after he sold a couple of hundred dollars worth of\nheroin, it was imposing an excessive fine.\nIn order to satisfy due process, the owner is entitled to a hearing before the property can be forfeited.\nUnited States v. James Daniel Good Real Property, 510 U.S. 43 (1993). Courts have found that civil forfeiture is\nconstitutional even when the owner was not aware of the property\xe2\x80\x99s criminal use. For example, in Bennis v.\nMichigan, 516 U.S. 442 (1996), the Court upheld the government\xe2\x80\x99s seizure and forfeiture of Mrs. Bennis\xe2\x80\x99s car,\neven though she claimed she did not know that her husband was using their car to engage in prostitution.\nIn 2000, Congress approved the Civil Asset Forfeiture Reform Act. This Act curbed the government\xe2\x80\x99s asset\nforfeiture authority and added additional due process guarantees to ensure that property is not unjustly taken\nfrom innocent owners. Under the Act, the government must show by a preponderance of the evidence that\nthe property was used in some criminal venture. The Act also limited the statute of limitations to five years\nand made it a crime to move or destroy property to prevent seizure for forfeiture. In a similar vein, Oregon\nvoters passed Ballot Measure 3, the Oregon Property Protection Act of 2000, in the November election. This\nconstitutional amendment imposed limits on government forfeiture, allowing forfeiture only if the person\nfrom whom the property was seized had been already convicted of the crime, and only if the government\ncould prove by a clear and convincing evidence standard that the property was a proceed or instrument of\nthe crime.\n\nLink to http://www.osbar.org/publications/bulletin/06nov/forfeiture.html, for a discussion of the recent\nhistory of asset forfeiture in Oregon and the debate about Ballot Measure 3 and subsequent forfeiture cases\nand statutes.\n\nRestitution and Compensatory Fines\nRestitution refers to the \xe2\x80\x9creturn of a sum of money, an object, or the value of an object that the\n\n1. Waller v. 1989 Ford F350 Truck, 642 N.E. 2d 460 (Ill. 1994).\n2. United States v. Bajakajian, 524 U.S. 321 (1998).\n3. In re King Properties, 6235 A.2d 128 (Pa 1983).\n\n127\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n4\n\ndefendant wrongfully obtained in the course of committing the crime.\xe2\x80\x9d When the judge\xe2\x80\x99s sentence includes\nrestitution, the amount should be enough money to place the victim in the same position they would have\nbeen had the crime not been committed. Restitution orders can include the actual cost of destroyed property,\nmedical bills, counseling fees, and lost wages. Several state laws require offenders to pay restitution as a\ncondition of probation. Judges may order defendants to pay restitution for all damages incurred during a\ncriminal episode, even if the charge is dismissed through negotiations. Judges may also order the defendant\nto pay restitution to some party other than the victim.\nOrdering restitution is not always practical. When offenders are sentenced to incarceration, they\nfrequently are unable to pay fines and restitution. Even offenders sentenced to probation may not be able\nto make restitution payments. In order to assist crime victims when offenders cannot pay restitution, several\nstates have established victims\xe2\x80\x99 compensations commissions. Statewide, defendants make their restitution\npayments to these commissions that pay out restitution claims to victims across the state. Because of the\nstatewide pot of money, victims can then get some, if not all, of what is needed to \xe2\x80\x9cmake them whole.\xe2\x80\x9d Also,\nthese commissions make it possible for the victim to get compensated without having to maintain contact\nwith the offender.\n\n4. Scheb, J.M. & Scheb, J.M. II (2012). Criminal Procedure (6th ed., pp. 268). Belmont, CA: Wadsworth, Cengage Learning.\n\n128\n\n\x0c3.11. Substantive Law: Community-Based Sentences\n\nLORE RUTZ-BURRI\n\nIn addition to incarceration and monetary sanctions, the defendant may be sentenced to some form of\ncommunity-based sanction.\nCommunity Shaming\nSome judges, seeking alternatives to jail or prison, have imposed creative sentences such as requiring\noffenders to post billboards, make public apologies, place signs on the door reading, \xe2\x80\x9cDangerous Sex\nOffender, No children Allowed,\xe2\x80\x9d and attach bumper stickers proclaiming their crimes. These sentences\nare intended to shame or humiliate the offender and satisfy the need for retribution. Shame is part of the\nrestorative justice movement, but for it to be effective it needs to \xe2\x80\x9ccome from within the offender. \xe2\x80\xa6 Shame\nthat is imposed without almost always hardens the offenders against reconciliation and restoration of the\ndamage done\xe2\x80\x9d http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html\n\xe2\x80\x9cAt the heart of the current discussion of shaming offenders is the assumption that shame is a simple\nemotion that comes in only two sizes: shame or no shame. But actually, shame is a complex emotion which\ncomes in many shapes, sizes, and degrees of intensity. Legal scholars and judges who treat shame as merely\nbinary are in the position of a skier who makes no distinction between the many kinds of snow. Just as\nlack of knowledge of types of snow may lead a skier to disaster, so the crude treatment of shame in current\n1\ndiscussions could be a catastrophe.\xe2\x80\x9d\nCommunity Service\nAlthough not necessarily specified in the criminal code, judges frequently sentence offenders to complete\ncommunity service as a condition of probation. Generally, a probation officer or probation staff member will\nact as the community service coordinator. His or her job is to link the offender to the positions and verify\nthe hours worked.\nProbation\nKerper describes how states began to use probation as a sanction for criminal behavior.\n\xe2\x80\x9cThe authority to grant probation probably grew out of the traditional practice of judges of \xe2\x80\x9csuspending\nsentences.\xe2\x80\x9d The judge would simply fail to set a sentence or set the sentence and fail to direct that it\nbe executed. The offender would then be released. If the offender\xe2\x80\x99s subsequent behavior was satisfactory,\nnothing more would be done. If he had further difficulty with the law, the judge, usually on request of the\n\n1. http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html\n\n129\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nprosecutor, would revoke his freedom. This time the judge would set a sentence, or reinstate the previous\nsentence, and the sentence would be executed. The common law authority of a judge to spend a sentence\nwas questionable, but many judges regularly exercised that authority.\nSince the defendant released on a suspended sentence was not subject to formal supervisions, judges tended\nto suspend sentences only in minor cases. In the late 1800s, courts began to experiment with a combination\nof a suspended sentence and careful supervision that could be applied to more serious offenses. This new\nprocedure, called probation, soon was authorized by statute and provision was made for the appointment of\n2\nspecial probation officers.\xe2\x80\x9d\nProbation is one of the most common alternatives to incarceration. Both probation and parole involve\nsupervision of the offender in a community setting rather than in jail or prison. The primary purpose\nof probation is to rehabilitate the defendant. Thus, the court releases the offender to the supervision of\na probation officer who then monitors the offender to ensure that he or she abides by the conditions of\nprobation. With parole, the offender is first incarcerated and is later released from prison to supervised\ncontrol. Under both procedures, offenders who violate the terms of their supervision can be imprisoned to\nserve the remainder of their sentences.\nThe Court has said little on probation since 1932 when it announced that probation conditions must\nserve \xe2\x80\x9cthe ends of justice and the best interest of both the public and the defendant.\xe2\x80\x9d Burnes v. United States,\n287 U.S. 216 (1932). According to the Ninth Circuit Court of Appeals, \xe2\x80\x9cThe only factors which the trial\njudge should consider when deciding whether to grant probation are the appropriateness and attainability\nof rehabilitation and the need to protect the public by imposing conditions which control the probationer\xe2\x80\x99s\nactivities.\xe2\x80\x9d Higdon v. United States, 627 F.2d 893 (9th Circ. 1980). The Court has fashioned a two-step process\nfor reviewing conditions of probation: first, it determines whether the conditions are permissible, and, if so,\nit determines whether there is a reasonable relationship between the conditions imposed and the purpose of\nprobation.\nMany states follow California\xe2\x80\x99s standard for testing the reasonableness of probation conditions. This\napproach holds that probation conditions do not serve the ends of probation and are not valid if (1) the\ncondition of probation has no relationship to the crime of which the offender was convicted, (2) the\ncondition relates to conduct which is not in itself criminal, or (3) the condition requires or forbids conduct\nwhich is not reasonably related to future criminal act. People v. Dominguez, 64 Cal. Rptr. 290 (Cal. App. 1967)\nThe court struck down a condition that the \xe2\x80\x9cprobationer not become pregnant without being married,\xe2\x80\x9d\nsaying it was unrelated to her offense or to future criminality.\n\nCourts have invalidated the following probation conditions:\n\xe2\x80\xa2\n\nRequiring the offender to refrain from using or possessing alcoholic beverages when nothing\nin the record showed any connection between alcohol consumption and the weapons violation\nof which the probationer had been convicted. Biller v. State, 618 So. 2d 734 (Fla 1993).\n\n\xe2\x80\xa2\n\nRequiring the defendant to submit to a search of herself, her possessions, and any place\n\n2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 339). West Publishing Company.\n\n130\n\n\x0cIntroduction to the American Criminal Justice System\n\nwhere she may be with or without a search warrant, on request of a probation officer. (The\nCourt noted that search of a probationer and his or her residence, with or without a warrant,\nbased on reasonable suspicion that probationer violated the terms of probation would be valid.)\nCommonwealth v. LaFrance, 525 N.E. 2d 379 (Mass. 1988).\n\xe2\x80\xa2\n\nProhibiting custody of children unless it had a clear relationship to the crime of child abuse.\n\n\xe2\x80\xa2\n\nProhibiting marriage and pregnancy.Rodriguez v. State, 378 So.2d 7 (Fla. App. 1979).\n\n\xe2\x80\xa2\n\nProhibiting the defendant from fathering any children during the probation period. Burchell\nv. State, 419 So.2d 358 (Fla. App. 1982).\n\n\xe2\x80\xa2\n\nRequiring the defendant to maintain a short haircut. Inman v. State, 183 S.E.2d 413 (GA.\nApp. 1971)(the court found this condition was an unconstitutional invasion of the right to selfexpression).\n\nCourts have upheld the following conditions:\n\xe2\x80\xa2\n\nProhibiting offenders convicted of child pornography from having access to the internet,\npossessing a computer, and requiring the offender to submit to polygraph testing. See, United\nStates v. Zinn, 321 F.3d. 1084 (11th Cir. 2003), United States v. Rearden, 349 F.3d 608 (9th Cir.\n2003), State v. Ehli, 681 N.W. 2d 808 (N.D. 2004), People v. Harrisson, 134 Cal.App.4th 637\n(2005).\n\n\xe2\x80\xa2\n\nProhibiting the probationer from fathering any additional children unless he could\ndemonstrate he had the financial ability to support them, and that he was supporting the nine\nchildren he had fathered. State v. Oakley, 629 N.W. 2d 200 (Wis. 2001).\n\n\xe2\x80\xa2\n\nRequiring probationers to pay all fees, fines, and restitution, refrain from contacting the\nvictim, undergo treatment for substance abuse, participate in alternatives to violence classes,\nstay in school, not leave the state without permission, abstain from alcohol, not drive. These\nconditions that apply to all probationers are referred to as \xe2\x80\x9cgeneral conditions of probation.\xe2\x80\x9d\n\nMany jurisdictions authorize split probation and allow the judge to sentence the offender to a short period\nof jail as a condition of probation. In some cases, the offender will serve his jail time before he returns to the\ncommunity under probation supervision. In others, he will be released first and serve his time on weekends.\nThe federal system uses a similar procedure involving a more substantial jail sentence. The judges impose a\n131\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nsplit sentence under which the probationer is imprisoned for a period up to six-month and then is released\non probation.\n\nLink to alternative sentencing for federal system\nhttps://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/\nalternatives/20150617_Alternatives.pdf\n\nParole and Post-Prison Supervision\nBecause most states now use determinate sentencing, the use of parole is dwindling and is being replaced\nby post-prison supervision of offenders after their incarceration. However, for offenders sentenced in the\n1970s and 1980s under indeterminate sentencing schemes, parole continues to be very real hope, even if an\nunlikely possibility.\nCharles Manson Exercise\n\nConsider the case of notorious California killer Charles Manson who died in state custody in November 2017 at\nthe age of 83. Manson was found guilty in 1969 of the murder of five people. He was sentenced to death, but his\nsentence was converted in 1977 to \xe2\x80\x9clife with the possibility of parole\xe2\x80\x9d after the California Supreme Court invalidated\nits state death penalty statute. Manson applied for parole for the twentieth time in 2012, he was 78 years old at\nthe time. Under a change in parole release law, the next time Manson would have been eligible for parole was in\n2027. The board noted that if he were to complete programs designed to help deal with some of his issues, then\nhe could petition for release sooner. Listen to the hearing at http://abcnews.go.com/US/charles-manson-deniedparole-dangerous-man/story?id=16111128.\n\n\xe2\x80\x9c[T]he states which have adopted determinate sentencing structures have either eliminated or drastically\nrestricted parole. In states with indeterminate sentencing, however, parole remains an essential element of\nthe sentencing structure. Parole involves the release of the prisoner subject to conditions similar to those\nimposed on the probationer. Parole may be granted by the responsible state agency (usually called a parole\nboard) after the prisoner has served his minimum sentence. The parole board usually has several members,\nwho are either interested citizens appointed by the governor or corrections department personnel selected\nby the head of that department. Frequently the board will be assisted by special hearing officers who hold\nhearings and make recommendations to the board. Most parole boards automatically schedule hearings for\nevery inmate as soon as he becomes eligible for parole. If he is not released at that point, subsequent hearings\n3\nwill be scheduled at regular intervals.\xe2\x80\x9d\nThe procedures of parole hearings vary from state to state. Indeed, not all states regularly hold hearings. A\nfew prefer simply to review the files in the case, permitting the prisoner to submit a statement on his own\nbehalf. Ordinarily, hearings are rather informal affairs held before a hearing officer or one or more board\n3. O\'Leary, V., & Hanrahan, K. (1977). Law and practice in parole proceedings: A national survey. Crim. L. Bull., 13, 181-197..\n\n132\n\n\x0cIntroduction to the American Criminal Justice System\n\nmembers. The prisoner will be informed of the material in their parole file, which relates primarily to their\noffense, their prior criminal record, and their performance in prison. The prisoner also will be given the\nopportunity to state their own case for parole and to ask any questions about the parole process. In almost\nhalf of the states, they may be assisted by an attorney, and several states will appoint an attorney upon request\nof an indigent prisoner. The remaining states prohibit representation by an attorney on the ground that it\ninterferes with the board\xe2\x80\x99s evaluation of the prisoner\xe2\x80\x99s statements and demeanor at the hearing. Shortly after\nthe hearing, most boards will provide the prisoner with a written explanation of its decision. If the prisoner\nis not released on parole, they must be released after they have served their full sentence.\nParolees are subject to a variety of conditions that are similar to probation conditions. They must contact,\nor \xe2\x80\x9creport to\xe2\x80\x9d, their parole officers on a regular basis and attend regular meetings. They may be released to\nhalfway houses, residential treatment programs, or daytime work-release programs at the beginning of their\nparole in order to prepare for return into the community.\nEven when states sentencing schemes utilize parole, not all inmates are eligible for parole. In some states,\nprisoners forfeit their eligibility for parole if they attempt to escape or if they engage in certain violent acts.\nAlso, many states have true life sentences or sentences where the offender is not eligible for parole, and\npersons convicted of first-degree murder are frequently sentenced to life without the possibility of parole.\nPost-prison supervision stems from determinate sentencing schemes that states adopted beginning in\nthe 1980s. Post-prison supervision boards are now often combined with parole boards, and they perform a\nsimilar function. Offenders do not apply for post-prison supervision since release is automatically given when\nthe determinate sentence has been served. Generally, how long a person will be on post-prison supervision\nis set out in state sentencing guidelines. A post-prison supervision board will monitor whether the offender\nis abiding by the conditions of release while living in the community. If an offender violates conditions of\nrelease during post-prison supervision, he or she is entitled to a revocation hearing with the same due process\nprotections given to parolees, i.e: notice, opportunity to challenge government\xe2\x80\x99s evidence, and the right to\nassistance of counsel.\n\n133\n\n\x0c3.12. Procedural Law\n\nLORE RUTZ-BURRI\n\nAs noted above, procedural law governs the process used to investigate and prosecute an individual who\ncommits a crime. Procedural law also governs the ways a person convicted of a crime may challenge their\nconvictions. The source of procedural law includes the same sources of law you have just read about which\ngovern substantive criminal law: the constitution, cases law or judicial opinions, statutes, and common law.\nWhereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions\nthat interpret the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment to the U.S. Constitution, the U.S.\nCode, and the state constitutional and legislative counterparts. Generally, the federal and state constitutions\nset forth broad guarantees (for example, the right to a speedy trial), then statutes are enacted to provide more\ndefinite guidelines (for example, the Federal Speedy Trial Act) and then judges flesh out the meaning of\nthose guarantees and statutes in their court opinions.\nPhases of the Criminal Justice Process\nThe processing of a case through the criminal justice system can be broken down into five phases:\ninvestigative phase, the pre-trial phase, the trial phase, the sentencing phase, and the appellate or postconviction phase.\nInvestigative Phase\nThe investigative phase is governed by laws covering searches and seizures (searches of persons and\nplaces, arrests and stops of individuals, seizures of belongings), interrogations and confessions, identification\nprocedures (for example, line ups, showups, and photo arrays). This phase mostly involves what the police\nare doing to investigate a crime. However, when police apply for a search, seizure or arrest warrant, \xe2\x80\x9cneutral\nand detached\xe2\x80\x9d magistrates (i.e., judges) must decide whether probable cause exists to issue search warrants,\narrest warrants, and warrants for the seizure of property and whether the scope of the proposed warrant is\nsupported by the officer\xe2\x80\x99s affidavit (sworn statement). When an individual is arrested without a warrant,\njudges will need to promptly review whether there is probable cause exists to hold them in custody before\ntrial.\nPretrial Phase\nThe pretrial phase is governed by laws covering the initial appearance of the defendant before a judge or\nmagistrate; the securing of defense counsel, the arraignment process (in which the defendant is informed of\nthe charges which have been filed by the state); the process in which the court determines whether to release\nthe defendant pre-trial either with some financial surety (posting bail) or on his or her own recognizance\n134\n\n\x0cIntroduction to the American Criminal Justice System\n\nand with court-determined conditions imposed (for example, not having contact with the alleged victim);\nthe selection and use of a grand jury or preliminary hearing processes (in which either a grand jury or a\njudge determines whether there is sufficient evidence that a felony has been committed); any pretrial motions\nsuch as motions to suppress evidence (for examples, asking the court not to let the government use evidence\nit may have obtained illegally through a search or getting a confession), motions to challenge a subpoena,\nmotions to change venue (to move the trial), motions to join or sever cases (for example if two or more\nindividuals are charged with the offense, should the trials be held together or separately). During the pretrial\nphase, prosecutors and defendants through their defense attorneys will engage in plea bargaining, and will\ngenerally resolve the case before a trial is held.\nTrial Phase\nThe trial phase is governed by laws covering speedy trial guarantees, the selection and use of petit jurors\n(trial jurors); the rules of evidence (statutory and common law rules governing the admissibility of certain\ntypes of evidence such as hearsay or character evidence, the competency and impeachment of witnesses,\nthe existence of any privilege, and the exclusion of witnesses during the testimony of other witnesses);\nthe right of the defendant compulsory process (to secure favorable testimony and evidence); the right of\nthe defendant to cross-examine any witnesses or evidence presented by the government against him; fair\ntrials free of prejudicial adverse pre-trial or trial publicity; fair trials which are open to the public; and the\ncontinued right of the defendant to have the assistance of counsel and be present during his or her trial.\nSentencing Phase\nThe sentencing phase is governed by rules and laws concerning the substantive criminal laws on\npunishment (discussed above); time period in which a defendant must be sentenced; the defendant\xe2\x80\x99s right\nof allocution (right to make a statement to the court before the judge imposes sentence); any victims\xe2\x80\x99 rights\nto appear and make statements at sentencing; the defendant\xe2\x80\x99s rights to present mitigation evidence and\nwitnesses; and the defendant\xe2\x80\x99s continued rights to the assistance of counsel at sentencing. In capital cases in\nwhich the state is seeking the death penalty, the trial will be bifurcated (a trial split into the \xe2\x80\x9cguilt/innocence\nphase\xe2\x80\x9d and the \xe2\x80\x9cpenalty phase\xe2\x80\x9d) and the sentencing hearing will be more like a mini-trial.\nPost-Conviction Phase (Appeals Phase)\nThe post-conviction phase is governed by rules and laws concerning the time period in which direct\nappeals must be taken; the defendant\xe2\x80\x99s right to file an appeal of right (the initial appeal which must be\nreviewed by an appellate court) and right to file a discretionary appeal; the defendant\xe2\x80\x99s right to have the\nassistance of counsel in helping to file either the appeal of right or a discretionary appeal. The post-conviction\nphase is also governed by rules and laws concerning the defendant\xe2\x80\x99s ability to file a writ of habeas corpus (a\ncivil suit against the entity who is currently holding the defendant in custody) or a post-conviction relief\nsuit (a civil suit similar to a habeas corpus suit but one which can be filed by the defendant regardless if he\nor she is in custody). The post-conviction phase would also include any probation and parole revocation\nhearings.\n\n135\n\n\x0c\x0c4: Criminal Justice Policy\n\nLearning Objectives\n\nIn this section, you will be introduced to policy in the criminal justice system. Policies that can be examined\ninclude issues related to juvenile justice, drug legislation, intimate partner violence, prison overcrowding, school\nsafety, new federal immigration laws, terrorism, and national security. After reading this section, students will be\nable to:\n\xe2\x80\xa2\n\nExamine the relationship between theory, research, and policy.\n\n\xe2\x80\xa2\n\nUnderstand the factors involved in creating moral panics.\n\n\xe2\x80\xa2\n\nIdentify the stages involved in creating policy.\n\n\xe2\x80\xa2\n\nUnderstand the role of evidence-based practice in policy.\n\n\xe2\x80\xa2\n\nReflect on how current events and politics shape policy.\n\nCritical Thinking Questions\n\n1. What is a current example of a moral panic?\n2. How does the media help influence policy?\n3. If the media has so much influence over policy, how can we ensure fair and just laws and practices?\n4. Think of a crime problem in your area. What policy would you enact to combat it and how would you\nevaluate this policy to see if it was working?\n5. What are some policies you can think of that have changed over time? (eg. Marijuana legalization)?\n\n137\n\n\x0c\x0c4.1. Importance of Policy in Criminal Justice\n\nALISON S. BURKE\n\nWhy is Policy so Important in Criminal Justice?\nEveryone is affected by the criminal justice system through public policy. Policy represents social control\nand ensures members of society are compliant and conform to the laws. Policies include issues related: to\njuvenile justice, drug legislation, intimate partner violence, prison overcrowding, school safety, new federal\nimmigration laws, terrorism, and national security.\nModern-day crime policies can be traced to changes in crime and delinquency in the 1960s. That decade\nsaw major increases in the crime rate along with widespread social unrest as a result of the Vietnam War and\nthe Civil Rights movement. The work of the 1967 President\xe2\x80\x99s Commission on Law Enforcement and the\nAdministration of Justice highlighted the crime problem, and the criminal justice system\xe2\x80\x99s failure to address\nthe problem. The commission called for new approaches, programs, policies, funding models, and research\non the cause of crime. In addressing the causes of crime (theory), and using appropriate data collection\n(research), effective policies and programs could be proposed.\n\n139\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nTheory-Policy-Research\n\nWhen discussing crime policies, it is important to understand the difference between \xe2\x80\x9ccrime prevention\xe2\x80\x9d\nand \xe2\x80\x9ccrime control.\xe2\x80\x9d Policies and programs designed to reduce crime are crime prevention\ntechniques. Specifically, crime prevention \xe2\x80\x9centails any action designed to reduce the actual level of crime\n1\nand/or the perceived fear of crime.\xe2\x80\x9d On the other hand, crime control alludes to the maintenance of\nthe crime level. Policies, such as the three strikes law or Measure 11, seek to prevent future crime by\nincapacitating offenders through incarceration. Other policies like sex offender registration acknowledge\nthat sex offenders exist and registering them will control the level of deviation, sometimes preventing-or\nperceiving to prevent future offenses.\nPublic policies and laws are created at different levels of government, with micro-level policies enacted on\nthe local level and macro level applied at the federal or state level. For example, at the local level, some towns\nand cities might create specific ordinances tailored to their unique needs, such as banning cigarette smoking\nin the downtown area. At the federal level, policies are created that apply to the federal criminal justice\nsystem and can apply to states as well. However, federal laws can differ from state laws, such as marijuana\nlegalization. Individual organizations can also make policies that address their individual agency needs, such\nas requirements for local police officers. Therefore, depending on who creates the policies, they can be far2\nreaching or extremely localized.\nFake News Exercise\n\n1. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations. (9th ed.). New York, NY: Routledge.\n2. Lab, S P., Williams, M.R. Holcomb, J.E., Burek, M.W., King, W.R., & Buerger, M.E. (2013). Criminal Justice: The Essentials (3rd ed.).\nNew York, NY. Oxford University Press.\n\n140\n\n\x0cIntroduction to the American Criminal Justice System\n\nFake News has received a lot of press lately. In fact \xe2\x80\x9cfake news\xe2\x80\x9d was the top word in 2017. For people under 30,\nonline news is more popular than TV news and people under 50 get half of their news from online sources.\nHere are 4 steps for evaluating News:\n1.\n\xe2\x80\xa2\n\nVet the Publisher\xe2\x80\x99s Credibility.\nWhat is the domain name? A domain name that ends with \xe2\x80\x9c.com.co\xe2\x80\x9d is not to be trusted. Something\nlike abcnews.com looks legit, but if it is listed as abcnews.com.co, be wary.\n\n\xe2\x80\xa2\n\nWhat is the publication\xe2\x80\x99s point of view? Check out the \xe2\x80\x9cAbout Us\xe2\x80\x9d section to learn more about the\npublishers. It will also tell you if the publication is meant to be satirical, like the Onion.\n\n2.\n\xe2\x80\xa2\n\nPay Attention to Writing Quality.\nDoes the publication have all caps or way too many emphatic punctuation marks?!?!?!? Proper\nreporting does not adhere to such informal grammar. The article you are reading is probably not vetted.\n\n3.\n\xe2\x80\xa2\n\nCheck out the Sources and Citations.\nDoes the publisher meet academic citation standards? Your teachers and professors constantly tell you\nto cite and reference appropriately. This is how we can check your sources. The same is true for online\nnews. Check the sources.\n\nAsk the Pros\n\xe2\x80\xa2\n\nCheck out fact-checking websites like factcheck.org\n\nRead more at https://www.summer.harvard.edu/inside-summer/4-tips-spotting-fake-news-story\nTake the Fake News Quiz! https://www.channelone.com/feature/quiz-can-you-spot-the-fake-news-story/\n\n141\n\n\x0c4.2. The Myth of Moral Panics\n\nALISON S. BURKE\n\nMoral panic has been defined as a situation in which public fears and state interventions greatly exceed the\nobjective threat posed to society by a particular individual or group who is/are claimed to be responsible for\n1\ncreating the threat in the first place.\nMoral panics arise when distorted mass media campaigns create fear and reinforce previously held or\nstereotyped beliefs, frequently centered around ethnicity, religion, or social class. Often, moral panics occur\nswiftly, focusing attention on the behavior and then fluctuating concern over time. The most problematic\naspect of the moral panic is that the hysteria often results in a need to \xe2\x80\x9cdo something\xe2\x80\x9d about the issue and\nmost commonly \xe2\x80\x9cresults in the passing of legislation that is highly punitive, unnecessary, and serves to justify\nthe agendas of those in positions of power and authority.\xe2\x80\x9d Moral panics focus attention on what we should\nfear and who we should blame for that fear. Instigators of moral panics frequently misinterpret data for their\nown agenda. Cohen (1972) said at least five sets of social actors are involved in a moral panic. These include\n2\n1) folk devils, 2) rule or law enforcers, 3) the media, 4) politicians, and 5) the public.\n\nMoral Panics, Sex Offender Registration, and Youth\nIn her article, \xe2\x80\x9cThere Are Too Many Kids on the Sex Offender Registry,\xe2\x80\x9d Lenore Skensazy discusses the\nunpopular view that perhaps sex offender registration is more harmful than helpful.\nThe purpose of sex offender registries is to prevent one of the worst of the worst crimes: sexual assault.\nHowever, Roger Lancaster, author of \xe2\x80\x9cSex Panic and the Punitive State\xe2\x80\x9d suggests that \xe2\x80\x9cOnly a tiny fraction\nof sex crimes against children are committed by people who are on the registry.\xe2\x80\x9d About 5 percent of people\non the list go on to commit another crime, a far lower recidivism rate than almost any other class of\ncriminals, including drug dealers, arsonists, and muggers (Skenazy, 2018, para 4).\n\n1. Bon, S.A (2015, July 20). Moral Panic: Who benefits from fear? Psychology Today, https://www.psychologytoday.com/us/blog/wickeddeeds/201507/moral-panic-who-benefits-public-fear\n2. Cohen, S. (1972). Folk devils and moral panics: The creation of the mods and rockers. London: MacGibbon and Key Ltd.\n\n142\n\n\x0cIntroduction to the American Criminal Justice System\n\n\xe2\x80\x9cAvailable research indicates that sex offenders, and particularly people who commit sex offenses as\nchildren, are among the least likely to re-offend,\xe2\x80\x9d Human Rights Watch has found. Furthermore, the U.S.\nBureau of Justice Statistics reports that the \xe2\x80\x9csingle age with the greatest number of offenders from the\nperspective of law enforcement was age 14.\xe2\x80\x9d This means that 14-year-olds, more than any other age, are\nbeing placed on a lifetime registry.\nSometimes this results from minors engaging in consensual sexual encounters simply because they are\nunderage and cannot legally consent. And in some states, sexual contact is not required to end up on\nthe registry. In some instances, sexting under the age of 18 is a felony and can earn someone a place on\nthe registry. Until recently, Missouri offenders were grouped together in one category regardless of the\noffense so individuals who urinated in public endured lifelong registration and were categorized with the\nworst of the rapists and molesters. There was no distinction or tier structure.\nIs lifelong registration appropriate punishment or is it being strictly punitive? Most offenders serve their\ntime in prison and therefore serve their debt to society. This is not the case with life long sex offender\nregistrants who can\xe2\x80\x99t live near a school, park, or playground and must report to authorities anytime they\nget a new job, a new place to live, or even a new hairstyle. They can never fully re-enter society and are\nseen as never being able to be rehabilitated.\nAll these requirements are based on the \xe2\x80\x9cflawed but pervasive idea that those convicted of sex offenses\nbecame incurable and predatory monsters requiring\xe2\x80\x94and deserving\xe2\x80\x94lifetime punishment,\xe2\x80\x9d writes Emily\nHorowitz, a professor of sociology at St. Francis College and author of two books on this subject.\nWhat would happen if the registry were to disappear? All other criminal laws would remain in place,\nincluding increased penalties for repeat offenses. Only the list, and the dehumanization it wreaks would be\ngone.\n\xe2\x80\x9cIf my child was victimized, I\xe2\x80\x99d want to kill a person,\xe2\x80\x9d Horowitz says. \xe2\x80\x9cBut what if my child was a\nvictimizer? I\xe2\x80\x99d also want them to have a chance\xe2\x80\x9d (Skenazy, 2018, para 15).\nRead more at: https://reason.com/archives/2018/04/09/there-are-too-many-kids-on-the\n\nTed Talk: How Fake News Does Real Harm\nhttps://www.ted.com/talks/stephanie_busari_how_fake_news_does_real_harm?language=en\n\nFirst, folk devils are the people who are blamed for being allegedly responsible for the threat to society. Folk\ndevils are completely negative and have no redeeming qualities. This is how juvenile offenders, or \xe2\x80\x9csuperpredators\xe2\x80\x9d as they were referred to in the 1990s. The narrative went like this:\nWe\xe2\x80\x99re talking about kids who have absolutely no respect for human life and no sense of the future\xe2\x80\xa6.And\n143\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nmake no mistake. While the trouble will be greatest in black inner-city neighborhoods, other places are\nalso certain to have burgeoning youth-crime problems that will spill over into upscale central-city districts,\ninner-ring suburbs, and even the rural heartland\xe2\x80\xa6They kill or maim on impulse, without any intelligible\nmotive\xe2\x80\xa6The buzz of impulsive violence, the vacant stares and smiles, and the remorseless eyes\xe2\x80\xa6they\nquite literally have no concept of the future\xe2\x80\xa6.they place zero value on the lives of their victims, whom\nthey reflexively dehumanize\xe2\x80\xa6capable of committing the most heinous acts of physical violence for the\nmost trivial reasons\xe2\x80\xa6for as long as their youthful energies hold out, they will do what comes \xe2\x80\x9cnaturally\xe2\x80\x9d:\n3\nmurder, rape, rob, assault, burglarize, deal deadly drugs, and get high. Folk devils are the embodiment\nof evil and center stage of the moral panic drama. They have no redeeming qualities so it is easy for the\npopulation to fear and hate them.\nSecond, the police or other law enforcement officials (prosecutors or even the military) are essential\nfor propagating the moral panic since they are responsible for upholding and enforcing codes of conduct\nand expectations of the citizens. They are expected to protect society from the folk devils by detecting,\napprehending, and punishing their evil ways. Furthermore, the moral panic can offer law enforcement\nlegitimacy as moral crusaders and protectors. Law enforcement has a purpose to defend society and rid it of\nthe folk devils which threaten their safety and well being.\nThird, the media are particularly powerful in creating and advancing the moral panic. Generally, news\nmedia coverage of folk devils is often skewed and exaggerated. The media coverage often displays the folk\ndevils as much more threatening to society than they really are. Journalists feed public anxiety and fear,\nwhich heightens the moral panic. Media influences policy in two ways:\n(1) they select the \xe2\x80\x9cimportant\xe2\x80\x9d issues (agenda setting),\n(2) they problematize policy by attaching meaning to it. In this way, the frame and construct the\nnarratives.\nAgenda setting is the way the media draw the public\xe2\x80\x99s eye to a specific topic. Framing refers to a type\nof agenda setting in a prepackaged way and narratives are about the story that is told. Said another way,\nframing focuses on the broad categories, segments, or angles through which a story can be told. Frames\ninclude factual and interpretive claims that allow people to organize events and experiences into groups.\nNarrative construction involves decisions by storytellers that determine the specific characters, plot, causal\nimplications, and policy solutions presented. Narratives are pictures that the public already accepts and\nembraces (See Table 1 for examples of criminal justice frames and narratives). Journalists and reporters are\ntaught to tell stories through first-hand accounts and experiences people have because audiences care about\nthese human experiences and their stories more than they care about abstract societal issues. In theory, then,\njournalists and reporters are the gatekeepers to the information and they choose how they organize and\npresent ideas to the public. This helps us create social meaning from events or actions (See Table 2 for\n4\nframing techniques).\nTable 1: Criminal Justice Frames and Examples of Narratives\n\n3. Dilulio. (1995). https://www.weeklystandard.com/john-j-dilulio-jr/the-coming-of-the-super-predators\n4. Crow, D.A., & Lawlor, A. (2016). Media in the policy process: Using framing and narratives to understand policy influences. Review of\nPolicy Research. 33(5): 472-495\n\n144\n\n\x0cIntroduction to the American Criminal Justice System\n\nFrame\n\nCause\n\nPolicy\n\nFaulty system\n\nCrime stems from criminal justice\nleniency and inefficiency.\n\nThe criminal justice system needs to get tough on crime\n\nBlocked\nopportunities\n\nCrime stems from poverty and\ninequality\n\nThe government must address the \xe2\x80\x9croot causes\xe2\x80\x9d of crime by creating\njobs and reducing poverty.\n\nSocial\nbreakdown\n\nCrime stems from family and\ncommunity breakdown\n\nCitizens should band together to recreate traditional communities.\n\nRacist system\n\nThe criminal justice system operates in\na racist fashion\n\nAfrican Americans should band together to demand justice\n\nViolent media\n\nCrime stems from violence in the mass\nmedia\n\nThe government should regulate violent imagery in the media\n\nNarrative\n\nCostume\n\nCharacteristic\n\nThe PI\n\nCheap suit and car\n\nLoner, cynical, shrewd, shady but dogged\n\nThe rogue cop\n\nPlainclothes, disguise, often has special\nhigh tech equipment\n\nMaverick, smart, irreverent, violent but effective\n\nThe sadistic\nguard\n\nUnkempt uniform\n\nLow intelligence, violent, racist, sexist, perverted, and enjoys\ncruelty, inflicting pain, and humiliation\n\nThe corrupt\nlawyer\n\nExpensive suite and office\n\nSmart, greedy, manipulative, dishonest, smooth talker and liar, able\nto twist words, logic, and morality\n\nThe greedy\nbusinessman\n\nVery expensive office and home, trophy\nwife\n\nVery smart, decisive, and a polished, unquenchable sometimes\npsychotic need for power and wealth\n\n[Footnote]Surette, R. (2011). Media, crime, and criminal justice: Images, realities, and policies (4th ed.). Belmont,\nCA: Wadsworth Publishing. [/footnote]\nTable 2: Framing Techniques\nFraming techniques per Fairhurst and Sarr (1996):\n\xe2\x80\xa2 Metaphor: To frame a conceptual idea through comparison to something else.\n\n\xe2\x80\xa2 Stories (myths, legends): To frame a topic via narrative in a vivid and memorable way.\n\n\xe2\x80\xa2 Tradition (rituals, ceremonies): Cultural mores that imbue significance in the mundane, closely tied to artifacts.\n\n\xe2\x80\xa2 Slogan, jargon, catchphrase: To frame an object with a catchy phrase to make it more memorable and relate-able.\n\n\xe2\x80\xa2 Artifact: Objects with intrinsic symbolic value \xe2\x80\x93 a visual/cultural phenomenon that holds more meaning than the object\nitself.\n\n\xe2\x80\xa2 Contrast: To describe an object in terms of what it is not.\n\n\xe2\x80\xa2 Spin: to present a concept in such a way as to convey a value judgment (positive or negative) that might not be\nimmediately apparent; to create an inherent bias by definition. (Fairhurst, G. & Sarr, R. 1996. The art of Framing. San\nFrancisco: Jossey-Bass.)\n\n145\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nFourth, politicians are also protagonists in a moral panic. They spin the public opinion and present\nthemselves as the safeguards of the moral high ground. They are similar to law enforcement in this drama\nand they have an obligation to protect society from folk devils.\nThe fifth and final category of moral panic is the public. The public is the most important actor on the\nstage. Public anxiety and fear over the folk devils is the central theme of moral panics. A moral panic only\nexists because the public cries out for policymakers and law enforcement to \xe2\x80\x9cdo something\xe2\x80\x9d and save them\nfrom the alleged threat that has been created.\n\nCarlson, M. (2018). Fake news as an informal moral panic: The symbolic deviance of social media during\nthe 2016 US presidential election. Information, Communication, and Society.\n\nhttps://doi.org/10.1080/\n\n1369118X.2018.1505934\nhttps://www.tandfonline.com/doi/abs/10.1080/1369118X.2018.1505934?journalCode=rics20\n\n146\n\n\x0c4.3. The Stages of Policy Development\n\nALISON S. BURKE\n\nThe stages of policy development can generally be categorized into 5 general stages. U.S. policy\ndevelopment encompasses several stages. Most policy models generally include the following stages: (1)\nidentifying the issue to be addressed by the proposed policy, (2) placement on the agenda, (3) formulation\nof the policy, (4) implementation of the policy, and (5) evaluation of the policy. This is similar to the\ncommunity police response acronym SARA (scanning, analysis, response, and assessment) and uses some of\nthe same techniques, but on a much bigger, national level.\n\nDangerous Myths about Juvenile Sex Offenders\nhttps://www.youtube.com/watch?reload=9&v=81hy3AZjkr4\n\nIdentifying the Problem and Agenda Setting\nIdentifying the problem involves addressing what is happening and why it is an issue. In criminal justice,\nthis might look at the increase of opioid use and overdoses or acts of youth violence. Once the issue is\nidentified, there can be a serious debate about the plans of the policy. Once it is decided what the policy will\nlook like, it is placed on the agenda. This is perhaps the most politicized part of the process as it involves\nmany different stakeholders. It involves identifying the legislative, regulatory, judicial, or other institutions\nresponsible for policy adoption and formulation.\nFormulation and Adoption\nThe next stage involved adopting the policy. Depending on the nature of the policy, this could involve a\nnew law or an executive order.\nImplementation of the Policy\nImplementation is about moving forward, taking action, and spending money. It involves hiring new staff\nor additional police officers. This is where policies often stall because of the lack of funding. For example,\na popular program in 1990, Weed and Seed, involved \xe2\x80\x9cweeding\xe2\x80\x9d out criminals (targeting arrest efforts) and\n\xe2\x80\x9cseeding\xe2\x80\x9d new programs (instituting after-school programs, drug treatment facilities, etc.). The weeding\n147\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nportion of the program was a great success, but the program ultimately failed because of a lack of funding to\nadequately seed new community programming. Funding is a major roadblock for proper implementation.\nEvaluation\nFinally, the evaluation examines the efficacy of the policy. There are three different types of evaluation:\nImpact, Process, and Cost-benefit analysis. Impact (outcome) evaluations focus on what changes after\n1\nthe introduction of the crime policy. Changes in police patrol practices aimed at reducing the level of\nresidential burglaries in an area are evaluated in terms of subsequent burglaries. The difficulty with impact\nevaluations is that changes in the crime rate are rarely, if ever, due to a single intervening variable. For\nexample, after the implementation of curfew laws for juvenile offenders, juvenile crime decreased. Can\nwe say that was because of curfew laws? The entire crime rate for America decreased at the same time.\nAttributing a single outcome based on a solitary intervention is problematic.\nProcess evaluations consider the implementation of a policy or program and involve determining the\nprocedure used to implement the policy. These are detailed, descriptive accounts of the implementation of\nthe policy including the goals of the program, who is involved, the level of training, the number of clients\n2\nserved, and changes to the program over time. Unfortunately, process evaluations do not address the actual\nimpact policy has on the crime problem, just what was done about a specific issue or who was involved.\nWhile this is indeed a limitation, it is essential to know the inner workings of a program or policy if it is to\nbe replicated.\nCost-benefit evaluations, or analysis, seeks to determine if the costs of a policy are justified by the\nbenefits accrued. A ubiquitous example of this would be an evaluation of the popular anti-drug D.A.R.E.\nprogram of the 1980s and 1990s. The D.A.R.E. program was a school-based prevention program aimed at\npreventing drug use among elementary school-aged children. Rigorous evaluations of the program show\nthat it was ineffective and sometimes actually increased drug use in some youth. The cost of this program\nwas roughly $1.3 billion dollars a year (about $173 to $268 per student per year) to implement nationwide\n(once all related expenses, such as police officer training and services, materials and supplies, school resources,\n3\netc., were factored in). Using a cost-benefit analysis, is that a good use of money to support an ineffective\nprogram?\nPolicy formation is often a knee-jerk reaction to the current problem. Many policies are the result of\ngrassroots efforts to change something in their communities. For example, let us pretend the issue is youth\ncrime in our city. Kids are roaming the streets like packs of wild dogs, jeering at the elderly, and generally\nmaking us feel unsafe. A proposed policy might be to hold parents accountable for their child\xe2\x80\x99s misbehavior.\nIf parents are responsible, then they will take better care of their kids, right? Take, for example, Little Skippy.\nHe\xe2\x80\x99s kind of a jerk. He smokes, curses, and recently stole his neighbor\xe2\x80\x99s car. Arrested after crashing into the\ndrive-thru sign at the local Taco Bell, based on parental responsibility law, his mom and dad are to blame for\nhis reckless driving fiasco. Let\xe2\x80\x99s look at the policy process.\n\n1. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations (9th ed.). New York, NY: Routledge.\n2. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations (9th ed.). New York, NY: Routledge.\n3. Shepard, E. (Winter 2001-2002) A new study finds. We wasted billions on D.A.R.E. Reconsider Quarterly,\n\n148\n\n\x0cIntroduction to the American Criminal Justice System\n\n1.\n\nHow can this be instituted? Fine the parent? Sentence the parents to jail time? The policy\nneeds to be a concrete solution to a problem. Many states use fines instead of jailing the parents.\n(Who\xe2\x80\x99s to watch over the children if the parents are locked up?) Fines sound great. This will\nmake sure parents take an active interest in their children because they do not want to have to\npay money if their kid gets into trouble.\n\n2.\n\nWho needs to be involved in lobbying for this law? Legislators? Senators? Local police?\nMaybe even city officials, local school boards, and religious organizations. So it\xe2\x80\x99s put on the\nagenda and gets moved onto a ballot for an official vote. The citizens who think their city needs\nto be tough on crime vote to approve this policy.\n\n3.\n\nBam, it\xe2\x80\x99s law. It is implemented and now parents of juveniles delinquents are charged\nfines. This actually is a law in nearly every state. In the 1990s, Silverton, Oregon, was a\nmodel for communities interested in imposing ordinances that hold parents accountable for\ntheir children\xe2\x80\x99s behavior. In Silverton, parents can be fined up to $1,000 if their child is\nfound carrying a gun, smoking cigarettes, or using illegal drugs. Parents who agree to attend\nparenting classes can avoid fines. Within the first two months after the law was passed in early\n1995, seven parents were fined and many others registered for parenting classes.\n\nOregon has ORS 30.761 (2017), which states:\n(1)In addition to any other remedy provided by law, the parent or parents of an unemancipated minor\nchild shall be liable for actual damages to person or property caused by any tort intentionally or recklessly\ncommitted by such child. However, a parent who is not entitled to legal custody of the minor child at the\ntime of the intentional or reckless tort shall not be liable for such damages.\n(2) The legal obligation of the parent or parents of an unemancipated minor child to pay damages under\nthis section shall be limited to not more than $7,500, payable to the same claimant, for one or more acts.\n\n4. It is law, but is it effective? The evaluation stage of policy is critical. The goal is to curb youth crime\nand we might expect to see a decrease in the juvenile crime rate. However, charging parents fines for the\nmisdeeds of their children actually increases recidivism! It\xe2\x80\x99s true! A study of 1,167 youth in Pennsylvania\nfound that the total amount of fines, fees and/or restitution significantly increased the likelihood of\n\n149\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n4\n\nrecidivism . Justice system\xe2\x80\x93imposed financial penalties increase the likelihood of recidivism in a sample of\n5\n\nadolescent offenders In particular, males, non-whites, and youth with prior dispositions and adjudicated\nwith a drug or property offense were at an increased likelihood of recidivism associated with owing fines\nand fees (Piquero and Jennings, 2016). This is problematic as fees not only increase recidivism but also\nincrease the likelihood of a \xe2\x80\x9crevolving door\xe2\x80\x9d juvenile justice system for minority youth.\n\nIn the end, what is law is not always effective and what is effective is not always law. This is where evidencebased practices come in.\n\n4. Piquero and Jennings, 2016, Piquero, A. and Jennings, W.G. (2015)\n5. Youth Violence and Juvenile Justice, 15 (3) p. 325-340).\n\n150\n\n\x0c4.4. Importance of Evidence Based Practices\n\nALISON S. BURKE\n\nIn the 1970s, Martin Robinson issued his infamous claim that \xe2\x80\x9cnothing works\xe2\x80\x9d in rehabilitating offenders.\n1\nIn the 1980s, numerous research studies were published that contradicted this claim and proposed\nalternative approaches to combating crime and effective interventions. Since then, countless researchers,\nagencies, and even Congress have adopted the need to create comprehensive evaluations of effective\nprograms.\nEvidence-based practices mean utilizing research in pursuit of identifying programs, policy initiatives, or\npractices that work. The Office of Justice Programs (OJP) \xe2\x80\x9cconsiders programs and practices to be evidencebased when their effectiveness has been demonstrated by causal evidence, generally obtained through highquality outcome evaluations,\xe2\x80\x9d and notes that \xe2\x80\x9ccausal evidence depends on the use of scientific methods to\n2\nrule out, to the extent possible, alternative explanations for the documented change.\xe2\x80\x9d National research\nclearinghouses are great resources for systematic literature reviews of effective public programs across a\nplethora of areas, such as:\n\xe2\x80\xa2 the U.S. Department of Education\xe2\x80\x99s What Works Clearinghouse,\n\xe2\x80\xa2 the U.S. Department of Justice\xe2\x80\x99s CrimeSolutions.gov,\n\xe2\x80\xa2 Blueprints for Healthy Youth Development,\n\xe2\x80\xa2 the Substance Abuse and Mental Health Services Administration\xe2\x80\x99s National Registry of EvidenceBased Programs and Practices,\n\xe2\x80\xa2 the California Evidence-Based Clearinghouse for Child Welfare,\n\xe2\x80\xa2 What Works in Reentry, and the Coalition for Evidence-Based Policy.\nWith evidence-based practices comes evidence-based policymaking. Evidence-based policy-making\nidentifies what works, enables policymakers to use evidence in deciding budgets and policy, identifies where\nthere are gaps or information is lacking, monitors and measures key outcomes, and continuously uses the\n\n1. Martinson, R. (1974). What works? - questions and answers about prison reform. The Public Interest, 35: 22-54.\n2. Crimesolutions.gov glossary (www.crimesolutions.gov/glossary).\n\n151\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\ninformation to improve performance and objectives.\nconsistently and can withstand political change.\n\n3\n\nSteps in Evidence-Based Policy Making\n\n3. Pew-McArthur Report. (2014).\n\n152\n\nThe goal is to create a policy that can be enforced\n\n\x0c4.5. Re-Evaluating Policy\n\nALISON S. BURKE\n\nPolicies represent the current political climate and it is necessary to revisit and change them as necessary.\nFor example, in 1787, only white men over 21 could vote, and the President could serve for as long as he\nwas elected. Obviously, this changed. In the criminal justice world, many crimes are socially constructed and\nmala prohibita rather than mala in se, so creating laws and policies around them is as short-lived and fleeting\nas the new most popular meme. For example, the Eighteenth Amendment states (1917):\n\xe2\x80\x9cAfter one year from the ratification of this article the manufacture, sale, or transportation of\nintoxicating liquors within, the importation thereof into, or the exportation thereof from the United\nStates and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.\xe2\x80\x9d\nAt the time, it was believed alcohol was the cause of crime, poverty, and social ills. Policy makers believed\nthat the prohibition of alcohol (1920-33), or the \xe2\x80\x9cnoble experiment\xe2\x80\x9d as it was called, would reduce crime and\ncorruption, solve social problems, reduce the tax burden created by prisons and poorhouses, and improve\n1\nhealth and hygiene in America. As you know, the experiment was an absolute failure. Crime actually\nincreased and became organized, alcohol became more dangerous to drink because of the lack of regulations\non bootlegged and black market production, corruption of public officials was rampant, and courts and\nprisons were stretched to capacity.\nProhibition was eventually repealed by the 21st Amendment in 1933. There are many more laws and\npolicies enacted every year in the United States that represent a current political climate or agenda. It is\nnecessary, therefore, to reevaluate these policies, apply research the scientific method to assess their efficacy,\nand change modifies or repeal the laws as society changes. The United States Constitution is a living\ndocument, as are laws and policies.\nBizarre, Weird, and Funny Laws\n\nAs mentioned in this chapter, laws, and policies need to be revised and amended. Here are a few examples of\noutdated, bizarre, and just plain old funny laws from around the country.\n\n1. Thornton, M. (1991). Alcohol prohibition was a failure. Policy Analysis, 157:1-12. Retrieved https://object.cato.org/sites/cato.org/files/\npubs/pdf/pa157.pdf]\n\n153\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nAlabama: No stink bombs or confetti, spray string or bathing in public fountains.\nAlaska: It is illegal to get drunk or be drunk in a bar.\nArizona: It is unlawful to spit \xe2\x80\x9cin or on\xe2\x80\x9d any public building, park, sidewalk, or road. Furthermore, if you are\ncaught stealing soap, you must wash until the bar of soap has been completely used up.\nArkansas: Strictly prohibited to pronounce \xe2\x80\x9cArkansas\xe2\x80\x9d incorrectly.\nCalifornia: It is illegal to build, maintain, or use a nuclear weapon within Chico, California city limits.\nColorado: It is illegal to drive a black car on Sundays in Denver.\nConnecticut: A pickle cannot be sold unless it bounces.\nDelaware: No trick or treating on Sunday. If Halloween falls on a Sunday, door to door trick or treating must\nhappen on Saturday, October 30th.\nFlorida: It is a felony to sell your children. And if an elephant is left tied to a parking meter the parking fee has to\nbe paid.\nGeorgia: It is unlawful to eat fried chicken with utensils. \xe2\x80\x9cFinger lickin\xe2\x80\x9d good was made into law in 1961.\nHawaii: Billboards are strictly prohibited.\nIdaho: It is illegal to engage in cannibalism or \xe2\x80\x9cnon-consensual consumption\xe2\x80\x9d of another human. It is also illegal\nfor a man to give his fianc\xc3\xa9 a box of candy that weighs more than 50 lbs (22.5 kg).\nIllinois: Fancy bike riding is a big no-no.\nIndiana: Black cats must wear bells on Friday the 13th. And baths may not be taken between the months of\nOctober and March.\nIowa: It is illegal to pass off margarine as butter and is punishable by up to 30 days in jail and a $625 fine.\nKansas: It is illegal to throw snowballs in Topeka.\nKentucky: Public officials must swear to not having been engaged in a duel with weapons.\nLouisiana: It is illegal to steal another person\xe2\x80\x99s crawfish.\nMaine: It is illegal to use tombstones for advertising.\nMaryland: It is illegal to swear or curse upon any street or highway in Rockville.\nMassachusetts: You cannot dance to the national anthem.\nMichigan: Before 2006, it was encouraged to kill starlings and crows.\nMinnesota: Pig greasing competitions and turkey scrambles are considered misdemeanors. Furthermore, citizens\nmay not enter Wisconsin with a chicken on their head.\nMississippi: No limit on Big Gulp sizes.\nMissouri: It is illegal to swing upon another person\xe2\x80\x99s motor vehicle and honk their horn for them.\nMontana: It is illegal to play Frisbee golf in non-designated areas.\nNebraska: No person afflicted with a venereal disease may get married.\n\n154\n\n\x0cIntroduction to the American Criminal Justice System\n\nNevada: In Eureka, it is illegal for you to kiss a woman if you have mustaches.\nNew Hampshire: It is unlawful to collect seaweed at night.\nNew Jersey: You may not murder someone while you are wearing a bulletproof vest.\nNew Mexico: It\xe2\x80\x99s forbidden for a female to appear unshaven in public (Carrizozo, New Mexico).\nNew York: Sliced or \xe2\x80\x9caltered\xe2\x80\x9d bagels carry an eight cents sales tax.\nNorth Carolina: It\xe2\x80\x99s against the law to sing off-key.\nNorth Dakota: It is illegal to set off fireworks after 11 pm.\nOhio: Coal mines must provide toilet paper. And it is illegal to get fish drunk.\nOklahoma: It is illegal to be involved in a horse tripping event or wrestle a bear.\nOregon: Engaging in a test of physical endurance while driving is strictly prohibited.\nPennsylvania: It is illegal to sing in the bath and to use dynamite to catch fish.\nRhode Island: It is unlawful to impersonate an auctioneer.\nSouth Carolina: It is illegal to work or dance on Sundays.\nSouth Dakota: Farmers can set off fireworks to protect their sunflower crops.\nTennessee: Panhandlers must apply for a permit.\nTexas: A program has been created that attempts to modify and control the weather. Additionally, you can be\nconsidered legally married by publicly announcing a person as your wife/husband by saying it 3 times.\nUtah: It is illegal to fish with a crossbow.\nVermont: A woman cannot wear false teeth without her husband\xe2\x80\x99s permission.\nVirginia: It\xe2\x80\x99s against the law for a woman to drive a car in Main Street unless her husband is walking in front of\nthe car waving a red flag.\nWashington: You cannot buy meat of any kind on Sunday. Additionally, a motorist with criminal intentions\nmust stop at the city limits and telephone the chief of police as he is entering the town. Most importantly, you can\nbe arrested or fined for harassing Bigfoot.\nWest Virginia: While whistling underwater is prohibited, you may take roadkill home for supper.\nWisconsin: It is illegal to serve margarine and their cheese must be \xe2\x80\x9chighly pleasing.\xe2\x80\x9d\nWyoming: You may not take a picture of a rabbit from January to April without an official permit.\n2\n\nConclusion\nWe can look at criminal justice policy through three perspectives: theoretical, political, and practical. The\n2. Isaac. J. (2009). The Wacky World of Laws. San Diego, CA: Lawyer In Blue Jeans Group Publishing. Reader\xe2\x80\x99s Digest Editors (n.d.).\nHere are 50 of the dumbest laws in every state. Reader\xe2\x80\x99s Digest. Retrieved: https://www.rd.com/funny-stuff/dumbest-laws-america/\nTriangle Realty. (2018). Unusual Laws in Texas. Retrieved https://www.trianglerealtyllc.com/unusual-laws-in-texas/\n\n155\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\ntheoretical perspective enables us to better understand the causes and consequences of crime and what can\nbe done insofar as crime control or prevention. By researching the theory behind the crime, we can better\nimplement effective policies. From a political perspective, studying policy confirms the need for evidencebased practices and decisions based on research rather than fear and haphazard agenda setting. And finally,\nthe policy is practical. It utilizes theory, research, evidence-based practices to solve practical problems in the\nworld around us.\n\n156\n\n\x0c5: Criminological Theory\n\nLearning Objectives\n\nThis section introduces the importance of theory and theory creation. It also briefly describes some of the major\nparadigms of criminal explanations. After reading this section, students will be able to:\n\xe2\x80\xa2\n\nDistinguish between classical, biological, psychological, and sociological explanations of criminal\nbehavior.\n\n\xe2\x80\xa2\n\nUnderstand the links between crime control policy and theories of criminal behavior.\n\n\xe2\x80\xa2\n\nDemonstrate effective application of criminological theories to behavior.\n\nCritical Thinking Questions\n\n1.\n\nHow do we know what theories explain crime better than other theories?\n\n2.\n\nHow did the classical theory of crime influence the American criminal justice system?\n\n3.\n\nWhy is it difficult to study biological theories of crime without thinking about the social\nenvironment?\n\n4.\n\nWhich theory do you think explains criminal behavior the best? Why?\n\n5.\n\nWhy do you think there have been so many different explanations to describe the origins of criminal\nbehavior?\n\n157\n\n\x0c\x0c5.1. What is Theory?\n\nBRIAN FEDOREK\n\nA theory is an explanation to make sense of our observations about the world. We test hypotheses and create\ntheories that help us understand and explain the phenomena. According to Paternoster and Bachman (2001),\n1\ntheories should attempt to portray the world accurately and must \xe2\x80\x9cfit the facts.\xe2\x80\x9d Criminological theories\nfocus on explaining the causes of crime. They explain why some people commit a crime, identify risk factors\nfor committing a crime, and can focus on how and why certain laws are created and enforced. Sutherland\n(1934) has referred to criminology as the scientific study of breaking the law, making the law, and society\xe2\x80\x99s\n2\nreaction to those who break the law. Besides making sense of our observations, theories also strive to make\npredictions. If we understand why crime is happening, we can formulate policies or programs to minimize\nit.\nThe building blocks of any theory are concepts. Crime, delinquency, and deviance are all concepts that\nneed to be defined. We seek to explain these concepts with other concepts. For example, some theories\nmay link crime with self-control. Self-control is another concept that needs to be defined. Once we define\n\xe2\x80\x9ccrime\xe2\x80\x9d and \xe2\x80\x9cself-control\xe2\x80\x9d, we need to measure them. Operationalization is the process of determining how\nwe will measure concepts, which are called variables. We could measure self-control in a number of different\nways. For example, we could test a person\xe2\x80\x99s ability to resist temptation (The Marshmallow Test). Once we\ntest the relationship between two variables, we also need to make sure another variable is not affecting the\nresults. Spuriousness is when a third variable is causing the other two. We know that ice cream sales and\nmurder rates are positively correlated; when one goes up the other goes up. At first glance, someone may\nclaim that ice cream is causing people to kill. However, what do you think might be a better explanation?\nCan you think of a third variable that might cause ice cream sales and murder rates to increase?\nWhen we try to explain why crime occurs, we can look at it from many different perspectives. We can\ncreate macro-level explanations and micro-level explanations. Macro-level explanations focus on group rate\ndifferences. For example, why do some countries have more (or less) violent crime than others? Why do\nyoung people commit more crime than older people? Why do males commit more crime than females?\nMicro-level explanations center on differences among individuals. Macro-level explanations focus on societal\nstructures while micro-level explanations focus on processual differences.\n1. Paternoster, R., & Bachman, R. (Eds.) (2001). Explaining criminals and crime: Essays in contemporary criminological theory. Oxford: Oxford\nUniversity Press.\n2. Sutherland, E.H. (1934). Principles of criminology (2nd ed.). Philadelphia, PA: Lippincott.\n\n159\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nIt\xe2\x80\x99s \xe2\x80\x9cJust\xe2\x80\x9d a Theory Exercise\n\nMany laypeople will give their opinions on the relationship between phenomenon based on their hunches or\nobservations; these are not theories. A theory explains and interprets the facts. A proper scientific theory must be\nfalsifiable. Criminologists who create theories test their hypotheses. Many times the theorist will modify his or her\ntheory based on the research. Upon more investigation, those theories that have yet to be falsified become accepted\nas a valid description between the phenomenon.\nDarwin\xe2\x80\x99s theory of evolution has yet to be falsified. There are numerous unanswered questions, but as time goes\nby, scientists are discovering more and more evidence to support the theory.\nWhen I was an undergraduate student, I majored in Psychology; I thought I was in control of everything about\nme. However, when I took my first criminology class, I realized the social environment also had an impact on who\nI was becoming. For example, I did not choose my parents, their income, how many siblings I had, or where I lived.\nEach of those had an impact on who I was and who I became friends with in my childhood. Most of my childhood\nfriends, who are still my friends, may have been based solely on how far away they lived from my parents instead\nof their character, interests, or personality. What do you think?\n\n160\n\n\x0c5.2. What Makes a Good Theory?\n\nBRIAN FEDOREK\n\nNumerous criminological theories attempt to explain why people commit a crime. What makes one better\nthan another? How do we judge theories against each other? The natural and physical sciences mostly agree\non the knowledge of their disciplines. However, criminology is interdisciplinary, and many criminologists\nmay not agree on what causes criminal behavior. For instance, Cooper, Walsh, and Ellis (2010) have looked\nat the political ideology of criminologists and their preferred or favored theories. Even one\xe2\x80\x99s political leanings\n1\ncan influence a person\xe2\x80\x99s set of beliefs about the causes of crime.\nWe must apply the scientific criteria to test our theories. Akers and Sellers (2013) have established a set of\ncriteria to judge criminological theories: logical consistency, scope, parsimony, testability, empirical validity,\n2\nand usefulness. Logical consistency is the basic building block of any theory. It refers to a theory\xe2\x80\x99s ability\nto \xe2\x80\x9cmake sense\xe2\x80\x9d. Is it logical? Is it internally consistent? A theory\xe2\x80\x99s scope refers to its range, or ranges, of\nexplanations. Does it explain crimes committed by males AND females? Does it explain ALL crimes or just\nproperty crime? Does it explain the crime committed by ALL ages or just juveniles? Better theories will have\na wider scope or a larger range of explanation.\nA parsimonious theory is concise, elegant, and simple. There are not too many constructs or hypotheses.\nSimply put, parsimony refers to a theory\xe2\x80\x99s \xe2\x80\x9csimplicity\xe2\x80\x9d. A good scientific theory needs to be testable too. It\nmust be open to possible falsification. \xe2\x80\x9cEvery genuine test of a theory is an attempt to falsify it or to refute it.\nTestability is falsifiability; but there are degrees of testability: some theories are more testable, more exposed\nto refutation than others; they take, as it were, greater risks\xe2\x80\xa6One can sum up all this by saying that the\ncriterion of the scientific status of a theory is its falsifiability, or refutability, or testability\xe2\x80\x9d (Popper, 1965, pp. 36-37).\n3\n\nAfter many tests and different approaches to research, those theories supported by evidence have empirical\nvalidity. Thus, according to Gibbs (1990), the verification or repudiation of a given theory through empirical\n4\nresearch is the most important principle to judge a theory.\nFinally, all theories will suggest how to control, prevent, or reduce crime through policy or program. The\n1. Cooper, J., Walsh, A., & Ellis, L. (2010). Is criminology ripe for a paradigm shift? Evidence from a survey of American criminologists.\nJournal of Criminal Justice Education, 2, 332-347.\n2. Akers, R.L., & Sellers, C.S. (2013). Criminological theories: Introduction, evaluation, and application. New York: Oxford.\n3. Popper, K.R. (1965). Conjectures and refutations: The growth of scientific knowledge. New York: Harper Torchbooks.\n4. Gibbs, J.P. (1990). The notion of theory in sociology. National Journal of Sociology, 4, 129-159.\n\n161\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\npremise of a particular theory will guide policy-makers. For example, if a theory suggested that juveniles\nlearn how to commit crime through a network of delinquent peers, policymakers will try to identify\njuveniles at-risk for joining delinquent subcultures.\n\n162\n\n\x0c5.3. Pre-Classical Theory\n\nBRIAN FEDOREK\n\nComte (1851) was interested in epistemology, or in other words, how humans obtain valid knowledge.\nHe claimed human being\xe2\x80\x99s progression of knowledge went through three separate stages \xe2\x80\x93 theological,\n1\nmetaphysical, and scientific. The theological stage used supernatural or otherworldly powers to explain\nbehaviors, the metaphysical used rational and logical arguments, and the scientific used positivism and\nscientific inquiry. During the middle ages, spiritual explanations assumed human beings broke laws or did\nnot conform to conventional norms of society because he or she possessed by demons, the devil, or he or\nshe was a wizard or witch. These explanations assumed God-given \xe2\x80\x9cnatural law\xe2\x80\x9d; thus, crime was equivalent\nto sin. Governments had the moral authority to punish criminals/sinners and the state was acting on behalf\nof God. As a result, the accused person could \xe2\x80\x9cprove\xe2\x80\x9d their innocence by a trial by battle (only the victor\nis innocent) or trial by ordeal (innocent party would be unharmed while the guilty party would feel pain).\nAs you can imagine, punishments and justice were arbitrary and severe, especially when feudal lords, with\nGod\xe2\x80\x99s permission, determined guilt. A person\xe2\x80\x99s rank, status, and or wealth determined their punishment,\nrather than the merits of the case at hand.\n\n1. Comte, A. (1877). System of positive polity (4th vol.). New York: Burt Franklin.\n\n163\n\n\x0c5.4. Classical School\n\nBRIAN FEDOREK\n\nDuring the Enlightenment, citizens and social thinkers began to question how they were ruled. In the\n1\nLeviathan (1651), Hobbes made a few assumptions about human beings. He assumed humans were at\nconflict with one another, pursued their self-interests, and were rational. Moreover, people would create\nauthority figures out of fear of others, and people should democratically create rules that all citizens must\nfollow. Hobbes wanted a new type of government, one that was ruled by the people and not by monarchs.\nHe believed people had natural rights such as life, liberty, and the pursuit of happiness. If we grant the\nassumption that people are rational, we would assume people have the ability to consider the possible\nconsequences of their actions. Hobbes was one of the first social contract thinkers. Social contract thinkers\nbelieved people would invest in the laws of their society if, and only if, they know government protected\nthem from those who break the law. People will give up a little of their self-interests as long as everyone\nreciprocates.\nBuilding on Hobbes and other social contract thinkers at the time, humans were assumed to have free will\nand were rational beings. We can choose one action over another based on perceived benefits and possible\nconsequences. Moreover, human beings are hedonistic. Hedonism is the assumption that people will see\nmaximum pleasure and avoid pain (punishment). Consequently, if we grant the assumptions of classical\ntheory, we can hold people 100% responsible for their actions because it was a choice. These assumptions\nhave been the basis for the American criminal justice system since its inception. Although theories may\nhave changed the landscape of understanding criminal behavior and may have changed the philosophies of\npunishments over time, the criminal justice system has maintained the assumption that crime is a choice.\nHence, we can hold offenders 100% responsible for their actions.\nCesare Beccaria (1738-1794) was an Italian mathematician and economist. He was shocked by the unfair\ntreatment of the accused. In protest, he anonymously wrote An Essay on Crimes and Punishment (1764),\n2\nwhich attacked Europe\xe2\x80\x99s use of harsh treatment. Ideally, he wanted to change the excessive and cruel\npunishment by applying rationalistic, social contract ideas. At the time, judges had tremendous power to\ndetermine guilt and create laws based on their decisions. Intellectuals well received his essay at the time, but\nthe Catholic Church banned it. His ideas were exceptionally radical at the time, mainly because his writing\nquestioned the power structures at the time.\n1. Hobbes, T. (1651/1968). Leviathan. Baltimore, MD: Penguin Books.\n2. Beccaria, C. (1963). On crimes and punishments (H. Paolucci, Trans.). Indianapolis, IN: Bobbs-Merril. (Original work published in 1764)\n\n164\n\n\x0cIntroduction to the American Criminal Justice System\n\nCesare Bonesana di Beccaria (1738-1794)\n\nBeccaria laid out his ideas about legal reform including how and why to create effective punishments.\nHis Essay was highly influential during the Enlightenment, and it may have served as a model during the\ncreation of the American Criminal Justice system. For example, Beccaria advocated that punishments should\nfit the crime and be proportional to the harm done, laws should only be determined by the legislature, judges\nshould only determine guilt, and every person should be treated equally under the law. He claimed the sole\npurpose of the law was to deter people from committing the crime. Deterrence can be accomplished if the\npunishment is certain, swift, and severe. These may seem like common sense today, but they were considered\nradical ideas at the time.\nJeremy Bentham (1748-1832) was an English philosopher and regarded as a founder of utilitarianism,\n165\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nwhich is the belief that decisions are considered right or wrong depending on their effect. He believed a\nperson\xe2\x80\x99s expectation of the future was most predictive for deterrence. Therefore, the utility of punishment\nshould be severe enough to deter people from crime. Punishment would promote happiness throughout\n3\nsociety by maximizing social benefits. He helped popularize classical theory throughout Europe.\n\nJeremy Bentham (1748-1832)\n\n3. Bentham, J. (1823). Introduction to the principles of morals and legislation. Oxford, UK: Oxford University Press.\n\n166\n\n\x0c5.5. Neoclassical\n\nBRIAN FEDOREK\n\nModern deterrence theory is perhaps the most dominant philosophy of the American criminal justice system.\nDeterrence theory tries to change a person\xe2\x80\x99s behavior through laws and punishments. As a form of social\ncontrol, there is a belief that perceived punishments will serve as a warning of possible consequences, which\nwould hopefully deter the person from committing the crime. There are two types of deterrence: general\ndeterrence and specific deterrence. General deterrence uses punishment to deter crime among people in the\ngeneral population. It uses punishment as an example for those people not punished. For example, capital\npunishment can serve as an example to other would-be offenders if they were thinking about murder.\nSpecific deterrence uses punishment to reduce the crime of particular persons. The effect of the punishment\ndepends on the nature of the punishment and who is punished.\n\nNews Box. In 1994, Oregon voters passed Measure 11, whcih established mandatory minimum\nsentencing for several serious crimes. Besides removing the judge\xe2\x80\x99s ability to give a lesser sentence, Measure\n11 prohibited prisoners from reducing their sentence through good behavior. Additionally, any defendant\n15 years old or older who was accused of a Measure 11 offense was automatically tried as an adult. Recently,\nthe Oregon Justice Resource Center reported the effects of Measure 11 on juveniles, esepcially minorities.\nBelow are links to the news article and the report itself.\nThe Oregonian \xe2\x80\x93 \xe2\x80\x9cNew Report Calls Measure 11 Sentences for Juveniles \xe2\x80\x98Harsh and Costly\'\xe2\x80\x9d\nOregon Justice Resource Center\xe2\x80\x99s Report\n\nMeasure 11 Exercise\n\nAfter reading the above box and hyperlinks, please explain why many juveniles are not deterred from committing\nserious crimes in Oregon.\n\n167\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nClassical ideology was the dominant paradigm for over a century, but it was eventually replaced by positivist\napproaches that seek to identify causes of criminal behavior. However, classical ideology had a resurgence\nduring the 1970s in the United States. Neoclassical theory recognizes people experience punishments\ndifferently, and a person\xe2\x80\x99s environment, psychology, and other conditions can contribute to crime as well.\nTherefore, crime is a choice based on context. Many crime-prevention efforts used classical and neoclassical\npremises to focus on \xe2\x80\x9cwhat works\xe2\x80\x9d in preventing crime instead of focusing on why people commit criminal\nacts.\n1\nCornish and Clarke (1986) proposed a Rational Choice Theory to explain criminals\xe2\x80\x99 behavior. They\nclaimed offenders rationally calculate costs and benefits before committing crime and assumed people want\nto maximize pleasure and minimize pain. The theory does not explain motivation, but instead, it expects\nsome people will always commit a crime when given the opportunity. They do not assume offenders\nare entirely rational, but they do have bounded rationality. Bounded rationality is the constraint of both\ntime and relevant information; offenders must make a decision in a timely fashion with the information at\nhand. Offenders cannot wait forever nor can they wait for more information before committing a crime.\nFor example, if you were walking down a street and noticed an open window in a parked car, you may\ncontemplate looking in. If you saw something inside, you may then consider stealing it. An entirely rational\nperson may look around to see if there are any witnesses, try to determine if the owner is coming back soon,\nand so on. Ideally, you may wait until nightfall. However, you may miss your opportunity. Thus, you need\nto make a quick decision with the relevant facts at that time.\nThat was an example of a \xe2\x80\x9ccrime-specific\xe2\x80\x9d model. All crimes have different techniques and opportunities.\nAdditionally, they assume all crime is purposeful with the intention to benefit the offender. To dissuade\noffenders, Rational Choice Theory emphasized the significance of informal sanctions and moral costs.\nThe theory advocates for a situational crime prevention approach by reducing opportunities. Reducing\nopportunities is much easier to manipulate and change compared to changing society, culture, or individuals.\nUltimately, situational crime prevention strategies try to crime a less attractive choice.\nAnother neoclassical theory is Routine Activity Theory. Cohen and Felson (1979) claimed changes in the\n2\nmodern world have provided more opportunities for offenders. Since the conclusion of World War II, more\npeople have entered the workforce, and more people spend time away from home. Cohen and Felson stated\nthat three things must converge in time in space for a crime to be committed \xe2\x80\x93 a motivated offender, a\nsuitable target, and the absence of a capable guardian.\n\n1. Cornish, D.B., & Clarke, R.V. (1986). Crime as a rational choice. In R.V. Clarke and D.B. Cornish, The reasoning criminal. New York,\nNY: Springer-Verlag.\n2. Cohen, L.E., & Felson, M. (1979). Social change and crime rate trends: A routine activiity approach. American Sociological Review, 44,\n588-608.\n\n168\n\n\x0cIntroduction to the American Criminal Justice System\n\nThe motivated offender is considered to be a given as there will always be people who will seize\nopportunities to commit criminal offenses. Besides, there a variety of theories to explain why people commit\na crime. Suitable targets can be vacant houses, parked cars, a person, or any item. In reality, almost anything\ncan be a suitable target. Finally, the absence of a capable guardian facilitates the criminal event. What can\nserve as a \xe2\x80\x9ccapable\xe2\x80\x9d guardian? A plethora of people and things can serve as a guardian. For example, police\nofficers, security guards, a dog, being at home, increased lighting to allow other people to see, CCTV, alarm\nsystems, and deadbolt locks can each reduce opportunities by serving as a capable guardian. Routine activity\ntheory concentrates on the criminal event instead of the criminal offender.\n\n169\n\n\x0c5.6. Positivist Criminology\n\nBRIAN FEDOREK\n\nIf criminal behavior were merely a choice, the crime rates would more likely be evenly spread. However,\nwhen European researchers started to calculate crime rates in the 19th century, some places consistently\nhad more crime from year to year. These results would indicate criminal behavior must be influenced by\nsomething other than choice and crime, and must be correlated with other factors.\nPositivism is the use of empirical evidence through scientific inquiry to improve society. Ultimately,\npositivist criminology sought to identify other causes of criminal behavior beyond choice. The basic\n1\npremises of positivism are measurement, objectivity, and causality. Early positivist theories speculated that\nthere were criminals and non-criminals. Thus, we have to identify what causes criminals.\n2\nCharles Darwin wrote On the Origin of Species (1859), which outlined his observations of natural selection.\nA few years later, he applied his observations to humans in Descent of Man (1871), whereby he claimed that\n3\nsome people might be evolutionary reversions to an early stage of man. Although he never wrote about\ncriminal behavior, others borrowed Darwin\xe2\x80\x99s ideas and applied them to crime.\n\n1. Hagan, F.E. (2018). Introduction to criminology: Theories, methods, and criminal behavior (9th ed.). Los Angeles, CA: Sage.\n2. Darwin, C. (1859). On the origin of species by means of natural selection, or preservation of favoured races in the struggle for life. London: John\nMurray.\n3. Darwin, C. (1871). The descent of man, and selection in relation to sex. London: John Murray.\n\n170\n\n\x0cIntroduction to the American Criminal Justice System\n\nCharles Darwin\n\n171\n\n\x0c5.7. Biological and Psychological Positivism\n\nBRIAN FEDOREK\n\nTrait theories assume there are fundamental differences that differentiate criminals from non-criminals.\nThese differences can be discovered through scientific investigations. Additionally, many early biological\nand psychological theories used hard determinism, which implies people with certain traits will be criminals.\nCesare Lombroso was a trained medical doctor in Italy when he had an epiphany. As he was performing\nautopsies on Italian prisoners, he started to believe many of these men had different physical attributes\ncompared to law-abiding people and that these differences were biologically inherited. In 1876, five\nyears after Darwin\xe2\x80\x99s claim about some humans might be evolutionary reversions, Lombroso wrote The\n1\nCriminal Man. Lombroso claimed 1/3 of all offenders were born criminals who were atavistic (evolutionary\nthrowbacks).\nHe identified a list of physical features he believed to\ndeviate from the \xe2\x80\x9cnormal\xe2\x80\x9d population. These included an\nasymmetrical face, monkey-like ears, large lips, receding\nchin, twisted nose, long arms, skin wrinkles, and many\nmore. Lombroso believed he could identify criminals\nsimply by the way they physically looked. Even though\nhis theory was widely rejected years later, it served as an\nexample of the first attempt to explain criminal behavior\nscientifically.\n\nA few decades after Lombroso\xe2\x80\x99s theory, Charles\nGoring took Lombroso\xe2\x80\x99s ideas about physical differences Atavistic features\nand added mental deficiencies too. In The English Convict,\nGoring claimed there were statistical differences in\nphysical attributes and mental defects. The focus on mental qualities led to a new kind of biological\npositivism \xe2\x80\x93 the Intelligence Era. Alfred Binet, who created the Intelligence Quotient Test, believed\nintelligence was dynamic and could change. He wanted to identify youths who were not performing well\n\n1. Lombroso, C. (1876). The criminal man.\n\n172\n\n\x0cIntroduction to the American Criminal Justice System\n\nin school. Unfortunately, H.H. Goddard, like many Americans at the time, believed intelligence was innate\nand static. That is, intelligence was fixed and could not change. Goddard gave IQ tests to sort people and\nthose who scored too low were institutionalized, deported, or sterilized. He was an early advocate to sterilize\nthose who were mentally deficient, especially \xe2\x80\x9cmorons,\xe2\x80\x9d who were just smart enough to blend in with the\nnormal population. In 1927, the United States Supreme Court in Buck v. Bell allowed the use of sterilization.\nEven after Lombroso, Goring, and Goddard, contemporary research reveals intelligence is at least as\n2\ncritical as race and social class for predicting delinquency (Hirschi & Hindelang, 1977). However, how\nwe measure intelligence and how we define intelligence are based on our preconceived assumptions of\nintelligence. For example, is intelligence inherited? Is it related to the dominant culture? Or is it based more\non the person\xe2\x80\x99s environment? Each has a least some element of truth.\nModern biological theorists have revealed that biology plays a role in our behavior, but we cannot say\nhow much or even how so. Twin studies and adoption studies examined the nature versus nurture debate.\nBoth play a role in our behavior. It is more nature and nurture. Perhaps the question ought to be \xe2\x80\x9chow do\nour biological differences interact with our sociological differences?\xe2\x80\x9d There is not a crime gene per se, but\nsome genetic variations are correlated with anti-social behaviors. However, those with genetic variations are\nnot necessarily criminal because of genetics. Though it puts the individual at risk for such behaviors, a caring\nand supportive environment often mitigates the impact of the genetic code.\nProximate causes, such as neurotransmitters, hormones, the central nervous system, and the autonomic\nnervous system, have links to aggressive behavior too. However, many of these explanations have several\npossible causal paths. For example, we know people with higher testosterone levels engage in more\naggressive behavior, but when people engage in aggressive behavior, their testosterone levels increase. We\ndo not know which causes which.\nWhat about criminal personalities? What about sociopaths and psychopaths? The Gluecks (1950)\ndetermined there was no real criminal personality; instead, there are some interrelated personality\n3\ncharacteristics that were clustered together. Even after giving personality tests to criminals and noncriminals, there does not seem to be any logical relevance to understanding the causes of crime. However,\nthere have been correlations between certain personality traits and criminal behavior. For example,\nimpulsivity, lack of self-control, inability to learn from punishment, and low empathy have all been linked\nto criminal behaviors.\nConsequently, none of these personality characteristics are criminal in and of themselves. The real danger\nis when a person has many of these personality characteristics. Capsi et al. (1994) found that constraint\nand negative emotionality, two super traits that contain a number of different characteristics, were \xe2\x80\x9crobust\n4\ncorrelates of delinquency\xe2\x80\x9d (p. 185).\nIn summary, researchers have been able to say that our biology and personality play a role in criminal\nbehaviors, but we cannot say how much or to what degree. The characteristics of our social environment\ninteract with our biology and personality. Human behavior is quite complex and it is difficult to determine\nthe true causality of human actions.\n\n2. Hirschi, T., & Hindelang, M.J. (1977). Intellegence and delinquency: A revisionist review. American Sociological Review, 42, 572-587.\n3. Glueck, S., & Glueck, E. (1950). Unraveling juvenile delinquency. Cambridge, MA: Harvard University Press.\n4. Capsi, A., Moffitt, T.E., Silva, P.A., Stouthamer-Loeber, M., Krueger, R.F., & Schmutte, P.S. (1994). Personality and crime: Are some\npeople crime prone? Replications of the personality-crime relationship acrass countries, genders, races, and methods. Criminology, 32(2).\n\n173\n\n\x0c5.8. The Chicago School\n\nBRIAN FEDOREK\n\nBiological and psychological positivism looked at differences between criminals and non-criminals. Instead\nof finding differences between kinds of people, the Chicago School tried to detect differences between kinds\nof places. During the 1920-1930s, the University of Chicago was the vanguard for human ecology, which\nis the study of the relationship between humans and their environment. Robert Park (1925) viewed cities as\n\xe2\x80\x9csuper-organisms,\xe2\x80\x9d comparing the city-human relationship to the natural ecosystems of plants and animals\nthat share habitats. Furthermore, Burgess (1925) proposed concentric zone theory, which explained how\n1\ncities grow \xe2\x80\x93 from the central business district outwards.\n\nConcentric Zones\n\nShaw and McKay (1942), who were both former students of Burgess, began to plot the addresses\nof juvenile court-referred male youths. They noticed many of the addresses were located in the zone\n2\nin transition. Upon further investigation, Shaw and McKay noticed three qualitative differences in the\ntransitional zone compared to other zones. First, the physical status included the invasion of industry and the\nlargest number of condemned buildings. When many buildings are in disrepair, population levels decrease.\n1. Burgess, E.W. (1925). The growth of the city. In R.E.Park, E.W. Burgess, and R.D.McKenzie, Jr., The city. Chicago, IL: University of\nChicago Press.\n2. Shaw, C.R., & McKay, H.D. (1942). Juvenile delinquency and urban areas. Chicago, IL: University of Chicago Press.\n\n174\n\n\x0cIntroduction to the American Criminal Justice System\n\nSecond, the population composition was also different. The zone in transition had higher concentrations\nof foreign-born and African-American heads of families. It also had a transient population. Third, the\ntransitional zone had socioeconomic differences with the highest rates of welfare, lowest median rent, the\nlowest percentage of family-owned houses. Interrelated, the zone also had the highest rates of infant deaths,\ntuberculosis, and mental illness.\nShaw and McKay believed the zone in transition led to social disorganization. Social disorganization is\nthe inability of social institutions to control an individual\xe2\x80\x99s behavior. Since the zone in transition had people\nmoving in and moving out at such high rates, social institutions (like family, school, religion, government,\neconomy) and members could no longer agree on essential norms and values. As earlier stated, many\nresidents were foreign. Thus, speaking different languages and having different religious beliefs may have\nprevented neighbors from talking to one another and solidifying community bonds. Overall, Shaw and\nMcKay were two of the first theorists to put forth the premise that community characteristics matter when\ndiscussing criminal behavior.\n\n175\n\n\x0c5.9. Strain Theories\n\nBRIAN FEDOREK\n\nStrain theories assume people will commit crime because of strain, stress, or pressure. Depending on the\nversion of strain theory, strain can come from a variety of origins. Strain theories also assume that human\nbeings are naturally good; bad things happen, which \xe2\x80\x9cpush\xe2\x80\x9d people into criminal activity.\nEmile Durkheim viewed economic or social inequality as natural and inevitable. Furthermore, inequality\nand crime were not correlated unless there was also a breakdown of social norms. According to Durkheim,\nwhen there is rapid social change (like moving from an agrarian society to an industrial society) social\nnorms breakdown. There is too much too fast, and society needs to reevaluate normative behaviors. He\nreferred to the decline of social norms, or \xe2\x80\x9cnormlessness,\xe2\x80\x9d as \xe2\x80\x9canomie.\xe2\x80\x9d Moreover, social forces have a role\nin dictating human thought and behaviors. He thought anomie was an inability of societies to control\nor regulate individuals\xe2\x80\x99 appetites. Although Durkheim was interested in looking at how societies change,\nother researchers adapted his idea of anomie. In the previous section, Shaw and McKay retained the spirit\nof Durkheim\xe2\x80\x99s anomie but focused on neighborhoods instead of societies at large. Robert K. Merton also\nutilized Durkheimian anomie.\nMerton (1938) thought many human appetites originated in the culture of American society rather than\n1\nnaturally. Moreover, the \xe2\x80\x9csocial structure\xe2\x80\x9d of American society restricts some citizens from attaining it.\nMost, if not all, Americans know of the \xe2\x80\x9cAmerican Dream.\xe2\x80\x9d No matter how you conceptualize the dream,\nmost people would define the American dream as achieving economic success in some form. The culturally\napproved method of obtaining the American dream is through hard work, innovation, and education.\nHowever, some people and groups are not given the same opportunities to achieve the cultural goal. When\nthere is a disjunction between the goals of a society and the appropriate means to achieve that goal, a person\nmay feel pressure or strain. Everyone is aware of the definition and promotion of the American dream. When\nsomeone does not achieve this goal, he or she may feel strain or pressure. A person could be rejected or\nblocked from achieving a cultural goal. Merton claimed there were five personality adaptations between the\ngoals of a society and the means to achieve them.\n\n1. Merton, R.K. (1938). Social structure and anomie. American Sociological Review, 3.\n\n176\n\n\x0cIntroduction to the American Criminal Justice System\n\nPersonality Adaptation\n\nCultural Goals\n\nInstitutionalized Means\n\nI. Conformity\n\n+\n\n+\n\nII. Innovation\n\n+\n\n\xe2\x80\x93\n\nIII. Ritualism\n\n\xe2\x80\x93\n\n+\n\nIV. Retreatism\n\n\xe2\x80\x93\n\n\xe2\x80\x93\n\n+/\xe2\x80\x93\n\n+/\xe2\x80\x93\n\nV. Rebellion\n\nConformists are the most common adaptation. Without it, societal norms and values would undermine the\ncultural goals. Conformists accept the goals and legitimate means to achieve the goal. Innovators accept the\ngoal, but they reject the means or have their means blocked. Thus, they innovate ways to meet society\xe2\x80\x99s\ngoal. Ritualists conform to the predominant means of achieving wealth and success through hard work, but\nthey may be blocked from achieving success, or they drop the social goal. For example, some people work\nhard for the sake of working hard. They want their children to see the significance of work ethic above all\nelse, including monetary achievement. Retreatists do not share the shared values of society. Thus, they adjust\nby dropping out of conventional society. Drug addicts, alcoholics, and vagrants are just some examples who\nselect this adjustment. Finally, rebels reject the current goals and means of society, but they want to replace\nthem with new goals and standards. They seek to establish a new social order.\nEven though Merton\xe2\x80\x99s theory could explain any strain, he emphasized economic strains. Cohen (1955)\n2\nclaimed stress could come from a lack of status. Cohen wanted to know why most juvenile crimes occurred\nin groups. He explained that many youths, especially those in lower class families, rejected education and\nother middle-class values. Instead, many teenagers would seek status and self-worth as a new value system.\nWhen teens have no status, reputation, or self-worth, it led to severe strain. To achieve status, youths commit\na crime to gain status among their peer group. Cloward and Ohlin (1960) claimed more serious delinquents\n3\nsought \xe2\x80\x9cfast cars, fancy clothes, and well dames\xe2\x80\x9d (p. 97). Assuming youths had no legitimate opportunities\nto improve their economic position, youths would join gangs to pursue illegitimate opportunities to\nachieve financial success. Criminal gangs provided youths illicit opportunities to gain money, conflict gangs\npermitted youths to vent their frustrations, and retreatist gangs were double failures; they had no legitimate\nor illegitimate means to increase income.\nThe general strain theory, by Robert Agnew, claimed strains come from myriad sources. Agnew defined\nstrain as any event that a person would rather avoid. Three types of strains include the failure to achieve\na positively valued stimulus, the removal of a positively valued stimulus, and the confrontation of negative\nstimuli. Examples include parental rejection, child abuse, bullying, loss of job, loss of a loved one,\ndiscrimination, and criminal victimization. However, the characteristics of some strains are more likely to\nlead to crime. When a person views a strain as high in magnitude and unjust, and the pressure promotes\ncriminal coping mechanism, people with minimal social control are more likely to commit a crime. Strains\nlead to negative emotions such as anger, depression, and fear. Some people without prosocial coping\nmechanisms may commit a crime to vent, which can create social control issues (trouble in school, parents,\n\n2. Cohen, A.K. (1955). Delinquent boys: The culture of the gang. New York, NY: Free Press.\n3. Cloward, R.A., & Ohlin, L. (1960). Delinquency and opportunity: A theory of delinquent gangs. Glencoe, IL: Free Press.\n\n177\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nemployers) as well as facilitate social learning (joining peers who also need to vent their frustration). Overall,\n4\ncriminal behavior serves a purpose \xe2\x80\x93 to escape strain, stress, or pressure.\nCoping Mechanism Example\n\nEvery one feels stress and each of us copes with stress, pressure, or shame differently. Shame can motivate us to\nchange for the better. For example, if you did poorly on an exam, you may start to study better. When you feel\nstress, what do you do? When I ask students how they deal with stress, many go for a run or a walk, lift weights,\ncry, talk, or eat ice cream. These are healthy (maybe not ice cream eating) and pro-social coping mechanism. When\nI feel stress I write. Often, I write nasty emails and then delete them. Fortunately, I have never accidently sent one.\n\n4. Agnew, R. (2006). Pressured into crime: An overview of general strain. New York, NY: Oxford University Press.\n\n178\n\n\x0c5.10. Learning Theories\n\nBRIAN FEDOREK\n\nIn the previous sections, strain theories focused on social structural conditions that contribute to people\nexperiencing strain, stress, or pressure. Strain theories explain how people can respond to these structures.\nLearning theories compliment strain theories because learning theories focus on the content and process of\nlearning.\nEarly philosophers, like Aristotle, believed human beings learned through association. The thought implies\nhumans have a blank slate and our experiences build upon each other. It is through these experiences we\nrecognize patterns and linked phenomena. For example, ancient humans did not have the technological\nadvancements of global positioning satellites, which many people have on their phones. However, they used\nother celestial bodies like the stars and moon to travel. When early humans looked to the heavens, people\nbegan to recognize patterns in the stars. These patterns were consistent and enabled long-distance travel over\nland and sea.\nA few centuries later, Ivan Pavlov was studying the digestive system of dogs, when he noticed the dogs\nstarted the digestive process before food was in sight. The dogs began to salivate when they heard the\nassistants\xe2\x80\x99 footsteps. The dogs were associating the oncoming footsteps with the upcoming food. This type\nof learning was called classical conditioning.\n\n179\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nClassical Conditioning\n\nThe acquisition of this learned response occurred over time. The dogs\xe2\x80\x99 salivary reflex was an\nunconditioned response to the unconditioned stimuli (food). Pavlov wondered if he could get the dogs to\nsalivate with a neutral stimulus (i.e., a ringing bell). He would ring a bell then feed the dog. After a series\nof these paired occasions, the dogs began to salivate at the sound of the bell alone. The salivation became a\nconditioned response to a conditioned stimulus. The acquisition of this learned behavior (i.e., conditioned\nresponse) will become extinct if the incentive is no longer associated. Human beings most certainly learn via\nclassical conditioning, but it is a passive and straightforward approach to learning. We may shudder when\nwe see flashing blue lights in our rearview mirror, salivate when food is cooking in the kitchen, or dance\nwhen we hear our favorite song. We passively learned these paired events through our experiences.\nB.F. Skinner was also interested in learning and transformed modern psychology with operant\nconditioning. Operant condition is active learning where organisms learn to behave based on reinforcements\n180\n\n\x0cIntroduction to the American Criminal Justice System\n\nand punishments. Using rats and pigeons, Skinner wanted animals to learn a simple task (i.e., pushing a bar\nor key) through reinforcements. A reinforcement is any event that strengthens, or maximizes, a behavior.\nWe reinforce behaviors that we want to continue or increase. We can use positive reinforcement or negative\nreinforcement. Positive is the addition of something desirable, and negative is the removal of something\nunpleasant; they do not mean \xe2\x80\x9cgood\xe2\x80\x9d or \xe2\x80\x9cbad.\xe2\x80\x9d For example, if we wanted to more people to wear seatbelts,\nwe would want to reinforce the behavior. A positive reinforcement may be praise or a reward for buckling\nup. Newer model cars come equipped with seatbelt alarms. The will ring until you buckle up. Once you\nbuckle up, the sound stops. This is an example of negative reinforcement. Both examples reinforce the\nbehavior (wearing a seatbelt) but in different ways.\nConsequently, if we want a behavior to stop or decrease, we punish that behavior. Punishments can also\nbe positive or negative. A positive punishment involves the presentation of something unpleasant whereas\nnegative punishment is punishment by removal. For example, a teenager breaks curfew and the parents\nwant their child to stop breaking curfew. The parents can punish the child in one of two ways. An example\nof positive punishment would be scolding. A negative punishment would be removing the child\xe2\x80\x99s driving\nprivileges. Both punishments seek to decrease the adolescent\xe2\x80\x99s breaking curfew but in two different ways.\nPunishment Exercise\n\nHow does the Criminal Justice System positively punish offenders? How does the Criminal Justice System\nnegatively punish? Give examples of both.\n\nEdwin Sutherland (1947) was the first and created the most prominent statement of a micro-level learning\ntheory about criminal behavior. He first presented differential association theory in 1934, and his final\n1\nrevision occurred in 1947. His attempt tried to explain how age, sex, income, and social locations related\nto the acquisition of criminal behaviors. Sutherland (1947) presented his theory as nine separate, but related\npropositions, which were:\n1. Criminal behavior is learned.\n2. Criminal behavior is learned in interaction with other persons in a process of communication.\n3. The principal part of the learning of criminal behavior occurs within intimate personal groups.\n4. When criminal behavior is learned, the learning includes: a) techniques of committing the crime,\nwhich are sometimes very complicated, sometimes very simple; b) the specific direction of the\nmotives, drives, rationalizations, and attitudes.\n5. The specific directions of motives and drives are learned from definitions of the legal codes as\nfavorable or unfavorable. In some societies, an individual is surrounded by persons who invariably\ndefine the legal codes as rules to be observed, while in others he is surrounded by a person whose\ndefinitions are favorable to the violation of the legal codes.\n6. A person becomes delinquent because of an excess of definitions favorable to violation of law over\ndefinitions unfavorable to violation of the law. This is the principle of differential association.\n1. Sutherland, E.H. (1947). Criminology (4th ed.). Philadelphia, PA: Lippincott.\n\n181\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n7. Differential associations may vary in frequency, duration, priority, and intensity. This means that\nassociations with criminal behavior and also associations with anticriminal behavior vary in those\nrespects.\n8. The process of learning criminal behavior by association with criminal and anti-criminal patterns\ninvolves all of the mechanisms that are involved in any other learning.\n9. While criminal behavior is an expression of general needs and values, it is not explained by those\ngeneral needs and values, since noncriminal behavior is an expression of the same needs and\n2\nvalues.\nSutherland describes the content of what is learned, but also the process of how it is learned. Ultimately,\nhe argued people give meaning to their situation; this meaning-making determined if they would obey\nthe law or break the law. Hence, this meaning-making explains how siblings, who grow up in the same\nenvironment may differ in their behavior.\nIronically, Sutherland and B.F. Skinner were teaching at Indiana University during the late 1940s. For\nsome reason or another, Sutherland never used Skinner\xe2\x80\x99s ideas of operant conditioning in his differential\nassociation theory. However, Ronald Akers utilized both approaches in his \xe2\x80\x9csocial learning\xe2\x80\x9d or \xe2\x80\x9cdifferential\nreinforcement\xe2\x80\x9d theory. Akers\xe2\x80\x99 theory comprised the four main concepts of differential association,\ndefinitions, differential reinforcement, and imitation/modeling. He was interested in the process of how\ncriminal behavior is acquired, maintained, and modified through reinforcement in social situations and\nnonsocial situations. Differential associations refer to the people one comes into contact with frequently.\nThese peers are the source of definitions that favor obeying the law or breaking it. It is the most important\nsource of social learning. According to Akers, definitions are the meaning a person attaches to his or her\nbehavior. Those meanings can be general (i.e., religious, moral, or ethical beliefs that remain consistent)\nor specific (i.e., apply to a specific behavior like smoking or theft). Differential reinforcements refer to the\nbalance between anticipated rewards or punishment and the actual reward or punishment. For example, if a\njuvenile vandalized a storefront, his or her friends praise may reinforce that behavior. If the juvenile sought\nmore praise, he or she might continue vandalizing more property (the peers\xe2\x80\x99 reactionary praise positively\nreinforced the behavior). The final concept was imitation/modeling. Akers argued that human beings could\nlearn by observing how other people are rewarded and punished. Thus, some people may imitate other\n3\npeople\xe2\x80\x99s behavior, especially if that behavior was rewarded or not punished.\nFinally, there have been some theories that focus more on the content of what is learned. Residents\nwho may live in disadvantaged neighborhoods, like in the transitional zone, my \xe2\x80\x9clearn\xe2\x80\x9d different things.\nSubcultural theories focus on the ideas of what is learned rather than the social conditions that foster these\n4\nideas. Some groups may internalize values that are conducive to violence or justify criminal behavior. In\nother words, where we grow up may influence what we learn about crime, police, government, religion,\netc.\n\n2. Sutherland, E.H. (1947). Criminology (4th ed.). Philadelphia, PA: Lippincott.\n3. Akers, R.L. (1994). Criminological theories. Los Angeles, CA: Roxbury.\n4. Anderson, E. (1999). Code of the street: Decency, violence, and the moral life of the inner city. New York, NY: W.W. Norton.\n\n182\n\n\x0c5.11. Control Theories\n\nBRIAN FEDOREK\n\nPreviously discussed theories asked why people commit crime. The methods used tried to identify the\ndriving forces behind a criminal\xe2\x80\x99s behavior. For example, biological and psychological theories sought to\nidentify traits that determined criminality. Strain theories assumed people were good, but bad things happen,\nwhich causes many to be pushed into criminal behaviors. Learning theories demonstrated the importance\nof learning criminal attitudes to commit crimes. These attitudes, especially when reinforced, will prevail in\nsocial situations. Control theories differ in their approach. Instead of assuming criminals have \xe2\x80\x9csomething\xe2\x80\x9d\nor experienced \xe2\x80\x9csomething\xe2\x80\x9d that drives their criminal behavior, control theories ask why more people do\nnot engage in illegal behavior. Control theories assume people are naturally selfish, and if left to their own\ndevices, will commit illegal and immoral acts. Control theories try to identify what types of \xe2\x80\x9ccontrols\xe2\x80\x9d a\nperson may have that stops them from becoming \xe2\x80\x9cuncontrollable.\xe2\x80\x9d\nEarly control theorists argued that there are multiple controls on individuals. Personal controls are\nexercised through reflection and following pro-social normative behavior. Social controls originate in social\ninstitutions like family, school, and religious conventions. Toby (1957) introduced the phrase \xe2\x80\x9cstakes in\n1\nconformity,\xe2\x80\x9d which is how much a person has to lose if he or she engages in criminal behavior. The more\nstakes in conformity a person has, the less likely they would be willing to commit crime. For example, a\nmarried teacher with kids has quite a bit to lose if he or she decided to start selling drugs. If caught, he could\nlose his job, get divorced, and possibly lose custody of his children. However, juveniles tend not to have\nkids nor are they married. They may have a job, but indeed not a career. Since they have fewer stakes in\nconformity, they would be much more likely to commit crime compared to the teacher.\nTravis Hirschi is most associated with control theories. In 1969, he argued that all humans have the\npropensity to commit crime, but those who have strong bonds and attachment to social groups like family\n2\nand school are less likely to commit crime. Often known as social bond theory or social control theory,\nHirschi presented four elements of a social bond \xe2\x80\x93 attachment, commitment, involvement, and belief.\nAttachment refers to affection we have towards others. If we have strong bonds, we are more likely to care\nabout their opinions, expectations, and support. Attachment involves an emotional connectedness to others,\nespecially parents, who provide indirect control.\n1. Toby, J. (1957). Social disorganization and stake in conformity: Complementary factors in the predatory behavior of hoodlums. Journal\nof Criminal Law, Criminology and Police Science, 48, 12-17.\n2. Hirschi, T. (1969). Causes of delinquency. Berkeley, CA: University of California Press.\n\n183\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nParenting Exericse\n\nParenting can be a challenging responsibility. Fare supposed suppose to teach children how to behave. Ideally,\nparents have control over their children in many ways.\n\xe2\x80\xa2\n\nWhat are ways parents have \xe2\x80\x9cdirect\xe2\x80\x9d control over their children?\n\n\xe2\x80\xa2\n\nWhat are ways parents have \xe2\x80\x9cindirect\xe2\x80\x9d control over their children?\n\nCommitment refers to the rational component of the social bond. If we are committed to conformity, our\nactions and decisions will mirror our commitment. People invest time, energy, and money into expected\nbehavior like school, sports, career development, or playing a musical instrument. These are examples\nof Toby\xe2\x80\x99s \xe2\x80\x9cstakes in conformity.\xe2\x80\x9d If people started committing a crime, they would risk losing these\ninvestments. Involvement and commitment are related. Since our time and energy are limited, Hirschi\nthought people who were involved in socially accepted activities would have little time to commit a crime.\nThe observational phrase \xe2\x80\x9cidle hands are the devil\xe2\x80\x99s worship\xe2\x80\x9d fits this component. Belief was the final\ncomponent of the social bond. Hirschi claimed some juveniles are less likely to obey the law. Although\nsome control theorists believed juveniles are tied to the conventional moral order and \xe2\x80\x9cdrift\xe2\x80\x9d in and out of\n3\ndelinquency by neutralizing controls (Matza, 1964), Hirschi disagreed. He believed people vary in their\nbeliefs about the rules of society. The essential element of the bond is an attachment. Eventually, Hirschi\nmoved away from his social bond theory into the general theory of crime.\nHirschi Exercise\n\nHirschi believed strong social bonds made people less likely to commit a crime. The components of a social bond\ninclude attachment, commitment, involvement, and belief. Please describe each of the components of the social\nbond and explain how each applies to your educational journey. How can you be attached, committed, involved,\nand believe in higher education?\n\nGottfredson and Hirschi (1990) claimed their theory could explain all crime by all people. They argued the\nlack of self-control was the primary cause of criminal behaviors. They claim most ordinary crimes require\n4\nfew skills to commit and have an immediate payoff. There is not any long-term planning or goal; crimes\nare committed for immediate pleasure. Moreover, they claim, people who commit these ordinary crimes\ntend to be impulsive, insensitive to the suffering of others, short-sighted, and adventuresome. If true, these\ntraits (low self-control) were established before the person started committing crimes and will continue to\nmanifest throughout a person\xe2\x80\x99s life. The root cause of low self-control is ineffective parenting. If parents are\nnot attached to their child, supervise their child, recognize the child\xe2\x80\x99s deviant behaviors, or discipline their\n\n3. Matza, D. (1964). Delinquency and drift. New York, NY: John Wiley.\n4. Gottfredson, M., & Hirschi, T. (1990). A general theory of crime. Stanford, CA: Stanford University Press.\n\n184\n\n\x0cIntroduction to the American Criminal Justice System\n\nchild, the child will develop low self-control. Gottfredson and Hirschi claim self-control, or the lack thereof,\nis established by eight years old.\nControl theories are vastly different from other criminological theories. They assume people are selfish\nand would commit crimes if left to their own devices. However, socialization and effective child-rearing can\nestablish direct, indirect, personal, and social controls on people. These are all types of informal controls.\n\n185\n\n\x0c5.12. Other Criminological Theories\n\nBRIAN FEDOREK\n\nSocial Reaction Theories\nInitially a response to popular theories at the time, social reaction theories change the focus. Instead of\nfocusing on the offender, social reaction theories concentrate on those people or institutions who label\noffenders, react to offenders, and want to control offenders. Grounded in symbolic interaction, social\nreaction theories emphasize how meanings are constructed. Words carry power and meaning. Thus, if\nsomeone is labeled as a criminal, it carries a connotation by other people. How will others view him or her\nwith that label? How will society? People will act towards thing by the meanings attached. These meanings\ncan be culturally created through interactions with peers. Perhaps it is why some of us like to wear certain\nname brand clothes or drive certain name brand vehicles. Those names have \xe2\x80\x9cmeaning\xe2\x80\x9d; they can be cool,\nreliable, etc. They have status and meaning.\nNot everyone who commits a crime is caught. Additionally, not all those who are caught are labeled as\na criminal. Why? Labeling theories sought to explain this phenomenon. In general, labeling theorists point\nto the social construction of crime, which varies over time and place. For instance, marijuana use is federally\nprohibited, but more and more states are legalizing recreational use. The same behavior can be legal in\nOregon but illegal in New York.\nFurthermore, labeling theorists emphasize the process of being labeled and treated as a criminal; it can have\ndeleterious effects. If a person is bombarded with a particular label, he or she may adopt that label. If a person\nwas told over and over again that he or she was funny, that person might try to be funnier. What if a person\nwere told over and over again he or she would amount to nothing? Perhaps, he or she would internalize that\nlabel and become nothing since others expect that.\nBraithwaite (1989) applied some of these ideas in his reintegrative shaming. Not all social reactions are\n1\nruthless; in fact, some of them are beneficial. Hence, it is the quality of social responses that is significant.\nWe shame individuals to show disapproval. According to Braithwaite, shaming can be reintegrative or\nstigmatizing. Reintegrative shaming centers on forgiveness, love, and respect. Ideally, we want to reintegrate\nthe person back into the community by removing the label. However, in some societies, like the United\nStates, stigmatizing shaming reigns supreme. Stigmatizing shaming uses formal punishment, which degrades\na person\xe2\x80\x99s bond to his or her community. It is counter-productive and tends to shun the offender. For\n\n1. Braithwaite, J. (1989). Crime, shame and reintegration. New York, NY: Cambridge University Press.\n\n186\n\n\x0cIntroduction to the American Criminal Justice System\n\nexample, in some states, convicted offenders are required to self-identify as a felon on job applications. Do\nyou think this helps their cause to reintegrate successfully into society? Perhaps not. Even though they may\nhave \xe2\x80\x9cserved their time,\xe2\x80\x9d they are still labeled as a criminal and punished further. Stigmatizing shaming\npropels people towards crime whereas reintegrative shaming seeks to correct the behavior through respect\nand empathy. Critical Theories\nCritical Theories\nCritical theories originated during the 1960-1970s in the United States. Immediately following World\nWar II, Americans expected the United States to thrive economically, culturally, and politically. Massive\npolitical turmoil inside and outside of the country created a generation of scholars who became \xe2\x80\x9ccritical\xe2\x80\x9d\nof society and more \xe2\x80\x9ctraditional\xe2\x80\x9d theories of crime. According to Cullen, Agnew, and Wilcox (2018),\ncritical theories share some five central themes. First, to understand crime, one must appreciate the fusion\nbetween power and inequality. People with power, political and economic, have an enormous advantage\n2\nin society. Second, crime is a political concept. Not all those who commit crime are caught, nor are those\nwho are caught punished. The poor are injured the most by the enforcement of laws, while the affluent (i.e.,\npowerful) are treated leniently. Third, the criminal justice system and its agents serve the ruling class, the\n3\ncapitalists. As Jeffrey Reiman\xe2\x80\x99s (2004) book titled it, The Rich Get Richer and the Poor Get Prison. Fourth, the\nroot cause of crime is capitalism because capitalism ignores the poor and their atrocious living conditions.\nCapitalism demands profits and growth over values and ethically considerations. Perhaps this is why crimes\nof the streets are punished more severely than crimes of the suites. Finally, critical theories believe the\nsolution to crime is a more equitable society, both politically and economically.\nIt is beyond the scope of this book to delve into all of the possible explanations of crime. Some theories\ntry to explain the differences between male offending and female offending through feminist theories of\ncrime. Other theories have integrated or combined concepts from other theories to create a newer model of\nexplanation. Why do you think people commit crime?\nGender and Crime Exercise\n\nWrite about how you were raised and how sex/gender roles were reinforced through school, family, culture,\netc. Do you think men/boys/males are more criminal because of their biology or because of cultural expectations\nof men/boys/males versus women/girls/females? You should support your claims with personal, vicarious, or wellknown examples.\n\n2. Cullen, F.T., Agnew, R., & Wilcox, P. (Eds). (2018). Criminological theory: Past to present (6th ed.). New York, NY: Oxford University\nPress.\n3. Reiman, J. (2004). The rich get richer and the poor get prision: Ideology, class, and criminal justice. New York, NY: Pearson.\n\n187\n\n\x0c\x0c6: Policing\n\nLearning Objectives\n\nIn this section, you will be introduced to the history of policing in the United States. Today, policing is under\nthe microscope to ensure past mistakes are not repeated and forward momentum is reached. It is for this reason this\nsection will explore the history, as well as the foundations, that the American policing system was built upon. At\nthe end of this section, students will be able to:\n\xe2\x80\xa2\n\nDiscuss how the history of policing relates to current policing\n\n\xe2\x80\xa2\n\nList the different parts of the history of policing\n\n\xe2\x80\xa2\n\nRecognize the four eras of policing and identify the important parts of each era\n\n\xe2\x80\xa2\n\nExplain why Sir Robert Peel is important to policing\n\n\xe2\x80\xa2\n\nDescribe how August Vollmer impacted policing\n\n\xe2\x80\xa2\n\nList what three issues marked the Political Reform Era\n\n\xe2\x80\xa2\n\nIllustrate several important occurrences during the Community Policing Era\n\n\xe2\x80\xa2\n\nDiscuss why the fourth era of policing is the Homeland Security Era\n\nCritical Thinking Questions\n\nDiscussion Questions:\n1. Why is the history of policing important to understand?\n2. What about kin policing made it not a good form of policing?\n3. What are the four eras of policing?\n4. How was the Homeland Security Era established?\n5. Why was Sir Robert Peel important to policing?\n\n189\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n6. What did August Vollmer believe police should be doing?\n\n190\n\n\x0c6.1. Policing in Ancient Times\n\nTIFFANY MOREY\n\nThe development of policing in the United States coincided with the development of policing in England.\nIn fact, the United States legal system traces its roots back to the common law of England. However, we\ncan go all the way back before 1750 BC to see how forms of policing were common during ancient times,\nto what is now known as kin policing. Kin policing is when a tribe or clan policed their own tribe, and it\n1\noften turned bloody quickly. The blood feuds would go on for a long period of time.\nHowever, it is estimated, also sometime around 1750 BC, that the Code Hammurabi was engraved in\nstone. This code detailed 282 sections of how one individual should treat another individual in society, and\nthe penalties for such violations. The code is seen as the beginnings of law and justice. Around 1000 BC,\nMosaic Law emerged. This law was a new form of rational law and hoped to predict what behaviors were\nprohibited. In Mosaic Law, the ruling class did not create the law. The Code of Hammurabi and Mosaic Law\n2\nformed the ladder that would eventually lead to the creation of policing, as we now know it today.\nPeisistratus (605-527 BC), who was the ruler of Athens, has been called the father of formal policing.\nDuring this time of growth, new Greek city-states were being developed and blood feuds that lasted decades\nhad to be quashed. Kin policing slowly washed away due to its barbaric nature and new doors opened for a\nmodern city driven policing model. The first police service in Athens was developed by Sparta and it is often\n3\nlooked at as the first secret service.\nAugustus Caesar (27 BC), who was the first emperor of Rome, was instrumental in creating what is\nnow called the urban cohorts. The urban cohorts were men from the Praetorian Guard (Augustus\xe2\x80\x99 army),\ncharged with ensuring peace in the city. As crime rose and became more violent, Augustus formed the vigils,\nwhich were not affiliated with the Praetorian Guard, but were charged with fighting crime and fires. The\n4\nvigils were given the power to protect and arrest.\nFrom 6 AD until the 12th century, Rome was patrolled day and night, by a public police force. With the\nfall of the Roman Empire, kings then assumed the role of protection. From the 12th-18th centuries, kings in\nEngland appointed sheriffs. At age fifteen, boys could volunteer with the posse comitatus to go after wanted\nfelons. Constables, a police officer with limited authority, assisted the sheriffs with serving summons and\n1. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.\n2. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.\n3. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.\n4. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.\n\n191\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nwarrants. Because young volunteers did the policing work, there were several problems, such as corruption\nand drunkenness. Victims who had the means to hire private police or bodyguards to so for protection, but\n5\nunfortunately, that meant those who were poor, had neither help nor protection.\n\n5. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.\n\n192\n\n\x0c6.2. Sir Robert Peel\n\nTIFFANY MOREY\n\nThe 19th century in England heavily influenced the history of policing in the United States. Not only\ndid policing radically change for the first time in over six centuries, but the father of modern policing, Sir\nRobert Peel, set up the stage for what is known today as modern policing. Sir Robert Peel, the British\nHome Secretary, coined the term \xe2\x80\x98bobbies\xe2\x80\x99 as a nickname for cops and he believed policing needed to be\nrestructured. In 1829 he passed the Metropolitan Police Act, which created the first British police force and\n1\nwhat the 21st century knows for today\xe2\x80\x99s modern-day police.\n\n1. Cordner, G., Novak, K., Roberg, R., & Smith, B., (2017). Police & Society. New York: Oxford University Press.\n\n193\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nSir Robert Peel\n\nSir Robert Peel is best known for the Peelian Principles. He did not create the twelve principles but used\na combination of previous codes that he expected police to follow. The exact historical origins of the twelve\nlisted principles below are unknown, but it has been theorized that the principles were slowly created over\nthe years by academics studying Peel.\n1- The police must be stable efficient, and organized along military lines;\n2- The police must be under government control;\n3- The absence of crime will best prove the efficiency of police;\n\n194\n\n\x0cIntroduction to the American Criminal Justice System\n\n4- The distribution of crime news is essential;\n5- The deployment of police strength both by time and area is essential;\n6- No quality is more indispensable to a policeman than perfect command of temper; a quiet, determined\nmanner has more effect than violent action;\n7- Good appearance commands respect;\n8- The securing and training of proper persons is at the root of efficiency;\n9- Public security demands that every police officer be given a number;\n10-Police headquarters should be centrally located and easily accessible to the people;\n11-Policemen should be hired on a probationary basis; and\n12-Police records are necessary to the correct distribution of police strength\n2\n\n2. Cordner, G., Novak, K., Roberg, R., & Smith, B., (2017). Police & Society. New York: Oxford University Press.\n\n195\n\n\x0c6.3. Policing Eras\n\nTIFFANY MOREY\n\nResearchers Kelling and Moore (1991) evaluated the first three eras of policing. These eras are discussed\nbelow, and are often referred to as the Political Era, the Reform Era, and the Community Era. Through\nthe microscope of seven topical areas, listed below, an understanding of how policing evolved begins.\n1. Authorization\n2. Function\n3. Organization\n4. Demand\n5. Environment\n6. Tactics\n7. Outcomes\nThese seven characteristics have been used to evaluate how policing operated throughout history, most\n1\nnotably through its organizational structure, tactics, and primary focus.\n\nPolitical Era: The political era is often referred to as the first era of policing in the United States and it\nbegan around the 1840s with the creation of the first bona fide police agencies in America\n\n2\n\nThis era of policing is marked by the industrial revolution, the abolishment of slavery, and the formation\nof large cities. One way to confirm the start of this era is to look at the creation of police departments in\nlarger cities:\n\n1. Greene, J. R., & Mastrofsky, S. D. (Eds.) (1991). Kelling, G.L., & Moore, M. H. (1991). From political to reform to community: The\nevolving strategy of the police. In Community Policing: Rhetoric or Reality. New York: Paeger.\n2. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology\n\n196\n\n\x0cIntroduction to the American Criminal Justice System\n\n\xe2\x80\xa2\n\nNew York Police Founded 1845\n\n\xe2\x80\xa2\n\nChicago Police Founded 1855\n\n\xe2\x80\xa2\n\nPhiladelphia Police Founded 1751\n\n\xe2\x80\xa2\n\nJacksonville Police Founded 1822\n\n\xe2\x80\xa2\n\nIndianapolis Police Founded 1850\xe2\x80\x99s\n\n\xe2\x80\xa2\n\nDetroit Police Founded 1865\n\n\xe2\x80\xa2\n\nPortland Police Founded 1870\n\n\xe2\x80\xa2\n\nEugene Police Founded 1863\n\n\xe2\x80\xa2\n\nJackson County, Oregon Police Founded 1852\n\nWith the advent of the industrial revolution, came goods and services. Along with new job\nopportunities, came a myriad of conflict as well. The fast-growing cities had to answer these problems with\nsolutions in the form of policing. The abolishment of slavery and the new free black population created\nmany unforeseen issues too with The Klu Klux Klan. The Klan began to make terrifying appearances and\ntheir reign of terror left many in fear. Policing had not yet formally entered the scene; therefore, The Klan\noperated virtually unencumbered.\n\n197\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nLondon Strike: Truck Under Protection\n\nThe United States saw tremendous growth in major cities, had the industrial revolution, and the\nabolished slavery, which is when the Political Era of policing was set into motion. As its name suggests, it\nwas an era of politics, mainly because of how policing was limited as a result of new laws, made clear by\nthe Constitution. America answered the call by following the English and Sir Robert Peel\xe2\x80\x99s principles. Not\nunlike today, policing during this era was under the control of politicians. Politicians, like the mayor, had\nno problem controlling everything a policeman did during his call of duty (NOTE: the word policeman/\nmen is utilized in this era/context, because during this time period, women were not allowed in the\nprofession, and if they were accepted it was under a microscopic view of certain stereotypical matronly\nduties to be performed). In fact, Black policemen were rarely hired. Black policemen made their way into\npolicing in the late 1800s, but when the Civil Rights Act of 1875 was ruled unconstitutional, Black officers\nall but disappeared from policing until the 1950s.\n\n198\n\n\x0cIntroduction to the American Criminal Justice System\n\nNews Box: A look at the salaries:\n1957 annual wage for a police patrolman \xe2\x80\x93 Milwaukee Police Department: $5,405.40\n1957\n\nAnnual\n\nReport\n\nMilwaukee\n\nPolice\n\nDepartment\n\nhttps://city.milwaukee.gov/ImageLibrary/\n\nGroups/\xe2\x80\xa6/Archive\xe2\x80\xa6/1957AnnualReport.pdf\n\nNews Box: 61 years later\n2018 annual wage for police patrolman- Milwaukee Police Department:\n$57,291.00\nMilwaukee, Wisconsin- State website https://city.milwaukee.gov/fpc/Jobs/Police-Officer.html\n\nNews Box: 2018 Annual wage for first step trooper- Oregon State Police: $56,184.00\nOregon\n\nState\n\nPolice-\n\nOregon.gov\n\nwebsite\n\nhttps://www.oregon.gov/osp/RECRUIT/Pages/\n\nsalary_benefits.aspx\n\nReform Era: Because the Political Era of policing ended up being laced with corruption and brutality,\nthe panacea for the negativity became the Reform Era. One police chief was largely at the forefront of this\nnew era, Chief August Vollmer. He is considered the pioneer for police professionalism. August Vollmer\nwas the Chief of Police in Berkeley, California (1905-1932). He had many new beliefs about policing that\nwould forever change the world of policing:\n1.\n\nCandidates who were testing to be in policing had to undergo psychological and intelligence\ntests\n\n2.\n\nDetectives would utilize scientific methods in their investigations, through forensic\nlaboratories\n\n199\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n3.\n\nRecruits, for the first time, would attend a training academy (police did not receive any\nformal training prior to August Vollmer\xe2\x80\x99s arrival)\n\n4.\n\nAssisted with the development of the School of Criminology at the University of California\nat Berkeley\n\nChief August Vollmer saw policing and officers as social workers that needed to delve into the causes\nbehind the acts in order to solve the issue, instead of just arrest it.\n\n3\n\nHe knew in order to rehabilitate\n\noffenders, police officers needed to look behind the handcuffs and start looking into the person and reason\nbehind the behavior.\n\n4\n\n3. Reppetto, T.A. (1978). The Blue Parade. New York: Free Press.\n4. Reppetto, T.A. (1978). The Blue Parade. New York: Free Press.\n\n200\n\n\x0cIntroduction to the American Criminal Justice System\n\n\xe2\x80\x9cFather of modern law enforcement\xe2\x80\x9d\n\nDiversity in policing started to make a mark during this era, but it would fall irrevocably far from\nmeeting any type of quota. It was a better era for diversity than the Political Era, but the numbers don\xe2\x80\x99t lie\nin that it fell dismally short.\nThe Community Era- 1980s to 2000: In the 1960s and 1970s the crime rate double and it was a time\n\n201\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nof unrest and eye-opening policing issues. Civil rights movements spread across America and the police\nwere on the front lines. Media coverage showed controversial contacts between white male officers and\nAfrican American citizens, which further irritated race relations in policing. The U.S. Supreme Court\nhanded down the landmark Miranda v. Arizona and Mapp v. Ohio decisions. The writing was on the wall\nthat the policing environment had to change. The days of answering everything with bullying or police\nprofessionalism were no more. The Community Era of policing began and those in police administration\nhoped this new era held the answers to fixing decades-old issues. The police needed help and they would\nturn towards the community and its citizens for assistance.\nThis new era of community policing held that police couldn\xe2\x80\x99t act alone; the community must pitch in\nas well. Whether the problems were a dispute between neighbors or high crime area drugs and shootings,\nthese issues did not develop overnight and could not be solved by a response of police alone. Instead,\nthese community problems needed a pronged approach where the police worked together with the\ncommunity and over time the issues could be systematically solved. Out of the box thinking was common\nin community policing and often community leaders were identified in order to make the impact. During\nthis time police candidates started showing up to the application process with Associates and Bachelors\ndegrees. The \xe2\x80\x98old school officers\xe2\x80\x99 mocked these degree-holding candidates. But the landscape was changing\nand officers needed more thorough training than ever to answer the call.\nProblem-oriented policing was an after effect of community policing, in that it utilized community\npolicing, but focused on the problems first. The biggest difference was problem-oriented policing used a\ndefined process for working towards the solution. The problem was torn apart layer by layer and rebuilt\naccording to set parameters that have a proven record of working.\nThe Community Era was also a time for research. Prior to this era, research on crime, police, or criminal\njustice topics were few and far between. With new federal government funding options available, this era\nmissions could be accomplished through grants and the needed research began. Proof of what worked,\nwhat didn\xe2\x80\x99t, and suggestions on how to improve policing were abundant. Without research or studies,\npolicing can become stagnant. But with funding available, the answers were a questionnaire or interview\naway and solutions came rolling in.\nCommunity Era Example\n\n\xe2\x80\x9cI remember the Community Era very well. I was a new police officer during this time and actually at the\nforefront of Community Policing and Problem-Oriented Policing. I was the first woman officer at my police\ndepartment that was pregnant and the administration was open to suggestions when asked what to do with me\nwhen my belly expanded. I politely suggested that once I was five to six months pregnant and began to show (and\nnot fit in my uniform or patrol belt anymore), I will be voluntarily transferred to the Crime Prevention Division.\nWith my doctor approving this decision, my belly grew, and I transferred to this new division. I remember hitting\nthe streets and knocking on doors, spewing how great of a panacea Community Policing was. It took some buy-\n\n202\n\n\x0cIntroduction to the American Criminal Justice System\n\nin and with the citizens who \xe2\x80\x98bought-it,\xe2\x80\x99 the concept actually became a reality and worked! Months later we had\na string of burglaries occurring in a high-crime neighborhood. The detectives, patrol, everyone hit the streets,\nknocking on doors, questioning everyone, in an attempt to find the criminals responsible. With no avail, I turned\nto Community Policing. I brought in a mounted police officer and horse. My colleagues chucked and shook their\nheads in response! What was I thinking?!?! \xe2\x80\x9cIt was a waste of resources,\xe2\x80\x9d they balked! How could a cop on a horse\nsolve this crime? I was glad; I \xe2\x80\x98wasted my time,\xe2\x80\x99 because it worked! The officer on the horse brought citizens out\nof their houses that normally would never have spoken to a police officer normally. The horse was such a spectacle\nin the neighborhood, that it was the catalyst that caused citizens to not only come out of their houses but to start\ntalking about what and who they had been seeing in and around their neighborhood that did not belong. One\nsuch sighting was a vehicle description, which led to criminals responsible for the burglaries. \xe2\x80\x9d\n\nThe Homeland Security Era- 2001 to Present: On September 11th, 2001, when terrorists hijacked\nairplanes and flew them into the World Trade Center buildings and Pentagon in the United States, a fourth\n5\n\nera of policing, the era of Homeland Security, was said to emerge. The long-lasting repercussions of this\nterrorist act would forever change life for Americans, but the daily activities of all policing departments.\nThere is some debate in the field as to the order of policing eras and what they should be called. Some\nscholars list the policing eras as:\n1.\n\nPre-Policing Era\n\n2.\n\nPolitical Era\n\n3.\n\nReform Era\n\n4.\n\nCommunity Era\n\nWhile others believe the policing eras are:\n1.\n\nPolitical Era\n\n2.\n\nReform Era\n\n3.\n\nCommunity Era\n\n4.\n\nHomeland Security Era\n\nThe realities of the tragedy of 9/11 were that it did start a new era of policing. In fact, a case could\nbe made for the large dark line that became metaphorically visible on 9/11/01, when the Community\n\n5. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology.\n\n203\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nEra shifted to the Homeland Security Era as airplanes destroyed America\xe2\x80\x99s feelings of safety. Policing will\nprobably always involve some sort of Community Era policing in order to make a difference.\n\nRemembering 9/11: A Decade Later\n\nPolicing under Homeland Security is marked by a more focused concentration of its resources into crime\ncontrol, enforcement of the criminal law, traffic law, etc., in order to expose potential threats and gather\nintelligence.\n\n6\n\nScholars have examined the pros and cons of a national police department in the United States. For\nexample, Canada has a Royal Canadian Mounted Police. Whereas, depending on location, one could\ngo through several different cities and counties while driving to the store, all of which have their own\nrespective police departments. With the advent of the Homeland Security Era, a new model of centralized\norganizational control began due to the need for information dissemination. One of the biggest flaws of\n9/11 was the lack of communication between law enforcement agencies. The Department of Homeland\nSecurity was developed and one of its first major missions became the dissemination of information and\n\n6. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology.\n\n204\n\n\x0cIntroduction to the American Criminal Justice System\n\ncommunication. So, while a national police department does not exist in the United States, communication\nand information are now a common thread that binds all of the different types of law enforcement agencies.\n\n10:28:24 a.m. on September 11th, 2001 was the precise second that photojournalist Bill Biggart took the final shot of his life. He\ntook his last breath moments later when the North Tower of the World Trade Center collapsed upon him. Four days later, searchers\nfound his body, his burnt-edged press cards, his three demolished cameras, six rolls of film, and one small undisturbed compact flash\ncard carrying almost 150 digital images. It was the remains of one horrifying day and one extraordinary life. \xe2\x80\x9cI am certain if Bill had\ncome home at the end of that day, he would have had many stories to tell us, as he always did. And had we asked how it really was,\nhe would have said, \xe2\x80\x98Take my advice, don\xe2\x80\x99t stand under any tall buildings that have just been hit by airplanes.\xe2\x80\x9d-Wendy Doremus,\nwife of Bill Biggart.\n\nHomeland Security Era Examples\n\nI remember I awoke to live video showing one of the World Trade Center buildings with smoke billowing\nfrom the windows. I wondered hesitantly how the fire started? Then, as one video camera rolled, by happenstance,\nit caught an airplane flying directly into the second World Trade Center building and my worst fears came true.\n\n205\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nI think I stumbled to the edge of my couch and steadied myself, although I really don\xe2\x80\x99t remember, as I watched\nwhat happened next, slowly unfold. The effects of that day will never be forgotten.\nDuring a trip to New York, last summer, I visited the World Trade Center museum. As I walked through the\nhalls, a pin drop could have been heard. The respect, sadness, and overwhelming feelings that filled me made it\ndifficult to breathe. Not only did the terrorists kill and destroy many things that day with their hate but they\nforever changed policing. I was a patrol officer at the time when the devastation ravaged America. Sadness filled\nour department for our brothers and sisters that lost their lives. We didn\xe2\x80\x99t realize at the time, but our departments\nand thousands of others in policing across America were in for major changes, because of the heinous acts of a\nfew. The first changes I remember taking place were: Active shooter updates and training; Incident Command\nSystem (ICS) updates and training; NEMA emergency management training; Gas masks were distributed for\neach individual officer, to be carried full-time, along with 3 month re-check and applicable training; Policy and\nprocedure updates and additional response training depending on the call type; Reconfiguration of call type and\nresponses to each; COMMUNICATION became the center of everything.\nIt became essential to hire a person to go through all the communication and alerts we received daily and alert\nthose the information effected Unless those in the policing field had blinders on, the era of Homeland Security,\nwas probably at the time, and will probably always be, one of the most substantial in policing history.\n\n206\n\n\x0c6.4. Levels of Policing and Role of Police\n\nTIFFANY MOREY\n\nLearning Objectives\n\nAfter reading this section, students will be able to:\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nUnderstand the various options for careers in the policing and law enforcement arena\nDiscuss educational requirements are required for law enforcement positions with the federal\ngovernment, state, county, municipal or city officer candidates\n\n\xe2\x80\xa2\n\nExplain what a state police officer\xe2\x80\x99s main objectives are\n\n\xe2\x80\xa2\n\nDescribe the difference between commissioned and civilian\n\n\xe2\x80\xa2\n\nList several divisions that a commissioned officer can promote to\n\n\xe2\x80\xa2\n\nList several departments that a civilian can work within a law enforcement type agency\n\n\xe2\x80\xa2\n\nDiscuss why different police departments work with each other\n\nCritical Thinking Questions\n\n1.\n\nWhat education does a candidate need for jobs in federal law enforcement?\n\n2.\n\nWhat education does a candidate generally need for city or county jobs as a police officer?\n\n3.\n\nIs there a difference between a person who is considered commissioned and a person who is\nconsidered a civilian?\n\n4.\n\nDoes every law enforcement agency have the same opportunities for advancement?\n\n5.\n\nWhy do different police departments work together?\n\n6.\n\nCan a person be a homicide detective without being a police officer?\n\n207\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nSouthern Oregon University Criminology and Criminal\nJustice student Christina Richardson volunteered to try on the\nOregon State Police explosive unit bomb suit at the annual\nLock-In Event.\n\nPolicing Types\nIt is an exciting time for those entering the policing or law enforcement field. The choices are endless, and\none need not look far to find areas that draw the mind and excitement of the prospects in such a career field.\nAll too often, candidates only think of local police departments; i.e., city or county agencies. The options\navailable are genuinely multi-faceted. Whether one is looking for the stereotypical police officer role, or if it\nis the study of the criminal mind, possibly criminal forensics, or even crime analysis, or if one loves the forest\nor the water, the options are endless. While the below list is not all-inclusive, it does give a good detailed\nlook at the array of careers one could have in the policing or law enforcement field.\n\n208\n\n\x0cIntroduction to the American Criminal Justice System\n\nODOT partnered with the Ashland Police Department to raise awareness about unlicensed movers.\n\nFederal Level: The federal arena of law enforcement careers is broad and vast. The options are almost\nendless, and the rewards outweigh most of the other local agencies. However, there is a catch, which\ncenters on education and experience. Most law enforcement-related careers in the federal arena require a\nbachelor\xe2\x80\x99s degree, at a minimum plus three years of related full-time work experience before applying.\nCandidates interested in the Federal Bureau of Investigation (FBI) as a special agent, for example, are\nlooking at the following educational requirements:\n\xe2\x80\xa2\n\nA bachelor\xe2\x80\x99s degree in either accounting, computer science/information technology, foreign\nlanguage (only a criminal justice major if the candidate is planning on working full-time for a\nlaw enforcement agency for at least three years before applying),\n\n\xe2\x80\xa2\n\nOR a JD degree from an accredited law school,\n\n\xe2\x80\xa2\n\nOR a diversified bachelor\xe2\x80\x99s degree AND three years of professional experience, OR a master\xe2\x80\x99s\n\n209\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\ndegree, or Ph.D. along with two years of professional experience.\nFederal job possibilities (the list is not comprehensive)\n\xe2\x80\xa2\n\nFederal Bureau of Investigation (FBI)\n\n\xe2\x80\xa2\n\nBureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)\n\n\xe2\x80\xa2\n\nDrug Enforcement Administration (DEA)\n\n\xe2\x80\xa2\n\nSecret Service\n\n\xe2\x80\xa2\n\nCentral Intelligence Agency (CIA)\n\n\xe2\x80\xa2\n\nNational Security Agency (NSA)\n\n\xe2\x80\xa2\n\nUnited States Marshals Service (USMS)\n\n\xe2\x80\xa2\n\nU.S. Park Police\n\n\xe2\x80\xa2\n\nU.S. Fish and Wildlife Service (USFWS)\n\n\xe2\x80\xa2\n\nDepartment of Justice\n\n\xe2\x80\xa2\n\nFederal Bureau of Prisons\n\n\xe2\x80\xa2\n\nU.S. Army Criminal Investigation Command (CID)\n\n\xe2\x80\xa2\n\nU.S. Army Counter Intelligence\n\n\xe2\x80\xa2\n\nDept. of Ariculture-Office of Inspector General (USDA-OIG)\n\n\xe2\x80\xa2\n\nU.S. Forest Service Law Enforcement & Investigations (USFS LEI)\n\n\xe2\x80\xa2\n\nDepartment of Commerce-Office of Inspector General (DOC-OIG)\n\n\xe2\x80\xa2\n\nOffice of Security (DOC-OS)\n\n\xe2\x80\xa2\n\nUS Commerce Department Police\n\n\xe2\x80\xa2\n\nOffice of Export Enforcement (OEE)\n\n\xe2\x80\xa2\n\nNational Institute of Standards and Technology Police\n\n\xe2\x80\xa2\n\nUnited States Pentagon Police\n\n\xe2\x80\xa2\n\nDepartment of Defense-Defense Criminal Investigative Service (DCIS)\n\n\xe2\x80\xa2\n\nUnited States Pentagon Police (USPPD)\n\n\xe2\x80\xa2\n\nDepartment of Defense Police\n\n\xe2\x80\xa2\n\nDefense Security Police\n\n\xe2\x80\xa2\n\nDefense Logistic Agency Police\n\n\xe2\x80\xa2\n\nUnited States Coast Guard (USCG)\n\n210\n\n\x0cIntroduction to the American Criminal Justice System\n\n\xe2\x80\xa2\n\nPlus Many More ++\n\nState Level: State police work for a state. For example, in Oregon, the state police work for the state of\nOregon and the department is Oregon State Police (OSP). In Nevada, the state police are Nevada Highway\nPatrol (NHP) and work for the Nevada Department of Public Safety. The commissioned (certified by the\nstate with powers of arrest) employees are generally called troopers (a.k.a. police officers), their uniform\nis blue (except for California Highway Patrol who wear tan and dark brown uniforms), they wear round\ntipped hats, and their primary duty is to patrol the highways and interstates; however, many state police\nalso investigate many different criminal crimes, run criminal forensic labs, along with divisions of fish and\nwildlife. The duties of each state agency are different and unique to each state. For example, OSP has an\nexplosives unit (see photo below).\n\n211\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nOregon State Police (OSP) Trooper Greg Costanzo showing Southern Oregon University Criminology and Criminal Justice\nstudents the OSP explosive unit robot during the annual Lock-In Event.\n\n1\n\nCounty Level: There are 3,142 counties in the United States. Each county has an elected Sheriff and\ndeputies (a.k.a. police officers) work directly under the Sheriff. Deputies are no different from any other\ncity police officer other than the Sheriff can be responsible for the courts and jails (a.k.a. correctional\nfacility) in their respective county. But there are also many city police departments that are responsible for\njails, so it just depends on the department.\nEach state is divided into counties, and each county, depending on size, could have a sheriff\xe2\x80\x99s office.\nExamples of sheriff offices (county police) in Oregon:\n\n1. U.S. Department of the Interior (2018, September 23). How many countries are there in the United States. Retrieved from\nhttps://www.usgs.gov/faqs/how-many-counties-are-there-united-states.\n\n212\n\n\x0cIntroduction to the American Criminal Justice System\n\n\xe2\x80\xa2\n\nJackson County Sheriff\xe2\x80\x99s Office\n\n\xe2\x80\xa2\n\nJosephine County Sheriff\xe2\x80\x99s Office\n\n\xe2\x80\xa2\n\nDouglas County Sheriff\xe2\x80\x99s Office\n\n\xe2\x80\xa2\n\nDeschutes County Sheriff\xe2\x80\x99s Office\n\n213\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nJackson County Sheriff\xe2\x80\x99s Office, Sgt. DiCostanzo assisting during the Southern Oregon University Criminology\nand Criminal Justice annual Lock-In Event (for the K-9 patrol dog demonstration). Every year the CCJ\nDepartment along with the CCJ Crim Club puts on the Lock-In Event (February or March). During this event law\nenforcement agencies across the state participate and assist with spreading the word about law enforcement. For one\nafternoon students learn about such programs as: K-9 patrol dogs, eplosives unit, defensive tactics, MILO (police\nofficer simulator training), CSI, SWAT, DUI, and parole/probation. Students at SOU can enroll for 1 credit for this\none day class and other students in the community can attend as well. Don\xe2\x80\x99t miss the Lock-In event if you are\ninterested in law enforcement or in understanding the various facets of law enforcement.\n\n214\n\n\x0cIntroduction to the American Criminal Justice System\n\nA Deputy monitors Pleasant Creek Road in the early morning adjacent to the Garner Complex. Credit: Facebook \xe2\x80\x93\nJackson County Sheriff\xe2\x80\x99s Office \xe2\x80\x93 Oregon\n\nMunicipal/City Level: Municipal/City police work under a municipality or city. If a city has a\ngovernment, i.e., mayor and city council members and a municipal code (misdemeanor laws for the city),\nthen the city can have city police. If a person works for a city, the designator is a police officer. Some cities\nhave a connected jail (a.k.a. correction or detention facility), while others are operated through the Sheriff\nand the county.\n\n215\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nMost state, county, municipal/city police departments do not require future candidates to have a\nbachelors\xe2\x80\x99 degree. Currently, many of the candidates testing for such positions do have an associates or\nbachelor\xe2\x80\x99s degree, therefore although it is not required, the candidates are more desirable because they have\na college degree. Generally, college degrees become a required educational background, when an officer\nwants to enter management, i.e., sergeant, lieutenant, captain. However, many Chiefs and Sheriffs have\neither a Masters or Ph.D. The following are municipal/city police departments in Oregon:\n\xe2\x80\xa2\n\nAshland Police Department\n\n\xe2\x80\xa2\n\nTalent Police Department\n\n\xe2\x80\xa2\n\nPhoenix Police Department\n\n\xe2\x80\xa2\n\nMedford Police Department\n\n\xe2\x80\xa2\n\nCentral Point Police Department\n\n\xe2\x80\xa2\n\nEagle Point Police Department\n\nCCJ students in the CCJ 387 Law Enforcement Test Prep Class take a field trip to Medford Police Department, where Sgt. Budreau\ngives instructions to Officer Josephson on how to properly pull the dummy during the ORPAT test.\n\n216\n\n\x0cIntroduction to the American Criminal Justice System\n\nLearn More about every law enforcement agency in the U.S.\n\nFor\n\na\n\ncomplete\n\nlist\n\nof\n\nlaw\n\nenforcement\n\nagencies\n\n(state,\n\ncounty,\n\nmunicipal/city)\n\nvisit: http://Discoverpolicing.org\n\nMiscellaneous Policing Jobs: There are many police jobs that may fall under the jurisdiction of the\nfederal government, state, county, or city or they are civilian positions (see below):\n\xe2\x80\xa2\n\nBailiff for a Court\n\n\xe2\x80\xa2\n\nAnimal Control or Animal Cruelty Investigator\n\n\xe2\x80\xa2\n\nComputer Forensics\n\n\xe2\x80\xa2\n\nCorrectional Counselor\n\n\xe2\x80\xa2\n\nCourt Clerk or Court Reporter\n\n\xe2\x80\xa2\n\nCriminologist\n\n\xe2\x80\xa2\n\nPrivate Investigator\n\n\xe2\x80\xa2\n\nCriminal Justice Administration\n\n\xe2\x80\xa2\n\nCrime Prevention Specialist\n\n\xe2\x80\xa2\n\nProtection Officer\n\n\xe2\x80\xa2\n\nForensic Accountant, Anthropoligist, Artist, Hypnotists, Nurse, Pathologist, Psychologist,\nScientist, Serologist, Toxicologist\n\n\xe2\x80\xa2\n\nJudge\n\n\xe2\x80\xa2\n\nJuvenile Probation Officer\n\n\xe2\x80\xa2\n\nLatent Print Examiner\n\n\xe2\x80\xa2\n\nLegal Secretary/Paralegal\n\n\xe2\x80\xa2\n\nLoss Prevention Officer\n\n\xe2\x80\xa2\n\nMediator/Negotiator\n\n\xe2\x80\xa2\n\nPre-trial Officer\n\n217\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n\xe2\x80\xa2\n\nSecurity Analyst\n\n\xe2\x80\xa2\n\nSecurity Officer\n\n\xe2\x80\xa2\n\nSocial Worker\n\n\xe2\x80\xa2\n\nVictims Advocate\n\n\xe2\x80\xa2\n\nPlus Many More ++\n\nBecoming an Officer Example\n\n\xe2\x80\x9cI regularly get asked the following question: \xe2\x80\x9cDo I have to be a \xe2\x80\x98real cop\xe2\x80\x99- you know, a cop that drives in a\npatrol car and answers calls for service, to be a homicide detective?\xe2\x80\x9d I understand this question because of a lot\nof the cop, and detective television shows out there today do not accurately represent this situation. I am so glad\nthe television shows are available because they work as a recruitment tool for many departments. But, I have to\ndisappoint many people, when I give the honest answer\xe2\x80\xa6\xe2\x80\x9dYes, you have to be a \xe2\x80\x98real cop\xe2\x80\x99 before you can be a\ndetective.\xe2\x80\x9d And, I go a step further, in explaining that it can take years, or even decades, to test and promote to\na homicide detective.\xe2\x80\x9d I explain that many smaller departments that do not have many homicides in a given year,\nhave positions open in the detective bureau every two-five years. But, the larger departments that have hundreds to\nthousands of homicides a year, will only promote every ten-to-twenty years, because even though an officer could\npromote to the detective bureau within several years, the homicide detective is a glamorous position, therefore one\nmust \xe2\x80\x98do their time\xe2\x80\x99 as a property detective, investigating vehicle burglaries, etc., before there is a retirement and\nthey have proven themselves enough to take that position.\n\nDivisions within Each Agency: Law enforcement agencies, whether they are federal, county, state,\nor municipal/city, generally have jobs available within two major areas: 1- Commissioned 2- Civilian.\nCommissioned is a term that describes an employee that has been through police training is certified as a\npolice officer and has arresting powers in the state. Civilian is a term that describes an employee who has\nnot been through police training and does not have arresting powers.\nOne of the fantastic parts of policing is the vast array of jobs available. Whether a person is looking in\nthe commissioned or civilian arena, there are a plethora of choices. Once a candidate has gone through the\ntesting process for a particular law enforcement agency and is hired after a certain number of years \xe2\x80\x98on the\nroad\xe2\x80\x99 (length of time required on the road, is determined by each department) the seasoned officer can then\ntest for many tantalizing individual divisions. Every department is different as to those specialized divisions.\nFor example, the Ashland Police Department (APD) in Oregon is a smaller police department and offers its\nofficers a chance to engage in community policing and problem-oriented policing at a one-on-one level,\ndue to its smaller size (thirty-fourty officers).\nOn the other hand, because of its smaller size, the opportunities for advancement are minimal. Officers\nwith the department can also promote to management. However, APD does have a few detectives but they\n218\n\n\x0cIntroduction to the American Criminal Justice System\n\ndo not offer its officers the more more glamorous divisions such as those offered by the Portland Police\nBureau (PPB). An officer at PPB can promote to the following divisions: Drugs and Vice, Narcotics, Asset\nForfeiture, Youth Services Division, Traffic, Family Services Division, Detective, K-9, Explosive Disposal,\nGang Enforcement, Air Support Unit, Rapid Response, and more.\nPolicing can be multifaceted thereby keeping its officers engaged. Unlike many other professions, the\ndaily job of a police officer, depending on the respective department, can change with divisions. One year\na police officer may be writing a traffic citation from a patrol car, and the next year the same police officer\nmay be driving an off-road motorcycle patrolling the local park or riding a mounted horse in the downtown\narea.\nThe choice to have a career in policing is enormous, but the candidate must go one step further and\nstart researching to decide what type of policing, and then dig even further to pick which agency and what\npossible divisions the candidate would like to have the opportunity to join one day.\n\nJackson County Sheriff\xe2\x80\x99s Office demonstrates K-9 patrol procedures during the annual Lock-In Event at Southern Oregon University.\nDuring this K-9 class students get to learn how patrol dogs operate and they actually get to see a bite demonstration and learn how the\nK-9\xe2\x80\x99s are trained.\n\n219\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nCOMMISSIONED- Divisions within a Law Enforcement Agency:\n\xe2\x80\xa2\n\nDetective/Investigations (Persons Crimes- Property Crimes- Homicides, Rape, Robbery,\nBurglary, Auto Theft, DUII, Domestic Violence)\n\n\xe2\x80\xa2\n\nMotors\n\n\xe2\x80\xa2\n\nNarcotics\n\n\xe2\x80\xa2\n\nHuman/Sex Trafficking\n\n\xe2\x80\xa2\n\nVICE\n\n\xe2\x80\xa2\n\nCrime Scene Investigation (CSI)\n\n\xe2\x80\xa2\n\nSWAT\n\n\xe2\x80\xa2\n\nK-9 (patrol, drug, and search & rescue dogs)\n\n\xe2\x80\xa2\n\nCrisis Negotiator\n\n\xe2\x80\xa2\n\nMounted Unit (horses)\n\n\xe2\x80\xa2\n\nAir Unit\n\n\xe2\x80\xa2\n\nTraining/Range Master\n\n\xe2\x80\xa2\n\nAcademy/Tac Officer\n\n\xe2\x80\xa2\n\nBike Patrol\n\n\xe2\x80\xa2\n\nRecruiting\n\n\xe2\x80\xa2\n\nInternal Affairs\n\n\xe2\x80\xa2\n\nPublic Information Officer\n\n\xe2\x80\xa2\n\nGangs\n\n\xe2\x80\xa2\n\nSearch & Rescue\n\n\xe2\x80\xa2\n\nForest and Fish & Wildlife\n\n\xe2\x80\xa2\n\nMarine\n\n\xe2\x80\xa2\n\nVarious Area Task Force (usually made up of various law enforcement agencies in the areato sometimes include federal agencies too)\n\n\xe2\x80\xa2\n\nPlus Many More ++\n\nCIVILIAN- Divisions within a Law Enforcement Agency:\n\n220\n\n\x0cIntroduction to the American Criminal Justice System\n\nThe civilian areas of each police department are also fascinating. Not every person is meant to go into\nlaw enforcement as a police officer. It is a strenuous and stressful job that attracts many but only made\nfor a few elite. However, don\xe2\x80\x99t fret; there are many options in the law enforcement realm. Putting on a\nbullet-proof vest, filling a holster with a semi-automatic handgun, and continually training to be in tip-top\ncondition does not appeal to everyone, so there are still many jobs available in the law enforcement arena.\nCivilians are the other half of the equation and are a much-needed commodity for every law enforcement\nagency. When a citizen dials 9-1-1, a dispatcher answers the phone, and that dispatcher is a civilian. When\na police officer finds heroin on a suspect and takes custody of it and later books it into evidence at the police\nstation, the evidence technician is the civilian that logs and follows through with the chain of custody for\nthe heroin evidence. Civilians are just as important as the commissioned positions at a law enforcement\nagency.\nExample civilian positions at law enforcement agencies:\n\xe2\x80\xa2\n\nDispatch/911 Operator\n\n\xe2\x80\xa2\n\nRecords\n\n\xe2\x80\xa2\n\nCrime Analysis\n\n\xe2\x80\xa2\n\nForensic Unit/CSI\n\n\xe2\x80\xa2\n\nTraining\n\n\xe2\x80\xa2\n\nFleet Management\n\n\xe2\x80\xa2\n\nSupport/Facilities\n\n\xe2\x80\xa2\n\nHuman Resources\n\n\xe2\x80\xa2\n\nOperations Support Unit\n\n\xe2\x80\xa2\n\nRecruitment Coordinator\n\n\xe2\x80\xa2\n\nVolunteer Coordinator\n\n\xe2\x80\xa2\n\nAdministrative Support\n\n\xe2\x80\xa2\n\nPlus Many More ++\n\n221\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nStudents at Southern Oregon University with a major in Criminology and Criminal Justice take the CCJ 321 CSI and CCJ 462\nForensic Criminal Investigation classes and practice crime scene investigation skills for a future career as a Crime Scene Investigator\n\nContact with Outside Agencies: It takes a team to accomplish policing. One federal, state, county, or\ncity police agency cannot do it all alone. In order to succeed the agencies must work together. Whether a\nnarcotics division works with the ATF or an entire SWAT team comprised of officers from various city and\ncounty departments, the team concept in policing is unwavering.\nOregon has a lot of examples of coordination between different agencies to make things happen. For\nexample, in Jackson County (Oregon) there is The Medford Area Drug and Gang Enforcement (MADGE)\nUnit; there was a need in Jackson County, to work towards controlling the gangs and drugs in the valley,\nand one department could not complete the mission alone. Therefore, MADGE was created to engage the\nfollowing agencies:\nMedford Police, Ashland Police, Central Point Police, Jackson County Sheriff\xe2\x80\x99s Office, Oregon State\nPolice, Jackson County Community Corrections, Federal Bureau of Investigation, Homeland Security\nInvestigations Division, and the Oregon Army National Guard. Not only does the job get done more\nefficiently and more effectively but also the communication that occurs when nine different agencies\nconverge is awe-inspiring.\n\nIn the News: MADGE is proactive in gang intelligence and gang prevention. In 2015, MADGE and\nMedford Police Department investigated 247 gang-related crimes; a strong majority of these crimes were\ngraffiti cases. With the continued help of CSO Todd Sales, this graffiti is removed or painted over with\nthe assistance of youth offenders completing their community service hours, for their part in graffiti. In\n2015 there was a 140% increase in gang-related aggravated assault cases, from 5 in 2014 to 12 in 2015.\nCurrent numbers of documented gang members have leveled off from past years. In 2015, MADGE\nand Medford Police have identified 315 documented gang members and associates that participate in\norganized crime activities. This information is compiled for the furtherance of an investigation involving\norganized criminal gang activities http://Madge Task Force Retrieved from http://www.ci.medford.or.us/\nPage.asp?NavID=2400 i City of Medford (2018, September 23). Madge Task Force Retrieved from\nhttp://www.ci.medford.or.us/Page.asp?NavID=2400\n\n222\n\n\x0cIntroduction to the American Criminal Justice System\n\nFinally, once one enters the policing field, the contacts made daily are numerous.\nAn officer who works for a city police department can have contact with:\n\xe2\x80\xa2\n\nJails/Correction/Detention Facilities and Employees\n\n\xe2\x80\xa2\n\nPrisons\n\n\xe2\x80\xa2\n\nProsecutors Office\n\n\xe2\x80\xa2\n\nDefense Attorneys\n\n\xe2\x80\xa2\n\nJudges and Lawyers\n\n\xe2\x80\xa2\n\nVarious Social Services\n\n\xe2\x80\xa2\n\nEducational Entities\n\nThese contacts are precious to every police officer and without them; the officer could not complete\ntheir job effectively.\n\n223\n\n\x0c6.5. Recruitment and Hiring in Policing\n\nTIFFANY MOREY\n\nLearning Objectives\n\nAfter reading this section, students will be able to:\n\xe2\x80\xa2\n\nDescribe the parts of the written test\n\n\xe2\x80\xa2\n\nDiscuss why a candidate must study, study, study, for the oral board interview\n\n\xe2\x80\xa2\n\nExplain the type of questions on an oral board interview\n\n\xe2\x80\xa2\n\nList the different types of a physical agility test\n\n\xe2\x80\xa2\n\nExplain why departments are starting to utilize the assessment center test\n\n\xe2\x80\xa2\n\nRecognize why a candidate\xe2\x80\x99s background is the most important part of the testing process\n\n\xe2\x80\xa2\n\nDescribe why candidates fear the psychological evaluation\n\n\xe2\x80\xa2\n\nUnderstand the B-Pad Video Test\n\nCritical Thinking Questions\n\n1.\n\nWhat is on the written test?\n\n2.\n\nHow should a candidate study for the oral board interview?\n\n3.\n\nWhat is the best way to prepare for the physical agility test?\n\n4.\n\nHow can a candidate prepare for an assessment center?\n\n5.\n\nWhat is the best way to start preparing for the background investigation and interview?\n\n6.\n\nDoes the psychological evaluation only check if a candidate is psycho or crazy?\n\n224\n\n\x0cIntroduction to the American Criminal Justice System\n\nHistory of Recruitment and Hiring\nWhat History? \xe2\x80\x98Nil\xe2\x80\x99 For lack of a better word, would describe the history of recruitment and hiring of\nnew officers. Before the 1960s, as long as the candidate was a white male, had a heartbeat, and there was an\nopening for a cop, the job was most likely his. Women and officers of color were all but non-existent on the\nforce. Women were only allowed into the \xe2\x80\x98boys only club\xe2\x80\x99 if they wore a pencil skirt and fit a prescribed role\nconsistent with being a woman. In some departments, women were allowed to work in the detective bureau\nand interview children victims, because women supposedly talked to children better than men, because of\ntheir \xe2\x80\x98maternal\xe2\x80\x99 instincts. These stereotypes continued in policing towards women and minorities until new\nlaws forbidding such behavior, made their way into the scene. With new employment laws passed between\nthe 1960s to the late 1990s, many doors opened for women and minorities.\nRecruitment and Hiring Example\n\nWhen I was in the recruitment division of my police department and also as a professor at a university, I\ncontinually saw future police candidates unprepared for the Law Enforcement Testing Proces, a.k.a. The LET Prep\nFor some reason, candidates assumed that if they had their associates, or bachelor\xe2\x80\x99s degree, they did not need to\nstudy and prepare for the LET Prep. Unfortunately, that could not be farther from the truth. Just like a high school\nstudent getting ready to enter college, needs to take the ACT or SAT, that student must still study and prepare for\nthose tests if there is to be a successful outcome. Due to the importance and multifaceted LET Prep, it is even that\nmuch more critical that the candidate take the time to train and prepare. When asked how much time should be\nspent studying and preparing? My response was always \xe2\x80\x9cas much as you can!\xe2\x80\x9d But, in reality, the candidate should\nstart preparing a minimum of six months before the written test (which is the beginning step of the LET Prep).\nA good guide is one hour a night. Also, I recommend studying appropriately for each part of the LET Prep. For\nexample: The Oral Board Interview should be prepared for with the candidate actually speaking aloud the answers\nto pre-determined questions (such as: \xe2\x80\x9cTell us about yourself\xe2\x80\x9d), the candidate should video themselves to playback,\nwatch and learn from, and if at all possible the candidate should ask friends and family to sit on a \xe2\x80\x98mock oral board\npanel\xe2\x80\x99 and the candidate should answer questions aloud and in front of the panel. The more realistic the training,\nthe better prepared the candidate will be.\n\nThe Law Enforcement Testing Preparation (LET Prep)\nOne of the most challenging entry-level testing processes in the United States is for the position of police\nofficer. A typical \xe2\x80\x98regular\xe2\x80\x99 job, such as a cashier at a store, requires the candidate to fill out a job application,\nthen go onto a job interview, and poof, they are hired! There is a good reason why the LET Prep is so\ndifficult and thorough. Unlike a cashier, a police officer, once hired and trained, becomes the beholder of\ngreat power with authority to take away a person\xe2\x80\x99s freedom all under the protection of the government to\nshoot and possibly take a life, when a life is threatened. Officers have the authority to take away a person\xe2\x80\x99s\nrights and freedoms and this type of power should not be given to anyone with just the flick of a coin, the\ntesting process should be rigorous and thorough. Therefore, with those facts, the law enforcement testing\nprocess should be thorough and rigorous, to ensure the right candidate is hired.\nWhen thinking of the LET Prep, it can help to compare it to the ACT, SAT, National Football League\nTraining Camp, and military boot camp, all combined. The best way a new candidate can ensure failure is\nto forego studying and go into the process unprepared.\n225\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nWritten Test -LET Prep\nThe written test is tough! It can be compared with the ACT and SAT and some parts are even a bit more\ndifficult! Eighty percent of the candidates that take the written test fail! The written test has the following\ntypes of questions:\n\xe2\x80\xa2 Reading Comprehension\n\xe2\x80\xa2 Vocabulary\n\xe2\x80\xa2 Spelling and Grammar\n\xe2\x80\xa2 Observation/Memory\n\xe2\x80\xa2 Deductive Reasoning/Inductive Reasoning\n\xe2\x80\xa2 Spatial Orientation\n\xe2\x80\xa2 Math\n\xe2\x80\xa2 Essay/Incident Report Writing/Written Communication\n\xe2\x80\xa2 Analytical Ability\nEvery law enforcement department is different, although generally there are two basic ways departments\nadminister the written test. The first is through an online testing service. The candidate registers online\nto take the test and then will go to a pre-determined location (such as a library) with a proctor, to take\nthe written exam on a computer. The candidate can then send their exam score to a participating law\nenforcement agency, to which the candidate is applying. The second is through the law enforcement agency\nitself. The agency the candidate is testing for will post the written test date, and the candidate will respond\nto the agency and take the written test. Most agencies score the written test on site, and the candidate learns\nright there and then if they have a passing score to move forward in the testing process. Every agency also\ndiffers concerning the passing score. Most agencies require at least a seventy percent to pass the written test\nand move on in the hiring process. Although there are no set rules as to the passing score, some agencies\nrequire seventy-five or eighty percent to pass the written test, it just depends on the individual agency.\nThe written test is tough! There are no shortcuts for studying for it, except to sit down and put the time\nin. The best way to study is take one subject at a time, study one hour a night, and follow up with practice\ntests of the respective subject. List the areas of concern after grading the practice tests and move onto the next\nsubject. After all subjects have been studied, go back and spend more time focusing on the areas of concern.\nA reasonable period needed to study for the written test is generally six to twelve months.\n\n226\n\n\x0cIntroduction to the American Criminal Justice System\n\nHiring Our Heroes\nSenior Airman Alfonzsa Jackson of the 127th Maintenance Squadron speaks with Trooper Walter Crider of the Michigan State Police\nduring the Hiring Our Heroes job fair at Selfridge Air National Guard Base, Mich., May. 18, 2013. Jackson, a six-year member of the\nAir National Guard and recently a member of the 127th MXS Aerospace Ground Equipment crew, attended the job fair to explore\npossible career opportunities in law enforcement. More than 300 were in attendance visiting with representatives of more than 50\nemployers. (U.S. Air National Guard photo by TSgt. David Kujawa.)\n\nPhysical Agility Test- LET Prep\nThe physical agility test is given three different ways, depending on the department;\n#1-State Physical Agility Test: In Oregon, for example, most of the departments utilize the ORPAT or\nOregon Physical Agility Test. The ORPAT is a job sample physical ability assessment process. The goal is\nto assess an entry-level police officer candidate in the physical demands a police officer is likely to replicate\nduring routine duties.\n\xe2\x80\xa2 Part One- Mobility Run: 1235 Foot Obstacle Run Where the Candidate Demonstrates Mobility,\nAgility, Flexibility, Power, and General Physical Endurance\n\xe2\x80\xa2 Part Two- Push Activity, Controlled Falls, Pull Activity\n\xe2\x80\xa2 Part Three- \xe2\x80\x98Dummy\xe2\x80\x99 Drag, 165-pound \xe2\x80\x98Dummy\xe2\x80\x99 is Dragged 25 Feet\n\n227\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nDuring the CCJ 387 Law Enforcement Test Prep Class, students took a field trip to Medford Police Department, where Sgt. Budreau\nassisted the students with the various portions of the ORPAT.\n\n#2-Physical Agility Test: A department will hire various testing agencies that have developed physical\nagility courses, to set up and test entry-level police candidates.\n\xe2\x80\xa2 A description of a \xe2\x80\x98dummy\xe2\x80\x99 suspect is given (this \xe2\x80\x98dummy\xe2\x80\x99 just committed a crime)\n\xe2\x80\xa2 The candidate runs through various obstacles; four-foot cyclone fence jump, window crawl\nthrough, one-hundred to three-hundred yard dash, and six-foot fence jump\n\xe2\x80\xa2 The candidate picks the suspect \xe2\x80\x98dummy\xe2\x80\x99 out of a lineup and drags the one-hundred+ pound\nsuspect \xe2\x80\x98dummy\xe2\x80\x99 twenty+ feet\n#3-Military Physical Fitness Test\n\xe2\x80\xa2 Push-ups: a certain number, in a specified amount of time\n\xe2\x80\xa2 Sit-ups: a certain number, in a specified amount of time\n\xe2\x80\xa2 Pull-ups: a certain number, in a specified amount of time\n\xe2\x80\xa2 Two-mile run: in a specified amount of time (times are dependent on sex and age of candidate)\nJust as with the written test, the physical agility/physical fitness test must be prepared for. All of the above\nthree tests require the candidate to work out and perform various physical fitness activities for a specified\nperiod of time before the testing process in order to ensure the candidate is in proper physical condition for\nthe test. It is also the time for the candidate to realize that physical fitness must be a career-long decision in\nlaw enforcement, and this is the perfect time to start with the mindset of keeping physically fit as a lifestyle.\n\n228\n\n\x0cIntroduction to the American Criminal Justice System\n\n229\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nOfficers with the Ashland Police Department teach a defensive tactics class during the annual Lock-In Event.\nThis is a great time for SOU CCJ students to learn the tactics officers train in during the police academy and\nevery year during defensive tactics recertification.\nOral Board Interview- LET Prep\nThe oral board interview is one of the least prepared for testing portion of the LET Prep since the\nquestions for an entry-level police officer candidate are very basic:\n\xe2\x80\xa2 Tell us about yourself?\n\xe2\x80\xa2 Why do you want to be a police officer?\n\xe2\x80\xa2 What have you done to prepare for the job?\nThere often is the feeling by candidates, that the answers to the above questions are a given and known,\ntherefore why would one need to study or prepare for such easy questions? However, that way of thinking\ncould not be further from the truth. The oral board interview consists of a table with two-to-four police\ndepartment represenatives, usually a police officer, possibly a volunteer police department representative, and\none or two supervisors on one side of the table, and one chair placed in the center of the room (or the\nopposite side of the table) for the candidate to sit. This set up is meant to place the candidate on the spot\nand cause some stress to occur. This will help the panel members see how the candidate responds to stress.\nThe reason behind this is because the job of a police officer will entail at times, stressful situations and being\nthe center of attention when citizens will look towards the police officer for guidance. Therefore, this is one\nway to gauge how the candidate or future police officer will respond in a stressful situation.\nSuccessful candidates learn positive ways to prepare for the oral board interview by taking college/\nuniversity classes, obtaining study guides, writing out answers to the obvious questions, memorizing\nanswers, and conducting practice sessions with family and friends where the questions and answers are read\naloud.\n\n230\n\n\x0cIntroduction to the American Criminal Justice System\n\nPaul Donaldson, right, Tallahassee Police Department policeman, speaks to Pamela Cherry and Toccora Ferguson, contract\ncustodians, during the Veterans career fair Oct. 19, 2017, at Moody Air Force Base, Ga. Over 55 potential employers were\npresent to network with attendees, compete for hiring opportunities and schedule interviews\n\nOral Board Story\n\nI have been a panel member on dozens of entry-level police officer oral board interviews. I was always amazed\nat how unprepared the candidates were. Once during one oral board interview one candidate, was asked: \xe2\x80\x9cTell us\nabout yourself,\xe2\x80\x9d to which the candidate began by rolling his eyes towards the ceiling while he chomped on his gum\nand proceeded to say: \xe2\x80\x9chmm\xe2\x80\xa6..well\xe2\x80\xa6\xe2\x80\xa6hmm\xe2\x80\x9d and then he put his right hand into his right pant\xe2\x80\x99s pocket and\nbegan jingling his keys. The room was quiet other than the panel members\xe2\x80\x99 thoughts of how this question could\nhave stumped the candidate. The candidate proceeded by swallowing loudly and without making eye contact with\nany of the panel members said: \xe2\x80\x9cI am in college and I just broke up with my girlfriend and \xe2\x80\xa6 hold on\xe2\x80\xa6let me\nthink\xe2\x80\xa6I know there was something else\xe2\x80\xa6could you repeat the question?\xe2\x80\x9d\nAt this time I put him out of his misery and moved onto the next question. He, of course, continued to flail with\neach question and at the end, he failed the oral board interview. I do not know if he would have made a good police\nofficer or not, but I do know this\xe2\x80\xa6he did not prepare for his oral board interview. I can almost guarantee (because\nI have seen this from many other candidates as well) that he knew we would ask that particular question, but he\nfigured, why did he need to study that question? He knew all about himself, heck he grew up with himself, and he\noften spoke to his friends and family about himself regularly so of course, he would not have any troubles rambling\n\n231\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\noff all the amazing things he had done in his life. Unfortunately, he did not figure on one big thing; STRESS! Stress\nand nerves cause the most confident of us to freeze and stumble on our words.\nTherefore, the most poised of us must prepare a handwritten (or typed) pre-determined answer to many such\nquestions, then create study cards (or notes in a smartphone) of the appropriate answer and finally study, study, and\nstudy more, and memorize! That way when the actual stress hits and the nerves take over, the immediate response\nwill be to go back to what was studied. Don\xe2\x80\x99t take my word for it. Look it up! It is actually a favorite tool and used\nby police officers regularly in their weapons and defensive tactics training as well. Can you think of a more stressful,\nnerve-racking situation, than having a person threaten or point a weapon at you? The way most officers begin to\nrespond to such stressful situations is they revert unknowingly to their training.\nA second example of a female candidate on an oral board interview; a common question on the oral board panel\nhas to do with knowledge of the department the candidate is testing for. As I read off the following question to\nthe female candidate, her eyes opened as big as a flying saucer. \xe2\x80\x9cWho is the Police Chief of this department?\xe2\x80\x9d As\nthe clock ticked away the seconds, her mouth continued to slowly open and eventually it completed the fish open\nmouth look. She, of course, did not know the answer. As the questions continued, it became apparent that she was\ngoing to fail as well, due to her lack of studying. My recommendation\xe2\x80\xa6 if you want to work somewhere, you\nreally should know a little bit about the department, especially who the top cop is!\n\nAssessment Center/B-Pad- LET Prep\nAssessment centers are not new to police department testing. However, they have generally been utilized\nfor management promotional testing, when a police officer tests to be a sergeant or sergeant tests to be\na lieutenant. With successful results in the previous arena and with the importance of hiring the best\ncandidate, human resources and recruitment divisions have turned towards assessment centers and B-Pad\nVideo Assessment, as an additional layer of testing in the LET Prep, to ensure hiring of the correct candidate.\nAssessment centers are practical testing situations, where the candidate must \xe2\x80\x98act\xe2\x80\x99 out their response. It is a\ntime for the testing agency to see how the candidate might respond in different situations. One of the most\ncommon assessment center utilized at the entry police candidate level is the group assessment center. This\ngroup assessment center can look very different depending on the agency hosting the assessment, but the\ngeneral framework is the same for all. For the group assessment center, eight-twelve candidates will enter the\ntesting facility and sit around a table. The proctor will then give the candidates an \xe2\x80\x98issue\xe2\x80\x99 to solve. Example\nissue: \xe2\x80\x9cThere have been a large number of bicycles stolen from the university in the last three months.\nWhat can we do to stop this?\xe2\x80\x9d There will be two-four evaluators at a table adjacent to where the candidates\nare sitting, and the evaluators watch and listen while the candidates try and solve the issue. It is impressive\nhow quickly candidates lose their temper, become rude to other candidates, talk over candidates, or more\npositively, how candidates work with other candidates, compliment real ideas, and work quickly towards a\nviable solution.\nB-Pad Video Assessments are completed generally with one candidate at a time. A candidate enters a room\nalone, and a proctor shows the candidate a projector screen and a video camera. A video camera records the\ncandidate. The proctor starts the video camera recording and leaves the room. Once the video starts playing,\nthe candidate must respond towards the screen, and \xe2\x80\x98act\xe2\x80\x99 out whatever the candidate feels is the appropriate\nanswer to the situation. One such example of the scenario played on the video was of a mentally challenged\nindividual that was asking to return to Mars. The individual in the video had a knife. The candidate had\n232\n\n\x0cIntroduction to the American Criminal Justice System\n\nto talk and act out what should be said to the mentally challenged individual in the video. The recording\nof the candidate is then watched at a later time by a panel of evaluators from the department and graded\naccordingly.\nHiring Example\n\nCandidates are often terrified when it comes to the psych eval and the medical physical. One common question\nI usually get is: \xe2\x80\x9cI am currently taking a prescription of an anti-depressant, prescribed by my family doctor because\nI am bi-polar. Will this keep me from being a police officer?\xe2\x80\x9d My answer is always, \xe2\x80\x9cI do not know.\xe2\x80\x9d But I further\nexplain that this is not a decision made by the police agency itself, instead the recommendation to hire or not,\nis made by the psychlogist (who evaluated the psychological evaluation) and the medical doctor (who evaluated\nthe medical/physical). Both doctors will look at the entire psychological and medical profile of the candidate and\ntogether make a recommendation to the hiring agency on whether or not the medication and reason for the use of\nthe medication could be an issue.\n\nBackground Investigation-LET Prep\nThe background investigation is probably one of the most critical portions of the testing process. After\nthe candiate passes the written, phyiscal fitness/agility, oral board interview, and assessment center portions\nof the test, the candidate is given a background packet to fill out. The packet is very thorough and asks\nthe candidate everything from where the candidate went to school, worked, prior drug use, prior arrests,\nprior illegal actions/criminal activity (even if not arrested). The background investigator can spend days to\nweeks, investigating the candidate to ensure honesty and a good moral compass. The biggest issues in this\nportion of the testing, centers around prior drug use and criminal activity. Unfortunately, most agencies do\nnot list their requirements on past drug use openly. A lot of agencies utilize the FBI\xe2\x80\x99s prior drug use police.\nHowever, most agencies hold the right to make their own decisions for each individual candidate.\nPsychological Evaluation- LET Prep\nThe psychological evaluation (psych eval) is one of the least understood of the hiring process. When asked,\na majority of the candidates openly state they have nothing to worry about since the psych eval only tests for\npsychos, but they will also admit that they quietly fear the psych eval since it is the unknown that causes the\nmost fear. There is no way to study for the psych eval. The best advice given is to tell the truth and this holds\ntrue for every part of the L.E.T. Process. However, do understand that the psych eval is not just looking for\nthose candidates with mental illnesses, it is also looking for those that will not make good police officers or\nhave aggression issues or controlling issues to name a few.\nMedical Examination- LET Prep\nThe state where the candidate is going to work as a police officer will determine the depth at which the\nmedical/physical is completed. Possible testing that could occur during this phase of the testing process is:\n\xe2\x80\xa2 Blood/urine/hair drug tests\n\xe2\x80\xa2 Hearing test\n\xe2\x80\xa2 Eye examination\n\xe2\x80\xa2 Lung capacity\n233\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\n\xe2\x80\xa2 EKG\n\xe2\x80\xa2 Treadmill stress test\n\xe2\x80\xa2 Chest X-Ray\n\xe2\x80\xa2 Cholesterol test\n\xe2\x80\xa2 Various other blood tests\nChief or Sheriff Interview- LET Prep\nOnce a candidate has passed the written test, physical agility test, oral board interview, group assessment\ncenter/B-Pad assessment, and background investigation, if the department is still interested in the candidate,\nthe candidate is made a \xe2\x80\x98conditional offer of employment.\xe2\x80\x99 In laymen\xe2\x80\x99s terms, it means the department is\ninterested in the candidate, but still wants the candidate to go through the psych eval and medical physical.\nDue to the intrusiveness of those two tests and results, the department must prove they are interested in the\ncandidate enough to make a conditional offer of employment, all of which is dependent on the results of\nthose two tests, of course.\nIf the candidate shows no issues with the psych eval or medical/physical, the candidate is then called in to\nthe Chief or Sheriff\xe2\x80\x99s office (depending on the department) for an interview. After the interview and all of\nthe above testing areas are finished, the Chief or Sheriff will most likely call a meeting with the background\ninvestigator and the psychologist who completed psych eval and go over the final candidates one by one.\nFrom this meeting a list is created of whom the department will hire. An \xe2\x80\x98informal\xe2\x80\x99 type of interview is\ninformal in nature since the \xe2\x80\x98top cop\xe2\x80\x99 (a.k.a. Chief or Sheriff) is looking to meet a potential new police officer.\n\nPhotos above, from left to right: Medford Police Department patrol vehicle, Jackson County Sheriff\xe2\x80\x99s Office K-9 patrol vehicle, and\nMedford Police Department BearCat SWAT vehicle. Law Enforcement agencies across Oregon participate in the Annual Lock-In\nEvent. The above vehicles parked these vehicles for viewing at Lock-In.\n\nMentoring and Retaining\nAll too often, departments place everything into the LET Prep, and then after the candidate is offered\nthe job, accepts, and starts the dream job of a police officer, this new officer can be lost and forgotten in\nthe shuffle. Departments must ensure that mentoring and retaining occurs. Mentoring can be completed\nthrough proper supervision from the top down and ensuring first-level supervisors are responsible for those\nthey supervise. A good supervisor can make the difference between an officer disliking or loving their job.\n\n234\n\n\x0c6.6. Recruitment and Hiring Websites for Future Careers\n\nTIFFANY MOREY\n\nFBI Past Use Drug Policy\n\nIt does matter what you do in school! If you want a career in law enforcement make sure you understand the past\nuse drug policy of law enforcement agencies. Many departments follow the published FBI past drug use policy.\nFor more information see the FBI\xe2\x80\x99s past drug use website link below:\nhttps://www.fbijobs.gov/working-at-FBI/eligibility\nAND FOR MORE INFORMATION ABOUT THE REQUIREMENTS FOR AN FBI SPECIAL\nAGENT VISIT THE FOLLOWING WEBSITE:\n\nhttps://www.fbijobs.gov/career-paths/special-agents\n\nVISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A\nCIA SPECIAL AGENT:\n\nhttps://www.cia.gov/careers\n\n235\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nCIA\n\nVISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A\nSECRET SERVICE SPECIAL AGENT:\n\nhttps://www.secretservice.gov/join/careers/\n\n236\n\n\x0cIntroduction to the American Criminal Justice System\n\nSecret Service\n\nVISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A\nDEA SPECIAL AGENT:\n\nhttps://www.dea.gov/careers\n\n237\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nDEA\n\nVISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A\nTROOPER WITH THE OREGON STATE POLICE:\n\nhttps://www.oregon.gov/osp/RECRUIT/pages/index.aspx\nState Departments Recruitment and Hiring Websites\n\n238\n\n\x0cIntroduction to the American Criminal Justice System\n\nOregon State Police\n\nVISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A DEPUTY WITH\nTHE JACKSON COUNTY SHERRIF\xe2\x80\x99S OFFICE:\n\nhttp://jacksoncountyor.org/sheriff/General/Employment-Opportunities\nCounty Departments Recruitment and Hiring Websites\n\n239\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nJackson County Sheriff\xe2\x80\x99s Office\n\nVISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A DEPUTY WITH\nTHE DESCHUTES COUNTY SHERIFF\xe2\x80\x99S OFFICE:\n\nhttps://sheriff.deschutes.org/about-us/join-the-sheriff%27s-office/\n\n240\n\n\x0cIntroduction to the American Criminal Justice System\n\nDeschutes County Sheriff\xe2\x80\x99s Office\n\nVISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A POLICE OFFICER\nWITH\nTHE MEDFORD POLICE DEPARTMENT:\n\nhttp://www.ci.medford.or.us/Page.asp?NavID=1446\nCity Departments Recruitment and Hiring Websites\nMedford Police Department\n\n241\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nMedford Police Department\n\nVISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A POLICE OFFICER\nWITH THE\nPORTLAND POLICE BUREAU:\n\nhttps://www.joinportlandpolice.com/start\n\n242\n\n\x0cIntroduction to the American Criminal Justice System\n\nPortland Police Bureau\n\n243\n\n\x0c6.7. Police Misconduct, Accountability, and Corruption\n\nTIFFANY MOREY\n\nLearning Objectives\n\nThis section will cover police misconduct and accountability. After reading this section, students will be able to:\n\xe2\x80\xa2\n\nDiscuss the different corruption types in policing\n\n\xe2\x80\xa2\n\nExplain the difference between a meat eater and a grass eater\n\n\xe2\x80\xa2\n\nList the different ways an officer engages in noble-cause corruption\n\n\xe2\x80\xa2\n\nDescribe how a police officer uses stereotyping on the job\n\n\xe2\x80\xa2\n\nDiscuss the importance of having a reliable internal affairs division/bureau\n\n\xe2\x80\xa2\n\nExplain why excessive use of force is difficult to quantify\n\nCritical Thinking Questions\n\n1.\n\nHow are grass eaters and meat eaters different?\n\n2.\n\nWhat is noble cause corruption?\n\n3.\n\nWhy are there misunderstandings of police accountability?\n\n4.\n\nWhat are the functions of an internal affairs division/bureau?\n\n5.\n\nWhat happens if a police department shows a pattern of excessive use of force?\n\nCorruption Types\nPolice officers have a considerable amount of power. With one fail swoop, an officer can take a person\xe2\x80\x99s\nfreedom away. That is a tremendous amount of power. An officer is also given the authority to carry a gun\nand for protection of either the officer or a person, take the life of a citizen as well. These decisions are\n244\n\n\x0cIntroduction to the American Criminal Justice System\n\ndangerous, and unfortunately, at times there are officers who not only overstep their boundaries but jump\ndirectly in the pit of corruption.\nWhile the media paints a picture that most police officers are corrupt, this could not be further from the\ntruth. The Bureau of Justice confirmed that only 0.02% of the police officers in the U.S. engage in some\ntype of corruption. While the media makes money selling stories, the police story that starts the five-o\xe2\x80\x99clock\nnews is not always true. When the media covers a police shooting for instance, the investigation has not\nbeen completed, therefore the only answer the police department will have for the media is \xe2\x80\x98no comment.\xe2\x80\x99\nA cover-up then comes to mind; however, when the invesitgation is completed weeks to months later,\nthe media is not always as interested in the story, especially if there was no police corruption. Even more\nimportantly it takes two-years to basically train a new police officer. The same police officer then continually\ntrains every month to ensure the knoweldge of current laws and many other tactics are up-to-date. Unless\none is a trained commissioned law enforcement officer, there is no way the public, nor media can truly\nunderstand why an officer acted and responded the way he or she did, unless they experienced the exact same\ncircumstance.\nNo matter the profession, whether it is an actor, a cashier, a president of a non-profit organization, or a\npolice officer, corruption can occur. The focus on law enforcement is more dramatic due to the glarmour of\nthe type of work performed. Either way, corruption should not be condoned and if it does occur, the reaction\nmust be swift and stern. Those in law enforcement hold a badge which grants the carrier the authority to\ntake away a person\xe2\x80\x99s rights therefore, the authority that comes with the badge should NEVER be taken for\ngranted.\nGrass Eaters\nIn 1970, The Knapp Commission coined the terms \xe2\x80\x98meat eaters\xe2\x80\x99and \xe2\x80\x98grass eaters\xe2\x80\x99 after an exhaustive\ninvestigation into New York Police Department corruption. Police officers that were grass eaters accepted\nbenefits. Whether it was a free coffee at the local coffee shop, fifty percent off lunch, or free bottled water\nfrom the local convenience store, these cops would take the freebie and not attempt to do the right thing by\nexplaining why they cannot accept the benefit and then pay for the benefit. By accepting benefits, the officer\nwas, in turn, agreeing that whoever gave the benefit, i.e., coffee, or lunch, etc., was to receive something\nin return. What if the coffee shop wanted the officer to patrol their shop every morning between the busy\nhours of six and seven a.m.? Would that be fair to other coffee shop owners that did not give free coffee to\n1\nthe officer?\nMeat Eaters\nThese officers expected some tangible item personally from those served, in order to do their job. Whether\nit was money \xe2\x80\x98shakedown\xe2\x80\x99 to ensure a convenience store was not robbed, or the officer felt there was nothing\nwrong with stealing from a drug dealer during a drug raid; \xe2\x80\x98no one would notice a pound of cocaine missing,\nright?\xe2\x80\x99 These officers felt entitled and were aggressive in making sure they got what they thought was theirs.\nIf a person has the lifelong goal of being a police officer, then that same person will want to protect the\ninnocent from those criminals that aim to do them harm.\nNoble Cause Corruption\nNoble-cause corruption is a lot more commonplace then many think. Many officers work twenty-five\nyears and may never see another cop steal something, but they will see noble-cause corruption. Most officers\njoin the force to make the world a better place in one way or another. While officers understand they cannot\n1. Caldero, M. A., Dailey, J. D., & Withrow, B. L. (2018). Police Ethics: The Corruption of Noble Cause (4th ed.). New York, NY, USA:\nRoutledge/Taylor and Francis.\n\n245\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nsolve everything alone, they do think they can make a difference. The noble-cause is the goal that most\nofficers have to make the world a better and safer place to live. \xe2\x80\x9cI know it sounds corny as hell, but I really\nthought I could help people. I wanted to do some good in the world, you know? That\xe2\x80\x99s what every cop\n2\nanswered when asked why he became a police officer.\nOfficers sign on and get hired wanting and striving to do the right thing. However, it is a slippery slope\nthat the officer continually slides on from the academy, through field training, and on into the deeper parts\nof a police career.\n\nSlippery-Slope Model of Noble-Cause Corruption\n1.\n\n\xe2\x80\x9cForget everything you learned in training (school), I\xe2\x80\x99ll show you how we really do it\nout here.\xe2\x80\x9dThis what an officer often first hears from a TO (training officer). The statement is\nonly superficially about the lack of utility of higher education. What it is actually about is loyalty\nand the importance of protecting the local group of officers with whom the officer works.\n\n2.\n\nMama Rosa. It looks like a free meal. This is not to test willingness to graft, but whether an\nofficer is going to be loyal to other officers in the squad. It also serves to put officers together\nout of the station house.\n\n3.\n\nLoyalty Back-up. Here, an officer is tested to see if he or she will back up other officers. This\nis more involved because officers may have to \xe2\x80\x98testify\xe2\x80\x99 (give false testimony), dropsy (remove\ndrugs from a suspect during a pat-down and then discover them in plain sight on the ground),\nthe shake (similar to dropsy, only conducted during vehicle stops), or stiffing-in a call. These are\nlike NC (noble-cause) actions, and may indeed by NC actions, but their purpose is to establish\nloyalty.\n\n4.\n\nRoutine NC (Noble-Cause) Actions Against Citizens. Magic pencil skills increase\npenalties by shifting the crime upwards. Protect fellow officers with fictitious chargers.\nConstruct probable cause. Illegal searches of vulnerable citizens.\n\nI am the Law. This is the belief that emerges over time, in which officers view what they do as the right\nthing to do. This is the practical outcome of the old adage \xe2\x80\x98power corrupts, and absolute power corrupts\nabsolutely.\xe2\x80\x99 A police officer does not have absolute power, but he or she has the backing of the legal system\n3\nin almost all circumstances. Behavior can become violent, as with the Rampart CRASH unit.\xe2\x80\x9d\nTherefore, every officer can start out wanting to save the world somehow, but when the real-world job\nof an officer starts to take hold, it is a problematic grasp to release.\n\n2. Baker, M. (1985). Cops: Their lives in their own words. New York: Pocket Books.\n3. Withrow, B.L., Dailey, J.D., & Caldero, M.A. (2018). Police ethics: The corruption of noble cause. New York: Routledge.\n\n246\n\n\x0c6.8. Current Issues: Police Shootings\n\nTIFFANY MOREY\n\nOne of the most controversial issues in regards to policing in the 21st century are police shootings. The\n\xe2\x80\x98police shooting\xe2\x80\x99 topic causes much debate and is always in the headlines of every media outlet when\nit occurs. After an officer-involved shooting, citizens want answers, rightfully so. Unfortunately, police\ndepartments cannot immediately provide those answers. The all too familiar \xe2\x80\x98no comment\xe2\x80\x99 or \xe2\x80\x98we do not\nhave any information at this time\xe2\x80\x99 or only providing limited facts, does not appease saddened or angry family\nmembers or the general public.\nPolice departments cannot comment because they may genuinely not know the entire story. Police unions\nare there to protect officers, and the officers need time between the shooting and when they are required\nto write the police report on the incident and answer questions about the shooting for a variety of reasons.\nTherefore, directly after the shooting, when the media or the general public wants answers, there might not\nbe any answers known to give. However, this immediately reads as the department has something to hide.\nWhether that is true does not matter in the eyes of many. An investigation must occur before the department\ncan make a formal statement, and release body camera or dash mounted camera footage and information\nabout the shooting. All too often though, this information comes too late.\nOne case that signifies this all too well is the officer-involved shooting and killing of Michael Brown, in\n1\nFerguson, Missouri.\n\nIn the News: Michael Brown- Ferguson Missouri \xe2\x80\x93 Officer Involved Shooting\nhttps://www.youtube.com/watch?v=t2104nz_h5A\n\n1. Department of Justice. (2015). Department of Justice report regarding the criminal investigation into the shooting death of Michael Brown by\nFerguson, Missouri police Officer Darren Wilson. Washington, DC: Department of Justice.\n\n247\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nFerguson Police Department Michael Brown Crime Scene\n\nThe riots that occurred during the aftermath of the incident resulted in numerous arrests, millions of dollars\nin property damage sustained, and almost insurmountable damage to the relationship between police and\nyoung Black males. The Ferguson Police Department, where the officer is employed who shot and killed\nMichael Brown, had many issues; however, much of the information that the media released shortly after the\nshooting was later investigated and found incorrect.\nPolice officer involved shootings are very serious. Officers train and qualify quarterly with their duty\nfirearms and regularly review what is required to use deadly force. After every police-involved shooting (use\nof deadly force), once the investigation is complete, a grand jury or coroner\xe2\x80\x99s inquest (depending on the\njurisdiction and outcome of the shooting) must take place. There is a trial where the actions of the officer\ninvolved are examined to determine if the use of deadly force was justified. The officer describes in detail\nthe shooting and why the officer felt it necessary to use deadly force. Witnesses take the stand and tell what\nthey heard or saw. Finally, a jury decides whether or not the use of deadly force was justified. If the shooting\nis justified, the officer will not face formal charges for the use of the use of deadly force. However, if the\nshooting is determined to be unjustified, the officer can face felony charges, up to the murder. Generally, at\nthis point, the officer is fired from the respective police department, and the prosecutor\xe2\x80\x99s office files charges\nagainst the officer. For instance, at the Portland Police Bureau, any use of deadly force goes through eight\ndifferent reviews, in order to determine if the officer was justified.\n\nIn the News: Officers that utilize deadly force (such as a police shooting) once the investigaiton is\ncompleted are required to go through a grand jury or coroner\xe2\x80\x99s inquest (depending on the state). This\nprocess is similar to any criminal trial. If the jury finds that the officer was NOT justified (in their decision\n\n248\n\n\x0cIntroduction to the American Criminal Justice System\n\nto use deadly force) that officer is generally fired by their police department and then can face murder or\nmanslaughter charges. For example: Chicago police officer found guilty of murder https://www.cnn.com/\nvideos/us/2018/09/05/jason-van-dyke-trial-orig-bk.cnn\n\n249\n\n\x0c6.9. Current Issues: Use of Force and Vehicle Pursuits\n\nTIFFANY MOREY\n\nPolice officers have the power to use force if deemed necessary. If an officer uses more force than required for\nthe situation, this brings up many red flags. The Violent Crime Control and Law Enforcement Act of 1994\nauthorized the Civil Rights Division of the U.S. Department of Justice (DOJ) to initiate civil actions against\npolicing agencies if the use of force utilized is excessive or constitutes a pattern of depriving individuals of\n1\ntheir rights.\nOne additional issue in police use of force situations is that it is difficult to measure. There are many types\nof force police can use. The force utilized varies from going hands-on to pepper spray, taser, ASP baton,\ncontrol holds or takedowns, to deadly force. Every situation is different because it involves human beings\nand can be interpreted differently from those involved to those standing on the side-lines.\n\nVehicle Pursuits\nVehicle pursuits have dramatically changed over the last decade. It used to be commonplace for officers\nto engage in several vehicle pursuits during one-shift. Officers would get in a vehicle pursuit for many\nreasons, stemming from locating a rolling stolen vehicle to a driver failing to stop after running a stop\nsign. Vehicle pursuits have at a minimum, two, four-to-five thousand-pound deadly weapons (a.k.a.= the\nvehicles) that are driven recklessly (most times), chasing one another. The morgue has seen large numbers\nof fatalities due to vehicle pursuits. Victims range from an innocent person in a crosswalk at the wrong\ntime when the vehicle police pursued, hit the victim, or the innocent person driving across an intersection\nwith a green traffic light struck while the pursuing vehicle runs a red traffic light. There are too many sad\nstories of the innocent victim killed because the police decided to pursue a vehicle with lights and siren and\nthe pursuing vehicle refused to pull over.\nBecause of the many senseless fatalities, many police departments have updated their vehicle pursuit\npolicies and procedures. Although the policies of each department do differ in minor areas, most\n\n1. DOJ. (March 2, 1998). Justice Department Consent Decree Pushes Police to Overhaul Operations, Pittsburgh Post-Gazette, C-1.\n\n250\n\n\x0cIntroduction to the American Criminal Justice System\n\ndepartments have chosen to only approve a vehicle pursuit in dire situations. Such a situation fitting that\ndescription would be if the driver of the fleeing vehicle were actively engaging in behavior that was placing\nother citizens in immediately dire harm.\n\n251\n\n\x0c6.10. Current Issues: Stereotypes in Policing\n\nTIFFANY MOREY\n\nHuman beings are infamous for stereotyping. A first impression when meeting a new person takes only\nseven seconds. According to Pitts (2013), smiling, shaking hands, introductions, speaking clearly,\nmaintaining eye contact, looking smart, and not sitting down, are sure-fire ways to ensure a more positive\nstereotype; however regardless, the seven seconds is irrefutable.\nStereotyping in policing is almost a foregone conclusion. Citizens expect their police to protect them\nby being not only reactive but proactive. One of the most popular policing methods is to view a situation\nand proactively make a quick decision on whether or not a crime is about to occur, and if it is, stop it\nfrom happening. One of the ways police proactively operate is through stereotyping. \xe2\x80\x9cPolice officers spend\na great deal of time working their beats\xe2\x80\xa6one thing is common to all police officer working personalities:\nin an effort to know who or what is \xe2\x80\x98wrong\xe2\x80\x99 on their beat, police officers must know who is \xe2\x80\x98right\xe2\x80\x99 or who\n1\nbelongs.\xe2\x80\x9d\nWhen officers cross over the line is when they leave out the step of asking the who, what, where, when,\nwhy, and how after the stereotyping occurs, to confirm their thoughts. It is at this point that the officer is\nengaging in a type of implicit bias policing and this opens many doors to corruption. It is another slippery\nslope that officers must always be aware of while performing their many duties.\n\xe2\x80\x9cStereotyping or Terry Stop\xe2\x80\x9d Example\n\nNo matter how controversial policing is today, one common thread is that citizens want police\nto be proactive, not reactive to violent crime. Whether it is stopping an active shooter in a school, a burglary, or\neven a robbery, proactivity in policing is necessary to halt horrendous crimes from occurring. In 1968 the United\nStates Supreme Court decided Terry v. Ohio, which further explained reasonable searches under the 4th amendment\nand played a vital role in the below story.\nI was one of six officers with my department, chosen to work in our first ever problem-solving unit (PSU). Our\nsubstation was placed in a neighborhood where 21 murders had occurred in just a few months. We were tasked\n\n1. Perez, D.W. (2011). The paradoxes of police work. Florence, KY: Cengage Publ.\n\n252\n\n\x0cIntroduction to the American Criminal Justice System\n\nwith being proactive and working with the community to stop the bloodshed. The two-mile radius neighborhood\nwere composed predominantly of minority residents, and their distrust of our presence was apparent immediately.\nThe residents had stereotyped us as rotten apple police officers and at first, did not want our assistance, they did\nnot trust us. This was further agitated by the fact that we were there to be proactive and stop any future murders\nfrom occurring. Plus, we had the Terry v. Ohio decision to assist with our proactive actions. The citizens did not\nunderstand what that meant. They also did not understand that as one of the officers pledged to protect the area, I\nwas feeling like an unwanted officer in their neighborhood. They did not know that I got into policing to change\nthe world, if even just a little. They did not know how frustrated it made me feel when no matter how hard I tried,\nno one would not trust me. One day, as a four-year-old child approached me for a police sticker, the mom grabbed\nthe child by the arm and said, \xe2\x80\x9cGet away from that Po-Po, she is a Bi***, and don\xe2\x80\x99t you dare talk to her, ever, or you\xe2\x80\x99ll\nget it!\xe2\x80\x9d I cried that night when I got home from work, wondering how I could help this neighborhood if I couldn\xe2\x80\x99t\neven get one mom to trust me? Whether or not it was true, stereotyping had occurred in this neighborhood. Then\non top of it, I had to utilize the Terry v. Ohio decision to be proactive, to keep the murders from occurring. It felt\nlike a Catch-22 with no solution. The answer did not come to me instantly. All I could think to do was my job\nand stop the murders (as I was directed to do). I remembered that four-year-old in my everyday actions. I knew my\nefforts could make him safer, but would he ever understand? I utilized Terry v. Ohio, by learning the neighborhood,\nrecognizing the residents, and learning who belonged, and who did not. I was either on foot or on a bicycle in\nthis neighborhood due to the small size. This allowed for a lot of interaction with the residents. If I had reasonable\nsuspicion to think a citizen was about to commit a crime or had evidence of a crime, Terry v. Ohio gave me the\nright to investigate further. At first, this angered the neighborhood. They felt we were harassing them, stereotyping\nthem. I could understand how they felt that way, and instead of trying to make this neighborhood safe overnight, I\ndecided to begin to change how the neighborhood perceived us, slowly. The way I did this was through education.\nThrough my daily interactions, I talked to the citizens in the neighborhood about what I was doing and why.\nInstead of speaking in \xe2\x80\x98general\xe2\x80\x99 I spoke about only one incident at a time.\nOne night, at 2:00 a.m., I was walking with my partner through the neighborhood. I had to head back to the substation and as I rounded one building, I saw two citizens looking through a window of an apartment. I stopped and\njust watched. Everything ran through my mind. Had they lost their keys? Was this their apartment? Or, were they\nlooking to break-in and burglarize the apartment, possibly even commit a home invasion and hurt those inside? All\nof this happened in seconds, not minutes. Because of Terry v. Ohio, I legally investigated. The two citizens did not\nlive in the apartment and they were trying to burglarize it. One of the suspects had a gun. Because of Terry v. Ohio, I\nwas able to be pro-active and stop this from occurring. A single mom and three children under six years of age lived\nin that apartment and were home. The mom did not trust banks and kept her savings in between her mattresses. I\ndo not know what I stopped that night. I do not know if the suspects would have used the gun, or if they would\nhave found the mom\xe2\x80\x99s large cash savings or what else they might have taken; however, I did stop a burglary from\noccurring and that felt good. The next day while speaking to some of the citizens in the neighborhood, I explained\nthis. I used this one example to explain why my unit was there. How we stopped this crime and how we all wanted\nto make a difference. This one story did not change how the neighborhood saw us; however, after many more\nstories such as this, I began to see a change.\nMichelle, one of the citizens in the neighborhood got my cellular telephone number (yes we had cell phones\nback in the day!). She began calling me when she heard talk about a possible crime occurring. We hosted many\n\n253\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nevents in the neighborhood as well. From ice cream socials, back-to-school fairs, and we even worked hard to find\ndonations and get every child in the neighborhood a bicycle (or scooter). After three years, our substation closed.\nWe had gone a year without a murder and the crime rate dropped 98%. To this day Michelle still calls me and we\nchat about what is currently occurring in our lives. Michelle is my friend and I dare say I think she thinks of me\nas her friend too. There was a lot of stereotyping that went on in that neighborhood during those years. I found\nmy way through it all and I think the neighborhood did as well. In the end, we worked together through good ole\ncommunity policing and made the area safe again.\n\n254\n\n\x0c6.11. Current Issues: Accountability\n\nTIFFANY MOREY\n\nOne of the most significant issues with police accountability is knowledge of the job of a police officer.\nIf a person is ignorant about policing policies, procedures, rules, regulations, and how police operate, then\nthere is going to be a disconnect when the media portrays police in different situations. All too often citizens\nget their knowledge of how the police operate through television shows. Miranda admonition is a classic\nexample. The television show \xe2\x80\x98Law and Order\xe2\x80\x99 is notorious for showing the actors playing detectives, giving\nMiranda to a suspect, every single time; they place a suspect under arrest. The classic clip shows the handcuffs \xe2\x80\x98click, click\xe2\x80\x99 going on, and then as the detectives walk the suspect to their vehicle, they are verbalizing,\nfrom memory, Miranda. In reality, this could not be further from the truth.\nPolice have a considerable amount of power. Due to the temptation to abuse assigned power police\nmust ascribe to a higher standard than someone in a non-policing profession. However, members of the\npublic cannot appropriately identify police misconduct at all levels. \xe2\x80\x9cMost citizens possess an incomplete and\nincorrect understanding of what it entails. Often\xe2\x80\xa6American citizens frequently believe the police guilty of\nmisconduct when, in fact, they are not\xe2\x80\xa6Dirty Harry is a hero of sorts to many Americans. When a Dirty\nHarry-type officer engages in curbside justice aimed at a local bully, for example, people tend to be very\n1\nsupportive of this type of misconduct.\nMiranda Misconceptions\n\nThanks to the CSI Effect, Miranda is misunderstood by the general population. Shows such as Law and Order,\nshow the detectives slapping the hand-cuffs on the suspect, after the investigation is completed, and immediately\nverbalizing the Miranda requirements aloud to the suspect. This is not how Miranda is applied. The Miranda\ndecision requires officers to read certain statements when those officers plan on INTERROGATING a suspect.\nIf the suspect is NOT free to leave and the officer wants to question the suspect, in an attempt for the suspect\nto make incriminating statements, the suspect must be read Miranda admonishments AND must understand the\nadmonishments. If an officer sees a person break the law, the only time that officer needs to read Miranda prior to\ninterrogating the suspect, is if the officer wants to question the suspect. If the officer sees the crime, there generally\n\n1. Perez, D.W. (2011). The paradoxes of police work. Florence, KY: Cengage Publ.\n\n255\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nis no need to question the suspect about the crime, therefore Miranda is not required. For instance, if an officer is\nusing a radar gun and sees a vehicle speeding 40 mph in a 25 mph speed zone, the officer does not need to read the\ndriver of the vehicle Miranda, unless that officer wants to interrogate the driver. The officer can write the driver a\ncitation without reading Miranda and in some states the officer can arrest the driver for speeding without reading\nMiranda (in Oregon, speeding is a traffic violation, therefore, drivers cannot be arrested for speeding, this is not true\nfor all states, in some states traffic violations are misdemeanors).\n\n256\n\n\x0c6.12. Current Issues: Internal Affairs and Discipline\n\nTIFFANY MOREY\n\nInternal affairs (IA) exists to hold officers accountable for their actions. Whenever there is an issue, either\nbrought forth by another officer, a supervisor or a member of the general public, the IA division of the police\ndepartment is responsible for conducting a thorough investigation into the incident. Members of the IA\ndivision work directly under the Chief or Sheriff.\nIn the 1960s the overwhelming number of riots revealed the problem of corruption and misconduct in\npolicing- one of the most significant issues centered around citizen complaints against officers and the lack\nof proper investigation into the complaint. Most officers back then were found exonerated (not guilty) when\n1\na complaint ensued, and this did not bode with the public.\nSupervisors in Policing Example\n\nAs a young girl, I never had dreams of one day being a supervisor in the police world. In fact, I didn\xe2\x80\x99t even want\nto be a cop! However, life would direct me towards policing, and after years of testing, I found myself hired as a\npolice officer in Las Vegas. The life of an officer is full of wonder and excitement, but it is also full of stress, and a\nlot of pressure! After I completed the police academy, field training, and probation I soon learned that all supervisors\n(sergeants and lieutenants) were not created equal.I received my first police oficer annual evaluation and found that\nI ONLY met standards in the areas evaluated. How could that be, I thought? I had never worked harder! I always\nstayed late, I wrote amazing reports, I volunteered and helped out my community, I engaged in constant training, I\ndid everything I knew AND was trained to do. Yet, I still only met standards. Now I wasn\xe2\x80\x99t delusional. I knew that I\nwas a new police officer and had many things to learn, but why was my sergeant failing to mentor or recognize me\nfor my above average efforts in many areas? I was even told by a female sergeant, that she had to work harder than\nany other police officer because she was a female, so I should have to do the same. Where was mentoring? Where\nwas the training offered by supervision? I soon learned it did not exist and the only way to create it was to test for\npromotion myself and enter the world of supervision as a sergeant. Don\xe2\x80\x99t get me wrong, throughout my tenure as\na police officer I did encounter some amazing supervisors, but they were rare and an exception to the rule. I did\nthe test for promotion, and I was promoted to sergeant. My goals were to change the way officers were supervised\n\n1. Goldstein, H. (1977). Policing a free society. Cambridge, MA: Ballinger.\n\n257\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nat my department. I worked hard to create a sergeant training program that ensured future supervisors received\nthe knowledge and power of how-to mentor and train their employees. Three years later I tested and promoted to\nlieutenant. I took advantage of my new position in adminstration to mentor many young officers and help them to\nsucceed in their careers.\n\nDiscipline\nPolice departments are paramilitary organizations or a semi-militarized force whose organizational\nstructure, tactics, training, subculture, and (often) function are similar to those of a professional military, but\nwhich is formally not part of a government\xe2\x80\x99s armed forces. Therefore, the handling of discipline is serious\nbusiness. If an officer is accused of a minor infraction, such as the use of profanity, the officer\xe2\x80\x99s immediate\nsupervisor will generally handle the policy infraction and note what occurred in the officer\xe2\x80\x99s file and counsel\nthe officer of the following: 1- Inform the police officer why the conduct was wrong 2- Inform the police\nofficer how to stop engaging in the conduct 3- Inform the police officer when the conduct must stop 4Inform the police officer the time elapsed after the conduct and a scheduled meeting to review and ensure\nthe conduct is still not occurring. Depending on the conduct, the supervisor may require the officer to attend\ntraining to assist the officer.\nAnother answer was to create external civilian review boards to hold police accountable for their actions\nby reviewing all use of force incidents. With the onset of the 21st century and new technology, came new\ntools in policing. One such tool was a new program called IA Pro. This program followed individual officers\nthroughout their entire career. A scheming grass or meat eater officer could bid on a new shift each year,\ngaining a new supervisor who would be oblivious to past infractions. IA Pro ensured any, and all infractions\nby an officer were recorded and followed through upon by the applicable supervisor. If an officer used\nprofanity, the program would require the officer to attend training. If the officer used profanity a second time\nwithin the prescribed time limits, the officer would be placed on an timed employee development program\nand could face discipline up to termination. IA Pro was not a panacea, but it would significantly lower the\nnumber of officers allowed to continue to operate as grass or meat eaters.\nIf an officer is accused of a more serious infraction, such as excessive use of force or lying, the officer\nwill immediately be placed on administrative leave and The Internal Affairs Division of the department will\ninvestigate the incident. The Internal Affairs Division will offer a finding of 1- Sustained Complaint 2- NotSustained Complaint 3- Exonerated Complaint 4- Unfounded Complaint. Once one of the above complaint\ndispositions is assigned, it is then forwarded to the Command Staff (Chief or Sheriff and Assistant Chief/\nSheriff, Deputy Chief/Sheriff, and Captains) for review and discipline. Discipline can include time-off up to\ntermination.\nWhen an Officer Does Something Illegal Example\n\nI was a lieutenant over two sergeants and dozens of officers when I received the dreaded phone call. One of my\nofficers was being placed on administrative leave by Internal Affairs due to a horrendous allegation. The officer had\nbeen pulling over female drivers for \xe2\x80\x98so-called\xe2\x80\x99 traffic violations and offering them an \xe2\x80\x98out\xe2\x80\x99 if they performed some\nsort of sexual activity. My heart sank, how could this have happened and on my watch? After weeks of investigation,\n\n258\n\n\x0cIntroduction to the American Criminal Justice System\n\nI learned that the officer had been engaging in this illegal activity for months. It took several brave women to\ncontact our Internal Affairs Division and tell their stories, to stop it. I racked my brain as to what I could have done\nto prevent the officer. Did I miss the signs? Should I have been sterner? What could I have done? Even years later\nit tears at my soul. What those women had to endure. How scared they must have been. It must have been their\nworst nightmare come true. I have played many scenarios in my head as to what I could have done or should have\ndone to stop this officer\xe2\x80\x99s actions. And I finally learned that some people are just ethically and morally corrupt. No\nmatter how hard we, in supervision, try to identify them through the L.E.T. Process or keep tabs on them when\nthey engage in such acts, sometimes they slip through the cracks and are allowed to spread their evilness. This is\nwhat happened with this officer. The officer was smart enough to engage in this activity while alone on patrol,\nknowing that he could stop this action if another officer or supervisor assisted on the traffic stop. His actions were\nscary and should send a message to every police department and every supervisor that they must always be on the\nlook-out for those officers that are corrupt and will use their power to engage in illegal and horrendous crimes. This\nwas a hard lesson for me to learn, but an eye-opening one that would forever change the way I supervised those\nofficers in my command.\n\n259\n\n\x0c6.13.Current Issues: Body Cameras\n\nTIFFANY MOREY\n\nAn overwhelming number of police officers welcome body cameras, just like citizens. The reason being the\nhigh number of citizen complaints received which center around a citizen exaggerating or lying in order to\ntry and get out of an expensive traffic related citation. \xe2\x80\x98The officer yelled at me and made me feel stupid and\nused profanity.\xe2\x80\x99 Is an example of a citizen complaint often reported to a supervisor. Body camera footage of\nthe incident more than often shows the exact opposite. The truth often is that the citizen did run the red light\nor failed to stop at the stop sign and did not want to accept responsibility and pay the fine. Body cameras\nchanged the environment of citizen complaints; however, body cameras also ensure that grass-eaters do not\npartake in temptation. Moreover, those meat-eaters are held accountable for excessive use of force or illegal\nactions.\nBody cameras would seem to be the panacea for all police misconduct, the truth of the matter is not so\nconcrete. First, body cameras only show one point of view. Until small drones can hover above the officer\nshowing a 360-degree view, the accurate recollection of an event can never be indeed known. Second, no\nmatter how full-proof department policies and procedures regulate the use of body cameras, there will always\nbe a user that can turn off the camera in certain situations. Body cameras are one answer in a giant puzzle\nto hamper and stop police misconduct. As technology improves, so hopefully will view the body cameras\nrecord.\nPolice Body Cameras: What Do You See Exercise\n\nhttps://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html\n\xe2\x80\x9cPeople are expecting more of body cameras than the technology will deliver,\xe2\x80\x9d Professor Stoughton said. \xe2\x80\x9cThey\nexpect it to be a broad solution for the problem of police-community relations, when in fact it\xe2\x80\x99s just a tool, and like\nany tool, there\xe2\x80\x99s limited value to what it can do.\xe2\x80\x9d You will have a 500-word response to the questions below.\n\xe2\x80\xa2\n\nFirst, go to the above link and complete the activity. Be as honest with yourself as possible.\n\n\xe2\x80\xa2\n\nSecond, after the videos and this experiment, has your view of policing and the role of video changed?\nDo you think body cameras are worth the expense or could we do without? What are the pros and cons?\n\n260\n\n\x0c6.14. Myth: \xe2\x80\x9cPolice Only Write Speeding Tickets to Harass Citizens\nand it is Entrapment.\xe2\x80\x9d\n\nTIFFANY MOREY\n\nMany people believe that a traffic officer or for that fact, any police officer, who is engaging in speed\nenforcement and is hidden, is guilty of entrapment and such behavior is tantamount to harassment. First, an\nofficer does not have to be wholly or partially visible in order for a traffic citation to be valid. Also, the officer\ndoes not have to take you to, or show you a photo of, the speed limit sign (applicable for the location you\nwere driving), before a citation is issued. If you get behind the wheel of a motor vehicle, you are required\nto know the speed limit of the roads you drive. If you decide to speed, even just one mile over the speed\nlimit, you are, by the letter of the law, speeding, and this is a traffic offense. If an officer either through\nradar or visual speed estimation, determines you are speeding, that officer has every legal right, to issue you\na speeding citation.\nHowever, let\xe2\x80\x99s consider a different situation. If, while having coffee at a local coffee shop, an officer started\nchatting with you about a new speed limit along Main St. The officer told you that the speed limit had been\nraised from 20 mph to 35 mph (which was a lie); and believing that officer, you left the coffee shop and drove\nalong Main St. going 35 mph. You then glanced up and saw the unmistakable red and blue lights in your\nrear-view mirror. You were stopped by a different officer, who told you the speed limit was only 20 mph\n(not 35 mph) and issued you a speeding citation. These actions would be considered entrapment because the\nother officer was trying to get you to engage in criminal behavior.\nNow onto why it is not harassment for an officer to give out speeding citations. According to The\nAssociation for Safe International Road Travel; \xe2\x80\x9cNearly 1.25 million people die in road crashes each year,\nand an additional 20-50 million are injured or disabled\xe2\x80\x9d (2018). Our police are tasked with making our roads\nsafe and saving lives. Since 3,287 people die every DAY from traffic collisions, police must take responsibility\nand try to lower this massive number. Therefore, police study not only where these crashes are occurring,\nbut the mitigating factors that cause them. It may surprise you to know that the number one cause for road\ncrashes, is speeding. How do police then slow people down? Education is the first step, however, sometimes\nthe only way to educate is through a speeding citation.\nThe next time you get a speeding citation (for going faster than the posted speed limit), instead of accusing\n\n261\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nthe officer of harassment, you should take responsibility and be the first step in lowering the number of\n1\ndeaths from related road crashes.\n\n1. Road Safety Facts. (2018). Retrieved from https://www.asirt.org/safe-travel/road-safety-facts/\n\n262\n\n\x0c7: Courts\n\nLearning Objectives\n\nThis section examines the structure and function of the criminal courts in America. It examines the concept of\njurisdiction and describes the dual court system (the federal court system and the various state court systems). This\nsection also examines the role and function of the various courtroom participants\xe2\x80\x93the people who work in the\ncourts. After reading this section, students will be able to:\n\xe2\x80\xa2\n\nDifferentiate between what happens at trial and what happens on appeal and identify the procedural\nhistory of a criminal case by reading appellate opinions written in the case.\n\n\xe2\x80\xa2\n\nDescribe how a crime/criminal case proceeds from the lowest level trial court up through the U.S.\nSupreme Court. (i.e., students should understand the hierarchy of the federal and state courts).\n\n\xe2\x80\xa2\n\nDiscuss the function and selection of state and federal trial and appellate judges in the American\ncriminal justice system.\n\n\xe2\x80\xa2\n\nDiscuss the function and selection of state and federal prosecutors in the American criminal justice\nsystem.\n\n\xe2\x80\xa2\n\xe2\x80\xa2\n\nDiscuss the importance of the criminal defense attorney in the American criminal justice system.\nIdentify at what stages of the criminal justice process a defendant is entitled to the assistance of a courtappointed attorney.\n\nCritical Thinking Questions\n\n1.\n\nKnowing what happens at trial and what happens on appeal, would you be more interested in being\na trial judge or an appellate judge? Why?\n\n2.\n\nWhy is there a different standard of review for questions of fact and questions of law?\n\n3.\n\nDo you agree that cases should be overturned only when there was a fundamental or prejudicial error\n\n263\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nthat occurred during the trial?\n4.\n\nDo you think it is easier to be a defense attorney than a prosecutor believing the defendant is guilty\nbut knowing that the justice system has violated the defendant\xe2\x80\x99s rights?\n\n5.\n\nShould the defendant ever waive the assistance of counsel?\n\n6.\n\nIs there any position as a court staff that particularly interests you? Why?\n\n264\n\n\x0c7.1. Introduction to the U.S. Court System\n\nLORE RUTZ-BURRI\n\nWhat follows is an examination of the structure and role of the courts in the American criminal justice system\nand the requirement of jurisdiction. As you read this chapter, pay attention to the context when you see the\nword \xe2\x80\x9ccourt\xe2\x80\x9d because it is used in a variety of ways. \xe2\x80\x9cCourt\xe2\x80\x9d can mean a building\xe2\x80\x94it is short for \xe2\x80\x9ccourthouse\xe2\x80\x9d\n(for example, \xe2\x80\x9che went to the court\xe2\x80\x9d); one judge (for example, \xe2\x80\x9cthe trial court decided in his favor\xe2\x80\x9d); a group of\njudges (for example, \xe2\x80\x9cthe Supreme Court unanimously upheld the conviction\xe2\x80\x9d), or an institution/process generally\n(for example, \xe2\x80\x9ccourts hopefully resolve disputes in an even-handed manner\xe2\x80\x9d). Courts (the institution and processes)\ndetermine both the facts of a crime (did the defendant do the crime?) and also the legal sufficiency of the criminal\ncharge (can the government prove it?). Courts ensure that criminal defendants are provided due process of law,\nor the procedures used to convict the defendant are fair. Courts are possibly more important in criminal cases than\nin civil cases because, in civil matters, the parties have the option of settling their disputes outside of the court\nsystem, but all criminal prosecutions must be funneled through the criminal courts.\nAfter reading this chapter, you will be able to project the trajectory of a criminal case from the filing of\ncriminal charges in a local courthouse through all final appeals processes. This requires an understanding of the\ndual court system, the structure of typical state court systems and the federal court system. This chapter explores\nthe differences between a trial court and an appellate court, and you will learn how trial judges and juries decide\n(determine the outcome of) a case by applying the legal standards to the facts presented during trial and how\nappellate judges decide if the case was rightly decided after examining the trial record for legal error. Appellate\ncourts make known their decisions known through their written opinions, and this chapter introduces the types of\nopinions and rulings of appellate courts.\nThis chapter also examines the selection, roles, and responsibilities of the participants in the criminal courts\nfrequently referred to as the courtroom workgroup. You will become familiar with who the players are during\neach of these steps of the process.\n\n265\n\n\x0c7.2. Jurisdiction\n\nLORE RUTZ-BURRI\n\nIn order to understand the courts, it is essential to understand the many facets of the word jurisdiction.\nJurisdiction refers to the legal authority to hear and decide a case (legal suit).\n\nJurisdiction Based on the Function of the Court\nTrial Courts versus Appellate Courts\nJurisdiction may be based on the function of the court, such as the difference between trial and appellate\nfunctions. The federal and state court systems each have court hierarchies that divide trial courts and\nappellate courts. Trial courts have jurisdiction over pretrial matters, trials, sentencing, probation, and parole\nviolations. Trial courts deal with facts. Did the defendant stab the victim? Was the eyewitness able to clearly\nsee the stabbing? Did the probationer willfully violate terms of probation? As a result, trial courts determine\nguilt and impose punishments.\nAppellate courts, on the other hand, review the decisions of the trial courts. They are primarily\nconcerned with matters of law. Did the trial judge properly instruct the jury about the controlling law?\nDid the trial court properly suppress evidence in a pretrial hearing? Does the applicable statute allow the\ndefendant to raise a particular affirmative defense? Appellate courts correct legal errors made by trial courts\nand develop law when new legal questions arise. Appellate courts do not hold hearings in which evidence\nis developed, but rather they only review the record, or \xe2\x80\x9ctranscript\xe2\x80\x9d, of the trial court. In some instances,\nappellate courts determine if it is legally sufficient, or enough, evidence to uphold a conviction.\n\nJurisdiction Based on Subject Matter\n\n266\n\n\x0cIntroduction to the American Criminal Justice System\n\nJurisdiction can also be based on the subject matter of the case. For example, criminal courts handle\ncriminal matters, tax courts handle tax matters, and customs and patent courts handle patent matters.\nRegarding \xe2\x80\x9csubject matter jurisdiction\xe2\x80\x9d Kerper (1979, 34) noted,\n\xe2\x80\x9cThe [subject matter] jurisdictional distinction . . . tends to be utilized primarily in distinguishing\nbetween different trial courts. Appellate courts ordinarily can hear all types of cases, although there\nare several states that have separate appellate courts for criminal and civil appeals. At the trial level,\nmost states have established one or more specialized courts to deal with particular legal fields. The\nmost common areas delegated to specialized courts are wills and estates (assigned to courts\ncommonly known as probate . . . courts), divorce, adoption or other aspects of family law (family or\ndomestic relations courts), and actions based on the English law of equity (chancery courts). The\nfederal system also includes specialized courts for such areas as customs and patents. While\nsignificant, the specialized courts represent only a small portion of all trial courts. Most trial courts\nare not limited to a particular subject but may deal with all fields. Such trial courts are commonly\ndescribed as having general jurisdiction since they cover the general (i.e., non-specialized) areas of\nlaw. Criminal cases traditionally are assigned to courts with general jurisdiction.\xe2\x80\x9d\n\n1\n\nJurisdiction Based on the Seriousness of the Case\nThe jurisdiction of trial courts may also be based on the seriousness of the case. For example, some\ncourts, called courts of limited jurisdiction only have authority to try infractions, violations, and petty\ncrimes (misdemeanors) whereas other trial courts, called courts of general jurisdiction, have authority to\ntry serious crimes (felonies) as well as minor crimes and offenses.\n\nJurisdiction Based on the Court\xe2\x80\x99s Authority over the Parties to the Case\nJurisdiction also refers to the court\xe2\x80\x99s authority over the parties in the case. For example, juvenile courts\nhave jurisdiction over dependency and delinquency cases involving youth. Other courts have jurisdiction\nthat is based on the special nature of the parties are the military tribunals, including courts-martial, Courts\nof Criminal Appeals, and the United States Court of Appeals for the Armed Services.\n\n1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.\n\n267\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nJurisdiction based on State and Federal Autonomy (Geography)\nFinally, jurisdiction is also tied to our system of federalism, the autonomy of both national and state\ngovernments. State courts have jurisdiction over state matters, and federal courts have jurisdiction over\nfederal matters. Jurisdiction is most commonly known to represent geographic locations of the court\xe2\x80\x99s\noversight. For example, Oregon courts do not have jurisdiction over crimes in California.\n\n268\n\n\x0c7.3. Structure of the Courts: The Dual Court and Federal Court\nSystem\n\nLORE RUTZ-BURRI\n\nSeparate Federal and State Court Systems\nEach state has two complete parallel court systems: the federal system, and the state\xe2\x80\x99s own system. Thus,\nthere are at least 51 legal systems: the fifty created under state laws and the federal system created under\nfederal law. Additionally, there are court systems in the U.S. Territories, and the military has a separate court\nsystem as well.\nThe state/federal court structure is sometimes referred to as the dual court system. State crimes, created\nby state legislatures, are prosecuted in state courts which are concerned primarily with the applying state\nlaw. Federal crimes, created by Congress, are prosecuted in the federal courts which are concerned primarily\nwith applying federal law. As discussed below, it is possible for a case to move from the state system to the\nfederal system when a defendant challenges the conviction on direct appeal through a writ of certiorari, or\nwhen the defendant challenges the conditions of confinement through a writ of habeas corpus.\nDual Court System Structure\n\nHighest Appellate Court\n\nU.S. Supreme Court (Justices)\n(NoteCourt also has original/trial court\njurisdiction in rare cases) (Note: Court\nwill also review petitions for writ of\ncertiorari from State Supreme Court\ncases).\n\nState Supreme Court (Justices)\n\nIntermediate Appellate Court\n\nU.S. Circuit Court of Appeals (Judges)\n\nState Appellate Court (e.g., Oregon\nCourt of Appeals) (Judges)\n\nTrial Court of General Jurisdiction\n\nU.S. District Court (Judges) (Note: this\ncourt will review petitions for writs of\nhabeas corpus from federal and state\ncourt prisoners)\n\nCircuit Court, Commonwealth Court,\nDistrict Court, Superior Court (Judges)\n\nTrial Court of Limited Jurisdiction\n\nU.S. Magistrate Courts (Magistrate\nJudges)\n\nDistrict Court, Justice of the Peace,\nMunicipal Courts (Judges, Magistrates,\nJustices of the Peace)\n\nThe Federal Court System\nArticle III of the U.S. Constitution established a Supreme Court of the United States and granted Congress\n269\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\ndiscretion as to whether to adopt a lower court system. It states the \xe2\x80\x9cjudicial Power of the United States\nshall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time\nordain and establish.\xe2\x80\x9d Fearing that the state courts might be hostile to congressional legislation, Congress\n1\nimmediately created a lower federal court system in 1789. The lower federal court system has been\nexpanded over the years, such as when Congress created the separate appellate courts in 1891.\n\nView the authorized federal judgeships at http://www.uscourts.gov/sites/default/files/allauth.pdf\n\nTrace the history of the federal courts at https://www.fjc.gov/history/timeline/8276\n\nTrace the history of the subject matter jurisdiction of the federal courts here https://www.fjc.gov/history/\ntimeline/8271\n\nView cases that shaped the roles of the federal courts at https://www.fjc.gov/history/timeline/8271\n\nTrace the administration of the federal courts at https://www.fjc.gov/history/timeline/8286\n\nUnited States Supreme Court\nThe United States Supreme Court (Court), located in Washington, D.C., is the highest appellate court\nin the federal judicial system. Nine justices sitting en banc, as one panel, together with their clerks and\nadministrative staff, make up the Supreme Court. [View the biographies of the current U.S. Supreme\nCourt Justices here: https://www.supremecourt.gov/about/biographies.aspx]. The Court\xe2\x80\x99s decisions have the\nbroadest impact because they govern both the state and federal judicial system. Additionally, this Court\ninfluences federal criminal law because it supervises the activities of the lower federal courts. The nine\njustices have the final word in determining what the U.S. Constitution permits and prohibits, and it is most\n1. (The Judiciary Act of 1789 (Ch. 20, 1 Stat 73)\n\n270\n\n\x0cIntroduction to the American Criminal Justice System\n\ninfluential when interpreting the U.S. Constitution. Associate Justice of the Supreme Court, Robert H.\nJackson stated in Brown v. Allen, 344 U.S. 433, 450 (1953), \xe2\x80\x9cWe are not final because we are infallible, but we\nare infallible only because we are final.\xe2\x80\x9d Although it is commonly thought that the U.S. Supreme Court has\nthe final say, this is not one hundred percent accurate. After the Court has read written appellate briefs and\nlistened to oral arguments, it will \xe2\x80\x9cdecide\xe2\x80\x9d the case. However, it frequently refers or sends, the case back to\nthe state\xe2\x80\x99s supreme court for them to determine what their own state constitution holds. Similarly, as long as\nthe Court has interpreted a statute and not the constitution, Congress can always enact a new statute which\nmodifies or nullifies the Court\xe2\x80\x99s holding.\n\nWrits of Certiorari and the Rule of Four\nThe Court has a discretionary review over most cases brought from the state supreme courts and federal\nappeals courts in a process called a petition for the writ of certiorari. Four justices must agree to accept\nand review a case, and this only happens in roughly 10% of the cases filed. (This is known as the rule\nof four.) Once accepted, the Court schedules and hears oral arguments on the case, then delivers written\nopinions. Over the past ten years, approximately 8,000 petitions for writ of certiorari are filed annually.\nIt is difficult to guess which cases the court will accept for review. However, a common reason the court\naccepts to review a case is that the federal circuits courts have reached conflicting results on important issues\npresented in the case.\n\nTake a virtual tour of the U.S. Supreme Court building: https://www.oyez.org/tour\n\nThe United States Supreme Court Building\n\xe2\x80\x9cThe United States Supreme Court occupies a majestic building in Washington, D.C., with spacious\noffice suites and impressive corridors and library facilities. With enhancements and attributes similar\nto those of appellate courts, the elegance and dignity of the facilities comport with the significant role\nof the Court as the final arbiter in the nation\xe2\x80\x99s judicial system. There is a sparse crowd at most state\nand intermediate federal appellate courts; at the Supreme Court, by contrast, parties interested in the\ndecisions that will result from arguments, a coterie of media persons, and many spectators fill the courtroom\nto hear arguments in cases that often significantly affect the economic, social, and political life of the\n\n271\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nnation. Photography is not allowed, and the arguments and dialogue between counsel and the justices are\nobserved silently and respectfully by those who attend.\xe2\x80\x9d\n\n2\n\nTake a tour of the U.S. Supreme Court with CNN: https://www.youtube.com/watch?v=Unyswl36q8w\n\nOriginal (Trial Court) Jurisdiction of the Supreme Court: A Rarity\nWhen the Court acts as a trial court it is said to have original jurisdiction, and it does so in a few\nimportant situations, such as when one state sues another state. The U.S. Constitution, Art. III, \xc2\xa72, sets\nforth the jurisdiction of the Court. It states,\n\xe2\x80\x9cThe judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the\nLaws of the United States, and Treaties made, or which shall be made, under their Authority;-to all\nCases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime\nJurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or\nmore States;-between a State and Citizens of another State;-between Citizens of different States;-between\nCitizens of the same State claiming Lands under Grants of different States, and between a State, or the\nCitizens thereof, and foreign States, Citizens or Subjects.\nIn all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall\nbe Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the\nSupreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under\nsuch Regulations, as the Congress shall make.\xe2\x80\x9d\nOriginal jurisdiction cases are rare for several reasons. First, the Constitution prohibits Congress from\nincreasing the types of cases over which the Supreme Court has original jurisdiction. Second, parties in an\noriginal jurisdiction suit must get permission by petitioning the court to file a complaint in the Supreme\nCourt. In fact, there is no right to have a case heard by the Supreme Court, even though it may be the\nonly venue in which the case may be brought. The Supreme Court may deny petitions for it to exercise\noriginal jurisdiction because it finds that the dispute between the states is too trivial, or conversely, too\nbroad, and complex. The Court does not need to explain why it refuses to take up an original jurisdiction\ncase. Original jurisdiction cases are also rare because, except in suits or controversies between two states,\nthe Court has increasingly permitted the lower federal courts to share its original jurisdiction.\n\n2. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 45). Belmont, CA: Cengage.\n\n272\n\n\x0cIntroduction to the American Criminal Justice System\n\nUnited States Courts of Appeal\nNinety-four judicial districts comprise the 13 intermediate appellate courts in the federal system known as\nthe U.S. Courts of Appeals, sometimes referred to as the federal circuit courts. These courts hear challenges\nto lower court decisions from the U.S. District Courts located within the circuit, as well as appeals from\ndecisions of federal administrative agencies, such as the social security courts or bankruptcy courts. There\nare twelve circuits based on geographic locations and one federal circuit which has nationwide jurisdiction\nto hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S. Court\nof International Trade and the U.S. Court of Federal Claims. The smallest circuit is the First Circuit with\nsix judgeships, and the largest court is the Ninth Circuit, with 29 judgeships. Appeals court panels consist of\nthree judges. The court will occasionally convene en banc and only after a party who has lost in front of the\nthree-judge panel requests review. Because the Circuit Courts are appellate courts which review trial court\nrecords, they do not conduct trials and, thus, they do not use a jury.\nThe U.S. Courts of Appeal, like the U.S. Supreme Court, trace their existence to Article III of the U.S.\nConstitution. These courts are busy, and there have been efforts to both fill vacancies and increase the\nnumber of judgeships to help deal with the caseloads. For example, the Federal Judgeship Act of 2013 would\nhave created five permanent and one temporary circuit court judgeships, in an attempt to keep up with\nincreased case filings. However, the bill died in Congress. Fortunately, in recent years, fewer cases have been\nfiled.\n\nClick\n\non\n\nthis\n\nlink\n\nto\n\nsee\n\nthe\n\ngeographical\n\njurisdiction\n\nof\n\nthe\n\nU.S.\n\nCourts\n\nof\n\nAppeals: http://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf\n\nUnited States District Courts\nThe U.S. District Courts, also known as \xe2\x80\x9cArticle III Courts\xe2\x80\x9d, are the main trial courts in the federal court\nsystem. Congress first created these U.S. District Courts in the Judiciary Act of 1789. Now, ninety-four\nU.S. District Courts, located in the states and four territories, handle prosecutions for violations of federal\nstatutes. Each state has at least one district, and larger states have up to four districts. Each district court is\ndescribed by reference to the state or geographical segment of the state in which it is located (for example,\nthe U.S. District Court for the Northern District of California). The district courts have jurisdiction over all\nprosecutions brought under federal criminal law and all civil suits brought under federal statutes. A criminal\ntrial in the district court is presided over by a judge who is appointed for life by the president with the\nconsent of the Senate. Trials in these courts may be jury trials.\n\nLink to a number of cases filed in U.S. District Courts http://www.uscourts.gov/federal-judicialcaseload-statistics-2018-tables\n\nAlthough the U.S. District Courts are primarily trial courts, district court judges also exercise an appellate273\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\ntype function in their review of petitions for writs of habeas corpus brought by state prisoners. Writs of\nhabeas corpus are claims by state and federal prisoners who allege that the government is illegally confining\nthem in violation of the federal constitution. The party who loses at the U.S. District Court can appeal the\ncase in the court of appeals for the circuit in which the district court is located. These first appeals must be\nreviewed, and thus are referred to as appeals of right.\nUnited States Magistrate Courts\nU.S. Magistrate Courts are courts of limited jurisdiction in the federal court system, meaning that these\nlegislatively-created courts do not have full judicial power. Congress first created the U.S. Magistrate Courts\nwith the Federal Magistrate Act of 1968. Under the Act, federal magistrate judges assist district court judges\nby conducting pretrial proceedings, such as setting bail, issuing warrants, and conducting trials of federal\nmisdemeanor crimes. There are more than five hundred Magistrate Judges who disposed of over one million\nmatters.\n\nIn the News: https://www.uscourts.gov/sites/default/files/data_tables/jb_s17_0930.2017.pdf)\n\nU.S. Magistrate Courts are \xe2\x80\x9cArticle I Courts\xe2\x80\x9d as they owe their existence to an act of Congress, not the\nConstitution. Unlike Article III judges who hold lifetime appointments, Magistrate Judges, formerly referred\nto as \xe2\x80\x9cMagistrates\xe2\x80\x9d before the Judicial Improvement Act which took effect December 1, 1990, are appointed\nfor eight-year terms.\n\nFor a comprehensive review of the U.S. Magistrate Courts and U.S. Magistrate Judges\nsee: http://www.fedbar.org/PDFs/A-Guide-to-the-Federal-Magistrate-Judge-System\n\nCourt Assignment\n\nWatch season two of the popular Netflix series, Making a Murder which covers the appeals of the murder\nconvictions of Steven Avery and his nephew Brendan Dassey. Pay attention to the discussions among Brendan\nDassey\xe2\x80\x99s appellate team from Northwestern School of Law concerning the appeals process from the state courts\nthrough the federal Seventh Circuit Court of Appeals, which convened en banc after a 2-1 panel decision finding\nBrendan Dassey\xe2\x80\x99s confession was inadmissible.\nSee\n\nalso, http://involuntary.http://www.abajournal.com/news/article/\n\nen_banc_7th_circuit_reinstates_brendan_dasseys_conviction_in_making_a_murde?icn=most_read\n\xe2\x80\xa2\n\nWrite a 500-word response about what you saw during the appeals process and how it made you feel.\nDid you agree with it or disagree with it? Is this justice?\n\n274\n\n\x0cIntroduction to the American Criminal Justice System\n\nClick on this link to see the number of filings: http://www.uscourts.gov/statistics-reports/federaljudicial-caseload-statistics-2018\n\n275\n\n\x0c7.4. Structure of the Courts: State Courts\n\nLORE RUTZ-BURRI\n\nState Court Systems\nEach state has its own independent judicial system. State courts handle more than 90 percent of criminal\nprosecutions in the United States. Although state court systems vary, there are some common features. Every\nstate has one or more level of trial courts and at least one appellate court. Although there is no federal\nconstitutional requirement that defendants be given the right to appeal their convictions, such a right is\narguably implicit in the due process clause of the Fourteenth Amendment. Moreover, every state has some\nprovision, usually within its own constitution or statutes, that provides defendants at least one appeal. Most\nstate courts have both courts of general jurisdiction, which conduct felony and major misdemeanor trials, and\ncourts of limited jurisdiction, which conduct violations, infractions, and minor misdemeanor trials. Similar to\nthe U.S. Magistrate Courts, states\xe2\x80\x99 courts of limited jurisdiction will also handle pre-trial matters for felonies\nuntil they are moved into the general jurisdiction court. Most states have intermediate courts of appeals and\nsome have more than one level of these courts. All states have a court of last resort, generally referred to as\nthe Supreme Court. Some states court systems are streamlined, and some are complex, with most states fall\nbetween the two extremes.\nHierarchy of State Courts\nState trial courts tend to be busy, bustling places with lots of activity. Appellate courts, on the other hand,\ntend to be solemn and serene, formal places. Scheb noted,\n\xe2\x80\x9cAppellate courts are different than trial courts, both in function and \xe2\x80\x98feel.\xe2\x80\x99 Unlike a trial court, which is\nnormally surrounded by a busy atmosphere, an appellate court often sits in the state capitol building or its\nown facility, usually with a complete law library. The d\xc3\xa9cor in the building that house appellate courts is\nusually quite formal, and often features portraits of former judges regarded as oracles of the law. When a\npanel of judges sits to hear oral arguments, they normally emerge from behind a velvet curtain on a precise\nschedule and to the cry of the court\xe2\x80\x99s marshal. When not hearing oral arguments, appellate judges usually\noccupy a suite of offices with their secretaries and law clerks. It is in these individual chambers that appellate\n1\njudges study and write their opinions on cases assigned to them.\xe2\x80\x9d\nKerper describes the flow of a case through the hierarchical structure of the courts as follows:\n\n1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 43). Belmont, CA: Cengage.\n\n276\n\n\x0cIntroduction to the American Criminal Justice System\n\n\xe2\x80\x9cWhen the specialized courts are put to one side, we find that a judicial system typically has three or\npossibly four levels of courts. This will be the hierarchy commonly applicable to criminal cases.\nAt the bottom level in the typical hierarchy will be the magistrate court. Judges on that level will\ntry minor civil and criminal cases. They will also have some preliminary functions in the more serious\nfelony cases that will eventually be tried in the general trial court. Thus a person arrested on a felony\ncharge initially will be brought before a magistrate who will inform the arrestee of the charge against\nhim, set bail, and screen the prosecution\xe2\x80\x99s case to ensure that it is sufficient to send on to the general\ntrial court.\nAt the next court level is the general trial court, which will try all major civil and criminal cases.\nWhile this court is predominantly a trial court, it also serves as an appellate court for the minor cases\ntired in the magistrate court. Thus, if a defendant is convicted on a misdemeanor charge in a magistrate\ncourt, his natural route of appeal is to the general trial court as the next highest court. The appellate\nreview in the general trial court will take a special form where the magistrate court is one described as\na court \xe2\x80\x9cnot of record.\xe2\x80\x9d In most instances, however, the general trial court will review the record in the\nmagistrate court for possible error in the same way that the appellate court at the next tier will review\nthe trial decisions of the general trial court in major cases.\nThe court at the next level may be either the first of two or the only general appellate court in the\njudicial hierarchy. In almost half of the states and the federal system, there are two appellate tiers. The\nfirst appellate court, which would be at the third level in the hierarchy, is commonly described as the\nintermediate appellate court. The next level of appellate court is the appellate court of last resort; it is\nthe highest court to which a case can ordinarily be taken. These highest appellate courts frequently are\ntitled, \xe2\x80\x9csupreme courts.\xe2\x80\x9d . . . Where a judicial system has two tiers of appellate courts, the supreme court\nwill be at the fourth level of the hierarchy. In those states that have only one tier, there is no intermediate\nappellate court. The supreme court is the court at the third level of the hierarchy.\nIn most jurisdictions, the losing party at trial is given an absolute right to one level of appellate\nreview, but any subsequent reviews by a higher appellate court are at the discretion of that higher\ncourt. Thus, in a system that has no intermediate appellate court, a defendant convicted of a felony in\na general trial court has an absolute right to have his conviction reviewed by the next highest court,\nthe supreme court. In a system that has an intermediate appellate court, the felony defendant\xe2\x80\x99s absolute\nright to review extends only to that intermediate court. If that court should decide the case against him,\nthe defendant can ask the supreme court to review his case, but it need do so only at its discretion. The\napplication requesting such discretionary review is called a petition for certiorari. If the court decides\nto review the case, it issues a writ of certiorari directing that the record in the case be sent to it\nby the intermediate appellate court. Those supreme courts having discretionary appellate jurisdiction\ncommonly refuse to grant most petitions for certiorari, limiting their review to the most important\ncases. Consequently, even where a state judicial hierarchy has four rather than three levels, most civil or\ncriminal cases will not get beyond the third level.\nOur description of the hierarchy of the courts has assumed so far that all trial courts are \xe2\x80\x9ccourts\nof record,\xe2\x80\x9d and appellate review accordingly will be on the record. There is one major exception to\nthat assumption which we should note\xe2\x80\x94the court \xe2\x80\x9cnot of record.\xe2\x80\x9d The division between courts of\nrecord and courts not of the record originally was drawn when many trial courts lacked the mechanical\ncapacity to maintain a complete record of their proceedings. If a court could provide such a record, the\nlosing party could readily gain an appellate review of the trial decision before the next highest court.\nIf the record was not available, however, the higher court had no way of examining the proceedings\n277\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nbelow to determine if an error was committed. Without a court of record, a second look at the\ncase could only be provided by the higher court giving the case de novo consideration (i.e., fresh\nconsideration). This was done by conducting a new trial called a trial de novo. The trial de novo was\nnot in fact appellate review, since it did not review the decision below, but proceeded as if the case had\nbegun in the higher court. The trial de novo simply was a substitute for appellate review, necessitated\n2\nby the absence of a record.\xe2\x80\x9d\n\n2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 38-39). West Publishing Company.\n\n278\n\n\x0c7.5. American Trial Courts and the Principle of Orality\n\nLORE RUTZ-BURRI\n\nAt trial, the state will present evidence showing facts demonstrating that the defendant committed the crime.\nThe defendant may also present facts that show he or she did not commit the crime. The principle of\norality requires that the trier of fact (generally the jury, but the judge when the defendant waives a jury\ntrial) considers only the evidence that was developed, presented, and received into the record during the trial.\nAs such, jurors should only make their decision based upon the testimony they heard at trial in addition to\nthe documents and physical evidence introduced and admitted by the court. The principle of orality would\nbe violated if, for example, during deliberations, the jury searched the Internet to find information on the\ndefendant or witnesses. Similarly, if the police question the defendant and write a report, the jury cannot\nconsider the contents of the report unless it has been offered in a way that complies with the rules of evidence\nand the court has received it during the trial. The principle of orality distinguishes the functions of a trial\ncourt, developing the evidence, and the function of the appellate courts, reviewing the record for legal error.\nThe principle of orality is one major difference between the adversarial system generally followed by the\nUnited States and the inquisitorial system generally followed in most other countries. Frequently in civil\nlaw countries (for example, most European nations), the police, prosecutors, or investigating magistrates\nquestion witnesses prior to trial and write summaries of their statements called a dossier. In determining\nguilt, the trier of fact is presented with just the summaries of the witness statements. The trial in civil law\ncountries is less about the presentation of evidence establishing the defendant\xe2\x80\x99s guilt and more about the\ndefendant\xe2\x80\x99s presentation of mitigation evidence which assists the court in giving an appropriate sentence, or\nsanction.\n\n279\n\n\x0c7.6. The Appeals Process, Standard of Review, and Appellate\nDecisions\n\nLORE RUTZ-BURRI\n\nThe Appeals Process\nThe government cannot appeal a jury\xe2\x80\x99s decision by acquitting the defendant, or finding the defendant\nnot guilty. Thus, most criminal appeals involve defendants who have been found guilty at trial. The\ngovernment may appeal a court\xe2\x80\x99s pretrial ruling in a criminal matter before the case is tried, for example a\ndecision to suppress evidence obtained in a police search. This is called an interlocutory appeal. Although\nthe defendant is permitted to appeal after entering a guilty plea, the only basis for his or her appeal is to\nchallenge the sentence given. When the defendant appeals, he or she is now referred to as the appellant,\nand the State is the appellee. (Note that often the court will use the words petitioner and respondent.\nThe petitioner is the party who lost in the last court who is petitioning the next level court for review; the\nrespondent is the party who won in the last court). In routine appeals, the primary function of appellate\ncourts is to review the record to discern if errors were made by the trial court before, during, or after the trial.\nNo trial is perfect, so the goal is to ensure there was a fair, albeit imperfect, trial. Accordingly, the appellate\ncourts review for fundamental, prejudicial or plain error. Appellate courts will reverse the conviction and\npossibly send the case back for a new trial when they find that trial errors affected the outcome of the case. A\nlower court\xe2\x80\x99s judgment will not be reversed unless the appellant can show that some prejudice resulted from\nthe error and that the outcome of the trial or sentence would have been different if there had been no\nerror. By reviewing for error and then writing opinions that become case law, appellate courts perform dual\nfunctions in the criminal process: error correction and lawmaking.\nAppellate judges generally sit in panels of three judges. They read the appellant\xe2\x80\x99s brief (a written\ndocument filed by the appellant), the reply brief (a written document filed by the the appellee), and any\nother written work submitted by the parties or friend of the court amicus curiae briefs. Amicus curiae are\nindividuals or groups who have an interest in the case or some sort of expertise but are not parties to the case.\nThe appellate panel will generally listen to very short oral arguments, generally twenty minutes or less, by\nthe parties\xe2\x80\x99 attorneys. During these oral arguments, it is common for the appellate judges to interrupt and ask\nthe attorneys questions about their positions. The judges will then consider the briefs and arguments and\nthe panel will then meet and deliberate and decide based on majority rule. If the appellate court finds that no\nerror was committed at trial, it will affirm the decision, but if it finds there was an error that deprived the\n280\n\n\x0cIntroduction to the American Criminal Justice System\n\nlosing party of a fair trial, it may issue an order of reversal. When the case is reversed, in most instances, the\ncourt simply will require a new trial during which the error will not be repeated. This is called a remand.\nIn some cases, however, the order of reversal might include a direction to dismiss the case completely, for\nexample when the appellate court concludes that the defendant\xe2\x80\x99s behavior does not constitute a crime under\nthe law in that state. When reading an opinion, also known as decisions, from an appellate court, you can\ntell the procedural history of a case (i.e., a roadmap of where the case has been: what happened at trial, what\nhappened as the case was appealed up from the various appellate courts).\nStandards of Review\nYou have just learned that one function of the appellate courts is to review the trial record and see if there is\na prejudicial or fundamental error. Appellate courts do not consider each error in isolation, but instead, they\nlook at the cumulative effect of all the errors during the whole trial. Appellate court judges must sometimes\nlet a decision of a lower court stand, even if they personally don\xe2\x80\x99t agree with it. Sports enthusiasts are familiar\nwith the use of instant/video replay, and it provides us a good analogy. Officials in football, for example, will\nmake a call, a ruling on the field, immediately after a play is made. This decision, when challenged, will be\nreviewed, and the decision will be upheld unless there is \xe2\x80\x9cincontrovertible evidence\xe2\x80\x9d that the call was wrong.\nWhen dealing with appeals, how much deference to show the lower court is the essence of the standard of\nreview. Sometimes the appellate courts will give great deference to the trial court\xe2\x80\x99s decision, and sometimes\nthe appellate courts will give no deference to the trial court\xe2\x80\x99s decision. How much deference to give is based\non what the trial court was deciding\xe2\x80\x94was it a question of fact, a question of law, or a mixed question of law\nand fact.\nThe appellate court will allow a trial court\xe2\x80\x99s decision about a factual matter to stand unless the court clearly\ngot it wrong. The appellate court reasons that the judge and jury were in the courtroom listening to and\nwatching the demeanor of the witnesses and examining the physical evidence. They are in a much better\nposition to determine the credibility of the evidence. Thus, the appellate court will not overturn findings of\nfact unless it is firmly convinced that a mistake has been made and that the trial court\xe2\x80\x99s decision is clearly\nerroneous or \xe2\x80\x9carbitrary and capricious.\xe2\x80\x9d The arbitrary and capricious standard means the trial court\xe2\x80\x99s decision\nwas completely unreasonable and it had no rational connection between the facts found and the decision\nmade. The lower courts finding will be overturned only if it is completely implausible in light of all of the\nevidence. One court noted, \xe2\x80\x9cWhere there are two permissible views of the evidence, the fact finder\xe2\x80\x99s choice\n1\nbetween them cannot be clearly erroneous.\xe2\x80\x9d\nSometimes the law requires, or at the parties\xe2\x80\x99 request, that a trial judge or jury make a special finding\nof fact. Findings of fact are made on the basis of evidentiary hearings and usually involve credibility\ndeterminations that are better made by the trial judge sitting in the courtroom listening to the evidence and\nobserving the demeanor of the witnesses. It is not enough that the appellate court may have weighed the\nevidence and reached a different conclusion unless the decision was clearly erroneous, the appellate court\nwill defer to the trial judge.\nTrial judges often make discretionary rulings., for example, whether to allow a party\xe2\x80\x99s request for a\ncontinuance or to allow a party to amend its pleadings or file documents late. In these matters of discretion,\nthe appellate court will only overturn the trial judge if they find such a decision was an abuse of discretion.\nThe lower court\xe2\x80\x99s judgment will be termed an abuse of discretion only if the judge failed to exercise sound,\nreasonable, and legal decision-making skills. A trial court abuses its discretion, for example, when: it does not\napply the correct law, erroneously interprets a law, rests its decision on a clearly inaccurate view of the law,\n1. United States v. Yellow Cab Co., 338 U.S. 338. 342 (1949).\n\n281\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nrests its decision on a clearly erroneous finding of a material fact, or rules in a completely irrational manner.\nAbuse of discretion exists when the record contains no evidence to support the trial court\xe2\x80\x99s decision.\nWhen it comes to questions of law, the appellate courts employ a different standard of review called de\nnovo review. De novo review allows the appellate court to use its own judgment about whether the trial\ncourt correctly applied the law. Appellate courts give little or no deference to the trial court\xe2\x80\x99s determinations\nand may substitute its own judgment on questions of law. Questions of law include interpretation of statutes\nor contracts, the constitutionality of a statute, the interpretation of rules of criminal and civil procedure. Trial\ncourts presume that laws are valid and do not violate the constitution, and the burden of proving otherwise\nfalls on the defendant. Trial courts sometimes get it wrong. De novo review allows the court to use its\nown judgment about whether the court correctly applied the law. Appellate judges are perhaps in a better\nposition to decide what the law is as the trial judge since they are not faced with the fast-pace of the trial and\nhave time to research and reflect.\nSometimes the trial court must resolve a question in a case that presents both factual and legal issues.\nFor example, if police stop and question a suspect, there are legal questions, such as whether the police\nhad reasonable suspicion for the stop or whether the questioning constituted an \xe2\x80\x9cinterrogation\xe2\x80\x9d, and factual\nquestions, such as whether police read the suspect the required warnings. Mixed questions of law and fact\nare generally reviewed de novo. However, factual findings underlying the lower court\xe2\x80\x99s ruling are reviewed\nfor clear error. Thus, if the application of the law to the facts requires an inquiry that is \xe2\x80\x9cessentially factual,\xe2\x80\x9d\nreview is for clear error.\nIn reviewing the trial court record, the appellate court may discover an error that parties failed to complain\nabout. Generally, appellate courts will not correct errors that aren\xe2\x80\x99t complained about, but this is not the case\nwhen they come upon plain error. Plain error exists \xe2\x80\x9c[w]hen a trial court makes an error that is so obvious\nand substantial that the appellate court should address it, even though the parties failed to object to the error\n2\nat the time it was made.\xe2\x80\x9d If the appellate court determines that the error was evident, obvious, clear and\nmaterially prejudiced a substantial right (meaning that it was likely that the mistake affected the outcome of\nthe case below in a significant way), the court may correct the error. Usually, the court will not correct plain\nerror unless it led to a miscarriage of justice.\nThe selection of the appropriate standard of review depends on the context. For example, the de novo\nstandard applies when issues of law tend to dominate in the lower court\xe2\x80\x99s decision. When a mixed question\nof law and fact is presented, the standard of review turns on whether factual matters or legal matters tend to\ndominate or control the court\xe2\x80\x99s decision. The controlling standard of review may determine the outcome of\nthe case. Sometimes the appellate court can substitute its judgment for that of the trial court and overturn a\nholding it does not agree with, but other times, it must uphold the lower court\xe2\x80\x99s decision even if it would\nhave decided differently.\nAppellate Decisions\nIn most appeals filed in the intermediate courts of appeal, the appellate panel will rule but not write a\nsupporting document called a written opinion stating why it ruled as it did. Instead, the appellate panel will\naffirm the lower court\xe2\x80\x99s decision without an opinion (colloquially referred to as an AWOP). Sometimes,\nhowever, appellate court judges will support their decisions with a written opinion stating why the panel\ndecided as it did and its reasons for affirming (upholding) or reversing (overturning) the lower court\xe2\x80\x99s\ndecision. The position and decision by the majority of the panel (or the entire court when it is a supreme\ncourt case), is, not surprisingly, called the majority opinion. Appellate court judges frequently disagree with\n2. (http://www.law.cornell.edu/wex/plain_error.)\n\n282\n\n\x0cIntroduction to the American Criminal Justice System\n\none another, and a judge may want to issue a written opinion stating why he or she has a different opinion\nthan the one expressed in the majority opinion. If a particular judge agrees with the result reached in the\nmajority opinion but not the reasoning, he or she may write a separate concurring opinion. If a judge\ndisagrees with the result and votes against the majority\xe2\x80\x99s decision, he or she will write a dissenting opinion.\nSometimes opinions are unsigned, and these are referred to as per curium opinions. Finally, if not enough\njustices agree on the result for the same reason, a plurality opinion will be written. A plurality opinion\ncontrols only the case currently being decided by the court and does not establish a precedent which judges\nin later similar cases must follow.\n\n283\n\n\x0c7.7. Federal Appellate Review of State Cases\n\nLORE RUTZ-BURRI\n\nThrough petitions for writ of certiorari, the U.S. Supreme Court will be in a position to review cases coming\nto it from the state courts. Because the review is discretionary, the Court will generally accept review only\nwhen these cases appear to involve a significant question involving the federal constitution. As a case works\nits way through the state appeals process, the state courts may have made rulings about both the federal\nconstitution and its own state constitution. Depending on the case and how the state opinions were written,\nthe U.S. Supreme Court may find it difficult to determine whether the state interpreted its own constitution,\nin which case the Court will not accept review, or whether it interpreted the federal constitution, in which\ncase the Court may accept review. The U.S. Supreme Court in Michigan v. Long, 463 U.S. 1032, at 1040-1041\n1\n(1983), explained when the Court will \xe2\x80\x9cweigh in\xe2\x80\x9d on a state court matter. It held,\n\xe2\x80\x9cWhen . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven\nwith the federal law, and when the adequacy and independence of any possible state law ground is not\nclear from the face of the opinion, we will accept as the most reasonable explanation that the state court\ndecided the case the way it did because it believed that federal law required it to do so. If a state court\nchooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions,\nthen it need only make clear by a plain statement in its judgment or opinion that the federal cases are\nbeing used only for the purpose of guidance, and do not themselves compel the result that the court has\nreached. In this way, both justice and judicial administration will be greatly improved. If the state court\ndecision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and\nindependent grounds, we, of course, will not undertake to review the decision.\nThis approach obviates [does away with] in most instances the need to examine state law in order\nto decide the nature of the state court decision, and will at the same time avoid the danger of our\nrendering advisory opinions. It also avoids the unsatisfactory and intrusive practice of requiring state\ncourts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will\nprovide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal\ninterference, and yet will preserve the integrity of federal law. \xe2\x80\x98It is fundamental that state courts be\nleft free and unfettered by us in interpreting their state constitutions. But it is equally important that\n\n1. Michigan v. Long, 463 U.S. 1032, at 1040-1041 (1983)\n\n284\n\n\x0cIntroduction to the American Criminal Justice System\n\nambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this\nCourt of the validity under the federal constitution of state action\xe2\x80\x99 (Citations omitted).\xe2\x80\x9d\n\n285\n\n\x0c7.8. Courtroom Players: Judges and Court Staff\n\nLORE RUTZ-BURRI\n\nIn their 1977 book, Felony Justice: An organizational analysis of criminal courts, James Eisenstein and Herbert\n1\nJacob, coined the term \xe2\x80\x9ccourtroom workgroup.\xe2\x80\x9d They specifically referred to the cooperative working\nrelationship between prosecutors, defense attorneys, and judges in working together (as opposed to an\nadversarial relationship that the public might expect) to efficiently resolve most of the cases in the criminal\ncourts. This chapter more generally uses the term to include all the individuals working in the criminal\ncourts\xe2\x80\x94judges, attorneys, and the variety of court staff.\nThe accusatory phase (the pre-trial phase) and adjudicatory phase (the trial phase) of the criminal\njustice process include individuals who regularly work together in the trial courts. The prosecutor files\nthe accusatory instrument called either an information or an indictment, and represents the state in\nplea bargaining, on pretrial motions, during the trial, and in the sentencing phase. The defense attorney\nrepresents the defendant after charges have been filed, through the pre-trial process, in a trial, and during\nsentencing, and maybe on the appeal as well. Judges, aided by several court personnel, conduct the pretrial,\ntrial, and sentencing hearings. Prosecutors, defense counsel, and judges perform different roles, but all are\nconcerned with the judicial process and the interpretation of the law. These law professionals are graduates\nof law schools and have passed the bar examination establishing their knowledge of the law and their ability\nto do legal analysis. As persons admitted by the state or federal bar associations to the practice of law, they are\nsubject to the same legal codes of professional responsibility, disciplinary rules, and ethical rules and opinions\nfor lawyers. Although the American criminal justice system is said to represent the adversarial model, the\nreality is that prosecutors, defense attorneys, judges and court staff work with cooperation and consensus\nrather than conflict. This is understandable when considering the common goal of efficient and expedition\ncase processing and prescribed and agreed upon rules for achieving those goals.\n\nTrial judges: Misperceptions and Realities\n\n1. Eisentstein, J., & Jacob, H. (1977). Felony Justice: An organizational analysis of criminal courts. Boston, MA: Little Brown and Co.\n\n286\n\n\x0cIntroduction to the American Criminal Justice System\n\nTrial court judges are responsible for presiding over pre-trial, trial and sentencing hearings, as well\nas probation and parole revocation hearings. They issue search and arrest warrants, set bail or authorize\nrelease, sentence offenders, engage in pre-sentence conferences with attorneys, work with court clerks,\nbailiffs, jail staff, etc. Trial judges have considerable, but not unlimited, discretion. In addition to the\nethical and disciplinary rules governing all attorneys in the state, trial judges are subject to judicial codes\nof conduct. Judges are bound by the applicable rules of law when deciding cases and writing their\nlegal opinions. Some rules governing judges are flexible guidelines while other rules are very precise\nrequirements.\nDuring the pretrial phase, judges make rulings on the parties\xe2\x80\x99 motions, such as motions to exclude certain\nphysical or testimonial evidence, motions to compel discovery, and motions to change venue. Because\nmost cases are resolved prior to trial through plea-bargaining, one important judicial function is taking the\ndefendant\xe2\x80\x99s guilty plea.\nAt trial, if the defendant elects to waive a jury, there is a bench trial, and the judge sits as the \xe2\x80\x9ctrier\nof fact.\xe2\x80\x9d Like jurors in a jury trial, the judge has considerable discretion when deciding what facts were\nproven (or not) by the parties and what witnesses he or she finds credible. When the defendant elects for\na jury trial, the jury decides what the facts are. In either a bench or jury trial, the trial judge rules: on the\nadmissibility of evidence (whether a jury is entitled to hear certain testimony or look at physical evidence),\nwhether witnesses are competent, whether privileges exist, whether witnesses qualify as experts, whether\njurors will be excused from jury service, etc. At the end of the jury trial, the judge gives a set of jury\ninstructions to the jurors which informs them on the law that applies to the case they are deciding.\nIf the defendant is convicted, then the judge will impose the sentence. Except for death penalty\ncases, jurors are generally not involved with sentencing the defendant. Judges have perhaps the broadest\ndiscretion in their role imposing sentences. However, with more states enacting mandatory minimums and\nsentence guidelines, judicial discretion has been severely curtailed.\n\xe2\x80\x9cIn the eyes of most Americans, the judge is the key player in the courtroom workgroup. The\nsymbolism and ceremony of a criminal trial reinforce this view. The judge is seated on a raised bench,\nrobed in black, and wields a gavel to maintain order in the courtroom. Moreover, the participants and\nspectators\xe2\x80\x94including the defense attorney and the prosecutor\xe2\x80\x94are commanded to \xe2\x80\x98all rise\xe2\x80\x99 when the judge\nenters or leaves the courtroom. It is no wonder, then that the judge is seen as the most influential person in\ncourt.\nThis view of the judge, though accurate to some degree, is misleading for at least two reasons. First,\nalthough the judge clearly plays an important role\xe2\x80\x94in many cases, the lead role\xe2\x80\x94in state and federal\ncriminal courts, other actors play significant supporting roles. This is particularly the case in the majority of\ncriminal cases that are settled by plea, not trial. In these cases, the key player may be the prosecutor rather\nthan the judge. A second reason why the traditional view of the judge is misleading is that it is based on an\ninaccurate assessment of the role of the judge. Judging involves more than presiding at trials. In fact, most\n\n287\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nof what judges do during a typical day or week is something other than presiding at trials\xe2\x80\x94reading case\nfiles, conducting hearings, accepting guilty pleas, pronouncing sentences, and managing court dockets.\xe2\x80\x9d\n\n2\n\nThe role played by the judge, in other words, is both less influential and more varied than the traditional\nview would have people believe.\n\nTrial Judge Selection and Qualifications\nThe sole qualification to be a judge in most jurisdictions is graduating from a law school and\nmembership in the state\xe2\x80\x99s bar association. Although the trend is for judges to be lawyers prior, a few\njurisdictions do not require justices of the peace or municipal judges to be attorneys.\nStates procedures in selecting judges vary tremendously. \xe2\x80\x9cAlmost no two states are alike and many\nstates employ different methods of selection depending on the different levels of the judiciary creating\n3\n\n\xe2\x80\x98hybrid\xe2\x80\x99 systems of selection\xe2\x80\x9d . Nevertheless, the primary differences surround whether judges are\nelected or appointed, or selected based on merit. There are four primary methods used to select judges\nin the United States: appointment, with or without confirmation by another agency; partisan political\nelection; non-partisan election; and a combination of nomination by a commission, appointment and\nperiodic reelection (the Missouri Plan).\nThere are variations within these four primary methods. As noted above, states may use different\nmethods to select judges based on the level in the judicial hierarchy. For example, municipal judges\nmay be appointed, while supreme court judges are elected. Each selection method has its critics\nand advocates, and the relative merits of each are generally judged by the selection methods ability\nto achieve judicial independence and accountability. Notwithstanding the critiques of each of the\nmethods, there has been little empirical evidence that the quality of judges, in terms of competency,\neffectiveness, or honesty, varies depending on the methods used to select the judge.\n\n4 56\n\nThe length of time a judge will \xe2\x80\x9csit\xe2\x80\x9d, called a term in office or tenure, varies greatly, generally from\nfour to sixteen years. Frequently, the term for a trial judge is less than a term for an appellate judge. At\nthe appellate level, six years is the shortest term, and many states use terms of ten years or more for their\nappellate judges. Only a few states have lifetime tenure for their judges.\nIn the federal system, the President appoints Article III judges (U.S. District Court, U.S. Circuit\nCourt, and U.S. Supreme Court judges) with the advice and consent of the Senate. In Article III, U.S.\nConstitution states that federal judges are appointed to \xe2\x80\x9chold their Offices during Good Behavior.\xe2\x80\x9d On\n\n2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc.\n3. Berkson, L.C. (2005). Judicial selection in the United States: A special report. In E.E. Slotnick (Ed.) Judicial Politics: Readings from\nJudicature (3d ed., pp. 50). Washington, DC: CQ Press\n4. Atkins B.M. & Glick, H.R. (1974). Formal judicial recruitment and state supreme court decisions. American Politics Quarterly, 2, 427-449\n5. Dubois, P.L. (1986), Accountability, independence, and the selection of state judges: The role of popular judicial elections. Southwestern\nLaw Journal, 40, 31-52\n6. Nagel, S. (1975). Improving the legal process. Lexington, MA: Lexington Books.\n\n288\n\n\x0cIntroduction to the American Criminal Justice System\n\nFebruary 25, 2019, the Court in Rizo v. Yovino, ___ U.S. ___ (2019) refused to address the merits of\nthe case (an important employment wage discrimination case) because the judge who wrote the Ninth\nCircuit opinion died eleven days before its release. What will likely become an oft-quoted sentiment,\n\xe2\x80\x9cFederal judges are appointed for life, not for eternity.\xe2\x80\x9d\nThe district courts appoint federal magistrate judges to either four or eight-year terms. Though it\nwould seem that politics has played an increasing role in the selection of judges in the federal system,\nperceptions are influenced by what we currently hear and read. The reality is that complaints of political\noverreaching in selecting federal judges have been with us since the federal courts were first staffed.\nLink to Washington Post showing political judicial appointments since President\nReagan https://www.washingtonpost.com/graphics/2018/politics/trump-federaljudges/?utm_term=.479982ef3fd6)\nLink to Washington Post article showing political party breakdown in the confirmation of\nJustice Gorsuch in 2017 and comparing the breakdown with other current U.S. Supreme Court\njustices https://www.washingtonpost.com/graphics/politics/scotus-confirmation-votes/?tid=graphicsstory&utm_term=.35b33aa30d39\nA 1952 article shows that the role of politics in judicial selection is not only a recent\nconcern https://library.cqpress.com/cqresearcher/document.php?id=cqresrre1952012300\n\nJudicial Clerk, Law Clerk, and Judicial Assistants\nGenerally, judges have one or two main assistants. These individuals are known as \xe2\x80\x9cjudicial clerk\xe2\x80\x9d, \xe2\x80\x9cclerk\nof court\xe2\x80\x9d, \xe2\x80\x9claw clerk\xe2\x80\x9d, or \xe2\x80\x9cjudicial assistant\xe2\x80\x9d. Of course, there may be several court clerks who interact each\nday with all the judges in the courthouse, but generally, judges have only one or two judicial assistants\nwho work directly with them. The clerk of court works directly with the trial judge and is responsible for\ncourt records and paperwork both before and after the trial. Usually, each judge has his or her own clerk.\nThe clerk prepares all case files that a judge will need for the day. During hearings and the trial, these clerks\nrecord and mark physical evidence introduced in the trial, swear in the witnesses, or administer the oath\nto the witness, take notes cataloging the recordings, etc. In some jurisdictions, the law clerks are lawyers\nwho have just completed law school and may have already passed the bar exam. In other jurisdictions, the\nlaw clerks are not legally trained but may have specialized paralegal training or legal assistant training.\n\n289\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nLocal and State Trial Court Administrators\nLocal and state trial court administrators oversee the administration of the courts. These administrators\xe2\x80\x99\nresponsibility includes: hiring and training court personnel (clerks, judicial assistants, bailiffs), ensuring\nthat the court caseloads are efficiently processed, keeping records, sending case files to reviewing courts,\nensuring that local court rules are being implemented, and working with the local and state bar associations\nto establish effective communications to promote the expedient resolutions of civil and criminal cases.\n\nIndigency Verification Officers\nThe Indigency Verification Officer (IVO) is a court employee who investigates defendants\xe2\x80\x99 financial\nstatus and determines whether they meet the criteria for court-appointed counsel. More than 75% of\nall individuals accused of a crime qualify as indigent. How poor a defendant must be to qualify for a\ncourt-appointed attorney varies from place to place, and each IVO uses a screening device that takes\ninto consideration the cost of defense in the locality as well as defendant\xe2\x80\x99s financial circumstances. One\ndifficulty in qualifying for a court-appointed attorney is having equity in a home that cannot be easily sold\nquickly enough to provide resources for the defendant to hire an attorney. Another difficulty for indigency\nverification officers is getting the information needed from defendants who may be suffering from mental\nhealth issues.\n\nBailiffs\nBailiffs are the court staff responsible for courtroom security. Bailiffs are often local sheriff deputies or\nother law enforcement officers (or sometimes former officers), but they can also be civilians hired by the\ncourt. Sometimes, courts will use volunteer bailiffs. Bailiffs work under the supervision of the trial court\nadministrator. During court proceedings, bailiffs or clerks call the session to order, announce the entry\nof the judge, make sure that public spectators remain orderly, keep out witnesses who might testify later\n(if the judge orders them excluded upon request of either party), and attend to the jurors. As courtroom\nsecurity becomes a bigger concern, law enforcement officers are increasingly used as bailiffs, and they\nare responsible for the safety of the court personnel, spectators, witnesses, and any of the parties. In some\ncommunities, law enforcement bailiffs may transport in-custody defendants from the jail to the courthouse\nand back. In most jurisdictions today, bailiffs screen people for weapons and require them to silence cell\nphones before allowing them to enter the courtroom.\n\n290\n\n\x0cIntroduction to the American Criminal Justice System\n\nJury Clerk\nThe jury clerk: sends out jury summons to potential jurors, works with jurors requests for postponements\nof jury service, coordinates with the scheduling clerk to make sure enough potential jurors show up at the\ncourthouse each day there is a trial, schedules enough grand jurors to fill all the necessary grand jury panels,\narranges payment to jurors for their jury service, and arranges lodging and meals for jurors in the rare event\nof jury sequestration.\n\nCourt Clerks and Staff\nCourt structure varies from the courthouse to courthouse, but frequently court staff is divided into units.\nFor example, staff may be assigned to work in the criminal unit, the civil unit, the traffic unit, the small\nclaims unit, the juvenile unit, the family unit, or the probate unit. In smaller communities, there may be\njust a few court clerks who \xe2\x80\x9cdo it all\xe2\x80\x9d. With the trend towards specialized courts (drug courts, mental health\ncourts, domestic violence courts, and veteran courts), staff may specialize in and/or rotate in and out of the\nvarious units. Court staff are expected to have a vast knowledge of myriad local court rules and protocols,\nstatutes, and administrative rules that govern filing processes, filing fees, filing timelines, accounting, record\nmaintenance, as well as a knowledge of general office practices such as ordering supplies, mastering office\nmachinery, and ensuring that safety protocol is established and followed. Recently, many courts have\ntransitioned to electronic filing of all documents, usually managed through a centralized state court system.\nThis transition presents challenges to court staff as they learn the new filing software, keep up with new\nfilings, and archive the past court documents.\n\nRelease Assistance Officers\nRelease assistance officers (RAO) are court employees who meet with defendants at the jail to gather\ninformation to pass on to the judge who makes release decisions. Release assistance officers make their\nrecommendations based on the defendant\xe2\x80\x99s likelihood of reappearance and other considerations specified\nby statute or local rules. In determining whether the defendant is likely to reappear, the RAO considers:\nthe defendant\xe2\x80\x99s ties to the community, the defendant\xe2\x80\x99s prior record of failures to appear, the defendant\xe2\x80\x99s\nemployment history, whether the defendant lives in the community, the nature and seriousness of the\ncharges, and any potential threat the defendant may present to the community.\nThe availability of space at the jail may also play a role in whether an individual is released. Court and jail\n\n291\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nstaff may need to work together to establish release protocols when space is limited. The RAO should have\na significant voice in drafting those protocols. Whether the RAO recommends security (bail) or conditional\nrelease, the RAO will generally suggest to the judge the conditions that the defendant should abide by if he\nor she makes bail or is conditionally released. Defendants released prior to trial will sign release agreements\nindicating the conditions of release recommended by the RAO and imposed by the judge. RAOs may also\ninvestigate the defendant\xe2\x80\x99s proposed living conditions upon release to make sure that they promote lawful\nactivity and the ability for reappearance for all scheduled court appearances.\n\nScheduling Clerk\nThe scheduling clerk, or docketing clerk, set all hearings and trials on the court docket. The scheduling\nclerk notes the anticipated duration of trials (most trials are concluded within one day), speedy trial\nconstraints, statutory and local court rules time frames, etc. The role of the scheduling clerk is extremely\nimportant, and an experienced scheduling clerk contributes to the overall efficiency of the legal process.\nIneffective or inefficient scheduling causes delay, frustration, and may impede the justice process. Part of\nscheduling, or docketing, is keeping track of law enforcement officers\xe2\x80\x99 and defense attorneys\xe2\x80\x99 scheduled\nvacations. In addition, the scheduling clerk must be mindful of the judges\xe2\x80\x99 calendars which should track\nscheduled vacation time and training days, and also needed desk time, the time necessary for resolving\ncases they have taken under advisement. (Note that trial judges can either decide \xe2\x80\x9cfrom the bench\xe2\x80\x9d,\nmeaning they will rule immediately on the issues before them during the hearing, or after taking the case\nunder advisement, meaning they will rule through a written decision/opinion letter after spending time\nresearching the law, reviewing the parties written pleadings, and considering the oral arguments).\n\n292\n\n\x0c7.9. Courtroom Players: Prosecutors\n\nLORE RUTZ-BURRI\n\nProsecutors play a pivotal role in the criminal justice and work closely with: law enforcement officials,\njudges, defense attorneys, probation and parole officers, victims services, human services, and to a lesser\nextent, with jail and other corrections officers. The authority to prosecute is divided among various city, state\nand federal officials. City and state officials are responsible for prosecutions under local and state laws, and\nfederal officials for prosecutions under federal law. Associate Justice Robert Jackson, while he was the U.S.\nAttorney General addressed the Conference of United States Attorneys (federal prosecutors) in Washington,\nD.C. on April 1, 1940 and stated,\n\xe2\x80\x9cThe qualities of a good prosecutor are . . . [elusive and . . . impossible to define]. \xe2\x80\xa6\nThe prosecutor has more control over life, liberty, and reputation than any other person in America.\nHis discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can\nhave this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor\nmay choose a more subtle course and simply have a citizen\xe2\x80\x99s friends interviewed. The prosecutor\ncan order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided\npresentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the\ncase before trial, in which case the defense never has a chance to be heard. Or he may go on with a\npublic trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence,\nas to whether the prisoner should get probation or a suspended sentence, and after he is put away, as\nto whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent\nforces in our society, when he acts from malice or other base motives, he is one of the worst. \xe2\x80\xa6\nNothing better can come out of this meeting of law enforcement officers than a rededication to the\nspirit of fair play and decency that should animate the federal prosecutor. Your positions are of such\nindependence and importance that while you are being diligent, strict, and vigorous in law enforcement\nyou can also afford to be just. Although the government technically loses its case, it has really won if\njustice has been done. . . .\nThere is a most important reason why the prosecutor should have, as nearly as possible, a detached\nand impartial view of all groups in his community. Law enforcement is not automatic. It isn\xe2\x80\x99t blind.\nOne of the greatest difficulties of the position of prosecutor is that he must pick his cases because no\nprosecutor can even investigate all of the cases in which he receives complaints. If the department of\njustice were to make even a pretense of reaching every probable violation of federal law, ten times its\n293\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\npresent staff would be inadequate. We know that no local police force can strictly enforce the traffic\nlaws, or it would arrest half the driving population on any given morning. What every prosecutor is\npractically required to do is to select the cases for prosecution and to select those in which the offense is\nthe most flagrant, the public harm the greatest, and the proof the most certain.\n\xe2\x80\xa6 A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of\npower, and the citizen\xe2\x80\x99s safety lies in the prosecutor who tempers zeal with human kindness, who seeks\ntruth and not victims, who serves the law and not factional purposes, and who approaches his task with\n1\nhumility\xe2\x80\x9d\n\nState Prosecuting Attorneys\nProsecutors represent the citizens of the state, not necessarily a particular victim of a crime. States vary\nin how they organize the groups of attorneys hired to represent the state\xe2\x80\x99s interest. Ordinarily, the official\nwith the primary responsibility for prosecuting state violations is the local prosecutor who is referred to\nas the \xe2\x80\x9cdistrict attorney\xe2\x80\x9d, \xe2\x80\x9ccounty attorney\xe2\x80\x9d, or \xe2\x80\x9cstate\xe2\x80\x99s attorney\xe2\x80\x9d. Local prosecutors are usually elected\nfrom a single county or a group of counties combined into a prosecutorial district. In many states, the\nstate attorney general\xe2\x80\x99s office has the authority that trumps over the local prosecutors\xe2\x80\x99 authority, but in\npractice, the state attorney general rarely intervenes in local matters. The state attorney general\xe2\x80\x99s office\nwill intervene, for example, if there is a conflict of interest or when requested by the district attorney. It is\nnot uncommon for a small local prosecutor\xe2\x80\x99s office faced with the prosecution of a major, complex, timeconsuming trial, to request the aid of the attorney general\xe2\x80\x99s office. In these smaller offices, there may be\ninsufficient resources to handle complicated prosecutions and still keep up with the day-to-day filings and\ncases.\nThe prosecuting attorney and the attorney general ordinarily are the only officials with authority to\nprosecute violations of state law. City attorneys may be hired to prosecute city ordinances, but these\nattorneys primarily specialize in civil matters. When city attorneys and prosecuting attorneys have different\npolicies for treating minor offenses, the result may be disparate, or different, treatment of similarly situated\noffenders. This raises a concern of inconsistent application of the law. Additionally, different county\nprosecutors may follow different policies on which matters they will charge, the use of diversion programs,\nthe use of plea bargaining, and the use of certain trial tactics. To limit some of these differences, some states\nhave used statewide training, and district attorneys\xe2\x80\x99 conferences. Still, the policies and practices are far from\nuniform.\nGenerally, assistant prosecutors, called deputy district attorneys, are hired as \xe2\x80\x9cat will\xe2\x80\x9d employees by the\nelected district attorney. Historically, the political party of the applicant was a key criterion, and newly\nelected prosecutors would make a virtual clean sweep of the office and hire outsiders from the former office.\nNow, most offices hire on a non-partisan, merit-oriented, basis.\nMost states require that the prosecutor be a member of the state bar. Some states also require that he or\n\n1. Associate Justice Robert Jackson while he was the U.S. Attorney General addressed the Conference of United States Attorneys (federal\nprosecutors) in Washington, D.C. on April 1, 1940\n\n294\n\n\x0cIntroduction to the American Criminal Justice System\n\nshe have several years in the practice of law. Deputy district attorneys, on the other hand, are frequently\nfresh out of law school. They may have limited knowledge of state criminal law, as law school is designed\nto teach lawyers to enter any new field and educate themselves.\n\nLink to the Oregon District Attorneys Association Website https://www.oregonda.org/\n\nFederal Prosecuting Attorneys\nProsecutors in the federal system are part of the U.S. Department of Justice and work under the Attorney\nGeneral of the United States. The Attorney General does not supervise individual prosecutors and relies\non the 94 United States Attorneys, one for each federal district. U.S. Attorneys are given considerable\ndiscretion, but they must operate within general guidelines prescribed by the Attorney General. The U.S.\nAttorneys have a cadre of Assistant U.S. Attorneys who do the day-to-day prosecution of federal crimes.\nFor certain types of cases, approval is needed from the Attorney General or the Deputy Attorney General\nin charge of the Criminal Division of the Department of Justice. The Criminal Division of the Department\nof Justice (DOJ) operates as the arm of the Attorney General in coordinating the enforcement of federal\nlaws by the U.S. Attorneys.\n\nLink to cite to find the U.S. Attorney https://www.justice.gov/usao/find-your-united-states-attorney\n\nSelection and Qualifications of Prosecutors\nMost local prosecuting attorneys are elected in a partisan election in the district they serve. State attorney\ngenerals may also have significant prosecutorial authority. They are elected in forty-two states, appointed\nby the governor in six states, appointed by the legislature in one state, and appointed by the state supreme\ncourt in another. State attorney generals serve between two to six-year terms, which can be repeated.\nFederally, senators from each state recommend potential U.S. Attorney nominees who are then appointed\nby the President with the consent of the Senate. U.S. Attorneys tend to be of the same political party as the\nPresident and are usually replaced when a new President from another party takes office.\n295\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nProsecutor\xe2\x80\x99s Function\nProsecutors arguably have more discretion than any other official in the criminal justice system. They\ndecide whether to charge an individual or not. Much has been written about the prosecutor\xe2\x80\x99s broad\ndiscretion and the constraints on his or her discretion. If they choose not to prosecute, this is referred to\nas nolle prosequi, and this decision is largely unreviewable. Spohn and Hemmens (2012, p. 123) concluded\nin their review of the studies on prosecutor\xe2\x80\x99s charging decisions that \xe2\x80\x9cthese highly discretionary and largely\ninvisible decisions reflect a mix of (1) legally relevant measures of case seriousness and evidence strength and\n2\n(2) legally irrelevant characteristics of the victim and the suspect\xe2\x80\x9d .\nProsecutors guide the criminal investigation and work with law enforcement to procure search and arrest\nwarrants. Following arrest, prosecutors continue to be involved with various aspects of the investigation.\nRoles include: meet with the arresting officers, interview witnesses, visit the crime scene, review the physical\nevidence, determine the offenders prior criminal history, make bail and release recommendations, appear on\npretrial motions, initiate plea negotiations, initiate diversions (pre-trial contracts between the government\nand the defendant which divert cases out of the system), work with law enforcement officers from other\nstates who seek to extradite offenders, prepare the accusation to present to grand jury, call witnesses and\npresent a prima facia case (present enough evidence which, when unrebutted by the defendant, shows that\nthe defendant committed the crime) at a preliminary hearing, represent that state at arraignments and status\nconferences, conduct the trial, and, upon conviction, make sentencing recommendations while representing\nthe state at the sentencing hearing.\nIn many communities, the prosecutor is the spokesperson for the criminal justice system and appears\nbefore the legislature to recommend or oppose penal reform. Prosecutors make public speeches on crime and\nlaw enforcement, take positions on requests for clemency for cases they have prosecuted, work extensively\nwith victims\xe2\x80\x99 services offices, which may be an arm of the prosecutor\xe2\x80\x99s office. In some communities, the\nprosecutor is also responsible for representing the local government in civil matters and may represent the\nstate in civil commitment proceedings and answer accident claims, contract claims, and labor relation matters\nfor the county. However, only a few counties have prosecutors still perform this function. U.S. Attorneys\nstill have substantial responsibilities for representation of the U.S. government in civil litigation, and there is\ngenerally a civil division, a criminal division, and an appellate division of the U.S Attorneys office.\nThe American Bar Association (ABA) standards indicate that \xe2\x80\x9cthe prosecutor\xe2\x80\x99s [ethical] duty is to seek\njustice\xe2\x80\x9d. This means that the state should not go forward with prosecution if there is insufficient evidence of\nthe defendant\xe2\x80\x99s guilt or if the state has \xe2\x80\x9cunclean hands\xe2\x80\x9d, for example, illegally conducted searches or seizures\nor illegally obtained confessions. Ethical and disciplinary rules of the state bar associations govern prosecutors\nwho must also follow state and constitutional directives when they prosecute crimes.\n\nLink to the ABA Standards on the Prosecution Function https://www.americanbar.org/groups/\ncriminal_justice/standards/ProsecutionFunctionFourthEdition-TableofContents/\n\n2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc.\n\n296\n\n\x0c7.10. Courtroom Workgroup: Defense Attorneys\n\nLORE RUTZ-BURRI\n\nThe Sixth Amendment to the U.S. Constitution provides, \xe2\x80\x9cThe accused shall enjoy the right . . . to have the\nAssistance of Counsel for his defense.\xe2\x80\x9d Most state constitutions have similar provisions. Historically, the right\nto counsel meant that the defendant, if he or she could afford to hire an attorney, could have an attorney\xe2\x80\x99s\nassistance during his or her criminal trial. This right has developed over time and now includes the right\nto have an attorney\xe2\x80\x99s assistance at all critical stages in the process, or at all criminal proceedings that may\nsubstantially affect the right of the accused. Importantly, the right to assistance of a defense counsel has been\nheld to require that the state pay the costs of the defense counsel when a person is indigent or has insufficient\nfinancial resources to pay.\n\nPrivately Retained Defense Attorneys\nIndividuals accused of any infraction or crime, no matter how minor, have the right to hire counsel and\nhave them appear with them at trial. The attorney must be recognized as qualified to practice law within\nthe state or jurisdiction, and generally, criminal defendants do well to hire an attorney who specializes in\ncriminal defense work. However, because many criminal defendants don\xe2\x80\x99t have enough money to hire an\nattorney to represent them, the court will need to appoint an attorney to represent them in criminal cases.\n\nAppointed Counsel\nFederal and state constitutions do not mention what to do when the defendant wants, but cannot afford\nan attorney\xe2\x80\x99s representation. Initially, the Court interpreted the Sixth Amendment as permitting defendants\n\n297\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nto hire an attorney who would assist them during the trial. Later, the Court held that the Due Process\nClause of the Fifth and Fourteenth Amendment includes the right to a fair trial, and a fair trial includes\nthe right to the assistance of counsel. In Powell v. Alabama, 287 U.S. 45, at 58 (1932), the Court concluded\nthat the focus on trial was too narrow. It stated, \xe2\x80\x9c[T]he most critical period of the proceeding[s] against the\ndefendants might be that period from the time of their arraignment until the beginning of their trial, when\nconsultation, thoroughgoing investigation, and preparation are vitally important. Defendants are as much\nentitled to . . . [counsel\xe2\x80\x99s] aid during that period as at the trial itself.\xe2\x80\x9d\n\n1\n\nPowell also dealt with the need for states to provide representation to defendants who could not afford to\nhire counsel in those cases where fundamental fairness required it. In a statement that led to the dramatic\nextensions to the right to counsel, the Court continued,\n\xe2\x80\x9cThe right to be heard would be, in many cases, of little avail if it did not comprehend the right\nto be heard by counsel. Even the intelligent and educated layman has a small and sometimes no skill\nin the science of law. If charged with a crime, he is incapable, generally, of determining for himself\nwhether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without\nthe aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent\nevidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and\nknowledge adequately to prepare his defense, even though he may have a perfect one. He requires the\nguiding hand of counsel at every step in the proceedings against him. Without it, though he is not\nguilty, he faces the danger of conviction because he does not know how to establish his innocence.\xe2\x80\x9d\n\n2\n\n287 U.S. 45, at 68-69 (1932)\nPowell was decided in 1932, and because of television and the multitude of crime drama programs,\npeople probably know more about the criminal justice process than ever imagined by the Powell court.\nNevertheless, the Court\xe2\x80\x99s admonitions still ring true. Not too many non-lawyers know how to conduct\nthemselves at trial, challenge the state\xe2\x80\x99s evidence, make evidentiary objections, or file proper pretrial\nmotions with the rudimentary knowledge gained from watching television. One could consult with the\nmany great Internet sources that are easily accessible, however, many individuals charged with crimes have\nlimited education and lack the sophistication to distinguish between those sources that are applicable to\ntheir case and which are not.\nBetween Powell (1932) and the case of Gideon v. Wainwright, 372 U.S. 335 (1963), the Court decided\nwhen the appointment of counsel was necessary for a fair trial in state prosecutions on a case-by-case basis.\nIn Gideon, however, the Court held that this case-by case-approach was inappropriate. It held that the\nstate had to provide poor defendants access to counsel in every state felony prosecution. Lawyers in serious\ncriminal cases, it said, were \xe2\x80\x9cnecessities, not luxuries\xe2\x80\x9d. Since Gideon, the Court has extended the obligation\nto provide counsel to state misdemeanors prosecutions that result in the defendant receiving a jail term.\nThe Court found that the legal problems presented in a misdemeanor case often are just as complex as those\n\n1. Powell v. Alabama, 287 U.S. 45, at 58 (1932)\n2. Powell v. Alabama,\n\n298\n\n\x0cIntroduction to the American Criminal Justice System\n\n3\n\nin felonies. In two cases, Argersinger v. Hamlin, 407 U.S. 25 (1972) and Scott v. Illinois, 440 U.S. 367 (1979),\nthe Court tied the right to counsel in misdemeanor cases to the defendant\xe2\x80\x99s actual incarceration. Because\nit is difficult to predict when a judge will want to incarcerate a person convicted of a misdemeanor, this\napproach is difficult to implement.\n\n45\n\nMany states instead appoint counsel to an indigent defendant charged\n\nwith a crime where a possible term of incarceration could be imposed.\nThe Court left it for the lower courts to decide when a person is indigent. Lower courts have generally\nheld that the financial resources of a family member cannot be considered. Also, courts cannot merely\nconclude that because a college student is capable of financing his or her education that he or she is capable\nof hiring an attorney. A person does not have to become destitute in order to be classified as indigent. An\nindigent defendant may have to pay back the court-appointed attorney\xe2\x80\x99s fees if they are convicted or enter\na plea. In practice, most courts collect appointed attorneys\xe2\x80\x99 fees at a standard rate and much reduced from\nthe actual costs of representation as part of the fines that a convicted defendant must pay. When acquitted,\ndefendants are not required to pay the state back for the attorney fees.\n\nPublic Defenders, Assigned Attorneys, and Defense Attorney Associations\nMost states now have public defenders\xe2\x80\x99 offices. Because public defenders and assistant public defenders\nhandle only criminal cases, they become the specialists and have considerable expertise in representing\ncriminal defendants. Public defender offices frequently have investigators on staff to help the attorneys\nrepresent their clients. In some states, courts appoint or assign attorneys from the private bar (not from the\npublic defender\xe2\x80\x99s office) to represent indigent defendants. The mixed system uses both assigned counsel,\nor associations of private attorneys who contract to do indigent criminal defense, and public defenders.\nFor example, the public defender\xe2\x80\x99s office may contract with the state to provide 80% of all indigent\nrepresentations in a particular county. The remaining 20% of cases would be assigned to the association of\nindividual attorneys who do criminal defense work- some retained clients, some indigent clients-or private\nattorneys willing to take indigent defense cases.\nIn practice, there is no purely public defender system because of \xe2\x80\x9cconflict cases.\xe2\x80\x9d Conflicts exist when one\nlaw firm tries to represent more than one party in a case. Assume, for example, that Defendant A conspired\nwith Defendant B to rob a bank. One law firm could not represent both Defendant A and Defendant\nB. Public defender offices are generally considered one law firm, so attorneys from that office could not\nrepresent both A and B, and the court will have to assign a \xe2\x80\x9cconflict\xe2\x80\x9d attorney to one of the defendants.\n\n3. Gideon v. Wainwright, 372 U.S. 335 (1963)\n4. Argersinger v. Hamlin, 407 U.S. 25 (1972)\n5. Scott v. Illinois, 440 U.S. 367 (1979)\n\n299\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nControversial Issue: Link to the 2017 report from the Oregon Public Defense Services about indigent\nrepresentation in Oregon\nhttps://www.oregon.gov/opds/commission/reports/EDAnnualReport2017.pdf\nLink to the National Legal Aid and Defenders Association\nhttp://www.nlada.org/\nLink to the Oregon Criminal Defense Lawyers Association\nhttps://www.ocdla.org/\n\nThe Right to Counsel in Federal Trials\nThe Court in Johnson v. Zerbst, 304 U.S. 458 (1938), held that in all federal felony, trials counsel must\nrepresent a defendant unless the defendant waives that right. The Court further held that the lack of counsel\nis a jurisdictional error which would render, or make, the defendant\xe2\x80\x99s conviction void. A court that allows\na defendant to be convicted without an attorney\xe2\x80\x99s representation has no power or authority to deprive an\naccused of life or liberty.\n\n6\n\nZerbst also established rules for a proper waiver of the Sixth Amendment right to counsel. The court said\nthat it is presumed that the defendant has not waived her right to counsel. For a waiver to be constitutional,\nthe court must find that the defendant knew he or she had a right to counsel and voluntarily gave up that\nright, knowing that he or she had the right to claim it. Therefore, if the defendant silently goes along with\nthe court process without complaining about the lack of counsel, his or her silence does not amount to a\nwaiver. The Court defined waiver as an \xe2\x80\x9cintelligent relinquishment or abandonment of a known right or\nprivilege\xe2\x80\x9d.\nIn 1945 Congress passed the Federal Rules of Criminal Procedure (FRCP). Rule 44 of the FRCP requires\ndefendants to have counsel, or affirmatively waive counsel, either retained or appointed, at every stage of\nthe proceedings from the initial appearance through appeal. This rule was difficult to implement because\nthere was no recognized federal defense bar, or federal defense attorneys, available or willing to take on\nappointed cases. So, in 1964, Congress passed the Criminal Justice Act of 1964 that established a national\nsystem for providing counsel to indigent defendants in federal courts.\n\n6. Johnson v. Zerbst, 304 U.S. 458 (1938)\n\n300\n\n\x0cIntroduction to the American Criminal Justice System\n\nWhen Does a Defendant Have the Right to Assistance of an Attorney?\nCritical Stages of the Criminal Justice Process\nIn White v. Maryland, 373 U.S 59 (1963), the Court found that defendants are entitled to the right to\ncounsel at any critical stage of the proceeding, defined as a stage in which he or she is compelled to make\na decision which may later formally be used against him or her. The Court has found the following court\nprocedures to be critical stages:\n\xe2\x80\xa2\n\nThe initial appearance in which the defendant enters a non-binding plea\xe2\x80\x93White v. Maryland,\n373 U.S.59 (1963).\n\n\xe2\x80\xa2\n\nA preliminary hearing\xe2\x80\x93Coleman v. Alabama, 399 U.S. 1 (1970).\n\n\xe2\x80\xa2\n\nA lineup that includes a previously indicted defendant\xe2\x80\x93Wade v. United States, 388 U.S. 218\n(1967) and Gilbert v. California, 388 U.S. 263 (1967).\n\nDuring Other Proceedings\nThe Court has extended the right to counsel to psychiatric examinations, juvenile delinquency\n7\n\n8\n\nproceedings , civil commitments proceedings and probation and parole hearings (see, below). Further,\nthe court in Estelle v. Smith, 451 U.S. 454 (1981), held that a defendant charged with a capital crime\nand ordered by the court to be examined by a psychiatrist, to evaluate possible future dangerousness,\nwas entitled to consult with counsel. Similarly, in Satterwhite v. Texas, 486 U.S. 249 (1988), the Court\nfound prejudicial error occurs when defense counsel was not appointed to represent a defendant subjected\nto a psychiatric evaluation. The Court further held that counsel must be made aware of the projected\npsychiatric evaluation before it occurs.\nDuring Probation and Parole Revocation Hearings\nIn Mempa v. Rhay, 389 U.S. 128 (1967), 17-year-old Mempa was placed on probation for two years\nafter he pleads guilty to \xe2\x80\x9cjoyriding\xe2\x80\x9d. About four months later, the prosecutor moved to have petitioner\xe2\x80\x99s\nprobation revoked alleging that Mempa had committed a burglary while on probation. Mempa, who was\nnot represented by counsel at the probation revocation hearing. admitted being involved in the burglary.\nThe court revoked his probation based on his admission to the burglary. The U.S. Supreme Court held that\nMempa should have had counsel to assist him in his hearing.\nFive years later, in Gagnon v. Scarpelli, 411 U.S. 778 (1973), the state sought to revoke defendant\xe2\x80\x99s\nprobation. Originally, Gagnon was sentenced to fifteen years of imprisonment for armed robbery, but the\njudge had suspended the imposition of sentence and placed him instead on seven years of probation. The\nCourt found that the probation revocation hearing did not meet the standards of due process. Because a\nprobation revocation involves a loss of liberty, the probationer was entitled to due process. The Court did\n\n7. In re Gault, 387 U.S. 1 (1967)\n8. Stefan, S. (1985). Right to Counsel in Civil Commitment Proceedings. Mental & Physical Disability L. Rep., 9, 230.\n\n301\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nnot adopt a per se rule that all probationers must have the assistance of counsel in every revocation hearings,\nbut rather stated:\n\xe2\x80\x9cWe find no justification for a new, inflexible constitutional rule with respect to the requirement of\ncounsel. We think rather, that the decision as to the need for counsel must be made on a case-by-case\nbasis in the exercise of sound discretion by the state authority charged with responsibility for administering\nthe probation and parole system. . . . Presumptively, it may be said that counsel should be provided in\ncases where, after being informed of his right to request counsel, the probationer or parolee makes such a\nrequest based on a timely and colorable claim. . . . In passing on a request for the appointment of counsel,\nthe responsible agency should also consider, especially in doubtful cases, whether probationer appears to be\ncapable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or\nfinal hearing is refused, the grounds for refusal shall be stated succinctly in the record.\xe2\x80\x9d\n\n9\n\nAt Some Post-Trial Proceedings\nThe Sixth Amendment\xe2\x80\x99s right to the assistance of counsel does not stop when the jury finds the defendant\nguilty. When an out-of-custody defendant is found guilty at the end of a trial, the judge may remand\nthe defendant to custody- has the bailiff take the defendant into custody and transport them to the jailand revokes conditions of bail if there had been any. Counsel must assist the defendant through the end of\nthe sentencing hearing, and the defendant\xe2\x80\x99s attorney has the legal obligation to make post-trial motions to\npreserve the defendant\xe2\x80\x99s rights.\nThe Court has distinguished between the defendant\xe2\x80\x99s right to the assistance of counsel on mandatory\nappeals and discretionary appeals. In Douglas v. California, 372 U.S. 353 (1963), the Court found that\nindigent counsel should be provided to individuals when an appellate court must review their appeal or an\nappeal of right. Once the first appeal has been dismissed or resolved, however, Ross v. Moffitt, 417 U.S. 600\n(1974), holds that indigent defendants do not have a right to appointed counsel for discretionary review\nin either the state supreme court or with the U.S. Supreme Court. The Ross majority reasoned that the\ndefendant did not need an attorney to have \xe2\x80\x9cmeaningful access\xe2\x80\x9d to the higher appellate courts because all\nthe legal issues would have already been fully briefed in the intermediate appellate court. Additionally, the\nCourt noted that the concept of equal protection does not require absolute equality. The majority opinion\nstates,\n\xe2\x80\x9cWe do not believe that the Due Process Clause requires North Carolina to provide the respondent\nwith counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal\nproceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States\nby virtue of the Sixth and Fourteenth Amendments. But there are significant differences between\nthe trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State\xe2\x80\x99s\npoint of view is to convert a criminal defendant from a person presumed innocent to one found guilty\nbeyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney\nwho presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings\n\n9. Gagnon v. Scarpelli, 411 U.S. 788, 790 (1973).\n\n302\n\n\x0cIntroduction to the American Criminal Justice System\n\nof the court, and makes direct arguments to the court and jury seeking to persuade them of the\ndefendant\xe2\x80\x99s guilt. Under these circumstances \xe2\x80\x9creason and reflection require us to recognize that in our\nadversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer,\ncannot be assured a fair trial unless counsel is provided for him\xe2\x80\x9d (Citations omitted).\nBy contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process,\nseeking not to fend off the efforts of the State\xe2\x80\x99s prosecutor but rather to overturn a finding of guilt\nmade by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect\nhim against being \xe2\x80\x9chaled into court\xe2\x80\x9d by the State and stripped of his presumption of innocence, but\nrather as a word to upset the prior determination of guilt. This difference is significant for, while no\none would agree that the State may simply dispense with the trial stage of proceedings without a\ncriminal defendant\xe2\x80\x99s consent, it is clear that the State need not provide any appeal at all. The fact that\nan appeal has been provided does not automatically mean that a State then acts unfairly by refusing to\nprovide counsel to indigent defendants at every stage of the way. . . . (Citations omitted.)\nThe facts show that respondent \xe2\x80\xa6 received the benefit of counsel in examining the record of his trial\nand in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking\ndiscretionary review in the State Supreme Court, his claims had \xe2\x80\x9conce been presented by a lawyer and\npassed upon by an appellate court.\xe2\x80\x9d We do not believe that it can be said, therefore, that a defendant\nin respondent\xe2\x80\x99s circumstances is denied meaningful access to the North Carolina Supreme Court simply\nbecause the State does not appoint counsel to aid him in seeking review in that court. At that stage, he will\nhave, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of\nAppeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing\nof his case. These materials . . . would appear to provide the Supreme Court of North Carolina with an\nadequate basis for its decision to grant or deny review\xe2\x80\x9d (Citations omitted).\nThis is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of\npreparing petitions for discretionary review, would not prove helpful to any litigant able to employ him.\nAn indigent defendant seeking review in the Supreme Court of North Carolina is therefore somewhat\nhandicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable\nmanner at every stage in the proceeding. But both the opportunity to have counsel prepare an initial brief\nin the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina\nmake this relative handicap far less than the handicap borne by the indigent defendant denied counsel on\nhis initial appeal as of right in Douglas. And the fact that a particular service might be of benefit to an\nindigent defendant does not mean that the service is constitutionally required. (Emphasis added). The duty\nof the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal\ndefendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an\nadequate opportunity to present his claims fairly in the context of the State\xe2\x80\x99s appellate process. We think\nthe respondent was given that opportunity under the existing North Carolina system.\xe2\x80\x9d\n\n10. Ross v. Moffitt, 417 U.S. 600, 610-611, 614, 616 (1974).\n\n303\n\n10\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nSimilarly, prisoners have a limited right to legal assistance for the purpose of filing writs of habeas corpus.\nIn Bounds v. Smith, 430 U.S. 817 (1977), the Court held that \xe2\x80\x9cthe fundamental constitutional right of access\nto the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal\npapers by providing prisoners with adequate law libraries or adequate assistance from persons trained in\nthe law\xe2\x80\x9d. Prisons can meet this obligation by training prisoners to be paralegal assistants to work under\na lawyer\xe2\x80\x99s supervision or by using law students, paralegals, and volunteer lawyers. Again, it may seem\ninconsistent that the court requires more for habeas corpus relief than it does for discretionary review on\nappeals. The difference lies in the nature of habeas corpus as a collateral attack, or side attack, where the\nclaim is often being advanced for the first time and therefore the need for legal assistance may be greater.\n\nFunctions of Defense Attorneys\nDefense lawyers investigate the circumstances of the case, keep clients informed of any developments in\nthe case, and take action to preserve the legal rights of the accused. Some decisions, such as which witnesses\nto call, when to object to evidence, and what questions to ask on cross-examination, are considered to be\nstrategic ones and may be decided by the attorney. Other decisions must be made by the defendant, most\nnotably, after getting advice from the attorney about the options and their likely consequences. Defendants\xe2\x80\x99\ndecisions include whether to plead guilty and forego a trial, whether to waive a jury trial, and whether to\ntestify in their own behalf.\nThe ABA Standards relating to the Defense Function established basic guidelines for defense counsel in\nfulfilling obligations to the client. The primary duty is to zealously represent the defendant within the\nbounds of the law. Defense counsel is to avoid unnecessary delay, to refrain from misrepresentations of law\nand fact, and to avoid personal publicity connected with the case. Fees are set on the basis of the time and\neffort required by counsel, the responsibility assumed, the novelty and difficulty of the question involved, the\ngravity of the charge, and the experience, reputation, and ability of the lawyer.\n\nABA Standard 4- 1.2, The Function of Defense Counsel, states:\n(a) Counsel for the accused is an essential component of the administration of criminal justice. A court\nproperly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge\n(and jury, where appropriate), counsel for the prosecution, and counsel for the accused.\n(b) The basic duty defense counsel owes to the administration of justice and as an officer of the court is\nto serve as the accused\xe2\x80\x99s counselor and advocate with courage and devotion and to render effective, quality\nrepresentation.\n(c) Since the death penalty differs from other criminal penalties in its finality, defense counsel in a capital\ncase should respond to this difference by making extraordinary efforts on behalf of the accused. Defense\n\n304\n\n\x0cIntroduction to the American Criminal Justice System\n\ncounsel should comply with the ABA Guidelines for the Appointment and Performance of Counsel in\nDeath Penalty Cases.\n(d) Defense counsel should seek to reform and improve the administration of criminal justice. When\ninadequacies or injustices in the substantive or procedural law come to defense counsel\xe2\x80\x99s attention, he or\nshe should stimulate efforts for remedial action.\n(e) Defense counsel, in common with all members of the bar, is subject to standards of conduct stated in\nstatutes, rules, decisions of courts, and codes, canons, or other standards of professional conduct. Defense\ncounsel has no duty to execute any directive of the accused which does not comport with the law or such\nstandards. Defense counsel is the professional representative of the accused, not the accused\xe2\x80\x99s alter ego.\n(f) Defense counsel should not intentionally misrepresent matters of fact or law to the court.\n(g) Defense counsel should disclose to the tribunal legal authority in the controlling jurisdiction known\nto defense counsel to be directly adverse to the position of the accused and not disclosed by the prosecutor.\n(h) It is the duty of defense counsel to know and be guided by the standards of professional conduct\nas defined in codes and canons of the legal profession applicable in defense counsel\xe2\x80\x99s jurisdiction. Once\nrepresentation has been undertaken, the functions and duties of defense counsel are the same whether\ndefense counsel is assigned, privately retained, or serving in legal aid or defender program.\n\n11\n\nTricky Issues in Representation\nDefendants sometimes want to have a friend or family member speak up for them, but, the Court will not\npermit that. The right to counsel means the right to be represented by an attorney, someone legally trained\nand recognized as a member of the bar association. Similarly, defendants may not necessarily get the attorney\nof their choice. For example, in Wheat v. United States, 486 U.S. 153 (1988), one defendant who wanted\nto be represented by the same attorney who was representing his accomplice/co-conspirator in a complex\ndrug distribution conspiracy was not allowed to have that attorney. The Court disallowed his application for\nthe appointment of counsel noting that irreconcilable and unwaivable conflicts of interest would be created\nsince there was the likelihood that the petitioning defendant would be called to testify at a subsequent trial\nof his co-defendant and that his co-defendant would be testifying in petitioner\xe2\x80\x99s trial. On the other hand, in\nUnited States. v. Gonzalez-Lopez, 553 U.S. 285 (2008), the Court reversed the defendant\xe2\x80\x99s conviction because\nthe trial court erroneously deprived the defendant of his choice of counsel. The defendant, Gonzales-Lopez,\nhad hired counsel from a different state, and during pretrial proceedings, the judge and the counsel had some\ndisagreements. The judge then prohibited the attorney from taking part in the defendant\xe2\x80\x99s trial. The Court\nfound that a trial judge violated the defendant\xe2\x80\x99s Sixth Amendment rights.\nDefendants cannot repeatedly \xe2\x80\x9cfire\xe2\x80\x9d their appointed counsel as a stall tactic, and, at some point, the court\nwill not allow the defendant to substitute attorneys and will require the defendant work with whatever\n11. ABA Standard 4- 1.2 The Function of Defense Counsel (2015). Criminal Justice: Prosecution and Defense Function. American Bar\nAssociation.\n\n305\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nattorney is currently assigned. A defendant may not force an unwilling attorney to represent him or her,\nbut a court does have the discretion to deny an attorney\xe2\x80\x99s motion to withdraw from representation after\ninquiring about counsel\xe2\x80\x99s reasons for wishing to withdraw. This may present an ethical dilemma for the\nattorney because professional rules of responsibility require that even when an attorney withdraws from a\ncase, he or she must still maintain attorney-client confidences. If, for example, the attorney knows that the\ndefendant insists on taking the stand and presenting perjured testimony, the attorney must withdraw. But, at\nthe same time, the attorney cannot discuss with the court why he or she needs to withdraw. At some point\nin the inquiry, after the judge has asked and the attorney has talked around the subject, the judge hopefully\ncatches on, and the judges will allow the attorney to withdraw.\n\nEffective Assistance of Counsel\nDefendant\xe2\x80\x99s attorneys must provide competent assistance and should not harm the defendant\xe2\x80\x99s case by\ntheir legal representation. According to McMann v. Richardson, 397 U.S. 759 (1970), the right to counsel\nmeans the right to effective assistance of counsel. The constitutional standard for evaluating effective\nassistance was determined in Strickland v. Washington, 466 U.S. 688 (1984). The Strickland decision looked at\ntwo aspects of the representation to determine whether counsel was ineffective. First, the defense attorney\xe2\x80\x99s\nactions were not those of a reasonably competent attorney exercising reasonable professional judgment;\nand second, the defense attorney\xe2\x80\x99s actions caused the defendant prejudice, meaning that they adversely\naffected the outcome of the case (i.e., they likely caused the jury to find the defendant guilty).\nCourts may be more inclined to find ineffective assistance of counsel in a death penalty case than other\nrun-of-the-mill cases. For example, the Court found the defense attorneys provided ineffective assistance\nin the sentencing portion of defendant\xe2\x80\x99s death penalty trial for the murder of a 77-year-old woman because\nthey had failed to conduct an adequate \xe2\x80\x9csocial history\xe2\x80\x9d investigation of the defendant\xe2\x80\x99s life and had not\npresented information to the jury they did have which showed that defendant had been subject to regular\nsexual abuse as a child. Wiggins v. Smith, 539 U.S. 510 (2003). The Court stated,\n\xe2\x80\x9cIn finding that Schlaich and Nethercott\xe2\x80\x99s investigation did not meet Strickland\xe2\x80\x99s performance\nstandards, we emphasize that Strickland does not require counsel to investigate every conceivable\nline of mitigating evidence no matter how unlikely the effort would be to assist the defendant at\nsentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing\nin every case. Both conclusions would interfere with the \xe2\x80\x9cconstitutionally protected independence\nof counsel\xe2\x80\x9d at the heart of Strickland. We base our conclusion on the much more limited principle\nthat \xe2\x80\x9cstrategic choices made after less than complete investigation are reasonable\xe2\x80\x9d only to the extent\nthat reasonable professional judgments support the limitations on investigation. . . . A decision not to\ninvestigate thus must be directly assessed for reasonableness in all the circumstances.\nCounsel\xe2\x80\x99s investigation into Wiggins\xe2\x80\x99 background did not reflect reasonable professional judgment.\nTheir decision to end their investigation when they did was neither consistent with the professional\nstandards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the\nsocial services records\xe2\x80\x93evidence that would have led a reasonably competent attorney to investigate\n\n306\n\n\x0cIntroduction to the American Criminal Justice System\n\nfurther. Counsel\xe2\x80\x99s pursuit of bifurcation until the eve of sentencing and their partial presentation of a\nmitigation case suggest that their incomplete investigation was the result of inattention, not reasoned\nstrategic judgment. In deferring to defense counsel\xe2\x80\x99s decision not to pursue a mitigation case despite their\nunreasonable investigation, the Maryland Court of Appeals unreasonably applied Strickland.\xe2\x80\x9d\n\nWaiving Counsel\nSometimes, a defendant wishes to waive counsel and appear pro se, or represent him or herself at trial. The\nCourt, in Faretta v. California, 422 U.S. 806 (1975), held that the Sixth Amendment includes the defendant\xe2\x80\x99s\nright to represent himself or herself. The Faretta Court found that, where a defendant is adamantly opposed\nto representation, there is little value in forcing him or her to have a lawyer. The Court stressed that it\nwas important for the trial court to make certain and establish a record that the defendant knowingly and\nintelligently gave up his or her rights.\n\xe2\x80\x9cAlthough a defendant need not himself have the skill and experience of a lawyer in order competently\nand intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of\nself-representation, so that the record will establish he knows what he is doing and his choice is made with\n12\neyes open.\xe2\x80\x9d\nIn McKaskle v. Wiggins, 465 U.S. 168, at 174 (1984), the Court held that a \xe2\x80\x9cdefendant does not have a\nconstitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does\nthe Constitution require judges to take over chores for a pro se defendant that would normally be attended\nto by trained counsel as a matter of course.\xe2\x80\x9d The constitutional right to self-representation does not mean\nthat the defendant is free to obstruct the trial, and a judge may terminate self-representation by a defendant\nwho is obstructing the process. Frequently, judges will assign a standby counsel to assist defendants. Standby counsel is an attorney who can be available to answer questions of a pro se defendant, and if necessary,\nstandby counsel can step in if the defendant is engaging in misconduct.\nConclusion\nCourt jurisdiction determines where a case will be filed and which courthouse has the legal authority to\nhear a case. Jurisdiction can be based on geography, subject matter, or seriousness of the offense. Jurisdiction\nis also divided between trial courts (original jurisdiction) and appellate courts (appellate jurisdiction).\nMore than 51 court systems operate in the United States. We have a dual court system comprised of federal\ntrial and appellate courts and state trial and appellate courts. Federal and state courts have similar hierarchical\nstructures with cases flowing from lower trial courts through intermediate courts of appeals and up to the\nsupreme courts.\nDefendants who wish to appeal their convictions are entitled to have their cases reviewed at least once,\na mandatory appeal of right in the intermediate courts of appeal. After that, the review is discretionary\nand rare. Appellate courts generally affirm the decision of the trial courts, but may also reverse and remand\nthe case back to the trial court if they determine that prejudicial error occurred. At the intermediate\nappellate court level, judges most frequently affirm the trial court\xe2\x80\x99s decision without writing an opinion, but\nsometimes the judges will write opinions informing the parties of their decision and the reasons for holding\n12. Faretta v. California, 422 U.S. 806, 835 (1975).\n\n307\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nas they did. Judges don\xe2\x80\x99t always agree, and at times, judges will write dissenting opinions or concurring\nopinions. Appellate court opinions become precedent that must be followed in the trial courts.\nJudges, prosecutors, defense attorneys work together along with court clerks, bailiffs, and other court staff\nto process tens of thousands of cases daily in trial courts across the nation. Judges, prosecutors, and defense\nattorneys play an important role in the criminal justice process. Although few cases actually go to trial, and\nthe vast majority of criminal cases are resolved in the trial courts at the pre-trial stage, the defendants must\nbe represented by an attorney at critical stages in the process, and at the government\xe2\x80\x99s expense if they cannot\nafford to hire an attorney, unless they have voluntarily waived the right and wish to represent themselves.\nCourt jurisdiction determines where a case will be filed and which courthouse has the legal authority to\nhear a case. Jurisdiction can be based on geography, subject matter, or seriousness of the offense. Jurisdiction\nis also divided between trial courts (original jurisdiction) and appellate courts (appellate jurisdiction).\nMore than 51 court systems operate in the United States. We have a dual court system comprised of federal\ntrial and appellate courts and state trial and appellate courts. Federal and state courts have similar hierarchical\nstructures with cases flowing from lower trial courts through intermediate courts of appeals and up to the\nsupreme courts.\nDefendants who wish to appeal their convictions are entitled to have their cases reviewed at least once,\na mandatory appeal of right in the intermediate courts of appeal. After that, the review is discretionary\nand rare. Appellate courts generally affirm the decision of the trial courts, but may also reverse and remand\nthe case back to the trial court if they determine that prejudicial error occurred. At the intermediate\nappellate court level, judges most frequently affirm the trial court\xe2\x80\x99s decision without writing an opinion, but\nsometimes the judges will write opinions informing the parties of their decision and the reasons for holding\nas they did. Judges don\xe2\x80\x99t always agree, and at times, judges will write dissenting opinions or concurring\nopinions. Appellate court opinions become precedent that must be followed in the trial courts.\nJudges, prosecutors, defense attorneys work together along with court clerks, bailiffs, and other court staff\nto process tens of thousands of cases daily in trial courts across the nation. Judges, prosecutors, and defense\nattorneys play an important role in the criminal justice process. Although few cases actually go to trial, and\nthe vast majority of criminal cases are resolved in the trial courts at the pre-trial stage, the defendants must\nbe represented by an attorney at critical stages in the process, and at the government\xe2\x80\x99s expense if they cannot\nafford to hire an attorney, unless they have voluntarily waived the right and wish to represent themselves.\n\n308\n\n\x0c8: Corrections\n\nLearning Objectives\n\nUp to this point, we have spent much time on understanding crime, how it is policed, and how it is prosecuted in\nthe courts. This section will cover the last third of the justice system, corrections. This section will focus on a brief\nhistory of corrections, to include the philosophical underpinnings of why and how we punish people. After reading\nthis section, students will be able to:\n\xe2\x80\xa2\n\nUnderstand where the basic concept of punishment comes from\n\n\xe2\x80\xa2\n\nRecognize the different ideologies of why and how people are punished\n\n\xe2\x80\xa2\n\nUnderstand how punishment has evolved in the world, and how that has shaped punishment in the\nUnited States\n\nCritical Thinking Questions\n\n1.\n\nWhy are we more punitive at times than others? What changes our punitive values?\n\n2.\n\nWhat are some of the pros/cons of each of the four correctional ideologies?\n\n3.\n\nDoes crime change depending on our collective correctional ideology, or practice?\n\n4.\n\nDoes punishment change, based on our correctional ideology? How?\n\n5.\n\nWhat are some key explanations for the rise in the prison population in the U.S.?\n\n309\n\n\x0c\x0c8.1. A Brief History of The Philosophies of Punishment\n\nDAVID CARTER\n\nA Brief History of Punishment\nFeeling safe and secure in person and home is arguably one of the most discussed feelings in our nation\ntoday. The \xe2\x80\x9cfear of crime\xe2\x80\x9d influences how we think and act day to day. This has caused great fluctuation\nin the United States in regards to how we punish people who are convicted of violating the law. In part,\npunishment comes from the will of the people, which is then carried out through the legislative process, and\nconverted into sentencing practices. People have differing views on why people should be punished, and\nhow much punishment they should receive. These correctional ideologies, or philosophical underpinnings\nof punishment, have been prevalent throughout history, and are not brand new in the United States. This\nsection details basic concepts of some of the more frequently held punishment ideologies, which include:\nretribution, deterrence, incapacitation, and rehabilitation.\n\nIn the News: One of the more frequently used statistics in the news about crime is homicides in the\nUnited States. Often, you will hear something about a homicide rate or the number of homicides in a\nstate, or a city for a particular year. An interesting clarifier about this number is that it typically does\nnot include a number of deaths in prison. Deaths in prison occur every year, yet these are not normally\ncounted in any statistic. In 2014, there were approximately 3,927 deaths that occurred in prisons in the\nUnited States. There are a variety of reasons for these deaths, to include homicide. For more information\non this, look up \xe2\x80\x93 Mortality in Correctional Institutions (MCI). This is also formerly known as Deaths\nin Custody Reporting Program (DCRP). The Bureau of Justice Statistics houses and publishes data on\nthis phenomenon. Additionally, this is a voluntary reporting structure, which may actually not capture all\ndeaths that occur in prison. https://www.bjs.gov/index.cfm?ty=dcdetail&iid=243\n\nPhilosophies of Punishment Example\n\n311\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nTwo stories come on during the crime section of the 6 o\xe2\x80\x99clock news. In the first story, a man is described as a\nconvicted sex offender. He is living at an address that you know is in your city. Citizens that live on the streets\nnearby his address are shown picketing in front of his house, voicing their displeasure that he is allowed to live\nthere. The video shows how angry the neighborhood is, and you can visibly see their frustration and angst on the\npeople\xe2\x80\x99s faces in the news clip.\nThe second story is of a woman who was detained (shown in the back of a squad car) for stealing food from a\nlocal grocery store, apparently to feed her children. The store manager is then on the screen describing that he is\noffering to donate the food to her so that she does not have to spend time in jail or get into any more trouble.\nHow do these two stories make you feel? Is it the same feeling for each story? Does one of these stories make\nyou feel more afraid of crime? More angry or upset? Which one? Who deserves to get punished more? How much\npunishment should they get? The answers to questions like these instantly flood our thoughts as we are watching\nnews blurbs like this, and in general, when we hear about a crime. This is all normal. And, this process is what\ngenerates our own personal punishment ideology.\nNow, which one of these two individuals has actually committed a crime? A second point to this story is that our\nperceptions of punishment can be influenced by the narrative (what is presented to us).\n\nAlthough the change in our overall perception or use of the rehabilitation ideology is slow, it is necessary.\nAs we will see in the next sections, our reliance on the \xe2\x80\x9cBrick and Mortar\xe2\x80\x9d approach to punishment comes\nat a great cost, and the results are less than desirable.\n\n312\n\n\x0c8.2. Retribution\n\nDAVID CARTER\n\nRetribution\nRetribution, arguably the oldest of the ideologies/philosophies of punishment, is the only backwardlooking philosophy of punishment. That is, the primary goal of retribution (in its original form) is to\nensure that punishments are proportionate to the seriousness of the crimes committed, regardless of the\nindividual differences between offenders, other than mens rea and an understanding of moral culpability.\nThus, retribution focuses on the past offense, rather than the offender. This can be phrased as \xe2\x80\x9ca balance\nof justice for past harm.\xe2\x80\x9d People committing the same crime should receive a punishment of the same type\nand duration that balances out the crime that was committed. The term-backward-looking means that the\npunishment does not address anything in the future, only for the past harm done.\nIt is argued as the oldest of the main correctional/punishment ideologies because it comes from a basic\nconcept of revenge, or \xe2\x80\x9can eye for an eye.\xe2\x80\x9d This concept of an eye for an eye, or vengeance, basically means\nthat if someone perceives harm, they are within their right to retaliate at a proportional level. This idea that\nretaliation against a transgression is allowable has ancient roots in the concept of Lex Talionis, which roughly\ntranslates into the law of retaliation. A person who injures someone should be punished with a similar\namount of harm (punishment). This concept was developed in early Babylonian law, and it is here that we\nsee some of the first written forms of customs and practices. Thus, around 1780 b.c., the Babylonian Code,\nor the Code of Hammurabi, is considered the first attempt to codify practices by individuals of a group.\nWe recognize these today to be our first attempt at written laws. These laws (pictured below) represent a\nretributive approach to punishment. That is proportional punishments for past harms done.\n\n313\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nHammurabi Code\n\nThe retributivist philosophy also calls for any suffering beyond what was originally intended during\nsentencing to be removed. This is because the dosage of punishment is the core principle of retribution:\noffenders who commit the same crime must receive the same punishment. Punishments beyond the original\nbalancing of justice for the past harm is outside of the scope of retribution, and thus, does not fit with\nretribution. This also helps to explain why retribution is a backward-looking ideology. As we continue\nforward in the history of punishment, we see changes to our perceptions of how to react to crime. This\nincludes our changing views of punishment, to include punishment ideologies that are more forwardlooking.\n\n314\n\n\x0c8.3. Deterrence\n\nDAVID CARTER\n\nDeterrence\nForward-looking ideologies are designed to provide punishment, but also to reduce the level of\nreoffending (recidivism) through some type of change, while the backward-looking approach is solely\nfor the punishment of the offender\xe2\x80\x99s past actions. This change in how we view punishment is a large\nshift that has ripples in culture, the politic of the times, and even religion. Moving many eras forward\nfrom Hammurabi, deterrence is the next major punishment ideology. Rooted in the concepts of classical\ncriminology, deterrence is designed to punish current behavior(s), but also ward off future behaviors through\nsanctions or threats of sanctions. Moreover, it can be focused on a group or on one individual. Thus, the\nbasic concept of deterrence is \xe2\x80\x9cthe reduction of offending (and future offending) through the sanction or\nthreat of sanction.\xe2\x80\x9d\nWhen looking at punishment through this deterrent design, it can be split into two distinct categories:\ngeneral and specific. Specific deterrence is geared towards trying to teach the individual offender a lesson.\nIt is meant to better that individual so they will not recidivate. By punishing the offender (or threatening\na sanction), it is assumed they will not commit a crime again. It is this point that makes deterrence a\nforward-looking theory of punishment. General deterrence runs along the same track as specific deterrence.\nHowever, general deterrence differs by when one person offends, the punishment received is going to be\nthe same for all. In this way, the group doing the punishing attempts to relay the message of future events to\nthe masses. If someone commits this act, they will be punished; this is part of the core design for deterrence.\nSome other principles of deterrence to discuss in brief are: marginal, absolute, and displacement. Marginal\ndeterrence works on the principle that the action itself is only reduced in amount by the offender, not\nremoved. An example of this would be, a person sees a police officer sitting on the side of the freeway. If\nthey are driving 70 mph, they might slow to 58 mph. Technically, they may still be breaking the law, yet\ntheir level of criminal behavior has been reduced. Absolute deterrence is a surrealistic concept often thought\nto be created by Robert Peel, in his idea of creating a police force to remove all crime. In today\xe2\x80\x99s standards,\nwe know this to be false. There is little to no evidence to support that all crime can be deterred within a\nspecific area, or even in general. Displacement argues that crime is not deterred, but rather, it is shifted on\nthree levels. It may be shifted by time, location, or the type of crime committed. Instead of someone stealing\ncars on the weekend, they may sell drugs during the day. Although the weekend crime carjacking rate will\ndecrease, the daily drug trade will increase.\n315\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nIn order for all of these principles of deterrence to work, the people who are involved (meaning society\nas a whole) must have a conceptual (perceived) idea of the level of punishment they will receive. For the\nefficacy of this theory, three key things must be instilled within each individual in society. They must have\nfree will, some amount of rationality, and felicity. Free will refers to everyone\xe2\x80\x99s ability to make choices about\ntheir future actions, like choosing when to offend and not offend. They must also have a rationalistic ability\n(ability to be rational) to see what the outcomes of their choices will be. The third element, hedonism (or\na hedonistic calculus), is essential. We must desire more pleasurable things than harmful ones. It is more\nprobable that crime will be deterred if all three of these elements are in place within society. This is both a\nstrength and weakness of the deterrence theory.\nDeterrence theory works on these three key elements: certainty, celerity, and severity, in incremental\nsteps. First, by making certain, or at least making the public think that their offenses are not going to go\nunpunished, then there will be a deterrent factor. As Beccaria relates, this is the most important of these\nthree elements within deterrence theory. The celerity, or swiftness of punishment, is a secondary factor in\nrationalizing for the offender. If they know how swift the punishment will be, they will not offend. These\nconcepts were cornerstones to the works of Cesare Beccaria (1738-1794), an Italian philosopher in the latter\nhalf of the 18th century. Beccaria\xe2\x80\x99s works were profound, and many of his concepts helped to shape the U.S.\nBill of Rights. He is also considered the Father of the Classical School of Criminology, and a prominent\nfigure in penology. According to Beccaria, \xe2\x80\x9cFor punishment to attain its end, the evil which it inflicts has\nonly to exceed the advantage derivable from the crime\xe2\x80\xa6 All beyond this is superfluous and for that reason\n1\ntyrannical.\xe2\x80\x9d\n\n1. Beccaria, 1764/1963, 43.\n\n316\n\n\x0cIntroduction to the American Criminal Justice System\n\nCesare_Beccaria_1738-1794.jpg\n\nIn saying this, Beccaria refers to the severity or amount of punishment. It is not how much punishment that\nis the primary motivator of deterrence, rather, the certainty. If deterrence is to work, the ideology of the\npunishment is what should drive this goal of corrections.\nToday, we have a better understanding of the effectiveness of deterrence. It does appear to work for lower\nlevel offenses, and for individuals that are generally prosocial. However, the overall effect of deterrence is\nlimited. For more detail on things to know about deterrence, please see: https://www.ncjrs.gov/pdffiles1/nij/\n247350.pdf\n\n317\n\n\x0c8.4. Incapacitation\n\nDAVID CARTER\n\nIncapacitation\nRooted in the concepts of banishing individuals from society, incapacitation is the removal of an\nindividual (from society), for a set amount of time, so as they cannot commit crimes (in society) for an\namount of time in the future. In British history, this often occurred on Hulks. Hulks were large ships that\ncarried convicted individuals off to far away lands. The point was to not allow them to be able to commit\ncrimes in their community any longer.\n\n318\n\n\x0cIntroduction to the American Criminal Justice System\n\nThe_Warrior_prison_ship.JPG\n\nIn the 1950s, punishment became much more of a political topic in the United States, and this is one of the\nissues that started this section, our perceptions of the fear of crime. Lawmakers, justicians, and others began\nto campaign with their toughness on crime, using the fear of crime and the criminal element to benefit\ntheir agendas. One of the examples of being tough on crime was the use of long periods of incarceration\nin general. This could be considered as collective incapacitation, or the incarceration of large groups of\nindividuals to remove their ability to commit crimes for a set amount of time in the future.\nSince this time, and most greatly exacerbated in the 1980s and 1990s, there has been the increasing use of\npunishment by prison sentences. Thus, we saw rapid growth in the prison population in the United States.\nThe \xe2\x80\x98politicization of punishment\xe2\x80\x99 increased the overall prisoner levels in two ways. First, by changing the\nviews toward the discretion allowed to decision makers, we have gotten tougher on crime. In turn, more\npeople are being sentenced to prison that may have otherwise gone to a specialized probation or community\nsanction alternatives. Second, these same attitudes have led to harsher and lengthier punishments for certain\ncrimes. Offenders are being sent away for longer sentences, which has caused the intake-to-release ratio to\nchange, causing enormous buildups of the prison population.\nThe incapacitative ideology followed this design for several decades. In the early 1990s, policies were\nimplemented that would target individuals more specifically. These would come to be known as \xe2\x80\x9cthreestrikes\xe2\x80\x9d policies. These policies would incarcerate an individual for greater lengths of time, based on prior\n319\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\noffenses. The selective incapacitation philosophy incarcerated individuals for longer periods of time than\nothers. Thus, it removed their individual ability to commit crimes (in society) for greater periods of time in\nthe future than others.\nThere are mixed feelings about selective and collective incapacitation. Policymakers would promote their\nutility through anecdotal examples of locking certain offenders away, in order to help assuage the fear of\ncrime. Others have offered that there are minimal savings at best, stating that these goals do not achieve the\n1\nintended results as previously suggested. Future styles of selective incapacitation that have evolved include\ntighter crime control strategies that incorporate variated sentencing strategies to selectively incapacitate the\nhigher rate offender. Others opt for tougher parole procedures to retain the hardened criminals longer.\nIn sum, we do see a definite shift from the insignificance of collective incapacitation, to a more selective\napproach.\nIn all, we are still left with the same questions, does it work? And, at what cost? Do these lengthier\npunishments for particular crimes have an effect by selectively incapacitating hardened criminals? Are there\nother methods that seem the same or are more effective than the ones already in practice? This takes us to\nthe last of the four main punishment ideologies, rehabilitation.\n\n1. Blokland, A.A.J., & Nieuwbeerta, P. J (2007). Selectively incapacitating frequent offenders: Costs and benefits of various penal scenarios.\nJournal of Quantitative Criminology, 23: 327. https://doi.org/10.1007/s10940-007-9033-3\n\n320\n\n\x0c8.5. Rehabilitation\n\nDAVID CARTER\n\nRehabilitation\nAlthough not as old as some of the older ideologies, rehabilitation is not brand new. Additionally, it is the\nonly one of the four main ideologies that most accurately attempts to address all three goals of corrections,\nwhich are:\n1. Punish the offender\n2. Protect Society\n3. Rehabilitate the offender.\nCertainly, all four ideologies address the first two goals, punishment, and societal protection. However,\nthe goal of rehabilitating the offender is either silent, or not addressed in retribution, deterrence, or\nincapacitation. This does come as a cost. As we will talk about in more detail when covering prisons and\njails, there is a great paradox that is happening in our society when we heavily rely on jails and prisons. Most\noffenders will come out of institutions (roughly 95% of all people who enter prisons are released), and little is\ndone to change them while they are there. This is mostly due to our attitudes towards offenders, the policies\nthat are necessarily placed on individuals while they are locked up, and the institutions themselves. And yet,\nthere is the expectation that these individual leaving prisons will not commit crimes in the future.\nThe question here is this: what have we done to change them so that they are not reoffending? Without\nthe incorporation of some form of rehabilitation, the answer is fairly clear\xe2\x80\xa6 Nothing. Yet, we expect it.\nRehabilitation has taken on different forms through its history in the United States. We have considered\nindividuals out of touch with God, and so offenders needed to be penitent, in order to get right with God.\nOne of America\xe2\x80\x99s earliest prisons was designed with this in mind. The Eastern State Penitentiary, opening\nin 1829, included outside reflection yards; so that offenders could look up to God for penance.\nTo see more of this prison, visit https://www.easternstate.org/.\nReformatories were another example of how rehabilitation was viewed in the past. The reform movement\ntried to rehabilitate the offender through more humane treatment, to include basic education, religious\nservices, work experience, and general reform efforts. This was done in an effort to reform individuals, thus\nallowing them to come back to society. The Elmira Reformatory was one of the earliest efforts of the reform\nideal, and many prisons built in the United States were based on this prison. Below is a picture of Elmira.\n\n321\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nElmira Reformatory\n\nOther attempts at rehabilitation included more medical approaches. In the past, offenders were viewed\nas sick, and in need of medical cures. This medical approach, while greatly reduced, is still used in some\nareas today. For example, the chemical castration of certain offenders does still occur. For example HB 2543,\nin Oklahoma, in September of 2018, focuses on the mandated use of medroxyprogesterone acetate as a\ntreatment, and is required before appropriate release of convicted sex offenders.\nRehabilitation, as an ideology has had critics. This is in large part due to how it is perceived. Many\nhave voiced an objection, as it is seen as being \xe2\x80\x9csoft\xe2\x80\x9d on offenders. This is also how it has been discounted\nwhen coupled with the fear of crime. Several examples are presented as to its ineffectiveness, and weakness\nto the problem of crime. Probably the most notable example of the ineffectiveness of rehabilitation came\nin the 1970s. In 1974, Robert Martinson provided support for many that were clambering to demonstrate\nthat the ideas of rehabilitation were ineffective. In a review of over 230 programs, Martinson concluded\nthat \xe2\x80\x9cWith few and isolated exceptions, the rehabilitative efforts that have been undertaken so far have had\n1\nno appreciative effect on recidivism\xe2\x80\x9d (Martinson, 1974, p. 25). This was the spark that many needed to\nturn toward the more punitive ideologies that we have so far discussed. However, it did help some to ask\nmore detailed questions about why rehabilitation was not working. Additionally, it helped researchers to ask\nmore critical questions about measurement, how to more properly evaluate rehabilitation and to understand\nthe difference of what does not work versus what does work for offenders. These principles of effective\nintervention become the cornerstone of modern rehabilitation.\nUnderstanding Risk and Needs in Rehabilitation\n1. Martinson, R. (1974). What works? Questions and answers about prison reform. Public Interest 35, 22-54.\n\n322\n\n\x0cIntroduction to the American Criminal Justice System\n\nToday\xe2\x80\x99s rehabilitative efforts do still carry punishment and societal protection as goals, but the focus of\nrehabilitation is on the changing of offenders behaviors so that they are not committing crimes in the future.\nThis is done by understanding what are the items that make offenders at risk for offending. Additionally,\nbased on the levels of risk items, some offenders are at higher risk for offending than other offenders. This\nincludes items like prior criminal history, antisocial attitudes, antisocial (pro-criminal) friends, a lack of\neducation, family or marital problems, a lack of job stability, substance abuse, and personality characteristics\n(mental health and antisocial personality). Collectively these are considered as risk factors for offending\n(re-offending). While we can change the number of priors someone already has, all of these other items\ncan be addressed. These are considered as criminogenic needs. Criminogenic needs are items that when\nchanged, can lower an individual\xe2\x80\x99s risk of offending. This is a core component of Paul Gendreau\xe2\x80\x99s (1996)\nprinciples of effective intervention, and are at the heart of most modern effective rehabilitation programs.\n2\nAdditionally, thousands of offenders have been assessed on these items, which has helped to develop\nevidence-based rehabilitation practices. These are efforts that are based on empirical data about offenders.\nWhen these criminogenic needs are addressed, higher-risk offenders demonstrate positive reductions in their\nrisk to offend.\nOver the last 40 years, efforts to change these characteristics, in order to reduce offending have been\nvaried. One of the most useful approaches to changing the antisocial attitudes and behaviors of offenders\nhas come in the form of behavioral and cognitive behavioral change efforts. Cognitive behavioral change\nfor offenders is based on the concepts that the behaviors that one exhibit can be changed by changing\nthe thinking patterns behind (before) the behaviors are exhibited. That is (criminal) behavior is based on\ncognition, values, and beliefs that are learned vicariously through the interactions and observations of others.\nIt is especially relevant since we are receiving individuals from prison, where these ideas, peers, values, and\nbeliefs may dominate the institution. For a more detailed explanation, please see https://www.apa.org/ptsdguideline/patients-and-families/cognitive-behavioral.pdf.\nToday, evidence-based rehabilitative efforts are now used as benchmarks when establishing programs that\nare seen as effective, versus ones that show little to no (or even negative) results. Rehabilitation programs\nthat follow these principles of effective intervention are showing that they can achieve these three goals of\ncorrections (punishment, societal protection, and offender change). In fact, the U.S. Federal Government has\na section of the National Institute of Justice devoted to these evidence-based practices, and what programs\nare seen as effective, promising, and not effective. This site is called \xe2\x80\x9cCrimeSolutions,\xe2\x80\x9d and can be visited\nat https://www.crimesolutions.gov/. This resource provides invaluable information for individuals making\ndecisions on what works for offenders and is based on empirical studies of hundreds of different approaches.\n\n2. Gendreau, P. (1996). Principles of effective intervention with offenders. Choosing correctional options that work: Defining the demand\nand evaluating the supply, 117-130, Alan T Harland, ed. -- See NCJ-158983) https://www.ncjrs.gov/App/Publications/\nabstract.aspx?ID=158988\n\n323\n\n\x0c8.6. Prisons and Jails\n\nDAVID CARTER\n\nLearning Objectives\n\nThis section focuses on prisons and jails in the United States. We start with a brief historical account of prisons\nand jails in America. We then turn to our current situation of prisons and jails, to include types, function, and\nvolume. After reading this section, students should be able to:\n\xe2\x80\xa2\n\nUnderstand the emergence of prisons and jails in the United States\n\n\xe2\x80\xa2\n\nRecognize the different types of jails\n\n\xe2\x80\xa2\n\nRecognize the different types of prisons\n\nCritical Thinking Questions\n\n1.\n\nExplain the operational process of most jails in the United States today. Where does this come from\nhistorically?\n\n2.\n\nHow does the difference in the type of jail influence how the jail is managed?\n\n3.\n\nExplain the similarities and differences in the two early types of prisons in the United States.\n\n4.\n\nExplain the current operational process of most State prisons in the United States today. Where does\nthis come from historically?\n\n324\n\n\x0c8.7. A Brief History of Prisons and Jails\n\nDAVID CARTER\n\nThe Growth of Jails in the United States\nThe concept of a jail (GOAL \xe2\x80\x93 old English spelling) is yet another concept that we have carried with\nus from Western Europe (England, etc\xe2\x80\xa6) when the United States was first forming. Spawning from the\nCounty-level establishment and management of jails in England; these have largely been run by County\nSheriffs in the United States, ever since we began to have them. They have had various names, depending on\ntheir function and use, such as Bridewells, and Workhouses. Pictured below is what is commonly accepted\nas the first \xe2\x80\x9cbuilt\xe2\x80\x9d structure to house individuals that have been processed through the courts, the Walnut\nStreet Jail. Opening around 1790, this facility housed both jail inmates, and at some points in time convicted\noffenders.\n\n325\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nGoal_in_Walnut_Street_Philadelphia_Birch\xe2\x80\x99s_views_plate_24_(cropped).jpg\n\nLater, labeled as a prison (as depicted by the historical marker below), the Walnut Street Jail was a blueprint\nfor later prison construction, which we discuss in the latter half of this chapter.\n\n326\n\n\x0cIntroduction to the American Criminal Justice System\n\nWalnut Street Prison Historical Marker\n\nAs the United States began to populate, county lines began to be drawn up for States earning Statehood.\nSheriffs began to police their Counties, and also be responsible for managing the lower level infractions\n(misdemeanors) within their jurisdictions. Thus, County Jails began to flourish in the United States. Initially,\nmany jails were nothing more than parts of a Sheriff\xe2\x80\x99s office, literally, cells in the back room. Today, large\nstructures (even multiple structures in a single county) constitute jails in the United States. Overall, we have\nseen changes in the growth of jails in the United States. While we were certainly growing in the number of\njails as States gained Statehood, there has been a shift in jails structures. The vast majority of jails are small in\nsize. There are few larger jails, but they hold more individuals. As can be seen in a report from Cahalan and\n327\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nParsons (1986), and reports by Harrison and Beck of the Bureau of Justice Statistics (2005), the numbers of\n12\njails has changed immensely.\nTable 2-1 Jails in the United States\n\nThis is due to a variety of reasons, to include: inclusion or exclusion of Youth Facilities, Native American\nFacilities, Privately Owned Facilities, and reporting structures (who reports a jail in a given year). Based on\nthese fluctuations, it is difficult to get an exact count of jails each year. However, it appears that there are\nroughly 3,300 jails in the United States today.\n\n1. Cahalan, M. W., & Parsons, L. A. (1986). Historical corrections statistics in the United States, 1850-1984. U.S. Department of Justice.\nhttps://www.bjs.gov/content/pub/pdf/hcsus5084.pdf\n2. Harrison, P. M., & Beck, A. J. (2005). Prisons and jail inmates at midyear, 2005.BJS Bulletin. https://www.bjs.gov/content/pub/pdf/\npjim05.pdf\n\n328\n\n\x0c8.8. Types of Jails\n\nDAVID CARTER\n\nJails vary greatly in function and size. For example, the vast majority of jails hold less than 50 jail detainees\neach (roughly 2,000 jails). Yet, the 50 biggest jails hold over half of the total number of detainees, more than\n1\n350,000 in the 50 biggest jails. For example, Los Angeles County Jail is actually a system of buildings spread\nacross LA County, which includes the Inmate Reception Center, North Facility, South Facility, LOMA,\nTwin Towers, Men\xe2\x80\x99s Central, just to name a few of the facilities. For a more detailed description of the jail\nfacilities in L.A. County Jail, please see http://shq.lasdnews.net/pages/tgen1.aspx?id=as1.\nWhile most jails are run by County Sheriff, there are some jails that are managed by cities or jurisdictions.\nFor example, Chicago, New York, Philadelphia, and Washington D.C. all have their own jails, which are\nnot managed directly by the county in which they reside.\nJails also vary by how they are designed. While there are others, jails can be separated into two broad types,\nthe older generation, and the new generation. Older generation jails are jails that are typically linear in\ndesign, with cell doors separating rooms or sections down long corridors. Many jails operate with this design.\nNewer generation jails are more podular in design, where multiple cells face a central area. Additionally,\nwhen these podular designs are used, a direct supervision approach is also often used. Direct supervision is\nwhere there are no particular barriers between the deputies and the detainees within a facility. For example,\nthe image below depicts what a direct supervision jail may look like.\nNew Generation Jail Design\n\n1. Minton, T. D. (2012). Jail inmates at midyear, statistical tables. U.S. Department of Justice. https://www.bjs.gov/content/pub/pdf/\njim11st.pdf\n\n329\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nAs you can see in the image, the operational booth (immediate left) is open to access the day area or common\narea, and the doors of the cells for this jail section open to this space. Below is an image of the older\ngeneration, linear style of jail. This typically uses the indirect supervision approach.\nOlder Generation Jail Design\n\n330\n\n\x0cIntroduction to the American Criminal Justice System\n\n331\n\n\x0c8.9. Who Goes to Jail?\n\nDAVID CARTER\n\nOne of the more fascinating aspects of jails in the United States is who gets placed in them. The short answer\nis everyone. Whenever someone is arrested, this typically starts their process in the criminal justice system.\nWhile it might not be the first time they have been arrested, this action places them en route to a jail. Thus,\njails are a collection point for many differing agencies, to include: County Sheriff\xe2\x80\x99s Office, Municipal, local,\nCity \xe2\x80\x93 Police. State Police may send individuals directly to jail, even Federal agencies may use a local jail\nas a point of entry. For example, ICE (immigration and customs enforcement) houses many thousands of\nICE-holds in jails across the country. Jails hold all kinds of individuals. While this list is not comprehensive,\nit does present many of the types of people held in jails:\n\xe2\x80\xa2 Felons and Misdemeanants\n\xe2\x80\xa2 First time and repeat offenders\n\xe2\x80\xa2 Those awaiting arraignment or trial\n\xe2\x80\xa2 Accused and Convicted\n\xe2\x80\xa2 Parolees stepping down from prison\n\xe2\x80\xa2 Juveniles pending transfer\n\xe2\x80\xa2 Those with mental illness awaiting transfer\n\xe2\x80\xa2 Chronic alcoholics and Drug abusers\n\xe2\x80\xa2 Those held for the military\n\xe2\x80\xa2 Those held for federal agencies\n\xe2\x80\xa2 Protective custody\n\xe2\x80\xa2 Witnesses\n\xe2\x80\xa2 Those in contempt of court\n\xe2\x80\xa2 Persons awaiting transfer to state, federal or other local authorities\n\xe2\x80\xa2 Temporarily detained persons\n332\n\n\x0cIntroduction to the American Criminal Justice System\n\nAs one can see from this list, there are many types of people in the 3,300 plus jails at any given time. In fact,\nat any given point in time, there are 700,000 plus individuals within jails in the United States. This number\nhas steadily increased since the 1970s. While there have been some decreases in recent years, it generally\nfluctuates around 725,000 to 750,000 jail inmates. However, this is only one portion of the people in jails.\nIt is estimated that roughly 11 million people process through America\xe2\x80\x99s jails annually. Average lengths of\nstay vary by jurisdiction, but a general average is that a person spends around 25 days in jail. As Wagner and\n1\nSawyer (2018) depict in the picture below, the types of people in jail at a point in time is varied.\nSnapshot of Individuals in Jail\n\nWho goes to jail?\n\nProbably one of the most notable items in the snapshot above is the proportions of individuals that are or\nare not convicted. Roughly 63% of individuals in jails at any given time are not convicted. Other notable\ngroups are individuals held for other agencies. This could be a matter of processing time or allocations of bed\nspace. In all, it is relatively easy to see the volumes and different types of people that pass through a jail in this\ngraphic. Still, jails only make up one portion of the brick-and-mortar approach to punishment. Prisons are\nthe other large part.\n1. Wagner, P., & Sawyer, W. (2018). Mass incarceration: The whole pie 2018. Available at the Prison Policy Organization\nhttps://www.prisonpolicy.org/reports/pie2018.html\n\n333\n\n\x0c8.10. Growth of Prisons in the United States\n\nDAVID CARTER\n\nAs mentioned at the beginning of this section on jails and prisons, the Walnut Street Jail is recognized as\nthe first built institution in the United States to house individuals. Soon after, another prison was built, the\nEastern State Penitentiary (ESP), and it ran like a prison for nearly 150 years. Many of the prisons today\nwere first built on this idea of a separated penitent prison. Many of the cells in the prison (as depicted below)\nwould open to individual courtyards where individuals could look up and \xe2\x80\x9cget right with God,\xe2\x80\x9d hence the\nconcept of penitentiary (penance).\nEastern State Penitentiary Design\n\nThe State Penitentiary for the Eastern District of Pennsylvania, Lithograph by P.S: Duval and Co., 1855.\n\n334\n\n\x0cIntroduction to the American Criminal Justice System\n\nIndividuals in ESP spent much of their time in their cells, or in their own reflection yards, reading\nthe bible, praying, and always in silence. The solitude was also a way to serve penance. Shortly after the\nimplementation of ESP, another prison was built in New York, in 1819, named the Auburn prison. This\nprison would become the leader of the second main prison style, the Auburn prison system. Many of the\nfacets of the ESP were in the Auburn, save one. Auburn utilized a congregate system, which meant that (still\nin silence) the inmates would gather to do tasks or work.\nPrison Growth in the United States\n\nProliferation1900-2000\n\nThis concept of labor eventually replaced the ideals of constant solitude. The congregate system took hold as\nthe dominant model for many prisons, and many states began to model their prisons on the Auburn prison.\nNotably, Auburn was also the prison where the first death by electric chair was executed in 1890. Today,\nthere are roughly 1,700 State or municipal prisons in the United States. As the images demonstrate, it is clear\nthat many of the prisons in the U.S. have been built more recently.\n\n335\n\n\x0c8.11. Types of Prisons\n\nDAVID CARTER\n\nPrisons in the United States can be parcelled out by jurisdiction and by intensity. By jurisdiction, this is\nreferring to who manages the prisons. A prison warden is generally considered the managerial face of the\ninstitution. However, a prison warden and the prison itself is usually within a much larger organizational\nstructure. Although not always, these are usually separated by State. There are a few jurisdictions not at the\nState level that manage or operate prisons. This includes places like New York, Chicago, Philadelphia, and\nWashington D.C. Puerto Rico (not a State) also has a prison, as does the U.S. territory of the Virgin Islands.\nState Prisons\nThe normal label for the organizational structure of prisons in a particular State is often called Departments\nof Corrections and are run by a Director, who is usually appointed by a Governor. For example, in\nOregon, it is the Oregon Department of Corrections, and Director Peters is the current head of this\norganization (2012-present). The Oregon Department of Corrections currently overseas 14 State prisons.\nMore information about the ODOC can be found here: https://www.oregon.gov/doc/Pages/default.aspx.\nCalifornia has the California Department of Corrections, and Secretary Diaz is the head of this organization\n(2018 to present). CDCR oversees 34 adult institutions. For more information about CDCR, see\nhttps://www.cdcr.ca.gov/.\nFederal Prisons\nThe Federal Bureau of Prisons was established in the early 1930s as a result of the need to house an\nincreasing number of individuals convicted of federal crimes. There were already some federal prisons in\nplace, but it was not until 1930 that the U.S. Congress passed legislation to create the BOP, housing it under\nthe justice department. Sanford Bates became the first Director of the Federal Bureau of Prisons (FBOP or\nBOP), based on his long-standing work as an organizer and leader at Elmira Reformatory in New York. As\nmore federal legislation was passed, the need for more prisons became apparent.\nToday, the BOP has 109 prisons, along with numerous additional facilities (camps) adjoining at these\nlocations. There are also military prisons, and alternative facilities, reentry centers, and training centers, that\nare managed by the BOP. The federal prisons are separated into six regions., which include: the MidAtlantic Region, the North Central Region, the Northeast Region, the Southeast Region, the South Central\nRegion, and the Western Region.\nWithin these regions are regional directors, which is similar to state-level directors of departments of\ncorrections. Below is a detailed map of the regions of the Federal Bureau of Prisons. As is depicted, there are\n336\n\n\x0cIntroduction to the American Criminal Justice System\n\nseveral different types of facilities within each region. A central office is also designated for each of the six\nregions. Click on the link in the annotation of the map to see it in a larger scale.\nFBOP Regional Map\n\nBOP Regional map\n\nPrivate Prisons\nThe privatization of goods and services has long been a staple of state departments of corrections, as it\nallows these organizations to subcontract specific tasks within their prisons. This includes services like food\nand transportation services, medical, dental, and mental health services, education services, even laundry\nservices. As mentioned in the previous section on punishment, there was much ado about crime in the\nUnited States in the 1970s and 1980s. This brought on an increased fear of crime and a more punitive state\nwithin the United States. It was during this time that a small company known as Wackenhut, a subsidiary of\nThe Wackenhut Corporation (TWC) sought to privatize the entirety of a prison, not just services within the\nprison. A second company, Corrections Corporation of America ultimately won the contract and became\nthe first privately owned prison in the United States (1984). Today, Core Civic (formerly Corrections\n1\nCorporation of America) runs approximately 128 facilities in the United States. The GEO Group, the other\n\n1. See Core Civic facilities map: http://www.corecivic.com/facilities\n\n337\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nprimary private prison company runs 136 correctional, detention, or reentry facilities.\nroughly half of the 50 States in America use private prison industry prisons.\nStates Using Private Prison Industry\n\n2\n\nPictured below,\n\nPrivate Prison State Map\n\nMuch debate has come from the incorporation of private prisons. The critics of private prisons denote\nthe lack of transparency in the reporting processes that would come from a normal prison. Still, others\ntackle a bigger issue \xe2\x80\x93 punishment for profit. That is \xe2\x80\x93 while taxpayers ultimately pay for all punishment\nof individuals, either at the State or Federal level, shareholders and administrators of the companies are\nmaking money by punishing people, under the guise of capitalism. For a more in-depth review of this,\nsee a report presented by the Sentencing Project: https://www.sentencingproject.org/publications/privateprisons-united-states/ and on NPR: https://www.npr.org/2010/10/28/130833741/prison-economics-helpdrive-ariz-immigration-law\n\n2. See Geo Group facilities map: https://www.geogroup.com/LOCATIONS\n\n338\n\n\x0c8.12. Prison Levels\n\nDAVID CARTER\n\nEach of these jurisdictions of prisons also has varying degrees of intensity or seriousness. These are often\nconsidered prison levels or classifications. Depending on the State, the BOP, or even in the private sector,\nit is usually associated with the seriousness of the offenders that are housed within these institutions. For\nexample, many States have three classification levels: minimum, medium, and maximum. Some States have\na fourth level called super-maximum. Others call this close, or administrative level. The BOP has five levels,\nminimum, low, medium, high, and unclassified. Although not a true designation, and would be considered\nan unclassified, administrative control, ADX Florence is a United States Penitentiary (USP) that would be\ncounted as a super-max. It houses the most dangerous individuals at the Federal level. Although not in\noperation today, Alcatraz was probably the most famous Federal USP (also considered a super-max at one\npoint). It too housed the most dangerous federal inmates. Below are two images of this iconic prison, known\nas the \xe2\x80\x9crock.\xe2\x80\x9d\nAlcatraz\n\n339\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nAlcatraz\n\nAlcatraz in the Bay against the Backdrop of San Francisco\n\nAlcatraz in the Bay against the Backdrop of San Francisco\n\nOther States use a simple number designator to assign prison intensity, such as Level I, Level II, Level III,\nLevel IV, and sometimes Level V. While still, other States incorporate a Camp to their list of designations,\nindicating a specific purpose within the low level, such as a Fire Camp. These types of camps are dedicated\nto fighting fires. In all there are some basic concepts to point out for each type:\n340\n\n\x0cIntroduction to the American Criminal Justice System\n\nMinimum \xe2\x80\x93 These prisons usually have dorm style housing, typically for only non-violent offenders,\nwith shorter sentences (or sentence lengths left after downgrading). The fencing or perimeters of these\ntypes of facilities are usually low levels. The BOP generally refers to these as camps.\nLow \xe2\x80\x93 These types of prisons are similar to minimums, to include some kind of dormitory style\nhousing. However, there are normally more serious or disruptive offenders in these types of prisons.\nThe fencing around the perimeter of these is generally higher, and maybe even a double fence.\nOffenders are typically in these institutions for longer periods.\nMedium \xe2\x80\x93 Here, there is a transition from dorm-style housing to cells. Normally, there are two\npersons to a cell, but not always. The perimeter is usually a high fence, and may even have barbed\nwire, or there are large walls surrounding the institution. Freedom of movement within the institution\nis reduced, seen as privilege. Inmates here typically longer sentences, and include violence convictions.\nHigh or Maximum \xe2\x80\x93 Similar to medium, but most of these offenders have violence convictions, and\nlonger sentences, including life. Many of these individuals will spend most of their day in a cell, and\nmore often than not, these are single occupancy.\nSuper-Max or Administrative Control \xe2\x80\x93 Depending on what the mission is for that particular\nprison, the prisoners in these institutions could be vastly different. For instance, if it is a facility that is\ndesignated for mental health, it would not operate the same as one that is a super-max. The super-max\nfacilities would have individuals in their cells for almost all of every day. Many services would come to\nthem at their cell, instead of them going somewhere (i.e., sick call), the cells would almost all be single\noccupancy. Visitation of these inmates would be much more regimented and monitored. Most of these\nindividuals are also classified as extreme threats to the successful operations of the prison and are longterm inmates (LWOP \xe2\x80\x93 life without the possibility of Parole).\nIntake Centers \xe2\x80\x93 An intake center can be part of an institution, running alongside the normal\noperations of an institution. The purpose of an intake center is to classify the offenders coming from\nthe various courts in the jurisdiction, post felony conviction. The offender has an initial classification,\nwhere they are getting assigned to one of the jurisdiction\xe2\x80\x99s prisons, based on a point system for that\nagency. This assessment is looking at priors, prior and current violence, escape risk, and potential selfharm. For example, Coffee Creek Correctional Facility in Oregon is their intake of prison. It also is the\nwomen\xe2\x80\x99s prison for Oregon. Inmates come to CCCF and are assessed, then shipped off to one of the\nother institutions in Oregon (or placed in a level there if female). Inmates will gain later classifications at\ntheir destination prison, in terms of work assignments, mental health status, cell assignments, and other\nitems.\n\n341\n\n\x0c8.13. Who Goes to Prison?\n\nDAVID CARTER\n\nThe types of people that end up in prison are quite different than individuals that go to jail. Almost all people\nthat go to prisons in the United States are people that have been convicted of felony-level crimes and will\nbe serving more than a year (or they could have multiple years on their jail sentence). To give you a more\ndetailed depiction of this, see the image below.\nPeople Incarcerated in the U.S.\n\n342\n\n\x0cIntroduction to the American Criminal Justice System\n\nPeople Incarcerated in the U.S.\n\nFocusing in on the left side of the graphic, there are roughly 1,316,000 State Prisoners. Here we can see\nthe types of crimes that they are convicted of. A little over half (54-55%) are incarcerated for violent crimes.\nDrug crimes and property crimes make up the next big sections for the state prisoners. When you add in\nthe federal prisoners (about 180,000) and the private sector prisoners (another 150,000+), territorial prisoners\n(11,000), Indian Country prisoners (2,500), we start to see how that number changes to about 1,700,000\nprisoners.\nOne of the more notable items here, and what is different from the jails, roughly 93% of the prisoners are\nmale. In jail, that number is roughly 85% male. While the total volume of prisoners has dropped slightly in\nthe last few years (since 2015), this following graphic shows that we have increased our number substantially\nover the last 45 years.\n\n343\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nUS State and Federal Prison population\n\nThis growth of the prison population will be discussed in greater detail in the final section on corrections,\nSpecial Issues. However, in the next section, we will discuss where the largest volume of individuals under\ncorrectional control resides, probation and community corrections.\n\n344\n\n\x0c9: Community Corrections\n\nLearning Objectives\n\nUp to this point, we have spent much time on understanding crime, how it is policed, and how it is prosecuted\nin the courts. The next section will cover the last third of the justice system, corrections. This section will focus on\npunishments that happen in the community. Be the end of this section, students should be able to:\n\xe2\x80\xa2\n\nUnderstand what is meant by Community Corrections\n\n\xe2\x80\xa2\n\nRecognize the different types of Community Corrections\n\n\xe2\x80\xa2\n\nUnderstand the pros/cons of the different main types of Community Corrections\n\nCritical Thinking Questions\n\n1.\n\nWhy do some people convicted of a crime get jail/prison, while others do not?\n\n2.\n\nWhat factors are involved with the decision to use alternative sanctions, versus incarceration?\n\n3.\n\nWhat are some of the pros/cons of each of these decision points?\n\n4.\n\nDoes the level of punishment change, based on the person? How?\n\n5.\n\nAre there other consequences involved after the punishment has been given? If so, what are they?\n\n345\n\n\x0c\x0c9.1. Diversion\n\nDAVID CARTER\n\nThe bulk of this chapter deals with official actions from the courts on individuals in the community, while\nthey are under some sanction. However, there is also a large number of individuals that do not even make it\nthat far in the system, due to some form of diversion. Diversion is presented in this chapter, as it is an action\nthat would effectively keep a person in the community. Diversion is a process whereby an individual, at\nsome stage, is diverted from continuing on in the formal justice process. Diversion can come as early as initial\ncontact with a law enforcement officer. This discretion that the officer uses could be considered a diversion,\nas the officer is saying that this individual does not need to continue on the justice path. It could be a verbal\nwarning, a warning ticket, or just a decision by the officer to not start a formal ticket (citation).\n\n347\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nDifferent Diversion Points in the System\n\nDiversion can also be something more formal, for instance, from a judge prior to a judgment, in lieu of a\njudgment, or as a condition of a judgment. A formal diversion process can start. An example of this could be\nwhere a judge could sentence someone to a sanction. In lieu of that sanction, the judge offers a person the\nchance to complete a diversion program, effectively nullifying the judgment upon successful completion.\nIt is difficult to know the exact amount of diversions that occur in the United States, across the variety of\nplaces where diversion can occur. However, it is estimated that millions of diversions happen each year. This\ncould be saving the courts or corrections systems hundreds of millions of dollars.\n\n348\n\n\x0c9.2. Intermediate Sanctions\n\nDAVID CARTER\n\nCommunity corrections as a whole has changed dramatically over the last half-century. Due to a rapid and\noverwhelming increase of the offender population, largely based on policy changes, we have witnessed an\nimmense increase in the use of sanctions at the community level; this includes probation. It has only been\nwithin the most recent 10 years that we have seen a decrease in community corrections. Individuals on\nprobation hover around 3.7 million, with another million in some form of community-level control, for a\n1\ntotal of about 4.6 million under community supervision, probation, or parole. Because of the sheer volume\nof these intermediate sanctions, it is important to put it in the perspective of jails and prisons. Below is a\ngraphic to demonstrate how much we are talking about.\nU.S. Correctional Control\n\n1. Bureau of Justice Statistics. (2018). Probation and Parole in the United States, 2016. Available at: https://www.bjs.gov/content/pub/pdf/\nppus16_sum.pdf\n\n349\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nNational correctional control, 2018\n\nThis graphic does not include the volume of people in the community corrections outside of regular\nprobation, or parole (which is about another million), but it does shed light on just how much probation is\nused. Therefore, it important to understand that the vast majority of individuals under correctional control\naren\xe2\x80\x99t even in the prisons and jails in the United States, even though that alone is a hefty number. The\nmajority of persons under correctional control fall are in sanctions like Probation, Intensive Supervision\nProbation, Boot Camps/Shock Incarceration, Drug Courts, and Halfway Houses. Therefore, this section will\ndiscuss the history and effectiveness of some of the forms of intermediate sanctions we use in the United\nStates.\nAs we have discussed, in the late 1970s and early 1980s, there was a fundamental shift in corrections. This\nis largely due to the \xe2\x80\x9cNothing Works\xe2\x80\x9d dogma in the area of rehabilitation. Many reforms were made towards\nthe housing of offenders. Many liked this idea because they did not trust the government\xe2\x80\x99s attempts at\nrehabilitation. Others were pleased as well since more emphasis was placed on control. Rooted in deterrence\ntheory, and to lesser extent incapacitation, intermediate sanctions flourished and were seen as an instant\nsuccess. That is, because they promised to increase control of the growing offender population, maintain\nsecurity, and do all of this at a reduced cost, they were quickly welcomed across the nation. However, by\nreviewing each one, we can see the problems that promising too much may have created.\n\n350\n\n\x0cIntroduction to the American Criminal Justice System\n\nWhat Would You Do?\n\nAs stated before, there are three primary goals for corrections, to punish the offender, to protect society, and to\nrehabilitate the offender. Often the first two goals might be opposing to the last goal. Additionally, doing too much\nof the first one might have unfavorable on the second and third. Here is an example of how this might happen.\nLet\xe2\x80\x99s say there is a guy, who is married, has a couple of kids, a stable blue-collar job, a house /mortgage, and\nis living just a little bit better than a paycheck to paycheck. We can call him the average Joe Citizen. This might\neven sound familiar, and you may even know him. Joe likes to hang out with his friends after his men\xe2\x80\x99s softball\ngame, having a beer and catching up on life. For all intents and purposes, Joe is a decent guy. He does not have a\nsignificant criminal record. Perhaps one misdemeanor when he was a juvenile, and a couple of speeding tickets, like\ntens of millions of other adults.\nHowever, one time after softball, Joe is driving home and his wife is texting him to pick something up at the store.\nHe looks down at his phone at the exact wrong time that someone pulls out in front of him. An accident occurs. No\none is seriously injured, but the damage to both vehicles is enough to warrant a write up of the accident. This leads\nto police presence. At the scene, the officer smells alcohol on Joe. The officer is obligated to go through standard\nprocedures, which results in Joe being arrested. This is not asking you to debate this action, as it is a violation, and\nthe officer had every right to arrest Joe. The question is this \xe2\x80\x93 what should Joe\xe2\x80\x99s punishment be?\nThe reason to ask this is due to both the rule of law and the consequences of those laws. Joe should be punished,\nas he chose to drive after drinking alcohol. But, would Joe\xe2\x80\x99s incarceration lead to other events that may have lasting\neffects? Probably.\nThis brings up the question of at what point does the level of punishment last beyond its intended point? If Joe\nreceives a lengthy jail sentence, will he lose his job? Will he lose his family? Will this put him a greater risk of\nrecidivating in the future? What point has the immediate action caused punishment beyond what the law stipulates\nis punishment? These are all valid questions. There are other alternatives out there, that still cover the concepts of\npunishment, monitoring, sanctioning, and control. However, these alternatives can still allow individuals to stay in\nthe community, which this chapter will present with community corrections.\n\n351\n\n\x0c9.3. Probation\n\nDAVID CARTER\n\nProbation is arguably the oldest ,and certainly the largest, of the intermediate sanctions. Its roots stem\nfrom concepts of common law from England, like many of our other legal/correctional practices. In early\nAmerican courts, a person was able to be released on their own recognizance, if they promised to be\nresponsible citizens and pay back what they owed. In the early 1840s, John Agustus, a Boston bootmaker\nwas regularly attending court and began to supervise these individuals as a Surety. A Surety was a person\nwho would help these individuals in court, making sure they repaid these costs to the courts. We would\nconsider John Augustus as the Father of Probation, for this work in the courts in Boston in the 1840s and\n1850s. Augustus, pictured below, would take in many of these individuals, providing options like work and\nhousing, to help ensure these individuals would remain crime free and pay back society. He continued this\npractice for nearly two decades, effectively becoming the first probation officer. For a more lengthy historical\ndiscussion of probation, see the history of probation at https://probation.smcgov.org/history-probation.\n\n352\n\n\x0cIntroduction to the American Criminal Justice System\n\nJohn Augustus\n\nProbation is a form of a suspended sentence, in that the jail or prison sentence of the convicted offender\nis resuspended, for the privilege of serving conditions of supervision in the community. Conditions of\nprobation often include: report to a probation officer, submit random drug screens, do not consort with\nknown felons, pay court costs, restitution, and damages, attend AA or NA courses, as well as other\nconditions. Probation lengths vary greatly, as do the conditions of probation place on an individual. Almost\nall people on probation will have at least one condition of probation. Some have many conditions, depending\non the seriousness of the conviction, while others are just a blanket condition that is imposed on all in that\njurisdiction, or for that conviction type. Juvenile Probation Departments were within all States in the 1920s,\nand by the middle of the 1950s, all States had adult probation.\nProbation Officers\nProbation officers usually work directly for the state or federal government, but that can be directed\nthrough local or municipal agencies. Many Counties will have a community justice level structure where\n353\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nprobation offices operate. Within these offices, probation officers will be assigned cases (caseload), in term of\nthe probationers, they will manage. The volume of cases in a probation officer\xe2\x80\x99s caseload can vary from just a\nfew clients if they are high need/risk clients, to several hundred probationers. It depends on the jurisdiction,\nthe structure of the local PO office, and the abilities of the probation officers themselves.\nThe role of the probation officer is complex, and sometimes diametrically opposing. A PO\xe2\x80\x99s primary\nfunction is to enforce compliance of individuals on probation. This is done through check-ins, random drug\nscreenings, and enforcement of other conditions that are placed on the probationers. Additionally, the PO\nmay go out into the field to serve warrants, do home checks for compliance, even make arrests if need be.\nHowever, at the same time, a probation officer is trying to help individuals on probation succeed. This\nis done by trying to help individuals to get jobs, get schooling, enter into substance or alcohol programs,\nand generally support people on probation to be successful. This is why the job of the PO is complex, as\nthey are trying to be supportive, but also having to enforce compliance. Many equate this to kind of like\nbeing a parent. Recently, there has been a movement within probation to have probation officers act more\nlike coaches than just disciplinarians. Here is a talk about how POs can view themselves as coaches to enact\npositive change within individuals on probation:\nhttp://criminaljusticeofficehours.libsyn.com/dr-brian-lovins-probationcoaches?fbclid=IwAR2pHROGAPpm09-PFqVzFG10ItFhCi1huFItChe65Ew7-gXDB0OSacCliQs\nThe other primary function of a probation officer is to complete PSI reports on individuals going through\nthe court process. A PSI or Pre-Sentence Investigation report is a psycho-social workup on a person headed\nto trial. It includes basic background information on an individual, such as age, education, relationships,\nphysical and mental health, employment, military service, social history, and substance abuse history. It also\nhas a detailed account of the current offense, witness or victim impact statements of the event, and prior\noffenses (criminal records), which are tracked across numerous agencies. Finally, the PSI also has a section\nthat is devoted to a plan of supervision or recommendations, which are created by the PO. These usually list\nout the conditions of probation recommendations, if probation is to be granted. Judges use this information\nduring sentencing discussions and hearings, and will usually follow these recommendations often (around\n85% of the time). Thus, many of the conditions of probation are prescribed by the PO.\nIndividuals on Probation\nAs stated, there are several million people on probation, serving various lengths of probation, and under\nnumerous conditions or condition types. Additionally, the convictions which place individuals on probation\nvary, to include misdemeanors and felonies. Probationers serve their probation at the state level, and there is\neven federal probation. As depicted below, it is easy to see how much probation is used in the United States.\nUse of Probation in the U.S.\n\n354\n\n\x0cIntroduction to the American Criminal Justice System\n\nCorrectional Control by Type 1975-2016\n\nProbation is not a right, and it is not a suspended sentence. It is a privilege, but it most certainly comes\nwith conditions for the suspension of the incarceration. Due to how cheap probation is, relative to jail or\nprison, and the ability for lower-risk individuals to maintain connections within their community, millions\nof people will be on probation in the United States at any given time.\nOther important factors that help to decide if a person warrants probation is within the PSI and other\nassessments are done on the individual. If the person is basically, a prosocial person, has an education and a\njob, has a family, these would all be considered as ties to the community. These ties to the community could\nweaken or break if a person was incarcerated. Thus, providing a sanction while allowing the person to stay\nin the community is often the approach that is utilized within probation and other intermediate sanctions.\nProbation Success\nThere are mixed reviews about probation. Recently, the Bureau of Justice Statistics (2018 report, for 2016.\n1\nlisted the successful completion rate at about 56%. In years past, this number has been reported higher,\n2\nupwards of 65%, depending on the years 2008-2013. There are a host of reasons listed for unsuccessful\ncompletion, which include: incarcerated on a new sentence/charge, or placement for the current sentence/\n1. Kaeble, D. (2018). Probation and Parole in the United States, 2013. U.S. Department of Justice, Office of Justice Programs, Bureau of\nJustice Statistics, April 2018, NCJ 251148 https://www.bjs.gov/content/pub/pdf/ppus13.pdf\n2. Huberman, E. J., & Bonczar, T. P. (2014). Probation and parole in the United States, 2013. U.S. Department of Justice, Office of Justice\nPrograms, Bureau of Justice Statistics, October 2014, NCJ 248029 https://www.bjs.gov/content/pub/pdf/ppus13.pdf\n\n355\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\ncharge, absconding (fleeing jurisdiction), discharged to warrant or detainer, other unsatisfactory reason,\ndeath, or some other unknown or not reported reason. Unsuccessful completion can produce some different\nresponses but can include a concept called tourniquet sentencing. Tourniquet sentencing is where the\nrestrictions of a level of sanction are increased, due to non-compliance, in order to force compliance. If an\nindividual on probation is not adhering to the conditions of probation, a PO can recommend a probation\nrevocation hearing. This bench hearing can lead to an informal admonishment by a judge, an increase in\nthe sanctions or sanction lengths, an increased level of control (moving from regular probation to intensive\nsupervised probation), even up to placement in a secure facility (jail or prison), all depending on the\ninfraction of the condition of probation that has been violated. Many go from regular probation to ISP, in\nan effort to force compliance through increased monitoring.\nIntensive Supervised Probation\nIntensive Supervision Probation (ISP) began in the late 1950s, early 1960s, in California. Their basic\npremise was to allow caseworkers (POs) to have smaller caseloads and increase the level of treatment across\noffenders. As stated, many promised multiple success measures. However, if an individual who was revoked\nbecause of a technical violation due to an increase in control, they were not seen as a failure. Rather, they\nwere seen as a success because of the way the public was served by the recidivism. However, this went\ndirectly against the notion that ISPs could save money. Because of these problems, the earlier forms of\nISPs may have become less popular. In the 1980s, a newer model of the ISP was created in Georgia. More\nemphasis was placed on the control aspect rather than on treatment. Further, less emphasis was placed on the\nreduction of money saved.\nISP and regular probation are similar, except for the frequency of contacts with POs, the increases in\nsurveillance and monitoring, and usually the volume of conditions. Rather than meeting a PO once a\nmonth in regular probation, a person on ISP would likely be meeting with their PO weekly, or even more\nfrequently. Additionally, individuals on ISP normally are submitting drug screens weekly. The increased\nconditions of supervision more frequently include more substance abuse treatment, either in the form of AA,\nNA, or some other residential or outpatient substance abuse treatment programs. Thus, the core difference is\nabout the increased level of surveillance and control over the offender.\nISP Success\nWhile initial praise of the newer model for its increase on control was evidenced by its rapid spread\nthrough the States, some researchers questioned their effectiveness. In one of the largest studies of ISPs, in\n3\nconjunction with the RAND Corporation. They examined the effectiveness of ISPs in reducing recidivism\nand saving costs. In a random sample of 14 cities across 9 States, they evaluated the reductions of recidivism\nagainst a sample of regular probationers. Their findings suggested that there were higher amounts of\ntechnical violations, which were probably substance violations, but there were no significant differences\nbetween control-centered ISPs and regular probation, as far as new arrests. Moreover, when looking at\noutcomes over 3 years, they found that recidivism rates were slightly higher for these ISPs (39%), vs. regular\nprobation (33%). Also, there were no substantive cost savings. Other studies have produced similar findings\nas to the effects of non-treatment oriented ISPs. While these findings might be better than prison recidivism\nrates, there were no reductions in prison overcrowding, which was also one of the intents of ISP.\n\n3. Petersilia, J. R., & Deschenes, E. (2004). Evaluating intensive supervision probation/parole (ISP) for drug offenders. Santa Monica, CA:\nRAND Corporation. https://www.rand.org/pubs/reprints/RP168.html\n\n356\n\n\x0c9.4. Boot Camps/Shock Incarceration\n\nDAVID CARTER\n\nAnother form of intermediate sanction may be seen in the creation of boot camps, also known as shock\nincarceration facilities. Again developed in the 1980s in Georgia, boot camps were targeted to youths and\nadults and seen as a way to alter individuals through a \xe2\x80\x9cshock\xe2\x80\x9d effect. Essentially, boot camps are programs\ndesigned to change the recidivism rate through a physical change. That is, designed on a militaristic ideal,\nboot camps valued that a regimen of strict physical exercise would teach structure and discipline in youths.\nOnce again, because of a high level of face validity (this looks like it will work, so it must work), boot camps\nflourished in the 1980s and 1990s. Below is an example of one of the few remaining boot camps, Moriah,\nNY.\nBoot Camp Success\nWhile there some positive results, generally, boot camps fail to produce the desired reductions in\n1\nrecidivism. For prosocial individuals, structure and discipline can be advantageous. However, when\nindividuals of differing levels of antisocial attitudes, antisocial associates, antisocial temperament (personality),\nand antisocial (criminal history) are all mixed together, the reductions in recidivism generally do not appear.\nAs we have discussed in the section on rehabilitation, criminogenic needs are often not addressed within\nboot camps. Thus, boot camps fail to reduce recidivism for several reasons. First, since boot camps fail\nto address criminogenic needs, they tend not to be effective. Second, because of the lower admission\nrequirements of boot camps, individuals are generally \xe2\x80\x9clumped\xe2\x80\x9d together into a start date within a boot\ncamp. Therefore, high-risk offenders and low-risk offenders are placed together, building a cohesive group.\nThus, lower-risk offenders gain antisocial associates that are high-risk. Finally, when boot camps emphasize\nthe increase of physicality, rather than behavioral change, it generally does not reduce aggressive behavior\n(antisocial personality & recidivism). A recent meta-analysis (a study of studies of a topic) found this to be\n2\nthe case. For more information on the status of boot camps, please see https://www.crimesolutions.gov/\nPracticeDetails.aspx?ID=5 .\nPlatoon Formation in a Boot Camp\n\n1. Parent, D. G. (2018). Research for practice: Correctional Boot Camps: Lessons from a decade of research. U.S. Department of Justice,\nOffice of Justice Programs, National Institute of Justice (June 3rd), NCJ 197018 https://www.ncjrs.gov/pdffiles1/nij/197018.pdf\n2. Wilson, D. B., MacKenzie, D. L., & Mitchell, F. N. (2005). Effects of correctional boot camps on offending. Campbell Systematic\nReviews, 6, 1-42.\n\n357\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nMoriah\n\n358\n\n\x0c9.5. Drug Courts\n\nDAVID CARTER\n\nDrug Courts were also developed in the mid-1980s in Dade County Florida. They are unique in the sense\nthat \xe2\x80\x93 the courtroom works in a non-adversarial way for a more supportive program. Judges, prosecutors,\ncaseworkers, and program coordinators all work together in a drug court. As with other intermediate\nsanctions, the use of drug courts flourished in the United States rapidly, to the point that they are now in\nevery state. Currently, there are almost 3500 drug, treatment, or specialty courts operating in the United\nStates. This includes Veterans Courts, Mental Health Courts, DUI Courts, Hybrid Courts, and Juvenile Drug\nCourts. For a detailed account of these, see the map at the National Drug Court Database: https://ndcrc.org/\ndatabase/. For the purposes of assessing Drug Courts, only materials referencing Drug Courts only are\naddressed.\nDrug Court Success\nWhile the results on Drug Courts are mixed, as a whole, they are more favorable than boot camps. They\nare mixed, largely to how they are assessed. If only talking about the cost savings, versus jail or prison, they\nare seen as an effective community alternative. If looking at recidivism, it depends if the metric is looking\nsolely at drug charges, any arrests, or persistence models (length of time before arrest). As a whole, the\nrisk of being rearrested for a drug-crime for individuals from drug courts was lower than a comparison\ngroup. For a more detailed report, see Fluellen and Trone (2000). Other have demonstrated that graduates\n1\nof drug court program were half as likely to recidivate (10% vs. 20%). While more research is still required,\ndrug courts are not seen as ineffective control oriented ISPs or boot camps. For an in-depth review of the\noverall rating of Drug Courts, which includes over 30 studies of Drug Courts across the United States, see\nhttps://www.crimesolutions.gov/topicdetails.aspx?id=238.\n\n1. Fluellen, R., & Trone, J. (2000). Do drug courts save jail and prison beds? The Vera Institute. https://www.prisonpolicy.org/scans/vera/\ndrugcourts.pdf\n\n359\n\n\x0c9.6. Halfway Houses\n\nDAVID CARTER\n\nHalfway Houses have long been used to control/house offenders. Dating back to the early 1800s from\nEngland and Ireland, halfway houses began around 1820 in Massachusetts. Initially, they were designed to\nhelp an offender \xe2\x80\x9cget back on their feet,\xe2\x80\x9d and were generally funded in benevolent ways by non-profit\norganizations like the Salvation Army.\nCurrently, halfway houses are typically used as a stopping point for offenders coming out of prisons but\nhave also recently been used as more secure measures of monitoring probationers in lieu of going to prison.\nThey are even used as a test measure of parole. With the creation of the IHHA in 1964, halfway houses have\nbecome an integral part of every state, with mixed but more promising results than ISPs or boot camps. The\ncore design of a halfway house is meant to be a place where individuals can get back on their feet, half-way\nout of prison. However, as stated, their uses have evolved, becoming residential, or even partial residential\nplaces where individuals under correctional control can check-in, find reprieve or assistance, in order to\nrejoin society as a normal functioning member.\nThere are some issues regarding the examination of halfway houses. The IHHA break down halfway\nhouses into four groups along two dimensions. As discussed, halfway houses were initially funded by\nprivate non-profit organizations. However, many halfway houses today (in part, due to the IHHA) are both\nprivately and federally (and State) funded. Additionally, halfway Houses are also divided into supportive\nand interventive groups. That is, halfway houses that serve only a minimal function (a place to stay while\nreintegrating back into society) are generally labeled supportive. Interventive halfway houses typically have\nmultiple treatment modalities and may have up to 500 beds. However, most halfway houses fall somewhere\nin the middle of these two continuums.\nHalfway House Success\nBecause of the variations of halfway houses, researchers find them difficult to assess. For instance, it may\nbe difficult to generalize because of the variability. Second, gathering a representative comparison may also\nprove difficult. That is, halfway houses may have increased recidivism, reduced recidivism, or had no effect.\nAlthough clouded, one could argue that halfway houses are at least useful in the sense that these offenders,\nwho received more treatment faired no worse than individuals who needed less treatment.\nAs a whole, HWH studies show mixed results. That is, some studies yield reductions in recidivism, while\nsome show no difference, and others show almost equal increases. When disaggregated by type, programs\nusing the principles of effective interventions, these halfway houses generally have better reductions in\n360\n\n\x0cIntroduction to the American Criminal Justice System\n\nrecidivism. One difficulty with understanding the effectiveness of halfway houses may be within their\nfunding. As stated, there are numerous revenue streams for the creation and management of a halfway\nhouse, to include for-profit agencies. This design may override the design of providing the level of care\ncomprehensive enough to match the level of need by the individuals in the halfway houses. As with the other\nintermediate sanctions, it is important to note that using the principles of effective intervention are among\nthe driving causes of their success.\n\n361\n\n\x0c9.8. House Arrest\n\nDAVID CARTER\n\nHouse arrest is where an individual is remanded to stay home for confinement, in order to serve a\npunishment, in lieu of jail or prison. There are built-in provisions where individuals are permitted to attend\nplaces of worship, places of employment, and places for food. Otherwise, individuals are expected to be\nhome. It is difficult to assess how many are on house arrest at any given time, as these are often short stents\ngiven during early stages of probation.\nHouse Arrest Success\nAs mentioned above, house arrest is often joined with electronic monitoring(EM). Many of the studies\nincorporate both sanctions at the same time. Given the difficulty in separating EM from house arrest\nin studies, less is known about the independent effects of house arrest. However, it is certainly a cost\nsaving mechanism, over other forms of sanctions. There is a relatively no-cost to low-cost for house arrest,\nnot coupled with electronic monitoring, especially when comparing house arrest to intensive supervised\nprobation. In all, house arrest would probably best serve individuals with low criminogenic risks and needs.\nHowever, it is also argued that those individuals need little sanctions already, in order to be successful. Thus,\nthe utility of house arrest is debatable.\n\n362\n\n\x0c9.9. Community Residential Facilities\n\nDAVID CARTER\n\nMoving up in the continuum of correctional sanctions, CCCs would be considered the last stop before\na lengthy jail or prison sentence, as they can have the highest level of containment. These are often\ncalled CCCs (Community Correctional Centers), TCs (Transition Centers), or CBCFs (Community-Based\nCorrectional Facilities), and other names. From this point, these variations will all be considered as CBCFs,\nas there is a blending of the names to the variety of missions that are within these facilities. However, even\ntwo community residential facilities with the same name can be different, as the functions of CBCFs can\nbe multifaceted. CBCFs can function similarly to a halfway house, it can provide a stop for individuals\njust checking in for the day before they go off to their jobs, they can be used for outpatient services, even\nresidential services where there is a need for public control/safety.\nThe overall benefit of CBCFs is their ability to have an increased focus in rehabilitation, at a lower\ncost than a State institution. This is where their greatest effect can materialize if there is adherence to the\nprinciples of effective intervention. As we touched on in the first section on punishment, the principles\nof effective intervention have been demonstrated to have the best impacts on reductions in recidivism.\nCollectively, we call these the PEI. These include concepts like proper identification of criminogenic risks\nand needs of offenders, using evidence-based programs that address these items, matching and sorting clients\nappropriately, and responsivity in terms of programs and services. For a detailed account of how the PEI\nintegrates into community corrections, see a very detailed report by the National Institute of Corrections,\nunder the U.S. Department of Justice: https://s3.amazonaws.com/static.nicic.gov/Library/019342.pdf .\nCBCF Success\nWhat should come as no surprise, as is the theme with correctional practices in the community, CBCFs\nhave mixed results. This is largely dependent on the composition of the facility, the individuals within the\nfacility, and the programs offered. When individuals are lumped together, in non-directive programs that do\nnot adhere to the PEI, the outcomes of CBCFs are not favorable over the jail, prison, or probation. However,\nwhen CBCFs separate offenders based on risk, putting more programming with the higher risk clients, and\nlittle programming on the low-level clients, the outcomes are substantially better. For example, in a study\non CBCFs, Lowenkamp and Latessa (2004) found that when the offenders were separated by their risk,\n1\ntargeting higher-risk individuals, much larger reductions in recidivism can be achieved.\n1. Lowenkamp, C.T., & Latessa, E.J. (2004). Residential community corrections and the risk principle: Lessons learned in Ohio. Ohio\nDepartment of Rehabilitation and Correction, Research Compendium, 2: 245-254.\n\n363\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nUnfortunately, many CBCFs do not adhere to these principles, and thus, their effectiveness is not as\npositive. As stated, this is the case for many of these agencies within community corrections. When\nprograms do not follow the principles of effective intervention, they do not fare as well. For a recent\nreport on the status of Community-Based Correctional Facilities, see a question and answer session with\nthe PEW Foundation and Dr. Joan Petersillia: https://www.pewtrusts.org/-/media/legacy/uploadedfiles/\nwwwpewtrustsorg/reports/sentencing_and_corrections/qacommunitycorrectionspdf.pdf\n\n364\n\n\x0c9.10. Restorative Justice\n\nDAVID CARTER\n\nThe process of restorative justice programs is often linked with community justice organizations and is\nnormally carried out within the community. Therefore, RJ is discussed here in the community corrections\nsection. Restorative justice is a community based and trauma-informed practice used to build relationships,\nstrengthen communities, encourage accountability, repair harm, and restore relationships when\nwrongdoings occur. As an intervention following wrongdoing, restorative justice works for the people\nwho have caused harm, and the victim(s), and community members impacted. Working with a restorative\njustice facilitator, participants identify harms, needs, and obligations, then make a plan to repair the harm\nand put things as right as possible. This process, restorative justice conferencing, can also be called victimoffender dialogues. It is within this process that multiple items can occur. First, the victim can be heard\nwithin the scope of both the community and within the scope of the offense discussed. This provides the\nvictim(s) an opportunity to express the impact on them, but also to understand what was happening from the\nperspective of the transgressor. At the same time, it allows the person committing the action to potentially\ntake responsibility for the acts committed, directly to the victim(s) and to the community as a whole. This\nrestorative process provides a level of healing that is often unique to the RJC. Pictured, the different processes\nthat can occur during the different types of dialogues within RJC.\nRestorative Justice Processes\n\n365\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nRestorative Justice\n\nRestorative Justice Success\nFor over a quarter century, restorative justice has been demonstrated to show positive outcomes in\naccountability of harm, and satisfaction in the restorative justice process for both offenders and victims. This\nis true for adult offenders, as well as juveniles, who go through the restorative justice process. Recently, there\nhave been questions whether there is a cognitive change that occurs in the thought process of the individuals\ncompleting a restorative justice program. There is a growing body of research that demonstrates that change\nin cognitive distortions that may occur through successful completion of restorative justice conferencing\n(RJC). This will be an area of increasing interest for practitioners, as restorative justice continues to be\nincluded in the toolkit of actions within community justice and community corrections.\n\n366\n\n\x0c9.11. Parole\n\nDAVID CARTER\n\nWhile the process to get onto parole is unique to all of the other community sanctions we have discussed\nso far in this section, individuals on parole are in the community. Thus, parole is often placed within the\nconcepts of community corrections. Parole is the release (under conditions) of an individual after they have\nserved a portion of their sentence. It is also accompanied by the threat of re-incarceration if warranted. As\nwith most concepts in our legal system, their roots of parole can be traced back to concepts from England and\nEurope. However, parole today has greatly evolved based on American values and concepts. Parole in the\nUnited States began as a concept at the first American Prison Association meeting in 1870. There was much\nsupport for the ideals of reform in corrections in America at the time. Advocates for reform helped to create\nthe concept of parole and how it would look in the U.S., and plans to develop parole went from there. Parole\nauthorities began establishing within the States, and by the mid-1940s, all States had a parole authority.\nParole Boards and State parole authorities have fluctuated over the years, but the concept is still practiced, in\nvarying degrees today. It is different than probation, which often operates under the judicial branch. Parole\ntypically operates under the executive branch and is aligned with the departments of corrections, as parole\nis a direct extension of prison terms and release. Many states operate a post-prison supervision addendum to\ntheir sentencing matrix for the punishment of individuals.\nOregon Sentencing Guidelines\n\n367\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nOregon Sentencing Guidelines Grid\n\nAs you can see from the graph, the PPS section in gray represents the recommended times for parole\n(post-prison supervision). Today, there are three basic types of parole in the United States, discretionary,\nmandatory, and expiatory.\nDiscretionary parole is when an individual is eligible for parole or goes before a parole board prior to their\nmandatory parole eligibility date. It is at the discretion of the parole board to grant parole (with conditions)\nfor these individuals. These prisoners are generally well-behaving prisoners that have demonstrated they can\nfunction within society (have completed all required programming). Discretionary parole had seen a rapid\nincrease in the 1980s but took a marked decrease starting in the early 1990s. In more recent years, it is\n1\ncontinuing to return as a viable release mechanism for over 100,000 inmates a year.\nTrends in State Parole, 1990-2000. Bureau of Justice Statistics Special Report. ODJ.\nMandatory parole occurs when a prisoner hits a particular point in time in their sentence. When an inmate\nis sent to prison, two clocks begin. The first clock is forward counting and continues until their last day. The\nsecond clock starts at the end of their sentence and starts to work backward proportional to the \xe2\x80\x9cgood days\xe2\x80\x9d\nan inmate has. Good days are days that an offender is free from incidents, write-ups, tickets, or other ways to\ndescribe rule infractions. For instance, for every week that an offender is a good prisoner, they might get two\ndays taken off of the end of their sentence. When these two times converge, that would be a point in which\nmandatory parole could kick in for them. This must also be conditioned by truth in sentencing legislation,\nor what is considered an 85% rule. Many states have laws in place that stipulates that an inmate is not eligible\nfor mandatory parole until they hit 85% of their original sentence. Thus, even though the date for the good\n\n1. Hughes, W., & Beck (2001).\n\n368\n\n\x0cIntroduction to the American Criminal Justice System\n\ndays would be before the 85% of a sentence is served, they would only be eligible for mandatory parole once\nthey had achieved 85% of their sentence. Recently, States have begun to soften these 85% rules, as another\nvalve to reduce crowding issues. The Hughes et al. (2001) article also provides their proportions, indicating\n2\na direct inverse relationship to discretionary parole during the 1990s . As discretionary parole went down,\nmandatory parole went up. This is logical though, as once they had passed a date for discretionary parole,\nthe next date would be an inmate\xe2\x80\x99s mandatory parole date. As you can see from the image below, these\nproportions of releases switched in the 1990s.\nParole Releases\n\nParole Releases\n\nPerhaps most troubling is the Expiatory Release. We see a slow increase of expiatory release in the chart,\nand this has continued to climb in the 2000s. Expiatory release means that a person has served their entire\nsentence length (and sometimes more). Based on the need to release individuals to accommodate incoming\nprisoners, this usually means that an inmate has misbehaved enough to nullify their \xe2\x80\x9cgood days.\xe2\x80\x9d This is\nunfortunate, because of the three types of release, it could be argued that these are the inmates that need the\nmost post-prison supervision. And yet, these are the inmates that are typically receiving the smallest amounts\nof parole.\n2. Hughes, T., Wilson, D., & Beck, A. (2001). Trends in State parole, 1990-2000. Washington, DC: Bureau of Justice Statistics, Special\nReport, NCJ 184735 https://www.bjs.gov/content/pub/pdf/tsp00.pdf .\n\n369\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nParole Success\nIt should again come as no surprise as to the effectiveness of parole, considering how many of the other\ncommunity-based sanctions are operating. Successful parole completion rates hover around 50%, given a\nparticular year. In the Hughes et al. (2001) article just mentioned, successful completion was roughly 42%\nin 1999. The same issues for failure that are found in probation completion are found in parole completion,\nto include: revocation failures, new charges, absconding, and other infractions. This lower than expected\nsuccess rate has prompted many critics to argue parole. It is suggested that we are being too lenient on\nsome while keeping lower-level inmates in prison too long. It is also argued that we are releasing dangerous\nindividuals out into the community. Whatever the criticisms are, it is certain that we are bound to use parole\nas a function of release, even if it is only on paper. For example, California has a concept called non-revocable\nparole. The basic premise of this is: as long as you do not violate your terms of parole, your parole will be\nsolely on paper, with no parole office check-ins. Additionally, no one will come out to your dwelling to\nmonitor you. Effectively, this version of parole is not enforceable, hence why it is considered as parole on\npaper only. But, the questions around parole still remain. What are we to do with the hundreds of thousands\nof offenders we let out of prison each year? Do they need more assistance than a bus ticket back to their\ncounty of residence? How should we be doing parole in the United States? A more modern term for parole is\ncalled re-entry. The next section covers current issues within corrections, to include what we do for inmates\nwho are re-entering society.\n\n370\n\n\x0c9.12. Current Issues in Corrections\n\nDAVID CARTER\n\nLearning Objectives\n\nIn this final section on punishment, we review some of the contemporary special issues that are occurring in our\nAmerican jails and prisons. Our decisions to incarcerate on a large scale as a solution to many issues does have\nsignificant impacts. These impacts not only affect the individuals in the justice system, but also community members\nas a whole. Some of these issues include overcrowding, gangs, aging prisoners, and substance abuse. This section\nwill provide a report on some of the more pervasive issues facing corrections today. By the end of this section,\nstudents should be able to:\n\xe2\x80\xa2\n\nUnderstand what are some current issues within the world of corrections\n\n\xe2\x80\xa2\n\nRecognize the different concepts of how we view these issues\n\n\xe2\x80\xa2\n\nUnderstand how punishment has increased and what are the outcomes of large scale incarceration\n\nCritical Thinking Questions\n\n1.\n\nWhat are some of the reasons we have so many people in jails and prisons?\n\n2.\n\nWhat impacts these levels of people under corrections?\n\n3.\n\nCan we solve these issues?\n\n4.\n\nWhat has been our approach to this point? Has it worked?\n\n371\n\n\x0c9.13. Current Issues in Corrections: Mass Incarceration\n\nDAVID CARTER\n\nThe section on punishment started with a discussion about feeling safe and secure in our homes. Feeling\nsafe and secure in person and home is arguably one of the most discussed feelings in our nation today. Our\nfear of crime influences how we think and act day to day. This has caused great fluctuation in the United\nStates, in regards to how we punish people who are convicted of violating the law. In part, punishment\ncomes from the will of the people, which is then carried out by the legislative process, and converted into\nsentencing practices. However, has our desire to feel safe and secure been taken too far by policy? And, have\nthese policies created even bigger problems for us as citizens? This final section on corrections attempts to\nanswer how we as America are doing, in order to solve our crisis in corrections.\nTo give an idea about America\xe2\x80\x99s use of prisons, here is a comparison of the United States to other countries\naround the world. As one can see, America uses punishment fairly well. In fact, one could argue that we are\nthe best at it.\nInternational Imprisonment Rates\n\n372\n\n\x0cIntroduction to the American Criminal Justice System\n\nThe United States wasn\xe2\x80\x99t always this punitive. As we have discussed, the context of eras that we have moved\nthrough, our underlying philosophy of punishment constantly evolves, even if it is rather slow at times.\nUnfortunately, in the 1970s, there was a confluence of events that kicked us off on a path of incarcerating\nmany types of individuals, more so than we had done in the past. This path of imprisonment or mass\nincarceration has had lasting effects. Below, you can see when the expansion of the correctional system\nbegan.\nMass Increase in Incarceration\n\n373\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nMass Increase in Incarceration\n\nThe United States had just gone through a large scale amount of civil unrest, which leads to a civil rights\nmovement of many Americans. As a country, we were not happy with how subpopulations were being\ntreated, and it was during this that many positive changes in the country were being adapted into law. This\nalso corresponded with a massive influx of men that were returning from the Vietnam war. The disapproval\nof the war, increased our growing distrust of the government to provide programs that could help individuals\nwithin the justice system. Many State-funded operations were seen as intrusive on the public, to include\nmental health facilities. There was also a large scale importation of drugs occurring in America. All of these\nitems and more shifted our ideology rather abruptly in the United States, and we turned toward a more\npunitive approach to people in society that were getting into trouble. Collectively, we would consider this\nthe \xe2\x80\x9cget tough era\xe2\x80\x9d on crime. This included the war on drugs (gang involvement), tougher sentencing\nlegislation across the country, transinstitutionalization or transcarceration (the removal of many individuals\nfrom state mental health hospitals), and others. Collectively, these all had a large-scale increase in the prison\npopulation.\nFull Jails?\n\nIt is 3:00 AM on a Sunday morning and Terry is getting force-released from jail because the jail is full. Force\nReleases occur when a facility is at its maximum capacity and a more serious offender is coming in. The decision has\nto be made in order to protect the community the facility is supposed to protect, but still, maintain the constitutional\n\n374\n\n\x0cIntroduction to the American Criminal Justice System\n\nrights of the individuals it is required to secure. Like many others in the community, Terry made some poor\ndecisions, was arrested for a lower level of crime and has started the process of going through the justice system.\nHowever, for Terry, and unfortunately many others, now Terry is being pushed back out onto the street, prior to\nreceiving some basic services that may help him change his behaviors. This is not his fault, it is only due to the fact\nthat a more dangerous offender is coming into the jail, and a decision had to be made.\nTo make matters more complicated, Terry is a dually diagnosed individual. This means that he has both a\nsubstance abuse problem and a low-level mental health issue. Terry has been managing his mental health issue with\nmedications that he is able to afford because of his job at the local Wal-Mart. Now Terry will probably lose his job\nbecause he hasn\xe2\x80\x99t shown up for two shifts, due to him being in jail. While not excusing any of Terry\xe2\x80\x99s actions that\ngot him in jail, Terry is now out on the street, without his medication. He is nervous that he is not sure what he is\ngoing to do.\nThis story is more common than you think. It happens to tens of thousands of individuals a year. What\nshould the community do?\n\n375\n\n\x0c9.14. Current Issues in Corrections: War on Drugs and Gangs\n\nDAVID CARTER\n\nThe war on drugs, initiated by President Nixon in 1971, was framed as an all-out war to eradicate drugs in\nthe United States. The massive expenditures on the curtailment of the drug epidemic also shifted our views\non drug use. We became much more punitive towards drugs, treating it as more of a criminal justice issue,\nrather than as a substance dependence issue. Good or bad, drug use was demonized in the public and media,\nwhich aided in the development of much tougher sanctions on drug use in America. The Drug Enforcement\nAgency was created in 1973, to provide another arm of the government to tackle a specific issue, drugs.\nBy the 1980s, lengthy sentences for drug possession were also in place. One to five-year sentences for\npossession were increased to upwards of 25 years. There was also an increased focus on gangs, which were\nheld responsible for the majority of the drug trade in the United States.\nGang activity in the United States was prevalent long before the enactment of the war on drugs. However,\nonce the linkages between our fear of crime, and the drug trade by gangs became more pronounced due to\nthe war on drugs, the conflict escalated. While there are hundreds of different gangs in many neighborhoods\nand communities in the United States today, gangs in prison have converged into four main gangs, or\nwhat corrections call security threat groups. These four basic gangs include the Whites, the Blacks, the\nSoutherners (Surenos, or EME), and the Northerners (Nortenos). Not only are these STGs considered violent\ninside and outside of prison, but they are also actively involved in the continuing drug trade in the United\nStates today, even behind bars. In fact, many of the leaders of all of the gangs on the streets are held in one\nprison in California, Pelican Bay State Prison.\nWithin the prisons in the United States, gangs actively recruit members, communicate with gangs on the\nstreets, run the drug trade, and are also at war with each other over the power within the institutions, from\ntheir perspective. There have been numerous documentaries on gangs in the U.S., and even mainstream\nfilms about gangs and gang life, both inside and out. A few notable examples of films to watch on this subject\ninclude Felon (2008), Shot Caller (2017), and American Me (1992).\nTranscarceration\nAt the same time, the proliferation of gangs was occurring in prisons in the United States, there were\nanother sizeable increase of prisoner type, mentally ill inmates. This is due to the transinstitutionalization\nthat occurred for thousands during the late 1970s, 1980s. Transinstitutionalization, or transcarceration is a\nprocess that occurred for many with mental health issues when State-run mental health facilities began to\nclose their doors. Having few choices of where to go, many became homeless or destitute. Ultimately, these\n376\n\n\x0cIntroduction to the American Criminal Justice System\n\nindividuals wound up in America\xe2\x80\x99s jails and prisons. This is also compounded by how we have shifted our\nviews on the mentally ill within the courts and justice system. While insanity is a defense that is used in\ncourt, it is rare (roughly 1% of cases), and even more rarely does it conclude in success. This shift occurred\nwithin our understanding of guilt surrounding mental illness. In the past, an individual would be held not\nguilty by reason of insanity. However, this shifted to guilty, but legally insane. The guilt would be grounds\nto still incarcerated individuals. Changes in policy like this also contributed to the increase in offenders in\nthe 1980s.\nGet Tough Policies\nAnother reason for the large scale increases can be found in our changes to policies surrounding sentences\nand sentence lengths. Get tough policies flourished in the latter half of the 1980s and into the 1990s.\nThis included truth in sentencing legislation three-strikes policies, and drug crime minimums. Truth in\nsentencing, also known as the 85% rule, is where mandatory minimums of sentences would be forced to\nbe served by incarcerated individuals. Thus if an individual was sentenced to prison, a mandatory minimum\nof 85% of the sentence would have to be served before the individual was eligible for release (parole). This\nadded to the average length of sentences served in American prisons, which meant that individuals were not\nbeing released as early as in prior years. Thus, as more individuals were coming in due to increases in other\nlegislation, there were already more people in the prisons.\nThree strikes policies were enacted in many States. In 1993, Washington overwhelmingly passed (75%\n1\nvoted yes) to approve initiative 593 This policy increased sentence lengths for 40 felonies, which included\nlife imprisonment. Perhaps the largest 3 strikes policy was in 1994, in California, with Proposition 184,\ncommonly called the Three Strikes and You\xe2\x80\x99re Out policy. It mandated a minimum of 25 years of prison\nfor individuals committing 3 felonies. What made this policy more pervasive than others was the way in\nwhich it could be applied. If a person had two previous strikes for violent, or serious felonies (not necessarily\nviolent), any new felony was life imprisonment, with a minimum of 25 years. For a more detailed view of\nthis policy, see https://lao.ca.gov/2005/3_strikes/3_strikes_102005.htm\nDrug laws were also changing at this time. The Controlled Substances Import and Export Act (1970),\nstarted the increases for drugs in the U.S. under federally mandated minimums found within the federal code\n21 U.S.C. \xc2\xa7 841. For a detailed reporting of these minimums, see https://www.ussc.gov/sites/default/files/\npdf/research-and-publications/research-publications/2017/20171025_Drug-Mand-Min.pdf\nOne of the most debated issues within the drug sentencing laws was the differential between cocaine (in\npowder form) and crack ( also form of cocaine, diluted and in a hardened paste form). During the increases\nin sentencing, there was a disparity in the lengths of sentences for comparable weights of these two drugs.\nThere has been much debate whether this targeted poorer individuals more harshly, as crack was seen as a\npoor man\xe2\x80\x99s cocaine. However, with additional mandatory minimum increases in the 1980s, differences in\nsentence lengths began to widen. In a detailed report, Barbara Meierhoefer (1992) detailed how the average\nsentence lengths for African Americans (for similar weights of crack v. cocaine for Whites) was roughly 50%\n2\nhigher, supporting this assertion that drug sentences were not equal.\nWith over a million arrests per year for drugs, it does add to the prison system as a whole. While the\nproportion of drug offenders in State prisons hovers around 20-25%, it is much larger at the federal level. As\nseen below, it makes up over half of the federal prisons. In all, the drug seriousness went up (how drugs are\n1. Wright, P. (1995). Three strikes racks \xe2\x80\x98em up. Journal of Prisoners on Prisons, 6(2), 3-6. https://www.ncjrs.gov/App/Publications/\nabstract.aspx?ID=162918\n2. Meierhoefer, B. (1992). The general effect of mandatory minimum prison terms: A longitudinal study of federal sentences imposed.\nFederal Judicial Center. https://www.fjc.gov/sites/default/files/2012/GenEffMM.pdf\n\n377\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nscheduled within federal guidelines), and sentence lengths for drugs went up; certain drugs more than others\nalso went up.\nFederal Drug Inmates\n\nFederal Drug Inmates\n\n378\n\n\x0c9.15. Current Issues in Corrections: Aging and Overcrowding\n\nDAVID CARTER\n\nOne of the side effects of lengthier sentences is that: the individuals in prison get older, in prison. Thus, the\namounts of individuals in prisons over 55 years old has dramatically increased. As McKillop and Boucher\n(2018) relate in the graphic below, based on BJS data, there has been a 280% increase in prisoners, age 55\n1\nand older.\nAging Prisoners\n\n1. McKillop, M., & Boucher, A. (2018). Aging prison populations drive up costs. Older individuals have more chronic illnesses and other\nailments that necessitate greater spending. Available at: https://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/agingprison-populations-drive-up-costs\n\n379\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nAging Prisoners\n\nAnd as the title of their article depicts, there is a growing cost within this subpopulation of inmates. McKillop\nand Boucher (2018) relay that the cost of this group of inmates can be upwards of three times the cost of the\n2\nnormal inmate (30k to 100k per inmate).\nBeyond just the cost of these inmates, a more philosophical question has risen, in regards to how to treat\nprisoners as they enter their last phase in life. Some have articulated for compassionate releases for individuals\nthat are entering hospice care or in need of assisted living conditions. Other articulate that this is unfair to put\nthe burden on the inmate, as they have been incarcerated for long periods of time and have few self-support\noptions available. In a powerful documentary on this matter, Edgar Barens details these issues. Information\nabout this film, The Prison Terminal (2013), can be seen here: https://www.prisonterminal.com/.\nOvercrowding\nThese issues and others have all contributed to the rising correctional population in the United States. It\nis estimated that we have over 8 million people in correctional control, and that number does not seem to\nbe subsiding. Yes, there are reductions in certain areas, such as a decline in the prison population in the last\n\n2. McKillop, M., & Boucher, A. (2018). Aging prison populations drive up costs. Older individuals have more chronic illnesses and other\nailments that necessitate greater spending. Available at: https://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/agingprison-populations-drive-up-costs\n\n380\n\n\x0cIntroduction to the American Criminal Justice System\n\nfew years, but this does not mean that they are not still under control. In one of the more detailed examples\nof just where individuals are at in corrections, Alexi Jones (2018) of the Prison Policy Initiative provides a\ngraphic, based on State and Federal data to demonstrate this impact.\nRates of Correctional Control\n\n381\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nAging Prisoner Graphic\n\nNot only does this graphic demonstrate the overall volume of correctional control, but it also highlights\n382\n\n\x0cIntroduction to the American Criminal Justice System\n3\n\nhow states are handling their populations differentially. The second half of Jones\xe2\x80\x99 (2018) report details\nthe volume of individuals with each state. Please take a moment to review the last portion of this report\nto see how many are under correctional control, found here: https://www.prisonpolicy.org/reports/\ncorrectionalcontrol2018.html#statedata\nPrison overcrowding is problematic for multiple reasons. First, when there are too many individuals\n(especially antisocial ones) within a facility, there are more assaults and injuries that occur within the\ninstitution. Moreover, there is a safety concern for not only the inmate on inmate violence but also inmate\non staff crimes. Second, the more people you have in a facility, the faster that facility wears down. Operating\na jail or prison at maximum (or over maximum) capacity causes more items to break or wear out within\nthe facility at a fast rate. Finally, when individuals are unable to access adequate health care because of the\nexcessively long waits, due to overcrowding, it is a violation of their constitutional rights.\nAs prisoners, we (the public and the State) have a responsibility to house and properly care for the prisoners\noverseen. This is not to say that offenders are getting premier care, but that they are at least receiving a\nmodicum of care. When this low level of care is deliberately denied due to excessive volumes of individuals,\nit is a violation of a person\xe2\x80\x99s 8th amendment rights against cruel and unusual punishment. As was found in\n4\nthe case of Estelle v. Gamble, (1976). This similar issue was presented in California over ten years ago. A\nthree-judge panel ruled with the prisoners, citing the need for California to reduce its prison population to\na level where the individuals could effectively be managed, and cared for [emphasis on the latter]. Dealing\nwith overcrowding is a constant issue for most prisons and jails. Some have resolved to release more out into\nthe community at a higher volume, on parole or just release. However, this too has its own set of problems,\nas reentry is now becoming the current issue within corrections.\n\n3. Jones, A. (2018). Correctional control 2018: Incarceration and supervision by state Prison Policy Initiative. Available at:\nhttps://www.prisonpolicy.org/reports/correctionalcontrol2018.html#statedata .\n4. Estelle v. Gamble, 429 U.S. 97 (1976).\n\n383\n\n\x0c9.16. Current Issues in Corrections: Reentry and the Future of\nCorrections\n\nDAVID CARTER\n\nReentry and the Revolving Door\nParole, as discussed in the previous chapter, has had mixed reviews. Overall, the effectiveness of parole\nhovers around 50% success. It is estimated somewhere between 600,000 and 800,000 parolees are on parole\nin any given year over the last 3 decades. Additionally, several hundred thousand are exiting parole in each\nof these years. This brings up questions about what happens to these individuals. The reality is that most\nof them will be rearrested. In one of the more comprehensive studies on recidivism, Alper, Durose, and\nMarkman (2018) discussed the recidivism rate of individuals tracked over a 9-year follow up period. What\nthey found was that rearrest occurred for about 70% in the first three years, and by year 9, 83% of the\nindividuals released has been rearrested. Many of these individuals return to prison, hence the concept of\nthe \xe2\x80\x9crevolving door\xe2\x80\x9d of justice. In order for reentry programs to be more successful, individuals returning to\nsociety need assistance to get back on their feet and stay on their feet. This includes items such as education\nand training, employment assistance to get a job, legal services, education on public benefits, and housing\nassistance. Interestingly, it appears as though many of the items here are the same items that many of them\n1\nhad deficits in that landed them in trouble in their lives before That is \xe2\x80\x93 many of these items are those same\npredictors of offending that were discussed in the first section (known as the know predictors of recidivism).\nUnfortunately, it appears as though they are not getting these while they are incarcerated. Again, creating a\ncycle of release and catch again.\nSituations and circumstances that compound these problems for many ex-offenders is the difficulty faced\nwith trying to get a job once released. Over the last 20 years, there was an overwhelming push to include\nitems on employment applications that asked questions about prior incarceration history. Not only were\nthere questions about prior incarcerations and prior convictions, but many employers also have questions\nabout ever being arrested. If an individual told the truth (which is what they should do), the reality is\nthat their applications would be discarded, or overlooked for others without an arrest/conviction. If an\nex-offender lied about it, and it was discovered during a background investigation, the application was\n\n1. Alper, M., Durose, M. R., & Markman, J. (2018). Update on prisoner recidivism: A 9-year follow-up period (2005-2014). U.S.\nDepartment of Justice Office of Justice Programs Bureau of Justice Statistics. https://www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf\n\n384\n\n\x0cIntroduction to the American Criminal Justice System\n\ncertainly discarded. In either scenario, it became increasingly difficult for an individual to obtain legitimate\nemployment.\nThis is also true on apartment rental applications. Again, when individuals would put down prior arrests,\ntheir applications would often be placed at the bottom of the pile. If someone were to lie about it, and it\nwas discovered, it could be used as grounds for not selecting an individual for tenancy. Once again, society\nwas making it difficult for ex-offenders to even function as a normal citizen, based on a sentence that they\nhad served, which is when the punishment should have ended. Collectively, these items are included in the\nconcept of collateral consequences. That is \xe2\x80\x93 items that are barriers to successful integration that are remnants\nof prior punishment.\nFuture Outlook of Corrections\nBased on the major issues presented, overcrowding and reentry, the problems faced in corrections are not\nlikely to go away anytime soon. We have seen an increase in the overall correctional population for years\nnow. While there are some reductions in prisons, this is not likely to stay this way, unless changes are made.\nAdditionally, while there is space for growth in the area of community corrections, the functions of CC need\nto be supported and done based on evidence-based practices if it is to be more successful. It too has limits, and\nwithout the support, it is more likely to be another failure. If it is not supported, then the prison population is\nlikely to increase even more, due to the eventual placement of too many failures of individuals in community\ncorrections. Most offenders are in need of some basic assistance to get themselves back to a functioning level\nin society, including addressing their education, their substance abuse, their employment, and general and\nmental health. Our correctional system needs to change its habit of treating substance abuse and mental\nhealth issues as legal and punish-oriented issues if we are going to curb the tide of the growing problems\nwe face in corrections. If not, our 8 million individuals in all forms of correctional control can quickly turn\n10 million. According to a 2016 report from the U.S. Department of Education (p. 13), \xe2\x80\x9cfrom 1979\xe2\x80\x9380 to\n2012\xe2\x80\x9313, state and local government expenditures on corrections rose by 324 percent (from $17billion to\n2\n$71 billion).\xe2\x80\x9d Keep in mind that is taxpayer money. We are funding this issue. It is time to address these\nproblems from a more holistic approach if we are going to see a change in our current correctional practices.\n\n2. https://www2.ed.gov/rschstat/eval/other/expenditures-corrections-education/brief.pdf\n\n385\n\n\x0c\x0c10: Juvenile Justice\n\nLearning Objectives\n\nIn this section, you will be introduced to juvenile justice. This section is designed to be a broad overview of the\njuvenile court system, to examine the pros and cons of the juvenile justice system, examine the various stages in the\njuvenile justice system, and discuss contemporary issues facing juvenile justice. After reading this section, students\nwill be able to:\n\xe2\x80\xa2\n\nSummarize the history and purpose of the juvenile court\n\n\xe2\x80\xa2\n\nExplain the pros and cons of the juvenile justice system.\n\n\xe2\x80\xa2\n\nBriefly examine the stages of the juvenile justice system\n\n\xe2\x80\xa2\n\nExamine the reasons supporting and criticizing the process of waiver to adult court\n\n\xe2\x80\xa2\n\nExplain how due process has evolved through the juvenile court.\n\nCritical Thinking Questions\n\n1.\n\nWhat impact did the child savers have on juvenile justice reform?\n\n2.\n\nExplain how due process has been used throughout the history of the juvenile justice system.\n\n3.\n\nHow has the juvenile justice system evolved since it was created?\n\n4.\n\nWhat are the different types of waiver?\n\n5.\n\nWhat four areas changed the juvenile court?\n\n387\n\n\x0c\x0c10.1. Youth Crime\n\nALISON S. BURKE\n\n1\n\nSince the early 1990s, America has witnessed an increase in the fear of youth crime. Sensationalized media\nexposure in the 1990s facilitated the public\xe2\x80\x99s fear of youth crime, which resulted in get tough legislation and a\n2\nperceived need to \xe2\x80\x9cdo something\xe2\x80\x9d about juvenile crime. The juvenile court was criticized for its inability to\ncontrol youth crime and, as a result, policies shifted from rehabilitation to punishment of juvenile offenders.\n3\nThis punishment included an increase in the number of states that adopted new legislation or revised their\nprevious statutes to facilitate the transfer of youthful offenders from juvenile court to criminal court to be\n4\ntried as adults.\n\nTed Talks: Jeffrey Brown An architect of the \xe2\x80\x9cBoston miracle,\xe2\x80\x9d Rev. Jeffrey Brown started out as a\nbewildered young pastor watching his Boston neighborhood fall apart around him, as drugs and gang\nviolence took hold of the kids on the streets. The first step to recovery: Listen to those kids don\xe2\x80\x99t\njust preach to them and help them reduce violence in their own neighborhoods. It\xe2\x80\x99s a powerful talk\nabout\n\nlistening\n\nto\n\nmake\n\na\n\nchange. https://www.ted.com/talks/\n\njeffrey_brown_how_we_cut_youth_violence_in_boston_by_79_percent?language=en#t-24954\n\n1. Benekos, P., & Merlo, A. (2004). Controversies in juvenile justice and delinquency. Anderson Publishing.\n2. Myers, D.L. (2001). Excluding violent youth from the juvenile court: The effectiveness of legislative waiver.New York: LBF Scholarly Press.\n3. Feld, B.C. (2001). Race, youth violence, and the changing jurisprudence of waiver. Behavioral Sciences & the Law, 19(1), 3-22.\n4. Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 National Report. Washington, DC: U.S. Department of\nJustice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention\n\n389\n\n\x0c10.2. Juvenile Justice\n\nALISON S. BURKE\n\nThe contemporary juvenile justice system operates under the premise that juveniles are different than adults\nand require special attention and treatment. The juvenile justice system believes that juveniles are malleable\nand can be rehabilitated. The juvenile court is based on the premise that public safety is best served by\n1\nemphasizing the rehabilitation, rather than the incapacitation and punishment of juveniles. Unfortunately,\nsensationalized media exposure of violent youth has led to exaggerated public fear of juvenile crime, get\n2\ntough legislation, and a perceived need to \xe2\x80\x9cdo something\xe2\x80\x9d about juvenile crime. This punitive position\nis nothing new. Before the inception of the juvenile justice system a mere 100 years ago, youth were\ntreated the same as adults. They were considered culpable for their actions and housed alongside adult\noffenders in jails and prisons. Recent research has utilized neuroscience to support the need to treat juveniles\ndifferently because they are different. The sections of the brain that govern characteristics associated with\nmoral culpability do not stop maturing until the early 20s. Therefore, it is assumed that someone under age\n20, such as a juvenile delinquent, has an underdeveloped brain.\nWhen addressing juvenile delinquency in America, the pendulum swings from punitive policies to\nrehabilitative policies and then back again depending on media, politics, and the current climate. There is\nno magic bullet approach to preventing juvenile delinquency, but as the court evolves, changes, and utilizes\nbest practices, it gets closer.\n\nTed Talks: Stephen Case The youth crime \xe2\x80\x98problem\xe2\x80\x99 is examined as a social construction and moral\npanic created by institutions in Western societies. The talk traces the evolution of youth crime into a\nphenomenon persistently misrepresented as an escalating social epidemic. The developmental life stages of\n\xe2\x80\x98childhood\xe2\x80\x99 and \xe2\x80\x98adolescence\xe2\x80\x99 as inventions are explored, highlighting differences between young people\nand adults. In this way, \xe2\x80\x98youth crime\xe2\x80\x99 can be identified as a social problem requiring distinct responses.\nA running theme is a child as a source of adult anxiety and fear, motivating societies to create structures,\n\n1. Cox, S. M., Conrad, J. J., & Allen, J. M. (2003). Juvenile justice: A guide to theory and practice. McGraw-Hill Humanities, Social Sciences\n& World Languages.\n2. Benekos, P., & Merlo, A. (2004). Controversies in juvenile justice and delinquency. Anderson Publishing.\n\n390\n\n\x0cIntroduction to the American Criminal Justice System\n\nprocesses, theories, and images of youth crime that punish lawbreakers. The \xe2\x80\x98solution\xe2\x80\x99 is the \xe2\x80\x98positive youth\njustice\xe2\x80\x99 model. Children should not be punished as if they are adults but their criminal behavior should be\nseen as a normal part of growing up. Instead, they should be worked with to meet their needs, to embrace\ntheir human rights and to promote their life chances. https://www.youtube.com/watch?v=QYWPyiZIpV8\n\n391\n\n\x0c10.3. History of the Juvenile Justice System\n\nALISON S. BURKE\n\nThe juvenile court was created in Cook County Illinois in 1899, but the concept dates back to seventeenth\ncentury Europe. The term parens patriae originated in the 12th century with the King of England and literally\nmeans \xe2\x80\x9cthe father of the country.\xe2\x80\x9d Applied to juvenile matters, parens patriae means the king is responsible for\n1\nand in charge of everything involving youth. Parens patriae was often used by royalty in England from their\nhomes in the name of the king. Children were often seen as property and were thus subject to the wishes of\n2\nthe king or his agents. This was especially relevant when they violated the law.\nWithin the scope of early English common law, parents had the primary responsibility of raising their\nchildren in any manner they deemed fit. However, when children reached 7 years of age or committed a\ncriminal act, chancellors, acting in the name of the king, adjudicated matters concerning the youth. The\nyouth has no legal rights and were essentially wards of the court. As such, the courts were tasked with\nsafeguarding their welfare. While parents were merely responsible for childbearing, the state had the primary\n3\nand legitimate interest in the upbringing of the children.\nThe concept of parens patriae had a substantial influence on events in the United States, such as the childsaving movement, houses of refuge, and reform schools. The persistent doctrine of parens patraie can be seen\nevolving from \xe2\x80\x9cking as a father\xe2\x80\x9d to a more general ideology, that of the state \xe2\x80\x9cacting in the best interest of\nthe child.\xe2\x80\x9d Subsequent matters involving youth revolve around this notion of acting in the best interest of\nthe child, whether children were taken away from wayward parents, sent to reform schools for vagrancy,\nor even held in institutions until they read the age of majority, or 18 years old. The idea is that the state is\nacting in their best interest, protecting the youth from growing up to be ill-prepared members of society.\nThus, the courts are intervening for the youth\xe2\x80\x99s own good.\nIn the nineteenth century, children were gradually seen as vulnerable and in need of special care and\nsupervision. One illustration of this concept was the establishment of a house of refuge in New York City\nin 1825. These were urban establishment used to corral youth who were roaming the street unsupervised or\n4\nwho had been referred by the courts.\nThese houses were not intended to house criminals, but rather at-risk youth, or youth who were on the\n1. Merlo, A., & Benekos, P. (2019). The Juvenile Justice System, Delinquency, Processing, and the Law (9th ed.) Pearson.\n2. Shoemaker, D. (2018). Juvenile Delinquency (3rd ed.). Rowman & Littlefield.\n3. Merlo, A., & Benekos, P. (2019). The Juvenile Justice System, Delinquency, Processing, and the Law (9th ed.). Pearson.\n4. Merlo, A., & Benekos, P. 2019. The Juvenile Justice System, Delinquency, Processing, and the Law (9th ed.). Pearson.\n\n392\n\n\x0cIntroduction to the American Criminal Justice System\n\nverge of falling into a life of crime because of their social circumstances. Because of the notion of parens\npatriea, many of the parents of these youth were not involved in the placement of their children in these\n5\nhouses. The case of Ex Parte Crouse is an example.\nIn 1838, a girl named Mary Ann Crouse was sent to a Philadelphia house of refuge at the request of her\nmother. Her father petitioned to have her released since she was committed without his consent. However,\non the grounds that the state has the right to remove children from their home, in their best interest and\neven sometimes over parental objection (because of parens patriae), the Pennsylvania Supreme Court denied\nthe father\xe2\x80\x99s petition. The court declared that failed parents lose their rights to raise their children. Parental\ncustody and control of their children is natural, but not an absolute right. If parents fail to care for their\nchildren, educate, train, or supervise them, then the children can be taken by the state. The state is acting in\nthe best interest of the child.\n\nReform Schools: The 1850s ushered in the development of reform schools or institutions used for the\nhousing of delinquent and dependent children. The schools were structured around a school schedule\nrather than the work hours that defined the workhouses and houses of refuge. Many reform schools\noperated like a cottage system where the youth were divided into \xe2\x80\x9cfamilies\xe2\x80\x9d with cottage parents who\noversaw the day to day running of the family, discipline of the youth, and schooling. The structure is\nstill used in some youth correction institutions today, however, back in the nineteenth century, children\nwere often exploited for labor and many of the school de-emphasis formal education.\n\n6\n\nAdditionally, the\n\nemphasis of the reform school was on the strength of the family and they believed that by reinserting a\nstrong family presence in the lives of the youth, they would be deterred from further criminal pursuits.\n7\n\nRegardless of the lack of evaluations as to the effectiveness of these institutions, the popularity of\n\nreformatories continued to grow.\nThe state had the legal authority to commit children and youth to reform schools based under parens\npatriae. However, in 1870, a boy named Daniel Turner was considered a \xe2\x80\x9cmisfortunate\xe2\x80\x9d, or someone who\nwas in danger of becoming delinquent because his family was poor and unable to care for him. He was\nremanded to a Chicago house of refuge for vagrancy, not a delinquent act. His father filed a writ of habeas\ncorpus and the court ruled that the state has no power to imprison a child, who has committed no crime,\non the mere allegation that he is \xe2\x80\x9c destitute of proper parental care, and is growing up in mendicancy,\n8\n\nignorance, idleness, and vice.\xe2\x80\x9d People Ex Rel. O\xe2\x80\x99connell v. Turner, 55 Ill. 280 (Ill. 1870). This effectively\nclosed the reform schools in Illinois since they could no longer house non-criminal children. This case\nchallenged the practice of parens patriae and ruled that the state can only take control of children if the\nparents are completely and utterly unfit and/or the child had committed some act of \xe2\x80\x9cgross misconduct.\xe2\x80\x9d\n\n9\n\n5. Ex Parte Crouse (1839)\n6. Mennel, R.M. (1973). Thorns & Thistles: Juvenile Delinquents in the United States from 1825\xe2\x80\x931940. Hanover, NH: University Press of New\nEngland.\n7. Shoemaker, D. (2018). Juvenile Delinquency (3rd ed.). Rowman & Littlefield.\n8. People Ex Rel. O\xe2\x80\x99connell v. Turner, 55 Ill. 280 (Ill. 1870).\n9. Fox, S.J. (1970). Juvenile Justice Reform: An Historical Perspective. Stanford Law Review, 22:1187\xe2\x80\x931239\n\n393\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nChild Saving Movement: By the end of the ninetieth century, cities were experiencing the effects of\nthree major things: industrialization, urbanization, and immigration. Industrialization refers to the\nshift in work from agricultural jobs to more manufacturing work. This led to a greater number of people\nmoving from the country to the cities, and the cities increasing exponentially in population without the\ninfrastructure to support the increase. Immigration refers to the internal migration of people in America\nand the external movement of people from other countries. Within America, people were moving from\nthe southern states (remember, this is not long after the end of the Civil War, which ended in 1865) and\nimmigrating from European countries such as Ireland (the potato famine lasted from 1845-1854 and killed\nan estimated 1.5 million people). Millions of Germans and Asians also immigrated to America during this\ntime lured by Midwest farmlands and the California Goldrush.\n\n10\n\nThe influx of people into cities weakened the cohesiveness of communities and the abilities of\ncommunities and families to socialize and control children effectively.\n\n11\n\nNonetheless, the child-saving\n\nmovement emerged during this time in an effort to change the way the state was dealing with dependent,\nneglected, and delinquent children. The child savers were women from middle and upper-class\nbackgrounds.\nThere is some debate as to the motives of the child savers. The traditional view is that they were\nprogressive reformers who sought to solve problems of urban life, while others contend that they used\ntheir station and resources as an effort to preserve their middle-class white way of life by overseeing the\ntreatment of the immigrant children. Regardless of their motives, it is safe to say that child-savers were\nprominent, influential, philanthropic women, who were \xe2\x80\x9cgenerally well educated, widely traveled, and had\naccess to political and financial resources.\xe2\x80\x9d\n\n12\n\nCreation of the Juvenile Court\nThe juvenile court was created in Cook County, Illinois in 1899. The Illinois Juvenile Court Act of\n1899 was the first statutory provision in the United States to provide for an entirely separate system of\njuvenile justice. The court was created to have jurisdiction over all matters pertaining to youth- dependent,\nneglected, and delinquent youth.\n13\nA 1905 Pennsylvania Supreme Court case, Commonwealth v. Fisher Commonwealth v. Fisher, 213\n14\nPennsylvania 48 (1905) , conveyed the legal authority of the new juvenile court under parens patriae:\n"To save a child from becoming a criminal, or from continuing in a career of crime, . . . the\nlegislatures surely may provide for the salvation of such a child, if its parents or guardians be unable or\nunwilling to do so, by bringing it into one of the courts of the state without any process at all, for the\npurpose of subjecting it to the state\'s guardianship and protection."\nIn this case, a juvenile was given a seven-year sentence for a minor crime which would have received a\n10. History (n.d.). US immigration before 1965. https://www.history.com/topics/u-s-immigration-before-1965\n11. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.\n12. Platt, A. (1977). The Child Savers: The Invention of Delinquency (2nd ed., pp.83). Chicago: University of Chicago Press.\n13.\n14.\n\n394\n\n\x0cIntroduction to the American Criminal Justice System\n\nmuch lesser sentence in adult court. The court upheld the sentence and deemed it was in the best interest\nof the child. As a result of the case, parens patriae was back. The court ruled that \xe2\x80\x9cimportance to the\ncommonwealth which is vitally interested in rescuing and saving its children, wherever rescue, care and a\nsubstitute for parental control are required, to the end that they may, in the enjoyment of sober, industrious\nand happy lives, fill the full measure of good citizenship.\xe2\x80\x9d\n\n395\n\n\x0c10.4. Delinquency\n\nALISON S. BURKE\n\nBefore the creation of the juvenile court, there was no such thing as \xe2\x80\x9cdelinquency.\xe2\x80\x9d Youth were convicted\nof crimes, the same as adults. Just as the concept of \xe2\x80\x9cchildhood\xe2\x80\x9d is socially constructed, scholars also say that\n\xe2\x80\x9cjuvenile delinquency\xe2\x80\x9d is likewise socially constructed as a result of social, economic, and religious changes.\n1\nThe juvenile court oversees cases for youth between the ages of 7 and 17. Seven is considered the lower\nlimit of the reaches or protections of the juvenile justice system, while 17 is the upper limit. At 18, youth\nare considered adults and are tried under the laws of the adult criminal justice system. However, some states\nhave differing upper age limits. For example, in Oregon, the Oregon Youth Authority houses youth until\nthe age of 25. Other states have similar provisions and although the lower limit is seven years of age, most\nstates do not intervene in cases under nine.\n\nYouth Processing Ages\n\nAfter the creation of the juvenile court, the child savers and reformers were worried that restricting the court\n1. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.\n\n396\n\n\x0cIntroduction to the American Criminal Justice System\n\nto only deal with criminal youth would make the court function like an adult criminal court rather than a\nrehabilitative parental figure. Within a couple of years of its founding, amendments to the Illinois Juvenile\nCourt Act broadened the definition of delinquency to include incorrigible youth, or otherwise unruly and\n2\nout of the control of their parents. The definition of juvenile delinquency now included status offenses or\noffenses that are only illegal because of the age of the offender. Examples include: drinking alcohol, running\naway, ungovernability, truancy (skipping school), and curfew violations. Overall, the juvenile justice system\nis responsible for youth who are considered dependent, neglected, incorrigible, delinquent, and/or status\noffenders.\n\nPodcast: Caught\nhttps://www.npr.org/podcasts/589480586/caught\n\nThe purpose of the original court was to act in a rehabilitative ideal. The main function was to emphasize\n3\nreform and treatment over punishment and punitive action. Terminology in the court is even different,\nto denote the separate nature from the adversarial adult processes. To initiate the juvenile court process, a\npetition is filed \xe2\x80\x9cin the welfare of the child,\xe2\x80\x9d whereas this is called an indictment in the adult criminal process.\nThe proceedings of juvenile courts are referred to as \xe2\x80\x9chearings,\xe2\x80\x9d instead of trials, as in adult courts. Juvenile\ncourts find youths to be \xe2\x80\x9cdelinquent,\xe2\x80\x9d rather than criminal or guilty of an offense, and juvenile delinquents\nare given a \xe2\x80\x9cdisposition,\xe2\x80\x9d instead of a sentence, as in adult criminal courts.\n\n2. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.\n3. Feld, B.C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.\n\n397\n\n\x0c10.5. Juvenile Justice Process\n\nALISON S. BURKE\n\nDid you know that there is no uniform juvenile justice system in the United States? It is quite surprising!\nMatters concerning minors and children who break the law are left to the discretion of individual states and\ntheir legislative bodies. States have different priorities, and legislators enact new laws and revise legislation\naccording to their own needs at the time. Although every state operates independently, they manifest\ncommon trends and respond to certain issues in a similar manner. For example, the increasing fear of youth\n1\nviolence in the 1990s precipitated more specific and punitive legislation in almost every state. Some states\nwith very specific and real gang problems devised targeted gang suppression laws and legislation, while other\nstates did not. The fear of youth crime led states to create mandatory minimum legislation (like Measure 11\nlaws in Oregon), waiver and transfer laws, and zero tolerance policies.\nThe juvenile justice system has two main responsibilities: to oversee cases involving (1) juvenile\n2\ndelinquency (criminal law violations and status offenses) and (2) dependency, neglect, and child abuse. Due\nto the loose definitions of parens patrea and the court\xe2\x80\x99s attempt to act in the best interest of the child, after\nWorld War II, the juvenile court was criticized for disregarding due process.\nDue process refers to the procedural rights established in the Constitution, especially the Bill of Rights. It\nincludes rights such as the right to legal counsel, right to call witnesses, and right to be notified of charges\n(which will be revisited in In re Gault). The original juvenile court did not implement due process rights\nbecause it was intervening in the lives of youth for their own good, not in such a formalized adult way where\nthey would need constitutional protections. However, because of the abuse of power, this changed in later\ndecades.\nBeginning in the 1960s, four areas drastically changed in the juvenile court:\n(1) the juvenile due process revolution from 1966 to 1975\n(2) the Juvenile Justice and Delinquency Prevention Act of 1974\n(3) a growing emphasis on punishment and accountability in the 1980s and 1990s\n(4) contemporary juvenile justice reform that is driven by evidence-based practices and empirical research\non adolescent development, which in turn leads us back to rehabilitation\n\n1. Feld, B.C. (2003). The Politics of Race and Juvenile Justice: The \xe2\x80\x98Due Process Revolution\xe2\x80\x99 and the Conservative Reaction. Justice Quarterly\n20:765-800.\n2. Rubin 1985\n\n398\n\n\x0c10.6. Due Process in the Juvenile Court\n\nALISON S. BURKE\n\nAs discussed, the juvenile court was created with rehabilitation and individualized treatment in mind.\nHowever, between 1966 and 1975, the court became more formalized and started \xe2\x80\x9cadultifying\xe2\x80\x9d the process.\nLandmark cases for establishing due process rights in the juvenile justice system include.\n\nKent v. United States (1966)\n\n1\n\nMorris Kent was a 16-year-old boy living in Washington DC who was on probation for burglary\nand theft. He was arrested again and charged with three burglaries, three robberies, and two counts of\nrape. Due to the seriousness of the changes and Kent\xe2\x80\x99s previous criminal history, the prosecutors moved\nto try Kent in adult court. However, because of his age, he was under the exclusive jurisdiction of the\njuvenile court. Kent\xe2\x80\x99s lawyers wanted his case to be heard in juvenile court. Without a hearing or a full\ninvestigation, the judge sided with the prosecutors and Kent was tried in adult court. He was found guilty\nand sentenced to 30 to 90 years in prison. On appeal, Kent lawyers argued that the case should have to stay\nin juvenile court and it was unfairly moved to adult court without a proper hearing.\nThe Supreme Court ruled that while minors can be tried in adult court, the original judge needed to\nconduct a full investigation and an official waiver hearing where the merits of the case were weighed,\nsuch as the juvenile\xe2\x80\x99s age, prior charges, and mental state. Essentially, Kent was entitled to a hearing\nthat provided \xe2\x80\x9cthe essentials of due process and fair treatment.\xe2\x80\x9d This standard includes the right to a\nformal hearing on the motion of waiver and a written statement of the reasons for a waiver, the right to\ncounsel, and the defense\xe2\x80\x99s access to all records involved in the waiver decision. It also ruled that \xe2\x80\x9cThe parens\npatriae philosophy of the Juvenile Court \xe2\x80\x98is not an invitation to procedural arbitrariness.\'\xe2\x80\x9d\n\n1. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045 (1966).\n2. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, pp. 554-556 (1966)\n\n399\n\n2\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nIn re Gault (1967).\n\n3\n\nGerald \xe2\x80\x9cJerry\xe2\x80\x9d Gault, a 15-year-old Arizona boy, was taken into custody for making obscene calls to\na neighbor\xe2\x80\x99s house. After the neighbor, Mrs. Cook filed charges, Gault and his friend were taken to the\nJuvenile Detention Home. At the time he was taken into custody, his parents were at work and the\narresting officers made no effort to contact them nor did they leave a note about the arrest or where they\nwere taking their son. They finally learned of his whereabouts from the family of the friend who arrested\nwith him.\nWhen the habeas corpus hearing was held two months later, Mrs. Cook was not present, no one was\nsworn in prior to testifying, and no notes were taken. He was released and scheduled to reappear a few\nmonths later for an adjudication hearing. In the following hearing, again, Mrs. Cook was not present and\nagain, no official transcripts of the proceeding were taken.\nThe official charge was \xe2\x80\x9cmaking lewd phone calls.\xe2\x80\x9d The maximum penalty for an adult charge with this\nwas a $50 fine or not more than two months in jail. Gault was found guilty and sentenced to 6 years in\njuvenile detention.\nGault\xe2\x80\x99s parents filed a writ of habeas corpus which was eventually heard by the Supreme Court. The\nSupreme Court ruled that juveniles are entitled to due process rights when the court proceedings may result\nin confinement to a secure facility. The specific due process rights highlighted in this case include (1) fair\nnotice of charges; (2) right to counsel; (3) right to confront and cross-examine witnesses; and (4) privilege\nagainst self-incrimination.\nThe Court held that the Due Process Clause of the Fourteenth Amendment applies to juvenile\ndefendants as well as adult defendants. \xe2\x80\x9cJuvenile court history has again demonstrated that unbridled\ndiscretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.\xe2\x80\x9d\n\nIn re Winship (1970)\n\n4\n\nSamuel Winship, a 12-year old boy living in New York, was charged with stealing $112 from a woman\xe2\x80\x99s\npurse in a store, a charge that \xe2\x80\x9cif done by an adult would constitute the crime or crimes of Larceny.\xe2\x80\x9d Since\nhe committed a crime, the charges of juvenile delinquency were justified. Winship was found delinquent\nin a New York juvenile court, using the civil law standard of proof, \xe2\x80\x9cpreponderance of the evidence.\xe2\x80\x9d\nWinship was committed to a state training school for an initial period of 18 months with the annual\nextension of no more than six years.\nUpon appeal, the U.S. Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment\n\n3. In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967)\n4. In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970)\n\n400\n\n\x0cIntroduction to the American Criminal Justice System\n\nrequires \xe2\x80\x9cproof beyond a reasonable doubt.\xe2\x80\x9d The court acknowledged that juvenile proceeding is designed\nto be more informal than adult proceedings, but if charged with a crime, the juvenile is granted protections\nof proof beyond a reasonable doubt. Winship expanded the constitutional protections established in Gault.\n\nBreed v. Jones (1975)\n\n5\n\nA 17-year-old boy named Gary Jones was charged with armed robbery and found guilty in a California\njuvenile court. At the dispositional hearing, the probation officer assigned to the case testified that Jones\nwas not amenable to treatment. After the hearing, the court determined that Jones should subsequently\nbe tried as an adult. Jones\xe2\x80\x99 lawyers filed a writ of habeas corpus and argued that waiving the case to\nadult court after it was already adjudicated in juvenile court violated the double jeopardy clause in the\nFifth Amendment. The Supreme Court ruled that, yes, Jones had been placed in double jeopardy. This\nfurther formalized the juvenile court, however, The Court moved, \xe2\x80\x9cGiving respondent the constitutional\nprotection against multiple trials in this context will not, as petitioner claims, diminish the flexibility and\ninformality of juvenile-court proceedings.\xe2\x80\x9d\n\n6\n\n5. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779 (1975)\n6. 27 Raley, Gordon. 1995. "The JJDP Act: A Second Look." Juvenile Justice Journal, 2:11\xe2\x80\x9318.\n\n401\n\n\x0c10.7. The Juvenile Justice and Delinquency Prevention Act of 1974\n\nALISON S. BURKE\n\nThe Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974 reformed and redefined the philosophy,\nauthority, and procedures of the juvenile justice system in the United States. This was the first major federal\n1\ninitiative to address juvenile delinquency across the nation. While historically, the overseeing of juvenile\nmatters fell on the states, the JJDP Act established some oversight at the federal level.\nThe JJDP Act attached to state funding to reform efforts. For example, one major reform effort involved\nrevising policies around secure detention, separating juvenile from adult offenders, and deinstitutionalizing\nstatus offenders. Status offenders were no longer to be held in secure facilities with delinquent youth.\n2\nIn 1992, as part of the reauthorization of JJDPA, states were encouraged to identify gaps in their ability\nto provide appropriate services for female juvenile delinquents (42 U.S.C. 5601; OJJDP). The federal\ngovernment expected states to provide specific services for the prevention and treatment of female\ndelinquency and prohibit gender bias in the placement, treatment, and programming of female delinquents.\n\nCampaign for Youth Justice\nhttp://www.campaignforyouthjustice.org/\n\n1. Office of Juvenile Justice and Delinquency Prevention (1998). Juvenile female offender: A status of the state\'s report.\n2. Office of Juvenile Justice and Delinquency Prevention (1998). Juvenile female offender: A status of the state\'s report.\n\n402\n\n\x0c10.8. Getting Tough: Initiatives for Punishment and Accountability\n\nALISON S. BURKE\n\nThe 1980s saw a huge shift in the way states and federal laws were addressing juvenile law. Gangs, gun\nviolence, and drugs drew attention to the identification, punishment, and prevention of violent and chronic\nyouth offenders. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) focused research on\nyouth violence and state and local programming. Attention focused on the identification and control of\n1\nserious, violent, and chronic offenders.\nAt the state level, lawmakers enacted policies to crack down on youth crime. In the mid-1990s the idea of\nthe juvenile superpredator\xe2\x80\x93 youth so impulsively violent, remorseless, and have no respect for human lifeled to widespread reform and more punitive approaches to juvenile crime and delinquency. This included\nmore punitive sentences, lowering the age at which a juvenile could be tried as an adult, and loosening the\nprovisions for trying juveniles in adult court. The motto \xe2\x80\x9cadult time for adult crime\xe2\x80\x9d drove accountability\ninitiatives and get-tough campaigns. A youth was no longer seen as vulnerable minors in need of protection\nand treatment. Instead, the narrative changed and they were seen as violent monsters acting \xe2\x80\x9cwith no\nconscience and no empathy\xe2\x80\x9d, a statement Hillary Clinton has publicly regretted saying.\n\nRethinking zero tolerance\nhttps://www.youtube.com/watch?v=6ZDFs-EmP74\n\nWaiver and Adult Time\nAll states have enacted laws that allow juveniles to be tried in adult criminal courts. There are several\nmechanisms by which a juvenile can be transferred to adult criminal court: prosecutorial, legislative,\nand judicial waiver. The prosecutorial waiver also is referred to as \xe2\x80\x9cDirect File\xe2\x80\x9d and \xe2\x80\x9cConcurrent\nJurisdiction.\xe2\x80\x9d With this waiver mechanism, the legislature grants a prosecutor the discretion to determine\n\n1. Krisberg, B., & Austin,J. (1978). History of the Control and Prevention of Juvenile Delinquency in America. In B. Krisberg & J. Austin\n(Eds.), The Children of Ishmael: Critical Perspective on Juvenile Justice (pp. 7-50). Palo Alto, CA: Mayfield.\n\n403\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n2\n\nin which court to file charges against the juvenile. The prosecutor, or district attorney, can choose to file\ncharges in juvenile court or adult criminal court. This procedure does not require a transfer hearing, so the\n3\ndefense is not accorded the opportunity to present evidence in an attempt to avoid the transfer\nLegislative waiver, or statutory waiver, identifies certain offenses which have been mandated by state\nlaw to be excluded from juvenile court jurisdiction. It is utilized as a method to decrease or eliminate\nthe discretionary powers of judges and prosecutors. For example, the number of state statutes specifies that\nviolent felony offenses such as homicide, rape, and robbery, when committed by older adolescents, are\nautomatically sent to adult criminal court.\n\nIn the News: Raising the Age and Raising the Bar\nAs part of the \xe2\x80\x9cRaise the Age\xe2\x80\x9d legislation passed in 2017, all minors on Rikers Island awaiting trial or\notherwise, have to be moved out of the notorious New York City jail in October 2018. Rikers Island is\nfamed for abuse, corruption, and violence and has begun the 10 years shut down a plan to close the scandalridden jail complex. The jail houses some 9,000 inmates, more than 2,000 who are juveniles. The plan is to\nreduce the jail population while moving the inmates to other facilities throughout New York\xe2\x80\x99s boroughs.\nPart of the reduction in the number of inmates stems from the recent law which mandates that 16 and\n17 year-olds in New York State will no longer automatically be charged as adults in criminal courts. And\nthe age raises even more, to 18, on October 18, 2 019.\nRikers Island has a sordid history of brutality and inhumane treatment of prisoners. Perhaps the most\nwell-known case in recent history is the story of Kalief Browder, a 16-year-old kid from the Bronx, who\nwas charged with stealing a backpack. Although he claimed he was innocent, he ended up spending\nthree years at Rikers Island, and more than two years were spent in solitary confinement. The charges\nwere eventually dismissed and Browder was released, but the time spent in solitary caused significant and\ndetrimental mental health issues. Tragically, he committed suicide in 2015, just two years after his release.\nHis case garnered national attention prompting New York to ban the use of solitary confinement for\ninmates under the age of 18.\nResearch shows that solitary confinement is linked to mental health problems like depression, anxiety,\npsychosis, and even suicidal ideation. For these reasons, all federal prisons ban solitary confinement for\njuveniles and most states don\xe2\x80\x99t allow the use of solitary in juvenile facilities. However, solitary is still used\nin adult prisons. Each year around 200,000 youth are tried as adults and many are sentenced to time in\nregular, adult prisons. Many of these state jails and prisons still use solitary confinement for the \xe2\x80\x9csafety\xe2\x80\x9d and\n\xe2\x80\x9cprotection\xe2\x80\x9d of juveniles housed with adults (Resitvo, 2019).\nRaising the age legislation is a step in the right direction and will prevent more juveniles from beginning\nsent to adult facilities. New York and North Carolina were the last two states in the nation to charge 16\nand 17 year-olds as adults up until last year when both amended their laws. The legislation will have a\n\n2. Feld, B.C. (2001). Race, youth violence, and the changing jurisprudence of waiver. Behavioral Sciences & the Law, 19(1), 3-22.\n3. Steiner, B., Hemmens, C., & Bell, V. (2006). Legislative waiver reconsidered: General deterrent effects of statutory exclusion laws\nenacted post-1979. Justice Quarterly, 23(1), 34-50\n\n404\n\n\x0cIntroduction to the American Criminal Justice System\n\nprofound impact on New York\xe2\x80\x99s criminal justice system and is seen as a massive win for reformers who\nhave been pushing for better treatment of children at Rikers Island for years.\nListen to the story and read more at:\nhttps://www.wnycstudios.org/story/raise-age-new-york-minors-rikers\n4\n\n5\n\nJudicial waiver affords the juvenile court judge the authority to transfer a case to adult criminal court.\nThere are three types of judicial waiver: discretionary, presumptive, and mandatory.\nThe discretionary (regular) transfer allows a judge to transfer a juvenile from juvenile court to adult\n6\ncriminal court. With this type of transfer, the burden of proof rests with the state and the prosecutor must\nconfirm that the juvenile is not amenable to treatment. As discussed previously, in Kent v. United States (383\nU.S. 541, 566-67 [1966]), the Supreme Court outlined threshold criteria that must be met before a court\ncan consider waiving a case. These waiver statutes typically include a minimum age, the specified type of\noffense, a sufficiently serious prior record, or a combination of the three.\nPresumptive waiver shifts the burden of proof from the State to the defendant. It is presumptive because\nit is presumed that it will occur unless the youth can meet the burden of proof and provide a justifiable reason\nto remain in juvenile court. If the youth is unable to show just cause or sufficient reason why the case should\nbe tried in juvenile court, the case will be transferred and tried in adult court.\nThe third type of judicial waiver is a mandatory waiver. Mandatory waiver means that a juvenile judge\nmust automatically transfer to adult court juvenile offenders who meet certain criteria, such as age and\ncurrent offense. In these cases, the role of the judge is simply to confirm that the waiver criteria are met and\nthen to transfer the case to adult court. Mandatory waiver attempts to remove all discretionary powers from\n7\nthe juvenile court judge in transfer proceedings.\n\n4. Restivo, E. (2019, Feb 14). Stop putting juveniles in solitary confinement. Daily News. https://www.greensburgdailynews.com/\nopinion/columns/stop-putting-juveniles-in-solitary-confinement/article_d438d7bc-4e3d-5a9e-97da-22706d6037c8.html\n5. Hemmens, S., & Bell, C. (2006). Legislative waiver reconsidered: General deterrent effects of statutory exclusion laws enacted Post 1990.\nJustice Quarterly, 23(1), p34-59.\n6. Sanborn, J. (2004). The adultification of youth. In P. Benekos & A. Merlo (Eds.), Controversies in juvenile justice and delinquency (pp.\n143-164). Anderson Publishing.\n7. Burke, A. (2016). Trends of the time.\n\n405\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nState juvenile courts with delinquency jurisdiction handle cases in which juveniles are accused of acts that would be crimes if adults\ncommitted them.\nIn 45 states, the maximum age of juvenile court jurisdiction is age 17. Five states\xe2\x80\x93 Georgia, Michigan, Missouri, Texas, and\nWisconsin\xe2\x80\x93now draw the juvenile/adult line at age 16.\nHowever, all states have transfer laws that allow or require young offenders to be prosecuted as adults for more serious offenses,\nregardless of their age\n\nIn addition to increasing transfer mechanisms, at least 13 states lowered the age of majority to 15, 16, and\n17, which allowed the youth of these ages to be automatically tried in adult criminal courts. These were\nsupposed to provide procedures that curbed only the worst of the worst offenders, however, these\nprovisions increased the prosecution of all juvenile offenders and youth of color in particular.\n\nTed Talks: Alice Goffman In the United States, two institutions guide teenagers on the journey to\nadulthood: college and prison. Sociologist Alice Goffman spent six years in a troubled Philadelphia\nneighborhood and saw first-hand how teenagers of African-American and Latino backgrounds are\nfunneled down the path to prison \xe2\x80\x94 sometimes starting with relatively minor infractions. In an\nimpassioned talk she asks, \xe2\x80\x9cWhy are we offering only handcuffs and jail time?\xe2\x80\x9d https://www.ted.com/talks/\nalice_goffman_college_or_prison_two_destinies_one_blatant_injustice?language=en\n\n406\n\n\x0c10.9. Returning to Rehabilitation in the Contemporary Juvenile\nJustice System\n\nALISON S. BURKE\n\nEmpirical research drives recent reform efforts. The past decade has witnessed the identification of key\ndevelopmental processes associated with delinquent behavior, such as brain development research. Ergo,\nevidence-based practices, which utilize the scientific method to assess the effectiveness of interventions,\npolicies, and programs. In looking at what works, what doesn\xe2\x80\x99t, and what is promising, researchers and\npolicymakers alike assess the implementation of interventions to best meet the needs of the individual\nyouth.\nAdditionally, several noteworthy Supreme Court cases exemplify society\xe2\x80\x99s evolving standards of decency\nand treatment of youth. These key cases demonstrate a move back to rehabilitation and acknowledge the\nfundamental differences between children and adults.\nKey Supreme Court Cases\n\nRoper v Simmons (2005)\nIn 2005, a landmark decision by the Supreme Court ruled it unconstitutional to impose a death penalty\nsentence on any youth who was under the age of 18 when they committed their offense (Roper v. Simmons).\nAlthough Christopher Simmons planned and committed a capital offense (he murdered his neighbor,\nShirley Cook), the court ruled that 18 years of age is where criminal responsibility should rest. That is\nto say, if a child is too young to vote, sign contracts, or do a number of other things (because society\ndeems them not responsible enough), then they are too young to receive the death penalty. The court\nstated,\xe2\x80\x9cthe evolving standards of decency that mark the progress of a maturing society\xe2\x80\x9d to determine which\npunishments are so disproportionate as to be \xe2\x80\x9ccruel and unusual.\xe2\x80\x9d Simmons received life in prison. It was\nruled that imposing the death penalty on a person who was under the age of 18 at the time of the crime\nconstituted cruel and unusual punishment. At the time of the Roper v Simmons verdict, the U.S. was only\n\n407\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\none out of a handful of countries that still imposed the death penalty on juveniles (among other countries\nwere Yemen, Saudi Arabia, and Iran).\n\nGraham v Florida (2010)\nWhile the death penalty was taken off the table for youth under the age of 18, they were instead being\nsentenced to life in prison without the possibility of parole (LWOP). This was until the 2010 case of\nGraham v. Florida. Terrance Graham received life in prison for a felony offense (armed burglary) when he\nwas only 16 years old. Since Florida does not have parole, his sentence de facto became a life without the\npossibility of parole. The Supreme Court heard his case and ruled that it was unconstitutional to sentence\na minor to life without the possibility of parole for a non-homicide offense.\n\nMiller v Alabama (2012)\nTwo years later, juvenile law again rested in the hands of the Supreme Court. Even though Graham\nv. Florida abolished life without the possibility of parole for non-homicide offenses, youth under the age\nof 18 were still receiving that sentence for crimes of murder. In 2012, Evan Miller was 14 years old\nwhen he killed his neighbor by severely beating him with a baseball bat while attempting to rob him.\nWith contemporary research about brain formation and juvenile culpability, the Supreme Court ruled\nthat youth are not as responsible as adults for their actions because their brains have not fully formed.\nIn the majority opinion, Justice Elena Kagan wrote that \xe2\x80\x9cmandatory life without parole for those under\nage of 18 at the time of their crime violates the 8th Amendment\xe2\x80\x99s prohibition on cruel and unusual\npunishments.\xe2\x80\x9d \xe2\x80\x9cMandatory life without parole for a juvenile precludes consideration of his chronological\nage and its hallmark features \xe2\x80\x93 among them, immaturity, impetuosity, and failure to appreciate risks and\nconsequences,\xe2\x80\x9d Justice Kagan said. \xe2\x80\x9cIt prevents taking into account the family and home environment\nthat surrounds him \xe2\x80\x93 and from which he cannot usually extricate himself \xe2\x80\x93 no matter how brutal or\ndysfunctional.\xe2\x80\x9d\nThis seemed like a huge win for juvenile justice reformers. Juveniles could no longer receive the death\npenalty, life without parole for non-homicide, nor mandatory life without parole for homicide. However,\nthere were still so many people serving LWOP sentences who were juveniles when they committed their\ncrime.\n\n408\n\n\x0cIntroduction to the American Criminal Justice System\n\nMontgomery v Louisiana (2016)\nIn 2016, the Supreme Court heard the case of Henry Montgomery, who was 17 years old in 1963 when\nkilled a sheriff\xe2\x80\x99s deputy. He initially received a death sentence, but this was overturned because of the\nracial tension of the time (Montgomery was black youth who killed a white law enforcement officer.) He\ninstead received a life sentence and appealed this sentence after the Miller v. Alabama ruling. Montgomery v.\nAlabama barred mandatory life without parole sentences retroactively. This meant that all youth sentenced\nprior to 2012 with LWOP sentences needed to be retried.\n\nThese four major Supreme Court cases identify the differences between adults and juveniles. They recognize\nthe difference in brain formation and culpability, owning the ability for rehabilitation of youth and moving\nstep by step away from a retribution/punishment model for youth.\n\n409\n\n\x0c10.10. The Structure of the Juvenile Justice System\n\nALISON S. BURKE\n\nThe juvenile justice process involves nine major decision points: (1) arrest, (2) referral to court, (3) diversion,\n(4) secure detention, (5) judicial waiver to adult criminal court, (6) case petitioning, (7) delinquency finding/\nadjudication, (8) probation, and (9) residential placement, including confinement in a secure correctional\n1\nfacility (see Juvenile Justice Process flow chart).\nThe majority of cases are first referred to the juvenile justice system through contact with police. Probation\nofficers, school officials, or parents usually refer to the remaining cases. The most common offenses referred\nto court are property offenses (roughly 92%), followed by person offenses (89.5%), drugs (88.2%), and\ngeneral delinquency charges (81.6%). Other referrals come from schools, family, or social workers or\nprobation officers.\nAt the intake stage, probation officers or attorneys determine whether or not the case needs the attention\nof the juvenile court or if it can be handled informally, such as diversion to probation or a drug treatment\nprogram. If the case progresses to court, the authorities need to determine if the youth can be released to a\nparent/guardian or if the youth needs to be held in a secure detention center. When determining this, the\ncourt needs to assess the risk the youth poses to society and if the youth poses a flight risk. In some cases, the\nparent cannot be located or, if located, refuses to take custody of the youth. In these cases, the juvenile is\nremanded to custody. The decision to detain or release the juvenile will be made by the judge at a detention\nhearing.\nIf the case is handled in court, the county attorney needs to file a petition. When the youth has a formal\nhearing, it is called an adjudication rather than a trial in adult court. The adjudication of youth as delinquent\ncan result in either dismissal of the charges or confinement at a secure institution. In most juvenile cases, the\nleast restrictive option is usually sought, so the youth is usually put on probation or some sort of community\ntreatment. Formal processing is less common than informal processing involving diversion or communitybased programming.\n\n1. Sickmund, M., & Puzzanchera, C. (2014). Juvenile offenders and victims: 2014 national report.\n\n410\n\n\x0cIntroduction to the American Criminal Justice System\n\nThe Juvenile Justice Process. The major decision points in this process are: (1) arrest, (2) referral to court, (3) diversion (at multiple\npoints in the process), (4) secure detention, (5) judicial waiver to adult criminal court, (6) case petitioning, (7) delinquency finding/\nadjudication, (8) probation, and (9) residential placement, including confinement in a secure correctional facility\n\nWorking With Youth\n\nWhen I graduated from college with a BA in psychology, I applied for a job working with the Division of\nYouth Corrections in Denver, CO. I worked in a Residential Treatment Facility (RTC), which used behavior\nmodification techniques, assigned case-workers to each youth and their families, and attempted to help the kids\nlearn problem-solving skills and accountability. Youth were confined for a variety of reasons, from committing\ngang affiliated drive-by shootings, to youth who were designated dependent youth through social services and had\nnowhere else to go. We had high-risk kids, low-risk kids, conduct disorder and mental health kids all together on\nthe same unit. Having the mix of all these different kids is not a great formula; the low-risk kids learn negative\nbehavior from the high-risk kids, and the conduct disorder kids victimize the mental health kids. In an ideal\ninstitution, these different populations would all be on separate units.\nWorking with youth is hard. They push boundaries, are angry, try to manipulate those around them, and reject\nauthority. However, working with youth is exceptionally rewarding. They are kids. They come from abusive and\nneglectful homes and are yearning for approval and love. For example, one boy in our facility was named Josh. He\nwas a super angry and violent sixteen-year-old who was sentenced for committing aggravated assault. Through\nworking with counselors and caseworkers, we discovered his anger was hiding immense sadness. He lashed out at\nthose around him when he was sad because he had no way to show his feeling other than through aggression. Many\n\n411\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nmonths of working with him, encouraging him to journal, express his feelings, talk with others, use other tools to\nhelp him with his sadness led to amazing results. He left our facility after more than a year, graduated from high\nschool and even went to college! Getting the individualized attention helped Josh change. He became a success\nstory of the juvenile justice system.\nWorking with youth takes patience, consistency, and compassion. It is one of the most difficult jobs there is, but\nit is possible to be a very positive influence in the lives of kids who need it the most. If you are interested in working\nwith youth, plan on committing to at least a year. Incarcerated kids are used to having people give up on them\nand disappoint them, so you do not want to add to their negative experiences. Show up, follow through, and be\noptimistic about a better future for justice-involved youth.\n\n412\n\n\x0c10.11. Juvenile Institutions\n\nALISON S. BURKE\n\nJust as the juvenile court has different practices, so too does the correctional side of the juvenile justice\nsystem. Since the aim of the juvenile justice system is rehabilitation, the treatment of youth is somewhat\ndifferent than the treatment of adults. For example, justice-involved youth can be sent to detention centers,\ngroup homes, boot or wilderness camps, residential treatment centers, long-term secure facilities, or other\ninstitutions.\nDetention: In the first stages of the justice system, the court must decide if it will detain the youth.\nIf a youth is detained, he/she is sent to a detention center, which is a short-term, secure facility. These\nare comparable to adult jails. Youth are often kept in detention facilities while waiting for disposition or\ntransfer to another location. The average length of stay is 2-3 weeks. Factors that increase the likelihood\nof detention include prior offenses, age at first offense and current age, and the severity of the current\noffense. Research also suggests that race, gender, and socioeconomic status also play a role in deciding\nwhether to detain a youth.\nGroup Homes: Group homes are long-term facilities where youth are allowed and encouraged\nto have extensive contact with the community. Youth attend regular school, hold jobs, take public\ntransportation, etc. In many group homes, youth learn independent living skills that prepare them for\nliving on their own. These are similar to adult halfway houses.\nBoot Camps and Wilderness Camps: Boot Camps are secure facilities that operate like military\nbasic training. They focus on drills, manual labor, and physical activity. They are often punitive and\noverly strict. Despite popular opinion, research shows that these are ineffective for preventing future\ndelinquency. The length of stay is generally for several weeks. On the other hand, ranch/wilderness\ncamps are actually prosocial and preventative. These are long term residential facilities that are nonrestrictive and are for youth who not require confinement. These include forestry camps and wilderness\nprograms.\nResidential Treatment Centers: RTCs are long term facilities that focus on individual treatment.\nThey include positive peer culture, behavior modification programming, and helping youth develop\nhealthy coping mechanisms. Many have specific targeted populations, such as kids with histories of\nsubstance abuse or issues with mental health. They are often considered medium security, and the\naverage stay is often six months to a year.\nLong-term Secure Facilities: Long term facilities are strict secure conferment. These include\n413\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\ntraining schools, reformatories, and juvenile correctional facilities. These facilities are often reserved\nfor youth who have committed serious offenses. They are similar to adult prisons but operate under a\ndifferent philosophy. For example, incarcerated youth are still required to attend school, which is within\nthe facility.\nDisproportionate Minority Contact: Considerable research on disproportionate minority contact\nhas been conducted over the past three decades. Disproportionate minority contact (DMC) \xe2\x80\x9coccurs\nwhen the proportion of youth of color who pass through the juvenile justice system exceeds the\n1\nproportion of youth of color in the general population.\xe2\x80\x9d It can be assessed at every stage of the juvenile\njustice system, from arrest to adjudication. Research shows minority youth are over-represented in\narrests, sentencing, waiver, and secure placement. States receiving federal grant money are required to\naddress DMC \xe2\x80\x9cregardless of whether those disparities were motivated by intentional discrimination or\n2\njustified by \xe2\x80\x98legitimate\xe2\x80\x99 agency interests.\xe2\x80\x9d\n\nIn the News: The Prison Pipeline\n6-year-old Zachery Christy, a first grader in Newark Delaware, was suspended for 45 days for bringing\na spork to school. The camping utensil, which contains a spoon, fork, knife, and bottle opener was a gift\nfor Cubs Scouts. The first grader brought the camping utensil to school although the \xe2\x80\x9cdangerous weapon\xe2\x80\x9d\nviolated zero tolerance rules at the school.\n\xe2\x80\x9cSpurred in part by the Columbine and Virginia Tech shootings, many school districts around the\ncountry adopted zero-tolerance policies on the possession of weapons on school grounds. More recently,\nthere has been growing debate over whether the policies have gone too far.\xe2\x80\x9d\n\n3\n\nZero Tolerance policies are strict adherence to regulations and bans to prevent undesirable behaviors.\nThe idea behind them is to promote student safety and to be fair and consistent with all children. The idea\nbehind them is to promote a one size fits all approach, so as to treat all children equally, however, research\nsuggests that minority youth are unfairly targeted by such practices, which counters the purposes of them.\nHowever, Zero Tolerance policies contribute to the school to prison pipeline. Children who interact\nwith law enforcement at earlier ages are more likely to end up in the criminal justice system.\nWhat was thought to remove discretion from school administrators in issues of discipline, actually results\nin African American students being more likely to be suspended or expelled than other students for the\nsame offenses? Additionally, the suspension or expulsion from school severs ties and harms the relationship\nyouth have with school, making it harder for the youth to return and engage.\nFor Zachary and his spork, it\xe2\x80\x99s more than breaking his attachment to school and his teachers. He fears\nbeing teased by the other students. If his parents choose not to home school him, he must spend the next\n45 days in the district\xe2\x80\x99s reform school.\n\n1. Short, J., & Sharp, C. (2005). Disproportionate minority contact in the juvenile justice system. Washington, DC: Child Welfare League of\nAmerica.\n2. (Johnson, 2007, p. 374).\n3. (Urbina, 2009, para 4).\n\n414\n\n\x0cIntroduction to the American Criminal Justice System\n\nAn in-depth look at zero tolerance policies.\nhttps://sites.duke.edu/education303final/an-in-depth-look-at-zero-tolerance-policies-and-racial-biases/\n4\n\nConclusion\nThe juvenile court has its own philosophy, the court system, and correctional institutions that differ\nfrom the adult criminal justice system. The major difference between the juvenile justice system and the\nadult system is its focus on rehabilitation. The juvenile justice system uses private, informal hearings, and\nindividualized justice to act in the best interest of the delinquent youth.\nThe past century has witnessed a marked change in the way the law deals with youth. From the inception\nof the juvenile justice system in 1899 to the ruling of Mongomery v Louisiana in 2016, the pendulum of\njuvenile justice swings from a parens patriae model of protection of youth to juvenile waiver, fear of youth\ncrime, and punishment, back to incorporating brain research in assessing rehabilitation. The juvenile justice\nsystem was designed to treat juveniles differently from adults and take their unique needs and circumstances\ninto consideration. Youth are malleable and can change their trajectories with the right treatment and\nintervention at the right time.\n\n4. Urbina, I. (2009, Oct. 1). It\xe2\x80\x99s a fork, it\xe2\x80\x99s a spoon, it\xe2\x80\x99s a\xe2\x80\xa6.weapon? The New York Times. https://www.nytimes.com/2009/10/12/\neducation/12discipline.html\n\n415\n\n\x0c\x0cAcquit: Absolve a person legally from an accusation of criminal guilt\nActus reus: Criminal act\nAdjudication: Term for \xe2\x80\x9ctrial\xe2\x80\x9d in juvenile proceedings\nAgenda setting: The way the media draw the public\xe2\x80\x99s eye to a specific topic\nAggravating factors: Circumstance accompanying the commission of the crime that increases its\nseriousness\nAmicus curiae brief: This brief is filed by interested persons or organizations who are not parties to the\nsuit in order to educate or persuade the court\nAugust Vollmer: Pioneer for police professionalism\nBanishment: The sending away, by court order, of an individual from a community\nBills of attainder: Laws that are directed at named individual or group of individuals and has the effect of\ndeclaring them guilty without a trial\nBridewell: An early form of a jail. Bridewells and workhouses were synonymous with work output from\nthe inhabitants, during a stent of servitude.\nCapital offenses: Crimes punishable by the death penalty\nCase law: Body of law made up of judicial rulings that are potentially binding on the current controversy\nCelerity: Swiftness, how quickly is someone to be punished if they commit a crime\n\nCertainty: The likelihood that an outcome will occur (how certain is someone to be caught if they\ncommit a crime)\nChild-saving movement: Emerged in an effort to change the way the state was dealing with dependent,\nneglected, and delinquent children\nCivil forfeiture: Taking of property used in or obtained through unlawful activities through a civil\nlawsuit\nCivil wrong: Private lawsuit brought to enforce private rights and to remedy violations of private rights\nCivilian law enforcement employees: An employee who has not been through police training and does\nnot have arresting powers\nCollective incapacitation: Incarceration of large groups of individuals to remove their ability to commit\ncrimes (in society) for a set amount of time in the future\nCommissioned law enforcement employees: An employee that has been through police training is\ncertified as a police officer and has arresting powers in the state\nCommunity era: Police and communities began to work together\nConcurrence: Requirement that the actus reus (criminal act) joins with the mens rea (criminal intent) to\nproduce criminal conduct.\n417\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nConflict view: Society is a collection of diverse groups and the creation of laws is unequal\nConsensus view: Implies consensus among citizens on what should and should not be illegal\nCorporal punishment: Physical punishment\nCost-benefit evaluations: Seeks to determine if the costs of a policy are justified by the benefits accrued\nCrime control model: An efficient system with the most important function being to suppress and\ncontrol crime to ensure that society is safe and there is public order\nCrime prevention: Any action designed to reduce the actual level of crime and/or the perceived fear of\ncrime\nCrime: The violation of the laws of a society by a person or a group of people who are subject to the laws\nof that society\nCriminal justice system: A major social institution that is tasked with controlling crime in various ways\nCriminal wrongs: Act (or failure to act) that violates norms of a community that is prescribed by some\npenal law (statute, code, common law) and is punishable by some term of confinement; offense against the\nlaw of the state.\nCriminalized act: When a deviant act becomes criminal and law is written, with defined sanctions, that\ncan be enforced by the criminal justice system\nCriminogenic needs: Are items that when changed, can lower an individual\xe2\x80\x99s risk of offending. They\ninclude items like prior criminal history, antisocial attitudes, antisocial (pro-criminal) friends, a lack of\neducation, family or marital problems, a lack of job stability, substance abuse, and personality characteristics\n(mental health and antisocial personality)\nCritical stages: Any step in the criminal justice process that is so important to a just outcome that the\nSupreme Court has attached to it specific due process rights\nDark figure of crime: Crimes that the police are not aware of\nDe novo review: A trial de novo is a complete retrial of a case, usually before a higher court, which\nnegates the initial tribunal\xe2\x80\x99s decision\nDelinquent: Term for \xe2\x80\x9ccriminal\xe2\x80\x9d or \xe2\x80\x9cguilty\xe2\x80\x9d for juvenile proceedings\nDeterrence: A philosophical underpinning or punishment ideology that is \xe2\x80\x9cthe reduction of offending\n(and future offending) through the sanction or threat of sanction.\xe2\x80\x9d It can be divided into general deterrence\nand specific deterrence.\nDeviance: Behavior that departs from the social norm\nDirect supervision: No barriers between the inmates and the staff\nDiscretionary waiver: Allows a judge to transfer a juvenile from juvenile court to adult criminal court\nDisposition: Term for \xe2\x80\x9csentence\xe2\x80\x9d for juvenile proceedings\nDisproportionate minority contact: Occurs when the proportion of youth of color who pass through\nthe juvenile justice system exceeds the proportion of youth of color in the general population\nDiversion: Generally, a contract between the prosecutor and the defendant in which the defendant agrees\nto perform certain conditions, the successful completion of which results in a dismissal of the case or charges\nDue process model: Focuses on having a just and fair criminal justice system for all and a system that does\nnot infringe upon constitutional rights\nDue process: Procedural rights established in the Constitution, especially in the Bill of Rights\nEnumerated power: Powers of Congress specifically named or designated in the Constitution\nEthics: The understanding of what constitutes good or bad behavior and helps guide our behaviors\n418\n\n\x0cIntroduction to the American Criminal Justice System\n\nEvidence-based practices: Utilize the scientific method to assess the effectiveness of interventions,\npolicies, and programs\nEx Parte Crouse\nCrouse: Case where the court declared that failed parents lose their rights to raise their children\nEx post facto laws: Laws that make an act criminal after it is committed. Article I Sec. 9 of the U.S.\nConstitution prohibits Congress from enacting criminal laws that apply retroactively.\nFear of crime: The anxiety or fear that is produced by the perception that one will become a victim to\ncrime or criminals\nFelony: Serious crime that is generally punishable by one year or more in prison or by capital punishment\n(death penalty)\nFolk devils: The people who are blamed for being allegedly responsible for the threat to society\nFolkways: Behaviors that are learned and shared by a social group\nFraming: A type of agenda setting in a prepackaged way\nFree will: The ability to make choices about their future actions, like choosing when to offend and not\noffend\nGeneral deterrence: Deterrence (sanction or threat of a sanction) that is geared the general reduction of\ncommitting future crimes for all, not someone specifically. It is meant to teach all a lesson\nGrass eaters: Police officers who accept benefits\nHedonism: The assumption that people will see maximum pleasure and avoid pain, or punishment\nHedonistic calculus: The desire for pleasurable items or outcomes, over painful ones\nHomeland security era: Focused concentration of its resources into crime control enforcement of laws\nin order to expose potential threats and gather intelligence\nHouse of Refuge: An urban establishment used to corral youth who were roaming the street unsupervised\nor who have been referred by the courts\nHulks: Large ships that would transport criminals (usually people that were banished) to a far away\nlocation\nImmigration: The internal migration of people and the external movement of people from other\ncountries\nImpact evaluations: Focuses on what changes after the introduction of the crime policy\nImplied power: Authority not expressly conferred by a principal upon an agent, but arising out of the\nlanguage or course of conduct of the principal toward the agent.\nIncapacitation: The removal of an individual (from society), for a set amount of time, so as they cannot\ncommit crimes (in society) for an amount of time in the future\nInchoate crimes: Parital crime, i.e: attempt\nIndirect supervision: A barrier of glass, or other separation, in a common area\nIndustrialization: The shift in work from agricultural jobs to more manufacturing work\nInfractions: Minor criminal offense, which is generally punishable by only a monetary sanction\nInteractionist view: The definition of crime reflects the preferences and opinions of people who hold\nsocial power in a particular legal jurisdiction\nJail: A facility used for individuals who are in the custody of a legal arm of a state (or subsidiary)\nJudicial review: Review of a legislative, judicial, or executive branch action or law by the courts to see if\nit complies with the constitution\nJudicial waiver: Affords the juvenile court judge the authority to transfer a case to adult criminal court\n419\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nJurisdiction: Authority of a court to hear and decide a particular case\nKin policing: A tribe or clan police their own tribe\nLaws: Form of social control that outlines rules, habits, and customs a society uses to enforce conformity\nto its norms\nLegislative waiver: Identifies certain offenses which have been mandated by state law to be excluded from\njuvenile court jurisdiction, also known as statutory waiver\nLex talionis\ntalionis: The term for \xe2\x80\x9claw of talion\xe2\x80\x9d or law of retaliation. It prescribes that the punishments should fit\nthe crime committed (proportional)\nMala in se: Crime is inherently evil or bad\nMala prohibita: Act is criminal because it is prohibited, not necessarily evil\nMandatory waiver: A juvenile judge must automatically transfer to adult court juvenile offenders who\nmeet certain criteria, such as age and current offense\nMeat eaters: Police officers that expect some tangible item personally from those served in order to do\ntheir job\nMens rea\nrea: The knowledge or intent of wrongdoing\nMisdemeanor: Minor crimes for which the penalty is usually less than one year in jail or a fine.\nMitigating factors: Circumstances or factors that tend to lessen culpability.\nMoral panic: A situation in which public fears and state interventions greatly exceed the objective threat\nposed to society by a particular individual or group who is/are claimed to be responsible for creating the\nthreat\nMoral wrong: Category of criminal conduct intended to protect the family and social institutions\nMores: Norms of morality, or right and wrong\nNarratives: The story that is told\nNew generation jails: Podular, Design of a jail or facility where the doors face an interior day use or\ncommon area, making the cells visible to a jail deputy from one location\nNoble-cause: The goal that most officers have to make the world a better and safer place to live\nOffense: Act committed or omitted in violation of law forbidding or commanding\nOfficial statistics: Represent the total number of crimes reported to the police or the number of arrests\nmade by that agency\nOlder generation jails: Linear, Design of a jail or facility that is basically a long corridor\nwith cell doors facing the hallway/corridor\nParens patriae: The king is responsible for and in charge of everything involving youth\nPetition: Term for \xe2\x80\x9cindictment\xe2\x80\x9d for juvenile proceedings\nPlain error: The rule applies to errors that are obvious, that affect substantial rights of the\naccused, and that, if uncorrected, will seriously affect the fairness, integrity, or public reputation of judicial\nproceedings\nPolice power: Power of a government to legislate to protect public health, safety, welfare and morality\nPolitical era: First era of policing in the United States marked by the industrial revolution, the\nabolishment of slavery, and the formation of large cities\nPositivism: The use of empirical evidence through scientific inquiry to improve society\nPresumptive sentences: Sentencing structure under which a particular sentence is presumed to be typical\nfor a particular offense\n420\n\n\x0cIntroduction to the American Criminal Justice System\n\nPresumptive waiver: Juvenile has the burden of proof that they should remain in juvenile court\nPrinciple of orality: Principle in law that only evidence developed and presented during the course of a\ntrial may be considered by the jurors during deliberation\nPro se: Acting as one\xe2\x80\x99s own defense attorney in a criminal proceeding; representing oneself without\nretaining an attorney\nProcess evaluations: Considers the implementation of a policy or program and involve determining the\nprocedure used to implement the policy\nProsecutorial waiver: The legislature grants a prosecutor the discretion to determine in which court to\nfile charges against the juvenile\nPunishment ideology: A belief structure about how and how severe a person should be punished\nRational: Ability to see and make choices that a normal person could see and make\nRecidivism: The reoffending of someone that has been convicted of a crime. This can come in the form\nof re-arrest, a new charge, a new conviction (for a felony or misdemeanor), or the re-commitment of a\noffender into an institution\nReform era: Start of diversity in policing\nReform schools: Housing used to hold delinquent and dependent children\nRehabilitation: Changing of offenders behaviors, so that they are not committing crimes in the future\nRetribution: A philosophical underpinning or punishment ideology that is geared toward \xe2\x80\x9ca balance for\npast harm.\xe2\x80\x9d It is the only backward-looking punishment ideology.\nRule of law: Principle that the law, and not one person or group of persons, is the highest authority\nRule of lenity: Principle that when judges apply a criminal statute they must follow the clear letter of the\nstatute and resolve all ambiguities in favor of the defendant (and against the application of the statute)\nSelective incapacitation: Targeting specific individuals (with longer sentences) to remove their ability to\ncommit crimes (in society) for longer periods of time\nSelf-reported statistics: Individuals report the number of times they have committed a particular crime\nduring a set period of time\nSeverity: The level or punitiveness of a punishment. Prison is more severe than probation\nSir Robert Peel: Father of modern policing, created the first British police force\nSocial disorganization: The inability of social institutions to control an individual\xe2\x80\x99s behavior\nSpecific deterrence: Deterrence (sanction or threat of a sanction) that is geared toward an individual,\ndesigned to keep that person specifically from committing future crimes\nStare decisis: Body of law made up of judicial rulings that are potentially binding on the current\ncontroversy\nStatus offenses: Offenses that are only illegal because of the age of the offender\nStrain theories: People commit crime because of strain, stress, or pressure\nStrict liability crime: Criminal liability based only on the commission of a prohibited act. The state does\nnot have to prove the defendant had any particular mens rea.\nSuperpredator: Youth so impulsively violent, remorseless, and have no respect for human life\nTaboo: Very negative norm that upsets people\nTheory: An explanation to make sense of our observations about the world\nUrban cohorts: Men from the Praetorian Guard (Augustus\xe2\x80\x99 army), charged with ensuring peace in the\ncity\n421\n\n\x0cALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL\nSANCHEZ\n\nUrbanization: Cities increasing in population\nVictimization studies: Ask people if they have been a victim of crime in a given yet\nVigils: People under the ruling of Augustus who were charged with fighting crime and fires\nWorkhouse: An early form of a jail. Workhouses and bridewells were synonymous with work output\nfrom the inhabitants, during a stent of servitude.\nWrit of certiorari: Writ issued by the higher court agreeing to review a case\nWrit of habeas corpus: Remedy sought by a person requesting release from an allegedly illegal or\nunconstitutional confinement\n\n422\n\n\x0c'