Week 3 Discussion: The Judiciary: Structure, Jurisdiction, Pretrial, Bail, Plea Bargaining, and Trial

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The Courts 6

6.1 Introduction

6.2 The Structure of the Court System

The Federal System The State System

6.3 The Courtroom Work Group

6.4 Pretrail, Bail, Plea Bargaining, and Trial

Booking Preliminary Hearings Grand Jury Arraignment

Learning Objectives

After reading this chapter, you should be able to:

Understand the structure and function of the federal, state and local court system

Identify the key actors in the courtroom and understand their importance and specific functions

Identify the steps in the criminal justice system

Understand the structure, functions, limitations, and key actors in the criminal justice court systems and how they interact with one another

Chapter Outline

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The Judge The Prosecutor The Defense Attorney

Plea Bargaining The Criminal Trial

6.5 Chapter Summary

Critical Thinking Questions

Key Terms

Web Links

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Richard Jewell, a former security guard who was erroneously linked to the 1996 Olympic bombing, is questioned by the media as he returns to his Atlanta apartment.

Stop and Think 6.1

What would be the possible consequences if powerful lawmakers could force the judiciary to bring charges against individuals suspected of violating the law? How do these possible consequences illustrate the importance of maintaining an independent judiciary?

6.1 Introduction Richard Jewell was working as a security guard during the 1996 Summer Olympics held in Atlanta. He was walking through Centennial Park when he discovered a suspicious package lying on the ground. He immediately notified the police and began evacuating individuals from the area, including individuals inside a nearby building. The package contained three pipe bombs weighing in at 40 pounds. The bombs were surrounded by nails.

At 1:20 in the morning the pipe bombs exploded, sending nails in all directions. One person was killed at once and another 111 were injured. Almost immediately, Richard Jewell was hailed as a hero for saving the lives of innocent spectators. Yet within hours, the FBI had labeled Jewell as a "person of interest" in the crime. That began a media frenzy which essentially convicted Jewell of the crime in the public's eyes. Numerous media sources, for example, reported that Jewell fit an FBI profile of a lone bomber, largely because he lived at home with his mother and aspired to be a police officer.

While Jewell was never arrested, his life was turned upside down by the intense media coverage. Every part of his life was publicly dissected; rumors and speculation were fueled by the constant media speculation. The FBI executed a search warrant and confiscated his weapons as well as, among other things, his collection of Disney movies. Everywhere Jewell went, he was followed by the media and an army of FBI agents. Eventually, however, it became clear that Jewell was not involved in the bombing and that his actions had indeed saved the lives of many. Ten years after the incident, the governor of Georgia at the time, Sonny Perdue, held a ceremony publicly thanking Jewell for what he had done. Jewell, however, never fully recovered emotionally or psychologically from the years of scrutiny.

Jewell was never arrested for a crime, nor was he ever formally charged. His tragic case highlights the dramatic impact that merely being suspected of a crime can have on a person's life. While this case was widely publicized, the same process plays out on a much smaller scale every day throughout the United States. For many people, the mere accusation of having violated the law can generate a host of emotional, financial, and professional consequences. Reputations can be lost, careers destroyed, families torn apart, and life savings consumed merely by being listed as a "person of interest" in a crime. Arrest and prosecution can generate much greater collateral consequences.

Few things in life are as serious as being accused of a crime, especially a serious crime or a sex-based offense. The Framers of the Constitution understood this, and they understood that a court system controlled by the government could not be relied on to be fair in its rulings or consistent in the application of law. For these reasons, the Framers created an independent judiciary—that is, a judiciary that was not subject to the

political will of those in power. The president of the United States, members of Congress, elected officials, and even local police officers lack the legal ability to directly influence the decisions of judicial officers. They cannot compel prosecutors to charge citizens with crimes, force judges to find a defendant factually guilty, influence appeals decisions, or prevent the Supreme Court of the United States from invalidating a law. It is an independent judiciary, as the quotation from Amistad, above, conveys, which protects the rights of the accused.

What happened to Richard Jewell was tragic, but in the end the system worked. A man was not arrested, charged, or convicted of a crime for which there was no evidence of his guilt. Without an independent judiciary, Mr. Jewell and thousands of others like him could easily find themselves deprived of their livelihoods and freedom. Mr. Jewell was entirely cleared when the real bomber, Eric Robert Rudolph, confessed to several bombings in his campaign of terror.

In this chapter, we will examine the American judiciary. We will examine the structure of the American court system, with a focus on the responsibilities of each jurisdiction. We will examine the roles of each member of the court, including the prosecutor, the judge, the jury, and the defense attorneys. Moreover, we will examine what social scientists have found about how the judiciary works—that is, how courts across the country operate in a day-to-day fashion, how cases are processed, how individuals are adjudicated, how appeals are managed, and how laws get overturned by the courts. As you will see, the judiciary serves many important functions in our criminal justice system and our society. Perhaps no other part of the American system of justice is as multifaceted, as insolated, and as powerful as the court system.

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Trial courts are the first courts to hear a case.

6.2 The Structure of the Court System The American court system, like much of the rest of the criminal justice system, operates at different levels. There are 51 separate court systems in the United States. The federal government operates a court system, as do each of the 50 states. Each court system (state and federal) comprises different types of courts.

At the first level are trial courts. These courts are responsible for:

Arraigning a defendant

Impaneling a jury

Hearing and evaluating evidence

Determining the facts

Pronouncing judgment

Imposing a sentence

Trial courts are the first courts to hear a case, and their decisions usually affect only those involved in the case. Trial courts are "finders of fact," which makes them different from other courts.

At the second level are appellate, or appeals courts. These courts hear cases after a trial court has ruled on them. In general, individuals found guilty of a crime are allowed to appeal their conviction. However, appeals are built on matters of law and of procedural safeguards—they are not built on matters of fact. In other words, appeals courts make sure that the defendant received a fair trial and that the law was followed in convicting the individual. Appeals courts assume that the facts of a case have been established by the court. They ensure that the facts of the case were found fairly and by following legal standards. Appeals courts focus on attorneys and the process—that is, they do not weigh evidence but instead weigh matters of law and procedural justice. Unlike trial courts, where a single judge is responsible for the court, appeals courts are usually staffed by panels of judges.

Finally, the third level is the supreme courts. Each state has a supreme court, as does the federal system. The federal U.S. Supreme Court is the highest court in the land and is also known as the court of last resort. State supreme courts do not hear new evidence and do not conduct new trials. Similar to appellate courts, they examine legal issues involved in specific criminal cases, and they have the power to order new trials in situations where the errors of lower courts were so significant that the defendant may not have received a fair trial. State supreme courts also rule on the constitutionality of state laws and have the power to overturn or invalidate laws found to be unconstitutional. The U.S. Supreme Court also has the power to overturn laws created by Congress or by any state.

An important concept in understanding the American court system is jurisdiction, which is the statutory authority of a court to hear a case. Courts in Alabama, for instance, do not have jurisdiction to hear cases originating in Minnesota. Similarly, appellate courts do not have the jurisdiction to act as trial courts, and no court has jurisdiction over the U.S. Supreme Court. At the state level, trial court jurisdiction often extends to criminal cases and depends on the location where the violation of law occurred. This location is also known as venue. The venue of a trial can be changed when there is a substantial likelihood that a defendant would not receive a fair trial where the crime took place. A court may approve a change of venue under these circumstances as long as the jurisdiction remains within the state. Defendants can also request a change of venue.

The Federal System

The Constitution established the U.S. Supreme Court as a coequal branch of the federal government. Federal courts have jurisdiction when federal laws are violated. Trial courts in the federal system are known as U.S. district courts. These courts are responsible for determining facts of alleged violations of the federal law. There are 94 district courts in all, 89 in the United States and the rest in U.S. territories and Washington, DC. Most states have at least one federal district court, while others, such as California, have more.

There are 678 U.S. district court judges. Judges are nominated by the president and are then confirmed by the Senate. Once confirmed, they are essentially allowed to serve on the bench for life. This type of job protection is thought to encourage judicial independence and to help isolate judges from the political forces that could influence their decision making.

Figure 6.1: Geographical Boundaries of United States Courts of Appeals and United States District Courts Each circuit spans one or more states.

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The Supreme Court has jurisdiction over federal cases, state disputes, and issues involving federal and constitutional law.

U.S. Department of Justice

Federal district courts handle a limited range of criminal cases. In 2011, district courts processed 103,274 criminal cases. Most criminal cases handled by the federal system are drug offenses (30,728 in 2011), immigration offenses (29,530), and theft and fraud offenses. While important, these numbers are small in comparison to the 20 million criminal cases processed by the states in 2009.

Appellate courts in the federal system are known as U.S. courts of appeals, or U.S. circuit courts. There are 13 circuits, with each circuit spanning one or more states. The Sixth Circuit Court of Appeals, for example, spans Tennessee, Kentucky, Ohio, and Michigan, while the Seventh Circuit Court spans Illinois and Wisconsin. Appeals court judges are nominated by the president and confirmed by the Senate. There are 179 federal appeals court judges. Each circuit has between 6 and 29 judges to handle the caseload.

Circuits handle appeals from individuals convicted by district courts within the circuit. In 2011, a total of 55,753 appeals were lodged with the federal appeals courts. Of these, 12,377 were appeals related to a federal criminal conviction, and almost 15,000 were from prisoners—meaning that petitions from prisoners constitutes almost half of all federal criminal appellate cases.

The Supreme Court

The Supreme Court of the United States is the most powerful court in the nation. It has jurisdiction over all federal cases, disputes between states, and all matters of federal and constitutional law. For the court to hear a case, however, a federal question has to be involved or a question regarding the applicability of the Constitution. Supreme Court decisions have affected every part of the criminal justice system, from the rights extended to criminal defendants, to the limits placed on police, to how evidence can be collected. These decisions become precedent, or guiding legal doctrine, that all other courts have to follow.

For the most part, the Supreme Court is an appellate court and reviews cases from federal circuit courts and from state supreme courts. Under very rare circumstances, the court can act as a trial court—for example, when states have disputes with the federal government. Again, these cases are exceedingly rare. The vast majority of cases managed by the court are appellate cases from lower courts. Each year, the court receives over 10,000 appellate requests. It grants review in about 100 of these cases and issues full opinions on 80 to 90 of them. Thus the likelihood of a case making it to the Supreme Court is rather small.

It would be impossible for the nine justices that compose the Supreme Court to hear every appellate request. Instead, the court selects cases for review through what is known as a writ of certiorari. The writ grants a review of a case settled by a state supreme court or by a federal circuit court. The writ is essentially a command for a lower court to provide the Supreme Court with the records of the case. For a writ to be granted, four justices have to vote to approve it. This is known as the rule of four. In general, the court looks for cases that involve unsettled law or important constitutional or legal questions or that provide an opportunity to clarify the meaning of a law. The actual facts of the case usually matter less than the broader legal and constitutional issues involved.

Once a case is chosen for review, the justices take time to research the legal issues involved. They then listen to oral arguments from the attorneys, read the legal briefs submitted by the attorneys, and eventually vote on the matter in a case conference. A simple majority (more than half) wins the vote. Once the vote is

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complete, majority and dissenting opinions are crafted and the decision is published.

Advocating for Justice Finding purpose on the job can be difficult to find. But in a career of defense, protecting clients on trial is a tangible way attorneys contribute to society.

Things to Consider:

Why does Jessica enjoy her job?

Who are her heroes?

How does Jessica see her role as providing a "check" on injustice?

The Supreme Court is composed of eight associate justices and one chief justice. Each justice is nominated by the president of the United States and is confirmed by the Senate. Given the importance and power that comes from a lifelong position on the Supreme Court, public nomination hearings are held. Most of the time nominations are confirmed.

The State System

States are home to a diverse number and arraignment types of courts. While each state has a criminal court system, embedded in most states are any number of local, city, and county courts. These courts are typically funded by local or county governments, and they can hear a wide range of cases.

State trial courts can be defined by their jurisdiction. Courts of general jurisdiction, for example, differ from courts of limited jurisdiction. Courts of limited jurisdiction—also known as inferior courts, lower courts, or municipal courts—hear only certain types of cases. Many, for example, hear misdemeanor crimes, traffic cases, and cases that involve infractions of local laws. Limited jurisdiction courts also include specialized courts, such as mental health courts, family courts, and drug courts. Moreover, they are usually charged with arraigning defendants and conducting preliminary and bail hearings for cases that may be transferred to general jurisdiction courts. As you can see, limited jurisdiction courts manage many of the day-to-day problems that arise in the United States. Data from the National Association of State Courts (2012) show that slightly over 13,500 limited jurisdiction courts handle over 70 million cases a year, the majority of which are traffic cases. This represents an increase of about 10 percent since 2000 but only about a 1 percent change in the rate of cases per 100,000 residents. Limited jurisdiction courts handled 66 percent of all court cases in 2009. Of these cases, 43 percent were traffic violations while only 14 percent were violations of the criminal law.

Figure 6.2: Court Hierarchy The different levels of courts have different jurisdictions.

Courts of general jurisdiction—also known as superior courts, district courts, or circuit courts—are tasked with handling relatively severe felony criminal cases, although a general jurisdiction court can usually hear any felony case. General jurisdiction courts can also review cases from limited jurisdiction courts. In 2009, there were about 2,000 of these courts in the United States. These courts handled 17 percent of the total 106 million cases heard by state courts. Of these cases, 3.8 million were for criminal cases not involving traffic offenses. The number of criminal cases handled by these courts has risen 6 percent since 2000. However, the rate of criminal cases (per 100,000) heard by courts of general jurisdiction has declined by 7 percent since 2006.

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Stop and Think 6.2

Suppose that in order to save money, Congress passed a law creating a single U.S. court. What would be some of the potential consequences of such an act? What would be some of the benefits?

State appellate courts also take a variety of names, but they all have one overriding purpose: to ensure that defendants have received fair trials. As a reminder, appellate courts do not generally examine matters of fact but instead examine matters of law. Every defendant is entitled to a fair trial. However, each trial brings with it a unique set of circumstances. Recognizing this, appeals courts try to make certain the convicted person's trial was fair, not perfect. The vast majority of appeals are turned down by appeals courts. An appeals court can affirm the decision of the lower court or it can reverse the decision. In rare instances, an appeals court can order a new trial.

Figure 6.3: 2011 Statistics of the Minnesota Court System Salaries and types of cases of Minnesota's Supreme Court, Court of Appeals, and the District Court.

Sixty-three percent of all appeals are appeals by right, where the legislature has guaranteed a convicted person the right to an appeal. Appeals courts must hear these cases. Appeals by permission, where a convicted person asks an appellate court for review, account for only 21 percent of all cases. Death penalty cases constitute less than 1 percent of all appeals and are usually automatic upon conviction.

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6.3 The Courtroom Work Group Across the United States, courts work daily to manage a wide range of criminal cases. Managing a large number of criminal cases, with all the legal complexities tied to each case, is no small task. To coordinate these efforts requires a system where all the people involved in the system know the formal and informal rules and work collaboratively to process cases. Collectively, the various actors within the courtroom are known as the courtroom work group (Eisenstein & Jacob, 1977).

The primary task of any courtroom work group is to process cases. Obviously this requires cooperation between all the actors and an implicit agreement on how best to manage the workload. This image of the cooperative courtroom is very different from what the public commonly assumes and what our adversarial system advances. People are sometimes shocked to see exactly how most courts in America actually operate. It is not uncommon to see large groups of people being called into court all at once and processed. Defense attorneys may see their clients for a few minutes before they are called by the prosecutor. In most jurisdictions, justice looks very much like an assembly line. For the most part, the criminal trials you see on television are not at all representative of how the court system works most of the time.

Assembly-line justice is the rule in lower courts. This is especially true in traffic courts and other courts of limited jurisdiction, especially those in larger municipalities. Given the high number of arrests, about 14 million per year, many courts face staggering caseloads (LaFountain et al., 2011). The large number of cases that need to be processed influences conditions inside America's courts, where expediency and efficiency in case processing become priorities. Without these priorities, the American court system would collapse under the weight of all the cases it has to process. The courtroom work group helps to move cases through the system because the actors share the same values of cooperation and efficiency, they take steps to minimize conflict, and they share in the decision-making process.

Courts across America process cases daily. This means that courts have substantial experience in processing normal crime, or categories of crimes that the courts see on a regular basis. While the facts about each case may be somewhat unique, they also share many commonalities. Courtroom work groups may thus see all robberies as pretty much the same, and similarly, they may see all minor assaults the same, unless there were specific circumstances surrounding the case, such as if someone was seriously harmed. Some crimes, however, are not as frequent and/or the circumstances stand out. These crimes may be processed differently by the work group.

The presence of a courtroom work group does not mean that our system of justice always reflects an assembly line. When trials take place, they are usually well- managed events. More importantly, when trials take place, the standard practices and priorities of the work group may change, especially in trials of serious crimes. In these rather limited instances, the more traditional adversarial system operates.

So who are the actors in American courtrooms? In the next few sections we examine the roles of each judicial actor.

Careers in Criminal Justice: Criminal Defense Attorney

The world of private criminal defense.

Things to Consider:

Would you have any issues engaging clients in prison as their attorney?

Did the job of criminal attorney meet your expectations and is this a position you would be interested in pursuing?

The Judge

The judge is the primary officer of the court who is responsible for protecting the rights of a defendant and, at the same time, listening attentively to the state's allegations of criminal offenses. Judges make decisions about various aspects of trials, including making rules on legal issues, managing legal objections, ruling on the admissibility of evidence, and providing juries with instructions. Judges keep order in their courtrooms and generally do not allow either the prosecutor or the defense attorney to step outside their roles in ways that would compromise the legitimacy of the court.

Judges have unique personalities and particular ways in which they want trials to be conducted. Some judges, for example, are known to be very strict in what they will allow in court, while others are known to allow attorneys greater latitude in how they work. The point is that judges often vary in unique ways, so the operations of their courts vary. Nonetheless, the central job of the trial court judge is to make certain that the trial follows procedural rules and is fair.

Appellate judges have a different role. Because appeals courts are interested primarily in matters of law, they rarely challenge evidence or trial court findings of fact. That said, appellate judges examine the decisions of trial court judges with an eye to making sure that the process was fair and free of any procedural or substantive errors.

Judges in general jurisdiction courts and in appellate courts are almost always licensed practicing lawyers. The same is not always true in limited jurisdiction courts, where judges do not always have to hold law degrees or even have any knowledge of the law. Most of these types of judges handle traffic cases or minor disputes.

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Judges have many roles in the court room, including: ruling on legal issues, managing objections, evaluating evidence, giving juries instructions, and maintaining order.

Judges are sometimes appointed to the bench by political leaders, sometimes they must win an election, and sometimes they must meet special standards. Judges in the federal system are appointed by the president and confirmed by the Senate. At the state level, governors sometimes have the right to appoint judges within the state. Other times, however, a judge must win an open election to become a judge or to continue serving as a judge. Both of these mechanisms often invite politics to influence judicial selection. Because of this, some states have adopted a plan put forth by the Missouri Bar, known as the Missouri Plan. It requires judicial candidates to undergo a vetting process by a judicial committee. Once they have been vetted, a governor then advances their names for appointment. After judges have served their time, they may run unopposed for reelection. The public then can either elect the judge or request that another judge be nominated.

The Prosecutor

The prosecutor is the representative of the state and wields tremendous power. At the state level, prosecutors are almost always elected for a period of 4 years. There are about 2,300 prosecutors throughout the United States and over 25,000 assistant district attorneys. Assistant district attorneys are hired by prosecutors to help prosecute cases. They can work full time or, in many jurisdictions, part time.

At the federal level, prosecutors are known as U.S. attorneys. They are appointed by the president and confirmed by the Senate. Their period of service is typically 4 years. There are currently 93 U.S. attorneys.

Prosecutors hold law degrees, are practicing attorneys, and belong to the bar association of their state. Their job is to uphold the law by pressing criminal charges in cases where they believe a crime has occurred, the evidence points to an individual's guilt, and they believe they can sustain a conviction. At trial, a prosecutor will submit evidence of a defendant's guilt, cross-examine defense witnesses, and argue that the criminal defendant is factually guilty. Upon a defendant's conviction, the prosecutor will recommend a sentence to the judge.

In many jurisdictions, prosecutors also advise police departments on matters of law. This is not true in every jurisdiction, but it is not uncommon for prosecutors to help police departments build solid criminal cases against defendants. However, situations sometimes develop where prosecutors have to bring criminal charges against police officers. This may include officers they have worked with extensively in the past. Because of the possible close connection between prosecutors' offices and police departments, special prosecutors may be brought in to investigate cases where an appearance of impropriety would be given if the local prosecutor's office examined the case. The same process is used when assistant prosecutors and even judges are charged with crimes.

Prosecutors wield tremendous power in the criminal justice system largely because they have wide latitude in whether criminal charges will be filed against an individual as well as the type and level of charges to be filed. This is known as prosecutorial discretion and it is critically important to the administration of justice. Prosecutorial discretion allows prosecutors the ability to weigh unique aspects of each case, such as whether or not a defendant admitted guilt, accepted responsibility, or showed remorse. Similarly, discretion allows prosecutors to tailor the charges to each defendant. In serious crimes, for example, prosecutors may file criminal charges that include aggravating circumstances. Recent legislative restrictions have been placed on judges and their ability to impose criminal sentences. This has given even more authority to the prosecutor. When sentencing guidelines are used, the criminal charge carries significantly more weight in the final sentence.

The power to charge another with a crime is substantial. It is a power that has to be entrusted to a person who understands his or her ethical and legal responsibilities and is committed to fairness and due process of law. Unfortunately some prosecutors abuse their discretion. When they do, the consequences can be far-reaching and even life-altering. For example, in 2003, federal prosecutors began investigating allegations of corruption in Alaska. In 2008, prosecutors secured a jury conviction against Republican Senator Ted Stevenson for taking over $250,000 in illegal gifts and contributions. Immediately after his conviction, Stevens, who had served in the Senate longer than any other Republican, lost his bid for reelection. However, only 5 months after Stevens was convicted of public corruption, the Department of Justice under Attorney General Eric Holder, Jr., announced that it would seek to vacate Steven's conviction. A federal judge, Emmett Sullivan, then took the unusual step of ordering an investigation into the federal prosecutor's behavior. After almost 2½ years, the investigative report found that federal prosecutors had, on multiple occasions, hidden evidence, known as exculpatory evidence, that could have supported Stevens's claims of innocence; it was also found that they had allowed a prosecutorial witness to give false information to a jury. In other cases, however, innocent people have been convicted and guilty people have been allowed to walk free because of the unethical actions of some prosecutors.

Despite that, most prosecutors are ethical, hard-working public servants. They prosecute cases based only on the law, and they pursue justice in a way that seeks to respect the rights of defendants. Because of the power they hold, however, prosecutors have to abide by special ethical rules that, if violated, can lead to disbarment. They cannot withhold evidence from a defense attorney, allow a witness to knowingly lie to a court, or argue for guilt when they know the defendant is not guilty. Even so, as a general rule, prosecutors enjoy immunity from prosecution when they violate these rules.

The Defense Attorney

The Sixth Amendment to the Constitution guarantees each defendant access to a qualified defense attorney. However, it was not until Gideon v. Wainwright (1963) that the U.S. Supreme Court ruled that state courts had to provide defense attorneys to indigent clients. Prior to this, the Supreme Court had interpreted the Sixth Amendment to mean that states could not bar defendants from using a defense attorney. Over time, the Supreme Court ruled that in death penalty cases, defendants had to be provided with defense lawyers. With Gideon, however, the right of indigent clients to a lawyer was extended to all states. Since Gideon, the Supreme Court has settled a series of cases further specifying when a defense lawyer is necessary and when and how the services of a defense lawyer can be waived.

Unfortunately, no other person in the courtroom workgroup is as misunderstood, or even as despised, as the defense attorney. There are generally two public images of defense attorneys. The first is the common belief that defense attorneys employ any method or capitalize on any "technicality" to get their guilty client "off the hook." The second image is

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A defense attorney questions a prosecution witness during Dr. Conrad Murray's trial in the death of pop star Michael Jackson.

that of the fierce defender of liberty. Under this image, the criminal defense attorney works to make sure the rights of his or her clients are protected and that the state plays by the rules.

Regardless of the public image, the defense attorney plays a critically important role in courts across America. As an advocate, it is the defense attorney who represents the defendant's legal interests at all stages of the criminal justice process. It is the defense attorney who helps to make sure the state does not violate a defendant's constitutional rights. It is the defense attorney who communicates with the prosecutor to help arrange plea bargains, serves as the defendant's voice in criminal proceedings, and files appeals for those who are convicted. Moreover, while many people assume that the job of the defense attorney is to obtain an acquittal for their client at trial, in reality most defense work involves handling large numbers of clients and obtaining the best possible deals for them. "The best possible deal" can mean many things. It can mean that the client was acquitted at trial, that the client was spared the death penalty, that the client received a period of confinement less extensive than what was possible, or that their client received probation

instead of a jail or prison sentence. The point is that defense work involves much more than simply going to trial, and it is not always clear what constitutes "success" for defense lawyers.

IN DEPTH: Discussion From a Criminal Defense Attorney

Looking through criminal justice textbooks, it often seems to me that defense lawyers are poorly understood. The Sixth Amendment provides that the criminally accused "shall have the assistance of counsel." At the time this amendment was drafted, there were few lawyers or laws in the United States, and the laws that existed were relatively simple. As a result, people often handled their own criminal defense. In 2007, however, the American Council of Chief Defenders issued a statement detailing how the role of defense counsel has evolved over time. Specifically, legal and procedural developments have now made defense work a specialized practice that requires a high degree of expertise. For instance, during the "get tough on crime" movement, defense counsel had to confront entirely new practice areas at the stroke of a legislature's pen, such as sexually violent offender commitment proceedings, or reevaluate the stakes of cases due to persistent offender ("three strikes") statutes that created the possibility of life imprisonment because a client in a routine matter had a record. Moreover, the report describes the specialized knowledge needed to perform defense work in juvenile and capital cases and the need for defense counsel to be aware of the many collateral consequences of conviction that can impact a client's ability to seek employment or housing. In short, although there may not have been much defense work at the time the Sixth Amendment was drafted, there is much to be done now. And although we often hear about how defense counsel (particularly those that represent indigent defendants) must struggle to deal with high caseloads and a lack of resources, I'm not sure that everyone appreciates how intellectually challenging defense work has become.

Intellectual challenges are not just found in cases that involve so-called street crime. I spent time in the trial unit of the Boston division of the Securities and Exchange Commission (SEC) that worked with the U.S. Attorney's office to prosecute accounting fraud cases before moving to a private firm that handled civil and criminal defense for large corporate clients. Such clients often operate in a highly regulated environment, making it necessary to develop a working knowledge of regulatory and administrative law. Cases for such clients can span multiple jurisdictions (or countries) and involve complex and conflicting laws. Defendants in these crimes frequently face unique reputational injuries that must be considered when evaluating defense strategies. Corporate clients are also required to be cost-conscious, thus, even though they may need counsel to perform complex work, they may also need that work to be performed very quickly. Or, with the advent of technology that makes everyone accessible at all times, they may need that work performed at a moment's notice.

I mention these intellectual challenges because some textbooks seem to focus exclusively on the routine nature of criminal processing, even going so far as to suggest that plea bargaining has created a system of "assembly-line justice." That may sometimes be the case—but not always. Certainly, my practice has been anything but routine. The work was rigorous and demanding, but it was also intellectually stimulating and exciting. Thus, it is probably fair to conclude that defense counsel plays both a vital and a varied role.

The job of the defense attorney is, by any standard, difficult. It is difficult for a variety of reasons. First, defendants often talk to the police without an attorney present. When they do this, they have a tendency to implicate themselves in crimes and to provide police with evidence that can later be used against them. This strengthens the prosecutor's case and further limits the options available to the defense. Second, defense attorneys often handle so many cases that it is simply impossible for them to understand the details of each case. To manage the large number of criminal cases they are responsible for, defense attorneys often have little choice but to spend only a few minutes with each defendant and to base their legal recommendations on the information they receive from their clients and the prosecutor's office. Third, most of the defendants in the criminal justice system are from the lower socioeconomic classes. These defendants sometimes do not fully understand their legal rights, nor do they have resources to hire expert witnesses or to investigate the evidence obtained by the police and prosecutor's office. Finally, criminal defense attorneys are often paid only a fraction of what they could earn from noncriminal cases. Where many attorneys can charge from $150 to $300 per hour for basic legal services, defense attorneys are often paid substantially less.

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Public defenders often work for low salaries compared to lawyers who work in private practice.

Stop and Think 6.3

Many people are surprised to learn that courts operate like an assembly line—treating similar cases similarly without getting into the details of each case. In your opinion, should we continue this practice?

Paying for the services of a lawyer in a criminal matter can be very expensive. In high-profile cases that involve star athletes, powerful politicians, or wealthy actors, a criminal defense can cost millions of dollars. For the average person, the cost of a private defense lawyer could bankrupt a family. Not surprisingly, almost 90 percent of all criminal cases involve the use of a defense attorney whose fees are paid by the state (Bureau of Justice Statistics, 2005).

States have created several mechanisms for providing indigent clients with counsel. The first is called assigned counsel. In this system, private lawyers who volunteer to participate in the defense of indigent clients are placed on a list. When an individual is arrested and qualifies for indigent defense, a judge will assign a lawyer from those available on the list. The lawyer's fees are paid by the jurisdiction responsible for the case, often at a substantially reduced rate. The second system is a contract system. Used infrequently and mainly in sparsely populated areas, the contract system pays lawyers in private practice to defend indigent clients. Law firms that employ multiple attorneys may be contracted on a per case or per hour basis.

The final system, and the system used most frequently in the United States, is the public defender system. This system creates a government office responsible for the defense of indigent clients. Many public defender systems are operated by the state. Others are operated by counties or other jurisdictions. The federal government, for example, operates a public defender system. In any event, public defenders are paid government employees who are not allowed to practice law outside of the public defender's office.

State and local public defender systems have been chronically plagued by high caseloads and by limited budgets. It is not uncommon in large jurisdictions for public defenders to handle 600 to 1,000 cases per year. The Los Angeles public defender system, for example, employs over 700 attorneys and hundreds of other staff and investigators and has a reported budget of $165 million dollars. One report indicates that the Los Angeles Public Defenders office had a caseload of 90,000 felony cases, over 400,000 misdemeanors, and 40,000 juvenile cases each year (Albert-Goldberg, 2009).

People are often concerned that public defenders are second-rate lawyers or that they are not committed to the defense of their clients. Research into the effectiveness of public vs. private defense attorneys, however, has found that the type of attorney used has almost no bearing on the outcome of the case (Hanson & Chapper, 1991). Part of the reason for this likely rests on the fact that the vast majority of criminal cases never go to trial because they are plea-bargained. Moreover, as mentioned earlier, courts that process a large number of cases often handle similar cases similarly —that is, they see "normal crimes" daily and treat them much the same. In these instances, there is often very little a defense attorney can do to alter the outcome of the case.

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An inked thumb pressed against a fingerprinting record sheet.

Many jurisdictions have programs that allow defendants to leave custody after the preliminary hearing.

6.4 Pretrial, Bail, Plea Bargaining, and Trial Arrest for a crime, especially a serious felony, sets in motion the criminal justice system. The system, however, takes time to process the abundance of paperwork that typically is attached to each case. While each jurisdiction is different, the general processes are largely the same.

Booking

Once a suspect has been arrested by the police, he or she is usually taken to a central location for booking. However, it is noteworthy that not all criminal suspects are immediately arrested by the police and brought to booking. For some, an arrest warrant is issued and they are allowed to turn themselves in to the authorities. Sometimes, knowing that a warrant is going to be issued, a defendant's lawyer will work with prosecutors to arrange for an individual to turn himself in and to be processed with an attorney present. While rare, this does sometimes happen.

At booking, defendants are typically searched for weapons and contraband, such as drugs. Their identity is confirmed and their fingerprints are taken. Copies of fingerprints are then sent to the state as well as to the FBI to be entered into their national database. Pictures of the defendant's face are also taken and submitted.

The advent of DNA technology has transformed the criminal justice system. DNA evidence can become very important if the case goes to trial, so many police departments now routinely collect DNA from arrested individuals. The DNA is usually collected by way of a simple mouth swab. The sample is then placed in a sealed container and sent to a lab for processing. Ultimately the DNA will be entered into the FBI's CODIS database. CODIS stands for "Combined DNA Index System." It was designed to allow forensics labs across the United States to enter DNA information into the system and, more importantly, to search for matching DNA found at crime scenes. The CODIS database is swept weekly to look for matches provided by local labs. If a match is found, it can be used as probable cause to secure an arrest warrant.

Apart from DNA, fingerprints, and pictures, information about the defendant's medical history, family background, and employment can be taken as well. The defendant's criminal history is also accessed and recorded. This information then follows the defendant through the rest of the process.

Preliminary Hearings

In general, because there are many differences between jurisdictions, the next step in the process is called the initial appearance. This is where a defendant is brought before a judge or judicial officer. The defendant is informed of the charges, read his or her rights, and asked if a lawyer is needed. If the defendant was arrested without a warrant, some jurisdictions also use the preliminary hearing to make sure there was probable cause to make the arrest. If these jurisdictions do not use the preliminary hearing to ascertain probable cause, then probable cause will be established by a separate hearing with a magistrate or court officer. Probable cause must be reviewed within 48 hours after arrest. The legal threshold to establish probable cause for an arrest is relatively low. All the state has to show at the initial appearance is that a crime likely occurred and that there is reason to believe that the person apprehended committed the crime.

Preliminary hearings usually take place within 48 to 72 hours of an arrest. This varies by local law and policy, but most jurisdictions allow up to 72 hours. However, if an arrest occurs immediately before a holiday or over a weekend, a person can spend up to 5 days in custody before seeing a judge. Again, this does not happen on a regular basis, but it can happen and it is perfectly legal.

If an arrest warrant was issued prior to the defendant's physical apprehension, some states allow the court to bypass the preliminary hearing and the defendant is immediately arraigned. It is assumed that probable cause was established to issue the warrant. In these situations, therefore, the probable cause requirements are satisfied.

Many crimes involve no physical harm to victims or limited if any monetary loss. People who commit these crimes, moreover, often present little risk to the community. Recognizing this, most jurisdictions have created programs that allow defendants to leave custody after the preliminary hearing. Known as a pretrial diversion or pretrial release, these programs usually involve a court-appointed officer that evaluates a defendant for release. Nonviolent first-time offenders are typical candidates for pretrial release.

Pretrial release is important for several reasons: First, it reduces the costs associated with keeping a person in jail. Second, it gives criminal justice officials a flexible mechanism with which to control the number of people in jail. Finally, pretrial release enables a defendant to go back to work and take care of other responsibilities as the case winds through the system.

Preparing a Case

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Though narcotic cases are often simple, preparing a case for trial can be a lengthy and complex process for prosecutors.

Things to Consider:

What aspects of the position of District Attorney intrigued you?

Based on a review of this clip, would you be interested in pursuing a career as a District Attorney? Why?

There are some individuals, however, for whom pretrial release is not warranted. Offenders who pose a serious risk of flight, meaning that they may not return to face charges if released, are not good candidates. Individuals who have a history of violence, of domestic abuse, or are alleged to have committed a sexual offense are also usually barred from pretrial release.

Bail may be another option if an offender is not eligible for pretrial release. The bail system is used widely in the United States. A judge or judicial officer will determine if the defendant is eligible for bail, and if so how much bail will be required to secure release from custody. Bail is either money or secured property that the defendant provides to the court. Present-day practices often allow defendants to pay 10 percent of their total bail to secure their release. If, for example, bail is set at $5,000 with 10 percent allowed, the defendant would be required to post $500. Sometimes the full amount of bail is required, and depending on the alleged crime, bail amounts can be substantial. In these circumstances, defendants sometimes have to use property they may own as collateral, to borrow money from relatives, or to use the services of a bail bondsman. For a fee, bail bondsmen work with the courts to put up the bail needed to get a person out of custody.

One of the chief concerns with the use of bail is whether or not the person will return to court to face prosecution. The use of bail helps to increase the likelihood that the person will return because he or she will otherwise lose the posted bail. If a bail bondsman was used by the defendant, the bondsman's company may hire a bounty hunter to locate, apprehend, and return the individual who has skipped bail.

While the use of bail is widespread, actual practices vary widely across states. Some states, such as California, use a uniform bail system. In this system, a general amount is outlined for each crime where bail is possible. This helps to reduce disparate treatment of individuals accused of similar crimes. It also provides continuity and predictability in the way that cases are managed. However, it is important to note that bail cannot be used as a punishment and cannot be so excessive that it violates the Eighth Amendment of the Constitution, which prohibits excessive bail.

Across most states and the federal government, bail is allowable for almost all crimes. However, in 1984, Congress restricted the use of bail to situations where the defendant was charged with a violent crime, posed a flight risk, is charged with certain drug crimes, or is a repeat offender. Prior to 1984, the law focused primarily on the degree to which a defendant posed a serious flight risk. However, the 1984 law allowed courts to also take into account the danger posed by the defendant. In other words, it allowed the court to deny bail to a person the court believed posed a serious threat to the community. Most states now also follow similar guidelines.

Critics of bail note that it is often easier for a wealthy person to secure bail than it is a poor person. This basic inequity in the system can lead to situations where individuals remain in police custody simply because they do not have the financial means to secure bail. That said, many jurisdictions also allow some defendants to leave custody with nothing more than their signature promising that they will return. This is known as being "ROR'ed," or released on own recognizance (ROR). If a person fails to show who has been ROR'ed, an arrest warrant will be issued.

Individuals released on bail are also sometimes subject to other court-ordered restrictions on their liberty. Depending on the criminal charges, some defendants may be placed on house arrest or on electronic monitoring or they may have to stay in contact with the police, and some may have to submit to random drug tests.

Grand Jury

There are two types of juries: grand juries and trial juries. Trial juries decide on the guilt of an accused person, while grand juries conduct investigations and make formal criminal accusations.

Grand juries are placed on a panel by the court for a specific period of time. Many are impaneled for 3 months, but the court has the ability to extend that time for up to 36 months. Grand juries may meet only once a week or only a few times a month for the duration of their terms. Grand juries can vary in size from 6 to 20 citizens.

In theory, grand juries exist to check the power of the government to bring unwarranted criminal charges against individuals. In this way, the grand jury is designed to help preserve the integrity of the criminal justice system and protect individual rights. However, grand juries work in secret and are controlled by the prosecutor, who presents witnesses and other evidence to the grand jury and acts as a legal guide for it. Witnesses who testify in front of a grand jury do not have the right to an attorney, nor do criminal suspects have the right to be heard by a grand jury.

If a grand jury believes the state has sufficient evidence to warrant a criminal charge, the jury will issue a true bill, also known as an indictment. An indictment from a grand jury means that at least half of the jurors believed the state had sufficient evidence to justify holding the individual in custody and filing criminal charges. If a grand jury finds that the state had insufficient evidence to prosecute a suspect, it can issue a no bill.

The use of grand juries varies substantially across states. Four states use grand juries only in capital cases, 14 require a grand jury in felony cases, but most use a grand jury only as an option.

Grand juries can also conduct investigations. They have the power to issue subpoenas, or legal documents that require individuals to testify in front of the jury or to provide other evidence. In limited situations, grand juries can offer immunity from prosecution. Immunity allows a witness to admit to crimes during testimony in

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exchange for not being prosecuted.

In reality, grand juries almost never issue no bills. Recall that the prosecutor essentially controls the grand jury, the evidence, and the witnesses deemed important by the prosecutor. The state, moreover, has no legal requirement to present evidence that could exonerate a criminal suspect. Grand juries often spend only a few minutes per case before taking a vote. While some cases require grand juries to meet regularly, listen to witnesses, and issue subpoenas, most do not. In states where grand juries are not used or are optional, prosecutors officially charge an individual criminal suspect through an information, which is a sworn legal complaint that the alleged person has violated the law.

Arraignment

Once indicted by a grand jury or once an information has been filed, the criminal defendant is brought to court for arraignment. During the arraignment, the defendant hears the charges, defense lawyers notify the court of their representation, and the defendant is allowed to enter a plea. Pleas generally take one of three forms: guilty, which means that the defendant admits to the crime; not guilty, where the defendant denies the criminal charges; and nolo contendere (no contest). A "nolo" plea means that the defendant denies guilt but accepts the criminal sanction. However, a nolo plea cannot be used as evidence of guilt in a civil case.

A judge does not have to accept a guilty or nolo plea. Before a judge accepts such a plea, he or she must make certain that the defendant understands his or her constitutional rights and that the plea is offered voluntarily—that is, was not coerced by threat or fear. A defendant may change his or her guilty plea at any point prior to the court accepting the plea and prior to criminal sentencing. If a defendant refuses to issue a plea, the court will usually enter a not guilty plea.

Notice that criminal defendants are not allowed to enter a plea of innocence. This is because the burden of proof in a criminal trial falls to the state. If the state can prove beyond a reasonable doubt that the person committed the crime, a jury can issue a finding of guilty. However, if the state cannot prove beyond a reasonable doubt that the person committed the crime, the jury may issue a finding of not guilty. A finding of not guilty is not the same thing as "innocence." Not guilty simply means that the state did not prove the case. The defendant may be factually guilty but the state's case may not have been strong enough to convince a jury.

Plea Bargaining

While every person may be entitled to their day in court, the reality of the criminal justice system is that criminal trials are very rare. The vast majority of all criminal cases are instead handled through a process called plea bargaining. Plea bargaining represents an informal system of justice where criminal defendants agree to plead guilty in exchange for certain concessions from the prosecution. Plea bargaining is widespread, with over 95 percent of all criminal cases handled though plea negotiations (Devers, 2011). In a recent Supreme Court case, Justice Kennedy wrote that the criminal justice system is a "system of pleas" and that plea bargaining determines "who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system."

Plea bargaining is multifaceted: In return for a guilty plea, prosecutors can agree to reduce charges, sometimes from a felony to a misdemeanor. This is referred to as charge bargaining. Defendants can also agree to plead guilty in return for a reduced sentence, known as sentence bargaining, or they can sometimes plead guilty to only one or a few counts instead of all the criminal counts lodged against them. Either way, plea bargaining often serves both the prosecution and the defendant. For example, plea bargaining helps the prosecutor efficiently process large numbers of criminal cases, allows them to do so without incurring the costs (in time and money) associated with a criminal trial, and lets them tailor the criminal penalty based on the nature of the crime. Moreover, plea bargaining can help the defendant by speeding up the processing of the case, lowering the possible penalties associated with conviction for a serious crime, and reducing the amount of time served in jail or prison.

The system of pleas allows the criminal justice system to dispense justice efficiently. There are times, however, where plea bargaining can be viewed as coercive because it assumes the guilt of the defendant. For example, prosecutors sometimes "overcharge" defendants, knowing that they will reduce the charges during plea bargaining. But when criminal defendants are faced with multiple serious charges that could result in several years or decades of incarceration, they may be more likely to plead guilty even if the state's case is relatively weak and even if they are innocent of the charges. The risk of going to trial and being found guilty is usually weighed against the costs of pleading guilty.

Many defense attorneys advise their clients to accept plea bargains. They do this for a variety of reasons: First, many criminal defendants are guilty of the crimes of which they are accused, and the state has sufficient evidence to prove guilt (witnesses, video footage, DNA evidence). A plea usually benefits their clients in some way. Second, local judicial norms encourage plea bargaining. Judges may, for example, sometimes help in the plea process. Thus defense attorneys who violate local judicial norms may be viewed as "problems." Third, defense attorneys often encourage their clients to "cop a plea" because they understand that the potential costs to their clients—in terms of money, reputation, and even their freedom—may be substantially greater if they go to trial.

The Criminal Trial

Of all criminal cases, only a handful will result in a jury trial. Less than half of all murder charges, for example, result in a criminal trial. And for the most part, trials for other types of crimes occur in less than 2 percent of all cases (Ostrom et al., 2004). Trials occur most often when the defense and the prosecution have failed to obtain a negotiated plea or after a defense attorney has advised the defendant to accept a plea.

If just 10 percent of all cases ended in a trial, the criminal justice system would come to an abrupt stop. Trials take time, sometimes extending months and even years into the future, and they can be very expensive. The state, for example, may seek and use outside scientific experts to test evidence. It may submit hundreds of pieces of evidence and present dozens of witnesses. The defense, too, may use its own scientific witnesses, take days to cross-examine witnesses, and challenge every piece of evidence submitted by the state. Judges have to maintain order in the courtroom; they also have to rule on multiple defense and state motions, on matters of law, and on objections raised by both sides. Last, jurors, who usually have jobs and families, sometimes have to spend days, weeks, and even months listening to technical evidence, to conflicting reports, and to the nuanced legal arguments offered by the prosecution and defense. Sometimes they are sequestered, and their freedom is

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The process of interviewing and selecting the jury candidates is called voir dire.

Stop and Think 6.4

Imagine that a state legislator sponsored a bill limiting the practice of plea bargaining. What would be some of the foreseeable consequences? Would you support such a bill? Why or why not?

restricted to a hotel or other facility for the duration of a trial. The point is that there are many reasons why individuals in the criminal justice system do what they can to avoid having a case go to trial.

Individuals who choose to go to trial run a serious risk—that the penalty if convicted may be substantially greater than if they had elected to take a plea. This is sometimes called a trial penalty. Recent evidence indicates that individuals convicted at trial receive substantially longer sentences than those who accepted a plea bargain. A study by Ulmer and Bradley (2006) found that the odds of being incarcerated if convicted by a judge were 2.2 times higher than had the defendant pled guilty. The odds of being incarcerated after a jury trial was 2.7 times higher than had the defendant accepted a plea. Moreover, individuals convicted by a jury received sentences that were 57 percent longer than the sentences they would have received. For bench trials, which are trials before the judge without a jury, sentences were 22 percent longer.

Nonetheless, criminal trials represent the heart of the adversarial process. The prosecution tries to prove that a crime was committed and that the evidence points to the defendant's guilt. The defense questions prosecutorial evidence, puts forth alternative theories of the crime, and tries to introduce reasonable doubt. The judge makes sure the trial is fair. However, the most important actors in a criminal trial are the citizens who will evaluate the evidence, determine the credibility of the witnesses, and ultimately determine the defendant's guilt. The most important players in the criminal trial are the jurors.

A jury is composed of citizens who have been called before the court. To determine who is eligible for jury duty, many jurisdictions use voter registration rolls and select individuals randomly from these rolls. When drawn, individuals are sent a summons to appear for jury duty on a given date and time. However, receiving a summons does not mean that a person will serve on a jury. Many people are excluded from jury duty for a variety of reasons, including having a felony conviction. Once citizens show up in court, they may be excluded for other reasons, including the process of voir dire. Voir dire is the process where the prosecution, the defense, and even the judge interview potential jurors and rule out individuals who may not be suitable to sit on a specific case. Some individuals may not be able to be fair in their deliberations, while others may hold beliefs that could jeopardize the state's case or the defendant's right to a fair trial.

Defendants are presumed innocent of the charges against them; thus the burden of proof is on the state. Because of this, the state is allowed to present its case to the jury first. Note that in some cases a defendant can waive the right to a jury trial and can ask for a bench trial, where the judge will make a determination of guilt. The prosecution can present evidence of the defendant's guilt. This evidence can be anything from the testimony of witnesses to the crime, the testimony of expert witnesses, to physical evidence, such as blood, hair, and DNA analyses. Evidence can be direct or circumstantial. Direct evidence is evidence where no inferences need to be made about the fact. When, for example, a bank teller identifies the person responsible for a bank robbery, no inference of fact is necessary. Circumstantial evidence, however, requires an inference of fact to be made. Many trials rely on circumstantial evidence, such as DNA evidence, fingerprint evidence, and even hair

evidence. For example, in rape cases, DNA, hair, and fingerprints evidence may be available, but they do not prove directly that sex without consent necessarily occurred.

After the prosecution rests its case, the defense is allowed to present its case. The defense can cross-examine prosecutorial witnesses, call into question the strength of the prosecutor's evidence, and offer legal defenses. Much of the defense attorney's effort is not directed to proving their client's innocence but rather to introducing enough reasonable doubt that jurors will not be able to convict the defendant. Defense lawyers can also offer their own witnesses and scientific experts, but the prosecution can call rebuttal witnesses after the defense closes its case.

Once both the prosecution and defense rest, each concludes with a closing argument. The prosecution usually leads off closing arguments, which provide to the jury a broad overview of the facts of a case. After the prosecution has completed its closing argument, the defense has its turn. Again, the defense then presents a broad overview of its case with an eye toward introducing reasonable doubt. After both sides have given their closing arguments, the judge provides the jury with instructions about the defendant's rights, the law, and the process used to determine guilt.

After receiving their instructions, juries must deliberate until a verdict is determined. Jury deliberations are secret and are often held in a secure room inside a courthouse. A jury foreman, usually someone elected by the jurors, acts as the jury leader. The foreman will help the jury organize discussions, examine evidence, and take preliminary votes.

It usually takes a unanimous vote of 12 jurors to convict a defendant. Sometimes, however, juries cannot reach a verdict. When this happens, it is called a hung jury. A hung jury will inform the judge of their difficulties in reaching a decision. At that point, many judges will instruct the jury to try again to reach a verdict. If the process fails and the jury simply cannot make a determination of guilt, the judge may declare a mistrial. When a mistrial is declared, the defendant is entitled to a new trial. Jury deliberations can take hours, days, and even weeks.

About 80 percent of the time, juries issue a guilty verdict (Ostrom et al., 2002). While many criticize jurors and their decisions, especially in widely covered cases, interviews with jurors and

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trial judges show that most of the time, jurors take their duty very seriously. Juries, for example, find individuals not guilty about 20 percent of the time and in many instances report that they personally believed the defendant to be guilty but that the state simply did not prove the case (Ostrom et al., 2002).

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6.5 Chapter Summary In many ways the courts are the hub of the criminal justice system. Every other part of the system—the police, prosecutors and defense attorneys, and corrections— depends on the courts for the administration of justice. Because of the critical role courts play in the administration of justice, they must be independent of political and social forces that could taint the outcomes of criminal cases. Moreover, within the court system itself there is a system of appellate courts that review lower court rulings to make sure the defendant received a fair trial and that the courts have followed the law.

State and federal courts manage many thousands of cases each year. To process the large number of cases, courtroom work groups—composed of judges, prosecutors, and defense attorneys—create informal rules and processes to help the court process cases efficiently. Courtroom work groups value cooperation, which is different from the image of the courtroom where adversaries battle it out.

One way that courtroom work groups process large numbers of cases is through the practice of plea bargaining. Plea bargaining is common and represents a process whereby defendants agree to plead guilty to a crime in return for a reduced sentence or reduced charges. The practice of plea bargaining saves time and money; however, it can create conditions where innocent individuals agree to plead guilty, and it gives the prosecutor tremendous power in the criminal justice system.

Because over 95 percent of cases are handled through a plea arraignment, criminal trials remain rare events. When they occur, the adversarial system emerges and the prosecution and defense are each given the opportunity to put on their case, to use and cross-examine witnesses, and to submit and review evidence. Trials can be lengthy in time and can be very costly. Around 80 percent of the time, defendants in criminal trials are found guilty by juries. When they are found guilty, research shows that they are likely to receive a substantially longer sentence than if they had plea-bargained their case.

The American court system is thus a complex tapestry of actors that work together to administer justice, determine guilt, and hold those found guilty accountable.

Critical Thinking Questions

1. Why does the United States maintain separate federal and state court systems? What are some of the costs and benefits associated with having separate court systems?

2. How do the day-to-day operations of the court system differ from the way they are portrayed in the media?

3. What are the costs and benefits of our system of plea bargaining?

Key Terms

Click on each key term to see the definition.

Acquittal (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A trial outcome where the charges against the accused are dismissed.

Appeals by permission (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Appeals where convicted offenders petition the appellate court for a review.

Appeals by right (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Appeals guaranteed by the legislature as a right of the convicted offender.

Appellate/appeals courts (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Courts that hear and review cases after a trial court has ruled on them. These courts focus on the legality and fairness surrounding the actors and procedures of the court.

Assigned counsel (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Private lawyers who volunteer to defend indigent clients and whose fees are paid for by the jurisdiction responsible for the case.

Bail (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

An amount of money or property value required to release an arrested person from cus tody. This is in place to help ensure that such a person returns for his or her court date after release.

Bench trial (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Trial in which judge makes determination of guilt instead of a jury.

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Change of venue (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

This refers to a circumstance where a trial is moved from the scheduled venue to another location owing to unfair or biased attitudes in the area of the original venue.

Charge bargaining (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Negotiations between the prosecution and defense where the defendant agrees to plead guilty in exchange for a reduced charge or fewer charges from the prosecution.

Circuit/district/superior courts (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Courts of general jurisdiction that can handle all felony cases and have the power to review cases from inferior/lower courts. These courts typically deal with serious felony cases.

Circumstantial evidence (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Evidence admitted in court that requires the inference of facts and does not in itself prove the defendant guilty.

Closing arguments (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The final statements from the prosecution and defense at the end of a trial.

Contract system (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A system for providing indigent clients with defense counsel where private law firms or solo defense lawyers are hired as contractors, often on a case-by-case basis, to represent indigent clients.

Courtroom work group (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A name for the collective group of various actors in the courtroom such as the judge, attorneys, clerks, etc.

Direct evidence (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Evidence admitted in court that is taken as fact. It may stand alone and does not require the inference of fact.

Exculpatory evidence (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Evidence that can clear a defendant of guilt in a criminal trial.

General jurisdiction (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The authority of a court to hear all types of cases.

Guilty plea (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The admission by a defendant that he or she is guilty of the charges against him or her.

Hung jury (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A jury that cannot agree on a disposition or verdict.

Indictment/true bill (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A formal legal statement that a person has committed a crime.

Inferior courts/lower courts/municipal courts (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Courts of limited jurisdiction that deal with specific types of cases. Many hear only misdemeanors and traffic offenses. These courts may also include specialized courts, such as drug court. They often hear preliminary and bail hear ings for cases later transferred to higher courts.

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Information (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A sworn legal complaint that the alleged offender has committed a crime. This is used by the prosecution in states that do not use grand juries.

Initial appearance (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The beginning of the legal process where the defendant appears before a judge and is read his or her charges and rights and is asked if defense counsel is needed.

Jurisdiction (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The statutory authority of a court to hear a case.

Limited jurisdiction (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The authority of a court to hear only certain types of cases.

Missouri Plan (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A method for the selection of judges based on merit. This usually involves a commission that reviews applications and conducts interviews of judicial candidates; it is intended to help select the most qualified judges.

Mistrial (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A trial that is regarded as invalid. It is thrown out, and the defense is then entitled to a new trial.

No bill (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

This applies to the situation where a grand jury decides that the state did not have suf ficient evidence to make an arrest.

Nolo contendere (no contest plea) (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A defendant does not admit guilt of the charges but accepts the conditions and sanctions that the judge assigns.

Normal crime (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Categories of crimes that the courts deal with on a daily basis.

Not guilty plea (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The defendant does not admit guilt of the charges against him or her and wishes to contest the conditions and sanctions dictated.

Plea bargaining (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Negotiations between the prosecution and defense where the defendant pleads guilty and receives a reduction of some sort from the prosecution, often in charges, accounts, or sentencing.

Pretrial release/diversion (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A program where an appointed court officer evaluates an arrested individual and decides whether he or she should be released from custody.

Prosecutorial discretion (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The latitude or freedom of prosecutors to decide whether to press charges. Which or what kind of charges are brought is often based on the specific circum stances surrounding a case.

Public defender (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A defense lawyer paid by the government who is publicly appointed specifi cally to defend indigent clients.

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Release on own recognizance (ROR) (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A condition where an arrested individual is released from custody on good faith that he or she will return for his or her court date. This often requires a signature for a statement that the accused will return for court.

Rule of four (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A qualification that requires at least four supreme court justices to vote for approval of a writ of certiorari before it is granted.

Sentence bargaining (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Negotiations between the prosecution and defense where the defendant agrees to plead guilty in exchange for more lenient sentencing.

Sequestered (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A condition of isolation for members of a jury throughout the duration of a trial.

Subpoena (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A writ from the court that legally compels a witness to testify or provide informa tion about a case.

Summons (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A legal notice compelling an individual to appear for jury duty at a certain time and place.

Trial courts (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The first level of court where a case is originally heard. This court is responsible for determining and ruling on the facts of a case.

Trial penalty (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

This refers to the idea that many individuals who choose to go to trial rather than enter into a plea bargain agreement run the risk of receiving more serious sanctions in trial.

U.S. attorney (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A prosecutor at the federal level that is appointed by the president and con firmed by the Senate.

U.S. courts of appeals/U.S. circuit courts (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Federal appellate/appeals courts that handle cases from offenders convicted in U.S. district courts within each specific circuit.

U.S. district courts (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Federal trial courts that determine facts surrounding a case involving federal law.

Venue (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The location where a crime took place and where a trial is expected to take place.

Voir dire (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Meaning "to speak the truth," this is the process of jury selection. The prosecution, defense, and sometimes the judge summon citizens and question them in order to select jury members for a case going to trial.

Writ of certiorari (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A legally granted command to a lower court to provide the U.S. Supreme court with records from a case.

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Web Links

Current information about the U.S. Supreme Court: http://www.supremecourt.gov/ (http://www.supremecourt.gov/)

A link to the National Center for State Courts: http://www.ncsc.org/ (http://www.ncsc.org/)

Information about the U.S. courts: http://www.uscourts.gov/Home.aspx (http://www.uscourts.gov/Home.aspx)

The Association of Prosecuting Attorneys forum for discussion: http://www.apainc.org (http://www.apainc.org)

A link to the National District Attorneys Association: http://www.ndaa.org/ (http://www.ndaa.org/)

U.S.A. Today reports of prosecutorial misconduct: http://projects.usatoday.com/news/2010/justice/cases/ (http://projects.usatoday.com/news/2010/justice/cases/)

Information about the National Association of Criminal Defense: http://www.nacdl.org/ (http://www.nacdl.org/)

An organization acting as the voice of the defense bar and providing information and resources for defense counsel: http://www.dri.org/ (http://www.dri.org/)

A website providing information about the advancement of criminal justice through DNA technology: http://www.dna.gov/ (http://www.dna.gov/)

http://www.supremecourt.gov/

http://www.ncsc.org/

http://www.uscourts.gov/Home.aspx

http://www.apainc.org/

http://www.ndaa.org/

http://projects.usatoday.com/news/2010/justice/cases/

http://www.nacdl.org/

http://www.dri.org/

http://www.dna.gov/

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Criminal Punishment 7

7.1 The Enforcement of Social Rules

A Brief History of Criminal Punishment Work and the Rise of the Institution

7.2 The Philosophy and Goals of Criminal Sanctions

Retribution of "Just Deserts" Deterrence Incapacitation Rehabilitation

7.3 Sentencing Models

Indeterminate Sentencing Structured Sentencing Federal Guidelines

7.4 Capital Punishment

Pro–Death Penalty Anti–Death Penalty

7.5 Chapter Summary

Critical Thinking Questions

Key Terms

Web Links

Learning Objectives

After reading this chapter, you should be able to:

Explain the history of criminal punishment

Explain how criminal punishment has changed over time

List and explain the goals of criminal punishment

List and explain the different sentencing processes

Discuss the debate about capital punishment

Chapter Outline

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Mandatory Sentencing Intermediate Sentencing

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7.1 The Enforcement of Social Rules Life is full of rules. Rules dictate which side of the road we drive on, how fast we can drive, which lanes we can drive in, what we must do when an emergency vehicle comes into view, and now, even when and how we can use a cell phone while driving. Professors bar cheating and plagiarism. Employers publish entire manuals containing workplace rules. And each year states and the federal government pass even more laws. In 2011, for example, the state of California welcomed 725 new laws governing everything from what insurance companies can charge men and women to the banning of trans fat. Today there are so many laws on the books of states, counties, cities, and the federal government that nobody can say precisely how many laws exist in the United States. By best estimates, however, there are over 4,000 federal laws alone. For example (from www.dumblaws.com (http://www.dumblaws.com) ),

In Eureka, CA: It shall be unlawful to throw or hit or knock any baseball with a ball bat or any other instrument or engage in or play the game of baseball in any other manner on any city park or playground without first obtaining written permission to do so from the Director of Public Works. The Director of Public Works is hereby authorized and empowered to specify the conditions under which the game of baseball may be engaged in or played at any city park or playground. For the purposes of this section, the term "baseball" shall mean any ball having a circumference of less than 11 inches or a weight of less than six ounces and which is commonly used in the game known as baseball ('63 Code, 11-6.04) (Ord. 109-C.S., passed 9-6-68; Am. Ord. 375-C.S., passed 10- 19-82).

In El Paso, TX: 10.16.090 Public indecency—Accosting females—Appearing in disguise. No person shall exhibit or expose himself naked, or disguised, or in any indecent or offensive manner to any person passing in the public places of the city, or to persons living in the neighborhood, or rudely, insultingly or offensively accost any female, or appear in the streets or public places in any indecent or lewd dress, or relieve the calls of nature in any place exposed to the public sight or gaze or upon any public street or plaza. (Prior code 15-10)

And in San Francisco, the board of supervisors passed a law cracking down on McDonald's "Happy Meals." The law was originally put in place as an attempt to stop the growing prevalence of childhood obesity and other health-related issues. The law stipulates,

A restaurant may combine a free toy or Incentive Item with the purchase of a meal if the meal does not include any of the following as defined in the ordinance: excessive calories, excessive sodium, excessive fat including saturated fat, and trans fat exceeding 0.5 grams. A meal must also contain at least 0.5 cups or more of fruits or vegetables. Breakfast items must contain 0.5 cups of fruits or vegetables. A Restaurant may provide a free toy or Incentive Item in combination with the purchase of a single food item or beverage if the food or beverage includes less than 35% of total calories from fat and less than 10% of calories from added caloric sweeteners.

Laws place limits on individuals and companies, and they provide for punishment if the law is violated. Every law written provides the state with some form of sanction option. Individuals found guilty of misdemeanors or low-level felonies, for example, may be placed on probation, house arrest, or required to pay restitution and perform community service. Other offenders may be forcibly placed in institutions where their liberties are restricted. A few may also be executed. While we can debate whether the United States has too many laws or too few and whether these laws are prudent, wise, or necessary, the real question is how the United States became a nation of laws. How did we become a nation not only of laws, but also one where sanctions for violating the law are also limited by law? In the United States and most other industrialized countries, strong legal limits guide what our society can do to even the worst criminal offenders. Indeed, it is not uncommon for people to complain that the criminal justice system is too lenient on offenders, capital punishment should be used more frequently, and criminals should be treated more harshly. Books written by criminologists also argue for bringing back physical punishment of offenders (Newman, 1995) and giving offenders a choice between imprisonment and flogging (Moskos, 2011).

To understand why our system of justice places limits on what we can do to criminal offenders, we have to understand the history of criminal punishment. When we do, two themes emerge: First, societies require rules and laws that are perceived to be just and fair. Because societies need rules, they also need mechanisms for enforcing those rules. These mechanisms have to balance out a variety of interests, including the desire of the state for social order and public protection and the desire of the victim for revenge or retribution. We will discuss why shortly. Second, historically speaking, we have tried virtually every idea to punish and to rehabilitate offenders. Indeed, the history of criminal punishment is one that includes extraordinary brutality and sometimes leniency and mercy. More importantly, however, our history of punishing criminals has evolved over time as our views of morality have changed and our priorities have shifted. In many ways, our system of criminal punishment emerged from prolonged periods of trial and error and our experiences in trying to meet the various goals of punishment while retaining an emphasis on individual rights and freedoms.

A Brief History of Criminal Punishment

The ability of groups of people to live and work together requires trust. Trust forms the bedrock for almost all social interactions. We have to trust that others will not break into our homes and steal our possessions, not pull a gun on us and demand our money, and not harm our children. When this trust is violated, it is not uncommon for individuals to feel betrayed, taken advantage of, manipulated, lied to, and even cheated. In many ways, criminal behavior often represents both cheating and a betrayal of trust. It is because of this that all groups of people have had to establish rules for interaction. Of course rules are meaningless absent some form of punishment for those who violate the rules. In small tribes, for example, the consequences of the violation of rules against theft can mean death to the victims, who could find themselves without food. In the old West, stealing a horse could result in hanging, not because people loved horses but because the victim might not be able to survive such a loss. In modern societies, the consequences are usually not as serious, but crime still brings harm to victims, still destabilizes communities, and still requires some type of official reaction.

Historically speaking, our system of justice—with its due process protections, its application of constitutional rights to those accused of a crime, the requirements for evidence, and its use of a jury to determine guilt—is relatively new. Ancient texts, for example, tell of blood feuds that erupted when individuals stole from people, murdered them, or otherwise brought

http://www.dumblaws.com/

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Socrates' famous trial involved a jury of 500 randomly selected men and lasted about 10 hours.

harm to others. Loved ones, families, and friends would seek vengeance and sometimes kill or steal from the family of the offender. It takes no stretch of the imagination to understand the problems that could emerge from these informal arrangements. As societies grew and cities developed, inhabitants would form governments. In western Europe, for example, Sparta and the early Greek states created courts where people accused of crimes would be tried. These courts looked nothing like what we have today, but they did set in motion the idea that the state should create laws and that it, and not individual victims, should punish those who violated the laws.

The trial of Socrates, the famous Greek philosopher, is still discussed in public schools and law schools across America. Socrates was accused of corrupting youth, having motivated many to take action against the Greek state. Socrates and his accuser, Meletus, met first with a magistrate who had to decide if the case should go forward. Having decided that there was sufficient evidence, the magistrate crafted formal charges—charges that would have to be answered in the people's court.

To hear cases and to determine guilt, the Greeks created a system similar to the modern-day jury system, although only male citizens would be called to hear cases. In Socrates' case, 500 men were randomly selected. "Juries" of the time could range from 50 to 1,500 men.

Large juries were used in order to make it more difficult and less effective to bribe jurors. Democracy and other liberal reforms swept through early Greece, as did the idea that citizens should have a say in criminal matters. In this way, they reasoned, citizens could participate in keeping law and order in their communities. Socrates' trial lasted about 10 hours. Those bringing the charges were given 3 hours to speak first, followed by Socrates' 3-hour defense. No rules of evidence existed. Immediately after Socrates' defense, the jury took the vote. Unlike today, there was no jury discussion; 280 voted guilty and 220 not guilty. After the decision, the trial moved to the punishment phase.

At the punishment phase, the prosecution argued for a specific punishment. In Socrates' case, they recommended death. Other penalties could include exile or banishment, fines, and even loss of citizenship. After the prosecution presented its views, Socrates presented his, arguing for a free lunch and a very minor fine. The jury, however, voted for death and, as the story goes, Socrates eventually died by drinking the poison hemlock. By law, a simple vote by a majority of jurors could result in a death sentence or just a small fine. There was no such thing as an appellate court for convicted defendants to argue the fairness of the verdict or penalty.

By modern standards, Socrates' trial violated a number of Constitutional and due process rights, such as the right against self-incrimination. For the crime of "leading youth astray," moreover, his punishment of death would likely violate the right against cruel and unusual punishment. Yet the ancient Greek system of justice was considered quite advanced for its time. The state conducted a public trial of an accused person; it relied on a group of citizens to determine guilt or otherwise, and these same citizens determined what punishment, if any, the offender should receive. The emergence of the power of the state, as we will see, continued to play a critical role in the administration of the criminal justice system and in the punishments used on offenders.

The Greeks were eventually conquered by the Romans, and their states became part of the Roman Empire. With that empire came a powerful government with powerful men—known as caesars—in control. The Roman system of justice gave great power to the state or, more precisely, to the representatives of the state. At the time, however, crimes committed between citizens were seen as private matters. Family feuds and vendettas were common and served as a deterrent to would-be criminals. However, formal violations of law still occurred, and punishments for those who violated Roman law were often determined by the social class of the offender. Romans made legal distinctions between slaves, freed slaves, and citizens. The harshest punishments were reserved for slaves. Slaves could be burned or hanged; placed in the Coliseum, where they were almost always killed in front of a crowd; or they could be crucified. However, free men convicted of a crime against Rome were often merely exiled or banished and their property confiscated. Still, this was no small matter, as banishment could mean being expelled into parts of the empire that were hostile to Rome—a certain death sentence. For those not exiled, the use of fines and the forfeiture of property were common.

With the decline of the Roman Empire, Europe moved into what are known as the Dark Ages. The term reflects the lack of scientific, legal, and cultural advancement that characterized this period, when kings and countries rose and fell. War and disease killed thousands. Crime was still viewed as a private matter, in part because no strong state emerged or could maintain power. Certain offenses, such as murder or theft, could result in the victim's family seeking revenge, not only on the alleged perpetrator but also on the perpetrator's family. In trying to control the violence that sometimes arose from these situations, parties would meet to exact a fine or to exchange property. Moreover, with the development of feudalism in Europe, where landowners, known as noblemen, enjoyed power over those on their lands, the use of fines and the forfeiture of possessions became more widespread. Large fines and the forfeiture of possessions sometimes had dire consequences. It was during this time, too, that the term felony came into existence. Derived from the word felonia, it referred to a crime committed against a nobleman.

Moving forward, England, France, and Spain would eventually emerge as powerful states in Europe. Each was ruled by a king and each developed similar but also unique systems of punishment. The English monarchy, where a king ruled with divine authority, strongly influenced our perceptions of punishment and justice. Indeed, the use of the criminal sanction by kings and later queens was in part what led some Englishmen to leave for the new world.

Where crime had once been viewed as a private matter, new legal theories argued that crime was an offense against the authority of the monarchy. Since crime was an offense against the king or queen, it was argued, the monarchy, and not private citizens, should dispense justice. England created a number of local courts to hear criminal allegations. The victim was responsible for filing an arrest warrant, locating and bringing the alleged offender to court, and paying for the prosecution. If the offender was found guilty, judges exercised

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The guillotine was used as a humane form of execution during the French Revolution.

Pillories were used to restrain criminals.

wide discretion concerning the sentence. The idea that similar crimes should be punished similarly had yet to develop. For minor crimes, punishment could range from torture, hanging, flogging, and execution to simply claiming "benefit of clergy" and reading the Fifty-First Psalm from the Bible. Offenders could even be let go with no punishment at all. For certain crimes, however, such as treason—a broad offense that even included wishing the monarch misfortune—punishment was severe and immediate. Torture was common and extremely brutal. If the offender did not die as a result, execution would immediately follow. Offenders were boiled, beheaded, and drawn and quartered—often to the amusement and horror of large crowds.

Before we continue, understand that:

Prior to the advent of the state, the punishment of wrongdoers was a private matter that resulted in violence and revenge.

The advent of a powerful state shifted the authority for punishing criminals from individuals to the state.

Historically, the punishment of offenders has included everything from death, to torture, to exile, to forfeiture of property, to fines. The use of incarceration had yet to develop.

Punishment was often not consistently applied or proportional to the offense.

Punishment was sometimes based on extralegal factors, such as the social status of the offender, which ultimately reduced the legitimacy of the law and the sanction.

Work and the Rise of the Institution

The expansion of England as a world military and economic power influenced the punishment of its criminals. With the expansion of England came a growing need for laborers, and it was quickly recognized that many convicts were available. Companies, moreover, would pay the monarchy for the use of convicts, thereby making convict labor profitable to the Crown. Criminals could be sentenced to hard labor in lieu of execution. This might mean that they would be sent oversees to work on plantations, in mills, or as seamen on ships. A sentence of servitude may have spared an offender's life and been better than torture, but it was by no means easy.

Transportation of convicts to the new colonies occurred between 1717 and 1775 and was stopped after America won its independence from England. During those years around 10,000 convicts were sent to the colonies to work primarily on plantations. Even after transportation to America was halted, England continued to transport convicts to Australia. Over 135,000 convicts were sent to work in Australia before the practice ended in 1875.

The new American colonies imported some of the English methods of punishment, including hanging. However, the colonies also relied heavily on branding, such as branding a "T" on the hand of a thief. They also developed punishments that were meant to (1) embarrass, shame, and humiliate offenders and (2) enforce moral and religious beliefs. The public shaming of an offender was not only retributive but also meant to encourage offenders to take public responsibility for their offenses. The colonists burned to death individuals accused of witchcraft and by use of a "dunking chair," dunked people (some of whom drowned) in water to gain confessions or as a form of punishment. Nonetheless, colonial punishment was a public affair often rooted in strong religious convictions. It was sometimes intended to shame offenders so they could return to the congregation, having atoned for their sins, while at other times the punishment was meant to deliver divine justice and to send the offender back to God for judgment. As in England, punishment was physical and involved the infliction of pain.

Beginning in the 16th century, England created a number of workhouses where the poor and some criminals were sent. In due course, workhouses expanded to most parts of England. Owing to the end of the transportation of convicts, England turned to the use of physical punishment instead. Under English law, even minor crimes, such as pickpocketing, could result in execution. Indeed, at one point England had over 350 offenses that could be punished by death. Executions were usually well attended by citizens who often brought their children along to watch.

These institutions served as a springboard for changes that would move England and the United States away from the physical infliction of pain on criminals. In a major philosophical challenge to the use of capital and physical punishment, reformers sought not only to curtail what they saw as the excessive use of harsh punishment but also the arbitrary application of these punishments. Scholars, such as Jeremy Bentham (1748-1832) and John Stewart Mill (1806-1873), known as utilitarians, argued that punishment should be proportional to the offense and just severe enough to offset any gains achieved by the crime. They also argued against capital punishment and for a new kind of punishment—one that moved away from the physical infliction of pain on offenders to one that deprived them of their freedom.

These ideas gave rise to the creation of the institution in corrections. The first of these institutions were known as penitentiaries. Recognizing the religious influence of some American penal reformers, penitentiaries were to be places where convicts would repent for their crimes. Since their inception, the names for these institutions have changed. Today we simply refer to them as prisons, which comes from the term privation, or being deprived. The power of reform arguments has

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Stop and Think 7.1

Suppose you were on a state sentencing commission tasked with creating new criminal sentences. Which type of sentences would you advocate for? What would be some of the drawbacks?

stayed with us as well. Today, convicts are sent to prison to deprive them of their freedom. They are sent to prison as punishment, not for punishment. Indeed, the deprivation of freedom as the consummate criminal penalty represented a major historical change to the way in which offenders are sanctioned. Today, loss of freedom as a penalty for crime has almost totally replaced the physical infliction of pain on offenders. None of this could have happened, however, without the rise of the state's power or without the intellectual ideas that sought to rein in the punishment of criminals as a way to ensure freedom for everyone else.

This very abridged history of punishment can inform our understanding of punishment today. First, the rise of the state and its authority over all matters of criminal behavior removed the need to retaliate against offenders. This reduced the need for revenge and reduced other social problems associated with revenge. Second, virtually any imaginable punishment has been tried. Brutal, even sadistic forms of punishment have been used, as has exile, forfeiture of property, fines, and other lesser penalties. Third, the restraint on the state's ability to punish criminal offenders grew out of a broader recognition that the state had grown too powerful and exercised power too inconsistently. Restraining the state's ability to punish, largely by eliminating physical punishment, reducing the use of capital punishment, and placing limits on how long most offenders can be punished served to legitimate criminal sanctions and, by extension, the criminal justice system. In modern America, we have a system of restraint-based punishment largely because our system evolved from the experiences that our predecessors had with harsh and unfairly applied sanctions.

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7.2 The Philosophy and Goals of Criminal Sanctions Imagine that you or a close family member had been the victim of a crime—a serious crime in which personal harm was brought to you through no fault of your own. What would you want the state to do with the offender once he or she was found guilty? Would you want the offender executed? Would you want the offender placed in prison for years, decades, or life? Would you want the offender to have a chance to make amends to you, to repay you for your loss, and to hopefully lead a good life in the future? What would your reaction be if the criminal justice system did not meet your expectations for punishment, or especially if the criminal justice system refused to punish the offender?

These questions strike at the heart of what we mean when we discuss the goals of criminal sentences. Indeed, answers to these questions are usually a mix of wanting offenders punished and wanting them to be rehabilitated so that they no longer offend. These are overlapping and sometimes contradictory desires on the part of society. And while it is true that the public demands that criminal behavior be penalized, the public also expects the punishment to be fairly determined and proportional to the offense. Broadly stated, it is not so much that the public, or even many victims, want criminals to be held accountable, but that they also prioritize other competing values.

The goals of criminal sentences, then, represent priorities that the public places on the sanctions administered by the criminal justice system. People may prioritize one goal over another, but that does not mean that they view the other goals as unimportant. Research tells us that even people who work in the criminal justice system hold competing priorities about the purpose of punishing offenders (Ellsworth, 1990). These rationales also serve as the intellectual foundation for many criminal justice policies and sentencing schemes. Policy makers who favor providing offenders with jobs or educational opportunities usually elevate rehabilitation as a priority, while those who advocate broader use of incarceration usually do so from a retributivist, deterrence, or public safety position. Sentencing priorities, moreover, also change over time as public demands change, as crime rates ebb and flow, and as we gain more knowledge into what does and does not work with criminal offenders.

With this said, there are four basic goals of a criminal sentence: retribution, deterrence, incapacitation, and rehabilitation. These goals, or justifications for punishment, serve as the intellectual reason why, and even how, the criminal justice system punishes offenders.

Retribution of "Just Deserts"

As we discussed earlier, every society has a set of rules that governs individual behavior. When a person breaks a rule, there is a general social expectation that some consequence or penalty will be paid by the violator. Making offenders "pay," or holding them accountable, helps to satisfy public demands for justice. This is no small matter. As history has taught us, when a system of justice fails to dispense justice, it loses social legitimacy, causing victims to take the law into their own hands. Retribution, on the other hand, helps to satisfy public expectations that offenders be held to account for their behavior because it makes demands that the state punish or sanction the offender's behavior.

Retribution is the oldest justification for punishment and can be found in virtually every society. It can also be found in virtually every religious or ethical tradition. The Old Testament view of "an eye for an eye" captures the emotional thrust of historical conceptions of retribution. Many scholars, unfortunately, equate retribution with revenge. Revenge reflects a basic human reaction to the violation of one's rights, property, or person. It is emotional, often not proportional, and falls outside the bounds of legality. Retribution, however, seeks proportional, legal action against the ill-gotten gains or destructive actions of the criminal. Even the Old Testament view of an "eye for an eye" was actually about making punishments of the time more proportional, less severe, and more just. Retribution was also deeply integrated in the writings of Bentham and Mill, the utilitarian philosophers who provided the intellectual reasons for abandoning the brutal punishments of old. From their point of view, justice required that offenders be punished but also that the punishment be proportional to the crime. In this sense, retribution is as much about fairness and due process as it is a justification for sanctioning offenders.

Contemporary versions of retribution include the philosophy of just deserts. This view is deeply rooted in retribution. It emphasizes commensurate punishment as a way to address the violation of rights and property committed by the offender. It also assumes that offenders are rational—that is, that offenders calculate the costs and the rewards of their criminal behavior. Because offenders are rational actors, the theory argues, the correct response by the criminal justice system is to elevate the costs of the criminal behavior just enough to offset the gains.

Under a just deserts paradigm, punishment serves only the limited goal of addressing the criminal behavior of the offender. While other benefits may accrue because of punishment, such as an offender being deterred from future criminal behavior, these benefits are not the goal of the punishment. In the words of von Hirsch (1976, p. 4) "The seriousness of the offender's crime—not his need for treatment, his dangerousness, or the deterrence of others—ought to be decisive. Penalties must be scaled in accordance with the gravity of the offence, and departures from the deserved sentence should be impermissible—even if they had some crime-control usefulness." From a just deserts perspective, punishment serves only to offset the potential or actual rewards associated with crime and nothing more.

Deterrence

Crime, like other behaviors, is the product of choices people make. Burglary, fraud, and other property crimes result from the desires of individuals to take money, goods, and services from others. Even violent crimes are the result of decisions made by actors within a social context (Wright & Decker, 1997). For example, ethnographic research reveals that armed robbers choose to commit their crimes when they need money for drugs or rent or when the opportunity looks too good to pass up. Drug offenders who viciously beat or kill their rivals frequently do so after some degree of planning, while assaults of rival gang members are often carried out to send a message to the leaders of the gang. The point is, much crime is the result of some form of deliberate mental calculation.

If crime is deliberate action engaged in by individuals who weigh, no matter how slightly, the perceived risks and rewards of their actions, then state efforts to sanction offenders may serve to deter others from engaging in similar behaviors. This is known as deterrence. Deterrence uses the threat of punishment as well as

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Lindsay Lohan appearing in a Los Angeles court in 2011.

actual punishment to reduce the likelihood that some individuals will engage in crime. In theory, deterrent strategies increase the associated costs of crime and thus alter the criminal calculus of people thinking about committing crime.

Deterrence comes in two forms: general deterrence and specific deterrence. General deterrence seeks to reduce the likelihood of individuals committing crime in the first place, broadly speaking. For example, when you walk past an automobile that is unlocked and see something of value in the front seat, such as a new laptop, you may think about stealing the laptop. This is a strong incentive as laptops are costly. However, you may also think about getting caught, being arrested, prosecuted, and even jailed for the offense. In this sense, you have been deterred by the perceived costs associated with criminal behavior. Note too that the costs are not simply the criminal sanction, such as imprisonment, but also the shame of being arrested and other collateral emotional and practical consequences. In this sense, we punish individuals for crimes in part because doing so sends a message to other would-be offenders that their behavior, too, will be caught and sanctioned.

Yet many people engage in crime. For these individuals specific deterrence seeks to reduce their likelihood of reoffending or recidivating. For example, people placed on probation usually have to agree to live by certain standards, such as keeping a job, not using drugs, and not associating with criminal others. Probation officers use the threat of revoking an offender's probation to deter him or her from committing future crimes as well as to gain compliance with probation agreements. Moreover, judges may determine that some offenders need increased supervision or punishment in order to be deterred.

Deterrence theory justifies punishment in light of reducing future misbehavior. In some ways, deterrence theory also overlaps with just deserts, as both argue for proportionality in punishment; but since deterrence theory concerns itself with future behavior its aims are slightly different. Deterrence theory has also proven seductive to policy makers. Efforts to make the conditions of confinement more punitive, for example, are often couched in terms of their alleged deterrent value. Increasing the length of criminal sentences, increasing the use of capital punishment, and many other punitive efforts are often justified by arguing that they will deter crime. The evidence for this, however, is limited by at least three facts:

First, many crimes are not based on the rational calculations of actors but are instead engaged in by people who are impulsive and who give little thought to the likelihood of getting caught, much less punished.

Second, the perceived costs of punishment vary from one person to another. Many high-rate criminals, for instance, simply do not see probation or even incarceration as all that punishing. Moreover, some people simply do not respond to deterrent mechanisms. They do not see certain sanctions as punitive, do not believe they will get caught, or do not care what happens.

Third, for punishment to change behavior—that is, to deter it in the future—it has to be swift and certain. Our system of justice, with its emphasis on due process protections, however, severely hinders the swiftness with which the guilty can be punished. Moreover, empirical data converge with the experiences of offenders to conclude that the likelihood of getting caught for any single offense is very low. Elliot (1995), for example found that the probability of an arrest occurring for self-reported crimes of violence, including rape and assault, was 0.02. For every 100 self-reported robberies, Elliot calculated that fewer than 10 arrests occurred. The odds, it appears, are very much in the offender's favor.

Deterrence is difficult to achieve in our system of justice. Brutal penalties have been declared unconstitutional and efforts to increase the detection of crime often violate other rights or raise privacy concerns. Our system of due process, moreover, makes the application of criminal penalties uncertain and temporally distant from the criminal act. Arrested individuals often wait years before going to trial and, if found guilty, sometimes wait weeks to months to be sentenced for their crimes. Even when individuals plead guilty or do not contest their guilt, they sometimes have to wait months to serve their sentences. In many jurisdictions jails are filled to capacity and turn out offenders after they have served only hours or days of their total sentences. Lindsay Lohan, a well-known troubled actress, for example, was sentenced to 300 days in Los Angeles county jail after being in court 10 times in 2010. By law, she only had to serve 10 percent, or 30 days. She was released less than 5 hours after being admitted.

Incapacitation

There is one way that is certain to prevent an offender from committing crime in free society—that is, to remove the offender from society. This is the core idea behind incapacitation. People confined in prisons or institutions are no longer free to commit crimes in public. Having been removed from society, either through imprisonment or by execution, offenders are incapacitated. They are essentially prevented from engaging in future crime—at least while they are in prison.

Incapacitation has obvious appeal. There is certainty and safety in knowing that a dangerous or recidivistic criminal can no longer bring harm to others. Policy makers have relied on this certainty and intuitive appeal. Yet simple ideas are often, on closer inspection, not so simple. As with any justification for punishment, there are drawbacks.

First, incapacitation's effects, or the amount of crime saved by incapacitating an individual, are determined by how many crimes the offender commits per year. Crime can be reduced by incarcerating a high-rate offender, but many offenders commit crime only sporadically or are low-rate offenders. Incarcerating low-rate offenders saves little in the way of crime.

Second, incapacitation is costly. To place an offender in prison costs $20,000 to $30,000 per year in most states. In California, keeping a single inmate in prison costs $47,000 per year (Legislative Analyst's Office, 2011). This cost has to be offset by the cost savings, in terms of crime, associated with placing an offender in prison. Some offenders may engage in crime at a high rate, but their offenses cost society little in terms of loss of property, money, or lives.

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Crime is reduced when high-rate serious offenders are selectively incapacitated.

Stop and Think 7.2

What should be the goal of criminal sanctions? What are the limitations of each goal?

Third, some people who commit serious crimes, even murder, are not high-rate offenders, have no history of criminal involvement, and are otherwise prosocial. For example, those who kill others because they were driving while drunk are not always serial offenders. Few would argue that incarceration is inappropriate in these instances, but we should also expect very little in the way of crime savings.

Finally, the vast majority of individuals serving time in prison will eventually leave prison. Some scholars argue that incapacitation does nothing to change offenders while they are incarcerated and thus will do nothing to reduce crime upon their release (Cullen & Gendreau, 2001). Still others argue that the collateral consequences of incarceration act to increase crime in the future. For example, offenders with histories of incarceration may find it more difficult to land a job upon their release (King et al., 2005).

These limitations being noted, the best estimates find that the expansion of the prison population, which doubled from 1990 to 2005, accounted for approximately 25 percent of the crime drop in America (Levitt, 2004). Twenty-five percent is considerable, especially when contrasted against other crime-control mechanisms which generally produce no or very limited reductions (Worrall, 2008). Even so, as critics point out, this leaves 75 percent of the crime drop attributable to other factors. Incapacitation as a crime-control policy is limited partly because of the law of diminishing returns. As mentioned, crime is reduced when high-rate serious offenders are selectively incapacitated—that is, are targeted for increased punishment. However, there are only so many such offenders in the population. As the pool of these offenders was depleted and as policy makers made more and more crimes subject to incarceration, more low-rate offenders were incarcerated. And as policy makers began to rely on mass incarceration, they reduced the crime savings associated with incapacitation.

Today a strange mix of motives is affecting the use of incarceration to incapacitate offenders. With a major recession reducing state budgets, many states have sought to rely less on incapacitation and imprisonment. Institutions on the drawing boards have not been built while other prisons have been closed. Moreover, some states are making it more difficult to incarcerate an offender, mandating treatment in some cases and the use of intermediate sanctions in others. Time will tell if these efforts lead to more or less crime.

Rehabilitation

The Progressive Era of 1890 to 1920 ushered in a new theory of corrections. The idea was to treat the underlying conditions or causes of criminal behavior, not just to punish behavior. Progressive reformers sought to change the way offenders were understood, the ways in which the criminal justice system reacted to their behavior, and how they were sentenced. For progressives, criminals were the products of a bad environment and other forces beyond their control. Because of this, they were in need of treatment, therapy, or job skills. In order to accomplish these therapeutic goals, offenders were to be sentenced to an indeterminate amount of time in an institution—an institution whose goal it was to promote rehabilitation. Only after positive recommendations from social workers, therapists, and psychiatrists would offenders be released. Treatment, after all, was to be specific to the individual.

Early advocates of rehabilitation as a goal of corrections imagined a criminal justice system similar in aim and purpose to the medical system—where problems are diagnosed and effectively treated. This became known as the medical model. As a goal of corrections, rehabilitation remained a dominant priority through the 1960s, when serious questions began to emerge. These centered around three themes: First, many scholars began calling into question the effectiveness of rehabilitation programs and efforts. Robert Martinson, after reviewing a number of evaluation studies stated in 1974 that "with few and isolated exceptions . . . it appears that nothing works." Martinson's stinging indictment of the effectiveness of rehabilitation cannot be overstated (Cullen & Gilbert, 1983). It served as a tipping point in the debate about rehabilitation and helped to reduce the priority given to rehabilitation as a correctional goal through the 1970s and 1980s. Second, since rehabilitation was a highly individualized effort—requiring individual plans, interventions, and indeterminate amounts of time before being accomplished—issues of fairness emerged. Examples abounded. For instance, one armed robber might be incarcerated for a few short years while another is sentenced to decades. In due time these types of disparities began to be viewed not as necessary tools to rehabilitate criminals but as reflecting an unfair exercise of state power. Finally, what constituted "rehabilitation" by the state was often merely punishment cloaked in another name. Conditions in prisons during this time were harsh; they were overcrowded and in some places brutal. Calling these conditions rehabilitative struck many as nonsensical.

Modern reinterpretations of the rehabilitative ideal have been advanced, largely by a group of Canadian psychologists (Andrews & Bonta, 2010; Gendreau & Ross, 1987) and by a few American scholars who never abandoned the rehabilitative ideal (Cullen, 1994; Palmer, 1992). Their work has become known as the "what works" movement in correctional programming. While Martinson claimed that few programs worked to reduce recidivism, a close inspection of his data reveals that about 40 percent of the programs analyzed showed significant reductions between experimental and control groups. Using this information, these scholars began looking at what successful programs had in common. We will discuss this in more detail in Chapter 9, but for now note that their work has been used widely in corrections departments across the United States and that many programs based on rehabilitation have been shown to work in reducing offender recidivism (Andrews et al., 1990; Lipsey & Cullen, 2007). Whether rehabilitation will emerge as a dominant correctional goal in the future is uncertain, but many states are once more turning to the promise of rehabilitation as a crime-control mechanism.

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Judges decide whether offenders with multiple offenses will serve out their sentences concurrently or consecutively.

7.3 Sentencing Models Thus far we have examined the history and goals of criminal sentencing. As we have learned, criminal punishments used to be very harsh, even brutal. The historical trend, however, has been to move away from physical punishment and toward narrowly prescribed punishments that are limited by law. We have also learned that there are multiple goals to punishment and that each goal has a set of limitations. The question that then emerges is exactly how does the criminal justice system sentence individuals? This is a practical question that is substantially important because it affects the lives of millions of people.

In the United States, legislatures give judges a range of sentencing options from which they may choose the most appropriate sanction for a convicted offender. Judges are generally not free to impose any punishment they wish, although in most cases there is room for judicial discretion. The types and lengths of sentences vary depending on the severity of the offense. Misdemeanor offenses generally do not result in sentences more severe than prison terms of one year or less; however, felony offenses can result in prison sentences from 1 year in prison, to life in prison, to even death. Again, this depends on the level of the felony. The central goal is to keep the sentence proportionate to the severity of the offense. A secondary goal is to try to treat individuals convicted of similar crimes similarly.

Judges are usually permitted to decide whether offenders convicted of multiple offenses will carry out their sentences concurrently or consecutively. Concurrent sentences are those that are served simultaneously. For example, if an individual is convicted of two separate crimes and receives a 5-year sentence for each, he or she would serve both sentences at once and be eligible for release after 5 years. In contrast, consecutive sentences must be served one after the other. In this situation, the same individual would serve the first sentence of 5 years and, upon completion, would begin the second 5-year term for the other offense, resulting in a total of 10 years of imprisonment.

The type of sentence one receives may also depend on other factors. The characteristics of the offender, for example, may influence judicial decision making. Juvenile delinquents may receive milder sentences than adult offenders. Chronic or repeat offenders may receive harsher sentences than first-time offenders, with whom judges may be more lenient. Prison crowding has also been a major concern in many jurisdictions for decades, resulting in the development and increased use of alternative sentences. Before we examine these alternative sentencing strategies, however, keep in mind that in practice about 90 percent of all criminal cases are determined through plea agreements between the prosecutor and the defense counsel (Devers, 2011). Plea agreements are reached through a process of negotiation in which the defendant pleads guilty to a lesser offense or fewer charges in exchange for a more lenient sentence or a reduction in the level of criminal

charges.

Indeterminate Sentencing

In 1870, the first meeting of the American Correctional Association was held in Cincinnati, Ohio. During the meeting, standards and principles for managing offenders were developed, as well as an early release system. This initiated the use of parole in the United States and led to changes in state sentencing structures that dominated for most of the 20th century. Under the indeterminate sentencing model, the sentencing judge is granted a substantial amount of discretion. The judge determines the type of sentence and the minimum and maximum lengths of prison terms, such as 1 to 3, or even 1 to 20 years. This type of sentencing structure also allows the judge to consider specific details of each case. For example, the judge may consider the motivation for committing the crime (e.g., need for money, seeking revenge), the role of or harm to the victim, the amount of remorse the offender displays, and the likelihood that the offender will be rehabilitated.

The actual length of time an inmate will remain in custody is determined by the parole board. Indeterminate sentencing models are based on the goal of rehabilitation. If convicted offenders demonstrate that they have been reformed while incarcerated, usually by good behavior, they may be granted an earlier release through parole. Because parole boards are afforded the final determination of an offender's sentence length, the board has great discretion. This system also provides some incentive for offenders to actively participate in their own rehabilitation. Inmates can take advantage of prison programming, such as substance abuse treatment or anger management training, in an effort to convince the parole board that they are ready to rejoin society.

Table 7.1 Advantages and Disadvantages of Indeterminate Sentencing

Advantages Disadvantages

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Individualized case processing

Based on the goal of rehabilitation

Considers public safety in release decisions

Release decisions are made by officials in direct contact with the offender

Promotes professionalism and effectiveness of criminal justice officials

Decisions are insulated from public attention, making sanctions less emotionally charged

Allows for corrections administrators to efficiently deal with overcrowding and limited resources

Can result in disparate sentencing for those convicted of similar crimes

Broad discretion among criminal justice officials allows for biases or stereotyping to influence decision-making

Limited available and low quality of programming can limit opportunities for reform

Offenders may not receive the "deserved punishment"

Decisions are made "behind-closed-doors" without realization of the public's view

Treatment effectiveness among offenders was questioned

Adapted from Tonry, M. (1999). Reconsidering indeterminate and structured sentencing. Washington, DC: National Institute of Justice.

The indeterminate sentencing model existed in every jurisdiction until the 1970s, when American sentencing practices began to change rapidly (Allen et al., 2007). Support for indeterminate sentencing was lost when it was criticized for being a source of disparity in the criminal justice system. A number of civil rights and prisoners' rights activists claimed that the discretion made available to criminal justice decision makers created opportunities for discrimination based on race, gender, or ethnicity. During this period, there was also a shift away from rehabilitation as a guiding philosophy. Prison riots suggested that the experiences of inmates were not conducive to their rehabilitation, and emerging research suggested that efforts to reform offenders were unsuccessful (Martinson, 1974). In light of these criticisms, several states developed new sentencing strategies; however, some form of indeterminate sentencing is still used in many states (Tonry, 1999).

Structured Sentencing

During the 1970s a number of states turned to a structured sentencing model, which was expected to achieve greater proportionality and equity in sentencing by restricting the discretion of judges (Spohn, 2000). Proportionality refers to the relationship between the seriousness of the offense and the severity of the sentence. For example, an offender convicted of petty theft should receive a less severe sentence than one convicted of rape. Equity refers to the practice of applying sentences similar in severity to offenders convicted of the same type of crime and the belief that sentencing decisions should not be influenced by the social or personal characteristics of the offenders.

One form of structured sentencing is determinate sentencing. Under this model, convicted offenders are sentenced to a fixed term of imprisonment. Determinate sentencing largely takes away the discretion of judges; moreover, states employing this strategy have eliminated the use of parole, since all offenders receive fixed sentences. Even so, an offender's actual time served can be reduced through good time. Awarding inmates with a reduction in the number of days served creates incentive for cooperation during incarceration. The ideology underlying this approach is retribution, deterrence, and incapacitation, reflecting the shift toward more punitive strategies and away from rehabilitative efforts.

Some states developed voluntary sentencing guidelines during the 1980s. These sentencing recommendations were based on previous sentencing patterns, but judges were not required to adhere to them. This strategy served as an early development in structured sentencing, but it can be applied to both indeterminate and determinate sentencing strategies. The implementation of voluntary sentencing guidelines has not been successful, and many states ultimately abandoned the use of voluntary guidelines.

The next development in structured sentencing was presumptive sentencing guidelines. Unlike voluntary sentencing guidelines, these require that judges adhere to the applicable guidelines for each case. In some states, sentencing decisions are based on scores derived from the use of a sentencing grid that incorporates the seriousness of the current offense and the offender's criminal history. Offenders who have a longer criminal history are more likely to recidivate and are considered to pose a greater threat to the public. The use of sentencing grids, such as the one displayed in Table 7.2, allow the sentencing judge to impose a sanction that is proportionate to the current offense, but also takes into consideration public safety.

Judges are permitted to impose sentences outside of the guidelines, but they are required to provide written explanations for their decisions to do so. Departures from the sentencing guidelines may be justified if aggravating or mitigating circumstances exist. Aggravating factors are those that cause the offense to be considered as more serious than usual and generally result in harsher sentencing. Examples of aggravating circumstances include particularly heinous or cruel acts, possession or use of a deadly weapon during the crime, or offenses against law enforcement officers. Mitigating factors, on the other hand, are those that decrease the blameworthiness of the offender. These factors typically result in a reduction of the severity of the sentence. Mitigating factors can include cooperation with law enforcement, acting under strong provocation, or being of good character.

Table 7.2 Massachusetts Sentencing Grid

Level Illustrative Offense Sentencing Range

9 Murder Life Life Life Life Life

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8 Manslaughter (voluntary) Rape of a child with force Aggravated rape Armed burglary

96–144 mos.

108–162 mos.

120–180 mos.

144–216 mos.

204–306 mos.

7 Armed robbery Rape Mayhem

60–90 mos.

68–102 mos.

84–126 mos.

108–162 mos.

160–240 mos.

6 Manslaughter (involuntary) Armed robbery (no gun) A&B DW (signifi cant injury)

40–60 mos.

45–67 mos.

50–75 mos.

60–90 mos.

80–120 mos.

5 Unarmed robbery Stalking in violation of order Unarmed burglary Larceny ($50,000 and over)

12–36 mos. IS-IV IS-III IS-II

24–36 mos. IS-IV IS-III IS-II

36–54 mos.

48–72 mos.

60–90 mos.

4 Larceny from a person A&B DW (moderate injury) B&E (dwelling) Larceny ($10,000 to $50,000)

0–24 mos. IS-IV IS-III IS-II

3–30 mos. IS-IV IS-III IS-II

6–30 mos. IS-IV IS-III IS-II

20–30 mos.

24–36 mos.

3 A&B DW (No or minor injury) B&E (not dwelling) Larceny ($250 to $10,000)

0–12 mos. IS-IV IS-III IS-II IS-I

0–15 mos. IS-IV IS-III IS-II IS-I

0–18 mos. IS-IV IS-III IS-II IS-I

0–24 mos. IS-IV IS-III IS-II IS-I

6–24 mos. IS-IV IS-III IS-II IS-I

2 Assault Larceny under $250

IS-III IS-II IS-I

0–6 mos.

IS-III IS-II IS-I

0–6 mos.

IS-III IS-II IS-I

0–9 mos. IS-IV IS-III IS-II IS-I

0–12 mos. IS-IV IS-III IS-II IS-I

1 Operating after suspended license Disorderly conduct Vandalism

IS-II IS-I

IS-III IS-II IS-I

0–3 mos. IS-IV IS-III IS-II IS-I

0–6 mos. IS-IV IS-III IS-II IS-I

Criminal history scale A No/Min. record

B Moderate

record

C Serious record

D Violent or repetitive

E Serious violent

Sentencing Zones

Incarceration zone Discretionary zone (incarceration/intermediatesanction Intermediate sanction zone

Intermediate Sanction Levels

IS-IV = 24-hour restriction IS-III = Daily accountability IS-II = Standard supervision IS-I = Financialaccountability The numbers in each cell represent the range from which the judge selects the maximum sentence (not more than); The minimum sentence (not less than) is two thirds of the maximum sentence and constitutes the initial parole eligibility date. Source: http://www.mass.gov/courts/formsandguidelines/sentencing/grid.html

Federal Guidelines

The federal government has also adopted a presumptive sentencing strategy for handling federal offender cases. Guidelines are established by the U.S. Sentencing Commission, which was created by the Sentencing Reform Act (SRA) as part of the Comprehensive Crime Control Act of 1984. The federal guidelines are based on the severity of the offense, which is made up of 43 levels and 6 criminal history categories. Similar to the sentencing guidelines used at the state level, federal judges are permitted to impose a sentence outside of the guidelines if "the court identifies a factor that the Sentencing Commission failed to consider that should result in a different sentence" (U.S. Sentencing Commission, 2011, p. 3).

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The federal sentencing guidelines were implemented in 1987 but were quickly met with challenges questioning their constitutionality. Defendants in the federal system argued that the guidelines violated the separation of powers doctrine; however, the U.S. Supreme Court upheld the constitutionality of the formation of the Sentencing Commission in Misretta v. U.S. (1989). As a result, in January 1989 the federal guidelines were applied nationwide. Since that time, more than 1 million defendants have been sentenced under this model (U.S. Sentencing Commission, 2011).

The federal sentencing guidelines have continued to develop through a number of Supreme Court decisions. In Blakely v. Washington (2004), the U.S. Supreme Court ruled that the Sixth Amendment right to a jury trial had been violated in Blakely's case and that the facts of a case must be either admitted by the defendant or decided by a jury. A year later, in United States v. Booker (2005), the Supreme Court held that the federal sentencing guidelines were not mandatory but that judges were required to consult the guidelines and take them into consideration in sentencing decisions. Subsequent decisions in Rita v. United States (2007), Gall v. United States (2007), and Kimbrough v. United States (2007) have further encouraged adherence to the federal sentencing guidelines.

The Comprehensive Crime Control Act of 1984 also addressed the issue of "real time" sentencing. Previously, the use of parole and good-time reduced the actual time offenders served by about one third (U.S. Sentencing Commission, 1987). Although these factors reduced crowding and benefited offenders, victims were dissatisfied with these outcomes, which further motivated the "get tough" attitude toward offenders. The 1984 act led to the development of truth-in-sentencing laws, which require offenders to serve a substantial proportion of their original sentences. The Violent Crime Control and Enforcement Act of 1994 encouraged states to adopt truth-in-sentencing laws, which required violent offenders to serve at least 85% of their original sentences; it also provided $4 billion to the construction of federal prisons. At least 40 states have enacted some type of truth-in-sentencing legislation, and have restricted or eliminated the use of parole and good time (Ditton & Wilson, 1999).

Critics of truth-in-sentencing laws have argued that this approach will drastically increase prison populations, further contributing to the problem of prison crowding. The available research indicates, however, that truth-in-sentencing legislation does generate greater consistency in initial sentencing and actual time served. There is also evidence suggesting that this strategy has not significantly contributed to growing prison populations, which is likely related to existing crime patterns and social factors (Dickey & Hollenhorst, 1999).

Mandatory Sentencing

Several states have adopted mandatory sentences, another form of structured sentencing. These sentences are different from presumptive sentences in that they are fully mandatory. Sentences for specific offenses and for habitual offenders are clearly defined and judges are not permitted to deviate from them. By implementing mandatory sentences, legislators indicate that specific crimes will be not be tolerated and those who commit them will be met with harsh penalties. This sentencing model is based on philosophies of retribution and deterrence and does not promote the rehabilitation of the offender.

Recently some states have enacted "three strikes" laws targeting habitual offenders. In most of those that have adopted this type of legislation, offenders convicted of three violent felonies and in some cases also drug offenders receive substantially longer prison sentences than those typically imposed. In some cases offenders are sentenced to life in prison with no opportunity for parole. The goal is to deter known, potentially violent offenders and to incapacitate those who have repeatedly threatened the safety of the public.

The effectiveness of three-strikes policies has been highly debated. Recent research, however, suggests that their adoption may not have produced the intended results. Worrall (2004) examined counties in California that had employed this approach between 1989 and 2000. The results indicate that the law has "virtually no deterrent or incapacitating effects on serious crime" (Worrall, 2004 p. 293). A study of 188 cities across the United States from 1988 to 2000 also did not support this policy (Kovandzic et al., 2004). Furthermore, a community survey by Applegate and colleagues (1996) found that when citizens are presented with questions that include specific details as opposed to broad questions, support for three-strikes policies is lower than expected. Citizens are supportive of the use of three-strikes laws only for the most serious offenders.

Another form of mandatory sentencing is referred to as mandatory minimum sentencing. Mandatory minimums were established by Congress in 1986 in response to the growing concern over violence and drugs. As such, many of the minimum sentences for drug violations were based on the weight of volume of the drug sold and the presence of a firearm. Mandatory minimums could range from 5 years for some offenses to 10 or 20 years for others. Problems with mandatory sentences quickly emerged, especially mandatory minimum sentences. First, whether or not a person was eligible for a mandatory sentence depended on the decision of the prosecutor as to what the offender would be charged with. Second, in some cases the guiding principle of proportionality was clearly violated. Nonviolent offenders, offenders who had not physically harmed anyone, were sometimes given sentences that far exceeded the gravity of their offense. For example, certain drug offenders who were subject to mandatory sentences received terms of incarceration longer than offenders who had committed murder, robbery, or rape. In some instances, mandatory minimum sentences can contribute to prison overcrowding. In recent years, however, mandatory minimums have been applied less frequently to drug offenders than to sex offenders. Federal mandatory minimum laws for certain sex offenses are shown below (Title 18, United States Code):

§ 1591(b)(1) and (2) (minimum 10- or 15-year term for sex trafficking of a minor depending on the age of the victim)

§ 2241(c) (minimum 30-year term for traveling across state lines with the intent to have sex with a child under 12 years of age or for crossing state lines and having sex with a child between the ages of 12 and 16 under certain aggravating circumstances)

§§ 2251(e) and 2260(c)(1) (minimum term of 15 years for production of child pornography and enhanced minimum terms if such a defendant has a prior felony conviction for an enumerated sex offense)

§ 2251A(a) & (b) (minimum term of 30 years for buying or selling, or otherwise transferring, children for the purpose of participating in the production of child pornography)

§ 2422(b) (minimum term of 10 years for using mails or facilities or means of commerce to cause a minor to engage in prostitution or other criminal sexual activity)

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Runaway bride Jennifer Wilbanks mowing the lawn of a government building as part of her sentence for lying to police.

Stop and Think 7.3

Some people argue that mandatory criminal sanctions are unfair, while others argue that fairness is created by treating offenders similarly. Are mandatory sentences fair? Are they always fair?

§ 2423(a) (minimum term of ten years for transporting a minor in commerce for the purpose of engaging in prostitution or other criminal sexual activity)

§ 3559(e) (mandatory life imprisonment for second conviction for certain sex offenses again minors)

Intermediate Sentencing

A recent development in sentencing strategies is the use of intermediate sentences (also referred to as alternative sanctions). Prison and jail crowding have forced states to create sanctions that provide an alternative to incarceration while still ensuring the safety of the public (Latessa & Smith, 2007). Examples of intermediate sentences include intensive supervision programs, home detention, electronic monitoring, confinement in community-based correctional facilities, shock incarceration (also called "boot camps"), and drug courts. There is substantial variation across intermediate sanctions and the philosophies that guide them. Many of these sanctions are based on "get tough" policies, which seek to deter offenders by imposing stricter penalties. On the other hand, some sanctions, such as those of drug courts, are treatment-based and focus on the rehabilitation of the offender.

Some judges have started imposing innovative, nontraditional sentences in order to shame the offender. For example, judges have also ordered offenders convicted of theft to stand outside of stores holding signs indicating that they stole from those establishments. In the 2005 "runaway bride" case, Jennifer Wilbanks fled her hometown of Duluth, Georgia, to avoid her wedding to fiancé, John Mason. Her sudden disappearance gained nationwide media attention, and authorities initiated a search for her. Three days after her disappearance, Wilbanks telephoned her fiancé and falsely reported that she had been kidnapped and sexually assaulted. She repeated these claims to police and was ultimately charged for giving them false information. Wilbanks was ordered to pay $2,550 in restitution to the police department and sentenced to 120 hours of community service, which was served by mowing the lawns of government buildings and collecting trash (MSNBC, 2005).

Gendreau and colleagues (1996) conducted a meta-analysis to determine the effectiveness of different intermediate sanctions. This study included analyses of 44 intensive supervision programs, 16 restitution programs, 13 boot camps, 13 "scared straight" programs, 9 drug-testing programs, and 6 electronic monitoring programs. The results suggested that such "get tough" sanctions did not reduce recidivism; in some cases, recidivism rates rose after participation in these programs. Nonetheless, intermediate and innovative sentences provide the courts with

options that can help to keep some offenders out of prison while at the same time meeting the goals of justice.

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7.4 Capital Punishment In 2006, Katron Walker drove to the home of his father-in-law. After a brief fight, he abducted his two sons, Collin, age 4, and Monte, age 2. Katron's wife, Theresa, had recently filed for divorce and had also filed an order of protection against Katron because of his violent behavior. He drove the boys to a small cabin on a lake where he had prepared a handful of knives and stored methamphetamine. Police, who had issued an Amber Alert earlier in the day, received a tip that Katron and the boys were at the lake. Before they could arrest Walker, however, Katron stabbed Collin in the heart. Collin's last words, according to witnesses, were "I love you daddy."

When the police arrived, Walker ran out of the cabin with the naked boys in hand. He entered the lake, where he dropped Collin's body and slit Monte's throat. After a brief struggle, police were able to pull Monte from the lake and save his life. When asked about Collin, Walker told police "He's probably at the bottom of the lake by now."

In the case of Katron Walker, there was no doubt about his guilt. He violently abducted his sons after his wife filed for divorce and, in order to strike back at her, he murdered his 4-year-old son and slit the throat of his 2-year-old son in front of witnesses, including police officers. The case, as they say, was "open and shut." This was a capital crime, and Katron faced a death sentence if convicted. Because of this, the legal process essentially ground to a halt. However, after 3 years of legal maneuvering, the prosecutor, with the support of Walker's ex-wife, agreed to a plea bargain that would take the death penalty off the table in return for Walker's admission of guilt. Observers also noted that accepting the plea bargain also saved the county about $500,000 in legal expenses. The judge, David Bolk, listened to 3 days of testimony, held the sentencing hearing, and then sentenced Walker to 95 years in prison. He would be eligible for parole after serving 60 years. After learning of his sentence, Walker walked out of the courtroom and past his ex-wife and surviving son. As he did, he said to his ex-wife, "Tell Monte I'll be waiting for him."

Walker's case highlights the essence of the death penalty debate in the United States. At one level, a serious, violent crime occurred in front of reliable witnesses. The crime was particularly heinous, involving the death of a child and the attempted murder of another. Yet the criminal justice system in the county where this happened, Vigo County in Indiana, seemed unready for a capital case. Lawyers, for example, had to become "death eligible," meaning they had to have special training in how to defend capital cases. The prosecutor's office required the expenditure of extraordinary funds to prosecute the case of an obviously guilty man. And the judiciary grew tired of the constant delays caused by the defense attorneys. The family of the murdered boy, moreover, could only watch as the process grew more and more intolerable. By the time of the plea bargain, the family was simply exhausted and had no more energy for a trial—a trial that would still be years off.

Figure 7.1: Number of Persons Executed in the United States, 1930–2009 The number of executions gradually declined form the 1930s to the 1960s, increasing again in the 90s. More recent criminal punishment data from the Bureau of Justice may now be available. Visit https://www.bjs.gov/index.cfm?ty=tp&tid=18 (https://www.bjs.gov/index.cfm?ty=tp&tid=18) .

Bureau of Justice Statistics (2010). Capital Punishment, 2009—Statistical Tables. Washington, DC: U.S. Department of Justice.

To death penalty proponents, the Walker case reflects all that is wrong with our current system of capital punishment. Even in cases where the crime was committed in front of police officers, they would argue, there are so many procedural and legal safeguards to imposing a death sentence, much less to actually carrying out the execution, that the system has been rendered ineffective. Because of this, it serves no deterrent or retributive function. Yet to opponents of capital punishment, state sponsored death is immoral and the safeguards put in place serve to protect anyone who may find himself or herself facing a capital charge.

Yet for all that has been written about it, for all the impassioned debates, all the court cases, and all legal maneuvering it causes, capital punishment is exceedingly rare and, for the most part, irrelevant to the day-to-day operations of the criminal justice system. Indeed, what makes capital punishment stand out is that it has evolved into one of the least-used penalties for some of the most heinous crimes. Since the early 1980s, for example, states

https://www.bjs.gov/index.cfm?ty=tp&tid=18

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Charles Manson was denied parole at all 12 of his parole hearings since his incarceration in 1971. Manson was found guilty of conspiracy to commit murders carried out by members of his commune.

across the country have executed fewer than 40 people per year on average, and in 2009 only 112 people were sentenced to death (Death Penalty Information Center, 2011). To put this into perspective, 112 cases represent just a fraction of all arrests and only a fraction of all homicide cases.

While death penalty cases are exceptionally rare, they remain unique in the American system of justice. Execution, after all, is the only permanent, irreversible penalty available to the criminal justice system. Executions were much more routine during the early 1900s, when about 200 people were executed each year. Use of the death penalty declined substantially from the 1930s to the 1960s. In 1972, under Furman v. Georgia, the Supreme Court temporarily halted executions in America. Capital punishment was reinstated in 1976 through Gregg v. Georgia. In 1999, a total of 98 convicts were executed, 35 of them in Texas. The number of executions per year has dropped since 1999. In 2010, for example, 38 people were put to death (Death Penalty Information Center, 2011).

Currently only 34 states and the federal government retain a death penalty option; 16 states have done away with the use of capital punishment. Of the 34 states with the death penalty, many, like California, rarely if ever actually carry through with an execution. In 2011, for example, 18 of the 34 jurisdictions with the death penalty executed not a single person. Most executions, moreover, are carried out in just a few states, such as Texas, Virginia, and Florida. As of January 1, 2011, a total of 3,251 people were on death row awaiting execution. The majority of these individuals will never be executed. Those who will face their demise will sometimes spend 20 or more years on death row. Current trends foreshadow the continued decline in the use of the death penalty. Illinois governor George Ryan, in 2003, commuted the death sentences for 167 people. New Jersey, in 2007,

abolished the death penalty, and in 2011, the governor of Oregon suspended executions in his state.

Despite its limited use, the death penalty remains a lightning rod for controversy. Perhaps no other issue stirs as much passion, attention, and rhetoric as does the death penalty. Each side of the debate has honed its arguments, each makes strong emotional and logical appeals, and each sometimes uses statistics of dubious quality to advance its position.

Pro–Death Penalty

There are several arguments in favor of capital punishment. At the core, these arguments often boil down to retribution. Some crimes, advocates argue, are so heinous, so disturbing, that the only punishment proportional to the offense is death. This view also appears to be part of the reasoning behind the broad public support in favor of the death penalty. Public opinion surveys consistently show that the majority of Americans support the use of capital punishment, although the exact percentages change over time. A Gallup poll of 1,000 adults, for example, found that 65 percent believed the death penalty to be morally acceptable (Gallup, 2011). Moreover, Gallup has tracked public support for capital punishment since 1936. From 1936 to 2011, public support for the death penalty has ranged from a low of 47 percent in the 1960s to a high of 80 percent in the early 1990s. In 2011, a total of 61 percent of respondents supported the death penalty (http://www.gallup.com/poll/1606/death-penalty.aspx (http://www.gallup.com/poll/1606/death-penalty.aspx) ).

Retribution aside, advocates also present other arguments. For example, some supporters argue that the imposition of the death penalty serves an important moral function in society. That is, by severely sanctioning crimes that many consider "evil," society reinforces its moral prohibitions against such acts. Not only is the death penalty moral, they argue, but not imposing it in certain instances is immoral. Judge Alex Kozinski of the U.S. Ninth Court of Appeals (2002) highlighted this point clearly when he said:

Immanuel Kant said it best. He said a society that is not willing to demand a life of somebody who has taken somebody else's life is simply immoral. So the question [is] really . . . when the system works and when you manage to identify somebody who has done such heinous evil, do we as a society have a right to take his life? I think the answer's plainly yes. And I would go with Kant and I would say it is immoral for us not to. [http://deathpenalty.procon.org/view.answers.php?questionID=1038 (http://deathpenalty.procon.org/view.answers.php?questionID=1038) ]

Imposition of the death penalty serves not only symbolic purposes, such as reaffirming social values, but also has the very real effect of incapacitating individuals— permanently. With the death penalty, it is guaranteed that a person will not commit crime in the future. In this way, society is spared other evil acts. And when a sentence is carried out, advocates maintain, it serves a general and specific deterrent effect. Supporters of capital punishment argue that when criminals are executed, a message is sent to others who might also think about committing serious crime. Furthermore, a message is also sent to those who would never offend that their efforts to control their own behavior result in the avoidance of penalty and even death.

Some empirical studies also show that the imposition of the death penalty deters other would-be murders. Studies by economists, for example, generally find a deterrent effect. In 1975, Isaac Ehrlick published a classic study that purported to find that executions reduced the murder rate. In 2001, Hashem Dezhbakhsh and colleagues found that each execution resulted in 18 fewer murders per year. Again, in 2006, Dezhbakhsh and Shepard found that not only did the frequency of executions result in fewer murders but that during the period in which the Supreme Court imposed moratorium on executions (1972–1976), the murder rate increased by more than 22 percent. "The results are boldly clear," write Dezhbakhsh and Shepard (2006, p. 27), "executions deter murders and murder rates increase substantially during moratoriums." More recently, Land and associates (2009) found that executions were associated with short-term, 1- to 4-month, reductions in homicides.

http://www.gallup.com/poll/1606/death-penalty.aspx

http://deathpenalty.procon.org/view.answers.php?questionID=1038

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Deterrence, incapacitation, and retribution are powerful arguments for capital punishment. What is also interesting, however, is that while advocates support having executions carried out more often, they do so only for a very restricted range of offenses. Even those who support capital punishment, for example, believe in due process and proportionality. They do not want to see the punishment used for minor crimes or even in all cases where a death occurred. Moreover, proponents often point out that even when a death penalty verdict has been reached, appeals can take years or even decades before the sentence is carried out. This makes a mockery of the system, according to proponents, and represents just another way for criminals to avoid paying the ultimate price. According to the Bureau of Justice Statistics, for example, the average length of time between being sentenced to death and being executed between 1973 and 1983 was about 50 months. Owing in large part to the almost endless appeals available to convicts, in 2009 this had reached 169 months (Snell, 2010). Some states, such as Texas, however, have placed restrictions on appeals available to convicts and have reduced the amount of time between being sentenced and being executed.

Table 7.3 Methods of Execution by State, 2009

State Lethal Injection Electrocution Lethal gas Hanging Firing Squad

Total 36 9 4 3 2

Alabama Χ Χ

Arizona Χ Χ

Arkansas Χ Χ

California Χ Χ

Colorado Χ

Connecticut Χ

Delaware Χ Χ

Florida Χ Χ

Georgia Χ

Idaho Χ

Illinois Χ Χ

Indiana Χ

Kansas Χ

Kentucky Χ Χ

Louisianna Χ

Maryland Χ

Mississippi Χ

Missouri Χ Χ

Montana Χ

Nebraska Χ

Nevada Χ

New Hampshire Χ Χ

New York Χ

North Carolina Χ

Ohio Χ

Oklahoma Χ Χ Χ

Oregon Χ

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Pennsylvania Χ

South Carolina Χ Χ

South Dakota Χ

Tennessee Χ Χ

Texas Χ

Utah Χ Χ

Virginia Χ Χ

Washington Χ Χ

Wyoming Χ Χ

Note: More recent criminal punishment data from the Bureau of Justice may now be available. Visit https://www.bjs.gov/index.cfm?ty=tp&tid=18 (https://www.bjs.gov/index.cfm?ty=tp&tid=18) .

Source: Bureau of Justice Statistics (2010). Capital Punishment, 2009—Statistical Tables. Washington, DC: U.S. Department of Justice.

Anti–Death Penalty

Reasonable people disagree with the use of capital punishment. Even those who support capital punishment often do so not with enthusiasm but with hesitancy. It is no small thing to take the life of another, no matter how justified the action may be. Death penalty abolitionists, or those who wish to ban the use of capital punishment in the United States, present serious arguments that should be considered in the debate. These arguments are presented below.

The Death Penalty Is Administered Unfairly

Abolitionists argue that the administration of the death penalty is done in a way that invites the arbitrary and unfair use of discretion. They note, for example, that some individuals who engage in crime that could result in a capital charge are never actually charged with a capital crime. Instead, they are spared the death penalty because they plead guilty, as in the Katron Walker case, or they provide the state with important evidence on other criminal activity. Similar behaviors thus are not treated similarly (Vito & Keil, 1988).

The issue of fairness also extends to matters of race and sex. Abolitionists maintain that the death penalty is administered in a way that is racist at worst or, at a minimum, racially biased. In 2009, a total of 42 percent of those on death row were African American while 44 percent were White. Almost 55 percent of all individuals ever executed in the United States have been African American—a startling number considering that African-Americans constitute about 15 percent of the overall population. Moreover, some empirical evidence finds that the race of the victim and race of the offender influence who is likely to be sentenced to death. The highest probabilities of being sentenced to death are found when Black offenders kill White defendants (Applegate et al., 1993; Holcomb et al., 2004; Pierce & Radelet, 2005). Research by David Baldus, for example, found that defendants accused of killing white victims were four times more likely to be sentenced to death than defendants accused of killing a member of a minority group (Baldus et al., Woodworth, 1990). While proving racial discrimination is very difficult, abolitionists question whether the penalty is administered in a way that is unfair or biased. If it is, as they argue, the penalty would lose legal and moral legitimacy.

The Death Penalty Does Not Deter Crime

Just as there is evidence showing that the imposition of a death sentence reduces homicides, there is evidence too that the penalty has no deterrent effect or, worse, that the penalty may actually encourage crime. Many increases in homicide rates simply coincide with social movements and general spikes in crime regardless of the death penalty. Death penalty opponents are quick to note that states that do not have the death penalty have crime rates that are similar to and, in some cases, lower than crime rates in states with the death penalty. Moreover, scholars offer serious critiques of studies that purport to show a deterrent effect attributable to executions (Berk, 2005) and note that much of the detected deterrent effect of executions can be attributed to a single state—Texas.

Some opponents, however, argue that the penalty not only fails to deter potential offenders but actually causes future homicides. Advocates call this a brutalization effect. The idea is that when the state lifts the moral prohibitions against killing, as it does when it executes an individual, that it sends a signal to citizens that killing is acceptable. In this way, the "brutality" of the death penalty may foster additional murders (Bowers & Pierce, 1980). Some empirical evidence supports this idea. Research by Cochran and Chamlin (2000), for example, showed that murders increased when Oklahoma reinstituted the death penalty.

Capital Punishment Is Financially Costly

While estimates vary, most show that the financial costs associated with the death penalty are greater than the costs of a life sentence. Cost estimates vary based on how quickly and how often the death penalty is actually carried out. Cost estimates in Texas, the most efficient death penalty state, show that each execution costs $2.3 million dollars; in California, capital cases cost state taxpayers more than $114 million per year. Much of this cost comes from the trials and extensive appeals process. They require specially trained lawyers and rely heavily on experts, making these trials often exceedingly costly.

Innocence and Mistakes of Fact

https://www.bjs.gov/index.cfm?ty=tp&tid=18

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Stop and Think 7.4

At a recent death penalty debate, proponents argued for reducing the number of appeals available to convicts in order to increase the deterrent effect of capital punishment. Opponents, however, argued that the death penalty has no deterrent value and should be abolished. Criticize each position.

Perhaps the most powerful argument against capital punishment has nothing to do with its effectiveness, costs, or morality. In any system of justice mistakes are made: Witnesses are misidentified, scientific tests are botched, political considerations enter into decisions, and even intelligent jurors miscalculate the weight of the evidence. Of course if carried out, the death penalty cannot be undone should the victim be proven innocent after the fact.

In the past, all criminologists could do was to calculate "error rates," or the likelihood that an innocent person would be placed on death row. The advent of DNA evidence, however, has changed this. In some situations, DNA evidence can be used to assess actual innocence and, in 17 cases thus far, DNA has been successfully used to exonerate men awaiting execution. Since the advent of DNA testing in the mid 1980s, a total of 280 men convicted of felonies and serving time in prison have been exonerated by postconviction DNA analysis (Innocence Project, 2011). While 17 cases represent less than 1 percent of the over 3,000 individuals currently on death row, it is by no means insignificant. Even if the overall error rate was ½ of 1 percent for all felony cases, this would still translate into several thousand people per year being wrongfully convicted of a serious crime.

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7.5 Chapter Summary Rules are necessary for a society to function. Because we have rules, we also have to have consequences for those who violate the rules. As we have seen, the consequences for violating the law have historically been very severe. Severity, however, has given way to consequences that are legally derived, usually proportional to the offense, and applied with some degree of consistency. Today, for example, most studies on criminal punishment and sentencing find that the seriousness of the current offense and the offender's prior criminal record are the primary determinants of sentence length (Pratt, 1998). While scholars still debate the relative importance of extralegal factors in criminal sentencing, such as race, sex, and socioeconomic status, most sentencing outcomes are now based largely on legally relevant factors. This stands as a testament to the evolution of legally guided and legally restrained punishment. While important exceptions exist, in a broad sense the criminal justice system punishes offenders in a way that is predictable and somewhat consistent.

The goals of punishment have also changed over time. Today we generally do not worry about the souls of offenders in a religious sense, but we do worry about how effective our efforts to sanction criminals are and about whether our punishments are just and proportional. Again, this is a far cry from where we started out as a country. Moreover, research tells us that American citizens and criminal justice practitioners hold complex views about the goals of punishment. They tend to support capital punishment, but many also support life without parole as an option (McGarrell & Sandys, 1996; Moon et al., 2000); they want dangerous and recidivistic criminals off the streets, but they also support efforts to rehabilitate offenders who are incarcerated (Applegate et al., 1997); they support holding less serious offenders accountable, but they also support helping them if they have problems with drug and alcohol addiction or mental health problems. Americans, it appears, want retribution, deterrence, rehabilitation, and, in certain cases, incapacitation. In this sense, the goals of punishment are multifaceted and collaborative, not mutually exclusive and at odds with each other.

Just as our ideas about punishment have changed over time, so too have the ways in which we have sentenced offenders. The tremendous discretion once given to judges through indeterminate sentences has largely been reduced. Most states now rely on presumptive sentencing guidelines that, in some ways, relocate discretion from the judge to the prosecutor. Some crimes, too, now fall under mandatory sentencing guidelines. Whether this represents progress or not is debatable. For those who prioritize treating individuals who commit similar crimes similarly, it likely does. For those who prioritize taking into account individual factors, such as mitigating circumstances, it likely does not. What is known, however, is that no sentencing scheme, just like no single punishment goal, can produce justice in all cases. Discretion, exercised by a prosecutor or a judge, invites dissimilarity in treatment. Imposed uniformity in decision making, on the other hand, invites injustice. The balance is difficult to achieve.

Critical Thinking Questions

1. What lessons does history teach us about the use of punishment?

2. Which philosophy of punishment do you subscribe to and which do you believe is most effective? Why?

3. What are the benefits and problems associated with each sentencing model? Which model do you support? Why?

4. The death penalty remains highly debated even though it is infrequently used. Describe the nature of this debate. Should we keep the death penalty or do away with it?

Key Terms

Click on each key term to see the definition.

Abolitionists (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Individuals who support banning capital punishment in the United States.

Aggravating factors (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Legally determined factors that may be used to increase the seriousness of a criminal charge or a criminal sentence.

Alternative sanctions (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Sanctions that fall outside of traditional penalties; often designed to shame offenders publicly.

Benefit of clergy (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Historically clergy could not be tried by a common court. As evidence of ecclesiastical training, accused citizens would "read" from the Bible. The ability to read was uncommon and largely associated with clergy.

Brutalization effect (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The idea that execution of an inmate encourages homicides by reducing moral prohibitions against killing.

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Commensurate punishment (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Punishment that is considered proportionate to the seriousness of the offense.

Comprehensive Crime Control Act of 1984 (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Massive anticrime bill passed by Congress that expanded the role of the federal government in crime control; later overhauled the federal sentencing system to include the use of sentencing guidelines.

Concurrent sentences (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Criminal sentences that run at the same time.

Consecutive sentences (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Criminal sentences that run one after another.

Criminal calculus (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The idea that offenders weigh the future benefits and costs of criminal behavior.

Dark Ages (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A period in European history characterized by the absence of strong governments as well as physical hardship and the lack of social advancement.

Determinate sentencing (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Sentencing strategy that restricts or removes judicial discretion.

Deterrence (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Theory that future crime can be reduced by increasing the costs associated with crime, the certainty of detection and arrest, and the swiftness of the punishment.

Equity in sentencing (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The idea that people convicted of similar crimes should receive similar sentences.

General deterrence (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Reducing the likelihood that members of any society will commit crime by punishing those convicted of crime.

Good time (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A mechanism that reduces the amount of time a prisoner remains incarcerated. Good behavior, such as staying out of trouble and attending rehabilitation programs, results in a reduced time in jail or prison.

Habitual offenders (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Those who continue to commit crimes repeatedly throughout life.

Incapacitation (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Removing the ability of a convict to commit crime in open society.

Indeterminate sentencing (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A sentencing scheme that allows judges to sentence people convicted of a crime to a minimum and maximum period of punishment.

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Judicial discretion (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The degree to which judges can decide the type and length and sentence for a person convicted of a crime.

Just deserts (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A theory of justice holding that offenders must be sanctioned for their crimes but that the punishment must be proportional to the offense.

Law of diminishing returns (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

In criminal justice, reflects the idea that additional increases in the prison population eventually reduce the effectiveness of incarceration.

Mandatory minimum sentencing (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A sentencing scheme that mandates a minimum sentence for specific offenses.

Mandatory sentences (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Sentences dictated by the legislature that severely limit or curtail judicial discretion.

Mass incarceration (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The use of incarceration as a primary crime-reduction tool.

Medical model (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Reflects a philosophical orientation that equates crime to having a disease—that is, it is outside the person's control. Also views the role of the criminal justice system as one that treats crime instead of punishing behavior.

Mitigating factors (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Legally defined factors that reduce culpability or are taken into account by the courts to reduce the criminal penalty.

Parole board (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A board, often appointed by a governor, that reviews the files of inmates petitioning for parole. Makes decisions to approve or deny parole requests.

Penitentiaries (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Name for early prisons designed to reflect the religious connection of doing "penance" for one's sins.

Plea agreement (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

An agreement between a prosecutor and a defendant. Usually involves the defendant agreeing to plead guilty in return for a lighter sentence or reduced charge.

Presumptive sentencing guidelines (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Sentencing scheme that provides judges with preferred types of punishments and lengths of punishment. Departures from the guidelines are allowed but usually require a judge to explain why.

Privation (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

The inability to fulfill one's material, emotional, and psychological needs.

Proportionality (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Belief that the punishment should reflect the gravity of the offense.

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Retribution (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A philosophy holding that criminals should be punished solely in terms of their misdeeds.

Selective incapacitation (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Selecting high-rate, chronic offenders for longer periods of incarceration.

Sentencing grid (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Used in sentencing guidelines that direct judges toward specific punishment outcomes. Usually based on the seriousness of the current crime and the offender's prior record.

Sentencing Reform Act (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A law that eliminated parole in the federal justice system and created the U.S. Sentencing Commission.

Specific deterrence (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Reducing the probability of offending among those already arrested or criminally active.

Structured sentencing (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Sentencing guidelines that provide judges with legislatively determined penalties.

Three strikes (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Common term given to a sentencing scheme that requires a mandatory sentence after an offender has been convicted of two other felonies.

Truth-in-sentencing (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Political efforts to make the actual amount of time served by inmates more closely mirror their sentence.

Utilitarians (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

A group of philosophers who argued for minority rights, proportionality in sentencing, and other liberal reforms.

Violent Crime Control and Enforcement Act of 1994 (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Largest and most expensive crime-control bill every passed by Congress. Known for increasing the number of crimes subject to capital punishment as well as providing funds for increased use of incarceration.

Voluntary sentencing guidelines (http://content.thuzelearning.com/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.030

Wholly voluntary sentencing scheme provided to judges by a legislature.

Web Links

A link to the American Correctional Association: www.aca.org (http://www.aca.org)

U.S. Sentencing Commission, which reports directly to Congress: www.ussc.gov (http://www.ussc.gov)

Information about Texas's history of capital punishment: http://www.tdcj.state.tx.us/death_row/dr_facts.html (http://www.tdcj.state.tx.us/death_row/dr_facts.html)

Detailed information about Texas executions: http://www.txexecutions.org/default.asp (http://www.txexecutions.org/default.asp)

Web site that provides information about exonerations: http://www.innocenceproject.org/know/ (http://www.innocenceproject.org/know/)

The history of punishment: http://www.history.org/foundation/journal/spring03/branks.cfm# (http://www.history.org/foundation/journal/spring03/branks.cfm/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sections/front_matter/books/Wright.0304.18.1/sec

Historical information about the trial of Socrates: http://law2.umkc.edu/faculty/projects/ftrials/socrates/socrates.HTM (http://law2.umkc.edu/faculty/projects/ftrials/socrates/socrates.HTM)

http://www.aca.org/

http://www.ussc.gov/

http://www.tdcj.state.tx.us/death_row/dr_facts.html

http://www.txexecutions.org/default.asp

http://www.innocenceproject.org/know/

http://law2.umkc.edu/faculty/projects/ftrials/socrates/socrates.HTM