CRM J 2

Chapter : Introduction Part Introduction Book Title: The American System of Criminal Justice © 2019 Cengage Learning, Cengage Learning

Part Introduction In a democracy, the arrest of a person is but the first part of a complex process designed to separate the guilty from the innocent. Part 3 examines the process by which guilt is determined in accordance with the law’s requirements, as well as the processes and underlying philosophies of the punishments that further separate the convicted from the acquitted. Here we look at the work of prosecutors, defense attorneys, bail agents, probation officers, and judges to understand the contribution each makes toward the ultimate decisions. In the adjudicatory stage, the goals of an administrative system blunt the force of the adversarial process prescribed by law. Although courtroom activities receive the most media attention, most decisions relating to the disposition of a case take place in less public surroundings. After the sentencing, the case recedes even further from the public eye. After studying these chapters, think about whether justice is served by processes that are more like bargaining than like adversarial combat between two lawyers. Also consider whether the punishments our courts hand out are doing the job they are supposed to be doing in punishing offenders.

9-1 The Structure of American Courts As we have seen, the United States has a dual court system, with separate federal and state court systems. Other countries have a single national court system, but American rules and traditions permit states to create their own court systems to handle most legal matters, including most crimes.

The federal courts oversee a limited range of criminal cases. For example, they deal with people accused of violating the criminal laws of the national government. Counterfeiting, kidnapping, smuggling, and drug trafficking are examples of federal crimes. But such cases account for only a small portion of the criminal cases that pass through American courts each year. For every offender sentenced to incarceration by federal courts, more than ten offenders are sent to prisons and jails by state courts, because most crimes are defined by state laws (E. A. Carson and Anderson, 2016). This disparity may grow wider as federal law enforcement agencies increasingly emphasize antiterrorism activities rather than traditional crime-control investigations. The gap is even greater for misdemeanors, because state courts bear primary responsibility for processing the lesser offenses, such as disorderly conduct, that arise on a daily basis.

State supreme courts each interpret their own state’s constitution and statutes and ensure that lower courts within the state follow those interpretations. The U.S. Supreme Court oversees both federal and state court systems by interpreting the U.S. Constitution, which protects the rights of defendants in federal and state criminal cases.

The issues of complexity and coordination that the country’s decentralized courts face are compounded by a third court system that operates in several states. Native Americans have tribal courts, whose authority is endorsed by congressional statutes and Supreme Court decisions. With jurisdiction (The geographic territory or legal boundaries within which control may be exercised; the range of a court’s authority.) over their own people on tribal land, these tribal courts permit Native American judges to apply their people’s cultural values in resolving civil lawsuits and when processing certain criminal offenses (C. Goldberg, 2010).

Dick Anthony Heller speaks to reporters outside the U.S. Supreme Court prior to winning his case to strike down Washington, D.C.’s, broad prohibition against handguns. Heller’s case in 2008 established a limited Second Amendment right to keep handguns in private homes for self-protection. Does the Supreme Court possess too much power to strike down laws that are created by the people’s elected representatives in city councils, state legislatures, and Congress?

Jason Reed/Reuters

Both the federal and state court systems have trial and appellate courts. There are three levels of courts: appellate courts, trial courts of general jurisdiction, and trial courts of limited jurisdiction.

Cases begin in a trial court, which handles determinations of guilt and sentencing. Trial courts of limited jurisdiction (Criminal courts with trial jurisdiction over misdemeanor cases and preliminary matters in felony cases. Sometimes these courts hold felony trials that may result in penalties below a specified limit.) handle only misdemeanors and lawsuits involving small amounts of money. Felony cases and all other civil lawsuits are heard in trial courts of general jurisdiction (Criminal courts with jurisdiction over all offenses, including felonies. In some states, these courts also hear appeals.) . These are the courts in which jury trials take place and judges impose prison sentences. All federal cases begin in the general jurisdiction trial courts, the U.S. district courts.

Cases move to intermediate appellate courts (Courts that do not try criminal cases but hear appeals of decisions of lower courts.) if defendants claim that errors by police or the trial court contributed to their convictions. Further appeals can be filed with a state supreme court or the U.S. Supreme Court, depending on which court system the case is in and what kind of legal argument is being made. All states have courts of last resort (usually called state supreme courts), and all but a few have an intermediate appellate court (usually called courts of appeals). In the federal system, the U.S. Supreme Court is the court of last resort, and the U.S. circuit courts of appeals are the intermediate appellate courts.

Although this basic three-tiered structure operates throughout the United States, the number of courts, their names, and their specific functions vary widely. For example, the federal

system has no trial courts of limited jurisdiction. In state systems, 13,000 trial courts of limited jurisdiction handle traffic cases, small claims, misdemeanors, and other less serious matters. These courts handle 90 percent of all criminal cases. The federal system begins with the U.S. district courts, its trial courts of general jurisdiction. In the states, these courts have a variety of names (circuit, district, superior, and others) and are reserved for felony cases or substantial lawsuits. These are the courts in which trials take place, judges rule on evidence, and juries issue verdicts. Figure 9.1 shows the basic structure of the dual court system.

Figure 9.1

The Dual Court System of the United States and Routes of Appeal

Whether a case enters through the federal or state court system depends on which law has been broken. The right of appeal to a higher court exists in either system.

Some states have reformed their court systems by simplifying the number and types of courts, whereas others still support a confusing assortment of lower courts. Figure 9.2 contrasts the reformed court structure of Alaska with Georgia’s unreformed system. Both follow the three-tiered model, but Georgia has more courts and a more complex system for determining which court will handle which kind of case.

Figure 9.2

Court Structures of Alaska (Reformed) and Georgia (Unreformed)

Reformers have called on states to reduce the number of courts, standardize their names, and clarify their jurisdictions.

What Americans Think

Question:

“I am going to read you a list of institutions in American society. Please tell me how much confidence you have in each one —a great deal, quite a lot, some, or very little?” (Responded “a great deal” or “quite a lot.”)

Source: Jim Norman, “Americans’ Confidence in Institutions Stays Low,” Gallup Poll, June 2016 (

Source: Ron Malega and Thomas Cohen, “State Court Organization, 2011,” Bureau of Justice Statistics Special Report, November 2013, NCJ 242850.

American trial courts are highly decentralized. Local political influences and community values affect the courts in many ways. Local officials determine their resources, residents make up the staff, and operations are managed so as to fit community needs. Only in a few small states is the court system organized on a statewide basis, with a central administration and state funding. In most of the country, the criminal courts operate under the state penal code but are staffed, managed, and financed by county or city government. The federal courts, by contrast, have centralized administration and funding, although judges in each district help shape their own courts’ practices and procedures.

Lower courts, especially at the state level, do not always display the dignity and formal procedures of general jurisdiction trial courts and appellate courts. They are not necessarily courts of record that keep a detailed account of proceedings. Instead, they may function rather informally. In most urban areas, these courts process seemingly endless numbers of people, and each defendant’s “day in court” usually lasts only a few minutes.

www.gallup.com).This informality may bother the public, who expect their local courts to adhere to the standards that reflect American values of justice. Many people are critical when the courts do not meet these ideals. Because the courts produce the outcomes in criminal cases, especially determinations of guilt and punishment, they are central to people’s assessments of whether the justice system is too soft on offenders or unfair in its treatment of defendants. As indicated in “What Americans Think,” in 2016 most Americans lacked confidence in the criminal justice system. Because people demonstrated a relatively high level of confidence in the police, presumably the negative view of the criminal justice system was focused on courts, judges, and lawyers.

Check-It

1. Courts that review the decisions of lower courts are called .

a. trial courts of general jurisdiction

b. specialized courts

c. appellate courts

d. trial courts of limited jurisdiction

9-2 Effective Management of the State Courts Throughout the twentieth century and beyond, reformers have tried to change the structure, administration, and financing of the state courts so the courts can deal more effectively with their huge caseloads (Boes, Collins-Camargo, and Thomas, 2015; Saufley, 2010). Problems with inadequate resources and the uneven quality of judges hurt the courts’ effectiveness (Lohier, 2016; Abrahamson, 2004). There is a need for professional court administrators with expertise and training (R. E. Hartley and Bates, 2006). However, people often see the fragmented structure of state courts as the biggest barrier to justice. Proposed solutions include the creation of a unified court system with four goals:

1. Eliminating overlapping and conflicting jurisdictional boundaries

2. Creating a hierarchical and centralized court structure with administrative responsibility held by a chief justice and a court of last resort

3. Having the courts funded by state government instead of local counties and cities

4. Creating a separate civil service personnel system run by a state court administrator

These goals stand at the forefront of the movement to promote the efficiency and fairness of state courts. However, local political interests often resist court reform. Local courts have long been used as a source of jobs to reward people loyal to the political party in power. Centralization of court administration and professionalization of court personnel would eliminate the opportunities to use court jobs in this manner.

Like other organizations within the justice system, courts face major problems in fulfilling their functions in an era of government budget crises and diminishing resources (J. Lynch, 2017; Leachman and Mai, 2014). Most of court budgets are allotted to pay judges and administrative staff, so options for implementing budget cuts are limited and tend to directly affect court personnel. In December 2013, Chief Justice John Roberts issued a report that warned Congress about the adverse consequences of budget cuts on the operations of the federal courts (Liptak, 2013a). Court systems in at least 15 states have put their staff on furloughs, whereas others have cut pay, imposed layoffs, and even closed courtrooms (Hazzard, 2016). California closed individual courthouses and eliminated staff, including a reduction in 800 positions in the Los Angeles Superior Court alone over a three-year period (Ofgang, 2013). Florida imposed both layoffs and pay cuts (W. M. Welch, 2010). Courts do not control their own workloads because they must process the criminal cases brought to them by prosecutors and police, and they must address civil lawsuits filed by individuals and businesses (Massey, 2011). Budget cuts that reduce staff and the availability of court time can delay the processing of civil cases and lead to pressures to find ways to conclude

criminal cases more quickly, such as prosecutors’ decisions to dismiss minor charges or offer more-attractive plea agreements.

Checkpoint

1. What is the dual court system?

2. What different categories of courts exist within each court system?

3. What does it mean for courts to be decentralized?

4. What are the main goals of advocates of judicial reform?

Stop and Analyze: Will contemporary budget crises lead to greater centralization in state court systems? List three reasons that there may be resistance to centralization from officials who run city- and county-based systems.

Check-It

2. The unified structure of state courts can be a barrier to justice.

a. True

b. False

9-3 To Be a Judge People tend to see judges as the most powerful actors in the criminal justice process. Their rulings and sentencing decisions influence the actions of police, defense attorneys, and prosecutors. If judges treat certain crimes lightly, for example, police and prosecutors may be less inclined to arrest and prosecute people who commit those offenses. Although judges are thought of primarily in connection with trials, they do some of their work—such as signing warrants, setting bail, arraigning defendants, accepting guilty pleas, and scheduling cases—outside the formal trial process.

More than any other person in the system, the judge is expected to embody justice, ensuring the defendant’s right to due process and fair treatment. The prosecutor and the defense attorney each represent a “side” in a criminal case. By contrast, the judge’s black robe and gavel are symbols of impartiality. Both inside and outside the courthouse, the judge is supposed to act according to a well-defined role. People expect judges to make careful, consistent decisions that uphold the ideal of equal justice for all citizens.

9-3a Who Becomes a Judge?

In U.S. society, the position of judge, even at the lowest level of the judicial hierarchy, carries a high status. Many lawyers take a significant cut in pay to assume a position on the bench. Public service, political power, and prestige in the community may matter more than wealth to those who aspire to the judiciary. The ability to control one’s own work schedule is an additional attraction for lawyers interested in becoming judges. Unlike private practice attorneys, who often work over 50 hours per week preparing cases and counseling clients, judges can usually control their own working hours and schedules. Although judges face heavy caseloads, they frequently decide for themselves when to go home at the end of the workday.

Historically, the vast majority of judges have been white men with strong political connections. Women and members of minority groups had few opportunities to enter the legal profession prior to the 1960s and thus were seldom considered for judgeships. Although women judges have become more numerous, they still face challenges in running for election and being selected by a governor (M. S. Williams, 2006; Reid, 2004). In 2016, women comprised 31 percent of state judiciaries, including 35 percent of judges on state appellate courts, 30 percent on general jurisdiction trial courts, and 33 percent on limited jurisdiction courts (National Association of Women Judges, 2017).

In recent decades, political factors in many cities dictated that judges be drawn from specific racial, religious, and ethnic groups as political party leaders sought to gain the support of various segments of the voting public. According to the most recent data available from the American Bar Association, 7 percent of state trial judges are African American, 4 percent are Latino, 2 percent are Asian or Pacific Islander in ancestry, and less than one-half of one percent are Native American (American Bar Association, 2010). This underrepresentation of ethnic diversity on the bench contrasts with the fact that the 2010 U.S. census showed the nation’s population to be 12.6 percent African American, 16.3 percent Latino, 5.7 percent Asian or Pacific Islander, and 1 percent Native American plus an additional 3 percent of the population that labeled itself as belonging to two or more racial classifications (Humes, Jones, and Ramirez, 2011).

Comparing the racial and ethnic makeup of the judiciary with that of the defendants in urban courts raises many questions. Will people believe that decisions about guilt and punishment are being made in an unfair manner if middle-aged white men have nearly all the power to make judgments about people from other segments of society? Will people think that punishment is being imposed on behalf of a privileged segment of society rather than on behalf of the entire, diverse U.S. society?

Within these questions lurks an issue of American values. Americans often claim that equality, fairness, and equal opportunity are important values and, indeed, the equal protection clause in the Fourteenth Amendment of the Constitution demonstrates a formal commitment to use law to combat discrimination. However, the political connections and early career employment opportunities necessary to gain judgeships continue to disadvantage women and members of racial minority groups in many communities (Sen, 2014). Because judges symbolize the law as well as make important decisions about law, the lack of diversity in the judiciary provides a visible contrast with American values related to equal opportunity.

Judges bear important responsibilities for ensuring that both prosecutors and defense attorneys follow proper law and procedure. They must be certain that the rights of defendants are protected during court proceedings. Here, Judge Megan Shanahan presides over her courtroom in Cincinnati. What qualifications do you think someone should have in order to become a judge?

AP Images/John Minchillo

Checkpoint

5. What is the image of the judge in the public’s eye?

6. Why might it be important for judges to represent different segments of society?

Stop and Analyze: If you were appointed to a special committee to create recommendations for ensuring that women and members of minority groups have

equal opportunities to become judges—what would you propose? Present three recommendations.

9-3b Functions of the Judge

Although people usually think that the judge’s job is to preside at trials, in reality, the work of most judges extends to all aspects of the judicial process. Defendants see a judge whenever decisions about their future are being made: when bail is set, pretrial motions are made, guilty pleas are accepted, a trial is conducted, a sentence is pronounced, and appeals are filed (see Figure 9.3). However, judges also perform administrative tasks outside the courtroom. Judges have three major roles: adjudicator, negotiator, and administrator.

Figure 9.3

Actions of a Trial Court Judge in Processing a Felony Case

Throughout the process, the judge ensures that legal standards are upheld; he or she maintains courtroom decorum, protects the rights of the accused, meets the requirement of a speedy trial, and makes certain that case records are maintained properly.

Adjudicator

Judges must assume a neutral stance in overseeing the contest between the prosecution and the defense. They must apply the law so that the rights of the accused are upheld in decisions about detention, plea, trial, and sentence. Judges have a certain amount of

discretion in performing these tasks—for example, in setting bail—but they must do so according to the law. They must avoid any conduct that could appear biased.

Negotiator

Many decisions that determine the fates of defendants take place outside of public view in the judge’s private chambers. These decisions are reached through negotiations between prosecutors and defense attorneys about plea bargains, sentencing, and bail conditions. Judges spend much of their time in their chambers talking with prosecutors and defense attorneys. They often encourage the parties to work out a guilty plea or agree to proceed in a certain way. The judge sometimes acts as a referee, keeping both sides on track in accordance with the law. Sometimes the judge takes a more active part in the negotiations, suggesting terms for an agreement or even pressuring one side to accept an agreement.

Administrator

A seldom-recognized function of most judges is managing the courthouse. In urban areas, professional court administrators rather than judges may actually direct the people who keep records, schedule cases, and do the many other jobs that keep a system functioning. But even then, judges remain in charge of their own courtroom and staff. In rural areas, where professional court administrators are not usually employed, the judge’s administrative tasks may be more burdensome, and include responsibility for labor relations, budgeting, and maintenance of the courthouse building.

As administrators, all judges must deal with political actors such as county commissioners, legislators, and members of the state executive bureaucracy. For judges whose training as lawyers focused on courtroom advocacy skills, managing a complex organization with a sizable budget and many employees can pose a major challenge (Gulati and Posner, 2016; C. E. Smith and Feldman, 2001).

Many observers argue that a fourth role of judges is emerging in some court systems. They see judges acting as “problem solvers” in newly developed courts that seek to address the problems of people arrested for drugs and other charges as an alternative to sending minor offenders to jail or prison. As discussed in the Evidence-Based Practice and Policy feature, many states and cities have created specialized courts, such as drug courts (Specialized courts that impose drug testing and counseling requirements on substance abusers and monitor their progress instead of sending them immediately to jail or prison.) to divert substance abusers away from incarceration. Drug users caught in possession of drugs or those charged with other lesser offenses may be required to appear in drug court regularly over the course of a year so that judges can monitor their progress with frequent drug tests, substance abuse counseling, and plans for education or employment (J. L. Nolan, 2010). If these individuals violate the conditions imposed by the judge for drug testing or counseling, then the judge can give them a regular criminal punishment, such as a jail sentence. Other jurisdictions have mental health courts to help mentally ill people who have been arrested for minor offenses (Cowell, Broner, and DuPont, 2004). Other kinds of specialized, problem- solving courts are also emerging, such as domestic violence courts, courts to handle

homeless people’s problems, and courts to help troubled veterans who commit minor offenses or have substance abuse issues (Melendez, 2014; Lee, 2013; J. L. Burns, 2010; Eaton and Kaufman, 2005).

Evidence-Based Practice and Policy

Problem-Solving Courts

In 1989, a judge in Miami began to emphasize treatment and intensive monitoring of low-level substance abusers as an alternative to incarceration. From these beginnings emerged drug courts and other specialized courts aimed at diverting troubled offenders from traditional criminal sanctions while also seeking to help them with their problems. As these courts spread to other jurisdictions, the federal government provided funding to encourage new developments and to evaluate the success of such programs. In addition, several other countries have begun to copy the problem-solving courts that originated in the United States and adapt them to their own issues and objectives.

Similar efforts began to surface in the first years of the twenty-first century as many cities also developed mental health courts. In these courts, judges placed mentally ill people arrested for minor offenses into treatment programs and employment training. Anchorage, Alaska, experimented with a court dedicated to the problems of veterans, some of whom were arrested regularly for drunkenness, substance abuse, and disorderly conduct. In addition to these courts that address minor criminal offenses, New York City developed a parallel court for civil matters that focuses on homelessness and attempts to prevent evictions, encourage employment opportunities, and solve disputes between tenants and landlords. As described by two observers, in these courts “judges are cheerleaders and social workers as much as jurists” (Eaton and Kaufman, 2005). Despite the positive intentions of such court programs, they raise questions about whether judges have sufficient training, knowledge, and resources to address individuals’ significant personal problems.

Research shows that drug courts can have positive results in helping substance abusers and keeping them from going to jail. However, these programs do not always save money for the justice system, because they require funds to monitor, test, and provide services for troubled people. In addition, many people who could benefit from the programs do not gain access to the services and supervision that are available only to a limited number of offenders in certain communities due to constrained resources and availability of drug courts. Some other kinds of courts are too new to have been fully evaluated.

As mentioned elsewhere in this chapter, critics wonder whether specialized courts place judges into a role of problem solver, a position for which they are not fully prepared. In addition, questions have arisen about whether these courts advance the interests of justice. Domestic violence courts, in particular, cause controversy.

Some critics believe that they are too lenient on batterers by trying to solve their problems rather than punishing them for committing acts of violence. Other critics contend that these courts favor alleged victims of domestic violence by pressuring the accused to accept anger-management treatment rather than letting the judicial processes take their course to determine whether the individual is actually guilty.

Veterans’ courts, which first started in Buffalo, New York, in 2008 are subsequently spreading across the nation; they raise additional issues about how to handle issues of violence. These courts can help to facilitate the provision of mentors and treatment for those veterans who commit minor offenses while often struggling with issues of substance abuse, homelessness, unemployment, or psychological problems. There are debates, however, about whether such courts are appropriate settings to address issues of violence, such as intimate partner violence or other assaults that are regarded as connected to post–traumatic stress disorder or substance abuse. If such problems are related to reentering society after combat experience in a war zone, then many people are reluctant to see veterans incarcerated rather than helped with these problems. On the other hand, does diversion into treatment programs under veterans’ court supervision leave family members and others in society inadequately protected against the risk of subsequent episodes of violence if treatment is not effective for a particular troubled veteran?

As these new courts develop, research is needed to determine precisely how they impact the roles of judges, the resources of the justice system, and the lives of both accused offenders and victims.

Implementing New Practices

In a time of budget reductions for courts, should problem-solving courts be preserved and strengthened, or are they limited-purpose activities that draw needed resources away from the general court system? How do you view the value, importance, and potential of problem-solving courts? Write a memo that presents three reasons why you would either preserve them or subject them to budget cuts.

Sources: Bexar County Texas, Pretrial Services website, February 22, 2015 ( http://gov.bexar.org); City

of Denver, Pretrial Services website, February 22, 2015 ( www.denver.org); L. Eaton and L. Kaufman, “In

Problem-Solving Court, Judges Turn Therapist,” New York Times, April 26, 2005 ( www.nytimes.com). J.

R. Gallagher, A. Nordberg, and J. M. Gallagher, “A Qualitative Investigation into Military Veterans’

Experiences in a Problem-Solving Court: Factors that Impact Graduation Rates,” Social Work in Mental

Health, September 2016 (online first publication); J. Gonzalez, “Bexar County to Crack Down on Second-

Time DWI Offenders,” San Antonio Express-News website, April 2, 2012 ( www.mysanantonio.com); A.

D. Redlich, S. Liu, H. Steadman, L. Callahan, and P. Robbins, “P. Schutz, “Electronic Monitoring,”

WWTW-PBS news online, November 16, 2011 ( http://chicagotonight.wttw.com); L. Walker, J. Pann, D.

Shapiro, and V. Van Hasselt, Best Practices for the Mentally Ill in the Criminal Justice System (New York:

Spring International Publishing, 2016); K. Wilson, “Ventura County Expanding Electronic Monitoring of

Jail Inmates,” Ventura County Star online, November 1, 2011 ( www.vcstar.com).

Because judges typically have no training in psychology or social work, critics worry that the development of a problem-solver role will lead judges to make decisions about matters for which they lack expertise. Moreover, some fear that this new role will cause judges to lose sight of their obligation to impose punishment on individuals who have violated criminal laws (J. Nolan, 2003).

9-3c How to Become a Judge

The quality of justice depends to a great extent on the quality of those who make decisions about guilt and punishment. Because judges have the power to deprive a citizen of his or her liberty through a prison sentence, judges should be thoughtful, fair, and impartial. The character, experience, and viewpoints of those selected for federal courts and state appellate courts are often examined closely (Ringhand and Collins, 2011; Goldman and Slotnick, 1999). Trial judges in state criminal courts undergo less scrutiny. Ironically, these lower courts shape the public’s image of a trial judge more than do other courts, because citizens have the most contact with judges there. See “A Question of Ethics” at the end of the chapter to consider the range of actions by a judge that may affect people’s image of the justice system. When a judge is rude or hasty or allows the courtroom to become noisy and crowded, the public may lose confidence in the fairness and effectiveness of the criminal justice process. See the Close Up feature, “The Image of Justice,” to consider the kinds of behavior by judges that can harm confidence in the courts.

Close Up

The Image of Justice

The ethical rules for judges require them to speak and behave in ways that uphold the integrity, impartiality, and image of the courts. Unfortunately, these rules are broken with disappointing regularity in ways that attract public attention through newspaper articles about judges’ improper statements and behavior. In 2016 alone, a variety of examples emerged around the country in which judges faced possible reprimands for improper actions:

Nevada: A judge interrupted a defense attorney in midsentence by saying “be quiet.” When the attorney tried to finish her argument on behalf of a client facing the possibility of jail, the judge ordered that the attorney be handcuffed and seated with the defendants wearing jail clothing and awaiting their hearings in the courtroom. More than 100 attorneys joined together in filing a complaint against the judge for publicly humiliating and punishing an attorney who was merely doing her job.

California: A judge rejected prosecutors’ recommendations for a six-year prison sentence for a Stanford University swimmer who was convicted of sexually assaulting an unconscious woman on campus. Witnesses came upon the outdoor assault and held the athlete until the police arrived. One of the reasons that the offender ended up spending only three months in jail for

the sexual assault was the judge’s publicly stated concern that a prison sentence would harm the rapist’s future. Critics were outraged by their perception that the judge was more concerned about an athlete at an elite university than about the sexual assault victim who suffered continuing psychological trauma and physical injuries in the assault.

Kentucky: A judge ordered that a domestic violence victim be taken from the courtroom and placed in jail when the victim recanted her testimony. The judge would not facilitate her release from jail even after learning that the accused perpetrator may have pressured the woman to withdraw her complaint, raising the risk that her action was based on fear of her victimizer. Because others in the courthouse—including another judge, the prosecutor, and defense attorneys—believed the judge was compounding the victimization of a crime victim, they worked together to secure her release. The state’s Judicial Conduct Commission ruled that the judge committed misconduct.

Florida: A judge ordered the jailing of a domestic violence victim who did not appear in court at the scheduled time. When asked why she did not appear on time, the crying victim apologized and told the judge she was suffering from depression and anxiety. The judge responded by saying, “I hereby find you in contempt of court. I sentence you to three days in the county jail.… You think you’re going to have anxiety now? You haven’t even seen anxiety.” Later, the Florida Supreme Court ordered the judge to take classes on both anger management and domestic violence as part of a public reprimand.

Do the statements and actions reportedly made by these judges harm the image of the courts? If so, how? If these statements and actions are improper, what should happen to judges who say such things? If the judges apologize, should they be forgiven and receive another opportunity to behave in a proper manner? Is there any way to make sure that judges always act according to the proper image of their judicial office?

Debate the Issue

What is an appropriate sanction for a judge who speaks and acts inappropriately? Is it desirable to have such high standards that a judge would automatically be removed from office for improper conduct? List the punishments that you would impose on each of the judges mentioned above. Assume that the misbehavior was by a judge who is selected through elections. Make an argument in favor of leaving it to the voters to pass judgment on the judge at the next election.

Sources: D. Ferrara, “Las Vegas Judge Handcuffs Public Defender in Courtroom,” Las Vegas Review-

Journa l, May 23, 2016 ( www.reviewjournal.com); S. Levin, “Stanford Sexual Assault: Read the Full Text

of the Judge’s Controversial Decision,” Guardian, June 14, 2016 ( www.theguardian.com); “Seminole

County Judge Who Punished Victim Will Be Reprimanded,” WESH TV-2 News, July 7, 2016 (

www.wesh.com); A. Wolfson, “Judge Charged with Violating Code of Conduct,” Louisville Courier-

Journal, February 1, 2016 ( www.courier-journal.com).

Five methods are used to select state trial court judges: gubernatorial appointment, legislative selection, merit selection, nonpartisan election (An election in which candidates’ party affiliations are not listed on the ballot.) , and partisan election (An election in which candidates openly endorsed by political parties are presented to voters for selection.) . Some states combine these methods; for example, in Pennsylvania a judge is initially elected by partisan election, but then at the end of the term there is a nonpartisan election (retention) for a second term. By contrast, federal judges are appointed by the president and confirmed by the U.S. Senate. Many of them are chosen as a result of their support for the president’s political party and policy preferences (Epstein and Segal, 2007). Table 9.1 shows the method used in each of the states. All the methods bring up persistent concerns about the qualifications of those selected to serve as judges.

Table 9.1

Methods Used by States to Select Judges

States use different methods to select judges. Note that many judges are initially appointed to fill a vacancy, giving them an advantage if they must run for election at a later date.

Partisan Election

Nonpartisan Election

Gubernatorial Appointment

Legislative Selection

Merit Selection

Alabama

Illinois

Indiana (trial)

Louisiana

New Mexico

New York (trial)

Pennsylvania (initial)

Tennessee (trial)

Arizona (some trial courts)

Arkansas

California (trial)

Florida (trial)

Georgia

Idaho

Kentucky

Michigan

California (appellate)

Maine

Massachusetts (court of last resort)

New Jersey

South Carolina

Virginia

Alaska

Arizona (appellate)

Colorado

Connecticut

Delaware

Florida (appellate)

Hawaii

Indiana (appellate)

Partisan Election

Nonpartisan Election

Gubernatorial Appointment

Legislative Selection

Merit Selection

Texas

West Virginia

Minnesota

Mississippi

Montana

Nevada

North Carolina

North Dakota

Ohio

Oklahoma (trial)

Oregon

Pennsylvania (retention)

South Dakota (trial)

Washington

Wisconsin

Iowa

Kansas

Maryland

Massachusetts (trial, interme- diate appellate)

Missouri

Nebraska

New Hampshire

New York (appellate)

Oklahoma (appellate)

Rhode Island

South Dakota (appellate)

Tennessee (appellate)

Utah

Vermont

Wyoming

Source: American Judicature Society, Judicial Selection in the States (2012) ( www.ajs.org).

Selection by public voting occurs in more than half the states and has long been part of this nation’s tradition. This method of judicial selection embodies the underlying American value of democracy, because it permits the citizens to control the choice of individuals who will be given the power to make decisions in civil and criminal cases. The fulfillment of this

American value also helps to ensure that judges remain connected to the community and demonstrate sensitivity to the community’s priorities and concerns. The American value of democracy may, however, have detrimental consequences in the judiciary if it pressures judges to follow a community’s prejudices rather than make independent decisions using their best judgment in each case (Canes-Wrone, Clark, and Park, 2012). Retired U.S. Supreme Court Justices Sandra Day O’Connor, David Souter, and John Paul Stevens have all criticized the use of elections to select judges because they believe it tarnishes both the image and the practice of judging to have judicial candidates solicit campaign contributions and make promises about their future decisions. In addition, voters are not well-positioned to evaluate the qualifications of judicial candidates. In O’Connor’s view, judicial elections turn judges into “politicians in robes,” when they should actually be neutral, knowledgeable, and committed to equal justice (J. Schwartz, 2009).

When lawyers are first elected to serve as judges, they obviously have no prior experience in deciding cases and supervising courthouse operations. Working as a lawyer differs a great deal from working as a judge, especially in the American adversarial system (Basis of the American legal system in which a passive judge and jury seek to find the truth by listening to opposing attorneys who vigorously advocate on behalf of their respective sides.) , in which lawyers serve as advocates for one party in each case. As a result, judges must “learn on the job.” This method seems to counter the notion that judges are trained to “find the law” and apply neutral judgments (M. G. Hall, 1995). In Europe, by contrast, prospective judges receive special training in law school to become professional judges in what is called an inquisitorial system (Basis of legal system in Europe in which the judge takes an active role in investigating the case and asking questions of witnesses in court.) . These trained judges must serve as assistant judges and lower-court judges before they can become judges in general trial and appellate courts (Provine, 1996). Unlike American judges, these judges are expected to actively question witnesses during court proceedings.

Election campaigns for lower-court judgeships traditionally tended to be low-key contests marked by little controversy. Usually only a small portion of the voters participate, judgeships are not prominent on the ballot, and ethical considerations constrain candidates from discussing controversial issues. Research reveals, however, that even lower-level judicial races are becoming more competitive as candidates raise money and seek connections with interest groups (Brandenburg and Berg, 2012; Streb, Frederick, and LaFrance, 2007). In addition, a 2002 decision by the U.S. Supreme Court (Republican Party of Minnesota v. White) invalidated Minnesota’s ethics rule that forbade judicial candidates from announcing their views on disputed legal or political issues (C. Gray, 2004). According to the Supreme Court, such rules violate candidates’ First Amendment right to freedom of speech. The Court’s decision also affects similar rules in other states. Thus, judicial elections might become as controversial and combative as elections for other public offices, as candidates attack each other and openly seek to attract voters to their announced positions on issues. Observers interested in preserving the integrity of courts worry that wide-open elections will ultimately diminish the image and effectiveness of judges, who may begin to look more and more like partisan politicians. On the other hand, if these electoral battles make voters more interested and involved in judicial elections, then perhaps there

What Americans Think

Question:

“Please tell me how you would rate the honesty and ethical standards of people in these different fields—very high, high, average, low, or very low: Judges?”

may be benefits for greater public attention and participation (M. Hall and Bonneau, 2013). Public opinion polls indicate that Americans are divided in their views about judges’ honesty and ethics, and these divisions are based, in part, on race and income. It is unclear whether the perceived image of judges would improve if merit selection, as described later in this section, were more widespread (see “What Americans Think” for specific data).

Although the popular election of trial judges may be part of America’s political heritage, until recently, voters paid little attention to these elections. In many cities, judgeships are fuel for the party machine. Because of the honors and material rewards of a place on the bench, political parties get support—in the form of donated time and money— from attorneys seeking a judgeship. Parties also want judgeships to be elected posts, because they can then use courthouse staff positions to reward party loyalists. When a party member wins a judgeship, courthouse jobs may become available for campaign workers because the judge chooses clerks, bailiffs, and secretaries.

By contrast, elections for seats on state supreme courts frequently receive statewide media attention (M. Hall and Bonneau, 2013). Because of the importance of state supreme courts as policy-making institutions, political parties and interest groups often devote substantial resources to the election campaigns of their preferred candidates (Brandenburg and Berg, 2012; Bonneau, 2004). When organized interests contribute tens of thousands of dollars to judicial campaigns, questions sometimes arise about whether the successful candidates who received those contributions will favor the interests of their donors when they begin to decide court cases (Weissman, 2015). There are also questions about the significance of out-of-state

Source: Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (2017), Table 2.0017.2010.

Note: The “don’t know/refused” category has been omitted; therefore percents may not sum to 100.

influence, such as when national interest groups contributed substantial amounts of money in 2010 to remove from office three justices on the Iowa Supreme Court who backed same-sex marriage (Mansker and Devins, 2011). As the U.S. Supreme Court has issued rulings that reduce restrictions on campaign spending by interest groups and political organizations, there has been an apparent increase in out-of- state groups spending money on advertising to influence judicial elections (Wolf, 2014).

Some states have tried to reduce the influence of political parties in the selection of judges while still allowing voters to select them (Chertoff and Robinson, 2012). These states hold nonpartisan elections in which the ballot shows only the names of candidates, not their party affiliations. Nonetheless, political parties are often strongly involved in such elections. In Ohio, for example, the Republican and Democratic political parties hold their own primary elections to choose the judicial candidates whose names will go on the nonpartisan ballot for the general election (Kovac, 2016). In other states, party organizations raise and spend money on behalf of candidates in nonpartisan elections. When candidates’ party affiliations are not listed on the ballot, voters may not know which party is supporting which candidate. This occurs most often in low-visibility elections for local trial judgeships, which do not receive the same level of media attention as do elections for state supreme court seats.

Merit selection (A reform plan by which judges are nominated by a commission and appointed by the governor for a given period. When the term expires, the voters are asked

Civic Engagement

Your Role in the System

Imagine that a ballot issue is placed before the voters that proposes limiting state appellate judges to no more than 10 years in office. Make a list of arguments supporting and opposing this proposal. How would you vote? Then see what Colorado voters did when faced with just such a proposal in 2006.

to approve or disapprove the judge for a succeeding term. If the judge is disapproved, the committee nominates a successor for the governor’s appointment.) , which combines appointment and election, was first used in Missouri in 1940 and has since spread to other states. When a judgeship becomes vacant, a nominating commission made up of citizens and attorneys evaluates potential appointees and sends the governor the names of three candidates, from which the replacement is chosen. After one year, a referendum is held to decide whether the judge will stay on the bench. The ballot asks, “Shall Judge X remain in office?” The judge who wins a majority vote serves out the term and can then be listed on the ballot at the next election.

Merit selection is designed to remove politics from the selection of judges and to allow the voters to unseat judges (Charis-Carlson, 2016). Although voters in merit-selection states have removed relatively few judges, there are concerns that the increasing role of money in all aspects of the political system may cause additional judges to be ousted. Interest groups sometimes seize the opportunity to mount publicity campaigns during retention elections in order to turn out judges with whom they disagree on a single issue or to open an important court seat so that a like-minded governor can appoint a sympathetic replacement (May, 2013). It may be difficult for judges to counteract a barrage of inflammatory television commercials focusing on a single issue such as capital punishment (Reid, 2000). If merit- selected judges feel intimidated by interest groups that might threaten their jobs at the next retention election, the independence of the judiciary will be diminished (Breslin, 2010).

Despite the support of bar associations, merit selection has not gone unchallenged. Although party politics may have been removed, some argue that it has been replaced by politics within the legal profession. Many lawyers see the system as favoring the selection of high-status attorneys with ties to corporations or leading to the selection of judges whose values differ from the mainstream of society (Fitzpatrick, 2010). In 2016, Alabama’s partisan election led to a notable result: nine African American women were elected as judges in one county (Peoples, 2017). The electoral process permitted the county’s voters to choose those candidates who they believed best reflected the values of the community and the experiences that the voters wanted to see in a judge. Would a merit selection process have diversified the composition of judgeships in that county in such a significant way? Critics would say “no” because merit selection often requires connections to or a shared political outlook with the governor or the governor’s allies. In a Republican-dominated state, such as Alabama, with its Republican governor, it seems very unlikely that all nine of these Democratic lawyers would have been chosen through the merit selection process, no matter

how sterling their qualifications. This example helps to bring into focus the competing views about merit selection. Even if committee members do their best to choose the most qualified candidates, past practice in many states indicates that there is a risk that their assessment of “best qualified”—and that of the governor—will be affected by the values they share with members of their own political party.

In every selection system, critics contend that judges can accumulate too much power and remain beyond public accountability by being automatically reelected or reappointed when the public does not know enough about what judges have done in office. Read “Civic Engagement: Your Role in the System” to consider an approach to this issue. Remember that citizens can affect how the judicial branch is structured through their ability to vote on ballot issues or their ability to pressure their representatives in Congress and state legislatures to make new laws about how courts will operate.

Checkpoint

7. What are judges’ main functions?

8. Why do political parties often prefer that judges be elected?

9. What are the steps in the merit-selection process?

Stop and Analyze: What is the best way to select judges? List three arguments for the method that you favor. List three arguments against a method that you do not prefer.

Apply-It

3. In her role as a(n) , Judge Morales assumes a neutral stance in overseeing the contest between the prosecution and the defense, and applies the law so the rights of the accused are upheld.

a. negotiator

b. inquisitor

c. adjudicator

d. administrator

4. In his role as a(n) , Judge Stearns participates in discussions with prosecutors and defense attorneys regarding plea bargains and sentencing.

a. negotiator

b. inquisitor

c. adjudicator

d. administrator

Check-It

9. The most common methods for the selection of state judges in the United States are .

a. partisan election and nonpartisan election

b. nonpartisan election and merit selection

c. merit selection and legislative appointment

d. legislative appointment and gubernatorial appointment

9-4 From Arrest to Trial or Plea At each stage of the pretrial process, key decisions are made that move some defendants to the next stage of the process and filter others out of the system. An innocent person could be arrested based on mistaken identification or misinterpreted evidence (Chokshi, 2017; Streib, 2010; C. R. Huff, 2002). However, pretrial processes are meant to force prosecutors and judges to review the available evidence and dismiss unnecessary or unjust charges. These processes are based on the American value of due process. Americans believe that people should be entitled to a series of hearings and other procedural steps in which their guilt is proven before they are subjected to punishments such as the loss of liberty through incarceration.

Although due process is an important value and is explicitly stated as a right in two different constitutional amendments, the Fifth and the Fourteenth, it can collide with Americans’ interest in crime control if errors made by officials in carrying out these steps lead to the release of a guilty offender. For example, errors by judges in preliminary hearings or by police officers in lineups or other procedures can lead to the exclusion of evidence as a remedy for a rights violation. Thus, like other American values, due process can create results that undercut other priorities and objectives.

After arrest, the accused is booked at the police station. This process includes taking photographs and fingerprints, which form the basis of the case record. Usually the defendant must be taken to court for the initial appearance within 48 hours of a warrantless arrest. The purpose of this hearing is for the defendant to hear which charges are being pursued in light of the evidence gathered thus far, to be advised of his or her rights, and to be given the opportunity to post bail. Sometimes a separate bail hearing is scheduled shortly thereafter, especially when a case includes serious criminal charges. At the initial appearance, the judge also must make sure that probable cause exists to believe that a crime has been committed and that the accused should be prosecuted for the crime.

If the police used an arrest warrant to take the suspect into custody, evidence has already been presented to a judge who believed that it was strong enough to support a finding of probable cause to proceed against the defendant. When an arrest is made without a warrant, the police must, at the initial appearance, present sufficient evidence to persuade the judge to continue the case against the defendant.

Criminal defendants typically make several court appearances as the judge makes decisions about evidence and the protection of each defendant’s due process rights. Does the American system reduce the risk of error by using a multistep process to examine evidence, protect rights, and determine guilt?

AP Images/Rodolfo Gonzalez

Often, the first formal meeting between the prosecutor and the defendant’s attorney is the arraignment (The court appearance of an accused person in which the charges are read and the accused, advised by a lawyer, pleads guilty or not guilty.) : the formal court appearance in which the charges against the defendant are read and the defendant, advised by his or her lawyer, enters a plea of either guilty or not guilty. Most defendants will enter a plea of not guilty, even if they are likely to plead guilty at a later point. This is because, thus far, the prosecutor and defense attorney usually have had little chance to discuss a potential plea bargain. The more serious the charges, the more time the prosecutor and defense attorney will likely need to assess the strength of the other side’s case. Only then can plea bargaining begin.

At the time of arraignment, prosecutors begin to evaluate the evidence. The lives of the defendants hinge on this screening process, because their fate depends largely on the prosecutor’s discretion (K. Barnes, Sloss, and Thaman, 2009; C. W. Barnes and Kingsnorth, 1996). If the prosecutor believes the case against the defendant is weak, the charges may simply be dropped. Prosecutors do not wish to waste their limited time and resources on cases that will not stand up in court. A prosecutor may also drop charges if the alleged crime is minor, if the defendant is a first offender, or if the prosecutor believes that the few days spent in jail before arraignment are enough punishment for the alleged offense. Jail overcrowding or the need to work on more-serious cases can also influence the decision to drop charges. At times, the prosecutors making these decisions might discriminate against the accused because of race, wealth, or some other factor (Schlesinger, 2013); or they

might discriminate against certain victims, such as women who are sexually assaulted by an intimate partner or other acquaintance as opposed to being victimized by a stranger (Spohn and Holleran, 2001). As cases move through the system, prosecutors’ decisions to reduce charges for some defendants greatly affect the punishment eventually applied (Lippke, 2010; J. L. Miller and Sloan, 1994). Thus, individual prosecutors play a major role in deciding which defendants will receive criminal punishment (Covey, 2011).

As Figure 9.4 shows, prosecutors use their decision-making power to filter many cases out of the system. The 100 cases illustrated are typical felony cases. The percentage of cases varies from city to city, depending on such factors as the effectiveness of police investigations and prosecutors’ policies about which cases to pursue. For example, nearly half of those arrested did not ultimately face felony prosecutions. A small number of defendants were steered toward diversion programs. A larger number had their cases dismissed for various reasons including lack of evidence, the minor nature of the charges, or first-time-offender status. Other cases were dismissed by the courts because the police and prosecutors did not present enough evidence to a grand jury or at a preliminary hearing to justify moving forward.

Figure 9.4

Typical Outcomes of 100 Urban Felony Cases

Prosecutors and judges make crucial decisions during the period before trial or plea. Once cases are bound over for disposition, guilty pleas are many, trials are few, and acquittals are rare.

Source: Calculated from data in Brian A. Reeves, “Felony Defendants in Large Urban Counties, 2009—Statistical Tables,” Bureau of Justice Statistics Statistical Tables, December 2013, NCJ 228944.

The proportion of cases dropped at the various stages of the pretrial process varies from city to city. In some cities, many cases are dropped before charges are filed. Prosecutors evaluate the facts and evidence and decide which cases are strong enough to carry forward. The others are quickly dismissed. In other cities, formal charges are filed almost automatically on the basis of police reports, but many cases are dismissed when the prosecutor takes the time to examine each defendant’s situation closely.

During the pretrial process, defendants are exposed to the informal, assembly-line atmosphere of the lower criminal courts. Often, decisions are quickly made about bail, arraignment, pleas, and the disposition of cases. Moving cases as quickly as possible

seems to be the main goal of many judges and attorneys during the pretrial process. Courts throughout the nation face pressures to limit the number of cases going to trial. These pressures may affect the decisions of both judges and prosecutors as well as the defense attorneys who seek to maintain good relationships with them. American courts often have too little money, too few staff members, and not enough time to give detailed attention to each case, let alone a full trial.

In American courts, the defense uses the pretrial period to its own advantage. Preliminary hearings provide an opportunity for defense attorneys to challenge the prosecution’s evidence and make motions (An application to a court requesting that an order be issued to bring about a specified action.) to the court requesting that an order be issued to bring about a specified action. Through pretrial motions, the defense may try to suppress evidence or learn about the prosecutor’s case. The defense attorney making the motion must be able to support the claim being made about improper procedures used in the arrest, the insufficiency of the evidence, or the need for exclusion of evidence. Prosecutors also make motions, especially if they have disagreements with the defense about whether and how defense witnesses will be questioned. Judges may decide motions based on the written arguments submitted by each side, or they may schedule a motion hearing that will permit each attorney to present arguments about whether the motion should be granted. Decisions on motions can significantly affect the outcome of a case, especially if the motion hearing determines whether key pieces of evidence can be used in court against the defendant

The large number of cases dismissed during pretrial proceedings need not be viewed as a sign of weakness in the system. Instead, one strength of the system is the power of prosecutors and judges to dismiss charges when a conviction would be either unfair or unlikely. A close look at Figure 9.4 shows that the offenses that a prosecutor decides to pursue have a high rate of conviction. Out of 67 typical cases carried forward, 64 will end with a guilty plea and two of the three defendants who had full trials will be convicted. These examples make it clear that the criminal justice system is effective in producing convictions when a prosecutor, with sufficient evidence, pursues a felony prosecution. In addition, recent research indicates that some of the people whose cases were dismissed will actually receive punishment. In the case of repeat offenders, prosecutors may dismiss criminal charges in favor of probation violation charges that lead the offender to serve time in jail or prison despite not being convicted of a new crime (Kingsnorth, MacIntosh, and Sutherland, 2002). For example, in 2011 when Hollywood actress Lindsay Lohan was charged with stealing a necklace from a jewelry store, she was sentenced to four months in jail—pending the outcome of an appeal—for violating the terms of her probation for a previous offense (Winton and Saillant, 2011). Lohan later pleaded “no contest” to the theft charge, but she was not sentenced to additional time beyond the 120 days for the probation violation. So, the number of offenders punished is actually higher than that indicated by Figure 9.4.

Checkpoint

10. What are the purposes of preliminary hearings, arraignments, and defense motions?

11. Why and how are cases filtered out of the system?

Stop and Analyze: Do prosecutors hold too much power in the pretrial process in light of their discretionary decisions about charging and plea bargaining? List two risks and two benefits from giving prosecutors significant authority over decisions in the pretrial process.

Check-It

5. The court appearance of an accused person in which the charges are read and the person, assisted by a lawyer, enters a plea of guilty or not guilty, is the

.

a. indictment

b. grand jury hearing

c. pretrial heating

d. arraignment

9-5 Bail: Pretrial Release It is often stated that defendants are presumed innocent until proved guilty or until they enter a guilty plea. However, people who are arrested are taken to jail. They are deprived of their freedom and, in many cases, subjected to miserable living conditions while they await the processing of their cases. The idea that people who are presumed innocent can lose their freedom—sometimes for many months—as their cases work their way toward trial clashes with the American values of freedom and liberty. Moreover, research indicates that people unable to gain release on bail are at risk of ultimately receiving more-severe sentences upon conviction (Oleson et al., 2014). Such effects might be the result of several factors. For example, people held in jail are less able to help their attorneys prepare the case for plea bargaining or trial, or judges may unknowingly think about and treat differently defendants brought to hearings in jail jumpsuits as compared to those who arrive dressed up and in the company of friends and family.

On the other hand, government officials also feel an obligation to protect society from harm. A conflict is bound to occur between the American value of individual liberty and the need to keep some criminal suspects in jail in order to protect society from people who are violent or who may try to escape prosecution. Some suspects who are considered a threat to public safety could be held in pretrial detention without causing most Americans to believe that the values of freedom and liberty have been compromised. However, not every person who is charged with a criminal offense need be detained. Thus, bail and other methods of releasing defendants are used on the condition that the accused will appear in court as required.

When someone is accused of a crime, especially a violent crime, people in the community may be afraid of what harm the person may cause when released on bail. In 2017, for example, an Alabama man out on bail for a murder charge was arrested one month after his release for attacking a woman with a machete and injuring her arm (C. Robinson, 2017). Given the large number of defendants released on bail for a variety of offenses, the Alabama case was very unusual. However, the publicity surrounding such an event can cause people in the community to be fearful about others who are out of jail on bail. Whenever there are strong fears shared among community members, especially when not based on facts about a specific individual, there are risks that there will be harmful reactions. Read the Criminal Justice and the Risk of Misinformation feature to consider these risks. Although the feature does not concern someone out on bail, think about how such community reactions might affect someone on bail.

Criminal Justice and the Risk of Misinformation

Rumors and Vigilante Action

In 2015, a homeless California man was beaten by a group of vigilantes after a Facebook posting falsely claimed that he had attacked local women and had tried to break into several homes. This example illustrates the potential impact of spreading information on social media when that information is false. People who believe Facebook postings without making any effort to check their accuracy are susceptible to absorbing and believing false information. In many cases, this false information will not necessarily cause concrete harms. However, when a belief in false information is absorbed by people who are willing to commit criminal acts under a misguided belief that they are defending the community, there are grave risks of harm.

The beating suffered by the homeless man in California is one extreme form of harm from misinformation. More commonly, the harm comes in the form of anonymous threats which can be life-altering and frightening for the target of those threats. For example, in 2016 a businessman in Montana became the target of hundreds of death threats when a false Facebook post asserted that he was constructing two apartment buildings to house Syrian refugees. He also had thousands of dollars’ worth of equipment stolen from his construction site.

Examine the Issue

The quick spread of information through social media is something that did not exist decades ago. It poses new challenges and risks for society when people are not skeptical about the material they read and do not make an effort to check other sources before spreading the information. The problem is compounded when people act as vigilantes, willing to take matters into their own hands instead of calling proper law enforcement officials to investigate and enforce the laws. If you were a college professor teaching a class about social media and its effects on society, what would you tell your students in regards to checking whether social media is spreading misinformation? Give two examples of steps that you would advise your students to take.

Sources: R. Blidner, “Homeless Man Assaulted after False Facebook Post Claims He Harassed Women

in California,” New York Daily News, July 1, 2015 ( www.nydailynews.com); MTN News, “Social Media

Rumors Result in Death Threats against Montana Man,” Q2-TV News, July 26, 2016 ( www.ktvq.com).

Bail (An amount of money specified by a judge to be paid as a condition of pretrial release to ensure that the accused will appear in court as required.) is a sum of money or property, specified by the judge, that the defendant must present to the court in order to gain pretrial release. The bail will be forfeited if the defendant does not appear in court as scheduled. Although people are generally entitled to a bail hearing as part of their right to due process, there is no constitutional right to release on bail, nor even a right to have the court set an amount as the condition of release. The Eighth Amendment to the U.S. Constitution forbids excessive bail, and state bail laws are usually designed to prevent discrimination in setting bail. They do not guarantee, however, that all defendants will have a realistic chance of

being released before trial. A study in New York City found that among 19,137 cases for which bail was set at $1,000 or less, 87 percent of those defendants could not post bail and they remained in jail for an average of 16 days while their cases were processed (Secret, 2010). Such statistics about the risk of pretrial detention for large numbers of poor people raise the possibility that such defendants may feel pressured to plead guilty, whether or not they are in fact guilty, simply to obtain a sentence of probation for minor offenses and thereby more quickly regain their freedom.

Because the accused is presumed to be innocent, bail should not be used as punishment. The amount of bail should therefore be high enough to ensure that the defendant appears in court for trial—but no higher. But this is not the only purpose of bail. The community must be protected from further crimes that some defendants might commit while out on bail. Except in the recent cases of suspected terrorists, criminal suspects are entitled to a hearing before they are denied bail or bail is set at such a high level that they are certain to be kept in jail despite the fact that they have not yet been convicted. Congress and some of the states have passed laws that permit preventive detention of defendants—holding without setting any amount for bail—when the judge concludes that they pose a threat to others or to the community while awaiting trial. Note in the situation discussed in the chapter opening, bail was set in the case of John Gotti, but it was set at an extraordinarily high level because he had violated the terms of his prior bail by being caught with drugs while on pretrial release.

9-5a The Reality of the Bail System

The reality of the bail system is far from the ideal. The question of bail may arise at the police station, at the initial court appearance in a misdemeanor case, or at the arraignment in most felony cases. For minor offenses, police officers may have a standard list of bail amounts. For serious offenses, a judge sets bail in court after hearing a recommendation from the prosecutor. In both cases, those setting bail may have discretion to set differing bail amounts for different suspects, depending on the circumstances of each case. The speed of decision making and lack of information available at the moment of setting bail can enhance differential treatment. As described by the prosecutor in Staten Island, one of the boroughs of New York City, “We have an assistant prosecutor who in about 30 seconds has to come up with a dollar figure that that young person believes is adequate [as an amount for bail]…. We don’t get to interview the defendant; we have to make a determination without substantiating any of the information before us” (Secret, 2010).

In almost all courts, the amount of bail is based mainly on the judge’s view of the seriousness of the crime and of the defendant’s record (Futty, 2016). In part, this emphasis results from a lack of information about the accused. Because bail is typically determined 24 to 48 hours after an arrest, there is little time to conduct a more thorough assessment. As a result, judges in many communities have developed standard rates: so many dollars for such-and-such an offense. In some cases, a judge may set a high bail if the police or prosecutor want a certain person to be kept off the streets.

Critics of the bail system argue that it discriminates against poor people. Imagine that you have been arrested and have no money. Should you be denied a chance for freedom before trial just because you are poor? What if you have a little money, but if you use it to post bail you will not have any left to hire your own attorney? Professional criminals and the affluent have no trouble making bail; many drug dealers, for instance, can readily make bail and go on dealing while awaiting trial. In contrast, a poor person arrested for a minor violation may spend the pretrial period in jail. Should dangerous, wealthy offenders be allowed out on bail while nonviolent, poor suspects remain locked up?

The problems for poor defendants are compounded by the lack of a constitutional right to representation by an attorney at bail hearings (Gerstein, 2013). Defendants who cannot afford to hire an attorney may have no one to make arguments on their behalf at the bail hearing. Thus, the prosecutor’s arguments in favor of a high bail or a denial of bail may be the only effective arguments presented to the judge. For many poor defendants, bail is set before an attorney has been appointed to represent them in the preparation of their defense. A lawsuit was filed against a county in Mississippi in 2014 because poor arrestees were spending months in jail, unable to make bail and never receiving the services of a

defense attorney, and sometimes without ever being formally charged with a crime (Robertson, 2014).

According to a study of felony defendants in the nation’s most populous counties, 62 percent were released before disposition of their cases, 34 percent could not make bail, and 4 percent were detained without bail (B. Reaves, 2013). Figure 9.5 shows the average amounts of bail set for various types of felony offenses. Those who cannot make bail must remain in jail awaiting trial, unless they can obtain enough money to pay a bail agent’s fee. Given the length of time between arraignment and trial in most courts and the hardships of pretrial detention, defendants in many cities depend on bail agents. In 2009, there were 17,198 felony suspects in the 75 largest counties who could not make bail or use the services of a bail agent to gain release (B. Reaves, 2013). Far larger numbers of people lose their liberty when one adds the number of arrestees who cannot pay even small bail amounts when arrested for misdemeanor offenses.

Figure 9.5

Median Bail Amounts for Felony Defendants by Offense Type

The amount of bail varies according to the offense.

Source: Brian A. Reeves, “Felony Defendants in Large Urban Counties, 2009—Statistical Tables,” Bureau of Justice Statistics Statistical Tables, December 2013, NCJ 228944.

9-5b Bail Agents

The bail agent, also called a bail bondsman, is a key figure in the bail process. Bail agents are private businesspeople who loan money to defendants who lack the money to make bail. They are licensed by the state and choose their own clients. In exchange for a fee, which may be 5 to 10 percent of the bail amount, the bondsman will put up the money (or property) to gain the defendant’s release. Again, bail agents are not obliged to provide bail money for every defendant who seeks to use their services. Instead, they decide which defendants are likely to return for court appearances. If the defendant skips town, the bail agent’s money is forfeited.

Bail agents may build relationships with police officers and jailers to obtain referrals. Many defendants may not know whom to call for help in making bail, and officers can steer them to a particular bondsman. This can lead to corruption, if a bail agent pays a jailer or police officer to make such referrals. Moreover, these relationships can lead to improper cooperation, such as a bail agent refusing to help a particular defendant if the police would like to see that defendant remain in jail. A bail agent in Brownsville, Texas, for example, was sentenced to serve time in federal prison in 2012 after bribing a state judge to reduce an accused drug trafficker’s bail (Brezosky, 2012). Similarly, a bail agent in Portsmouth, Virginia, went to prison in 2012 for paying bribes to a judge and to an employee of the sheriff’s department for referring defendants to him as bail bond clients (FBI Press Release, 2012). In 2016, a bail agent was prosecuted in North Carolina for fraud when a scheme was discovered in which court clerks helped bail agents alter records to make it appear as if they had forfeited bail money when clients failed to appear in court as scheduled. In actuality, they had not paid the money to the court at all (Lamb, 2016). Bail agents may also exploit the desperation of arrestees who are eager to get out of jail. A bail agent in Virginia was arrested in 2016 for pressuring jailed women to provide him with sexual favors upon release when they could not afford to pay his fee but were desperate to get out of jail (S. Jones, 2016). These examples show the continuing risks that exist from the use of bail agents in the criminal justice system.

The role of the bail agent poses other ethical questions as well (Clisura, 2010). Is it proper for a private, profit-seeking businessperson to decide who will gain pretrial release and to profit from a person who is “presumed innocent” but is threatened with the loss of his or her freedom? If charges are dropped or a defendant is acquitted, the bail agent still keeps the fee that was paid to make bail. This can be especially costly to poor defendants. Although judges set the bail amount, the bail agent often actually decides whether certain defendants will gain pretrial release. This ethical issue looms ever larger, because the role of bail agent is expanding in many places. In the mid-1990s, only 24 percent of defendants who gained release used the services of a bail agent. By 2004, an estimated 40 percent of released

Civic Engagement

Your Role in the System

Imagine that a candidate for state legislature runs by claiming that she will propose a law to ban bounty hunters from taking people into custody, even when those people have skipped out on bail. Make a list of the benefits and risks from such a proposed law. Would you support the law? Then look at a news article that raises questions about how bounty hunters operate.

felony defendants were customers of bail agents (Liptak, 2008). The figure reached 49 percent by 2012 (Bauer, 2014). Ask yourself whether the risks of the private bail agent’s operation outweigh the benefits for providing fairness and justice.

Only two countries in the world rely on profit-seeking bail agents, the United States and the Philippines. Posting bail for a fee is illegal in many countries. In addition, four states—Illinois, Kentucky, Oregon, and Wisconsin—have abolished private bail bond systems and instead rely on deposits to courts instead of payments to private businesses (Liptak, 2008).

Defendants who fail to appear for scheduled court appearances often do so because of forgetfulness and confusion about when and where they must appear. Courthouses in large cities are huge bureaucracies in which changes in the times and locations of hearings are not always communicated to defendants. Bail agents can help by reminding defendants about court dates, calling defendants’ relatives to make sure that the defendant will arrive on time, and warning defendants about the penalties for failing to appear. Indeed, some officials in states that have done away with commercial bail bonds say that they have seen increases in failure-to-appear cases (Liptak, 2008).

Bounty hunters or bail-enforcement agents hired by bail agents find many of the defendants who have skipped out on bail. These independent operators have caused numerous problems. In highly publicized cases, bounty hunters have broken into the wrong homes, kidnapped innocent people mistaken for wanted criminals, and even shot and killed innocent bystanders (Bauer, 2014; Liptak, 2008). Bounty hunters’ disregard for people’s rights and public safety has led to calls for new laws to regulate the activities of bail agents and the people they hire to hunt for fugitives. Consider the potential problems that can be caused by bounty hunters as you read “Civic Engagement: Your Role in the System.”

Bail bonds businesses offer to help arrestees to gain release—provided the arrestees can afford the fees charged by these profit-seeking businesses. Is it fair that presumptively innocent poor people, whose charges may eventually be dropped, must pay a fee to avoid sitting in jail for weeks or months while their cases are being processed? Are there other ways to ensure the twin goals of community safety and protection of presumptively innocent people’s liberty?

Spencer Platt/Getty Images

Court and law enforcement officials could provide the same benefits for the justice system, as well or better than bail agents, if they had the resources, time, and interest to make sure that released defendants return to court (VanNostrand, 2010). If all courts had pretrial services officers, such as those in the federal courts, defendants could be evaluated, monitored, and reminded to return to court without the risks of discrimination and corruption associated with the use of bail agents (Cooprider, 2014; J. G. Carr, 1993). Data collected by the U.S. Office of Probation and Pretrial Services, which handles the processing and monitoring of defendants released on bail by the federal courts, indicate that pretrial services activities produce low levels of failure-to-appear and rearrest while contributing to a significant decline in the use of bail agents in federal courts (Cadigan, 2007).

9-5c Setting Bail

When the police set bail at the station house for minor offenses, they usually use a standard amount for a particular charge. By contrast, when a judge sets bail, the amount of bail and conditions of release stem from interactions among the judge, prosecutor, and defense attorney, who discuss the defendant’s personal qualities and prior record. The prosecutor may stress the seriousness of the crime, the defendant’s record, and negative personal characteristics. The defense attorney, if one has been hired or appointed at this point, may stress the defendant’s good job, family responsibilities, and status in the community. Like other aspects of bail, these factors may favor affluent defendants over the poor, the unemployed, or people with unstable families, and thus be a basis for discrimination in the justice system (M. Johnson and Johnson, 2012). Yet many of these factors provide no clear information about how dangerous a defendant is or whether he or she is likely to appear in court as scheduled. Moreover, judges may not have accurate information about these factors if pretrial services officers at the court do not carefully investigate the background and circumstances of each defendant (Marsh, 2001).

Research highlights the disadvantages of the poor in the bail process (Clisura, 2010). For example, a study in New Jersey found that the odds of having to produce money or property for bail, as opposed to being released on a promise to appear in court, were 63 percent higher for Hispanics and 65 percent higher for African American defendants than for white defendants. In addition, Hispanic and African American defendants were required to pay higher bail amounts than whites, even when charged with comparable offenses (Kazemian, McCoy, and Sacks, 2013). A study in Nebraska found an impact from gender as well as race and ethnicity. It found that “white females had a bail amount set that was substantially less than that of their white male counterparts,” and “[n]on-white males, on the other hand, had a higher bail amount set than the white males” (K. B. Turner and Johnson, 2006: 61).

Some claim that bail setting should be guided by six principles:

1. The accused is entitled to release on his or her own recognizance.

2. Nonfinancial alternatives to bail will be used when possible.

3. The accused will receive a full and fair hearing.

4. Reasons will be stated for the decision.

5. Clear and convincing evidence will be offered to support a decision.

6. There will be a prompt and automatic review of all bail determinations.

Many people argue that these principles would hamper the ability of the justice system to deal with offenders and protect society. Others counter that personal freedom is so precious that failure to allow a person every opportunity to gain release creates an even greater injustice.

Checkpoint

12. What factors affect whether bail is set and how much money or property a defendant must provide to gain pretrial release?

13. What positive and negative effects does the bail agent have on the justice system?

Stop and Analyze: In light of the criticisms and problems with the bail system, how might it be improved? Give three suggestions for improving the system in ways that will both increase fairness and protect public safety.

9-5d Reforming the Bail System

Studies of pretrial detention in such cities as Philadelphia and New York have raised questions about the need to hold defendants in jail. Criticisms of the bail system focus on judges’ discretion in setting bail amounts, the fact that the poor are deprived of their freedom whereas the affluent can afford bail, the negative aspects of bail agents, and difficult jail conditions for those detained while awaiting trial. To address such criticisms, people have attempted for many years to reform the bail system. Such efforts have led to changes in the number of defendants held in jail. A recent survey found that 62 percent of felony suspects in the 75 most populous counties were released before disposition of their cases. Only 4 percent were denied bail (B. Reaves, 2013). The increase in defendants released on bail has occurred, in part, because of the use of certain pretrial release methods (see Table 9.2).

Table 9.2

Pretrial Release Methods

Pretrial Release Methods

Financial Bond Alternative Release Options

Fully secured bail. The defendant posts the full amount of bail with the court.

Release on recognizance (ROR). The court releases the defendant on his or her promise to appear in court as required.

Privately secured bail. A bail agent signs a promissory note to the court for the bail amount and charges the defendant a fee for the service (usually 10 percent of the bail amount). If the defendant fails to appear, the bail agent must pay the court the full amount. The bail agent frequently requires the defendant to post collateral in addition to the fee.

Conditional release. The court releases the defendant subject to his or her following specific conditions set by the court, such as attendance at drug treatment therapy or staying away from the complaining witness.

Financial Bond Alternative Release Options

Percentage bail. The courts allow the defendant to deposit a percentage (usually 10 percent) of the full bail with the court. The full amount of the bail is required if the defendant fails to appear. The percentage bail is returned after disposition of the case, although the court often retains 1 percent for administrative costs.

Third-party custody. The defendant is released into the custody of an individual or agency that promises to ensure his or her appearance in court. No monetary transactions are involved in this type of release.

Unsecured bail. The defendant pays no money to the court but is liable for the full amount of bail should she or he fail to appear.

Source: Bureau of Justice Statistics, Report to the Nation on Crime and Justice, 2nd ed. (Washington,

DC: U.S. Government Printing Office, 1988), 76.

Citation

What people often call a ticket is more formally known as a citation (A written order or summons, issued by a law enforcement officer, often directing an alleged offender to appear in court at a specified time to answer a criminal charge.) . It is often issued to a person accused of committing a traffic offense or some other minor violation. Depending on the nature of the offense, the citation written out by the officer can also include a summons requiring an appearance in court.

By issuing the citation, the officer avoids taking the accused person to the station house for booking and to court for arraignment and setting of bail. Citations are now being used for more-serious offenses, in part because the police want to reduce the amount of time they spend booking minor offenders and waiting in arraignment court for their cases to come up.

Release on Recognizance

Pioneered in the 1960s by the Vera Institute of Justice in New York City, the release on recognizance (ROR) (Pretrial release granted on the defendant’s promise to appear in court, because the judge believes that the defendant’s ties in the community guarantee that he or she will appear.) approach is based on the assumption that judges will grant releases if the defendant is reliable and has roots in the community. Soon after the arrest, court

personnel talk to defendants about their job, family, prior record, and associations (K. Kim and Denver, 2011). They then decide whether to recommend release.

In the first three years of the Vera Institute of Justice’s classic experiment, more than 10,000 defendants were interviewed and about 3,500 were released. Only 1.5 percent failed to appear in court at the scheduled time, a rate almost 3 times better than the rate for those released on bail (Goldfarb, 1965). Programs in other cities have had similar results, although research raises questions about whether women and property-crime defendants on ROR are less likely than other defendants to appear in court (Maxwell, 1999).

Ten Percent Cash Bail

Although ROR is a useful alternative to bail, not all defendants should be released on their own recognizance. Illinois, Kentucky, Nebraska, Oregon, and Pennsylvania have started bail programs in which the defendants deposit 10 percent of their bail in cash with the court. When they appear in court as required, 90 percent of this amount is returned to them. Begun in Illinois in 1964, this plan is designed to release as many eligible defendants as possible without using bail agents.

Bail Fund

An innovative program developed in New York City in 2009 is called the Bronx Freedom Fund. Poor defendants who are represented by the Bronx Defenders can receive loans from the fund in order to post bail and gain pretrial release (Clisura, 2010). The fund was created in order to prevent poor defendants from languishing in jail merely because they cannot pay a relatively small amount of money. Those freed on bail are monitored and assisted through the relationship between the fund and the defense attorneys. The organization’s website claims that 93 percent of defendants assisted by the fund returned for their court appearances. In other locations, churches and other organizations have sometimes engaged in parallel activities by loaning money for bail. However, such programs are probably most effective when the loans are tied to contact, assistance, and supervision with people, such as counselors or defense attorneys, who remind defendants about court dates and otherwise help them to avoid violating conditions of bail.

Technology and Criminal Justice

Technology and Pretrial Release

In 2011, the U.S. Supreme Court upheld a lower-court decision that ordered California to significantly reduce its prison population, largely because the state was unable to provide proper medical and mental health care for such a large number of prisoners (Brown v. Plata, 2011). The plan developed by California to reduce the population of its overcrowded prisons included an initiative to place nonviolent offenders in county jails to serve any sentences of three years or less. By increasing the number of convicted offenders slated to be housed in county jails, sheriffs found themselves considering how their facilities could be sure to have enough space for

these offenders. Thus new efforts emerged for considering how counties might reduce the number of pretrial detainees. These efforts included a recognition that jails could use technology to monitor people awaiting trial without actually confining them inside jails.

Ventura County, California, for example, had previously only used electronic monitoring as a basis for releasing detainees with medical conditions that would pose challenges for jail officials. As a result, the sheriff’s office developed criteria for identifying detainees who would be eligible for pretrial release with ankle monitors containing Global Positioning Systems that would show their locations at all times. Arrestees charged with using guns in their crimes and those facing the most serious charges were ineligible for the program. However, other counties may include those charged with violent crimes within monitoring programs when technology is used in conjunction with other strict conditions. Prior to California counties focusing on electronic monitoring as an alternative to jail for pretrial detainees, Chicago had already proceeded with the use of such technology as a means to save money for the county and avoid jail overcrowding. It cost the county $143 per day to hold someone in jail but only $65 to use electronic monitoring as a form of home surveillance. The use of electronic monitoring also enabled nonviolent arrestees to maintain employment in order to support their families while they waited for their cases to be processed through the court system. Chicago’s program primarily focused on nonviolent drug offenders, and initial evaluations found that only 3 percent of arrestees escaped from the ankle monitor or committed a new crime while on electronic monitoring.

In Denver and San Antonio, the forms of electronic monitoring of arrestees on pretrial release were not limited to GPS monitoring to ensure that they remained at home, traveled solely between work and home, and otherwise avoided “excluded areas” that can be programmed into GPS systems. These cities use Secure Continuous Remote Alcohol Monitoring (SCRAM), an ankle monitor for drunk- driving arrestees that monitors the skin to detect any alcohol consumption. In these jurisdictions, as in many others, the arrestees are charged fees for electronic monitoring, thereby saving the cities even more money beyond avoiding the cost of feeding and guarding arrestees in jail. In San Antonio, monitored arrestees on release are charged $270 per month for a GPS ankle bracelet that monitors their location, $300 for an advanced GPS device that can be programmed for “excluded zones” and scheduled medical appointments, and $360 per month for SCRAM ankle monitors that analyze sweat on the skin for any presence of alcohol. In 2012, Denver saved nearly $1 million by using pretrial electronic monitoring while maintaining a 98 percent success rate for defendants appearing for scheduled court hearings. However, charging fees to poor people is a source of significant controversy. They are supposed to be presumptively innocent while on bail because they have not yet been convicted of crimes. Yet, monitoring fees can drain money from the families of poor defendants and, after the money is gone, they can still end up back in jail if they run out of money and cannot make a payment. The collecting

of fees and rental of equipment may also be contracted out to private companies that are quick to ask for jailing in the event of a missed payment and have no incentive to understand the financial challenges or problems that individual defendants may encounter.

If counties and cities have funds for electronic monitoring, this option can provide an additional alternative to traditional money bail. People who lack the funds to make bail could avoid being stuck in jail as they are monitored electronically while living at home. On the other hand, however, many local governments do not have the funds to pay for such programs themselves, so electronic monitoring may simply be an alternative form of pretrial release that is only available for people with enough money to pay monitoring fees. This constitutes a two-tier system of justice in which more-affluent people can gain freedom while poor people remain in jail, even though both categories are supposed to enjoy the presumption of innocence prior to conviction. Moreover, such alternatives are less workable for homeless people and certain mentally ill people whose home lives and behavior will clash with a system based on residing in a specific location, especially for monitoring devices that must be keyed to landline home telephones.

Debate the Issue

Is there a way to reduce the inequality between those who can afford to pay for monitoring and those who cannot afford it? If you were hired as a consultant, what suggestions would you give to a local court and jail about how to gain the benefits of electronic monitoring without discriminating against the poor. Provide three suggestions and explain each one.

Sources: “Jail Receives $50,000 in Technology Upgrades at No Cost to County,” Grayson Journal-

Enquirer, April 1, 2011 (journal-times.com); D. Johnson, “Guardian RFID Brings Offender Management

into the 21st Century,” Corrections One News, April 12, 2011 ( www.correctionsone.com); B. Link,

“Telephone Revenues Help Pay for New Jail Technology,” Iowa Globe Gazette, March 30, 2008 (

www.globegazette.com); E. Markowitz, “Electronic Monitoring Has Become the New Debtors Prison,”

Prison Legal News, March 3, 2016 ( www.prisonlegalnews.org); Quentin Misiag, “Johnson County

Officials: Current Jail Technology ‘on Its Last Leg,’” Daily Iowan, April 28, 2013 ( www.dailyiowan.com); S.

Orr, “New Jail Technology at Camp Verde,” Tri-Valley Dispatch, February 27, 2013 (

www.trivalleycentral.com); T. Razor, “Technology Boosts Efficiency at New Polk County Jail,” Business

Record, July 18, 2009 ( www.businessrecord.com); S. Wiseman, “Pretrial Detention and the Right to Be

Monitored,” Yale Law Journal 123: 1344–405.

Bail Guidelines

To deal with the problem of unequal treatment, reformers have written guidelines for setting bail. The guidelines specify the standards that judges should use in setting bail and also list appropriate amounts. Judges are expected to follow the guidelines but deviate from them in special situations. The guidelines take into account the seriousness of the offense and the

(1)

(2)

(3)

defendant’s prior record, in order to protect the community and ensure that released offenders can be trusted to return for court appearances.

Read the Technology and Criminal Justice feature to consider how electronic monitoring can be used as an alternative to pretrial detention or in conjunction with other conditions of bail release.

Preventive Detention

Reforms have been suggested not only by those concerned with unfairness in the bail system but also by those concerned with stopping crime. Critics of the bail system worry about any potential links between release on bail and the commission of crimes, arguing that the accused may commit other crimes while awaiting trial. A study of the nation’s most populous counties found that 16 percent of felony defendants released on bail were rearrested for another crime (B. Reaves, 2013). Sometimes these new arrests can arouse public concern by conveying the impression that the bail system is too lax, as when a man in Detroit was released on $10,000 bail in 2014 after being charged with attempted murder. When released from jail, the defendant went to the original victim’s house and shot him in the chest (Hunter, 2014). In response to this kind of incident, legislatures have passed laws permitting detention of defendants without bail.

For federal criminal cases, Congress enacted the Bail Reform Act of 1984, which authorizes preventive detention (Holding a defendant for trial, based on a judge’s finding that, if the defendant were released on bail, he or she would flee or would endanger another person or the community.) . Under the act, if prosecutors recommend that a defendant be kept in jail, a federal judge holds a hearing to determine

if there is a serious risk that the person will flee;

if it is likely that the person will obstruct justice or threaten, injure, or intimidate a prospective witness or juror; or

if the offense is one of violence or one punishable by life imprisonment or death.

On finding that one or more of these factors makes setting bail without endangering the community impossible, the judge can order the defendant held in jail until the case is completed (C. E. Smith, 1990).

Obviously, preventive detention provides a particularly powerful clash between important American values. The value placed on liberty for individuals seems to be denied when presumptively innocent people remain in jail. On the other hand, the value placed on all citizens’ ability to enjoy the liberty of walking the streets without fear of crime may be advanced by detaining specific individuals who are found to threaten community safety.

Critics of preventive detention argue that it violates the Constitution’s due process clause because the accused remains in custody until a verdict is rendered. However, the Supreme Court has ruled that it is constitutional. The preventive detention provisions of the Bail

Reform Act of 1984 were upheld in United States v. Salerno and Cafero (1987) (The preventive detention provisions of the Bail Reform Act of 1984 are upheld as a legitimate use of government power designed to prevent people from committing crimes while on bail.) . The justices said that preventive detention was a legitimate use of government power, because it was not designed to punish the accused. Instead, it deals with the problem of people who commit crimes while on bail. By upholding the federal law, the Court also upheld state laws dealing with preventive detention (M. Miller and Guggenheim, 1990).

Supporters of preventive detention claim that it ensures that drug dealers, who often treat bail as a business expense, cannot flee before trial. Research has shown that the nature and seriousness of the charge, a history of prior arrests, and drug use all have a strong bearing on the likelihood that a defendant will commit a crime while on bail.

Checkpoint

14. What methods are used to facilitate pretrial release for certain defendants?

15. How did the U.S. Supreme Court rule in cases involving preventive detention?

Stop and Analyze: If you were the governor of a state that had never introduced reforms to reduce pretrial detention, which approach would you propose—10 percent cash bail, bail fund, release on own recognizance, bail guidelines, or citation? Make two arguments for regarding one of these options as being the best approach.

Check-It

6. Accused persons have a constitutional right to an attorney at their bail hearings.

a. True

b. False

7. Decisions about bail are based on .

a. the judge’s views about the seriousness of the crime and the defendant’s record

b. the defendant’s record and likelihood of reoffending

c. the perceived dangerousness of the defendant, and his or her likelihood of reoffending

d. public outrage over the crime and the defendant’s dangerousness

9-6 Pretrial Detention People who are not released before trial must remain in jail. Often called “the ultimate ghetto,” American jails hold more than 700,000 people on any one day (Minton and Golinelli, 2014). Most detainees are poor, more than half are in pretrial detention, and the rest are serving sentences (normally of less than a year) or are waiting to be moved to state prison or to another jurisdiction (T. Clear, Cole, and Reisig, 2012).

Urban jails also contain troubled people, many with drug abuse and mental health problems, whom police have swept off the streets (Glasheen et al., 2012). Michael Welch calls this process, in which the police remove socially offensive people from certain areas, “social sanitation” (M. Welch, 1994: 262). The presence of troubled people poses challenges for jail staff as well as for the detainees sharing cells with people in need of counseling, psychiatric treatment, or medications (Desmarais et al., 2012). Because so many public mental health facilities closed in the past few decades, people with mental health problems often end up in jail. They may merely engage in disruptive or self-harming behavior, but police do not necessarily have many options for where to take them. The Cook County jail in Chicago has been called “the nation’s largest mental hospital” because one-third of the detainees show symptoms of psychological problems that need treatment (Ford, 2015).

Conditions in jails are often much harsher than those in prisons. People awaiting trial are often held in barracks-like cells with sentenced offenders. Thus, a “presumed innocent” pretrial detainee might spend weeks or months in the same confined space with troubled people or sentenced felons (Ono, 2015; A. J. Beck, Karberg, and Harrison, 2002).

The period just after arrest is the most frightening and difficult time for suspects. Imagine freely walking the streets one minute and being locked in a small space with a large number of troubled and potentially dangerous cell mates the next. Suddenly you have no privacy and must share an open toilet with hostile strangers. You have been fingerprinted, photographed, and questioned—treated like “the criminal” that the police and the criminal justice system consider you to be. You are alone with people whose behavior you cannot predict. You are left to worry and wonder about what might happen. If you are female, you may be placed in a cell by yourself if the jail is in a small community. Given the stressful nature of arrest and jailing, it is little wonder that many jail suicides and psychotic episodes occur during the first hours of detention. Fortunately, increased awareness about suicide risks in training programs and policies for jail staff have helped to reduce the frequency of this problem (Hayes, 2012).

Often jails holding pretrial detainees are crowded and have no education or work programs. Some detainees may sleep on the floor and spend their days in close

quarters with many strangers as they wait days, weeks, or months for their trials or, if after trial, their transfer to a prison. What thoughts and feelings would you experience if you were arrested and detained in jail?

Gary Friedman/Los Angeles Times/Getty Images

The shock of arrest and detention can be made even worse by other factors. Many people are arrested for offenses they committed while under the influence of alcohol or some other substance and may therefore be that much less able to cope with their new situation. Young arrestees who face the risk of being victimized by older, stronger cell mates may sink into depression. Detainees also worry about losing their jobs while in jail, because they do not know if or when they will be released.

Pretrial detention can last a long time. Although most felony defendants have their cases adjudicated within six months, other felony defendants can wait more than a year. For example, in 15 percent of felony cases in one study the defendants waited for more than one year for their cases to be resolved (B. Reaves, 2013). If they are held in detention for that time period, they suffer from serious hardships, especially if the charges are eventually dropped or they are found to be not guilty. Thus, the psychological and economic hardships faced by pretrial detainees and their families can be major and prolonged.

Pretrial detention not only imposes stresses and hardships that can reach crisis levels, but it can also affect the outcomes of cases. People who are held in jail can give little help to their defense attorneys. They cannot help find witnesses and perform other useful tasks on their own behalf. In addition, they may feel pressured to plead guilty in order to end their indefinite stay in jail. Even if they believe that they should not be convicted of the crime charged, they may prefer to start serving a prison or jail sentence with a definite end point.

Some may even gain quicker release on probation or in a community corrections program by pleading guilty, whereas they might stay in jail for a longer period by insisting on their innocence and awaiting a trial. Read the Inside Today’s Controversies feature to consider problems related to bail and jail.

Inside Today’s Controversies

The Kalief Browder Tragedy: Poor, Young, and in Solitary Confinement

The problems of bail and pretrial detention received significant public attention in 2017 through a television documentary series created by celebrity music producer and performer Jay Z (Cush, 2017). It told the real-life story of Kalief Browder, a sixteen-year-old in New York City who was accused by another youth of stealing a backpack. He denied the accusation. Because his family could not come up with the $3,000 required for bail, Browder spent three years in notoriously tough Rikers Island jail, a facility for adults that also had a section for older teens. Browder’s case was delayed because the courts in the Bronx borough of New York City that processed his charges were extremely overloaded with a backlog of cases. After two and a half years in jail, prosecutors offered him a plea bargain: plead guilty and go home because he had already served so much time. Most defendants might feel pressured to plead guilty in order to end their ordeal in jail, whether they are guilty or not. Browder, however, insisted that he was innocent and that he would never enter a guilty plea. He continued to demand a trial. Unfortunately, the assistant prosecutor for his case spent an extraordinarily long period of time before he declared that he was ready to proceed to trial.

Browder’s time in the jail included more than a year in solitary confinement in a tiny cell with unbearable heat during the summer months. He refused to obey the orders of gang leaders who ran the youth section and he got into several fights, including spats with jail officers. Jail security video showed that he endured physical abuse by jail officers. He tried to commit suicide several times during his confinement. Eventually, prosecutors dropped the charges against him because his accuser had left the city and could not testify against him. He was finally released, but he had difficulty adjusting to life in society as he had lingering psychological effects from his lengthy time in solitary confinement. An attorney hired by the family to sue the city for violating Browder’s rights was shocked at the length of time that the young man had spent in jail without a trial. The attorney suspected that the prosecutors and other court officials had simply lost track of Browder. Kalief attempted suicide again after he was released from Rikers and, eventually, he ended his own life.

The Browder case illustrates several important issues about bail and pretrial detention, including the extra burden on poor defendants who cannot afford bail, the potential psychological harms of solitary confinement, and the debate about whether teens should be placed in jails with the same harsh conditions endured by adults. Will the publicity from this tragedy lead to reforms? In the case of bail and jail, much

depends on officials’ actual sustained interest in pursuing reforms as well as the adequacy of the resources available to improve facilities and programs.

Critical Thinking and Analysis

Kalief Browder’s tragic case is not unique. Stories emerge every year of individual cases around the country in which people who are unable to make bail suffer extraordinary hardships and even die as a result of jail conditions. This is not the typical situation, but it happens with enough tragic regularity to warrant attention. If you were the governor of New York, what reforms would you propose to address the issues of bail, jail conditions, solitary confinement, and prolonged periods in jail without trial? Make at least one proposal for each of those issues and explain how your proposal would improve the justice system.

Sources: A. Cush, “The Life of Kalief Browder, Subject of a New Documentary Produced by Jay Z, Is an

American Tragedy,” Spin Magazine, February 28, 2017 ( www.spin.com); J. Gonnerman, “Kalief Browder,

1993–2015,” New Yorker, June 7, 2015 ( www.newyorker.com); J. Gonnerman, “Before the Law,” New

Yorker, October 6, 2014 ( www.newyorker.com).

Efforts to reform the problems of bail and pretrial detention have emerged in a number of states. In New Mexico, for example, voters approved a constitutional amendment in 2016 intended to grant release on bail without payment of money for people who are not dangerous and not at risk of fleeing (B. Gray, 2016). The Indiana Supreme Court issued a ruling with a similar effect for its state’s courts in 2016 (P. Roth, 2016). In both of these states, and in other states as well, the effort is to prevent people from being stuck in pretrial detention merely because they are poor. However, issues still remain about how these rules are implemented as judges are still making discretionary decisions about which defendants are regarded as dangerous or likely to flee.

Checkpoint

16. People are detained in jail for many reasons. What categories of people are found in jails?

17. What sources of stress do people face while in jail awaiting trial?

Stop and Analyze: Some people in jail have been convicted of crimes and are serving short sentences or awaiting transfer to prison. Others are presumptively innocent pretrial detainees awaiting the processing of their cases. Make two arguments in favor of treating pretrial detainees differently and better than convicted offenders inside jails. Now make two arguments about why such differential treatment is undesirable or too difficult to implement.

A Question of Ethics

In October 2014, Judge Judith Hawkins was removed from office by the Florida Supreme Court primarily because she had used her professional position to support activities advancing a ministry that she founded and had promoted through various mission trips. She was determined to have sold and offered to sell her religious books and related items at the courthouse to lawyers and court employees. She also used a photo of herself in judicial robes to promote the sale of her religious items on her ministry’s website. In addition, Hawkins used her judicial assistant to promote the sale of her religious products. There were added charges about misleading investigators and failing to fulfill her judicial obligations.

Critical Thinking and Analysis

How did the actions of Judge Hawkins cause harm? Was she being required to surrender her right to religious liberty in order to work as a judge? Alternatively, is there a risk that lawyers and others might feel pressured to buy products sold by a judge so to avoid the chance that the judge might turn against them and their clients in court? Is removal from the bench too strong a punishment for her activities? Is there a more appropriate sanction, if a sanction is needed at all? Write a memo analyzing the nature and severity of the problem and recommending what actions, if any, should be taken with respect to the judge and her service on the county court.

Source: Karl Etters, “Court Orders Judge Judith Hawkins Be Removed from the Bench,” Tallahassee

Democrat, October 31, 2014 ( www.tallahassee.com).

Check-It

8. Most felony defendants have their cases adjudicated within months.

a. two

b. three

c. four

d. six

10. Michael Welch calls the process by which police “sweep up” persons with drug abuse and mental health problems and deposit them in jail .

a. shanghaiing

b. social sanitation

c. institutionalization

d. prisonization

LO1

LO2

LO3

LO4

9-7 Chapter Review

9-7a Summary

Describe the structure of the American court system

The United States has a dual court system consisting of state and federal courts that are organized into separate hierarchies.

Trial courts and appellate courts have different jurisdictions and functions.

Despite resistance from local judges and political interests, reformers have sought to improve state court systems through centralized administration, state funding, and a separate personnel system.

Analyze the qualities that we desire in a judge

The judge is a key figure in the criminal justice process who assumes the roles of adjudicator, negotiator, and administrator.

The recent development of specialized courts, such as drug courts’ veterans, courts, and mental health courts, places judges in the role of problem solver.

Identify the ways that American judges are selected

State judges are selected through various methods, including partisan elections, nonpartisan elections, gubernatorial appointment, legislative appointment, and merit selection.

Merit-selection methods for choosing judges have gradually spread to many states. Such methods normally use a screening committee to make recommendations of potential appointees who will, if placed on the bench by the governor, later go before the voters for approval or disapproval of their performance in office.

Describe the pretrial process in criminal cases

LO5

LO6

Pretrial processes determine the fates of nearly all defendants through case dismissals, decisions defining the charges, and plea bargains, all of which affect more than 90 percent of cases.

Defense attorneys use motions to their advantage to gain information and delay proceedings to benefit their clients.

Discuss how the bail system operates

The bail process provides opportunities for many defendants to gain pretrial release, but poor defendants may be disadvantaged by their inability to come up with the money or property needed to secure release. Some preventive detention statutes permit judges to hold defendants considered dangerous or likely to flee.

Bail agents, also known as bail bondsmen, are private businesspeople who charge a fee to provide money for defendants’ pretrial release. Their activities create risks of corruption and discrimination in the bail process, but they may help the system by reminding defendants about court dates and by tracking down defendants who disappear.

Although judges bear the primary responsibility for setting bail, prosecutors are especially influential in recommending amounts and conditions for pretrial release.

Initiatives to reform the bail process include release on own recognizance (ROR), police-issued citations, and bail guidelines.

Analyze the context of pretrial detention

Pretrial detainees, despite the presumption of innocence, are held in difficult conditions in jails containing mixed populations of convicted offenders, detainees, and troubled people. The shock of being jailed creates risks of suicide and depression.