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Chapter 4

The Rule of Law

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Chapter Objectives, 1

After completing this chapter, you should be able to do:

Distinguish between criminal law and civil law

Distinguish between substantive law and procedural law

List five features of “good” criminal laws

Explain why criminal law is a political phenomenon

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Chapter Objectives, 2

Summarize the origins of American criminal law

Describe the procedural rights in the Fourth Amendment

Describe the procedural rights in the Fifth Amendment

Describe the procedural rights in the Sixth Amendment

Describe the procedural rights in the Eighth Amendment

Explain why procedural rights are important to those accused of crimes

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Two Types of Law

There are two types of law practiced in the United States

Criminal law

Civil law

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Criminal Law and Civil Law

A crime is a violation of the criminal law or the penal code

Tort: A violation of the civil law

Civil law includes:

The law of contracts and property

Subjects such as administrative law and the regulation of public utilities

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Substantive Law, Procedural Law, and Due Process of Law, 1

Substantive law: Body of law that defines criminal offenses and their penalties

Example - Laws that prohibit and penalize murder, rape, robbery, and other crimes

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Substantive Law, Procedural Law, and Due Process of Law, 2

Procedural law: The body of law that governs the ways in which the substantive laws are to be administered

Sometimes called adjective or remedial law

Concerned with due process of law or the rights of people suspected of or charged with crimes

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Ideal Characteristics of the Criminal Law

Legal scholars identify five features that all “good” criminal laws ideally ought to possess

Jump to long description

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Table 4.1: Five General Types of Penal Sanctions

Type	Purpose	Focus
Punishment	Prevent undesired conduct. Provide retribution (“an eye for an eye”)	Offending conduct
Restitution	Make the victim “whole again” by having the offender directly or indirectly pay the victim	Crime victim
Compensation	Make the victim “whole again” by having the state pay for damages to the victim	Crime victim
Regulation	Control future conduct toward the best interests of the community (e.g., making it a crime or traffic violation to operate a motor vehicle with a blood alcohol content higher than a specified level)	The entire community
Treatment or rehabilitation	Change the offender’s behavior and, perhaps, personality	Criminal offender

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Criminal Law as a Political Phenomenon

Criminal law is a political phenomenon that is created by human beings to regulate the behavior of other human beings

Nothing is criminal or delinquent in and of itself; only the response of the state makes it so

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Origins of Laws, 1

Written laws are only about 5,000 years old

Prior to that, societies were governed by rigid customs and crimes of violence were resolved through bloody personal revenge

The first known written laws were found on clay tablets among the ruins of Ur, one of the city-states of Sumeria

The laws attempted to free poor people from abuse by the rich and everybody from abuse by the priests

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Origins of Laws, 2

Around 2200 B.C., the Babylonian king Hammurabi created the first great code of laws, which had 285 laws

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England’s Contribution to American Criminal Law, 1

After the Norman conquest of England in 1066, William I proclaimed himself king and declared that all land and all land-based rights, including the administration of justice, were now vested in the king

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England’s Contribution to American Criminal Law, 2

The eyre was created early in the twelfth century

The eyre was a group of traveling judges who represented the king and examined activities of the local courts

The eyre heard common pleas, which consisted primarily of disputes between citizens

The common-plea decisions formed the body of legal precedent that became known as the common law

The common law precedents became the basis of statutory law in England as well as in the United States

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England’s Contribution to American Criminal Law, 3

In 1215, powerful nobles forced King John to sign the Magna Carta (the Great Charter), which subjected the king to the nation’s laws

The Magna Carta not only created the idea of the rule of law but also formed the basis of what would later be called due process of law

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Creating Criminal Laws in the United States

Criminal laws in the United States

Created by legislative bodies

Affected by common law or case law interpretation and by administrative or regulatory agency decisions

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Constitutions and Legislative Bodies, 1

The U.S. Constitution created Congress and gave it lawmaking power

The Bill of Rights describe procedural laws that dictate how substantive laws are to be administered

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Constitutions and Legislative Bodies, 2

Congress enacts federal statutes

State legislatures enact state statutes

Municipalities, such as city councils, enact laws generally called ordinances

Statutes and ordinances apply only in the particular jurisdiction in which they were enacted

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Common Law, 1

Common law, also called case law, is a by-product of decisions made by trial and appellate court judges, who produce case law whenever they render a decision in a particular case; the decision becomes a precedent

Precedent: A decision that forms a potential basis for deciding the outcomes of similar cases in the future

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Common Law, 2

Because of the principle of stare decisis, much of the time that criminal lawyers spend preparing for a case is devoted to finding legal precedents for their arguments

Stare decisis is the principle of using precedents to guide future decisions in court cases

Latin for “to stand by and adhere to decisions and not disturb what is settled"

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Administrative or Regulatory Agency Decisions

Administrative or regulatory agencies are created by lawmaking bodies

They create rules and regulations that have the force of law

Violations are generally handled through civil law proceedings

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The Interdependency among Sources of Legal Authority

Although federal and state criminal statutes are essentially independent of one another, provisions of the Constitution always take precedence over state statutes

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Procedural Law: Rights of the Accused

Most of the procedural rights given to criminal suspects or defendants in the United States are found in the Bill of Rights

Others are found in:

Federal and state statutes

State constitutions

Federal or state rules of criminal procedure

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The Bill of Rights

The ink was barely dry on the new Constitution before critics attacked it for not protecting the rights of the people

The first Congress quickly proposed a set of 12 amendments

10 of the amendments were ratified by the states and became known as the Bill of Rights

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Table 4.2: The 12 Provisions in the Bill of Rights Applicable to the Criminal Justice Process, 1

Procedural Right	Amendment
1. Freedom from unreasonable searches and seizures	Fourth
2. Grand jury indictment in felony cases*	Fifth
3. No double jeopardy	Fifth
4. No compelled self-incrimination	Fifth
5. Speedy and public trial	Sixth
6. Impartial jury of the state and district where crime occurred	Sixth

Note: *This right has not been incorporated by and made applicable to the states

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Table 4.2: The 12 Provisions in the Bill of Rights Applicable to the Criminal Justice Process, 2

Procedural Right	Amendment
7. Notice of nature and cause of accusation	Sixth
8. Confront opposing witnesses	Sixth
9. Compulsory process for obtaining favorable witnesses	Sixth
10. Counsel	Sixth
11. No excessive bail and fines*	Eighth
12. No cruel and unusual punishment	Eighth

Note: *This right has not been incorporated by and made applicable to the states

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The Fourteenth Amendment and the Selective Incorporation of the Bill of Rights, 1

The Fourteenth Amendment was ratified in 1868

It reads, in part, as follows:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

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The Fourteenth Amendment and the Selective Incorporation of the Bill of Rights, 2

Before the passage of the Fourteenth Amendment, the Bill of Rights applied only to people charged with federal crimes

In the early 1960s, the Supreme Court, headed by Chief Justice Earl Warren, began making the procedural safeguards of the Bill of Rights applicable to the states

Chief justices of the 1970s have gradually reversed or altered many of those decisions

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The Fourth Amendment, 1

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized

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The Fourth Amendment, 2

The Fourth Amendment protects individual privacy against certain types of governmental interference

It does not provide a general constitutional “right to privacy ”

The procedural rights in the Fourth Amendment concern the legality of searches and seizures and the question of what to do with evidence that is illegally obtained

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Searches and Seizures

Searches: Explorations or inspections, by law enforcement officers, of homes, premises, vehicles, or persons, for the purpose of discovering evidence of crimes or persons who are accused of crimes

Seizures: The taking of persons or property into custody in response to violations of the criminal law

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The Fourth Amendment, 3

According to the Supreme Court, the Fourth Amendment allows two kinds of searches and seizures:

Those made with a warrant

Those made without a warrant

Warrant: A written order from a court directing law enforcement officers to conduct a search or to arrest a person

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Arrest

The seizure of a person or the taking of a person into custody

Can be either actual physical custody, as when a suspect is handcuffed by a police officer, or constructive custody, as when a person peacefully submits to a police officer’s control

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The Fourth Amendment, 4

Searches and seizures conducted with a legal warrant are generally considered reasonable under the Fourth Amendment

What is “reasonable” in a warrantless search did not become clear until the 1960s

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Searches and Seizures with a Warrant, 1

Probable cause for a search warrant requires substantial and trustworthy evidence to support two conclusions:

That the specific objects to be searched for are connected with criminal activity

That the objects will be found in the place to be searched

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Searches and Seizures with a Warrant, 2

The Fourth Amendment requires that a search warrant contain a particular description of the place to be searched and the person or things to be seized

Search warrants are required to be executed in a reasonable amount of time and, in some jurisdictions, during certain hours

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Searches and Seizures with a Warrant, 3

Generally, before law enforcement officers may enter a place to conduct a search, they must first announce that:

They are law enforcement officers,

They possess a warrant

They are there to execute the warrant

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Searches and Seizures with a Warrant, 4

If in the course of conducting a legal search, officers discover contraband or evidence of a crime not covered by the warrant, they may seize it without getting a new warrant

Contraband: An illegal substance or object

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Arrests with a Warrant

Generally, an arrest warrant is legally required when law enforcement officers want to enter private premises to make an arrest

An arrest warrant is issued if substantial and trustworthy evidence supports two conclusions

A violation of the law has been committed

The person to be arrested committed the violation

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Searches and Seizures without a Warrant

The Supreme Court has allowed warrantless searches in some circumstances

Incident to an arrest

Police may search the area within the suspect’s immediate control, including an automobile, and may seize contraband or evidence in plain view

During exigent situations

If a suspect consents to a search

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Arrests without a Warrant

Officers may not enter a private home to make a warrantless arrest unless the offense is serious and there are exigent circumstances, such as:

Likely destruction of evidence

Hot pursuit of a felony suspect

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Standards of Proof, 1

Probable cause is one among a number of standards of proof for various criminal justice activities

The amount of proof necessary depends on the activity in question

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Standards of Proof, 2

Mere suspicion is the standard of proof with the least certainty

A “gut feeling”

With only mere suspicion, a law enforcement officer cannot legally even stop a suspect

Reasonable suspicion has a greater degree of certainty

With reasonable suspicion, a law enforcement officer is legally permitted to stop and frisk a suspect

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Reasonable Suspicion and Frisking

Reasonable suspicion: A standard of proof that is more than a gut feeling

It includes the ability to articulate reasons for the suspicion

Frisking: Conducting a search for weapons by patting the outside of a suspect’s clothing, feeling for hard objects that might be weapons

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Standards of Proof, 3

Probable cause: The amount of proof necessary for a reasonably intelligent person to believe that a crime has been committed or that items connected with criminal activity can be found in a particular place

Law enforcement officers must have some tangible evidence that a crime has been committed

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Standards of Proof, 4

The line between probable cause and reasonable suspicion, or even mere suspicion, is a fine one and a matter of interpretation

Preponderance of evidence: Evidence that outweighs the opposing evidence, or sufficient evidence to overcome doubt or speculation

This is the standard of proof required in a civil lawsuit

It is used in determining whether the inevitable-discovery rule applies

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Standards of Proof, 5

It is also used to show that the right to counsel has been waived knowingly and intelligently

Clear and convincing evidence: Evidence indicating that the thing to be proved is highly probable or reasonably certain

This standard of proof is required in some civil cases

It is used in federal courts as the standard of proof necessary for a defendant to make a successful claim of insanity

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Standards of Proof, 6

Beyond a reasonable doubt: The amount of doubt about a defendant’s guilt that a reasonable person might have after carefully examining all the evidence

Necessary to find a defendant guilty in a criminal trial

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Standards of Proof, 7

Proof evident, presumption great: Burden is on the prosecution to show by testimony and/or real evidence that there is no question of the defendant’s guilt

The standard of proof required for a judicial officer to deny bail in cases involving capital felonies

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Figure 4.3: Standards of Proof and Criminal Justice Activities

Jump to long description

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The Exclusionary Rule, 1

Created by the Supreme Court in 1914 and extended to state courts in 1961

Illegally seized evidence must be excluded from trials in federal courts and state courts

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The Exclusionary Rule, 2

The exclusionary rule originally had three purposes:

To protect individual rights from police misconduct

To prevent police misconduct

To maintain judicial integrity

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The Exclusionary Rule, 3

In the late 1970s, as Americans became alarmed about what they perceived as a substantial number of criminals escaping punishment because of legal technicalities, the exclusionary rule was weakened

The good faith exception states that as long as the police act in good faith when they request a warrant, the evidence they collect may be used in court, even if the warrant is illegal or defective

The inevitable-discovery exception states that evidence obtained illegally can be used at trial if the information inevitably would have been discovered by lawful means

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The USA PATRIOT Act

The USA PATRIOT Act gives broad new powers to the FBI, CIA, and other United States foreign intelligence agencies to spy on American citizens

The law eliminates checks and balances on those powers such as judicial oversight, public accountability, and the ability to challenge government searches in court

Under the act, the FBI no longer needs probable cause to conduct wiretaps of criminal suspects when “a significant purpose” is gathering intelligence

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The Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation

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Right to Grand Jury Indictment and Protection against Double Jeopardy

The right to a grand jury indictment in felony cases is one of the two Bill of Rights guarantees that has not yet been extended to the states

The protection against double jeopardy has been extended to the states

Double jeopardy: The trying of a defendant a second time for the same offense when jeopardy attaches in the first trial and a mistrial was not declared

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Protection against Compelled Self-Incrimination, 1

Arguably, the most important procedural safeguard in the Fifth Amendment is the protection against compelled self-incrimination

The protection is based on the belief that confessions made involuntarily may not be truthful

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Self-Incrimination and Confessions

Self-incrimination: Being a witness against oneself

If forced, it is a violation of the Fifth Amendment

Confession: An admission by a person accused of a crime that he or she committed the offense charged

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Protection against Compelled Self-Incrimination, 2

The protection against compelled self-incrimination also expresses an intolerance for certain methods used to extract confessions

This is based on the Supreme Court’s doctrine of fundamental fairness

Doctrine of fundamental fairness: Rule that makes confessions inadmissible in criminal trials if they were obtained by means of either psychological manipulation or “third-degree” methods

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Protection against Compelled Self-Incrimination, 3

In Miranda v. Arizona (1966), the Court broadened the protection against compelled self-incrimination to cover nearly all custodial police interrogations

Suspects must be notified of their specific rights, or their confessions will not be admissible

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Protection against Compelled Self-Incrimination, 4

The Miranda ruling guaranteed that a suspect in custody must be warned prior to questioning that:

He has the right to remain silent

Anything he says can be used against him in a court of law

He has the right to the presence of an attorney

If he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires

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Protection against Compelled Self-Incrimination, 5

The Fifth Amendment further applies to trial procedures

A defendant does not have to answer any questions put to him by the prosecution during a trial

A defendant does not have to take the witness stand in a trial

The prosecution is forbidden from commenting on the defendant’s silence or refusal to take the stand

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The Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence

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Right to a Speedy and Public Trial, 1

In determining what constitutes a speedy trial, the Supreme Court has created a balancing test that weighs both the defendant’s and the prosecution’s behavior

The length of delay depends partly on the nature of the charge; a longer delay may be tolerated in more complex cases

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Right to a Speedy and Public Trial, 2

A public trial must be open to the public but not necessarily to all who want to attend

A trial may be closed to the public if the defendant’s right to a public trial is outweighed by “a compelling state interest ”

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Right to Impartial Jury of the State and District Wherein the Crime Shall Have Been Committed, 1

The right to an impartial jury promises:

That the jury will be unbiased

That there will be a jury trial

The Supreme Court has interpreted this right to mean that defendants charged with felonies or with misdemeanors punishable by more than six months’ imprisonment are entitled to a jury trial

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Right to Impartial Jury of the State and District Wherein the Crime Shall Have Been Committed, 2

The Sixth Amendment guarantees the trial’s venue

Venue is the place of trial; it must be geographically appropriate

The defense attorney can ask for a change of venue if he believes that the trial could be affected by adverse publicity

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Right to Be Informed of the Nature and Cause of the Accusation

The right to notice and a hearing is the very core of what is meant by due process

This right prevents the practice, common in some countries, of holding suspects indefinitely without telling them why they are being held

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Right to Confront Opposing Witnesses

Defendants have the right to:

Be present during their trials

Cross-examine witnesses against them

Right can be forfeited by a defendant’s disruptive behavior

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Right to Compulsory Process for Obtaining Favorable Witnesses

Defendants have the right to use the subpoena power of the court to compel the testimony of any witnesses who may have information useful to the defense

Subpoena: A written order issued by a court that requires a person to appear at a certain time and place to give testimony

It can also require that documents and objects be made available for examination by the court

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Right to Counsel, 1

The right to hire a privately retained lawyer did not exist in state courts until 1954

It was not until 1938, in the case of Johnson v. Zerbst, that the Supreme Court first extended the Sixth Amendment right to court-appointed counsel to indigent defendants facing felony charges in federal trials

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Right to Counsel, 2

The Sixth Amendment also guarantees the right to the “effective assistance of counsel”

Two facts must be proved to show counsel was ineffective

That counsel’s performance was “deficient”

That the deficiencies in the attorney’s performance were prejudicial to the defense

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Right to Counsel, 3

The right to counsel can be waived, but only if the waiver is made knowingly, intelligently, and voluntarily

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The Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

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Protection against Excessive Bail and Fines, 1

The protection against excessive bail and fines is the second Bill of Rights guarantee that has not been extended to the states

The Eighth Amendment does not require that bail be granted to all suspects or defendants

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Protection against Excessive Bail and Fines, 2

What constitutes excessive bail is determined by:

The nature and circumstances of the offense

The weight of evidence against the suspect or defendant

The character of the suspect or defendant

The ability of the suspect or defendant to pay bail

The seriousness of the crime determines whether a fine is excessive

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Protection against Cruel and Unusual Punishments, 1

For about 120 years after the adoption of the Bill of Rights, the Supreme Court interpreted “cruel and unusual punishments” based on the practices that were authorized when the amendment was adopted (1791)

Punishments that were prohibited involved torture, unnecessary cruelty, or lingering death

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Protection against Cruel and Unusual Punishments, 2

The definition of cruel and unusual punishment was changed in 1910

The Supreme Court determined that:

The meaning of the Eighth Amendment is not restricted to the intent of the Framers

The Eighth Amendment bars punishments that are excessive

What is excessive is not fixed in time but changes with evolving social conditions

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Protecting the Accused from Miscarriages of Justice, 1

The legal system of the United States is unique in the world in the number of procedural rights that it provides people suspected or accused of crimes

However, people continue to be victims of miscarriages of justice

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Protecting the Accused from Miscarriages of Justice, 2

A study of wrongful convictions determined that 0.5% of all felony convictions are in error

That means that in 2015, based on 11 million arrests and 5.5 million convictions, approximately 27,500 people were probably wrongfully convicted

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Protecting the Accused from Miscarriages of Justice, 3

The most important factors contributing to wrongful convictions are:

Eyewitness misidentification

Police errors

Prosecutorial errors

Guilty pleas made by innocent defendants who are offered plea bargains or are mentally incompetent

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Protecting the Accused from Miscarriages of Justice, 4

Despite wrongful convictions, many people still resent the provision of procedural safeguards to criminal suspects, particularly the exclusionary rule

A study by the National Institute of Justice found that:

Fewer than 0.5% of felony cases reaching the courts were dismissed because of the exclusionary rule

Lesser than 1% of cases were dropped before trial

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Appendix

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Ideal Characteristics of the Criminal Law - Appendix, 1

There are five square-shaped boxes. Each box has an addition symbol next to it. There is content below each box. Starting from the left, the first box is labeled politicality. The content below the first box reads violations of rules made by the state. The second box is labeled specificity. The content below the second box reads providing strict definitions of specific acts. The third box is labeled regularity. The content below the third box reads applied to all persons regardless of social status. The fourth box is labeled uniformity.

Jump to the image

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Ideal Characteristics of the Criminal Law - Appendix, 2

The content below the fourth box reads enforced against any violators regardless of social status. The fifth box is labeled penal sanction. The content below the fifth box reads and subject to punishment or threatened punishment by the state.

Jump to the image

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Figure 4.3: Standards of Proof and Criminal Justice Activities - Appendix, 1

Starting from the left of the continuum, the first proof is mere suspicion, and the criminal justice activity is none. An arrow points from the criminal justice activity to the standard of proof.

The second proof is reasonable suspicion, and the criminal justice activity is stop and frisk. A double-ended arrow has been positioned between the standard of proof and the criminal justice activity.

The third proof is probable cause, and the criminal justice activity is search or arrest. A double-ended arrow has been positioned between the standard of proof and the criminal justice activity.

Jump to the image

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Figure 4.3: Standards of Proof and Criminal Justice Activities - Appendix, 2

The fourth proof is preponderance of evidence, and the criminal justice activity is determine good faith exception to exclusionary rule; show waiver of right to counsel knowingly and intelligently. A double-ended arrow has been positioned between the standard of proof and the criminal justice activity.

The fifth proof is clear and convincing evidence, and the criminal justice activity is make successful claim of insanity in federal courts. A double-ended arrow has been positioned between the standard of proof and the criminal justice activity.

Jump to the image

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Figure 4.3: Standards of Proof and Criminal Justice Activities - Appendix, 3

The sixth proof is beyond a reasonable doubt, and the criminal justice activity is determine guilt in a criminal trial. A double-ended arrow has been positioned between the standard of proof and the criminal justice activity.

The seventh proof is proof evident, presumption great, and the criminal justice activity is deny bail in capital felonies. A double-ended arrow has been positioned between the standard of proof and the criminal justice activity.

Jump to the image

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Figure 4.3: Standards of Proof and Criminal Justice Activities - Appendix, 4

The eighth proof is absolute certainty, and the criminal justice activity is none. An arrow points from the criminal justice activity to the standard of proof.

Jump to the image

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Chapter One
Crime and Justice in the United States

After completing this chapter, you should

be able to:

Describe how the type of crime routinely presented by the media compares with crime routinely committed.

Identify institutions of social control and explain what makes criminal justice an institution of social control.

Summarize how the criminal justice system responds to crime.

Continued

Explain why criminal justice in the United States is sometimes considered a nonsystem.

Point out the major differences between Parker’s crime control and due process models.

Describe the costs of criminal justice in the United States and compare those costs among federal, state, and local governments.

Explain how myths about crime and criminal justice affect the criminal justice system.

Crime in the United States

Every day we are flooded with reports of crime in the news media. Crime is seen in television docudramas, fictional crime shows and an entire network is dedicated to bringing us the latest breaking news concerning crime and punishment.

It’s no wonder crime and punishment is a concern of the American public.

However sensational the crime, they do not provide a very accurate picture of the typical crime victim nor do they accurately depict the kinds of crime to which police respond on a daily basis too.

Crime in the United States

A more accurate picture of crimes typically committed can be seen by examining Table 1.1 on the following slide.

Keep in mind that the police rarely respond to the sensational crimes reported by the media. Often there is no crime at all.

The role and responsibilities of the police will be further explored in chapter 6.

Crime in the United States

Insert Table 1.1 on this slide.

Criminal Justice: An Institution of Social Control

Criminal justice is an institution of social control, as are:

The family

Schools

Organized religion

The media

The law

Criminal Justice: An Institution of Social Control

Defining an institution of social control:

An organization that persuades people,

through subtle and not-so-subtle means to

abide by the dominant values of society.

Subtle means of persuasion include gossip and peer pressure, whereas

expulsion and incarceration are examples of not-so-subtle means.

Criminal Justice: An Institution of Social Control

As an institution of social control, criminal justice differs from the others in two important ways:

It is concerned only with behavior that is actually criminal.

It is society’s “last line of defense” against people who refuse to abide by dominant social values and commit crimes.

Criminal Justice: The System

Criminal justice in the United States is

administered by a loose confederation of

more than 50,000 agencies of federal, state,

and local governments. Together they are

commonly referred to as the “criminal justice

system.”

The police

The courts

Corrections

= The Criminal Justice System

Criminal Justice: The System

The criminal justice system operates

differently in some jurisdictions, but there

are also similarities. A jurisdiction is:

A politically defined geographical area. For example, a city, a county, a state, or a nation.

Criminal Justice: The System: An Overview

The following slides provide a brief overview of a typical criminal justice response to criminal behavior.

Figure 1.1, the next slide, is a graphic representation of the process.

A more detailed examination of the criminal justice response to crime and delinquency will be provided later.

Overview of the Criminal Justice System

Insert Figure 1.1 on this slide.

The Criminal Justice System: The Police

The criminal justice response to crime begins when a crime is reported to the police, or when the police discover a crime has been committed.

Police investigate the crime.
If the investigation is successful, police arrest a suspect.
After the arrest, the suspect is booked at the police station.

Arrest and Booking

Arrest

The seizing and detaining of a person by

lawful authority.

Booked

The administrative recording of an arrest.

Typically, The suspect’s name, the charge,

and perhaps the suspect’s fingerprints or

photograph are entered in the police blotter.

Courts

After a suspect has been arrested and booked, a prosecutor reviews the facts of the case and the available evidence.

The prosecutor decides whether to charge the suspect with a crime or crimes.

If no charges are filed, the suspect must be released.

Charging Documents

There are three kinds of charging documents:

A complaint – a document specifying

that an offense has been committed.

An information – a document that

outlines the formal charge against a

suspect.

A grand jury indictment – a written

accusation by a grand jury that a

person has committed a crime.

Misdemeanor and Ordinance Violation

If the offense is a misdemeanor or an ordinance violation, then the prosecutor may prepare a complaint.

A less serious crime generally punishable by a

fine of by incarceration in jail for not more than

one year.

Usually the violation of a law of a city or town.

Misdemeanor

Ordinance violation

Felony

A serious offense punishable by death or by confinement in prison for more than one year.

Arrest Warrant

On rare occasions, police may obtain an arrest warrant from a lower-court judge before making an arrest.

A written order directing law enforcement officers

to arrest a person.

Arrest warrant

Pretrial Stages

After the charges have been filed, the suspect, who is now the defendant, is brought before a lower-court judge for an initial appearance and given formal notice of the charges against them and their constitutional rights (for example, the right to counsel).

Defendant
Initial Appearance

Defendant

A person against whom a legal action is brought, a warrant is issued, or an indictment is found.

Initial Appearance

A pretrial stage in which a defendant is brought before a lower court to be given notice of the charge(s) and advised of their constitutional rights.

Pretrial Stages

In the case of a misdemeanor or an ordinance violation, a summary trial may be held. A summary trial is:

An immediate trial without a jury.

In the case of a felony, a hearing is held to determine whether the defendant should be released or whether there is probable cause to hold the defendant for a preliminary hearing. Probable cause is:

A standard of proof that requires evidence sufficient to make

a reasonable person believe that, more likely than not, the

proposed action is justified.

Pretrial Stages

If the suspect is to be held for a preliminary hearing, bail may be set by the judge.

Usually a monetary guarantee deposited with

the court to ensure that suspects or defendants

will appear at a later stage in the criminal justice

process.

Bail

Pretrial Stages

If the judge at a preliminary hearing finds probable cause, the defendant is bound over for possible indictment or arraignment. In a felony case, a preliminary hearing is:

A pretrial stage at which a judge

determines whether there is probable cause.

Pretrial Stages

A primary purpose of the grand jury is to determine whether there is probable cause to believe that the accused committed the crime with which the prosecutor has charged them with. A grand jury is:

A group of citizens who meet in closed sessions for

a specified period to investigate charges coming

from preliminary hearings and to fulfill

other responsibilities.

Pretrial Stages

Once an indictment or information is filed with the trial court, the defendant is scheduled for arraignment.

About 90 percent of criminal defendants plead guilty to the charges against them, in an arrangement called plea bargaining.

See Figure 1.2

Arraignment
Plea Bargaining

The arraignment is a pretrial stage to hear

the information or indictment and to allow a

plea.

Plea bargaining is the practice whereby a

specific sentence is imposed if the accused

pleads guilty to an agreed-upon charge or

charges instead of going to trial.

Trial

If a defendant pleads not guilty or not guilty by reason of insanity, a trial date is set.

5 percent of criminal cases go to trial.

5 percent of criminal cases are decided in a bench trial.

See Figure 1.2

Bench Trial

A trial before a judge, without a jury.

Criminal Case Dispositions

Insert Figure 1.2 on this slide.

Trial

If the defendant is

found guilty

as charged

The judge (and

sometimes the jury)

begins to consider

a sentence.

If the defendant

is found

not guilty

The defendant

is released.

Corrections

Currently, five types of punishment are used

in the United States:

Fines

Probation

Intermediate punishments

Imprisonment

Death

As long as a judge imposes one or a combination of the five punishments, the sentence length and type are within statutory limits, the judge is free to set any sentence.

Corrections

Defendants can appeal their convictions either on legal or constitutional grounds.

Legal Grounds

Defects in jury

selection

Improper admission of evidence at trial

Mistaken interpretations of law

Constitutional Grounds

Illegal search and seizure

Improper questioning by police

Incompetent assistance from counsel

Corrections

A defendant sentenced to prison may be

eligible for parole after serving a portion of

his sentence. Parole is:

The conditional release of prisoners before they

have served their full sentences.

Criminal Justice: The Nonsystem

Police, courts, and corrections are commonly referred to as the criminal justice system.

However, the depiction of criminal justice or; more specifically, of the interrelationships and inner workings of its various components-as a “system” may be inappropriate and misleading for at least two reasons.

continued on next slide

Criminal Justice: The Nonsystem

First, there is no single “criminal justice system” in the United States. Rather a loose confederation of many independent criminal justice agencies at all levels of government.

This loose confederation is spread throughout the country with different, sometimes, overlapping jurisdictions.

The only requirement they all share is that they follow procedures permitted by the U.S. Constitution.

continued on next slide

Criminal Justice: The Nonsystem

Second, if a system is thought of as a smoothly operating set of arrangements and institutions directed toward the achievement of common goals, one is hard-pressed to call the operation of criminal justice in the United States a system.

Instead, because there is considerable conflict and confusion between different agencies of criminal justice, a more accurate representation may be that of a nonsystem.

Two Models of Criminal Justice

In his influential book entitled The Limits of the Criminal Sanction, legal scholar Hebert Parker describes the criminal justice process in the United States as the outcome of competition between two value systems.

Figure 1.3 depicts this continuum.

Two Models of Criminal Justice

Insert Figure 1.3 on this slide.

The Crime Control Model

In the crime control model, the control of criminal behavior is by far the most important function of criminal justice.

The primary focus of this model is on efficiency in the operation of the criminal justice process.

The key to the operation of the crime control model is “a presumption of guilt.” In other words, advocates of this model assume that if the police have expended the time and effort to arrest a suspect and the prosecutor has formally charged the suspect with a crime, then the suspect must be guilty.

The Due Process Model

The due process model is based on the doctrine of legal guilt and the presumption of innocence. According to the doctrine of legal guilt, people are not to be held guilty of crimes merely on a showing based on reliable evidence, that in all probability they did in fact do what they are accused of doing. In other words, it is not enough that people are factually guilty in the due process model; they must also be legally guilty.

Fundamentally, the due process model defends the idea of personal freedom and its protection.

Crime Control Versus Due Process

Since the mid-1970s the crime control model has dominated the practice of criminal and juvenile justice.

But, evidence of the due process model remains evident in the process of justice in the United States.

How long will this present trend continue is anybody’s guess.

The Costs of Criminal Justice

Each year in the United States an enormous amount of money is spent on criminal justice.
In 1999, local, state, and federal governments spent a total of $146 billion in direct expenditures for the civil and criminal justice systems.
That represents approximately $525 for every resident of the United Sates.
See Table 1.2 for additional information.

The Costs of Criminal Justice

Insert Table 1.2 on this slide.

The Costs of Criminal Justice

State and local governments pay most of the cost of criminal justice. Generally speaking:

In 1999, local governments spent 70 percent of the total spent on police protection

In 1999, state governments spent nearly 63 percent of the total spent on corrections.

The Costs of Criminal Justice

About 4 cents out of every tax dollar is spent on crime control.

Roughly two-thirds of the American public thinks the government should spend more. In a 2000 public opinion poll for example, 59 percent of people surveyed believed that too little was being spent to halt the rising crime rate.

Myths About Crime and
Criminal Justice

Much of the American public’s understanding of crime and criminal justice is wrong; it is based on myths.

Myths are beliefs based on emotion rather than analysis.

Many ideas about crime or the justice system can be considered myths because they can be contradicted with facts.

End Chapter One

Crime and Justice in the United States

Chapter Two
Crime and its Consequences

After completing this chapter, you should

be able to:

Distinguish between a social definition and a legal definition of crime, and summarize the problems with each.
List the technical and ideal elements of a crime.
Identify some of the legal defenses or legal excuses for criminal responsibility.
Explain why crime and delinquency statistics are unreliable.

Continued

Identify the two major sources of crime statistics in the United States.

Describe the principal finding of the national crime victimization surveys.

Summarize the general finding of self-report crime surveys.

Identify the costs of crime.

Describe the extent of fear of crime in the United States and the characteristics of people most likely to fear crime.

List the characteristics of people who are the most likely and the least likely to be victims of crime.

Definitions of Crime

An appropriate definition of crime remains a critical unresolved issue in criminal justice.

Many dangerous and harmful behaviors are not crimes.
Many less dangerous or harmful behaviors are crimes.

Social Definitions

A typical social definition of crime is behavior

that violates the norms of society. A norm is

any standard or rule regarding what human

beings should or should not think, say, or do

under given circumstances. Unfortunately:

Norms vary from group to group.
Norms are subject to interpretation.
Norms change from time to time and place to place.

A Legal Definition

A legal definition of crime is used in

criminal justice in the United States.

The major advantage of a legal definition of crime, at least on the surface, is that it is narrower and less ambiguous than a social definition of crime.

Legal Definition of Crime

According to a typical legal definition, crime is an

intentional violation of the criminal law or penal code,

committed without defense or excuse and penalized

by the state.

A Legal Definition

Some behaviors prohibited by criminal law

should not be. Overcriminalization arises in

the so-called victimless crimes:

Gambling
Prostitution involving consenting adults
Homosexual acts between consenting adults
Use of some illegal drugs, such as marijuana

A Legal Definition

For some behaviors prohibited by criminal

law, the law is not routinely enforced.

Nonenforcement is common for:

White-collar crimes
Government crimes
Nonenforcement causes disrespect for the law.

A Legal Definition

Behaviors that some people think should be

prohibited by criminal law are not. This is

undercriminalization. Undercriminalization

may happen when:

Very harmful and destructive actions or inactions

that are not criminal should be. An example is a

corporation’s intentional production of potentially

hazardous product to maximize profits.

Elements of Crime

A legal definition of crime is the basis of

criminal justice in the United States.

Technically and ideally, a crime has not been

committed unless the following elements are

present:

Harm
Legality
Actus reus
Mens rea

Causation
Concurrence
Punishment

Equals the

legal definition

of a crime.