2 paragraphs discussion

Hello and welcome to chapters 7 and 8 of the collapse of American criminal justice.

1

Lets begin with Chapter 7…Constitutional Law’s Rise: Three Roads Not Taken

2

Chapter 7 will be setting the stage for Chapter 7 will set the stage for Chapter 8, Earl Warren’s Errors so please do not just view this lecture but be sure to do the readings.

3

Lets discuss the rise of the regulatory state (read slide)…But before we did too deep we will need to briefly return to the Gilded Age…

4

It was the character and failings of the Gilded Age which provide the impetus for the regulatory state…So let us revisit what led to the end of the Gilded Age and what its impact was

5

As we discussed in our previous lecture Prohibition played a big role in ending the policing style associated with the Gilded Era…It highlighted and exacerbated existing corruption and also shined a light on the incompetence of local police in the face of organized criminals and politicians in their pay.

This led to USAG George Wickersham to set some recommendations aimed at reducing corruption. This included increased education and testing and of import to today’s conversation on policing, civil service protections. For those of you following police shootings you may often hear about the protections police enjoy via civil service and the debate about getting rid of those protections. What is not mentioned is that these protections were actually put in place to reduce corruption associated with the at will employment model of Gilded Age policing. At will employment meant police could be fired without cause and gave politicians immense power. It is interesting that today out of concern over misconduct by police we are debating returning to a form of policing which, in an earlier era, was abandoned because it encouraged misconduct…Why bother learning from history when it is so much fun to make the same mistakes over and over…

And back to the Wickersham Commission ….the commission stated that Prohibition was unenforceable….it some ways an impetus for getting rid of Prohibition was to reduce opportunities for police corruption and help set the stage for a more professional police

6

force.

6

Coming out both the Wickershame Commission and also just from the experiences of the Gilded Age their came to be a recognition that policing needed to be professionalized. They should not be politicized, they should be well-trained and disciplined, laws should be equally enforced and police should utilize new technology to increase efficiency.

7

These reforms led to the removal of the most obvious political influences. It also resulted in improved policies and laws associated with policing, improved hiring standards, the civil service protections we mentioned earlier, improved training and the creation of police academies, improved wages and the renewed use of research and science in policing.

8

Read slide…

9

Thus emerged the Professional Crime Fighter…with an emphasis on efficiency and control. Reduce waste, reduced discretion in the form of more impartial enforcement. It also called for increases para-militarization. You saw officers under the more direct control of sergeants and sergeants reporting to Lieutenants in a more militaristic structure..

They also tried to reduce citizen responsibility for crime reduction with police taking a more direct role. It also called for a rapid response to crime, this increased as police moved from call boxes to radios. Finally, effectiveness was now defined by crime rates. We will see eventually see this grow into CompStat, Search and Frisk and other tactics as police attempt to reduce crime rates to the exclusion of other considerations.

10

The courts now began to attempt to reform police through case law. US Supreme Court interpretations forced police to become more professional and also more crafty. These re- interpretations (the Constitution had not changed but how it was interpreted changed) resulted in a much more formalized process for questioning suspects, how to legally search for evidence, the procedures associated with arrests, such as Miranda Rights which we will discuss later and this culminated in shifting standards on how police could use force. Now what is meant by policing becoming more “crafty.” As the interpretation of the constitution shifted from substance to procedure and police corruption reduced it was not possible to simply continue to police as was common in the Gilded Age…police needed to understand the laws and the procedures created to constrain them and, because corruption was no longer acceptable, craft legalist mechanisms to get around the restrictions in a way that honored the letter of the law if not the spirit….an example of this I like to use is a pre-text stop…a pre-text stop is when a person is stopped for one offense, generally a low-level offense such as speeding, so that the officer can investigate another, more serious offense, say drug dealing or possession of an illegal weapon. The officer may not have sufficient cause to stop the person for the more serious crime so instead uses the low offense to create an opening to investigate the more serious offense. The upside to this is when done well it can interrupt serous violent crimes, for instance it is a tactic frequnelty used when gang violence escalates where officers stop gang members…this discourages the gang members from carrying guns which reduces retaliatory shootings…unfortunately these

11

stops, when conducted on innocent or uninvolved citizens, and especially minority citizens, feel very unjust and damage police legitimacy. It is these kinds of tactics that would encompass crafty policing.

11

So just a brief review of your 4th, 5ht, 6th and 8th amendment rights…Read Slide…at this time the court began refining these rights

12

13

One of the earliest cases was Weeks v US which lead to the exclusionary rule (read slide)…initially this did not apply to state cases, only Federal

As we said this initially applied just to Federal Law enforcement but Mapp V Ohio applied this rule to states as well.

14

So the 4th Amendment is violated when a government actor, normally the police, infringe on a person’s reasonable right to privacy. This includes actions like searching a home without a warrant or certain exceptions being in place, for instance the police can often conduct a search if evidence is being destroyed or for other factors called “exigent circumstances.” As a general rule exigent circumstances will exist if the officer has probable cause of the crime and there is a legitimate reason that there not sufficient time to obtain a warrant.

15

Also an arrest qualifies as a 4th Amendment seizure. And what is an arrest. Here is the definition in Oregon…Read slide..basically a search is a seizure of evidence and an arrest is the seizure of a person.

16

17

Now we have to define probable cause…read slide…basically it is a burden of proof. 51% or more. You need it to make an arrest.

18

So we mentioned some exceptions to warrants…Officers can also search person incident to arrest. Chimel v. California (1969) established this. However, officers cannot search for just anything…the search has to be of the person and possibly a small area around the person and in their immediate control and it can only be for weapons, articles of escape and evidence of the crime for which the person is being arrested…however, if other evidence is found the person can be charged and that evidence will often be admissible in court.

Now lets discuss bail…The author talks about the use of bail being used against the poor…read slide…and what is bail? Read slide….and why does bail exist? Read slide

19

Bail is normally part the pretrial phase and allows the suspect to be freed as it is a form of security to ensure the person will return. Failure to appear results in the forfeiture of bail…In some states this results in the use of bounty hunters who are trying to return a person who has jumped bail to the court so that the bail will be released.

20

Decisions regarding bail are made by the court shortly after a person is taken into custody. The form can vary from state to state but in Oregon it is initially determined by the charge of the arresting officer but can be modified by the judge for a number of reasons. It can also be withheld and the person not allowed to bail out. Why? This might be done in the case that the arrestee is exceptionally dangerous or a very obvious flight risk.

21

Many locals use what is called Deposit Bail…this means that only a percentage of the bail amount is deposited with the court. This is the case with Oregon where the bail is 10%. By way of example, at the time of this recording Assault 4 is an A Misdemeanor in Oregon and A misdemeanors generally have a bail of $2500. This would mean bail would be set at $250 for a person arrested for an Assault 4 baring other factors.

22

Another Bail system is Surety Bail. In this system the defendant will provide a bond agent with 10% of the bail and that agent will then post the full bail. The initial 10% is not returned to the defendant and is basically a fee. California and Washington use this system. Originally it was a method were the state could basically get free help in returning bond jumpers but obviously it has its problems….hence Dog the Bounty Hunter…

23

A third method of release is ROR…Released on own Recognizance…basically many jurisdictions simply cannot hold the necessary number of prisoners prior to court so they attempt to identify the least dangerous and/or most likely to appear and release them after they sign a note promising to come to court.

24

The Author notes that the CJ system is inward looking….read case…While the author notes that bad cases never make it past the prosecutor’s office they often make it to civil court.

25

So Professor Stuntz writes…read slide… Like many of the assumptions in this book this is true on its face but in practice the reality is quite different…for instance if you are an officer who frequently makes mistakes prosecuting attorneys take note and you will find that none of your cases get prosecuted. These officers generally end up being pariah’s who no one wants to work with because if they become associated with your case you will find that it is not prosecuted as well. In addition to this informal sanction there are also internal investigations and even criminal investigations. So while the statement is technically true it misses a wide range of incentives that exist in the real world that create costs to this kind of behavior. Finally, those errors frequently cost the city large amounts of money…making those mistakes repeatedly will cost you your job or even if you survive you will likely end up taking phone in reports or some other unpleasant task.

26

What are the remedies…well prosecutors can dismiss bad cases, citizens can complain, law suites, media and now youtube, external review….there are number of potential remedies…

27

So how was policing regulated….initially court injunctions but in 1960’s judges did not want to directly oversee police departments. This led to the auditor model which began in the 1970s and has exploded in the 2000s. Now we have more of a hybrid…with an external entity, normally a lawyer and often called a monitor specializing in this kind of work is paid large sums of money to oversee a police agency for the court.

This system became exceptionally popular during the Obama Administration and is currently still evolving…

So this ends Chapter Seven…

28

And now we transition to chapter 8…I am doing this as one lecture so if you have not read chapter seven please stop and take the time to read it. You will need the information…

29

So who was Earl Warren. Well he was a UC Berkley graduate and was both influenced by and influenced the progressive movement. He served as the Alameda County District Attorney, California Attorney General, a 3 term Republican Governor of California, and eventually Chief Justice of the U.S. Supreme Court. I was surprised when I began researching this chapter as Warren is best known as a liberal justice.

30

He led what has been duped the Warren Court…This court contained a liberal majority and was know for its dramatic use (conservative originalist would claim abuse) of judicial power…this included dramatic expansions of civil rights, judicial power and federal authority. Prof. Stuntz believes the court did more harm than good as it used its power selectively, especially in its interpretations of the Bill of Rights.

31

The court utilized the due process clause of the Fourteenth Amendment to force state and local governments to comply with its interpretations of the Bill of Rights.

32

Professor Stuntz writes…Read slide…it is the last point, in particular, which led to intense backlash…this was especially true as crime began to raise and case after case of obviously guilty defendants was overturned based on procedural error or in many cases a reinterpretation of the law.

33

The author contends that the Warren Court was grounded on Due Process not Equal Protection…read slide

34

So the Warren Court (read slide)…I would also add that all of these changes ended up enhancing the importance of attorneys in general and defense attorneys in particular…Many people feel that the Warren Court advanced legal theory and it may well have but the issue I see not (I am not speaking for the text here) is that the court dramatically increased the importance of good legal advice…I would rather have a court craft law such that the quality of the attorney was less relevant…unfortunately the trend has been in the opposite direction where good legal advice becomes more and more important…leaving the poor and unconnected without equal protections because they cannot afford them.

35

So what should the role of the defense attorney be…one interpretation is (read slide)

36

37

So as sound legal advice becomes ever more important so do legal services for the indigent….read slide…I know at times these lectures may seem to be hard on lawyers but that is not my intention and I wanted to take a second to talk about that. Generally speaking lawyers are an incredibly valuable public good and as a group protect our rights, help craft agreements which help both parties of a trade and decide some of the most difficult cases imaginable. Contract law, public defense attorney’s, family law, prosecuting attorneys all are incredibly important and the individuals I have met are bright, ethical and provide an invaluable service. I do think we have an issue however with the sheer number of attorneys. Law Schools are very cheap to set up compared to other kinds of higher education and as society has subsidized education we have seen more and more lawyers created and basically they need to find work. This is not healthy and has created issues which are exacerbated by the fact that state Bar Associations are basically lawyer unions. This has created an odd situation to say the least and ultimately increased the amount good attorney’s can charge…this sequways into our next slide…

38

Private Defense Attorneys…not public defenders…have benefit dramatically from the increased complexity of the law and increased importance on procedure. The example for this I like to use is Driving Under the Influence arrests. I used to work a lot of fairly complex drug cases…many of these involved the distribution of drugs and the presence of weapons and frequently could involve prison sentence...normally of one or two years but if referred federally these cases could result in a decade or more. What always amazed me was that these cases had much less procedure the DUII cases….because so many people with money have been arrested with DUII’s the procedures around the cases have become so complex that it was easier and less time consuming to arrest a person for dealing drugs, near a school with a firearm and send that person to prison than it was to arrest the local accountant for driving home drunk and possibly have him spend a weekend in jail. I think it is these kinds of cases which caused Prof. Stuntz so much concern.

39

So Professor Stuntz wants us to consider these factors….

40

41

So here is something to consider…read slide

42

43

44

45

Read slide…the answer would be no…..

46

So this creates a system which advantages savvy suspects, career criminals and other who should probably be held accountable and disadvantages the less savyy, more naïve and those who cannot afford representation prior to being arrested…i.e. the poor. As Stuntz notes…read slide.

47

Read slide….this is now changing with the increase ease of recording and video interviews….however, the fact remains that these recorded interviews will only help protect individuals from the worst abuses which are very rare to begin with…the basic issue of disadvantage for those who cannot afford their own attorney remains as does the advantage to the criminal who has been arrested enough times to learn the tricks of the trade…

48

So according to Professor Stuntz the Warren Court’s mistakes were…read slide

49

And the system adjusted to these rules…read slide…note if the system was truly corrupt it would not have needed to adjust because it would ignore the rules…instead as the law became more about procedure than justice the criminal justice system adjusted and remained with in the rule of the law, if not the intent…

50

The consequences of the Warren Court were far reaching….

51

So punishments increased

52

As crime exploded a political game of chicken ensued read slide…

53

Many feel this commercial, which aired in 1988, set the tone going into the 1990s..

54

Read slide

55

Life if full of unintended consequences and I think Professor Stuntz wanted to point out some of those consequences….again I do not agree with all his assumptions and in my opinion he is prone to oversimplification but I think his ideas are worth hearing and considering….one trend we have seen in the last 50 years is an arrogance on the part of politicians, police, lawyers, social scientists and other experts…this arrogance has led them to tinker with very complex systems, which is basically what the Warren Court did…and this has had unintended consequences. I want to end with a quote from Fredrick Hayek…he said,. “The curious tasks of economics is to demonstrate to men how little they really know about what they imagine they can design.” As always email or call with questions….

56