CCJS 100 – Criminal Justice Policy Assignment - DUE SATURDAY

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SOU-CCJ230 Introduction to the American Criminal Justice System

SOU-CCJ230 Introduction to the

American Criminal Justice System

Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore

Rutz-Burri, and Shanell Sanchez

Open Oregon Educational Resources

SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez is licensed under a Creative Commons Attribution-ShareAlike 4.0 International

License, except where otherwise noted.

Contents

What is an OER textbook? 1

A Bit About Our Collaboration Project 2

Author Bios 3

Goals, Learning Objectives, and Skills 5

Table of Contents 7

Dedication 8

1: CRIME, CRIMINAL JUSTICE, AND CRIMINOLOGY

1.1. Crime and the Criminal Justice System Shanell Sanchez

1.2. Deviance, Rule Violations, and Criminality Shanell Sanchez

1.3. Social Norms: Folkways, Mores, Taboo, and Laws Shanell Sanchez

1.4. Interactionist View Shanell Sanchez

1.5. Consensus View and Decriminalizing Laws Shanell Sanchez

1.6. Conflict View Shanell Sanchez

1.7. The Three C’s: Cops, Courts, and Corrections Shanell Sanchez

1.8. The Crime Control and Due Process Models Shanell Sanchez

1.9. How Cases Move Through the System Shanell Sanchez

1.10. Media Coverage of Crimes Shanell Sanchez

1.11. Wedding Cake Model of Justice Shanell Sanchez

1.12. Street Crime, Corporate Crime, and White-Collar Crime Shanell Sanchez

1.13. Different Types of Crimes and Offenses Shanell Sanchez

1.14. Victims and Victim Typologies Shanell Sanchez

1.15. Victim Rights and Assistance Shanell Sanchez

1.16. "Spare the Rod, Spoil the Child" Myth/Controversy 65

2: DEFINING AND MEASURING CRIME AND CRIMINAL JUSTICE

2.1. Dark or Hidden Figure of Crime Shanell Sanchez

2.2. Official Statistics Shanell Sanchez

2.3. Victimization Studies Shanell Sanchez

2.4. Self-Report Statistics Shanell Sanchez

2.5. Misusing Statistics Shanell Sanchez

3: CRIMINAL LAW

3.1. Functions and Limitations of Law Lore Rutz-Burri

3.2. Civil, Criminal, and Moral Wrongs Lore Rutz-Burri

3.3. Sources of Criminal Law: Federal and State Constitutions Lore Rutz-Burri

3.4. Sources of Criminal Law: Statutes, Ordinances, and Other Legislative Enactments Lore Rutz-Burri

100

3.5. Sources of Law: Administrative Law, Common Law, Case Law and Court Rules Lore Rutz-Burri

103

3.6. Classifications of Law Lore Rutz-Burri

110

3.7. Substantive Law: Defining Crimes, Inchoate Liability, Accomplice Liability, and Defenses Lore Rutz-Burri

113

3.8. Substantive Law: Punishment: Incarceration and Confinement Sanctions Lore Rutz-Burri

117

3.9. Substantive Law: Physical Punishment Sentences Lore Rutz-Burri

122

3.10. Substantive Law: Monetary Punishment Sentences Lore Rutz-Burri

126

3.11. Substantive Law: Community-Based Sentences Lore Rutz-Burri

129

3.12. Procedural Law Lore Rutz-Burri

134

4: CRIMINAL JUSTICE POLICY

4.1. Importance of Policy in Criminal Justice Alison S. Burke

139

4.2. The Myth of Moral Panics Alison S. Burke

142

4.3. The Stages of Policy Development Alison S. Burke

147

4.4. Importance of Evidence Based Practices Alison S. Burke

151

4.5. Re-Evaluating Policy Alison S. Burke

153

5: CRIMINOLOGICAL THEORY

5.1. What is Theory? Brian Fedorek

159

5.2. What Makes a Good Theory? Brian Fedorek

161

5.3. Pre-Classical Theory Brian Fedorek

163

5.4. Classical School Brian Fedorek

164

5.5. Neoclassical Brian Fedorek

167

5.6. Positivist Criminology Brian Fedorek

170

5.7. Biological and Psychological Positivism Brian Fedorek

172

5.8. The Chicago School Brian Fedorek

174

5.9. Strain Theories Brian Fedorek

176

5.10. Learning Theories Brian Fedorek

179

5.11. Control Theories Brian Fedorek

183

5.12. Other Criminological Theories Brian Fedorek

186

6: POLICING

6.1. Policing in Ancient Times Tiffany Morey

191

6.2. Sir Robert Peel Tiffany Morey

193

6.3. Policing Eras Tiffany Morey

196

6.4. Levels of Policing and Role of Police Tiffany Morey

207

6.5. Recruitment and Hiring in Policing Tiffany Morey

224

6.6. Recruitment and Hiring Websites for Future Careers Tiffany Morey

235

6.7. Police Misconduct, Accountability, and Corruption Tiffany Morey

244

6.8. Current Issues: Police Shootings Tiffany Morey

247

6.9. Current Issues: Use of Force and Vehicle Pursuits Tiffany Morey

250

6.10. Current Issues: Stereotypes in Policing Tiffany Morey

252

6.11. Current Issues: Accountability Tiffany Morey

255

6.12. Current Issues: Internal Affairs and Discipline Tiffany Morey

257

6.13.Current Issues: Body Cameras Tiffany Morey

260

6.14. Myth: “Police Only Write Speeding Tickets to Harass Citizens and it is Entrapment.” Tiffany Morey

261

7: COURTS

7.1. Introduction to the U.S. Court System Lore Rutz-Burri

265

7.2. Jurisdiction Lore Rutz-Burri

266

7.3. Structure of the Courts: The Dual Court and Federal Court System Lore Rutz-Burri

269

7.4. Structure of the Courts: State Courts Lore Rutz-Burri

276

7.5. American Trial Courts and the Principle of Orality Lore Rutz-Burri

279

7.6. The Appeals Process, Standard of Review, and Appellate Decisions Lore Rutz-Burri

280

7.7. Federal Appellate Review of State Cases Lore Rutz-Burri

284

7.8. Courtroom Players: Judges and Court Staff Lore Rutz-Burri

286

7.9. Courtroom Players: Prosecutors Lore Rutz-Burri

293

7.10. Courtroom Workgroup: Defense Attorneys Lore Rutz-Burri

297

8: CORRECTIONS

8.1. A Brief History of The Philosophies of Punishment David Carter

311

8.2. Retribution David Carter

313

8.3. Deterrence David Carter

315

8.4. Incapacitation David Carter

318

8.5. Rehabilitation David Carter

321

8.6. Prisons and Jails David Carter

324

8.7. A Brief History of Prisons and Jails David Carter

325

8.8. Types of Jails David Carter

329

8.9. Who Goes to Jail? David Carter

332

8.10. Growth of Prisons in the United States David Carter

334

8.11. Types of Prisons David Carter

336

8.12. Prison Levels David Carter

339

8.13. Who Goes to Prison? David Carter

342

9: COMMUNITY CORRECTIONS

9.1. Diversion David Carter

347

9.2. Intermediate Sanctions David Carter

349

9.3. Probation David Carter

352

9.4. Boot Camps/Shock Incarceration David Carter

357

9.5. Drug Courts David Carter

359

9.6. Halfway Houses David Carter

360

9.8. House Arrest David Carter

362

9.9. Community Residential Facilities David Carter

363

9.10. Restorative Justice David Carter

365

9.11. Parole David Carter

367

9.12. Current Issues in Corrections David Carter

371

9.13. Current Issues in Corrections: Mass Incarceration David Carter

372

9.14. Current Issues in Corrections: War on Drugs and Gangs David Carter

376

9.15. Current Issues in Corrections: Aging and Overcrowding David Carter

379

9.16. Current Issues in Corrections: Reentry and the Future of Corrections David Carter

384

10: JUVENILE JUSTICE

10.1. Youth Crime Alison S. Burke

389

10.2. Juvenile Justice Alison S. Burke

390

10.3. History of the Juvenile Justice System Alison S. Burke

392

10.4. Delinquency Alison S. Burke

396

10.5. Juvenile Justice Process Alison S. Burke

398

10.6. Due Process in the Juvenile Court Alison S. Burke

399

10.7. The Juvenile Justice and Delinquency Prevention Act of 1974 Alison S. Burke

402

10.8. Getting Tough: Initiatives for Punishment and Accountability Alison S. Burke

403

10.9. Returning to Rehabilitation in the Contemporary Juvenile Justice System Alison S. Burke

407

10.10. The Structure of the Juvenile Justice System Alison S. Burke

410

10.11. Juvenile Institutions Alison S. Burke

413

Glossary 417

We hope you are as excited about this textbook as we were writing it. This is a free academic resource and

a free textbook that can be printed at low-cost if you prefer paper. Southern Oregon University’s Disability

Resource has reviewed this textbook for accessibility to all students.

Introduction to the American Criminal Justice System is an Open Educational Resource (OER)

https://en.wikipedia.org/wiki/Open_educational_resources that is licensed under the Creative Commons

(CC 4.0) format https://creativecommons.org with support to complete this project from Open Oregon

Educational Resources https://openoregon.org.

This introductory textbook is unique because it was a collaborative effort by all Criminology and Criminal

Justice professors at Southern Oregon University (SOU) in Ashland, Oregon. This textbook will meet the

learning objectives outlined through SOU and as a community college transfer course, as well as cover all

other topics expected to find in an introductory course. This book can be used on a quarter or semester

system, as well as cover topics that may get left out of some introductory texts such as controversial issues in

the criminal justice system. Further, we made it as comprehensive as possible to cover core concepts and areas

in the criminal justice system including theory, policing, courts, corrections, and the juvenile justice system.

Additionally, we created examples that will help make difficult concepts or ideas more relatable. Every

section provides an overview of key terms, critical thinking questions for course engagement, assignments,

and other ancillaries such as multimedia links, images, activity ideas, and more.

Feel free to ask any questions. Email Shanell Sanchez at [email protected] with any specific questions

about the book or any other professor if it is specific to their page.

A Bit About Our Collaboration Project

This OER could not be possible without the support from many different people. Our financial support came

from a grant through Open Oregon https://openoregon.org.

Dr. Shanell Sanchez wants to personally thank all her colleagues at SOU for taking on this endeavor with

her. The first plan was to adapt and edit an existing OER, but after an exhaustive search of OER’s, we found

there is a dearth of CCJ OER’s. We realized that if we wrote this book, we would be one of the first CCJ

OER’s available. The initial idea seemed a bit overwhelming, but watching it come together was amazing.

Dr. Sanchez had a vision for what an ideal textbook should look like for first-year students and our newest

majors or potential majors, but it was not possible without all of us working together.

Amy Hofer at Linn-Benton Community College served as our grant manager, but she went beyond that.

She has served as an excellent resource, mentor, and helped us find opportunities to present our experiences

at conferences.

Dr. Jeffrey Gayton is our university librarian at Southern Oregon University and helped coordinate this

project from the start of our application to the release of our OER going live.

Brian Stonelake, a professor in the Mathematics department at Southern Oregon University, provided

excellent guidance and insight to us when we were applying for the grant.

Christina Richardson was our student that served as a contributing editor, as well as created our glossary

for this OER. She went through the entire book to pose suggestions, edits, and comments that helped make

the end product better.

Author Bios

Alison S. Burke, Ph.D., Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/burke.html

Alison S. Burke is a professor of criminology and criminal justice at Southern Oregon University.

She earned her Ph.D. from Indiana University of Pennsylvania and her MCJ from the University of

Colorado Denver. While in Denver, she worked with adjudicated youth in residential treatment facilities

and group homes. She has published a variety of journal articles and book chapters related to juvenile justice,

delinquency, and gender, and her primary research interests involve women and crime, juvenile justice

and delinquency, and pedagogy in higher education. Her most recent book is titled Teaching Introduction to Criminology (2019).

David E. Carter, Ph.D., Associate Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/davidcarter.html

David E. Carter joined the Criminology and Criminal Justice Department in 2008. He received his Ph.D.

from the University of Cincinnati. Dave served in the U.S. Army for 8 years as a linguist prior to attending

school. He has published works in the Journal of Research in Crime and Delinquency in the area of life-

course research, as well as in the Corrections Compendium, where he wrote about U.S. inmate populations.

He also works with local agencies (in a consultative role) providing evidence-based practices and evaluations

for correctional programs in the area of effective interventions and evidence-based programming. At SOU,

Dave has helped facilitate the Lock-In event and annual that provides students with a hands-on experience

of the justice system.

Brian Fedorek, Ph.D., Associate Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/brianfedorek.html

Brian Fedorek earned his doctorate at the Indiana University of Pennsylvania in Criminology. He has

taught classes in Terrorism, Comparative Criminal Justice, Theories of Criminal Behavior, and introductory

courses. His research interests include media and crime, criminological theory, and criminal violence. He has

served on the board of the Western Association of Criminal Justice.

Tiffany L. Morey, M.S., Instructor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/tiffany-morey-m-s.html

Tiffany L. Morey has an almost three-decade career in the law enforcement arena. She retired as a

Lieutenant from a police department in Las Vegas, Nevada. Her expertise is in the law enforcement, crime

scene investigation (CSI), and forensics fields. During her tenure in policing in Las Vegas she worked

in patrol, the crime prevention division, community services, recruitment, special events, problem-solving

unit (first ever unit/substation for her department in a high gang and drug area), undercover prostitution

and narcotics stings, search warrant service assistance, mounted unit departmental work, CSI (crime scene

investigator), forensics, Sergeant and Sergeant field training program and master trainer, Lieutenant and

Lieutenant field training program, and finally Acting Captain. During this time, she was also chosen and paid

by an independent firm to travel the country and conduct oral board interviews and assessment center testing

and recruiting for law enforcement agencies and fire departments. She developed a ground-breaking class

to assist candidates in the law enforcement hiring process and is now under contract to publish the related

textbook/study guide. Tiffany continues to operate in the field of CSI and forensics as an expert investigator

and witness on violent crime. She also runs a Crime Prevention Through Environmental Design (CPTED)

business, offering citizens and owners of businesses CPTED reviews to ensure the safety of their homes and

buildings. Finally, in her free time, she runs SOAR Wildlife Center (SoarWildlife.org), which is a non-profit

organization, that rehabilitates sick, injured, or orphaned fawns and other baby mammals.

Lore Rutz-Burri, J.D., Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/rutz.html

Lore Rutz-Burri is a 1982 graduate of Southern Oregon State College (now SOU) with a Bachelors of

Arts degree in Criminology and Political Science. After graduating, she lived in Southern Austria until 1984.

Upon returning to the states, she earned an M.C.J (Master’s degree in Criminal Justice) from the University

of South Carolina. In 1985 she started in a Ph.D. program at the University of Maryland, College Park, but

early on decided she would rather pursue a law degree. In 1989 she graduated “order of the coif” with her

doctor of jurisprudence (JD) from the University of Oregon School of Law. Following law school, Lore

clerked for the Superior Court of Alaska in Fairbanks for one year and then worked for 5 years as a deputy

district attorney in Josephine County, Oregon. There, she prosecuted a variety of crimes, but mostly assault

cases. In 1995, she began teaching criminology and criminal justice at SOU. Since 2015 she has been a

part-time Circuit Court judge in the Josephine County courts. Lore has been married for over 27 years to

her husband, Markus (a Swiss national). They have two sons– Severin (who studied at SOU and majored in

psychology) and Jaston (who studied at U of O and majored in philosophy). She has both case books and

introductory text on criminal law and criminal procedure.

Shanell K. Sanchez, Ph.D., Assistant Professor of Criminology and Criminal Justice, Southern Oregon University, https://inside.sou.edu/criminology/faculty/dr-shanell-sanchez.html

Shanell Sanchez joined the Criminology and Criminal Justice department at Southern Oregon University

in Ashland, Oregon in 2016. Prior to that, Shanell was an Assistant Professor in Criminal Justice at Colorado

Mesa University in Grand Junction, Colorado. She received her Ph.D. from the University of Nebraska-

Lincoln in Sociology in 2012. Her research and teaching interests are centered around social change and

justice, inequality, and comparative crime and justice.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

Goals, Learning Objectives, and Skills

There is a dearth of OER textbooks in Criminology and Criminal Justice, which made creating this textbook

all the more exciting. At times we faced challenges about what or how much to cover, but our primary goal

was to make sure this book was as in-depth as the two textbooks we were currently using for our CCJ 230

introduction course. The only way we were willing to undertake this project as if it was as good, or better

than the current books students read. We have had very positive feedback about the required textbooks in

the course but consistently heard how expensive the books were to buy. We also needed to ensure we met

the learning outcomes outlined by SOU for a general education course, as well as the state of Oregon, to

make sure this textbook helps students meet those outcomes.

SOU’s catalog course description for CCJ 230 states this course surveys the functional areas of criminal

justice in the United States. This OER covers law enforcement, criminal courts, sentencing, penal

institutions, and community-based sanctions. It also includes historical and contemporary perspectives on

components of the criminal justice system, as well as the legal and constitutional frameworks in which they

operate.

Learning Objectives

• Students will increase the breadth of their knowledge and understanding of the American Criminal

Justice System.

• Students will enhance their critical thinking skills via writing, reading, and discussion.

• Students will learn the history, functions, responsibilities, processes, and importance of each

component of the criminal justice system.

• Students will become familiar with research and its relationship to criminal justice policy.

• Students will use the foundations learned about the American criminal justice system in future CCJ

courses.

Additionally, myths and controversies are incorporated in the course covering the above-noted content areas

in the American criminal justice system. In our experience, this tends to be the most exciting part of the

class. It also helps students build all learning outcomes through assignments, readings, and materials covered

in class. The primary goal when writing this book was to make it easy to read, with fun examples, thought-

provoking discussion questions, and is accessible to all to ensure that students would read. The content level

targeted first-year students who are taking their first course in Criminology and Criminal Justice, but also as

a general education course for those that may not intend to major. In order to ensure each area has accessible

materials for the course and meets our learning objectives and goals, we have conducted preliminary research

in order to determine our best option is moving forward.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

Table of Contents

1. Crime, Criminal Justice and Criminology

2. Defining and Measuring Crime and Criminal Justice

3. Criminal Law

4. Criminal Justice Policy

5. Criminological Theory

6. Policing

7. Courts

8. Corrections

9. Community Corrections

10. Juvenile Justice

Dedication

We dedicate this book to our students at Southern Oregon University, who continuously work hard in our

classes and develop lasting relationships with us. We also dedicate this book to all our partners, children, fur

babies, and friends that supported us in the writing process.

1: Crime, Criminal Justice, and

Criminology

Learning Objectives

This section will broadly introduce crime, criminal justice, and criminology. This section is designed to be a

broad overview of what the subsequent chapters will cover in detail. It also demonstrates how the United States

create laws, policies enacted to enforce laws, and the role of the media. After reading this section, students will be

able to:

• Understand the differences between deviance, rule violations, and criminality

• Explain the differences between the interactionist, consensus, and conflict views in the creation of

laws

• Identify the three components of the criminal justice system

• Discuss the differences between crime control and due process model, and application examples to

each

• Describe the wedding cake model theory and application examples to each tier

• Briefly explain the role of the media and how media may spread myths in society

• Briefly understand the unique role of victims in the criminal justice process

Background Knowledge Probe: The goal here is to assess current knowledge about the criminal justice system at the start of the course. Each of these topics is covered throughout the course, and they will

often be a controversial topic and topic for debate.

You will indicate whether you know each statement to be True or False, but there is no right or wrong

answer since it is just to assess your background knowledge.

1. Blacks commit more crime than any other racial group.

2. The United States has the lowest recidivism rates in the world (return to prison).

3. The death penalty is cheaper than life imprisonment.

4. Politicians shape our thoughts on crime, even if they are inaccurate.

5. Children are most likely to be killed by a stranger.

6. A stranger is most likely to physically harm you.

7. White-collar crime costs our country more every year than street-crime.

8. Juveniles are more violent today than ever before.

9. Immigrants commit more crime than native-born people.

10. Violent crime has risen in the United States over the last 20 years.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.1. Crime and the Criminal Justice System

SHANELL SANCHEZ

Theft as a Child

The first lesson in crime and criminality I remember was when I was in second grade and stole something from

a local drug store. I thought that the bracelet was shiny and perfect. At first, I remember wanting to try it on, but

then I did not want to take it off. I had more questions than my Nana may have been ready to answer about why I

did it and why I could not keep it. I had to take the bracelet back, which hurt because I loved it. Because of guilt or

shame, I told my grandma what I did.

Think about a time in your life that you may have done something similar. Was this first lesson in crime and

criminality from the person you were raised by such as a parent(s) or grandparent(s)? Did they teach you that what

you did was a crime and, hopefully, how to correct this wrong at a young age?

You were probably punished, and they may have consisted of helping out with more chores or losing your

allowance to pay back what you stole.

Imagine all the questions you may have for your parents at the moment: Why was it wrong? What would happen

to me if I did not tell you? What is a crime? Who decides what makes a crime? What happens to me if I commit a

crime and get caught? What is my punishment? Why was it wrong when there were so many polishes there?

Further, I had to help out around the house for the weekend. In exchange for all this, she did not tell my dad

because she knew her punishment was sufficient and to tell him may be excessive. She took a balanced approach to

punishment and I think this is why it was so effective. It was not too strict, it was hard to complete, and I had to

think about what I did.

Most criminologists define crime as the violation of the laws of a society by a person or a group of people who are subject to the laws of that society (citizens). Thus, crime as defined by the State or Federal

government. Essentially, crime is what the law states and a violation of the law, stated in the statue, would

make actions criminal. 1

1. Lynch, M., Stretesky, P., Long, M. (2015). Defining crime: A critique of the concept and its implication. Palgrave Macmillan: US.

For example, if someone murdered another individual in the process of stealing their automobile most

people would see this as a criminal and a straight-forward example of crime. We often see murder and

robbery as wrong and harms society, as well as social order. However, there are times crime is not as straight-

forward though and people may hesitate to call it criminal. The community I live in, and many others

throughout the area, post signs that it is illegal to give food and other items to homeless individuals in need.

If one were to violate this law and give food to a homeless person it would not involve harm to individuals,

but the social order.

Adele MacLean joined others in an Atlanta park to feed the hungry the Sunday before Thanksgiving and

was given a citation and a summons to appear in court. Ultimately, MacLean’s case was dropped when she

showed up in court, but she and her lawyers argued the citation for serving food without a permit was

improper and demonstrates callousness toward the homeless. The city and some advocates say feeding people

on the streets can hinder long-term solutions and raises sanitation concerns. 2

Approximately 40 cities across

the nation have active laws to restrict food sharing, and a few dozen more had attempted such restrictions,

according to the National Coalition for the Homeless. 3

We will talk later about how we may create laws based on what can cause harm. Harm can be to the social order,

physical, economic, social, emotional, environmental, and more. In order to ensure that people receive justice in

today’s society, we use the criminal justice system to administer punishment or reward, and those crimes are often

punished based on morals and norms.

The criminal justice system is a major social institution that is tasked with controlling crime in various ways. Police are often tasked with detecting crime and detaining individuals, courts often adjudicate and hand down

punishments, and the correction system implements punishments and/or rehabilitative efforts for people who have

been found guilty of breaking the law.

Criminal Justice Process When the law is broken, the criminal justice system must respond in an attempt to make society whole

again. The criminal justice system is made up of various agencies at different levels of government that

can work independently and together, but each attempting to deal with crime. Challenges may arise

when agencies do not work together or attempt to work together inefficiently. The notorious serial killer

Ted Bundy was an example of U.S. law enforcement agencies not working together because of lack of

technological advancement to freely exchange information and resources about killings in their area. Bundy

exploited gaps in the traditional law enforcement, investigative processes throughout different jurisdictions,

and ultimately was able to avoid arrest and detection. If various agencies at the Federal, State, and Local law

enforcement level had worked together they could have potentially stopped Ted Bundy sooner. Following

Ted Bundy, a Multi-agency Investigative Team manual, also known as the MAIT Taskforce, was created

through the National Institute of Justice to develop information about the crime, it causes and how to control

it https://www.ncjrs.gov/pdffiles1/Digitization/110826NCJRS.pdf. One of the values of the United States is

that local agencies will control their local community, but at times this may create unexpected complications.

Working Together?

2. Brumback, K. (2017). Cities, volunteers clash over feeding homeless in public. Associated Press. https://www.seattletimes.com/nation- world/cities-volunteers-clash-over-feeding-homeless-in-public/

3. National Coalition for the Homeless. (2018).

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

You are to create an argument for or against law enforcement agencies working together. Some countries have

national police forces, whereas we do not. Be prepared to defend your position in the class.

Although agencies may operate differently, the way cases move through the criminal justice system is

consistent. The first step after getting caught stealing something from a store is involvement with police

when law enforcement is called. The next step in the process is to proceed through the court system to

determine guilt or innocence. If you are found guilty then you will receive a sentence that will be carried

out in the next step. After conviction, you move to the correctional system for formal punishment and/or

treatments as determined by the courts. An individual may not go through the entire process and criminal

justice officials decide whether the case should continue on to the next stage. Perhaps the officer decides not

to cite you and your contact ends there. However, it may be the district attorney (DA) that decides to drop

your case before it even goes to trial. Regardless, the process is typically cops, courts, and then corrections.

We will explore each of these in greater detail later on.

News Box: In 2016, more people were arrested for marijuana possession than for all crimes the FBI classifies as violent.

4 Overall in 2016, roughly 1.5 million people were arrested for drug-related offenses, up

slightly year-over-year 5

Marijuana enforcement and criminalization goes to the heart of some of the most

pressing issues facing the criminal justice system, policymakers, citizens, and the world. Is criminalizing

drug use effective, especially for marijuana? Is spending money on enforcing drug laws, prosecuting drug

crimes, and punishing drug offenders effective? The United States has taken a get-tough approach towards

the War on Drugs, created mandatory minimum sentences, and punished people in large numbers but is it

effective?

4. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-18 5. Ingraham, C. (2017). More people were arrested last year over pot than for murder, rape, aggravated assault, and robbery —

combined. The Washington Post. https://www.washingtonpost.com/news/wonk/wp/2017/09/26/more-people-were-arrested-last-year- over-pot-than-for-murder-rape-aggravated-assault-and-robbery-combined/?noredirect=on&utm_term=.62735d3474ea

Introduction to the American Criminal Justice System

1.2. Deviance, Rule Violations, and Criminality

SHANELL SANCHEZ

Nude Ultimate Frisbee

Imagine you recently moved to Oregon for work from Georgia after graduating college and hope to make new

friends. Georgia has been your home forever, so Oregon is entirely new. Then one day at the dog park you run

into a guy that seems like someone you would like to hang out with and he tells you to come out and play ultimate

frisbee this weekend. You decide to take the leap and meet new people, play a new sport, and have some fun.

You arrive on the field, but notice something that stands out as different to you and wonders ‘is this allowed

in Oregon?’ Some women and men are naked, some fully and some just certain parts exposed, but no one seems

uncomfortable. You look around at the topless players, all adults, and wonder if this is the wrong place. Other

people in costume walk around like Unicorns, Mario, Rainbow Brite, among others. Suddenly, thoughts start

racing through your mind: “Why are people dressed strangely? Is it legal to be nude in public in the state of

Oregon? Why does no one seem to mind? Can I keep my clothes on? What will my family in Georgia think?

Should I just go back to my apartment now?”

Suddenly, the guy from the dog park runs up and tells you to come on over so he can introduce you to the

team. Situations like this are often examples we use in the college classroom to demonstrate the difference between

deviance, rule violations, and criminal violations. Sometimes there are times that behaviors that appear to be deviant

are not illegal, but other times behaviors that are illegal are not deviant.

Just about everyone in society has done something that someone else would disagree with and see as deviant.

For example, I recently wore clothes to the gym that were out of style but how did I know they were out of

style? Well, easy! The reaction of others to my lack of style in the gym was clear that it is no longer cool to

wear knee-high socks with athletic shorts to the gym.

Another time I was at Thanksgiving dinner with my family and I expressed open support for a politician

that no one else in the family supported. Their reactions to my support of him made it evident that I

was the deviant one that was not going along with the typical political views expected in my reasonably

conservative, Republican family.

Alternatively, perhaps I am deviant when I tell you my favorite show on television is, and always will

“Facial Tattoos and Piercings”

be, the Golden Girls, which seems odd for someone in their early thirties. Perhaps someone thinks it is

utter nonsense and ‘crazy’ wasting my time watching such shows. These are just a few examples where my

behavior, thoughts, actions, or beliefs may be different from those around me.

From a sociological perspective, social norms are all around us and are accepted norms and behaviors

that defined within a specific group. The group you are in can change, which would mean the norms and

behaviors that are acceptable at any given time may change. 1

Deviance is behavior that departs from the social norm. Goode argues that four things must happen in order for something deviant to take place

or exist:

1) a rule or norm must be established; 2) someone has to violate that

rule or norm; 3) there must be an audience or someone, that witnesses

the act and judges it to be wrong; 4) and there is likely going to be a

negative reaction from that audience that can come in many forms (i.e.,

criticism, disapproval, punishment, and more).

To commit an act of deviance one does not need to violate a

dangerous norm, and not all acts that are deviant are criminal. Not all

criminal acts are deviant either. Deviance falls on a spectrum that can

range from really deviant to not so deviant but remember it is dependent

on the audience. Think back to the previous comment about the show

Golden Girls. My grandma would not find that as deviant as my husband

does because we grew up watching it together. We spent many hours on

the couch laughing away at the silliness of it all, so we would both agree

it is a beautiful show. 2

Applying Knowledge

Assignment: Apply Goode’s definition of what needs to happen in order for something to be considered deviant in no less than 500 words and following the example below.

Example: The awkward outfit to the gym: knee socks, athletic shorts, and an oversized Broncos t-shirt mentioned above could be deviant. Based on Goode’s definition of deviance, this attire departed from the social

norm at the gym in 2018. Whether we realize it or not some specific rules or norms established in the gym (1);

sometimes we have a dress code, but other times, you have to keep up with current ‘hip trends’ such as yoga pants

for women in 2018. Next, I violated that norm by my attire (2); since it was a busy Monday night lots of people

saw my attire, my audience, that was able to witness my act and then judge it (3). Lastly, they cannot kick me out

for not dressing cool, but the awkward smirks, stares, and giggles were all I needed to know that my clothes were

deviant and not cool (4). This could certainly have not been true in 1950, 1980, or even early 2000s. If I think back

to when I started lifting over a decade ago, yoga pants were unheard of and no one wore anything ‘tight’ to the

gym. Today yoga pants are regular and in some parts of the country for women and men.

1. By Tuerto - [1], CC by-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=26526042 2. Goode, E. (2015). Deviant Behavior, (10th ed.). New York: Pearson, Education.

Introduction to the American Criminal Justice System

1.3. Social Norms: Folkways, Mores, Taboo, and Laws

SHANELL SANCHEZ

Social Control Exercise

Assignment: We rely on informal social control to influence people’s behavior, such as giving the stink eye, cold shoulder, or correcting someone’s behavior in order to ensure people conform. Think about a time when a parent,

guardian, coach, employer, or teacher (agents of social control) used informal social control to respond to your

behavior. What did the agent of informal social control do? Provide an example when informal social control was

applied to another person. What were they doing and how was their behavior controlled through informal social

control?

Example: Talking on the phone with a work-related matter and kids start bickering over slime. I am unable to put the phone down, so I relied on hand motions to show them it was unacceptable. There was no need to hang up

or say anything at all. The eye actions indicated they were acting inappropriate and their behavior changed.

Norms can be internalized, which would make an individual conform without external rewards or

punishments. There are four types of social norms that can help inform people about behavior that is

considered acceptable: folkways, mores, taboos, and law. Further, social norms can vary across time, cultures,

place, and even sub-group. 1

Think back to your first experiences in school and surely you can identify some folkways and mores

learned. Folkways are behaviors that are learned and shared by a social group that we often refer to as “customs” in a group that are not morally significant, but they can be important for social acceptance.

2 Each

group can develop different customs, but there can be customs that embraced at a larger, societal level.

1. Goode, E. (2015). Deviant Behavior, (10th ed.). New York: Pearson, Education. 2. Augustyn, A., Bauer, P., Duignan, B., Eldridge, A., Gregersen, E., Luebbering, J.E., etc..., (N.D.). Folkway, Encyclopedia Britannica.

Folkway Example

Imagine sitting in the college classroom with sixty other people around. As a professor who teaches early morning

classes, it is always encouraged to eat if hungry. However, everyone must be considerate of those around them.

You should not chew loudly. That would be considered rude, and it is against class ‘customs’ to do so. To make it

worse, imagine burping without saying ‘excuse me.’ These would be folkway violations. Remember, this may not

be disrespectful in all cultures, and it is very subjective.

Perhaps stricter than folkways are more because they can lead to a violation of what we view as moral

and ethical behavior. Mores are norms of morality, or right and wrong, and if you break one it is often considered offensive to most people of a culture.

3 Sometimes a more violation can also be illegal, but other

times it can just be offensive. If a more is not written down in legislation, it cannot get sanctioned by the

criminal justice system. Other times it can be both illegal and morally wrong.

More Example

If one attended a funeral for a family member, no one would expect to see someone in bright pink clothes or

a bikini. Most people are encouraged to wear black clothing out of respect. Although there may not be specific

rules or laws that state expected attire to wear to a funeral, it would be against what most of American society

views as right and wrong to attend a funeral in a bikini or be in hot pink leotards. It would be disrespectful to the

individual people are mourning. Both mores and folkways are taught through socialization with various sources:

family, friends, peers, schools, and more.

A taboo goes a step farther and is a very negative norm that should not get violated because people will be upset. Additionally, one may get excluded from the group or society. The nature and the degree of the taboo

are in the mores. 4

Taboo Example

A student once gave the example of a man in their neighborhood in Colorado that had multiple wives and

also had ten different children from the women. In most of American culture, it is seen as unacceptable to have

more than one spouse/partner. However, there are instances where having children with multiple people would

not be seen as taboo. Specifically, if a man or woman remarries and then has another child with their new partner.

However, again, this is more acceptable today than in the past because of the greater societal acceptance of divorce

and remarriage.

3. Sumner, W. (1906). Folkways. 4. Sumner, W. (1906). Folkways.

Introduction to the American Criminal Justice System

If one is religious think of something taboo in that specific religion? How about a sports team in college? Band?

Any ideas?

Lastly, and most important to the study of crime and criminal justice, our laws. Remember, a social norm is

an obligation to society that can lead to sanctions if one violates them. Therefore, laws are social norms that have become formally inscribed at the state or federal level and can laws can result in formal punishment for

violations, such as fines, incarceration, or even death. Laws are a form of social control that outlines rules,

habits, and customs a society uses to enforce conformity to its norms.

Law Example

Let us go back to our example of having multiple wives for a moment. It is illegal, a violation of law, to have

multiple wives in American culture. It has not always been this way, and it is not true in every country, but in the

United States, it was viewed as so taboo, morally and ethically wrong, that there are laws that can punish people

for marrying more than one person at a time. However, there may be some people that do not think it is wrong or

some groups, but regardless, it is still illegal.

The following link is for Oregon statue ORS 163.515 Bigamy https://www.oregonlaws.org/ors/163.515

Remember our previous discussion on being the new person to Oregon and trying to figure out if it is

allowed to be nude at an ultimate frisbee practice, but they do not feel morally or ethically wrong. The first

thing one may do is go home and look up some rules and see if they are violating ultimate frisbee rules.

Next, one may check out Oregon laws governing clothing to see if they are violating laws by being nude.

In the end, one finds out that it is not ‘illegal,’ so you cannot call the cops, but you certainly did find a case

in Eugene, Oregon that determined not wearing clothes can be a violation of rules on the college campus.

https://www.oregonlive.com/news/index.ssf/2009/04/uo_board_says_no_clothes_no_ul.html

However, this is a recreational league, and it does not appear to have any formal rules established. Now one

has to make a decision that is hard: Does one want to be part of a subculture that endorses nudity? Does this

go against one’s morals and ethics? Alternatively, is one willing to be part of the team and encourage

acceptance of a new norm? The criminal justice system cannot act for merely violating norms, but at times,

what feels like a norm can lead to criminal justice involvement. For example, walk a town or city, and

many may be found jaywalking because it may be safer, faster, or more accessible. A person can get a ticket

for it in most communities because it is technically violating a law. That is the thing with the line between

deviance, rule violations, and criminality—it does not allow mean we agree. There are many examples of

laws that are not deviant and things that are deviant some subcultures may wish to be illegal. Most, but not

all crimes are deviant, and not all deviant acts are criminal. The question then becomes: well, how then do

we as a society decide who does and does not have the opportunity to make law?

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

Jaywalking

Adam Ruins Everything: Why Jaywalking is a Crime? https://www.trutv.com/shows/adam-ruins- everything/videos/why-jaywalking-is-a-crime.html

Introduction to the American Criminal Justice System

1.4. Interactionist View

SHANELL SANCHEZ

Tattoos at Work

An article by Forbes in 2015, encourages employers to revisit their dress code expectations, with a specific

suggestion on lifting the ‘tattoo taboo.’ The article argues “allowing employees to maintain their style or grooming

allows your company to project how genuine you are as a brand to employees and to the customers they support.”

So, instead of suggesting tattoos are taboo in the workforce to employees, according to the article, one can

encourage people to ‘project who they are’ by accepting tattoos and ultimately, improve your business. This

example demonstrates how societal changes in how deviance can change through time and space.

Read the Forbes article to learn more about this discussion:

https://www.forbes.com/sites/micahsolomon/2015/01/12/how-rethinking-employee-dress-codes-tattoos-and-

piercings-improves-customer-service-and-the-customer-experience/#7b923ad54312

Typically, in our society, a deviant act becomes a criminal act that can be prohibited and punished under

criminal law when a crime is deemed socially harmful or dangerous to society. 1

In criminology, we often cover a wide array of harms that can include economic, physical, emotional,

social, and environmental. The critical thing to note is that we do not want to create laws against everything

in society, so we must draw a line between what we consider deviant and unusual verse dangerous and

criminal. For example, some people do not support tattoos and would argue they are deviant, but it would be

challenging to suggest they are dangerous to individuals and society. However, thirty years ago, it may have

been acceptable to put into dress code, rules guiding our physical conduct in the workspace, that people may

not have visible tattoos and people may not be as vocal as they would today. Today, tattoos may be seen as

more normalized and acceptable, which could lead to a lot of upset employees saying those are unfair rules

in their work of employment if they are against the dress code.

Now that we have a basis for understanding differences between deviance, rule violations, and criminal

law violations, we can now discuss who determines if a law becomes criminalized or decriminalized in the

1. Goode, E. (2016). Deviant Behavior. Routledge: New York.

United States. A criminalized act is when a deviant act becomes criminal and law is written, with defined sanctions, that can be enforced by the criminal justice system.

Jaywalking

In the 1920s, auto groups aggressively fought to redefine who owned the city street. As cars began to spread to

the streets of America, the number of pedestrians killed by cars skyrocketed. At this time, the public was outraged

that elderly and children were dying in what was viewed as ‘pleasure cars’ because, at this time, our society was

structured very differently and did not rely on vehicles. Judges often ruled that the car was to blame in most

pedestrian deaths and drivers were charged with manslaughter, regardless of the circumstances. In 1923, 42,000

Cincinnati residents signed a petition for a ballot initiative that would require all cars to have a governor limiting

them to 25 miles per hour, which upset auto dealers and sprang them into action to send letters out to vote against

the measure.

Vote No

It was at this point that automakers, dealers, and others worked to redefine the street so that pedestrians, not

cars, would be restricted. Today, these law changes can be seen in our expectations for pedestrians to only cross at

crosswalks.

2. Farmer, L. (2016). Making the modern criminal law: Criminalization and civil order. Oxford: Oxford University Press.

Introduction to the American Criminal Justice System

Don’t Jaywalk

The Vox Article below has an excellent summary of what we discussed:

https://www.vox.com/2015/1/15/7551873/jaywalking-history

The creation of jaywalking laws would be an example of the interactionist view in lawmaking. The

interactionist view states that the definition of crime reflects the preferences and opinions of people who hold social power in a particular legal jurisdiction, such as the auto industry. The auto industry used their

power and influence to impose what they felt was to be right and wrong and became moral entrepreneurs. 3

A moral entrepreneur was a phrase coined by sociologist Howard Becker. Becker referred to individuals

who use the strength of their positions to encourage others to follow their moral stances. Moral

entrepreneurs create rules and argue their causes will better society, and they have a vested interest in that

cause that maintains their political power or position. 4 5

The auto industry used aggressive tactics to garner support for the new laws: using news media to shift

3. Vuolo, M., Kadowaki, J., & Kelly, B. (2017). Marijuana's Moral Entrepreneurs, Then and Now. https://contexts.org/articles/marijuanas- moral-entrepreneurs/

4. Becker, H. (1963). Outsiders: Studies in the sociology of deviance. New York: Free Press. 5. Cole, J.M. (2013). Guidance regarding marijuana enforcement. Washington, DC: Department of Justice, Office of the Deputy Attorney

General. Better known as the "Cole Memorandum,"

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

the blame for accidents of the drivers and onto pedestrians, campaigned at local schools to teach about the

importance of staying out of the street, and shame by suggesting you are in the wrong if you get hit. 6

Fun fact: Most people may be unaware that they word ‘jay’ was derogatory and is similar today to being

called a hick, or someone who does not know how to behave in the city. The tactic of shaming was

powerful and has been used many times in society by moral entrepreneurs to garner support and pass laws

against jaywalking.

6. Norton, P. (2007). Street rivals: Jaywalking and the invention of the motor age street. Fighting traffic: The dawn of the motor age in the American city

Introduction to the American Criminal Justice System

1.5. Consensus View and Decriminalizing Laws

SHANELL SANCHEZ

Another view of how laws become created is the consensus view, which as it states, implies consensus (agreement) among citizens on what should and should not be illegal. This idea implies that all groups come

together, regardless of social class, race, age, gender, and more, to determine what should be illegal. This

view also suggests that criminal law is a function of beliefs, morality, and rules that apply equally to all

members of society. 1

One Child per Family Policy in China

In modern society, we tend to have consensus in the United States that people cannot kill their baby at birth

because they wanted the opposite gender. If a person killed their child, murder charges would occur. At certain

points in history in other countries, such as China, this was occurring and was not as deviant as some Americans

would like to think it should have been, but it was still illegal. However, when the Chinese Government introduced

a One Child per Family Policy, there was a surge in female infanticide. There was immense pressure on families

to have sons because of their higher earning potential and contributions to the family. Again, that line between

deviance and criminality can often blur, especially when trying to gain consensus. Read the BBC article below for

more information.

Read the BBC article below for further information.

http://www.bbc.co.uk/ethics/abortion/medical/infanticide_1.shtml

Let us take a consensus approach to create laws, but apply it to decriminalizing laws. An act becomes

decriminalized when it is no longer criminal and becomes legalized, ultimately reducing or alleviating

penalties altogether. Some have proposed a hybrid between decriminalization and criminalizing behaviors,

such as prostitution to ensure rights to prostitutes and punish offenders who harm them. 2

An act can be

decriminalized at the State level, but not necessarily the Federal level.

1. Dawe, A. (1970). The two sociologies. The British Journal of Sociology, 21(2), 207-218. 2. Lutnick, A. & Cohan, D. (2009). Criminalization, legalization or decriminalization of sex work: what female sex workers say in San

Francisco, USA. Reproductive Health Matters, 17(34), 38-46.

Marijuana Legalization

One example of decriminalization that came from a vote of consensus in states like Colorado, Washington,

and Oregon was the legalization of recreational marijuana. Recently, Texas has shown signs of potentially

decriminalizing marijuana and seeking reform laws. According to the latest University of Texas/Texas Tribune

poll, more than half of the state’s registered voters support marijuana legalization in the state (a consensus), and

only 16 percent said possession of marijuana should remain illegal under any circumstances. Marijuana is certainly a

great example of decriminalization, whether it is for recreational or medicinal purposes. University of Texas/Texas

Tribune Poll, June 2018 — Summary

University of Texas/Texas Tribune Poll, June 2018 — Summary

Read the article below for more information on Texas proposing changes:

https://www.texastribune.org/2018/06/27/marijuana-democrats-young-adults-texas-poll/

Adam Ruins Everything YouTube Link: The Sinister Reason Weed is Illegal https://www.trutv.com/

Introduction to the American Criminal Justice System

shows/adam-ruins-everything/videos/the-sinister-reason-weed-is-illegal.html

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.6. Conflict View

SHANELL SANCHEZ

A third perspective of how we define crime or create laws is referred to as conflict view, commonly

associated with Karl Marx in the 1800s. Conflict view sees society as a collection of diverse groups that can include owners, workers, wealthy, poor, students, professionals, younger older, and more. This view

recognizes that the creation of laws is unequal and may not have consensus like in the example discussed

previously. 1

Further, the conflict view takes a very Marxian perspective and suggests that these groups are often in

constant conflict with one another. Unlike the consensus perspective, the conflict view would suggest that

the crime definitions are controlled by those with wealth, power, and social position in society. Essentially,

laws are made by a select group in society, and the laws protect the ‘haves.’ Criminality shapes the values of

the ruling class and is not of ‘moral consensus’. 2

There are many examples we use in the criminal justice field

that demonstrates the conflict view in action.

Edwin Sutherland: White Collar Crime

Edwin Sutherland, a sociologist, first introduced white-collar crime during his presidential address at the

American Sociological Society Meeting in 1939 and later published articles and books on the topic. 3

Specifically, he

was concerned with the criminological community’s preoccupation with the low-status offender and “street crimes”

and the lack of attention given to crimes that were perpetrated by people in higher status occupations.

Sutherland wrote a book, White Collar Crime, that sparked lots of debate. 4

However, there is a limited focus

on white-collar crime and even less enforcement of it in the United States. From the conflict view, this would be

because white-collar and corporate crime is committed by the ‘haves’ and they write their laws and define what is

or is not a crime. Going back to how we define crime in society, white-collar crime is still a contested one.

1. Hawkins, D. (1987). Beyond anomalies: Rethinking the conflict perspective on race and criminal punishment. Social Forces, 65(3), 719–745, https://doi.org/10.1093/sf/65.3.719

2. Boundless. (2016). The conflict perspective. Sociology – Cochise College Boundless, 26. 3. Sutherland, E. (1940). White collar criminality. American Sociological Review, 5(1), 1-12. 4. Sutherland, E. (1949). White collar crime. Dryden Press.

Sutherland wrote a book, White Collar Crime, that sparked lots of debate. 5

However, there is a limited focus on

white-collar crime and even less enforcement of it in the United States. From the conflict view, white-collar and

corporate crime gets committed by the ‘haves,’ and they write the laws and define what is or is not a crime. Going

back to how we define crime in society, white-collar crime is still a contested one.

Currently, there are different views of how one should define white-collar crime: defining white-collar crime

based on the type of offender, type of offense, studying economic crime such as corporate and/or environmental law

violations, health, and safety law violations, and/or the organizational culture rather than the offender or offense.

The FBI studies white-collar crime in terms of offense, so official data for white-collar crime will not focus on the

background of the offender, which can make the use of Uniform Crime Report Data, UCR data tricky to use if

trying to determine a typical offender. The UCR will be covered more fully in chapter two, but it is data collected

from police departments, and the FBI compiles reports. Again, conflict view may suggest the lack of focus on white-

collar crime in U.S. society would be because the ‘haves’ creates the laws, not the ‘have-nots.’ https://ucr.fbi.gov/

nibrs/nibrs_wcc.pdf 6

5. Sutherland, E. (1949). White collar crime. Dryden Press. 6. Barnett, C. (N.D.). The measurement of white-collar crime using: Uniform crime reporting (UCR) data. U.S. Department of Justice.

Federal Bureau of Investigation

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.7. The Three C’s: Cops, Courts, and Corrections

SHANELL SANCHEZ

The Three C’s

As previously stated, the criminal justice system is not confined to one level of government and is made

up of local, state, and federal governments. The agencies associated with these levels can work together or

work separately. In the previous example about marijuana legalization, the federal government has not legalized

recreational or medicinal marijuana, but some states have; states have disagreed with federal law, but federal law

essentially has the final say. If the federal government wanted to punish states for selling marijuana they indeed

could since it remains a Schedule I drug.

We will spend time exploring the three main components of the criminal justice system, or an easy way to

remember this is the three main C’s: cops, courts, and corrections. This section will briefly introduce the police,

courts, and correctional systems and how they often function with each other, whereas subsequent chapters will

further focus on how they each operate as their entity.

Cops Imagine walking downtown on a Friday night and witness a robbery in action. The first thing a person

would typically do is call 911. Then the person would tell the 911 operator, referred to as dispatch, what

they saw, where the event occurred, and any other relevant information. The operator would then send out

the call or dispatch it to nearby police on duty. The first point of contact with the criminal justice system

for most individuals is the cops. We often refer to them as first responders. We will use a variety of terms

for cops, such as police officers and law enforcement, but recognize we are always talking about the men

and women who enforce laws and protect the people of the United States. The police respond to calls and

can apprehend the offender. Because of technology, the police respond quickly.

Other times, police may witness a crime while on patrol. Police make initial contact, investigate crimes,

apprehend offenders/potential offenders (arrest), and then book them in the local jail. Law enforcement does

not determine guilt or innocence, hand down punishments, or implement the punishment. 1

1. Fuller, J. (2019). Introduction to criminal justice: A brief edition. New York Oxford: University Press

During an investigation, police officers may need to obtain a search warrant. The Fourth Amendment of

the Constitution requires that police officers have probable cause before they search a person’s home, their

clothing, car, or other property, with some exceptions explored later on. In order to ensure due process,

searches usually require a search warrant, issued by a “neutral and detached” judge. Arrests also require

probable cause and often occur after police have gotten an arrest warrant from a judge. Depending on the

specific facts of the case, the first step may be an arrest. 2

As stated above, if they catch a person in the

commission of a crime, they will arrest first and investigate later.

Police on Standby

Courts The next phase of the criminal justice system is the courts. The courts may consist of prosecutors, defense

attorneys, judges, and a reasonable jury of one’s peers. The primary role of the courts is to determine

whether an offender should be charged with a crime and if so, what charges should exist. The officers will

forward over information to the district attorneys for review, and the district attorney will determine what

2. United States Department of Justice. (N.D.). Investigation. https://www.justice.gov/usao/justice-101/investigation

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

charges are filed against an offender, also known as the defendant. 3

In the above scenario, if the

prosecutor’s office has determined there is enough evidence to charge the individual of robbing the business

downtown, then charges will be filed, and the suspect is charged with a specific crime. The defendant in

the robbery will be informed of all their rights that are afforded to them by the Constitution and that they

have the right to legal counsel or a defense attorney. There are private defense attorneys as well as public

defenders who are appointed if a person is indigent, or unable to afford their attorney. A defendant, or the

accused, will enter a plea of guilty or not guilty, and a trial date is set.

The prosecutor’s office will evaluate the type and quality of evidence they have when deciding to move

forward or drop the charges. Direct evidence is evidence that supports a fact without an inference, such as a

testimony of an eyewitness to a crime because the person saw the crime. The other type of evidence,

circumstantial evidence, would be something that happened before or after the crime or information

obtained indirectly or not based on the first-hand experience by a person. Circumstantial evidence includes

people’s impressions about an event that happened which they did not see. For example, if you went to bed

at night, and there was no gas in your tank, and then you awoke to a full tank of gas, while you didn’t

actually see your dad fill your tank, you assume the did it while you slept because gas tanks cannot fill

themselves. 4

If a defendant pleads guilty, there may be a plea bargain given.

A plea bargain is similar to a deal will be made for a reduced sentence since the defendant pleads guilty.

Plea bargains get used a lot for the vast majority of cases in our CJ system, and debates often ensue over the

ethics behind them. A defendant should only plead guilty if they committed the crime and must admit to

doing so in front of the judge. Once the defendant admits to the crime, they agree they are guilty and

agree that they may be “sentenced” by the judge presiding over the court. The judge is the only person

authorized to impose a sentence. However, with the current number of cases entering our system every

day, pleas bargains have often called a ‘necessary evil.” 5

Let us say the defendant chooses to go to trial. The prosecution and defense will then present their cases

before a jury and judge to determine if there is enough evidence to convict the defendant. The prosecutor

must prove they have probable cause that the defendant is the one who committed the crime, and the

defense ensures the rights of the accused get upheld while defending their client. Judges are important and

often get referred to as an impartial moderator or referee in the courtroom. The judge receives guidance

and assistance from several sources in order to sentence a defendant. Over time, Congress has established

minimum and maximum punishments, and the United States Sentencing Commissions has produced a set

of sentencing guidelines that recommend certain punishments for certain crimes while considering various

factors. Further, the judge will look at a pre-sentence report and consider statements from the victims, as well

as the defendant and lawyers. The judge may consider a variety of aggravating or mitigating factors. These

include whether the defendant has committed the same crime before, whether the defendant has expressed

regret for the crime and the nature of the crime itself. 6

If a defendant is convicted, then that defendant is found guilty. Let us imagine surveillance camera caught

the robber downtown and fingerprints that were left behind matched the offender; this would make a

conviction more likely. This phase is known as adjudication. If found guilty, the court is responsible for

3. Anoka County Attorney's Office. (N.D.). Roles in the Criminal Justice System. https://www.anokacounty.us/1434/Roles-in-the-Criminal- Justice-System

4. United States Department of Justice. (N.D.). Investigation. https://www.justice.gov/usao/justice-101/investigation 5. United States Department of Justice. (N.D.). Plea bargaining. https://www.justice.gov/usao/justice-101/pleabargaining 6. United States Department of Justice. (N.D.). Sentencing. https://www.justice.gov/usao/justice-101/sentencing

Introduction to the American Criminal Justice System

handing down a punishment. In the vast majority of criminal cases, the judge decides the sentencing hearing,

but in some cases, a jury determines the outcome. Although this was a brief overview, it is essential to

know that the courts charge defendants, holding a preliminary hearing, arraignment, potential plea bargains,

adjudication, and sentencing.

After a defendant is found guilty, they have the right to appeal the outcome if they believe they were

wrongly convicted or the sentence was too harsh. An appeal is not another trial, but an opportunity for the

defendant to try to raise specific errors that might have occurred at trial. A common appeal is that a decision

from the judge was incorrect – such as whether to suppress certain evidence or to impose a certain sentence.

Appeals are complicated and sometimes result in the case going back to the trial court. A conviction can

get reversed, a sentence altered, or a new trial may be ordered altogether if the Appeals Court decides that

particular course of action. If a circuit court judge decides the appeal, then a defendant can try to appeal

that decision to the United States Supreme Court in Washington, D.C. The United States Supreme Court

is the highest appellate court in the American court system, and they make the final decision concerning a

defendant’s appeal. The Court is not required to hear an appeal in every case and takes only a small number

of cases each year. 7

More details

The courtroom in Valley County Courthouse in Ord, Nebraska. The Beaux-Arts building was constructed in 1920. It is listed in the

National Register of Historic Places.

7. United States Department of Justice. (N.D.). Appeal. https://www.justice.gov/usao/justice-101/appeal

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

In The News: Brendan Dassey

Brendan Dassey, featured in the Netflix documentary The Making of a Murderer in 2015, was charged

with murder as a juvenile. Dassey’s 2007 conviction was questionable because his videotaped confession

with police was problematic. Dassey was 16 without a lawyer or parent present during his confession. He

appeared scared and unaware of the gravity of his situation on camera, and his lawyers say he had a low

IQ in the seventh percentile of children his age, making him susceptible to suggestion. Dassey was found

guilty as an accessory to murder with his uncle Steven Avery in the 2005 murder of Teresa Halbach, a

25-year-old photographer in Manitowoc, Wisconsin. The United States Supreme Court declined to hear

his case and did not provide a statement as to why.

Introduction to the American Criminal Justice System

Video Link Adam Ruins Everything: Why the Public Defender System is So Screwed Up https://www.trutv.com/shows/adam-ruins-everything/videos/why-the-public-defender-system-is-so-

screwed-up.html

Corrections Once a defendant has been found guilty, the correctional system helps carry out the punishment that is

ordered by the court. The defendant may be ordered to pay financial restitution or a fine and not serve time

under a form of incarceration. When an offender gets sentenced to a period of incarceration, at either a jail

or prison, they will serve their sentence under supervision. Offenders that get sentenced to less than a year

will serve their sentence in a local jail, but longer sentences will serve time in prison. However, offenders

can also get sentenced to community-based supervision, such as probation. In this situation, an offender

would get assigned a probation officer (PO), and there would be specific rules they are required to follow.

If an offender violates rules, the PO may request the offender be incarcerated in jail or prison to serve the

remainder of the sentence. 9

Lastly, an essential part of corrections is helping former inmates with prisoner

re-entry or reintegration into society through parole, community-based supervision after serving time in a

locked facility, and may require drug-testing, help with finding employment, education, and social support. 10

8. Victor, D. (2018). Supreme Court Won't Hear Appeal of ‘Making a Murderer' Subject Brendan Dassey. The New York Times. https://www.nytimes.com/2018/06/25/us/brendan-dassey-supreme-court.html

9. , Fuller, J. (2019). Introduction to criminal justice: A brief edition. New York: Oxford University Press. 10. RAND Corporation. (1994-2018). https://www.rand.org/topics/prisoner-reentry.html

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

Introduction to the American Criminal Justice System

1.8. The Crime Control and Due Process Models

SHANELL SANCHEZ

Crime Control and Due Process Model The criminal justice system can be quite complicated, especially in the attempt to punish offenders for

wrongs committed. Society expects the system to be efficient and quick, but the protection of individual

rights and justice fairly delivered. Ultimately, the balance of these goals is ideal, but it can be challenging to

control crime and quickly punish offenders, while also ensuring our constitutional rights are not infringed

upon while delivering justice.

In the 1960s, legal scholar Herbert L. Packer created models to describe exceeding expectations of the

criminal justice system. These two models can be competing ideologies in criminal justice, but we will

discuss how these models can be merged or balanced to work together. The first tension between these

models is often the values they place as most important in the criminal justice system, the crime control

model and the due process model. 1

The crime control model focuses on having an efficient system, with the most important function being to suppress and control crime to ensure that society is safe and there is public order. Under this model,

controlling crime is more important to individual freedom. This model is a more conservative perspective.

In order to protect society and make sure individuals feel free from the threat of crime, the crime control

model would advocate for swift and severe punishment for offenders. Under this model, the justice process

may resemble prosecutors charge an ‘assembly-line’: law enforcement suspects apprehend suspects; the courts

determine guilt; and guilty people receive appropriate, and severe, punishments through the correctional

system. 2

The crime control model may be more likely to take a plea bargain because trials may take too

much time and slow down the process.

Murder in the Gym: Crime Control Model Example by Dr. Sanchez

Imagine working out at the local gym, and a man starts shooting people. This man has no mask on so he is

easy to identify. People call 911 and police promptly respond and can arrest the shooter within minutes. Under

1. Packer, H. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113(1) 2. Roach, K. (1999). Four models of the criminal process. Journal of Criminal Law and Criminology, 89(2), 671-716.

the crime control model, the police should not have to worry too much about how evidence gets collected and

expanded. Investigative, arrest, and search powers would be considered necessary. A crime control model would

see this as a slam dunk and no need to waste time or money by ensuring due process rights. If there were any

legal technicalities, such as warrantless searches of the suspects home, it would obstruct the police from effectively

controlling crime. Effective use of time would be to immediately punish, especially since the gym had cameras

and the man did not attempt to hide his identity. Any risk of violating individual liberties would be considered

secondary over the need to protect and ensure the safety of the community in this model. Additionally, the criminal

justice system is responsible for ensuring victim’s rights, especially helping provide justice for those murdered at the

gym.

The due process model focuses on having a just and fair criminal justice system for all and a system that does not

infringe upon constitutional rights. Further, this model would argue that the system should be more like an ‘obstacle

course,’ rather than an ‘assembly line.’ The protection of individual rights and freedoms is of utmost importance and

has often be aligned more with a liberal perspective. 3

The due process model focuses on having a just and fair criminal justice system for all and a system that does not infringe upon constitutional rights. Further, this model would argue that the system should be more

like an ‘obstacle course,’ rather than an ‘assembly line.’ The protection of individual rights and freedoms is of

utmost importance and has often be aligned more with a liberal perspective. 4

Murder in the Gym: Due Process Model by Dr. Sanchez

Back to the gym murder, the due process model would want to see all the formalized legal practices afforded to

this case in order to hold him accountable for the shooting. If this man did not receive fair and equitable treatment,

then the fear is this can happen to other cases and offenders. Therefore, due process wants the system to move

through all the stages to avoid mistakes and ensure the rights of all suspects and defendants. If the man in the gym

pled not guilty due to the reason of insanity, then he can ask for a jury trial to determine whether he is legally insane.

The courts would then try the case and may present evidence to a jury, ultimately deciding his fate. The goal is not

to be quick, but to be thorough. Because the Bill of Rights protects the defendant’s rights, the criminal justice system

should concentrate on those rights over the victim’s rights, which are not listed. Additionally, limiting police power

would be seen as positive to prevent oppressing individuals and stepping on rights. The rules, procedures, and

guidelines embedded in the Constitution should be the framework of the criminal justice system and controlling

crime would be secondary. Guilt would get established on the facts and if the government legally followed the

correct procedures. If the police searched the gym shooters home without a warrant and took evidence then that

evidence should be inadmissible, even if that means they cannot win the case. 5

3. Packer, H. (1964). Two models of the criminal process, 113 U. PA. L. Rev. 1; Yerkes, M. (1969). The limits of the criminal sanction, by

Herbert L. Packer (1968). Loyola of Los Angeles Law Review 176, 2(1). 4. Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968). Loyola of Los Angeles Law

Review 176, 2(1). 5. Yerkes, M. (1969). The limits of the criminal sanction, by Herbert L. Packer (1968). Loyola of Los Angeles Law

Review 176, 2(1).

Introduction to the American Criminal Justice System

There are several pros and cons to both model; however, there are certain groups and individuals that side

with one more often than the other. The notion that these models may fall along political lines is often

based on previous court decisions, as well as campaign approaches in the U.S. The crime control model is

used when promoting policies that allow the system to get tough, expand police powers, change sentencing

practices such as create “Three Strikes,” and more. The due process model may promote policies that

require the system to focus on individual rights. These rights may include requiring police to inform people

under arrest that they do not have to answer questions with an attorney (Miranda v. Arizona), providing all defendants with an attorney (Gideon v. Wainwright), or shutting down private prisons who often abuse the rights of inmates.

To state that crime control is purely conservative and due process if purely liberal would be too simplistic,

but to recognize that the policies are a reflection of our current political climate is relevant. If Americans

are fearful of crime, and Gallup polls suggest they are, politicians may propose policies that focus on

controlling crime. However, if polls suggest police may have too many powers and that can lead to abuse,

then politicians may propose policies that limit their powers such as requiring warrants to obtain drugs. 6

Again, this may reflect society, a reflection of a part of society, or the interests of a political party or specific

politician.

Exercise

Discuss what the primary goal of the criminal justice system should be: to control crime, ensure due process, or

both? Explain how this opinion may get influenced by individual factors, such as age, gender/sex, race/ethnicity,

economic situation, a country born in, and more. Could goals change with the more education given about

criminal justice? If so, make an argument in favor of education. If not, make an argument against educating the

public on criminal justice.

6. Davis, A. (2016). In the U.S., concern about crime climbs to 15-year high. Gallup Poll.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.9. How Cases Move Through the System

SHANELL SANCHEZ

How Cases Move Through the System The criminal justice process is not what gets portrayed on television, and most cases do not go to trial

or result in a prison sentence. Part of the problem is that our current system is overloaded and ensuring

due process and crime control can be more challenging than one thinks. In order to effectively process

cases through the criminal justice system, discretion is an important tool for police, prosecutors, judges, and

correctional officials. Discretion provides freedom to make decisions, specifically it is the power to make

decisions on issues within legal guidelines. Many people see discretion as for the most powerful tool of the

criminal justice system. 1 2

Exercise on Discretion

Provide an example of discretion, which can be from a teacher in school, a dean, an officer, a judge, or boss.

Describe what discretion impacted life outcomes today. When I was pregnant, my sister and I argued over the

phone. This caused me to cry and emotions took over, which led to being pulled over. I encountered an officer

who was understanding. He then told asked me to drive safely, and because my record was clean, he was not going

to cite me. I was fortunate that I did not have to lose money for a ticket, and still, today, have never had a ticket.

Ethics refers to the understanding of what constitutes good or bad behavior and helps to guide our behaviors. Ethics are important in the criminal justice system because people working in the system get

authority, power, and discretion by the government. 3

Imagine in the above case where the speeding and

swerving occurred because the person drove drunk due to the break-up. It would be unethical for police to

allow them to drive home because they were drinking and driving, which is a crime. Most people would see

it an abuse of discretion if the officer said, “I know you are drunk, but break-ups suck. Please stop crying,

drive home, and forget this happened.” Ethics and discretion often go hand-in-hand.

1. Kessler, D. & Piehl, A. (1998). The role of discretion in the criminal justice system. The Journal of Law, Economics, and Organization, 14(2), 256-276

2. Gottfredson, M., & Gottfredson, D. (1988). Decision making in criminal justice: Toward the rational exercise of discretion. New York: Plenum 3. Sellers, B. (2015). Ethics in policing. Wiley online library.

In the News: How Would an Ethical Officer React? The New York Times wrote an article about ethical policing. Tobkin often asked his recruits, in any given situation, “How would an ethical officer

react?” All recruits were required to take an ethics class called Police Legitimacy, which deals with how

officers are viewed by the public and what they can do to improve or erode those perceptions. “There is

about one patrol officer for every thousand citizens, so if the public does not see us as legitimate and they

do not acknowledge our authority, then we are in big trouble,” Tobkin said. Recruits also closely study the

department’s “use-of-force continuum,” which dictates what level of force is appropriate in response to a

suspect’s behavior: tasers and batons on when a suspect is kicking or punching an officer, but generally not

when a suspect is simply trying to get away. 4

Samuel Walker referred to the criminal justice system as a funnel. In 1967, The President’s Commission on

Law Enforcement and the Administration of Justice published a report on the funneling effect of the criminal

justice system. 5

The criminal justice system is often referred to as a funnel because most cases do not go

through all steps in the system, some because of discretion, and a large portion because they are unknown

to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting,

and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report

and said the report did not account for the crimes unknown to police, often referred to as the dark figure of

crime. He also recognized that the most serious crimes are often reported the most, which may confuse the

public about the reality of other crimes. 6

Others also criticized the report for only looking at reported crimes

and adult crimes, but those issues will be highlighted in our next chapter on data in the criminal justice

system. It is important to recognize that the disparity between crimes that were reported and not reported.

This discrepancy was a shock in the 1970s, especially after the United States started asking people about their

victimization. The number of crimes people say they experienced far exceeded the crimes they reported to

the police. 7

The main idea to understand is that the funnel effect is said to represent how cases move through the

system by the offenses unknown to police verse known, arrests then made, prosecutions, plea bargains or

trials, sentencing, and whether the individual receives probation, prison, or parole. 8

In the News: The Crime Funnel The New York Times wrote an example of the crime funnel. Federal agencies publish numbers of crime that constitute a big funnel. For example, the “35 million

crimes committed each year pour in at the top that can include everything from shoplifting, auto theft and

drunken fights to rapes and murders. Of these, about 25 million are serious, since they involve violence or

4. Sessini, J. (2016). How would an ethical officer act? The New York Times. 5. The challenge of crime in a free society. 1967. NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf 6. Walker, S. (2006). Sense and nonsense about crime and drugs. Cengage: Wadsworth. 7. Anderson, D. (1994). The crime funnel. The New York Times. 8. The challenge of crime in a free society. (1967). NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

sizable property loss. But millions of these crimes go unpunished because the victims never report them.

Only 15 million serious crimes come to the attention of the police.” 9

Samuel Walker referred to the criminal justice system as a funnel. In 1967, The President’s Commission on

Law Enforcement and the Administration of Justice published a report on the funneling effect of the criminal

justice system. 10

The criminal justice system is often referred to as a funnel because most cases do not go

through all steps in the system, some because of discretion, and a large portion because they are unknown

to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting,

and punishing offenders? Does the system properly do its job at all levels? Walker was critical of this report

and said the report did not account for the crimes unknown to police, often referred to as the dark figure of

crime. He also recognized that the most serious crimes get reported the most, which may confuse the public

about the reality of other crimes. 11

Others also criticized the report for only looking at reported crimes and adult crimes, but those issues

will get highlighted in our next chapter on data in the criminal justice system. It is important to recognize

that the disparity between crimes that were reported and not reported. This discrepancy was a shock in

the 1970s, especially after the United States started asking people about their victimization. The number of

crimes people say they experienced far exceeded the crimes they reported to the police. 12

The main idea to understand is that the funnel effect is said to represent how cases move through the

system by the offenses unknown to police verse known, arrests then made, prosecutions, plea bargains or

trials, sentencing, and whether the individual receives probation, prison, or parole. 13

Funnel Effect Example

Imagine selling marijuana to friends every week. No one alerts the cops and the person never gets caught, which

means this remains in the category of offenses unknown to police. However, a friend gets busted selling too close

to an elementary school, so the offense immediately is classified as known to police. An officer can choose to arrest

or not, depending on the amount. If it is illegal in that state to deal, then an ethical officer would arrest and set

discretion aside. However, it is up to the prosecutor to decide whether or not to file charges. If charges get filed, the

friend may be encouraged to plead guilty and ‘get it over with.’ This would be more likely under a crime control

model. However, his/her mom may say “No, I want you to go to trial,” which would be more likely under a due

process model and now that friend now has to decide. If he/she takes the plea bargain, they can skip the trial and

go straight to sentencing. Let us say the plea bargain allowed the friend to avoid jail time and serve 300 hours of

community service, but if convicted this friend could serve one year. Most may take the community service option

9. Anderson, D. (1994). The crime funnel. The New York Times. 10. The challenge of crime in a free society. 1967. NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf 11. Walker, S. (2006). Sense and nonsense about crime and drugs. Cengage: Wadsworth. 12. Anderson, D. (1994). The crime funnel. The New York Times. 13. The Challenge of crime in a free society. (1967). NCJRS. https://www.ncjrs.gov/pdffiles1/nij/42.pdf

Introduction to the American Criminal Justice System

and be under community supervision such as probation. If it were a more serious offense, they may serve a prison

sentence and get paroled under community supervision after a specific amount of time.

The funnel is one way to look at the criminal justice system, but we will see later how it can be much

more complicated then this analogy suggests. It is important to know many crimes are unknown to police,

which we will often refer to as the dark figure of crime. Additionally, plea bargains are a comprehensive

tool, especially since it would cost our society so much to prosecute and allow a trial for every individual

that committed a crime. Costs are a genuine issue that the system faces daily, and if the U.S. were to

punish everyone for violating the law, there would not have any money left over for important things like

education, healthcare, repairing highways, and so much more. We would see most of our taxpayers paying

for just crime control, which may not be the best use of all that money. Again, bringing in the importance

of discretion in the criminal justice system.

Sometimes taking away discretion is excellent and sometimes having too much is wrong, but finding that

balance is very important. Sometimes a judge may use discretion to release a domestic violence offender to

community probation when an officer did not have the discretion to arrest. The judge’s discretion may cause

the victim to get revictimized, but it may not. Some offenders may be at a higher risk of reoffending and able

to determine this is valuable. We will discuss this later when talking about using evidence-based practices in

the criminal justice system.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.10. Media Coverage of Crimes

SHANELL SANCHEZ

Violent Times Example

One morning, after checking email, which is a pretty standard task, my grandfather writes a daily email. This

morning he discusses the violent times we are all living in and how murder is everywhere. He discusses how he

worries about the future of his family members because the United States is a dangerous place to live. He often

provides explanations for this ‘increase in crime’ that I, as a criminologist, know to be untrue. Sometimes he will say

kids are violent because of social media or video games, other times he will blame it on immigrants. Regardless, my

grandfather lives in fear. He is fearful of someone breaking into his home, and at the age of 80, had a security screen

installed in their nice suburban area in Colorado. He avoids downtown Denver because of his belief it is overrun by

‘gang bangers.’ However, where could all these ideas come from for him. My grandfather has never worked in the

criminal justice system, he never studied it, he did not attend college but has such strong thoughts about policies

that need to get enacted, problems with society, and he often states them as a fact. The answer: THE NEWS.

Perhaps watching too much television can cause an overestimation of rates of crime both in reality and on television. 1

Media is not a terrible thing that is conspiring to ruin our minds. Please know it is very beneficial and can

help share information, but we need to be aware of the downfalls of media and even which media we choose

to watch. Do not want to say “I am over the news” because it serves an important purpose! Also, keep in

mind that crime is going DOWN and has been consistently doing so. However, research has shown that

entertainment and news media create an image that we are living in a dangerous world. 2

It can be easy

to become fearful after watching too much news if we let ourselves fall trap to losing the facts. “Factfulness

recognizes when we get negative news, and remembering that information about bad events is much more

1. Hetsroni, A., & Tukachinsky, R. H. (2006). Television-world estimates, real world estimates, and television viewing: A new scheme for cultivation. Journal of Communication, 56, 133-156.

2. Jewkes, Y. (2015). Media and crime (3rd ed.).Thousand Oaks, CA: Sage.

likely to reach us. When things are getting better, we often do not hear about them, which can lead to a

systematically too-negative impression of the world around us, which is very stressful.” 3

Public knowledge of crime and justice derived largely from the media. Research has examined the impact

of media consumption on fear of crime, punitive attitudes, and perceived police effectiveness. Studies have

found that the more crime-related media an individual consumes, the more fearful of crime they are. 4 5

However, we also are attracted to specific types of crime and victims when we choose to consume media.

In other words, the media is aware of our crime preferences and will report on those more. Glassner (2009)

describes what he calls the ‘ideal crime story’ for journalists to report. He notes that society likes to read about

innocent victims, likable people, and the perpetrator needs to be scary and uncaring about the crime. 6

Our society is fascinated with crime and justice, where we spend hours watching films, reading books,

newspapers, magazines, and television broadcasts that keep us constantly engaged in crime “talk.” Perhaps

what we do not always realize is the mass media plays an important role in the construction of criminals,

criminality and the criminal justice system. Our understanding and perceptions of victims, criminals,

deviants, and police largely determined by their portrayal in the mass media. 7

The majority of public knowledge about crime and justice derived from the media. 8 9 10

Since Gallup

polls began asking whether a crime had increased in 1989, a majority of Americans have usually said there is

more crime than there was the year before. There is only one year where people did not think it did, which

followed 9/11. 11

Despite decreases in U.S. violent and property crime rates since 2008, most voters say crime has gotten

worse during that span. Mostly, Americans’ perceptions of crime are often at odds with the data. 12

Research

has also shown that there are stark differences across party lines. Specifically, almost eight-in-ten voters who

supported President Donald Trump (78%) said this, as did 37% of backers of Democrat Hillary Clinton.

Just 5% of pro-Trump voters and a quarter of Clinton supporters said crime has gotten better since 2008,

according to the survey of 3,788 adults. 13

All of this is at odds with official data reports that will get discussed

in more detail in the next chapter. Since this is the case, how do people have this misperception about crime

and criminality? Where do these myths develop?

3. Rosling, H. (2018). Factfulness: Ten reasons we are wrong about the world--and why things are better than you think. Flatiron Books 4. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive

attitudes, and percieved police effectiveness. Journal of Criminal Justice & Popular Culture, 10, 109-126. 5. Kort-Butler, L., & Sittner-Hartshorn, K. (2011). Watching the detectives: Crime programming, fear of crime, and attitudes about the

criminal justice system. The Sociological Quarterly, 52, 36-55. 6. Glassner, B. (2009). The culture of fear: Why Americans are afraid of the wrong things (Rev. ed.). New York: Basic Books. 7. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive

attitudes, and perceived police effectiveness. Journal of Criminal Justice & Popular Culture, 10(2), 109-126. 8. Roberts, J., & Doob, A. (1986). Public estimates of recidivism rates: Consequences of a criminal stereotype." Canadian Journal of

Criminology 28, 229-241; 9. Surette, R. (1990). The media and criminal justice policy: Recent research and social effects. Springfield, IL: Charles C. Thomas.

10. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice. (5th ed). Long Grove: Waveland Press, Inc. 11. Swift, A. (2016). Americans' Perceptions of U.S. Crime Problem Are Steady. Gallup. Social Policy and Issues. https://news.gallup.com/

poll/197318/americans-perceptions-crime-problem-steady.aspx 12. Gramlich, J. (2016). Voters' perceptions of crime continue to conflict with reality. Pew Research Center. http://www.pewresearch.org/

fact-tank/2016/11/16/voters-perceptions-of-crime-continue-to-conflict-with-reality/ 13. Gramlich, J. (2016). Voters' perceptions of crime continue to conflict with reality. Pew Research Center. http://www.pewresearch.org/

fact-tank/2016/11/16/voters-perceptions-of-crime-continue-to-conflict-with-reality/

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

In the News: This clip was broadcast and could create fear in young women and parents of young women who may want to go running in broad daylight. The initial comments that they believed it was a

stranger-rape makes it frightening, even if that is not the most common victimization. https://6abc.com/

news/new-video-shows-ny-woman-on-run-hours-before-murder-/1509645/

The media plays an important role in the perception of crime and the American public’s understanding of

how the criminal justice system operates and policies Americans are willing to support for reform. Public

opinion gets connected with pressure to change crime policies. 14

, especially when there is a high fear of

a certain crime 15

The media can provide the public with an estimation of how much crime there is, the

types of crime that are common, trends in crime rates, and the daily operations of the criminal justice system.

However, the media often does not portray an accurate portrayal of crime and criminal justice. 16

In the News: Follow Up to Case Above https://www.huffingtonpost.com/entry/mistrial-karina- vetrano-killing_us_5bf5909ce4b0eb6d930ad6f9

“Fear is produced more readily in the modern community than it was earlier in our history because of increased

publicity” Edwin Sutherland. 17

Research by the Pew Research Center found that most Americans get their news from social media, despite

having concerns about the accuracy and reliability of those sources. Almost 66 percent of Americans get

news on social media. The majority (57%) say they expect the news they see on social media to be mostly

inaccurate. 18

It appears that convenience outweighs concerns with accuracy.

14. Toch, H., & Maguire, K. (2014). Public opinion regarding crime, criminal justice, and related topics: A retrospect. Journal of Research in Crime & Delinquency, 51, 424-444.

15. Dowler, K. (2003). Media consumption and public attitudes toward crime and justice: The relationship between fear of crime, punitive attitudes, and percieved police effectiveness. Journal of Criminal Justice and Popular Culture, 10, 109-126.

16. Kappeler, V. & Potter, G. (2018). The mythology of crime and criminal justice, (5th ed.). Long Grove: Waveland Press, Inc. 17. Sutherland, E. (1950). The Diffusion of Sexual Psychopath Laws. American Journal of Sociology, 56, 142-148. 18. Matsa, K., & Shearer, E. (2018). News use across social media platforms. The Pew Research Center. http://www.journalism.org/2018/09/

10/news-use-across-social-media-platforms-2018/

Introduction to the American Criminal Justice System

Media Exercise

Go about a daily routine, but record every time crime is discussed. Write down every time it happens such

as watching TV, listening to the news, scrolling through newsfeeds, reading, and more. What was the message?

Listening to the radio on the way to work? The goal is to record anything heard in the day related to crime and

attempt to see the messages one may be receiving. Once enough instances get recorded, write a summary of the

findings.

The media focus their attention on crimes that will capture viewers attention. The more shocking, upsetting,

gruesome, and dramatic the case the better! In the above case of Katrina Vetrano, it is shocking that a

30-year-old woman goes out for a jog and winds up raped and murdered. It is even more shocking that it

is in the day and then adds to it by a stranger. People will click on this case because it preys upon fears, but

this causes problems. How do we devise policies that protect people if we get driven by fear? Women are

more likely to be victimized by people they know, not strangers. However, the media makes it seem like it

is strangers that are most likely to victimize women. Is this problematic? Yellow journalism is the practice of

using sensational stories in print media to attract readers and increase profit, and it works, but not without

problems. 19

While the media plays an important role in creating fear of crime and myths, they are not the only ones

that do so. In subsequent chapters, we will talk about the government, politicians, and power-elites. 20

In the

next section, we will discuss the wedding cake model in an attempt to understanding how what we most

commonly see in the news media can distort our understanding of crime frequency and types of crimes. The

media may report on the stuff that will appear to be interesting, ‘If it bleeds, it leads,’ even if that is the crime

that is less common. Homicides account for more than a quarter of the crime stories on the evening news,

but they represent less than 1 percent of all crimes. 21

In order to get people to read or listen to the story, they

have to capture our attention. How many people want to read about another marijuana arrest? Not many

probably! Most of us want to hear the gruesome crimes that keep us up at night; despite them being rare. By

covering these crimes in-depth, we create fear and distorted reality of crime, criminals, and criminal justice.

Immigration and Crime Exercise

The fear of immigrants bringing crime to the United States is popular rhetoric right now, especially among

politicians https://www.washingtonpost.com/news/politics/wp/2018/06/22/the-original-source-for-trumps-

claim-of-63000-immigrant-murders-bad-data-from-steve-king-in-2005/?utm_term=.f6a353aa5109. In the 2016

election, immigration and crime were one of the most perpetuated myths by Republican candidates, such as Donald

Trump. He demonized media, suggesting they do not also perpetuate this myth https://www.washingtonpost.com/

news/post-politics/wp/2016/08/27/trump-in-undocumented-immigrants-we-are-going-to-get-rid-of-the-

19. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice. (5th ed.). Long Grove: Waveland Press, Inc. 20. Kappeler, V., & Potter, G. (2018). The mythology of crime and criminal justice (5th ed.). Long Grove: Waveland Press, Inc. 21. Dorfman, L., & Schiraldi, V. (April 2001). Off Balance: Youth, Race & Crime in the News. Retrieved April 2006, from

http://www.buildingblocksforyouth.org/media/media.html.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

criminals/?utm_term=.d9962af916ee. Be aware that this fear tactic is not unique to Donald Trump and his campaign

and has been going on forever. Additionally, fear may change, but fear is an excellent tool to get people to

support an agenda. Border control became a hot button, and the argument was that we would remove crime

and criminals. This myth was created and ‘sold’ to citizens via social media, news, films, and other media

outlets.

First, find two news articles that argue that immigrants are dangerous and bring crime to the United States.

Second, read both NPR links https://www.npr.org/2018/06/22/622540331/fact-check-trump-illegal-

immigration-and-crime https://www.npr.org/templates/story/story.php?storyId=5365863

Third, evaluate current belief systems before and after reading these. Write a summary of the knowledge gained

from merely double-checking news outlets.

BONUS: To learn even more go and find peer-reviewed research and government research to support the argument that immigrants do not bring crime and are not more dangerous. Start with Sampson. 2008. Rethinking

Crime and Immigration https://journals.sagepub.com/doi/pdf/10.1525/ctx.2008.7.1.28

Chavez, L. (2001). Covering immigration: Popular images and the politics of the nation. About this book: Media

images not only reflect the national mood but also play a dominant role in shaping national discourse. This book

brings new questions about the media’s influence over the public’s increasing fear of immigration.

Immigration Reduces Crime http://www.umass.edu/preferen/You%20Must%20Read%20This/

Lee%20Immigration%20and%20Crime.pdf

The article below is a great opinion piece about media and crime.

http://articles.latimes.com/2001/apr/15/opinion/op-51152

Introduction to the American Criminal Justice System

1.11. Wedding Cake Model of Justice

SHANELL SANCHEZ

Wedding Cake Model Another model of justice was developed by Samuel Walker that attempts to demonstrate how cases move

through the system and may be treated differently by media and society. This model referred to as the

Wedding Cake Model Theory, is unique because it differentiates types of crimes by how serious the offense

is, the offenders criminal record, and the victim and offender relationship. 1

It is referred to as a wedding

cake because of the different tiers or layers on a cake. Take a moment to glance at the wedding cake image

below and notice that wedding cakes often have different layers and the bottom tends to be the largest with

the top being the smallest. This section will explain what each layer would resemble in the criminal justice

system.

We are going to work our way from the bottom of the cake, or the most significant piece, to the smallest

piece on top. In the criminal justice system, the bottom layer of the model would represent the most

1. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson

significant number of cases handled by the system, which often includes misdemeanors and traffic violations.

This layer may also get comprised of first-time offenders of less severe crimes. 2

Misdemeanors are the

least dangerous types of crimes which can include, depending on where location, public intoxication,

prostitution, graffiti, among others. Imagine getting caught tagging a park wall and never being caught for

a crime before, which is where this crime would fall. These are often the crimes most of us have committed,

but also most of us may not have been caught or punished. A misdemeanor may result in a monetary fine,

rather than jail time.

Bottom-Layer Example (The Largest Portion) Dr. Sanchez

If a person were speeding five over on the interstate, it is unlikely they would get pulled over, or spend time in

court. They are likely to pay the fine which admits guilt. However, if they cannot afford the fine, it would require

them to go to jail, which brings in a whole host of other issues. The bottom layer of the cake often does not require

a person to go to trial because most people with minor crimes are given and accept plea bargains. If one were to go

to jail for a misdemeanor, it is typically for less than one year.

When we previously talked about crime control resembling an assembly line, this tier would be an

example of that: people get cited for everyday violations, people pay their fines rather than go to court,

by paying fines they admit guilt, and their interaction with the system will end. These crimes are the

ones that are seen as so common newspapers will rarely report on them. How often would you like to

read about someone getting cited for speeding ten mph over? Or being arrested for small possession of

marijuana? Although most of these are common marijuana arrests have increased alongside legalization in the

U.S. they are annoying to read about from https://www.forbes.com/sites/tomangell/2018/09/24/marijuana-

arrests-are-increasing-despite-legalization-new-fbi-data-shows/#43134be64c4b

The second tier, or next layer, is comprised of lower-level felonies that may be violent or non-violent.

Again, many of these cases end in a plea bargain and do not end in significant jail or prison time. 3

However,

they consume a significant amount of the courts’ time. For example, Oregon has three different levels or

classes of felonies. Class A is the most serious and can result in up to 20-years imprisonment, Class B can

result in up to 10 years imprisonment, and Class C is the least serious with up to five years. 4

The second tier

would be comprised mostly of Class C felonies.

The third tier is comprised primarily of what most of us know as serious felonies that tend to be violent

and involve offenders with significant criminal histories. In this tier’s cases are more likely to go to trial if the

offender pleads not guilty, and if found guilty, will result in prison time. As stated in the Oregon example,

this would most likely be Class B Felonies and maybe some Class A felonies.

Lastly, the top tier often referred to as celebrated cases, would be the smallest part of the cake and would

be made up of the high-profile cases that tend to be profiled by the media. If found guilty, offenders could

receive significant punishments which may include life imprisonment or the death penalty. The top tier

is less common than the others, but it also the crime we like to think of as really bad. It is also the cases

that garner a lot of news time, and perhaps it is a case that made it to the United States Supreme Court.

2. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson 3. Walker, S. (2006). Sense and nonsense about crime and drugs: A policy guide (6th ed.). Belmont, CA: Thomson 4. https://www.criminaldefenselawyer.com/resources/criminal-defense/felony-offense/oregon-felony-class.htm

Introduction to the American Criminal Justice System

Therefore, the media may glorify these cases, especially if it is a well-known case like O.J. Simpson, Bernie

Madoff, Kobe Bryant, Michael Jackson, Jeffrey Dahmer, and Ted Bundy. Most people know about these

cases, and it may have struck fear into the public, but again, these are garnered more attention because they

are uncommon, committed by people who are famous or shock the public consciousness.

Ted Bundy Obsession Example

Our society is so obsessed with the celebrated cases that we often talk a lot about them, cover them extensively

on the news, and live in fear because of them. Students in a class that are pro-death penalty often say, “I reserve it

for all the Ted Bundy’s in the world.” They are rare, but we fear them! Take this news link that shares images of his

last meals on death row.

https://www.cbsnews.com/pictures/last-meals-of-death-row/8/

The Wedding Cake Model theory not only helps us better understand the operation of the criminal justice

system but also how our perceptions of crime and criminality can be skewed by what gets reported in the

news. It is uncommon for us to hear or read reports on the most common types of crimes, the bottom tier.

When we get bombarded with the crimes that are more at the top, celebrated cases, we may begin to think

that is the reality.

Wedding Cake Model Exercise

Find a case for each tier of the wedding cake model in the news and write up a 500 word summary of where it

fits and why. Lastly, discuss how it may get influenced by our extensive coverage or rare, yet essential news cases.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.12. Street Crime, Corporate Crime, and White-Collar Crime

SHANELL SANCHEZ

As previously demonstrated, crime can be broadly defined, but the two most common types of crime

discussed are, street crime and corporate or white-collar crime. Most people are familiar with street crime

since it is the most commonly discussed amongst politicians, media outlets, and members of society. Every

year the Justice Department puts out an annual report titled “Crime in the United States” which means street

crime but has yet to publish an annual Corporate Crime in the United States report. Most Americans will

find little to nothing on price-fixing, corporate fraud, pollution, or public corruption.

Street Crime Street crime is often broken up into different types and can include acts that occur in both public and

private spaces, as well as interpersonal violence and property crime. According to the Bureau of Justice (BJS),

street crime can include violent crime such as homicide, rape, assault, robbery, and arson. Street crime also

includes property crimes such as larceny, arson, breaking-and-entering, burglary, and motor vehicle theft.

The BJS also collects data on drug crime, hate crimes, and human trafficking, which often fall under the

larger umbrella of street crime. 1

Fear of street crime is real in American society; however, street crime may not be as rampant as many

think. In a 2017 report, the BJS found that the rate of robbery victimization increased from 1.7 per 1,000

persons in 2016 to 2.3 in 2017. Overall, robbery happens to a small percentage of Americans, which also

seems to be a similar trend when looking at the portion of persons age 12 or older who were victims

of violent crime. The BJS noted an increase from 0.98% in 2015 to 1.14% in 2017, but note the small

percentage overall. Further from 2015 to 2017, the percentage of persons who were victims of violent

crime increased among males, whites, those ages 25 to 34, those age 50 and over, and those who had never

married. There are clear risk factors that can be taken into account when attempting to develop policy,

which discussed in subsequent chapters of the book. There were also areas where the BJS noted a downward

trend in crime, such as the decline in the rate of overall property crime from 118.6 victimizations per 1,000

households to 108.4, while the burglary rate fell from 23.7 to 20.6. 2

Polls have consistently found that people are worried about crime in the United States, specifically street

crime. Riffkin (2014) found that people worry about various crimes such as homes getting burglarized

when they were home, the victim of terrorism, attacked while driving their car, murdered, the victim of a

1. https://www.bjs.gov/index.cfm?ty=tp&tid=316 2. Morgan, R., & Truman, J., (December, 2018). NCJ 252472

hate crime, and sexually assaulted https://news.gallup.com/poll/178856/hacking-tops-list-crimes-americans-

worry.aspx. For most people in society, people can go about their daily lives without the fear of being a

victim of street crime. Street crime is important to take seriously, but it is reassuring to note that it is unlikely

to happen to most people. The conversation should happen around why fears are high, especially amongst

those less likely to be a victim. For example, elderly citizens have the greatest fear of street crime, yet they

are the group least likely to experience it. Whereas younger people, especially young men, are less likely to

fear crime and are the most likely to experience it. 3

Gallup polls

Because Americans are often fearful of street crime, for various reasons, resources are devoted to prevention

and protecting the public. The United States spends roughly $265.2 billion dollars a year and employs

more than one million police officers, almost 750,000 correctional officers, and more than 490,000 judicial

and legal personnel on street crime. 4

The Uniform Crime Reports (UCR) estimated in 2015 that financial

loses from property crime at $14.3 billion in 2014 (FBI, 2015a), but keep that number in mind for a

3. Doerner, W. G., & Lab, S.P. (2008). Victimology (5th ed.). Cincinnati, Ohio: Lexis-Nexis. 4. Kyckelhahn, T. (2012). Justice expenditure and employment extracts. Bureau of Justice Statistics

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

minute. 5

Although it is crucial to recognize that street crime does occur, and it impacts certain groups

disproportionately more than others, it is also important to recognize other types of crime less commonly

talked discussed. In fact, the BJS does not have a link that directs people to the next two types of crime

discussed when on their main page of crime type.

Corporate Crime When most people think of crime, they think of acts of interpersonal violence or property crime. The

typical image of a criminal is not someone who is considered a ‘pillar’ in society, especially one who may

have an excellent career, donate to charity, devote time to the community, and engage in ‘normal’ behavior. 6

Corporate crime is an offense committed by a corporation’s officers who pursue illegal activity (various

kinds) in the name of the corporation. The goal is to make money for the business and run a profitable

business, and the representatives of the business. Corporate crime may also include environmental crime if a

corporation damages the environment to earn a profit. 7

As C. Wright Mills (1952) once stated, “corporate

crime creates higher immorality” in U.S. society. 8

Corporate crime inflicts far more damage on society than

all street crime combined, by death, injury, or dollars lost.

Credit Suisse pled guilty to helping thousands of Americans file false income tax returns, and the company

got fined $2.6 billion. Last year, BNP Paribas pled guilty to violating trade sanctions and was forced to pay

$8.9 billion, which exceeds the yearly out of pocket yearly costs of all the burglaries and robberies in the

United States ($4.5 billion in 2014 according to the FBI). Another example is health care fraud. The estimates

suggest this costs Americans $100 billion to $400 billion a year. 9

In 2001, the energy company Enron committed accounting and corporate fraud, where shareholders lost $74

billion in the four years leading to its bankruptcy, thousands of employees lost jobs, and billions of dollars

got lost in pension plans. 10

In addition to financial loss, corporate crime can be violent. In 2016, the FBI estimated the number

of murders in the nation to be 17,250. 11

Compare 54,000 Americans who die every year on the job or

from occupational diseases such as black lung and asbestosis and the additional tens of thousands of other

Americans who fall victim every year to the silent violence of pollution, contaminated foods, hazardous

consumer products, and hospital malpractice. 12

A vast majority of these deaths are often the result of criminal

recklessness. Americans are rarely made aware of them, and they rarely make their way through the criminal

justice system.

The last major homicide prosecution brought against a major American corporation was in 1980. A

Republican Indiana prosecutor charged Ford Motor Co. with homicide for the deaths of three teenaged girls

who died when their Ford Pinto caught on fire after being rear-ended in northern Indiana. The prosecutor

alleged that Ford knew that it was marketing a defective product, with a gas tank that crushed when rear-

ended, spilling fuel, where the girls incinerated to death. Ford hired a criminal defense lawyer who in turn

hired the best friend of the judge as local counsel, and who, as a result, secured a not guilty verdict after

5. FBI. (2015b), September 28). Latest crime stats released. Washington, DC: US Department of Justice. 6. Fuller, J.R. (2019). Introduction to criminal justice. New York, Oxford: Oxford University Press. 7. Fuller, J.R. (2019). Introduction to criminal justice. New York, Oxford: Oxford University Press. 8. Horowitz, I. (Ed.) (2008), Power, politics, and people. Wright Mills, C. (1952). A diagnosis of moral uneasiness (pp.330-339). New York:

Ballantine. 9. (2000). License To Steal: How Fraud Bleeds America's Health Care System. Westview Press.

10. Folger, J. (November, 2011). The Enron collapse: A look back. Investopedia. Retrieved from https://www.investopedia.com/updates/ enron-scandal-summary/

11. FBI: UCR. 2016. FBI Murder. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/murder 12. Mokhiber, R. Corporate crime & violence: Big business power and the abuse of the public trust. Random House, Inc.

Introduction to the American Criminal Justice System

persuading the judge to keep key evidence out of the jury room. 13

https://www.history.com/this-day-in-

history/fatal-ford-pinto-crash-in-indiana.

Sometimes the terms corporate and white-collar crime are used interchangeably, but there are important

distinctions between the two terms. 14

White-Collar Crime In contrast to corporate crime, white-collar crime usually involves employees harming the individual

corporation. Sometimes corporate and white-collar crime goes hand in hand, but not always. An example

of white-collar crime would be the financial offenses of Bernard Madoff, who defrauded his investors of

approximately $20 billion. Instead of trading stocks with his clients’ money, Madoff had for years been

operating an enormous Ponzi scheme, paying off old investors with money he got from new ones.

By late 2008, with the economy in free fall, Madoff could no longer attract new money, and the scheme

collapsed, which resulted in hundreds of investors, including numerous charities, being wiped out. As of

today, a court-appointed trustee has managed to recover about $13 billion, which is most of the money

Madoff’s investors put into his funds. The trustee sold off Madoff family’s assets, including their homes in the

Hamptons, Manhattan, and France and a 55-foot yacht named Bull. 15

Dr. Sanchez’s Professor in Graduate School

In 2008, many people were negatively impacted by Madoff, one of which was a former professor for Dr. Sanchez.

He lost his retirement, which required him to keep teaching well into his 80’s, as well as lost his home. The impact

of Madoff was far-reaching and although most may call it a purely economic crime, people committed suicide and

lost everything in this scandal.

No official program measures corporate and white-collar crime like there is with street crime occurring in

the United States. Therefore, we estimate costs to society, and who the victims are. Additionally, unlike street

crime where the crime can often be discovered instantly and investigated quickly, corporate and white-collar

crime can take years to investigate and even longer to prosecute. Remember, Madoff was involved in fraud

most of his working life but were not caught until he was nearing the end at the age of 71. 16

13. Steinzor, R. (Dec. 2014). It’s called 'Why Not Jail?': Industrial catastrophes, corporate malfeasance, and government inaction. Cambridge University Press.

14. Kleck, G. (1982). On the use of self-report data to determine the class distribution of criminal and delinquent behavior." American Sociological Review, 427-433.

15. Zarroli, J. (2018). For Madoff victims, scars remain 10 years later, National Public Radio, https://www.npr.org/2018/12/23/678238031/ for-madoff-victims-scars-remain-10-years-later

16. Fuller, J.R. (2019). Introduction to Criminal Justice. New York: Oxford, Oxford University Press.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.13. Different Types of Crimes and Offenses

SHANELL SANCHEZ

Once an act gets identified as a crime, the law then attempts to define crime in a way that can distinguish

the harm done and the severity of the crime. There are different types of crime and two different types of

offenses that will get discussed. In the previous section, street crime, corporate crime, and white-collar crime

get discussed. However, more broadly, there are crimes against the person, crimes against property, crimes

against public order, and drug crime that typically get counted and fall under street crime.

Crimes Against the Person Crimes against the person are often considered the most serious and may include homicide, rape,

assault, kidnapping, and intimate partner violence. Each of these crimes can carry a different penalty

based upon the seriousness of the crime. For example, because Ted Bundy murdered women, rather

than ‘just’ assaulted, Bundy was eligible for capital punishment in the U.S. The state defines the crime

and the punishment.

Crimes Against Property Property crimes are widespread and seen as less severe than crimes against the person. Property crimes

may include larceny, burglary, arson, and trespassing. There are varying degrees of liability depending

on the circumstances of the case.

Crimes Against Public Order Public order crimes may not harm other people or property but impact social order. Think back to

the example of feeding homeless in community’s where that is illegal. Other typical examples would

be disorderly conduct, loitering, and driving under the influence. The victim is society, and the goal

is to maintain social order. Many debates whether certain crimes against public order are more or less

severe, but get inappropriately punished. For example, driving while intoxicated can take lives and may

be more severe. However, the law will charge for vehicular manslaughter or murder if life gets taken

because someone drove drunk.

Drug Offenses Most often drug offenses can be seen as a crime against public order, but the United States reaction to

illegal drug use has altered the resources of the CJ system because of the “war on drugs.” Some examples

of drug offenses can be possession of illegal drugs, being high, and selling. Punishment will vary based

on the drug, how much of the drug is in possession or sold, and where it gets sold.

Misdemeanor

A misdemeanor is considered a minor criminal offense that is punishable by a fine and jail time for up

to one year.

Felony A felony is an offense that is punishable by a sentence of more than one year in state or federal prison

and sometimes by death.

Many different types of crimes and punishments can be handed out by the criminal justice system. Each

state determines what and how this will operate if discussing state-level crime. Other crimes are defined in

federal statutes and can get punished at the federal level such as treason. Some crimes are seen as more severe,

especially if they are violent in nature or harm people. Others may get seen as a ‘victimless’ or behavior that

gets seen as consensual, yet undesirable to those making the laws. This general overview demonstrates the

complexity of defining crime and understanding the role society has in shaping these perceptions.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.14. Victims and Victim Typologies

SHANELL SANCHEZ

It was not until 1660 that the word victim was first used to in the sense of a person who is hurt, tortured or

killed by another. A victim of crime did not exist until well into the 17th century. Why were victims ignored

for so long? 1

A victim is an integral part of the system, in fact, some say without a victim there would be no

need for the CJ system. Victims are the people or communities that suffer physical, emotional, or financial

harm as a result of a crime. Over the years different typologies of victims have been created to demonstrate

the unique role or position of victims in relation to crime. Typically, when people hear someone has been a

victim of a crime we often think of them as completely innocent. In fact, a lot of new legislation and policy

changes created to provide the victim with a greater role in the CJ offers the stereotypical view of the victim

as completely innocent. 2

Typologies of Crime Victims Theorists have developed victim typologies that are concerned primarily with the situational and personal

characteristics of victims and the relationship between victims and offenders. Benjamin Mendelsohn was one

of the first criminologists to create a victim typology, in the 1950s, but was not without controversy. Below

is a table of Mendelsohn’s typology of crime victims and as you can see he placed a lot of emphasis on most

victims attitude that leads to their victimization. 3

Mendelsohn’s Typology of Crime Victims

1. Hagemann, O., Schäfer, P., & Schmidt, S. (Eds.) (2010). Victimology, Victim Assistance, and Criminal Justice: Perspectives Shared by International Experts Wemmers, J. A short history of victimology. at the Inter-University Centre of Dubrovnik. 2010. Available at SSRN: https://ssrn.com/abstract=2482627

2. Fuller, J.R. (2019). Introduction to Criminal Justice: New York: Oxford University Press. 3. Mendelsohn, B. (1976). Victimology and contemporary society's trends. Victimology, 1(1), 8-28.

Innocent victim Someone who did not contribute to the victimization and is in the wrong place at the wrong time. This is the victim we most often envision when thinking about enhancing victim rights.

The victim with minor guilt

Does not actively participate in their victimization but contributes to it in some minor degree, such as frequenting high-crime areas. This would be a person that continues to go to a bar that is known for nightly assault.

The guilty victim, guilty offender Victim and offender may have engaged in criminal activity together. This would be two people attempting to steal a car, rob a store, sell drugs, etc.

The guilty offender, guiltier victim The victim may have been the primary attacker, but theoffender won the fight.

Guilty victim The victim instigated a conflict but is killed in self-defense. An example would be an abused woman killing her partner while he is abusing her.

Imaginary victim Some people pretend to be victims and are not. This would besomeone falsifying reports.

Other criminologists developed similar typologies but included other elements. For example, Hans Von

Hentig expanded his typology from situational factors that Mendelsohn looked at and considered the role

of biological, sociological and psychological factors. For example, Von Henting said the young, elderly, and

women are more susceptible to victimization because of things such as physical vulnerabilities. It is important

to recognize that some crimes, and ultimately crime victims, are excluded in these typologies such as white-

collar and corporate crime. 4 5

Von Hentig’s Typology

Young people Immature, under adult supervision, lack physical strength and lack the mental and emotional maturity to recognize victimization

Females/elderly Lack of physical strength

Mentally ill/intellectually disabled Can be taken advantage of easily

Immigrants Cannot understand language or threat of deportation makesthem vulnerable

Minorities Marginalized in society, so vulnerable to victimization.

Dull normals Reasonably intelligent people who are naive or vulnerable insome way. These people are easily deceived.

The depressed The acquisitive

Gullable, easily swayed, and not vigilant. Greedy and can be targeted for scammers who would take advantage of their desire for financial gain.

The lonesome and broken-hearted Often prone to victimization by intimate partners. They desire to be with someone at any cost. They are susceptible to manipulation.

Tormentors Primary abusers in relationships and become victims when theone being abused turns on them.

Blocked, exempted, and fighting victims Enter situations in which they are taken advantage such asblackmail.

Von Hentig’s work was the basis for later theories of victim precipitation. Victim precipitation suggests

4. Burgess, A. W. (2013). Victimology: Theories and applications. (3rd ed.). Burlington: Jones and Bartlett. 5. Von Hentig, H. (1948). The criminal and his victim: Studies in the sociobiology of crime. New Haven: Yale University Press.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

many victims play a role in their victimization. First, the victim acted first during the course of the

offense, and second that the victim instigated the commission of the offense. 6

It is important to note that

criminologists were attempting to demonstrate that victims may have some role in the victimization and

are not truly innocent. Today we often recognize the role in victimization without blaming the individual

because ultimately the person who offended is the person who offended.

6. Smith, M., & Bouffard, L. A. (2014). "Victim precipitation." The Encyclopedia of Criminology and Criminal Justice, Wiley Online Library.

Introduction to the American Criminal Justice System

1.15. Victim Rights and Assistance

SHANELL SANCHEZ

Definition of a Victim The CJ system refers to a victim as a person who has been directly harmed by a crime that was committed

by another person. In some states, victims’ rights apply only to victims of felonies (more serious crimes) while

other states also grant legal rights to victims of misdemeanors (less serious crimes). Some states allow a family

member of a homicide victim or the parent or guardian of a minor, incompetent person, or person with a

disability to exercise these rights on behalf of the victims. 1

The U.S. criminal justice system first introduced services for victims of federal criminal offenses during the

1980s. In the 1990s it was made law and Congress created the Victim’s Rights and Restitution Act H.R.5368.

The Act requires all Federal law enforcement agency officers and employees to make their best efforts to

accord victims of crime with the right to (1) be treated with fairness and respect for the victim’s dignity and

privacy; (2) be protected from their accused offenders; (3) notification of court proceedings; (4) attend public

court proceedings related to the offense under certain conditions; (5) confer with the Government attorney

assigned to the case; (6) restitution; and (7) information about the conviction, sentencing, imprisonment, and

release of the offender. Directs Federal law enforcement agency heads to designate the persons responsible

for identifying the victims of a crime and providing certain services to such victims such as: (1) informing

them where to receive medical care and counseling; (2) arranging protection from an offender; and (3)

keeping the victim informed of developments during the investigation and prosecution of the crime and

after the trial such as the arrest of a suspected offender or an escape of a convicted offender. 2

The state prosecutes criminal offenses in the name of society, which is why cases are Smith v. Colorado,

so victims and families were often not included in the process since they were not a necessary part of the

court system. Today we have introduced various rights and include victim-impact statements. Victim- impact statements given an account by the victim, the victim’s family, or others affected by the offense that

expressed the effects of the offense. 3

1. The National Center for Victims of Crime. (2012). Victim's rights. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins- for-crime-victims/victims%27-rights

2. https://www.congress.gov/bill/101st-congress/house-bill/5368 H.R.5368 - Victims' Rights and Restitution Act of 1990 101st Congress (1989-1990)

3. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/victims%27-rights

Victim Impact Statements Video: Listen and Learn

You will watch victim impact statements that were created to help educate people on the impact of various

crimes. Warning: It is hard to watch at times and may cause you to feel upset, sad, angry, or more.

• First, watch the youtube video https://www.youtube.com/watch?v=_ghpl4vDZ3s

• Second, write a 500-word response about the benefits of victim-impact statements, the impact the

film had on you, and any other general thoughts you had while watching.

Victim Rights Today, all states and the federal government have passed laws to establish a set of victims’ rights. The main

goal of these laws is to provide victims with certain information and protections. It is important to note that

victims’ rights, just like criminal offenses, will depend on the jurisdiction where the crime is investigated and

prosecuted. The rights may vary state, federal or tribal government, or military installation. 4

Overview of Victim’s Rights Below is a list of basic victims’ rights from the National Center for Victims of Crime that are provided by

law in most jurisdictions. Again, it is important to remember these rights vary, depending on federal, state,

or tribal law.

1. Right to be Treated with Dignity, Respect, and Sensitivity

1. Victims generally have the right to be treated with courtesy, fairness, and care by

law enforcement and other officials throughout the entire criminal justice process.

This right is included in the constitutions of most states that have victims’ rights

amendments and in the statutes of more than half the states.2 Victim impact

statements allow crime victims, during the decision-making process on sentencing

or parole, to describe to the court or parole board the impact of the crime on

their lives. The victim impact statement may include a description of psychological,

financial, physical, or emotional harm the victim experienced as a result of the crime.

A judge may use information from these statements to help determine an offender’s

sentence; a parole board may use such information to help decide whether to grant

parole and what conditions to impose in releasing an offender. Many victims have

reported that making victim impact statements improved their satisfaction with the

criminal justice process and helped them recover from the crime. In some states, the

4. The National Center for Victims of Crime. (2012). Victim's rights. http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins- for-crime-victims/victims%27-rights

Introduction to the American Criminal Justice System

prosecutor is required to confer with the victim before making important decisions.

In all states, however, the prosecutor (and not the victim) makes decisions about the

case.

2. Right to Be Informed

1. The purpose of this right is to make sure that victims have the information they

need to exercise their rights and to seek services and resources that are available to

them. Victims generally have the right to receive information about victims’ rights,

victim compensation (see “Right to Apply for Compensation,” below), available

services and resources, how to contact criminal justice officials, and what to expect

in the criminal justice system. Victims also usually have the right to receive

notification of important events in their cases. Although state laws vary, most states

require that victims receive notice of the following events:

▪ the arrest and arraignment of the offender

▪ bail proceedings

▪ pretrial proceedings

▪ dismissal of charges

▪ plea negotiations

▪ trial

▪ sentencing

▪ appeals

▪ probation or parole hearings

▪ release or escape of the offender

States have different ways of providing such information to victims. Usually,

information about court proceedings is mailed to the victim. Some states have an

automated victim notification system that automatically calls or e-mails the victim

with updates on the status of the offender, while others require the victim to

telephone the authorities to receive such updates.

3. Right to Protection

1. In many states, victims have the right to protection from threats, intimidation, or

retaliation during criminal proceedings. Depending on the jurisdiction, victims may

receive the following types of protection:

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

▪ police escorts

▪ witness protection programs

▪ relocation

▪ restraining orders

Some states also have laws to protect the employment of victims who are

attending criminal proceedings (see “Right to Attend Criminal Proceedings,”

above).

4. Right to Apply for Compensation

1. All states provide crime victim compensation to reimburse victims of violent

crime for some of the out-of-pocket expenses that resulted from the crime. The

purpose of compensation is to recognize victims’ financial losses and to help them

recover some of these costs. All states have a cap on the total compensation award

for each crime, and not all crime-related expenses are covered. To be eligible for

compensation, victims must submit an application, usually within a certain period of

time, and show that the losses they are claiming occurred through no fault of their

own. Some types of losses that are usually covered include:

▪ medical and counseling expenses

▪ lost wages

▪ funeral expenses

Compensation programs seldom cover property loss or pain and suffering. Also,

victim compensation is a payer of last resort; compensation programs will not cover

expenses that can be paid by some other program, such as health insurance or

workman’s compensation.

5. Right to Restitution from the Offender

1. In many states, victims of crime have the right to restitution, which means the

offender must pay to repair some of the damage that resulted from the crime. The

purpose of this right is to hold offenders directly responsible to victims for the

financial harm they caused. The court orders the offender to pay a specific amount of

restitution either in a lump sum or a series of payments. Some types of losses covered

by restitution include:

2. lost wages

3. property loss

Introduction to the American Criminal Justice System

4. insurance deductibles

6. Right to Prompt Return of Personal Property

1. Crime investigators must often seize some of the victim’s property as evidence

for a criminal case. In most states, authorities must return such property to the

victim when it is no longer needed. To speed up the return of property, some states

allow law enforcement to use photographs of the item, rather than the item itself, as

evidence. The prompt return of personal property reduces inconvenience to victims

and helps restore their sense of security.

7. Right to a Speedy Trial

8. Right to Enforcement of Victim’s Rights

1. To be meaningful, legal rights must be enforced. States are beginning to pass

laws to enforce victims’ rights, and several states have created offices to receive and

investigate reports of violations of victims’ rights. Other states have laws that permit

victims to assert their rights in court.

5. National Center for Victims of Crime. (2012). http://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/ victims%27-rights

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

1.16. "Spare the Rod, Spoil the Child" Myth/Controversy

This unit delved into theories of criminal behavior, and the previous unit sought crime control policies.

Each theory suggests an appropriate means to reduce or prevent violence. Some work and some do not.

Deterrence theories operate on the assumption that people want to minimize pain. Learning theories suggest

people may learn how to be a criminal (or learn how not to be a criminal). Disciplining children is a primary

function of the family. Many people believe it is acceptable, or even necessary, to spank their children.

Spanking is a form of corporal punishment. Why do parents spank their children? For some parents, they

spank as a form of punishment (Remember operant conditioning? It is a form of positive punishment). They

are using physical means to stop a behavior from happening again. These are ideological beliefs.

Other parents might say that they’ve been spanked as a child, and they turned out fine. This belief

reinforces the family upbringing myth. Additionally, other parents might feel pressure to discipline their

child with physical force. Some parents “think” they seem “weak” if they do not spank their child.

Furthermore, grandparents and other family members might encourage new parents to spank their children.

Please listen or read the National Public Radio’s podcast on spanking (NPR’s – “The American Academy

of Pediatrics On Spanking Children: Don’t Do It, Ever.”)

There is a difference between physical discipline and physical abuse, but it is a fine line. If you are in favor

of spanking, would you let another family member spank your child? Would you let a stranger? Why or

why not? It is not illegal to spank children in the United States, but decades of research have recommended

other methods of punishment and discipline besides physical force. At the very least, it is easy for children

to learn that violence (spanking) is an appropriate method to get what you want. Parents who spank their

children because their child “hit” another child or sibling might want to reflect on a child may learn – “I’m

going to hit (spank) you for hitting another person. Don’t hit!”

2: Defining and Measuring Crime

and Criminal Justice

Learning Objectives

In the previous section, we spent much time trying to understand how to define crime, whereas this section will

focus on the task of measuring crime. Measuring crime is quite complex and requires an understanding of different

data sets and how we use them. Defining crime seems complex, but measuring crime is just as complicated of a task.

Without crime, there is no need for the criminal justice system. We must have a clear and accurate understanding

of crime in order to create effective policies to combat it or help minimize it. This section will teach students how

to obtain accurate measures of crime so that they can be an informed citizen. Further, if we have an accurate picture

of crime and trends, we can better predict the needs of our society, such as increased patrol, rehabilitation services,

and more. We will also spend some time talking about evidence-based practices, discussed in greater detail later.

After reading this section, students will be able to:

• Develop an understanding of the different data sources used to gather precise and accurate measures

of crime

• Recognize the difference between official or reported statistics, self-report statistics, and victimization

statistics

• Evaluate the reliability of statistics and data heard about the criminal justice system

Critical Thinking Questions

1. What are the three different types of data sources we often rely on in CJ?

2. What are the strengths and limitations of each data source?

3. Identify when each type of data source would be appropriate for different crimes and why.

2.1. Dark or Hidden Figure of Crime

SHANELL SANCHEZ

It is difficult to determine that amount of crime that occurs in our communities every year because many

crimes never come to the attention of the criminal justice system. There are various reasons that will be

discussed, such as victims not reporting, victims not realizing they are victims, and offenders not getting

caught. Research reveals, that on average, more than half of the nation’s violent crimes, or nearly 3.4 million

violent victimizations per year, went unreported to the police between 2006 and 2010, according to a

new report published by the Bureau of Justice Statistics (BJS). 1

Because of this underreporting of crime,

criminologists often refer to a concept known as the dark figure of crime.

There are three general sources of crime statistics that will be covered in this chapter: official statistics,

which we often describe as reported statistics, self-report statistics, and victimization statistics. Each of these

sources of crime statistics has pros and cons, and we will spend time discussing those as well. Additionally, we

will discuss the importance of looking at crime trends over time, relying upon statistics and research when

developing policy, and how data should be a tool that enhances the criminal justice system.

If we have accurate and reliable crime statistics, we can evaluate criminal justice policies and programs. For

example, we could use crime statistics to see if incarcerating drug offenders is effective. Such effectiveness

is studied in the correctional system via the ‘risk principal,’ or classifying people based on the level of risk.

https://heinonline.org/HOL/LandingPage?handle=hein.journals/fedsen27&div=37&id=&page=

Relying on official statistics can be problematic to grasp a correct understanding of crime in society

because many crimes never even come to the attention of the criminal justice system. Official statistics are

often the crimes that are known or reported to police or others. It may seem shocking that people do not

report crimes, but it is more common than we think. Let us take the example of looking at the gap between

reported and unreported crimes.

Dark Figure of Crime Example

My father-in-law grew up in a small town in South Dakota. When his family moved to Colorado, they still had

a rural mindset to their property. They often think people should not touch other peoples things, so there is no

1. Bureau of Justice Statistics. (2012). Nearly 3.4 million violent crimes per year. https://www.bjs.gov/content/pub/press/vnrp0610pr.cfm

need to lock up their house, car, or other property. He leaves his vehicle, house, and garage unlocked in Colorado

because of that mindset. However, they live in a large, populous part of Colorado in a suburb outside Denver. Most

people do not know the neighbor three doors down. One morning he woke up to his truck gone! The first thing

he did was realize he left the keys in the truck and the truck was unlocked (normal to him). Next, he decided to

take a walk to look for it before phoning the police. He located the truck, and it was damaged. It appeared that kids

took it for a joy ride, as evidence from the beer cans and odor. He chose not to call the police. Why? He was happy

the property had was located, yet he believed ‘it was his fault,’ and he had to get to work. Is this type of reaction

more common than we may think?

A friend of mine was a victim of domestic violence for over nine months and never told anyone, especially police.

Her boyfriend was only presented as perfect, loving, and romantic on social media and around people. When she

did come forward, it was after she landed in the emergency room due to him assaulting her. People may initially

think domestic violence victims would always call the police, but there are so many reasons people do not come

forward.

When victims of crime do not report, or police are not made aware of a crime these crimes go uncounted in the

official statistics. They become part of the ‘dark figure of crime‘ that we will learn about throughout this section. 2

Some Reasons People May Not Report 3

1. The victim may not know a crime occurred

2. The offender is a member of the family, a friend, or an acquaintance

3. The victim thinks it is not worth reporting

4. The victim may fear retaliation

5. The victim may also have committed a crime

6. The victim does not trust the police

2. Biderman, A., & Reiss, A. (1967). On exploring the "dark figure of crime." The Annals of the American Academy of Political and Social Science. 374(1), 1–15. https://doi.org/10.1177/000271626737400102

3. Brantingham, P., & Brantingham, P. (1984). Patterns in Crime, New York: Macmillan.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

2.2. Official Statistics

SHANELL SANCHEZ

Despite being aware that crime does go unreported, it is still important to estimate and attempt to measure

crime in the country. However, it is essential always to be aware of the data sources strengths and weaknesses

when reading crime statistics. Also, be cautious of how changing data collection techniques may alter

statistics. For example, if a survey never collected data on prescription drug abuse but then all of a sudden

does it could seem like prescription drugs are being abused at high rates. However, it is most likely just

because it is the first time the questions got asked and there are no comparison groups.

Official statistics are gathered from various criminal justice agencies, such as the police and courts, and represent the total number of crimes reported to the police or the number of arrests made by that agency.

Remember, if an officer uses discretion and does not arrest a person, even if a crime was committed, this does

not get reported.

The Federal Bureau of Investigation’s (FBI’s) Uniform Crime Reports (UCR) is the largest, most common

data on crime currently available. The UCR lists the number of crimes that were reported to the police

and the number of arrests made. The link below can take you to the UCR homepage https://www.fbi.gov/

services/cjis/ucr.

The UCR Program’s primary objective is to generate reliable information for use in law enforcement

administration, operation, and management. Various groups and agencies rely upon the UCR crime data,

such as law enforcement executives, students, researchers, the media, and the public at large seeking

information on crime in the nation. 1

The UCR began in 1929 by the International Association of Chiefs of

Police to meet the need for reliable uniform crime statistics for the nation. In 1930, the FBI was tasked with

collecting, publishing, and archiving those statistics. Every year there are four annual publications produced

from data received from more than 18,000 city, university and college, county, state, tribal, and federal law

enforcement agencies voluntarily participating in the program. 2

The UCR Program consists of four data collections: The National Incident-Based Reporting System

(NIBRS), the Summary Reporting System (SRS), the Law Enforcement Officers Killed and Assaulted

(LEOKA) Program, and the Hate Crime Statistics Program. The UCR also publishes special reports on

Cargo Theft, Human Trafficking, and NIBRS topical studies. The UCR Program will manage the new

National Use-of-Force Data Collection.

1. U.S. Department of Justice. (2017). UCR Reports 2. U.S. Department of Justice. (2017). UCR Reports

National Incident-Based Reporting System, or NIBRS The National Incident-Based Reporting System, or NIBRS, was created to improve the overall quality

of crime data collected by law enforcement. NIBRS is unique because it collects data on crimes reported

to the police, but also incidents where multiple crimes are committed, for example when a robbery

escalates into a rape. 3

NIBRS also collects information on victims, known offenders, relationships between

victims and offenders, arrestees, and property involved in the crimes. See the link to go directly to

NIBRS https://www.fbi.gov/services/cjis/ucr/nibrs

Hate Crime Statistics Congress passed the Hate Crime Statistics Act, 28 U.S.C. § 534, on April 23, 1990. This required

the attorney general to collect data “about crimes that manifest evidence of prejudice based on race,

religion, sexual orientation, or ethnicity.” Hate crime statistics may assist law enforcement agencies, provide

lawmakers with justification for certain legislation, provide the media with credible information, or simply

show hate crime victims that they are not alone (FBI, 2018). See the link to go to the FBI’s hate crime

statistics link https://www.fbi.gov/services/cjis/ucr/hate-crime.

The FBI UCR Program’s Hate Crime Data Collection gathers data on the following biases:

Race/Ethnicity/Ancestry

• Anti-American Indian or Alaska Native

• Anti-Arab

• Anti-Asian

• Anti-Black or African American

• Anti-Hispanic or Latino

• Anti-Multiple Races, Group

• Anti-Native Hawaiian or Other Pacific Islander

• Anti-Other Race/Ethnicity/Ancestry

• Anti-White

Religion

• Anti-Buddhist

• Anti-Catholic

• Anti-Eastern Orthodox (Russian, Greek, Other)

• Anti-Hindu

3. Rantala, R. R. (2000). Effects of NIBRS on crime statistics. Bureau of Justice Statistics Special Report. U.S. Department of Justice, Office of Justice Programs. Washington, DC.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

• Anti-Islamic

• Anti-Jehovah’s Witness

• Anti-Jewish

• Anti-Mormon

• Anti-Multiple Religions, Group

• Anti-Other Christian

• Anti-Other Religion

• Anti-Protestant

• Anti-Atheism/Agnosticism/etc.

Sexual Orientation

• Anti-Bisexual

• Anti-Gay (Male)

• Anti-Heterosexual

• Anti-Lesbian

• Anti-Lesbian, Gay, Bisexual, or Transgender (Mixed Group)

Disability

• Anti-Mental Disability

• Anti-Physical Disability

Gender

• Anti-Male

• Anti-Female

Gender Identity

• Anti-Transgender

• Anti-Gender Non-Conforming

Introduction to the American Criminal Justice System

The types of hate crimes reported to the FBI are broken down by specific categories. The aggregate hate

crime data collected for each incident include the following:

• Incidents and offenses by bias motivation: Includes crimes committed by and against juveniles. Incidents may include one or more offense types.

• Victims: The types of victims collected for hate crime incidents include individuals (adults and juveniles), businesses, institutions, and society as a whole.

• Offenders: The number of offenders (adults and juveniles), and when possible, the race and ethnicity of the offender or offenders as a group.

• Location type: One of 46 location types can be designated.

• Hate crime by jurisdiction: Includes data about hate crimes by state and agency.

Law Enforcement Officers Killed and Assaulted Program LEOKA LEOKA provides data and training that helps keep law enforcement officers by providing relevant,

high quality, potentially lifesaving information to law enforcement agencies focusing on why an incident

occurred as opposed to what occurred during the incident, with the hope of preventing future incidents. 4

4. FBI (2017). https://www.fbi.gov/services/cjis/ucr/leoka

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

LEOKA Data

Exclusions from the LEOKA Program’s Data Collection

Deaths resulting from the following are not included in the LEOKA Program’s statistics:

• Natural causes such as heart attack, stroke, aneurysm, etc.

• On duty, but death is attributed to their own personal situation such as domestic violence,

neighbor conflict, etc.

• Suicide

Examples of job positions not typically included in the LEOKA Program’s statistics (unless they meet the

above exception) follow:

• Corrections/correctional officers

• Bailiffs

• Parole/probation officers

• Federal judges

• The U.S. and assistant U.S. attorneys

Introduction to the American Criminal Justice System

• Bureau of Prison officers

• Private security officers

All of these official statistics are a great starting point, although, recognize they are imperfect in nature. Police

agencies can change their attention to certain events, which can change the overall number of arrests. For

example, if police begin cracking down on domestic violence the statistics may go up. This crackdown can

make it appear that the problem has increased, although it can be related to the crackdown. Just remember,

if the crime is not reported, or no arrest is made it will not get captured in the data.

Bureau of Justice Statistics Exercise

The BJS is relatively user-friendly. Look at crime statistics by state, region, or city, and explore different years

and crime types.

https://www.bjs.gov/index.cfm?ty=datool&surl=/arrests/index.cfm

Examine current state AND city crime trends in the past five years.

Second, pick a state AND city interested in living in and examine the crime trends for the past five years.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

2.3. Victimization Studies

SHANELL SANCHEZ

Victimization studies attempt to fill in where police reports are missing by asking people if they have been a victim of a crime in a given year, reported or not. The National Crime Victimization Survey (NCVS) is

the primary source of information on criminal victimization in the United States. The NCVS helps fill in

gaps that the UCR and NIBRS cannot fill in because that data is only crimes known to police. Every year the

U.S. Census Bureau administers the survey and gathers data on frequency, characteristics, and consequences

of criminal victimization from approximately 135,000 households, composed of nearly 225,000 persons. The

NCVS collects information on nonfatal personal crimes (i.e., rape or sexual assault, robbery, aggravated and

simple assault, and personal larceny) and household property crimes (i.e., burglary, motor vehicle theft, and

other theft) both reported and not reported to police. 1

It is important to help fill in the gap of the dark figure

of crime previously discussed.

The NCVS collects information on age, sex, race and Hispanic origin, marital status, education level, and

income, and whether they experienced victimization. Additionally, the NCVS collects information about

the offender about age, race and Hispanic origin, sex, and victim-offender relationship, characteristics of the

crime (e.g., time and place of occurrence, use of weapons, nature of injury, and economic consequences),

whether the crime get reported to police, reason(s) the crime was or do not get reported, and victim

experiences with the criminal justice system. 2

See the link below to explore the NCVS https://www.bjs.gov/

index.cfm?ty=dcdetail&iid=245

See the report below on findings of repeat victimization from the NCVS: https://www.bjs.gov/ index.cfm?ty=pbdetail&iid=6046

NCVS Exercise

1. Bureau of Justice Statistics, Data Collection: National Crime Victimization Survey (NCVS) 2. Bureau of Justice Statistics, Data Collection: National Crime Victimization Survey (NCVS)

Go to the NCVS page and use the analysis tool that allows you to examine the National Crime Victimization

Survey (NCVS) data on both violent and property victimization. You can select the victim, household, and incident

characteristics.

You can instantly generate tables with national estimates of the numbers, rates, and percentages of victimization

from 1993 to the most recent year that NCVS data are available. The pre-set Quick Tables show you trends in

crime and reporting to the police. If you would like more detail, use the Custom Tables analyze victimization by

excellent characteristics.

https://www.bjs.gov/index.cfm?ty=nvat

As with any data source, there are challenges and limitations to victimization surveys. Respondents may

have issues recalling victimization, which can lead to underreporting or overreporting. If an individual was

traumatized the event may blur together, and it may have occurred in 2017 rather than 2018, but gets

reported as 2018. Other times respondents may lie or omit information for various reasons such as shame,

fear, confusion, and a lack of trust. If the respondent is uncomfortable with the interviewers, they may

not want to tell them that their partner abused them, out of fear it will get reported to police. However,

methodological techniques can attempt to minimize these challenges buy bounding to mitigate the chances

of this happening. 3

3. Lab, S., Holcomb, J., & King, W. (2013). Criminal justice: The Essentials. Oxford University Press: Oxford.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

2.4. Self-Report Statistics

SHANELL SANCHEZ

Self-report statistics are stats that are reported by individuals. Self-report statistics get gathered when people are asked to report the number of times they may have committed a particular crime during a set period in

the past, regardless of getting caught or not. For example, in-class students take a criminal activity checklist

and report behaviors they have engaged in at some point in their lives. People should be honest since the data

has no identifying information collected, and report even if no one ever found out what we find during class

time it that all the students, for over eight years of teaching, have committed a crime. However, the amount

of students that have to get caught is minimal, especially those that received formal sanctioning from the CJ

system (funneling of crime).

Monitoring the Future is an ongoing study of the behaviors, attitudes, and values of American secondary

school students, college students, and young adults. Each year, a total of approximately 50,000 8th, 10th,

and 12th-grade students get surveyed (12th graders since 1975, and eighth and 10th graders since 1991).

Besides, annual follow-up questionnaires are mailed to a sample of each graduating class for some years

after their initial participation. The Monitoring the Future Study has been funded under a series of

investigator-initiated competing research grants from theNational Institute on Drug Abuse, a part of the

National Institutes of Health. MTF is conducted at the

Survey Research Center in the Institute for Social Research at theUniversity of Michigan.

Monitoring the Future Drug Use Amongst Teens

How do we get estimates on drug use amongst teens if most of them do not get caught? We rely on reports

like the one above from the MTF. Monitoring the Future (MTF) is a long-term study of substance use

among U.S. adolescents, college students, and adult high school graduates through age 60. The survey is

conducted annually, which allows us to examine long term trends. MTF findings identify emerging

substance use problems, track substance use trends, and inform national policy and intervention strategies.

Respondents are confidential, which means we cannot link their answers to them. Therefore, people may

be more likely, to tell the truth. 1

In the Report: One Form of Drug Use Showed a Sharp Increase in Use in 2018

The most important findings to emerge from the 2018 survey is the dramatic increase in vaping by

adolescents. Vaping is a relatively new phenomenon, so we are still developing measures related to this

behavior, which included asking separately for the first time in 2017 about the vaping of three specific

substances—nicotine, marijuana, and just flavoring. As the section on vaping in this monograph shows,

there was a significant and substantial increase in 2018 in the vaping of all three of these substances,

including some of the most substantial absolute increases MTF has ever tracked for any substance. Given

that nicotine is involved in most vaping, and given that nicotine is a highly addictive substance, this

presents a severe threat. 2

Self-report statistics are great because they can help discover problems we were unaware of, such as vaping.

Further, it helps us identify victimless crimes, or crimes to where there is no victim such as drug use,

gambling, and underage drinking. Lastly, we uncover offenses that are not as serious such as shoplifting,

which are less likely to be known to police. 3

However, self-report data also has its limitations. Respondents may exaggerate or underreport their

criminal behavior, for various reasons. For example, in the class activity we do, many students did not

know what they did was illegal behavior until the statute was read, so they would never have thought they

committed a crime. Lastly, if we do not capture a large sample, we may limit who gets the survey. If we are

surveying kids in school about substance abuse, but not reaching out to all kids even if they get suspended,

we may miss important data. 4

Which Data Should We Use?

In each type of data (official, self-report, and victimization) there are pros and cons. Additionally, each source is

more likely to produce a better picture of what is occurring depending on the area of study. If a person wanted to

1. Johnston, L.D., Miech, R.A., O’Malley, P.M., Bachman, J.D., Schulenberg, J.E., & Patrick, M.E. (2018). MTF. 2018 Overview Key Findings on Adolescent Drug Use

2. ohnston, L.D., Miech, R.A., O’Malley, P.M., Bachman, J.D., Schulenberg, J.E., & Patrick, M.E. (2018). MTF. 2018 Overview Key Findings on Adolescent Drug Use

3. Hindelang, Hirschi, & Weis, (1981). Measuring delinquency. Thousand Oaks, CA: Sage Pubs. 4. Lab, S., Holcomb, J., & King, W. (2013). Criminal justice: The Essentials. Oxford University Press: Oxford.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

get the best statistics on reported homicides in the US, which source would be best? How about domestic violence?

What if we were interested in finding out drug abuse rates amongst teens in high school?

Introduction to the American Criminal Justice System

2.5. Misusing Statistics

SHANELL SANCHEZ

Genocide: Misuse of Statistics Exercise

The misuse of statistics promotes crime myths and generates fear of crime. There are various ways that we

can misuse statistics, such as limiting public access to critical information, intending to mislead the public by

presenting false information, or using deceptive formats to present information. 1

Exercise: Find a news article that demonstrates an apparent misuse of statistics for a crime OR an article that

demonstrates that people are trying to get release accurate and reliable information about a crime. Specifically,

discuss how it is a misuse of statistics or not and why that particular article was picked in 500 words.

For example, the article I found is about the genocide in Myanmar. The article is titled, “What is happening in

Myanmar is genocide. Call it by its name” in the Washington Post. For a long time, no one referred to this crime

as a genocide, and there were deliberate attempts by the government in Myanmar and the world to not refer to

it as genocide. Despite visual evidence that a genocide was occurring, the government tried to deny it. The news

said, “NO MORE. Call it what it is.”

https://www.washingtonpost.com/opinions/global-opinions/what-is-happening-in-myanmar-is-genocide-

call-it-by-its-name/2018/08/29/611a1090-aafe-11e8-a8d7-0f63ab8b1370_story.html?utm_term=.9e76f629a8b3

1. Kappler, V., & Potter, G. 2018. The Mythology of Crime and Criminal Justice (5th ed.). Waveland Press, Inc: Long Grove.

Genocide of Rohingya families

Watch the video link embedded at the top of the CNN news clip where the Monks say the international

community is wrong and it is not genocide. However, the United Nations took a stance by calling it genocide

and calling for the end of it. https://www.cnn.com/2017/11/25/asia/myanmar-buddhist-nationalism-mabatha/

index.html

Misusing statistics can happen all the time, and sometimes it is intentional, others accidental. When

we think back to the example of my grandfather, he would just cite stats out of nowhere. However, he had

never really studied any of the issues and his sources were unreliable. As a child, I often wondered how

he knew this? He did not intend to spew inaccurate facts but accidentally did to us because he listened to

someone who thought they had knowledge. This happens often when people give ‘opinions’ without facts,

which they are merely opinions. It is important to be able to distinguish this.

Introduction to the American Criminal Justice System

3: Criminal Law

Learning Objectives

This section examines the fundamental principles of criminal law. It describes the functions of formal criminal

law (what criminal law does and what it cannot do), how crimes differ from civil and moral wrongs, and various

classification schemes used in discussing criminal law. This section also examines the sources of substantive and

procedural criminal law (where we look to find our criminal law), the limitations that the constitution places on

both substantive criminal law and procedural criminal law, and the important concept of the rule of law in American

jurisprudence (legal theory). After reading this section, students will be able to:

• Distinguish between a criminal wrong, a civil wrong, and a moral wrong.

• Identify the many ways in which criminal law is classified.

• Recognize the many sources of substantive and procedural criminal law.

• Identify the limitations that the federal constitution and state constitutions place on creating

substantive laws and enforcing those laws.

• Recognize the importance of rule of law in American jurisprudence and understand the importance

of judicial review in achieving rule of law.

Critical Thinking Questions

1. What does formal law do well? What does formal law not do so well?

2. Should we be able to impose sanctions for violations of moral wrongs?

3. Consider the constitutional requirement of separate but equal branches of government. Why do you

think the drafters of the constitution intended each of the branches of government to be a check on each

other? How does that “play out” when deciding what laws should be made and what laws should be

enforced? What current issues are you aware of that highlight the importance of three separate but equal

branches of government?

4. How does direct democracy (in the form of ballot measures and propositions) influence substantive

criminal law (creating crimes and punishing crimes). What, if any, are the advantages of using direct

democracy to create and punish crime? What, if any, are the disadvantages?

5. Consider state-wide decriminalization of marijuana possession and use across the nation and the

federal statute banning possession and use of marijuana. How should this federal/state conflict be

resolved? Does your opinion change if the behavior is one that you favor or disfavor?

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

3.1. Functions and Limitations of Law

LORE RUTZ-BURRI

Law is a formal means of social control. Society uses laws (rules designed to control citizen’s behaviors) so that these behaviors will conform to societal norms, cultures, mores, traditions, and expectations. Because

courts must interpret and enforce these rules, laws differ from many other forms of social control. Both

formal and informal social control have the capacity to change behavior. Informal social control, such as

social media (including Facebook, Instagram, and Twitter) has a tremendous impact on what people wear,

how they think, how they speak, what people value, and perhaps how they vote. Social media’s impact on

human behavior cannot be overstated, but because these informal controls are largely unenforceable through

the courts as they are not considered the law.

Laws and legal rules promote social control by resolving basic value conflicts, settling individual disputes,

and making rules that even our rulers must follow. Kerper (1979) recognized the advantages of law in

fostering social control and identified four major limitations of the law. First, she noted, the law often cannot

gain community support without support of other social institutions. 1

(Consider, for example, the United

States Supreme Court (Court) case of Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483 (1954), which declared racially segregated schools unconstitutional. The decision was largely unpopular in the

southern states, and many had decided to not follow the Court’s holding. Ultimately, the Court had to

call in the National Guard to enforce its decision requiring schools to be integrated.) Second, even with

community support, the law cannot compel certain types of conduct contrary to human nature. Third, the

law’s resolution of disputes is dependent upon a complicated and expensive fact-finding process. Finally, the

law changes slowly. 2

Lippman (2015) also noted that the law does not always achieve its purposes of social control, dispute

resolution, and social change, but rather can harm society. He refers to this as the “dysfunctions of law.”

“Law does not always protect individuals and result in beneficial social progress. Law can be used to repress

individuals and limit their rights. The respect that is accorded to the legal system can mask the dysfunctional

role of the law. Dysfunctional means that the law is promoting inequality or serving the interests of a small

number of individuals rather than promoting the welfare of society or is impeding the enjoyment of human

rights.” 3

1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company. 2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 11). West Publishing Company. 3. Lippman, M. R. (2015). Law and society (pp. 11). Thousand Oaks, CA : SAGE Publications.

Similarly, Lawrence Friedman has identified several dysfunctions of law: legal actions may be used to

harass individuals or to gain revenge rather than redress a legal wrong; the law may reflect biases and

prejudices or reflect the interest of powerful economic interests; the law may be used by totalitarian regimes

as an instrument of repression; the law can be too rigid because it is based on a clear set of rules that don’t

always fit neatly (for example, Friedman notes that the rules of self-defense do not apply in situations in

which battered women use force to repel consistent abuse because of the law’s requirement that the threat

be immediate); the law may be slow to change because of its reliance on precedent (he also notes that judges

are also concerned about maintaining respect for the law and hesitate to introduce change that society is not

ready to accept); that the law denies equal access to justice because of inability to pay for legal services; that

courts are reluctant to second-guess the decisions of political decision-makers, particularly in times of war

and crisis; that reliance on law and courts can discourage democratic political activism because Individuals

and groups, when they look to courts to decide issues, divert energy from lobbying the legislature and from

building political coalitions for elections; and finally, that law may impede social change because it may limit

the ability of individuals to use the law to vindicate their rights and liberties. 4

4. Lippman, M. R. (2015). Law and society (pp. 25). Thousand Oaks, CA : SAGE Publications.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

3.2. Civil, Criminal, and Moral Wrongs

LORE RUTZ-BURRI

This chapter is about people committing crimes—engaging in behavior that violates the criminal law—and

how society responds to these criminal behaviors. Crimes are only one type of wrong. People can also violate

civil law or commit a moral wrong and not be guilty of any crime whatsoever. So, what is the difference

between a civil wrong, a criminal wrong, and a moral wrong?

Civil Wrongs A civil wrong is a private wrong, and the injured party’s remedy is to sue the party who caused the

wrong/injury for general damages (money). The plaintiff (the injured party) sues or brings a civil suit (files an action in court) against the defendant (the party that caused the harm). Plaintiffs can be individuals, businesses, classes of individuals (in a class action suit), or government entities. Defendants in civil actions can also be individuals, businesses, multinational corporations, governments, or state agencies.

Civil law covers many types of civil actions or suits including: torts (personal injury claims), contracts, property or real estate disputes, family law (including divorces, adoptions, and child custody matters),

intellectual property claims (including copyright, trademark, and patent claims), and trusts and estate laws

(which covers wills and probate).

The primary purpose of a civil suit is to financially compensate the injured party. The plaintiff brings

the suit in his or her own name, for example, Sam Smith versus Joe Jones. The amount of damages is

theoretically related to the amount of harm done by the defendant to the plaintiff. Sometimes, when the jury

finds there is particularly egregious harm, it will decide to punish the defendant by awarding a monetary

award called punitive damages in addition to general damages. Plaintiffs may also bring civil suits called injunctive relief to stop or “enjoin” the defendant from continuing to act in a certain manner. Codes of the civil procedure set forth the rules to follow when suing the party who allegedly caused some type of private

harm. These codes govern all the various types of civil actions.

In a civil trial, the plaintiff has the burden of producing evidence that the defendant caused the injury and

the harm. To meet this burden, the plaintiff will call witnesses to testify and introduce physical evidence. In

a civil case, the plaintiff must convince or persuade the jury that it is more likely than not that the defendant

caused the harm. This level of certainty or persuasion is known as preponderance of the evidence. Another feature in a civil suit is that the defendant can cross-sue the plaintiff, claiming that the plaintiff is actually responsible for the harm.

Criminal Wrongs Criminal wrongs differ from civil or moral wrongs. Criminal wrongs are behaviors that harm society as

a whole rather than one individual or entity specifically. When people violate the criminal law there are

generally sanctions that include incarceration and fines. A crime is an act, or a failure to act, that violates

society’s rules. The government, on behalf of society, is the plaintiff. A criminal wrong can be committed

in many ways by individuals, groups, or businesses against individuals, businesses, governments or with no

particular victim.

Criminal Defendant Victim Examples

Individual Self or with no particular victim Gambling or drug use

Individual Other individual(s) Assault, battery, theft

Individual Business or government Trespass, welfare fraud

Group of individuals Individual(s) Conspiracy to commit murder

Group of individuals Government or no particular victim Riot, rout, disorderly conduct

Business entity Individuals Fraud

Business entity Government or no particular victim Fraud, pollution, tax evasion

Criminal laws reflect a society’s moral and ethical beliefs. They govern how society, through its

government agents, holds criminal wrongdoers accountable for their actions. Sanctions or remedies such as

incarceration, fines, restitution, community service, and restorative justice program are used to express

societal condemnation of the criminal’s behavior. Government attorneys prosecute, or file charges against, criminal defendants on behalf of society, not necessarily to remedy the harm suffered by any particular

victim. The title of a criminal prosecution reflects this: “State of California v. Jones,”, “The Commonwealth

v. Jones,”, or “People v. Jones.”

In a criminal jury trial (a trial in which a group of people selected from the community decides whether the defendant is guilty of the crime charged) or a bench trial (a trial in which the judge decides whether the defendant is guilty or not) the prosecutor carries the burden of producing evidence that will convince

the jury or judge beyond any reasonable doubt that the criminal defendant committed a violation of law

that harmed society. To meet this burden, the prosecutor will call upon witnesses to testify and may also

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

present physical evidence suggesting the defendant committed the crime. Just as a private individual may

decide that it is not worth the time or effort to file a legal action, the state may decide not to use its

resources to file criminal charges against a wrongdoer. A victim (a named injured party) cannot force the state to prosecute the wrongdoing. Rather, if there is an appropriate civil cause of action–for example, wrongful death–the injured party will need to file a civil suit as a plaintiff and seek monetary

damages against the defendant.

Moral Wrongs Moral wrongs differ from criminal wrongs. “Moral law attempts to perfect personal character, whereas

criminal law, in general, is aimed at misbehavior that falls substantially below the norms of the community.” 1

There are no codes or statutes governing violations of moral laws in the United States.

“The Witness” Exercise

Watch the 2015 Netflix documentary “The Witness” in which Bill Genovese re-examined what was said, heard

and reported about his sister, Kitty Genovese. This frequently cited examples of a moral wrong involve the story

of thirty-seven neighbors who purportedly did nothing when “Kitty” Genovese was stabbed to death outside

their apartment building in New York City in 1964. There are many discrepancies about this story and what the

neighbors knew, or didn’t know, and what they did, or didn’t do, but the general belief is that they had at least a

moral obligation to do something (for example, call the police), and by failing to do anything, they committed a

moral wrong. Ultimately, none of the neighbors had any legal obligation to report the crime or intervene to help

Ms. Genovese.

Overlap of Civil, Criminal, and Moral Wrongs Sometimes criminal law and civil law overlap and an individual’s action constitute both a violation of

criminal law and civil law. For example, if Joe punches Sam in the face, Sam may sue Joe civilly for civil

assault and battery, and the state may also prosecute Joe for punching Sam, a criminal assault and battery.

Consider the case involving O.J. Simpson. Simpson was first prosecuted in 1994 for killing his ex-wife and

her friend (the criminal charges of murder). After the criminal trial in which the jury acquitted Simpson,

the Brown and Goldman families filed a wrongful death action against Simpson for killing Nicole Brown

and Ronald Goldman. The civil jury found Simpson responsible and awarded compensatory and punitive

damages in the amount of $33.5 million dollars. Wrongful death is a type of tort. Torts involve injuries inflicted upon a person and are the types of civil claims or civil suits that most resemble criminal wrongs.

Sometimes criminal behavior has no civil law counterpart. For example, the crime of possessing burglary

tools does not have a civil law equivalent. Conversely, many civil actions do not violate criminal law. For

example, civil suits for divorce, wills, or contracts do not have a corresponding criminal wrong. Even though

there is certainly an overlap between criminal law and civil law, it is not a perfect overlap. Because there

is no legal action that can be filed for committing a moral wrong, there really is not any overlap between

criminal wrongs, civil wrongs, and moral wrongs.

1. Gardner, T.J. (1985) Criminal Law: Principles and Cases (3rd ed., pp.7). West Publishing Company.

Introduction to the American Criminal Justice System

3.3. Sources of Criminal Law: Federal and State Constitutions

LORE RUTZ-BURRI

Where do you look to see if something you want to do violates some criminal law? The answer is “in

many places.” Criminal law originates from many sources. Some criminal law is the result of constitutional

conventions, so you would need to review federal and state constitutions. Other criminal laws result from the

legislative or initiative process, so you will need to review state statutes or congressional acts. Other criminal

law results from the work of administrative agencies, so you need to review state and federal administrative

rules. Other criminal law, called case law, originates from appellate court opinions written by judges. These

court opinions, called “decisions”, are published in both official and unofficial reporters, but thanks to the

Internet, they are now easy to find if you know the parties’ names. Much of our criminal law descended

from the English common law. This law developed over time, through custom and tradition, and it is a bit

more difficult to locate, but it is mentioned in treatises and legal “hornbooks” (like legal encyclopedias) and

is often referred to in case decisions.

The Federal Constitution—The Constitution of the United States Although the United States Constitution recognizes only three crimes (counterfeiting, piracy, and

treason), it nevertheless plays a significant role in the American criminal justice system. Most importantly,

the Constitution establishes limits on certain types of legislation or substantive law, and it provides significant

procedural constraints on the government when it seeks to prosecute individuals for crimes. The

Constitution also establishes federalism (the relationship between the federal government and state governments), requires the separation of powers between the three branches of government (the judicial branch, the legislative branch, and the executive branch), and limits Congress’s authority to pass laws not

directly related to either its enumerated powers (listed in the Constitution) or implied powers (inferred because they intertwined with the enumerated powers).

Constitutional Limitations on Criminal Law and Procedure The drafters of the federal Constitution were so concerned about two historic cases of abuse by English

Parliament (ex post facto laws and bills of attainder) that they prohibited Congress from passing these types

of laws in the original body of the Constitution. (See, Article I Section 9 of the Constitution.) Ex post facto laws are laws that are retroactively applied, or punishments retroactively increased, or changes in the amount and types of evidence that is required of the government in order to successfully prosecute an individual.

Bills of attainders are laws that are directed at named individual or group of individuals and has the effect of declaring them guilty without a trial.

Most of the other limitations are found within the Bill of Rights, the first ten amendments to the

U.S. Constitution. The states adopted the Bill of Rights in 1791. The statesmen had opposing viewpoints

concerning how strong the national government should be and how strong state governments should be.

Even as the original federal constitution was being circulated and ratified, the framers were thinking about

the provisions that became known as the Bill of Rights.

Music & Law Exercise

For a novel way to explore this dispute, listen to the soundtrack from Alexander Hamilton, the Broadway Musical

composed by Lin-Manuel Miranda.

The First Amendment limits Congress’s ability to pass laws that limit free speech, freedom of religion,

freedom of assembly and association. The Second Amendment limits Congress’s ability to outlaw the

personal possession of firearms. The Fourth, Fifth, Sixth and Eighth Amendments have provisions that

govern criminal procedure during the investigative, pretrial, and trial phases. The Eighth Amendment sets

limits on the government’s ability to impose certain types of punishments, impose excessive fines, and set

excessive bail. The Due Process Clauses of the Fifth and Fourteenth Amendment require that criminal justice

procedures be fundamentally fair. The Fourteenth Amendment’s Equal Protection Clause requires that, at

a minimum, there be some rational reason for treating people differently. For example, states can pass laws

prohibiting minors from purchasing and consuming alcohol because states have a reasonable interest in

protecting the health and welfare of its citizens. These amendments discussed more fully below, added several

constraints on Congress. The impact of the Bill of Rights was to place substantial checks on the federal

government’s ability to define crimes.

The Incorporation Debate

When drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal

government. Individual states each had their own guarantees and protections of individuals’ rights found

in the state constitutions. (See below.) Since 1868, the Fourteenth Amendment has become an important

tool for making states also follow the provisions of the Bill of the Rights. It was drafted to enforce the Civil

Rights Act passed in 1866 in the post-Civil War states. Section 1 of the Fourteenth Amendment enjoins

the states from depriving any person of life, liberty, or property, without due process of law. It prohibits

states from adopting any laws that abridge the privileges and immunities of the citizens of the United States

and requires that states not deny any person equal protection under the law. U.S. Const. amend. XIV, § 2.

The practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over

decades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in

one-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-by-

case, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process

Clause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of

Introduction to the American Criminal Justice System

Rights that are “implicit in the concept of ordered liberty.” 1

For example, in 1925 the Court recognized

that the First Amendment protections of free speech and free press apply to states as well as to the federal

government. 2

In the 1960s, the Court selectively incorporated many of the procedural guarantees of the

Bill of Rights. The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill

of Rights to the states. Most recently, on February 20th, 2019 the Court incorporated the right to be free

from excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana, ___ U.S. ___ (2019).

First Amendment Limitations

Under the First Amendment, Congress cannot create laws that limit individuals’ speech. The Court has

recognized symbolic speech (for example, wearing black armbands) and expressive conduct (for example,

picketing) as protected under the First Amendment’s guarantee that Congress shall not abridge freedom

of speech. The Court struck down a law banning flag burning. Texas v. Johnson, 491 U.S. 397 (1989). The Court upheld a local ordinance prohibiting public indecency when applied to business establishment

wishing to provide totally nude dancing. Barnes v. Glen Theater, 501 U.S. 560 (1991). The Court has recognized political speech and commercial speech as protected by the First Amendment as well. See,

e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The Court has, however, deemed some speech not worthy of protection, and consequently may be limited. According to the Court, non-

protected speech includes libel and slander, fighting words, words that present a clear and present danger

when spoken, obscenity and profanity. See, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) “There are certain well-defined and narrowly limited classes of speech, the prevention, and punishment of which have

never been thought to raise any constitutional problem. These include the lewd and obscene, the profane,

the libelous, and the insulting or fighting words—those which by their very utterance inflict injury or tend

to incite an immediate breach of peace.” Similarly, the Court has said anti-hate crime statutes permissibly

limit individuals’ speech to the extent they are directed at conduct rather than the content of the speech.

See, e.g., Rav v. City of St. Paul, 505 U.S. 377 (1992) and Wisconsin v. Mitchell, 508 U.S. 476 (1993).

The First Amendment limits Congress’s authority to legislate in the realm of religion as well. Congress

cannot make laws that either create a religion (these violate the Establishment Clause) or target and

interfere with a person’s exercise of their own religion (these violate the Free Exercise Clause). Finally, the

First Amendment guarantees that people have the right to freely associate and assemble with others. Thus,

Congress cannot make laws that completely limit people’s ability to gather together peaceably. However,

1. Palko v. Connecticut, 302 U.S. 319 (1937). 2. Gitlow v. New York, 268 U.S. 652 (1925)

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

the Court has indicated that the government can place reasonable time and manner limitations based on

the location in which the gathering is to take place. See, e.g., Cox v. Louisiana, 379 U.S. 536 (1965).

Second Amendment Limitations

Legislatures can place restrictions on weapons and ammunition purchase and possession, but they cannot

completely restrict people’s ability to possess guns for the purpose of self-defense. See, District of Columbia

v. Heller, 554 U.S. 570 (2008) (an individual’s right to possess a weapon is unconnected with service in the military). According to the Court, the Second Amendments’ protections apply equally to the states. See,

McDonald v. Chicago, 561 U.S. 742 (2010).

Fourth Amendment Limitations

The Fourth Amendment limits the government’s ability to engage in searches and seizures. Under

the least restrictive interpretation, the Amendment requires that, at a minimum, searches and seizures be

reasonable. Under the most restrictive interpretation, the Amendment requires that government officers

need a warrant any time they do a search or a seizure. The Court has interpreted the Fourth Amendment in

many cases and, the doctrine of stare decisis notwithstanding, search and seizure law is subject to the Court’s constant refinement and revision. One thing is clear, the Court has never embraced the most restrictive

interpretation of the Fourth requiring a warrant for every search and seizure conducted.

Fifth Amendment Limitations

The Fifth Amendment protects against self-incrimination (having to disclose information that could

ultimately harm you) in that it states that no person “shall be compelled in a criminal case to be a witness

against himself.” Defendants have the right to not testify at trial and the right to remain silent during a

custodial interrogation. See, Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also provides for a grand jury in federal criminal prosecutions, prohibits double jeopardy, demands due process of law,

and prohibits taking private property for public use (a civil action). The Court has incorporated the double

jeopardy provision through the Fourteenth Amendment, making states also prohibited from subjecting a

Introduction to the American Criminal Justice System

person to double jeopardy. However, it has not held that states must provide a grand jury review. The Fifth

Amendment’s grand jury provision is one of two clauses of the Bill of Rights that has not been incorporated

to the states, but most states do use the grand jury at least for some types of cases. The Fifth Amendment

also entitled citizens prosecuted by the federal government to the due process of law. This is discussed more

fully below as a Fourteenth Amendment right.

Sixth Amendment Limitations

The Sixth Amendment guarantees a criminal defendant: the right to a speedy trial, the right to a public

trial, the right to a jury trial, the right to have his or her trial in the district where the crime took place, the

right to be told what charges have been filed, the right to confront witnesses at trial, the right to compel

witnesses to testify at trial, and the right to assistance of counsel. This Amendment governs the federal

court process, but because of the Fourteenth Amendment’s Due Process Clause, these rights also apply to

defendants in state criminal cases.

Eighth Amendment Limitations

Legislatures cannot make laws that make the punishment for a crime “cruel or unusual.” This means that

punishments cannot be either barbaric (causing needless pain) or disproportionate (i.e., too severe to fit the crime). In addition to the prohibition against cruel and unusual punishment, the Eighth Amendment

also prohibits the imposition of excessive bail and excessive fines. The Court has dealt with excessive fines

in terms of whether the fine is disproportionate to the crime. See, e.g., Timbs v. Indiana (above) (forfeiting defendant’s $42,000 land rover was excessive compared to the maximum fine he could get for his crime

($10,000.) The prohibition against excessive bail does not mean that courts must set bail in every case, but

rather, when courts do set bail, it must not be excessive. Bail is excessive when it is an amount more than

necessary to assure the defendant’s reappearance. Stack v. Boyle, 342 U.S. 1 (1951). *

Fourteenth Amendment limitations

The Fourteenth Amendment mandates that states do not deny their citizen’s due process of law. Due

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

process can be summarized as making sure that the government treats people fairly. Part of fairness is giving

people fair warning as to what behaviors are permitted and what behaviors are not permitted—putting

people on notice of what the law is. Thus, legislators must be very careful when making new laws.

They cannot make laws that are so poorly drafted such that a person of ordinary intelligence would not

understand the law or that would allow police too much discretion in how they will interpret and apply

the law because such a law would be considered void for vagueness.

The Fourteenth Amendment also guarantees equal protection of the law. Generally, legislatures cannot

make laws that treat people differently unless the laws are rationally related to a legitimate government

interest. When legislatures attempt to pass laws that treat people differently based on sex, then the

court reviews the law with heightened scrutiny — the law must be designed to achieve an important

government interest and the differential treatment must be based on an actual physiological difference

between the sexes and not based on archaic stereotypes. When legislatures attempt to pass laws that treat

people differently based upon their race or ethnicity, then they have to have even a more compelling

reason to do so, and even then, the courts, employing “strict scrutiny” are likely to declare such laws

unconstitutional.

Limitations Found in the “Penumbra” of the Constitution

Sometimes the Constitution doesn’t explicitly state protection or right that the courts have nevertheless

found to be inherent or found within the Constitution. Justice Douglas, writing the majority opinion in

Griswold v. Connecticut, 381 U.S. 479 (1965), stated

“[The] . . . specific guarantees in the Bill of Rights have penumbras, formed by emanations from those

guarantees that help give them life and substance. … Various guarantees create zones of privacy. The

right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third

Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without

the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the

‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone

of privacy which government may not force him to surrender to his detriment. The Ninth Amendment

provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or

disparage others retained by the people.’

The Fourth and Fifth Amendments were described … as protection against all governmental invasions

‘of the sanctity of a man’s home and the privacies of life.’ We recently referred in Mapp v. Ohio, 367 U. S. 643, 656, to the Fourth Amendment as creating a ‘right to privacy, no less important than any other right

carefully and particularly reserved to the people.’ (Footnote omitted).” 381 U.S. at 484-485.

Introduction to the American Criminal Justice System

Thus, legislatures cannot make laws that allow the government to invade people’s privacy, even

though no specific amendment can be pointed to. The constitutional right to privacy must often be

balanced against the state’s compelling interests such as promoting public safety. The courts have found

the right to privacy in the context of reproductive freedom (See, e.g., Roe v. Wade, 410 U.S. 113

(1972) (right to abortion), Eisenstadt v. Baird, 405 U.S. 438 (1972) (the right of married persons to

possess contraceptives), Griswold v. Connecticut, 381 U.S. 479 (1965) (declaring invalid the ban on

contraceptives), Stanley v. Georgia, 394 U.S. 557 (1969) (the right to view and possess adult pornography),

and the right of adults to engage in consensual sexual contact), and Lawrence v. Texas, 539 U.S. 558 (2003) (the right of adults to engage in consensual sexual contact).

State Constitutions States’ constitutions, similar to the federal constitution, set forth the general organization of state

government and basic standards governing the use of governmental authority. Although the federal

constitution is preeminent because of the Supremacy Clause, state constitutions are still significant. State

constitutional rules are supreme as compared to any other rules coming from all other state legal sources

(statutes, ordinances, administrative rules) and prevail over such laws in cases of conflict. The federal

constitution sets the floor of individual rights, but states are free to provide more individual freedoms and

protections that are granted by the federal constitution. State constitutions are defined and interpreted by

state courts, and even identical provisions in both the state and federal constitution may be interpreted

differently. For example, the state constitution’s guarantee to be free from unreasonable searches and

seizures may mean that, under state law, roadblocks established to identify impaired, intoxicated drivers are

impermissible, but under the federal constitution, these roadblocks are permitted and are not deemed to be

unreasonable seizures.

Comparing Cases Exercise

Compare the U.S. Supreme Court holding in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) to the Michigan Supreme Court holding interpreting the same case under Michigan Constitution, 506 N.W.2d 209

(Mich. 1993).

Rule of Law, Constitutions and Judicial Review

One of the key features of the American legal system has been its commitment to the rule of law. Rule of law has been defined as a “belief that an orderly society must be governed by established principles and

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

known standards that are uniformly and fairly applied.” 3

Reichel identified a three-step process by which

countries can achieve rule of law. 4

The first step is that a country must identify core, fundamental values.

The second step is for the values to be reduced to writing and written somewhere that people can point to

them. The final step is to establish a process or mechanism whereby laws or governmental actions are tested

to see if they are consistent with the fundamental values. When laws or actions embrace the fundamental

values, they are considered valid, and when the laws or actions conflict with the fundamental values, they

are invalid.

Applying this three-step process to America’s approach to law one can see that Americans have

recognized fundamental values, such as the right to freedom of speech, the right to privacy, and the

right to assemble. Second, we have reduced these fundamental values to writing and, for the most part,

have compiled them in our constitutions (both federal and state). Third, we have a mechanism, that of

judicial review, by which we judge whether our laws and our government actions comply with or violate our fundamental values found within our constitutions. Judicial review is the authority of the courts to

determine whether a law (a legislative action) or action (an executive or judicial action) conflicts with the

Constitution. Judicial review can be traced to the case of Marbury v. Madison, 5 U.S. 137 (1803), in which Chief Justice John Marshall wrote, “It is emphatically the province and duty of the judicial department to

say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret

that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

3. Feldmeier, J. P., & Schmalleger, F. (2012). Criminal Law and Procedure for Legal Professionals. Prenice Hall. 4. Reichel, P. (2018) Comparative Criminal Justice Systems: A Topical Approach. New York, NY: Pearson.

Introduction to the American Criminal Justice System

3.4. Sources of Criminal Law: Statutes, Ordinances, and Other

Legislative Enactments

LORE RUTZ-BURRI

Statutes, Ordinances, and Other Legislative Enactments Most substantive criminal law is legislative law. State legislatures and Congress enact laws which take the

form of statutes or congressional acts. Statutes are written statements, enacted into law by an affirmative vote

of both chambers of the legislature and accepted (or not vetoed) by the governor of the state or the president

of the United States. State legislatures may also create legislative law by participating in interstate compacts, or multi-state legal agreements. An example of this includes the Uniform Extradition Act, or the Uniform

Fresh Pursuit Act. Congress makes federal law by passing acts and approving treaties between the United

States and other nation states. Local legislators, city and town councilors, and county commissioners also

make laws through the enactment of local ordinances.

Controversial Issue: Ballot Measures, Initiatives, and Referendums–Direct Democracy and Law

Making

In several states, citizens have the power to enact laws through direct democracy by putting “ballot

measures” or “propositions” up for a vote. This type of lawmaking by the people started primarily in

the Western states around the turn of the 20th century. Initiatives, referendums, and referrals have some

slight differences, but generally, these ballot measures ultimately find their way into either statutes or

the constitution, and so they are included in this section on legislative law. For example, Oregon Ballot

Measure 11, establishing minimum mandatory sentences for 17 person felonies, was voted on in November

1994 and took effect April 1, 1995. It is now found in the Oregon Revised Statutes as ORS 137.700.

Proposition 36, approved by Californians in 2012, significantly amended the “three strikes” sentencing

laws approved in 1994. Initiatives, referendums, and referrals can be effective in quickly changing the

criminal law, like the mandatory sentencing in the 1980s, and is a way to circumvent what can be a

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contentious legislative process. An example is the decriminalization of marijuana in Washington, Oregon,

Colorado, and Alaska.

States’ Authority to Pass Criminal Laws States are sovereign and autonomous, and unless the Constitution takes away state power, the states have

broad authority to regulate activity within the state. Most criminal laws at the state level are derived from

the states’ general police powers, or authority, to make and enforce criminal law within their geographic

boundaries. Police power is the power to control any harmful act that may affect the general well being of citizens within the geographical jurisdiction of the state. A state code, or state statutes, may regulate any

harmful activity done in the state or whose harm occurs within the state.

Congress’s Authority to Pass Laws Federal lawmakers do not possess police power. Instead, Congress must draw its authority to enact

criminal statutes from particular legislative powers and responsibilities assigned to it in the Constitution.

Congress’s legislative authority may be either enumerated in the Constitution or implied from its provisions,

but if Congress cannot tie its exercise of authority to one of those powers, the legislation may be declared

invalid.

Enumerated powers, for example, the power to regulate interstate commerce, are those that are specifically

mentioned in Article I Section 8 of the Constitution. Over the years, however, courts have broadly

interpreted the term “interstate commerce” to mean more than just goods and services traveling between

and among the states. Instead, interstate commerce includes any activity—including purely local or intrastate

activity—that affects interstate commerce. The affectation doctrine maintains that congressional authority

includes the right to regulate all matters having a close and substantial relation to interstate commerce.

Although the Court has found limits on what affects interstate commerce, Congress has used its broad power

to regulate interstate commerce to criminalize a wide range of offenses including carjacking, kidnapping,

wire fraud, and a variety of environmental crimes.

The implied powers of Congress are those that are deemed to be necessary and proper for carrying out

all the enumerated powers. Article I Section 8 of the Constitution states, “Congress shall have Power . .

. to make laws which shall be necessary and proper for carrying into Execution the foregoing Powers,

and all other Powers vested by this Constitution.” The implied powers doctrine expands legislative power

of Congress, and for that reason, the Necessary and Proper Clause has often been called the “expansion

clause.” Due to the implied powers found in the Necessary and Proper Clause, Congress has authority to pass

legislation and regulate a wide variety of activity to the extent that it is able to show that the law furthers one

of the enumerated powers. Nevertheless, the Court will overturn acts of Congress when it believes Congress

has overstepped its constitutional authority. So, despite the broad expanse of implied powers, Congress’s

authority is still limited and by no means is as vast as the states’ police powers.

Conflicting State and Federal Statutes Sometimes substantive federal law conflicts with state laws or policies, and sometimes the federal

government’s interest in prosecuting cases in federal court conflicts with competing interests of the states.

One recent conflict between federal interests and state interests involves Oregon’s physician-assisted suicide

law, the “Death with Dignity Act”. See, Gonzales v. Oregon, 646 U.S. 243 (2006)(upholding Oregon’s law

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by deciding that the United States Attorney General could not enforce the national controlled substance

act against Oregon physicians). Another debate surrounds the conflicting federal and state laws governing

marijuana use. Between 1996 and 2018, thirty states and the District of Columbia passed laws legalizing

the possession of small quantities of marijuana for medicinal purposes for state residents. Since 2012,

Colorado, Washington, Oregon, Alaska, California, Nevada, Massachusetts, and Maine have passed laws

through the initiative process legalizing recreational use and possession of small amounts of marijuana

by adults. In the 2018 elections, even more, states passed laws allowing for medical use, recreational

use. See, https://www.forbes.com/sites/tomangell/2018/12/06/marijuanas-ten-biggest-victories-

of-2018/#7ca0dd5232df. These popular initiatives conflict directly with the federal Controlled Substance

Act, 21 U.S.C. 13, § 841, (CSA) which holds that any use or possession of marijuana is a federal crime. In

January 2018, the Trump administration through the U.S. Department of Justice, under Attorney General

Sessions rescinded the Obama-era restraint policies on marijuana prosecutions and indicated the desire to

fully enforce the CSA. However, in April 2018, President Trump announced he was backing down on the

crackdown on recreational use of marijuana that had been announced in January 2018.

Movement Towards Codification: The American Institute and the Model Penal Code

By the 1960s and 1970s, all states had begun codifying their criminal laws. These codifications would

likely not have taken place if not for the American Law Institute (ALI) and the publication of its Model

Penal Code (MPC). Established in 1923, the ALI is an organization of judges, lawyers, and academics that draft model codes and laws. Its most important work in the criminal justice realm is the Model Penal Code.

The ALI began working on the MPC in 1951, and it proposed several tentative drafts over the next decade.

In 1962 the Model Penal Code was finally published. It consists of general provisions concerning: criminal

liability, definitions of specific crimes, defenses, and sentences. The MPC has had a significant impact on

legislative drafting of criminal statutes. Every state has adopted at least some provisions, or at least the

approach, of the MPC, and some code states have adopted many or most of the provisions in the MPC. No state has adopted the MPC in its entirety.

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3.5. Sources of Law: Administrative Law, Common Law, Case Law

and Court Rules

LORE RUTZ-BURRI

Administrative Law—Agency-Made Law State and federal legislatures cannot keep up with the task of enacting legislation on all the myriad

subjects that must be regulated by law. In each branch of government, various administrative agencies exist

with authority to create administrative law. At the federal level, for example, the Environmental Protection

Agency enacts regulations against environmental crimes. At the state level, the Department of Motor

Vehicles enacts laws concerning drivers’ license suspension. Administrative regulations are enforceable by

the courts provided that the agency has acted within the scope of its delegated authority from the legislature.

Common Law One important source of criminal law in the United States is common law. English law developed over

centuries and, generally, when we refer to American common law, we are referring to the common law rules

brought over from England to the United States when we became a nation. However, this is not necessarily

always clear. 1

LaFave describes the process by which common law was derived in England.

“. . . Although there were some early criminal statutes [in England], in the main the criminal law was originally common law. Thus by the 1600s the judges, not the legislature, had created and defined the

felonies of murder, suicide, manslaughter, burglary, arson, robbery, larceny rape, sodomy and mayhem; and

such misdemeanors as assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. During

the period from 1660 . . . to 1860 the process continued with the judges creating new crimes when the

need arose and punishing those who committed them: blasphemy (1676), conspiracy (1664), sedition (18th

century), forgery (1727), attempt (1784), solicitation (1801). From time to time the judges, when creating

new misdemeanors, spoke of the court’s power to declare criminal any conduct tending to “outrage decency”

or “corrupt public morals.” or to punish conduct contra bonos mores: thus they found running naked in the streets, publishing an obscene book, and grave-snatching to be common law crimes.

Of course, sometimes the courts refused to denote as criminal some forms of anti-social conduct. At times

their refusal seemed irrational, causing the legislature to step in and enact a statute: thus false pretenses,

embezzlement, incest and other matters became statutory crimes in England. … Some immoral conduct,

mostly of a sexual nature (such as private acts of adultery or fornication, and seduction without conspiracy)

1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company.

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was punished by ecclesiastical courts in England. The common law courts never punished these activities as

criminal, and thus, they never became English common law crimes.

At the same time that judges were developing new crimes, they were also developing new common law

defenses to crime, such as self-defense, insanity, infancy, and coercion. …

About the middle of the nineteenth century, the process of creating new crimes almost came to a standstill

in England. ” 2

American courts originally relied on the decisions of the English Courts, but Kerper (1979, p. 27) notes

that

“as the number of American decisions grew, the American courts began to rely more and more on

their own decisions. At the same times, differences in social and economic conditions (and to some extent,

differences in the personalities of the judges) led the courts in different states to take different views of

the common law. As a result, while the English tradition produced a core of similarity, there developed

significant differences in common law rules in the various states. Thus, the common law standard governing

an officer’s authority to arrest for minor crimes might be substantially different in Ohio and New York,

although the general framework of the common law governing arrests was likely to be similar in both

states.” 3

In order to understand the limitations of common law, it is helpful to understand the difference between

the common law tradition followed by the United States, and other nations that follow the English model

and the civil law tradition which developed in Europe. The civil law tradition uses legislative codes as the

primary source of law. Under the civil law tradition, new substantive law replaces, rather than supplements,

old substantive law. Thus, judges in the civil law tradition are not bound by prior interpretations of

legislative codes, and all courts are free to interpret the codes according to generally accepted principles

of legal interpretation. Stare decisis, discussed below, plays no persuasive or binding role in the civil law tradition. Under the common law tradition though, new substantive law generally adds to, rather than

replaces, old substantive law.

Kerper notes that our common law tradition is not purely one of common law, and that common law is

displaced by statutes, case law, and the constitution.

“Though the description of the Anglo-American system as a “common law legal system” notes an

important distinction between it and the civil law system, that description should not lead one to ignore the

fact that legislation also constitutes an important source of law in the Anglo-American system. That system

is actually a mixed system of common law rules and statutory rules. The common law rules established by

American and English courts have always been subject to displacement by legislative enactments. Indeed,

the courts have the authority to develop common law standards only where the legislatures have not sought

to provide legislative solutions. … In our country, the common law also is subject to the legal limitations

imposed by federal and state constitutions. The supremacy of the constitutions extends over all forms of

law, including the common law. Just as legislation cannot violate a constitutional limitation, neither can a

common law rule.” 4

Common law is a source of both substantive and procedural law (discussed below), but it is important to

note that there are no federal common law crimes. If Congress has not enacted legislation to make certain

conduct criminal, that conduct cannot constitute a federal crime.

2. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 70). St. Paul, Minn: West Group. 3. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 27). West Publishing Company. 4. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 28-29). West Publishing Company.

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Judge-Made Law: Case Law The term case law refers to legal rules announced in opinions written by appellate judges when deciding

appellate cases before them. Judicial decisions reflect the court’s interpretation of constitutions, statutes,

common law, or administrative regulations. When the court interprets a statute, the statute, as well as its

interpretation, control how the law will be enforced and applied in the future. The same is true when a court

interprets federal and state constitutions. When deciding cases and interpreting the law, judges are bound by

precedent.

Startare Decisise Decisis and Precedent: Been There, Done (must do) That.

The doctrine of starstare decisise decisis comes from a Latin phrase that states, “to stand by the decisions and not disturb settled points”. It tells the court that if the decisions in the past have held that a particular rule

governs a certain fact situation, that rule should govern all later cases presenting the same fact situation.

Under the doctrine of stare decisis, past appellate court decisions form precedent, that judge must follow

in similar subsequent cases. Stare decisis permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contribute to the integrity of our

constitutional system of government, both in appearance and fact.” 5

Trial courts and appellate courts must

follow the controlling case law that has already been announced in appellate court decisions from their

own jurisdiction. Trial courts must follow precedent when they decide questions of law. [Questions of

law include what a statute means, what the law states, how the constitution should be interpreted, whether

a particular law even applies under the facts in the case before them. On the other hand, questions of

fact are decided by jurors (or judges in bench trials) and include, for example, how fast was the defendant driving, what color hat the defendant was wearing, or whether the gun went off accidentally.] One way

courts get around precedent is to distinguish the facts in the case before them as much different than the

facts in the earlier case. For example, if the court may decide that the fact that the defendant was running

away from the scene, in this case, is so different from the earlier case in which the defendant was merely

walking away from the scene that there is no precedent it must follow.

The advantages of stare decisis include efficiency, equality, predictability, the wisdom of past experience, and the image of limited authority.

6 Efficiency occurs because each trial judge and the appellate judge does

not have to work out a solution to every legal question. Equality results when one rule of law is applied

to all persons in the same setting. “Identical cases brought before different judges should, to the extent

humanly possible, produce identical results. … Stare decisis assists in providing uniform standards of law for similar cases decided in the same state. It provides a common grounding used by all judges throughout the

jurisdiction.” 7

Stare decisis provides stability in allowing individuals to count on the rules of law that have been applied in the past. Kerper’s example is a police officer’s reliance on past decisions to help determine

the legality of a pending arrest. “Without regard to past decisions, the conduct of a wide variety of activities

5. Vasquez v. Hillery, 474 U.S. 254 (1986) 6. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 47-49). West Publishing Company. 7. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company.

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would take on an added hazard of unpredictable legality. Without stability, the law could well loose (sic)

its effectiveness in maintaining social control.” 8

Stare decisis also ensures proper recognition of the wisdom and experience of the past. Justice Cardozo observed that “no single judge is likely to have ‘a vision at

once so keen and so broad’ as to ensure that his new ideas of wise policy are indeed the most beneficial for

society.” 9

Finally, stare decisis enhances the image of the courts as the impartial interpreter of the law.

“Stare decisis decreases the leeway granted to the individual judge to settle controversies in accordance

with his own personal desires. … Indeed, the doctrine of stare decisis indirectly serves to restrict the law- making role of the judge even in those cases presenting “open issues” not resolved by past precedent. … A

sudden change in the composition of the judiciary, even at the highest level, should not present an equally

sudden change in the substance of the law.” 10

In the federal system, all federal courts must follow the decisions of the Supreme Court as it is the final

interpreter of the federal constitution and federal statutes. If, however, the Supreme Court has not ruled on

an issue, then the federal trial courts (U.S. District Courts and U.S. Magistrate Courts) and federal appellate

courts (Circuit Courts of Appeals) must follow decisions from their own circuit. Each circuit is treated, in

effect, as its own jurisdiction, and the court of appeals for the various circuits are free to disagree with each

other.

Because stare decisis is not an absolute rule, courts may reject precedent by overruling earlier decisions.

One factor that courts will consider before overruling earlier case law is the strength of the precedent.

Another factor is the field of law involved. Courts seem to be more reluctant to override precedents

governing property or trade where commercial enterprises are more likely to have relied quite heavily

on the precedent. Courts also consider the initial source of precedent, such as statutory interpretation.

For example, if the courts decided in 1950 that the statute meant that individuals could graze their cattle

on federal lands without being in violation of any trespass laws, and then the federal government did

not subsequently change the law, the legislature’s inaction indicates the interpretation was probably right.

The most compelling basis upon which a court will overturn precedent, however, is if it perceives the

presence or absence of changed circumstances. For example, scientific or technological developments may

warrant the application of new rules. Consider the common law year and a day rule which required the government, in a murder prosecution, prove that the victim died within one year and a day of the attack.

The rule is premised on the idea that there needed to be some showing that the defendant’s act caused the

death. Medical science now makes it possible to trace the source of fatal blow, so murder statutes no longer

include the year and a day rule. One final ground for overruling a prior decision is general changes in

the spirit of the times. For example, in Trop v. Dulles, 356 U.S. 86 (1958), the Court looked to “evolving standards of decency” in deciding whether the defendant’s punishment was cruel and unusual and thus

violated the Eighth Amendment.

8. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 49). West Publishing Company. 9. Cardozo, B. N. (1924). The Growth of the Law. New Haven, CT: Yale University Press.

10. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 51-52). West Publishing Company.

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Matters of First Impression or “Wow, this is new territory, what should we do now?”

If a court is dealing with a legal issue for the first time, there is no precedent to follow, and it cannot then

be bound by stare decisis. The court may look to other states to see if there is any persuasive case authority on the matter, but state courts do not have to follow established law from other states. When there is no

precedent or controlling cases, the case or issue is referred to as a matter of the first impression. In cases of the first impression, courts get to decide what the relevant rule should be. In deciding cases of the first

impression, judges will look to relevant statutes, legislative history, and cases involving similar situations

“The situation may be a new one. … Yet the judges do not throw up their hands and say the case may

not be decided; they decide it. Maybe they can use some settled law in an analogous situation. … Even

if there is no available analogy, or if there are competing analogies, the judge will make (some prefer to

say discover) the law to apply to the new situation. The new law will be decided according to the judges’

ideas (ideas they acquire as members of society) of what is moral, right, just; of what will further sound

public policy, in light of customs and traditions of the people of which the judges are members.” LaFave,

W. Criminal Law, 69(3d. ed., 2000). ”

It is not necessarily easy, to interpret the law and apply it to the facts of a case. Facts can be “messy”, the

law can be less than clear, and not everyone will agree on the appropriate meaning of the law’s mandate.

Judges, therefore, rely on several tools or approaches when interpreting the language of a statute. LaFave

has identified various approaches used by judges to interpret the law. 11

First, judges will look at the plain

meaning of the statute and rely on dictionary-like tools to discover the meaning of the words. According to

the Court in Caminetti v. United States, 242 U.S. 470 (1917), “Where the language is plain and admits of no

more than one meaning, the duty of interpretation does not arise.” Even under this strict constructionist

approach, judges can still disagree whether the language of the statute is plain. Also, there is a danger with this plain meaning approach, and courts will not follow a statute though apparently plain language when

strict application results in injustice, oppression or even an absurd consequence.

Second, judges will look to the drafter’s intent revealed in the legislative history, or records of legislative hearings and floor debates, when it exists. LeFave notes that sometimes it is easier to figure out the framer’s

intent than other times. Moreover, different lawmakers may have had different intents when they cast their

votes enacting the law. Additionally, sometimes legislators never considered the specific factual scenario

facing the court.

“It should be noted also that not all judges are enamored of the use of legislative history in interpreting

ambiguous statutes. And in any event, the legislative history is less likely to be controlling in construing

criminal statutes than civil statutes. If one purpose of a criminal statute is to warn the public of what

conduct will get them into criminal trouble, that is, if prospective criminals are entitled to a fair

11. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 86-89). St. Paul, Minn: West Group.

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warning–then the public should be able to ascertain the line between permitted and prohibited conduct

from the statute itself.” 12

Third, judges may try to focus on the original understanding or original meaning of the law. Under this

approach, the court asks itself how a common person reading the law when it was enacted, would have

understood the law. For example, when looking at a statute written in 1972, the court would ask itself how

the common person in 1972 would have understood the statute. This approach is problematic because not

all people living in 1972 would have interpreted the law in the same way.

Fourth, as discussed above, judges may interpret the law based on precedent. One drawback to this

approach is that facts of the earlier cases will always differ somewhat from the facts in the new case the

court is trying to interpret. Another difficulty occurs when the court is faced with a new situation or a new

law and there is no precedent to guide the court. LaFave identified the difficulty in adhering too closely to

precedent:

“Sometimes a court, having earlier construed a criminal statute strictly in favor of the defendant, later decides that its earlier construction was wrong. … Obviously, other things being equal, courts should

interpret statutes correctly, regardless of past mistakes. On the other hand, it may not be fair to . . .

change the rule now. The difficulty lies in the Anglo-American theory of precedents that case law operates

retroactively, and in particular that case law which overrules earlier precedents operates retroactively.

When faced with this problem–that of overruling or following an earlier erroneous interpretation . . . [one]

court felt obliged to follow case precedent with an invitation to the legislature to change the rule of for the

future; but [another court overruled the precedent.]

The choice, however, is not necessarily between following the precedent (thus letting a defendant off

but perpetuating a bad decision) and retroactively overruling it (thus eliminating a bad precedent but

putting the defendant behind bars). There are two techniques by which the defendant may go free even

if the precedent is overruled. It is not impossible for the court to overrule for the future only, letting the

defendant go but stating in the opinion that anyone who from now on conducts himself the way this

defendant did will be guilty of the crime. The second method is to overrule the erroneous precedent but

to give the defendant the defense of mistake of law induced by an appellate court. … Some courts have

gone so far as to say that the adoption of a new interpretation of an old statute is forbidden by ex post facto

constitutional provision if the new interpretation is harder on the defendant than the old.” 13

Finally, there are common law doctrines which direct the court to interpret ambiguous terms in a

specific way. For example, the rule of lenity tells the court to interpret the statute in the light that is most

favorable to the defendant. Another rule, expressio unius est exclusion alters, meaning the inclusion of one is the exclusion of all others, holds that when a legislative body includes specific items within a statute, the

assumption is that it intends to exclude all other terms. Another doctrine of in pari materia, meaning on the same matter or subject, directs the court to interpret an ambiguous statute in a light most consistent with

12. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 89). St. Paul, Minn: West Group. 13. LaFave, W. R. (2000). Criminal law (3rd ed., pp. 96-97). St. Paul, Minn: West Group.

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other statutes on the same subject. Finally, there is a general maxim that special language controls over

general language, and later statutes control over earlier statutes.

Court Rules of Procedure The U.S. Supreme Court and state supreme courts make a law that regulates the procedures followed

in the lower courts- both appellate and trial courts- in that jurisdiction. These court rules, adopted by the

courts to facilitate the administration and processing of cases, are generally limited in scope, but they may

nevertheless provide significant rights for the defendant. For example, the rules governing speedy trials may

be governed generally by the Constitution, but very specifically by court rules in a particular jurisdiction.

Local courts may also pass local court rules that govern the day-to-day practice of law in these lower

courts. For example, a local court rule may dictate when and how cases are to be filed in that jurisdiction.

Generally, the local bar (all the attorneys in the jurisdiction) are consulted, and a workforce consisting of

judges, trial court administrators, and representatives from district attorney’s office, the public defender’s

office, assigned counsel consortiums, and private attorneys will meet every few years to decide on the local

rules.

Okay, so where do I look to see if my behavior is prohibited?

Because criminal law has many sources–constitutions, legislative enactments, administrative rules, case

law, and common law–it is not necessarily an easy task to determine whether your behavior or the

way government responds to your behavior, is lawful. First, it is always advisable to know your rights

under the federal constitution and your state constitution and understand what limits the constitution

places on legislative enactments and law enforcement actions. Still, even assuming that laws have been

properly enacted and that police have followed proper procedure, it may be difficult to determine whether

your behavior is prohibited. Because most states now codifying their criminal laws by enacting statutes,

start there. Then look to any case law which may interpret these statutes. Since courts generally follow

precedent due to the doctrine of stare decisis, one red flag that your behavior may be unlawful is that, in the past, the courts have found behavior similar to yours to be unlawful.

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3.6. Classifications of Law

LORE RUTZ-BURRI

In this section of the chapter, we turn to the various ways that criminal law has been classified. Classification

schemes allow us to discuss aspects or characteristics of the criminal law. Some classifications have legal

significance, meaning that how a crime is classified may make a difference in how the case is processed or

what type of punishment can be imposed. Some classifications historically mattered (had legal significance),

but no longer have much consequence. Finally, some classifications have no legal significance, meaning the

classification exists only to help us organize our laws.

Classifications Based on the Seriousness of the Offense Legislatures typically distinguish crimes based on the severity or seriousness of the harm inflicted on

the victim. The criminal’s intent also impacts the crime’s classification. Crimes are classified as felonies or misdemeanors. Certain, less serious, behavior may be classified as criminal violations or infractions. The term offense is a generic term that is sometimes used to mean any type of violation of the law, or it is sometimes used to mean just misdemeanors or felonies. Although these classification schemes may seem

pretty straight forward, sometimes states allow felonies to be treated as misdemeanors and misdemeanors to

be treated as either felonies or violations. For example, California has certain crimes, known as wobblers, that can be charged as either felonies or misdemeanors at the discretion of the prosecutor upon consideration

of the offender’s criminal history or the specific facts of the case.

The distinction between felonies and misdemeanors developed at common law and has been incorporated

in state criminal codes. At one time, all felonies were punishable by death and forfeiture of goods, while

misdemeanors were punishable by fines alone. Laws change over time, and as capital punishment became

limited to only certain felonies (like murder and rape), new forms of punishment developed. Now, felonies

and misdemeanors alike are punished with fines and/or incarceration. Generally, felonies are treated as

serious crimes for which at least a year in prison is a possible punishment. In states allowing capital

punishment, some types of murder are punishable by death. Any crime subject to capital punishment is

considered a felony. Misdemeanors are regarded as less serious offenses and are generally punishable by

less than a year of incarceration in the local jail. Infractions and violations, when those classifications exist,

include minor behavior for which the offender can be cited, but not arrested, and fined, but not incarcerated.

The difference between being charged with a felony or misdemeanor may have legal implications beyond

the length of the offender’s sentence and in what type of facility an offender will be punished. For example, in

some jurisdictions, the authority of a police officer to arrest may be linked to whether the crime is considered

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a felony or a misdemeanor. In many states the classification impacts which court will have the authority to

hear the case. In some states, the felony-misdemeanor classification determines the size of the jury.

Classifications Based on the Type of Harm Inflicted Almost all state codes classify crimes according to the type of harm inflicted. The Model Penal Code uses

the following classifications:

• Offenses against persons (homicide, assault, kidnapping, and rape, for example)

• Offenses against property (arson, burglary, and theft, for example)

• Offenses against family (bigamy and adultery, for example)

• Offenses against public administration (e.g., bribery, perjury, escape)

• Offenses against public order and decency (e.g., fighting, breach of peace, disorderly conduct,

public intoxication, riots, loitering, prostitution)

Classifications based on the type of harm inflicted may be helpful for the purpose of an organization, but

some crimes such as robbery may involve both harms to a person and property. Although generally, whether

a crime is a person or property crime may not have any legal implications when a person is convicted, it may

matter if and when the person commits a new crime. Most sentencing guidelines treat individuals with prior

person-crime convictions more harshly than those individuals with prior property-crime convictions. That

said, it is likely that the defense will argue that it is the facts of the prior case that matter not how the crime

was officially classified.

Mala in se Mala PrMala in se Mala Prohibitaohibita Crimes Crimes have also been classified as either mala in semala in se (inherently evil) or mala prmala prohibitaohibita (wrong simply

because some law forbids them). Mala in se crimes, like murder or theft, are generally recognized by every culture as evil and morally wrong. Most offenses that involve injury to persons or property are mala in se. All of the common law felonies (murder, rape, manslaughter, robbery, sodomy, larceny, arson, mayhem and

burglary) were considered mala in se crimes. Mala prohibita crimes, like traffic violations or drug possession, are acts that are crimes not because they are evil, but rather because some law prohibits them. Most of the

newer crimes that are prohibited as part of a regulatory scheme are mala prohibita crimes. Substantive and Procedural Law Another classification scheme views the law as either substantive law or procedural law. Both criminal law

and civil law can be either substantive or procedural. Substantive criminal law is generally created by statute

or through the initiative process and defines what conduct is criminal. For example, substantive criminal

law tells us that Sam commits theft when he takes Joe’s backpack if he did so without Joe’s permission if he

intended to keep it. Substantive criminal law also specifies the punishment Sam could receive for stealing

the backpack (for example, a fine up to $500.00 and incarceration of up to 30 days). The substantive law

may also provide Sam a defense and a way to avoid conviction. For example, Sam may claim he reasonably

mistook Joe’s backpack as his own and therefore can assert a mistake of fact defense. Procedural law gives

us the mechanisms to enforce substantive law. Procedural law governs the process for determining the

rights of the parties. It sets forth the rules governing searches and seizures, investigations, interrogations,

pretrial procedures, and trial procedures. It may establish rules limiting certain types of evidence, establishing

timelines, as well as require the sharing of certain types of evidence and giving a certain type of notice. The

primary source of procedural law is judicial interpretations of the federal constitution and state constitutions,

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but state and federal statutes, particularly those adopting rules of evidence, also provide much of our

procedural law.

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3.7. Substantive Law: Defining Crimes, Inchoate Liability,

Accomplice Liability, and Defenses

LORE RUTZ-BURRI

Substantive Law Substantive law includes laws that define crime, meaning laws that tell us what elements the government

needs to prove in order to establish that this crime has been committed. Substantive law also includes the

definitions of inchoate crimes (incomplete crimes) of conspiracies, solicitations, and attempts. Substantive law also sets forth accomplice liability (when a person will be held responsible when they work in concert with others to complete a crime). Substantive law also identifies the defenses that a person may raise when they are charged with a crime. Finally, substantive law indicates the appropriate penalties and sentences for

crimes. Today, the great majority of substantive law has been codified and is found in the state’s particular

criminal code or in the federal code. Generally, criminal codes are separated into two parts: a general part

and a special part. The general part typically defines words and phrases that will be used throughout the

code (for example, the word intentionally), indicates all possible defenses and provides the general scheme

of punishments. The special part of the code typically defines each specific crime setting forth the elements of the crime (components of the crime) the government must prove beyond a reasonable doubt in order to convict a defendant of a crime.

Elements of the crime With the exception of strict liability crimes and vicarious liability crime (discussed below), the government

will always have to prove that the defendant committed some criminal act, the actus ractus reuseus element and that he or she acted with criminal intent, the mens rmens reaea element. When proving a crime of conduct, the state must prove that the defendant’s conduct met the specific actus reus requirement. The government must prove that

the defendant’s behavior was either a voluntary act (meaning not the product of a reflex or done while asleep,

or under hypnosis), a voluntary omission to act (meaning that he or she failed to act) when there was a legal

duty to do so, or that he or she possessed some item that should not have been possessed. To meet the mens

rea element, the state must prove that the defendant’s act was triggered by criminal intent. The elements of

a specific crimes may also include what is referred to as attendant circumstances. Attendant circumstances are additional facts set out in the substantive law’s definition that the state must prove to establish a crime, for

example, that the place burglarized be a dwelling, or that the property value is a at least a certain amount.

When proving a crime of causation, the state must also prove that the defendant caused specific, listed

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harm. Although generally not included in the listed elements, to prove a crime of causation, the government

must also prove that the defendant is the actual cause of the harm (actual or but/for cause) and that it is fair to hold him or her responsible (that the defendant is the legal or proximate cause of the harm).

Statutes are generally silent on the other elements of crimes of conduct or crimes of causation: legality and concurrence. The legality element is met when a law is validly enacted and puts people on notice that certain behavior is illegal. Laws are presumed to be valid, and the state generally does not have to begin each

case by proving that proper procedure was followed when the law was enacted. The concurrence element requires the state must also prove that the criminal intent triggered the criminal act–that the mens rea and

actus reus occurred at the same time.

Occasionally, a statute will be silent as to the mens rea element. When this occurs, courts need to decide whether the legislature has intended to create a strict liability crime or has just been sloppy in drafting the law. Strict liability crimes are ones where the government does not have to prove criminal intent. Courts

are disinclined to find in favor of strict liability statutes unless there is a clear indication that the legislature

intended to create strict liability. The courts will examine legislative history, the seriousness of harm caused

by the crime, whether the crime is male in se or mala prohibitum, and the seriousness of the punishment in deciding whether the state should be relieved of its obligation to prove criminal intent of the defendant. As

a general rule, the courts are more likely to find that a crime is a strict liability one when there is a small

punishment and when the crime is more of a recent, regulatory offense (mala prohibitum crime). Inchoate Offenses: Attempt, Conspiracy, and Solicitation In order to prevent future harm, state and federal governments have enacted statutes that criminalize

attempts to commit crimes, solicitations to commit crimes, and conspiracies to commit crimes. The common

law also recognized these inchoate offenses or incomplete offenses. With each of the inchoate crimes, the state must prove that the defendant intended to commit some other crime, the highest level of criminal

intent. For example, there is no crime of attempt, but there is a crime of attempted theft. State laws vary in the approaches and tests of whether the defendant has taken enough steps to be charged with attempt, but all

agree that mere preparation does not constitute an attempt. Conspiracies involve an agreement between at least two parties to commit some target crime. Some jurisdictions also require that there be an overt act in furtherance of the crime (some outward movement towards the commission of the target crime) which

reaffirms there is a meeting of the minds between the co-conspirators. Solicitations involve a person asking another to commit a crime on his or her behalf, and they do not even require an agreement by the person

requested to do so.

Accomplice Liability: Aiders and Abetters People who commit crimes frequently do so with assistance. Substantive criminal law describes when a

person can be found guilty for the acts of another. For example, the common law recognized four parties

to a crime: principal in the first degree, principal in the second degree, accessory before the fact, and

accessory after the fact. Many complicated legal rules developed to offset the harsh common law treatment of

most crimes as capital offenses (death penalty eligible). The modern statutory trend has been to recognize accomplices, people who render assistance before and during the crime, on one hand, and accessories after the fact, people who help the offender escape responsibility after the crime has been committed, on the other.

Accomplices, as treated as equally liable as the main perpetrator as “the hand of one, is the hand of them all.”

Accessories after the fact, under the modern trend, are charged with hindering prosecution or obstructing

justice after the crime are punished to a lesser extent than the main perpetrators.

Vicarious Liability

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A few states have enacted vicarious liability statutes seeking to hold one person responsible for the acts of another, even when they did not provide any assistance and may have not even known about the other’s

behavior. These statutes, generally violate our belief in individual responsibility that only people who do

something wrong should be blamed for the crime. Vicarious liability imputes (transfers) both the criminal

intent and the criminal act of one person to another. Courts generally invalidate these purported vicarious

liability statutes but have at times upheld liability based upon an employer/employee relationship or a parent/

child relationship.

Defenses Assuming the government has proven all the elements of a crime, defendants may nevertheless raise

defenses that may result in their acquittal. Defense is a general term that includes perfect and imperfect defenses, justifications and excuses, and procedural defenses.

Perfect and Imperfect Defenses A perfect defense is one that completely exonerates the defendant. If the defendant is successful in raising

this defense, meaning the jury believes him or her, the jury should find the defendant not guilty. An

imperfect defense is one that reduces the defendant’s liability to that of a lesser crime. If the jury believes the defendant, it should find the defendant guilty of a lesser charge.

Negative Defenses and Affirmative Defenses Sometimes the government is unable to prove all the elements of the crime charged. When this happens,

the defendant may raise a negative defense claim. The defendant doesn’t have to prove anything, instead, he or she just argues that something is missing in the state’s case, that the state did not prove everything the

statute said it had to prove, and therefore the jury should find him or her not guilty. For example, when

charging a defendant with theft, the state must prove that the defendant intentionally took the property of

another. If the jury finds that the defendant did not intend to take the property, or took property that that

was rightfully his or hers, then it should find the defendant not guilty. Negative defenses at their essence

are claims that there are “proof problems” with the state’s case. The defendant’s claim that the state failed to

prove its case does not depend on whether the defendant has put on any evidence or not.

An affirmative defense requires the defendant to put on evidence that will persuade the jury that he or she should either be completely exonerated (for a perfect defense) or be convicted only of a lesser crime (for an

imperfect defense). The defendant can meet this requirement by calling witnesses to testify or by introducing

physical evidence. Because of the presumption of innocence, the burden of proof (the requirement that the party put on evidence and persuade the fact-finder) cannot switch completely to the defendant. The state

must ultimately bear the burden of proving defendant’s guilt by putting on enough evidence that defendant

has committed the crime by proving each and every material element of the crime, and it must convince

the jury of this guilt beyond a reasonable doubt. However, when the defendant raises an affirmative defense,

the burden of production or persuasion switches, at least in part and temporarily, to the defendant. The

defendant’s burden is limited, however, to prove the elements of the defense he or she asserts.

Note the interplay of negative defenses and affirmative defenses. Even if a defendant is unsuccessful in

raising an affirmative defense, the jury could nevertheless find him or her not guilty based upon the state’s

failure to prove some other material element of the crime.

Justifications Sometimes doing the right thing results in harm. Society recognizes the utility of doing some acts

in certain circumstances that unfortunately result in harm. In those situations, the defendant can raise a

justification defense. Justification defenses allow criminal acts to go unpunished because they preserve an

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important social value or because the resulting harm is outweighed by the benefit to society. For example, if

a surgeon cuts someone with a knife to remove a cancerous growth, the act is a beneficial one even though

it results in pain and a scar. In raising a justification defense, the defendant admits he did a wrongful act, such

as taking someone’s life, but argues that the act was the right thing to do under the circumstances. At times,

the state’s view differs from the defendant’s view of whether the act was, in fact, the right thing to do. In

those cases, the state files charges to which the defendant raises a justification defense.

Justification defenses include self-defense, defense of others, defense of property, defense of habitation,

consent, and necessity, also called, choice of evils. Justifications are affirmative defenses. The defendant must

produce some evidence in support of these defenses. In most cases, the defendant must also convince the jury

that it was more likely than not (a preponderance of the evidence) that his or her conduct was justified. For

example, the defendant may claim that he or she acted in self-defense and at trial would need to call witnesses

or introduce physical evidence that supports the claim of self-defense, that it was more likely than not that

his or her actions were ones done in self-defense. State law may vary about how convinced the jury must be

(called the standard of proof) or when the burden switches to the defendant to put on evidence, but all states

generally require the defendant to carry at least some of the burden of proof in raising justification defenses.

Excuses Excuses are defenses to criminal behavior that focus on some characteristic of the defendant. With excuses,

the defendant is essentially saying, “I did the crime, but I am not responsible because I was . . . insane (or too

young, intoxicated, mistaken, or under duress).” Excuses include insanity, diminished capacity, automatism,

age, involuntary intoxication, duress, mistake of fact, and then a variety of non-traditional syndrome excuses.

Like justifications, excuses are affirmative defenses in which the defendant bears the burden of putting on

some evidence to convince the jury that he or she should not be held responsible for his or her conduct.

Procedural Defenses Procedural defenses are challenges to the state’s ability to bring the case against the defendant for some

reason. These defenses point to some problem in the process or the state’s lack of authority to bring the case

rather than facts surrounding the crime or the criminal. Procedural defenses include: double jeopardy (a defense in which the defendant claims that the government is repeatedly and impermissibly prosecuting him

or her for the same crime), speedy trial (a defense in which the defendant claims the government took too long to get his or her case to trial), entrapment (a defense in which the defendant claims the government in some way enticed him or her into committing the crime), the statute of limitations (a defense in which the defendant claims the government did not charge him or her within the required statutory period), and several types of immunity (a defense in which the defendant claims he or she is immune from being prosecuted). Although procedural defenses are considered procedural criminal law, many states include the

availability of these defenses in their substantive criminal codes.

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3.8. Substantive Law: Punishment: Incarceration and Confinement

Sanctions

LORE RUTZ-BURRI

Substantive criminal law not only defines what behaviors are crimes, but also the law that determines

the permissible punishment for the criminal behavior. All three governmental branches of government

impact criminal punishment. One of the most important duties of a judge is to impose a sentence which means determining the appropriate punishment for an offender upon conviction. Thus, punishing offenders

is a judicial function. Because of the trend toward mandatory sentencing, discussed below, much of the

discretion of sentencing has been removed from judges and placed on the prosecutors in their screening and

charging decision-making. As such, punishing offenders may rightly be considered an executive function.

Finally, the lengths of sentences and types of punishment that attach to the various crimes, without regard

to who may be committing the offense, is a product of the legislative process. In the last 30 years, through

ballot measures, propositions, referendum, and initiatives, the people (the general public through voting)

have played a large role in deciding the types and lengths of punishment.

Incarceration/Confinement Sanctions Confinement sanctions include incarceration in prisons and jails, incarceration in boot camps, house arrest,

civil commitment for violent sexual offenders, short term shock incarceration, electronic monitoring, and

split probation (when incarceration is imposed as a condition of probation). Most believe that confinement

is the only effective way to deal with violent offenders. Although people question the efficacy of prison,

regarding it as little more than a factory for producing future criminals, incarceration does protect society

outside the prison from dangerous offenders. Prison is effective at incapacitation, but rarely is it effective at

rehabilitation. In fact, serving time in prison often reinforces criminal tendencies.

State and federal approaches to incarcerating individuals have shifted in response to prevailing criminal

justice thinking and philosophy. Over time, governments have embraced four different approaches to

sentencing offenders to incarceration: indeterminate, indefinite, determinate, or definite. Criminal codes

may incorporate more than one single approach. These approaches can be seen as a spectrum of judicial

discretion. Indefinite and indeterminate sentences, at one end, are those that allow judges and parole boards the most discretion and authority. Determinate and definite sentences, at the other end, allow little or no discretion. Currently, most states are following determinate sentencing coupled with sentencing

guideline, mandatory minimums, habitual offender statutes, and penalty enhancement statutes.

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Indeterminate-Indefinite Sentencing Approach For much of the twentieth century, statutes commonly allowed judges to sentence criminals to

imprisonment for indeterminate periods. Under this indeterminate sentencing approach, judges sentenced

the offender to prison for no specific time frame and the offenders’ release was contingent upon getting

paroled, or released by a parole board after a finding that the person was rehabilitated. Because some criminals would quickly be reformed but other criminals would be resistant to change, indeterminate

sentencing’s open-ended time frame was deemed optimal for allowing treatment and reform to take

its course, no matter how quickly or slowly. The decline of popular support for rehabilitation has led

most jurisdictions to abandon the concept of indeterminate sentencing. Indefinite sentences give judges

discretion, within defined limits, to set a minimum and maximum sentence length. The judge imposes a

range of years to be served, and a parole board decides when the offender will ultimately be released.

Determinate-Definite Sentencing Approach Under determinate sentencing, judges have little discretion in sentencing. The legislature sets specific

parameters on the sentence, and the judge sets a fixed term of years within that time frame. The sentencing

laws allow the court to increase the term if it finds aggravating factors, and reduce the term if it finds

mitigating factors. With determinate sentencing, the defendant knows immediately when he or she will be

released. In determinate sentencing, offenders may receive credit for time served while in pretrial detention

and “good time” credits. The discretion that judges are allowed in initially setting the fixed term is what

distinguishes determinate sentencing from definite sentencing.

Definite sentencing completely eliminates judicial discretion and ensures that offenders who commit the

same crimes are punished equally. The definite sentence is set by the legislature with no leeway for judges or

corrections officials to individualize punishment. Currently, no jurisdiction embraces this inflexible approach

that prohibits any consideration of aggravating and mitigating factors in sentencing. Although mandatory

minimum sentencing embraces some aspects of definite sentencing, judges may still impose longer than the

minimum sentence and therefore retain some limited discretion.

Presumptive Sentencing Guidelines In the 1980s, state legislatures and Congress, responding to criticism that wide judicial discretion resulted

in great sentence disparities, adopted sentencing guidelines drafted by legislatively-established commissions. These commissions proposed sentencing formulas based on a variety of factors, but the

two most important factors in any sentencing guideline scheme were the nature of the crime and the

offenders’ criminal history. Some states enacted advisory sentencing guidelines that gave suggestions to

judges statewide of what was considered an appropriate sentence that should be followed in most cases. Some

states enacted mandatory sentence guidelines that required judges to impose presumptive sentences, the length or type of sentence that was presumed appropriate unless mitigating or aggravating factors were

identified on the record.

Sentencing guidelines generally differentiate between presumptive prison sentences and presumptive

probation sentences. Judges who depart, or (select a different sentence, from the presumptive sentences can do a dispositional departure and impose prison when probation was the presumptive sentence or impose probation instead of prison. Judges may also do a durational departure in which they sentence the offender to a term length different than the presumptive term length, for example, giving an 18-month sentence

rather than a 26-month sentence.

Guideline sentencing allows for judicial discretion, but at the same time, limits that discretion. Judges

must generally make findings when sentencing the offender to a term of incarceration that is different

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from the presumptive sentence. The judge must indicate which aggravating factors (factors indicating the offender or offense is worse than other similar crimes) or mitigating factors (factors indicating the offender or offense is less serious than other similar crimes). The Sentencing Reform Act of 1984 (18 U.S. C.A. §§

3551 et. seq. 28 U.S.C.A. §§991-998) first established federal sentencing guidelines. The Act applied to all

crimes committed after November 1, 1987, and its purpose was “to establish sentencing policies and practices

for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines

prescribing the appropriate sentences for offenders convicted of federal crimes.” Scheb, at 681. It created

the United States Sentencing Guideline Commission and gave it the authority to create the guidelines. The

Commission dramatically reduced the discretion of federal judges by establishing a narrow sentencing range

and required that judges who departed from the ranges state in writing their reason for doing so. The Act

also established an appellate review of federal sentences and abolished the U.S. Parole Commission.

Most states have adopted some version of sentencing guidelines, from the very simple to the very complex,

and many states restrict their guidelines to felonies. Although limiting judicial discretion, state sentencing

guideline schemes all allow some wiggle room if the judge finds that the case differs from the run of the

mill case. In a series of cases, the Court has found that federal and state sentencing guidelines schemes that

do not require the jury to make findings of aggravating factors which justify a harsher sentence imposed

by the judge violate the defendant’s right to a jury trial (found in the Sixth Amendment). See, Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Booker-United States v. Fanfan, 543 U.S. 220 (2005); Blakeley v. Washington, 542 U.S. 296 (2004). Accordingly, some of the sentencing guideline schemes have been invalidated and some modified.

“There is still considerable uncertainty about the efficacy of sentencing guidelines. There is evidence

that they have reduced sentencing disparities but they clearly have not eliminated this problem altogether.

There is also concern that sentencing guidelines have promoted higher incarceration rates and have thus

contributed to the problem of prison overcrowding. It is fair to say that to be successful, sentencing

guidelines must be accompanied by policies designed to effectively manage prison populations.” 1

Controversial Issue: Mandatory Minimum Sentences

Legislative enactments, ballot measures, initiatives, and referendums have resulted in mandatory

minimum sentences schemes in which offenders who commit certain crimes must be sentenced to prison terms for minimum periods. Mandatory minimum sentences take precedence over but do not completely

replace, whatever other statutory or administrative sentencing guidelines may be in place. It is possible for

a judge to impose a sentence that exceeds the mandatory minimum on an offender who, because of his or

her extensive criminal history or particular brutality of the crime, warrants a particularly harsh guideline

sentence.

Mandatory minimum sentences are a type of determinate sentence. Most mandatory minimum sentences

are for violent offenses or those involving the use of firearms. Federal law also mandates minimum prison

terms for serious drug crimes prosecuted in federal courts. For example, a person charged with possession

1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 683). Belmont, CA: Cengage.

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with the intent to distribute more than five kilograms of cocaine is subject to a mandatory minimum

sentence of ten years in prison. See, 21 U.S.C.A. §841 (b) (1)(A).

In our attempts to limit judicial discretion, we may have perhaps gone too far. Judges must impose

mandatory minimum sentences regardless of any compelling mitigating facts that warrant a lesser sentence,

even when victims fervently request leniency for the defendant. Sentencing discretion resting with a

neutral judge has been replaced by charging discretion resting with the prosecutor. Prosecutors, in filing

certain charges, can now compel negotiated pleas, and they now hold most of the cards. Also, mandatory

minimum sentencing has resulted in the over-incarceration of non-violent offenders. On December 18,

2018, a bi-partisan bill for criminal justice reform called the First Step Act passed the U.S. Senate with an

87-12 vote. The bill seeks to reverse some of the effects of overly harsh sentences for non-violent drug

offenders.

Link to Video on the above link showing the Senate Vote on the First Step Act on December

18th2018

https://d2hpjte286tc4h.cloudfront.net/wp-raycom/(Source_%20Senate%20TV/

Twitter/@realDonaldTrump/KCAL/KCBS/CNN/Pool)/2018/12/19/5c1a0dfbe4b0dcad7654b1db/

t_cc7087e930cd408498ddba6821c2a690_name_BHDN_PY_02WE_SENATE_PASSES_CRIMINAL_JU

STICE_REFORM_BILL__4AME_CNNA_ST1_1000000004ee5b22_120_2/file_640x360-600-v3.mp4

http://HTTPS://WWW.REGISTER-HERALD.COM/CNHI_NETWORK/IN-BIPARTISAN-ACT-

SENATE-PASSES-CRIMINAL-JUSTICE-REFORM-BILL-WITH/

VIDEO_115833EC-71D2-5FC3-89BA-980428D75367.HTML

Other Mandatory Sentences–Penalty Enhancements Legislatures have also exercised their authority over sentencing by passing laws that enhance criminal

penalties for crimes against certain victims, for crimes done with weapons, or for hate crimes. For example,

Congress passed the Violent Crime Control and Law Enforcement Act of 1994 that included several

provisions for enhanced penalties for drug trafficking in prisons and drug-free zones and illegal drug use in

federal prisons. States have passed gun enhancements and hate crime enhancements. See, e.g., ORS 161.610 (authorizing enhanced penalties for the use of a firearm during the commission of a felony); Wisconsin v. Mitchell, 508 U.S. 486 (1993) (authorizing enhanced penalties for hate crimes).

Concurrent and Consecutive Sentences Frequently, judges sentence defendants for multiple crimes and multiple cases at the same sentencing

hearing. Judges have the option of running terms of incarceration either concurrently (at the same time) or consecutively (back-to-back). States vary as to whether the default approach on multiple sentences is

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consecutive sentences or concurrent sentences. The Court has held that the decision to impose concurrent

or consecutive sentences was a judicial determination, not a jury determination, and thus not subject to

Apprendi’s rule that any sentencing enhancement factor must be proved to the jury beyond a reasonable doubt. Oregon v. Ice,555 U.S. 160 (2009). Justice Ginsberg wrote,

“Most States continue the common law-tradition: They entrust to judges’ unfettered discretion the

decision whether sentences for discrete offenses shall be served consecutively or concurrently. In some

States, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order

concurrent sentences upon finding cause therefor. The other States, including Oregon, constrain judges’

discretion by requiring them to find certain facts before imposing consecutive rather than concurrent

sentences.” 2

Civil Commitment of Violent Sexual Offenders Some sexual offenders may still be dangerous even after they serve their entire prison term. Both state

and federal laws allow the continued confinement of violent sexual predators after the expiration of their

criminal sentences. In 1997, the Court upheld a Kansas statute finding that such confinement did not violate

the double jeopardy or ex post facto prohibitions. Kansas v. Hendricks, 521 U.S. 346 (1997). In 2010, the Court decided that in enacting the Adam Walsh Act, 18 U.S.C. 4248, Congress had not exceeded its authority by

allowing civil commitment after an offender has served his or her criminal sanction. Justice Breyer wrote,

“the statute is a necessary and proper means of exercising the federal authority that permits Congress to

create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those

imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the

federal imprisonment of others.” 3

Link to 2015 report on Federal Sentencing (includes incarceration and alternatives) (link also included

below with split probation.

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/

alternatives/20150617_Alternatives.pdf

2. Oregon v. Ice, 555 U.S. 160, at 163-164 (2009). 3. United States v. Comstock, 560 U.S. 126, at (2010).

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3.9. Substantive Law: Physical Punishment Sentences

LORE RUTZ-BURRI

Physical Punishment Corporal Punishment Until 1978, the Supreme Court upheld the use of corporal punishment (physical punishment). Ingraham

v. Wright 430 U.S. 651 (1978). However, it is no longer an approved sanction for a criminal offense in the United States. Nonlethal corporal punishment, such as flogging, was used extensively in English and

American common law for non-felony offenses. The misdemeanant was taken to the public square, bound

to the whipping post, and administered as many lashes as the law specified.

“An American judge during the early American Republic was able to select from a wide array of

punishments, most of which were intended to inflect intense pain and public shame. A Virginia statute

of 1748 punished the stealing of a hog with twenty-five lashes and a fine. The second offense resulted in

two hours of pillory (public ridicule) or public branding. A third theft resulted in a penalty of death. False

testimony during a trial might result in mutilation of the ears or banishment from the colony. These penalties

were often combined with imprisonment in a jail or workhouse and hard labor. . .

We have slowly moved away from most of these physically painful sanctions. The majority of states

followed the example of the U.S. Congress, which in 1788 prohibited federal courts from imposing

whipping and standing in the pillory. Maryland retained corporal punishments until 1953, and Delaware

only repealed this punishment in 1972. Delaware, in fact, subjected more than 1600 individuals to whippings

in the twentieth century. This practice was effectively ended in 1978 when the Eighth Circuit Court of

Appeals ruled that the use of the strap, “offends contemporary standards of decency and human dignity and

precepts of civilization which we profess to possess.” 1

Controversial Issue: Capital Punishment: Death Penalty Capital punishment (lethal physical punishment) is a popular topic, and much has been written about the

death penalty. One excellent resource for learning about the death penalty is the death penalty information

center (DPIC), a nonprofit organization that publishes studies and analyzes trends in death penalty law and

application.

Link to Death Penalty Information Center:

https://deathpenaltyinfo.org/

1. Lippman, M.R. (2016) Contemporary Criminal Law: Concepts, Cases, and Controversies (4th ed., pp. 57). SAGE Publishing.

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Link to Death Penalty Information Center Fact Sheet

https://deathpenaltyinfo.org/documents/FactSheet.pdf

See Death Penalty Fast Facts at

https://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/index.html

The use of the death penalty as a response to crime in industrialized nations raises many questions:

• Is the death penalty a deterrent?

• Is the death penalty justified by principles of retribution?

• Is the death penalty morally or ethically justified?

• Does it cost more to impose a death sentence or to impose a true-life sentence?

• Are factually innocent individuals erroneously executed (and if so, how often)?

• Is any particular manner of execution cruel and unusual?

• Is the death penalty, in itself, cruel and unusual punishment?

Courts answer only the last two questions, and, to date, the Court has upheld every manner of execution

that is currently approved in the United States: firing squad, electrocution, gas chamber, hanging, and lethal

injection. The Court appears willing to uphold capital punishment and has found it is not disproportionately

cruel and unusual when the crime for which the defendant was convicted resulted in the death of another.

It has reached an opposite result when the crime did not involve the victim’s death, for example, when the

defendant was convicted of rape of an adult woman and a child rape. See, Coker v. Georgia, 433 U.S. 584 (1977) The Court prohibited capital punishment for the crime of rape of an adult victim. Coker suggests that the death penalty is an inappropriate punishment for any crime that does not involve the taking of human

life. In Kennedy v. Louisiana, 554 U.S. 407 (2008), the Court invalidated a Louisiana statute that allowed for the death penalty for rape of a child less than twelve years of age. Justice Kennedy (not the defendant,

Kennedy) wrote, “the Eighth Amendment bars imposing the death penalty for the rape of a child where the

crime did not result and was not intended to result, in the death of the victim.”

Mental Illness, Mental Deterioration and the Death Penalty

According to Court interpretations, the Eighth Amendment forbids the execution of someone who is legally

insane. Ford v. Wainwright, 477 US 399 (1986). In 2007, the Court ruled that a prisoner is entitled to a hearing to determine his mental condition upon making a preliminary showing that his current mental state would bar his

execution. Panetti. v. Quarterman, 551 US 930 (2007). In one case, the Texas Court of Criminal Appeals in 2013 held that a trial court illegally ordered the forcible medication of a mentally ill death row inmate, Steven Stanley, for the

purpose of rendering him competent to be executed. See, http://www.deathpenaltyinfo.org. Staley’s mental health

began to deteriorate when he entered death row in 1991. He received an execution date in 2006 but was deemed

too ill to be executed. A court ordered that his paranoid schizophrenia is treated by forcible medication, which

continued for six years. In its ruling, the Texas Court of Criminal Appeals held that “the evidence conclusively

shows that appellant’s competency to be executed was achieved solely through the involuntary medication, which

the trial court had no authority to order under the competency-to-be-executed statute. The finding that appellant

Introduction to the American Criminal Justice System

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is competent must be reversed for lack of any evidentiary support”. The ruling did not address whether the state

constitution forbids the execution of someone forcibly drugged or whether the defendant, in this case, is too ill to

be executed at all. Another mentally ill individual, John Ferguson, was executed in August 2013 in Florida through

four mental health organizations maintained that he had suffered from mental illness for at least 40 years. Similarly,

Marshall Gore, another Florida inmate with mental illness, was executed in October 2013.

Link to mental illness and the death penalty

https://deathpenaltyinfo.org/mental-illness-and-death-penalty

A different but related issue is the constitutionality of executing mentally retarded individuals who have

committed capital offenses. In 1989, the Court held that executions of mentally retarded prisoners do not

necessarily violate the Cruel and Unusual Punishment Clause if juries are allowed to consider evidence of mental

retardation as a mitigating factor in the sentencing phase of a capital trial. Penry v. Lynaugh, 492 U.S. 302 (1989).

Later, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court reconsidered, holding that there was a sufficient national consensus for the Court to prohibit the execution of mentally retarded persons via the Eighth Amendment. Justice

Stevens concluded,

“[M]entally retarded person who meets the law’s requirement for criminal responsibility should be tried and

punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of

their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult

criminal conduct” 2 .

On February 27th, 2019 the Court affirmed that the states may not execute a death row inmate who was unable

to understand his punishments due to dementia. In Madison v. Alabama, ___ U.S. ___ (2019), the 70-year-old defendant had spent 33 years in solitary confinement after having been sentenced to death for killing a police officer

in 1985. Madison had suffered a series of strokes causing severe cognitive impairment due to vascular dementia and

the inability to remember his crime. Justice Kagan’s majority opinion held that an inmate’s failure to remember

his crime does not by itself render him immune from execution, but “such memory loss still may factor into the

‘rational understanding’ analysis that Panetti demands.” If memory loss “combines and interacts with other mental

shortfalls to deprive a person of the capacity to comprehend” his death sentence, “then the Panetti standard will be satisfied.” ____ U.S. ____, at ____ (2019)

According to the Court, it doesn’t matter if these “mental shortfalls” stem from delusions, dementia, or some other

disorder. Courts must “look beyond any given diagnosis to a downstream consequence”—whether a disorder can

“so impair the prisoner’s concept of reality” that he cannot “come to grips with” the meaning of his punishment.”

Juvenile Offenders and the Death Penalty

Historically, juveniles were treated no differently than adults in the criminal justice system, and thus,

there is a long history of executing juveniles convicted of capital crimes. In the late 1980s, the Court

2. Atkins v. Virginia, 536 U.S. 304 (2002).

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considered whether national sentiment had changed to the point where it would now be considered cruel

and unusual punishment to apply the death penalty to juveniles. The Court first held that the Constitution

prohibits executing a juvenile who was fifteen years of age or younger at the time he or she committed

the capital crime. Thompson v. Oklahoma, 487 U.S. 825 (1988). One year later, the Court, in a 5-4 decision,

held that a juvenile sixteen years or older at the time of the crime could be sentenced to death. Stanford v.

Kentucky, 492 U.S. 361 (1989). Then, in Roper v. Simmons, 543 U.S. 551 (2005), the Court said that the Constitution forbade the execution of anyone who was under eighteen at the time of their offense. The

Simmons decision pointed to the decreasing frequency with which juvenile offenders were being sentenced to death as evidence of an emerging national consensus against capital punishment for juveniles. The Court

noted that only 20 of the 37 death penalty states allowed juveniles to be executed, and since 1995, only

three states had actually executed inmates for crimes they had committed as juveniles.

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3.10. Substantive Law: Monetary Punishment Sentences

LORE RUTZ-BURRI

Monetary Punishments Fines Fines, or a sum of money the offender has to pay as punishment for the crime, are generally viewed as

the least severe of all possible punishments. Fines may either supplement imprisonment or probation, or they

may be the sole punishment. Criminal codes generally authorize fines as punishment for most crimes, but

some of the older criminal codes did not authorize fines for murder.

The Model Penal Code proposed legislative guidelines on the use of fines, but states have generally

rejected this provision. Instead, judges are given extremely broad discretion in setting the fine amounts,

and there are few limits on the judge’s ability to impose a fine. Frequently, the criminal statute will specify

the highest permissible fine. The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits

excessive fines, but courts rarely have found a fine to violate this provision. In Tate v. Short, 401 U.S. 395 (1971), the Court found that fines that punish poor people more harshly than rich people, and thus, violate

the Equal Protection Clause. Historically, magistrates had given offenders the option of paying a fine or

serving a jail sentence. Sentences were frequently “thirty dollars or thirty days”. If defendants were too poor

to pay the fine, they went to jail. The Tate Court reasoned that the state could imprison Tate for committing the crime, but by requiring either time or a fine, the state was really incarcerating Tate because he was too

poor to pay the fine. After Tate, courts began using installment plans that permit poor defendants to pay fines over a period of several months. This practice may nonetheless subject the poor to an increased punishment

if the court administration requires interest or some fee associated with a payment plan.

Civil Forfeiture Federal law allows civil forfeiture, the process by which the government confiscates the proceeds

(property or money) of criminal activities. See,18 USCA §§981-982. Laws that allow the state to forfeit the property used in illicit drug activity are particularly controversial. In deciding whether forfeiture is legal,

state courts generally look to constitutional provisions dealing with excessive fines. In Austin v. United States, 509 US 602, at 622 (1993), the Supreme Court said that civil forfeiture “constitutes payment to a sovereign

as punishment for some offense’ . . . and, as such, is subject to the limitations of the Eighth Amendment’s

Excessive Fines Clause.” However, the court left it to state and lower federal courts to determine the test

of “excessiveness” in the context of forfeiture. The Illinois Supreme Court said that three factors should be

considered in this regard: (1) the gravity of the offense relative to the value of the forfeiture, (2) whether the

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property was an integral part of the illicit activity, and (3) whether the illicit activity involving the property

was extensive. 1

Federally, a $357,144 forfeiture for failing to report to U.S. Customs that more than $10,000

was being taken out of the country was found to be “grossly disproportionate” to the offense. 2

In one

Pennsylvania case, the court found that forfeiture of a house used as a base of operations in an ongoing drug

business was not excessive. 3

Defendants, whose property has been taken through civil forfeiture, have argued that either the forfeiture

hearing or the criminal trial (whichever happened last) violated their rights to be free from double jeopardy.

However, the courts have not agreed. Instead, they hold that the double jeopardy prohibition is not triggered

because forfeiture is a civil sanction and not considered a new criminal action. United States v. Ursery 518 U.S. 267 (1996). On February 20th, 2019, the Court perhaps provided a different form of attack on civil

forfeitures. In a unanimous opinion in Timbs v. Indiana, ___ U.S. ___ (2019), Justice Ginsberg wrote that the Eighth Amendment’s excessive fines clause applies to the states as well as the federal government, and that

when Indiana civilly forfeited Timbs’ $42,000 land rover after he sold a couple of hundred dollars worth of

heroin, it was imposing an excessive fine.

In order to satisfy due process, the owner is entitled to a hearing before the property can be forfeited.

United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). Courts have found that civil forfeiture is constitutional even when the owner was not aware of the property’s criminal use. For example, in Bennis v. Michigan, 516 U.S. 442 (1996), the Court upheld the government’s seizure and forfeiture of Mrs. Bennis’s car, even though she claimed she did not know that her husband was using their car to engage in prostitution.

In 2000, Congress approved the Civil Asset Forfeiture Reform Act. This Act curbed the government’s asset

forfeiture authority and added additional due process guarantees to ensure that property is not unjustly taken

from innocent owners. Under the Act, the government must show by a preponderance of the evidence that

the property was used in some criminal venture. The Act also limited the statute of limitations to five years

and made it a crime to move or destroy property to prevent seizure for forfeiture. In a similar vein, Oregon

voters passed Ballot Measure 3, the Oregon Property Protection Act of 2000, in the November election. This

constitutional amendment imposed limits on government forfeiture, allowing forfeiture only if the person

from whom the property was seized had been already convicted of the crime, and only if the government

could prove by a clear and convincing evidence standard that the property was a proceed or instrument of

the crime.

Link to http://www.osbar.org/publications/bulletin/06nov/forfeiture.html, for a discussion of the recent

history of asset forfeiture in Oregon and the debate about Ballot Measure 3 and subsequent forfeiture cases

and statutes.

Restitution and Compensatory Fines Restitution refers to the “return of a sum of money, an object, or the value of an object that the

1. Waller v. 1989 Ford F350 Truck, 642 N.E. 2d 460 (Ill. 1994). 2. United States v. Bajakajian, 524 U.S. 321 (1998). 3. In re King Properties, 6235 A.2d 128 (Pa 1983).

Introduction to the American Criminal Justice System

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defendant wrongfully obtained in the course of committing the crime.” 4

When the judge’s sentence includes

restitution, the amount should be enough money to place the victim in the same position they would have

been had the crime not been committed. Restitution orders can include the actual cost of destroyed property,

medical bills, counseling fees, and lost wages. Several state laws require offenders to pay restitution as a

condition of probation. Judges may order defendants to pay restitution for all damages incurred during a

criminal episode, even if the charge is dismissed through negotiations. Judges may also order the defendant

to pay restitution to some party other than the victim.

Ordering restitution is not always practical. When offenders are sentenced to incarceration, they

frequently are unable to pay fines and restitution. Even offenders sentenced to probation may not be able

to make restitution payments. In order to assist crime victims when offenders cannot pay restitution, several

states have established victims’ compensations commissions. Statewide, defendants make their restitution payments to these commissions that pay out restitution claims to victims across the state. Because of the

statewide pot of money, victims can then get some, if not all, of what is needed to “make them whole.” Also,

these commissions make it possible for the victim to get compensated without having to maintain contact

with the offender.

4. Scheb, J.M. & Scheb, J.M. II (2012). Criminal Procedure (6th ed., pp. 268). Belmont, CA: Wadsworth, Cengage Learning.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

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3.11. Substantive Law: Community-Based Sentences

LORE RUTZ-BURRI

In addition to incarceration and monetary sanctions, the defendant may be sentenced to some form of

community-based sanction.

Community Shaming Some judges, seeking alternatives to jail or prison, have imposed creative sentences such as requiring

offenders to post billboards, make public apologies, place signs on the door reading, “Dangerous Sex

Offender, No children Allowed,” and attach bumper stickers proclaiming their crimes. These sentences

are intended to shame or humiliate the offender and satisfy the need for retribution. Shame is part of the

restorative justice movement, but for it to be effective it needs to “come from within the offender. … Shame

that is imposed without almost always hardens the offenders against reconciliation and restoration of the

damage done” http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html

“At the heart of the current discussion of shaming offenders is the assumption that shame is a simple

emotion that comes in only two sizes: shame or no shame. But actually, shame is a complex emotion which

comes in many shapes, sizes, and degrees of intensity. Legal scholars and judges who treat shame as merely

binary are in the position of a skier who makes no distinction between the many kinds of snow. Just as

lack of knowledge of types of snow may lead a skier to disaster, so the crude treatment of shame in current

discussions could be a catastrophe.” 1

Community Service Although not necessarily specified in the criminal code, judges frequently sentence offenders to complete

community service as a condition of probation. Generally, a probation officer or probation staff member will

act as the community service coordinator. His or her job is to link the offender to the positions and verify

the hours worked.

Probation Kerper describes how states began to use probation as a sanction for criminal behavior.

“The authority to grant probation probably grew out of the traditional practice of judges of “suspending

sentences.” The judge would simply fail to set a sentence or set the sentence and fail to direct that it

be executed. The offender would then be released. If the offender’s subsequent behavior was satisfactory,

nothing more would be done. If he had further difficulty with the law, the judge, usually on request of the

1. http://www.critcrim.org/redfeather/journal-pomocrim/vol-8-shaming/scheff.html

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prosecutor, would revoke his freedom. This time the judge would set a sentence, or reinstate the previous

sentence, and the sentence would be executed. The common law authority of a judge to spend a sentence

was questionable, but many judges regularly exercised that authority.

Since the defendant released on a suspended sentence was not subject to formal supervisions, judges tended

to suspend sentences only in minor cases. In the late 1800s, courts began to experiment with a combination

of a suspended sentence and careful supervision that could be applied to more serious offenses. This new

procedure, called probation, soon was authorized by statute and provision was made for the appointment of

special probation officers.” 2

Probation is one of the most common alternatives to incarceration. Both probation and parole involve supervision of the offender in a community setting rather than in jail or prison. The primary purpose

of probation is to rehabilitate the defendant. Thus, the court releases the offender to the supervision of

a probation officer who then monitors the offender to ensure that he or she abides by the conditions of

probation. With parole, the offender is first incarcerated and is later released from prison to supervised control. Under both procedures, offenders who violate the terms of their supervision can be imprisoned to

serve the remainder of their sentences.

The Court has said little on probation since 1932 when it announced that probation conditions must

serve “the ends of justice and the best interest of both the public and the defendant.” Burnes v. United States, 287 U.S. 216 (1932). According to the Ninth Circuit Court of Appeals, “The only factors which the trial

judge should consider when deciding whether to grant probation are the appropriateness and attainability

of rehabilitation and the need to protect the public by imposing conditions which control the probationer’s

activities.” Higdon v. United States, 627 F.2d 893 (9th Circ. 1980). The Court has fashioned a two-step process for reviewing conditions of probation: first, it determines whether the conditions are permissible, and, if so,

it determines whether there is a reasonable relationship between the conditions imposed and the purpose of

probation.

Many states follow California’s standard for testing the reasonableness of probation conditions. This

approach holds that probation conditions do not serve the ends of probation and are not valid if (1) the

condition of probation has no relationship to the crime of which the offender was convicted, (2) the

condition relates to conduct which is not in itself criminal, or (3) the condition requires or forbids conduct

which is not reasonably related to future criminal act. People v. Dominguez, 64 Cal. Rptr. 290 (Cal. App. 1967) The court struck down a condition that the “probationer not become pregnant without being married,”

saying it was unrelated to her offense or to future criminality.

Courts have invalidated the following probation conditions:

• Requiring the offender to refrain from using or possessing alcoholic beverages when nothing

in the record showed any connection between alcohol consumption and the weapons violation

of which the probationer had been convicted. Biller v. State, 618 So. 2d 734 (Fla 1993).

• Requiring the defendant to submit to a search of herself, her possessions, and any place

2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 339). West Publishing Company.

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where she may be with or without a search warrant, on request of a probation officer. (The

Court noted that search of a probationer and his or her residence, with or without a warrant,

based on reasonable suspicion that probationer violated the terms of probation would be valid.)

Commonwealth v. LaFrance, 525 N.E. 2d 379 (Mass. 1988).

• Prohibiting custody of children unless it had a clear relationship to the crime of child abuse.

• Prohibiting marriage and pregnancy.Rodriguez v. State, 378 So.2d 7 (Fla. App. 1979).

• Prohibiting the defendant from fathering any children during the probation period. Burchell

v. State, 419 So.2d 358 (Fla. App. 1982).

• Requiring the defendant to maintain a short haircut. Inman v. State, 183 S.E.2d 413 (GA. App. 1971)(the court found this condition was an unconstitutional invasion of the right to self-

expression).

Courts have upheld the following conditions:

• Prohibiting offenders convicted of child pornography from having access to the internet,

possessing a computer, and requiring the offender to submit to polygraph testing. See, United

States v. Zinn, 321 F.3d. 1084 (11th Cir. 2003), United States v. Rearden, 349 F.3d 608 (9th Cir.

2003), State v. Ehli, 681 N.W. 2d 808 (N.D. 2004), People v. Harrisson, 134 Cal.App.4th 637 (2005).

• Prohibiting the probationer from fathering any additional children unless he could

demonstrate he had the financial ability to support them, and that he was supporting the nine

children he had fathered. State v. Oakley, 629 N.W. 2d 200 (Wis. 2001).

• Requiring probationers to pay all fees, fines, and restitution, refrain from contacting the

victim, undergo treatment for substance abuse, participate in alternatives to violence classes,

stay in school, not leave the state without permission, abstain from alcohol, not drive. These

conditions that apply to all probationers are referred to as “general conditions of probation.”

Many jurisdictions authorize split probation and allow the judge to sentence the offender to a short period of jail as a condition of probation. In some cases, the offender will serve his jail time before he returns to the

community under probation supervision. In others, he will be released first and serve his time on weekends.

The federal system uses a similar procedure involving a more substantial jail sentence. The judges impose a

Introduction to the American Criminal Justice System

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split sentence under which the probationer is imprisoned for a period up to six-month and then is released on probation.

Link to alternative sentencing for federal system

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/

alternatives/20150617_Alternatives.pdf

Parole and Post-Prison Supervision Because most states now use determinate sentencing, the use of parole is dwindling and is being replaced

by post-prison supervision of offenders after their incarceration. However, for offenders sentenced in the

1970s and 1980s under indeterminate sentencing schemes, parole continues to be very real hope, even if an

unlikely possibility.

Charles Manson Exercise

Consider the case of notorious California killer Charles Manson who died in state custody in November 2017 at

the age of 83. Manson was found guilty in 1969 of the murder of five people. He was sentenced to death, but his

sentence was converted in 1977 to “life with the possibility of parole” after the California Supreme Court invalidated

its state death penalty statute. Manson applied for parole for the twentieth time in 2012, he was 78 years old at

the time. Under a change in parole release law, the next time Manson would have been eligible for parole was in

2027. The board noted that if he were to complete programs designed to help deal with some of his issues, then

he could petition for release sooner. Listen to the hearing at http://abcnews.go.com/US/charles-manson-denied-

parole-dangerous-man/story?id=16111128.

“[T]he states which have adopted determinate sentencing structures have either eliminated or drastically

restricted parole. In states with indeterminate sentencing, however, parole remains an essential element of

the sentencing structure. Parole involves the release of the prisoner subject to conditions similar to those

imposed on the probationer. Parole may be granted by the responsible state agency (usually called a parole

board) after the prisoner has served his minimum sentence. The parole board usually has several members,

who are either interested citizens appointed by the governor or corrections department personnel selected

by the head of that department. Frequently the board will be assisted by special hearing officers who hold

hearings and make recommendations to the board. Most parole boards automatically schedule hearings for

every inmate as soon as he becomes eligible for parole. If he is not released at that point, subsequent hearings

will be scheduled at regular intervals.” 3

The procedures of parole hearings vary from state to state. Indeed, not all states regularly hold hearings. A

few prefer simply to review the files in the case, permitting the prisoner to submit a statement on his own

behalf. Ordinarily, hearings are rather informal affairs held before a hearing officer or one or more board

3. O'Leary, V., & Hanrahan, K. (1977). Law and practice in parole proceedings: A national survey. Crim. L. Bull., 13, 181-197..

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members. The prisoner will be informed of the material in their parole file, which relates primarily to their

offense, their prior criminal record, and their performance in prison. The prisoner also will be given the

opportunity to state their own case for parole and to ask any questions about the parole process. In almost

half of the states, they may be assisted by an attorney, and several states will appoint an attorney upon request

of an indigent prisoner. The remaining states prohibit representation by an attorney on the ground that it

interferes with the board’s evaluation of the prisoner’s statements and demeanor at the hearing. Shortly after

the hearing, most boards will provide the prisoner with a written explanation of its decision. If the prisoner

is not released on parole, they must be released after they have served their full sentence.

Parolees are subject to a variety of conditions that are similar to probation conditions. They must contact,

or “report to”, their parole officers on a regular basis and attend regular meetings. They may be released to

halfway houses, residential treatment programs, or daytime work-release programs at the beginning of their

parole in order to prepare for return into the community.

Even when states sentencing schemes utilize parole, not all inmates are eligible for parole. In some states,

prisoners forfeit their eligibility for parole if they attempt to escape or if they engage in certain violent acts.

Also, many states have true life sentences or sentences where the offender is not eligible for parole, and persons convicted of first-degree murder are frequently sentenced to life without the possibility of parole.

Post-prison supervision stems from determinate sentencing schemes that states adopted beginning in the 1980s. Post-prison supervision boards are now often combined with parole boards, and they perform a

similar function. Offenders do not apply for post-prison supervision since release is automatically given when

the determinate sentence has been served. Generally, how long a person will be on post-prison supervision

is set out in state sentencing guidelines. A post-prison supervision board will monitor whether the offender

is abiding by the conditions of release while living in the community. If an offender violates conditions of

release during post-prison supervision, he or she is entitled to a revocation hearing with the same due process

protections given to parolees, i.e: notice, opportunity to challenge government’s evidence, and the right to

assistance of counsel.

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3.12. Procedural Law

LORE RUTZ-BURRI

As noted above, procedural law governs the process used to investigate and prosecute an individual who

commits a crime. Procedural law also governs the ways a person convicted of a crime may challenge their

convictions. The source of procedural law includes the same sources of law you have just read about which

govern substantive criminal law: the constitution, cases law or judicial opinions, statutes, and common law.

Whereas most substantive criminal law is now statutory, most procedural law is found in judicial opinions

that interpret the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment to the U.S. Constitution, the U.S.

Code, and the state constitutional and legislative counterparts. Generally, the federal and state constitutions

set forth broad guarantees (for example, the right to a speedy trial), then statutes are enacted to provide more

definite guidelines (for example, the Federal Speedy Trial Act) and then judges flesh out the meaning of

those guarantees and statutes in their court opinions.

Phases of the Criminal Justice Process The processing of a case through the criminal justice system can be broken down into five phases:

investigative phase, the pre-trial phase, the trial phase, the sentencing phase, and the appellate or post-

conviction phase.

Investigative Phase The investigative phase is governed by laws covering searches and seizures (searches of persons and

places, arrests and stops of individuals, seizures of belongings), interrogations and confessions, identification

procedures (for example, line ups, showups, and photo arrays). This phase mostly involves what the police

are doing to investigate a crime. However, when police apply for a search, seizure or arrest warrant, “neutral

and detached” magistrates (i.e., judges) must decide whether probable cause exists to issue search warrants,

arrest warrants, and warrants for the seizure of property and whether the scope of the proposed warrant is

supported by the officer’s affidavit (sworn statement). When an individual is arrested without a warrant, judges will need to promptly review whether there is probable cause exists to hold them in custody before

trial.

Pretrial Phase The pretrial phase is governed by laws covering the initial appearance of the defendant before a judge or

magistrate; the securing of defense counsel, the arraignment process (in which the defendant is informed of

the charges which have been filed by the state); the process in which the court determines whether to release

the defendant pre-trial either with some financial surety (posting bail) or on his or her own recognizance

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and with court-determined conditions imposed (for example, not having contact with the alleged victim);

the selection and use of a grand jury or preliminary hearing processes (in which either a grand jury or a

judge determines whether there is sufficient evidence that a felony has been committed); any pretrial motions

such as motions to suppress evidence (for examples, asking the court not to let the government use evidence

it may have obtained illegally through a search or getting a confession), motions to challenge a subpoena,

motions to change venue (to move the trial), motions to join or sever cases (for example if two or more

individuals are charged with the offense, should the trials be held together or separately). During the pretrial

phase, prosecutors and defendants through their defense attorneys will engage in plea bargaining, and will

generally resolve the case before a trial is held.

Trial Phase The trial phase is governed by laws covering speedy trial guarantees, the selection and use of petit jurors

(trial jurors); the rules of evidence (statutory and common law rules governing the admissibility of certain types of evidence such as hearsay or character evidence, the competency and impeachment of witnesses,

the existence of any privilege, and the exclusion of witnesses during the testimony of other witnesses);

the right of the defendant compulsory process (to secure favorable testimony and evidence); the right of the defendant to cross-examine any witnesses or evidence presented by the government against him; fair

trials free of prejudicial adverse pre-trial or trial publicity; fair trials which are open to the public; and the

continued right of the defendant to have the assistance of counsel and be present during his or her trial.

Sentencing Phase The sentencing phase is governed by rules and laws concerning the substantive criminal laws on

punishment (discussed above); time period in which a defendant must be sentenced; the defendant’s right of allocution (right to make a statement to the court before the judge imposes sentence); any victims’ rights to appear and make statements at sentencing; the defendant’s rights to present mitigation evidence and

witnesses; and the defendant’s continued rights to the assistance of counsel at sentencing. In capital cases in

which the state is seeking the death penalty, the trial will be bifurcated (a trial split into the “guilt/innocence phase” and the “penalty phase”) and the sentencing hearing will be more like a mini-trial.

Post-Conviction Phase (Appeals Phase) The post-conviction phase is governed by rules and laws concerning the time period in which direct

appeals must be taken; the defendant’s right to file an appeal of right (the initial appeal which must be reviewed by an appellate court) and right to file a discretionary appeal; the defendant’s right to have the

assistance of counsel in helping to file either the appeal of right or a discretionary appeal. The post-conviction

phase is also governed by rules and laws concerning the defendant’s ability to file a writ of habeas corpus (a civil suit against the entity who is currently holding the defendant in custody) or a post-conviction relief suit (a civil suit similar to a habeas corpus suit but one which can be filed by the defendant regardless if he or she is in custody). The post-conviction phase would also include any probation and parole revocation

hearings.

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4: Criminal Justice Policy

Learning Objectives

In this section, you will be introduced to policy in the criminal justice system. Policies that can be examined

include issues related to juvenile justice, drug legislation, intimate partner violence, prison overcrowding, school

safety, new federal immigration laws, terrorism, and national security. After reading this section, students will be

able to:

• Examine the relationship between theory, research, and policy.

• Understand the factors involved in creating moral panics.

• Identify the stages involved in creating policy.

• Understand the role of evidence-based practice in policy.

• Reflect on how current events and politics shape policy.

Critical Thinking Questions

1. What is a current example of a moral panic?

2. How does the media help influence policy?

3. If the media has so much influence over policy, how can we ensure fair and just laws and practices?

4. Think of a crime problem in your area. What policy would you enact to combat it and how would you

evaluate this policy to see if it was working?

5. What are some policies you can think of that have changed over time? (eg. Marijuana legalization)?

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4.1. Importance of Policy in Criminal Justice

ALISON S. BURKE

Why is Policy so Important in Criminal Justice? Everyone is affected by the criminal justice system through public policy. Policy represents social control

and ensures members of society are compliant and conform to the laws. Policies include issues related: to

juvenile justice, drug legislation, intimate partner violence, prison overcrowding, school safety, new federal

immigration laws, terrorism, and national security.

Modern-day crime policies can be traced to changes in crime and delinquency in the 1960s. That decade

saw major increases in the crime rate along with widespread social unrest as a result of the Vietnam War and

the Civil Rights movement. The work of the 1967 President’s Commission on Law Enforcement and the

Administration of Justice highlighted the crime problem, and the criminal justice system’s failure to address

the problem. The commission called for new approaches, programs, policies, funding models, and research

on the cause of crime. In addressing the causes of crime (theory), and using appropriate data collection

(research), effective policies and programs could be proposed.

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Theory-Policy-Research

When discussing crime policies, it is important to understand the difference between “crime prevention”

and “crime control.” Policies and programs designed to reduce crime are crime prevention

techniques. Specifically, crime prevention “entails any action designed to reduce the actual level of crime and/or the perceived fear of crime.”

1 On the other hand, crime control alludes to the maintenance of

the crime level. Policies, such as the three strikes law or Measure 11, seek to prevent future crime by

incapacitating offenders through incarceration. Other policies like sex offender registration acknowledge

that sex offenders exist and registering them will control the level of deviation, sometimes preventing-or

perceiving to prevent future offenses.

Public policies and laws are created at different levels of government, with micro-level policies enacted on

the local level and macro level applied at the federal or state level. For example, at the local level, some towns

and cities might create specific ordinances tailored to their unique needs, such as banning cigarette smoking

in the downtown area. At the federal level, policies are created that apply to the federal criminal justice

system and can apply to states as well. However, federal laws can differ from state laws, such as marijuana

legalization. Individual organizations can also make policies that address their individual agency needs, such

as requirements for local police officers. Therefore, depending on who creates the policies, they can be far-

reaching or extremely localized. 2

Fake News Exercise

1. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations. (9th ed.). New York, NY: Routledge. 2. Lab, S P., Williams, M.R. Holcomb, J.E., Burek, M.W., King, W.R., & Buerger, M.E. (2013). Criminal Justice: The Essentials (3rd ed.).

New York, NY. Oxford University Press.

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Fake News has received a lot of press lately. In fact “fake news” was the top word in 2017. For people under 30,

online news is more popular than TV news and people under 50 get half of their news from online sources.

Here are 4 steps for evaluating News:

1. Vet the Publisher’s Credibility.

• What is the domain name? A domain name that ends with “.com.co” is not to be trusted. Something

like abcnews.com looks legit, but if it is listed as abcnews.com.co, be wary.

• What is the publication’s point of view? Check out the “About Us” section to learn more about the

publishers. It will also tell you if the publication is meant to be satirical, like the Onion.

2. Pay Attention to Writing Quality.

• Does the publication have all caps or way too many emphatic punctuation marks?!?!?!? Proper

reporting does not adhere to such informal grammar. The article you are reading is probably not vetted.

3. Check out the Sources and Citations.

• Does the publisher meet academic citation standards? Your teachers and professors constantly tell you

to cite and reference appropriately. This is how we can check your sources. The same is true for online

news. Check the sources.

Ask the Pros

• Check out fact-checking websites like factcheck.org

Read more at https://www.summer.harvard.edu/inside-summer/4-tips-spotting-fake-news-story

Take the Fake News Quiz! https://www.channelone.com/feature/quiz-can-you-spot-the-fake-news-story/

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4.2. The Myth of Moral Panics

ALISON S. BURKE

Moral panic has been defined as a situation in which public fears and state interventions greatly exceed the objective threat posed to society by a particular individual or group who is/are claimed to be responsible for

creating the threat in the first place. 1

Moral panics arise when distorted mass media campaigns create fear and reinforce previously held or

stereotyped beliefs, frequently centered around ethnicity, religion, or social class. Often, moral panics occur

swiftly, focusing attention on the behavior and then fluctuating concern over time. The most problematic

aspect of the moral panic is that the hysteria often results in a need to “do something” about the issue and

most commonly “results in the passing of legislation that is highly punitive, unnecessary, and serves to justify

the agendas of those in positions of power and authority.” Moral panics focus attention on what we should

fear and who we should blame for that fear. Instigators of moral panics frequently misinterpret data for their

own agenda. Cohen (1972) said at least five sets of social actors are involved in a moral panic. These include

1) folk devils, 2) rule or law enforcers, 3) the media, 4) politicians, and 5) the public. 2

Moral Panics, Sex Offender Registration, and Youth

In her article, “There Are Too Many Kids on the Sex Offender Registry,” Lenore Skensazy discusses the

unpopular view that perhaps sex offender registration is more harmful than helpful.

The purpose of sex offender registries is to prevent one of the worst of the worst crimes: sexual assault.

However, Roger Lancaster, author of “Sex Panic and the Punitive State” suggests that “Only a tiny fraction

of sex crimes against children are committed by people who are on the registry.” About 5 percent of people

on the list go on to commit another crime, a far lower recidivism rate than almost any other class of

criminals, including drug dealers, arsonists, and muggers (Skenazy, 2018, para 4).

1. Bon, S.A (2015, July 20). Moral Panic: Who benefits from fear? Psychology Today, https://www.psychologytoday.com/us/blog/wicked- deeds/201507/moral-panic-who-benefits-public-fear

2. Cohen, S. (1972). Folk devils and moral panics: The creation of the mods and rockers. London: MacGibbon and Key Ltd.

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“Available research indicates that sex offenders, and particularly people who commit sex offenses as

children, are among the least likely to re-offend,” Human Rights Watch has found. Furthermore, the U.S.

Bureau of Justice Statistics reports that the “single age with the greatest number of offenders from the

perspective of law enforcement was age 14.” This means that 14-year-olds, more than any other age, are

being placed on a lifetime registry.

Sometimes this results from minors engaging in consensual sexual encounters simply because they are

underage and cannot legally consent. And in some states, sexual contact is not required to end up on

the registry. In some instances, sexting under the age of 18 is a felony and can earn someone a place on

the registry. Until recently, Missouri offenders were grouped together in one category regardless of the

offense so individuals who urinated in public endured lifelong registration and were categorized with the

worst of the rapists and molesters. There was no distinction or tier structure.

Is lifelong registration appropriate punishment or is it being strictly punitive? Most offenders serve their

time in prison and therefore serve their debt to society. This is not the case with life long sex offender

registrants who can’t live near a school, park, or playground and must report to authorities anytime they

get a new job, a new place to live, or even a new hairstyle. They can never fully re-enter society and are

seen as never being able to be rehabilitated.

All these requirements are based on the “flawed but pervasive idea that those convicted of sex offenses

became incurable and predatory monsters requiring—and deserving—lifetime punishment,” writes Emily

Horowitz, a professor of sociology at St. Francis College and author of two books on this subject.

What would happen if the registry were to disappear? All other criminal laws would remain in place,

including increased penalties for repeat offenses. Only the list, and the dehumanization it wreaks would be

gone.

“If my child was victimized, I’d want to kill a person,” Horowitz says. “But what if my child was a

victimizer? I’d also want them to have a chance” (Skenazy, 2018, para 15).

Read more at: https://reason.com/archives/2018/04/09/there-are-too-many-kids-on-the

Ted Talk: How Fake News Does Real Harm

https://www.ted.com/talks/stephanie_busari_how_fake_news_does_real_harm?language=en

First, folk devils are the people who are blamed for being allegedly responsible for the threat to society. Folk devils are completely negative and have no redeeming qualities. This is how juvenile offenders, or “super-

predators” as they were referred to in the 1990s. The narrative went like this:

We’re talking about kids who have absolutely no respect for human life and no sense of the future….And

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make no mistake. While the trouble will be greatest in black inner-city neighborhoods, other places are

also certain to have burgeoning youth-crime problems that will spill over into upscale central-city districts,

inner-ring suburbs, and even the rural heartland…They kill or maim on impulse, without any intelligible

motive…The buzz of impulsive violence, the vacant stares and smiles, and the remorseless eyes…they

quite literally have no concept of the future….they place zero value on the lives of their victims, whom

they reflexively dehumanize…capable of committing the most heinous acts of physical violence for the

most trivial reasons…for as long as their youthful energies hold out, they will do what comes “naturally”:

murder, rape, rob, assault, burglarize, deal deadly drugs, and get high. 3

Folk devils are the embodiment

of evil and center stage of the moral panic drama. They have no redeeming qualities so it is easy for the

population to fear and hate them.

Second, the police or other law enforcement officials (prosecutors or even the military) are essential

for propagating the moral panic since they are responsible for upholding and enforcing codes of conduct

and expectations of the citizens. They are expected to protect society from the folk devils by detecting,

apprehending, and punishing their evil ways. Furthermore, the moral panic can offer law enforcement

legitimacy as moral crusaders and protectors. Law enforcement has a purpose to defend society and rid it of

the folk devils which threaten their safety and well being.

Third, the media are particularly powerful in creating and advancing the moral panic. Generally, news

media coverage of folk devils is often skewed and exaggerated. The media coverage often displays the folk

devils as much more threatening to society than they really are. Journalists feed public anxiety and fear,

which heightens the moral panic. Media influences policy in two ways:

(1) they select the “important” issues (agenda setting),

(2) they problematize policy by attaching meaning to it. In this way, the frame and construct the

narratives.

Agenda setting is the way the media draw the public’s eye to a specific topic. Framing refers to a type of agenda setting in a prepackaged way and narratives are about the story that is told. Said another way, framing focuses on the broad categories, segments, or angles through which a story can be told. Frames

include factual and interpretive claims that allow people to organize events and experiences into groups.

Narrative construction involves decisions by storytellers that determine the specific characters, plot, causal

implications, and policy solutions presented. Narratives are pictures that the public already accepts and

embraces (See Table 1 for examples of criminal justice frames and narratives). Journalists and reporters are

taught to tell stories through first-hand accounts and experiences people have because audiences care about

these human experiences and their stories more than they care about abstract societal issues. In theory, then,

journalists and reporters are the gatekeepers to the information and they choose how they organize and

present ideas to the public. This helps us create social meaning from events or actions (See Table 2 for

framing techniques). 4

Table 1: Criminal Justice Frames and Examples of Narratives

3. Dilulio. (1995). https://www.weeklystandard.com/john-j-dilulio-jr/the-coming-of-the-super-predators 4. Crow, D.A., & Lawlor, A. (2016). Media in the policy process: Using framing and narratives to understand policy influences. Review of

Policy Research. 33(5): 472-495

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Frame Cause Policy

Faulty system Crime stems from criminal justiceleniency and inefficiency. The criminal justice system needs to get tough on crime

Blocked opportunities

Crime stems from poverty and inequality

The government must address the “root causes” of crime by creating jobs and reducing poverty.

Social breakdown

Crime stems from family and community breakdown Citizens should band together to recreate traditional communities.

Racist system The criminal justice system operates ina racist fashion African Americans should band together to demand justice

Violent media Crime stems from violence in the massmedia The government should regulate violent imagery in the media

Narrative Costume Characteristic

The PI Cheap suit and car Loner, cynical, shrewd, shady but dogged

The rogue cop Plainclothes, disguise, often has specialhigh tech equipment Maverick, smart, irreverent, violent but effective

The sadistic guard Unkempt uniform

Low intelligence, violent, racist, sexist, perverted, and enjoys cruelty, inflicting pain, and humiliation

The corrupt lawyer Expensive suite and office

Smart, greedy, manipulative, dishonest, smooth talker and liar, able to twist words, logic, and morality

The greedy businessman

Very expensive office and home, trophy wife

Very smart, decisive, and a polished, unquenchable sometimes psychotic need for power and wealth

[Footnote]Surette, R. (2011). Media, crime, and criminal justice: Images, realities, and policies (4th ed.). Belmont, CA: Wadsworth Publishing. [/footnote]

Table 2: Framing Techniques

Framing techniques per Fairhurst and Sarr (1996):

• Metaphor: To frame a conceptual idea through comparison to something else.

• Stories (myths, legends): To frame a topic via narrative in a vivid and memorable way.

• Tradition (rituals, ceremonies): Cultural mores that imbue significance in the mundane, closely tied to artifacts.

• Slogan, jargon, catchphrase: To frame an object with a catchy phrase to make it more memorable and relate-able.

• Artifact: Objects with intrinsic symbolic value – a visual/cultural phenomenon that holds more meaning than the object itself.

• Contrast: To describe an object in terms of what it is not.

• Spin: to present a concept in such a way as to convey a value judgment (positive or negative) that might not be immediately apparent; to create an inherent bias by definition. (Fairhurst, G. & Sarr, R. 1996. The art of Framing. San Francisco: Jossey-Bass.)

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Fourth, politicians are also protagonists in a moral panic. They spin the public opinion and present

themselves as the safeguards of the moral high ground. They are similar to law enforcement in this drama

and they have an obligation to protect society from folk devils.

The fifth and final category of moral panic is the public. The public is the most important actor on the

stage. Public anxiety and fear over the folk devils is the central theme of moral panics. A moral panic only

exists because the public cries out for policymakers and law enforcement to “do something” and save them

from the alleged threat that has been created.

Carlson, M. (2018). Fake news as an informal moral panic: The symbolic deviance of social media during

the 2016 US presidential election. Information, Communication, and Society. https://doi.org/10.1080/ 1369118X.2018.1505934

https://www.tandfonline.com/doi/abs/10.1080/1369118X.2018.1505934?journalCode=rics20

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4.3. The Stages of Policy Development

ALISON S. BURKE

The stages of policy development can generally be categorized into 5 general stages. U.S. policy

development encompasses several stages. Most policy models generally include the following stages: (1)

identifying the issue to be addressed by the proposed policy, (2) placement on the agenda, (3) formulation

of the policy, (4) implementation of the policy, and (5) evaluation of the policy. This is similar to the

community police response acronym SARA (scanning, analysis, response, and assessment) and uses some of

the same techniques, but on a much bigger, national level.

Dangerous Myths about Juvenile Sex Offenders

https://www.youtube.com/watch?reload=9&v=81hy3AZjkr4

Identifying the Problem and Agenda Setting Identifying the problem involves addressing what is happening and why it is an issue. In criminal justice,

this might look at the increase of opioid use and overdoses or acts of youth violence. Once the issue is

identified, there can be a serious debate about the plans of the policy. Once it is decided what the policy will

look like, it is placed on the agenda. This is perhaps the most politicized part of the process as it involves

many different stakeholders. It involves identifying the legislative, regulatory, judicial, or other institutions

responsible for policy adoption and formulation.

Formulation and Adoption The next stage involved adopting the policy. Depending on the nature of the policy, this could involve a

new law or an executive order.

Implementation of the Policy Implementation is about moving forward, taking action, and spending money. It involves hiring new staff

or additional police officers. This is where policies often stall because of the lack of funding. For example,

a popular program in 1990, Weed and Seed, involved “weeding” out criminals (targeting arrest efforts) and

“seeding” new programs (instituting after-school programs, drug treatment facilities, etc.). The weeding

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portion of the program was a great success, but the program ultimately failed because of a lack of funding to

adequately seed new community programming. Funding is a major roadblock for proper implementation.

Evaluation Finally, the evaluation examines the efficacy of the policy. There are three different types of evaluation:

Impact, Process, and Cost-benefit analysis. Impact (outcome) evaluations focus on what changes after the introduction of the crime policy.

1 Changes in police patrol practices aimed at reducing the level of

residential burglaries in an area are evaluated in terms of subsequent burglaries. The difficulty with impact

evaluations is that changes in the crime rate are rarely, if ever, due to a single intervening variable. For

example, after the implementation of curfew laws for juvenile offenders, juvenile crime decreased. Can

we say that was because of curfew laws? The entire crime rate for America decreased at the same time.

Attributing a single outcome based on a solitary intervention is problematic.

Process evaluations consider the implementation of a policy or program and involve determining the procedure used to implement the policy. These are detailed, descriptive accounts of the implementation of

the policy including the goals of the program, who is involved, the level of training, the number of clients

served, and changes to the program over time. 2

Unfortunately, process evaluations do not address the actual

impact policy has on the crime problem, just what was done about a specific issue or who was involved.

While this is indeed a limitation, it is essential to know the inner workings of a program or policy if it is to

be replicated.

Cost-benefit evaluations, or analysis, seeks to determine if the costs of a policy are justified by the benefits accrued. A ubiquitous example of this would be an evaluation of the popular anti-drug D.A.R.E.

program of the 1980s and 1990s. The D.A.R.E. program was a school-based prevention program aimed at

preventing drug use among elementary school-aged children. Rigorous evaluations of the program show

that it was ineffective and sometimes actually increased drug use in some youth. The cost of this program

was roughly $1.3 billion dollars a year (about $173 to $268 per student per year) to implement nationwide

(once all related expenses, such as police officer training and services, materials and supplies, school resources,

etc., were factored in). 3

Using a cost-benefit analysis, is that a good use of money to support an ineffective

program?

Policy formation is often a knee-jerk reaction to the current problem. Many policies are the result of

grassroots efforts to change something in their communities. For example, let us pretend the issue is youth

crime in our city. Kids are roaming the streets like packs of wild dogs, jeering at the elderly, and generally

making us feel unsafe. A proposed policy might be to hold parents accountable for their child’s misbehavior.

If parents are responsible, then they will take better care of their kids, right? Take, for example, Little Skippy.

He’s kind of a jerk. He smokes, curses, and recently stole his neighbor’s car. Arrested after crashing into the

drive-thru sign at the local Taco Bell, based on parental responsibility law, his mom and dad are to blame for

his reckless driving fiasco. Let’s look at the policy process.

1. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations (9th ed.). New York, NY: Routledge. 2. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations (9th ed.). New York, NY: Routledge. 3. Shepard, E. (Winter 2001-2002) A new study finds. We wasted billions on D.A.R.E. Reconsider Quarterly,

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1. How can this be instituted? Fine the parent? Sentence the parents to jail time? The policy

needs to be a concrete solution to a problem. Many states use fines instead of jailing the parents.

(Who’s to watch over the children if the parents are locked up?) Fines sound great. This will

make sure parents take an active interest in their children because they do not want to have to

pay money if their kid gets into trouble.

2. Who needs to be involved in lobbying for this law? Legislators? Senators? Local police?

Maybe even city officials, local school boards, and religious organizations. So it’s put on the

agenda and gets moved onto a ballot for an official vote. The citizens who think their city needs

to be tough on crime vote to approve this policy.

3. Bam, it’s law. It is implemented and now parents of juveniles delinquents are charged

fines. This actually is a law in nearly every state. In the 1990s, Silverton, Oregon, was a

model for communities interested in imposing ordinances that hold parents accountable for

their children’s behavior. In Silverton, parents can be fined up to $1,000 if their child is

found carrying a gun, smoking cigarettes, or using illegal drugs. Parents who agree to attend

parenting classes can avoid fines. Within the first two months after the law was passed in early

1995, seven parents were fined and many others registered for parenting classes.

Oregon has ORS 30.761 (2017), which states:

(1)In addition to any other remedy provided by law, the parent or parents of an unemancipated minor

child shall be liable for actual damages to person or property caused by any tort intentionally or recklessly

committed by such child. However, a parent who is not entitled to legal custody of the minor child at the

time of the intentional or reckless tort shall not be liable for such damages.

(2) The legal obligation of the parent or parents of an unemancipated minor child to pay damages under

this section shall be limited to not more than $7,500, payable to the same claimant, for one or more acts.

4. It is law, but is it effective? The evaluation stage of policy is critical. The goal is to curb youth crime

and we might expect to see a decrease in the juvenile crime rate. However, charging parents fines for the

misdeeds of their children actually increases recidivism! It’s true! A study of 1,167 youth in Pennsylvania found that the total amount of fines, fees and/or restitution significantly increased the likelihood of

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recidivism 4 . Justice system–imposed financial penalties increase the likelihood of recidivism in a sample of

adolescent offenders 5

In particular, males, non-whites, and youth with prior dispositions and adjudicated

with a drug or property offense were at an increased likelihood of recidivism associated with owing fines

and fees (Piquero and Jennings, 2016). This is problematic as fees not only increase recidivism but also

increase the likelihood of a “revolving door” juvenile justice system for minority youth.

In the end, what is law is not always effective and what is effective is not always law. This is where evidence-

based practices come in.

4. Piquero and Jennings, 2016, Piquero, A. and Jennings, W.G. (2015) 5. Youth Violence and Juvenile Justice, 15 (3) p. 325-340).

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4.4. Importance of Evidence Based Practices

ALISON S. BURKE

In the 1970s, Martin Robinson issued his infamous claim that “nothing works” in rehabilitating offenders. 1

In the 1980s, numerous research studies were published that contradicted this claim and proposed

alternative approaches to combating crime and effective interventions. Since then, countless researchers,

agencies, and even Congress have adopted the need to create comprehensive evaluations of effective

programs.

Evidence-based practices mean utilizing research in pursuit of identifying programs, policy initiatives, or

practices that work. The Office of Justice Programs (OJP) “considers programs and practices to be evidence-

based when their effectiveness has been demonstrated by causal evidence, generally obtained through high-

quality outcome evaluations,” and notes that “causal evidence depends on the use of scientific methods to

rule out, to the extent possible, alternative explanations for the documented change.” 2

National research

clearinghouses are great resources for systematic literature reviews of effective public programs across a

plethora of areas, such as:

• the U.S. Department of Education’s What Works Clearinghouse,

• the U.S. Department of Justice’s CrimeSolutions.gov,

• Blueprints for Healthy Youth Development,

• the Substance Abuse and Mental Health Services Administration’s National Registry of Evidence-

Based Programs and Practices,

• the California Evidence-Based Clearinghouse for Child Welfare,

• What Works in Reentry, and the Coalition for Evidence-Based Policy.

With evidence-based practices comes evidence-based policymaking. Evidence-based policy-making

identifies what works, enables policymakers to use evidence in deciding budgets and policy, identifies where

there are gaps or information is lacking, monitors and measures key outcomes, and continuously uses the

1. Martinson, R. (1974). What works? - questions and answers about prison reform. The Public Interest, 35: 22-54. 2. Crimesolutions.gov glossary (www.crimesolutions.gov/glossary).

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information to improve performance and objectives. 3

The goal is to create a policy that can be enforced

consistently and can withstand political change.

Steps in Evidence-Based Policy Making

3. Pew-McArthur Report. (2014).

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4.5. Re-Evaluating Policy

ALISON S. BURKE

Policies represent the current political climate and it is necessary to revisit and change them as necessary.

For example, in 1787, only white men over 21 could vote, and the President could serve for as long as he

was elected. Obviously, this changed. In the criminal justice world, many crimes are socially constructed and

mala prohibita rather than mala in se, so creating laws and policies around them is as short-lived and fleeting as the new most popular meme. For example, the Eighteenth Amendment states (1917):

“After one year from the ratification of this article the manufacture, sale, or transportation of

intoxicating liquors within, the importation thereof into, or the exportation thereof from the United

States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”

At the time, it was believed alcohol was the cause of crime, poverty, and social ills. Policy makers believed

that the prohibition of alcohol (1920-33), or the “noble experiment” as it was called, would reduce crime and

corruption, solve social problems, reduce the tax burden created by prisons and poorhouses, and improve

health and hygiene in America. 1

As you know, the experiment was an absolute failure. Crime actually

increased and became organized, alcohol became more dangerous to drink because of the lack of regulations

on bootlegged and black market production, corruption of public officials was rampant, and courts and

prisons were stretched to capacity.

Prohibition was eventually repealed by the 21st Amendment in 1933. There are many more laws and

policies enacted every year in the United States that represent a current political climate or agenda. It is

necessary, therefore, to reevaluate these policies, apply research the scientific method to assess their efficacy,

and change modifies or repeal the laws as society changes. The United States Constitution is a living

document, as are laws and policies.

Bizarre, Weird, and Funny Laws

As mentioned in this chapter, laws, and policies need to be revised and amended. Here are a few examples of

outdated, bizarre, and just plain old funny laws from around the country.

1. Thornton, M. (1991). Alcohol prohibition was a failure. Policy Analysis, 157:1-12. Retrieved https://object.cato.org/sites/cato.org/files/ pubs/pdf/pa157.pdf]

153

Alabama: No stink bombs or confetti, spray string or bathing in public fountains.

Alaska: It is illegal to get drunk or be drunk in a bar.

Arizona: It is unlawful to spit “in or on” any public building, park, sidewalk, or road. Furthermore, if you are

caught stealing soap, you must wash until the bar of soap has been completely used up.

Arkansas: Strictly prohibited to pronounce “Arkansas” incorrectly.

California: It is illegal to build, maintain, or use a nuclear weapon within Chico, California city limits.

Colorado: It is illegal to drive a black car on Sundays in Denver.

Connecticut: A pickle cannot be sold unless it bounces.

Delaware: No trick or treating on Sunday. If Halloween falls on a Sunday, door to door trick or treating must

happen on Saturday, October 30th.

Florida: It is a felony to sell your children. And if an elephant is left tied to a parking meter the parking fee has to

be paid.

Georgia: It is unlawful to eat fried chicken with utensils. “Finger lickin” good was made into law in 1961.

Hawaii: Billboards are strictly prohibited.

Idaho: It is illegal to engage in cannibalism or “non-consensual consumption” of another human. It is also illegal

for a man to give his fiancé a box of candy that weighs more than 50 lbs (22.5 kg).

Illinois: Fancy bike riding is a big no-no.

Indiana: Black cats must wear bells on Friday the 13th. And baths may not be taken between the months of

October and March.

Iowa: It is illegal to pass off margarine as butter and is punishable by up to 30 days in jail and a $625 fine.

Kansas: It is illegal to throw snowballs in Topeka.

Kentucky: Public officials must swear to not having been engaged in a duel with weapons.

Louisiana: It is illegal to steal another person’s crawfish.

Maine: It is illegal to use tombstones for advertising.

Maryland: It is illegal to swear or curse upon any street or highway in Rockville.

Massachusetts: You cannot dance to the national anthem.

Michigan: Before 2006, it was encouraged to kill starlings and crows.

Minnesota: Pig greasing competitions and turkey scrambles are considered misdemeanors. Furthermore, citizens

may not enter Wisconsin with a chicken on their head.

Mississippi: No limit on Big Gulp sizes.

Missouri: It is illegal to swing upon another person’s motor vehicle and honk their horn for them.

Montana: It is illegal to play Frisbee golf in non-designated areas.

Nebraska: No person afflicted with a venereal disease may get married.

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Nevada: In Eureka, it is illegal for you to kiss a woman if you have mustaches.

New Hampshire: It is unlawful to collect seaweed at night.

New Jersey: You may not murder someone while you are wearing a bulletproof vest.

New Mexico: It’s forbidden for a female to appear unshaven in public (Carrizozo, New Mexico).

New York: Sliced or “altered” bagels carry an eight cents sales tax.

North Carolina: It’s against the law to sing off-key.

North Dakota: It is illegal to set off fireworks after 11 pm.

Ohio: Coal mines must provide toilet paper. And it is illegal to get fish drunk.

Oklahoma: It is illegal to be involved in a horse tripping event or wrestle a bear.

Oregon: Engaging in a test of physical endurance while driving is strictly prohibited.

Pennsylvania: It is illegal to sing in the bath and to use dynamite to catch fish.

Rhode Island: It is unlawful to impersonate an auctioneer.

South Carolina: It is illegal to work or dance on Sundays.

South Dakota: Farmers can set off fireworks to protect their sunflower crops.

Tennessee: Panhandlers must apply for a permit.

Texas: A program has been created that attempts to modify and control the weather. Additionally, you can be

considered legally married by publicly announcing a person as your wife/husband by saying it 3 times.

Utah: It is illegal to fish with a crossbow.

Vermont: A woman cannot wear false teeth without her husband’s permission.

Virginia: It’s against the law for a woman to drive a car in Main Street unless her husband is walking in front of

the car waving a red flag.

Washington: You cannot buy meat of any kind on Sunday. Additionally, a motorist with criminal intentions

must stop at the city limits and telephone the chief of police as he is entering the town. Most importantly, you can

be arrested or fined for harassing Bigfoot.

West Virginia: While whistling underwater is prohibited, you may take roadkill home for supper.

Wisconsin: It is illegal to serve margarine and their cheese must be “highly pleasing.”

Wyoming: You may not take a picture of a rabbit from January to April without an official permit.

Conclusion We can look at criminal justice policy through three perspectives: theoretical, political, and practical. The

2. Isaac. J. (2009). The Wacky World of Laws. San Diego, CA: Lawyer In Blue Jeans Group Publishing. Reader’s Digest Editors (n.d.). Here are 50 of the dumbest laws in every state. Reader’s Digest. Retrieved: https://www.rd.com/funny-stuff/dumbest-laws-america/ Triangle Realty. (2018). Unusual Laws in Texas. Retrieved https://www.trianglerealtyllc.com/unusual-laws-in-texas/

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theoretical perspective enables us to better understand the causes and consequences of crime and what can

be done insofar as crime control or prevention. By researching the theory behind the crime, we can better

implement effective policies. From a political perspective, studying policy confirms the need for evidence-

based practices and decisions based on research rather than fear and haphazard agenda setting. And finally,

the policy is practical. It utilizes theory, research, evidence-based practices to solve practical problems in the

world around us.

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5: Criminological Theory

Learning Objectives

This section introduces the importance of theory and theory creation. It also briefly describes some of the major

paradigms of criminal explanations. After reading this section, students will be able to:

• Distinguish between classical, biological, psychological, and sociological explanations of criminal

behavior.

• Understand the links between crime control policy and theories of criminal behavior.

• Demonstrate effective application of criminological theories to behavior.

Critical Thinking Questions

1. How do we know what theories explain crime better than other theories?

2. How did the classical theory of crime influence the American criminal justice system?

3. Why is it difficult to study biological theories of crime without thinking about the social

environment?

4. Which theory do you think explains criminal behavior the best? Why?

5. Why do you think there have been so many different explanations to describe the origins of criminal

behavior?

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5.1. What is Theory?

BRIAN FEDOREK

A theory is an explanation to make sense of our observations about the world. We test hypotheses and create theories that help us understand and explain the phenomena. According to Paternoster and Bachman (2001),

theories should attempt to portray the world accurately and must “fit the facts.” 1

Criminological theories

focus on explaining the causes of crime. They explain why some people commit a crime, identify risk factors

for committing a crime, and can focus on how and why certain laws are created and enforced. Sutherland

(1934) has referred to criminology as the scientific study of breaking the law, making the law, and society’s

reaction to those who break the law. 2

Besides making sense of our observations, theories also strive to make

predictions. If we understand why crime is happening, we can formulate policies or programs to minimize

it.

The building blocks of any theory are concepts. Crime, delinquency, and deviance are all concepts that

need to be defined. We seek to explain these concepts with other concepts. For example, some theories

may link crime with self-control. Self-control is another concept that needs to be defined. Once we define

“crime” and “self-control”, we need to measure them. Operationalization is the process of determining how

we will measure concepts, which are called variables. We could measure self-control in a number of different

ways. For example, we could test a person’s ability to resist temptation (The Marshmallow Test). Once we

test the relationship between two variables, we also need to make sure another variable is not affecting the

results. Spuriousness is when a third variable is causing the other two. We know that ice cream sales and

murder rates are positively correlated; when one goes up the other goes up. At first glance, someone may

claim that ice cream is causing people to kill. However, what do you think might be a better explanation?

Can you think of a third variable that might cause ice cream sales and murder rates to increase?

When we try to explain why crime occurs, we can look at it from many different perspectives. We can

create macro-level explanations and micro-level explanations. Macro-level explanations focus on group rate

differences. For example, why do some countries have more (or less) violent crime than others? Why do

young people commit more crime than older people? Why do males commit more crime than females?

Micro-level explanations center on differences among individuals. Macro-level explanations focus on societal

structures while micro-level explanations focus on processual differences.

1. Paternoster, R., & Bachman, R. (Eds.) (2001). Explaining criminals and crime: Essays in contemporary criminological theory. Oxford: Oxford University Press.

2. Sutherland, E.H. (1934). Principles of criminology (2nd ed.). Philadelphia, PA: Lippincott.

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It’s “Just” a Theory Exercise

Many laypeople will give their opinions on the relationship between phenomenon based on their hunches or

observations; these are not theories. A theory explains and interprets the facts. A proper scientific theory must be

falsifiable. Criminologists who create theories test their hypotheses. Many times the theorist will modify his or her

theory based on the research. Upon more investigation, those theories that have yet to be falsified become accepted

as a valid description between the phenomenon.

Darwin’s theory of evolution has yet to be falsified. There are numerous unanswered questions, but as time goes

by, scientists are discovering more and more evidence to support the theory.

When I was an undergraduate student, I majored in Psychology; I thought I was in control of everything about

me. However, when I took my first criminology class, I realized the social environment also had an impact on who

I was becoming. For example, I did not choose my parents, their income, how many siblings I had, or where I lived.

Each of those had an impact on who I was and who I became friends with in my childhood. Most of my childhood

friends, who are still my friends, may have been based solely on how far away they lived from my parents instead

of their character, interests, or personality. What do you think?

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5.2. What Makes a Good Theory?

BRIAN FEDOREK

Numerous criminological theories attempt to explain why people commit a crime. What makes one better

than another? How do we judge theories against each other? The natural and physical sciences mostly agree

on the knowledge of their disciplines. However, criminology is interdisciplinary, and many criminologists

may not agree on what causes criminal behavior. For instance, Cooper, Walsh, and Ellis (2010) have looked

at the political ideology of criminologists and their preferred or favored theories. Even one’s political leanings

can influence a person’s set of beliefs about the causes of crime. 1

We must apply the scientific criteria to test our theories. Akers and Sellers (2013) have established a set of

criteria to judge criminological theories: logical consistency, scope, parsimony, testability, empirical validity,

and usefulness. 2

Logical consistency is the basic building block of any theory. It refers to a theory’s ability

to “make sense”. Is it logical? Is it internally consistent? A theory’s scope refers to its range, or ranges, of

explanations. Does it explain crimes committed by males AND females? Does it explain ALL crimes or just

property crime? Does it explain the crime committed by ALL ages or just juveniles? Better theories will have

a wider scope or a larger range of explanation.

A parsimonious theory is concise, elegant, and simple. There are not too many constructs or hypotheses.

Simply put, parsimony refers to a theory’s “simplicity”. A good scientific theory needs to be testable too. It

must be open to possible falsification. “Every genuine test of a theory is an attempt to falsify it or to refute it. Testability is falsifiability; but there are degrees of testability: some theories are more testable, more exposed

to refutation than others; they take, as it were, greater risks…One can sum up all this by saying that the criterion of the scientific status of a theory is its falsifiability, or refutability, or testability” (Popper, 1965, pp. 36-37). 3

After many tests and different approaches to research, those theories supported by evidence have empirical

validity. Thus, according to Gibbs (1990), the verification or repudiation of a given theory through empirical

research is the most important principle to judge a theory. 4

Finally, all theories will suggest how to control, prevent, or reduce crime through policy or program. The

1. Cooper, J., Walsh, A., & Ellis, L. (2010). Is criminology ripe for a paradigm shift? Evidence from a survey of American criminologists. Journal of Criminal Justice Education, 2, 332-347.

2. Akers, R.L., & Sellers, C.S. (2013). Criminological theories: Introduction, evaluation, and application. New York: Oxford. 3. Popper, K.R. (1965). Conjectures and refutations: The growth of scientific knowledge. New York: Harper Torchbooks. 4. Gibbs, J.P. (1990). The notion of theory in sociology. National Journal of Sociology, 4, 129-159.

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premise of a particular theory will guide policy-makers. For example, if a theory suggested that juveniles

learn how to commit crime through a network of delinquent peers, policymakers will try to identify

juveniles at-risk for joining delinquent subcultures.

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5.3. Pre-Classical Theory

BRIAN FEDOREK

Comte (1851) was interested in epistemology, or in other words, how humans obtain valid knowledge.

He claimed human being’s progression of knowledge went through three separate stages – theological,

metaphysical, and scientific. 1

The theological stage used supernatural or otherworldly powers to explain

behaviors, the metaphysical used rational and logical arguments, and the scientific used positivism and

scientific inquiry. During the middle ages, spiritual explanations assumed human beings broke laws or did

not conform to conventional norms of society because he or she possessed by demons, the devil, or he or

she was a wizard or witch. These explanations assumed God-given “natural law”; thus, crime was equivalent

to sin. Governments had the moral authority to punish criminals/sinners and the state was acting on behalf

of God. As a result, the accused person could “prove” their innocence by a trial by battle (only the victor

is innocent) or trial by ordeal (innocent party would be unharmed while the guilty party would feel pain).

As you can imagine, punishments and justice were arbitrary and severe, especially when feudal lords, with

God’s permission, determined guilt. A person’s rank, status, and or wealth determined their punishment,

rather than the merits of the case at hand.

1. Comte, A. (1877). System of positive polity (4th vol.). New York: Burt Franklin.

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5.4. Classical School

BRIAN FEDOREK

During the Enlightenment, citizens and social thinkers began to question how they were ruled. In the

Leviathan (1651), Hobbes made a few assumptions about human beings. 1

He assumed humans were at

conflict with one another, pursued their self-interests, and were rational. Moreover, people would create

authority figures out of fear of others, and people should democratically create rules that all citizens must

follow. Hobbes wanted a new type of government, one that was ruled by the people and not by monarchs.

He believed people had natural rights such as life, liberty, and the pursuit of happiness. If we grant the

assumption that people are rational, we would assume people have the ability to consider the possible

consequences of their actions. Hobbes was one of the first social contract thinkers. Social contract thinkers

believed people would invest in the laws of their society if, and only if, they know government protected

them from those who break the law. People will give up a little of their self-interests as long as everyone

reciprocates.

Building on Hobbes and other social contract thinkers at the time, humans were assumed to have free will

and were rational beings. We can choose one action over another based on perceived benefits and possible

consequences. Moreover, human beings are hedonistic. Hedonism is the assumption that people will see maximum pleasure and avoid pain (punishment). Consequently, if we grant the assumptions of classical

theory, we can hold people 100% responsible for their actions because it was a choice. These assumptions

have been the basis for the American criminal justice system since its inception. Although theories may

have changed the landscape of understanding criminal behavior and may have changed the philosophies of

punishments over time, the criminal justice system has maintained the assumption that crime is a choice.

Hence, we can hold offenders 100% responsible for their actions.

Cesare Beccaria (1738-1794) was an Italian mathematician and economist. He was shocked by the unfair

treatment of the accused. In protest, he anonymously wrote An Essay on Crimes and Punishment (1764), which attacked Europe’s use of harsh treatment.

2 Ideally, he wanted to change the excessive and cruel

punishment by applying rationalistic, social contract ideas. At the time, judges had tremendous power to

determine guilt and create laws based on their decisions. Intellectuals well received his essay at the time, but

the Catholic Church banned it. His ideas were exceptionally radical at the time, mainly because his writing

questioned the power structures at the time.

1. Hobbes, T. (1651/1968). Leviathan. Baltimore, MD: Penguin Books. 2. Beccaria, C. (1963). On crimes and punishments (H. Paolucci, Trans.). Indianapolis, IN: Bobbs-Merril. (Original work published in 1764)

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Cesare Bonesana di Beccaria (1738-1794)

Beccaria laid out his ideas about legal reform including how and why to create effective punishments.

His Essay was highly influential during the Enlightenment, and it may have served as a model during the creation of the American Criminal Justice system. For example, Beccaria advocated that punishments should

fit the crime and be proportional to the harm done, laws should only be determined by the legislature, judges

should only determine guilt, and every person should be treated equally under the law. He claimed the sole

purpose of the law was to deter people from committing the crime. Deterrence can be accomplished if the

punishment is certain, swift, and severe. These may seem like common sense today, but they were considered

radical ideas at the time.

Jeremy Bentham (1748-1832) was an English philosopher and regarded as a founder of utilitarianism,

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which is the belief that decisions are considered right or wrong depending on their effect. He believed a

person’s expectation of the future was most predictive for deterrence. Therefore, the utility of punishment

should be severe enough to deter people from crime. Punishment would promote happiness throughout

society by maximizing social benefits. He helped popularize classical theory throughout Europe. 3

Jeremy Bentham (1748-1832)

3. Bentham, J. (1823). Introduction to the principles of morals and legislation. Oxford, UK: Oxford University Press.

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5.5. Neoclassical

BRIAN FEDOREK

Modern deterrence theory is perhaps the most dominant philosophy of the American criminal justice system.

Deterrence theory tries to change a person’s behavior through laws and punishments. As a form of social

control, there is a belief that perceived punishments will serve as a warning of possible consequences, which

would hopefully deter the person from committing the crime. There are two types of deterrence: general

deterrence and specific deterrence. General deterrence uses punishment to deter crime among people in the

general population. It uses punishment as an example for those people not punished. For example, capital

punishment can serve as an example to other would-be offenders if they were thinking about murder.

Specific deterrence uses punishment to reduce the crime of particular persons. The effect of the punishment

depends on the nature of the punishment and who is punished.

News Box. In 1994, Oregon voters passed Measure 11, whcih established mandatory minimum sentencing for several serious crimes. Besides removing the judge’s ability to give a lesser sentence, Measure

11 prohibited prisoners from reducing their sentence through good behavior. Additionally, any defendant

15 years old or older who was accused of a Measure 11 offense was automatically tried as an adult. Recently,

the Oregon Justice Resource Center reported the effects of Measure 11 on juveniles, esepcially minorities.

Below are links to the news article and the report itself.

The Oregonian – “New Report Calls Measure 11 Sentences for Juveniles ‘Harsh and Costly'”

Oregon Justice Resource Center’s Report

Measure 11 Exercise

After reading the above box and hyperlinks, please explain why many juveniles are not deterred from committing

serious crimes in Oregon.

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Classical ideology was the dominant paradigm for over a century, but it was eventually replaced by positivist

approaches that seek to identify causes of criminal behavior. However, classical ideology had a resurgence

during the 1970s in the United States. Neoclassical theory recognizes people experience punishments

differently, and a person’s environment, psychology, and other conditions can contribute to crime as well.

Therefore, crime is a choice based on context. Many crime-prevention efforts used classical and neoclassical

premises to focus on “what works” in preventing crime instead of focusing on why people commit criminal

acts.

Cornish and Clarke (1986) proposed a Rational Choice Theory to explain criminals’ behavior. 1

They

claimed offenders rationally calculate costs and benefits before committing crime and assumed people want

to maximize pleasure and minimize pain. The theory does not explain motivation, but instead, it expects

some people will always commit a crime when given the opportunity. They do not assume offenders

are entirely rational, but they do have bounded rationality. Bounded rationality is the constraint of both

time and relevant information; offenders must make a decision in a timely fashion with the information at

hand. Offenders cannot wait forever nor can they wait for more information before committing a crime.

For example, if you were walking down a street and noticed an open window in a parked car, you may

contemplate looking in. If you saw something inside, you may then consider stealing it. An entirely rational

person may look around to see if there are any witnesses, try to determine if the owner is coming back soon,

and so on. Ideally, you may wait until nightfall. However, you may miss your opportunity. Thus, you need

to make a quick decision with the relevant facts at that time.

That was an example of a “crime-specific” model. All crimes have different techniques and opportunities.

Additionally, they assume all crime is purposeful with the intention to benefit the offender. To dissuade

offenders, Rational Choice Theory emphasized the significance of informal sanctions and moral costs.

The theory advocates for a situational crime prevention approach by reducing opportunities. Reducing

opportunities is much easier to manipulate and change compared to changing society, culture, or individuals.

Ultimately, situational crime prevention strategies try to crime a less attractive choice.

Another neoclassical theory is Routine Activity Theory. Cohen and Felson (1979) claimed changes in the

modern world have provided more opportunities for offenders. 2

Since the conclusion of World War II, more

people have entered the workforce, and more people spend time away from home. Cohen and Felson stated

that three things must converge in time in space for a crime to be committed – a motivated offender, a

suitable target, and the absence of a capable guardian.

1. Cornish, D.B., & Clarke, R.V. (1986). Crime as a rational choice. In R.V. Clarke and D.B. Cornish, The reasoning criminal. New York, NY: Springer-Verlag.

2. Cohen, L.E., & Felson, M. (1979). Social change and crime rate trends: A routine activiity approach. American Sociological Review, 44, 588-608.

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The motivated offender is considered to be a given as there will always be people who will seize

opportunities to commit criminal offenses. Besides, there a variety of theories to explain why people commit

a crime. Suitable targets can be vacant houses, parked cars, a person, or any item. In reality, almost anything

can be a suitable target. Finally, the absence of a capable guardian facilitates the criminal event. What can

serve as a “capable” guardian? A plethora of people and things can serve as a guardian. For example, police

officers, security guards, a dog, being at home, increased lighting to allow other people to see, CCTV, alarm

systems, and deadbolt locks can each reduce opportunities by serving as a capable guardian. Routine activity

theory concentrates on the criminal event instead of the criminal offender.

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5.6. Positivist Criminology

BRIAN FEDOREK

If criminal behavior were merely a choice, the crime rates would more likely be evenly spread. However,

when European researchers started to calculate crime rates in the 19th century, some places consistently

had more crime from year to year. These results would indicate criminal behavior must be influenced by

something other than choice and crime, and must be correlated with other factors.

Positivism is the use of empirical evidence through scientific inquiry to improve society. Ultimately, positivist criminology sought to identify other causes of criminal behavior beyond choice. The basic

premises of positivism are measurement, objectivity, and causality. 1

Early positivist theories speculated that

there were criminals and non-criminals. Thus, we have to identify what causes criminals.

Charles Darwin wrote On the Origin of Species (1859), which outlined his observations of natural selection. 2

A few years later, he applied his observations to humans in Descent of Man (1871), whereby he claimed that some people might be evolutionary reversions to an early stage of man.

3 Although he never wrote about

criminal behavior, others borrowed Darwin’s ideas and applied them to crime.

1. Hagan, F.E. (2018). Introduction to criminology: Theories, methods, and criminal behavior (9th ed.). Los Angeles, CA: Sage. 2. Darwin, C. (1859). On the origin of species by means of natural selection, or preservation of favoured races in the struggle for life. London: John

Murray. 3. Darwin, C. (1871). The descent of man, and selection in relation to sex. London: John Murray.

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Charles Darwin

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Atavistic features

5.7. Biological and Psychological Positivism

BRIAN FEDOREK

Trait theories assume there are fundamental differences that differentiate criminals from non-criminals.

These differences can be discovered through scientific investigations. Additionally, many early biological

and psychological theories used hard determinism, which implies people with certain traits will be criminals.

Cesare Lombroso was a trained medical doctor in Italy when he had an epiphany. As he was performing

autopsies on Italian prisoners, he started to believe many of these men had different physical attributes

compared to law-abiding people and that these differences were biologically inherited. In 1876, five

years after Darwin’s claim about some humans might be evolutionary reversions, Lombroso wrote The Criminal Man.

1 Lombroso claimed 1/3 of all offenders were born criminals who were atavistic (evolutionary

throwbacks).

He identified a list of physical features he believed to

deviate from the “normal” population. These included an

asymmetrical face, monkey-like ears, large lips, receding

chin, twisted nose, long arms, skin wrinkles, and many

more. Lombroso believed he could identify criminals

simply by the way they physically looked. Even though

his theory was widely rejected years later, it served as an

example of the first attempt to explain criminal behavior

scientifically.

A few decades after Lombroso’s theory, Charles

Goring took Lombroso’s ideas about physical differences

and added mental deficiencies too. In The English Convict, Goring claimed there were statistical differences in

physical attributes and mental defects. The focus on mental qualities led to a new kind of biological

positivism – the Intelligence Era. Alfred Binet, who created the Intelligence Quotient Test, believed

intelligence was dynamic and could change. He wanted to identify youths who were not performing well

1. Lombroso, C. (1876). The criminal man.

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in school. Unfortunately, H.H. Goddard, like many Americans at the time, believed intelligence was innate

and static. That is, intelligence was fixed and could not change. Goddard gave IQ tests to sort people and

those who scored too low were institutionalized, deported, or sterilized. He was an early advocate to sterilize

those who were mentally deficient, especially “morons,” who were just smart enough to blend in with the

normal population. In 1927, the United States Supreme Court in Buck v. Bell allowed the use of sterilization. Even after Lombroso, Goring, and Goddard, contemporary research reveals intelligence is at least as

critical as race and social class for predicting delinquency (Hirschi & Hindelang, 1977). 2

However, how

we measure intelligence and how we define intelligence are based on our preconceived assumptions of

intelligence. For example, is intelligence inherited? Is it related to the dominant culture? Or is it based more

on the person’s environment? Each has a least some element of truth.

Modern biological theorists have revealed that biology plays a role in our behavior, but we cannot say

how much or even how so. Twin studies and adoption studies examined the nature versus nurture debate.

Both play a role in our behavior. It is more nature and nurture. Perhaps the question ought to be “how do

our biological differences interact with our sociological differences?” There is not a crime gene per se, but

some genetic variations are correlated with anti-social behaviors. However, those with genetic variations are

not necessarily criminal because of genetics. Though it puts the individual at risk for such behaviors, a caring

and supportive environment often mitigates the impact of the genetic code.

Proximate causes, such as neurotransmitters, hormones, the central nervous system, and the autonomic

nervous system, have links to aggressive behavior too. However, many of these explanations have several

possible causal paths. For example, we know people with higher testosterone levels engage in more

aggressive behavior, but when people engage in aggressive behavior, their testosterone levels increase. We

do not know which causes which.

What about criminal personalities? What about sociopaths and psychopaths? The Gluecks (1950)

determined there was no real criminal personality; instead, there are some interrelated personality

characteristics that were clustered together. 3

Even after giving personality tests to criminals and non-

criminals, there does not seem to be any logical relevance to understanding the causes of crime. However,

there have been correlations between certain personality traits and criminal behavior. For example,

impulsivity, lack of self-control, inability to learn from punishment, and low empathy have all been linked

to criminal behaviors.

Consequently, none of these personality characteristics are criminal in and of themselves. The real danger

is when a person has many of these personality characteristics. Capsi et al. (1994) found that constraint

and negative emotionality, two super traits that contain a number of different characteristics, were “robust

correlates of delinquency” (p. 185). 4

In summary, researchers have been able to say that our biology and personality play a role in criminal

behaviors, but we cannot say how much or to what degree. The characteristics of our social environment

interact with our biology and personality. Human behavior is quite complex and it is difficult to determine

the true causality of human actions.

2. Hirschi, T., & Hindelang, M.J. (1977). Intellegence and delinquency: A revisionist review. American Sociological Review, 42, 572-587. 3. Glueck, S., & Glueck, E. (1950). Unraveling juvenile delinquency. Cambridge, MA: Harvard University Press. 4. Capsi, A., Moffitt, T.E., Silva, P.A., Stouthamer-Loeber, M., Krueger, R.F., & Schmutte, P.S. (1994). Personality and crime: Are some

people crime prone? Replications of the personality-crime relationship acrass countries, genders, races, and methods. Criminology, 32(2).

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5.8. The Chicago School

BRIAN FEDOREK

Biological and psychological positivism looked at differences between criminals and non-criminals. Instead

of finding differences between kinds of people, the Chicago School tried to detect differences between kinds

of places. During the 1920-1930s, the University of Chicago was the vanguard for human ecology, which

is the study of the relationship between humans and their environment. Robert Park (1925) viewed cities as

“super-organisms,” comparing the city-human relationship to the natural ecosystems of plants and animals

that share habitats. Furthermore, Burgess (1925) proposed concentric zone theory, which explained how

cities grow – from the central business district outwards. 1

Concentric Zones

Shaw and McKay (1942), who were both former students of Burgess, began to plot the addresses

of juvenile court-referred male youths. They noticed many of the addresses were located in the zone

in transition. 2

Upon further investigation, Shaw and McKay noticed three qualitative differences in the

transitional zone compared to other zones. First, the physical status included the invasion of industry and the

largest number of condemned buildings. When many buildings are in disrepair, population levels decrease.

1. Burgess, E.W. (1925). The growth of the city. In R.E.Park, E.W. Burgess, and R.D.McKenzie, Jr., The city. Chicago, IL: University of Chicago Press.

2. Shaw, C.R., & McKay, H.D. (1942). Juvenile delinquency and urban areas. Chicago, IL: University of Chicago Press.

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Second, the population composition was also different. The zone in transition had higher concentrations

of foreign-born and African-American heads of families. It also had a transient population. Third, the

transitional zone had socioeconomic differences with the highest rates of welfare, lowest median rent, the

lowest percentage of family-owned houses. Interrelated, the zone also had the highest rates of infant deaths,

tuberculosis, and mental illness.

Shaw and McKay believed the zone in transition led to social disorganization. Social disorganization is the inability of social institutions to control an individual’s behavior. Since the zone in transition had people

moving in and moving out at such high rates, social institutions (like family, school, religion, government,

economy) and members could no longer agree on essential norms and values. As earlier stated, many

residents were foreign. Thus, speaking different languages and having different religious beliefs may have

prevented neighbors from talking to one another and solidifying community bonds. Overall, Shaw and

McKay were two of the first theorists to put forth the premise that community characteristics matter when

discussing criminal behavior.

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5.9. Strain Theories

BRIAN FEDOREK

Strain theories assume people will commit crime because of strain, stress, or pressure. Depending on the version of strain theory, strain can come from a variety of origins. Strain theories also assume that human

beings are naturally good; bad things happen, which “push” people into criminal activity.

Emile Durkheim viewed economic or social inequality as natural and inevitable. Furthermore, inequality

and crime were not correlated unless there was also a breakdown of social norms. According to Durkheim,

when there is rapid social change (like moving from an agrarian society to an industrial society) social

norms breakdown. There is too much too fast, and society needs to reevaluate normative behaviors. He

referred to the decline of social norms, or “normlessness,” as “anomie.” Moreover, social forces have a role

in dictating human thought and behaviors. He thought anomie was an inability of societies to control

or regulate individuals’ appetites. Although Durkheim was interested in looking at how societies change,

other researchers adapted his idea of anomie. In the previous section, Shaw and McKay retained the spirit

of Durkheim’s anomie but focused on neighborhoods instead of societies at large. Robert K. Merton also

utilized Durkheimian anomie.

Merton (1938) thought many human appetites originated in the culture of American society rather than

naturally. 1

Moreover, the “social structure” of American society restricts some citizens from attaining it.

Most, if not all, Americans know of the “American Dream.” No matter how you conceptualize the dream,

most people would define the American dream as achieving economic success in some form. The culturally

approved method of obtaining the American dream is through hard work, innovation, and education.

However, some people and groups are not given the same opportunities to achieve the cultural goal. When

there is a disjunction between the goals of a society and the appropriate means to achieve that goal, a person

may feel pressure or strain. Everyone is aware of the definition and promotion of the American dream. When

someone does not achieve this goal, he or she may feel strain or pressure. A person could be rejected or

blocked from achieving a cultural goal. Merton claimed there were five personality adaptations between the

goals of a society and the means to achieve them.

1. Merton, R.K. (1938). Social structure and anomie. American Sociological Review, 3.

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Personality Adaptation Cultural Goals Institutionalized Means

I. Conformity + +

II. Innovation + –

III. Ritualism – +

IV. Retreatism – –

V. Rebellion + / – + / –

Conformists are the most common adaptation. Without it, societal norms and values would undermine the

cultural goals. Conformists accept the goals and legitimate means to achieve the goal. Innovators accept the

goal, but they reject the means or have their means blocked. Thus, they innovate ways to meet society’s

goal. Ritualists conform to the predominant means of achieving wealth and success through hard work, but

they may be blocked from achieving success, or they drop the social goal. For example, some people work

hard for the sake of working hard. They want their children to see the significance of work ethic above all

else, including monetary achievement. Retreatists do not share the shared values of society. Thus, they adjust

by dropping out of conventional society. Drug addicts, alcoholics, and vagrants are just some examples who

select this adjustment. Finally, rebels reject the current goals and means of society, but they want to replace

them with new goals and standards. They seek to establish a new social order.

Even though Merton’s theory could explain any strain, he emphasized economic strains. Cohen (1955)

claimed stress could come from a lack of status. 2

Cohen wanted to know why most juvenile crimes occurred

in groups. He explained that many youths, especially those in lower class families, rejected education and

other middle-class values. Instead, many teenagers would seek status and self-worth as a new value system.

When teens have no status, reputation, or self-worth, it led to severe strain. To achieve status, youths commit

a crime to gain status among their peer group. Cloward and Ohlin (1960) claimed more serious delinquents

sought “fast cars, fancy clothes, and well dames” (p. 97). 3

Assuming youths had no legitimate opportunities

to improve their economic position, youths would join gangs to pursue illegitimate opportunities to

achieve financial success. Criminal gangs provided youths illicit opportunities to gain money, conflict gangs

permitted youths to vent their frustrations, and retreatist gangs were double failures; they had no legitimate

or illegitimate means to increase income.

The general strain theory, by Robert Agnew, claimed strains come from myriad sources. Agnew defined

strain as any event that a person would rather avoid. Three types of strains include the failure to achieve

a positively valued stimulus, the removal of a positively valued stimulus, and the confrontation of negative

stimuli. Examples include parental rejection, child abuse, bullying, loss of job, loss of a loved one,

discrimination, and criminal victimization. However, the characteristics of some strains are more likely to

lead to crime. When a person views a strain as high in magnitude and unjust, and the pressure promotes

criminal coping mechanism, people with minimal social control are more likely to commit a crime. Strains

lead to negative emotions such as anger, depression, and fear. Some people without prosocial coping

mechanisms may commit a crime to vent, which can create social control issues (trouble in school, parents,

2. Cohen, A.K. (1955). Delinquent boys: The culture of the gang. New York, NY: Free Press. 3. Cloward, R.A., & Ohlin, L. (1960). Delinquency and opportunity: A theory of delinquent gangs. Glencoe, IL: Free Press.

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employers) as well as facilitate social learning (joining peers who also need to vent their frustration). Overall,

criminal behavior serves a purpose – to escape strain, stress, or pressure. 4

Coping Mechanism Example

Every one feels stress and each of us copes with stress, pressure, or shame differently. Shame can motivate us to

change for the better. For example, if you did poorly on an exam, you may start to study better. When you feel

stress, what do you do? When I ask students how they deal with stress, many go for a run or a walk, lift weights,

cry, talk, or eat ice cream. These are healthy (maybe not ice cream eating) and pro-social coping mechanism. When

I feel stress I write. Often, I write nasty emails and then delete them. Fortunately, I have never accidently sent one.

4. Agnew, R. (2006). Pressured into crime: An overview of general strain. New York, NY: Oxford University Press.

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5.10. Learning Theories

BRIAN FEDOREK

In the previous sections, strain theories focused on social structural conditions that contribute to people

experiencing strain, stress, or pressure. Strain theories explain how people can respond to these structures.

Learning theories compliment strain theories because learning theories focus on the content and process of

learning.

Early philosophers, like Aristotle, believed human beings learned through association. The thought implies

humans have a blank slate and our experiences build upon each other. It is through these experiences we

recognize patterns and linked phenomena. For example, ancient humans did not have the technological

advancements of global positioning satellites, which many people have on their phones. However, they used

other celestial bodies like the stars and moon to travel. When early humans looked to the heavens, people

began to recognize patterns in the stars. These patterns were consistent and enabled long-distance travel over

land and sea.

A few centuries later, Ivan Pavlov was studying the digestive system of dogs, when he noticed the dogs

started the digestive process before food was in sight. The dogs began to salivate when they heard the assistants’ footsteps. The dogs were associating the oncoming footsteps with the upcoming food. This type

of learning was called classical conditioning.

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Classical Conditioning

The acquisition of this learned response occurred over time. The dogs’ salivary reflex was an

unconditioned response to the unconditioned stimuli (food). Pavlov wondered if he could get the dogs to

salivate with a neutral stimulus (i.e., a ringing bell). He would ring a bell then feed the dog. After a series

of these paired occasions, the dogs began to salivate at the sound of the bell alone. The salivation became a

conditioned response to a conditioned stimulus. The acquisition of this learned behavior (i.e., conditioned

response) will become extinct if the incentive is no longer associated. Human beings most certainly learn via

classical conditioning, but it is a passive and straightforward approach to learning. We may shudder when

we see flashing blue lights in our rearview mirror, salivate when food is cooking in the kitchen, or dance

when we hear our favorite song. We passively learned these paired events through our experiences. B.F. Skinner was also interested in learning and transformed modern psychology with operant

conditioning. Operant condition is active learning where organisms learn to behave based on reinforcements

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and punishments. Using rats and pigeons, Skinner wanted animals to learn a simple task (i.e., pushing a bar

or key) through reinforcements. A reinforcement is any event that strengthens, or maximizes, a behavior.

We reinforce behaviors that we want to continue or increase. We can use positive reinforcement or negative

reinforcement. Positive is the addition of something desirable, and negative is the removal of something

unpleasant; they do not mean “good” or “bad.” For example, if we wanted to more people to wear seatbelts,

we would want to reinforce the behavior. A positive reinforcement may be praise or a reward for buckling

up. Newer model cars come equipped with seatbelt alarms. The will ring until you buckle up. Once you

buckle up, the sound stops. This is an example of negative reinforcement. Both examples reinforce the

behavior (wearing a seatbelt) but in different ways.

Consequently, if we want a behavior to stop or decrease, we punish that behavior. Punishments can also

be positive or negative. A positive punishment involves the presentation of something unpleasant whereas

negative punishment is punishment by removal. For example, a teenager breaks curfew and the parents

want their child to stop breaking curfew. The parents can punish the child in one of two ways. An example

of positive punishment would be scolding. A negative punishment would be removing the child’s driving

privileges. Both punishments seek to decrease the adolescent’s breaking curfew but in two different ways.

Punishment Exercise

How does the Criminal Justice System positively punish offenders? How does the Criminal Justice System

negatively punish? Give examples of both.

Edwin Sutherland (1947) was the first and created the most prominent statement of a micro-level learning

theory about criminal behavior. He first presented differential association theory in 1934, and his final

revision occurred in 1947. 1

His attempt tried to explain how age, sex, income, and social locations related

to the acquisition of criminal behaviors. Sutherland (1947) presented his theory as nine separate, but related

propositions, which were:

1. Criminal behavior is learned.

2. Criminal behavior is learned in interaction with other persons in a process of communication.

3. The principal part of the learning of criminal behavior occurs within intimate personal groups.

4. When criminal behavior is learned, the learning includes: a) techniques of committing the crime,

which are sometimes very complicated, sometimes very simple; b) the specific direction of the

motives, drives, rationalizations, and attitudes.

5. The specific directions of motives and drives are learned from definitions of the legal codes as

favorable or unfavorable. In some societies, an individual is surrounded by persons who invariably

define the legal codes as rules to be observed, while in others he is surrounded by a person whose

definitions are favorable to the violation of the legal codes.

6. A person becomes delinquent because of an excess of definitions favorable to violation of law over

definitions unfavorable to violation of the law. This is the principle of differential association.

1. Sutherland, E.H. (1947). Criminology (4th ed.). Philadelphia, PA: Lippincott.

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7. Differential associations may vary in frequency, duration, priority, and intensity. This means that

associations with criminal behavior and also associations with anticriminal behavior vary in those

respects.

8. The process of learning criminal behavior by association with criminal and anti-criminal patterns

involves all of the mechanisms that are involved in any other learning.

9. While criminal behavior is an expression of general needs and values, it is not explained by those

general needs and values, since noncriminal behavior is an expression of the same needs and

values. 2

Sutherland describes the content of what is learned, but also the process of how it is learned. Ultimately,

he argued people give meaning to their situation; this meaning-making determined if they would obey

the law or break the law. Hence, this meaning-making explains how siblings, who grow up in the same

environment may differ in their behavior.

Ironically, Sutherland and B.F. Skinner were teaching at Indiana University during the late 1940s. For

some reason or another, Sutherland never used Skinner’s ideas of operant conditioning in his differential

association theory. However, Ronald Akers utilized both approaches in his “social learning” or “differential

reinforcement” theory. Akers’ theory comprised the four main concepts of differential association,

definitions, differential reinforcement, and imitation/modeling. He was interested in the process of how

criminal behavior is acquired, maintained, and modified through reinforcement in social situations and

nonsocial situations. Differential associations refer to the people one comes into contact with frequently.

These peers are the source of definitions that favor obeying the law or breaking it. It is the most important

source of social learning. According to Akers, definitions are the meaning a person attaches to his or her

behavior. Those meanings can be general (i.e., religious, moral, or ethical beliefs that remain consistent)

or specific (i.e., apply to a specific behavior like smoking or theft). Differential reinforcements refer to the

balance between anticipated rewards or punishment and the actual reward or punishment. For example, if a

juvenile vandalized a storefront, his or her friends praise may reinforce that behavior. If the juvenile sought

more praise, he or she might continue vandalizing more property (the peers’ reactionary praise positively

reinforced the behavior). The final concept was imitation/modeling. Akers argued that human beings could

learn by observing how other people are rewarded and punished. Thus, some people may imitate other

people’s behavior, especially if that behavior was rewarded or not punished. 3

Finally, there have been some theories that focus more on the content of what is learned. Residents

who may live in disadvantaged neighborhoods, like in the transitional zone, my “learn” different things.

Subcultural theories focus on the ideas of what is learned rather than the social conditions that foster these

ideas. Some groups may internalize values that are conducive to violence or justify criminal behavior. 4

other words, where we grow up may influence what we learn about crime, police, government, religion,

etc.

2. Sutherland, E.H. (1947). Criminology (4th ed.). Philadelphia, PA: Lippincott. 3. Akers, R.L. (1994). Criminological theories. Los Angeles, CA: Roxbury. 4. Anderson, E. (1999). Code of the street: Decency, violence, and the moral life of the inner city. New York, NY: W.W. Norton.

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5.11. Control Theories

BRIAN FEDOREK

Previously discussed theories asked why people commit crime. The methods used tried to identify the

driving forces behind a criminal’s behavior. For example, biological and psychological theories sought to

identify traits that determined criminality. Strain theories assumed people were good, but bad things happen,

which causes many to be pushed into criminal behaviors. Learning theories demonstrated the importance

of learning criminal attitudes to commit crimes. These attitudes, especially when reinforced, will prevail in

social situations. Control theories differ in their approach. Instead of assuming criminals have “something”

or experienced “something” that drives their criminal behavior, control theories ask why more people do not engage in illegal behavior. Control theories assume people are naturally selfish, and if left to their own

devices, will commit illegal and immoral acts. Control theories try to identify what types of “controls” a

person may have that stops them from becoming “uncontrollable.”

Early control theorists argued that there are multiple controls on individuals. Personal controls are

exercised through reflection and following pro-social normative behavior. Social controls originate in social

institutions like family, school, and religious conventions. Toby (1957) introduced the phrase “stakes in

conformity,” which is how much a person has to lose if he or she engages in criminal behavior. 1

The more

stakes in conformity a person has, the less likely they would be willing to commit crime. For example, a

married teacher with kids has quite a bit to lose if he or she decided to start selling drugs. If caught, he could

lose his job, get divorced, and possibly lose custody of his children. However, juveniles tend not to have

kids nor are they married. They may have a job, but indeed not a career. Since they have fewer stakes in

conformity, they would be much more likely to commit crime compared to the teacher.

Travis Hirschi is most associated with control theories. In 1969, he argued that all humans have the

propensity to commit crime, but those who have strong bonds and attachment to social groups like family

and school are less likely to commit crime. 2 Often known as social bond theory or social control theory,

Hirschi presented four elements of a social bond – attachment, commitment, involvement, and belief.

Attachment refers to affection we have towards others. If we have strong bonds, we are more likely to care

about their opinions, expectations, and support. Attachment involves an emotional connectedness to others,

especially parents, who provide indirect control.

1. Toby, J. (1957). Social disorganization and stake in conformity: Complementary factors in the predatory behavior of hoodlums. Journal of Criminal Law, Criminology and Police Science, 48, 12-17.

2. Hirschi, T. (1969). Causes of delinquency. Berkeley, CA: University of California Press.

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Parenting Exericse

Parenting can be a challenging responsibility. Fare supposed suppose to teach children how to behave. Ideally,

parents have control over their children in many ways.

• What are ways parents have “direct” control over their children?

• What are ways parents have “indirect” control over their children?

Commitment refers to the rational component of the social bond. If we are committed to conformity, our

actions and decisions will mirror our commitment. People invest time, energy, and money into expected

behavior like school, sports, career development, or playing a musical instrument. These are examples

of Toby’s “stakes in conformity.” If people started committing a crime, they would risk losing these

investments. Involvement and commitment are related. Since our time and energy are limited, Hirschi

thought people who were involved in socially accepted activities would have little time to commit a crime.

The observational phrase “idle hands are the devil’s worship” fits this component. Belief was the final

component of the social bond. Hirschi claimed some juveniles are less likely to obey the law. Although

some control theorists believed juveniles are tied to the conventional moral order and “drift” in and out of

delinquency by neutralizing controls (Matza, 1964), Hirschi disagreed. 3

He believed people vary in their

beliefs about the rules of society. The essential element of the bond is an attachment. Eventually, Hirschi

moved away from his social bond theory into the general theory of crime.

Hirschi Exercise

Hirschi believed strong social bonds made people less likely to commit a crime. The components of a social bond

include attachment, commitment, involvement, and belief. Please describe each of the components of the social

bond and explain how each applies to your educational journey. How can you be attached, committed, involved,

and believe in higher education?

Gottfredson and Hirschi (1990) claimed their theory could explain all crime by all people. They argued the

lack of self-control was the primary cause of criminal behaviors. They claim most ordinary crimes require

few skills to commit and have an immediate payoff. 4

There is not any long-term planning or goal; crimes

are committed for immediate pleasure. Moreover, they claim, people who commit these ordinary crimes

tend to be impulsive, insensitive to the suffering of others, short-sighted, and adventuresome. If true, these

traits (low self-control) were established before the person started committing crimes and will continue to

manifest throughout a person’s life. The root cause of low self-control is ineffective parenting. If parents are

not attached to their child, supervise their child, recognize the child’s deviant behaviors, or discipline their

3. Matza, D. (1964). Delinquency and drift. New York, NY: John Wiley. 4. Gottfredson, M., & Hirschi, T. (1990). A general theory of crime. Stanford, CA: Stanford University Press.

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child, the child will develop low self-control. Gottfredson and Hirschi claim self-control, or the lack thereof,

is established by eight years old.

Control theories are vastly different from other criminological theories. They assume people are selfish

and would commit crimes if left to their own devices. However, socialization and effective child-rearing can

establish direct, indirect, personal, and social controls on people. These are all types of informal controls.

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5.12. Other Criminological Theories

BRIAN FEDOREK

Social Reaction Theories Initially a response to popular theories at the time, social reaction theories change the focus. Instead of

focusing on the offender, social reaction theories concentrate on those people or institutions who label

offenders, react to offenders, and want to control offenders. Grounded in symbolic interaction, social

reaction theories emphasize how meanings are constructed. Words carry power and meaning. Thus, if

someone is labeled as a criminal, it carries a connotation by other people. How will others view him or her

with that label? How will society? People will act towards thing by the meanings attached. These meanings

can be culturally created through interactions with peers. Perhaps it is why some of us like to wear certain

name brand clothes or drive certain name brand vehicles. Those names have “meaning”; they can be cool,

reliable, etc. They have status and meaning.

Not everyone who commits a crime is caught. Additionally, not all those who are caught are labeled as

a criminal. Why? Labeling theories sought to explain this phenomenon. In general, labeling theorists point

to the social construction of crime, which varies over time and place. For instance, marijuana use is federally

prohibited, but more and more states are legalizing recreational use. The same behavior can be legal in

Oregon but illegal in New York.

Furthermore, labeling theorists emphasize the process of being labeled and treated as a criminal; it can have

deleterious effects. If a person is bombarded with a particular label, he or she may adopt that label. If a person

was told over and over again that he or she was funny, that person might try to be funnier. What if a person

were told over and over again he or she would amount to nothing? Perhaps, he or she would internalize that

label and become nothing since others expect that.

Braithwaite (1989) applied some of these ideas in his reintegrative shaming. Not all social reactions are

ruthless; in fact, some of them are beneficial. 1

Hence, it is the quality of social responses that is significant.

We shame individuals to show disapproval. According to Braithwaite, shaming can be reintegrative or

stigmatizing. Reintegrative shaming centers on forgiveness, love, and respect. Ideally, we want to reintegrate

the person back into the community by removing the label. However, in some societies, like the United

States, stigmatizing shaming reigns supreme. Stigmatizing shaming uses formal punishment, which degrades

a person’s bond to his or her community. It is counter-productive and tends to shun the offender. For

1. Braithwaite, J. (1989). Crime, shame and reintegration. New York, NY: Cambridge University Press.

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example, in some states, convicted offenders are required to self-identify as a felon on job applications. Do

you think this helps their cause to reintegrate successfully into society? Perhaps not. Even though they may

have “served their time,” they are still labeled as a criminal and punished further. Stigmatizing shaming

propels people towards crime whereas reintegrative shaming seeks to correct the behavior through respect

and empathy. Critical Theories

Critical Theories Critical theories originated during the 1960-1970s in the United States. Immediately following World

War II, Americans expected the United States to thrive economically, culturally, and politically. Massive

political turmoil inside and outside of the country created a generation of scholars who became “critical”

of society and more “traditional” theories of crime. According to Cullen, Agnew, and Wilcox (2018),

critical theories share some five central themes. First, to understand crime, one must appreciate the fusion

between power and inequality. People with power, political and economic, have an enormous advantage

in society. 2

Second, crime is a political concept. Not all those who commit crime are caught, nor are those

who are caught punished. The poor are injured the most by the enforcement of laws, while the affluent (i.e.,

powerful) are treated leniently. Third, the criminal justice system and its agents serve the ruling class, the

capitalists. As Jeffrey Reiman’s (2004) book titled it, The Rich Get Richer and the Poor Get Prison. 3

Fourth, the

root cause of crime is capitalism because capitalism ignores the poor and their atrocious living conditions.

Capitalism demands profits and growth over values and ethically considerations. Perhaps this is why crimes

of the streets are punished more severely than crimes of the suites. Finally, critical theories believe the

solution to crime is a more equitable society, both politically and economically.

It is beyond the scope of this book to delve into all of the possible explanations of crime. Some theories

try to explain the differences between male offending and female offending through feminist theories of

crime. Other theories have integrated or combined concepts from other theories to create a newer model of

explanation. Why do you think people commit crime?

Gender and Crime Exercise

Write about how you were raised and how sex/gender roles were reinforced through school, family, culture,

etc. Do you think men/boys/males are more criminal because of their biology or because of cultural expectations

of men/boys/males versus women/girls/females? You should support your claims with personal, vicarious, or well-

known examples.

2. Cullen, F.T., Agnew, R., & Wilcox, P. (Eds). (2018). Criminological theory: Past to present (6th ed.). New York, NY: Oxford University Press.

3. Reiman, J. (2004). The rich get richer and the poor get prision: Ideology, class, and criminal justice. New York, NY: Pearson.

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6: Policing

Learning Objectives

In this section, you will be introduced to the history of policing in the United States. Today, policing is under

the microscope to ensure past mistakes are not repeated and forward momentum is reached. It is for this reason this

section will explore the history, as well as the foundations, that the American policing system was built upon. At

the end of this section, students will be able to:

• Discuss how the history of policing relates to current policing

• List the different parts of the history of policing

• Recognize the four eras of policing and identify the important parts of each era

• Explain why Sir Robert Peel is important to policing

• Describe how August Vollmer impacted policing

• List what three issues marked the Political Reform Era

• Illustrate several important occurrences during the Community Policing Era

• Discuss why the fourth era of policing is the Homeland Security Era

Critical Thinking Questions

Discussion Questions: 1. Why is the history of policing important to understand?

2. What about kin policing made it not a good form of policing?

3. What are the four eras of policing?

4. How was the Homeland Security Era established?

5. Why was Sir Robert Peel important to policing?

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6. What did August Vollmer believe police should be doing?

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6.1. Policing in Ancient Times

TIFFANY MOREY

The development of policing in the United States coincided with the development of policing in England.

In fact, the United States legal system traces its roots back to the common law of England. However, we

can go all the way back before 1750 BC to see how forms of policing were common during ancient times,

to what is now known as kin policing. Kin policing is when a tribe or clan policed their own tribe, and it often turned bloody quickly. The blood feuds would go on for a long period of time.

However, it is estimated, also sometime around 1750 BC, that the Code Hammurabi was engraved in

stone. This code detailed 282 sections of how one individual should treat another individual in society, and

the penalties for such violations. The code is seen as the beginnings of law and justice. Around 1000 BC,

Mosaic Law emerged. This law was a new form of rational law and hoped to predict what behaviors were

prohibited. In Mosaic Law, the ruling class did not create the law. The Code of Hammurabi and Mosaic Law

formed the ladder that would eventually lead to the creation of policing, as we now know it today. 2

Peisistratus (605-527 BC), who was the ruler of Athens, has been called the father of formal policing.

During this time of growth, new Greek city-states were being developed and blood feuds that lasted decades

had to be quashed. Kin policing slowly washed away due to its barbaric nature and new doors opened for a

modern city driven policing model. The first police service in Athens was developed by Sparta and it is often

looked at as the first secret service. 3

Augustus Caesar (27 BC), who was the first emperor of Rome, was instrumental in creating what is

now called the urban cohorts. The urban cohorts were men from the Praetorian Guard (Augustus’ army), charged with ensuring peace in the city. As crime rose and became more violent, Augustus formed the vigils, which were not affiliated with the Praetorian Guard, but were charged with fighting crime and fires. The

vigils were given the power to protect and arrest. 4

From 6 AD until the 12th century, Rome was patrolled day and night, by a public police force. With the

fall of the Roman Empire, kings then assumed the role of protection. From the 12th-18th centuries, kings in

England appointed sheriffs. At age fifteen, boys could volunteer with the posse comitatus to go after wanted felons. Constables, a police officer with limited authority, assisted the sheriffs with serving summons and

1. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier. 2. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier. 3. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier. 4. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.

191

warrants. Because young volunteers did the policing work, there were several problems, such as corruption

and drunkenness. Victims who had the means to hire private police or bodyguards to so for protection, but

unfortunately, that meant those who were poor, had neither help nor protection. 5

5. Berg, B., (1999). Policing in a modern society. Oxford: Elsevier.

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6.2. Sir Robert Peel

TIFFANY MOREY

The 19th century in England heavily influenced the history of policing in the United States. Not only

did policing radically change for the first time in over six centuries, but the father of modern policing, Sir Robert Peel, set up the stage for what is known today as modern policing. Sir Robert Peel, the British Home Secretary, coined the term ‘bobbies’ as a nickname for cops and he believed policing needed to be

restructured. In 1829 he passed the Metropolitan Police Act, which created the first British police force and

what the 21st century knows for today’s modern-day police. 1

1. Cordner, G., Novak, K., Roberg, R., & Smith, B., (2017). Police & Society. New York: Oxford University Press.

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Sir Robert Peel

Sir Robert Peel is best known for the Peelian Principles. He did not create the twelve principles but used

a combination of previous codes that he expected police to follow. The exact historical origins of the twelve

listed principles below are unknown, but it has been theorized that the principles were slowly created over

the years by academics studying Peel.

1- The police must be stable efficient, and organized along military lines;

2- The police must be under government control;

3- The absence of crime will best prove the efficiency of police;

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4- The distribution of crime news is essential;

5- The deployment of police strength both by time and area is essential;

6- No quality is more indispensable to a policeman than perfect command of temper; a quiet, determined

manner has more effect than violent action;

7- Good appearance commands respect;

8- The securing and training of proper persons is at the root of efficiency;

9- Public security demands that every police officer be given a number;

10-Police headquarters should be centrally located and easily accessible to the people;

11-Policemen should be hired on a probationary basis; and

12-Police records are necessary to the correct distribution of police strength

2. Cordner, G., Novak, K., Roberg, R., & Smith, B., (2017). Police & Society. New York: Oxford University Press.

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6.3. Policing Eras

TIFFANY MOREY

Researchers Kelling and Moore (1991) evaluated the first three eras of policing. These eras are discussed

below, and are often referred to as the Political Era, the Reform Era, and the Community Era. Through the microscope of seven topical areas, listed below, an understanding of how policing evolved begins.

1. Authorization

2. Function

3. Organization

4. Demand

5. Environment

6. Tactics

7. Outcomes

These seven characteristics have been used to evaluate how policing operated throughout history, most

notably through its organizational structure, tactics, and primary focus. 1

Political Era: The political era is often referred to as the first era of policing in the United States and it began around the 1840s with the creation of the first bona fide police agencies in America

This era of policing is marked by the industrial revolution, the abolishment of slavery, and the formation

of large cities. One way to confirm the start of this era is to look at the creation of police departments in

larger cities:

1. Greene, J. R., & Mastrofsky, S. D. (Eds.) (1991). Kelling, G.L., & Moore, M. H. (1991). From political to reform to community: The evolving strategy of the police. In Community Policing: Rhetoric or Reality. New York: Paeger.

2. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology

196

• New York Police Founded 1845

• Chicago Police Founded 1855

• Philadelphia Police Founded 1751

• Jacksonville Police Founded 1822

• Indianapolis Police Founded 1850’s

• Detroit Police Founded 1865

• Portland Police Founded 1870

• Eugene Police Founded 1863

• Jackson County, Oregon Police Founded 1852

With the advent of the industrial revolution, came goods and services. Along with new job

opportunities, came a myriad of conflict as well. The fast-growing cities had to answer these problems with

solutions in the form of policing. The abolishment of slavery and the new free black population created

many unforeseen issues too with The Klu Klux Klan. The Klan began to make terrifying appearances and

their reign of terror left many in fear. Policing had not yet formally entered the scene; therefore, The Klan

operated virtually unencumbered.

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London Strike: Truck Under Protection

The United States saw tremendous growth in major cities, had the industrial revolution, and the

abolished slavery, which is when the Political Era of policing was set into motion. As its name suggests, it

was an era of politics, mainly because of how policing was limited as a result of new laws, made clear by

the Constitution. America answered the call by following the English and Sir Robert Peel’s principles. Not

unlike today, policing during this era was under the control of politicians. Politicians, like the mayor, had

no problem controlling everything a policeman did during his call of duty (NOTE: the word policeman/ men is utilized in this era/context, because during this time period, women were not allowed in the

profession, and if they were accepted it was under a microscopic view of certain stereotypical matronly

duties to be performed). In fact, Black policemen were rarely hired. Black policemen made their way into

policing in the late 1800s, but when the Civil Rights Act of 1875 was ruled unconstitutional, Black officers

all but disappeared from policing until the 1950s.

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News Box: A look at the salaries:

1957 annual wage for a police patrolman – Milwaukee Police Department: $5,405.40

1957 Annual Report Milwaukee Police Department https://city.milwaukee.gov/ImageLibrary/

Groups/…/Archive…/1957AnnualReport.pdf

News Box: 61 years later 2018 annual wage for police patrolman- Milwaukee Police Department:

$57,291.00

Milwaukee, Wisconsin- State website https://city.milwaukee.gov/fpc/Jobs/Police-Officer.html

News Box: 2018 Annual wage for first step trooper- Oregon State Police: $56,184.00 Oregon State Police- Oregon.gov website https://www.oregon.gov/osp/RECRUIT/Pages/

salary_benefits.aspx

Reform Era: Because the Political Era of policing ended up being laced with corruption and brutality, the panacea for the negativity became the Reform Era. One police chief was largely at the forefront of this

new era, Chief August Vollmer. He is considered the pioneer for police professionalism. August Vollmer was the Chief of Police in Berkeley, California (1905-1932). He had many new beliefs about policing that

would forever change the world of policing:

1. Candidates who were testing to be in policing had to undergo psychological and intelligence

tests

2. Detectives would utilize scientific methods in their investigations, through forensic

laboratories

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3. Recruits, for the first time, would attend a training academy (police did not receive any

formal training prior to August Vollmer’s arrival)

4. Assisted with the development of the School of Criminology at the University of California

at Berkeley

Chief August Vollmer saw policing and officers as social workers that needed to delve into the causes

behind the acts in order to solve the issue, instead of just arrest it. 3

He knew in order to rehabilitate

offenders, police officers needed to look behind the handcuffs and start looking into the person and reason

behind the behavior. 4

3. Reppetto, T.A. (1978). The Blue Parade. New York: Free Press. 4. Reppetto, T.A. (1978). The Blue Parade. New York: Free Press.

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“Father of modern law enforcement”

Diversity in policing started to make a mark during this era, but it would fall irrevocably far from

meeting any type of quota. It was a better era for diversity than the Political Era, but the numbers don’t lie

in that it fell dismally short.

The Community Era- 1980s to 2000: In the 1960s and 1970s the crime rate double and it was a time

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of unrest and eye-opening policing issues. Civil rights movements spread across America and the police

were on the front lines. Media coverage showed controversial contacts between white male officers and

African American citizens, which further irritated race relations in policing. The U.S. Supreme Court

handed down the landmark Miranda v. Arizona and Mapp v. Ohio decisions. The writing was on the wall that the policing environment had to change. The days of answering everything with bullying or police

professionalism were no more. The Community Era of policing began and those in police administration

hoped this new era held the answers to fixing decades-old issues. The police needed help and they would

turn towards the community and its citizens for assistance.

This new era of community policing held that police couldn’t act alone; the community must pitch in

as well. Whether the problems were a dispute between neighbors or high crime area drugs and shootings,

these issues did not develop overnight and could not be solved by a response of police alone. Instead,

these community problems needed a pronged approach where the police worked together with the

community and over time the issues could be systematically solved. Out of the box thinking was common

in community policing and often community leaders were identified in order to make the impact. During

this time police candidates started showing up to the application process with Associates and Bachelors

degrees. The ‘old school officers’ mocked these degree-holding candidates. But the landscape was changing

and officers needed more thorough training than ever to answer the call.

Problem-oriented policing was an after effect of community policing, in that it utilized community

policing, but focused on the problems first. The biggest difference was problem-oriented policing used a

defined process for working towards the solution. The problem was torn apart layer by layer and rebuilt

according to set parameters that have a proven record of working.

The Community Era was also a time for research. Prior to this era, research on crime, police, or criminal

justice topics were few and far between. With new federal government funding options available, this era

missions could be accomplished through grants and the needed research began. Proof of what worked,

what didn’t, and suggestions on how to improve policing were abundant. Without research or studies,

policing can become stagnant. But with funding available, the answers were a questionnaire or interview

away and solutions came rolling in.

Community Era Example

“I remember the Community Era very well. I was a new police officer during this time and actually at the

forefront of Community Policing and Problem-Oriented Policing. I was the first woman officer at my police

department that was pregnant and the administration was open to suggestions when asked what to do with me

when my belly expanded. I politely suggested that once I was five to six months pregnant and began to show (and

not fit in my uniform or patrol belt anymore), I will be voluntarily transferred to the Crime Prevention Division.

With my doctor approving this decision, my belly grew, and I transferred to this new division. I remember hitting

the streets and knocking on doors, spewing how great of a panacea Community Policing was. It took some buy-

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in and with the citizens who ‘bought-it,’ the concept actually became a reality and worked! Months later we had

a string of burglaries occurring in a high-crime neighborhood. The detectives, patrol, everyone hit the streets,

knocking on doors, questioning everyone, in an attempt to find the criminals responsible. With no avail, I turned

to Community Policing. I brought in a mounted police officer and horse. My colleagues chucked and shook their

heads in response! What was I thinking?!?! “It was a waste of resources,” they balked! How could a cop on a horse

solve this crime? I was glad; I ‘wasted my time,’ because it worked! The officer on the horse brought citizens out

of their houses that normally would never have spoken to a police officer normally. The horse was such a spectacle

in the neighborhood, that it was the catalyst that caused citizens to not only come out of their houses but to start

talking about what and who they had been seeing in and around their neighborhood that did not belong. One

such sighting was a vehicle description, which led to criminals responsible for the burglaries. ”

The Homeland Security Era- 2001 to Present: On September 11th, 2001, when terrorists hijacked airplanes and flew them into the World Trade Center buildings and Pentagon in the United States, a fourth

era of policing, the era of Homeland Security, was said to emerge. 5

The long-lasting repercussions of this

terrorist act would forever change life for Americans, but the daily activities of all policing departments.

There is some debate in the field as to the order of policing eras and what they should be called. Some

scholars list the policing eras as:

1. Pre-Policing Era

2. Political Era

3. Reform Era

4. Community Era

While others believe the policing eras are:

1. Political Era

2. Reform Era

3. Community Era

4. Homeland Security Era

The realities of the tragedy of 9/11 were that it did start a new era of policing. In fact, a case could

be made for the large dark line that became metaphorically visible on 9/11/01, when the Community

5. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology.

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Era shifted to the Homeland Security Era as airplanes destroyed America’s feelings of safety. Policing will

probably always involve some sort of Community Era policing in order to make a difference.

Remembering 9/11: A Decade Later

Policing under Homeland Security is marked by a more focused concentration of its resources into crime

control, enforcement of the criminal law, traffic law, etc., in order to expose potential threats and gather

intelligence. 6

Scholars have examined the pros and cons of a national police department in the United States. For

example, Canada has a Royal Canadian Mounted Police. Whereas, depending on location, one could

go through several different cities and counties while driving to the store, all of which have their own

respective police departments. With the advent of the Homeland Security Era, a new model of centralized

organizational control began due to the need for information dissemination. One of the biggest flaws of

9/11 was the lack of communication between law enforcement agencies. The Department of Homeland

Security was developed and one of its first major missions became the dissemination of information and

6. Oliver, W. M. (2006). The fourth era of policing: Homeland security. International Review of Law, Computers & Technology.

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communication. So, while a national police department does not exist in the United States, communication

and information are now a common thread that binds all of the different types of law enforcement agencies.

10:28:24 a.m. on September 11th, 2001 was the precise second that photojournalist Bill Biggart took the final shot of his life. He

took his last breath moments later when the North Tower of the World Trade Center collapsed upon him. Four days later, searchers

found his body, his burnt-edged press cards, his three demolished cameras, six rolls of film, and one small undisturbed compact flash

card carrying almost 150 digital images. It was the remains of one horrifying day and one extraordinary life. “I am certain if Bill had

come home at the end of that day, he would have had many stories to tell us, as he always did. And had we asked how it really was,

he would have said, ‘Take my advice, don’t stand under any tall buildings that have just been hit by airplanes.”-Wendy Doremus,

wife of Bill Biggart.

Homeland Security Era Examples

I remember I awoke to live video showing one of the World Trade Center buildings with smoke billowing

from the windows. I wondered hesitantly how the fire started? Then, as one video camera rolled, by happenstance,

it caught an airplane flying directly into the second World Trade Center building and my worst fears came true.

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I think I stumbled to the edge of my couch and steadied myself, although I really don’t remember, as I watched

what happened next, slowly unfold. The effects of that day will never be forgotten.

During a trip to New York, last summer, I visited the World Trade Center museum. As I walked through the

halls, a pin drop could have been heard. The respect, sadness, and overwhelming feelings that filled me made it

difficult to breathe. Not only did the terrorists kill and destroy many things that day with their hate but they

forever changed policing. I was a patrol officer at the time when the devastation ravaged America. Sadness filled

our department for our brothers and sisters that lost their lives. We didn’t realize at the time, but our departments

and thousands of others in policing across America were in for major changes, because of the heinous acts of a

few. The first changes I remember taking place were: Active shooter updates and training; Incident Command

System (ICS) updates and training; NEMA emergency management training; Gas masks were distributed for

each individual officer, to be carried full-time, along with 3 month re-check and applicable training; Policy and

procedure updates and additional response training depending on the call type; Reconfiguration of call type and

responses to each; COMMUNICATION became the center of everything.

It became essential to hire a person to go through all the communication and alerts we received daily and alert

those the information effected Unless those in the policing field had blinders on, the era of Homeland Security,

was probably at the time, and will probably always be, one of the most substantial in policing history.

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6.4. Levels of Policing and Role of Police

TIFFANY MOREY

Learning Objectives

After reading this section, students will be able to:

• Understand the various options for careers in the policing and law enforcement arena

• Discuss educational requirements are required for law enforcement positions with the federal

government, state, county, municipal or city officer candidates

• Explain what a state police officer’s main objectives are

• Describe the difference between commissioned and civilian

• List several divisions that a commissioned officer can promote to

• List several departments that a civilian can work within a law enforcement type agency

• Discuss why different police departments work with each other

Critical Thinking Questions

1. What education does a candidate need for jobs in federal law enforcement?

2. What education does a candidate generally need for city or county jobs as a police officer?

3. Is there a difference between a person who is considered commissioned and a person who is

considered a civilian?

4. Does every law enforcement agency have the same opportunities for advancement?

5. Why do different police departments work together?

6. Can a person be a homicide detective without being a police officer?

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Southern Oregon University Criminology and Criminal

Justice student Christina Richardson volunteered to try on the

Oregon State Police explosive unit bomb suit at the annual

Lock-In Event.

Policing Types It is an exciting time for those entering the policing or law enforcement field. The choices are endless, and

one need not look far to find areas that draw the mind and excitement of the prospects in such a career field.

All too often, candidates only think of local police departments; i.e., city or county agencies. The options

available are genuinely multi-faceted. Whether one is looking for the stereotypical police officer role, or if it

is the study of the criminal mind, possibly criminal forensics, or even crime analysis, or if one loves the forest

or the water, the options are endless. While the below list is not all-inclusive, it does give a good detailed

look at the array of careers one could have in the policing or law enforcement field.

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ODOT partnered with the Ashland Police Department to raise awareness about unlicensed movers.

Federal Level: The federal arena of law enforcement careers is broad and vast. The options are almost endless, and the rewards outweigh most of the other local agencies. However, there is a catch, which

centers on education and experience. Most law enforcement-related careers in the federal arena require a

bachelor’s degree, at a minimum plus three years of related full-time work experience before applying.

Candidates interested in the Federal Bureau of Investigation (FBI) as a special agent, for example, are

looking at the following educational requirements:

• A bachelor’s degree in either accounting, computer science/information technology, foreign

language (only a criminal justice major if the candidate is planning on working full-time for a

law enforcement agency for at least three years before applying),

• OR a JD degree from an accredited law school,

• OR a diversified bachelor’s degree AND three years of professional experience, OR a master’s

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degree, or Ph.D. along with two years of professional experience.

Federal job possibilities (the list is not comprehensive)

• Federal Bureau of Investigation (FBI)

• Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)

• Drug Enforcement Administration (DEA)

• Secret Service

• Central Intelligence Agency (CIA)

• National Security Agency (NSA)

• United States Marshals Service (USMS)

• U.S. Park Police

• U.S. Fish and Wildlife Service (USFWS)

• Department of Justice

• Federal Bureau of Prisons

• U.S. Army Criminal Investigation Command (CID)

• U.S. Army Counter Intelligence

• Dept. of Ariculture-Office of Inspector General (USDA-OIG)

• U.S. Forest Service Law Enforcement & Investigations (USFS LEI)

• Department of Commerce-Office of Inspector General (DOC-OIG)

• Office of Security (DOC-OS)

• US Commerce Department Police

• Office of Export Enforcement (OEE)

• National Institute of Standards and Technology Police

• United States Pentagon Police

• Department of Defense-Defense Criminal Investigative Service (DCIS)

• United States Pentagon Police (USPPD)

• Department of Defense Police

• Defense Security Police

• Defense Logistic Agency Police

• United States Coast Guard (USCG)

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• Plus Many More ++

State Level: State police work for a state. For example, in Oregon, the state police work for the state of Oregon and the department is Oregon State Police (OSP). In Nevada, the state police are Nevada Highway

Patrol (NHP) and work for the Nevada Department of Public Safety. The commissioned (certified by the

state with powers of arrest) employees are generally called troopers (a.k.a. police officers), their uniform is blue (except for California Highway Patrol who wear tan and dark brown uniforms), they wear round

tipped hats, and their primary duty is to patrol the highways and interstates; however, many state police

also investigate many different criminal crimes, run criminal forensic labs, along with divisions of fish and

wildlife. The duties of each state agency are different and unique to each state. For example, OSP has an

explosives unit (see photo below).

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Oregon State Police (OSP) Trooper Greg Costanzo showing Southern Oregon University Criminology and Criminal Justice

students the OSP explosive unit robot during the annual Lock-In Event.

County Level: There are 3,142 counties in the United States. 1

Each county has an elected Sheriff and

deputies (a.k.a. police officers) work directly under the Sheriff. Deputies are no different from any other city police officer other than the Sheriff can be responsible for the courts and jails (a.k.a. correctional

facility) in their respective county. But there are also many city police departments that are responsible for

jails, so it just depends on the department.

Each state is divided into counties, and each county, depending on size, could have a sheriff’s office.

Examples of sheriff offices (county police) in Oregon:

1. U.S. Department of the Interior (2018, September 23). How many countries are there in the United States. Retrieved from https://www.usgs.gov/faqs/how-many-counties-are-there-united-states.

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• Jackson County Sheriff’s Office

• Josephine County Sheriff’s Office

• Douglas County Sheriff’s Office

• Deschutes County Sheriff’s Office

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Jackson County Sheriff’s Office, Sgt. DiCostanzo assisting during the Southern Oregon University Criminology

and Criminal Justice annual Lock-In Event (for the K-9 patrol dog demonstration). Every year the CCJ

Department along with the CCJ Crim Club puts on the Lock-In Event (February or March). During this event law

enforcement agencies across the state participate and assist with spreading the word about law enforcement. For one

afternoon students learn about such programs as: K-9 patrol dogs, eplosives unit, defensive tactics, MILO (police

officer simulator training), CSI, SWAT, DUI, and parole/probation. Students at SOU can enroll for 1 credit for this

one day class and other students in the community can attend as well. Don’t miss the Lock-In event if you are

interested in law enforcement or in understanding the various facets of law enforcement.

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A Deputy monitors Pleasant Creek Road in the early morning adjacent to the Garner Complex. Credit: Facebook –

Jackson County Sheriff’s Office – Oregon

Municipal/City Level: Municipal/City police work under a municipality or city. If a city has a government, i.e., mayor and city council members and a municipal code (misdemeanor laws for the city),

then the city can have city police. If a person works for a city, the designator is a police officer. Some cities

have a connected jail (a.k.a. correction or detention facility), while others are operated through the Sheriff

and the county.

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Most state, county, municipal/city police departments do not require future candidates to have a

bachelors’ degree. Currently, many of the candidates testing for such positions do have an associates or

bachelor’s degree, therefore although it is not required, the candidates are more desirable because they have

a college degree. Generally, college degrees become a required educational background, when an officer

wants to enter management, i.e., sergeant, lieutenant, captain. However, many Chiefs and Sheriffs have

either a Masters or Ph.D. The following are municipal/city police departments in Oregon:

• Ashland Police Department

• Talent Police Department

• Phoenix Police Department

• Medford Police Department

• Central Point Police Department

• Eagle Point Police Department

CCJ students in the CCJ 387 Law Enforcement Test Prep Class take a field trip to Medford Police Department, where Sgt. Budreau

gives instructions to Officer Josephson on how to properly pull the dummy during the ORPAT test.

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Learn More about every law enforcement agency in the U.S.

For a complete list of law enforcement agencies (state, county, municipal/city)

visit: http://Discoverpolicing.org

Miscellaneous Policing Jobs: There are many police jobs that may fall under the jurisdiction of the federal government, state, county, or city or they are civilian positions (see below):

• Bailiff for a Court

• Animal Control or Animal Cruelty Investigator

• Computer Forensics

• Correctional Counselor

• Court Clerk or Court Reporter

• Criminologist

• Private Investigator

• Criminal Justice Administration

• Crime Prevention Specialist

• Protection Officer

• Forensic Accountant, Anthropoligist, Artist, Hypnotists, Nurse, Pathologist, Psychologist,

Scientist, Serologist, Toxicologist

• Judge

• Juvenile Probation Officer

• Latent Print Examiner

• Legal Secretary/Paralegal

• Loss Prevention Officer

• Mediator/Negotiator

• Pre-trial Officer

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• Security Analyst

• Security Officer

• Social Worker

• Victims Advocate

• Plus Many More ++

Becoming an Officer Example

“I regularly get asked the following question: “Do I have to be a ‘real cop’- you know, a cop that drives in a

patrol car and answers calls for service, to be a homicide detective?” I understand this question because of a lot

of the cop, and detective television shows out there today do not accurately represent this situation. I am so glad

the television shows are available because they work as a recruitment tool for many departments. But, I have to

disappoint many people, when I give the honest answer…”Yes, you have to be a ‘real cop’ before you can be a

detective.” And, I go a step further, in explaining that it can take years, or even decades, to test and promote to

a homicide detective.” I explain that many smaller departments that do not have many homicides in a given year,

have positions open in the detective bureau every two-five years. But, the larger departments that have hundreds to

thousands of homicides a year, will only promote every ten-to-twenty years, because even though an officer could

promote to the detective bureau within several years, the homicide detective is a glamorous position, therefore one

must ‘do their time’ as a property detective, investigating vehicle burglaries, etc., before there is a retirement and

they have proven themselves enough to take that position.

Divisions within Each Agency: Law enforcement agencies, whether they are federal, county, state, or municipal/city, generally have jobs available within two major areas: 1- Commissioned 2- Civilian.

Commissioned is a term that describes an employee that has been through police training is certified as a police officer and has arresting powers in the state. Civilian is a term that describes an employee who has not been through police training and does not have arresting powers.

One of the fantastic parts of policing is the vast array of jobs available. Whether a person is looking in

the commissioned or civilian arena, there are a plethora of choices. Once a candidate has gone through the

testing process for a particular law enforcement agency and is hired after a certain number of years ‘on the

road’ (length of time required on the road, is determined by each department) the seasoned officer can then

test for many tantalizing individual divisions. Every department is different as to those specialized divisions.

For example, the Ashland Police Department (APD) in Oregon is a smaller police department and offers its

officers a chance to engage in community policing and problem-oriented policing at a one-on-one level,

due to its smaller size (thirty-fourty officers).

On the other hand, because of its smaller size, the opportunities for advancement are minimal. Officers

with the department can also promote to management. However, APD does have a few detectives but they

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do not offer its officers the more more glamorous divisions such as those offered by the Portland Police

Bureau (PPB). An officer at PPB can promote to the following divisions: Drugs and Vice, Narcotics, Asset

Forfeiture, Youth Services Division, Traffic, Family Services Division, Detective, K-9, Explosive Disposal,

Gang Enforcement, Air Support Unit, Rapid Response, and more.

Policing can be multifaceted thereby keeping its officers engaged. Unlike many other professions, the

daily job of a police officer, depending on the respective department, can change with divisions. One year

a police officer may be writing a traffic citation from a patrol car, and the next year the same police officer

may be driving an off-road motorcycle patrolling the local park or riding a mounted horse in the downtown

area.

The choice to have a career in policing is enormous, but the candidate must go one step further and

start researching to decide what type of policing, and then dig even further to pick which agency and what

possible divisions the candidate would like to have the opportunity to join one day.

Jackson County Sheriff’s Office demonstrates K-9 patrol procedures during the annual Lock-In Event at Southern Oregon University.

During this K-9 class students get to learn how patrol dogs operate and they actually get to see a bite demonstration and learn how the

K-9’s are trained.

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COMMISSIONED- Divisions within a Law Enforcement Agency:

• Detective/Investigations (Persons Crimes- Property Crimes- Homicides, Rape, Robbery,

Burglary, Auto Theft, DUII, Domestic Violence)

• Motors

• Narcotics

• Human/Sex Trafficking

• VICE

• Crime Scene Investigation (CSI)

• SWAT

• K-9 (patrol, drug, and search & rescue dogs)

• Crisis Negotiator

• Mounted Unit (horses)

• Air Unit

• Training/Range Master

• Academy/Tac Officer

• Bike Patrol

• Recruiting

• Internal Affairs

• Public Information Officer

• Gangs

• Search & Rescue

• Forest and Fish & Wildlife

• Marine

• Various Area Task Force (usually made up of various law enforcement agencies in the area-

to sometimes include federal agencies too)

• Plus Many More ++

CIVILIAN- Divisions within a Law Enforcement Agency:

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The civilian areas of each police department are also fascinating. Not every person is meant to go into

law enforcement as a police officer. It is a strenuous and stressful job that attracts many but only made

for a few elite. However, don’t fret; there are many options in the law enforcement realm. Putting on a

bullet-proof vest, filling a holster with a semi-automatic handgun, and continually training to be in tip-top

condition does not appeal to everyone, so there are still many jobs available in the law enforcement arena.

Civilians are the other half of the equation and are a much-needed commodity for every law enforcement

agency. When a citizen dials 9-1-1, a dispatcher answers the phone, and that dispatcher is a civilian. When

a police officer finds heroin on a suspect and takes custody of it and later books it into evidence at the police

station, the evidence technician is the civilian that logs and follows through with the chain of custody for

the heroin evidence. Civilians are just as important as the commissioned positions at a law enforcement

agency.

Example civilian positions at law enforcement agencies:

• Dispatch/911 Operator

• Records

• Crime Analysis

• Forensic Unit/CSI

• Training

• Fleet Management

• Support/Facilities

• Human Resources

• Operations Support Unit

• Recruitment Coordinator

• Volunteer Coordinator

• Administrative Support

• Plus Many More ++

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Students at Southern Oregon University with a major in Criminology and Criminal Justice take the CCJ 321 CSI and CCJ 462

Forensic Criminal Investigation classes and practice crime scene investigation skills for a future career as a Crime Scene Investigator

Contact with Outside Agencies: It takes a team to accomplish policing. One federal, state, county, or city police agency cannot do it all alone. In order to succeed the agencies must work together. Whether a

narcotics division works with the ATF or an entire SWAT team comprised of officers from various city and

county departments, the team concept in policing is unwavering.

Oregon has a lot of examples of coordination between different agencies to make things happen. For

example, in Jackson County (Oregon) there is The Medford Area Drug and Gang Enforcement (MADGE)

Unit; there was a need in Jackson County, to work towards controlling the gangs and drugs in the valley,

and one department could not complete the mission alone. Therefore, MADGE was created to engage the

following agencies:

Medford Police, Ashland Police, Central Point Police, Jackson County Sheriff’s Office, Oregon State

Police, Jackson County Community Corrections, Federal Bureau of Investigation, Homeland Security

Investigations Division, and the Oregon Army National Guard. Not only does the job get done more

efficiently and more effectively but also the communication that occurs when nine different agencies

converge is awe-inspiring.

In the News: MADGE is proactive in gang intelligence and gang prevention. In 2015, MADGE and Medford Police Department investigated 247 gang-related crimes; a strong majority of these crimes were

graffiti cases. With the continued help of CSO Todd Sales, this graffiti is removed or painted over with

the assistance of youth offenders completing their community service hours, for their part in graffiti. In

2015 there was a 140% increase in gang-related aggravated assault cases, from 5 in 2014 to 12 in 2015.

Current numbers of documented gang members have leveled off from past years. In 2015, MADGE

and Medford Police have identified 315 documented gang members and associates that participate in

organized crime activities. This information is compiled for the furtherance of an investigation involving

organized criminal gang activities http://Madge Task Force Retrieved from http://www.ci.medford.or.us/

Page.asp?NavID=2400 i City of Medford (2018, September 23). Madge Task Force Retrieved from

http://www.ci.medford.or.us/Page.asp?NavID=2400

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Finally, once one enters the policing field, the contacts made daily are numerous.

An officer who works for a city police department can have contact with:

• Jails/Correction/Detention Facilities and Employees

• Prisons

• Prosecutors Office

• Defense Attorneys

• Judges and Lawyers

• Various Social Services

• Educational Entities

These contacts are precious to every police officer and without them; the officer could not complete

their job effectively.

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6.5. Recruitment and Hiring in Policing

TIFFANY MOREY

Learning Objectives

After reading this section, students will be able to:

• Describe the parts of the written test

• Discuss why a candidate must study, study, study, for the oral board interview

• Explain the type of questions on an oral board interview

• List the different types of a physical agility test

• Explain why departments are starting to utilize the assessment center test

• Recognize why a candidate’s background is the most important part of the testing process

• Describe why candidates fear the psychological evaluation

• Understand the B-Pad Video Test

Critical Thinking Questions

1. What is on the written test?

2. How should a candidate study for the oral board interview?

3. What is the best way to prepare for the physical agility test?

4. How can a candidate prepare for an assessment center?

5. What is the best way to start preparing for the background investigation and interview?

6. Does the psychological evaluation only check if a candidate is psycho or crazy?

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History of Recruitment and Hiring What History? ‘Nil’ For lack of a better word, would describe the history of recruitment and hiring of

new officers. Before the 1960s, as long as the candidate was a white male, had a heartbeat, and there was an

opening for a cop, the job was most likely his. Women and officers of color were all but non-existent on the

force. Women were only allowed into the ‘boys only club’ if they wore a pencil skirt and fit a prescribed role

consistent with being a woman. In some departments, women were allowed to work in the detective bureau

and interview children victims, because women supposedly talked to children better than men, because of

their ‘maternal’ instincts. These stereotypes continued in policing towards women and minorities until new

laws forbidding such behavior, made their way into the scene. With new employment laws passed between

the 1960s to the late 1990s, many doors opened for women and minorities.

Recruitment and Hiring Example

When I was in the recruitment division of my police department and also as a professor at a university, I

continually saw future police candidates unprepared for the Law Enforcement Testing Proces, a.k.a. The LET Prep

For some reason, candidates assumed that if they had their associates, or bachelor’s degree, they did not need to

study and prepare for the LET Prep. Unfortunately, that could not be farther from the truth. Just like a high school

student getting ready to enter college, needs to take the ACT or SAT, that student must still study and prepare for

those tests if there is to be a successful outcome. Due to the importance and multifaceted LET Prep, it is even that

much more critical that the candidate take the time to train and prepare. When asked how much time should be

spent studying and preparing? My response was always “as much as you can!” But, in reality, the candidate should

start preparing a minimum of six months before the written test (which is the beginning step of the LET Prep).

A good guide is one hour a night. Also, I recommend studying appropriately for each part of the LET Prep. For

example: The Oral Board Interview should be prepared for with the candidate actually speaking aloud the answers

to pre-determined questions (such as: “Tell us about yourself”), the candidate should video themselves to playback,

watch and learn from, and if at all possible the candidate should ask friends and family to sit on a ‘mock oral board

panel’ and the candidate should answer questions aloud and in front of the panel. The more realistic the training,

the better prepared the candidate will be.

The Law Enforcement Testing Preparation (LET Prep) One of the most challenging entry-level testing processes in the United States is for the position of police

officer. A typical ‘regular’ job, such as a cashier at a store, requires the candidate to fill out a job application,

then go onto a job interview, and poof, they are hired! There is a good reason why the LET Prep is so

difficult and thorough. Unlike a cashier, a police officer, once hired and trained, becomes the beholder of

great power with authority to take away a person’s freedom all under the protection of the government to

shoot and possibly take a life, when a life is threatened. Officers have the authority to take away a person’s

rights and freedoms and this type of power should not be given to anyone with just the flick of a coin, the

testing process should be rigorous and thorough. Therefore, with those facts, the law enforcement testing

process should be thorough and rigorous, to ensure the right candidate is hired.

When thinking of the LET Prep, it can help to compare it to the ACT, SAT, National Football League

Training Camp, and military boot camp, all combined. The best way a new candidate can ensure failure is

to forego studying and go into the process unprepared.

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Written Test -LET Prep The written test is tough! It can be compared with the ACT and SAT and some parts are even a bit more

difficult! Eighty percent of the candidates that take the written test fail! The written test has the following

types of questions:

• Reading Comprehension

• Vocabulary

• Spelling and Grammar

• Observation/Memory

• Deductive Reasoning/Inductive Reasoning

• Spatial Orientation

• Math

• Essay/Incident Report Writing/Written Communication

• Analytical Ability

Every law enforcement department is different, although generally there are two basic ways departments

administer the written test. The first is through an online testing service. The candidate registers online

to take the test and then will go to a pre-determined location (such as a library) with a proctor, to take

the written exam on a computer. The candidate can then send their exam score to a participating law

enforcement agency, to which the candidate is applying. The second is through the law enforcement agency

itself. The agency the candidate is testing for will post the written test date, and the candidate will respond

to the agency and take the written test. Most agencies score the written test on site, and the candidate learns

right there and then if they have a passing score to move forward in the testing process. Every agency also

differs concerning the passing score. Most agencies require at least a seventy percent to pass the written test

and move on in the hiring process. Although there are no set rules as to the passing score, some agencies

require seventy-five or eighty percent to pass the written test, it just depends on the individual agency.

The written test is tough! There are no shortcuts for studying for it, except to sit down and put the time

in. The best way to study is take one subject at a time, study one hour a night, and follow up with practice

tests of the respective subject. List the areas of concern after grading the practice tests and move onto the next

subject. After all subjects have been studied, go back and spend more time focusing on the areas of concern.

A reasonable period needed to study for the written test is generally six to twelve months.

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Hiring Our Heroes

Senior Airman Alfonzsa Jackson of the 127th Maintenance Squadron speaks with Trooper Walter Crider of the Michigan State Police

during the Hiring Our Heroes job fair at Selfridge Air National Guard Base, Mich., May. 18, 2013. Jackson, a six-year member of the

Air National Guard and recently a member of the 127th MXS Aerospace Ground Equipment crew, attended the job fair to explore

possible career opportunities in law enforcement. More than 300 were in attendance visiting with representatives of more than 50

employers. (U.S. Air National Guard photo by TSgt. David Kujawa.)

Physical Agility Test- LET Prep The physical agility test is given three different ways, depending on the department;

#1-State Physical Agility Test: In Oregon, for example, most of the departments utilize the ORPAT or

Oregon Physical Agility Test. The ORPAT is a job sample physical ability assessment process. The goal is

to assess an entry-level police officer candidate in the physical demands a police officer is likely to replicate

during routine duties.

• Part One- Mobility Run: 1235 Foot Obstacle Run Where the Candidate Demonstrates Mobility,

Agility, Flexibility, Power, and General Physical Endurance

• Part Two- Push Activity, Controlled Falls, Pull Activity

• Part Three- ‘Dummy’ Drag, 165-pound ‘Dummy’ is Dragged 25 Feet

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During the CCJ 387 Law Enforcement Test Prep Class, students took a field trip to Medford Police Department, where Sgt. Budreau

assisted the students with the various portions of the ORPAT.

#2-Physical Agility Test: A department will hire various testing agencies that have developed physical

agility courses, to set up and test entry-level police candidates.

• A description of a ‘dummy’ suspect is given (this ‘dummy’ just committed a crime)

• The candidate runs through various obstacles; four-foot cyclone fence jump, window crawl

through, one-hundred to three-hundred yard dash, and six-foot fence jump

• The candidate picks the suspect ‘dummy’ out of a lineup and drags the one-hundred+ pound

suspect ‘dummy’ twenty+ feet

#3-Military Physical Fitness Test

• Push-ups: a certain number, in a specified amount of time

• Sit-ups: a certain number, in a specified amount of time

• Pull-ups: a certain number, in a specified amount of time

• Two-mile run: in a specified amount of time (times are dependent on sex and age of candidate)

Just as with the written test, the physical agility/physical fitness test must be prepared for. All of the above

three tests require the candidate to work out and perform various physical fitness activities for a specified

period of time before the testing process in order to ensure the candidate is in proper physical condition for

the test. It is also the time for the candidate to realize that physical fitness must be a career-long decision in

law enforcement, and this is the perfect time to start with the mindset of keeping physically fit as a lifestyle.

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Officers with the Ashland Police Department teach a defensive tactics class during the annual Lock-In Event.

This is a great time for SOU CCJ students to learn the tactics officers train in during the police academy and

every year during defensive tactics recertification.

Oral Board Interview- LET Prep The oral board interview is one of the least prepared for testing portion of the LET Prep since the

questions for an entry-level police officer candidate are very basic:

• Tell us about yourself?

• Why do you want to be a police officer?

• What have you done to prepare for the job?

There often is the feeling by candidates, that the answers to the above questions are a given and known,

therefore why would one need to study or prepare for such easy questions? However, that way of thinking

could not be further from the truth. The oral board interview consists of a table with two-to-four police

department represenatives, usually a police officer, possibly a volunteer police department representative, and

one or two supervisors on one side of the table, and one chair placed in the center of the room (or the

opposite side of the table) for the candidate to sit. This set up is meant to place the candidate on the spot

and cause some stress to occur. This will help the panel members see how the candidate responds to stress.

The reason behind this is because the job of a police officer will entail at times, stressful situations and being

the center of attention when citizens will look towards the police officer for guidance. Therefore, this is one

way to gauge how the candidate or future police officer will respond in a stressful situation.

Successful candidates learn positive ways to prepare for the oral board interview by taking college/

university classes, obtaining study guides, writing out answers to the obvious questions, memorizing

answers, and conducting practice sessions with family and friends where the questions and answers are read

aloud.

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Paul Donaldson, right, Tallahassee Police Department policeman, speaks to Pamela Cherry and Toccora Ferguson, contract

custodians, during the Veterans career fair Oct. 19, 2017, at Moody Air Force Base, Ga. Over 55 potential employers were

present to network with attendees, compete for hiring opportunities and schedule interviews

Oral Board Story

I have been a panel member on dozens of entry-level police officer oral board interviews. I was always amazed

at how unprepared the candidates were. Once during one oral board interview one candidate, was asked: “Tell us

about yourself,” to which the candidate began by rolling his eyes towards the ceiling while he chomped on his gum

and proceeded to say: “hmm…..well……hmm” and then he put his right hand into his right pant’s pocket and

began jingling his keys. The room was quiet other than the panel members’ thoughts of how this question could

have stumped the candidate. The candidate proceeded by swallowing loudly and without making eye contact with

any of the panel members said: “I am in college and I just broke up with my girlfriend and … hold on…let me

think…I know there was something else…could you repeat the question?”

At this time I put him out of his misery and moved onto the next question. He, of course, continued to flail with

each question and at the end, he failed the oral board interview. I do not know if he would have made a good police

officer or not, but I do know this…he did not prepare for his oral board interview. I can almost guarantee (because

I have seen this from many other candidates as well) that he knew we would ask that particular question, but he

figured, why did he need to study that question? He knew all about himself, heck he grew up with himself, and he

often spoke to his friends and family about himself regularly so of course, he would not have any troubles rambling

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off all the amazing things he had done in his life. Unfortunately, he did not figure on one big thing; STRESS! Stress

and nerves cause the most confident of us to freeze and stumble on our words.

Therefore, the most poised of us must prepare a handwritten (or typed) pre-determined answer to many such

questions, then create study cards (or notes in a smartphone) of the appropriate answer and finally study, study, and

study more, and memorize! That way when the actual stress hits and the nerves take over, the immediate response

will be to go back to what was studied. Don’t take my word for it. Look it up! It is actually a favorite tool and used

by police officers regularly in their weapons and defensive tactics training as well. Can you think of a more stressful,

nerve-racking situation, than having a person threaten or point a weapon at you? The way most officers begin to

respond to such stressful situations is they revert unknowingly to their training.

A second example of a female candidate on an oral board interview; a common question on the oral board panel

has to do with knowledge of the department the candidate is testing for. As I read off the following question to

the female candidate, her eyes opened as big as a flying saucer. “Who is the Police Chief of this department?” As

the clock ticked away the seconds, her mouth continued to slowly open and eventually it completed the fish open

mouth look. She, of course, did not know the answer. As the questions continued, it became apparent that she was

going to fail as well, due to her lack of studying. My recommendation… if you want to work somewhere, you

really should know a little bit about the department, especially who the top cop is!

Assessment Center/B-Pad- LET Prep Assessment centers are not new to police department testing. However, they have generally been utilized

for management promotional testing, when a police officer tests to be a sergeant or sergeant tests to be

a lieutenant. With successful results in the previous arena and with the importance of hiring the best

candidate, human resources and recruitment divisions have turned towards assessment centers and B-Pad

Video Assessment, as an additional layer of testing in the LET Prep, to ensure hiring of the correct candidate.

Assessment centers are practical testing situations, where the candidate must ‘act’ out their response. It is a

time for the testing agency to see how the candidate might respond in different situations. One of the most

common assessment center utilized at the entry police candidate level is the group assessment center. This

group assessment center can look very different depending on the agency hosting the assessment, but the

general framework is the same for all. For the group assessment center, eight-twelve candidates will enter the

testing facility and sit around a table. The proctor will then give the candidates an ‘issue’ to solve. Example

issue: “There have been a large number of bicycles stolen from the university in the last three months.

What can we do to stop this?” There will be two-four evaluators at a table adjacent to where the candidates

are sitting, and the evaluators watch and listen while the candidates try and solve the issue. It is impressive

how quickly candidates lose their temper, become rude to other candidates, talk over candidates, or more

positively, how candidates work with other candidates, compliment real ideas, and work quickly towards a

viable solution.

B-Pad Video Assessments are completed generally with one candidate at a time. A candidate enters a room

alone, and a proctor shows the candidate a projector screen and a video camera. A video camera records the

candidate. The proctor starts the video camera recording and leaves the room. Once the video starts playing,

the candidate must respond towards the screen, and ‘act’ out whatever the candidate feels is the appropriate

answer to the situation. One such example of the scenario played on the video was of a mentally challenged

individual that was asking to return to Mars. The individual in the video had a knife. The candidate had

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to talk and act out what should be said to the mentally challenged individual in the video. The recording

of the candidate is then watched at a later time by a panel of evaluators from the department and graded

accordingly.

Hiring Example

Candidates are often terrified when it comes to the psych eval and the medical physical. One common question

I usually get is: “I am currently taking a prescription of an anti-depressant, prescribed by my family doctor because

I am bi-polar. Will this keep me from being a police officer?” My answer is always, “I do not know.” But I further

explain that this is not a decision made by the police agency itself, instead the recommendation to hire or not,

is made by the psychlogist (who evaluated the psychological evaluation) and the medical doctor (who evaluated

the medical/physical). Both doctors will look at the entire psychological and medical profile of the candidate and

together make a recommendation to the hiring agency on whether or not the medication and reason for the use of

the medication could be an issue.

Background Investigation-LET Prep The background investigation is probably one of the most critical portions of the testing process. After

the candiate passes the written, phyiscal fitness/agility, oral board interview, and assessment center portions

of the test, the candidate is given a background packet to fill out. The packet is very thorough and asks

the candidate everything from where the candidate went to school, worked, prior drug use, prior arrests,

prior illegal actions/criminal activity (even if not arrested). The background investigator can spend days to

weeks, investigating the candidate to ensure honesty and a good moral compass. The biggest issues in this

portion of the testing, centers around prior drug use and criminal activity. Unfortunately, most agencies do

not list their requirements on past drug use openly. A lot of agencies utilize the FBI’s prior drug use police.

However, most agencies hold the right to make their own decisions for each individual candidate.

Psychological Evaluation- LET Prep The psychological evaluation (psych eval) is one of the least understood of the hiring process. When asked,

a majority of the candidates openly state they have nothing to worry about since the psych eval only tests for

psychos, but they will also admit that they quietly fear the psych eval since it is the unknown that causes the

most fear. There is no way to study for the psych eval. The best advice given is to tell the truth and this holds

true for every part of the L.E.T. Process. However, do understand that the psych eval is not just looking for

those candidates with mental illnesses, it is also looking for those that will not make good police officers or

have aggression issues or controlling issues to name a few.

Medical Examination- LET Prep The state where the candidate is going to work as a police officer will determine the depth at which the

medical/physical is completed. Possible testing that could occur during this phase of the testing process is:

• Blood/urine/hair drug tests

• Hearing test

• Eye examination

• Lung capacity

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• EKG

• Treadmill stress test

• Chest X-Ray

• Cholesterol test

• Various other blood tests

Chief or Sheriff Interview- LET Prep Once a candidate has passed the written test, physical agility test, oral board interview, group assessment

center/B-Pad assessment, and background investigation, if the department is still interested in the candidate,

the candidate is made a ‘conditional offer of employment.’ In laymen’s terms, it means the department is

interested in the candidate, but still wants the candidate to go through the psych eval and medical physical.

Due to the intrusiveness of those two tests and results, the department must prove they are interested in the

candidate enough to make a conditional offer of employment, all of which is dependent on the results of

those two tests, of course.

If the candidate shows no issues with the psych eval or medical/physical, the candidate is then called in to

the Chief or Sheriff’s office (depending on the department) for an interview. After the interview and all of

the above testing areas are finished, the Chief or Sheriff will most likely call a meeting with the background

investigator and the psychologist who completed psych eval and go over the final candidates one by one.

From this meeting a list is created of whom the department will hire. An ‘informal’ type of interview is

informal in nature since the ‘top cop’ (a.k.a. Chief or Sheriff) is looking to meet a potential new police officer.

Photos above, from left to right: Medford Police Department patrol vehicle, Jackson County Sheriff’s Office K-9 patrol vehicle, and

Medford Police Department BearCat SWAT vehicle. Law Enforcement agencies across Oregon participate in the Annual Lock-In

Event. The above vehicles parked these vehicles for viewing at Lock-In.

Mentoring and Retaining All too often, departments place everything into the LET Prep, and then after the candidate is offered

the job, accepts, and starts the dream job of a police officer, this new officer can be lost and forgotten in

the shuffle. Departments must ensure that mentoring and retaining occurs. Mentoring can be completed

through proper supervision from the top down and ensuring first-level supervisors are responsible for those

they supervise. A good supervisor can make the difference between an officer disliking or loving their job.

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6.6. Recruitment and Hiring Websites for Future Careers

TIFFANY MOREY

FBI Past Use Drug Policy

It does matter what you do in school! If you want a career in law enforcement make sure you understand the past

use drug policy of law enforcement agencies. Many departments follow the published FBI past drug use policy.

For more information see the FBI’s past drug use website link below:

https://www.fbijobs.gov/working-at-FBI/eligibility

A N D F O R M O R E I N F O R M A T I O N A B O U T T H E R E Q U I R E M E N T S F O R A N F B I S P E C I A L

A G E N T V I S I T T H E F O L L O W I N G W E B S I T E :

https://www.fbijobs.gov/career-paths/special-agents

VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A

CIA SPECIAL AGENT:

https://www.cia.gov/careers

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CIA

VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A

SECRET SERVICE SPECIAL AGENT:

https://www.secretservice.gov/join/careers/

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Secret Service

VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A

DEA SPECIAL AGENT:

https://www.dea.gov/careers

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DEA

VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A

TROOPER WITH THE OREGON STATE POLICE:

https://www.oregon.gov/osp/RECRUIT/pages/index.aspx

State Departments Recruitment and Hiring Websites

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Oregon State Police

VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A DEPUTY WITH

THE JACKSON COUNTY SHERRIF’S OFFICE:

http://jacksoncountyor.org/sheriff/General/Employment-Opportunities

County Departments Recruitment and Hiring Websites

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Jackson County Sheriff’s Office

VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A DEPUTY WITH

THE DESCHUTES COUNTY SHERIFF’S OFFICE:

https://sheriff.deschutes.org/about-us/join-the-sheriff%27s-office/

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Deschutes County Sheriff’s Office

VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A POLICE OFFICER

WITH

THE MEDFORD POLICE DEPARTMENT:

http://www.ci.medford.or.us/Page.asp?NavID=1446

City Departments Recruitment and Hiring Websites Medford Police Department

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Medford Police Department

VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A POLICE OFFICER

WITH THE

PORTLAND POLICE BUREAU:

https://www.joinportlandpolice.com/start

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Portland Police Bureau

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6.7. Police Misconduct, Accountability, and Corruption

TIFFANY MOREY

Learning Objectives

This section will cover police misconduct and accountability. After reading this section, students will be able to:

• Discuss the different corruption types in policing

• Explain the difference between a meat eater and a grass eater

• List the different ways an officer engages in noble-cause corruption

• Describe how a police officer uses stereotyping on the job

• Discuss the importance of having a reliable internal affairs division/bureau

• Explain why excessive use of force is difficult to quantify

Critical Thinking Questions

1. How are grass eaters and meat eaters different?

2. What is noble cause corruption?

3. Why are there misunderstandings of police accountability?

4. What are the functions of an internal affairs division/bureau?

5. What happens if a police department shows a pattern of excessive use of force?

Corruption Types Police officers have a considerable amount of power. With one fail swoop, an officer can take a person’s

freedom away. That is a tremendous amount of power. An officer is also given the authority to carry a gun

and for protection of either the officer or a person, take the life of a citizen as well. These decisions are

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dangerous, and unfortunately, at times there are officers who not only overstep their boundaries but jump

directly in the pit of corruption.

While the media paints a picture that most police officers are corrupt, this could not be further from the

truth. The Bureau of Justice confirmed that only 0.02% of the police officers in the U.S. engage in some

type of corruption. While the media makes money selling stories, the police story that starts the five-o’clock

news is not always true. When the media covers a police shooting for instance, the investigation has not

been completed, therefore the only answer the police department will have for the media is ‘no comment.’

A cover-up then comes to mind; however, when the invesitgation is completed weeks to months later,

the media is not always as interested in the story, especially if there was no police corruption. Even more

importantly it takes two-years to basically train a new police officer. The same police officer then continually

trains every month to ensure the knoweldge of current laws and many other tactics are up-to-date. Unless

one is a trained commissioned law enforcement officer, there is no way the public, nor media can truly

understand why an officer acted and responded the way he or she did, unless they experienced the exact same

circumstance.

No matter the profession, whether it is an actor, a cashier, a president of a non-profit organization, or a

police officer, corruption can occur. The focus on law enforcement is more dramatic due to the glarmour of

the type of work performed. Either way, corruption should not be condoned and if it does occur, the reaction

must be swift and stern. Those in law enforcement hold a badge which grants the carrier the authority to

take away a person’s rights therefore, the authority that comes with the badge should NEVER be taken for

granted.

Grass Eaters In 1970, The Knapp Commission coined the terms ‘meat eaters’and ‘grass eaters’ after an exhaustive

investigation into New York Police Department corruption. Police officers that were grass eaters accepted

benefits. Whether it was a free coffee at the local coffee shop, fifty percent off lunch, or free bottled water

from the local convenience store, these cops would take the freebie and not attempt to do the right thing by

explaining why they cannot accept the benefit and then pay for the benefit. By accepting benefits, the officer

was, in turn, agreeing that whoever gave the benefit, i.e., coffee, or lunch, etc., was to receive something

in return. What if the coffee shop wanted the officer to patrol their shop every morning between the busy

hours of six and seven a.m.? Would that be fair to other coffee shop owners that did not give free coffee to

the officer? 1

Meat Eaters These officers expected some tangible item personally from those served, in order to do their job. Whether

it was money ‘shakedown’ to ensure a convenience store was not robbed, or the officer felt there was nothing

wrong with stealing from a drug dealer during a drug raid; ‘no one would notice a pound of cocaine missing,

right?’ These officers felt entitled and were aggressive in making sure they got what they thought was theirs.

If a person has the lifelong goal of being a police officer, then that same person will want to protect the

innocent from those criminals that aim to do them harm.

Noble Cause Corruption Noble-cause corruption is a lot more commonplace then many think. Many officers work twenty-five

years and may never see another cop steal something, but they will see noble-cause corruption. Most officers

join the force to make the world a better place in one way or another. While officers understand they cannot

1. Caldero, M. A., Dailey, J. D., & Withrow, B. L. (2018). Police Ethics: The Corruption of Noble Cause (4th ed.). New York, NY, USA: Routledge/Taylor and Francis.

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solve everything alone, they do think they can make a difference. The noble-cause is the goal that most officers have to make the world a better and safer place to live. “I know it sounds corny as hell, but I really

thought I could help people. I wanted to do some good in the world, you know? That’s what every cop

answered when asked why he became a police officer. 2

Officers sign on and get hired wanting and striving to do the right thing. However, it is a slippery slope

that the officer continually slides on from the academy, through field training, and on into the deeper parts

of a police career.

Slippery-Slope Model of Noble-Cause Corruption

1. “Forget everything you learned in training (school), I’ll show you how we really do it

out here.”This what an officer often first hears from a TO (training officer). The statement is only superficially about the lack of utility of higher education. What it is actually about is loyalty

and the importance of protecting the local group of officers with whom the officer works.

2. Mama Rosa. It looks like a free meal. This is not to test willingness to graft, but whether an officer is going to be loyal to other officers in the squad. It also serves to put officers together

out of the station house.

3. Loyalty Back-up. Here, an officer is tested to see if he or she will back up other officers. This is more involved because officers may have to ‘testify’ (give false testimony), dropsy (remove

drugs from a suspect during a pat-down and then discover them in plain sight on the ground),

the shake (similar to dropsy, only conducted during vehicle stops), or stiffing-in a call. These are

like NC (noble-cause) actions, and may indeed by NC actions, but their purpose is to establish

loyalty.

4. Routine NC (Noble-Cause) Actions Against Citizens. Magic pencil skills increase penalties by shifting the crime upwards. Protect fellow officers with fictitious chargers.

Construct probable cause. Illegal searches of vulnerable citizens.

I am the Law. This is the belief that emerges over time, in which officers view what they do as the right thing to do. This is the practical outcome of the old adage ‘power corrupts, and absolute power corrupts

absolutely.’ A police officer does not have absolute power, but he or she has the backing of the legal system

in almost all circumstances. Behavior can become violent, as with the Rampart CRASH unit.” 3

Therefore, every officer can start out wanting to save the world somehow, but when the real-world job

of an officer starts to take hold, it is a problematic grasp to release.

2. Baker, M. (1985). Cops: Their lives in their own words. New York: Pocket Books. 3. Withrow, B.L., Dailey, J.D., & Caldero, M.A. (2018). Police ethics: The corruption of noble cause. New York: Routledge.

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6.8. Current Issues: Police Shootings

TIFFANY MOREY

One of the most controversial issues in regards to policing in the 21st century are police shootings. The

‘police shooting’ topic causes much debate and is always in the headlines of every media outlet when

it occurs. After an officer-involved shooting, citizens want answers, rightfully so. Unfortunately, police

departments cannot immediately provide those answers. The all too familiar ‘no comment’ or ‘we do not

have any information at this time’ or only providing limited facts, does not appease saddened or angry family

members or the general public.

Police departments cannot comment because they may genuinely not know the entire story. Police unions

are there to protect officers, and the officers need time between the shooting and when they are required

to write the police report on the incident and answer questions about the shooting for a variety of reasons.

Therefore, directly after the shooting, when the media or the general public wants answers, there might not

be any answers known to give. However, this immediately reads as the department has something to hide.

Whether that is true does not matter in the eyes of many. An investigation must occur before the department

can make a formal statement, and release body camera or dash mounted camera footage and information

about the shooting. All too often though, this information comes too late.

One case that signifies this all too well is the officer-involved shooting and killing of Michael Brown, in

Ferguson, Missouri. 1

In the News: Michael Brown- Ferguson Missouri – Officer Involved Shooting

https://www.youtube.com/watch?v=t2104nz_h5A

1. Department of Justice. (2015). Department of Justice report regarding the criminal investigation into the shooting death of Michael Brown by Ferguson, Missouri police Officer Darren Wilson. Washington, DC: Department of Justice.

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Ferguson Police Department Michael Brown Crime Scene

The riots that occurred during the aftermath of the incident resulted in numerous arrests, millions of dollars

in property damage sustained, and almost insurmountable damage to the relationship between police and

young Black males. The Ferguson Police Department, where the officer is employed who shot and killed

Michael Brown, had many issues; however, much of the information that the media released shortly after the

shooting was later investigated and found incorrect.

Police officer involved shootings are very serious. Officers train and qualify quarterly with their duty

firearms and regularly review what is required to use deadly force. After every police-involved shooting (use

of deadly force), once the investigation is complete, a grand jury or coroner’s inquest (depending on the

jurisdiction and outcome of the shooting) must take place. There is a trial where the actions of the officer

involved are examined to determine if the use of deadly force was justified. The officer describes in detail

the shooting and why the officer felt it necessary to use deadly force. Witnesses take the stand and tell what

they heard or saw. Finally, a jury decides whether or not the use of deadly force was justified. If the shooting

is justified, the officer will not face formal charges for the use of the use of deadly force. However, if the

shooting is determined to be unjustified, the officer can face felony charges, up to the murder. Generally, at

this point, the officer is fired from the respective police department, and the prosecutor’s office files charges

against the officer. For instance, at the Portland Police Bureau, any use of deadly force goes through eight

different reviews, in order to determine if the officer was justified.

In the News: Officers that utilize deadly force (such as a police shooting) once the investigaiton is completed are required to go through a grand jury or coroner’s inquest (depending on the state). This

process is similar to any criminal trial. If the jury finds that the officer was NOT justified (in their decision

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to use deadly force) that officer is generally fired by their police department and then can face murder or

manslaughter charges. For example: Chicago police officer found guilty of murder https://www.cnn.com/

videos/us/2018/09/05/jason-van-dyke-trial-orig-bk.cnn

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6.9. Current Issues: Use of Force and Vehicle Pursuits

TIFFANY MOREY

Police officers have the power to use force if deemed necessary. If an officer uses more force than required for

the situation, this brings up many red flags. The Violent Crime Control and Law Enforcement Act of 1994

authorized the Civil Rights Division of the U.S. Department of Justice (DOJ) to initiate civil actions against

policing agencies if the use of force utilized is excessive or constitutes a pattern of depriving individuals of

their rights. 1

One additional issue in police use of force situations is that it is difficult to measure. There are many types

of force police can use. The force utilized varies from going hands-on to pepper spray, taser, ASP baton,

control holds or takedowns, to deadly force. Every situation is different because it involves human beings

and can be interpreted differently from those involved to those standing on the side-lines.

Vehicle Pursuits

Vehicle pursuits have dramatically changed over the last decade. It used to be commonplace for officers

to engage in several vehicle pursuits during one-shift. Officers would get in a vehicle pursuit for many

reasons, stemming from locating a rolling stolen vehicle to a driver failing to stop after running a stop

sign. Vehicle pursuits have at a minimum, two, four-to-five thousand-pound deadly weapons (a.k.a.= the

vehicles) that are driven recklessly (most times), chasing one another. The morgue has seen large numbers

of fatalities due to vehicle pursuits. Victims range from an innocent person in a crosswalk at the wrong

time when the vehicle police pursued, hit the victim, or the innocent person driving across an intersection

with a green traffic light struck while the pursuing vehicle runs a red traffic light. There are too many sad

stories of the innocent victim killed because the police decided to pursue a vehicle with lights and siren and

the pursuing vehicle refused to pull over.

Because of the many senseless fatalities, many police departments have updated their vehicle pursuit

policies and procedures. Although the policies of each department do differ in minor areas, most

1. DOJ. (March 2, 1998). Justice Department Consent Decree Pushes Police to Overhaul Operations, Pittsburgh Post-Gazette, C-1.

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departments have chosen to only approve a vehicle pursuit in dire situations. Such a situation fitting that

description would be if the driver of the fleeing vehicle were actively engaging in behavior that was placing

other citizens in immediately dire harm.

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6.10. Current Issues: Stereotypes in Policing

TIFFANY MOREY

Human beings are infamous for stereotyping. A first impression when meeting a new person takes only

seven seconds. According to Pitts (2013), smiling, shaking hands, introductions, speaking clearly,

maintaining eye contact, looking smart, and not sitting down, are sure-fire ways to ensure a more positive

stereotype; however regardless, the seven seconds is irrefutable.

Stereotyping in policing is almost a foregone conclusion. Citizens expect their police to protect them

by being not only reactive but proactive. One of the most popular policing methods is to view a situation

and proactively make a quick decision on whether or not a crime is about to occur, and if it is, stop it

from happening. One of the ways police proactively operate is through stereotyping. “Police officers spend

a great deal of time working their beats…one thing is common to all police officer working personalities:

in an effort to know who or what is ‘wrong’ on their beat, police officers must know who is ‘right’ or who

belongs.” 1

When officers cross over the line is when they leave out the step of asking the who, what, where, when,

why, and how after the stereotyping occurs, to confirm their thoughts. It is at this point that the officer is

engaging in a type of implicit bias policing and this opens many doors to corruption. It is another slippery

slope that officers must always be aware of while performing their many duties.

“Stereotyping or Terry Stop” Example

No matter how controversial policing is today, one common thread is that citizens want police

to be proactive, not reactive to violent crime. Whether it is stopping an active shooter in a school, a burglary, or

even a robbery, proactivity in policing is necessary to halt horrendous crimes from occurring. In 1968 the United

States Supreme Court decided Terry v. Ohio, which further explained reasonable searches under the 4th amendment and played a vital role in the below story.

I was one of six officers with my department, chosen to work in our first ever problem-solving unit (PSU). Our

substation was placed in a neighborhood where 21 murders had occurred in just a few months. We were tasked

1. Perez, D.W. (2011). The paradoxes of police work. Florence, KY: Cengage Publ.

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with being proactive and working with the community to stop the bloodshed. The two-mile radius neighborhood

were composed predominantly of minority residents, and their distrust of our presence was apparent immediately.

The residents had stereotyped us as rotten apple police officers and at first, did not want our assistance, they did

not trust us. This was further agitated by the fact that we were there to be proactive and stop any future murders

from occurring. Plus, we had the Terry v. Ohio decision to assist with our proactive actions. The citizens did not understand what that meant. They also did not understand that as one of the officers pledged to protect the area, I

was feeling like an unwanted officer in their neighborhood. They did not know that I got into policing to change

the world, if even just a little. They did not know how frustrated it made me feel when no matter how hard I tried,

no one would not trust me. One day, as a four-year-old child approached me for a police sticker, the mom grabbed

the child by the arm and said, “Get away from that Po-Po, she is a Bi***, and don’t you dare talk to her, ever, or you’ll

get it!” I cried that night when I got home from work, wondering how I could help this neighborhood if I couldn’t

even get one mom to trust me? Whether or not it was true, stereotyping had occurred in this neighborhood. Then

on top of it, I had to utilize the Terry v. Ohio decision to be proactive, to keep the murders from occurring. It felt like a Catch-22 with no solution. The answer did not come to me instantly. All I could think to do was my job

and stop the murders (as I was directed to do). I remembered that four-year-old in my everyday actions. I knew my

efforts could make him safer, but would he ever understand? I utilized Terry v. Ohio, by learning the neighborhood, recognizing the residents, and learning who belonged, and who did not. I was either on foot or on a bicycle in

this neighborhood due to the small size. This allowed for a lot of interaction with the residents. If I had reasonable

suspicion to think a citizen was about to commit a crime or had evidence of a crime, Terry v. Ohio gave me the right to investigate further. At first, this angered the neighborhood. They felt we were harassing them, stereotyping

them. I could understand how they felt that way, and instead of trying to make this neighborhood safe overnight, I

decided to begin to change how the neighborhood perceived us, slowly. The way I did this was through education.

Through my daily interactions, I talked to the citizens in the neighborhood about what I was doing and why.

Instead of speaking in ‘general’ I spoke about only one incident at a time.

One night, at 2:00 a.m., I was walking with my partner through the neighborhood. I had to head back to the sub-

station and as I rounded one building, I saw two citizens looking through a window of an apartment. I stopped and

just watched. Everything ran through my mind. Had they lost their keys? Was this their apartment? Or, were they

looking to break-in and burglarize the apartment, possibly even commit a home invasion and hurt those inside? All

of this happened in seconds, not minutes. Because of Terry v. Ohio, I legally investigated. The two citizens did not

live in the apartment and they were trying to burglarize it. One of the suspects had a gun. Because of Terry v. Ohio, I was able to be pro-active and stop this from occurring. A single mom and three children under six years of age lived

in that apartment and were home. The mom did not trust banks and kept her savings in between her mattresses. I

do not know what I stopped that night. I do not know if the suspects would have used the gun, or if they would

have found the mom’s large cash savings or what else they might have taken; however, I did stop a burglary from

occurring and that felt good. The next day while speaking to some of the citizens in the neighborhood, I explained

this. I used this one example to explain why my unit was there. How we stopped this crime and how we all wanted

to make a difference. This one story did not change how the neighborhood saw us; however, after many more

stories such as this, I began to see a change.

Michelle, one of the citizens in the neighborhood got my cellular telephone number (yes we had cell phones

back in the day!). She began calling me when she heard talk about a possible crime occurring. We hosted many

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events in the neighborhood as well. From ice cream socials, back-to-school fairs, and we even worked hard to find

donations and get every child in the neighborhood a bicycle (or scooter). After three years, our substation closed.

We had gone a year without a murder and the crime rate dropped 98%. To this day Michelle still calls me and we

chat about what is currently occurring in our lives. Michelle is my friend and I dare say I think she thinks of me

as her friend too. There was a lot of stereotyping that went on in that neighborhood during those years. I found

my way through it all and I think the neighborhood did as well. In the end, we worked together through good ole

community policing and made the area safe again.

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6.11. Current Issues: Accountability

TIFFANY MOREY

One of the most significant issues with police accountability is knowledge of the job of a police officer.

If a person is ignorant about policing policies, procedures, rules, regulations, and how police operate, then

there is going to be a disconnect when the media portrays police in different situations. All too often citizens

get their knowledge of how the police operate through television shows. Miranda admonition is a classic example. The television show ‘Law and Order’ is notorious for showing the actors playing detectives, giving

Miranda to a suspect, every single time; they place a suspect under arrest. The classic clip shows the hand- cuffs ‘click, click’ going on, and then as the detectives walk the suspect to their vehicle, they are verbalizing,

from memory, Miranda. In reality, this could not be further from the truth. Police have a considerable amount of power. Due to the temptation to abuse assigned power police

must ascribe to a higher standard than someone in a non-policing profession. However, members of the

public cannot appropriately identify police misconduct at all levels. “Most citizens possess an incomplete and

incorrect understanding of what it entails. Often…American citizens frequently believe the police guilty of

misconduct when, in fact, they are not…Dirty Harry is a hero of sorts to many Americans. When a Dirty

Harry-type officer engages in curbside justice aimed at a local bully, for example, people tend to be very

supportive of this type of misconduct. 1

Miranda Misconceptions

Thanks to the CSI Effect, Miranda is misunderstood by the general population. Shows such as Law and Order,

show the detectives slapping the hand-cuffs on the suspect, after the investigation is completed, and immediately

verbalizing the Miranda requirements aloud to the suspect. This is not how Miranda is applied. The Miranda

decision requires officers to read certain statements when those officers plan on INTERROGATING a suspect.

If the suspect is NOT free to leave and the officer wants to question the suspect, in an attempt for the suspect

to make incriminating statements, the suspect must be read Miranda admonishments AND must understand the

admonishments. If an officer sees a person break the law, the only time that officer needs to read Miranda prior to

interrogating the suspect, is if the officer wants to question the suspect. If the officer sees the crime, there generally

1. Perez, D.W. (2011). The paradoxes of police work. Florence, KY: Cengage Publ.

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is no need to question the suspect about the crime, therefore Miranda is not required. For instance, if an officer is

using a radar gun and sees a vehicle speeding 40 mph in a 25 mph speed zone, the officer does not need to read the

driver of the vehicle Miranda, unless that officer wants to interrogate the driver. The officer can write the driver a

citation without reading Miranda and in some states the officer can arrest the driver for speeding without reading

Miranda (in Oregon, speeding is a traffic violation, therefore, drivers cannot be arrested for speeding, this is not true

for all states, in some states traffic violations are misdemeanors).

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6.12. Current Issues: Internal Affairs and Discipline

TIFFANY MOREY

Internal affairs (IA) exists to hold officers accountable for their actions. Whenever there is an issue, either

brought forth by another officer, a supervisor or a member of the general public, the IA division of the police

department is responsible for conducting a thorough investigation into the incident. Members of the IA

division work directly under the Chief or Sheriff.

In the 1960s the overwhelming number of riots revealed the problem of corruption and misconduct in

policing- one of the most significant issues centered around citizen complaints against officers and the lack

of proper investigation into the complaint. Most officers back then were found exonerated (not guilty) when

a complaint ensued, and this did not bode with the public. 1

Supervisors in Policing Example

As a young girl, I never had dreams of one day being a supervisor in the police world. In fact, I didn’t even want

to be a cop! However, life would direct me towards policing, and after years of testing, I found myself hired as a

police officer in Las Vegas. The life of an officer is full of wonder and excitement, but it is also full of stress, and a

lot of pressure! After I completed the police academy, field training, and probation I soon learned that all supervisors

(sergeants and lieutenants) were not created equal.I received my first police oficer annual evaluation and found that

I ONLY met standards in the areas evaluated. How could that be, I thought? I had never worked harder! I always

stayed late, I wrote amazing reports, I volunteered and helped out my community, I engaged in constant training, I

did everything I knew AND was trained to do. Yet, I still only met standards. Now I wasn’t delusional. I knew that I

was a new police officer and had many things to learn, but why was my sergeant failing to mentor or recognize me

for my above average efforts in many areas? I was even told by a female sergeant, that she had to work harder than

any other police officer because she was a female, so I should have to do the same. Where was mentoring? Where

was the training offered by supervision? I soon learned it did not exist and the only way to create it was to test for

promotion myself and enter the world of supervision as a sergeant. Don’t get me wrong, throughout my tenure as

a police officer I did encounter some amazing supervisors, but they were rare and an exception to the rule. I did

the test for promotion, and I was promoted to sergeant. My goals were to change the way officers were supervised

1. Goldstein, H. (1977). Policing a free society. Cambridge, MA: Ballinger.

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at my department. I worked hard to create a sergeant training program that ensured future supervisors received

the knowledge and power of how-to mentor and train their employees. Three years later I tested and promoted to

lieutenant. I took advantage of my new position in adminstration to mentor many young officers and help them to

succeed in their careers.

Discipline Police departments are paramilitary organizations or a semi-militarized force whose organizational

structure, tactics, training, subculture, and (often) function are similar to those of a professional military, but

which is formally not part of a government’s armed forces. Therefore, the handling of discipline is serious

business. If an officer is accused of a minor infraction, such as the use of profanity, the officer’s immediate

supervisor will generally handle the policy infraction and note what occurred in the officer’s file and counsel

the officer of the following: 1- Inform the police officer why the conduct was wrong 2- Inform the police

officer how to stop engaging in the conduct 3- Inform the police officer when the conduct must stop 4-

Inform the police officer the time elapsed after the conduct and a scheduled meeting to review and ensure

the conduct is still not occurring. Depending on the conduct, the supervisor may require the officer to attend

training to assist the officer.

Another answer was to create external civilian review boards to hold police accountable for their actions

by reviewing all use of force incidents. With the onset of the 21st century and new technology, came new

tools in policing. One such tool was a new program called IA Pro. This program followed individual officers

throughout their entire career. A scheming grass or meat eater officer could bid on a new shift each year,

gaining a new supervisor who would be oblivious to past infractions. IA Pro ensured any, and all infractions

by an officer were recorded and followed through upon by the applicable supervisor. If an officer used

profanity, the program would require the officer to attend training. If the officer used profanity a second time

within the prescribed time limits, the officer would be placed on an timed employee development program

and could face discipline up to termination. IA Pro was not a panacea, but it would significantly lower the

number of officers allowed to continue to operate as grass or meat eaters.

If an officer is accused of a more serious infraction, such as excessive use of force or lying, the officer

will immediately be placed on administrative leave and The Internal Affairs Division of the department will

investigate the incident. The Internal Affairs Division will offer a finding of 1- Sustained Complaint 2- Not-

Sustained Complaint 3- Exonerated Complaint 4- Unfounded Complaint. Once one of the above complaint

dispositions is assigned, it is then forwarded to the Command Staff (Chief or Sheriff and Assistant Chief/

Sheriff, Deputy Chief/Sheriff, and Captains) for review and discipline. Discipline can include time-off up to

termination.

When an Officer Does Something Illegal Example

I was a lieutenant over two sergeants and dozens of officers when I received the dreaded phone call. One of my

officers was being placed on administrative leave by Internal Affairs due to a horrendous allegation. The officer had

been pulling over female drivers for ‘so-called’ traffic violations and offering them an ‘out’ if they performed some

sort of sexual activity. My heart sank, how could this have happened and on my watch? After weeks of investigation,

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I learned that the officer had been engaging in this illegal activity for months. It took several brave women to

contact our Internal Affairs Division and tell their stories, to stop it. I racked my brain as to what I could have done

to prevent the officer. Did I miss the signs? Should I have been sterner? What could I have done? Even years later

it tears at my soul. What those women had to endure. How scared they must have been. It must have been their

worst nightmare come true. I have played many scenarios in my head as to what I could have done or should have

done to stop this officer’s actions. And I finally learned that some people are just ethically and morally corrupt. No

matter how hard we, in supervision, try to identify them through the L.E.T. Process or keep tabs on them when

they engage in such acts, sometimes they slip through the cracks and are allowed to spread their evilness. This is

what happened with this officer. The officer was smart enough to engage in this activity while alone on patrol,

knowing that he could stop this action if another officer or supervisor assisted on the traffic stop. His actions were

scary and should send a message to every police department and every supervisor that they must always be on the

look-out for those officers that are corrupt and will use their power to engage in illegal and horrendous crimes. This

was a hard lesson for me to learn, but an eye-opening one that would forever change the way I supervised those

officers in my command.

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6.13.Current Issues: Body Cameras

TIFFANY MOREY

An overwhelming number of police officers welcome body cameras, just like citizens. The reason being the

high number of citizen complaints received which center around a citizen exaggerating or lying in order to

try and get out of an expensive traffic related citation. ‘The officer yelled at me and made me feel stupid and

used profanity.’ Is an example of a citizen complaint often reported to a supervisor. Body camera footage of

the incident more than often shows the exact opposite. The truth often is that the citizen did run the red light

or failed to stop at the stop sign and did not want to accept responsibility and pay the fine. Body cameras

changed the environment of citizen complaints; however, body cameras also ensure that grass-eaters do not

partake in temptation. Moreover, those meat-eaters are held accountable for excessive use of force or illegal

actions.

Body cameras would seem to be the panacea for all police misconduct, the truth of the matter is not so

concrete. First, body cameras only show one point of view. Until small drones can hover above the officer

showing a 360-degree view, the accurate recollection of an event can never be indeed known. Second, no

matter how full-proof department policies and procedures regulate the use of body cameras, there will always

be a user that can turn off the camera in certain situations. Body cameras are one answer in a giant puzzle

to hamper and stop police misconduct. As technology improves, so hopefully will view the body cameras

record.

Police Body Cameras: What Do You See Exercise

https://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html

“People are expecting more of body cameras than the technology will deliver,” Professor Stoughton said. “They

expect it to be a broad solution for the problem of police-community relations, when in fact it’s just a tool, and like

any tool, there’s limited value to what it can do.” You will have a 500-word response to the questions below.

• First, go to the above link and complete the activity. Be as honest with yourself as possible.

• Second, after the videos and this experiment, has your view of policing and the role of video changed?

Do you think body cameras are worth the expense or could we do without? What are the pros and cons?

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6.14. Myth: “Police Only Write Speeding Tickets to Harass Citizens

and it is Entrapment.”

TIFFANY MOREY

Many people believe that a traffic officer or for that fact, any police officer, who is engaging in speed

enforcement and is hidden, is guilty of entrapment and such behavior is tantamount to harassment. First, an

officer does not have to be wholly or partially visible in order for a traffic citation to be valid. Also, the officer

does not have to take you to, or show you a photo of, the speed limit sign (applicable for the location you

were driving), before a citation is issued. If you get behind the wheel of a motor vehicle, you are required

to know the speed limit of the roads you drive. If you decide to speed, even just one mile over the speed

limit, you are, by the letter of the law, speeding, and this is a traffic offense. If an officer either through

radar or visual speed estimation, determines you are speeding, that officer has every legal right, to issue you

a speeding citation.

However, let’s consider a different situation. If, while having coffee at a local coffee shop, an officer started

chatting with you about a new speed limit along Main St. The officer told you that the speed limit had been

raised from 20 mph to 35 mph (which was a lie); and believing that officer, you left the coffee shop and drove

along Main St. going 35 mph. You then glanced up and saw the unmistakable red and blue lights in your

rear-view mirror. You were stopped by a different officer, who told you the speed limit was only 20 mph

(not 35 mph) and issued you a speeding citation. These actions would be considered entrapment because the

other officer was trying to get you to engage in criminal behavior.

Now onto why it is not harassment for an officer to give out speeding citations. According to The

Association for Safe International Road Travel; “Nearly 1.25 million people die in road crashes each year,

and an additional 20-50 million are injured or disabled” (2018). Our police are tasked with making our roads

safe and saving lives. Since 3,287 people die every DAY from traffic collisions, police must take responsibility

and try to lower this massive number. Therefore, police study not only where these crashes are occurring,

but the mitigating factors that cause them. It may surprise you to know that the number one cause for road

crashes, is speeding. How do police then slow people down? Education is the first step, however, sometimes

the only way to educate is through a speeding citation.

The next time you get a speeding citation (for going faster than the posted speed limit), instead of accusing

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the officer of harassment, you should take responsibility and be the first step in lowering the number of

deaths from related road crashes. 1

1. Road Safety Facts. (2018). Retrieved from https://www.asirt.org/safe-travel/road-safety-facts/

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7: Courts

Learning Objectives

This section examines the structure and function of the criminal courts in America. It examines the concept of

jurisdiction and describes the dual court system (the federal court system and the various state court systems). This

section also examines the role and function of the various courtroom participants–the people who work in the

courts. After reading this section, students will be able to:

• Differentiate between what happens at trial and what happens on appeal and identify the procedural

history of a criminal case by reading appellate opinions written in the case.

• Describe how a crime/criminal case proceeds from the lowest level trial court up through the U.S.

Supreme Court. (i.e., students should understand the hierarchy of the federal and state courts).

• Discuss the function and selection of state and federal trial and appellate judges in the American

criminal justice system.

• Discuss the function and selection of state and federal prosecutors in the American criminal justice

system.

• Discuss the importance of the criminal defense attorney in the American criminal justice system.

• Identify at what stages of the criminal justice process a defendant is entitled to the assistance of a court-

appointed attorney.

Critical Thinking Questions

1. Knowing what happens at trial and what happens on appeal, would you be more interested in being

a trial judge or an appellate judge? Why?

2. Why is there a different standard of review for questions of fact and questions of law?

3. Do you agree that cases should be overturned only when there was a fundamental or prejudicial error

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that occurred during the trial?

4. Do you think it is easier to be a defense attorney than a prosecutor believing the defendant is guilty

but knowing that the justice system has violated the defendant’s rights?

5. Should the defendant ever waive the assistance of counsel?

6. Is there any position as a court staff that particularly interests you? Why?

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7.1. Introduction to the U.S. Court System

LORE RUTZ-BURRI

What follows is an examination of the structure and role of the courts in the American criminal justice system

and the requirement of jurisdiction. As you read this chapter, pay attention to the context when you see the word “court” because it is used in a variety of ways. “Court” can mean a building—it is short for “courthouse”

(for example, “he went to the court”); one judge (for example, “the trial court decided in his favor”); a group of

judges (for example, “the Supreme Court unanimously upheld the conviction”), or an institution/process generally

(for example, “courts hopefully resolve disputes in an even-handed manner”). Courts (the institution and processes)

determine both the facts of a crime (did the defendant do the crime?) and also the legal sufficiency of the criminal

charge (can the government prove it?). Courts ensure that criminal defendants are provided due process of law, or the procedures used to convict the defendant are fair. Courts are possibly more important in criminal cases than

in civil cases because, in civil matters, the parties have the option of settling their disputes outside of the court

system, but all criminal prosecutions must be funneled through the criminal courts.

After reading this chapter, you will be able to project the trajectory of a criminal case from the filing of

criminal charges in a local courthouse through all final appeals processes. This requires an understanding of the

dual court system, the structure of typical state court systems and the federal court system. This chapter explores the differences between a trial court and an appellate court, and you will learn how trial judges and juries decide

(determine the outcome of) a case by applying the legal standards to the facts presented during trial and how

appellate judges decide if the case was rightly decided after examining the trial record for legal error. Appellate

courts make known their decisions known through their written opinions, and this chapter introduces the types of

opinions and rulings of appellate courts.

This chapter also examines the selection, roles, and responsibilities of the participants in the criminal courts

frequently referred to as the courtroom workgroup. You will become familiar with who the players are during each of these steps of the process.

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7.2. Jurisdiction

LORE RUTZ-BURRI

In order to understand the courts, it is essential to understand the many facets of the word jurisdiction. Jurisdiction refers to the legal authority to hear and decide a case (legal suit).

Jurisdiction Based on the Function of the Court

Trial Courts versus Appellate Courts

Jurisdiction may be based on the function of the court, such as the difference between trial and appellate

functions. The federal and state court systems each have court hierarchies that divide trial courts and

appellate courts. Trial courts have jurisdiction over pretrial matters, trials, sentencing, probation, and parole

violations. Trial courts deal with facts. Did the defendant stab the victim? Was the eyewitness able to clearly

see the stabbing? Did the probationer willfully violate terms of probation? As a result, trial courts determine

guilt and impose punishments.

Appellate courts, on the other hand, review the decisions of the trial courts. They are primarily

concerned with matters of law. Did the trial judge properly instruct the jury about the controlling law?

Did the trial court properly suppress evidence in a pretrial hearing? Does the applicable statute allow the

defendant to raise a particular affirmative defense? Appellate courts correct legal errors made by trial courts

and develop law when new legal questions arise. Appellate courts do not hold hearings in which evidence

is developed, but rather they only review the record, or “transcript”, of the trial court. In some instances,

appellate courts determine if it is legally sufficient, or enough, evidence to uphold a conviction.

Jurisdiction Based on Subject Matter

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Jurisdiction can also be based on the subject matter of the case. For example, criminal courts handle

criminal matters, tax courts handle tax matters, and customs and patent courts handle patent matters.

Regarding “subject matter jurisdiction” Kerper (1979, 34) noted,

“The [subject matter] jurisdictional distinction . . . tends to be utilized primarily in distinguishing

between different trial courts. Appellate courts ordinarily can hear all types of cases, although there

are several states that have separate appellate courts for criminal and civil appeals. At the trial level,

most states have established one or more specialized courts to deal with particular legal fields. The

most common areas delegated to specialized courts are wills and estates (assigned to courts

commonly known as probate . . . courts), divorce, adoption or other aspects of family law (family or

domestic relations courts), and actions based on the English law of equity (chancery courts). The

federal system also includes specialized courts for such areas as customs and patents. While

significant, the specialized courts represent only a small portion of all trial courts. Most trial courts

are not limited to a particular subject but may deal with all fields. Such trial courts are commonly

described as having general jurisdiction since they cover the general (i.e., non-specialized) areas of

law. Criminal cases traditionally are assigned to courts with general jurisdiction.” 1

Jurisdiction Based on the Seriousness of the Case

The jurisdiction of trial courts may also be based on the seriousness of the case. For example, some

courts, called courts of limited jurisdiction only have authority to try infractions, violations, and petty

crimes (misdemeanors) whereas other trial courts, called courts of general jurisdiction, have authority to try serious crimes (felonies) as well as minor crimes and offenses.

Jurisdiction Based on the Court’s Authority over the Parties to the Case

Jurisdiction also refers to the court’s authority over the parties in the case. For example, juvenile courts

have jurisdiction over dependency and delinquency cases involving youth. Other courts have jurisdiction

that is based on the special nature of the parties are the military tribunals, including courts-martial, Courts

of Criminal Appeals, and the United States Court of Appeals for the Armed Services.

1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.

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Jurisdiction based on State and Federal Autonomy (Geography)

Finally, jurisdiction is also tied to our system of federalism, the autonomy of both national and state

governments. State courts have jurisdiction over state matters, and federal courts have jurisdiction over

federal matters. Jurisdiction is most commonly known to represent geographic locations of the court’s

oversight. For example, Oregon courts do not have jurisdiction over crimes in California.

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7.3. Structure of the Courts: The Dual Court and Federal Court

System

LORE RUTZ-BURRI

Separate Federal and State Court Systems Each state has two complete parallel court systems: the federal system, and the state’s own system. Thus,

there are at least 51 legal systems: the fifty created under state laws and the federal system created under

federal law. Additionally, there are court systems in the U.S. Territories, and the military has a separate court

system as well.

The state/federal court structure is sometimes referred to as the dual court system. State crimes, created by state legislatures, are prosecuted in state courts which are concerned primarily with the applying state

law. Federal crimes, created by Congress, are prosecuted in the federal courts which are concerned primarily

with applying federal law. As discussed below, it is possible for a case to move from the state system to the

federal system when a defendant challenges the conviction on direct appeal through a writ of certiorari, or when the defendant challenges the conditions of confinement through a writ of habeas corpus.

Dual Court System Structure

Highest Appellate Court

U.S. Supreme Court (Justices) (NoteCourt also has original/trial court jurisdiction in rare cases) (Note: Court will also review petitions for writ of certiorari from State Supreme Court cases).

State Supreme Court (Justices)

Intermediate Appellate Court U.S. Circuit Court of Appeals (Judges) State Appellate Court (e.g., OregonCourt of Appeals) (Judges)

Trial Court of General Jurisdiction

U.S. District Court (Judges) (Note: this court will review petitions for writs of habeas corpus from federal and state court prisoners)

Circuit Court, Commonwealth Court, District Court, Superior Court (Judges)

Trial Court of Limited Jurisdiction U.S. Magistrate Courts (MagistrateJudges)

District Court, Justice of the Peace, Municipal Courts (Judges, Magistrates, Justices of the Peace)

The Federal Court System Article III of the U.S. Constitution established a Supreme Court of the United States and granted Congress

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discretion as to whether to adopt a lower court system. It states the “judicial Power of the United States

shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time

ordain and establish.” Fearing that the state courts might be hostile to congressional legislation, Congress

immediately created a lower federal court system in 1789. 1

The lower federal court system has been

expanded over the years, such as when Congress created the separate appellate courts in 1891.

View the authorized federal judgeships at http://www.uscourts.gov/sites/default/files/allauth.pdf

Trace the history of the federal courts at https://www.fjc.gov/history/timeline/8276

Trace the history of the subject matter jurisdiction of the federal courts here https://www.fjc.gov/history/

timeline/8271

View cases that shaped the roles of the federal courts at https://www.fjc.gov/history/timeline/8271

Trace the administration of the federal courts at https://www.fjc.gov/history/timeline/8286

United States Supreme Court The United States Supreme Court (Court), located in Washington, D.C., is the highest appellate court

in the federal judicial system. Nine justices sitting en banc,en banc, as one panel, together with their clerks and administrative staff, make up the Supreme Court. [View the biographies of the current U.S. Supreme

Court Justices here: https://www.supremecourt.gov/about/biographies.aspx]. The Court’s decisions have the

broadest impact because they govern both the state and federal judicial system. Additionally, this Court

influences federal criminal law because it supervises the activities of the lower federal courts. The nine

justices have the final word in determining what the U.S. Constitution permits and prohibits, and it is most

1. (The Judiciary Act of 1789 (Ch. 20, 1 Stat 73)

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influential when interpreting the U.S. Constitution. Associate Justice of the Supreme Court, Robert H.

Jackson stated in Brown v. Allen, 344 U.S. 433, 450 (1953), “We are not final because we are infallible, but we are infallible only because we are final.” Although it is commonly thought that the U.S. Supreme Court has

the final say, this is not one hundred percent accurate. After the Court has read written appellate briefs and

listened to oral arguments, it will “decide” the case. However, it frequently refers or sends, the case back to

the state’s supreme court for them to determine what their own state constitution holds. Similarly, as long as

the Court has interpreted a statute and not the constitution, Congress can always enact a new statute which

modifies or nullifies the Court’s holding.

Writs of Certiorari and the Rule of Four

The Court has a discretionary review over most cases brought from the state supreme courts and federal

appeals courts in a process called a petition for the writ of certiorari. Four justices must agree to accept

and review a case, and this only happens in roughly 10% of the cases filed. (This is known as the rule

of four.) Once accepted, the Court schedules and hears oral arguments on the case, then delivers written opinions. Over the past ten years, approximately 8,000 petitions for writ of certiorari are filed annually.

It is difficult to guess which cases the court will accept for review. However, a common reason the court

accepts to review a case is that the federal circuits courts have reached conflicting results on important issues

presented in the case.

Take a virtual tour of the U.S. Supreme Court building: https://www.oyez.org/tour

The United States Supreme Court Building

“The United States Supreme Court occupies a majestic building in Washington, D.C., with spacious

office suites and impressive corridors and library facilities. With enhancements and attributes similar

to those of appellate courts, the elegance and dignity of the facilities comport with the significant role

of the Court as the final arbiter in the nation’s judicial system. There is a sparse crowd at most state

and intermediate federal appellate courts; at the Supreme Court, by contrast, parties interested in the

decisions that will result from arguments, a coterie of media persons, and many spectators fill the courtroom

to hear arguments in cases that often significantly affect the economic, social, and political life of the

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nation. Photography is not allowed, and the arguments and dialogue between counsel and the justices are

observed silently and respectfully by those who attend.” 2

Take a tour of the U.S. Supreme Court with CNN: https://www.youtube.com/watch?v=Unyswl36q8w

Original (Trial Court) Jurisdiction of the Supreme Court: A Rarity

When the Court acts as a trial court it is said to have original jurisdiction, and it does so in a few important situations, such as when one state sues another state. The U.S. Constitution, Art. III, §2, sets

forth the jurisdiction of the Court. It states,

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all

Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime

Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or

more States;-between a State and Citizens of another State;-between Citizens of different States;-between

Citizens of the same State claiming Lands under Grants of different States, and between a State, or the

Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall

be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the

Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under

such Regulations, as the Congress shall make.”

Original jurisdiction cases are rare for several reasons. First, the Constitution prohibits Congress from

increasing the types of cases over which the Supreme Court has original jurisdiction. Second, parties in an

original jurisdiction suit must get permission by petitioning the court to file a complaint in the Supreme

Court. In fact, there is no right to have a case heard by the Supreme Court, even though it may be the

only venue in which the case may be brought. The Supreme Court may deny petitions for it to exercise

original jurisdiction because it finds that the dispute between the states is too trivial, or conversely, too

broad, and complex. The Court does not need to explain why it refuses to take up an original jurisdiction

case. Original jurisdiction cases are also rare because, except in suits or controversies between two states,

the Court has increasingly permitted the lower federal courts to share its original jurisdiction.

2. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 45). Belmont, CA: Cengage.

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United States Courts of Appeal Ninety-four judicial districts comprise the 13 intermediate appellate courts in the federal system known as

the U.S. Courts of Appeals, sometimes referred to as the federal circuit courts. These courts hear challenges

to lower court decisions from the U.S. District Courts located within the circuit, as well as appeals from

decisions of federal administrative agencies, such as the social security courts or bankruptcy courts. There

are twelve circuits based on geographic locations and one federal circuit which has nationwide jurisdiction

to hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S. Court

of International Trade and the U.S. Court of Federal Claims. The smallest circuit is the First Circuit with

six judgeships, and the largest court is the Ninth Circuit, with 29 judgeships. Appeals court panels consist of

three judges. The court will occasionally convene en banc and only after a party who has lost in front of the three-judge panel requests review. Because the Circuit Courts are appellate courts which review trial court

records, they do not conduct trials and, thus, they do not use a jury.

The U.S. Courts of Appeal, like the U.S. Supreme Court, trace their existence to Article III of the U.S.

Constitution. These courts are busy, and there have been efforts to both fill vacancies and increase the

number of judgeships to help deal with the caseloads. For example, the Federal Judgeship Act of 2013 would

have created five permanent and one temporary circuit court judgeships, in an attempt to keep up with

increased case filings. However, the bill died in Congress. Fortunately, in recent years, fewer cases have been

filed.

Click on this link to see the geographical jurisdiction of the U.S. Courts of

Appeals: http://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf

United States District Courts The U.S. District Courts, also known as “Article III Courts”, are the main trial courts in the federal court

system. Congress first created these U.S. District Courts in the Judiciary Act of 1789. Now, ninety-four

U.S. District Courts, located in the states and four territories, handle prosecutions for violations of federal

statutes. Each state has at least one district, and larger states have up to four districts. Each district court is

described by reference to the state or geographical segment of the state in which it is located (for example,

the U.S. District Court for the Northern District of California). The district courts have jurisdiction over all

prosecutions brought under federal criminal law and all civil suits brought under federal statutes. A criminal

trial in the district court is presided over by a judge who is appointed for life by the president with the

consent of the Senate. Trials in these courts may be jury trials.

Link to a number of cases filed in U.S. District Courts http://www.uscourts.gov/federal-judicial-

caseload-statistics-2018-tables

Although the U.S. District Courts are primarily trial courts, district court judges also exercise an appellate-

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type function in their review of petitions for writs of habeas corpus brought by state prisoners. Writs of habeas corpus are claims by state and federal prisoners who allege that the government is illegally confining

them in violation of the federal constitution. The party who loses at the U.S. District Court can appeal the

case in the court of appeals for the circuit in which the district court is located. These first appeals must be

reviewed, and thus are referred to as appeals of right. United States Magistrate Courts U.S. Magistrate Courts are courts of limited jurisdiction in the federal court system, meaning that these

legislatively-created courts do not have full judicial power. Congress first created the U.S. Magistrate Courts

with the Federal Magistrate Act of 1968. Under the Act, federal magistrate judges assist district court judges

by conducting pretrial proceedings, such as setting bail, issuing warrants, and conducting trials of federal

misdemeanor crimes. There are more than five hundred Magistrate Judges who disposed of over one million

matters.

In the News: https://www.uscourts.gov/sites/default/files/data_tables/jb_s17_0930.2017.pdf)

U.S. Magistrate Courts are “Article I Courts” as they owe their existence to an act of Congress, not the Constitution. Unlike Article III judges who hold lifetime appointments, Magistrate Judges, formerly referred

to as “Magistrates” before the Judicial Improvement Act which took effect December 1, 1990, are appointed

for eight-year terms.

For a comprehensive review of the U.S. Magistrate Courts and U.S. Magistrate Judges

see: http://www.fedbar.org/PDFs/A-Guide-to-the-Federal-Magistrate-Judge-System

Court Assignment

Watch season two of the popular Netflix series, Making a Murder which covers the appeals of the murder

convictions of Steven Avery and his nephew Brendan Dassey. Pay attention to the discussions among Brendan

Dassey’s appellate team from Northwestern School of Law concerning the appeals process from the state courts

through the federal Seventh Circuit Court of Appeals, which convened en banc after a 2-1 panel decision finding Brendan Dassey’s confession was inadmissible.

See also, http://involuntary.http://www.abajournal.com/news/article/

en_banc_7th_circuit_reinstates_brendan_dasseys_conviction_in_making_a_murde?icn=most_read

• Write a 500-word response about what you saw during the appeals process and how it made you feel.

Did you agree with it or disagree with it? Is this justice?

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL SANCHEZ

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Click on this link to see the number of filings: http://www.uscourts.gov/statistics-reports/federal-

judicial-caseload-statistics-2018

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7.4. Structure of the Courts: State Courts

LORE RUTZ-BURRI

State Court Systems Each state has its own independent judicial system. State courts handle more than 90 percent of criminal

prosecutions in the United States. Although state court systems vary, there are some common features. Every

state has one or more level of trial courts and at least one appellate court. Although there is no federal

constitutional requirement that defendants be given the right to appeal their convictions, such a right is

arguably implicit in the due process clause of the Fourteenth Amendment. Moreover, every state has some

provision, usually within its own constitution or statutes, that provides defendants at least one appeal. Most

state courts have both courts of general jurisdiction, which conduct felony and major misdemeanor trials, and

courts of limited jurisdiction, which conduct violations, infractions, and minor misdemeanor trials. Similar to

the U.S. Magistrate Courts, states’ courts of limited jurisdiction will also handle pre-trial matters for felonies

until they are moved into the general jurisdiction court. Most states have intermediate courts of appeals and

some have more than one level of these courts. All states have a court of last resort, generally referred to as the Supreme Court. Some states court systems are streamlined, and some are complex, with most states fall

between the two extremes.

Hierarchy of State Courts State trial courts tend to be busy, bustling places with lots of activity. Appellate courts, on the other hand,

tend to be solemn and serene, formal places. Scheb noted,

“Appellate courts are different than trial courts, both in function and ‘feel.’ Unlike a trial court, which is

normally surrounded by a busy atmosphere, an appellate court often sits in the state capitol building or its

own facility, usually with a complete law library. The décor in the building that house appellate courts is

usually quite formal, and often features portraits of former judges regarded as oracles of the law. When a

panel of judges sits to hear oral arguments, they normally emerge from behind a velvet curtain on a precise

schedule and to the cry of the court’s marshal. When not hearing oral arguments, appellate judges usually

occupy a suite of offices with their secretaries and law clerks. It is in these individual chambers that appellate

judges study and write their opinions on cases assigned to them.” 1

Kerper describes the flow of a case through the hierarchical structure of the courts as follows:

1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 43). Belmont, CA: Cengage.

276

“When the specialized courts are put to one side, we find that a judicial system typically has three or

possibly four levels of courts. This will be the hierarchy commonly applicable to criminal cases.

At the bottom level in the typical hierarchy will be the magistrate court. Judges on that level will

try minor civil and criminal cases. They will also have some preliminary functions in the more serious

felony cases that will eventually be tried in the general trial court. Thus a person arrested on a felony

charge initially will be brought before a magistrate who will inform the arrestee of the charge against

him, set bail, and screen the prosecution’s case to ensure that it is sufficient to send on to the general

trial court.

At the next court level is the general trial court, which will try all major civil and criminal cases.

While this court is predominantly a trial court, it also serves as an appellate court for the minor cases

tired in the magistrate court. Thus, if a defendant is convicted on a misdemeanor charge in a magistrate

court, his natural route of appeal is to the general trial court as the next highest court. The appellate

review in the general trial court will take a special form where the magistrate court is one described as

a court “not of record.” In most instances, however, the general trial court will review the record in the

magistrate court for possible error in the same way that the appellate court at the next tier will review

the trial decisions of the general trial court in major cases.

The court at the next level may be either the first of two or the only general appellate court in the

judicial hierarchy. In almost half of the states and the federal system, there are two appellate tiers. The

first appellate court, which would be at the third level in the hierarchy, is commonly described as the

intermediate appellate court. The next level of appellate court is the appellate court of last resort; it is

the highest court to which a case can ordinarily be taken. These highest appellate courts frequently are

titled, “supreme courts.” . . . Where a judicial system has two tiers of appellate courts, the supreme court

will be at the fourth level of the hierarchy. In those states that have only one tier, there is no intermediate

appellate court. The supreme court is the court at the third level of the hierarchy.

In most jurisdictions, the losing party at trial is given an absolute right to one level of appellate

review, but any subsequent reviews by a higher appellate court are at the discretion of that higher

court. Thus, in a system that has no intermediate appellate court, a defendant convicted of a felony in

a general trial court has an absolute right to have his conviction reviewed by the next highest court,

the supreme court. In a system that has an intermediate appellate court, the felony defendant’s absolute

right to review extends only to that intermediate court. If that court should decide the case against him,

the defendant can ask the supreme court to review his case, but it need do so only at its discretion. The

application requesting such discretionary review is called a petition for certiorari. If the court decides

to review the case, it issues a writ of certiorari directing that the record in the case be sent to it

by the intermediate appellate court. Those supreme courts having discretionary appellate jurisdiction

commonly refuse to grant most petitions for certiorari, limiting their review to the most important

cases. Consequently, even where a state judicial hierarchy has four rather than three levels, most civil or

criminal cases will not get beyond the third level.

Our description of the hierarchy of the courts has assumed so far that all trial courts are “courts

of record,” and appellate review accordingly will be on the record. There is one major exception to

that assumption which we should note—the court “not of record.” The division between courts of

record and courts not of the record originally was drawn when many trial courts lacked the mechanical

capacity to maintain a complete record of their proceedings. If a court could provide such a record, the

losing party could readily gain an appellate review of the trial decision before the next highest court.

If the record was not available, however, the higher court had no way of examining the proceedings

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below to determine if an error was committed. Without a court of record, a second look at the

case could only be provided by the higher court giving the case de novo consideration (i.e., fresh

consideration). This was done by conducting a new trial called a trial de novo. The trial de novo was

not in fact appellate review, since it did not review the decision below, but proceeded as if the case had

begun in the higher court. The trial de novo simply was a substitute for appellate review, necessitated

by the absence of a record.” 2

2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 38-39). West Publishing Company.

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7.5. American Trial Courts and the Principle of Orality

LORE RUTZ-BURRI

At trial, the state will present evidence showing facts demonstrating that the defendant committed the crime.

The defendant may also present facts that show he or she did not commit the crime. The principle of orality requires that the trier of fact (generally the jury, but the judge when the defendant waives a jury trial) considers only the evidence that was developed, presented, and received into the record during the trial.

As such, jurors should only make their decision based upon the testimony they heard at trial in addition to

the documents and physical evidence introduced and admitted by the court. The principle of orality would

be violated if, for example, during deliberations, the jury searched the Internet to find information on the

defendant or witnesses. Similarly, if the police question the defendant and write a report, the jury cannot

consider the contents of the report unless it has been offered in a way that complies with the rules of evidence

and the court has received it during the trial. The principle of orality distinguishes the functions of a trial

court, developing the evidence, and the function of the appellate courts, reviewing the record for legal error.

The principle of orality is one major difference between the adversarial system generally followed by the United States and the inquisitorial system generally followed in most other countries. Frequently in civil law countries (for example, most European nations), the police, prosecutors, or investigating magistrates question witnesses prior to trial and write summaries of their statements called a dossier. In determining guilt, the trier of fact is presented with just the summaries of the witness statements. The trial in civil law

countries is less about the presentation of evidence establishing the defendant’s guilt and more about the

defendant’s presentation of mitigation evidence which assists the court in giving an appropriate sentence, or sanction.

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7.6. The Appeals Process, Standard of Review, and Appellate

Decisions

LORE RUTZ-BURRI

The Appeals Process The government cannot appeal a jury’s decision by acquitting the defendant, or finding the defendant

not guilty. Thus, most criminal appeals involve defendants who have been found guilty at trial. The

government may appeal a court’s pretrial ruling in a criminal matter before the case is tried, for example a

decision to suppress evidence obtained in a police search. This is called an interlocutory appeal. Although the defendant is permitted to appeal after entering a guilty plea, the only basis for his or her appeal is to

challenge the sentence given. When the defendant appeals, he or she is now referred to as the appellant, and the State is the appellee. (Note that often the court will use the words petitioner and respondent. The petitioner is the party who lost in the last court who is petitioning the next level court for review; the

respondent is the party who won in the last court). In routine appeals, the primary function of appellate

courts is to review the record to discern if errors were made by the trial court before, during, or after the trial.

No trial is perfect, so the goal is to ensure there was a fair, albeit imperfect, trial. Accordingly, the appellate

courts review for fundamental, prejudicial or plain error. Appellate courts will reverse the conviction and possibly send the case back for a new trial when they find that trial errors affected the outcome of the case. A

lower court’s judgment will not be reversed unless the appellant can show that some prejudice resulted from

the error and that the outcome of the trial or sentence would have been different if there had been no

error. By reviewing for error and then writing opinions that become case law, appellate courts perform dual

functions in the criminal process: error correction and lawmaking.

Appellate judges generally sit in panels of three judges. They read the appellant’s brief (a written document filed by the appellant), the reply brief (a written document filed by the the appellee), and any other written work submitted by the parties or friend of the court amicus curiae briefs. Amicus curiae are individuals or groups who have an interest in the case or some sort of expertise but are not parties to the case.

The appellate panel will generally listen to very short oral arguments, generally twenty minutes or less, by

the parties’ attorneys. During these oral arguments, it is common for the appellate judges to interrupt and ask

the attorneys questions about their positions. The judges will then consider the briefs and arguments and

the panel will then meet and deliberate and decide based on majority rule. If the appellate court finds that no

error was committed at trial, it will affirm the decision, but if it finds there was an error that deprived the

280

losing party of a fair trial, it may issue an order of reversal. When the case is reversed, in most instances, the court simply will require a new trial during which the error will not be repeated. This is called a remand. In some cases, however, the order of reversal might include a direction to dismiss the case completely, for

example when the appellate court concludes that the defendant’s behavior does not constitute a crime under

the law in that state. When reading an opinion, also known as decisions, from an appellate court, you can

tell the procedural history of a case (i.e., a roadmap of where the case has been: what happened at trial, what happened as the case was appealed up from the various appellate courts).

Standards of Review You have just learned that one function of the appellate courts is to review the trial record and see if there is

a prejudicial or fundamental error. Appellate courts do not consider each error in isolation, but instead, they

look at the cumulative effect of all the errors during the whole trial. Appellate court judges must sometimes

let a decision of a lower court stand, even if they personally don’t agree with it. Sports enthusiasts are familiar

with the use of instant/video replay, and it provides us a good analogy. Officials in football, for example, will

make a call, a ruling on the field, immediately after a play is made. This decision, when challenged, will be

reviewed, and the decision will be upheld unless there is “incontrovertible evidence” that the call was wrong.

When dealing with appeals, how much deference to show the lower court is the essence of the standard of review. Sometimes the appellate courts will give great deference to the trial court’s decision, and sometimes the appellate courts will give no deference to the trial court’s decision. How much deference to give is based

on what the trial court was deciding—was it a question of fact, a question of law, or a mixed question of law

and fact.

The appellate court will allow a trial court’s decision about a factual matter to stand unless the court clearly

got it wrong. The appellate court reasons that the judge and jury were in the courtroom listening to and

watching the demeanor of the witnesses and examining the physical evidence. They are in a much better

position to determine the credibility of the evidence. Thus, the appellate court will not overturn findings of

fact unless it is firmly convinced that a mistake has been made and that the trial court’s decision is clearly

erroneous or “arbitrary and capricious.” The arbitrary and capricious standard means the trial court’s decision

was completely unreasonable and it had no rational connection between the facts found and the decision

made. The lower courts finding will be overturned only if it is completely implausible in light of all of the

evidence. One court noted, “Where there are two permissible views of the evidence, the fact finder’s choice

between them cannot be clearly erroneous.” 1

Sometimes the law requires, or at the parties’ request, that a trial judge or jury make a special finding

of fact. Findings of fact are made on the basis of evidentiary hearings and usually involve credibility

determinations that are better made by the trial judge sitting in the courtroom listening to the evidence and

observing the demeanor of the witnesses. It is not enough that the appellate court may have weighed the

evidence and reached a different conclusion unless the decision was clearly erroneous, the appellate court

will defer to the trial judge.

Trial judges often make discretionary rulings., for example, whether to allow a party’s request for a

continuance or to allow a party to amend its pleadings or file documents late. In these matters of discretion, the appellate court will only overturn the trial judge if they find such a decision was an abuse of discretion.

The lower court’s judgment will be termed an abuse of discretion only if the judge failed to exercise sound, reasonable, and legal decision-making skills. A trial court abuses its discretion, for example, when: it does not

apply the correct law, erroneously interprets a law, rests its decision on a clearly inaccurate view of the law,

1. United States v. Yellow Cab Co., 338 U.S. 338. 342 (1949).

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rests its decision on a clearly erroneous finding of a material fact, or rules in a completely irrational manner.

Abuse of discretion exists when the record contains no evidence to support the trial court’s decision.

When it comes to questions of law, the appellate courts employ a different standard of review called de novo review. De novo review allows the appellate court to use its own judgment about whether the trial court correctly applied the law. Appellate courts give little or no deference to the trial court’s determinations

and may substitute its own judgment on questions of law. Questions of law include interpretation of statutes

or contracts, the constitutionality of a statute, the interpretation of rules of criminal and civil procedure. Trial

courts presume that laws are valid and do not violate the constitution, and the burden of proving otherwise

falls on the defendant. Trial courts sometimes get it wrong. De novo review allows the court to use its

own judgment about whether the court correctly applied the law. Appellate judges are perhaps in a better

position to decide what the law is as the trial judge since they are not faced with the fast-pace of the trial and

have time to research and reflect.

Sometimes the trial court must resolve a question in a case that presents both factual and legal issues.

For example, if police stop and question a suspect, there are legal questions, such as whether the police

had reasonable suspicion for the stop or whether the questioning constituted an “interrogation”, and factual

questions, such as whether police read the suspect the required warnings. Mixed questions of law and fact

are generally reviewed de novo. However, factual findings underlying the lower court’s ruling are reviewed for clear error. Thus, if the application of the law to the facts requires an inquiry that is “essentially factual,”

review is for clear error.

In reviewing the trial court record, the appellate court may discover an error that parties failed to complain

about. Generally, appellate courts will not correct errors that aren’t complained about, but this is not the case

when they come upon plain error. Plain error exists “[w]hen a trial court makes an error that is so obvious and substantial that the appellate court should address it, even though the parties failed to object to the error

at the time it was made.” 2

If the appellate court determines that the error was evident, obvious, clear and

materially prejudiced a substantial right (meaning that it was likely that the mistake affected the outcome of

the case below in a significant way), the court may correct the error. Usually, the court will not correct plain

error unless it led to a miscarriage of justice.

The selection of the appropriate standard of review depends on the context. For example, the de novo

standard applies when issues of law tend to dominate in the lower court’s decision. When a mixed question

of law and fact is presented, the standard of review turns on whether factual matters or legal matters tend to

dominate or control the court’s decision. The controlling standard of review may determine the outcome of

the case. Sometimes the appellate court can substitute its judgment for that of the trial court and overturn a

holding it does not agree with, but other times, it must uphold the lower court’s decision even if it would

have decided differently.

Appellate Decisions In most appeals filed in the intermediate courts of appeal, the appellate panel will rule but not write a

supporting document called a written opinion stating why it ruled as it did. Instead, the appellate panel will affirm the lower court’s decision without an opinion (colloquially referred to as an AWOP). Sometimes, however, appellate court judges will support their decisions with a written opinion stating why the panel

decided as it did and its reasons for affirming (upholding) or reversing (overturning) the lower court’s decision. The position and decision by the majority of the panel (or the entire court when it is a supreme

court case), is, not surprisingly, called the majority opinion. Appellate court judges frequently disagree with

2. (http://www.law.cornell.edu/wex/plain_error.)

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one another, and a judge may want to issue a written opinion stating why he or she has a different opinion

than the one expressed in the majority opinion. If a particular judge agrees with the result reached in the

majority opinion but not the reasoning, he or she may write a separate concurring opinion. If a judge disagrees with the result and votes against the majority’s decision, he or she will write a dissenting opinion. Sometimes opinions are unsigned, and these are referred to as per curium opinions. Finally, if not enough justices agree on the result for the same reason, a plurality opinion will be written. A plurality opinion controls only the case currently being decided by the court and does not establish a precedent which judges

in later similar cases must follow.

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7.7. Federal Appellate Review of State Cases

LORE RUTZ-BURRI

Through petitions for writ of certiorari, the U.S. Supreme Court will be in a position to review cases coming

to it from the state courts. Because the review is discretionary, the Court will generally accept review only

when these cases appear to involve a significant question involving the federal constitution. As a case works

its way through the state appeals process, the state courts may have made rulings about both the federal

constitution and its own state constitution. Depending on the case and how the state opinions were written,

the U.S. Supreme Court may find it difficult to determine whether the state interpreted its own constitution,

in which case the Court will not accept review, or whether it interpreted the federal constitution, in which

case the Court may accept review. The U.S. Supreme Court in Michigan v. Long, 463 U.S. 1032, at 1040-1041 (1983), explained when the Court will “weigh in” on a state court matter.

1 It held,

“When . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven

with the federal law, and when the adequacy and independence of any possible state law ground is not

clear from the face of the opinion, we will accept as the most reasonable explanation that the state court

decided the case the way it did because it believed that federal law required it to do so. If a state court

chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions,

then it need only make clear by a plain statement in its judgment or opinion that the federal cases are

being used only for the purpose of guidance, and do not themselves compel the result that the court has

reached. In this way, both justice and judicial administration will be greatly improved. If the state court

decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and

independent grounds, we, of course, will not undertake to review the decision.

This approach obviates [does away with] in most instances the need to examine state law in order to decide the nature of the state court decision, and will at the same time avoid the danger of our

rendering advisory opinions. It also avoids the unsatisfactory and intrusive practice of requiring state

courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will

provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal

interference, and yet will preserve the integrity of federal law. ‘It is fundamental that state courts be

left free and unfettered by us in interpreting their state constitutions. But it is equally important that

1. Michigan v. Long, 463 U.S. 1032, at 1040-1041 (1983)

284

ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this

Court of the validity under the federal constitution of state action’ (Citations omitted).”

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7.8. Courtroom Players: Judges and Court Staff

LORE RUTZ-BURRI

In their 1977 book, Felony Justice: An organizational analysis of criminal courts, James Eisenstein and Herbert Jacob, coined the term “courtroom workgroup.”

1 They specifically referred to the cooperative working

relationship between prosecutors, defense attorneys, and judges in working together (as opposed to an

adversarial relationship that the public might expect) to efficiently resolve most of the cases in the criminal

courts. This chapter more generally uses the term to include all the individuals working in the criminal

courts—judges, attorneys, and the variety of court staff.

The accusatory phase (the pre-trial phase) and adjudicatory phase (the trial phase) of the criminal justice process include individuals who regularly work together in the trial courts. The prosecutor files

the accusatory instrument called either an information or an indictment, and represents the state in plea bargaining, on pretrial motions, during the trial, and in the sentencing phase. The defense attorney

represents the defendant after charges have been filed, through the pre-trial process, in a trial, and during

sentencing, and maybe on the appeal as well. Judges, aided by several court personnel, conduct the pretrial,

trial, and sentencing hearings. Prosecutors, defense counsel, and judges perform different roles, but all are

concerned with the judicial process and the interpretation of the law. These law professionals are graduates

of law schools and have passed the bar examination establishing their knowledge of the law and their ability

to do legal analysis. As persons admitted by the state or federal bar associations to the practice of law, they are

subject to the same legal codes of professional responsibility, disciplinary rules, and ethical rules and opinions

for lawyers. Although the American criminal justice system is said to represent the adversarial model, the

reality is that prosecutors, defense attorneys, judges and court staff work with cooperation and consensus

rather than conflict. This is understandable when considering the common goal of efficient and expedition

case processing and prescribed and agreed upon rules for achieving those goals.

Trial judges: Misperceptions and Realities

1. Eisentstein, J., & Jacob, H. (1977). Felony Justice: An organizational analysis of criminal courts. Boston, MA: Little Brown and Co.

286

Trial court judges are responsible for presiding over pre-trial, trial and sentencing hearings, as well

as probation and parole revocation hearings. They issue search and arrest warrants, set bail or authorize

release, sentence offenders, engage in pre-sentence conferences with attorneys, work with court clerks,

bailiffs, jail staff, etc. Trial judges have considerable, but not unlimited, discretion. In addition to the

ethical and disciplinary rules governing all attorneys in the state, trial judges are subject to judicial codes

of conduct. Judges are bound by the applicable rules of law when deciding cases and writing their

legal opinions. Some rules governing judges are flexible guidelines while other rules are very precise

requirements.

During the pretrial phase, judges make rulings on the parties’ motions, such as motions to exclude certain

physical or testimonial evidence, motions to compel discovery, and motions to change venue. Because

most cases are resolved prior to trial through plea-bargaining, one important judicial function is taking the

defendant’s guilty plea.

At trial, if the defendant elects to waive a jury, there is a bench trial, and the judge sits as the “trier of fact.” Like jurors in a jury trial, the judge has considerable discretion when deciding what facts were

proven (or not) by the parties and what witnesses he or she finds credible. When the defendant elects for

a jury trial, the jury decides what the facts are. In either a bench or jury trial, the trial judge rules: on the

admissibility of evidence (whether a jury is entitled to hear certain testimony or look at physical evidence),

whether witnesses are competent, whether privileges exist, whether witnesses qualify as experts, whether

jurors will be excused from jury service, etc. At the end of the jury trial, the judge gives a set of jury

instructions to the jurors which informs them on the law that applies to the case they are deciding.

If the defendant is convicted, then the judge will impose the sentence. Except for death penalty

cases, jurors are generally not involved with sentencing the defendant. Judges have perhaps the broadest

discretion in their role imposing sentences. However, with more states enacting mandatory minimums and

sentence guidelines, judicial discretion has been severely curtailed.

“In the eyes of most Americans, the judge is the key player in the courtroom workgroup. The

symbolism and ceremony of a criminal trial reinforce this view. The judge is seated on a raised bench,

robed in black, and wields a gavel to maintain order in the courtroom. Moreover, the participants and

spectators—including the defense attorney and the prosecutor—are commanded to ‘all rise’ when the judge

enters or leaves the courtroom. It is no wonder, then that the judge is seen as the most influential person in

court.

This view of the judge, though accurate to some degree, is misleading for at least two reasons. First,

although the judge clearly plays an important role—in many cases, the lead role—in state and federal

criminal courts, other actors play significant supporting roles. This is particularly the case in the majority of

criminal cases that are settled by plea, not trial. In these cases, the key player may be the prosecutor rather

than the judge. A second reason why the traditional view of the judge is misleading is that it is based on an

inaccurate assessment of the role of the judge. Judging involves more than presiding at trials. In fact, most

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of what judges do during a typical day or week is something other than presiding at trials—reading case

files, conducting hearings, accepting guilty pleas, pronouncing sentences, and managing court dockets.” 2

The role played by the judge, in other words, is both less influential and more varied than the traditional

view would have people believe.

Trial Judge Selection and Qualifications

The sole qualification to be a judge in most jurisdictions is graduating from a law school and

membership in the state’s bar association. Although the trend is for judges to be lawyers prior, a few

jurisdictions do not require justices of the peace or municipal judges to be attorneys.

States procedures in selecting judges vary tremendously. “Almost no two states are alike and many

states employ different methods of selection depending on the different levels of the judiciary creating

‘hybrid’ systems of selection” 3 . Nevertheless, the primary differences surround whether judges are

elected or appointed, or selected based on merit. There are four primary methods used to select judges

in the United States: appointment, with or without confirmation by another agency; partisan political

election; non-partisan election; and a combination of nomination by a commission, appointment and

periodic reelection (the Missouri Plan).

There are variations within these four primary methods. As noted above, states may use different

methods to select judges based on the level in the judicial hierarchy. For example, municipal judges

may be appointed, while supreme court judges are elected. Each selection method has its critics

and advocates, and the relative merits of each are generally judged by the selection methods ability

to achieve judicial independence and accountability. Notwithstanding the critiques of each of the

methods, there has been little empirical evidence that the quality of judges, in terms of competency,

effectiveness, or honesty, varies depending on the methods used to select the judge. 4 56

The length of time a judge will “sit”, called a term in office or tenure, varies greatly, generally from four to sixteen years. Frequently, the term for a trial judge is less than a term for an appellate judge. At

the appellate level, six years is the shortest term, and many states use terms of ten years or more for their

appellate judges. Only a few states have lifetime tenure for their judges.

In the federal system, the President appoints Article III judges (U.S. District Court, U.S. Circuit

Court, and U.S. Supreme Court judges) with the advice and consent of the Senate. In Article III, U.S.

Constitution states that federal judges are appointed to “hold their Offices during Good Behavior.” On

2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc. 3. Berkson, L.C. (2005). Judicial selection in the United States: A special report. In E.E. Slotnick (Ed.) Judicial Politics: Readings from

Judicature (3d ed., pp. 50). Washington, DC: CQ Press 4. Atkins B.M. & Glick, H.R. (1974). Formal judicial recruitment and state supreme court decisions. American Politics Quarterly, 2, 427-449 5. Dubois, P.L. (1986), Accountability, independence, and the selection of state judges: The role of popular judicial elections. Southwestern

Law Journal, 40, 31-52 6. Nagel, S. (1975). Improving the legal process. Lexington, MA: Lexington Books.

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February 25, 2019, the Court in Rizo v. Yovino, ___ U.S. ___ (2019) refused to address the merits of

the case (an important employment wage discrimination case) because the judge who wrote the Ninth

Circuit opinion died eleven days before its release. What will likely become an oft-quoted sentiment,

“Federal judges are appointed for life, not for eternity.”

The district courts appoint federal magistrate judges to either four or eight-year terms. Though it

would seem that politics has played an increasing role in the selection of judges in the federal system,

perceptions are influenced by what we currently hear and read. The reality is that complaints of political

overreaching in selecting federal judges have been with us since the federal courts were first staffed.

Link to Washington Post showing political judicial appointments since President

Reagan https://www.washingtonpost.com/graphics/2018/politics/trump-federal- judges/?utm_term=.479982ef3fd6)

Link to Washington Post article showing political party breakdown in the confirmation of

Justice Gorsuch in 2017 and comparing the breakdown with other current U.S. Supreme Court

justices https://www.washingtonpost.com/graphics/politics/scotus-confirmation-votes/?tid=graphics- story&utm_term=.35b33aa30d39

A 1952 article shows that the role of politics in judicial selection is not only a recent

concern https://library.cqpress.com/cqresearcher/document.php?id=cqresrre1952012300

Judicial Clerk, Law Clerk, and Judicial Assistants

Generally, judges have one or two main assistants. These individuals are known as “judicial clerk”, “clerk

of court”, “law clerk”, or “judicial assistant”. Of course, there may be several court clerks who interact each

day with all the judges in the courthouse, but generally, judges have only one or two judicial assistants

who work directly with them. The clerk of court works directly with the trial judge and is responsible for

court records and paperwork both before and after the trial. Usually, each judge has his or her own clerk.

The clerk prepares all case files that a judge will need for the day. During hearings and the trial, these clerks

record and mark physical evidence introduced in the trial, swear in the witnesses, or administer the oath to the witness, take notes cataloging the recordings, etc. In some jurisdictions, the law clerks are lawyers

who have just completed law school and may have already passed the bar exam. In other jurisdictions, the

law clerks are not legally trained but may have specialized paralegal training or legal assistant training.

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Local and State Trial Court Administrators

Local and state trial court administrators oversee the administration of the courts. These administrators’

responsibility includes: hiring and training court personnel (clerks, judicial assistants, bailiffs), ensuring

that the court caseloads are efficiently processed, keeping records, sending case files to reviewing courts,

ensuring that local court rules are being implemented, and working with the local and state bar associations

to establish effective communications to promote the expedient resolutions of civil and criminal cases.

Indigency Verification Officers

The Indigency Verification Officer (IVO) is a court employee who investigates defendants’ financial

status and determines whether they meet the criteria for court-appointed counsel. More than 75% of

all individuals accused of a crime qualify as indigent. How poor a defendant must be to qualify for a

court-appointed attorney varies from place to place, and each IVO uses a screening device that takes

into consideration the cost of defense in the locality as well as defendant’s financial circumstances. One

difficulty in qualifying for a court-appointed attorney is having equity in a home that cannot be easily sold

quickly enough to provide resources for the defendant to hire an attorney. Another difficulty for indigency

verification officers is getting the information needed from defendants who may be suffering from mental

health issues.

Bailiffs

Bailiffs are the court staff responsible for courtroom security. Bailiffs are often local sheriff deputies or

other law enforcement officers (or sometimes former officers), but they can also be civilians hired by the

court. Sometimes, courts will use volunteer bailiffs. Bailiffs work under the supervision of the trial court

administrator. During court proceedings, bailiffs or clerks call the session to order, announce the entry

of the judge, make sure that public spectators remain orderly, keep out witnesses who might testify later

(if the judge orders them excluded upon request of either party), and attend to the jurors. As courtroom

security becomes a bigger concern, law enforcement officers are increasingly used as bailiffs, and they

are responsible for the safety of the court personnel, spectators, witnesses, and any of the parties. In some

communities, law enforcement bailiffs may transport in-custody defendants from the jail to the courthouse

and back. In most jurisdictions today, bailiffs screen people for weapons and require them to silence cell

phones before allowing them to enter the courtroom.

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Jury Clerk

The jury clerk: sends out jury summons to potential jurors, works with jurors requests for postponements

of jury service, coordinates with the scheduling clerk to make sure enough potential jurors show up at the

courthouse each day there is a trial, schedules enough grand jurors to fill all the necessary grand jury panels,

arranges payment to jurors for their jury service, and arranges lodging and meals for jurors in the rare event

of jury sequestration.

Court Clerks and Staff

Court structure varies from the courthouse to courthouse, but frequently court staff is divided into units.

For example, staff may be assigned to work in the criminal unit, the civil unit, the traffic unit, the small

claims unit, the juvenile unit, the family unit, or the probate unit. In smaller communities, there may be

just a few court clerks who “do it all”. With the trend towards specialized courts (drug courts, mental health

courts, domestic violence courts, and veteran courts), staff may specialize in and/or rotate in and out of the

various units. Court staff are expected to have a vast knowledge of myriad local court rules and protocols,

statutes, and administrative rules that govern filing processes, filing fees, filing timelines, accounting, record

maintenance, as well as a knowledge of general office practices such as ordering supplies, mastering office

machinery, and ensuring that safety protocol is established and followed. Recently, many courts have

transitioned to electronic filing of all documents, usually managed through a centralized state court system.

This transition presents challenges to court staff as they learn the new filing software, keep up with new

filings, and archive the past court documents.

Release Assistance Officers

Release assistance officers (RAO) are court employees who meet with defendants at the jail to gather

information to pass on to the judge who makes release decisions. Release assistance officers make their

recommendations based on the defendant’s likelihood of reappearance and other considerations specified

by statute or local rules. In determining whether the defendant is likely to reappear, the RAO considers:

the defendant’s ties to the community, the defendant’s prior record of failures to appear, the defendant’s

employment history, whether the defendant lives in the community, the nature and seriousness of the

charges, and any potential threat the defendant may present to the community.

The availability of space at the jail may also play a role in whether an individual is released. Court and jail

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staff may need to work together to establish release protocols when space is limited. The RAO should have

a significant voice in drafting those protocols. Whether the RAO recommends security (bail) or conditional

release, the RAO will generally suggest to the judge the conditions that the defendant should abide by if he

or she makes bail or is conditionally released. Defendants released prior to trial will sign release agreements

indicating the conditions of release recommended by the RAO and imposed by the judge. RAOs may also

investigate the defendant’s proposed living conditions upon release to make sure that they promote lawful

activity and the ability for reappearance for all scheduled court appearances.

Scheduling Clerk

The scheduling clerk, or docketing clerk, set all hearings and trials on the court docket. The scheduling

clerk notes the anticipated duration of trials (most trials are concluded within one day), speedy trial

constraints, statutory and local court rules time frames, etc. The role of the scheduling clerk is extremely

important, and an experienced scheduling clerk contributes to the overall efficiency of the legal process.

Ineffective or inefficient scheduling causes delay, frustration, and may impede the justice process. Part of

scheduling, or docketing, is keeping track of law enforcement officers’ and defense attorneys’ scheduled

vacations. In addition, the scheduling clerk must be mindful of the judges’ calendars which should track

scheduled vacation time and training days, and also needed desk time, the time necessary for resolving

cases they have taken under advisement. (Note that trial judges can either decide “from the bench”, meaning they will rule immediately on the issues before them during the hearing, or after taking the case

under advisement, meaning they will rule through a written decision/opinion letter after spending time

researching the law, reviewing the parties written pleadings, and considering the oral arguments).

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7.9. Courtroom Players: Prosecutors

LORE RUTZ-BURRI

Prosecutors play a pivotal role in the criminal justice and work closely with: law enforcement officials,

judges, defense attorneys, probation and parole officers, victims services, human services, and to a lesser

extent, with jail and other corrections officers. The authority to prosecute is divided among various city, state

and federal officials. City and state officials are responsible for prosecutions under local and state laws, and

federal officials for prosecutions under federal law. Associate Justice Robert Jackson, while he was the U.S.

Attorney General addressed the Conference of United States Attorneys (federal prosecutors) in Washington,

D.C. on April 1, 1940 and stated,

“The qualities of a good prosecutor are . . . [elusive and . . . impossible to define]. …

The prosecutor has more control over life, liberty, and reputation than any other person in America.

His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can

have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor

may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor

can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided

presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the

case before trial, in which case the defense never has a chance to be heard. Or he may go on with a

public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence,

as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as

to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent

forces in our society, when he acts from malice or other base motives, he is one of the worst. …

Nothing better can come out of this meeting of law enforcement officers than a rededication to the

spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such

independence and importance that while you are being diligent, strict, and vigorous in law enforcement

you can also afford to be just. Although the government technically loses its case, it has really won if

justice has been done. . . .

There is a most important reason why the prosecutor should have, as nearly as possible, a detached

and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind.

One of the greatest difficulties of the position of prosecutor is that he must pick his cases because no

prosecutor can even investigate all of the cases in which he receives complaints. If the department of

justice were to make even a pretense of reaching every probable violation of federal law, ten times its

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present staff would be inadequate. We know that no local police force can strictly enforce the traffic

laws, or it would arrest half the driving population on any given morning. What every prosecutor is

practically required to do is to select the cases for prosecution and to select those in which the offense is

the most flagrant, the public harm the greatest, and the proof the most certain.

… A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of

power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks

truth and not victims, who serves the law and not factional purposes, and who approaches his task with

humility” 1

State Prosecuting Attorneys

Prosecutors represent the citizens of the state, not necessarily a particular victim of a crime. States vary

in how they organize the groups of attorneys hired to represent the state’s interest. Ordinarily, the official

with the primary responsibility for prosecuting state violations is the local prosecutor who is referred to

as the “district attorney”, “county attorney”, or “state’s attorney”. Local prosecutors are usually elected

from a single county or a group of counties combined into a prosecutorial district. In many states, the

state attorney general’s office has the authority that trumps over the local prosecutors’ authority, but in

practice, the state attorney general rarely intervenes in local matters. The state attorney general’s office

will intervene, for example, if there is a conflict of interest or when requested by the district attorney. It is

not uncommon for a small local prosecutor’s office faced with the prosecution of a major, complex, time-

consuming trial, to request the aid of the attorney general’s office. In these smaller offices, there may be

insufficient resources to handle complicated prosecutions and still keep up with the day-to-day filings and

cases.

The prosecuting attorney and the attorney general ordinarily are the only officials with authority to

prosecute violations of state law. City attorneys may be hired to prosecute city ordinances, but these

attorneys primarily specialize in civil matters. When city attorneys and prosecuting attorneys have different

policies for treating minor offenses, the result may be disparate, or different, treatment of similarly situated

offenders. This raises a concern of inconsistent application of the law. Additionally, different county

prosecutors may follow different policies on which matters they will charge, the use of diversion programs,

the use of plea bargaining, and the use of certain trial tactics. To limit some of these differences, some states

have used statewide training, and district attorneys’ conferences. Still, the policies and practices are far from

uniform.

Generally, assistant prosecutors, called deputy district attorneys, are hired as “at will” employees by the

elected district attorney. Historically, the political party of the applicant was a key criterion, and newly

elected prosecutors would make a virtual clean sweep of the office and hire outsiders from the former office.

Now, most offices hire on a non-partisan, merit-oriented, basis.

Most states require that the prosecutor be a member of the state bar. Some states also require that he or

1. Associate Justice Robert Jackson while he was the U.S. Attorney General addressed the Conference of United States Attorneys (federal prosecutors) in Washington, D.C. on April 1, 1940

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she have several years in the practice of law. Deputy district attorneys, on the other hand, are frequently

fresh out of law school. They may have limited knowledge of state criminal law, as law school is designed

to teach lawyers to enter any new field and educate themselves.

Link to the Oregon District Attorneys Association Website https://www.oregonda.org/

Federal Prosecuting Attorneys Prosecutors in the federal system are part of the U.S. Department of Justice and work under the Attorney

General of the United States. The Attorney General does not supervise individual prosecutors and relies

on the 94 United States Attorneys, one for each federal district. U.S. Attorneys are given considerable

discretion, but they must operate within general guidelines prescribed by the Attorney General. The U.S.

Attorneys have a cadre of Assistant U.S. Attorneys who do the day-to-day prosecution of federal crimes.

For certain types of cases, approval is needed from the Attorney General or the Deputy Attorney General

in charge of the Criminal Division of the Department of Justice. The Criminal Division of the Department

of Justice (DOJ) operates as the arm of the Attorney General in coordinating the enforcement of federal

laws by the U.S. Attorneys.

Link to cite to find the U.S. Attorney https://www.justice.gov/usao/find-your-united-states-attorney

Selection and Qualifications of Prosecutors Most local prosecuting attorneys are elected in a partisan election in the district they serve. State attorney

generals may also have significant prosecutorial authority. They are elected in forty-two states, appointed

by the governor in six states, appointed by the legislature in one state, and appointed by the state supreme

court in another. State attorney generals serve between two to six-year terms, which can be repeated.

Federally, senators from each state recommend potential U.S. Attorney nominees who are then appointed

by the President with the consent of the Senate. U.S. Attorneys tend to be of the same political party as the

President and are usually replaced when a new President from another party takes office.

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Prosecutor’s Function Prosecutors arguably have more discretion than any other official in the criminal justice system. They

decide whether to charge an individual or not. Much has been written about the prosecutor’s broad

discretion and the constraints on his or her discretion. If they choose not to prosecute, this is referred to

as nolle prosequi, and this decision is largely unreviewable. Spohn and Hemmens (2012, p. 123) concluded

in their review of the studies on prosecutor’s charging decisions that “these highly discretionary and largely

invisible decisions reflect a mix of (1) legally relevant measures of case seriousness and evidence strength and

(2) legally irrelevant characteristics of the victim and the suspect” 2 .

Prosecutors guide the criminal investigation and work with law enforcement to procure search and arrest

warrants. Following arrest, prosecutors continue to be involved with various aspects of the investigation.

Roles include: meet with the arresting officers, interview witnesses, visit the crime scene, review the physical

evidence, determine the offenders prior criminal history, make bail and release recommendations, appear on

pretrial motions, initiate plea negotiations, initiate diversions (pre-trial contracts between the government and the defendant which divert cases out of the system), work with law enforcement officers from other

states who seek to extradite offenders, prepare the accusation to present to grand jury, call witnesses and

present a prima facia case (present enough evidence which, when unrebutted by the defendant, shows that the defendant committed the crime) at a preliminary hearing, represent that state at arraignments and status

conferences, conduct the trial, and, upon conviction, make sentencing recommendations while representing

the state at the sentencing hearing.

In many communities, the prosecutor is the spokesperson for the criminal justice system and appears

before the legislature to recommend or oppose penal reform. Prosecutors make public speeches on crime and

law enforcement, take positions on requests for clemency for cases they have prosecuted, work extensively

with victims’ services offices, which may be an arm of the prosecutor’s office. In some communities, the

prosecutor is also responsible for representing the local government in civil matters and may represent the

state in civil commitment proceedings and answer accident claims, contract claims, and labor relation matters

for the county. However, only a few counties have prosecutors still perform this function. U.S. Attorneys

still have substantial responsibilities for representation of the U.S. government in civil litigation, and there is

generally a civil division, a criminal division, and an appellate division of the U.S Attorneys office.

The American Bar Association (ABA) standards indicate that “the prosecutor’s [ethical] duty is to seek

justice”. This means that the state should not go forward with prosecution if there is insufficient evidence of

the defendant’s guilt or if the state has “unclean hands”, for example, illegally conducted searches or seizures

or illegally obtained confessions. Ethical and disciplinary rules of the state bar associations govern prosecutors

who must also follow state and constitutional directives when they prosecute crimes.

Link to the ABA Standards on the Prosecution Function https://www.americanbar.org/groups/

criminal_justice/standards/ProsecutionFunctionFourthEdition-TableofContents/

2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc.

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7.10. Courtroom Workgroup: Defense Attorneys

LORE RUTZ-BURRI

The Sixth Amendment to the U.S. Constitution provides, “The accused shall enjoy the right . . . to have the

Assistance of Counsel for his defense.” Most state constitutions have similar provisions. Historically, the right

to counsel meant that the defendant, if he or she could afford to hire an attorney, could have an attorney’s

assistance during his or her criminal trial. This right has developed over time and now includes the right

to have an attorney’s assistance at all critical stages in the process, or at all criminal proceedings that may substantially affect the right of the accused. Importantly, the right to assistance of a defense counsel has been

held to require that the state pay the costs of the defense counsel when a person is indigent or has insufficient financial resources to pay.

Privately Retained Defense Attorneys

Individuals accused of any infraction or crime, no matter how minor, have the right to hire counsel and

have them appear with them at trial. The attorney must be recognized as qualified to practice law within

the state or jurisdiction, and generally, criminal defendants do well to hire an attorney who specializes in

criminal defense work. However, because many criminal defendants don’t have enough money to hire an

attorney to represent them, the court will need to appoint an attorney to represent them in criminal cases.

Appointed Counsel Federal and state constitutions do not mention what to do when the defendant wants, but cannot afford

an attorney’s representation. Initially, the Court interpreted the Sixth Amendment as permitting defendants

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to hire an attorney who would assist them during the trial. Later, the Court held that the Due Process

Clause of the Fifth and Fourteenth Amendment includes the right to a fair trial, and a fair trial includes

the right to the assistance of counsel. In Powell v. Alabama, 287 U.S. 45, at 58 (1932), the Court concluded that the focus on trial was too narrow. It stated, “[T]he most critical period of the proceeding[s] against the

defendants might be that period from the time of their arraignment until the beginning of their trial, when

consultation, thoroughgoing investigation, and preparation are vitally important. Defendants are as much

entitled to . . . [counsel’s] aid during that period as at the trial itself.” 1

Powell also dealt with the need for states to provide representation to defendants who could not afford to hire counsel in those cases where fundamental fairness required it. In a statement that led to the dramatic

extensions to the right to counsel, the Court continued,

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right

to be heard by counsel. Even the intelligent and educated layman has a small and sometimes no skill

in the science of law. If charged with a crime, he is incapable, generally, of determining for himself

whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without

the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent

evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and

knowledge adequately to prepare his defense, even though he may have a perfect one. He requires the

guiding hand of counsel at every step in the proceedings against him. Without it, though he is not

guilty, he faces the danger of conviction because he does not know how to establish his innocence.” 2

287 U.S. 45, at 68-69 (1932)

Powell was decided in 1932, and because of television and the multitude of crime drama programs,

people probably know more about the criminal justice process than ever imagined by the Powell court. Nevertheless, the Court’s admonitions still ring true. Not too many non-lawyers know how to conduct

themselves at trial, challenge the state’s evidence, make evidentiary objections, or file proper pretrial

motions with the rudimentary knowledge gained from watching television. One could consult with the

many great Internet sources that are easily accessible, however, many individuals charged with crimes have

limited education and lack the sophistication to distinguish between those sources that are applicable to

their case and which are not.

Between Powell (1932) and the case of Gideon v. Wainwright, 372 U.S. 335 (1963), the Court decided when the appointment of counsel was necessary for a fair trial in state prosecutions on a case-by-case basis.

In Gideon, however, the Court held that this case-by case-approach was inappropriate. It held that the state had to provide poor defendants access to counsel in every state felony prosecution. Lawyers in serious

criminal cases, it said, were “necessities, not luxuries”. Since Gideon, the Court has extended the obligation to provide counsel to state misdemeanors prosecutions that result in the defendant receiving a jail term.

The Court found that the legal problems presented in a misdemeanor case often are just as complex as those

1. Powell v. Alabama, 287 U.S. 45, at 58 (1932) 2. Powell v. Alabama,

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in felonies. 3

In two cases, Argersinger v. Hamlin, 407 U.S. 25 (1972) and Scott v. Illinois, 440 U.S. 367 (1979), the Court tied the right to counsel in misdemeanor cases to the defendant’s actual incarceration. Because

it is difficult to predict when a judge will want to incarcerate a person convicted of a misdemeanor, this

approach is difficult to implement. 4 5

Many states instead appoint counsel to an indigent defendant charged

with a crime where a possible term of incarceration could be imposed.

The Court left it for the lower courts to decide when a person is indigent. Lower courts have generally

held that the financial resources of a family member cannot be considered. Also, courts cannot merely

conclude that because a college student is capable of financing his or her education that he or she is capable

of hiring an attorney. A person does not have to become destitute in order to be classified as indigent. An

indigent defendant may have to pay back the court-appointed attorney’s fees if they are convicted or enter

a plea. In practice, most courts collect appointed attorneys’ fees at a standard rate and much reduced from

the actual costs of representation as part of the fines that a convicted defendant must pay. When acquitted,

defendants are not required to pay the state back for the attorney fees.

Public Defenders, Assigned Attorneys, and Defense Attorney Associations Most states now have public defenders’ offices. Because public defenders and assistant public defenders

handle only criminal cases, they become the specialists and have considerable expertise in representing

criminal defendants. Public defender offices frequently have investigators on staff to help the attorneys

represent their clients. In some states, courts appoint or assign attorneys from the private bar (not from the

public defender’s office) to represent indigent defendants. The mixed system uses both assigned counsel,

or associations of private attorneys who contract to do indigent criminal defense, and public defenders.

For example, the public defender’s office may contract with the state to provide 80% of all indigent

representations in a particular county. The remaining 20% of cases would be assigned to the association of

individual attorneys who do criminal defense work- some retained clients, some indigent clients-or private

attorneys willing to take indigent defense cases.

In practice, there is no purely public defender system because of “conflict cases.” Conflicts exist when one

law firm tries to represent more than one party in a case. Assume, for example, that Defendant A conspired

with Defendant B to rob a bank. One law firm could not represent both Defendant A and Defendant

B. Public defender offices are generally considered one law firm, so attorneys from that office could not

represent both A and B, and the court will have to assign a “conflict” attorney to one of the defendants.

3. Gideon v. Wainwright, 372 U.S. 335 (1963) 4. Argersinger v. Hamlin, 407 U.S. 25 (1972) 5. Scott v. Illinois, 440 U.S. 367 (1979)

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Controversial Issue: Link to the 2017 report from the Oregon Public Defense Services about indigent representation in Oregon

https://www.oregon.gov/opds/commission/reports/EDAnnualReport2017.pdf

Link to the National Legal Aid and Defenders Association

http://www.nlada.org/

Link to the Oregon Criminal Defense Lawyers Association

https://www.ocdla.org/

The Right to Counsel in Federal Trials

The Court in Johnson v. Zerbst, 304 U.S. 458 (1938), held that in all federal felony, trials counsel must represent a defendant unless the defendant waives that right. The Court further held that the lack of counsel

is a jurisdictional error which would render, or make, the defendant’s conviction void. A court that allows

a defendant to be convicted without an attorney’s representation has no power or authority to deprive an

accused of life or liberty. 6

Zerbst also established rules for a proper waiver of the Sixth Amendment right to counsel. The court said that it is presumed that the defendant has not waived her right to counsel. For a waiver to be constitutional,

the court must find that the defendant knew he or she had a right to counsel and voluntarily gave up that

right, knowing that he or she had the right to claim it. Therefore, if the defendant silently goes along with

the court process without complaining about the lack of counsel, his or her silence does not amount to a

waiver. The Court defined waiver as an “intelligent relinquishment or abandonment of a known right or

privilege”.

In 1945 Congress passed the Federal Rules of Criminal Procedure (FRCP). Rule 44 of the FRCP requires

defendants to have counsel, or affirmatively waive counsel, either retained or appointed, at every stage of

the proceedings from the initial appearance through appeal. This rule was difficult to implement because

there was no recognized federal defense bar, or federal defense attorneys, available or willing to take on

appointed cases. So, in 1964, Congress passed the Criminal Justice Act of 1964 that established a national

system for providing counsel to indigent defendants in federal courts.

6. Johnson v. Zerbst, 304 U.S. 458 (1938)

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When Does a Defendant Have the Right to Assistance of an Attorney?

Critical Stages of the Criminal Justice Process

In White v. Maryland, 373 U.S 59 (1963), the Court found that defendants are entitled to the right to counsel at any critical stage of the proceeding, defined as a stage in which he or she is compelled to make

a decision which may later formally be used against him or her. The Court has found the following court

procedures to be critical stages:

• The initial appearance in which the defendant enters a non-binding plea–White v. Maryland, 373 U.S.59 (1963).

• A preliminary hearing–Coleman v. Alabama, 399 U.S. 1 (1970).

• A lineup that includes a previously indicted defendant–Wade v. United States, 388 U.S. 218

(1967) and Gilbert v. California, 388 U.S. 263 (1967).

During Other Proceedings

The Court has extended the right to counsel to psychiatric examinations, juvenile delinquency

proceedings 7 , civil commitments proceedings

8 and probation and parole hearings (see, below). Further,

the court in Estelle v. Smith, 451 U.S. 454 (1981), held that a defendant charged with a capital crime and ordered by the court to be examined by a psychiatrist, to evaluate possible future dangerousness,

was entitled to consult with counsel. Similarly, in Satterwhite v. Texas, 486 U.S. 249 (1988), the Court found prejudicial error occurs when defense counsel was not appointed to represent a defendant subjected

to a psychiatric evaluation. The Court further held that counsel must be made aware of the projected

psychiatric evaluation before it occurs.

During Probation and Parole Revocation Hearings

In Mempa v. Rhay, 389 U.S. 128 (1967), 17-year-old Mempa was placed on probation for two years after he pleads guilty to “joyriding”. About four months later, the prosecutor moved to have petitioner’s

probation revoked alleging that Mempa had committed a burglary while on probation. Mempa, who was

not represented by counsel at the probation revocation hearing. admitted being involved in the burglary.

The court revoked his probation based on his admission to the burglary. The U.S. Supreme Court held that

Mempa should have had counsel to assist him in his hearing.

Five years later, in Gagnon v. Scarpelli, 411 U.S. 778 (1973), the state sought to revoke defendant’s probation. Originally, Gagnon was sentenced to fifteen years of imprisonment for armed robbery, but the

judge had suspended the imposition of sentence and placed him instead on seven years of probation. The

Court found that the probation revocation hearing did not meet the standards of due process. Because a

probation revocation involves a loss of liberty, the probationer was entitled to due process. The Court did

7. In re Gault, 387 U.S. 1 (1967) 8. Stefan, S. (1985). Right to Counsel in Civil Commitment Proceedings. Mental & Physical Disability L. Rep., 9, 230.

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not adopt a per se rule that all probationers must have the assistance of counsel in every revocation hearings, but rather stated:

“We find no justification for a new, inflexible constitutional rule with respect to the requirement of

counsel. We think rather, that the decision as to the need for counsel must be made on a case-by-case

basis in the exercise of sound discretion by the state authority charged with responsibility for administering

the probation and parole system. . . . Presumptively, it may be said that counsel should be provided in

cases where, after being informed of his right to request counsel, the probationer or parolee makes such a

request based on a timely and colorable claim. . . . In passing on a request for the appointment of counsel,

the responsible agency should also consider, especially in doubtful cases, whether probationer appears to be

capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or

final hearing is refused, the grounds for refusal shall be stated succinctly in the record.” 9

At Some Post-Trial Proceedings

The Sixth Amendment’s right to the assistance of counsel does not stop when the jury finds the defendant

guilty. When an out-of-custody defendant is found guilty at the end of a trial, the judge may remand

the defendant to custody- has the bailiff take the defendant into custody and transport them to the jail-

and revokes conditions of bail if there had been any. Counsel must assist the defendant through the end of

the sentencing hearing, and the defendant’s attorney has the legal obligation to make post-trial motions to

preserve the defendant’s rights.

The Court has distinguished between the defendant’s right to the assistance of counsel on mandatory

appeals and discretionary appeals. In Douglas v. California, 372 U.S. 353 (1963), the Court found that

indigent counsel should be provided to individuals when an appellate court must review their appeal or an

appeal of right. Once the first appeal has been dismissed or resolved, however, Ross v. Moffitt, 417 U.S. 600 (1974), holds that indigent defendants do not have a right to appointed counsel for discretionary review

in either the state supreme court or with the U.S. Supreme Court. The Ross majority reasoned that the defendant did not need an attorney to have “meaningful access” to the higher appellate courts because all

the legal issues would have already been fully briefed in the intermediate appellate court. Additionally, the

Court noted that the concept of equal protection does not require absolute equality. The majority opinion

states,

“We do not believe that the Due Process Clause requires North Carolina to provide the respondent

with counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal

proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States

by virtue of the Sixth and Fourteenth Amendments. But there are significant differences between

the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State’s

point of view is to convert a criminal defendant from a person presumed innocent to one found guilty

beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney

who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings

9. Gagnon v. Scarpelli, 411 U.S. 788, 790 (1973).

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of the court, and makes direct arguments to the court and jury seeking to persuade them of the

defendant’s guilt. Under these circumstances “reason and reflection require us to recognize that in our

adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer,

cannot be assured a fair trial unless counsel is provided for him” (Citations omitted).

By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process,

seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt

made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect

him against being “haled into court” by the State and stripped of his presumption of innocence, but

rather as a word to upset the prior determination of guilt. This difference is significant for, while no

one would agree that the State may simply dispense with the trial stage of proceedings without a

criminal defendant’s consent, it is clear that the State need not provide any appeal at all. The fact that

an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to

provide counsel to indigent defendants at every stage of the way. . . . (Citations omitted.)

The facts show that respondent … received the benefit of counsel in examining the record of his trial

and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking

discretionary review in the State Supreme Court, his claims had “once been presented by a lawyer and

passed upon by an appellate court.” We do not believe that it can be said, therefore, that a defendant

in respondent’s circumstances is denied meaningful access to the North Carolina Supreme Court simply

because the State does not appoint counsel to aid him in seeking review in that court. At that stage, he will

have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of

Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing

of his case. These materials . . . would appear to provide the Supreme Court of North Carolina with an

adequate basis for its decision to grant or deny review” (Citations omitted).

This is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of

preparing petitions for discretionary review, would not prove helpful to any litigant able to employ him.

An indigent defendant seeking review in the Supreme Court of North Carolina is therefore somewhat

handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable

manner at every stage in the proceeding. But both the opportunity to have counsel prepare an initial brief

in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina

make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on

his initial appeal as of right in Douglas. And the fact that a particular service might be of benefit to an

indigent defendant does not mean that the service is constitutionally required. (Emphasis added). The duty

of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal

defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an

adequate opportunity to present his claims fairly in the context of the State’s appellate process. We think

the respondent was given that opportunity under the existing North Carolina system.” 10

10. Ross v. Moffitt, 417 U.S. 600, 610-611, 614, 616 (1974).

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Similarly, prisoners have a limited right to legal assistance for the purpose of filing writs of habeas corpus.

In Bounds v. Smith, 430 U.S. 817 (1977), the Court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal

papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in

the law”. Prisons can meet this obligation by training prisoners to be paralegal assistants to work under

a lawyer’s supervision or by using law students, paralegals, and volunteer lawyers. Again, it may seem

inconsistent that the court requires more for habeas corpus relief than it does for discretionary review on

appeals. The difference lies in the nature of habeas corpus as a collateral attack, or side attack, where the

claim is often being advanced for the first time and therefore the need for legal assistance may be greater.

Functions of Defense Attorneys Defense lawyers investigate the circumstances of the case, keep clients informed of any developments in

the case, and take action to preserve the legal rights of the accused. Some decisions, such as which witnesses

to call, when to object to evidence, and what questions to ask on cross-examination, are considered to be

strategic ones and may be decided by the attorney. Other decisions must be made by the defendant, most

notably, after getting advice from the attorney about the options and their likely consequences. Defendants’

decisions include whether to plead guilty and forego a trial, whether to waive a jury trial, and whether to

testify in their own behalf.

The ABA Standards relating to the Defense Function established basic guidelines for defense counsel in

fulfilling obligations to the client. The primary duty is to zealously represent the defendant within the

bounds of the law. Defense counsel is to avoid unnecessary delay, to refrain from misrepresentations of law

and fact, and to avoid personal publicity connected with the case. Fees are set on the basis of the time and

effort required by counsel, the responsibility assumed, the novelty and difficulty of the question involved, the

gravity of the charge, and the experience, reputation, and ability of the lawyer.

ABA Standard 4- 1.2, The Function of Defense Counsel, states:

(a) Counsel for the accused is an essential component of the administration of criminal justice. A court

properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge

(and jury, where appropriate), counsel for the prosecution, and counsel for the accused.

(b) The basic duty defense counsel owes to the administration of justice and as an officer of the court is

to serve as the accused’s counselor and advocate with courage and devotion and to render effective, quality

representation.

case should respond to this difference by making extraordinary efforts on behalf of the accused. Defense

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counsel should comply with the ABA Guidelines for the Appointment and Performance of Counsel in

Death Penalty Cases.

(d) Defense counsel should seek to reform and improve the administration of criminal justice. When

inadequacies or injustices in the substantive or procedural law come to defense counsel’s attention, he or

she should stimulate efforts for remedial action.

(e) Defense counsel, in common with all members of the bar, is subject to standards of conduct stated in

statutes, rules, decisions of courts, and codes, canons, or other standards of professional conduct. Defense

counsel has no duty to execute any directive of the accused which does not comport with the law or such

standards. Defense counsel is the professional representative of the accused, not the accused’s alter ego.

(f) Defense counsel should not intentionally misrepresent matters of fact or law to the court.

(g) Defense counsel should disclose to the tribunal legal authority in the controlling jurisdiction known

to defense counsel to be directly adverse to the position of the accused and not disclosed by the prosecutor.

(h) It is the duty of defense counsel to know and be guided by the standards of professional conduct

as defined in codes and canons of the legal profession applicable in defense counsel’s jurisdiction. Once

representation has been undertaken, the functions and duties of defense counsel are the same whether

defense counsel is assigned, privately retained, or serving in legal aid or defender program. 11

Tricky Issues in Representation Defendants sometimes want to have a friend or family member speak up for them, but, the Court will not

permit that. The right to counsel means the right to be represented by an attorney, someone legally trained

and recognized as a member of the bar association. Similarly, defendants may not necessarily get the attorney

of their choice. For example, in Wheat v. United States, 486 U.S. 153 (1988), one defendant who wanted to be represented by the same attorney who was representing his accomplice/co-conspirator in a complex

drug distribution conspiracy was not allowed to have that attorney. The Court disallowed his application for

the appointment of counsel noting that irreconcilable and unwaivable conflicts of interest would be created

since there was the likelihood that the petitioning defendant would be called to testify at a subsequent trial

of his co-defendant and that his co-defendant would be testifying in petitioner’s trial. On the other hand, in

United States. v. Gonzalez-Lopez, 553 U.S. 285 (2008), the Court reversed the defendant’s conviction because the trial court erroneously deprived the defendant of his choice of counsel. The defendant, Gonzales-Lopez,

had hired counsel from a different state, and during pretrial proceedings, the judge and the counsel had some

disagreements. The judge then prohibited the attorney from taking part in the defendant’s trial. The Court

found that a trial judge violated the defendant’s Sixth Amendment rights.

Defendants cannot repeatedly “fire” their appointed counsel as a stall tactic, and, at some point, the court

will not allow the defendant to substitute attorneys and will require the defendant work with whatever

11. ABA Standard 4- 1.2 The Function of Defense Counsel (2015). Criminal Justice: Prosecution and Defense Function. American Bar Association.

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attorney is currently assigned. A defendant may not force an unwilling attorney to represent him or her,

but a court does have the discretion to deny an attorney’s motion to withdraw from representation after

inquiring about counsel’s reasons for wishing to withdraw. This may present an ethical dilemma for the

attorney because professional rules of responsibility require that even when an attorney withdraws from a

case, he or she must still maintain attorney-client confidences. If, for example, the attorney knows that the

defendant insists on taking the stand and presenting perjured testimony, the attorney must withdraw. But, at

the same time, the attorney cannot discuss with the court why he or she needs to withdraw. At some point

in the inquiry, after the judge has asked and the attorney has talked around the subject, the judge hopefully

catches on, and the judges will allow the attorney to withdraw.

Effective Assistance of Counsel

Defendant’s attorneys must provide competent assistance and should not harm the defendant’s case by

their legal representation. According to McMann v. Richardson, 397 U.S. 759 (1970), the right to counsel means the right to effective assistance of counsel. The constitutional standard for evaluating effective

assistance was determined in Strickland v. Washington, 466 U.S. 688 (1984). The Strickland decision looked at two aspects of the representation to determine whether counsel was ineffective. First, the defense attorney’s

actions were not those of a reasonably competent attorney exercising reasonable professional judgment;

and second, the defense attorney’s actions caused the defendant prejudice, meaning that they adversely

affected the outcome of the case (i.e., they likely caused the jury to find the defendant guilty).

Courts may be more inclined to find ineffective assistance of counsel in a death penalty case than other

run-of-the-mill cases. For example, the Court found the defense attorneys provided ineffective assistance

in the sentencing portion of defendant’s death penalty trial for the murder of a 77-year-old woman because

they had failed to conduct an adequate “social history” investigation of the defendant’s life and had not

presented information to the jury they did have which showed that defendant had been subject to regular

sexual abuse as a child. Wiggins v. Smith, 539 U.S. 510 (2003). The Court stated,

“In finding that Schlaich and Nethercott’s investigation did not meet Strickland’s performance

standards, we emphasize that Strickland does not require counsel to investigate every conceivable

line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at

sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing

in every case. Both conclusions would interfere with the “constitutionally protected independence

of counsel” at the heart of Strickland. We base our conclusion on the much more limited principle

that “strategic choices made after less than complete investigation are reasonable” only to the extent

that reasonable professional judgments support the limitations on investigation. . . . A decision not to

investigate thus must be directly assessed for reasonableness in all the circumstances.

Counsel’s investigation into Wiggins’ background did not reflect reasonable professional judgment.

Their decision to end their investigation when they did was neither consistent with the professional

standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the

social services records–evidence that would have led a reasonably competent attorney to investigate

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further. Counsel’s pursuit of bifurcation until the eve of sentencing and their partial presentation of a

mitigation case suggest that their incomplete investigation was the result of inattention, not reasoned

strategic judgment. In deferring to defense counsel’s decision not to pursue a mitigation case despite their

unreasonable investigation, the Maryland Court of Appeals unreasonably applied Strickland.”

Waiving Counsel Sometimes, a defendant wishes to waive counsel and appear pro se, or represent him or herself at trial. The

Court, in Faretta v. California, 422 U.S. 806 (1975), held that the Sixth Amendment includes the defendant’s right to represent himself or herself. The Faretta Court found that, where a defendant is adamantly opposed to representation, there is little value in forcing him or her to have a lawyer. The Court stressed that it

was important for the trial court to make certain and establish a record that the defendant knowingly and

intelligently gave up his or her rights.

“Although a defendant need not himself have the skill and experience of a lawyer in order competently

and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of

self-representation, so that the record will establish he knows what he is doing and his choice is made with

eyes open.” 12

In McKaskle v. Wiggins, 465 U.S. 168, at 174 (1984), the Court held that a “defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does

the Constitution require judges to take over chores for a pro se defendant that would normally be attended

to by trained counsel as a matter of course.” The constitutional right to self-representation does not mean

that the defendant is free to obstruct the trial, and a judge may terminate self-representation by a defendant

who is obstructing the process. Frequently, judges will assign a standby counsel to assist defendants. Stand- by counsel is an attorney who can be available to answer questions of a pro se defendant, and if necessary,

standby counsel can step in if the defendant is engaging in misconduct.

Conclusion Court jurisdiction determines where a case will be filed and which courthouse has the legal authority to

hear a case. Jurisdiction can be based on geography, subject matter, or seriousness of the offense. Jurisdiction

is also divided between trial courts (original jurisdiction) and appellate courts (appellate jurisdiction).

More than 51 court systems operate in the United States. We have a dual court system comprised of federal

trial and appellate courts and state trial and appellate courts. Federal and state courts have similar hierarchical

structures with cases flowing from lower trial courts through intermediate courts of appeals and up to the

supreme courts.

Defendants who wish to appeal their convictions are entitled to have their cases reviewed at least once,

a mandatory appeal of right in the intermediate courts of appeal. After that, the review is discretionary

and rare. Appellate courts generally affirm the decision of the trial courts, but may also reverse and remand

the case back to the trial court if they determine that prejudicial error occurred. At the intermediate

appellate court level, judges most frequently affirm the trial court’s decision without writing an opinion, but

sometimes the judges will write opinions informing the parties of their decision and the reasons for holding

12. Faretta v. California, 422 U.S. 806, 835 (1975).

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as they did. Judges don’t always agree, and at times, judges will write dissenting opinions or concurring

opinions. Appellate court opinions become precedent that must be followed in the trial courts.

Judges, prosecutors, defense attorneys work together along with court clerks, bailiffs, and other court staff

to process tens of thousands of cases daily in trial courts across the nation. Judges, prosecutors, and defense

attorneys play an important role in the criminal justice process. Although few cases actually go to trial, and

the vast majority of criminal cases are resolved in the trial courts at the pre-trial stage, the defendants must

be represented by an attorney at critical stages in the process, and at the government’s expense if they cannot

afford to hire an attorney, unless they have voluntarily waived the right and wish to represent themselves.

Court jurisdiction determines where a case will be filed and which courthouse has the legal authority to