CCJS 100 – Criminal Act Assignment - DUE FRIDAY

Introduction to Criminal Justice

Section 2.2: Politics in Criminal Justice

Prepared by Adam J. McKee

Defining Politics Politics is the art and science of running a government and guiding governmental policy .

The nature of politics in America is conflict and debate about policy, and criminal justice policy falls into that arena .

The American political system and the criminal justice system involve actions of the President, Congers, courts, bureaucracies, interest groups, elections, and the media .

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Local Politics These groups are mirrored on the state level and to some degree on the local level.

The actions of elected officials have a direct impact on the system, and the policies they implement directly affect how justice is done .

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The Politics of Selecting Decision Ma In a democratic republic, one of two ways selects criminal justice decision makers : They either are elected by the public, or are appointed by a public official (often an elected one).

Elected mayors, for example, often appoint chiefs of police .

The President of the United States (an elected official) appoints Supreme Court justices with the confirmation of the U.S. Senate (a body of elected officials) .

Both methods are highly political and cannot be understood without understanding something of the political process . 4

The Politics of Lawmaking Although the federal legal system and that of most states rely on the old common law for their historical foundations, criminal law is mostly a matter of statute these days.

That is, criminal laws are made by legislative assemblies that decide which acts are prohibited, and what punishments are appropriate for those that commit those acts in violation of the law .

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The “Get Tough” Era Obviously, politics influences the laws that assemblies pass.

Today the nation finds itself at the conclusion of what has been a “get tough” era of criminal justice . Ushered in by the “crack epidemic” of the early 1980s, this has been a period of harsher punishments, longer prison sentences, less therapeutic programs, and skyrocketing corrections budgets .

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The Political Pendulum The pendulum seems to have reached the far right, and now may be swinging back toward the middle .

Many states have begun concentrated efforts at finding alternatives to incarceration, and the federal government is considering early release for drug offenders sentenced under the “get tough” drug laws of the previous two decades.

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The Politics of Policing Most police departments try to distance themselves from the vicissitudes of politics as much as possible .

To be effective, law enforcement must be seen as fair and impartial, serving all of the community without favoritism or political patronage .

The political climate of a community can have a huge impact on the police department .

Elected officials appoint police administrators, and can often fire them just as easily.

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Local Politics and Policing The style of law enforcement, formal departmental policy, and informal norms can all be heavily influenced by local politics .

The structure of local government can have an impact on how police services are delivered .

Professional city managers, for example, are less likely to get involved in police affairs than are mayors and city council members .

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The Politics of Prosecution While police departments are often somewhat shielded from politics and influenced by it indirectly, prosecutors in most jurisdictions are elected officials and thus highly political .

At the federal level, an essentially political process appoints U.S. attorneys .

The career paths of these federal lawyers tend to be linked to one particular political party or the other .

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Politically Motivated Prosecutions It is common to see prosecutors at both the state and federal level using their tenure as prosecutors to launch political careers .

This fact gives rise to the unethical possibility of political prosecutions against political enemies .

In fact, many at the time stated that this was the sort of thing that was happening with the impeachment proceedings launched against then - President Bill Clinton .

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The Politics of the Judiciary There is a tendency among academic writers to view the judiciary as somehow above partisan politics .

In the modern American reality, this is a pleasant fiction .

Judges at all levels of government are either elected or appointed, and this fact makes them political creatures .

Elected judges fear public reactions to issues with political foundations, such as appearing “soft on crime” or being in favor of the death penalty, or for it, depending on the political climate in the judge’s jurisdiction .

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The Impact of Ideology Those political affiliations and beliefs necessarily inform judges’ decisions .

Conservative courts tend to side with law and order, willing to sacrifice some civil liberties to maintain law and order .

Liberal judges tend to take the opposite, ruling in favor of civil liberties at the expense of (in the minds of the opposition) public safety .

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Judicial Decisions Are Political It has been said that the real job of appellate courts is balancing the civil rights of the people with the desire of the people to be safe from crime .

Obviously, the political beliefs of the justices making these decisions weighs heavily in the outcome of important cases.

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The Politics of Corrections As with the other elements of the criminal justice systems, corrections is a highly politicized aspect of government .

At the local level, the operation of jails is tied to the office of sheriff in many jurisdictions, which ties jail operations to the politics of particular individuals being elected and reelected as sheriff .

At the state level, departments of corrections are highly political, with administrators and budgets being politically determined .

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The Politics of Parole Another highly political aspect of corrections is the membership and functioning of parole boards, which is established by appointment of the governor in most jurisdictions .

If parole boards make release decisions that later reflect badly on the board members, the bad press will ultimately turn to the governor .

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The Politicization of Justice As politics is such an integral part of criminal justice, a high potential for serious problems generated by politics exists .

Rash decisions can be made, poorly considered policies can be implemented, and ill -conceived laws can be written that hamper the efficient and ethical administration of justice .

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Politics and Emotional Decision Maki Unscrupulous politicians can easily make appeals to people’s emotions, fears, and prejudices to improve their own chances at reappointment or reelection .

Sadly, emotionally charged decisions do not tend to be rational decisions .

In the high -stakes world of criminal justice, clear, rational thinking is often overshadowed by politically charged emotionality .

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Crime Control versus Due Process Herbert Packer (1964) outlined two competing models of the value systems operating within criminal justice today : The crime control model a n d th e due process model .

Th e s e t wo m o d e ls o f h o w t h e ju s t ice s ys t e m s h o u ld o p e ra t e re fle ct t wo o p p o s in g s e t s o f p o lit ica l id e o lo gie s t h a t h a ve a m a s s ive im p a ct o n crim in a l ju s t ice d e cis io n -m a kin g a t a ll le ve ls .

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Democrat versus Republican? The divide is not as simple as Democrat or Republican.

Both models represent core values in the American way of life.

After all, every good citizen wants to see crime controlled.

We want to live in safe, orderly communities.

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But... As Americans, we also highly value freedom.

We loath the idea of oppressive governments that interfere with our personal liberties.

We are proud of our rights to be free from government oppression, and we value our right to privacy.

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The Crime Control Model According to Packer,

“The value system that underlies the Crime Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process.”

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The Crime Control Philosophy There is a definite political philosophy that underlies this assertion:

“The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order and thence to the disappearance of an important condition of human freedom. If the laws go unenforced, which is to say, if it is perceived that there is a high percentage of failure to apprehend and convict in the criminal process, a general disregard for legal controls tends to develop.”

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Policy Outcomes Adherents of the Crime Control Model advocate enhancing the powers of the police to investigate and prosecute criminals .

These necessarily include enhanced powers of search and seizure .

Under this philosophy of criminal justice, the primary focus of the system should be discovering the truth and establishing the facts .

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The Due Process Model The Due Process Model takes a rather opposite view of how the system should operate .

The key to understanding this position is that it hinges on protecting the civil rights of every citizen .

Under this philosophy, the most important function of the criminal justice system is to ensure procedural due process, which mean maintaining fundamental fairness in all aspects of the criminal justice process .

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Policy Outcomes A major policy implication if this view is to limit police powers in order to prevent the oppression of the individual citizen .

Adherents of this position hold that merely establishing guilt is not adequate ; the government must show guilt in a fair and legal way that respects the rights of the accused.

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A Dynamic Process In reality, the courts and other elements of the criminal justice system have to strike a balance of these two positions .

It must be realized that the relative importance of each of these positions is not static : There is a constant tug of war between the two positions .

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The Makeup of the Court As the makeup of America’s high courts change, so too does the underlying philosophy that dominates the decisions of those courts .

Liberal courts establish broad civil liberties, and conservative courts erode those liberties in the name of law and order .

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The Juvenile Justice System The 1800s saw a revolution in the way Americans controlled juvenile delinquency.

The movement away from treating juveniles as adults began as early as 1825 when the Society for the Prevention of Juvenile Delinquency began advocating separate facilities for juvenile offenders.

Privately run juvenile facilities sprang up, and soon generated controversy over reported abuses.

This criticism led many states to create their own juvenile detention facilities. 29

American Beginnings Detention facilities were not the only facet of the system that was changing.

Illinois passed the Juvenile Court Act of 1899, which established the America’s first juvenile court.

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Parens Patriae The British policy of parens patriae (t h e go ve rn m e n t a s th e p a re n t ) wa s t h e ra t io n a le fo r th e s t a t e b e co m in g in vo lve d in th e live s o f ch ild re n d iffe r e n t ly t h a n it d id wit h a d u lt o ffe n d e rs .

Th e d o ct rin e wa s in te rp r e t e d t o m e a n th a t t h e s t a t e h a d b o t h t h e righ t a n d t h e o b liga t io n t o in t e r ve n e wh e n n a t u ra l p a re n t s fa ile d to d is cip lin e a d e q u a t e ly a n d p ro t e ct ch ild re n .

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The Welfare of the Child A critical aspect of the developing juvenile justice system was a focus on the welfare of the child .

Delinquent youths were seen as being in need of the benevolent guidance of the court .

Rather than merely punishing delinquents for their wrongdoings, juvenile courts sought to turn delinquents into productive citizens through treatment rather than the punitive measures used in adult cases.

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Expansion By 1910, 32 States had established juvenile courts, and many of those had established probation services.

By 1925, all but two States had established the foundations of a juvenile justice system .

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Introduction to Criminal Justice

Section 2.3: The Policymaking Role of the Supreme Court

Prepared by Adam J. McKee

The Supreme Court and Policy The Supreme Court of the United States has an extremely important policymaking role, and this has an enormous impact on the criminal justice system .

The Supreme Court has the power of judicial review.

Th is p o we r wa s firs t e xe r cis e d in th e la n d m a r k ca s e o f Marbury v. Madison , d e cid e d in 1803.

Marbury v. Madison (1803) The Court struck down a statute that it considered "repugnant to the Constitution ."

This case served as the precedent for judicial review, and the Supreme Court has exercised the power ever since that time .

Judicial review is th e a u t h o rit y o f t h e Su p re m e Co u r t t o re vie w t h e a ct s o f Co n gre s s , a n d d e t e rm in e if t h o s e a ct s m e e t t h e s t a n d a rd s s e t fo rt h in t h e Co n s t it u t io n .

The Due Process Clause The Due Process Clause has proven very important in the Court's shaping of policy through judicial review .

What exactly constitutes due process is extremely vague, and when the Court decides whether something is required by due process, they are in effect making policy .

The evolution of police procedure during the Warren Court years is an enduring example of this policy -making power at work .

Judicial Modesty In theory, Supreme Court justices should practice what constitutional scholars have called judicial modesty .

Ju d icia l m o d e s t y r e fe rs t o t h e id e a t h a t ju s t ice s s h o u ld o n ly s t rike d o wn a ct s o f t h e le gis la tive b ra n ch wh e n th o s e la ws a r e in d ire ct co n flict wit h a co n s t it u t io n a l p ro vis io n .

Th e re h a s b e e n a h is t o rica l t re n d o f ju d icia l s e lf-re s t r a in t a m o n g a t le a s t s o m e ju s t ice s .

“Modest” Justices These justices feel that policy is best left in the hands of the legislative and executive branches .

Striking down a law merely because a majority of justices disagrees with the legislature is wrong under this doctrine .

The way our system functions, there is nothing to stop the justices from doing this .

“Activist” Justices Other justices take the position that the court should be active in cases of civil liberties and civil rights .

When it comes to allowing political agendas enter into the judicial decision - making process, the justices must police themselves .

The Political Lens Supreme Court justices, in theory, sit in order to interpret the law .

This interpretation is, in reality, filtered through a political lens.

No matter how well meaning these justices may be, their perceptions of what is right or wrong in the law are impacted by their personal political beliefs .

“Liberal” v. “Conservative” While there are always individual differences, a common way to divide the political leanings of the court is to use the terms liberal a n d conservative t o d e s crib e b o t h in d ivid u a l ju s t ice s , t h e co u rt in ge n e ra l, a n d p a rt icu la r d e cis io n s .

Illu s t ra t io n s o f liberal decisions a re d e cis io n s fa vo rin g crim in a l d e fe n d a n t s , p e o p le cla im in g d is crim in a t io n , a n d t h o s e cla im in g vio la t io n s o f civil righ t s .

De cis io n s t h a t a p p e a r t o fa vo rin g p o lice , p ro s e cu t o r s , a n d o t h e r go ve rn m e n ta l e n t it ie s a re s a id t o b e conservative .

The Recent Court Currently, the Supreme Court as a distinct cluster of four judges that consistently vote liberal, and another cluster of four justices who vote conservative .

Justice Anthony Kennedy sits right in the middle of the political spectrum, and is the “swing” vote that makes predicting the outcome of Supreme Court decisions very difficult .

With the vacancy created upon the death of Justice Scalia (a staunch conservative), the future of the Court is in question .

Individual Differences Not all liberal justices are equally liberal .

In the 2013 term, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan cast liberal votes 70 percent of the time .

While still left leaning, Justice Stephen Breyer is substantially more conservative than his female counterparts .

Activism v. Restraint There are two major vantage points from which to regard the work of the Supreme Court .

The first is that the constitution should be interpreted as it is written .

A second is that the Constitution must be interpreted in the context of modern life and modern problems .

The is debate has been characterized as one between judicial activism and judicial restraint .

Judicial Activism Judicial activism represents the idea that the Court should actively seek to right wrongs that other branches of government actively promote or will not do anything about .

The majority of justices on the Warren Court were known as judicial activists .

These justices believed that the court should take an active role in ensuring the civil rights of all Americans .

Judicial Restraint Judicial restraint is the idea that the democratic process should direct changes in policy .

That is, policy should be set by legislative enactments that represent the will of the people .

Advocates of judicial restraint commonly argue that since Justices are appointed rather than elected, they are not the proper body to make policy changes.

Some Caveats Note that while the Warren court was liberal in its judicial activism, that court's example should not lead to the conclusion that activism is always liberal .

The reality is that there will always be a tug of war between a strict constructionist view of the constitution and the dynamic body of ideas envisioned by extreme judicial activists .

The reality of an evolving society utilizing evolving technology dictates that the Constitution be somewhat dynamic .

The Necessity of Change A literal interpretation of the constitution would indicate that your phone calls, texts, and emails are all subject to "seizure" by the government without a warrant .

Those things did not exist when the Fourth Amendment was written, so the they could not be protected .

The fundamental question that remains is one of striking a balance between nullifying the democratic process and not allowing the Constitution to remain relevant over time .

Limits on Judicial Activism The legal framework that judges work within limits judicial activism to some extent.

Before a federal court can hear a case, certain conditions must be met.

Under the Constitution, federal courts exercise only judicial powers.

This means that federal judges may interpret the law only through the resolution of actual legal disputes, referred to in Article III of the Constitution as “Cases or Controversies.”

Standing Second, assuming there is an actual case or controversy, the plaintiff in a federal lawsuit also must have legal standing t o a s k t h e co u rt fo r a d e cis io n .

Th a t m e a n s t h e p la in t iff m u s t h a ve b e e n a ggrie ve d , o r le ga lly h a rm e d in s o m e wa y, b y t h e d e fe n d a n t .

Th u s , o r ga n iza t io n s s u ch a s t h e Am e rica n Civil Lib e rt ie s Un io n ca n n o t s u e t h e p o lice d ire ct ly, b u t t h e y ca n fu n d le ga l a s s is t a n ce fo r a p a rt y t h a t a ct u a lly a lle ge s h a rm d o n e b y t h e p o lice .

Jurisdiction of the Courts In addition, the case must present a category of dispute that the law in question was designed to address, and it must be a complaint that the court has the power to remedy .

That is, the court must be authorized, under the Constitution or a federal law, to hear the case.

For example, if there is no substantial federal question , th e Su p r e m e Co u r t ca n n o t re vie w a ca s e o rigin a t in g in s t a t e co u rt s .

Moot Cases In addition, the case cannot be moot .

A ca s e is moot if it d o e s n o t p re s e n t a n o n go in g p ro b le m fo r t h e co u r t t o re s o lve .

Th e fe d e ra l co u rt s , t h u s , a r e co u rt s o f lim it e d ju ris d ict io n b e ca u s e t h e y m a y o n ly d e cid e ce rt a in t yp e s o f ca s e s a s p ro vid e d b y Co n gr e s s o r a s id e n t ifie d in t h e Co n s t it u t io n .

The Power of the Court Even with these limits, the policymaking role of the Supreme Court should not be underestimated .

The rulings of the court are just as consequential as acts of congress and the executive decisions of the president .

Many times, the ruling of the court is not based merely on a literal reading of the law .

In many cases, the justices are invoking their own interpretations of what the law should be, and not what it objectively is.

Introduction to Criminal Justice

Section 2.4: The Civil Rights Revolution

Prepared by Adam J. McKee

The Political Pendulum A political pendulum, swinging back and forth from liberal to conservative, marks the history of the U.S. Supreme Court.

Obviously, conservative courts are courts composed of conservative justices, usually appointed by conservative presidents.

Liberal courts, on the other hand, are composed of liberal justices, usually appointed by liberal presidents.

The Warren Court These courts are often characterized by the name of the chief justice at the time .

During the 1960s, the pendulum swung to the apex of liberalism when Chief Justice Earl Warren (1953 – 1969) led it .

The Warren Court adhered to Packer’s Due Process Model, at least after the judicial activists achieved a majority on the Court with the retirement of Justice Frankfurter’s retirement in 1962.

This date marks the true beginning of the civil rights revolution .

The Civil Rights Revolution This liberal court, headed by Warren, emphasized civil rights across the legal spectrum .

The most enduring changes in criminal justice occurred in their interpretations of the Fourth Amendment and Fifth Amendments, with many landmark cases coming down that were designed by the court to shield citizens from the abuse of police powers .

Rapid Change Prior to the 1960’s, the Supreme Court rarely interfered in the way that states ran their own criminal justice systems.

The 1960s was a time of rapid social change, and that change is reflected in the decisions of the Warren Court.

When the Warren court passed down its decision in Mapp v. Ohio in 1961, t h e crim in a l ju s t ice s ys t e m in Am e rica wa s ch a n ge d fo re ve r.

The Agenda Over the remainder of Warren’s tenure as Chief Justice, the court would hand down many more decisions that would redefine the American legal landscape in terms of civil liberties .

Mapp v. Ohio A more conservative Supreme Court, back in 1949, stated that the exclusionary rule applied only to federal law enforcement officers .

According to the ruling in Wolf v. Colorado (1949), if citize n s h a d a n y p ro t e ct io n a ga in s t ille ga lly o b t a in e d e vid e n ce b e in g u s e d a ga in s t t h e m in co u rt , it wa s u p t o s t a t e s u p re m e co u rt s t o in t e rp re t s t a t e co n s t it u t io n s in s u ch a wa y.

Wh e n Mapp o ve r ru le d Wolf, th e exclusionary rule wa s a p p lie d t o a ll la w e n fo r ce m e n t in t h e Un ite d St a t e s , n o m a tt e r wh a t le ve l o f go ve rn m e n t e m p lo ye d t h e m .

Chimel Another landmark decision influencing law enforcement practice passed down by the Supreme Court was Chimel v. California (1969).

Today, we teach that Chimel established an exception to the warrant requirement known as a search incident to arrest .

As a n e xce p t io n t o th e s e a r ch wa r ra n t re q u ire m e n t , t h is m a y s e e m like a ca s e t h a t fit s Pa cke r’s crim e co n t ro l m o d e l.

Th is is b e ca u s e a n e xce p t io n t o th e s e a r ch wa rr a n t re q u ire m e n t is ge n e ra lly co n s id e re d t o b e n e fit la w e n fo r ce m e n t , a n d is t h u s a vict o r y fo r la w a n d o rd e r a t t h e e xp e n s e o f a civil righ t.

The Facts of Chimel The facts of the case paint a different picture.

When the police arrested Chimel in his home for burglary, they searched his home for stolen coins that were the fruits of his crime.

The coins were found in a garage attached to the house.

The court ruled that while the search was incident to the arrest, the search of the garage went too far.

The Impact of Chimel The proper scope of a search incident to arrest was the area in the suspect’s “immediate control .”

We can see from this that the court limited a common police practice, effectively doing away with an unwritten arrest exception to the search warrant requirement of the Fourth Amendment .

Because this was deemed a due process issue by the Supreme Court, that clause of the Fourteenth Amendment was used to apply the Fourth Amendment rule to state law enforcement .

Gideon While the decisions of the Warren court had a weighty impact on many aspects of American life, the most profound effects on the criminal justice system were in the area of due process and defendants’ rights.

In Gideon v. Wainwright (1963), t h e co u rt h e ld t h a t in d ige n t d e fe n d a n t s fa cin g ja il t im e h a d t h e righ t t o a p p o in t e d co u n s e l if t h e y co u ld n o t a ffo rd t h e ir o wn la wye r.

Miranda In Miranda v. Arizona (1966), t h e Wa rre n Co u rt ru le d t h a t p o lice m u s t in fo rm s u s p e ct s o f ce rt a in righ t s p rio r t o a cu s t o d ia l in t e rro ga t io n .

Du e t o p o p u la r cu ltu re , m o s t e ve r y Am e rica n kn o ws t h e s t a t e m e n t t h a t is re a d t o s u s p e ct s b y t h e p o lice :

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you by the state.”

Terry Not every case decided by the Warren Court served to benefit criminal defendants .

In Terry v. Ohio (1968), fo r e xa m p le , t h e Co u rt ru le d t h a t t h e p o lice co u ld s e a rch s u s p e ct s fo r we a p o n s wit h le s s t h a n p ro b a b le ca u s e .

The Pendulum Swings Back The pendulum began to swing the other way in the 1970s.

This swing occurred because the composition of the court began to change .

As liberal justices retired from the court, Republican presidents such as Nixon, Reagan, and Bush replaced them .

By the end of the first Bush administration, the court had transitioned from the very liberal Warren Court to a much more conservative body .

The Conservative Courts These conservative courts hammered out many exceptions to the blanket protections created by the Warren Court .

This has created an increasingly broad scope of lawful investigative activity for law enforcement .

This shift from the Due Process Model to the Crime Control Model did not take place only within the courts .

It took place in the executive and the legislative branches as well .

The Burger Court The Burger Court (1969 – 1986) was far more conservative than the Warren Court, but there was no conservative majority .

One of the most controversial cases decided by the Burger Court was Furman v. Georgia (1972), wh ich a b o lis h e d t h e d e a t h p e n a lty a s it wa s e n a ct e d a t th e t im e .

Th is wa s n o t in ke e p in g wit h th e co n s e rva t ive e xp e ct a t io n s o f t h e Bu r ge r Co u rt b e ca u s e Wa rre n Bu rge r wa s a co n s e rva t ive a p p o in t e d b y Pr e s id e n t Rich a rd Nixo n .

Slowing Change Conservatives hoped that a court led by Burger would be far more conservative, even to the point of overruling the more liberal of the Warren Court’s rulings --This was not to happen .

The court may have chipped away at the major Warren Court doctrines, but it declined to overturn them .

The chief justice may have been conservative when Furman was handed down, but the remnants of the Warren Court still sitting on the bench kept the court liberal, at least to a degree, in its majority decisions .

Gregg Because the composition of the court had shifted, some conservative decisions were handed down.

Burger voted with the majority of the court in 1976 to reinstate the death penalty in Gregg v. Georgia(1976).

Chipping Away at Warren The Rehnquist Court (1986 - 2005) was far more conservative than the Burger Court.

These conservative courts, perhaps out of concern for the time -honored tradition of cohesion and unity of the Supreme Court, did not overrule many of the liberal decisions of the Warren Court.

Rather, they “chipped away” at them by creating scores of exclusions.

That is, things like the exclusionary rule still existed as a matter of law, but there would be many exceptions that were created during the Reagan -Bush years.

Justice Rehnquist Rehnquist was a strong believer in states’ rights .

Much of his decisionmaking hinged on the Tenth Amendment’s reservation of powers to state government .

He also rejected the broad view of the Fourteenth Amendment taken by the Warren Court and believed that such an interpretation overstepped the proper bounds of federal power .

Maryland v. Garrison (1987) An example of the chipping away at liberal interpretations of the fourth amendment is Maryland v. Garrison (1987).

In t h is ca s e , t h e co u rt h e ld t h a t a s e a rch p u rs u a n t t o a wa rra n t t h a t t h e p o lice b e lie ve d in co rre ct ly t o b e va lid d id n o t vio la t e t h e s e a rch e d p e rs o n ’s Fo u rt h Am e n d m e n t Righ t s .

Th is go o d fa it h e xce p t io n m e a n t t h a t s u ch e vid e n ce co u ld b e a d m it t e d a t t ria l.

California v. Greenwood (1988) Another example is California v. Greenwood (1988), in wh ich t h e co u rt ru le d t h a t a wa rra n t wa s n o t n e ce s s a ry t o s e a rch a ga rb a ge ca n le ft o n t h e cu rb fo r p icku p (o u t s id e t h e cu rt ila ge o f t h e h o m e ).

Juveniles and Civil Rights Before the 1960s, few people challenged the sweeping powers of the juvenile justice system.

During the Civil Rights Revolution, the Supreme Court considered the rights of juveniles at the time and found them wanting.

In a series of fundamental cases, the Supreme Court greatly expanded the rights of juveniles.

Many critics point out that these changes made the juvenile justice system look a lot more like the adult system.

In Re Gault (1967) In the landmark case of In Re Gault (1967), the Supreme Court extended many due process rights enjoyed by adults accused of a crime to juveniles .

The facts of the case were rather shocking : A 15-year old boy named Gerald Gault had been sentenced to six years in a state "training school" for making a prank phone call.

If Gerald had been an adult, the maximum penalty for this offense would have been a maximum fine of $50 and a maximum jail sentence of two months .

The Outcome of Gault As most juvenile cases proceeded at that time, Gerald was convicted and sentenced in a shockingly (by today's standards) informal proceeding without the benefit of a lawyer .

In reviewing the case, the court determined that all juveniles risking incarceration had the fundamental rights to have a lawyer for their defense, to confront and examine their accusers in court, and to have adequate notice of the charges against them .

In Re Winship In re Gault represented the beginning of a long series of cases where the court extended rights enjoyed by adults in the criminal justice system to children in the juvenile justice system .

In In ReWinship (1970), t h e co u r t e s t a b lis h e d t h a t t h e s t a t e m u s t e s t a b lis h gu ilt "b e yo n d a re a s o n a b le d o u b t " a s it wa s in a d u lt co u rt s .

Breed v. Jones (1975) In Breed v. Jones (1975) t h e Co u rt e xt e n d e d t h e co n s t it u t io n a l p ro t e ct io n a ga in s t Do u b le Je o p a rd y t o ju ve n ile s wh e n it ru le d th a t ju ve n ile s ca n n o t b e fo u n d d e lin q u e n t in ju ve n ile co u rt a n d th e n t ra n s fe rr e d t o a d u lt co u rt with o u t a h e a rin g o n t h e t ra n s fe r.

McKeiver v. Pennsylvania (1971) There were limits to the number of adult rights that the court was willing to extend to juveniles .

In McKeiver v. Pennsylvania (1971), t h e Su p r e m e Co u rt d e t e r m in e d t h a t ju ve n ile s d o n o t h a ve t h e righ t t o a t ria l b y ju ry.

“Get Tough” and Juveniles During the "get tough on crime" era of the 1980s, juveniles were not immune to toughening sanctions .

In Schall v. Martin (1984) fo r e xa m p le , t h e co u r t d e t e r m in e d t h a t ju ve n ile s co u ld b e h e ld in p re ve n t ive d e t e n t io n if it wa s d e t e r m in e d t h a t th e y p o s e d a ris k o f co m m it t in g a d d it io n a l crim e s wh ile a wa it in g a ct io n b y t h e co u rt s .

Th e re wa s a ls o a b ro a d e n in g o f th e ra n ge o f ju ve n ile s th a t q u a lifie d fo r wa ive r t o a d u lt crim in a l co u rt.

Introduction to Criminal Justice

Section 2.5: Theories of Punishment

Prepared by Adam J. McKee

The Ideology of Punishment

When it comes to criminal sanctions, what people believe to be appropriate is largely determined by the theory of punishment to which they subscribe.

That is, people tend to agree with the theory of punishment that is most likely to generate the outcome they believe is the correct one.

This system of beliefs about the purposes of punishment often spills over into the political arena.

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Political Eras and Corrections

Politics and correctional policy are intricately related.

Many of the changes seen in corrections policy in the United States during this time were a reflection of the political climate of the day.

During the more liberal times of the 1960s and 1970s, criminal sentences were largely the domain of the judicial and executive branches of government.

The role of the legislatures during this period was to design sentencing laws with rehabilitation as the primary goal.

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The “Get Tough” Era

During the politically conservative era of the 1980s and 1990s, lawmakers took much of that power away from the judicial and executive branches.

Much of the political rhetoric of this time was about "getting tough on crime."

The correctional goals of retribution, incapacitation, and deterrence became dominant, and rehabilitation was shifted to a distant position.

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Deterrence

It has been a popular notion throughout the ages that fear of punishment can reduce or eliminate undesirable behavior.

This notion has always been popular among criminal justice thinkers.

These ideas have been formalized in several different ways.

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The Utilitarian Perspective

The Utilitarian philosopher Jeremy Bentham is credited with articulating the three elements that must be present if deterrence is to work: The punishment must be administered with

1. celerity 2. certainty 3. appropriate severity

These elements are applied under a type rational choice theory.

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Rational Choice Theory

Rational choice theory is the simple idea that people think about committing a crime before they do it.

If the rewards of the crime outweigh the punishment, then they do the prohibited act.

If the punishment is seen as outweighing the rewards, then they do not do it.

Sometimes criminologists borrow the phrase cost-benefit analysis from economists to describe this sort of decision-making process.

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General v. Specific

When evaluating whether deterrence works or not, it is important to differentiate between general deterrence and specific deterrence.

General deterrence is the idea that every person punished by the law serves as an example to others contemplating the same unlawful act.

Specific deterrence is the idea that the individuals punished by the law will not commit their crimes again because they “learned a lesson.”

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Criticisms of Rational Choice Theories Critics of deterrence theory point to high recidivism rates as proof that the theory does not work.

Recidivism means a relapse into crime.

In other words, those who are punished by the criminal justice system tend to reoffend at a very high rate.

Others argue that such things as crimes of passion and crimes committed by those under the influence of drugs and alcohol are not the product of a rational cost-benefit analysis.

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A Foundational Theory

As unpopular as rational choice theories may be with particular schools of modern academic criminology, they are critically important to understanding how the criminal justice system works.

This is because nearly the entire criminal justice system is based on rational choice theory.

The idea that people commit crimes because they decide to do so is the very foundation of criminal law in the United States.

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Rationality and the Law

The intent element must be proven beyond a reasonable doubt in almost every felony known to American criminal law before a conviction can be secured.

Without a culpable mental state, there is no crime (with very few exceptions).

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Incapacitation

Incapacitation is a very pragmatic goal of criminal justice.

The idea is that if criminals are locked up in a secure environment, they cannot go around victimizing everyday citizens.

The weakness of incapacitation is that it works only as long as the offender is locked up.

There is no real question that incapacitation reduces crime by some degree.

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At What Cost?

The biggest problems with incapacitation is the cost.

There are high social and moral costs when the criminal justice system takes people out of their homes, away from their families, and out of the workforce and lock them up for a protracted period.

In addition, there are massive financial costs with this model--Very long prison sentences result in very large prison populations that require a very large prison industrial complex.

These expenses have placed a crippling financial burden on many states. 13

Rehabilitation

Rehabilitation is a noble goal of punishment by the state that seeks to help the offender become a productive, noncriminal member of society.

Throughout history, there have been several different notions as to how this help should be administered.

When our modern correctional system was forming, this was the dominant model.

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“Corrections”

We can see by the very name corrections that the idea was to help the offender become a non-offender.

Education programs, faith-based programs, drug treatment programs, anger management programs, and many others are aimed at helping the offender “get better.”

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Does Rehabilitation Work?

Overall, rehabilitation efforts have had poor results when measured by looking at recidivism rates.

Those that the criminal justice system tried to help tend to reoffend at about the same rate as those who serve prison time without any kind of treatment.

Advocates of rehabilitation point out that past efforts failed because they were underfunded, ill-conceived, or poorly executed.

Today’s drug courts are an example of how we may be moving back toward a more rehabilitative model, especially with first-time and nonviolent offenders.

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Retribution

Retribution means giving offenders the punishment they deserve.

Most adherents to this idea believe that the punishment should fit the offense.

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Doctrine of Proportionality

This idea is known as the doctrine of proportionality.

Such a doctrine was advocated by early Italian criminologist Cesare Beccaria, who viewed the harsh punishments of his day as being disproportionate to many of the crimes committed.

The term just desert is often used to describe a deserved punishment that is proportionate to the crime committed.

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Problems with Proportionality

In reality, the doctrine of proportionality is difficult to achieve.

There is no way that the various legislatures can go about objectively measuring criminal culpability.

The process is one of legislative consensus and is imprecise at best.

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Is the System Racist?

The United States today can be described as both multiracial and multiethnic.

This has led to racism.

Racism is the belief that members of one race are inferior to members of another race.

Because white Americans of European heritage are the majority, racism in America usually takes on the character of whites against racial and ethnic minorities.

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Racial Discrimination

Historically, these ethnic minorities have not been given equal footing on such important aspects of life as employment, housing, education, healthcare, and criminal justice.

When this unequal treatment is willful, it can be referred to as racial discrimination.

The law forbids racial discrimination in the criminal justice system, just as it does in the workplace.

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Disproportionate Minority Contact

Disproportionate minority contact refers to the disproportionate number of minorities who come into contact with the criminal justice system.

Disproportionate minority contact is a problem in both the adult and juvenile systems at every level of those systems.

As the gatekeepers of the criminal justice system, the police are often accused of discriminatory practices.

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Racism and the Courts

Courts are not immune to cries of racism from individuals and politically active groups.

The American Civil Liberties Union states,

“African-Americans are incarcerated for drug offenses at a rate that is 10 times greater than that of whites.”

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Legal v. Extra Legal

The literature on disproportionate minority sentencing distinguishes between legal and extralegal factors.

Legal factors are those things that we accept as legitimately, as a matter of law, mitigating or aggravating criminal sentences.

Such things as the seriousness of the offense and the defendant’s prior criminal record fall into this category.

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Extra Legal Factors

Extralegal factors include things like class, race, and gender.

These are regarded as illegitimate factors in determining criminal sentences.

They have nothing to do with the defendant’s criminal behavior, and everything to do with the defendant’s status as a member of a particular group.

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“Disproportionate” One way to measure racial disparity is to compare the proportion of people that are members of a particular group (their proportion in the general population) with the proportion or that group at a particular stage in the criminal justice system.

In 2013, the Bureau of the Census estimated that African-Americans made up 13.2% of the population of the United States.

According to the FBI, 28.4% of all arrestees were African-American.

From this information, we can see that the proportion of African-Americans arrested was just over double what one would expect.

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Drug Offenses

The disparity is more pronounced when it comes to drug crime.

According to the NAACP

“African Americans represent 12% of the total population of drug users, but 38% of those arrested for drug offenses, and 59% of those in state prison for a drug offense.”

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Types of Racism

There are three basic explanations for these disparities in the criminal justice system.

The first is individual racism.

Individual racism refers to a particular person’s beliefs, assumptions, and behaviors.

This type of racism manifests itself when the individual police officer, defense attorney, prosecutor, judge, parole board member, or parole officer is bigoted.

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Institutional Racism

Institutional racism manifests itself when departmental policies (both formal and informal), regulations, and laws result in unfair treatment of a particular group.

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Differential Involvement

A third (and controversial) explanation is differential involvement in crime.

The basic idea is that African-Americans and Hispanics are involved in more criminal activity.

Often this is tied to social problems such as poor education, poverty, and unemployment.

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Beyond a Reasonable Doubt?

While it does not seem that bigotry is present in every facet of the criminal and juvenile justice systems, it does appear that there are pockets of prejudice within both systems.

It is difficult to deny the data: Discrimination does take place in such areas as use of force by police and the imposition of the death penalty.

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