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Chapter 12: Capital Punishment

CHAPTER OVERVIEW After a brief review of capital punishment in colonial and early America, the chapter considers capital punishment in the modern (i.e., post-1972) with particular reference to where executions are occurring and to the characteristics of those executed. The section on capital punishment and the law reviews capital crimes—noting that all executions since 1976 have been for murder with aggravating circumstances—and highlights the key U.S. Supreme Court cases of Furman v. Georgia and Gregg v. Georgia. The characteristics of persons on death row are reviewed and the point is made that most death-row prisoners leave death row without being executed. Key arguments, born for and against, the death penalty are presented with the topics of deterrence, fairness, retribution, and innocence receiving individual attention. The chapter concludes with a discussion of public opinion and the death penalty. CHAPTER LEARNING OUTCOMES

1. Outline the history of capital punishment in the United States. 2. Explain the legal provisions for capital punishment in the United States. 3. Describe the characteristics of death-row prisoners and explain how some leave death-

row without being executed. 4. Summarize the arguments for and against the use of the death penalty. 5. Discuss the influence of public opinion on the death penalty.

LECTURE OUTLINE CAPITAL PUNISHMENT YESTERDAY AND TODAY

• Capital punishment in the U.S. is best viewed as two historical periods; early and modern, with the 1972 Supreme Court decision Furman v. Georgia serving as the dividing event.

A Short History of Capital Punishment in the United States o By the start of the American Revolution, all 13 colonies used the death penalty—

typically by hanging. o Nineteenth century saw more reliance on imprisonment, halting of public executions,

and a move to discretionary rather than mandatory capital punishment. Capital Punishment in the Modern Era o 31 states, the federal government, and the military have death penalty statutes. o Most executions take place in the South, fewest in the Northeast. o All jurisdictions with the death penalty have authorized lethal injection as a method

of execution.

CAPITAL PUNISHMENT AND THE LAW • Constitutional scholars believe the Founding Fathers intended to allow for the death

penalty since it was authorized in all 13 colonies and there are specific provisions in the Constitution that suggest the taking of life is possible.

Entering Death Row o State and federal statues provide for the death penalty for a variety of crimes, but

there has been no execution since 1976 for a crime other than murder with

aggravating circumstances—and it is unlikely that the Supreme Court will allow someone to be executed for a crime not involving murder.

Capital Punishment and the Courts o In Furman v. Georgia (1972) the Supreme Court finds capital punishment to be cruel

and unusual because it was being imposed in an arbitrary and capricious manner. o The Furman ruling was not against capital punishment itself; it was against the way it

was being imposed, so removing the arbitrary nature should allow the death penalty to be constitutional.

o In Gregg v. Georgia (1976) the Supreme Court ruled that Georgia’s new death penalty statute removed the arbitrary nature by creating a bifurcated trial with the first trial stage determines guilt and a second stage to decide sentence of death or life imprisonment.

CHARACTERISTICS OF DEATH-ROW PRISONERS

• Most state prisoners on death row are in the South. • Almost half of all death row prisoners are in CA, TX, and FL. • Most are white non-Hispanic males.

Leaving Death Row without Being Executed o Most death row prisoners leave death row without being executed. o Reasons for removal other than execution include death from other causes, receiving

clemency, and having their sentence or conviction overturned.

ARGUMENTS FOR AND AGAINST CAPITAL PUNISHMENT • Capital punishment has been debated by abolitionists (opposing death penalty) and

retentionists (favoring death penalty) on the basis of many topics, with a few covered here.

Deterrence o Abolitionists argue that the death penalty will not deter the majority of murders

because typically they are emotional, not rational acts. Statistical studies show no measurable relation between homicide rates and the death penalty.

o Retentionists argue that the death penalty’s deterrent effect is achieved through socialization so that the individual comes to internalize the association of act and penalty. Further, some econometric modeling studies find a deterrent effect.

Fairness o Abolitionists argue that the death penalty is applied most often to men, poor people,

and to racial and ethnic minorities whose victims were white—despite murderers also being women, rich people, and Caucasians with minority victims.

o Retentionists argue that if men, the poor, and persons with white victims get the death penalty disproportionately, maybe it’s because they commit capital murder disproportionately. They also say that not executing some who deserve it is no reason to stop executing others who deserve it.

Retribution o Abolitionists argue that retribution simply requires society’s worst punishment be

applied to its worst crime and that if society’s harshest punishment is life imprisonment, that becomes the appropriate penalty for murder.

o Retentionists argue that it is essentially a social law that a wrongful act must be punished, and lex talionis requires that the punishment reflect the crime. So, execution is society’s correct response to murder.

Innocence o Abolitionists argue that whether the number of actually innocent persons executed is

small or large, the possibility of executing an innocent person is reason enough to abolish the death penalty.

o Retentionists argue that the horror of a rare mistake is outweighed by the benefits of execution when it is appropriate.

PUBLIC OPINION AND THE DEATH PENALTY

• Public opinion for the death penalty was often under 50% prior to 1972. • Support peaked at 80% favoring in 1994. • Support has been hovering around 60% the last several years, with the lowest level of

support (60%) occurring in 2013. • The Marshall hypothesis suggests that as people learn more about caprice, bias, and

mistake in the application of the death penalty, life without parole (LWOP) will become the preferred punishment over the death penalty.

ADDITIONAL MATERIAL

1. In December of each year, the Death Penalty Information Center publishes a year-end report. Visit http://www.deathpenaltyinfo.org/reports#YER to find the most recent report.

2. Visit the Gallup webpage on reasons for supporting the death penalty at http://www.gallup.com/poll/178799/americans-eye-eye-top-reason-death-penalty.aspx

3. Assign students (or accept volunteers) to read the Frontline article at http://www.pbs.org/wgbh/pages/frontline/criminal-justice/why-the-death-penalty-is-on- the-decline/ then report on the content to the class. Lead discussion on the four reasons given for why the death penalty is on the decline.

Chapter 13: Juvenile Corrections CHAPTER OVERVIEW The process for handling juvenile offenders is different enough from the way adult criminals are handled as to need separate attention. To provide context, this chapter briefly reviews the history of the juvenile court then describes terms relevant to the juvenile justice system—with comparison to the term used for adults. The process for moving juveniles through the system is described, including both informal and formal proceedings, and a chapter timeline highlights key events from 1899 through 2012. Since the transfer of juvenile offenders to adult court is possible or required in every state, the three models by which that transfer can occur are reviewed. Discussion of juvenile corrections specifically is provided with reference to community-based responses, then to residential-based responses. The chapter concludes by highlighting two especially important issues confronting juvenile corrections today: Disproportionate minority contact, and how girls are provided for in a system designed for boys. CHAPTER LEARNING OUTCOMES

1. Outline the development of the juvenile justice system. 2. Explain the age limits and types of offenses handled in the juvenile justice system.

3. Describe the juvenile court process and the characteristics of juvenile offenders. 4. Explain the procedures by which juveniles can be tried as adults in criminal court. 5. Describe community-based treatment programs for juvenile offenders. 6. Describe juvenile residential facilities and the treatment programs available in them. 7. Summarize issues confronting juvenile corrections.

LECTURE OUTLINE DEVELOPMENT AND OPERATION OF THE JUVENILE JUSTICE SYSTEM

• First juvenile court appeared in 1899 in Cook County (Chicago) IL. • Established to provide for both the care and control of juveniles. • Care function gave juvenile court control over children in need of supervision due to

dependence, neglect, or abuse. • Control function reflected desire to respond to misbehaving juveniles with more

compassion than was present in the criminal justice system. PROCESSING JUVENILE OFFENDERS

• How juveniles are processed through the juvenile justice system differs from the way adults are processed in the criminal court system.

Age Limits: Who Are the Juveniles? o Age of juvenile court jurisdiction varies by state. o The oldest age at which a state’s juvenile court can have jurisdiction over juveniles is

17. That is also the most common upper age limit in the U.S.

Juvenile Offense Categories: Reasons for Coming to Juvenile Court o Situations wherein child/juvenile has been neglected, abused, exploited, or

mistreated. o Situations wherein child/juvenile has committed a status offense (i.e., actions deemed

inappropriate or undesirable when committed by juveniles (e.g., truancy, running away).

o Situations wherein child/juvenile has committed a delinquency offense (i.e., actions that would be criminal if done by an adult—ranging from shoplifting to murder).

JUVENILE OFFENDERS IN JUVENILE COURT

• Juveniles can be referred by police, social service agencies, schools, parents, probation officers, and victims.

• After referral, the case can be handled informally (nonpetitioned) or formally (petitioned).

Characteristics of Juvenile Offenders o Most delinquency cases handled by the juvenile courts involve property offenses as

the most serious charge. o Females make up about 28% of the delinquency cases nationwide, but the proportion

has steadily increased from 19% in 1985. o Most juveniles processed through the juvenile court are white, but black youths are

disproportionately represented. Due Process and Juveniles

o Initially the juvenile court was not adversarial so due process protections were considered unnecessary; but court decisions beginning in 1960s granted some due process protection.

o Right to fair notice of the charges (In re Gault). o Right to representation by counsel (In re Gault). o Right to face and cross-examine accusers (In re Gault). o Privilege against self-incrimination (In re Gault). o Proof beyond reasonable doubt required (In re Winship).

JUVENILE OFFENDERS IN ADULT COURT • Every state allows or requires juveniles to be tried as adults in criminal court under

certain circumstances.

The Three Models o Judicial waiver (juvenile court judge waives jurisdiction). o Direct file (prosecutor decides to try the juvenile as an adult). o Statutory exclusion (criminal courts have original jurisdiction for certain crimes

committed by juveniles). Blended Sentencing o Juvenile blended sentences (juvenile court judge is allowed to impose both juvenile

and adult sanctions on certain categories of serious juvenile offenders). o Criminal blended sentences (criminal court judge may, under some circumstances)

impose juvenile sentences that would typically be available only to juvenile court. Trends in Judicial Waiver o Transfer laws generally expanded dramatically during the 1980s and 1990s. o Today, judicial waivers are being used less often. o Also seeing changes in transfer laws themselves. Some states have limited their

transfer and waiver laws thereby creating more options for juvenile courts.

COMMUNITY-BASED RESPONSES TO JUVENILE OFFENDERS • Juveniles on probation or in the community after residential placement typically

participate in community-based programs. • Teen courts provide an interesting diversion program using court-like procedures wherein

young offenders with less-serious violations can voluntarily have their case heard before a panel of age peers.

• Two effective programs are Functional Family Therapy (FFT) and Multisystemic Therapy (MST).

RESIDENTIAL-BASED RESPONSES TO JUVENILE OFFENDERS

• Juvenile offenders receiving a custodial placement are typically sent to residential facilities such as a camp, group home, or correctional facility

Characteristics of Custody Facilities and the Youths in Them o Half of the facilities are privately operated, but most offenders are held in public

facilities. o The majority of juveniles in custody are being held for delinquency offenses—

usually offenses against persons.

Institutional Programs o Successful programs are those that support mental health issues rather than focusing

on punishment, focus on specific skills such as behavior management or family counseling, involve cognitive-behavioral therapy, and provide aggression replacement training such as anger control.

ISSUES CONFRONTING JUVENILE CORRECTIONS

• Of the many issues to consider, the focus here is on the overrepresentation of minorities and problems presented by girls in a system designed for boys.

Disproportionate Minority Contact o Minority youth ages 10-17 are 25% of the U.S. population but represent about 33%

of juvenile arrests, about 33% of delinquency cases, and 66% of youth in residential placement.

o Factors contributing to the disproportionate residential placement include activities in the juvenile justice system itself, socioeconomic conditions, educational system inadequacies, and family dynamics.

Girls in a System Designed for Boys o Girls are typically placed in programs created for delinquent boys but evaluation of

programs provide little information about their appropriateness for girls. o Given the different developmental pathways—including pathways to delinquency—

followed by females and males, the need for gender-specific programming becomes evident.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES

1. The Marshall Project’s article Who’s a Kid? https://www.themarshallproject.org/2016/10/27/who-s-a-kid#.86Ra2K2SL) presents interesting information and seeming contradictions about our current understanding of behavioral changes throughout the lifespan and whether the justice system is keeping pace.

2. Read the Frontline article at http://www.pbs.org/wgbh/pages/frontline/criminal- justice/stickup-kid/why-states-are-changing-course-on-juvenile-crime/

3. Girl Trouble, an award-winning documentary featured on PBS (see http://www.pbs.org/independentlens/girltrouble/film.html) looks at three teenagers in San Francisco’s juvenile justice system over a four-year period.

Chapter 14: Revisiting Evidence-Based Practices and What Works

CHAPTER OVERVIEW In this concluding chapter the concept of evidence-based practices is reemphasized by reviewing some of the “what works” examples that have been given throughout the book. Cognitive behavioral approaches are highlighted as being especially effective and quite versatile since they can be used in both residential and community-based settings. In addition to reviewing the effective programs and practices, the chapter includes brief discussion of financial considerations related to corrections and the need for more rationality in corrections policy. The chapter, and the book, concludes with some ideas about the future of corrections.

CHAPTER LEARNING OUTCOMES 1. Summarize evidence-based practices that work in corrections to reduce recidivism. 2. Articulate how the corrections system can become “Smart on Crime.”

LECTURE OUTLINE WHAT WORKS IN CORRECTIONS

• The key is to use techniques and programs shown to reduce recidivism or drug abuse and to discard those that don’t.

Revisiting Correctional System Expectations Versus Stated Mission o Although mission statement of correctional institutions can be diverse, there is

invariably an emphasis on public safety, followed by such goals as rehabilitation, incapacitation, and reintegration.

o New themes include staff/inmate safety, humane treatment of inmates, use of evidence-based techniques, and cost-efficient practices.

Cognitive Behavioral Treatment o The most effective type of treatment for offenders is the cognitive behavioral

approach. o Assumes that behavioral change can only occur by understanding that there are errors

in the way offenders think about certain issues. Community Supervision o People most likely to be successful on probation are over age 30, have stable

employment, had at least a high school diploma or GED certificate, has completed treatment, and lives in a stable housing situation surrounded by positive family support.

Jail and Prison o Unlike community-based corrections and treatment programs, jails and prisons have

fewer options for evidence-based practices that work to reduce long-term recidivism. o Learning new skills while incarcerated (e.g., increasing education levels and

employment skills) can help with reentry.

COST SAVINGS BEST PRACTICES • Need to get the best return on invested dollars. • Prison industry, long-term drug treatment, and education programs are the three most

beneficial programs compared to their costs. RETURNING RATIONALITY TO CORRECTIONS POLICY Being Smart on Crime

o U.S. Department of Justice review of the criminal justice system resulted in the Smart on Crime initiative.

o One recommended change was decentralization in order to allow each federal prosecutor to create their own agenda for identifying crime problems and needs that are unique to their district.

o Another change was to reduce federal prison sentence lengths for drug offenders without ties to large-scale criminal organizations.

o A third change was to make eligible for community-based prison alternatives offenders who did not pose a threat to public safety.

o Increasing the eligibility for seeking compassionate release was a fourth change.

o A final change was to increase reentry efforts in each federal district. THE FUTURE OF CORRECTIONS

• Top four critical issues to be addressed in the near future are (1) supervision and care of mentally ill offenders, (2) correctional staff recruitment and retention/wellness, (3) reducing the use of administrative segregation, and (4) better management of correctional population increases.

• Chapters 6 and 7 included discussion of the first three, so now we look at managing the correctional population. Performance-Based Measures • Today, programs receiving funding are expected to meet performance-based

measures (e.g., recidivism reduction, decreasing revocations back to jail, increasing employment raters).

• Justice Reinvestment Initiative works alongside performance-based measures to reward states for reducing incarceration costs.

• Money saved when imprisonment is used less should be used to build infrastructure in high-crime neighborhoods.

• We should focus less on offender deficits and more on positive behavior and investment in vulnerable communities.

ADDITIONAL ASSIGNMENTS AND CLASS ACTIVITIES

1. If you have not been visiting CrimeSolutions.gov (see http://www.crimesolutions.gov/TopicDetails.aspx?ID=2) during the term, now would be a good time to do so!

2. The “what works/what doesn’t” list provided in Figure 14-1 provides topics for discussion—especially from the “doesn’t work” column. Learn why Scared Straight programs (see http://www.crimesolutions.gov/PracticeDetails.aspx?ID=4) and DARE programs (see http://www.crimesolutions.gov/ProgramDetails.aspx?ID=99) are identified as showing no effect.