Factors in Judicial Decision-Making

CHAPTER 9 Crime and Procedures prior to a Criminal Trial

Defendant George Zimmerman, accused of shooting Trayvon Martin, arrives for his second bond hearing in Seminole County circuit court, Sanford, Florida.

This is the first of three chapters that examine U.S. courts from a courtroom procedure perspective. This chapter analyzes the criminal process—from the stage when a law is first broken to subsequent stages such as arrest and indictment. Chapter 10 focuses on the criminal trial itself and its aftermath, such as sentencing and the appeals process. Finally, Chapter 11 examines the civil process in the same manner to provide a sense of how the system looks and feels to a litigant or observer. Keep in mind that there is no such thing as a single criminal or civil court process in the United States. Instead, the federal system has a court process at the national level, and each state and territory has

its own set of rules and regulations that affect the judicial process. Norms and similarities do exist among all of these governmental entities, and our discussion will focus primarily on them, but we wish to emphasize that no two states have identical judicial process systems, and no state’s system is identical to that of the national government.

The Nature and Substance of Crime “The way you treat me is a crime,” a mother scolds her headstrong teenager, who has been rude to her for the umpteenth time that day. Comments such as this are heard with some frequency in today’s world. Although it is clear what the mother is getting at, in the literal sense no crime has been committed. Being discourteous to one’s parents may be wrong and immoral, but in the United States, at least, it is not a crime because it does not violate any specific law. The nature of criminality can be understood by this example. An act is not automatically a crime because it is hurtful or sinful. (Only about half of the Ten Commandments are enforced by criminal law.) An action constitutes a true crime only if it specifically violates a criminal statute duly enacted by Congress, a state legislature, or some other public authority.

We should also keep in mind that the notion of what is considered a crime varies markedly from one nation and culture to another. For example, on April 3, 2015, the French parliament passed a law criminalizing the use of advertisements with “anorexic models.”1 “Modeling agencies would have to produce a medical report showing that their models have maintained a healthy mass-to-height ratio.… A second change in the law would make it a crime to glorify ‘excessive thinness,’ which would target those who run pro-anorexia websites, punishable by up to one year in prison and 10,000 euros in fines.”2 Or, in the country of Malawi, a person convicted of being gay can be sentenced to fourteen years in prison with hard labor.3 Or, in Germany, it is a crime to deny the full scope of the Holocaust, as renegade bishop Richard Williamson found out in 2011. He was fined 10,000 euros ($14,500) for saying that “no more than 300,000 Jews perished in Nazi concentration camps … not one of them by gassing in a gas chamber.”4

A good working definition of a crime, then, is that it is an offense against the state, punishable by fine, imprisonment, or death. A crime is a violation of obligations due the community as a whole and can be punished only by the state. The sanctions of imprisonment and death cannot be imposed by a civil court or in a civil action (although a fine may be either a civil or a criminal penalty).

In the United States there are a great variety of crimes. Most of them are sins of

commission, such as aggravated assault and embezzlement; a few are sins of omission, such as failing to stop and render aid after a traffic accident or failing to file an income tax return. The state considers some crimes serious (such as murder and treason), and this seriousness is reflected in the corresponding punishments (such as life imprisonment or the death penalty). The state considers other crimes only mildly reprehensible (such as double parking or disturbing the peace), and punishments are akin to an official slap on the wrist (such as a light fine or a night in the local jail).

Some crimes constitute actions that virtually all citizens regard as outside the sphere of acceptable human conduct (such as kidnapping or rape), whereas others involve actions about which opinion may be divided. Relevant laws include an 1897 Michigan statute (recently upheld and used) that can put someone in jail for up to ninety days and impose a fine of $100 for cursing in front of a child; a Nebraska statute that forbids bingo games at church suppers;5 and Mississippi, Michigan, and Florida laws that forbid unmarried couples from living together under the same roof (such living arrangements are regarded as “lewd and lascivious”). Other criminal statutes lamely reflect the standards and mentality of long-gone eras and are no longer enforced. For example, in March 2012 the noted radio talk show host Rush Limbaugh cruelly referred to women’s rights activist Sandra Fluke as a “slut” and a “prostitute” because of her testimony before a congressional committee in support of a national health care policy that would compel her Catholic college’s health plan to cover her birth control. In retaliation, one high- profile Florida attorney called for Limbaugh to be prosecuted under an obscure 1883 law “making it a misdemeanour to question a woman’s chastity.”6 (The local district attorney chose not to follow up on the Florida attorney’s advice.)

The most serious crimes in the United States are felonies. In a majority of the states a felony is any offense for which the penalty may be death or imprisonment in a penitentiary (a jail is not a penitentiary); all other offenses are misdemeanors or infractions. In other states (and under the various federal statutes on the subject) a felony is an offense for which the penalty is punishable in excess of one year in prison. Thus felonies are differentiated in some states according to the place where the punishment occurs. In some states and according to the federal government the length of the sentence is the key factor. Examples of common felonies include murder, forcible rape, and armed robbery.

Misdemeanors are regarded as minor crimes by the state, and their punishment usually consists of confinement in a city or county jail for less than a year. Public drunkenness, small-time gambling, and vagrancy are common examples of misdemeanors. Some states have a third category of offenses known as infractions. They often include minor traffic offenses (such as parking violations), and the penalty is usually a small fine. Fines

may also be part of the penalty for misdemeanors and felonies.

Categories of Crime A useful way to consider various types of crime is to sort them according to their public policy implications.7 Five broad categories that constitute the primary offenses against the state in the United States today are conventional, economic, syndicated, political, and consensual.

Conventional Crimes Conventional crime is not a legal term; rather, it is a journalistic phrase. It refers to those crimes that are most commonly referred to on routine television news, that are found in the daily newspaper crime report, and that are on the lips of the general public when they lament “the crime problem.” That is, conventional crimes tend to fall into the category of a thief breaking into a home, someone being mugged in the parking lot of a mall, or a hold-up at a local liquor store. The term tends not to refer to less visible white- collar crimes or to more exotic criminal activity, such as treason or industrial espionage.

Property crimes make up the lion’s share of the 10,000,000 conventional crimes committed annually in the United States. In 2013 the U.S. Justice Department determined that 88 percent of all offenses (somewhat less than nine million) were crimes against personal property, and 12 percent were crimes of violence (1,163,146).8 The government differentiates property crimes such as these from crimes of violence, although the two often go hand in glove. The thief who breaks into a house and inadvertently confronts a resistant owner is likely to be involved in more than just the property crime of burglary.

The less numerous, but more feared, conventional crimes are those against the person. These crimes of violence include murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault. In 2013, for every 1,000 persons aged twelve or older, there occurred 27 rapes or sexual assaults, 241.5 assaults with serious injury, and 113.9 robberies.9 Murders were the least frequent violent victimization—about 4.7 victims per 100,000 persons.10 The good news is that violent crime has slowly been on the decline in the United States since 1994. The reasons why are not entirely clear. Some speculate that the decline has been due to our aging population in the United States—that is, older persons are less likely to engage in crimes of violence than are younger members of society.

In our discussion of crime numbers and trends, it might be insightful to compare statistics in the United States with those of other nations that have similar traditions and also keep good records. The conventional wisdom is that America is the most crime- infested nation among the modern industrial democracies. In actual fact, crime has been declining dramatically in the United States, as just noted, and many Western democracies have crime rates much higher than that in the United States. For example, according to a study by the Bureau of Justice Statistics, the United States “had a lower surveyed residential burglary rate … than Scotland, England, Canada, the Netherlands, and Australia. The other two countries included in the study, Sweden and Switzerland, had only slightly lower burglary rates.” Still, American homicide rates are among the highest in the industrialized world.11 But comparing a country with a diverse population such as the United States with other, somewhat more homogeneous populations ignores important demographic differences. For example, slightly more than 10 percent of the American population is composed of African Americans, but more than 47 percent of the murder victims are black.12 Nonetheless, the United States seems quite tame compared with its neighbor to the south, Brazil, whose

murder rates are the world’s highest for a country not at war, according to the World Health Organization. About 40,000 Brazilians a year die in homicides, most due to gun violence. By comparison, guns kill about 29,000 Americans a year. Because Brazil’s population is a little more than half the U.S. total of 292 million, its gun-death rate is actually more than double the U.S. rate.13

Indeed, Brazilian president Dilma Rousseff announced on International Women’s Day on March 8, 2015, that there would be “strict new punishments for the killing of women and girls in a country where an average of 15 women are killed every day.”14

And with our Mexican neighbor to the south, “estimates of the number of murders related to organized crime since 2007 range from 75,000 to more than 150,000.”15

Economic Crimes Most thoughts about crime turn toward conventional criminal activity. Americans fear having someone break into their homes and hope that the scam artist who engages in identity theft is sent to jail for a long time. They want most of the nation’s police resources devoted to combating these conventional, personally threatening crimes. Yet in dollars-and-cents terms, conventional crimes are not where the money is; the cost of

economic crimes robs the nation blind. No two scholars can agree on the annual cost of such crimes because the vast majority of them remain undiscovered and unreported, but a conservative estimate would put the price tag at well over $1 trillion.

What are economic crimes? It would be too narrow a definition to call them just white- collar crimes because this definition disregards the fact that many such crimes are committed by persons outside their occupations—for example, a person filing a grossly inflated insurance claim or a person operating a “Ponzi” scheme to lure unsuspecting investors. Criminal justice professionals often refer to crime in this broad category as “transfers,” which suggests the cost of property and money that is stolen or obtained through fraud. Simple fraud is estimated to cost the nation a whopping $203 billion; unpaid taxes account for $123 billion; health insurance misrepresentation accounts for $108 billion; and auto theft takes in some $8.9 billion. Even something as seemingly innocuous as coupon fraud racks up $912 million annually.16

A conspicuous example of a highly costly economic crime came to public attention in 2008—the Ponzi scheme created by disgraced investment guru Bernard “Bernie” Madoff. For years, Madoff quietly and meticulously paid out generous but fake profits to early investors from funds deposited by later ones. Most of the invested money he simply kept or spent on opulent mansions, pleasure boats, jewelry for his wife, and lavish international travel. And how much did this quiet and unnoticed fraud net the unassuming and highly trusted Madoff? The unprecedented and astonishing sum is estimated at $65 billion!17 One relatively new type of economic crime is referred to as “information theft.” “Every year [computer] hackers steal roughly $300 billion worth of information, from intellectual property to classified state secrets, according to a 2013 study by the Center for Strategic and International Studies.”18

In addition to being extremely costly to the American people, economic crimes have two other characteristics that make them relevant to some of the broader themes of this chapter. First, economic crimes are harder to detect and prove in court than are other conventional crimes. Convicting a thief who has been caught red-handed running out of a jewelry store with a bag of watches and diamonds is a relatively easy and routine endeavor. Not so with most economic crimes. For example, some time ago a Harris County (Houston), Texas, commissioner was accused of accepting an illegal gift from a contractor. The contractor had paved a mile-long driveway from the commissioner’s home to a nearby highway. “It was just an anniversary gift to me and my wife,” said the commissioner. It took two juries (one of them was hung), enduring weeks of testimony and deliberation, before the court could finally determine that a crime had been committed.

Because most citizens do not regard economic crimes to be as serious as burglary or assault, fewer law enforcement resources are earmarked for these illegalities. Also, sentencing judges and juries look much more kindly on the stockbroker whose “misjudgment” caused her to engage in a little illegal insider trading (after all, she didn’t hurt anyone, did she?) than on the young pickpocket who was caught separating someone from his wallet.

Syndicated, or Organized, Crimes Syndicated crime differs from others addressed here in that it is engaged in by groups of people and is often directed on some type of hierarchical basis. It represents an ongoing activity that is inexorably entwined with fear and corruption. Organized crime may be manifested in a variety of ways, but it tends to focus on several areas that are particularly lucrative—namely, trafficking in illegal drugs (such as cocaine or marijuana), gambling, prostitution, and loan-sharking. The latter is money lending at exorbitant interest rates as well as high repayment rates. (Failure to pay may net the borrower a broken thumb, or worse.) Figures on the cost of organized crime are not readily available, but no one doubts that it totals hundreds of billions of dollars annually. The figure for domestic illegal drug trafficking is set conservatively at $160 billion!19

Political Crimes The usual meaning of political crime has been that it constitutes an offense against the government: treason, armed rebellion, assassination of public officials, and sedition. (Sedition refers to any illegal actions that would promote the overthrow of the lawful government—e.g., a speech calling for the immediate overthrow by force of the duly constituted government.) However, in recent decades legal scholars have begun using the term to include crimes committed by the government against individual citizens, dissident groups, and foreign governments or nationals. The disclosures in the early part of the century by the government that the George W. Bush administration, with very questionable legal authority, routinely bugged the telephones of perhaps thousands of private citizens (suspected of terrorist links) is an example of this murky category of “political crime.” In 2012 President Barack Obama signed into law the National Defense Authorization Act, which many believe has authorized the military, rather than the American legal system, to detain American citizens suspected of subversive activity.20 More recently, beginning in June 2013, the highly controversial Edward Snowden began leaking to the public countless National Security Agency documents (which he himself had stolen!) that indicated that the Central Intelligence Agency and the National Security Agency had illegally spied on thousands of private citizens and world leaders

across the globe. The entire magnitude of Snowden’s disclosures of illegal activity by the American government is yet to be fully assessed.21 Finally, it is noteworthy that our Foreign Intelligence Surveillance Court has been subject to recent criticism for approving far too much electronic eavesdropping on American citizens (allegedly for possible terrorist activities). “Judges on the secret court have quietly approved nearly 33,000 of the nearly 34,000 applications for foreign and domestic surveillance warrants submitted since 1979, according to annual Justice Department reports to Congress. The judges denied only 13 applications and required modification of 498 others before granting approval.”22

Several factors complicate any analysis of political crimes and of how judges and juries ought to, and do, respond to them. One factor is that ordinary crimes can be committed to make a political point under the guise of what legal scholars call symbolic speech. When anti-abortion activists are jailed for blocking the entrance to an abortion clinic, are they being punished for an ordinary act of criminal trespass or for their moral beliefs? When large groups of individuals decide to reside full-time in a public park as part of the “occupy movement,” are they making a constitutionally protected statement about economic inequalities in the United States, or are they merely vandals and vagrants who deserve incarceration? Questions such as these often bedevil the judges and juries who must address the would-be political criminal.

In this same vein, the demarcation between the political crime and its conventional counterpart is often blurred when the government chooses unpopular persons or dissidents for meticulous application of a law that would not be enforced against ordinary folk. An unpopular group of protesters may suddenly find themselves under arrest for parading without a permit or for disorderly conduct, whereas a loud and drunken band of revelers may have passed by an hour before without action by the authorities. A minority youth may be arrested for vagrancy or trespassing if he is found walking at night in an all-white neighborhood “where he clearly doesn’t belong.” (This was illustrated in February 2012 when the black, hooded youth Trayvon Martin was slain in a largely white community where neighborhood-watch captain George Zimmerman told authorities the teen “looked suspicious.”23) The values and attitudes of American judges and juries are sorely tested when such cases appear before them in court.

Consensual Crimes A final category is the so-called “victimless” crime, such as prostitution, gambling, illegal drug use, and unlawful sexual practices between consenting adults. Such crimes

are called consensual because both perpetrator and client desire the forbidden activity, but to call them all “victimless” sticks in the throats of many people. The children whose parents spend their money and time on drugs rather than on properly caring for them may well regard themselves as victims. And tidy homeowners whose streets suddenly become part of a prostitution circuit and whose shrubbery begins to serve as both bedroom and bathroom clearly would not agree that this activity is victimless. Nevertheless, because a great number of Americans question whether many of these consensual activities should be proscribed by the criminal code, difficult problems are created for law enforcement officials, judges, and juries.

A significant amount of discretion exists at all levels of the judicial process. The way in which decision makers exercise this discretion is a function of their values and attitudes. Because attitudes about consensual, or victimless, crimes vary significantly among police officers, the public at large (and the potential jurors they represent), and judges, studies not surprisingly reveal great differences in how the judicial system treats participants in consensual criminal activity.

Elements of a Crime In theory, at least, every crime has several distinct elements. Furthermore, unless the state is able to demonstrate in court the existence of these essential elements, there can be no conviction. Although the judicial process in the courtroom may not focus separately and distinctly on each of these elements, they are at least implicit throughout the entire process of convicting someone of a criminal offense.

A Law Defining the Crime and the Punishment If an act is to be prohibited or required by the law, a duly constituted authority (usually Congress or a state legislature) must properly spell out the matter so that the citizenry can know in advance what conduct is prohibited or required. The lawmakers must also set forth the penalties to be imposed upon the individual who engages in the harmful conduct. If no definition of the illegal act has been provided, and no penalty has been prescribed, there is no crime.

Several years ago one of the coauthors of this book served on a state grand jury, and on a number of occasions a sheriff’s deputy presented evidence on a pyramid club scheme that he had been investigating. Persons, often elderly and living alone, were persuaded to buy membership shares in the club and then asked to recruit other members. The original purchaser of the club membership would receive a percentage of the

membership fees of all the new members, and so on. Some would make money from this scam, but ultimately most people would be left holding the bag.

Before long, a majority of the grand jurors were persuaded that an indictment was in order, and the district attorney (DA) was so informed. After a day or so of delay, the DA appeared and said: “What this club is doing is wrong and shameful and people are being victimized, but in this state there is no law against pyramid schemes. You can do nothing.” As the Latin maxim succinctly puts it, nullum crimen sine lege—no crime without law.

Several corollaries to this general principle also serve as grist for the criminal justice mill. One is that the U.S. Constitution forbids criminal laws that are ex post facto—that is, laws that declare certain conduct to be illegal after the conduct has taken place. Past harmful or undesirable actions may not be declared criminal under the U.S. legal system. Likewise, the state may not pass bills of attainder, which single out a particular person or group of persons and declare that something is criminal for them but legal for everyone else. In the United States, if an action (or inaction) is to be considered criminal, it must be so for all citizens.

A final corollary is that a law defining a crime must be precise, so that the average person can determine in advance what conduct is prohibited or required. As the U.S. Supreme Court has put it, a statute defining a crime must be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to penalties.”24 Imagine the ease (and, perhaps, fun) with which the Supreme Court struck down the following Jacksonville, Florida, municipal vagrancy ordinance. Imagine, too, how many people could go very many days without running afoul of at least some of its all-encompassing proscriptions. Criminal penalties were levied against

rogues and vagabonds; dissolute persons who go about begging; common gamblers; persons who use juggling or unlawful games or plays; common drunkards; common night walkers, thieves, pilferers, or pickpockets; traders in stolen property; lewd, wanton, and lascivious persons; keepers of gambling places; common railers and brawlers; persons wandering or strolling around from place to place without any lawful purpose or object; habitual loafers; disorderly persons; persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served; and persons able to work but habitually living on their wives or minor children.25

But the United States is not the only country that has (or had) laws that were so vague and open-ended that they could be construed in almost any way by legal authorities. For example, in the spring of 2015 five Chinese women activists were arrested for their public campaign against sexual harassment on public transportation and for obtaining more restroom facilities for women. The charge on which they were arrested was “picking quarrels and provoking trouble.”26 Imagine the unbridled discretion that this would give to police officers and judges to arrest and convict someone under a vaporous statute such as this!

In addition to defining the crime, the law must have a formal penalty attached to it. Traditional jurisprudence has always held that the punishment is an integral part of the crime. A number of years ago the state of Wyoming sought to convict a man for practicing medicine without a license. The accused unquestionably was actively prescribing medicines and even performing operations. During his trial it was noticed that the law forbidding unlicensed medical practice said not a word about what would happen to someone who did it. The judge was forced to instruct the jury to bring in a verdict in favor of the accused. The “doctor” promptly decided to leave town, and the Wyoming legislature soon added a penalty clause to the statute.

The Actus Reus Actus reusActus reus is a Latin phrase meaning the criminal action committed by the accused that gives rise to the legal prosecution. The actus reus is the material element of the crime and will vary from one offense to another. This element may be the commission of an action that is forbidden (for instance, assault and battery), or it may be the failure to perform an action that is required (for instance, a person’s refusal to stop and render aid to the victim of a motor vehicle accident).

The Mens Rea The mens reamens rea is the essential mental element of the crime. An old legal axiom holds that “an act does not make the doer of it guilty, unless the mind be guilty; that is, unless the intention be criminal.” The American legal system has always made a distinction between harm that was caused intentionally and harm that was caused by simple negligence or accident. “Even a dog,” said Justice Oliver Wendell Holmes, “distinguishes between being stumbled over and being kicked.”27 Thus, if one person takes the life of another, the state does not always call it murder. If the killing was done with malice aforethought by a sane individual, it will likely be termed “murder in the first degree.” But if the killing occurred in the passion of a barroom brawl, it would

more likely be called “second-degree murder,” which carries a lesser penalty. Reckless driving on the highway that results in someone’s death would correspondingly be considered “negligent homicide”—a wrong, to be sure, but less serious in the eyes of the state than the intentional killing of another.

Sometimes the judge or jury’s determination of the mens rea defines the crime itself. Suppose that Police Officer Nelson comes on Wino Willie lying inside a television warehouse on a cold winter’s night. An arrest is made, but what should be the charge and the crime for eventual conviction: burglary or simple criminal trespass? Burglary is defined as “entering a building without the consent of the owner with the intent to commit theft,” whereas trespass means “to enter a building or habitation without the effective consent of the owner.” Did Willie break into that warehouse to steal televisions or to keep warm while he drank? The determination of the mens rea will influence whether Willie’s time away from society is several years or a few months.

An Injury or Result Except for regulatory crimes in which a definition of the injury is abstract (for example, an illegal merger of two large airlines), a crime consists of a specific injury or a wrong perpetrated by one person against another. The crime may harm society at large, such as selling military secrets to a foreign government, or the injury may be inflicted on an individual and, because of its nature, is considered to offend society as a whole. The nature of the injury, as with the mens rea, often determines the nature of the crime itself. For example, consider two hotheads who have been cutting each other off in traffic. Finally they both stop their cars and come out fighting. Suppose one of them hits the other so hard that he dies. The crime may be murder (of some degree). If the man does not die but suffers serious bodily harm, the crime is aggravated assault. If the injury is minor, the charge may be simple assault. Because the nature of the injury often determines the offense, it is frequently asserted that the nature of the injury is the key legal element of the crime.

Some actions may be criminal even though no injury is inflicted. Most instances of criminal conspiracy fall into this category. For instance, if several persons were to plan to assassinate a judge or to bribe jurors in an attempt to keep a criminal from being convicted, the crime would be conspiracy to obstruct justice. This would be a crime even if the judge went unharmed and no money was ever passed to the jurors. All that is required is that the crime be planned and intended and that some specific, overt act be taken by one of the conspirators in furtherance of their plan (such as the purchase of a weapon or possession of a map of the route that the judge takes from his or her home to the courtroom).

A Causal Relationship between the Action and the Resultant Injury Before there can be a conviction for a criminal offense, the state must prove that the conduct of the accused was the proximate cause of the injury or result. This means that the defendant, acting in a natural and continuous sequence, produced the harmful situation. In other words, without the defendant’s conduct, there clearly would have been no harm or injury. Proving a causal relationship is usually not difficult. If A stabs B with a knife and inflicts a minor wound, then A is guilty of assault with a deadly weapon. But what if B does not obtain proper medical care for the wound, develops an infection, and subsequently dies? Is A now guilty of manslaughter or murder? Or what if after being stabbed, B stumbles across a third party and causes injury to her? Is A to blame for this, too?

Resolution of questions such as these is often difficult for judges and juries. The law requires that all circumstances be taken into account. The accused can be convicted only if the state can prove that his or her conduct is the direct, immediate, or determining cause of the resultant harm to the victim. If other circumstances have come into play, the question becomes: Was the injury inflicted by the defendant sufficient to cause the result, had the intervening factor(s) not occurred? Only if the harmful consequences were beyond the control of the accused or were not a natural or probable consequence of his or her actions is the defendant free from criminal liability.

Procedures prior to a Criminal Trial Before a criminal trial can be held, federal and state laws require a series of procedures and events. Some of these stages are mandated by the U.S. Constitution and state constitutions, some by court decisions, and others by legislative enactments. Custom and tradition often account for the rest. Although the exact nature of these procedural events varies from federal to state practice—and from one state to another—some basic similarities exist throughout the country. The focus in this discussion will be on the common patterns, but differences will be indicated whenever possible. Furthermore, note that several procedures are not as automatic or routine as they might appear. At all stages the decision makers exercise ample discretion according to their values, attitudes, and views of the world.

The Arrest

There are over 1 million law enforcement officials28 today (not counting some 1.5 million private security guards). These personnel, along with corrections and judicial activities, cost the American taxpayer more than $214 billion annually.29 Each year these officers make more than 11 million arrests (not counting traffic offenses).30 Arrest is significant because it represents the first substantial contact between the state and the accused. The U.S. legal system provides for two basic types of arrest—those with a warrant and those without.

A warrant is issued after a complaint, filed by one person against another, has been presented and reviewed by a magistrate who has found probable cause for the arrest. Arrests without a warrant occur when a crime is committed in the presence of a police officer or when an officer has probable cause to believe that someone has committed (or is about to commit) a crime. Such a belief must later be established in a sworn statement or testimony. In the United States up to 95 percent of all arrests are made without a warrant. The U.S. Supreme Court has the last word on the subject of whether a formal warrant is needed for an arrest or for a search that might lead to an arrest.

Something of a landmark decision concerning warrants was handed down by the Supreme Court early in 2012, when the justices unanimously ruled that police violated the Constitution when they placed a global positioning system (GPS) device on a suspect’s car without first obtaining a warrant to do so.31

An officer’s decision to make an arrest is far from simple or automatic. To be sure, the officer who witnesses a murder will make an arrest on the spot if possible. But most lawbreaking incidents are not that simple or clear-cut, and police officials possess—and exercise—wide discretion about whether to take someone into custody. The police simply do not have sufficient resources to enable them to proceed against all activities that Congress and the legislatures have forbidden. Consequently, discretion must be exercised in determining how to allocate the time and resources that do exist. To deny police discretion at the point of arrest, said political scientist Thurman Arnold, would be “like directing a general to attack the enemy on all fronts at once.”

Criminal justice scholars have identified several areas in which police discretion is at a maximum: (1) minor or trivial offenses; (2) situations in which the victim will not seek prosecution; (3) cases in which the victim is also involved in misconduct; and (4) criminal conduct thought to reflect the mores of a community subgroup.

Trivial Offenses.

Many police manuals advise officers that when minor violations of the law are concerned, a warning is a more appropriate response than a formal arrest. This not only makes common sense for borderline, trivial offenses but also reserves law enforcement resources for more serious conduct. Traffic violations, misconduct by juveniles, drunkenness, gambling, vagrancy, and use of the services of a prostitute all constitute less serious crimes and entail many close judgment calls by police.

The use of a warning instead of making an arrest or issuing a ticket is common for minor traffic violations. The officer’s discretion in such situations is so well known to the motoring public that an errant driver’s plea has almost become a cliché: “Couldn’t you just give me a warning this time, officer?” The following interview with Adrian Speir, former state director of the Texas Department of Public Safety, is instructive about discretion and the allocation of police resources in general:

“We just don’t have enough manpower to have as much law enforcement as it takes to bring about voluntary compliance [with the speed limit laws] on a statewide level,” Speir said. “On a typical day, 578 highway patrol units are on duty, or an average of one for every 122 miles. Troopers have other things to do besides clock speeders—chase drunk drivers, appear in court, enforce criminal laws, answer accident calls, and the like. So, choices must be made, limits drawn,” says Speir.

“Our people are instructed to enforce the law and to file a case in speeding when they are convinced there is a substantial violation of the law,” he said. What is a “substantial violation”? “We mean a degree that would get a person above the arguments of nominal speedometer error, tire slippage, human error in reading the radar. We do not encourage our people to be too technical. We are trying to get above the argumentative stage,” he said. So when do you pass the argumentative stage?

“I am not going to tell you that they have got a three-mile … tolerance or a five-mile tolerance. If I … [did], then people out in the state could drive that much above the limit,” Speir said. He added that other factors might enter into a trooper’s decision whether to write a speeding ticket, such as whether a driver was weaving in and out of traffic or using a car with defective equipment. Then, he said, “some counties are stricter about prosecution than others. If the county attorney feels five or six miles over the limit is not substantial, then that would indicate he would be batting his head against a

brick wall if he filed cases under that limit.”32

Another illustration of police discretion in minor crimes is the handling of gambling offenses. Although someone conducting a big-time, syndicated gambling operation might be arrested, the friendly little neighborhood poker game is often ignored by police officials. The former head of the Houston vice squad once told a group of prospective grand jurors that “if respectable groups are engaged in gambling, such as church groups, only a warning is issued—and even then only after a complaint had been received…. If Sister Rosita is running a church bingo game, I’m sure not going to arrest her. I just wasn’t raised that way.”33

Whether to arrest the john who procures the intimate favors of a prostitute is also subject to police discretion, and officers are frequently under pressure to turn a blind eye. Houston’s former head of the vice squad says, “It is not the policy of the police department to enforce the law which makes it illegal for a man to be in the company of a prostitute. Why, the man might be someone with a family or a bank president! Also, we have a lot of big conventions here in town, and when the men come here … they like to have a little fun. If you start arresting these people, they wouldn’t hold their conventions here anymore, and then we’d have the mayor and all the restaurant and hotel owners on our backs.” (Tourism and conventions in Houston bring in about $16 billion annually and employ about 100,000 people.)34

Finally, evidence exists that the demeanor of the accused may influence the officer’s decision. The following quotation from an interview conducted by one of the coauthors of this book with an anonymous police officer is insightful, and its portrayal of reality is supported by much empirical evidence:

Q:In these minor sorts of cases, how do you determine whether to make an arrest?

A:Well, lots of times it depends on whether the guy’s got an attitude problem.

Q:A what?

A:An attitude problem. I mean, if he’s a smart ass and starts arguing with you and gets real lippy, we’ll probably take him in. But if he’s decent and admits he’s wrong, we’ll probably let him go. I mean, nobody enjoys filling out forms for hours on end that you got to do after you make an arrest.

Victim Will Not Seek Prosecution.

Nonenforcement of the law is also the rule in situations where the victim of a crime will not expend his or her own time to help the state in the successful prosecution of a case. A crime victim may not cooperate with the police in making an arrest for a variety of reasons. In the instance of minor property crimes, the victim is often interested only in restitution; if that occurs, the victim may be satisfied. For example, when people are caught shoplifting, merchants frequently are unwilling to prosecute, asserting that they cannot afford the time away from the store to testify in court or they do not want to risk a loss of goodwill. Unless the police have already expended considerable resources in investigating a particular property crime, they are generally obliged to abide by the victim’s wishes.

When the victim of a crime is in an ongoing relationship with the criminal, the police often decline to make an arrest. Such relationships include landlord and tenant; two neighbors (did X have a right to chop down Y’s tree because its leaves continued to fall on X’s yard?); and, until recently, husband and wife. In the latter case, however, heightened media coverage of domestic violence has had a significant impact on police procedures. An increasing number of studies by criminologists have indicated that arrests in domestic violence cases were effective in protecting the victim.35 These and similar studies contributed to the passage of mandatory arrest laws now in effect in about a third of the states.36

Rape and child molestation constitute another major category of crimes for which there are often no arrests because the victims will not or cannot cooperate with the police. The victim is often personally acquainted with, or related to, the criminal, and the fear of reprisals or of ugly publicity is sufficient to inhibit pressing a complaint. Or, if the victim is a child, he or she seldom has the power or capacity to lodge any type of protest or formal complaint. For instance, fewer than half of all rapes and considerably fewer than half of all cases of child molestation are ever reported to the police. And in many cases that are reported, victims (or their parents) have second thoughts about prosecution, and the charges are subsequently dropped.

Victim Also Involved in Misconduct.

When police officers perceive that the victim of a crime is also involved in some type of improper or questionable conduct, the officers frequently opt not to make an arrest. Suppose Mr. Macho engages and pays for the services of a lady of the evening, but she fails to show up at the appointed place. Mr. Macho knows his rights and complains to the local officer on the beat. In such circumstances the officer may possibly detain the prostitute long enough to obtain a return of the victim’s money, or he may merely tease the complainant and suggest that he has learned his lesson. An arrest is unlikely to be

made in any situation where the victim does not have clean hands, and officers know that, even if they do make an arrest, such cases are usually dropped by the prosecution.

Criminal Conduct Thought to Reflect the Mores of a Community Subgroup.

A final area of maximum police discretion in making an arrest deals with lawbreaking that officers ignore because they regard it as normal and acceptable for members of racial minorities or the lower social classes. Studies have shown that police officers, usually white and from middle-class backgrounds, tend to regard the street violence, petty property crimes, and family altercations in minority and poor areas as just “normal for those kinds of people.” However, such behavior in middle- and upper-middle-class neighborhoods is not seen as natural or acceptable, and officers are more likely to make an arrest.

For example, if Officer Jones is summoned to a million-dollar condominium on Chicago’s exclusive Lake Shore Drive on learning that a man has stabbed his socialite wife, the officer will likely make an arrest for assault with a deadly weapon. After all, people of that class simply should not behave in such a fashion, and if they do, an arrest is in order. However, if Officer Jones had been called to a ghetto neighborhood across town for an identical incident, her diary of events would more likely read as follows: “Called to scene of family disturbance in minority area. Woman hurt. Took her to the emergency ward to get her sewed up. Everything quiet. No arrest.”

A vivid real-life illustration of this type of encounter is contained in an excerpt from a computer transcript provided by the Los Angeles Police Department. A message transmitted from an officer’s patrol car concerned a domestic dispute in a black household. One officer said it was “right out of ‘Gorillas in the Mist.’” “Ha, ha, ha, ha,” responded the unidentified correspondent, “let me guess who be the parties.”37 One suspects that the officers’ account of this domestic dispute would have had a vastly different tone had the incident occurred in an upper-class, nonminority neighborhood. In sum, the decision to make an arrest when a crime has been committed is not always simple and automatic for the police officer. Although no one would seriously doubt that officers must be given leeway to exercise their common sense and good judgment in close-call situations, discretion clearly may be arbitrary and subject to abuse. At the very least, the decision making of police officers, to a substantial degree, is the product of their own attitudes and values, community pressures, the attitude of the accused, and organizational constraints—which is true as well for prosecutors, judges, and other court personnel.

Appearance before a Magistrate After a suspect is arrested for a crime, he or she is booked at the police station—that is, the facts surrounding the arrest are recorded and the accused may be fingerprinted and photographed. The next major step is for the accused to appear before a lower-level judicial official whose title may be judge, magistrate, or commissioner. Such an appearance is supposed to occur “without unnecessary delay.” Although the meaning of this phrase varies from state to state, the maximum delay permitted by law has traditionally been twenty-four hours. However, in 1991 the more conservative U.S. Supreme Court ruled, 5–4, that police may now detain an individual arrested without a warrant for up to forty-eight hours without a court hearing on whether the arrest was justified.38 (In China, by contrast, defendants can be held for up to one month without being charged. In Mexico the waiting time is eighty days!) However, in 2009 the high court seemed to reinforce the importance of getting suspects to their first court appearance as soon as possible (at least for those in federal custody). The Court ruled that even some voluntary confessions might not be admissible in federal court if authorities waited too long to get suspects to appear before a magistrate. Without such a rule, Justice David Souter wrote for the majority, “federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to.”39

This court appearance is the occasion for several important events in the criminal justice process. First, the accused must be informed of the precise charges and must be informed of all constitutional rights and guarantees. Among these rights is the now famous Miranda v. Arizona decision handed down in 1966 by the U.S. Supreme Court under Chief Justice Earl Warren. The accused “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning.”40 Before this important Court ruling, it was common for persons arrested for a crime to unwittingly make incriminating statements to the police that subsequently undermined their criminal cases. Also, before Miranda the right to an attorney during police interrogation was available only to those who could afford one, which meant that this important legal protection was unavailable to the indigent. (Such warnings must also be given by the arresting officer if he or she questions the suspect about the crime.)41 In some states the accused must be informed about other rights that are provided for in the state’s Bill of Rights, such as the right to a speedy trial and the right to confront hostile witnesses.

In the aftermath of the 9/11 terrorist attacks on America, part of the process just

described did not always apply because the George W. Bush administration refused to grant most of those rights to U.S. citizens who were suspected terrorists. Many were held indefinitely without bail, without formal charges being brought against them, and without an attorney, among other rights denied to them. This state of affairs was altered in 2004 and again in 2006 by two Supreme Court decisions that accorded even suspected terrorists certain minimum legal rights. In Hamdi v. Rumsfeld the Supreme Court held that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”42 Then in June 2006 the high court ruled, in Hamdan v. Rumsfeld, that detainees, whether they are tried in a U.S. civilian court or in a regular military court, must be accorded certain basic rights, such as the right to be present at all hearings, to view the evidence against them, to be represented by counsel, to cross-examine witnesses, and to appeal to a higher tribunal.43 Then in an important decision in 2008, Boumediene v. Bush, the Supreme Court restored to prisoners held at Guantánamo (a U.S.-operated military prison located in Cuba that has been the detention site of many individuals with suspected ties to terrorism) the important right to petition the federal courts through writs of habeas corpus.44 And the most recent evidence suggests that most of the prisoners tried in Guantánamo have not fared too badly. Legal experts noted in the spring of 2012 that “with some caveats … all but one of the seven convictions at what are known as military commissions … have resulted in lower sentences than those routinely handed out in U.S. civilian courts for similar offenses.”45

Second in the series of important events in the criminal justice process, the magistrate will determine whether the accused is to be released on bail and, if so, will set the amount of bail. The only constitutional requirement for the amount is that it should not be “excessive.” If the magistrate believes that the accused will appear for any future trial proceedings, no bail may be required and the accused may be released on his or her own recognizance. Bail is considered a privilege—not a right—and it may be denied altogether in capital punishment cases that indicate strong evidence of guilt or if the magistrate believes that the accused will flee from prosecution, no matter what the amount of bail.

The subject of bail has been riddled with controversy for a variety of reasons. It is often used as a form of preventive detention when a judge intentionally sets bail at a level that is impossible for the defendant to meet. For example, in January 2004 a Texas state judge set bail for a wealthy man—the infamous Robert Durst—at the record amount of $3 billion. (Durst had jumped bail in the past and surely was not a candidate for low bail.) Still, a three-judge panel of the Houston appellate court stated that it could not find

any other case “in which bail has ever been set, let alone upheld, at even 1 percent of any of the … amounts in this case, regardless of the underlying offense, wealth of the defendant or any other circumstance.” Durst’s bail was eventually lowered to $200,000.46 A judge’s decision to set a high amount of bail can be based on factors such as the defendant’s prior criminal record, publicity the case may have generated, the recommendation of the prosecutor, and the defendant’s previous conduct while out on bail. If a defendant cannot make bail (even $50 is prohibitive for those without means), he or she must remain in jail. This subjects legally innocent persons to punishment; it separates them from their family, friends, and jobs; it hinders their efforts to prepare for their defense in court; and it adds to the overcrowding that already bedevils most county jails. Each day in the United States some 650,000 persons are in jail awaiting trial, most of them unable to raise enough money to secure release on bail.47

An alternative to bail is to release the defendant on recognizance, basically on a pledge by the defendant to return to court on the appointed date for trial. Some jurisdictions have special programs designed to maximize the number of persons eligible for release on recognizance. Perhaps the best known and most often copied is the Manhattan Bail Project, which arranges for defendants to be interviewed by pretrial investigators according to a special point system that takes into consideration such factors as the defendant’s prior record, ties to the local community, and employment.

In minor cases the accused may be asked to plead guilty or not guilty. If the plea is guilty, a sentence may be pronounced on the spot. If the defendant pleads not guilty, a trial date is scheduled. However, in the typical serious (felony) case the next primary duty of the magistrate is to determine whether the defendant requires a preliminary hearing. If such a hearing is appropriate, the matter is adjourned by the prosecution and a subsequent stage of the criminal justice process begins.

The Grand Jury Process or the Preliminary Hearing At the federal level all persons accused of a crime are guaranteed by the Fifth Amendment to have their cases considered by a grand jury. However, the Supreme Court has refused to make this right binding on the states. Today only about half of the states use grand juries; in some states, they are used only for special types of cases. For example, in Florida only first-degree murder cases require the use of grand juries. Those states that do not use grand juries employ a preliminary hearing or an examining trial. (A few states use both procedures.) Regardless of which method is used, the primary purpose of this stage in the criminal justice process is to determine whether there is probable cause for the accused to be subjected to a formal trial. This is the common

The Grand Jury.

Grand juries consist of sixteen to twenty-three citizens, usually selected at random from the voter registration lists, who render decisions by a majority vote.49 Their terms may last from one month to one year, and some may hear more than a thousand cases during their term. The prosecutor alone presents evidence to the grand jury. The accused and his or her attorney are not only absent from the proceedings but also usually have no idea which grand jury is hearing the case or when. If a majority believes probable cause exists, then an indictment, or true bill, is brought. Otherwise the result is a no bill.

Less than 5 percent of all grand jury decisions result in no bills, and contrary to popular belief, no bills do not necessarily serve as a measure of grand jury independence vis-à- vis the prosecutor. Frequently the district attorney will ask the grand jury to render a no bill for personal reasons. The following is a statement made by a prosecutor to a state grand jury on which one of the coauthors of this book served:

Now here’s a case where I’d like a little help from you all. There’s a guy that’s been after me every day for the past month because he says his brother-inlaw borrowed his TV and some money and won’t give ’em back. He wants me to file theft charges, but I keep telling him we’re not a bill collection agency. I told him I would take the case to the grand jury, and I’m sure hoping you’ll vote a no bill, and as soon as you do, I’m going to get on the phone and tell that guy that those “bleeding hearts” on the grand jury [laughs] wouldn’t bring an indictment. That would sure get me off the hook.

Historically, two arguments have been made in favor of grand juries. One is that grand juries serve as a check on a prosecutor who might be using the office to harass an innocent person for political or personal reasons. (Even though the innocent person might eventually be found not guilty at trial, the cost and embarrassment of being tried for a crime are clearly a significant form of harassment.) Ideally, an unbiased group of citizens would interpose themselves between an unethical prosecutor and the defendant.

practice in the United States, but it is not necessarily the case in all countries. For instance, the criminal justice system in Iraq provides for a formal indictment only after the prosecution’s evidence has been tested in court. Thus Saddam Hussein was not formally charged for his crimes against the Iraqi people until May 2006—some seven months into his trial—because it was not until then that the court determined that the charges were severe enough to justify continuation of the trial.48

A second justification for grand juries is to make sure that the DA has done some homework and has secured enough evidence to warrant the trouble and expense—for both the state and the accused—of a full-fledged trial. Sometimes in the haste and tedious routine of the criminal justice process, persons are brought to trial when insufficient evidence has been gathered to justify it. The following is a factual account of how a state grand jury served to prevent this from happening (albeit by accident):

We had one case where the prosecutor tells us that several witnesses claim they saw this guy driving a stolen vehicle. So we vote a true bill—no questions asked. Then later on in the day when we were eating our sandwiches during lunch, one lady [also on the grand jury] was leafing through the files just for something to do. She says to us: “Hey, you know that guy we indicted this morning for auto theft? He claims he was on National Guard duty at the time a thousand miles away.”

Now we figured that that wasn’t the sort of defense you’d lie about because it could be checked out so easily, so we called the DA back in. We asked him if he had called the guy’s commanding officer on the WATS line to check out his story. The DA told us we weren’t supposed to be trying this case and that there was probable cause because of the witnesses. But we made him call anyway, and sure enough there was a record that the guy was on guard duty the day the car was stolen. That day we did what a grand jury was supposed to be doing but, my God, it was only because that lady was bored with her baloney sandwich.

Substantial evidence is available that the prosecutor tends to dominate the grand jury process and that the jury’s utility as a check on the motives and thoroughness of the district attorney is minimal.50 In recent months the grand jury system has come under ever-increasing criticism for the great reluctance of such juries to indict police officers accused of taking the life of suspected criminals—and, more specifically, of persons of color. This came to a head in the spring of 2015 when a St. Louis County grand jury refused to indict Ferguson, Missouri, police officer Darren Wilson in the August killing of teenager Michael Brown. But the “Michael Brown” case has been shown not to be an isolated incident. For example, a recent study in Houston, Texas, found that “police have been nearly immune from criminal charges in shootings” in Houston and in other large cities. In Harris County, Texas, “[Houston] grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. Separate research by Bowling Green State

University [in Ohio] criminologist Philip Stinson has found that officers are rarely charged in on-duty killings.”51

The Preliminary Hearing.

In the majority of states that have abolished the grand jury system, a preliminary hearing is used to determine whether there is probable cause for the accused to be bound over for trial. At this hearing the prosecution presents its case, and the accused has the right to cross-examine witnesses and to produce favorable evidence. The defense usually elects not to fight at this stage of the criminal process; a preliminary hearing is waived by the defense in the vast majority of cases.

If the examining judge determines that there is probable cause for a trial or if the preliminary examination is waived, the prosecutor must file a bill of information with the court where the trial will be held. This serves to outline precisely the charges that will be adjudicated in the new legal setting. About two weeks are usually allowed for the process.

The Arraignment Arraignment is the process in which the defendant is brought before the judge in the court where he or she is to be tried to respond to the grand jury indictment or the prosecutor’s bill of information. The prosecutor or a clerk usually reads in open court the charges that have been brought against the accused. The defendant is informed that he or she has a constitutional right to be represented by an attorney and that one will be appointed without charge if necessary.

The defendant has several options about how to plead to the charges. The most common pleas are guilty and not guilty. But the accused may also plead not guilty by reason of insanity, former jeopardy (having been tried on the same charge at another time), or nolo contendere (no contest). Nolo contendere means, in effect, that the accused does not deny the facts of the case but claims that he or she has not committed any crime, or it may mean that the defendant does not understand the charges. The nolo contendere plea can be entered only with the consent of the judge (and sometimes the prosecutor as well). Such a plea has two advantages. It may help the accused save face vis-à-vis the public because he or she can later claim that technically no guilty verdict was reached even though a sentence or a fine may have been imposed. Also, the plea may spare the defendant from certain civil penalties that might follow a guilty plea (for example, a civil suit that might follow from conviction for fraud or embezzlement).

If the accused pleads not guilty, the judge will schedule a date for a trial. If the plea is guilty, the defendant may be sentenced on the spot or at a later date set by the judge. Before the court will accept a guilty plea, the judge must certify that the plea was made voluntarily and that the defendant was aware of the implications of the plea. A guilty plea is, for all intents and purposes, equivalent to a formal verdict of guilty.

The Possibility of a Plea Bargain At both the state and federal levels the vast majority of all criminal cases never go to trial. That is because before the trial date the prosecutor and the defendant’s attorney have struck a bargain concerning the official charges to be brought and the nature of the sentence that the state will recommend to the court. In effect, some form of leniency is promised in exchange for a guilty plea. This happens a whopping 97 percent in criminal cases at the federal courts level, and at the state level the figure is 94 percent.52 For example, in March 2015 David Petraeus, “the best-known military commander of his generation, … reached a plea deal with the Justice Department and admitted providing his highly classified journals to a mistress when he was director of the CIA.” Under the terms of the plea bargain Petraeus agreed “to plead guilty to one count of unauthorized removal and retention of classified material”—only a misdemeanor rather than a felony.53

Under plea bargaining, the role of the judges in the criminal justice system is much smaller than is generally assumed. Most people believe that the courts operate under a pure adversary system in which the judge’s role is to make a disinterested sentencing after hearing full arguments from both sides. But because plea bargaining virtually seals the fate of the defendant before trial, the role of the judge is simply to ensure that the proper legal and constitutional procedures have been followed.

Judicial scholars are not unanimous on why plea bargaining has become the norm instead of the exception, and some have argued that some form of plea bargaining has always existed. (That is, the state has always been more lenient to those who admit their guilt, are repentant, and cooperate with the government.) Nevertheless, evidence confirms that the average felony trial is longer now than it was several decades ago, and that defendants are now filing more pretrial pleas and postconviction motions than they did in the past. No doubt the changes stem at least in part from the Warren Court’s many decisions favoring the rights of criminal defendants. But for whatever reasons, the ever- increasing caseloads of the past several decades have made the judicial system more dependent on the quick and simple plea bargain. There are three (not mutually exclusive) basic types of such bargains.

Reduction of Charges.

The most common form of agreement between a prosecutor and a defendant is a reduction of the charge to one less serious than that supported by the evidence. The defendant is thereby subject to a lower maximum sentence and is likely to receive a lighter sentence than would have been the case with a guilty verdict on the original charge. For example, in many states a common plea bargain for an individual accused of theft is to plead guilty to burglary with the intent to commit theft. This results in a substantially reduced range of sentence possibilities.

A second reason for a defendant to plead guilty to a reduced charge is to avoid a record of conviction for an offense that carries a social stigma. The “good family man” and “pillar of the church” caught in the act of “indecency with a child” might be willing to plead guilty to the reduced charge of disorderly conduct.

Another possibility is that the defendant may wish to avoid a felony record altogether. A college student who hopes to be a lawyer or a public school teacher might be eager to plead guilty to almost any misdemeanor offered by the prosecutor rather than face a felony charge and risk being excluded from the legal or teaching professions.

Deletion of Tangent Charges.

A second form of plea bargain is the agreement of the district attorney to drop other charges pending against an individual. There are two variations on this theme. One is an agreement not to prosecute “vertically”—that is, not to prosecute more serious charges filed against the individual. For example, it is common in many jurisdictions for individuals using credit cards illegally to be charged simultaneously with forgery and possession of a stolen credit card. A bargain may be made to drop the forgery indictment in exchange for a plea of guilty on the lesser charge. The second type of agreement is to dismiss “horizontal” charges—that is, to dismiss additional indictments for the same crime pending against the accused. It is not unusual for several counts of burglary to be dropped following a confession to one other burglary indictment. (For an indictment to be dropped, most jurisdictions require the prosecutor to file with the court a motion of nolle prosequi—“I refuse to prosecute”—but such motions are usually granted as a matter of course.)

Another variation of the type of plea bargaining concerned with dropping charges is the agreement in which a repeater clause is dropped from an indictment. At the federal level and in many states a person is considered a habitual criminal on the third conviction for a violent felony anywhere in the United States. The mandatory sentence for the habitual

criminal is life imprisonment. In state courts the habitual violent criminal charge is often dropped in exchange for a plea of guilty. For example, in Texas an individual convicted of theft as a habitual criminal must be sentenced to life imprisonment and will not be eligible for parole for at least twenty years. However, an individual who is offered the chance to plead guilty to “theft second offense” must be given a sentence of ten years in prison but will be eligible for parole after serving only one-third of that sentence. The difference between twenty years of working on the rock pile and three years and four months is a keen incentive for a “three-time loser” to admit to being a “two-time loser.”

A final wrinkle of this type of plea bargaining is the agreement in which indictments in different courts are consolidated into one court so that the sentences may run concurrently. As indictments or preliminary hearing rulings are handed down in many jurisdictions, they are placed on a trial docket on a rotation system. (The first charge is placed on a docket of court 1, the second on court 2, and so on.) This means that a defendant charged with four counts of forgery and one charge of possession of a forged instrument might end up on the docket of five different courts. It is common practice in such multicourt districts to transfer all of a person’s indictments to the first court listed. This gives the presiding judge the discretion of allowing all of the defendant’s sentences to run concurrently. Although not often done, an individual who refuses to plead guilty to any charges may not have the other indictments transferred, creating the likelihood of stacked (consecutive) sentences.

Recent prominent examples of the use of plea bargains occurred in the Enron conspiracy cases, which resulted in the conviction of the corporation’s top executives, the late Kenneth Lay and Jeffrey Skilling. In those cases seventeen mid-level Enron executives were allowed to plea bargain for more lenient treatment if they actively cooperated with the prosecution in its case against Lay and Skilling.54

Sentence Bargaining.

A third form of plea bargaining concerns a plea of guilty from the defendant in exchange for a prosecutor’s agreement to ask the judge for a lighter sentence.55 At first blush it might seem that this type of plea negotiation is a weak substitute for either the reduction-of-charge or the dropping-of-charge form. After all, under sentence bargaining the state can make only a nonbinding recommendation to the court regarding the sentence, whereas under the other two types the state’s concessions are concrete and not subject to doubt.

The strength of the sentence negotiation, however, is based on the realities of the limited resources of the judicial system. At the state level, at least, prosecutors are able to

promise the defendant a fairly specific sentence with confidence that the judge will accept the recommendation. If the judge were not to do so, the prosecutor’s credibility would quickly begin to wane, and many of the defendants who had been pleading guilty would begin to plead not guilty and take their chances in court. The result would be a gigantic increase in court dockets that would overwhelm the judicial system and bring it to a standstill. Prosecutors and judges understand this reality, and so do the defense attorneys.

A variation on this theme was witnessed by Robert A. Carp, one of the coauthors of this book, who recently served as a juror in a criminal court case. Before the trial the prosecutor had offered the defendant a plea bargain of seven years for a drug-related offense. The defendant’s girlfriend persuaded him that he could do better if he asked for a jury trial—which might find him innocent or, if guilty, give him a lighter sentence. In this instance the jury not only convicted the defendant but gave him a fourteen-year sentence. After the trial the presiding judge, Marc Carter, met with the jurors to discuss the case. In part the dialogue went as follows:

Judge: The district attorney was very happy with your sentence of fourteen years.

Juror: Sir, do you mean the district attorney wanted a real long sentence?

Judge: No, not particularly. It’s just that she wanted a sentence longer than her [plea bargain] offer of seven years. If you [jurors] would have given him five years or something, the word would have gotten out to every prisoner in the jail, and they would all be asking for jury trials. That would just overwhelm our system. A defendant needs to know that he is getting a good deal when the DA offers him a plea.56

Constitutional and Statutory Restrictions on Plea Bargaining.

At both the state and federal levels, the requirements of due process of law dictate that plea bargains must be made voluntarily and with comprehension. This means that the defendant must be admonished by the court of the consequences of a guilty plea (for example, the defendant waives all opportunities to change his or her mind at a later date); that the accused must be sane; and that, as one typical state puts it, “It must plainly appear that the defendant is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.”57 According to these requirements, the prosecutor’s promise of a lighter sentence in exchange for a guilty plea seems to violate the letter, if not the spirit, of the Due Process Clause. Not so, the courts have ruled. As long as judges tell the defendants that, at least in principle, they are subject to any sentence that is pronounced and the accused

acknowledge this, the requirement of due process has been met. Thus when a state court certifies that a guilty plea was “knowingly and understandingly made,” a form of legal fiction has often been in the works.

For the first two types of plea bargains, some stricter standards govern the federal courts. One is that the judge may not participate in the process of plea bargaining, whereas at the state level judges may play an active role. Likewise, if a plea bargain has been made between the U.S. attorney and the defendant, the government may not renege on the agreement. If the federal government does so, the federal district judge must withdraw the guilty plea. Finally, the Federal Rules of Criminal Procedure require that “the court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.” This means that before a guilty plea may be accepted, the prosecution must present a summary of the evidence against the accused, and the judge must agree that there is strong evidence of the defendant’s guilt.

On March 21, 2012, the Supreme Court handed down a pair of decisions that vastly expanded lower court judges’ supervision of the criminal justice system.58 The decisions mean that what was formerly unregulated and highly informal deal-making is now subject to new restrictions when bad legal advice leads defendants to reject favorable plea offers. Writing for the majority in a 5–4 decision, Justice Anthony M. Kennedy said that “criminal justice today is for the most part a system of pleas, not a system of trials…. The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”59 “The Supreme Court’s decision in these two cases constitute the single greatest revolution in the criminal justice system since Gideon v. Wainwright provided indigents with the right to counsel,” said Wesley M. Oliver, a law professor at Widener University, referring to the Court’s 1963 landmark decision.60

Arguments for and against Plea Bargaining.

For the defendant the obvious advantage of the bargain is that he or she is treated less harshly than would be the case if convicted and sentenced under maximum conditions. Also, the absence of a trial often lessens publicity on the case, and because of personal interests or simple social pressures, the accused may wish to avoid the length and publicity of a formal trial. Finally, some penologists (professionals in the field of punishment and rehabilitation) argue that the first step toward rehabilitation is for a criminal to admit guilt and recognize his or her problem. The belief is that a guilty plea is at least nominally the first step toward a successful return to society.

Plea bargaining also offers some distinct advantages for the state and for society as a

whole. The most obvious is the certainty of conviction, because no matter how strong the evidence may appear, an acquittal is always a possibility so long as a trial is pending. (Evidence may be stolen or lost; important witnesses may die or drop out of sight; the prosecutor may make a key error in court that results in a mistrial.) Also, the district attorney’s office and judges are saved an enormous amount of time and effort by not having to prepare and preside over cases in which there is no real contention of innocence or that are not suited to the trial process. Finally, when police officers are not required to be in court testifying in criminal trials, they arguably have more time to devote to preventing and solving crimes.

Lest this all seem too good to be true, plea bargains do have a negative side. The most frequent objection to plea bargaining is that the defendant’s sentence may be based on nonpenological grounds. With the large volume of cases making plea bargaining the rule, the sentence often bears no relation to the specific facts of the case, to the correctional needs of the criminal, or to society’s legitimate interest in vigorous prosecution of the case. A second defect is that if plea bargaining becomes the norm of a particular system, undue pressure may be placed on even innocent persons to plead guilty. Studies have shown that in some jurisdictions the less chance there is for conviction, the harder the bargaining may be, because the prosecutor wants to get at least some form of minimal confession out of the accused.

A third disadvantage of plea bargaining is the possibility of the abuse called overcharging, whereby the prosecutor brings charges against the accused that are more severe than the evidence warrants, with the hope that this will strengthen his or her hand in subsequent negotiations with the defense attorney. The coauthor of this book who served on a state grand jury had this exchange with a representative of the district attorney’s office:

Grand In this case where one fellow killed another in that barroom

Juror: fight, why do you want us to indict on a first-degree murder charge? There doesn’t seem to be any premeditation here. You’ll never get a conviction on that.

DA: Oh, I know. But it will strengthen our hand at the time when we talk with his attorney.

The grand jury in question chose to indict on a lesser and more appropriate charge. Another aspect of this disadvantage is that prosecutors might abuse their power “to bully defendants into giving up their constitutional right to a trial. Judge John Gleeson, who as a federal prosecutor sent the late mafia boss John Gotti to prison, said in a [2013 court opinion] that prosecutors are using the threat of decades or life in prison to exact guilty

pleas even if the defendants’ alleged crimes fall far short of meriting such long sentences.”61

Another flaw with the plea bargaining system is its very low level of visibility. This is the flip side of flexibility. Bargains between prosecutor and defense attorney are not made in open court, presided over by a neutral jurist, and for all to observe. Instead, they are more likely made over a cup of coffee in a basement courthouse cafeteria, where the conscience of the two lawyers is the primary guide. When the defendant enters the guilty plea in open court and swears that no promise by the state has induced this plea, the prosecutor and defense counsel mutely corroborate the defendant’s false statement. Meanwhile, the judge remains uninformed of the facts and is therefore unable to determine the fairness or validity of the agreement.

Finally, the system has the potential to circumvent key procedural and constitutional rules of evidence. Because the prosecutor need not present any evidence or witnesses in court, a bluff may result in a conviction, even though the case might not be able to pass muster with the Due Process Clause. The defense may be at a disadvantage because the rules of discovery (the laws that allow the defense to know in detail the evidence the prosecution will present) in some states limit the defense counsel’s case preparation to the period after the plea bargain has occurred. Thus the plea bargain may deprive the accused of basic constitutional rights.

The United States is unique in having the plea bargain serve as the norm at both state and federal levels, but the procedure is not unknown in other countries. Germany, for example, uses a plea bargain between 20 to 30 percent of the time, but typically in cases where the penalty is a fine or no criminal sanction at all. It is rarely used in violent and other really serious cases. When it does occur, the state is still obliged to make an independent determination that the defendant is guilty. As one observer has noted,

Even if a bargain has been reached, and the defendant confesses during preliminary examination at the beginning of the trial, the prosecutor must be ready to offer such witnesses as the court deems necessary to support a finding of guilt. Thus, as Professor Joachim Herrmann observes, in Germany “a confession does not replace a trial but rather causes a shorter trial.” This fact, plus section 153a of the German Code of Criminal Procedure, which allows the prosecutor to terminate the proceedings only when the defendant’s guilt is “minor,” keeps plea bargaining to a minimum in felony cases.62

Finally, a recent study concludes that “plea bargaining is spreading into an increasing number of countries in spite of criticisms of scholars around the world.” The author of this article also suggests that “the International Criminal Court (ICC) should [with some reservations] follow the example of other international criminal tribunals and implement a plea bargaining policy.”63

The Adversarial Process as Contrasted with the Inquisitorial Method The principles of the adversarial process as it exists in American criminal courts are largely true of civil trials as well. The adversarial model is based on the assumption that there are two sides to every case or controversy. In criminal cases the government claims a defendant is guilty while the defendant contends innocence; in civil cases the plaintiff asserts that the person he or she is suing has caused some injury while the respondent denies responsibility. In the courtroom each party vies against the other; each provides his or her side of the story as he or she sees it. The theory (or hope) underlying this model is that the truth will emerge if each party is given unbridled opportunity to present the full panoply of evidence, facts, and arguments before a neutral and attentive judge (and jury).

The lawyers representing each side are the major players in this courtroom drama. The judge acts more as a passive, disinterested referee whose primary role is to keep both sides within the accepted rules of legal procedure and courtroom decorum. The judge eventually determines which side has won in accordance with the rules of evidence, but only after both sides have had a full opportunity to fight it out.

The adversarial process is the norm in the United States, but it is not in most other countries, including almost all of the Western industrial democracies and Latin America. Most use a version of what legal scholars call the inquisitorial method, in which the judge (or judges) is the primary actor in the courtroom and the attorneys passively defend their clients’ interests. Under this method the judge(s) actively and aggressively conducts an inquiry into the truth of the charges that the state or a plaintiff has lodged against a defendant. The French model is representative of that used in most countries employing the inquisitorial method. In a typical case a panel of perhaps three judges presides. They are joined by several laypersons—ordinary citizens—who participate in overseeing the proceedings and help decide on innocence or guilt. But these ordinary citizens are not jurors in the American sense of the term. They merely sit with the professional judges on an elevated bench, and they all deliberate together. French courtrooms exhibit less drama because the lawyers for each side make many of their

arguments in writing rather than orally, so that few verbal duels between the attorneys take place. Likewise, there are fewer skirmishes over evidence because virtually all evidence that the French judges deem relevant is allowed. As the Wall Street Journal reported,

“There is much more of a bureaucratic climate—professionals doing their job[,]” [says George Bermann, a professor of international law at Columbia University]. The judges see their role as getting at the truth, rather than supervising an adversarial process, Prof. Bermann adds.

A critical difference is that the French criminal system—which is less civil- liberties oriented than the U.S. system—doesn’t require proof beyond a reasonable doubt to convict a defendant. Instead, the French use a standard similar to that of the American civil system: Basically, the French judges— professional and lay—must be persuaded that guilt is more likely than innocence, a standard American lawyers call a “preponderance of the evidence.”

Although French defendants begin with a presumption of innocence, “if the judges are convinced of guilt, that’s it,” says Prof. Bermann. The judicial panel’s decision doesn’t have to be unanimous, and individual judges’ votes aren’t generally made known. Verdicts with written opinions are issued on behalf of the court and don’t reveal any dissent.64

Although most countries prefer the judicial system that they have acquired by custom and tradition, there are still some transformations in the making. For example, with our neighbor to the south, in June 2008 Mexico threw open the doors to its judicial system, allowing U.S.-style public trials and creating a presumption of innocence. Under the long-awaited constitutional amendment signed by former president Felipe Calderón, guilt or innocence would no longer be decided behind closed doors by a judge relying on written evidence. Prosecutors and defense lawyers would now argue their case in court, and judges must explain their decisions to defendants. “This is perhaps the most important reform to the criminal system that Mexicans have had in a long time,” Calderón said after signing the amendment.

The new laws require the changes to be made gradually over time, and to be in place by 2016.65

Summary We began this chapter with a discussion of the nature and substance of crime—at least as it is currently understood. We then reviewed the myriad procedures that constitute the judicial process at the federal and state levels. We analyzed the various aspects of crime that lead to an arrest, the subsequent appearance before a magistrate, and the activity of the grand jury or the preliminary hearing. We also observed how plea bargaining enormously tempers the criminal court process, and finally we outlined the key differences between the adversarial process used in the American courtroom and the inquisitorial methods that are the choice of most other nations. Throughout the chapter, we stressed that the backgrounds and attitudes of the criminal justice participants have as much to do with the nature and quality of justice as do the formal rules of the game.

FURTHER THOUGHT AND DISCUSSION QUESTIONS 1. Would the United States be better served to remove from the criminal statute

books all laws that are not enforced, such as laws against small-time gambling and laws forbidding sexual activity between certain consenting adults? Does the refusal to enforce some laws while others are strictly enforced undermine respect for law in general?

2. The United States is on a par with Russia in having more persons per capita in prison than is the case in any other nation. Is that a sign that the United States is a nation that enforces its laws, or is it an indication that something is inherently wrong with its criminal justice system?

3. Should America follow the example of many other countries when faced with terrorism or excessive domestic violence by simply suspending the constitutional rights of those accused of crimes? If so, who should make the decision to take this course of action, and how long should the suspension of rights be allowed to continue?

4. Should we abolish plea bargains entirely and instead have a full-blown trial for everyone accused of a crime? What if the defendant wanted to plead guilty and declined a trial? Should lower sentences be promised to defendants who acknowledge their guilt and cooperate with the police?

SUGGESTED RESOURCES Cole, George F., Christopher E. Smith, and Christina De Jong. The American System of

Criminal Justice, 14th ed. Belmont, Calif.: Cengage Learning, 2012. A reader containing articles by America’s experts on topics such as police behavior and

defense attorneys.

Fisher, George. Plea Bargaining’s Triumph: A History of Plea Bargaining in America. Stanford, Calif.: Stanford University Press, 2003. An excellent history of plea bargaining along with an in-depth explanation of why it has become the norm in the modern judicial system.

Justice Information Center Web Site. Available online at www.ncjrs.org. An excellent source of information on the subject of criminal victimization.

Messner, Steven F., and Richard Rosenfeld. Crime and the American Dream, 5th ed. Belmont, Calif.: Wadsworth, 2013. A short but well-written text that expands on the causes and social consequences of crime as outlined in this chapter.

Neubauer, David W., and Henry F. Fradella. America’s Courts and the Criminal Justice System, 10th ed. Boston, Mass.: Wadsworth, 2010. A classic political science textbook on all the major stages present in the criminal justice process.

Reichel, Philip L. Comparative Criminal Justice Systems: A Topical Approach, 5th ed. Upper Saddle River, N.J.: Prentice Hall, 2007. An excellent text that compares and contrasts pretrial criminal procedures in the United States and a number of other countries.

Walker, Samuel. Sense and Nonsense about Crime, Drugs, and Communities: A Policy Guide, 7th ed. Boston, Mass.: Wadsworth, 2011. A discussion of the pros and cons of both liberal and conservative approaches to preventing and punishing criminal behavior.

NOTES 1. “France Bans Super-Skinny Models in Anorexia Clampdown,” Reuters, April 4,

2015, www.reuters.com/article/2015/04/04/us-france-anorexia- idUSKBN0MU0JK20150404 (accessed September 10, 2015).

2. “France to Criminalize Ads Featuring Models Who Have Anorexia,” Houston Chronicle, March 17, 2015, A2.

3. Raphael Tenthani, “Penalty for Being Gay in Malawi: 14 Years,” Houston Chronicle, May 21, 2010, A12.

4. Niels Sorrells, “Bishop Back in Court over Holocaust Denial,” Houston Chronicle, July 8, 2011, F67.

5. “Judge Upholds Cursing Law,” Houston Chronicle, February 9, 1999.

6. “Prosecute Limbaugh, Lawyer Says,” Houston Chronicle, March 10, 2012, A4.

7. We wish to express our debt to Harold J. Vetter and Leonard Territo, from whom we borrowed this categorization. See Vetter and Territo, Crime and Justice in America (St. Paul, Minn.: West, 1984), chap. 1.

8. “Crime in the United States 2013: Uniform Crime Reports,” www.fbi.gov/about- us/cjis/ucr/crime-in-the-u.s.-2013/property (accessed March 19, 2015); “Crime in the United States 2013: Uniform Crime Reports,” www.fbi.gov/about-us/cjis/ucr/crime-in- the-u.s.-2013/violent (accessed March 19, 2015).

9. “Crime in the United States 2013: Uniform Crime Report,” www.fbi.gov/about- us/cjis/urc/crime-in-theu.s.-2013/table1 (accessed March 19, 2015).

10. Ibid.

11. “Crime in the United States,” http://en.wikipedia.org/wiki/Crime_in_the_United- States (accessed March 19, 2015).

12. U.S. Department of Justice, “Criminal Victimization.”

13. Kevin G. Hall, “Brazil’s High Murder Rate Prompts Tougher Gun Laws,” Houston Chronicle, December 11, 2003.

14. “Stiffer Penalties Will Be Applied to This Heinous Crime,” Time, March 23, 2015, 12.

15. Megan Burke, Maureen Cavanaugh, Peggy Pico, and Jill Replogle, “Mexico’s Drug-

Related Homicides Are Down but Not in Tijuana,” www.kpbs.org/news/2014/apr/16/report-finds-murder-rate-mexico-continues-decline-/ (accessed March 23, 2015).

16. “The Cost of Crime,” www.argmax.com/mt_blog/archive/2000_04_the_cost_of_cri.php.

17. “Made Money with Madoff? Don’t Count on Keeping It,” Newsweek, January 12, 2009, 9.

18. Haley Sweetland Edwards, “Hacking Back: In the Dark World of Cybercrime, Can Turnabout Be Fair Play?” Time, January 26, 2015, 20.

19. “The Cost of Crime.”

20. See www.forbes.com/sites/erikkain/2012/01/02/president-obama-signed-the- national-defense-authorization-act-now-what/ (accessed April 6, 2012).

21. “Edward Snowden,” http://en.wikipedia.org/wiki/Edward_Snowden (accessed March 23, 2015).

22. Stewart M. Poqwell, “Snowden’s Leaks Prompt Calls to Revise Secret Court,” Houston Chronicle, July 14, 2013, A6.

23. Cindy George, “Jackson Lee: Hearing Likely on Teen’s Death,” Houston Chronicle, March 25, 2012, A6.

24. Whitney v. California, 274 U.S. 357 (1927).

25. Ordinance unanimously declared invalid in Patachristou v. City of Jacksonville, 405 U.S. 156 (1972).

26. Julie Makinen, “3 Female Activists to Be Freed in China; 2 Others Still Held, “Houston Chronicle, April 14, 2015, A7.

27. Quotation in David W. Neubauer, America’s Courts and the Criminal Justice System, 2nd ed. (Monterey, Calif.: Brooks/Cole, 1984), 64.

28. “Law Enforcement in the United States,” http://en.wikipedia.org/wiki/Law_enforcement_in_the_United_States (accessed March 24, 2015).

29. U.S. Department of Justice, “Criminal Victimization.”

30. “Crime in the United States 2013,” www.fbi.gov/about-us/cjis/ucr/crime-in-the- u.s/2013/crime-in-the-u.s.-2013/tables/table- 29/table_29_estimated_number_of_arrests_united_states_2013.xls (accessed March 24, 2015).

31. United States v. Jones, 565 U.S. ___ (2012) (Docket No. 10-1259). However, the justices divided, 5–4, on the rationale for the decision. Four of the justices believed that the issue was mainly one of the basic rights of a criminal defendant, while a majority were more moved by the fact that the GPS device was placed on private property.

32. “Trying to Enforce Unpopular Law Is Plaguing the Highway Patrol,” Houston Chronicle, September 25, 1977.

33. This was a statement made to the 177th Harris County (Texas) Criminal Court Grand Jury by a Lieutenant Belcher in November 1971.

34. KPRC radio (in Houston, Texas) news bulletin based on data provided by the Houston Convention and Visitors’ Bureau, broadcast on August 27, 2014.

35. L. W. Sherman and R. A. Berk, “The Specific Deterrent Effects of Arrest for Domestic Assault,” American Sociological Review 49 (1984): 261–272; and R. A. Berk and L. W. Sherman, “Police Responses to Domestic Violence Incidents: An Analysis of an Experimental Design with Incomplete Randomization,” Journal of the American Statistical Association 83 (1988): 70–76.

36. For a more extensive discussion of this subject, see Gennaro F. Vito and Ronald M. Holmes, Criminology (Belmont, Calif.: Wadsworth, 1994), 83–85. For a more recent discussion of the pros and cons of strict enforcement of domestic violence laws, see Christopher Maxwell, Joel Garner, and Jeffrey Fagan, “The Preventive Effects of Arrest on Intimate Partner Violence: Research, Policy, and Theory,” Criminology and Public Policy 2 (2002): 51–80.

37. “Los Angeles Aftershocks,” Newsweek, April 1, 1991, 18–19. The exchange occurred the same night in March 1991 that a group of Los Angeles police officers beat up a black motorist, Rodney King. The incident was videotaped by a neighbor and later shown extensively on national television, causing shock at the apparent excessive use of force by police.

38. County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

39. Corley v. United States, 556 U.S. 303 (2009).

40. Miranda v. Arizona, 384 U.S. 436 (1966). This decision was undermined somewhat in 1991 when the U.S. Supreme Court ruled that under some circumstances confessions that are coerced from defendants by police can be used as evidence. Arizona v. Fulminante, 499 U.S. 279 (1991).

41. Two years after Miranda was decided, Congress attempted to subvert its effect by enacting 18 U.S.C. § 3501, which in essence laid down a rule that the admissibility of a custodial suspect’s statement should turn only on whether it was made voluntarily. This law was overturned by the Supreme Court in the case of Dickerson v. United States, 530 U.S. 428 (2000). The Court said, in effect, that since Miranda was a constitutional decision of the Court, it could not be overturned by an act of Congress, and then the Court went on to reiterate its support of the essence of the 1966 ruling. In addition, in May 2009 these Miranda rights were watered down somewhat when the Supreme Court decided, 5–4, to overturn a long-standing rule that stopped police from initiating questions unless a defendant’s lawyer was present. This decision will surely make it easier for prosecutors to interrogate suspects. The Court held that the Sixth Amendment’s right to counsel could be waived “so long as the relinquishment of the right is voluntary, knowing and intelligent,” which could be established by the state’s rote recitation of the Miranda warnings, and the defendant’s uncounseled, voluntary waiver of those rights. Montejo v. Louisiana, 556 U.S. 07 (2009).

42. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

43. Ibid. Text of the case is available at www.law.cornell.edu/supct/html/05- 184.ZS.html.

44. Boumediene v. Bush, 553 U.S. 723 (2008).

45. “Gitmo Tribunal Sentences Lighter Than Expected, So Far,” Houston Chronicle, March 6, 2012, A5.

46. Kevin Moran, “Durst’s Bail Must Be Cut, Court Rules,” Houston Chronicle, June 3, 2004.

47. Neubauer, America’s Courts and the Criminal Justice System, 9.

48. John F. Burns, “Saddam’s Chances of Escaping Death Penalty Appear Slimmer,” Houston Chronicle, May 16, 2006.

49. There are variations of this, however. In Texas, for example, grand juries consist of twelve persons chosen because they are friends or neighbors of judge-appointed jury commissioners. A vote of nine members is required for a decision.

50. See Robert A. Carp, “The Behavior of Grand Juries: Acquiescence or Justice?” Social Science Quarterly 55 (1975): 853–870. For some more current discussions of whether the grand jury is worth keeping and what steps might be taken to improve its work, see Judicature 81 (1998): 190–200.

51. Ben Casselman, “It’s Incredibly Rare for a Grand Jury to Do What Ferguson’s Just Did,” http://fivethirtyeight.com/datalab/ferguson-michael-brown-indictment-darren- wilson/ (accessed March 24, 2015).

52. “Rights of the Accused in Plea Bargains Grow,” Houston Chronicle, March 22, 2012, A4.

53. Michael S. Schmidt and Matt Apuzzo, “Petraeus Gets Plea in Classified Data Case,” Houston Chronicle, March 4, 2015, A4.

54. “Enron: The Other Cases,” Houston Chronicle, May 26, 2006.

55. Bargains on the sentence are primarily conducted at the state, not the federal, level because federal sentences are largely made within the bailiwick of the judge, with advice from the probation officer—with both acting under congressional sentencing guidelines that took effect November 1, 1987.

56. This dialogue occurred on June 9, 2004, in the Harris County (Texas) Court House in one of the jury deliberation rooms. The jurist quoted here is Texas Criminal District Court judge Marc Carter.

57. James N. Johnson, “Sentencing in the Criminal District Courts,” Houston Law Review 9 (1972): 974.

58. Missouri v. Frey, No. 10–444 (2012) and Lafler v. Cooper, No. 10-209 (2012).

59. Adam Liptak, “Justices’ Ruling Expands Rights of Accused in Plea Bargains,” New York Times, March 21, 2012.

60. Ibid.

61. Devlin Barrett, “Sentencing Abuse Alleged by Judge,” Wall Street Journal, October 19, 2013, A6.

62. Craig M. Bradley, “Reforming the Criminal Trial,” in Courts and Justice: A Reader, 2nd ed., ed. C. Larry Mays and Peter R. Gregware (Prospect Heights, Ill.: Waveland Press, 2000), 506–507.

63. Regina E. Rauxloh, “Plea Bargaining—A Necessary Tool for the International Criminal Court Prosecutor,” Judicature 94 (2011): 178.

64. Thomas Kamm and Paul M. Barrett, “How Would Paparazzi Who Stalked Diana Fare in French Court?” Wall Street Journal, September 2, 1997.

65. Julie Watson, “Mexico Reforms Its Courts,” Houston Chronicle, June 18, 2008, A11.