Court/Law Questions

uscs.1.pdf

Home >Law homework help >Court/Law Questions

L A W S O N , A N G E L A 6 8 5 3 B U

This is an electronic version of the print textbook. Due to electronic rights restrictions, some third party content may be suppressed. Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. The publisher reserves the right to remove content from this title at any time if subsequent rights restrictions require it. For valuable information on pricing, previous editions, changes to current editions, and alternate formats, please visit www.cengage.com/highered to search by ISBN#, author, title, or keyword for materials in your areas of interest.

L A W S O N , A N G E L A 6 8 5 3 B U

ALL RIGHTS RESERVED. No part of this work covered by the copyright herein may be reproduced, transmitted, stored, or used in any form or by any means graphic, electronic, or mechanical, including but not limited to photocopying, recording, scanning, digitizing, taping, Web distribution, information networks, or information storage and retrieval systems, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without the prior written permission of the publisher.

Library of Congress Control Number: 2012937192

Student Edition:

ISBN-13: 978-1-285-06194-8

ISBN-10: 1-285-06194-2

Loose-leaf Edition:

ISBN-13: 978-1-285-06223-5

ISBN-10: 1-285-06223-X

Wadsworth 20 Davis Drive Belmont, CA 94002-3098 USA

Cengage Learning is a leading provider of customized learning solutions with office locations around the globe, including Singapore, the United Kingdom, Australia, Mexico, Brazil, and Japan. Locate your local office at www.cengage.com/global.

Cengage Learning products are represented in Canada by Nelson Education, Ltd.

To learn more about Wadsworth, visit www.cengage.com/wadsworth

Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com.

America’s Courts: And the Criminal Justice System, Eleventh Edition David W. Neubauer and Henry F. Fradella

Editor in Chief: Linda Ganster

Senior Acquisitions Editor: Carolyn Henderson-Meier

Developmental Editor: Shelley Murphy, Julie Martinez

Assistant Editor: Casey Lozier

Media Editor: Ting Jian Yap

Brand Manager: Melissa Larmon

Market Development Manager: Michelle Williams

Senior Content Project Manager: Christy A. Frame

Senior Art Director: Maria Epes

Senior Manufacturing Planner: Judy Inouye

Rights Acquisitions Specialist: Tom McDonough

Production and Composition Service: MPS Limited

Photo and Text Researcher: PreMedia Global

Copy Editor: Debbie Stone

Text Designer: Lisa Delgado

Cover Designer: Riezebos Holzbaur/ Brieanna Hattey

Cover Image: Downtown Fort Worth : © Jeremy Woodhouse/The Image Bank/ Getty Images

For product information and technology assistance, contact us at Cengage Learning Customer & Sales Support, 1-800-354-9706

For permission to use material from this text or product, submit all requests online at www.cengage.com/permissions

Further permissions questions can be e-mailed to [email protected]

Printed in the United States of America 1 2 3 4 5 6 7 16 15 14 13 12

L A W S O N , A N G E L A 6 8 5 3 B U

1 Courts, Crime, and Controversy

Casey Anthony sits in court during sentencing at the

Orange County Courthouse in

Orlando, Florida. Although Anthony

was acquitted of murdering her

two-year-old daughter Caylee, she

was convicted of lying to the police

and sentenced to four years prison.

However, because she received

credit for the time she served

awaiting trial and for good behavior

while in pretrial detention, she was

released shortly after sentencing.

P O

O L

N e

w /

R E

U T

E R

L A W S O N , A N G E L A 6 8 5 3 B U

Chapter Outline COURTS AND CRIME

COURTS AND THE CRIMINAL JUSTICE SYSTEM

An Interdependent Criminal Justice System A Fragmented Criminal Justice Nonsystem Tensions and Conflicts

AN OVERVIEW OF U.S. COURTS

IDENTIFYING THE ACTORS IN THE COURTHOUSE

Prosecutors Defense Attorneys Judges Defendants and Victims

FOLLOWING THE STEPS OF THE PROCESS

Crime Arrest Initial Appearance Bail Grand Jury Preliminary Hearing Arraignment

Discovery Pretrial Motions Plea Negotiations Trial Sentencing Appeal

CASE CLOSE-UP: Brown v. Mississippi

LAW ON THE BOOKS

LAW IN ACTION

COURTS AND CONTROVERSY Crime Control Model Due Process Model Shifting the Balance

Courts, Controversy, & Reducing Crime Is It Time to End the War on Drugs?

MEDIA DEPICTIONS AND DISTORTIONS OF CRIMINAL COURTS

Courts, Law, & Media The Casey Anthony Trial

L A W S O N , A N G E L A 6 8 5 3 B U

LO1

her two-year old daughter Caylee was missing, Casey Anthony partied, got a tattoo, and otherwise lived her life by making up a series of stories to explain Caylee’s whereabouts. After Caylee’s body was discovered close to the Anthony home, Casey was charged and tried for her daughter’s murder. Although a significant amount of circumstantial evidence suggested that Casey was guilty, no forensic evidence tied her directly to Caylee’s death—a factor that may have led to her acquittal. The not-guilty verdict sparked great pub- lic outrage that a “baby killer” had gone free. But jurors interviewed after the conclusion of the nearly two-month-long case said the prosecution had not proven how Caylee died and whether Casey was involved in her daughter’s death.

Casey Anthony’s case highlights a common disconnect between the way a case is perceived by those evaluating the evidence presented in a court of law and the ways in which a case is perceived in the court of public opinion. In a courtroom, defendants are presumed innocent until proven guilty beyond a reasonable doubt. In contrast, reporters, media pundits, and their audiences are not constrained by formal presumptions or the rules of evidence. This dispar- ity often causes people to misperceive the criminal judicial process as unfair. This book seeks to correct the most common misperceptions about the role of the courts in the U.S. criminal justice system.

h got a tattoo, and ot

Even though

After reading this chapter, you should be able to:

Describe how the courts are related to the other components of the criminal justice system.

Discuss the major types of courts found in the United States.

Identify the most important actors in the courthouse.

List the steps in a typical felony prosecution.

Explain how a law in action perspective complements a law on the books approach to studying the criminal courts.

Distinguish between the crime control model of criminal justice and the due process model of criminal justice.

111LO1

LO2

LO3

LO4

LO5

LO6

Learning Objectives

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 5

decline to prosecute many sexual assault cases. How courts adapt to social changes is important. And while change in society is inevitable, it is also unset- tling. Simply stated, change produces controversy. A good deal of this book examines the controversy sur- rounding courts and crime.

COURTS AND CRIME

In July 2008, Cindy Anthony reported to police that she had not seen her two-year-old granddaughter, Caylee, for more than a month, even though the toddler lived with her, her husband George, and their daughter, Casey (Caylee’s mother). Cindy also reported that she had smelled a foul odor, consistent with that of a dead body, in her daughter Casey’s car.

Yet, during the period of time Caylee was miss- ing, Casey Anthony was photographed scantily clad and grinding on the dance floor of local clubs. She also got a tattoo reading “bella vita” (“beautiful life” in Italian). The police and the general public had a hard time understanding how Casey could engage in such conduct while her daughter was missing. When the remains of Caylee’s body were eventually found in a wooded area near her family’s home in December 2008, Casey Anthony was charged with murdering her daughter.

The death of Caylee Anthony provides a poignant example that crime has been a pressing national con- cern for decades. Newspapers headline major drug busts. Local television news broadcasts graphic foot- age of the latest murder scene. Not to be outdone, the national media offer tantalizing details on the lat- est sensational crime or prominent criminal. Mean- while, official government statistics document that levels of crime are high (but declining), and unofficial pollsters report that Americans believe crime rates are too high. These concerns prompt governmental response. Candidates for public office promise that, if elected, they will get tough on criminals. Govern- ment officials, in turn, announce bold new programs to eradicate street crime, reduce violence, and end the scourge of drugs. In some areas, most notably in New York City and San Diego, such crime con- trol efforts significantly reduced crime (Corman & Mocan, 2005; Jacobson, 2005). Such efforts, however, have been less effective in other areas of the United States, where street crime remains a volatile, persis- tent, and intractable issue.

Is Casey Anthony truly innocent of any criminal wrongdoing in the death of her daughter, or did jurors unjustly acquit her because of a lack of foren- sic evidence they expected, but which did not exist? We may never know the answers to such questions, but research suggests that “changes in popular cul- ture brought about by rapid scientific and techno- logical advances and widespread dissemination of information about them” has “heightened juror expectations and demands for scientific evidence in almost every respect” (Shelton, Kim, & Barak, 2009, p. 2). Some scholars and practitioners call this phenomenon the CSI effect, even though forensic science on television appears to be only one factor in an overall social trend that embraces technology while discounting logical inference (see Chapter 13).

There can be no doubt that changes in popular culture affect America’s legal institutions. Indeed, jurors expect sophisticated forensic evidence in even the most mundane cases (Shelton, 2008). But the widespread use of forensic evidence to convict guilty defendants at trial and exonerate the inno- cent on appeal is just one example of the dynamic nature of the legal system in the United States. Although courts and law have a long history that provides stability, this does not mean that courts and law are static institutions. On the contrary, changes in society end up in courthouses in a vari- ety of ways. At times, specific events are the catalyst for change. In the aftermath of the terrorist attacks of September 11, 2001, for example, courts wrestled with questions about the scope of electronic eaves- dropping and whether alleged terrorists can be held indefinitely in military prisons without trials. At other times, courts have been forced to adapt to changes in other branches of government. Legisla- tures across the nation, for example, have launched wars on drugs that have flooded the courts with a growing number of cases even as the incidence of other crimes decreases. Likewise, changes in pub- lic opinion affect how justice is administered. Con- cerned about crime rates that are too high, the public has demanded that judges get tough with criminals.

Courts are independent from the other branches of government, but this does not mean that they are divorced from the society they serve. Rather, societal issues impact the kinds of cases brought to court and how they are handled. For example, concerns about gender equity prompted examination of how courts handle domestic violence and why district attorneys

L A W S O N , A N G E L A 6 8 5 3 B U

6 Part 1 / The Legal System

Casey Anthony, who offered a series of suspicious explanation’s for her daughter’s whereabouts. She even told detectives a made-up story about how Caylee had been kidnapped by a fictitious nanny. Casey claimed she had spent more than month looking for her daughter in the wake of the alleged kidnapping, but had been too afraid to notify the police, allegedly fearing what might be done to her daughter if she told authorities. The major break came when a meter reader called police about a suspicious object found in a forested area near the Anthony residence. The police at first dismissed the tip but months later went back to the spot and eventually found Caylee Anthony’s badly decom- posed body. In the months that followed, numer- ous local, state, and federal law enforcement agen- cies became involved in the investigation.

The diverse groups of people and agencies involved in the arrest, prosecution, and conviction of Casey Anthony provide an insight into the size and complexity of the criminal justice system in the United States. Fighting crime is a major societal activity. Every year, local, state, and federal gov- ernments spend approximately $228 billion on the criminal and civil justice system in the United States (Bureau of Justice Statistics, 2011). These tax dol- lars support an enormous assortment of criminal justice agencies, which in turn employ a large (and growing) number of employees; approximately 2.5 million people earn their living working in the criminal justice system. These government officials are quite busy: Every year, the police make more than 13 million arrests, not including traffic viola- tions. And every day, correctional personnel super- vise approximately 7.3 million people. Yet as large as these figures are, they still underestimate societal activity directed against crime. A substantial num- ber of persons are employed in the private sector in positions either directly (defense attorneys and bail agents) or indirectly (locksmiths and private secu- rity) related to dealing with crime (Hakim, Rengert, & Shachmurove, 1996; Ribovich & Martino, 2007).

The numerous public agencies involved in implementing public policy concerning crime are referred to as the criminal justice system. Figure 1.1 depicts the criminal justice system as consisting of three overlapping circles: Police are respon- sible for apprehending criminals; the courts are responsible for deciding whether those arrested are legally guilty and, if so, determining the sentence;

A good deal of the political rhetoric about crime focuses on the criminal courts. Prosecutors are viewed as being too ready to engage in plea bar- gaining. Judges are accused of imposing unduly lenient sentences. Appellate courts are blamed for allowing obviously guilty defendants to go free on technicalities. Meanwhile, the police com- plain that Supreme Court decisions handcuff the fight against crime. Victims of crime become frus- trated by lengthy trial delays. Witnesses protest wasted trips to the courthouse. Judges and defense attorneys—much more so than police chiefs and prison wardens—are blamed for high crime rates.

The purpose of this chapter is to build on public perceptions of the criminal courts by focusing on a few basic topics. We begin by discussing where the courts fit in the criminal justice system. Next, attention shifts to the three activities that set the stage for the rest of the book:

The organization of the U.S. courts system Identifying the actors in the courthouse Following the steps of the process

As we will see below, the judicial process is com- plicated, so throughout this book we will examine the courts from three complementary perspectives:

Law on the books Law in action Courts and controversy

The “law on the books” perspective helps us understand the legal foundations of our nation’s criminal justice system. The “law in action” per- spective helps us understand how discretionary decisions are made within the context of the formal law. Finally, the “courts and controversy” perspec- tive helps us think about policy choices, priorities, potential reforms to the system, and what direc- tions such reforms should take.

COURTS AND THE CRIMINAL JUSTICE SYSTEM

The Orange County, Florida, Sherriff’s department took the lead in investigating the disappearance of Caylee Anthony. But the detectives had little to go on besides the inconsistencies in the statements of

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 7

The decisions that courts make have important consequences for other components of the crimi- nal justice system. Judges’ bail policies, for exam- ple, immediately affect what happens to a person arrested by the police; likewise, corrections per- sonnel are affected because the bail policies of the judges affect the size of the local jail population. If the decisions made by the courts have important consequences for police and prisons, the reverse is equally true: The operations of law enforcement and corrections have a major impact on the judi- ciary. The more felons the police arrest, the greater the workload of the prosecutors; and the more overcrowded the prisons, the more difficult it is for judges to sentence the guilty.

A Fragmented Criminal Justice Nonsystem

The system approach to criminal justice dominates contemporary thinking about criminal justice. But not everyone is convinced of the utility of this con- ceptualization. Some people point to a nonsystem of criminal justice. Although the work of the police, courts, and corrections must, by necessity, overlap, this does not mean that their activities are coor- dinated or coherent. From the perspective of the nonsystem, what is most salient is the fragmenta- tion of criminal justice. Fragmentation character- izes each component of the criminal justice system. The police component consists of nearly 18,000 law enforcement agencies, with varying traditions of cooperation or antagonism. Likewise, the correc- tions component includes more than 1,820 state and federal correctional facilities, to say nothing of the thousands of local jails. But corrections also encompasses probation, parole, drug treatment, halfway houses, and the like.

The same fragmentation holds true for the courts. In many ways, talking about courts is mis- leading, because the activities associated with “the court” encompass a wide variety of actors. Many people who work in the courthouse—judges, pros- ecutors, public defenders, clerks, court reporters, bailiffs—are employed by separate government agencies. Others who work in the courthouse are private citizens, but their actions directly affect what happens in this governmental institution; defense attorneys and bail agents are prime exam- ples. Still others are ordinary citizens who find

corrections is responsible for carrying out the pen- alty imposed on those found guilty.

The major components of the criminal justice system do not make up a smoothly functioning and internally consistent organization. Rather, the criminal justice system is both interdependent and fragmented.

An Interdependent Criminal Justice System

Viewing the various components of criminal jus- tice as a system highlights the fact that these differ- ent agencies are interdependent and interrelated. Police, courts, and corrections are separate govern- ment institutions with different goals, histories, and operating procedures. Though separate, they are also tied together because they must interact with one another. The courts play a pivotal role within the criminal justice system because many formal actions pertaining to suspects, defendants, and convicts involve the courts. Only the judi- ciary can hold a suspect in jail prior to trial, find a defendant guilty, and sentence the guilty person to prison. Alternatively, of course, the courts may release the suspect awaiting trial, find the suspect not guilty, or decide to grant probation.

Figure 1.1 ■ The Overlapping Circles of the Criminal Justice System

C e

n g

a g

e L

e a

rn in

L A W S O N , A N G E L A 6 8 5 3 B U

8 Part 1 / The Legal System

on other organizations, guaranteeing that multiple perspectives will be considered. The same holds true within the courts. Judges, prosecutors, and defense attorneys, for example, share the common task of processing cases but at the same time exhibit differ- ent perspectives on the proper outcome of the case. Understanding this complexity, in America’s Courts and the Criminal Justice System we examine the nation’s judiciary in five complementary sections. Part I is about the basic organization of our court system; Part II concerns identifying the actors in the court- house; Part III focuses on following the steps of the judicial process after an arrest through trial; Part IV examines how the convicted are sentenced; and Part V looks at appellate and juvenile courts.

AN OVERVIEW OF THE U.S. COURTS

Because Caylee Anthony’s murder occurred in Orange County, Florida, the courts in that county heard the case. If Casey Anthony had been convicted of murder, her appeals would have been heard in the Florida appellate courts. And if the jury had found her guilty and imposed the death penalty, Casey Anthony would likely have had the opportunity to challenge her conviction in the federal courts as well. Clearly, the Casey Anthony trial was atypical because it had so much publicity; ordinary felony cases rarely involve more than one court and one appeal. Nonetheless, it begins to illustrate the com- plexity of the court system in the United States.

By rough count, 17,000 courthouses are operat- ing in the United States. Some are imposing turn- of-the-century buildings noted for their elaborate architecture. Others are faceless modern structures marked by a lack of architectural inspiration. A few courts, you might be surprised to learn, are in the front of a funeral parlor or the back of a garage, where justices of the peace preside in rural areas. Buildings aside, courts are governmental organiza- tions created to hear specific types of cases. Figure 1.2 offers a preliminary overview of different types of courts in the United States.

One distinction is between federal and state courts. The term dual court system refers to sepa- rate state and federal courts (rarely do cases move from one system to the other). Another important difference between courts relates to function. Most

themselves in the courthouse either because they are compelled to be there (defendants and jurors) or because their activities are essential to the dispo- sition of cases (victims and witnesses).

The fragmentation within the three components of the nonsystem of criminal justice is compounded by the decentralization of government. American government is based on the principle of federalism, which distributes governmental power between national (usually referred to as federal) and state governments. In turn, state governments create local units of government, such as counties and cit- ies. Each of these levels of government has its own array of police, courts, and corrections. This decen- tralization adds tremendously to the complexity of the American criminal justice system. For exam- ple, depending on the nature of the law allegedly violated, several different prosecutors may bring charges against a defendant, including the follow- ing: city attorney (local), district attorney (county), attorney general (state), U.S. attorney (U.S. district court), and U.S. attorney general (national).

Tensions and Conflicts

Criminal justice is best viewed as both a system and a nonsystem. Both interdependence and fragmen- tation characterize the interrelationships among the agencies involved in apprehending, convicting, and punishing wrongdoers. In turn, these structural arrangements produce tensions and conflicts within each component. For example, the prosecutor may loudly condemn the actions of a judge, or a defense attorney may condemn the jury for an unjust verdict.

Tensions and conflicts also occur among the components of criminal justice. The interrelation- ships among police, courts, and corrections are often marked by tension and conflict because the work of each component is evaluated by others: The police make arrests, yet the decision to charge is made by the prosecutor; the judge and jury rate the prosecutor’s efforts.

Tensions and conflicts also result from multiple and conflicting goals concerning criminal justice. Government officials bring to their work different perspectives on the common task of processing per- sons accused of breaking the law. Tensions and con- flicts among police, courts, and corrections, therefore, are not necessarily undesirable; because they arise from competing goals, they provide important checks

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 9

Other courts (fewer in number) are appeals courts that review decisions made by trial courts (usually only the major trial courts). Appeals courts review decisions made elsewhere, but no tri- als are held, no jurors employed, and no witnesses heard. Rather, appellate courts are places where lawyers argue whether the previous decision cor- rectly or incorrectly followed the law. In many ways, appellate courts are like a monastery, where schol- ars pore over old books and occasionally engage in polite debates. Given the growing volume of cases, the federal government and most states have cre- ated two levels of appellate courts: intermediate courts, which must hear all cases, and supreme courts, which pick and choose the cases they hear.

Although the U.S. Supreme Court stands atop the organizational ladder, it hears only a hand- ful of the cases filed each year (often fewer than 85 per year). Thus, its importance is measured not

courts are trial courts. As the name implies, this is where trials are held, jurors sworn, and witnesses questioned. Trial courts are noisy places resembling school corridors between classes. Amid the noisy crowd you will find lawyers, judges, police offi- cers, defendants, victims, and witnesses walking through the building during working hours.

Trial courts, in turn, are divided between major and lower. Lower courts initially process felony cases (set bail, for example) but cannot find the defendant innocent or guilty and therefore cannot sentence. Their primary activity involves processing the mil- lions of minor offenses such as public drunken- ness, petty theft, and disorderly conduct. Major trial courts, on the other hand, are responsible for the final phases of felony prosecutions. In these courts, defen- dants charged with crimes such as murder, robbery, burglary, and drug dealing enter a plea of guilty (or occasionally go to trial), and the guilty are sentenced.

Figure 1.2 ■ Overview of Court Structure in the United States

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

10 Part 1 / The Legal System

Enter a trial courtroom, and you will observe numerous people either busily engaged in doing something or seemingly doing nothing. Some of the actors in the courthouse are easily identifiable by the clothes they wear. The person sitting high above everyone else and wearing the black robe is the judge. The person in handcuffs arrayed in a bright orange jumpsuit is the defendant. And the men and women dressed in uniforms are law enforcement officers. But the roles being performed by the others in attendance are not readily appar- ent. It is clear that those sitting in front of the railing are more important than those in back of it. Until court proceedings begin, the observer is never sure whether those in back of the railing are victims, defendants, family, witnesses, reporters, poten- tial jurors, or retired citizens whose hobby is court watching. After the proceedings begin, their roles become more apparent.

Some participants are present on a regular basis; others, only occasionally. Many are public employ- ees, but some are private citizens. Using the catego- ries applied to the criminal justice system, Table 1.1 provides a chart of many of the actors one would expect to see in a courthouse on any given day. Some of the titles vary from place to place. Similarly, the participants vary depending on the type of case. In a murder case, for example, a scientist from the crime lab may be presenting evidence, but in a child sex- ual abuse case, the actors will more likely include a

in terms of the number of cases decided but in the wide-ranging impact these few decisions have on all stages of the process.

IDENTIFYING THE ACTORS IN THE COURTHOUSE

The outside of the Orange County Circuit Court resembled a circus with satellite trucks waiting to disseminate the latest details of the most recent crime of the century. The inside of the courtroom was packed with as many reporters and others who had received permission to enter. Sitting at one table were the prosecutors; at another, the defendant and her defense attorneys. Immediately in front of these two tables was the judge, sitting high on the bench with several key court staff arrayed below him. On one side was the witness chair, which during the course of the trial was occupied by friends and family of the deceased as well as various law enforcement officers. And on the other side was the jury box, filled with local citizens. The jury found Casey Anthony guilty of four misdemeanor counts of lying to the police, but acquitted her of the more serious charges of first-degree murder, aggravated manslaughter, and aggravated child abuse. All of these persons in the Casey case are important. For this reason, Part II of this book focuses on the actors in the courthouse.

TABLE 1.1 ■ ACTORS IN THE COURTHOUSE

Justice Professionals Members of the Public

Police Lawyers Court Support Staff

Corrections

Officials

Regular

Participants

Irregular

Participants

Federal Prosecutors Clerks of court Probation officers Bail agents Defendants

State Public defenders Court reporters Jail employees Reporters Victims

Sheriff Private defense attorneys

Pretrial services personnel Prison employees Social services personnel

Witnesses

Local Judges Bailiffs Drug rehabilitation program personnel

Select expert witnesses

Jurors

Special districts

Law clerks Court administrators Victim advocates

Private security

Victim-/witness-assistance program personnel

Rape crisis center

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 11

instruct jurors about the meaning of the law, and only judges can impose sentences. Exercising this authority, though, is limited by the reality of high caseloads. The quickest way to dispose of cases is by a plea of guilty. Thus, judges must be responsive to prosecutors and defense attorneys if they are to achieve their principal goal of disposing of cases.

Defendants and Victims

Defendants are, by and large, young, poor, uneducated males. A large percentage stand accused of property crimes (theft and burglary) or low-level drug offenses. They are hardly the clever and sophisticated criminals portrayed in fiction. African-Americans and Latinos comprise a disproportionately large percentage of felony defendants, a fact that has placed race and ethnicity at the forefront of the politics of justice (Walker, Spohn, & DeLone 2007).

The victims of crime are playing an increasingly important role in the criminal courts. Once ban- ished to a bit part of testifying, they are increasingly demanding major roles in setting bail, agreeing to pleas of guilty, imposing sentences, and grant- ing release from prison. Groups such as Mothers Against Drunk Driving (MADD) and the National Organization for Victim Assistance (NOVA) have become a potent political force.

FOLLOWING THE STEPS OF THE PROCESS

In several important ways, Casey Anthony’s case is atypical. First, she was charged with murder. Contrary to their omnipresence in the media, murder and nonnegligent homicide cases account for less than 1/10 of 1 percent of all criminal arrests (Bureau of Justice Statistics, 2011). Second, Casey Anthony was charged with capital mur- der, meaning that if she had been convicted, she could have been sentenced to death. In contrast, very few homicides are death-penalty-eligible. Third, Casey Anthony’s case went to trial, rather than being resolved via the plea-bargaining pro- cess like 90 to 95 percent of all felony cases. And, finally, Casey Anthony was acquitted, while the overall conviction rate at trial for felonies is upward of 90 percent.

social worker or psychiatrist. A brief overview of the main actors will help set the stage.

Prosecutors

The organization of prosecutors in the United States is as fragmented as the courts in which they appear. Limiting ourselves here only to state courts and state prosecutions, in most states you find one prosecutorial office for the lower courts (typically the city attorney), another for the major trial court (typically called the district attorney or the state’s attorney), and yet another at the state level (almost uniformly called the attorney general).

Regardless of the level, prosecutors are the most influential of the courthouse actors. Their offices decide which cases to prosecute, which cases to plea-bargain, and which cases to try. They may also be influential in matters such as setting bail and choosing the sentence.

Defense Attorneys

The U.S. Constitution guarantees defendants the right to counsel. But for most defendants, this abstract “right” collides with economic reality. Many defendants cannot afford to hire a lawyer, so the government must provide one at government expense, either a court-appointed lawyer or a pub- lic defender. Only a handful of defendants hire a private lawyer.

Our notions of defense attorneys have been shaped by fictional characters on television and in movies who are always able to show that their cli- ents are innocent. Reality is strikingly different. Often defense attorneys urge their clients to plead guilty based on the assessment that a jury will find the defendant guilty beyond a reasonable doubt. Even when cases are tried, defense attorneys only occasionally are able to secure a not-guilty verdict for their clients.

Judges

Judges in state courts are by and large elected by the voters. Federal judges, on the other hand, are nominated by the president of the United States and confirmed by the U.S. Senate. Judges are the ultimate authority figures in the courthouse because only judges can set bail, only judges can

L A W S O N , A N G E L A 6 8 5 3 B U

12 Part 1 / The Legal System

majority of crimes involve burglary and theft. In fact, people report about 1.25 million violent crimes and 9.1 million property crimes to the police each year. However, many crimes are never reported and, therefore, never make the official statistics.

Legally, crimes fall into three categories: felo- nies (in most states punishable by 1 year or more in prison); misdemeanors (typically punishable by up to a 1-year sentence in a local jail); and violations (subject to fine or a short jail term). Felonies are filed in major trial courts, whereas misdemeanors and violations are typically heard in the lower courts.

Arrest

Every year the police make more than 11 million arrests for nontraffic offenses. Most are for minor crimes, but nearly 1.86 million involve serious crimes, such as murder, rape, assault, robbery, burglary, and theft. The police are able to make an arrest in only one out of five crimes known to them. As a result, only a fraction of the nation’s major crimes ever reach the courts.

Initial Appearance

An arrested person must be brought before a judge without unnecessary delay. For felony defendants, the initial appearance is largely a for- mality because no plea may be entered. Instead, defendants are told what crime they are alleged to have committed and perfunctorily advised of their rights, and a date for the preliminary hear- ing is set. For misdemeanor defendants, the initial appearance is typically the defendant’s only court- room encounter; three out of four plead guilty and are sentenced immediately.

Bail

The most important event that occurs during the ini- tial appearance is the setting of bail. Because a defen- dant is considered innocent until proven guilty, the vast majority of defendants have the right to post bail. But this legal right is tied to the defendant’s economic status. Many defendants are too poor to scrounge up the cash to pay the bail agent’s fee; thus, they must remain in jail awaiting trial. The overrid- ing reality, however, is that U.S. jails are overflow- ing. As a result, pretrial detention is limited largely

Both Figure 1.3 and the “Law on the Books vs. Law in Action” feature on page 15 present an over- view of the stages a felony case passes through from arrest to appeal. The specifics of criminal procedure vary from state to state, and federal requirements differ from state mandates. Rest assured that the remainder of the text will complicate this oversim- plification. But for now, we focus on a defendant charged with a noncapital state felony.

Crime

The amount of crime in the United States is difficult to quantify precisely, but compared to other indus- trialized nations it is high. Although the media focus on crimes of violence, the overwhelming

Figure 1.3 ■ Flowchart of the Steps in the Criminal Judicial Process

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 13

appearance. During arraignment, the defendant is given a copy of the formal charges, advised of his or her rights (usually more extensively than at the initial appearance), and for the first time is called upon to enter a plea. Not surprisingly, most defen- dants plead not guilty, but a few admit their guilt then and there and enter a plea of guilty. Overall, little of importance happens during arraignment.

Discovery

The term discovery refers to the exchange of infor- mation prior to trial. In some states, but not all, the prosecutor is required to turn over a copy of the police reports to the defense prior to trial. In gen- eral, however, the defense is required to provide the prosecutor with little if any information. The formal law aside, many prosecutors voluntarily give defense attorneys they trust extensive infor- mation prior to trial, anticipating that the defense attorney will persuade the defendant to enter a plea of guilty.

Pretrial Motions

Motions are simply requests for a judge to make a decision. Many motions are made during trial, but a few may be made beforehand. The most significant pretrial motions relate to how the police gathered evidence. Defense attorneys file motions to sup- press evidence—that is, to prevent its being used during trial. Motions to suppress physical evidence contend that the police conducted an illegal search and seizure (Mapp v. Ohio, 1961). Motions to sup- press a confession contend that the police violated the suspect’s constitutional rights during question- ing (Miranda v. Arizona, 1966).

Plea Negotiations

Most findings of guilt result not from a verdict at trial but from a voluntary plea by the defen- dant. Ninety percent of all felony convictions are the product of negotiations between the pros- ecutor and the defense attorney (and sometimes the judge as well). Although the public thinks of plea bargaining as negotiating a lenient sen- tence, the reality is that each courthouse has an informal understanding of what a case is worth. Thus, plea bargaining is governed by informal

to defendants who are alleged to have committed serious crimes; judges set a very high bail because they do not want these defendants wandering the streets before trial. For defendants charged with less serious crimes, judges and prosecutors may want to keep them in jail while awaiting trial, but the citizens are often unwilling to invest the tens of millions of dollars needed to build more jails.

Grand Jury

The grand jury is designed as a check on unwar- ranted prosecutions. Grand juries are required in all federal felony prosecutions, but only about half the states use them. In grand jury proceed- ings, a prosecutor must convince a simple major- ity of the grand jurors that a crime was committed and that there is probable cause that the defen- dant committed crime. Probable cause is not a particularly high or exacting standard of proof. All that needs to be shown to meet this burden of proof is a “fair probability” that the defendant committed the crime.

If the grand jury finds probable cause to hold the defendant for trial, it returns an indictment (also called a “true bill”) charging the defendant with a crime. On rare occasions, grand juries refuse to indict (such refusal is called a “no bill” or a “no true bill”). Legal theory aside, grand juries are dominated by the prosecutor, and they obligingly indict whomever the prosecutor wants indicted.

Preliminary Hearing

Like grand jury proceedings, preliminary hearings provide a check against unwarranted prosecu- tions. During a preliminary hearing, the prosecutor must prove to a judge (rather than to a grand jury) that a crime was committed and that there is prob- able cause to believe that the defendant committed the crime. Given the low burden of proof, most of the time a judge finds that probable cause is present and orders the defendant held for further proceed- ings. In most courthouses, few cases are dismissed at the preliminary hearing for lack of probable cause.

Arraignment

Although the two terms are often used inter- changeably, an arraignment differs from the initial

L A W S O N , A N G E L A 6 8 5 3 B U

14 Part 1 / The Legal System

Appeal

Virtually all defendants found guilty during trial contest their fate, filing an appeal with a higher court in the hope that they will receive a new trial. Contrary to public perceptions, defendants are rarely successful on appeal; fewer than 1 in 10 appellants achieve a victory in the appellate courts, and of those who do, most are reconvicted in a sub- sequent trial. Moreover, appeals are filed in only a small proportion of all guilty verdicts; defendants who plead guilty rarely appeal.

Appellate court opinions affect future cases because the courts decide policy matters that shape the operation of the entire criminal justice system. The “Case Close-Up” on Brown v. Mississippi (1936) illustrates this point.

LAW ON THE BOOKS

The structure of the courts, the legal duties of the main actors, and the steps in the criminal process are all basic to understanding how the courts dis- pense criminal justice. These elements constitute law on the books—the legal and structural compo- nents of the judiciary. In essence, the starting point in understanding the legal system is knowing the formal rules.

Law on the books is found in constitutions, laws enacted by legislative bodies, regulations issued by administrative agencies, and cases decided by courts. Little doubt exists that decisions by the U.S. Supreme Court have far-reaching ramifications. To highlight the importance of court decisions, each chapter’s Case Close-Up provides an in-depth look at some of the court decisions that have shaped our nation’s criminal justice system, such the one below.

These three points exemplify “law on the books.” But one need not be an expert in law and justice to know that these terse statements of the law do not account for the way that confessions are obtained by police and used in courts of law, especially when issues like racism, sexism, and homophobia come into play. Such factors can only be accounted for by a “law in action approach” to the study of criminal courts and the people who participate in their operation.

understandings of what sentence is appropriate for a given type of defendant.

Trial

Trial by jury is one of the most fundamental rights granted to those accused of violating criminal law. A defendant can be tried either by a judge sitting alone (called a “bench trial”) or by a jury. A jury trial typi- cally begins with the selection of 12 jurors. Each side makes opening statements, indicating what they think the evidence in the case will show. Because the prosecutor has the burden of proving the defen- dant guilty beyond a reasonable doubt, he or she is the first to call witnesses. After the prosecution has completed its case, the defense has the opportunity to call its own witnesses. When all the evidence has been introduced, each side makes a closing argu- ment to the jury, and the judge then instructs the jury about the law. The jurors retire to deliberate in secret. Though the details of trial procedure vary from state to state, one factor is constant: The defen- dant’s chances for an acquittal are not good.

Sentencing

Most of the steps of the criminal process are con- cerned with determining innocence or guilt. In upwards of 90 percent of criminal cases, criminal trials end with convictions. At that point, the mem- bers of the courtroom work group strive to help a judge determine what sentence to impose. Indeed, defendants themselves are often more concerned about how many years they will have to spend in prison than about the question of guilt.

The principal decision the judge must make is whether to impose a prison sentence or place the defendant on probation. Fines are rarely used in felony cases. The death penalty is hotly debated but in actuality is limited to only some first-degree murder cases. Prison overcrowding is the domi- nant reality of contemporary sentencing; roughly 1.7 million inmates are incarcerated in state and federal prisons. Only recently has attention begun to focus on the fact that the political rhetoric of “lock them up and throw away the key” has resulted in severe prison overcrowding, causing policy makers to consider a range of intermediate sanctions that provide alternatives to incarceration.

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 15

LAW ON THE BOOKS VS. LAW IN ACTION STEPS IN THE CRIMINAL JUSTICE PROCESS

LAW ON THE BOOKS LAW IN ACTION

Crime Any violation of the criminal law. People report about 1.25 million violent crimes and 9.1 million property crimes to the police each year.

Arrest The physical taking into custody of a suspected law violator.

Every year, the police make more than 11 million arrests for nontraffic offenses. Most are for minor crimes, but nearly 1.86 million involve serious crimes.

Initial appear-

ance

The accused is told of the charges, bail is set, and a date for the preliminary hearing is set.

Occurs soon after arrest, which means the judge and lawyers know little about the case.

Bail Money or property is pledged as a form of guarantee that a released defendant will appear at trial.

Bail is tied to a variety of factors, including some that seemingly have little to do with the case. But whether someone is released on bail has a significant effect on the rest of the case.

Charging deci-

sion

Formal criminal charges against the defendant, stating what criminal law was violated.

Between arrest and appearance at the major trial court, half of cases are dropped.

Preliminary

hearing or grand

jury

Judicial proceedings to determine whether probable cause exists to make the accused stand trial on felony charges.

Cases are rarely dismissed at this stage.

Arraignment The defendant is informed of the pending charges and is required to enter a plea.

Most defendants plead not guilty at this stage and then later change their pleas as part of a plea bargain.

Discovery Formal and informal exchange of information before trial.

Prosecutors turn over evidence of guilt in hopes of obtaining a plea of guilty.

Pretrial motions Defense may seek to have evidence suppressed because it was collected in a way that violates the Constitution.

Suppression motions are rarely granted but are at the heart of a major debate.

Plea negotiations The defendant pleads guilty with the expectation of receiving some benefit.

About 90 to 95 percent of felony defendants plead guilty.

Trial A fact-finding process using the adversarial method before a judge or a jury.

Most likely only in serious cases; defendant is likely to be convicted.

Sentencing Punishment imposed on a defendant found guilty of violating the criminal law.

Seven million persons in prison, on probation, or on parole.

Appeal Review of the lower-court decision by a higher court.

The overwhelming majority of criminal cases are affirmed on appeal.

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

16 Part 1 / The Legal System

In April 1934, Ed Brown, Henry Shields, and Yank

Ellington were indicted for murdering Raymond Stewar t.

Around 1:00 p.m. on March 30, 1934, Deputy Sheriff Dial

discovered the body of Raymond Stewar t. Later that

evening, Dial and some colleagues went to the home of

Yank Ellington and requested Ellington to accompany

them to the house of the deceased. Ellington was a poor,

uneducated black man who complied with the deputy’s

request. Once they arrived at Stewar t’s home, a number

of white men accused Ellington of

having killed Stewar t. When Ellington denied doing so,

the group seized him and—with Deputy Dial’s

par ticipation—hanged him by a rope to the limb of a

tree. They let him down before he died, only to hang him

again. After they let him down a second time, Ellington

still maintained his innocence. So, the group tied him

to a tree and whipped him, demanding that he confess.

He continued to maintain his innocence. He was finally

released and returned home in intense pain.

A day or two later, Deputy Dial, accompanied by

another deputy, returned to Ellington’s home and arrested

him. While en route to the jail in a neighboring county,

the two men again severely whipped Ellington, declaring

that the whipping would continue until he confessed. To

stop his torture, Ellington agreed to confess to whatever

statement the deputy dictated. He then did so and was

put in jail.

Two other black men, Ed Brown and Henr y Shields,

were also arrested and taken to the same jail. Deputy

Dial, again accompanied by a number of white men

(one of whom was also an officer and one of whom

was the jailer), came to the jail. They made Brown and

Shields strip and then beat their bare backs with a

leather strap with buckles on it. As had been done with

Ellington, the men made it clear that the beatings would

continue unless and until Brown and Shields confessed

with all of the details demanded of them. The whippings

continued until Brown and Shields adjusted their

confessions to match the specific details demanded by

their tor turers.

After what was later described as a “solemn farce”

of a hearing at which the three men’s “free and voluntary

confessions” were admitted into evidence, the men were

tried and convicted of Stewart’s death based on their

confessions and then sentenced to death.

The three men’s cases were appealed to the U.S. Supreme

Court, which wrote:

[T]he trial cour t was fully advised by the undisputed

evidence of the way in which the confessions had

been procured. The trial cour t knew that there

was no other evidence upon which conviction and

sentence could be based. Yet it proceeded to permit

conviction and to pronounce sentence. The convic-

tion and sentence were void for want of the es-

sential elements of due process, and the proceeding

thus vitiated could be challenged in any appropri-

ate manner. It was challenged before the Supreme

Cour t of the State by the express invocation of the

Four teenth Amendment. That cour t enter tained

the challenge, considered the federal question thus

presented, but declined to enforce [the defendants’]

constitutional right. The cour t thus denied a federal

right fully established and specially set up and

claimed, and the judgment must be reversed. (Brown

v. Mississippi, 1936,

p. 287).

Sadly, such brutal tactics were frequently used against

criminal suspects prior to the decision in Brown v.

Mississippi. In fact, the Wickersham Commission, a federal

commission set up to investigate police conduct in the

early 1930s, used the term the third degree to describe

police tactics at the time (Penney, 1998, pp. 336–337).

They defined the term as “the inflicting of pain, physical or

mental, to extract confessions or statements”

(Wickersham Commission, 1931, p. 19).

The Commission documented the use of a litany of

sadistic practices, including beating with fists, blackjacks,

rubber hoses, and telephone books; the use of hot lights;

C A S E C L O S E - U P

Continued on next page

BROWN MISSISSIPPI

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 17

LAW IN ACTION

Law on the books only partially explains how a criminal case unfolds. Although the formal law was certainly important, it cannot totally explain why the jury voted to acquit Casey Anthony. Indeed, technology and media may both have played a role in the case outcome. Nor can law on the books explain why different judges looking at the same facts and reading the same law can reach opposite conclusions.

In many ways, law on the books represents an idealized view of law—one that stresses an abstract set of rules that is so theoretical that it fails to incor- porate real people. On the one hand, law on the books provides only an imperfect road map of the day-to-day realities of the courthouse. The concept of law in action, on the other hand, focuses on the human factors governing the actual application of the law. This view stresses the mutual interdepen- dence of courtroom actors and the ways in which

they devote considerable time to processing crimi- nal cases from intake through plea bargaining and determining the appropriate sentence to impose on defendants who are found guilty. Table 1.2 presents a few differences between law on the books and law in action; many others are explored through- out this book.

The law in action perspective also stresses the importance of discretion. At virtually every step of the process a choice has to be made about whether to move the case to the next step or to stop it now. These decisions are made by the legal actors— police, prosecutors, and judges, for example. They are also made by ordinary citizens, whether in their role as victims, witnesses, or jurors.

A wide gap exists between legal theory (law on the books) and how that law is applied (law in action). Although some people find this gap shock- ing, actually it is not; after all, few, if any, human institutions ever live up to the high ideals set out for them. If you spend five minutes observing a stop sign on a well-traveled street, you will find

confinement in airless and fetid rooms; and hanging from

windows. The Commission was also concerned with

psychologically abusive tactics, such as incommunicado de-

tention, prolonged relay questioning, stripping the suspect

of clothing, and the deprivation of sleep and food (Penney,

1998, p. 336).

The Wickersham Commission’s report facilitated

widespread change in policing in the United States. Not

only did the report set in motion many efforts to stop

police corruption and brutality (see Skolnick & Fife,

1993), but also it affected the decision making of the U.S.

Supreme Court. The Court began citing the Wickersham

Commission’s report on police brutality in obtaining con-

fessions as evidence that confessions were often involun-

tary and/or unreliable.

In reversing the defendants’ convictions in Brown v.

Mississippi, the Supreme Court ruled that confessions

beaten out of suspects were clearly inadmissible because

they were involuntary. The Court did so using the Four-

teenth Amendment’s guarantee of “due process of law.”

As a result, several bedrock principles of contemporary

criminal procedure are attributable to the landmark deci-

sion in Brown v. Mississippi. Specifically:

1. An involuntary statement is considered to be inher-

ently untrustworthy or unreliable, and convictions

based on unreliable evidence violate due process.

2. Coercive police practices are a violation of “funda-

mental fairness,” an essential element of due process.

Therefore, a confession coerced by the police violates

due process, even if that confession is otherwise reli-

able.

3. Free choice is an essential aspect of due process, and

an involuntary confession cannot be the product of a

person’s free and rational choice.

Finally, note that Brown v. Mississippi marked the begin-

ning of the Supreme Court’s review of how police obtain

confessions and when those confessions may be used

as evidence in a court of law—a process that continues

today (Chapter 11).

Continued from previous page

L A W S O N , A N G E L A 6 8 5 3 B U

18 Part 1 / The Legal System

that not all cars come to a complete stop, and some do not slow down much at all. Yet at the same time, the stop sign (the law on the books in this example) clearly does affect the behavior of drivers (law in action). The criminal process is filled with numerous detours. At each stage officials decide to advance the defendant’s case to the next step, reroute it, or terminate it. The result is that many cases that enter the criminal court process are elimi- nated during the early stages.

A law in action perspective helps us understand the dynamics of courthouse justice. High caseloads are the reality in courthouses across the nation. As a result, judges are under pressure to move cases lest a backlog develop. Similarly, in most cases the for- mal rules found in law on the books fail to provide answers to all the questions that arise in a case. As a result, prosecutors must make discretion- ary choices about matters such as what sentenc- ing recommendation to make to the judge. Finally, cooperation, rather than conflict during trial, often characterizes the behavior of courthouse actors. As a result, defense attorneys often find that negotiat- ing a plea of guilty, rather than going to trial, is in the best interest of their client.

COURTS AND CONTROVERSY

The trial of Casey Anthony illustrates some of the controversies surrounding courts and crime in the United States. The verdict sparked great public out- rage that a “baby killer” had gone free. But many experts explained the verdict as a result of lack

of evidence. The prosecution’s case rested largely on the circumstantial evidence of Casey Antho- ny’s delay in reporting her daughter missing and partying until being taken into custody. Notably, there was no forensic evidence—such as DNA or fingerprints—directly linking Casey Anthony to Caylee’s death.

At the heart of the public’s concern about crime has been a debate over the actions and inactions of the criminal courts. What the courts do (and do not do) and how they do it occupies center stage in the nation’s continuing focus on crime. Numerous reforms have been suggested, but no agreement has been reached as to what types of change are in order. Throughout this book, the “Courts and Contro- versy” boxes, such as the one on page 23, highlight many issues being debated by the courts today.

In the public dialogue on the issues facing the criminal courts, conservatives square off against liberals, and hard-liners against those said to be soft on crime. This sort of terminology is not very helpful. Such phrases as “soft on crime” attract our attention to questions about the goals of the crimi- nal courts, but they are not useful for systematic inquiry because they are ambiguous and emotional (Neubauer, 2001).

More constructive in understanding the contro- versy over the criminal courts are the crime con- trol and due process models developed by Herbert Packer (1968). In an unemotional way, these two models highlight competing values concerning the proper role of the criminal courts. The conservative crime control model proposes to reduce crime by increasing the penalties on criminals. The liberal due

TABLE 1.2 ■ EXAMPLES OF THE DIFFERENCE BETWEEN LAW ON THE BOOKS AND LAW IN ACTION

Law on the Books Law in Action

The U.S. Constitution guarantees the right to a speedy trial.

The major trial courts of many counties are so backlogged that the median time between arrest and trial varies between 6 and 12 months (see Chapter 10).

The U.S. Constitution guarantees the right to a trial by jury in all criminal prosecutions in which the defendant faces imprisonment for more than 6 months.

Trials occur in fewer than 10% of all criminal cases. The remaining 90% of cases are disposed of through the plea-bargaining process (see Chapter 12).

Every defendant convicted at trial has the right to one appeal.

The overwhelming number of criminal cases are not appealed; of those that are appealed, more than 90% of convictions will be affirmed (see Chapter 16).

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 19

process model advocates social programs aimed primarily at reducing crime by reducing poverty. Table 1.3 summarizes the two views.

Crime Control Model

The most important value in the crime control model is the repression of criminal conduct. Unless crime is controlled, the rights of law-abiding citi- zens will not be protected and the security of soci- ety will be diminished. Conservatives see crime as the product of a breakdown of individual respon- sibility and self-control. To reinforce social values of discipline and self-control, and to achieve the goal of repressing crime, the courts must process defendants efficiently. They should rapidly remove defendants against whom inadequate evidence exists and quickly determine guilt according to evidence. The crime control model holds that informal fact finding—initially by the police and later by the prosecutor—not only is the best way to determine whether the defendant is in fact guilty but also is sufficiently foolproof to prevent the innocent from being falsely convicted. The crime control model, therefore, stresses the necessity of

speed and finality in the courts to achieve the pri- ority of crime suppression.

According to the crime control model, the courts have hindered effective law enforcement and there- fore have produced inadequate protection of society. Advocates of this model are concerned that criminals “beat the system” and “get off easy.” In their view, the cure is to eliminate legal loopholes by curtailing the exclusionary rule, abolishing the insanity defense, allowing for preventive detention of dangerous offenders, and increasing the certainty of punishment.

Due Process Model

In contrast, the due process model emphasizes protecting the rights of the individual. Its advo- cates are concerned about lawbreaking; they see the need to protect the public from predatory crimi- nals. At the same time, however, they believe that granting too much leeway to law enforcement offi- cials will only result in the loss of freedom and civil liberties for all Americans. This alternative diagno- sis stresses different causes of crime. Liberals see crime not as a product of individual moral failure, but as the result of social influences (Currie, 1985).

TABLE 1.3 ■ COMPETING VALUES IN THE CRIMINAL JUSTICE SYSTEM

Crime Control Model Due Process Model

Key goal Repression of criminal conduct. Respect for and protection of individual rights.

Focus Apprehend, convict, and punish offenders. Protect the innocent/wrongfully accused; limit governmental power.

Values Expeditious processing of offenders to achieve justice for victims and society as a whole.

Dignity and autonomy of both the accused and the system are to be preserved.

Mood Certainty; focuses on factual guilt. Assumes someone arrested and charged is probably guilty. Relies on informal, nonadjudicative fact finding— primarily by police and prosecutors.

Skepticism; focuses on legal guilt. Assumes that someone is innocent until proven guilty beyond a reasonable doubt. Relies on formal, adjudicative, adversarial fact-finding processes.

Goal of courts Assembly-line justice: Process cases quickly and efficiently to promote finality of convictions.

Obstacle court justice: Presents numerous obstacles to prevent errors and wrongful convictions by ensuring careful consideration of each case.

Attitude toward defendants’ rights

Technicalities permit the guilty to go free. Technicalities prevent abuses of governmental authority to foster freedom in a constitutional democracy.

Sentencing Punishment deters crime and incapacitates offenders.

Rehabilitation prevents crime.

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

20 Part 1 / The Legal System

In particular, unemployment, racial discrimination, and government policies that work to the disad- vantage of the poor are the root causes of crime; only by changing the social environment will crime be reduced (Currie, 1989).

Although adherents of the due process model do not downgrade the need for controlling crime, they believe that single-minded pursuit of such a goal threatens individual rights and poses the threat of a tyrannical government. Thus, the key function of the courts is not the speed and finality projected in the crime control model, but an insistence on care- ful consideration of each case. The dominant image is one of the courts as an obstacle course. The due process model stresses the possibility of error in the informal fact-finding process and therefore insists on formal fact finding to protect against mistakes made by the police and prosecutors.

Proponents of the due process model believe that the courts’ priority should be to protect the rights of the individual. Any resulting decrease in the effi- ciency of the courts is the price we must pay in a democracy based on individual liberties. The due process model emphasizes the need to reform peo- ple through rehabilitation. Community-based sen- tencing alternatives are considered preferable to the extensive use of prison sentences. Advocates of this approach are concerned that the court system is fun- damentally unfair to poor and minority defendants; they therefore support leading court decisions pro- tecting the rights of those accused of crimes.

Shifting the Balance

The U.S. justice system strives to control crime while simultaneously honoring the constitutional rights of the accused. At different stages in our nation’s history, we have clearly focused more on the underlying values of one model over the other. Consider that in the first half of the twentieth cen- tury, increased urbanization, immigration, and industrialization contributed to an increase in crim- inal activity. The increase in crime combined with the fears of people from different backgrounds and cultures led to increases in police power, with a focus on “law and order” crime control.

In the 1950s and 1960s, social consciousness began to focus on social equality and equal jus- tice under the law. Part of this new consciousness brought to light abuses of police power. Led by

Chief Justice Earl Warren, a former public defender, the U.S. Supreme Court began to “constitutional- ize” criminal procedure, with a focus on due process and individual rights and liberties. Since the 1970s, though, and continuing through today, “wars” on crime, drugs, and terrorism have contributed to a renewed emphasis on crime control (see the “Courts, Controversy, & Reducing Crime” feature below). Thus, the pendulum can swing. The law, however (especially constitutional law), helps to provide a certain level of stability even as society places chang- ing levels of value on crime control and due process. Still, as controversies like the war on drugs illustrate, reasonable people can differ as to the proper scope of the law in crime control efforts.

MEDIA DEPICTIONS AND DISTORTIONS OF CRIMINAL COURTS

Most people in the United States learn about the ways in which criminal cases are processed through the courts from the media (Surette, 2010). Sometimes this media coverage takes the form of intensive news coverage, just as it did in Casey Anthony’s case. Other times this media coverage comes from drama- tized or even completely fictionalized portrayals of criminal trials on television and in the movies. From the perspective of America’s Courts and the Criminal Justice System, the extensive media attention to law has major advantages. Media coverage of real trials and portrayals of fictitious ones provide dramatic illustrations that the outcome is influenced by the law (law on the books), the actions of people (law in action), and the disagreements that result (law in controversy). The same can be said for police drug busts, prosecutors’ decisions to seek the death pen- alty, defense attorneys cross-examining witnesses, and judges’ decisions to admit evidence. But there are disadvantages as well. In trying to dramatize occasionally dull legal proceedings, the media cov- erage can distort reality (Surette, 2010). This is espe- cially a concern when jurors expect to be dazzled with forensic scientific evidence, as they see on tele- vision. Media coverage can provide caricatures, not pictures, of courts and the criminal justice system. Thus, at times, a principal task of a book on courts and the criminal justice system is to encourage read- ers to “unlearn” what they think they know.

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 21

The association of drugs with social problems begins to explain why the war on drugs enjoys considerable public support. There is no doubt that drug addiction produces untold human suffering in the United States. And there is little doubt that drugs are

also associated with crime; indeed, two out of three people arrested by the police show evidence of recent use of illegal drugs (crack, methamphetamines, and marijuana, for example) and/or legal drugs (primarily alcohol).

Public support for the war on drugs is also fueled by its link to controlling marginal groups. Historians suggest that medical or scientific knowledge about the harm of drugs has never played a significant role in formulating U.S. drug policy. Rather, U.S. policy has been driven by the desire to control groups considered to be threats to the existing social order. Thus, the Harrison Narcotics Act of 1914 targeted opium (used by Chinese in California), mari- juana (smoked by Mexican-Americans in the Southwest), and cocaine (allegedly being used by African-Americans in the South).

One reason that the war on drugs is difficult to wage is because the focus of the debate is always changing. The administration of George W. Bush made marijuana the major focus of its antidrug efforts partly, it said, because pot is a “gateway” drug—kids try it and then move on to more seri- ous drugs. To law enforcement officials around the nation, though, meth (methamphetamine) is America’s most danger- ous drug (Jefferson, 2005). More recently oxycodone has emerged as a major drug problem. Indeed inappropriately used prescription pain medications like oxycodone kill 15,000 people a year in the United States according to the Centers for Disease Control and Prevention (Gupta, 2011).

After four decades of presidents waging various wars on drugs, these efforts are being pushed out of the public limelight by the “war on terror.” Even though the war on drugs is less visible today, arrests and convictions for drugs continue to be one of the main reasons for the swelling prison population.

There appears to be a growing disquiet with the war on drugs. Some criminal justice officials guardedly express reser- vations about the war on drugs (Lacey, 2011). On the record, an organization called Law Enforcement Against Prohibition (2012) favors ending the war on drugs.

Some scholars have argued that it is time to rethink the war on drugs. In Drug War Politics: The Price of Denial, Eva Bertram and her colleagues (1996) argue that despite spending billions of dollars on reducing the supply of drugs and punitive approaches to those who use illegal drugs, the war on drugs is a failure. Failure, however, only convinces the advocates of the war on drugs that greater efforts need to be made.

It is not just the failure to reduce drug supply (or demand) that concerns critics, but also the social impact of these efforts. Some critics, for example, blame U.S. drug policy for destroying inner-city communities by swelling prison populations with the unemployable minority poor (Currie, 1993), while others point out that the race- neutral language of the law merely hides racial meanings (Provine, 2007).

The disagreement over continuing the war on drugs reflects the differences between the crime control and due process models of criminal justice. Three points—focusing on causes, equality, and punishment—are at issue.

The crime control model begins with the judgment that drug abuse is caused by a breakdown of individual responsibility. The due process model views substance abuse as a disease that needs to be treated.

According to the crime control model, the solution is punishment. Arrest and conviction will serve as a lesson to the violator and will also deter others. The due process model replies that filling the prisons is costly and ineffective. It is therefore more effective and also less costly to emphasize rehabilitation programs.

The due process model is very concerned that current drug policies fall unequally on racial minorities. The crime control model counters with seemingly banal indifference: “You do the crime, you serve the time.”

Where do you stand on this issue? Why?

IS IT TIME TO END THE WAR ON DRUGS?

COURTS,

C O N T R O V E R S Y,

& REDUCING

CRIME

L A W S O N , A N G E L A 6 8 5 3 B U

22 Part 1 / The Legal System

motivated hacks, defense attorneys projected as cru- saders for their clients’ interests or corrupters of the justice system, and prison guards presented as under- standing human beings or brutal sociopaths.

To highlight the importance of media depic- tions of criminal justice, each chapter of this book focuses on some news, movie, or television depic- tion of some aspect of the criminal courts, like the one below on the Casey Anthony case.

The task of thinking critically about how the media both portray and distort the justice system is to focus on the contrasting caricatures offered by fic- tional treatments. Depending on the dramatic needs of the movie or TV show, the police may be portrayed as diligent or brutal, prosecutors pictured as crusaders of justice or preventers of justice determined to con- vict the suspect who is easiest to try, judges presented as insightful masters of the system or politically

THE CASEY ANTHONY TRIAL

In July 2008, Cindy Anthony reported to police in that she had not seen her two-year- old granddaughter, Caylee, for more than month, even though

the toddler lived with her, her husband George, and their daughter, Casey (Caylee’s mother). Cindy also reported that she had smelled a foul odor, consistent with that of a dead body, in her daughter Casey’s car.

Casey Anthony offered a series of suspicious explanations for her daughter’s whereabouts. She even told detectives a made-up story about how Caylee had been kidnapped by a fictitious nanny. Casey claimed she had spent more than month looking for her daughter in the wake of the alleged kidnapping, but had been too afraid to notify the police, alleg- edly fearing what may be done to her daughter if she had told authorities. Yet, during the period of time Caylee was missing, Casey Anthony was photographed scantily clad, grinding on the dance floor of local clubs. She also got a tattoo reading “bella vita” (“beautiful life” in Italian) while Caylee was missing. The police and the general public had a hard time under- standing how Casey could engage in such conduct while her daughter was missing. The remains of Caylee’s body were eventually found in a wooded area near her family’s home in December 2008. Casey Anthony was charged and tried for her daughter’s murder.

During a 6-week trial in the summer of 2011, the prosecu- tion argued that Casey Anthony killed her daughter because she wanted her freedom from the responsibilities of caring for a child she never really wanted. The state asserted that

that Casey Anthony used chloroform to render her daughter unconscious and then suffocated Caylee by placing duct tape on her mouth and nose. The prosecution further alleged that Casey wrapped Caylee in a Winnie the Pooh blanket and black trash bags, keeping the body in the car’s trunk until the odor was too strong and then dumping it in the woods. In contrast, the defense team argued that Caylee had accidentally drowned in the family pool and Casey tried to cover up the accidental death fearing that she would spend the rest of her life in jail for child neglect. After 11 hours of deliberation, the jury convicted Casey Anthony of four misdemeanor counts of lying to police, but acquitted her of first-degree murder, aggravated man- slaughter, and aggravated child abuse.

1. Do you think Casey Anthony’s behavior is consistent with that of a parent concerned with the whereabouts of a missing child? If so, why? If not, do you think that her be- havior is evidence of her guilt in Caylee’s death? Explain your reasoning.

2. According to a study conducted by Shelton et al. (2009), 58.3% of prospective jurors expect to see some kind of sci- entific evidence in every criminal case; 42.1% expect to see DNA evidence in every criminal case; and 56.5% expect to see fingerprint evidence in every criminal case. Expectations for forensic scientific evidence are even higher in murder/ attempted murder cases, with 83.3% expecting some kind of forensic evidence, 84.5% expecting fingerprint evidence, and 74.6% expecting DNA evidence. Do you think that the lack of forensic scientific evidence affected the jurors in the Casey Anthony case? Do you expect prosecutors to pres- ent forensic scientific evidence in homicide cases? Why or why not?

COURTS,

LAW, &

MEDIA

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and Controversy 23Chapter 1

Similarly, judges require defendants to pay res- titution, but crime victims discover that impov- erished defendants (particularly those in prison) have no ability to pay. In the same vein, conserva- tives call for preventive detention, but jailers have no jail cells available.

Although most people know something about the law, they also “know” much that is contrary to fact. Some of these public understandings and mis- understandings about law are the product of educa- tion. High-school-level American government and history textbooks, for example, offer a simplified, for- mal picture of law and the courts, lawyers, and trials. Americans also learn about the legal system by going to the movies, watching television, and reading fic- tion. At times, people who rely on these sources are badly misled. Entertainment programs misrepresent the nature and amount of crime in the United States. Because murder makes a much better show than embezzlement or burglary, entertainment media rarely show street crime other than drug offenses.

Television also offers a number of false or doubt- ful propositions. It tells us, for example, that crimi- nals are white males between the ages of 20 and 50, that bad guys are usually businesspeople or profes- sional criminals, and that crime is almost always unsuccessful in the end. Television and film also often misrepresent the roles of the actors in the legal system. For example, with few exceptions, police are in constant action, chasing crooks in cars, run- ning after them on foot, and capturing them only after exchanging gunfire. In addition, entertainment media distort important issues of civil liberties. As soon as we know who did it and that the guilty crook has been apprehended, the case is solved, with no need for the prosecutor to prove the defendant guilty. These understandings and misunderstand- ings form the backdrop for this book.

CONCLUSION

“Why did the defendant do it” is the dominant ques- tion the public asks in a murder case, particularly one as bizarre as the death of Caylee Anthony. Alas, tri- als do not always provide an answer to the question of why, especially when the defendant fails to take the stand in her or his own defense (Turley, 2012). When a defendant, on the advice of counsel, decides not to explain their side of the story, the public often looks to science to answer why. Indeed the prosecu- tion in the Casey Anthony trial introduced over 400 pieces of evidence, but neither the jury nor the pub- lic (for seemingly very different reasons) found the truth amid the scientific evidence. In essence, the plot line in the Casey Anthony trial is centuries old. What is new is the public expectation that scientific evidence will provide the answers, but the public seems to have an insatiable appetite for more. And the modern media is able to provide its attentive audience with even more information, always on the lookout for the next trial of the century, even if the question of why the defendant may have committed the crime remains unanswerable.

Ours is a law-drenched age. Voters and elected officials alike see the solution to pressing social problems in terms of passing a law. It seems we are not serious about an issue unless we have a law regulating it, and we are not really serious unless we have criminal laws. But laws are not self-enforcing. Some people delude themselves by thinking that passing a law solves the problem. This is not necessarily so. Indeed, if the problem persists, frustration sets in. Thus, legislatures mandate that drivers purchase automobile insur- ance, but accident victims become frustrated when they discover the other party has no insurance.

1. Describe how the courts are related to the other components of the criminal justice system.

Law enforcement, courts, and corrections are separate sets of organizations, but they are

1LO1 also interdependent. The courts process cases after suspects are arrested, and corrections handles defendants who are found guilty by the courts.

Chapter Review

L A W S O N , A N G E L A 6 8 5 3 B U

24 Part 1 / The Legal System

2. Discuss the major types of courts found in the United States.

In the United States, separate systems of federal courts and state courts exist. Within each system one or two levels of trial courts and one or two levels of appellate courts hear cases.

3. Identify the most important actors in the courthouse.

Judges, prosecutors, and defense attorneys are the most important actors in the courthouse. Defendants and victims are also important because they are the source of cases for the courts.

4. List the steps in a typical felony prosecution.

A typical felony prosecution begins with an arrest, followed by an initial appearance, the setting of bail, and either grand jury proceedings or a preliminary hearing. If a case survives these hurdles, it proceeds to a formal arraignment, after which decisions about evidence discovery, pretrial motions, and plea negotiations may occur. Cases that

2LO2

3LO3

4LO4

are not resolved by plea bargain go to trial. Those convicted at trial are then sentenced and have the right to file an appeal.

5. Explain how a law in action perspective complements a law on the books approach to studying the criminal courts.

The law on the books approach to studying the criminal courts stresses the importance of examining the formal law and how courts interpret that law. The law in action approach is complementary because it stresses the importance of discretion throughout a criminal prosecution.

6. Distinguish between the crime control model of criminal justice and the due process model of criminal justice.

The crime control model emphasizes the need to repress crime and efficiently process the large number of guilty defendants. The due process model of criminal justice emphasizes the importance of protecting the rights of citizens and providing careful consideration for each case.

5LO5

6LO6

1. On a sheet of paper, apply the general overview of court structure in the United States (Figure 1.2) to your local community.

2. On a sheet of paper, apply the list of actors in the courthouse (Table 1.1) to your local community. If you live in a rural area, how does your list differ from that of someone who lives in a larger com- munity? If you live in a large metropolitan area, how does your list differ from that of someone living in a more rural area?

3. What private, nongovernmental organizations are important to the criminal justice system of your community?

4. Use newspapers, radio, and criminal justice discussion lists or chat groups to monitor discus- sions concerning the criminal justice system. Do citizens make distinctions among police, courts, and corrections, or do they lump everything under the general rubric of the criminal justice system?

Critical Thinking Questions

crime control model 19

criminal justice system 6

CSI effect 5

due process model 19

felonies 12

misdemeanors 12

Key Terms

L A W S O N , A N G E L A 6 8 5 3 B U

Courts, Crime, and ControversyChapter 1 25

Go to the America’s Courts and the Criminal Justice System companion website at

http://www.cengage.com/criminaljustice/neubauer,

where you will find more resources to help you study.

Resources include web exercises, quizzing, and flash cards.

Web Resources

Bogira, Steve. Courtroom 302. New York: Vintage, 2005. Dixon, Jo, Aaron Kupchik, and Joachim Savelsberg (Eds.).

Criminal Courts. Surrey, United Kingdom, 2006. Dombrink, John, and Daniel Hillyard. Sin No More: From

Abortion to Stem Cells, Understanding Crime, Law, and Morality in America. New York: NYU Press, 2008.

Ferdico, John, Henry F. Fradella, and Christopher Totten. Criminal Procedure for the Criminal Justice Profes- sional. 11th ed. Belmont, CA: Wadsworth, 2012.

Fox, Richard, Robert Van Sickel, and Thomas Steiger. Tab- loid Justice: Criminal Justice in an Age of Media Frenzy. 2nd ed. Boulder, CO: Lynne Rienner, 2007.

Garland, David. The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press, 2002.

Gardner, Thomas, and Terry Anderson. Criminal Law. 10th ed. Belmont, CA: Wadsworth, 2009.

Kappeler, Victor, and Gary Potter. The Mythology of Crime and Justice. 4th ed. Prospect Heights, IL: Waveland Press, 2005.

Marion, Nancy. A Primer in the Politics of Criminal Justice. 2nd ed. Monsey, NY: Criminal Justice Press, 2007.

Neubauer, David. Debating Crime: Rhetoric and Reality. Belmont, CA: Wadsworth, 2001.

Neubauer, David, and Stephen Meinhold. Judicial Process: Law, Courts, and Politics in the United States. 5th ed. Belmont, CA: Wadsworth, 2010.

Owen, Stephen S., Henry F. Fradella, Tod W. Burke, & Jerry Joplin, 2011. The Foundations of Criminal Justice. New York, NY: Oxford University Press.

Shelton, Donald E., Young S. Kim, and Gregg Barak. 2009. “An Indirect-Effects Model of Mediated Adjudication: The CSI Myth, the Tech Effect, and Metropolitan Jurors’ Expectations for Scientific Evidence.” Vanderbilt Journal of Entertainment and Technology Law, 12(1), 1-43.

Unnever, James, Francis Cullen, and Bonnie Fisher. “‘A Liberal Is Someone Who Has Not Been Mugged’: Criminal Victimization and Political Beliefs.” Justice Quarterly 24: 309–334, 2007.

For Further Reading

L A W S O N , A N G E L A 6 8 5 3 B U

David W. Neubauer, Ph.D. UNIVERSITY OF NEW ORLEANS

Henry F. Fradella, J.D., Ph.D. CALIFORNIA STATE UNIVERSITY, LONG BEACH

E L E V E N T H E D I T I O N

AMERICA’S COURTS

A N D T H E C R I M I N A L J U S T I C E S YS T E M

Australia Brazil Japan Korea Mexico Singapore Spain United Kingdom United States

L A W S O N , A N G E L A 6 8 5 3 B U

Library of Congress Control Number: 2012937192

Student Edition:

ISBN-13: 978-1-285-06194-8

ISBN-10: 1-285-06194-2

Loose-leaf Edition:

ISBN-13: 978-1-285-06223-5

ISBN-10: 1-285-06223-X

Wadsworth 20 Davis Drive Belmont, CA 94002-3098 USA

Cengage Learning products are represented in Canada by Nelson Education, Ltd.

To learn more about Wadsworth, visit www.cengage.com/wadsworth

Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com.

America’s Courts: And the Criminal Justice System, Eleventh Edition David W. Neubauer and Henry F. Fradella

Editor in Chief: Linda Ganster

Senior Acquisitions Editor: Carolyn Henderson-Meier

Developmental Editor: Shelley Murphy, Julie Martinez

Assistant Editor: Casey Lozier

Media Editor: Ting Jian Yap

Brand Manager: Melissa Larmon

Market Development Manager: Michelle Williams

Senior Content Project Manager: Christy A. Frame

Senior Art Director: Maria Epes

Senior Manufacturing Planner: Judy Inouye

Rights Acquisitions Specialist: Tom McDonough

Production and Composition Service: MPS Limited

Photo and Text Researcher: PreMedia Global

Copy Editor: Debbie Stone

Text Designer: Lisa Delgado

Cover Designer: Riezebos Holzbaur/ Brieanna Hattey

Cover Image: Downtown Fort Worth : © Jeremy Woodhouse/The Image Bank/ Getty Images

For product information and technology assistance, contact us at Cengage Learning Customer & Sales Support, 1-800-354-9706

For permission to use material from this text or product, submit all requests online at www.cengage.com/permissions

Further permissions questions can be e-mailed to [email protected]

Printed in the United States of America 1 2 3 4 5 6 7 16 15 14 13 12

L A W S O N , A N G E L A 6 8 5 3 B U

2 Law and Crime

P O

O L

N e

w /

R E

U T

E R

This 2011 file photo provided by the

Pima County Sheriff's Office shows

Jared Lee Loughner, the man charged with multiple

counts of murder and attempted

murder for a shooting rampage

in Tucson, Arizona. Loughner was

taken into custody shortly after the

shooting and hospitalized as mental

health professionals attempted to

restore his competency to stand trial

through the forced administration of

anti-psychotic drugs.

L A W S O N , A N G E L A 6 8 5 3 B U

Chapter Outline THE BASIS OF LAW

THE COMMON LAW HERITAGE Judge-Made Law Precedent Multiple Sources of Law

THE ADVERSARY SYSTEM Safeguards Presumptions and Inferences Burdens of Proof

Courts, Law, & Media Chicago (2002)

THE RIGHTS OF THE ACCUSED Due Process Bill of Rights

CIVIL LAW OVERVIEW Types of Civil Disputes Civil Remedies Using Civil Remedies to Fight Crime

Courts, Controversy, & Reducing Crime Should Asset Forfeiture Be Limited?

Law in Controversy: The Incivility of Civil Justice Civil Liability of Criminal Justice Officials

CRIMINAL LAW OVERVIEW Elements of a Crime Defining Crimes Criminal Defenses

CASE CLOSE-UP: United States v. Loughner

Delinquency

EFFECTS OF CRIMINAL LAW ON THE COURTS

Criminal Law and Inconsistencies Criminal Law and Plea Bargaining Criminal Law and Sentencing

L A W S O N , A N G E L A 6 8 5 3 B U

LO1

8, 2011, Jared Loughner opened fire at a Safeway grocery store, killing six people—including a federal judge, and injuring 13 others, including a member of Con- gress. At first, the nation responded with rage over the incident, with some blaming access to guns and others pointing the finger at the inflammatory tone of political rhetoric in the United States that may have contributed to Loughner targeting Democratic U.S. Repre- sentative Gabrielle Giffords. But as the weeks went by, a much more nuanced and arguably disturbing image emerged of a seemingly ordinary boy who had slowly descended into the depths of a serious psychotic illness.

Loughner had dropped out of high school before his senior year. He began to self-medicate using alcohol and marijuana. He began to speak in random jumbles of words. He grew paranoid that the government was trying to control him. His ability to function deterio- rated so badly that he was unable to maintain his jobs working in a sandwich shop and at a local animal shelter. And his bizarre behavior at a local community college led faculty and fellow students to fear him. Indeed, according to some news reports from interviews with former classmates, Loughner even made comments about terrorism and laughed about kill- ing babies. His frequent classroom and library disruptions led Pima Community College to suspend Loughner until such time as mental health professionals documented that he was not a danger to himself or to others. But by that point, Loughner’s mental function had de- clined significantly. He lived each day in a paranoid and delusional world that was a product of schizophrenia. Just before the shootings, friends noticed that he had significantly changed from the person they once knew.

8 six people including

On January

After reading this chapter, you should be able to:

List the four key elements defining law.

Identify the three key characteristics of common law.

Explain the importance of the adversary system.

Name the four amendments of the Bill of Rights that deal specifically with criminal procedure.

List five major areas of civil law.

Identify the major elements of a crime.

Identify some of the most important legal defenses in American law.

Discuss the effects of the criminal law on courts.

LO1LO1

LO2

LO3

LO4

LO5

LO6

LO7

LO8

Learning Objectives

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 29

be broken into four phrases, and each has important implications for how we think about law.

The first element—law is a body of rules—is self-evident. What is not immediately obvious, however, is the fact that these rules and regulations are found in a variety of sources, such as statutes, constitutions, court decisions, and administrative regulations.

The second element—law is enacted by public officials—is of critical importance. All organiza- tions of any size or complexity have rules and reg- ulations that govern their members. But these pri- vate rules are not law under our definition unless they are recognized by public officials—judges, legislators, and executives in particular.

The third element—law is enacted in a legiti- mate manner—means that it must be agreed upon ahead of time how the rules will be changed. Thus, legislatures have methods for passing new laws, bureaucrats have procedures for applying those laws, and judges follow a well-known process in interpreting those laws.

The final element—law is backed by the force of the state—says that these rules and regulations would be largely meaningless without sanctions. Thus, what differentiates law from other societal rules is that law has teeth to it—namely, the con- sequences of legal sanctions. As Daniel Oran’s Law Dictionary for Nonlawyers (2000) puts it, law is “that which must be obeyed.” In most instances, though, it is not necessary to apply legal sanctions, because the threat is enough to keep most people abiding by the law most of the time.

It is also important to stress what this working definition of law omits—namely, any mention of jus- tice. In a representative democracy, public percep- tions of law embody fundamental notions of justice, fairness, and decency. It is the potential linking of law and justice (in the form of unjust laws) that also makes law so difficult to define. But law and moral- ity do not necessarily equate. Our working defini- tion of law deliberately excludes any reference to justice because there is no precise legal or scientific meaning for that term. Furthermore, people use the term justice to support particular political and social goals. In the public arena, it is a catchall term used in several different ways (see Owen, Fradella, Burke, & Joplin, 2012). As discussed in Chapter 1, backers of the crime control model see justice differently than do supporters of the due process model.

After the Tucson-based shooting, Loughner was taken into custody. He was subsequently declared incompetent to stand trial. But after more than a year of forced administration of antipsychotic medications, Loughner was found competent to stand trial and he entered a plea of guilty. In doing so, he avoided a possible death sentence if he had been convicted at trial. That conviction would have turned on whether Loughner was legally insane. Insanity is a rare, complex, and controversial crimi- nal defense that raises issues about criminal law, defenses, and the propriety of punishment that will be explored in more detail in this chapter.

This chapter begins by providing a working definition of law, then examines our common law heritage, including the adversary system and the rights of the accused. Next, the discussion shifts from procedure to substance. After looking at dif- ferences between civil law and criminal law, we will concentrate on the elements of a crime and legal defenses. The chapter concludes with a dis- cussion of the consequences of criminal law for the criminal court process.

THE BASIS OF LAW

The basis of law can be summarized in two words: human conflict. A controversy over how much money is owed, a quarrel between husband and wife, a collision at an intersection, and the theft of a television set are a few examples of the great num- ber of disputes that arise and threaten to disrupt the normal activities of society. Business and everyday activities depend on mechanisms for mediating inevitable human conflicts. Without such mecha- nisms, individual parties might seek private, violent means of settlement. The legendary feud between the Hatfields and the McCoys illustrates the disrup- tiveness of blood feuds motivated by revenge—not only in the lives of the individual parties directly involved but also in the larger society.

Law is an everyday word, but as Professor Law- rence Friedman (1984, p. 2) suggests, “It is a word of many meanings, as slippery as glass, as elusive as a soap bubble.” Although there are various approaches to defining the term, most scholars define law as a body of rules enacted by public officials in a legiti- mate manner and backed by the force of the state (Neubauer & Meinhold, 2013). This definition can

L A W S O N , A N G E L A 6 8 5 3 B U

30 Part I / The Legal System

Similarly, in the field of criminal law, by the 1600s the English common law courts had defined felonies such as murder, arson, robbery, larceny, and rape. Moreover, the legal defenses of insanity and self-defense had also entered the common law. These English criminal law concepts were trans- planted to America by the colonists. After the Revo- lution, common law crimes considered applicable to local conditions were retained. Although legisla- tive bodies, not the courts, now define crimes, con- temporary statutory definitions often reflect their common law heritage.

Precedent

A second key characteristic of the common law is the use of precedent, often referred to as stare deci- sis (“let the decision stand”). The doctrine of prec- edent requires a judge to decide a case by applying the rule of law found in previous cases, provided the facts in the current case are similar to the facts in the previous cases. By following previous court decisions, the legal system promotes the twin goals of fairness and consistency. Exhibit 2.1 gives an example of the precedent-based citation system used in American law. For insight into the legal reasoning processes that judges use when applying precedent, see Appendix D.

The common law’s reliance on precedent reflects a cautious approach to problem solv- ing. Rather than writing a decision attempting to solve the entire range of a given legal prob- lem, common law courts decide only as much of the case as is necessary to resolve the indi- vidual dispute. Broad rules and policy direc- tives emerge only through the accumulation of court decisions over time. Unfortunately, many Americans make the mistake of translating the common law heritage, particularly the doctrine of precedent, into a static view of the courts and the law. The entire history of Anglo-American law emphasizes the importance of common law courts’ shaping old law to new demands. In the words of Justice Oliver Wendell Holmes (1920, p. 187): “It is revolting to have no better reason for a rule of law than that it was so laid down in the times of Henry IV. It is still more revolting if the grounds upon which it was laid down have van- ished long since, and the rule simply persists from blind imitation of the past.”

THE COMMON LAW HERITAGE

The legal systems of the United States and other English-speaking nations that were once Brit- ish colonies (including Australia, New Zealand, and Canada) trace their origins to England and its so-called common law. The common law first appeared in medieval England after the Norman conquest in 1066. The new rulers gradually intro- duced central government administration, includ- ing the establishment of courts of law. Initially, the bulk of the law was local and was administered in local courts. A distinct body of national law began to develop during the reign of Henry II (1154–1189), who was successful in expanding the jurisdiction of the royal courts. The king’s courts applied the common customs of the entire realm rather than the parochial traditions of a particular village. Thus, the term common law meant “general law” as opposed to “special law”; it was the law common to the entire land.

Common law is used in many English-speaking nations, including England, Australia, New Zealand, Canada, and the United States. Because the com- mon law of England forms the basis of law in all U.S. states other than Louisiana (which derives its civil law from the Napoleonic Code and the Conti- nental legal heritage; the state’s criminal law, how- ever, derives from the common law), U.S. law is sometimes referred to as Anglo-American law.

During the development of the common law legal system, a distinctive way of interpreting the law gradually emerged. Three key characteristics of this common law heritage stand out: The law was judge-made, based on precedent, and found in multiple sources.

Judge-Made Law

One key characteristic of the common law is that it was predominantly judge-made law (rather than legislatively enacted). Until the late 19th cen- tury, no important body of statutory law existed in either England or the United States. Rather, judges organized social relationships through law. In the field of civil law, for example, the common law courts developed the rights and obligations of citi- zens in such important areas as property, contracts, and torts. Even today, American law in these areas is predominantly judge-made.

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 31

reach a different ruling. Finally, judges will occa- sionally (but very reluctantly) overturn a previous decision by stating that the previous court opinion was wrong. However, the common law is commit- ted to gradual change to maintain stability; it is often said that the law and the courts are conser- vative institutions.

One way courts achieve flexibility is in adapt- ing old rights to new problems. Another is the abil- ity of courts to distinguish between precedents. Recall that the doctrine of precedent involves previous cases with a similar set of facts. Courts sometimes state that the present facts differ from those on which previous decisions were based and

HOW TO READ LEGAL CITATIONSExhibit 2.1

When first confronted with legal citations, students are often bewildered by the array of numbers. But with a few basics in mind, these citations need not be confusing; they are efficient aids in finding court decisions.

The full citation for Miranda is as follows: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The lead name in the case usually refers to the party who lost in the lower court and is seeking to overturn that decision. That party is called the “appellant.” The second name refers to the party (or parties) who won at the lower level (in this instance, the state of Arizona). The second party is called the “appellee,” or more simply, the “respondent.” Miranda is the appellant who is seeking to overturn his conviction. The state of Arizona is named as the respondent because criminal prosecutions are brought in the name of the state.

After the names of the parties come three sets of refer- ences. All decisions of the U.S. Supreme Court are reported in the Supreme Court Reports, which is published by the

U.S. Government Printing Office. It is the official report- ing system and is abbreviated U.S. In addition, decisions of the Supreme Court are reported in two private reporting systems: the Supreme Court Reporter, which is abbreviated S.Ct., and in Lawyers Supreme Court Reports, Lawyers Edition, which is abbreviated L.Ed.2d. The numbers preceding the abbreviation for the volume refer to the volume number. Thus, Miranda can be found in volume 384 of the Supreme Court Reports. The number after the abbreviation refers to the page number. Thus, the Miranda decision in volume 384 begins on page 436; in volume 86 of the Supreme Court Reporter, it is on page 1602. A library usually carries only one of the reporting systems, so the multiple references make it easy to locate the given case, no matter which of the three reporting systems is available. The final number in parenthe- ses is the year of the case.

Decisions of other appellate courts at both the federal and state levels are reported in a similar manner in other volumes.

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

32 Part I / The Legal System

referred to as “statutory law.” A statutory law enacted by a local unit of government is commonly called a municipal ordinance.

Until the latter part of the 19th century, Amer- ican legislatures played a secondary role in the formulation of law. It was not until the 20th cen- tury that state legislatures became the principal source of law (Friedman, 1984). A fundamental reason for the growing importance of legisla- tively enacted statutes was that rapidly industri- alizing society was faced with new types of prob- lems. Questions of how to protect the interests of workers and consumers were much broader in scope than those typically handled by the courts. The common law took decades to develop and refine legal rights and obligations, but the grow- ing needs of an increasingly complex society could not afford the luxury of such a lengthy time frame. Legislators could enact rules of law that were not only much broader in scope than those adopted by judges but also were more pre- cise and detailed. Thus, a great deal of law today is statutory.

Administrative Regulations The third rung of American law consists of administrative regulations. Legislative bod- ies delegate rule-making authority to a host of governmental bureaucracies called by vari- ous names, such as agencies, boards, bureaus, commissions, and departments. All levels of government—federal, state, and local—authorize administrative agencies to issue specific rules and regulations consistent with the general principles specified in a statute or municipal ordinance. The Internal Revenue Service, by rule, decides what constitutes a legitimate deduction. State boards, by rule, set standards for nursing homes. Local zoning boards, by rule, decide where restaurants may be built.

Administrative regulations are the newest, fastest growing, and least understood source of law. The rules and regulations promulgated by government agencies are extensive. The federal bureaucracy alone issues thousands of pages of new rules and policy statements each year. These extensive regulations promulgated by govern- ment agencies must often be interpreted by courts.

Multiple Sources of Law

The third key characteristic of the common law is that it is found in multiple sources (a concept sometimes expressed as “uncodified”). In deciding the legal meaning of a given crime (murder, for example), it is not sufficient to look only at the legislative act. One must also know how the courts have interpreted the statute. Depending on the issue, the applicable rules of law may be found in constitutions, statutes, administrative regulations, or court decisions.

Constitutions Within the hierarchy of law, constitutions occupy the top rung. A constitution is the first document that establishes the underlying principles and gen- eral laws of a nation or state. The U.S. Constitution is the fundamental law of the land. All other laws— federal, state, and local—are secondary. Similarly, each state has a constitution that is the “supreme law of the state.” State courts may use the state constitution to invalidate the actions of legislators, governors, or administrators.

Constitutions define the powers that each branch of government may exercise. For example, Article III of the U.S. Constitution creates the federal judiciary (see Chapter 3). Constitutions also limit governmen- tal power. Some limitations take the form of prohibi- tions. Thus, Article I, Section 9, states, “The privilege of the Writ of Habeas Corpus shall not be suspended.” Other limitations take the form of specific rights granted to citizens. The clearest example is the first 10 amendments to the U.S. Constitution, known col- lectively as the Bill of Rights. For example, the First Amendment begins, “Congress shall make no law respecting an establishment of religion, or prohibit- ing the free exercise thereof.” State constitutions also contain bills of rights, many of which are modeled after their national counterpart.

Constitutions also specify how government officials will be selected. The U.S. Constitution pro- vides that federal judges shall be nominated by the president, confirmed by the Senate, and serve dur- ing “good behavior.” Similarly, state constitutions specify that state judges will be selected by election, appointment, or merit (see Chapter 8).

Statutes The second rung of law consists of statutes. Laws enacted by federal and state legislatures are usually

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 33

law. Murder, robbery, and burglary are examples of substantive criminal law. Procedural law, on the other hand, establishes the methods of enforcing these legal obligations. Trials are the best-known aspect of American procedural law, but trials do not exist alone. Before trial there must be orderly ways to start, conduct, and end lawsuits. An important aspect of procedural law centers on the roles law- yers and judges play in the legal process.

In many nations, criminal investigations are conducted by a single government official whose function is to establish a unified version of what happened, seeking out facts that show the defen- dant’s guilt as well as those that indicate his or her innocence. The Anglo-American legal system rejects such an approach. Its guiding premise is that a battle between two opposing parties will uncover more of the truth than would a single offi- cial, no matter how industrious and well-meaning. Under the adversary system, the burden is on the prosecutor to prove the defendant guilty beyond a reasonable doubt, and the defense attorney is responsible for arguing for the client’s innocence and asserting legal protections. The judge serves as a neutral arbitrator who stands above the fight as a disinterested party, ensuring that each side battles within the established rules. Finally, the decision is entrusted to the jury (although, in some instances, a judge alone may decide).

Safeguards

The guiding assumption of the adversary system is that two parties, approaching the facts from entirely different perspectives, will uncover more of the truth than would a single investigator, no matter how industrious and objective. Through cross-examination, each side has the opportunity to probe for possible biases in witnesses and to test what witnesses actually know, not what they think they know. The right to cross-examination is pro- tected by the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him.”

By putting power in the hands of several dif- ferent parties, the adversary system creates another type of safeguard. Each actor is granted limited powers, and each has limited powers to counteract the others. If the judge is biased or unfair, the jury has the ability to disregard the judge and reach a

Judge-Made Law Court decisions remain an important source of law. According to the common law tradition, courts do not make law, they merely find it. But this myth, convenient as it was for earlier genera- tions, cannot mask the fact that courts do make law. This tradition, though, suggests a basic dif- ference between legislative and judicial bodies. Legislative bodies are free to pass laws boldly and openly. Moreover, their prescription of the rules is general and all-encompassing. Courts make law more timidly, on a piece-by-piece basis, and oper- ate much more narrowly.

Although American law today is primarily statutory and administrative, vestiges of judge- made law persist. The law governing personal injury remains principally judge-made, as do procedural matters such as rules of evidence. The major influence of case law (another term for court decisions), however, is seen in interpreting the law of other sources. The Constitution is a remarkably short document—some 4,300 words—and it is full of generalizations such as “due process of law,” “equal protection of the laws,” and “unreasonable searches and seizures.” The Founders left later generations to flesh out the operating details of government. Supreme Court decisions have been primarily responsible for adapting constitutional provisions to changing circumstances. Through an extensive body of case law, the Court has applied specific meaning to these vague phrases. (See Appendix D for more information on judge-made law.)

Judge-made case law is vital in determining the meaning of other sources of law as well. Stat- utes, for example, address the future in general and flexible language. The interpretations that courts provide can either expand or contract the statute’s meaning. No lawyer is comfortable with his or her interpretation of an alleged violation of the crimi- nal law without first checking to see how the courts have interpreted it.

THE ADVERSARY SYSTEM

Law is both substantive and procedural. Substan- tive law creates legal obligations. Tort, contract, and domestic relations are examples of substantive civil

L A W S O N , A N G E L A 6 8 5 3 B U

34 Part I / The Legal System

If a party has the burden of production (often referred to as the burden of going forward), he or she must produce evidence to put facts in issue. The burden of persuasion, more commonly called the “burden of proof,” is the obligation of a party to prove a fact to a certain level, either beyond a reasonable doubt, by a preponderance of the evidence, or by clear and convincing evi- dence. The various levels of proof used in evalu- ating whether the burden of persuasion has been met are depicted in Table 2.1. The burden of per- suasion comes into play after all the evidence is produced, when it is time for the judge to decide the ultimate issue in a bench trial or time to instruct the jury. The prosecution always bears the burden in persuading the trier-of-fact that the defendant committed each and every element of all crimes charged. In some circumstances, how- ever, the defendant in a criminal trial bears the burden of persuasion to prove a certain defense, such as insanity. When the defendant bears the burden of persuasion to prove a defense, it is called an affirmative defense.

At the low end of the scale, there is no proof. Just above that, there is what the law calls “mere suspicion”—a hunch or an intuition. Although intuitively knowing something is undoubtedly a skill that serves law enforcement officers well, mere suspicion is insufficient proof of any fact in a court of law.

The next level up from mere suspicion is rea- sonable, articulable suspicion. This differs from mere suspicion only slightly, but in an important way. Instead of just having a hunch or an intui- tive feeling, a person can articulate the reasons why he or she is suspicious. Moreover, the expla- nations offered as the bases for the suspicion are objectively reasonable—clearly understandable to another person who hears the explanations. This level of proof is necessary for law enforce- ment personnel to conduct a “stop and frisk.” These brief, limited, investigative detentions are also known as “Terry stops” as a result of the U.S. Supreme Court’s landmark decision in Terry v. Ohio (1968).

The next highest level of proof is called prob- able cause. Defining probable cause is no easy task. It is differentiated from reasonable, articulable sus- picion by the existence of facts—independently verifiable factual information that supports the

fair verdict; if the judge believes the jury has acted improperly, he or she may set aside the jury’s ver- dict and order a new trial. This diffusion of pow- ers in the adversary system incorporates a series of checks and balances aimed at curbing political misuse of the criminal courts.

In diffusing power, the adversary system pro- vides a third safeguard: It charges a specific actor— the defense attorney—with asserting the rights of the accused. Defense attorneys search out potential violations of the rights of the accused. They func- tion as perpetual challengers in the criminal court process and are ready at every juncture to confront the government by insisting that the proper proce- dures be followed.

Presumptions and Inferences

All trials are governed by both rules of procedure and rules of evidence. One of the foundations of evidence law is that the trier-of-fact must have an evidentiary starting place at the outset of a trial. In a criminal trial, that starting place usually involves two presump- tions. A presumption is a conclusion or deduction that the law requires the trier-of-fact to make in the absence of evidence to the contrary. In contrast, infer- ences are permissive; they are conclusions or deduc- tions the trier-of-fact may reasonably make based on the facts that have been established by the evidence, but the trier-of-fact is not required to do so.

The two presumptions with which criminal trials start are the presumption of sanity and the presumption of innocence. The presumption of sanity requires that all defendants be presumed sane unless sufficient evidence of their insanity is proven, usually by clear and convincing evidence (see the Case Close-Up on Jared Loughner later in this chapter). Recall from the discussion of the Casey Anthony case in Chapter 1 that the presump- tion of innocence requires the trier-of-fact to accept that the defendant is innocent unless the prosecu- tion meets its burden to prove that the defendant is guilty beyond a reasonable doubt—a level of proof explored in greater detail in the next section.

Burdens of Proof

The concept of the “burden of proof” actually encompasses two separate burdens: the burden of production and the burden of persuasion.

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 35

the crime(s) charged beyond a reasonable doubt; defendants are not required to prove themselves innocent. If the prosecution fails to meet this burden of proof on any element of a crime, the defendant must be acquitted (In re Winship, 1970). A specific definition for the “beyond a reasonable doubt” standard has not been adopted by the U.S. Supreme Court, leading to some confusion among jurists and jurors alike. In fact, jury instructions explaining reasonable doubt are often the basis for appeal. It is sufficient to say that proof beyond a reasonable doubt requires that the guilt of the defendant be established to a reasonable, but not absolute or mathematical, certainty. Probability of guilt is not enough. In other words, to satisfy the standard of “beyond a reasonable doubt,” the jury must be satisfied that the charges against the defendant are almost certainly true. A challenged definition of beyond a reasonable doubt that was upheld by the U.S. Supreme Court reads as follows: “A reasonable doubt is an actual and substantial doubt arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence” (Victor v. Nebraska, 1994, p. 18). Keep in mind that reasonable doubt is an inherently qualitative concept; it cannot be quantified, and any attempt to do so for a jury is likely to result in reversible error (see Chapter 13).

conclusion that there is a “fair probability” that a crime occurred or that a particular person was involved in a crime.

In most civil cases, the standard of proof is a preponderance of the evidence—commonly understood as proof that something is more likely than not. Thus, if the plaintiff is able to show that the probability is more than 50 percent that the defendant did what is claimed, the judgment will be for the plaintiff. It is also the standard of proof used to establish the validity of waivers of consti- tutional rights, as well as the burden for proving that exceptions to the exclusionary rule apply (see Chapter 11).

Clear and convincing evidence is a higher level of proof than the preponderance of the evi- dence standard, yet it falls short of proof beyond a reasonable doubt. It is the standard of proof in some civil cases. It is also the level of proof to which a defendant in some criminal cases must establish an affirmative defense such as insan- ity. If there is clear and convincing evidence, the trier-of-fact should be reasonably satisfied as to the existence of the fact, yet they may have some doubts.

One of the most fundamental protections recognized in the American criminal justice process is the presumption of innocence. The state has the burden of proving all the elements of

TABLE 2.1 ■ LEVELS OF PROOF

Proof

Mere

Suspicion

Articulable

Reasonable

Suspicion

Probable

Cause

Preponder-

ance of the

Evidence

Clear and

Convincing

Evidence

Beyond a

Reasonable

Doubt

Beyond

All

Doubt

A “hunch” serves law enforcement officers well, but is insufficient proof in any stage in the judicial process.

Standard established in Terry v. Ohio for a “stop and frisk”—a limited investigative detention.

Necessary to arrest a person, conduct a search, or seize evidence.

Plaintiff’s burden in most civil cases; burden for estab- lishing “know- ing, intelligent, and voluntary” waivers of most constitutional rights; burden for establishing exceptions to the exclusionary rule.

Plaintiff’s burden in some civil cases; defen- dant’s burden for proving insanity; government’s burden to civilly commit a dangerous person.

Prosecution’s burden to prove each element of a criminal offense

Proof to an absolute certainty is not required in any phase of the judicial process in the United States.

SOURCE: John Ferdico, Henry F. Fradella, and Christopher Totten. Criminal Procedure for the Criminal Justice Professional. 11th ed. Belmont, CA: Wadsworth, 2012.

L A W S O N , A N G E L A 6 8 5 3 B U

36 Part I / The Legal System

the right to a trial by jury. These protections exist not to free the guilty but to protect the innocent (see Table 2.2). Basing the criminal justice process on the necessity of protecting individual liberties (of the innocent and guilty alike) obviously reduces he effectiveness of that process in fighting crime. To ensure that innocent persons are not found guilty, Anglo-American criminal law pays the price of freeing some of the guilty.

The primary justification for providing consti- tutional safeguards for those caught in the net of the criminal process is to ensure that innocent per- sons are not harassed or wrongly convicted. The American legal system is premised on a distrust of human fact finding. The possibility of wrongly convicting an innocent person arises when honest mistakes are made by honorable people. But it also arises when dishonorable officials use the criminal

THE RIGHTS OF THE ACCUSED

Procedural law in the United States places a heavy emphasis on protecting the individual rights of each citizen. A key feature of a democracy is the insistence that the prevention and control of crime be accom- plished within the framework of law. The criminal process embodies some of society’s most severe sanctions: detention before trial, confinement in prison after conviction, and, in certain limited situa- tions, execution of the offender. Because the powers of the criminal courts are so great, there is concern that those powers might be abused or misapplied.

Restrictions on the use and application of gov- ernment power take the form of rights granted to the accused. One of the most fundamental pro- tections is the right to remain silent. Another is

CHICAGO (2002)

In an effort to remake the image of his client Roxy Hart (played by Renee Zellweger), law- yer Billy Flynn (played by Richard Gere) holds a press conference.

He starts by calling on Mary Sunshine, an obviously friendly reporter who poses a predictably softball question: “Do you have any advice for young girls seeking to avoid a life of jazz and drink?” “Absolutely,” Flynn responds. “Mrs. Hart feels it was the tragic combination of liquor and jazz which led to the downfall.” And then he launches into a song called the “Press Conference Rag,” intended to influence how his cli- ent’s story gets told.

The film Chicago (2002), based on the musical of the same name, is set during the Roaring Twenties, when jazz, illegal liquor, sin, and the city of Chicago seemed synony- mous. What is somewhat unusual is that it focuses on women killing men, a topic not typically portrayed in works of fiction. What is not unusual, however, is how lawyers try to manipulate the press to influence judges and juries. From the nation’s beginning, defendants have hired lawyers to

improve their public standing, hoping that it will translate into favorable treatment by the criminal justice system.

The fictional, media-savvy Billy Flynn uses the press in an effort to complete an extreme makeover of his client Roxy Hart, who suffered from very serious image prob- lems. (She murdered her lover and then tried to have her husband take the fall.) Real-life celebrity lawyers, such as Mark Geragos, use similar strategies for clients such as Mi- chael Jackson and Scott Peterson, who also need extreme makeovers of their public images. The late pop star Michael Jackson was charged with sexually molesting several young boys and then paying their families in a cover-up. Scott Peterson was accused of murdering his pregnant wife and unborn child and then concocting an elaborate cover-up story.

Formal press conferences and informal news leaks played key roles during the prosecutions of Peterson and Jackson. In an earlier era, lawyers often preferred to keep their clients and their legal woes out of the public eye. But today many lawyers seem to delight in calling public attention to their cli- ents and their legal peccadilloes. Not surprisingly, high-profile lawyers are accused of playing to the cameras (and reporters) both inside and outside the courtroom. Indeed, an assistant

COURTS,

LAW, &

MEDIA

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 37

are brutal or overzealous are likely to produce fear and cynicism among the people—lawbreakers and law abiders alike. Such practices undermine the legitimacy that law enforcement officials must have in order to enforce the law in a democracy.

Due Process

The principal legal doctrine for limiting the arbi- trariness of officials is due process. Due process of law is mentioned twice in the Constitution:

“No person shall . . . be deprived of life, liberty or property without due process of law.” (Fifth Amendment)

“No state shall deprive any person of life, lib- erty or property without due process of law.” (Fourteenth Amendment)

justice process for less-than-honorable ends. In countries without built-in checks, the criminal justice process provides a quick and easy way for government officials to dispose of their enemies. For example, a common ploy in a totalitarian gov- ernment is to charge persons with the ill-defined crime of being an “enemy of the state.” The pos- sibility of political misuse of the criminal justice process by a tyrannical government or tyrannical officials is a major concern in the Anglo-American heritage.

Another reason that democracies respect the rights of those accused or suspected of violating the criminal law is the need to maintain the respect and support of the community. Democratic govern- ments derive their powers from the consent of the governed. Such support is undermined if power is applied arbitrarily. Law enforcement practices that

district attorney suggested, “It looks like Geragos is trying to manipulate the media and the jury and he’s been pretty good at it” (CBS News, 2004). At times, though, such complaints are little more than sour grapes; after all, police and prosecu- tors regularly use the media to project a negative image of defendants.

Trials are an obvious source of interest for journalists because they represent the classic “whodunit.” Thus, it is not surprising that the press follow some trials closely. Most tri- als are too mundane to evoke much public interest, but the legal woes of Peterson and Jackson proved to be major news events that often displaced other news. What has changed over time is the advent of cable news channels, which provide extensive coverage of celebrity trials. The challenge for the media is how to cover those trials when a legal team is trying to manipulate the press. In turn, the growth of electronic media has made the reporters as much of the story as the lawyers (and their clients). The O.J. Simpson trial, for example, made legal reporter Greta Van Susteren a household name in the same way the Peterson and Jackson trials contributed to Nancy Grace’s rise to fame.

It is unclear whether efforts by celebrity lawyers ulti- mately matter to either the jury or the rest of the public. Peterson was convicted of murder and sentenced to death. Jackson, on the other hand, was acquitted (although Geragos

had left the Jackson defense team before the trial). One thing is clear, though—the media appear more than willing to continue to cover these trials and the actions of the celebrity attorneys. Whether that is good for the legal system or for justice is a question that remains unanswered. As we will discuss in Chapter 13, prejudicial pretrial publicity is a major concern in high-profile cases.

In a highly dramatic fashion, the movie Chicago illustrates the tension between law on the books and law in action. Law on the books projects the rules of law as abstract and absolute. Law in action, on the other hand, stresses real people and the subjectivity of facts. From arrest to sentenc- ing, prosecutors, defense attorneys, judges, jurors, and proba- tion officers are required to interpret what facts are most relevant and what conclusions to draw from those facts. That there may be disagreements in these assessments produces another theme of this book—law in controversy.

1. What do you think? Do the media have an obligation to ignore events concocted by lawyers simply to put a favor- able spin on their clients’ situations?

2. How could you study whether television coverage of these trials has an influence on the trial or the verdict?

3. In what ways do modern celebrity attorneys resemble the fictional Billy Flynn in Chicago?

L A W S O N , A N G E L A 6 8 5 3 B U

38 Part I / The Legal System

leaders of the American Revolution opposed the adoption of the Constitution, fearing that the pro- posed national government posed as great a threat to the rights of the average American as had the king of England. Therefore, shortly after the adop- tion of the Constitution, 10 amendments, collec- tively known as the Bill of Rights, were adopted. Many of these protections—particularly the Fourth, Fifth, Sixth, and Eighth Amendments—deal specif- ically with criminal procedure.

Originally, the protections of the Bill of Rights restricted only the national government. Through a legal doctrine known as selective incorporation, however, the Supreme Court ruled that the due process clause of the Fourteenth Amendment made some provisions of the Bill of Rights applicable to the states as well. Although not all the protec- tions of the Bill of Rights have been incorporated

The concept of due process of law has a broad and somewhat elastic meaning, with definitions vary- ing in detail from situation to situation. The core of the idea of due process is fundamental fairness insofar as a person should always be given notice of any charges brought against him or her, that a person should be provided a real chance to pres- ent his or her side in a legal dispute, and that no law or government procedure should be arbitrary or capricious. The specific requirements of due pro- cess vary somewhat, depending on the Supreme Court’s latest interpretations of the Bill of Rights.

Bill of Rights

The major obstacle to the ratification of the Consti- tution was the absence of specific protections for individual rights. Several of the most prominent

TABLE 2.2 ■ PROVISIONS OF THE U.S. CONSTITUTION DEALING WITH CRIMINAL PROCEDURE

Constitutional Language

Crime Article I Section 9.3: No bill of attainder may be passed by the legislature. Article I Section 10.1: No state may pass any bill of attainder. Article I Section 9.3: The legislature may not pass an ex post facto law. Article I Section 10.1: No state may pass an ex post facto law.

Arrest Amendment IV: Right against unreasonable search and seizures applies to arrest.

Initial appearance Amendment VI: Right to know charges.

Bail Amendment VIII: Right against excessive bail.

Preliminary hearing Amendment VI: Right to assistance of counsel.

Charging None

Grand jury Amendment V: Right to a grand jury for a capital or otherwise infamous crime.

Arraignment Amendment VI: Right to know charges.

Evidence Amendment IV: Right against unreasonable search and seizures. Amendment V: Right against self-incrimination.

Plea bargaining None

Trial Amendment V: Right not to be tried twice for the same crime. Amendment VI: Right to a speedy trial; right to an impartial jury; right to a public trial; right to be confronted by witnesses against oneself; right to a jury from state or district where crime shall have been committed; right to obtain witnesses in one’s favor; right to conduct cross- examination; right to speak at trial.

Sentencing Amendment VIII: Right against excessive fines; right against cruel and unusual punishment.

Amendment XIII: Right against involuntary servitude.

Appeal Article I Section 9.2: Privilege of the writ of habeas corpus shall not be suspended.

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 39

prohibition against cruel and unusual punishment (Eighth).

CIVIL LAW OVERVIEW

Most disputes that come to court involve private parties. Conflicts over failure to pay money owed or injuries suffered in an automobile accident are

into the Fourteenth Amendment, all of the major protections now apply to the states as well as to the national government (Exhibit 2.2). The major provisions of the Bill of Rights incorporated through the due process clause of the Fourteenth Amendment are protections against unreason- able searches and seizures (Fourth Amendment); protection against self-incrimination (Fifth); the right to counsel and trial by jury (Sixth); and the

CASES INCORPORATING PROVISIONS OF THE BILL OF RIGHTS INTO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

Exhibit 2.2

FIRST AMENDMENT

Establishment of religion: Everson v. Board of Education (1947) Free exercise of religion: Cantwell v. Connecticut (1940) Freedom of speech: Gitlow v. New York (1925) Freedom of the press: Near v. Minnesota (1931) Freedom to peaceably assemble: DeJong v. Oregon (1937) Freedom to petition government: Hague v. CIO (1939)

SECOND AMENDMENT

Right to bear arms: McDonald v. City of Chicago (2010)

FOURTH AMENDMENT

Unreasonable search and seizure: Wolf v. Colorado (1949) Exclusionary rule: Mapp v. Ohio (1961) Warrant requirement: Ker v. California (1963)

FIFTH AMENDMENT

Grand jury: Not incorporated No double jeopardy: Benton v. Maryland (1969) No self-incrimination: Malloy v. Hogan (1964) Compensation for taking private property: Chicago, Burlington

and Quincy Railroad v. Chicago (1897)

SIXTH AMENDMENT

Speedy trial: Klopfer v. North Carolina (1967) Public trial: In re Oliver (1948) Impartial jury: Parker v. Gladden (1966) Jury trial: Duncan v. Louisiana (1968)

Venue: Not incorporated Notice: Cole v. Arkansas (1948) Confrontation of witnesses: Pointer v. Texas (1965) Compulsory process: Washington v. Texas (1967) Assistance of counsel in capital cases: Powell v. Alabama

(1932) Assistance of counsel in noncapital felony cases:

Gideon v. Wainwright (1963) Assistance of counsel in most misdemeanor cases:

Argersinger v. Hamlin (1972)

SEVENTH AMENDMENT

Jury trial in civil cases: Not incorporated

EIGHTH AMENDMENT

No excessive bail: Not incorporated No excessive fines: Cooper Industries v. Leatherman Tool Group,

Inc. (2001) No cruel and unusual punishment:

Robinson v. California (1962)

NINTH AMENDMENT

Privacy: Griswold v. Connecticut (1965). (Note that the word privacy does not appear in the Ninth Amendment (nor anywhere else in the Constitution), but in Griswold, several justices viewed the Ninth Amendment as guaranteeing that right.)

SOURCE: Adapted from John Ferdico, Henry F. Fradella, and Christopher Totten, Criminal Procedure for the Criminal Justice Professional. 11th ed. Belmont, CA: West/Wadsworth, 2012.

L A W S O N , A N G E L A 6 8 5 3 B U

40 Part I / The Legal System

conduct may be involved (see Chapter 9 for a dis- cussion of domestic violence).

Property received from a person who has died is governed by laws on inheritance. The best-known example is a will, a written document telling how a person’s property should be distributed after his or her death. But when someone dies without a will, the civil law of intestacy determines how pos- sessions should be distributed by a court in probate proceedings.

Civil Remedies

Individuals, groups, or governments sue because they want something from another party. What they want is termed a remedy. A court’s official decision about the rights and claims of each side in a lawsuit is known as a judgment. Thus, if the plaintiff wins, the judgment also contains a remedy, which is the relief granted by the court.

Most civil cases involve a request for monetary damages. The plaintiff (the person who starts a lawsuit) demands that the defendant (the person against whom a lawsuit is brought) pay money to the plaintiff. For example, in a case involv- ing an automobile accident, the injured party may request a sum of money to pay for hospital expenses, doctors’ fees, lost wages, and general “pain and suffering.” Monetary damages are sums of money that a court orders to be paid to a person who has suffered a legal injury. Although there are several types of damages that courts may order, the two pleading types of civil dam- age awards involve compensatory and punitive damages. Compensatory damages are payment for the actual losses suffered by a plaintiff. Punitive damages involve money awarded by a court to a person who has been harmed in a malicious or willful way by another person. The purpose is to warn others.

Another type of remedy occasionally requested is a declaratory judgment, which is a judicial deter- mination of the legal rights of the parties. For exam- ple, in prisoner litigation, lawyers seek a declara- tion that prison conditions violate constitutional standards.

A third type of remedy is called an injunction (and comes from the type of law found in England termed “equity” or sometimes “chancey” law). An injunction is a court order that requires a

settled on the basis of the body of rules collectively known as civil law. These suits are brought because the courts possess powers that private parties do not; courts can, for example, order a person to pay money owed under a contract or award monetary damages suffered for an injury received in an auto- mobile accident.

Types of Civil Disputes

A civil suit is brought by a private party. But “pri- vate parties” are not limited to individual citizens. They may include groups of citizens (advocacy groups and homeowners’ associations, for exam- ple) as well as businesses and the government. Given these legal entities, is it best to view civil law as every lawsuit other than a criminal proceed- ing. Accordingly, civil law is considerably more voluminous than criminal law.

Tort law involves the legal wrong done to another person. Injuries suffered during auto- mobile accidents are a prime example of tort law. When lawyers speak of an injury, however, they do not necessarily mean a physical injury. The term has a broader meaning, including any wrong, hurt, or damage done to a person’s rights, body, reputa- tion, or property.

Another type of private law involves contracts—agreements between two or more per- sons involving a promise supported by mutual obligations (termed “consideration”). Money owed on a credit card and bank loans for buying a new car are considered contracts.

Property, which centers on the ownership of things, is another division of private law. Prop- erty law regulates three types of property: real property—involving land and real estate; personal property—rights concerning tangible, movable items; and intellectual property—covering origi- nal ideas. Intellectual property has grown to be an increasingly important area of the law in the digital age, as it governs the regulation of patents, trade- marks, and copyrights.

Domestic relations constitutes a major area of law. These matters of family law mainly involve divorce and related issues such as child custody, child support, and alimony. Some areas of domes- tic relations overlap with juvenile law (Chapter 17). Domestic disputes are also a common reason that police may be summoned, and at times criminal

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 41

person to take an action or to refrain from taking an action. An injunction is a powerful measure that can be enforced by the contempt power of the court (the authority of a court to jail someone for disobeying a court order). Thus, a person who violates an injunction can be fined or sent to jail. Table 2.3 summarizes the three primary types of injunctions.

To qualify for any of these three types of injunc- tive orders, the plaintiff must demonstrate to the court that irreparable injury will be suffered if the injunction is not issued. In other words, the plaintiff must show that the harm at issue cannot be cured later by monetary compensation and conditions— that once changes are made, things cannot be put back to the way they were before.

Using Civil Remedies to Fight Crime

Civil law is having a growing impact on the crimi- nal justice system. Victims of crime are increas- ingly resorting to civil litigation, in addition to victim compensation and restitution, as a means of recovering from the ill effects of crime. Moreover, victims’ rights advocates are pushing for civil rem- edies as one way for victims to reassert control (see Chapter 9). In criminal prosecutions, the prosecutor essentially makes all decisions; in civil litigation, though, the plaintiff and plaintiff’s lawyer make the decisions.

Although parallel civil and criminal proceedings have been brought for years, they are being used more frequently today than ever before, especially in three areas—civil forfeiture cases related to drug offenses,

lawsuits brought by victims of sexual assault, and civil remedies to compensate victims of white collar crime (Lininger, 2008; McCampbell, 1995).

The overlap between civil and criminal law is highlighted by a number of efforts to fight drug use. Legislators at both the state and national levels are passing laws that allow for the eviction of resi- dents from public housing if they are convicted of drug possession and laws that permit drug testing of employees. Likewise, nuisance-abatement suits have targeted so-called crack houses. These essen- tially civil laws increase the arsenal of legal weap- ons that law enforcement officials may use to stop the sale and use of illegal drugs. But some people now wonder whether the use of civil remedies, par- ticularly asset forfeiture, may have gone too far (see “Courts, Controversy, & Reducing Crime: Should Asset Forfeiture Be Limited?”).

Rape victims are pursuing justice in the civil courts at a growing rate, seeking damages from almost anyone they can find who may have shared liability for the rape. These lawsuits often proceed on the basis of the legal theory of premises liabil- ity, in which the victim alleges that the owner or manager of a property failed to provide adequate security and thereby contributed to the occurrence of the crime. These claims raise issues concerning inadequate security resulting from poorly trained security guards, too few security guards, or envi- ronmental design flaws. In short, premises liability lawsuits argue that the crime that occurred was foreseeable and that the defendant had a legal duty to provide adequate security (Gordon & Brill, 1996; Kanter, 2005).

TABLE 2.3 ■ TYPES OF INJUNCTIONSJ

Temporary

restraining order

(“TRO”)

A temporary injunction lasting only a few days that orders a party to refrain from taking certain action until a hearing can be held, such as not taking a child out of the jurisdiction until a custody hearing can be held.

Preliminary

injunction

An injunction issued during the pendency of a civil or criminal case that orders the parties from taking certain actions in order to maintain the status quo until there is a final judgment in the case, such as ordering a city not to enforce a local ordinance until its constitutionality can be determined.

Permanent

injunction

An injunction entered as part a final judgment ordering a party to refrain from or to perform certain actions, such a ordering a company to permanently stop dumping industrial waste into a river.

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

42 Part I / The Legal System

television commercials asking whether viewers took a particular prescription drug and then suf- fered any of a long list of complications, or asking questions like, “Have you been injured in an acci- dent?” Critics view such product liability and per- sonal injury lawsuits as having corrupted the civil

Law in Controversy: The Incivility of Civil Justice

In recent years, civil justice has become almost as controversial as criminal justice. Consider, for example, the seemingly endless number of

Asset forfeiture involves government seizure of the personal assets obtained from, or used in, a crime. Assets refer to property, businesses, cars, cash, and the like. For example, a car used in the distribution of illegal drugs may be forfeited to

the government. Asset forfeiture was part of British common law as early as 1660. More recently, it is identified with the Racketeer Influenced and Corrupt Organizations Act (RICO for short), enacted by Congress in 1970. Congress was concerned about the infiltration of organized crime into the regular business marketplace and sought to discourage such activities not only by imposing criminal penalties, but also by making property obtained from the profits of the illegal enterprise subject to forfeiture. Thus, drug dealers who pour their profits into a restaurant can have the restaurant seized by government agents.

But asset forfeiture is not limited to criminal actions. The more potent form of asset forfeiture is civil in nature. The government is proceeding not against a person, but against the property in what is termed an in rem procedure (a lawsuit brought against a thing rather than against a per- son). Through the years, Congress has greatly expanded the scope of asset forfeiture, and nearly all states have enacted asset forfeiture laws. Some cities have even enacted forfei- ture laws to confiscate cars used in street racing, operated by drunk drivers, or driven by those with revoked licenses (Worrall, 2008).

The major concern over asset forfeiture laws is that they make it too easy for law enforcement officials to seize the assets of innocent persons, especially since civil forfei- ture actions require a low burden of proof. The Supreme

Court placed some limits on governmental forfeiture power in Austin v. United States, 1993. In that case, a South Dakota man had his mobile home and auto body shop seized after being convicted of selling two grams of cocaine. The Court unanimously ruled that the amount seized—almost $43,000—was disproportionate to the crime. But the Court has nonetheless upheld the seizure of property from inno- cent owners over due process challenges (Bennis v. Michigan, 1996; United States v. Ursery, 1996).

After years of debate, Congress passed the Civil Asset Forfeiture Act of 2000. Prior to the Act’s passage, property owners had been required to prove that their property was not subject to forfeiture. Today, however, the government must prove—by a preponderance of the evidence—that property is subject to forfeiture. The Act also awards attor- neys’ fees to those who successfully challenge confiscation of property.

Research concludes that there is no clear answer to whether asset forfeiture encourages policing for profit. However, one study found that local law enforcement agen- cies circumvent restrictive state laws (those placing limits on the proceeds they can receive) by teaming up with federal officials to receive equitable sharing payments (Worrall & Kovandzic, 2008).

The debate over asset forfeiture crosses traditional ideological lines. Due process advocates want limits on asset forfeiture because they think that innocent people end up being presumed guilty. Similarly, crime control sup- porters also want strong restrictions on asset forfeiture because they think it improperly gives the government too much authority over important property rights.

What do you think? Should more limits be placed on law enforcement officials’ ability to seize assets of suspected wrongdoers? Do large financial incentives like these provide too great a temptation?

SHOULD ASSET FORFEITURE BE LIMITED?

COURTS,

C O N T R O V E R S Y,

& REDUCING

CRIME

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 43

the death of a person in detention when police offi- cers failed to prevent suicide; and prison officials have been held liable for failure to prevent inmate- against-inmate assaults (see Lee, 2011).

Criminal justice officials also find themselves in civil court as defendants in growing numbers of cases filed by their own employees. Some lawsuits allege discrimination in hiring or promotion. Oth- ers argue that the plaintiff was sexually harassed. Chapter 3, on federal courts, will explore how a wide range of federal laws shape the internal oper- ations of law enforcement and corrections.

CRIMINAL LAW OVERVIEW

Some disputes are viewed as so disruptive to soci- ety that they require special treatment because civil law remedies are not enough. Whereas a breach of the civil law is considered a private matter involv- ing only the individual parties, violations of the criminal law are considered public wrongs. As such, criminal law relates to actions that are con- sidered so dangerous, or potentially so, that they threaten the welfare of society as a whole.

A second difference involves prosecution. Unlike civil law, in which private parties file suit in court alleging an infringement of private rights, violations of public wrongs are prosecuted by the state.

The types of penalties imposed on law violators is a third difference. In civil law, the injured party receives compensation. Violators of criminal law, however, are punished. In setting penalties, Ameri- can law often makes a distinction between a misde- meanor and a felony. In general, a misdemeanor is a criminal offense that is less serious than a felony. Misdemeanors are generally punishable by a fine or up to a year in jail; felonies usually involve prison sentences of more than a year. The stress on punish- ment derives from the goal of criminal law to pre- vent and control crime. It is important to recognize that criminal law is intended to supplement, not supplant, civil law. Thus, as discussed earlier, a per- son may be prosecuted criminally and the victim may also seek to recover civil damages for the same act. In automobile accidents involving drinking, for example, the drunk driver may be charged crimi- nally with drunk driving and the injured party may also file a civil suit seeking monetary damages.

justice system into a type of lottery. In addition, crit- ics point out that tort litigation costs in the United States are two to three times more than they are in many western European countries and that they contribute to the already high cost of health care and automobile insurance. Proponents of the cur- rent civil justice system argue against tort reform, however, primarily by pointing out that curtailing civil lawsuits would prevent deserving tort victims from collecting all of the damages to which they are entitled and would interfere with the ability of juries to properly punish wrongdoers (Neubauer & Meinhold, 2013).

Victims who use the civil justice system in an attempt to recover monetary damages from crimi- nal defendants are often motivated to sue seeking vindication of their beliefs with little likelihood of collecting any money. After all, few criminal defendants have the economic resources to make litigation financially worthwhile, as illustrated by the cases of Bernhard Goetz and O.J. Simpson in Table 2.4. On the other hand, as the other cases in Table 2.4 illustrate, most municipalities, govern- mental agencies, and celebrities have the financial resources to pay large settlements.

Civil Liability of Criminal Justice Officials

In the modern era, not only do criminal defendants find themselves hauled into civil court, but police officers, prosecutors, and prison guards do as well. Criminal justice officials must defend themselves against a variety of civil lawsuits. Perhaps the best known are cases filed by prison inmates under 42 U.S.C. § 1983 (often called “Section 1983 cases”) alleging that conditions of confinement constitute cruel and unusual punishment in vio- lation of the Eighth Amendment. These lawsuits have reshaped American prisons in recent years (see Chapter 14).

Other civil lawsuits seek monetary damages for misconduct on the part of law enforcement person- nel, such as the Rodney King and Amadou Diallo cases (summarized in Table 2.4). Most commonly, these lawsuits allege that the police used excessive force or were negligent in using deadly force. Con- versely, some lawsuits center on the inaction of law enforcement or correctional personnel. For exam- ple, local governments have been found liable for

L A W S O N , A N G E L A 6 8 5 3 B U

44 Part I / The Legal System

prosecution must prove beyond a reasonable doubt. In defining the elements of a particular offense, criminal laws are based on five general principles. Most behavior cannot be called criminal unless:

a guilty act, called an actus reus is committed, with a particular level of criminal intent, called mens

rea, and the guilty act and the criminal intent are related.

Table 2.5 summarizes several important differ- ences between civil law and criminal law.

Elements of a Crime

In every criminal case, the prosecution must prove what is known as corpus delicti, a Latin phrase meaning “body of the crime.” Corpus delicti refers to the essential elements of a crime that the

TABLE 2.4 ■ PROMINENT EXAMPLES OF CIVIL ACTIONS FOLLOWING CRIMINAL PROSECUTIONS

Person Criminal Prosecution Civil Action

Bernhard

Goetz

Criminal jury convicted the subway vigilante of illegally having a gun but acquitted him of more serious charges after the 1984 shooting of a youth Goetz claimed was trying to rob him. The shooting had clear racial overtones (Goetz is white; his victim, black).

A 1996 civil jury ordered Goetz to pay $43 million to the man he left paralyzed. It is unlikely that Darrell Cabey, who was paralyzed and suffered brain damage, will be able to collect from the unemployed electrician.

O. J. Simpson In the televised “trial of the century,” the jury acquitted O. J. Simpson of murdering his former wife Nicole Brown Simpson and her friend Ronald Goldman. The verdict divided the nation along racial lines.

A civil jury found Simpson liable for the killings of his ex-wife and her friend. The jury awarded $8.5 million in compensatory damages to Goldman’s parents and $25 million in punitive damages. The plaintiff’s ability to collect on the judgment is limited because Simpson had placed most of his money in retirement accounts that cannot be seized.

Rodney King Two Los Angeles police officers were acquitted in state court of beating Rodney King, but they were later convicted in federal court (Chapter 3).

The city of Los Angeles settled the civil lawsuit for $3.8 million.

Randall Weaver After a months-long standoff, federal agents arrested Randall Weaver at his mountain home in Ruby Ridge, Idaho. During the arrest a firefight broke out, and Weaver’s wife and son were killed. A criminal jury acquitted Weaver of a variety of gun charges.

The U.S. Justice Department paid $3.1 million to settle wrongful death claims against federal agents for the 1992 death of Randall Weaver’s wife and son.

Amadou Diallo Four NYPD officers were acquitted of murder. The Justice Department will not file federal charges.

The city of New York settled the case for $3 million.

Kobe Bryant The prosecutor dropped charges of sexual assault when the victim refused to testify.

Bryant settled out of court for an undisclosed amount of money.

Michael Jackson The jury acquitted the pop icon of sexually molesting a child at his Neverland ranch.

Media report that Jackson settled out of court at least one earlier case involving improper sexual contact with a minor.

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 45

An important subdivision of the guilty act is a class of offenses labeled as attempts (for example, attempted burglary or attempted murder). The law does not want a person to avoid legal liability merely because someone or something prevented the com- mission of a crime. Typically, though, the penalties for attempt are less severe than if the act had succeeded. One result is that in some states, defendants often plead guilty in an attempt to reduce the possible severity of the prison sentence.

Mens Rea: Criminal Intent Most crimes consist of two elements, the guilty act itself and the accompanying mental state. The rationale is that criminal sanctions are not neces- sary for those who innocently cause harm. As Justice Holmes (1881, p. 3) once pithily put it, “Even a dog distinguishes between being stumbled over and being kicked.” The mental state required for a crime to have been committed is referred to as guilty intent or mens rea (“guilty mind”).

Despite its importance in criminal law, guilty intent is difficult to define because it refers to a subjec- tive condition, a state of mind. Some statutes require only general intent (intent to do something that the law prohibits), but others specify the existence of specific intent (intent to do the exact thing charged). Moreover, legislatively defined crimes have added new concepts of mental state to the traditional ones. Thus, crimes differ with respect to the mental state

In addition, a number of crimes also require the prosecution to prove additional elements, such as the presence of certain attendant cir- cumstances and/or that the guilty act caused a particular result.

Actus Reus: The Guilty Act Before there can be a crime, there must be a guilty act (actus reus). Thus, criminal liability occurs only after a voluntary act that results in criminal harm. The requirement of a guilty act reflects a funda- mental principle of American law: No one should be punished solely for bad thoughts. Depending on the crime, there are different types of guilty acts. Most crimes have a voluntary act as the actus reus. Thus, a person who strikes another while suffering an epileptic seizure would not be guilty of battery, because the act (hitting) was not voluntary. An omission—a failure to act when there is a legal duty to act—can also qualify as an actus reus, such as failing to file income taxes, failing to yield the right of way, and failing to provide adequate care for one’s children. The act of possession can also qualify as an actus reus, such as the offense of pos- session of an illegal drug. Differences in the nature of the guilty act account for many gradations of criminal offenses. To choose one obvious example, stealing property is considered separately from damaging property.

TABLE 2.5 ■ DIFFERENCES BETWEEN CIVIL AND CRIMINAL LAW

Civil Criminal

Moving party Plaintiff State

Defending party Defendant Defendant

Burden of persuasion Preponderance of the evidence Beyond a reasonable doubt

Jury verdict rules Less than unanimous (many states) Unanimous (most states)

Remedy Monetary damages Fine and correctional supervision (in institutions, on probation, or with intermediate sanctions)

Defendant’s testimony May be forced to testify Constitutional right to silence

Right to counsel No constitutional right to counsel Constitutional right to counsel

Prosecution Must hire own lawyer The government through the district attorney

Examples Tort, contract, property, probate Assault, theft, burglary, murder

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

46 Part I / Legal Actors

crime. The difference between homicide and bat- tery, for example, depends on whether the victim died or lived. Similarly, most states distinguish between degrees of battery, depending on how seriously the victim was injured. Note that the con- cept of results differs from that of intent. In all of the preceding examples, the defendant may have had the same intent. The only difference was how hearty the victim was or perhaps how skillful the defendant was in carrying out his or her intentions.

Defining Crimes

Using the principles of actus reus, mens rea, attendant circumstances, and result, legislatures define the ele- ments of crimes in penal codes. The “Law on the Books vs. Law in Action” feature on the next page presents the key characteristics of the most common serious crimes. But because the particular elements combine to provide the technical (that is, legal) defi- nition or corpus delicti of a crime, criminal statutes must be read closely; each clause in a penal statute usually constitutes a critical part of the offense.

Criminal Defenses

Individuals may have performed illegal acts, but may nonetheless be not guilty of a crime because of the applicability of legally recognized defenses. Criminal defenses derive from the way crime is defined. In most criminal cases, the defense attempts to cast doubt on the defendant’s guilt. This is usually accomplished by undercutting the prosecution’s case such that the jury has reason to doubt whether the defendant committed all of the elements of the crime(s) charged.

In other cases, however, the defense may assert specific legal doctrines in an attempt to secure an acquittal. An alibi defense, for example, permits defendants to argue that they were somewhere else at the time the crime was committed. Witnesses may be called to testify that during the time in question the defendant was drinking beer at a local bar or shopping downtown with some friends. Most states and the federal system require that defendants pro- vide a notice of an alibi defense prior to trial, along with a list of witnesses to be called to support this assertion. A notice of alibi defense gives the prose- cution the opportunity to investigate the witnesses’ stories before trial. Prosecutors who suspect that

the prosecution must prove existed in order to secure a criminal conviction. Larceny (termed “theft” in some states), for example, typically requires proof of a very great degree of intent; the prosecutor must prove that the defendant intentionally took property to which he knew he was not entitled, intending to deprive the rightful owner of possession perma- nently. Negligent homicide, on the other hand, is an example of a crime involving a lesser degree of intent; the prosecution need only show that the defendant negligently caused the death of another. Most crimes require that the defendant knew he or she was doing something wrong. Also, the law assumes that people know the consequences of their acts. Thus, a person cannot avoid legal liability by later saying, “I didn’t mean to do it.”

Union of Act and Intent Criminal law requires that the guilty act and the guilty intent occur together, a concept often referred to as the union of actus reus and mens rea. Suppose that you pick up another student’s textbook believ- ing it to be your own. Although you take the book— an act that would constitute the actus reus for theft— you had no criminal intent; you made an honest and reasonable mistake. Thus, without the union of actus reus (the taking of the book) and mens rea (the intent to steal), you would not be liable for theft.

Attendant Circumstances Some crimes require the presence, or absence, of attendant (accompanying) circumstances. Driving at a speed of 150 miles per hour would constitute a crime only if it occurred on a public roadway; it would not be a crime to drive at that speed on a racetrack. The location of the speeding is the atten- dant circumstance for the crime. Attendant cir- cumstances may also be used to define the level or “degree” of crime. For example, most states differ- entiate between classes of theft on the basis of the amount stolen. The law might provide that a theft of less than $500 be treated as a misdemeanor and a theft of $500 or more be treated as a felony. The amount stolen is the attendant circumstance.

Results In a limited number of criminal offenses, the result of the illegal act plays a critical part in defining the

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 47

LAW ON THE BOOKS VS. LAW IN ACTION CHARACTERISTICS OF THE MOST COMMON SERIOUS CRIMES

LAW ON THE BOOKS LAW IN ACTION

Murder and

nonnegligent

homicide

The killing of one human being by another. Homicide is the least frequent violent crime. Most often murderers are relatives or acquaintances of the victim.

Rape Sexual intercourse that occurs without the effective consent of the victim.

Contrary to portrayals of sexual assaults by strangers in many movies and television shows, the overwhelming number of such crimes are “acquaintance rapes,” in which the victim knows the assailant.

Robbery The taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or by putting the victim in fear.

Half of all robberies involve one offender. Half of all robberies involve the use of a weapon.

Assault Aggravated assault is an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault is usually accompanied by the use of a weapon or other means likely to produce death or great bodily harm.

Simple assault occurs more frequently than aggravated assault.

Simple assault is the most common type of violent crime.

Simple assault is an unlawful attack by one person upon another for the purpose of inflicting less than severe bodily injury. This type of assault does not involve the use of a weapon or other means likely to produce death or great bodily harm.

Burglary The unlawful entry into a structure to commit a felony or a theft.

Residential property is targeted in two out of three burglaries.

Larceny

(theft)

The unlawful taking, carrying, lending, or riding away of property from possession or constructive possession of another.

Pocket picking and purse snatching occur most frequently inside businesses or on street locations.

Motor

vehicle theft

The theft or attempted theft of a motor vehicle. A motor vehicle is self-propelled and runs on the ground or on water, not on rails.

Motor vehicle theft is relatively well reported to the police, but the crime has a low rate of being solved.

Arson Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle, aircraft, or personal property of another.

Single-family residences are the most frequent targets of arson.

SOURCE: Federal Bureau of Investigation. Uniform Crime Reports. Washington, DC: Department of Justice, 2011.

witnesses have carefully rehearsed their alibi testi- mony can use clever cross-examination to ask ques- tions out of sequence, hoping to catch each witness in a series of contradictions. Prosecutors can also call rebuttal witnesses to suggest that the witnesses

are longtime friends of the defendant, who may be likely to lie.

Alibi defenses are actually quite rare, since pros- ecutors generally do not charge suspects who have firm alibis. The sections below present an overview

L A W S O N , A N G E L A 6 8 5 3 B U

48 Part I / The Legal System

deadly force to repel an unlawful and potentially deadly attack against oneself or another human being. In contrast, the criminal law never permits deadly force to be used strictly to defend property.

Procedural Defenses There are a number of procedural defenses that the law recognizes for public policy reasons. These defenses are generally unconcerned with factual guilt. Rather, they focus on compliance with the rules and processes of the criminal justice system, such as the right to a speedy trial and the related defense of the passage of time specified in statutes of limitations (see Chapter 5), the bar against double jeopardy, immunity, and the use of the exclusionary rule to prevent illegally obtained evidence from being used to convict someone (see Chapter 11).

Insanity Defenses of excuse seek to excuse acts commit- ted by defendants who should not be held crimi- nally responsible for their actions because they were too young (see section on “Delinquency,” next) or because their mental state prevented them from understanding the consequences of their actions. The most controversial defense of excuse is insanity.

Contemporary discussions on the insanity defense show marked philosophical divergences within society concerning an individual’s responsi- bility for his or her own acts. The lack of agreement is reflected in major differences among states con- cerning the extent to which a person’s mental facul- ties must be impaired before he or she is considered legally insane. The standards for insanity vary, but most jurisdictions follow the modern federal for- mulation of the insanity defense (Fradella, 2007). That version of the insanity defense excuses crimi- nal conduct if, as a result of a severe “mental dis- ease or defect” at the time of the commission of the offense, the defendant was unable to substantially appreciate the wrongfulness of his or her conduct. Although the prosecution must still prove all of the elements of the crime in question, the defense bears the burden of persuasion to prove the defendant’s insanity either by a preponderance of the evidence or by clear and convincing evidence, depending on the jurisdiction (see “Case Close-Up” box).

of some of the more common or controversial crim- inal defenses.

Defenses that Negate Mens Rea Sometimes people engage in an act that, at first blush might appear to be criminal, but they do so under circumstances demonstrating that they lacked true criminal intent. These defenses are said to negate mens rea. The two most common of these defenses include the mistake of fact defense and the defense of necessity.

When a person makes an honest and reason- able mistake regarding a factual matter that, if true, would have justified the act or omission that is the subject of a criminal prosecution, he or she may be able to assert the defense known as mistake of fact if the mistake negates the mens rea of the crime with which the defendant is charged. For example, if a student took a book that belonged to a classmate under the mistaken belief that the book was his own, the mistake would negate the crime of theft because there was no intent to steal.

Criminal law recognizes that there are times when someone acts not of his or her own free will, but rather because of the necessary circumstances of the moment or the coercion of another. When such situations exist, the law permits a defendant to argue that his or her conduct should either be excused entirely or mitigated to a less serious charge because mens rea was formed under extraor- dinary circumstances that render it unfair to hold the defendant responsible for the unlawful con- duct. Consider the case of State v. Cole (1991). The defendant’s wife was six months pregnant and had developed pains in her back and stomach. He did not have a telephone to call for help and his only neighbor was not at home. The next closest phone was more than a mile and a half away. So, even though his driver’s license had been suspended, he drove to the phone to call for help. The defense of necessity excused his conduct.

Defenses of Justification Defenses of justification are based on the com- mission of an act under circumstances the criminal law does not seek to punish, such as using force in self-defense, defense of other persons, or defense of property. Note that it may even be legal to use

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 49

On January 8, 2011, Jared Loughner got into a taxicab;

went to a local Safeway grocery store in Tucson, Arizona;

paid with a $20 bill; and calmly received his change. He

then opened fire, killing 6 people, including federal district

judge John Roll, and wounding 14 others, including U.S.

Congresswoman Gabrielle Giffords (Cloud, 2011). After

initial public outrage, some people began to express pity

when details of Loughner’s mental illness came to light.

Sadly, there were many warning signs that Loughner

was seriously mentally ill and dangerous, but nothing was

done about it. Loughner displayed several classic symp-

toms of psychosis, ranging from paranoia and disorganized

thoughts and speech to nonsensical outbursts and the

inability to function in social situations. In fact, Pima Com-

munity College, where Loughner had been a student,

dismissed him for behavior that scared his professors and

fellow students alike. But he never got any help.

Loughner was indicted on a host of federal charges, in-

cluding one count of attempted assassination of a member

of Congress, two counts of murder of a federal employee

(including Judge Roll), two counts of attempting to murder

a federal employee, and additional charges of murder and

attempted murder, for a total of 49 counts. Because a

federal judge was among his victims, all of the members

of the federal judiciary in Arizona recused themselves. A

federal judge from California was appointed to preside

over the case. He ordered that Loughner be transported

to a federal psychiatric facility for assessment.

Loughner was diagnosed with schizophrenia, calling

into question his competency or legal capacity to

participate in the court proceedings against him. He was

subsequently ruled incompetent to stand trial, meaning

that his mental disability impairs Loughner to the extent

that he cannot grasp the nature of the charges against

him and assist his lawyers in his own defense (see Dusky v.

United States, 1960). Loughner remained in the psychiatric

wing of the U.S. Medical Center for Federal Prisoners in

Springfield, Missouri for more than a year. He was forcibly

medicated with antipsychotic drugs while there, in an at-

tempt to restore his mental faculties sufficiently such that

he was able to be ruled competent to stand trial.

After a court found that Loughner’s competence

to stand trial had been restored, he pled guilty to avoid

facing a possible death sentence. This plea agreement

spared Loughner, the families of the victims, and the

greater Tucson community going through the trauma

of a trial in which the defense is based on insanity. The

insanity defense is one of the most hotly debated topics

in criminal law. The defense is rooted in a fundamental

concept of Anglo-American law: that a person should not

be punished for conduct not rooted in criminal intent. But

what degree of insanity, mental illness, or mental disease

makes a person blameless for otherwise criminal acts? This

question has been debated for centuries.

The often heated debate over the insanity defense is

largely symbolic. Insanity is pled in less than one-half of 1

percent of all felony cases and, even when it is pled, it is

unsuccessful three-quarters of the time (Fradella, 2007).

Moreover, several states make incarceration in a mental

institution mandatory if the defendant is found not guilty

by reason of insanity. Indeed, such defendants are usually

held in a mental institution for a longer period of time

than they might have been held in prison had they been

found guilty of the crime(s) with which they were charged.

For these reasons, combined with the great expense of

litigating an insanity defense, lawyers consider insanity a

defense of last resort.

When the jury found would-be presidential assassin

John Hinckley, Jr., “not guilty by reason of insanity,” there

was a heated outcry against the verdict, even though

Hinckley was then confined to a mental institution, where

he remains to this day (more than 30 years after he shot

Ronald Reagan). Yet, public and professional displeasure

produced a rush to reform the insanity defense (Fradella,

2007). For example, some states have greatly altered the

traditional insanity defense and made available the verdict

“guilty but mentally ill” or “guilty but insane”; other states

abolished the defense outright. If Jared Loughner had

not pled guilty, but rather had prevailed at trial using the

insanity defense, he would not have gone free. Rather,

he would have likely spent most of his life in a mental

hospital—just as John Hinckley has.

UNITED STATES LOUGHNERC A S E C L O S E - U P

L A W S O N , A N G E L A 6 8 5 3 B U

50 Part I / The Legal System

Delinquency

As mentioned previously, the law recognizes youth- ful age as a criminal defense under certain circum- stances. In most states, children under the age of 7 are considered legally incapable of forming crimi- nal intent and therefore cannot be held criminally responsible for their actions, a criminal defense referred to as infancy. After reaching this minimum age, but before becoming an adult, a child’s crimi- nal violations are treated as acts of juvenile delin- quency. The premise of juvenile delinquency is that people under a certain age have less responsibility for their actions than adults do. The exact age at which a person is no longer considered a juvenile, and can thus be prosecuted as an adult, differs from state to state. As more and more youths are commit- ting violent crimes, states are lowering the age for prosecuting a minor as an adult (see Chapter 17).

EFFECTS OF CRIMINAL LAW ON THE COURTS

Because the criminal code constitutes the basic source of authority for law enforcement agencies, the way crimes are defined has an important bear- ing on the entire administration of criminal justice. Chapter 5 will consider in greater detail the rela- tionship between law and discretion. For now we will examine the criminal law and inconsistencies, plea bargaining, and sentencing.

Criminal Law and Inconsistencies

Criminal statutes can resemble a crazy quilt of sometimes inconsistent sets of criminal definitions and penalties. Because legislatures change criminal codes piecemeal, the end product is a set of crimi- nal laws with obsolete prohibitions and incon- sistent penalties. Typically, such contradictions indicate a lack of agreement in American society about what behavior should be criminalized and what penalties are appropriate.

In practice, judges and prosecutors attempt to rectify these inconsistencies by informally devel- oping a consistent set of penalties. It should be obvious that the courts must apply the law as they find it. The corollary is that the courts often must

rectify inconsistencies in that law. Disparities in possible sentences as provided in state statutes require judges, prosecutors, and defense attorneys to arrive at a workable penalty structure. Society would be outraged if serious crimes elicited the same punishment as minor ones, even if the law technically allowed the two categories of offenses to be treated the same way.

Criminal Law and Plea Bargaining

Variations in the definitions of crimes make the criminal courts fertile ground for plea bargaining. In particular, differences in degrees of seriousness pro- vide the means for charge bargaining (the defendant pleads guilty to a less serious offense than the one charged). For example, in some states, assault and battery involves five degrees (categories). Although the law must attempt to differentiate between, say, a punch thrown in anger and a deliberate gunshot wound that leaves its victim permanently paralyzed, the existence of many different degrees of serious- ness facilitates pleas to less serious offenses. Thus, prosecutors may deliberately overcharge in hopes of inducing the defendant to later plead guilty to a lesser charge (see Chapter 12).

Criminal Law and Sentencing

The most obvious way criminal law affects the operations of the criminal courts is in sentencing. As we will discuss in greater detail in Chapter 14, the legislature establishes sentencing options from which judges must choose. Because of the pub- lic’s concern about crime, pressures are strong to increase penalties. As a result, legislatures increase the harshness of sentencing, and the courts mitigate that harshness. According to Rosett and Cressey (1976, p. 95; see also, Champion, 2007), such leg- islative action and courthouse reactions follow a predictable pattern:

Step I. Laws calling for severe punishments are passed by legislatures on the assumption that fear of great pain will terrorize the citizenry into conformity.

Step II. Criminal justice personnel soften these severe penalties for most offenders: (a) in the interests of justice, (b) in the interests of

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 51

This book will return often to the question of whether the legislatures or the courts have adopted the more appropriate stance.

CONCLUSION

What activities should be labeled criminal is a source of constant political discussion. Actions viewed as bad in the past may no longer be consid- ered bad. As society changes, so do public percep- tions of public wrongs, and pressures develop to add more activities to the list of officially proscribed ones. Through all of this change, we must not lose sight of the essential fact that law is an integral part of society. Law is not imposed on society; rather, it reflects the sociology, economy, history, and politics of society. Law was created to help society, not the other way around.

bureaucracy, and (c) in the interests of gaining acquiescence.

Step III. The few defendants who then insist on a trial and are found guilty, or who in other ways refuse to cooperate, are punished more severely than those who acquiesce.

Step IV. Legislatures, noting that most crimi- nals by acquiescing avoid “the punishment prescribed by law”: (a) increase the prescribed punishments and (b) try to limit the range of discretionary decision making used to soften the harsh penalties.

Step V. The more severe punishments intro- duced in the preceding step are again soft- ened for most offenders, as in Step II, with the result that the defendants who do not acqui- esce are punished even more severely than they were at Step III.

Of the first 10 amendments to the U.S. Constitution—collectively known as the Bill of Rights—the Fourth, Fifth, Sixth, and Eighth deal specifically with criminal procedure.

5. List five major areas of civil law. The five major areas of civil law are: tort, contract, property, domestic relations, and inheritance/probate.

6. Identify the major elements of a crime. Most behavior cannot be criminally unless: (1) an actus reus (a guilty act) is committed, (2) with accompanying mens rea (criminal intent), and (3) the guilty act and the criminal intent are related. In addition, a number of crimes are defined on the basis of: (4) attendant circumstances, and/or (5) specific results.

7. Identify some of the most important legal defenses in American law.

h fi

LO5

6LO6

7LO7

1. List the four key elements defining law. Law is defined as: (1) a body of rules, (2) enacted by public officers, (3) in a legitimate manner, and (4) backed by the force of the state.

2. Identify the three key characteristics of common law.

The three key characteristics of the common law are: (1) judge-made law, (2) precedent, and (3) multiple sources of law.

3. Explain the importance of the adversary system.

The adversary system seeks to protect individual rights by diffusing governmental power in several actors and insisting that the defendant is presumed innocent until proven guilty.

4. Name the four amendments of the Bill of Rights that deal specifically with criminal procedure.

1LO1

2LO2

3LO3

4LO4

Chapter Review

L A W S O N , A N G E L A 6 8 5 3 B U

52 Part I / The Legal System

1. Constitutional rights of the accused is, of course, a controversial topic. The crime control model, in particular, decries letting the obviously guilty go free on “technicalities,” whereas the due process model emphasizes basic rights. What common ground do these two approaches share? Where do they disagree most?

2. Nearly all non–English-speaking industrial de- mocracies use the inquisitorial system rather than the adversary system. In this system, the judge, not the prosecutor and not the defense attorney,

calls witnesses and questions them. Would you prefer being tried under the adversary system or the inquisitorial system? Would you have confi- dence in the willingness of the judge to search out equally evidence for conviction and evidence for acquittal?

3. One of the biggest societal changes in recent years has been the rapid expansion of computer technol- ogy. How have legislatures responded to crimes involving the use of computers? How has the Internet changed the debate over pornography?

Critical Thinking Questions

administrative regulations 32

adversary system 33

affirmative defense 34

alibi defense 46

Anglo-American law 30

attempt 45

attendant (accompanying)

circumstances 46

beyond a reasonable doubt 35

Bill of Rights 38

burden of persuasion 34

burden of production 34

civil law 40

clear and convincing evidence 35

common law 30

competency 49

constitution 32

contract 40

corpus delicti 44

criminal defense 46

criminal law 43

declaratory judgment 40

defendant 40

defenses of excuse 48

defenses of justification 48

domestic relations 40

due process of law 38

elements of a crime 44

felony 43

guilty act (actus reus) 45

guilty intent (mens rea) 45

infancy 50

inference 34

inheritance 40

injunction 40

in rem 42

insanity defense 48

judge-made law 30

judgment 40

juvenile delinquency 50

law 29

misdemeanor 43

mistake of fact 48

monetary damage 40

municipal ordinance 32

necessity 48

plaintiff 40

precedent 30

preponderance of the

evidence 35

presumption 34

presumption of innocence 34

presumption of sanity 34

probable cause 34

Key Terms

Some of the most important legal defenses in American law include alibi, necessity, mistake of fact, self-defense, procedural defenses, infancy, and insanity.

8. Discuss the effects of the criminal law on courts.

8LO8

How the law defines crimes affects the administration of justice in the courts in several important ways, including the need to reconcile inconsistencies in the criminal law, providing the basis for plea bargaining, and the harshness of sentences.

L A W S O N , A N G E L A 6 8 5 3 B U

Law and CrimeChapter 2 53

Go to the America’s Courts and the Criminal Justice System companion website at

http://www.cengage.com/criminaljustice/neubauer,

where you will find more resources to help you study.

Resources include web exercises, quizzing, and flash cards.

Web Resources

Ferdico, John, Henry F. Fradella, and Christopher Totten. Criminal Procedure for the Criminal Justice Professional. 11th ed. Belmont, CA: Wadsworth, 2012.

Kappeler, Victor. Police Civil Liability: Supreme Court Cases and Materials. Long Grove, IL: Waveland Press, 2006.

Neubauer, David. Debating Crime: Rhetoric and Reality. Belmont, CA: Wadsworth, 2001.

Neubauer, David, and Stephen Meinhold. Judicial Process: Law, Courts, and Politics in the United States. 6th ed. Belmont, CA: Wadsworth, 2013.

Owen, Stephen S., Henry F. Fradella, Tod W. Burke, & Jerry Joplin, 2012. The Foundations of Criminal Justice. New York: Oxford University Press.

Payne, Dennis. Police Liability: Lawsuits against the Police. Durham, NC: Carolina Academic Press, 2002.

Pollock, Joycelyn. Ethical Dilemmas and Decisions in Crimi- nal Justice. 6th ed. Belmont, CA: Wadsworth, 2010.

Ross, Darrell. Civil Liability in Criminal Justice. 5th ed. Cincinnati: Anderson, 2009.

For Further Reading

procedural defenses 48

procedural law 33

property 40

reasonable, articulable

suspicion 34

remedy 40

result 46

selective incorporation 38

self-defense 48

stare decisis 30

statute 32

substantive law 33

tort 40

union of actus reus and

mens rea 46

L A W S O N , A N G E L A 6 8 5 3 B U

David W. Neubauer, Ph.D. UNIVERSITY OF NEW ORLEANS

Henry F. Fradella, J.D., Ph.D. CALIFORNIA STATE UNIVERSITY, LONG BEACH

E L E V E N T H E D I T I O N

AMERICA’S COURTS

A N D T H E C R I M I N A L J U S T I C E S YS T E M

Australia Brazil Japan Korea Mexico Singapore Spain United Kingdom United States

L A W S O N , A N G E L A 6 8 5 3 B U

Library of Congress Control Number: 2012937192

Student Edition:

ISBN-13: 978-1-285-06194-8

ISBN-10: 1-285-06194-2

Loose-leaf Edition:

ISBN-13: 978-1-285-06223-5

ISBN-10: 1-285-06223-X

Wadsworth 20 Davis Drive Belmont, CA 94002-3098 USA

Cengage Learning products are represented in Canada by Nelson Education, Ltd.

To learn more about Wadsworth, visit www.cengage.com/wadsworth

Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com.

America’s Courts: And the Criminal Justice System, Eleventh Edition David W. Neubauer and Henry F. Fradella

Editor in Chief: Linda Ganster

Senior Acquisitions Editor: Carolyn Henderson-Meier

Developmental Editor: Shelley Murphy, Julie Martinez

Assistant Editor: Casey Lozier

Media Editor: Ting Jian Yap

Brand Manager: Melissa Larmon

Market Development Manager: Michelle Williams

Senior Content Project Manager: Christy A. Frame

Senior Art Director: Maria Epes

Senior Manufacturing Planner: Judy Inouye

Rights Acquisitions Specialist: Tom McDonough

Production and Composition Service: MPS Limited

Photo and Text Researcher: PreMedia Global

Copy Editor: Debbie Stone

Text Designer: Lisa Delgado

Cover Designer: Riezebos Holzbaur/ Brieanna Hattey

Cover Image: Downtown Fort Worth : © Jeremy Woodhouse/The Image Bank/ Getty Images

For product information and technology assistance, contact us at Cengage Learning Customer & Sales Support, 1-800-354-9706

For permission to use material from this text or product, submit all requests online at www.cengage.com/permissions

Further permissions questions can be e-mailed to [email protected]

Printed in the United States of America 1 2 3 4 5 6 7 16 15 14 13 12

L A W S O N , A N G E L A 6 8 5 3 B U

3 Federal Courts

H O

/A FP

/G e

tt y

Im a

g e

s/ N

e w

sc o

Oscar Ramiro Ortega-Hernandez is alleged to have fired a semi-

automatic rifle at the White House

in an attempt to assassinate

President Barak Obama on

November 11, 2011. Ballistic tests

confirmed that two bullets and one

bullet jacket recovered from White

House grounds were fired from a

rifle found in Ortega-Hernandez’s

car. Although President Obama

was not in Washington, D.C., at

the time of the shooting, Ortega-

Hernandez faces life in prison for

the attempted assassination of the

U.S. president. A federal magistrate

judge ordered Ortega-Hernandez

held without bond pending

indictment because he posed both

a potential flight risk and a danger

to the community.

L A W S O N , A N G E L A 6 8 5 3 B U

Chapter Outline BASIC PRINCIPLES OF COURT ORGANIZATION

Dual Court System Jurisdiction Differentiating Trial and Appellate Courts

Courts, Controversy, & the Administration of Justice

Should the Double Jeopardy Clause Prohibit Parallel State and Federal Prosecutions?

HISTORY OF THE FEDERAL COURTS The Constitutional Convention The Judiciary Act of 1789 1789–1891 Court of Appeals Act of 1891 Federal Courts Today

U.S. MAGISTRATE JUDGES Caseload of U.S. Magistrate Judges

U.S. DISTRICT COURTS Caseload of U.S. District Courts Diversity Jurisdiction Federal Questions

U.S. COURTS OF APPEALS Caseload of U.S. Courts of Appeals

U.S. SUPREME COURT Granting Cert: The Rule of Four Caseload of U.S. Supreme Court Circuit Justices

SPECIALIZED FEDERAL COURTS Military Justice Enemy Combatants

Courts, Law, & Media The Response (2010)

Foreign Intelligence Surveillance Court

CASE CLOSE-UP: Was Zacarias Moussaoui The 20th Hijacker?

FEDERAL JUDICIAL ADMINISTRATION Chief Justice Judicial Conference of the United States Administrative Office of the U.S. Courts Federal Judicial Center Judicial Councils U.S. Sentencing Commission

CASELOADS IN THE FEDERAL COURTS

Increase the Number of Federal Judges? Reduce Federal Jurisdiction?

CONSEQUENCES OF FEDERAL INVOLVEMENT IN THE CRIMINAL JUSTICE SYSTEM

Forum for Symbolic Politics Federal Dollars

L A W S O N , A N G E L A 6 8 5 3 B U

LO1

a 12th-grader at Edison High School in San Antonio, Texas, thought he had found an easy way to make a quick buck. “Gilbert” would pay him $40 to take a .38-caliber pistol to school and deliver it to “Jason,” who planned to use it in a “gang war.” Based on an anonymous tip, school officials confronted Lopez, who admitted carrying the unloaded weapon (but he did have five bullets on his person). Lopez was charged in federal court with violating the Gun-Free School Zones Act of 1990. After a bench trial, Lopez was found guilty and sentenced to 6 months in prison. The Supreme Court reversed the convic- tion, however, concluding that the U.S. Congress had no authority to outlaw guns in schools.

The Supreme Court’s decision in United States v. Lopez first attracts our attention because it deals with gun control—one of the truly hot button issues of American politics. But a closer probing raises other, even more important questions. What should be a federal crime? After all, weapons offenses are usually violations of state law, and indeed Mr. Lopez was initially charged in state court; but these charges were dropped after federal officials stepped in. How is it that five conservative judges, appointed by Republican presidents and pledged to getting tough on crime, reversed a conviction that was certainly popular with the American public? After all, Republicans have accused liberal federal judges (seemingly those appointed by Democratic presidents) of being soft on crime.

thought he had found an easy way

Alfonso Lopez, Jr.,

After reading this chapter, you should be able to:

Define the four primary types of jurisdiction: geographical, subject matter, personal, and hierarchical.

Compare and contrast the tasks of trial and appellate courts.

Explain the historical evolution of the federal courts into their present structure and operations.

Analyze the different responsibilities and workloads of U.S magistrate judges, district judges, circuit judges, and Supreme Court justices.

Analyze the impact the federal courts have on the administration of criminal justice at the state and local levels through their federal question jurisdiction.

Differentiate the jurisdiction and functions of Article III courts from those of Article I courts and other specialized federal courts.

Distinguish the various agencies and their hierarchical responsibilities for the administration of the federal court system.

Evaluate the major problems facing the federal courts and the strengths and weaknesses of the major solutions that have been proposed to address these problems.

LO1

LO2

LO3

LO4

LO5

LO6

LO7

LO8

Learning Objectives

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 57

jurisdiction (meaning that they share some judicial powers) over certain types of cases. For example, selling drugs or robbing banks are crimes under federal law and under the laws of most states, which means the accused could be tried in either federal court or state court. Moreover, litigants in purely state court proceedings may appeal to the U.S. Supreme Court, a federal court, if a federal question is presented, such as a question of federal constitutional law.

One of the most immediate consequences of the dual court system is the complexity it adds to the criminal justice system. In essence, the framers of the U.S. Constitution created two parallel criminal justice systems consisting of their own law enforce- ment, court structure, and correctional systems. Of all the levels of complexity created by the dual court system, perhaps the most confusing is the application of the constitutional prohibition against double jeopardy (see “Courts, Controversy, & the Administration of Justice: Should the Double Jeopardy Clause Prohibit Parallel State and Federal Prosecutions?”).

Jurisdiction

Court structure is largely determined by limitations on the types of cases a court may hear and decide. Jurisdiction is the power of a court to decide on a dispute. A court’s jurisdiction can be further classi- fied according to four subcomponents: geographi- cal jurisdiction, subject matter jurisdiction, per- sonal jurisdiction, and hierarchical jurisdiction.

Geographical Jurisdiction and Venue Courts are authorized to hear and decide disputes arising within a specified geographical jurisdic- tion (sometimes referred to as “territorial jurisdic- tion”). Geographical jurisdiction in criminal cases is primarily concerned with a sovereign’s power to punish conduct that violates its criminal laws. Thus, the courts of California have no jurisdiction to try a person accused of committing a crime in Oregon; Oregon has such power, since the accused is alleged to have violated its criminal law. But which courts within the state of Oregon would hear the case? That is a matter of venue.

Venue is the particular location or area in which a court having geographic jurisdiction may

The issues, both direct and indirect, raised in United States v. Lopez trace their origins to the early days of the Republic. The founding fathers were deeply divided over which cases federal courts should hear. Indeed, the drafters of the U.S. Constitution were deeply divided over whether there should be any federal courts besides the U.S. Supreme Court. A principal task of this chapter, therefore, is to discuss how the current federal judicial struc- ture—magistrate, district, and appellate courts and the Supreme Court—is a product of more than 200 years of political controversy and compromise about the proper role of the federal judiciary. The remainder of the chapter focuses on the special- ized courts and their administrative structures. Most important, we will discuss the contempo- rary debate over how many cases are too many for the federal courts to handle, thus illustrating that the controversies continue. But first, to establish some common ground about the often confusing topic of court organization, we begin this chapter by examining some basic principles.

BASIC PRINCIPLES OF COURT ORGANIZATION

Even lawyers who regularly use the courts some- times find the details of court organization confus- ing. Court nomenclature includes many shorthand phrases that mean something to those who work in the courts daily but can be quite confusing to the outsider. Learning the language of courts is like learning any foreign language—some of it can come only from experience. Before studying the specifics of federal courts in this chapter and state courts in Chapter 4, it is helpful to understand the basic principles of court organization within the dual court structure that exists in the United States.

Dual Court System

The United States has a dual court system: one national court system plus separate court systems in each of the 50 states and the District of Columbia. The result is more than 51 separate court systems. Figure 3.1 illustrates the structure of the dual court system in the United States. The division of respon- sibilities is not as clear-cut as it looks, however. State and federal courts sometimes have concurrent

L A W S O N , A N G E L A 6 8 5 3 B U

58 Part I / The Legal System

Figure 3.1 ■ Overview of the Dual Court Structure of the United States

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 59

therefore transferred to Denver, Colorado, where the jury pool was less personally involved and more likely to meet the constitutional due process guaran- tees of a fair and impartial jury.

One major complication arising from geograph- ical jurisdiction occurs when a person is arrested in one state for committing a crime in another state.

Extradition involves the surrender by one state of an individual accused of a crime outside its own territory and within the territorial jurisdiction of the other state. If an American fugitive has fled to a foreign nation, the U.S. Secretary of State will request the return of the accused under the terms of the extradition treaty the United States has with that country (a few nations of the world do not have such treaties).

Subject Matter Jurisdiction Court structure is also determined by subject matter jurisdiction. Trial courts of limited or spe- cial jurisdiction are restricted to hearing a lim- ited category of cases, typically misdemeanors and civil suits involving small sums of money. State courts typically have traffic courts or juve- nile courts, both of which are examples of sub- ject matter jurisdiction. The federal courts are all courts of limited jurisdiction, since they are lim- ited to adjudicating certain types of cases (to be discussed later in this chapter). In contrast to trial courts of limited/special jurisdiction, trial courts of general jurisdiction are empowered to hear all other types of cases within the geographical juris- diction of the court. In the state court systems (to be discussed in the next chapter), the county trial court fits here.

Personal Jurisdiction Personal jurisdiction (sometimes called “in per- sonum jurisdiction”) refers to a court’s power over an individual person or corporation. A court gains power over a particular defendant by virtue of the defendant’s having done some act within the place where the court is located or having had some con- tact with the place in which the court is located. In criminal cases, personal jurisdiction refers to a court’s authority to try a defendant for violating the state’s criminal law. While a bit of an oversimpli- fication, courts obtain personal jurisdiction over a

hear a case. Proper venue is based on statutorily defined geographic subdivisions. These subdi- visions are often determined by city or county boundaries, although other boundaries can be set that are unrelated to city or county lines. Divisions in the federal system are a good example of this. Washington is a large and populous state. Instead of having one federal district coterminous with the boundaries of the state, there are two federal districts in Washington, the eastern district and the western district. Larger states are subdivided even further; California, for example, has a north- ern, eastern, central, and southern district. A fed- eral case that arises from an act in Sacramento is properly tried in the northern district of Califor- nia; the other districts in California would lack proper venue.

A defendant can waive venue in the district or county where a crime was committed by con- senting to be tried in a venue in another district or county. In state courts, venue can generally be transferred only to another district or county within a particular state, since only the courts of that par- ticular state would have geographic jurisdiction over alleged violations of its own criminal law. In contrast, venue can be changed between districts of the federal system since the offense is against the United States—the same sovereign in federal courts across the country.

Changes of venue in the federal courts are typi- cally granted for one of two reasons. First, venue may be transferred to another location that is much more convenient for the parties and witnesses than the intended place of trial. Second, a change of venue is appropriate when a defendant is unlikely to get a fair and impartial trial in the federal district where the crime is alleged to have taken place. Intense pre- trial publicity, for example, may have prejudiced the local jury pool. Since the right to a fair trial is guaranteed by the Sixth Amendment, a federal court should transfer venue to another federal district where the jury pool is less affected by pretrial pub- licity. For example, Timothy McVeigh, the defendant in the Oklahoma City bombing case, was tried for his crimes outside Oklahoma, even though that is where he committed the offenses. The extensive pre- trial publicity and the intense personal connection to the case of the potential jurors in Oklahoma City made it very likely that the defendant could not get a fair and impartial trial in Oklahoma. The case was

L A W S O N , A N G E L A 6 8 5 3 B U

60 Part I / The Legal System

On May 7, 1985, 27-year-old Army Sergeant Timothy Hen- nis responded to a classified ad placed by a North Caro- lina woman who was trying to sell a dog. A few days later, authorities found the bodies of the woman and two of her three children in their home. The woman had been raped

and stabbed fifteen times. A community member told police that a few days

earlier, he had seen a seen a man (whom he later identified as Hennis) wearing a black “Members Only” jacket leaving the family’s driveway with a garbage bag slung over his shoulder. The Friday after the murders, Hennis had taken a black “Members Only” jacket to a local dry cleaner’s. The following day, Hennis’s neighbors saw him burning a bonfire in a 55-gallon drum for at least 5 hours. Fingerprints and pubic hair were found at the crime scene; none of them belonged to the family members. And none of evidence or the semen found in the victim were a match with Hennis.

Hennis was charged with three counts of murder and one count of rape. He was convicted and sentenced to death. His conviction was set aside on appeal because of evidentiary rulings that may have inflamed and biased the jury at Hennis’s trial. Hennis was acquitted on all counts at this second trial, due, in large part, to two factors. First, the unduly prejudicial evidence erroneously used in the first trial was excluded from the second trial. Second, defense attorneys were able to discredit the testimony of the com- munity member who had previously identified Hennis. This

witness first described the man he had seen as one shorter and slighter than himself, but then revised his description to match Hennis’ build—one considerably taller and heavier than the witness’s own. After his acquittal, Hennis reenlisted in the Army, apparently serving exemplarily until he retired in July 2005.

In the mid-1980s, forensic science was much less precise than it is today and DNA technology had not yet been used for law enforcement purposes. In the spring of 2005, however, 20 years after the murders, a homicide detective sent the semen sample recovered from the crime scene for DNA testing. It was a match for Tim Hennis. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution pre- vents the same sovereign from trying a criminal defendant on the same charges after acquittal. Thus, North Carolina could not try Hennis again for either the rape or the murders. But the federal government is a different sovereign and, therefore, is not technically bound by double jeopardy in the Hennis case. With that in mind, the Army recalled Hennis to active service in September 2006. His court martial trial in a federal, military court began in March 2010. The following month, and after only 3 hours of deliberation, a jury convicted Hennis. He was sentenced to death and currently has appeals pending. According to the Death Penalty Information Center, Hennis is the only person in U.S. history to have been exonerated after a capital conviction and then returned to death row for the same crime.

Some scholars have argued that that the Army violated the spirit—if not the precise letter—of the Constitution’s prohibition on double jeopardy. What do you think? Are federal prosecutions after failed state prosecutions a good way to remedy miscarriages of justice, or are the rights of defendants unnecessarily placed in jeopardy?

COURTS,

C O N T R O V E R S Y,

& THE

ADMINISTRATION

of JUSTICE

SHOULD THE DOUBLE JEOPARDY CLAUSE PROHIBIT PARALLEL STATE AND FEDERAL PROSECUTIONS?

defendant by the defendant having violated the law of the particular sovereign while within the forum state. This is relatively straightforward for tradi- tional crimes against a person such as assault, rape, or murder. In contrast, establishing personal juris- diction over a criminal defendant accused of fraud or cybercrimes who was not physically present

in the forum state at the time the alleged crime occurred can be quite complicated (see Kerr, 2008).

Hierarchical Jurisdiction The third subcomponent of jurisdiction is hierar- chical jurisdiction, which refers to differences in

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 61

the courts’ functions and responsibilities. Origi- nal jurisdiction means that a court has the author- ity to try a case and decide it. Appellate jurisdic- tion means that a court has the power to review cases that have already been decided by another court. Trial courts are primarily courts of original jurisdiction, but they occasionally have limited appellate jurisdiction—for example, when a trial court hears appeals from lower trial courts such as a municipal court or a justice of the peace court (Chapter 4). Appellate courts often have very limited original jurisdiction. The U.S. Supreme Court has original jurisdiction involving disputes between states, and state supreme courts have original jurisdiction in matters involving disbar- ment of lawyers.

Differentiating Trial and Appellate Courts

Virtually all cases begin in a trial court that has original jurisdiction. In a criminal case, the trial court arraigns the defendant, conducts a trial (or takes a guilty plea) and, if the defendant is found guilty, imposes sentence. In a civil case, the trial court operates in much the same way, ensuring that each party is properly informed of the complaint and conducting a trial or accepting an out-of-court settlement. Because only trial courts hear disputes over facts, witnesses appear only in trial courts. Trial courts are considered finders of fact, and the decision of a judge (or jury) about a factual dispute is very difficult to challenge on appeal (Chapter 16).

The losing party in the trial court gener ally has the right to request an appellate court to review the case. The primary function of the appellate court is to ensure that the trial court correctly interpreted the law. But appellate courts may also make new law.

Appellate and trial courts operate very differ- ently because their roles are not the same. Appel- late courts exercising appellate jurisdiction do not hear testimony from witnesses, conduct trials, or use juries. Those actions occur in a trial court exer- cising original jurisdiction. Moreover, instead of a single judge deciding, as in trial courts, a group of judges makes appellate court decisions; there may be as few as 3 or as many as 28 judges. (For more details on appellate courts and the appeals process, see Chapter 16.)

HISTORY OF THE FEDERAL COURTS

At first glance, the history of the federal courts appears to be a debate over details of procedure. But a closer look reveals that the political contro- versies that have shaped the federal judiciary go to the heart of the federal system of government, often involving the allocation of power between the national and state governments. Thus, any discus- sion of the federal courts in the early 21st century must begin with two 18th-century landmarks— Article III of the U.S. Constitution and the Judi ciary Act of 1789. Although there have been important changes since, the decisions made at the beginning of the Republic about the nature of the federal judi- ciary have had a marked impact on contemporary court structure.

The Constitutional Convention

One major weakness of the Articles of Confedera- tion was the absence of a national supreme court to enforce federal law and resolve conflicts and dis- putes between courts of the different states. Thus, when the delegates gathered at the Constitutional Convention in Philadelphia in 1787, a resolution was unanimously adopted that “a national judi- ciary be established.” There was considerable dis- agreement, however, on the specific form that the national judiciary should take. Article III was one of the most hotly debated sections of the Constitution.

The dominant question of whether there should be a federal court system separate from the state systems produced two schools of thought. Advo- cates of states’ rights (later called “Anti-Federal- ists”) feared that a strong national government would weaken individual liberties. More spe- cifically, they saw the creation of separate federal courts as a threat to the power of state courts. As a result, the Anti-Federalists believed that federal law should be adjudicated first by the state courts; the U.S. Supreme Court should be limited to hear- ing appeals only from state courts. On the other hand, the Nationalists (who later called themselves “Federalists” because they favored ratification of the Constitution) distrusted the provincial preju- dices of the states and favored a strong national government that could provide economic and

L A W S O N , A N G E L A 6 8 5 3 B U

62 Part I / The Legal System

political unity for the struggling new nation. As part of this approach, the Nationalists viewed state courts as incapable of developing a uniform body of federal law that would allow businesses to flour- ish. For these reasons, they backed the creation of lower federal courts.

The conflict between Federalists and Anti- Federalists was resolved by one of the many com- promises that characterized the Constitutional Convention. Article III is brief, providing only an outline of a federal judiciary: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and estab- lish.” The brevity of this provision left Congress with the task of filling in much of the substance of the new judicial system.

The Judiciary Act of 1789

Once the Constitution was ratified, action on the federal judiciary came quickly. Indeed, the first bill introduced in the Senate dealt with the unresolved issue of inferior federal courts. The congressional debate included many of the same participants, who repeated all the argu- ments involved in the judiciary debates at the Constitutional Convention. After extensive debate, Congress passed the Judiciary Act of 1789, which laid the foundation for our current national judicial system. The Judiciary Act of 1789 represented a major victory for the Feder- alists; they were successful in creating separate federal district courts. At the same time, the act was a compromise that allayed some of the Anti- Federalists’ fears. The organization of the federal judiciary supported state interests in three ways (LaCroix, 2007; Richardson & Vines, 1970).

First, the boundaries of the district courts were drawn along state lines; no district encompassed more than one state. Thus, from the outset, the federal judiciary was “state-contained.” Even though district courts enforced national law, they were organized along local lines, with each district court responsible for its own work under minimal supervision.

Second, by custom the selection process ensured that federal district judges would be residents of their districts. Although nominated by the president, district judges were to be (and are today) local resi- dents, presiding in their home area, and therefore

subject to the continuing influence of the local social and political environment (see Chapter 8).

Third, the act gave the lower federal courts only limited jurisdiction. The Federalists wanted the full range of federal jurisdiction granted by the Con- stitution to be given to district and circuit courts. However, to achieve a lower federal court system, they were forced to reduce this demand greatly. But this issue would reappear repeatedly over the next 100 years.

1789–1891

The Judiciary Act of 1789 provided only a tem- porary compromise on the underlying disagree- ments between Federalists and Anti-Federalists. The Federalists immediately pushed for expanded powers for the federal judiciary. These efforts cul- minated in the passage of the Judiciary Act of 1801, which created many new judgeships and greatly extended the jurisdiction of the lower courts. The Federalist victory was short-lived, however. With the election of Thomas Jefferson as president, the Anti-Federalists in Congress quickly repealed the act and returned the federal judiciary to the basic outlines of the previous court system. The 1801 law is best remembered for the resulting lawsuit of Marbury v. Madison (1803), in which Chief Jus- tice John Marshall declared that the U.S. Constitu- tion granted courts the power of judicial review—the authority to invalidate acts of Congress as unconstitu- tional (for more on judicial review, see Appendix D).

Between 1789 and 1891 there was general agreement on the inadequacy of the federal judi- cial system, but the underlying dispute persisted. Congress passed numerous minor bills modifying the system in a piecemeal fashion. Dissatisfaction centered on two principal areas: circuit riding and the appellate court workload.

One of the most pronounced weaknesses of the 1789 judicial structure was circuit riding. The Supreme Court justices, many of them old and ill, faced days of difficult and often impossible travel. In 1838, for example, the nine justices traveled an average of 2,975 miles. There were numerous com- plaints from the justices about the intolerable con- ditions that circuit-riding duties imposed on them.

Beyond the personal discomforts some justices encountered, the federal judiciary confronted a more systemic problem—mounting caseloads.

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 63

Initially, the federal judges of the newly created trial courts had relatively little to do because their jurisdictions were very limited. The Supreme Court likewise had few cases to decide. But the initially sparse workload began to expand as the growth of federal activity, the increase in cor- porate business, and the expansion of federal jurisdiction by court interpretation created litiga- tion for a court system that was ill equipped to handle it. From the end of the Civil War until 1891, it was not uncommon for an appeal to wait 2 or 3 years before it was argued before the Supreme Court. This was because the high court had to decide every case appealed to it.

Court of Appeals Act of 1891

At first glance, the creation of the court of appeals in 1891 appears to have been an automatic response to increased federal litigation resulting from a rapidly expanding population and the growth of business following the Civil War. A closer look indicates that it was the culmination of “one of the most enduring struggles in American political history” (Richard- son & Vines 1970, p. 26). There was no debate over the difficulties facing the federal court system. All parties to the controversy agreed that the federal judiciary needed relief; what was in dispute was the nature of the relief.

To solve the burden of mounting litigation in the federal courts, the supporters of states’ rights wanted to return cases to the state level by reducing the jurisdiction of federal courts. The supporters

of national power, on the other hand, argued for expanding the jurisdiction of federal courts by creating a system of federal appellate courts that would take a great deal of the burden off the high court and also allow the trial courts to function as true trial courts.

The landmark Court of Appeals Act of 1891 represented the climactic victory of the National- ists’ interests. The law created new courts known as circuit courts of appeals. Under this new arrange- ment, most appeals of trial decisions went to a cir- cuit court of appeals. In short, the creation of the circuit courts of appeals released the high court from hearing many types of petty cases. The high court now had much greater control over its work- load and could concentrate on deciding major cases and controversies.

Federal Courts Today

In 1925, Congress passed the Judges Bill, which among other things gave the Supreme Court much greater control over its docket. In 1988, Congress eliminated even more mandatory appeals to the high court. Other important changes that have shaped the development of the federal courts are presented in box titled, “Key Developments in the Federal Judiciary.”

The current structure of federal courts is best understood in terms of four layers of courts: mag- istrate, district, appellate, and Supreme Court. In addition, the federal judiciary includes specialized courts and administrative structures.

KEY DEVELOPMENTS IN THE FEDERAL JUDICIARY

U.S. Constitution 1787 Article III creates U.S. Supreme Court and authorizes lower federal courts.

Judiciary Act of 1789 1789 Congress establishes lower federal courts.

Marbury v. Madison 1803 The Court has the authority to declare an act of Congress unconstitutional.

Courts of Appeals Act 1891 Modern appellate structure is created.

Judges Bill 1925 Supreme Court is given control over its docket.

Court Packing Plan 1937 FDR’s attempt to pack the Court is defeated.

Continued on next page

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

64 Part I / The Legal System

Continued from previous page

Administrative Office Act 1939 Current administrative structure is created, including judicial conference and judicial councils.

Federal Judicial Center 1967 Research and training unit is created.

Federal Magistrate Act 1968 Commissioners are replaced by U.S. magistrates (later, the name is changed to “magistrate judges”).

Multidistrict Litigation

Act

1968 Created the Judicial Panel on Multidistrict Litigation and gave it the power to transfer to a single district court the pretrial proceedings for civil cases involving common questions of fact, such as litigation regarding airplane crashes, product liability, patent infringements, and securities fraud.

Bankruptcy Reform Act 1978 Conferred original bankruptcy jurisdiction on the U.S. district courts and established a bankruptcy court in each judicial district to exercise bankruptcy jurisdiction.

Foreign Intelligence

Surveillance Act

1978 Authorized the chief justice of the United States to designate seven federal district court judges to review applications for warrants related to national security investigations on a special court named the “Foreign Intelligence Surveillance Court.” The Act also created the U.S. Foreign Intelligence Surveillance Court of Review, a special appellate court whose only function is to review denials by the Foreign Intelligence Surveillance Court of applications for electronic surveillance warrants.

Federal Courts

Improvement Act

1982 Congress combined the jurisdictions of the U.S. Court of Customs and Patent Appeals and the U.S. Court of Claims into one court, the U.S. Court of Appeals for the Federal Circuit.

Sentencing Commission 1984 Commission is charged with developing sentencing guidelines.

Congressional Act of 1988 1988 Some mandatory appeals to the Supreme Court are eliminated.

Antiterrorism and

Effective Death Penalty

Act (AEDPA)

1996 Right of state prisoners to file habeas corpus petitions in federal court is severely limited.

USA PATRIOT Act 2001 The government’s ability to gather domestic antiterrorism intelligence is expanded, allowing for less court scrutiny and closing some court proceedings to the public.

Military Trials for Enemy

Combatants Act

2006 The president was empowered to identify enemy combatants and detain them indefinitely without their being able to obtain federal court review of their detentions through habeas corpus proceedings, a right traditionally afforded to prisoners.

House v. Bell 2006 Created a narrow exception to the AEDPA by allowing prisoners with evidence of actual innocence to obtain habeas corpus review if a “miscarriage of justice” would occur with the court’s review.

Boumediene v. Bush and

Al Odah v. United States

2008 The Supreme Court invalidated the provision of the Military Trials for Enemy Combatants Act that deprived the detainees of their constitutional right to habeas corpus review in the federal courts.

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 65

U.S. MAGISTRATE JUDGES

Congress created U.S. magistrate judges in 1968 to replace the former position of U.S. commissioners. The purpose was to provide a new type of judicial officer in the federal judicial system to alleviate the increased workload of the U.S. district courts (Anderson, 2007). Technically, magistrate judges and their courts are a subcomponent of federal dis- trict courts; their duties and workload, however, merit separate discussion.

Magistrate judges perform quasi-judicial tasks and work within the judicial branch of government. They are not, however, Article III judges. Magistrate judges are selected by district court judges. Full- time magistrate judges are appointed for 8-year terms, and part-time magistrate judges for 4 years. They may, however, be removed for “good cause.” Except in special circumstances, all must be lawyers. According to the Administrative Office of the U.S. Courts, there are currently 571 full-time magistrate judges and 44 part-time magistrate judges.

Magistrate judges are authorized to perform a wide variety of duties. In felony cases, they are responsible for preliminary proceedings, including holding initial appearances, conducting preliminary hearings, appointing counsel for indigents, setting bail, and issuing search warrants. In misdemeanor and petty offense cases, the jurisdiction of magis- trate judges is more extensive; they may preside over trials, accept pleas of guilty, and also impose sentences. On the civil side, they supervise discov- ery, review Social Security disability benefit appeals, and even conduct full civil trials with the consent of the litigants. In short, under specified conditions and controls, magistrate judges may perform vir- tually all tasks carried out by district court judges, except trying and sentencing felony defendants (Gonzales v. United States, 2008).

Caseload of U.S. Magistrate Judges

Magistrate judges play an increasingly important role in helping district court judges dispose of their growing caseloads. In a typical year, for example, magistrate judges handle approximately 1.03 million matters for the federal courts, including being involved in some way in roughly 560,000 felony matters. In addition, they dispose of approximately

117,000 misdemeanor and petty offenses and 21,900 prisoner litigation cases. Magistrate judges are also involved in assisting with nearly 261,000 civil mat- ters, although they preside over only about 5 percent of all civil trials in federal courts.

U.S. DISTRICT COURTS

Congress has created 94 U.S. district courts, of which 89 are located within the 50 states. There is also a district court in the District of Columbia and four territorial district courts located in Guam, Puerto Rico, the Virgin Islands, and the Northern Mariana Islands.

There is at least one district court in each state; moreover, based on the compromise that produced the Judiciary Act of 1789, no district court crosses state lines. Some states have more than one district court: California, New York, and Texas, for instance, each have four. Because district courts often encom- pass large geographical areas, some hold court in various locations, or divisions. Some districts have only one division, while others have several.

Congress has created 678 district court judge- ships for the 94 districts. The president nominates district judges, who must then be confirmed by the Senate (see Chapter 8). Once they take the oath of office, they serve during “good behavior,” which for practical purposes means for life. The number of judgeships in each district depends on the amount of judicial work as well as the political clout of the state’s congressional delegation; the number ranges from 3 active district judges in sparsely populated Wyoming to 28 in densely inhabited Manhattan (officially called the U.S. District Court for the Southern District of New York).

Judges are assisted by an elaborate supporting cast of clerks, secretaries, law clerks, court report- ers, probation officers, pretrial services officers, and U.S. marshals. The larger districts also have a federal public defender. Another important actor at the district-court level is the U.S. attorney. There is one U.S. attorney (see Chapter 6) in each district, nominated by the president and confirmed by the Senate, but unlike the judges, he or she serves at the pleasure of the president.

The work of the district judges is significantly assisted by 352 bankruptcy judges. Although bankruptcy judges are adjuncts of the district

L A W S O N , A N G E L A 6 8 5 3 B U

66 Part I / The Legal System

account for most of the work of the district courts, in some districts criminal filings are limiting the ability of these courts to decide civil cases.

Civil lawsuits consume considerably more of the federal courts’ time than criminal cases do. Although only a small number of all civil cases are filed in federal courts as compared with state courts, federal civil cases typically involve consid- erably larger sums of money than the cases filed in state court. This is due, in part, to the types of cases over which the federal courts have jurisdic- tion. Federal courts are permitted to hear only civil cases involving diversity of citizenship and several types of cases that involve questions of federal law, including prisoner petitions.

Diversity Jurisdiction

Diversity of citizenship cases involve suits between citizens of different states or between a U.S. citizen and a foreign country or citizen. For example, a citizen from California claims to be injured in an automobile accident in Chicago with an Illinois driver and sues in federal court in Illinois because the parties to the suit are of “diverse citizenship.” Pursuant to the Supreme Court’s decision in Erie Railroad Co. v. Tompkins (1938), federal courts apply state—not federal—law when adjudicating state claims in federal court under their diversity of citi- zenship jurisdiction.

From the 1980s through the mid-1990s, diver- sity cases constituted approximately 25 percent of the civil docket of the district courts, thus making a significant contribution to the workload of the district courts. In an effort to restrict the types of minor disputes that may be filed in federal court, Congress in 1996 raised the amount-in-controversy to $75,000 under 28 U.S.C. § 1332(a). At first, this

courts, they are appointed for 14-year terms by the court of appeals in which the district is located. In 2005, bankruptcy filings reached an astonishing level, with more than 1.78 million petitions filed. The vast majority of these bankruptcy filings were non–business-related, typically involving consum- ers who cannot pay their bills; the others were filed by businesses big and small. That same year, however, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. The law made it more difficult for consumers to discharge debts that they were having trouble pay- ing. As a result, the number of bankruptcy petitions filed dropped to around 800,000 per year by 2007. In the wake of the economic downturn since then, however, bankruptcy filings have risen again, to nearly 1.6 million petitions.

Caseload of U.S. District Courts

In the federal system, the U.S. district courts are the federal trial courts of original jurisdiction. Table 3.1 provides an overview of case volume in the federal courts. The volume of cases is large and growing in complexity.

The district courts are the trial courts for all major violations of federal criminal law. Each year, U.S. attorneys file approximately 78,000 criminal cases, primarily for drug violations, embezzlement, and fraud. For many years, federal prosecutions remained fairly constant (roughly 30,000 per year), only to shoot up beginning in 1980. A major part of this upsurge has been the dramatic increase in drug prosecutions, which, as Figure 3.2 illustrates, account for more than 20 percent of all federal criminal cases. Moreover, trials of criminal cases are now more frequent (and also longer) than in years past. Thus, although civil, not criminal, cases

TABLE 3.1 ■ CASE FILINGS IN THE U.S. COURTS

2002 2007 2010

U.S. Supreme Court 8,255 8,241 7,857

U.S. Circuit Courts of Appeals 57,555 58,410 55,992

U.S. District Courts 341,841 325,920 361,323

U.S. Bankruptcy Courts 1,547,669 801,269 1,596,355

e n

g a

g e

L e

a rn

in g

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 67

biased against out-of-state defendants (Under- wood, 2006). Alternatively, Congress may simply have opted to continue using the federal courts to resolve interstate disputes.

Federal Questions

Article III provides that federal courts may be given jurisdiction over “Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made under their authority.” Cases that fall under this type of jurisdiction are generally referred to as involving a federal question. Although some federal question cases present issues concerning the interpretation or application of the U.S. Con- stitution, most federal question cases concern the application or interpretation of a statute enacted by Congress as illustrated in Exhibit 3.1. Some of these laws—and the decisions of the federal courts inter- preting them—significantly affect the operation of the criminal justice system.

change in jurisdictional amount decreased the number of diversity cases filed in federal courts each year such that diversity cases were reduced to 18.7 percent of the federal civil caseload in 2000. However, the effects of the change in the amount-in-controversy were short-lived. Since 2005, diversity filings have constituted between 25 and 36 percent of the federal civil case load. Given the burdensome workload that diversity jurisdiction brings to the federal courts, combined with the fact that the exercise of diversity juris- diction requires the federal courts to apply state law—a task that is arguably better performed in state courts—both judges and legal scholars have called for the abolition of diversity of citi- zenship jurisdiction in the federal courts. If that were to occur, the federal courts would be able to focus on federal questions. However, Congress has not heeded such calls. Rather, Congress may have decided to maintain the status quo because it agreed with the overwhelming sentiment of lawyers in private practice that state courts are

Figure 3.2 ■ Federal Criminal Prosecutions SOURCE: Federal Judicial Center. Caseload Statistics 2011, Table D-2. Washington, DC: Administrative Office of the U.S. Courts.

L A W S O N , A N G E L A 6 8 5 3 B U

68 Part I / The Legal System

The Constitutionalization of Criminal Procedure Under Chief Justice Earl Warren, the U.S. Supreme Court sparked a due process revolution, giving defendants the right to counsel (Chapter 7), broadening notions of a fair trial (Chapter 13), and expanding the right to appeal (Chapter 16). The federal courts have also set standards regulating how local and state law enforcement officers gather evidence and interrogate suspects (Chapter 11). And the federal courts continue to impact greatly the sentencing and punishment

of criminal offenders (Chapter 14). Violations of these constitutional rights as interpreted in relevant federal court precedent can lead to a conviction being overturned either on direct appeal or collaterally in habeas corpus proceedings (Chapter 16).

Discrimination Laws and Civil Rights Cases Federal laws prohibit discrimination on the basis of race, religion, sex, age, or national origin in

FEDERAL QUESTION JURISDICTION CASES

Suits between states—Cases in which two or more states are parties.

Cases involving ambassadors and other high-ranking public figures—Cases arising between foreign ambassadors and other high-ranking public officials.

Federal crimes—Crimes defined by or mentioned in the U.S. Constitution or those defined and/or punished by federal statute. Such crimes include treason against the United States, piracy, counterfeiting, crimes against the law of nations, and crimes relating to the federal government’s authority to regulate interstate commerce. However, most crimes are state matters.

Bankruptcy—The statutory procedure, usually triggered by insolvency, by which a person is relieved of most debts and undergoes a judicially supervised reorganization or liquidation for the benefit of the person’s creditors.

Patent, copyright, and trademark cases:

(1) Patent—The exclusive right to make, use, or sell an invention for a specified period (usually 17 years), granted by the federal government to the inventor if the device or process is novel, useful, and non-obvious.

(2) Copyright—The body of law relating to a property right in an original work of authorship (such as a literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.

(3) Trademark—A word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others.

Admiralty—The system of jurisprudence that has grown out of the practice of admiralty courts: courts that exercise jurisdiction over all maritime contracts, torts, injuries, and offenses.

Antitrust—The body of law designed to protect trade and commerce from restraining monopolies, price fixing, and price discrimination.

Securities and banking regulation—The body of law protecting the public by regulating the registration, offering, and trad- ing of securities and the regulation of banking practices.

Other cases specified by federal statute—Any other cases specified by an applicable federal statute, such as of civil rights, labor relations, environmental cases, and cases arising under the Americans with Disabilities Act.

SOURCE: “Understanding Federal and State Courts.” Available online at http://www.uscourts.gov/EducationalResources/ FederalCourtBasics/CourtStructure/UnderstandingFederalAndStateCourts.aspx

Exhibit 3.1

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 69

Prisoner petitions have grown steadily and now account for a considerable portion of the workload of the federal courts. Collectively, civil rights cases from state and federal inmates have increased significantly, from about 3,500 filings in 1960 to a record high of more than 68,235 cases in 1996. These numbers were driven, in large part, by the sharp increase in the prison population over the corresponding period. The following year, prisoner petitions began to decrease as a result of Congress enacting the Prison Litigation Reform Act (PLRA) of 1996. The PLRA made it more difficult for pris- oners to file Section 1983 cases by requiring them to exhaust administrative remedies before filing a federal case, by making them pay certain fees from which they had previously been exempt, and by barring them from filing subsequent cases if they had prior Section 1983 cases dismissed for being frivolous or malicious.

U.S. magistrate judges greatly assist federal district judges with habeas petitions and prisoner civil rights. But, because they are not Article III judges, magistrates generally write a report to the U.S. district judge to whom the case is formally assigned. The report concludes with a recommen- dation for how to rule in the case. The report and recommendation is usually adopted by the district judge who ultimately orders the final judgment in the case.

Discrimination and Civil Rights Caseload in the Federal Courts Nonprisoner civil rights filings doubled in U.S. district courts from 1990 (18,922 filings) to 1997 (43,278 filings). This increase in the civil rights caseload of the federal courts was due, in large part, to the major expansion of federal civil rights by various acts of Congress, most especially the passage of the Americans for Disabilities Act of 1990 and the Civil Rights Act of 1991, which amended several older employment discrimina- tion laws, including, among others, Title VII of the Civil Rights Act of 1964 and the Age Discrimina- tion in Employment Act of 1973. In the early 2000s, civil rights filings stabilized at around 40,500 cases per year. Since then, however, they have declined to around 36,500 filings, thereby accounting for approximately 12.5 percent of all civil cases filed in the federal courts.

domains such as employment, welfare, housing, and voting. For example, except in rare instances, employers are required to ignore gender when hir- ing or promoting, provide equal pay to all employ- ees, and treat pregnancy like any other temporary disability (Kruger, 2007). Bona fide occupational qualifications, however, are exempt. Thus, valid job-related requirements necessary to normal business operations are allowed. Criminal justice agencies, though, should avoid height and weight requirements that are not legitimately related to job performance.

Similarly, the roughly 43 million people with disabilities in the United States are protected against discrimination in employment and in their use of public facilities and services under the Americans with Disabilities Act. These protec- tions affect the design and functionality of police departments, courthouses, and correctional facili- ties to accommodate the special needs of the dis- abled. In Yeskey v. Pennsylvania Department of Cor- rections (1998), the U.S. Supreme Court held that the Americans with Disabilities Act applies to the ways in which police officers and correctional officials interact with people with disabilities. As a result, police may be civilly liable for arrest- ing someone because they confuse the effects of a disability with criminally aggressive behavior or because they fail to accommodate a person’s disability during investigation, interrogation, or arrest (Osborn, 2008). Similarly, the Court held in United States v. Georgia (2006) that states and municipalities can be held civilly liable for failing to maintain correctional facilities that accommo- date the special needs of disabled prisoners.

Prisoner Petitions In spite of a criminal conviction, inmates in local, state, and federal custody all retain certain consti- tutional rights. The Supreme Court emphasized this point in Wolff v. McDonnell (1974), when it said, “There is no iron curtain drawn between the Constitution and the prisons of this country” (pp. 555–556). To enforce their rights, prisoners are permitted to file several types of civil law- suits, which are collectively referred to as prisoner petitions. The four primary types of prisoner peti- tions that the federal courts adjudicate are summa- rized in Table 3.2.

L A W S O N , A N G E L A 6 8 5 3 B U

70 Part I / The Legal System

they were renamed and are each now officially known as the U.S. Court of Appeals for the ____ Circuit. Each circuit hears appeals from specific district courts. At present, there are 14 circuits: 11 numbered circuits (each containing at least three states); a Circuit Court of Appeals for the District of Columbia; the Court of Appeals for the Federal Circuit; and the Court of Appeals for the Armed Forces.

U.S. COURTS OF APPEALS

As mentioned previously, Congress created the U.S. courts of appeals in 1891 to relieve the Supreme Court from hearing the growing num- ber of appeals. The courts of appeals are the intermediate appellate courts of the federal sys- tem. Originally called “circuit courts of appeal,”

TABLE 3.2 ■ PRISONER PETITIONS IN U.S. DISTRICT COURTS IN 2011

Prisoner Petition

Number

Filed

Percent of

Prisoner

Petitions

Percent of

Total Civil

DocketType Description

Habeas

Corpus

Typically filed under 28 U.S.C. § 2254, habeas corpus cases are those in which inmates may collaterally challenge their convictions (after exhausting all available state remedies to do so) by arguing that their trial was constitutionally defective.

20,880 39.16% 7.09%

Motions

to Vacate

Sentence

Allow a federal prisoner to try to get a sentence set aside or corrected because the sentence was imposed contrary to law. Such motions might allege that the court lacked jurisdiction to impose a criminal sentence or that the sentence was in excess of that allowed under the law.

6,178 11.59% 2.10%

Mandamus

Petitions

Seeks a court order to compel a public entity or official to do something that is owed to the plaintiff as a matter of constitutional or statutory right.

989 1.85% 0.34%

Section

1983 and

Bivens

Civil

Rights

actions

Against state actors: 42 U.S.C. § 1983 allows individual persons to sue those who act under color of state law to redress alleged deprivations of constitutional rights. Typical claims are use of excessive force, illegal searches and seizures, interference with Fifth and/or Sixth Amendment rights to counsel during interrogations (Chapter 11), denials of First Amendment rights, interference with the Sixth Amendment right to access the courts, and violations of the Eighth Amendment’s guarantee against cruel and unusual punishment based on claims of excessive force, lack of medical care, or inhumane conditions of confinement.

Against federal actors: Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (1971), permits private persons to sue those who act under color of federal authority (e.g., federal law enforcement or correctional officers) for alleged deprivations of constitutional rights.

25,276 47.40% 8.59%

SOURCE: Federal Judicial Center. Caseload Statistics 2011, Table C-2. Washington, DC: Administrative Office of the U.S. Courts.

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 71

the Armed Forces hears appeals only from cases decided in military courts and tribunals concern- ing members of the U.S. armed forces on active duty and other persons subject to the Uniform Code of Military Justice.

The courts of appeals are staffed by 179 judges nominated by the president and confirmed by the Senate. As with the district courts, the number of judges in each circuit varies, from 6 (the First Circuit) to 29 (the Ninth Circuit), depending on the volume and complexity of the caseload. Each circuit has a chief judge who performs adminis- trative duties in addition to hearing cases. As a rule, the judge who has served on the court the longest and who is under 65 years of age is desig- nated as the chief judge. Several staff positions aid the judges in conducting the work of the courts of appeals. A circuit executive assists the chief judge

As illustrated in Figure 3.3, the numbered circuits and the Circuit Court of Appeals for the District of Columbia are geographically arranged. All 12 of these circuit courts are empowered to review all final decisions of U.S. district courts, as well as certain interlocutory decisions of dis- trict courts (see Chapter 16). They also have the power to review and enforce orders of many fed- eral administrative bodies. In contrast, the Federal Circuit is the only civilian judicial circuit whose jurisdiction is based on subject matter rather than geographical boundaries. It was created by an act of Congress in 1982 and granted nationwide juris- diction to hear specialized appeals concerning certain types of government contracts, patents, trademarks, certain nontort money claims against the U.S. government, federal personnel, and vet- erans’ benefits. Finally, the Court of Appeals for

Figure 3.3 ■ Geographic Boundaries of the Federal Courts SOURCE: Russell Wheeler and Cynthia Harrison. Creating the Federal Judicial System. 2nd ed. Washington, DC: Federal Judicial Center, 1994, p. 26.

L A W S O N , A N G E L A 6 8 5 3 B U

72 Part I / The Legal System

U.S. SUPREME COURT

The U.S. Supreme Court is the court of last resort in the federal court system, meaning that it is a court from which no appeal is possible. The Supreme Court has one chief justice and a number of associ- ate justices fixed by Congress. By act of Congress in 1948, the number of associate justices is eight. Power to nominate the justices is vested in the president of the United States, and appointments are made with the advice and consent of the Senate. Once con- firmed to the Supreme Court, there is no mandatory retirement age for Supreme Court justices; so as long as they maintain “good behavior,” the justices may remain on the court until their death or until they voluntarily choose to retire.

The Constitution grants the Supreme Court original jurisdiction in a limited number of cases. In other words, the Supreme Court acts as a trial court in certain types of cases, such as controver- sies between the United States and a state, between two states, or between foreign ministers or ambas- sadors. Such cases are quite rare; so in the over- whelming majority of cases, the Supreme Court exercises its appellate jurisdiction, reviewing the decisions of the lower federal courts and the high- est state courts.

With a few limited exceptions, the appellate jurisdiction of the Supreme Court is discretionary rather than mandatory. In other words, the Court has great discretion with regard to the appeals it elects to hear and decide. The Supreme Court exer- cises this discretion through the granting of a writ of certiorari, which means that the Court, upon petition by a party, agrees to review a case decided by one of the circuit courts of appeals or the high- est court of a state. The writ of certiorari is an order issued by the Supreme Court to a lower court to send the case records so that the Supreme Court can determine whether the law has been correctly applied.

Granting Cert: The Rule of Four

A vote of four Supreme Court justices is required to grant certiorari to review a case. This is often referred to as the rule of four. The rule of four is not contained in any law or formal rule of the Court;

in administering the circuit. The clerk’s office maintains the records. Each judge is also allowed to hire three law clerks. In addition, each circuit has a central legal staff that screens appeals and drafts memorandum opinions.

In deciding cases, the courts of appeals nor- mally use rotating three-judge panels. Along with active judges in the circuit, these panels often include visiting judges (primarily district judges from the same circuit) and senior judges. By majority vote, all the judges in the circuit may sit together to decide a case or rehear a case already decided by a panel. Such en banc hearings are relatively rare, however; in a typical year fewer than 100 are held throughout the entire nation.

Caseload of U.S. Courts of Appeals

Over the past five decades, the caseload of the courts of appeals has skyrocketed. This dramatic increase in caseload has not been matched by an equivalent increase in judgeships, however. In 1960, there were 68 judgeships whose workload involved hearing 172 cases per three-judge panel. Today, there are 179 circuit court judges who hear more than 1,000 cases per three-judge panel.

The number of appeals filed annually in the federal courts has varied between 54,679 in 2000 to a high of 68,473 in 2005. That number has fallen, as 55,753 appeals were filed in 2011, the most recent year for which statistics are available. Appeals from criminal convictions in the U.S. district courts constitute about 29 percent of the workload of the courts of appeals. Appeals from decisions in prisoner petition cases comprise 25.4 percent of the federal appellate caseload. Thus, criminal and prisoner petitions account for nearly 55 percent of the appeals filed each year, while civil appeals, including bankruptcy appeals and appeals from administrative agencies, account for the remainder.

A decision by the court of appeals exhausts the litigant’s right to one appeal. The losing party may request that the Supreme Court hear the case, but such petitions are rarely granted. As a result, the courts of appeals are the “courts of last resort” for virtually all federal litigation. Their decisions end the case; only a tiny percentage will be heard by the nation’s highest court.

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 73

must raise a substantial federal question, the vast majority of state cases are never reviewed by the Supreme Court.

By statute, the Supreme Court begins its annual term on the first Monday in October and it con- tinues until late June or early July of the follow- ing year. Each term is comprised of rotating inter- vals of sittings and recesses, each of which lasts approximately 2 weeks. During sittings, the justices hear cases and deliver opinions. During recesses, they study the cases on their docket and work on researching and writing their opinions. In addition, each week, the justices evaluate roughly 130 peti- tions for writs of certiorari.

Through its discretionary powers to hear appeals, the Supreme Court limits itself to deciding about 80 cases a year. With the exception of capi- tal cases, the Court does not really act as an error- correction court. Rather, the Court marshals its time and energy to decide the most important pol- icy questions of the day (see Chapter 16).

Circuit Justices

Each justice on the Supreme Court is assigned to serve as a circuit justice. While the function of circuit justices has varied over time, their role today is con- cerned primarily with addressing certain requests for extension of time and ruling on requests for stays in cases coming from the circuit (or circuits) to which the justice is assigned. A stay is a court order that temporarily suspends activity in a case. If the circuit justice thinks that there is merit in a case such that the full Supreme Court should have an opportunity to decide whether to hear the case, the circuit justice may grant the stay. This is particularly important in capital cases, in which a stay of execu- tion can keep a death-row prisoner alive until the full Court can review the case.

SPECIALIZED FEDERAL COURTS

The magistrate, district, appeals courts, and Supreme Court handle the bulk of federal litiga- tion and therefore are a principal focus of this book. To round out our discussion of the federal judicial system, however, we also need to discuss

rather, it is a custom that has been observed since the Supreme Court gained the ability to control its own docket with the creation of the circuit courts of appeal in 1891 (Fang, Johnson, & Roberts, 2007). The rule of four is remarkable in that it is a device through which “a minority of the Court can impose on the majority a question that the majority does not think it appropriate to address” (Kurland & Hutchinson, 1983, p. 645). This power of a minor- ity of justices appears to make a difference in about 25 percent of the Court’s cases; for the other three- quarters of their caseload, a majority of justices agree that a case presents an issue that the Court should address through plenary review (Fang et al., 2007).

Whether certiorari is granted by four justices or more, the Court’s discretion is always guided by whether a case presents questions that have some general “importance beyond the facts and par- ties involved” (Boag v. MacDougall 1982, p. 368) (Rehnquist, J., dissenting). For example, the Court may grant certiorari in cases involving important and unsettled questions of federal law or in situ- ations involving a conflict among state high courts or the federal circuits concerning the interpretation of federal law, most especially one ruling on a ques- tion of interpretation of the U.S. Constitution. Note that failure to grant certiorari is not an affirmation in disguise of the lower court’s decision. It simply means that the petitioner failed to persuade four of the nine justices to hear the appeal.

Caseload of U.S. Supreme Court

Only a small percentage of the requests for a writ of certiorari (or cert, as it is often called) is granted. In particular, the legal issue must involve a “sub- stantial federal question.” This means state court interpretations of state law can be appealed to the Supreme Court only if there is an alleged violation of either federal law or the U.S. Constitution. For example, a suit contending that a state supreme court has misinterpreted the state’s divorce law would not be heard because it involves an inter- pretation of state law and does not raise a federal question. The same is true for decisions of state high courts recognizing controversial rights, such as the right for same-sex couples to marry, when the decisions are based entirely on their state con- stitutions. As a result of this limitation that cases

L A W S O N , A N G E L A 6 8 5 3 B U

74 Part I / The Legal System

briefly several additional courts that Congress has periodically created. These courts are called “specialized federal courts” because they are authorized to hear only a limited range of cases— taxes or patents, for example. They are created for the express purpose of helping administer a specific congressional statute.

Table 3.3 gives an overview of the specialized federal courts and highlights two important dis- tinctions. First, most specialized courts have per- manent, full-time judges appointed specifically to that court. A few specialized courts, however, temporarily borrow judges from federal district courts or courts of appeals as specific cases arise (Baum, 2011).

The second distinction relates to the special- ized courts’ constitutional status. Judicial bod- ies established by Congress under Article III are known as constitutional courts. The Supreme Court, courts of appeals, and district courts are, of course, constitutional courts. Judicial bod- ies established by Congress under Article I are known as legislative courts. Courts presided

over by bankruptcy judges and U.S. magistrate judges are examples of legislative courts. The con- stitutional status of federal courts has important implications for judicial independence. Article III (constitutional court) judges serve for a period that amounts to a lifetime appointment, but Article I (legislative court) judges are appointed for a specific term of office. Moreover, Article III judges are protected against salary reductions while in office. Article I judges enjoy no such constitutional protection. In short, constitutional courts have a greater degree of independence from the other two branches of government than do the legislative courts. The specialized federal courts are overwhelmingly civil in their orienta- tion, handling such matters as patents and tariffs on imported goods. But two specialized courts bear directly on criminal matters, the military courts and the Foreign Intelligence Surveillance Act Court. In addition, a murky legal area has arisen because of the capture of those who are called “military noncombatants”; it is not clear in which courts they will be tried.

TABLE 3.3 ■ SPECIALIZED FEDERAL COURTS

COURT AUTHORITY LEVEL JURISDICTION

Courts with Permanent Judges

Tax Court Article I Trial Tax disputes

Court of Federal Claims Article I Trial Monetary claims against the federal government

Court of Veterans Appeal Article I Trial Federal veterans’ benefits

U.S. Court of International Trade

Article III Trial Imports of foreign goods

U.S. Court of Appeals of the Armed Forces

Article III Appellate Uniform Code of Military Justice

Court of Appeals for the Federal Circuit

Article III Appellate Trademarks, patents, foreign trade, claims against the federal government

Courts with Judges Borrowed from Other Federal Courts

Alien Terrorist Removal Court

Article I Trial Decides whether an alien should be removed from the United States on the grounds of being an alien terrorist

Foreign Intelligence Surveillance Court

Article III Trial Electronic surveillance of foreign intelligence agents

Foreign Intelligence Surveillance Court of Review

Article III Appellate Electronic surveillance of foreign intelligence agents

SOURCE: Adapted from Lawrence Baum, Specializing the Courts. Chicago: University of Chicago Press, 2011. For further details on these courts visit the Federal Judicial Center at http://www.fjc.gov/history/home.nsf/page/courts.html.

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 75

Military Justice

Congress adopted the Uniform Code of Military Justice in 1950, extending significant new due pro- cess rights in courts-martial. Congress also created the U.S. Court of Appeals for the Armed Forces, composed of five civilian judges appointed by the president for 15-year terms. The intent was clearly to extend civilian influence to military law. The Military Justice Act of 1968 contributed to the fur- ther civilianization of courts-martial. The code cov- ers criminal acts, but can also punish acts that are not criminal for civilians (for example, disrespect of an officer). Moreover, on a military base, military justice applies not only to members of the armed services but also to civilian employees, and it cov- ers acts committed by military personnel on and off a military base (Fidell, Hillman, & Sullivan, 2012).

As with other systems of criminal law, the objec- tive of military justice is to provide a forum for determining guilt or innocence. In addition, how- ever, courts-martial serve the purpose of enforcing order and discipline in the military. In the words of the U.S. Military (U.S. Joint Service Commit- tee on Military Service 2008, p. I–1): “The pur- pose of military law is to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” Thus, although military justice is not exempt from the Constitution, it is certainly distinctive. Military justice differs from state and federal justice in the following ways:

Proceedings are open to military society. The burden of proof is less demanding. Three- and five-person juries are used. The jurors are military personnel. A two-thirds majority is sufficient to convict. Convictions are automatically appealed to a

higher military court.

The principal concern with military courts is that jurors may be unduly influenced by military com- manders.

In recent years, a few high-profile cases have thrust military justice into the news. Some of the more prominent cases include these:

Seven Marines and a Navy corpsman were charged with premeditated murder of an in- nocent civilian in the Iraqi town of Haditha.

Charges against several of these military personnel were ultimately dropped, but at least one has been convicted so far.

Several Army personnel were found guilty of abusing inmates in Iraq’s notorious Abu Ghraib prison.

Seven U.S. soldiers from an elite Airborne divi- sion were charged with knowingly engaging in sex for money on a public website.

At the age of 39, psychiatrist and Army Major Nidal Malik Hasan went on a shooting ram- page at Fort Hood, killing 13 people and wounding 29 others. His trial is scheduled to take place in 2012.

Charges are currently pending against Pfc. Bradley Manning, who has been accused of leaking classified government documents, including a classified military video of an attack in Iraq that was posted online by WikiLeaks. His actions allegedly formed the largest ever intelligence leak in American history.

Enemy Combatants

In response to the attacks of September 11, 2001, the United States invaded Afghanistan, capturing hundreds of persons suspected of being members of the al-Qaeda terrorist organization. The military decided that those captured did not qualify as pris- oners of war (and therefore subject to the Geneva Conventions) but instead would be considered enemy combatants. Since the War on Terrorism began, nearly 800 people from 48 countries have been imprisoned as enemy combatants at the Navy base in Guantanamo Bay, Cuba; thousands more have been held in military installations in Afghani- stan, Iraq, and elsewhere.

The George W. Bush administration asserted that international law did not require any legal pro- cess for enemy combatants. Rather, the president, as commander-in-chief, could detain enemy com- batants until the War on Terrorism was over. The U.S. Supreme Court rejected this view in Rasul v. Bush (2004), ruling that federal courts have jurisdic- tion to hear the detainees’ habeas corpus petitions challenging their indefinite detentions.

Less than 2 weeks after the Rasul decision, the Department of Defense established Combatant Sta- tus Review Tribunals (CSRTs) to review evidence in

L A W S O N , A N G E L A 6 8 5 3 B U

76 Part I / The Legal System

secret proceedings to determine whether a detainee had been properly classified as an enemy combat- ant. Within 6 months, over 550 CSRTs were held. (See “Courts, Law, & Media” box below). Ulti- mately, the U.S. Supreme Court rejected the legal- ity of these military commissions, ruling in Hamdan v. Rumsfeld (2006) that they had not been autho- rized by an act of Congress and that they violated both the Uniform Code of Military Justice and the Geneva Conventions.

Congress responded to the Hamdan decision by enacting the Military Commissions Act of 2006 (MCA), which authorized the president to iden- tify enemies, imprison them indefinitely, try them in military commissions, and deprive the federal courts of jurisdiction to hear any habeas corpus cases filed by detainees. In doing so, Congress sanctioned past and future decisions of CSRTs and attempted to place enemy combatants beyond the reach of federal courts, processes afforded to

THE RESPONSE (2010)

The Response is a 30-minute movie depicting a hearing held at the U.S. military’s detention camp in Guantanamo Bay, Cuba. Although the film’s

characters—the detainee and the three members of the military tribunal—are composite characters, the depiction of the legal processes is accurate. In fact, the dialogue in the first 20 minutes of the movie is an amalgamation of actual transcripts from several detainee tribunals. And although the final 10 minutes of the film contain a fictionalized depiction of the private deliberations among the three military tribunal members, the content comes from numerous interviews with officers in the military’s Judge Advocate General (JAG) corps.

The suspected enemy combatant is played by Aasif Mandvi, a comic actor known largely for work on The Daily Show. His character has been held for 4 years on suspicion of having ties to al-Qaeda.

Tight camera shots of Mandvi’s face add to the drama of a tense courtroom scene as he pleads his innocence before three military officials who repeatedly question him about evidence he is forbidden to see. The officials deliberate Mandvi’s fate in the following scene. A heated exchange between two of the three military officers, a Colonel Simms, played by Kate Mulgrew, and a Colonel Jefferson, played by Peter Riegert, highlights the film’s underlying dilemma.

“Are you willing to keep him locked up based on suspect evidence he can’t even hear? If we are fighting

an ideological war, shouldn’t we be holding on to an idea worth fighting for, say, like the Constitution on the rule of law?” Jefferson asks. Wary of letting a potential terrorist walk away, Simms responds, “We are compelled to make the best decision we can under the laws we were given. Obvi- ously it’s not a perfect solution.” (Walsh, 2010, ¶¶ 3–6).

The audience is left to determine what decision the third officer makes, thereby placing the viewer in the position of casting the tie-breaking vote.

The Response ponders:

profound questions about the U.S. justice system in the aftermath of the 9/11 attacks . . . [asking] its audience to consider what course of action is fair and just during a war on terror; what kinds of restrictions to civil liberties and human rights are acceptable when it comes to na- tional security; and if information gained during interroga- tions involving torture can be considered reliable. (Walsh, 2010, ¶ 11).

After viewing the movie, answer the following questions:

What are the strongest arguments for classifying the detainee as an enemy combatant? What are the strongest arguments against doing so?

Take a position on whether Congress should close the Guantanamo Bay detention facility, transfer the detainees to a U.S. prison, and then try them in federal courts.

Considering the role that federal habeas corpus proceed- ings play in the U.S. scheme of justice, what do you think is the proper balance between national security and due process rights of those suspected of being terrorists?

COURTS,

LAW, &

MEDIA

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 77

the court had approved all warrant requests. This lack of public attention changed greatly with the revelation in late 2005 that the National Security Agency was conducting warrantless surveillance of domestic phone conversations of suspected foreign terrorist groups like al-Qaeda. The Bush administration contended that the president had inherent war powers under the Constitution to order eavesdropping without warrants even though some in Congress disputed this interpre- tation. In the wake of controversy, a republican- controlled Congress enacted the Protect America Act of 2007. The law mandated that telecommuni- cations providers assist the government in inter- cepting international phone calls and e-mails for national security purposes. The law was upheld in 2008 over a Fourth Amendment challenge (see Chapter 11) by a decision of the Foreign Intelli- gence Surveillance Court of Review (which has appellate review over decisions of the Foreign Intelligence Surveillance Court), although the decision was not made public until early 2009. The court reasoned that requiring the government to obtain a warrant would impair its ability to gather time-sensitive information, thereby potentially putting national security interests at risk. The opinion concluded by saying that as long as the executive branch has “several layers of serviceable safeguards to protect individuals against unwar- ranted harms and to minimize incidental intru- sions, its efforts to protect national security should not be frustrated by the courts” (In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act 2008, p. 29).

criminal defendants and ordinary prisoners. The Supreme Court declared the MCA unconstitutional in Boumediene v. Bush (2008). As a result, a number of enemy combatants have been released by order of the courts reviewing their detention in Guanta- namo Bay. In fact, nearly three-quarters of the cases reviewed by federal judges concluded that there was insufficient evidence to hold the petitioners as enemy combatants and, therefore, ordered their release (Cole, 2010, as quoted in Walsh, 2010). As of this writing, however, 171 detainees remain in U.S. custody in Guantanamo Bay.

Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court has authority over electronic surveillance of foreign intelligence agents. Because it was created by the Foreign Intelligence Surveillance Act (FISA), it is popularly referred to as the FISA Court. This court has no permanent judges; rather, the chief justice appoints 11 justices who hear requests for warrants as needed. The courtroom is inside the U.S. Depart- ment of Justice, and only the judge is allowed to review the requests submitted by the Justice Department. By statute, the judge is authorized to sign a search warrant for electronic eavesdropping based on “clear and convincing evidence,” a legal standard that is less stringent than that required for a normal search warrant.

For years, the FISA Court labored in obscu- rity. Indeed, the only visible public role came in year-end reports, which invariably indicated that

WAS ZACARIAS MOUSSAOUI THE 20TH HIJACKER?C A S E C L O S E - U P

Three weeks before September 11, 2001, Zacarias

Moussaoui, a French national of Moroccan descent, was

taking flying lessons when he was arrested on immigra-

tion charges. After September 11, the government’s

theory was that Moussaoui was to be the 20th hijacker

on that fateful day. The prosecution also argued that

Moussaoui should be put to death because he lied to the

FBI, thus withholding evidence that would have prevent-

ed the terrorist attack.

Throughout the proceedings, Moussaoui seemed

more intent on clashing with Judge Leonie Brinkema and

his own defense attorneys than seeking to save himself.

Some of his statements were so outlandish that he gave

Continued on next page

L A W S O N , A N G E L A 6 8 5 3 B U

78 Part I / The Legal System

every appearance that he wanted to be a martyr. He

often ranted against the judge and refused to cooperate

with his court-appointed lawyers. Initially, Judge Brinkema

reluctantly let Moussaoui act as his own lawyer, but she

ended his self-representation because of inflammatory and

unprofessional briefs.

The proceedings were also marked by accusations of

governmental misconduct. At one point Judge Brinkema

ruled that the federal prosecutors could not seek the

death penalty because they refused to grant Moussaoui’s

lawyers access to certain government evidence (but the

Fourth Circuit Court of Appeals sided with the prosecu-

tors and the Bush administration). During the sentenc-

ing phase, she showed anger over allegations of witness

tampering by government officials.

Moussaoui tried to plead guilty on several

occasions, but Judge Brinkema ruled that he did not

appear to understand what he was doing. On April

20, 2005, Moussaoui sent the judge a letter saying he

wanted to plead guilty and over the objections of his

lawyer, he did so. It was then up to a jur y to determine

his punishment.

The penalty phase was split into two parts. First, the

jury had to determine whether this was a death-penalty-

eligible case. Testifying against his lawyers’ advice, Mouss-

aoui stated he was supposed to hijack a fifth jetliner on

September 11 and crash it into the White House. The

jury found that Moussaoui’s crime was death-penalty-

eligible, but then needed to decide if he should actually be

sentenced to death.

In addition to victim-impact statements from

the sur viving family members of those killed on

September 11, the jur y heard the cockpit voice

recording of one of the doomed airliners. Moussaoui

again testified against his lawyers’ advice, stating that

he had “no regret, no remorse” about the attacks.

Tr ying to undermine their own client, the defense

called a psychologist to the stand who testified that the

defendant was a paranoid schizophrenic with delusions.

Several sur vivors also testified that he should not die

(Lewis, 2006). In what many considered a surprising

move, the federal jur y rejected the death penalty for

Moussaoui, concluding that he played only a minor role

in terrorist attacks.

Defiant to the end, Moussaoui boasted “America, you

lost . . . I won.” But when Moussaoui was formally sen-

tenced, the judge had the last word. “You came here to be

a martyr and to die in a great bang of glory. But . . .

instead you will die with a whimper. The rest of your life

you will spend in prison” (Serrano, 2006). A few days later,

before dawn, U.S. marshals flew Moussaoui, now prisoner

51427-054, to the Supermax federal prison in Colorado.

He will spend 23 hours a day in his cell with little or no

contact with the other notorious criminals imprisoned

there.

In many ways, the trial of Zacarias Moussaoui lacked

a compelling sense of public drama par tly because it

dragged on for almost 4 years and par tly because there

was no live television coverage since federal cour ts

do not allow cameras in the cour troom. But ultimately

the trial lacked real drama because the outcome (as to

guilt) was never really in doubt. After all, the defendant

repeatedly made clear that he wanted to be found

guilty and wanted to be executed, thus ensuring that

(in his mind at least) he was a mar tyr to an impor tant

cause. Thus, the only real tension in the case came to

center on the question of whether or not he should

die, and as the trial progressed, that question increasing-

ly became linked to who was Zacarias Moussaoui the

person, not what was the role he would have played

in the tragic events of September 11. Indeed, in the

end, the trial failed to provide closure to the impor tant

question of whether Zacarias Moussaoui was indeed

the 20th hijacker. Some of his statements were so out-

landish and so contradictor y, that some close obser vers

of the case came to believe that his claims were simply

not believable. Overall, the trial seems to represent only

a macabre footnote to a national tragedy. The federal

cour ts have been hearing cases debating the permis-

sible scope of the government’s War on Terrorism, but

the Moussaoui trial was devoid of any major legal issues.

Thus, the trial will be remembered only for the bizarre

behavior of the defendant, not for any enduring addi-

tion to our nation’s legal histor y.

Continued from previous page

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 79

FEDERAL JUDICIAL ADMINISTRATION

The Administrative Office Act of 1939, which largely created the current administrative structure of the federal judiciary, illustrates the interplay between judicial administration and politics. During the mid- 1930s, the conservative majority on the Supreme Court declared many pieces of New Deal legisla- tion unconstitutional. After his reelection in 1936, President Franklin Delano Roosevelt put forth his Court-packing plan: The Court would be expanded from 9 to 15 justices, thus allowing FDR to pack the Court with justices more sympathetic to his policies. There was no legal barrier to such an action because the Constitution fails to specify how many justices shall serve on the Court. But the political obstacles proved insurmountable; many of Roosevelt’s back- ers felt that tampering with the Court was a bad idea. The Court-packing plan never passed, but it did call attention to the president’s complaints that the administration of federal courts was inefficient. At the same time, some judges were dissatisfied with the old system of court management because it was located in the Department of Justice, an execu- tive agency. Thus, a movement arose among fed- eral judges and national court reformers to clean their own house. The result was a compromise plan—the Administrative Office Act of 1939. The act expanded the responsibilities of the Judicial Confer- ence, created the Administrative Office of the U.S. Courts, and established the judicial councils. These agencies, along with the office of the chief justice, the Federal Judicial Center, and the more recently created U.S. Sentencing Commission, are the main units involved in administering the federal courts. A summary of their functions, composition, and hier- archical structure is presented in Figure 3.4.

Chief Justice

The chief justice is the presiding officer of the Supreme Court and has supervisory authority over the entire federal judicial system. To fulfill these duties, the chief justice hires a fifth law clerk (one more than the four law clerks allotted to each asso- ciate justice) and an administrative assistant to help with the administrative tasks for the Court and for the judicial system as a whole.

At the Supreme Court itself, the chief justice presides over all courtroom proceedings as well as the private conferences in which the justices discuss and vote on cases. As a matter of tradi- tion, the chief justice normally speaks either first or last in these conferences, thereby having sig- nificant influence on the discussion. The chief justice assigns associate justices (and himself) to serve as the circuit justice for the various federal circuits. While the chief justice’s vote in a case car- ries no more or less weight than the vote of any of the associate justices, the most senior justice always decides who will write the opinion of the Court in a given case. Since the chief justice is the most senior position on the court (regardless of the number of years the chief justice has actually served on the Court), that means that the when the chief justice votes with the majority of justices in a given case, he possesses the important power to assign the authorship of the majority opinion. This includes the ability to keep important consti- tutional cases for himself.

Other administrative tasks at the Supreme Court for the chief justice include regulating attor- ney admissions to the Supreme Court bar; formally opening and closing each court term; supervising and working with the Court’s clerk, librarians, and reporter of decisions; budgeting; advocating for the courts before Congress; and serving as a spokesper- son not only for the Supreme Court, but also for all of the federal courts. For example, former Chief Justice William Rehnquist often spoke about the need for Congress to increase the number of federal judges, increase the salaries of judges to be com- petitive with the private practice of law, reduce the workload of the courts, and protect judicial inde- pendence. Chief Justice John Roberts has continued to echo all of these sentiments. For example, in an Annual Report, Chief Justice Roberts pointed out that the entire judicial system of the United States received only two-tenths of 1 percent of the total federal budget, a figure that causes the courts to “continuously look . . . for ways to do more with less” (2008, p. 4). This chronic underfunding of the courts has led to federal judges’ pay being steadily eroded, since they have not been provided with cost-of-living increases for several years, even though Congress has given such increases to all other federal employees (including all members of Congress).

L A W S O N , A N G E L A 6 8 5 3 B U

80 Part I / The Legal System

Figure 3.4 ■ Organization of Federal Judicial Administration SOURCE: Russell Wheeler. A New Judge’s Introduction to Federal Judicial Administration. Washington, DC: Federal Judicial Center, 2003.

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 81

Outside the walls of the Supreme Court, the chief justice has many other ceremonial and admin- istrative responsibilities. By mandate of Article I, Section 3 of the U.S. Constitution, the chief justice presides over impeachment trials of the president of the United States in the U.S. Senate. The chief justice normally administers the oath of office to the president and vice president at inaugurations. He supervises the acquisitions of the law depart- ment at the Library of Congress. The chief justice also possesses the significant authority to appoint judges to special tribunals and courts, such the U.S. Foreign Intelligence Surveillance Court and the Judicial Panel on Multidistrict Litigation (a group of seven federal judges who select the venue for the district that coordinates all pretrial proceedings for multiple cases across the country concerning the same basic cause of action with common ques- tions of face, such as mass tort actions resulting from a plane crash or a product-liability case). And the chief justice serves on the boards of three cul- tural institutions: The Smithsonian (often serving as its Chancellor), the Hirshhorn Museum, and the National Gallery of Art.

In the role of leader of the federal courts sys- tem, the chief justice serves as the chair of the Judi- cial Conference of the United States, supervises the Administrative Office of the U.S. Courts, and serves as the chair of the Federal Judicial Center. All three of these organizations are discussed in greater detail in the following sections.

Judicial Conference of the United States

The Judicial Conference of the United States is the administrative policymaking organization of the federal judicial system. It is comprised of 26 mem- bers, including the chief justice, the chief judges of each of the courts of appeals, one district judge from each circuit, and the chief judge of the Court of International Trade. The conference meets semian- nually for a 2-day session. Because these short meet- ings are not sufficient to accomplish a great deal, most of the work is done by about 25 committees. The chief justice of the United States has the power to appointment members to the committees, all of which contain not only members of the Judicial Con- ference itself, but also other judges, law professors, and practicing attorneys selected by the chief justice.

One of the most important responsibilities of the Judicial Conference is drafting proposed amend- ments to the rules that govern proceedings in the federal courts. These include the Federal Rules of Civil Procedure, Federal Rules of Criminal Proce- dure, Federal Rules of Bankruptcy Procedure, Fed- eral Rules of Appellate Procedure, and the Federal Rules of Evidence. Other committees of the Judi- cial Conference oversee judicial codes of conduct, information technology in the federal courts, and court administration and case management.

The Judicial Conference directs the Adminis- trative Office of the U.S. Courts in administering the judiciary budget and makes recommenda- tions to Congress concerning the creation of new judgeships, increases in judicial salaries, and bud- gets for court operations. The Judicial Conference also plays a major role in discipline (including impeachment) of federal judges (a topic discussed in greater depth in Chapter 8). In short, the Judi- cial Conference is a vehicle through which federal judges play a major role in developing policy for the federal judiciary.

Administrative Office of the U.S. Courts

Since its establishment in 1939, the Administrative Office (AO) of the U.S. Courts has been respon- sible for implementing the policies established by the Judicial Conference by handling the day-to- day administrative tasks of the federal courts. The director of the AO is appointed by the chief justice and reports to the Judicial Conference. Acting as the Judicial Conference’s official representative in Congress, the AO’s lobbying and liaison respon- sibilities include presenting the annual budget requests for the federal judiciary, arguing for the need for additional judgeships, and transmitting proposed changes in court rules. The AO also serves as the housekeeping agency of the judiciary, responsible for allotting authorized funds and supervising expenditures. Throughout the year, local federal court staff send the AO a vast array of statistical data on the operations of the federal courts, ranging from the number of filings to the speed of the disposition of cases. The data are pub- lished in three separate volumes. The heftiest is the Annual Report, which runs to hundreds of pages and is now available on the Internet.

L A W S O N , A N G E L A 6 8 5 3 B U

82 Part I / The Legal System

Federal Judicial Center

The Federal Judicial Center is the research and train- ing arm of the federal judiciary. Its activities are man- aged by a director appointed by a board that consists of the chief justice, the director of the Administra- tive Office, and judges from the U.S. district court, courts of appeals, and bankruptcy court. One of the principal activities of the Federal Judicial Center is education and training of federal judicial personnel, including judges, probation officers, clerks of court, and pretrial service officers. The center also conducts research on a wide range of topics, including the work of the magistrate judges, ways of measuring the workload of the courts, and causes of delay.

Judicial Councils

The judicial council (sometimes referred to as the “circuit council”) is the basic administrative unit of a circuit. The membership consists of both district and appellate judges of the circuit. A judicial council is given sweeping authority to “make all necessary and appropriate orders for the effective and expe- ditious administration of justice within its circuit.” Working within this broad mandate, the councils monitor district court caseloads and judicial assign- ments. Although the law specifies that “all judicial officers and employees of the circuit shall promptly carry into effect all orders of the judicial council,” the councils’ actual enforcement powers are limited. The major weapons at their disposal are persuasion, peer group pressure, and publicity directed at the judge or judges who are reluctant to comply with circuit policy. At times, for example, circuit councils have ordered that a district judge receive no new cases until his or her docket has been brought up to date. Judicial councils are also authorized to investi- gate complaints of judicial disability or misconduct (a topic probed in greater detail in Chapter 8).

U.S. Sentencing Commission

The U.S. Sentencing Commission is an independent agency in the judicial branch of government. It con- sists of seven members—a chairperson, three vice chairs, and three commissioners appointed by the president of the United States. The Sentencing Com- mission was created by the Sentencing Reform Act of 1984. Its original purpose was to develop federal

sentencing guidelines. Today, the Commission is also charged with evaluating the effects of the sentenc- ing guidelines on the criminal justice system, recom- mending to Congress appropriate modifications of substantive criminal law and sentencing procedures, establishing a research and development program on sentencing issues, and monitoring the performance of federal probation officers with respect to their roles in recommending sentences to federal judges (see Chapter 14).

CASELOADS IN THE FEDERAL COURTS

The onset of the Industrial Revolution increased the caseload of the federal courts, a trend that was later accelerated by Prohibition, then the New Deal, and even further by federal lawmaking often associated with President Lyndon Johnson’s “Great Society” programs. Growing caseloads, in turn, prompted changes and additions to the federal judiciary; appellate courts have been added and specialized courts created.

What is new is the pace of that expansion. For most of our nation’s history, the growth in federal cases was gradual. No longer. Over the past 50 years, district court filings have increased more than 6-fold, and court of appeals cases have increased more than 10-fold. According to the Administra- tive Office of the U.S. Courts, federal judges today are faced with unprecedented levels of work. By and large, federal judges across the country face a greater number of cases each year and, in some instances, are encountering record levels of work.

The caseload problem is particularly acute in some metropolitan jurisdictions, where federal judges must postpone civil trials for months and even years to accommodate criminal trial schedules (particularly of major drug dealers) in accordance with the Speedy Trial Act (see Chapter 5). The solu- tions most often suggested for the problem of rising federal court caseloads are increasing the number of federal judges and reducing federal jurisdiction.

Increase the Number of Federal Judges?

Through the years, increases in the number of cases filed in federal court have been followed by an increase in the number of federal judgeships.

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 83

More recently, however, the dramatic increases in federal court cases have not been accompanied by a corresponding increase in the number of federal judgeships. Particularly at the appellate level, the creation of new judgeships has lagged far behind the increase in filings.

It is unlikely that in the short term the num- ber of federal judgeships will be increased. Only Congress can authorize additional judgeships, and Congress has been locked in a decades-long parti- san battle over the federal judiciary. Chapter 8 will explore ongoing political battles between Republi- cans and Democrats over who should fill existing vacancies on the federal bench. Given this partisan divide, it is unlikely that additional judgeships will be created until one party controls a filibuster-proof majority of the United States (and the president is a member of that party) because new judgeships would become political spoils for the party in con- trol at that time.

Reduce Federal Jurisdiction?

To cope with rising caseloads, federal judges have proposed not only creating more judgeships, but also reducing the types of cases that can be filed in federal court. According to the Report of the Federal Courts Study Committee (1990), Congress created most of these problems by unwisely expanding federal court jurisdiction, and therefore Congress should enact remedial legislation. Specifically, the report advocated several jurisdictional reforms. Some of the proposals to limit the ability of pris- oners to file civil rights lawsuits under 42 U.S.C. § 1983 until after having exhausted certain state administrative remedies were adopted by Con- gress as part of the Prisoner Litigation Reform Act of 1996. But no action has been taken with respect to some of the more dramatic recommendations in the 1990 report:

1. Federal diversity jurisdiction should be abol- ished except in cases by or against citizens of foreign countries, and in complex, multi-state cases arising primarily from large disasters.

2. The crime of illicit drug trafficking is punish- able under both state law and federal law. This concurrent jurisdiction should be abolished such that offenses arising out of trafficking on a local basis should be the exclusive province

of state criminal law (tried in state courts), leaving the federal courts to handle only large multi-state or even multi-national drug traf- ficking cases.

3. Congress should create several new Article I legislative courts, such as a Court of Disability Claims, which would hear appeals from deci- sions by administrative law judges denying claims for disability benefits under the Social Security Act and possibly under other dis- ability statutes as well. The Committee even proposed an Article I court to adjudicate small claims under the Federal Tort Claims Act in which the amount sought in good faith by the plaintiff is $10,000 or less.

Perhaps because Congress was labeled the pri- mary culprit, it is hardly surprising that Congress gave the report a chilly reception (Biskupic, 1993; Underwood, 2006). In short, the nation’s top elected lawmakers have been at odds with the nation’s top appointed law interpreters for most of the past century, and this disagreement is not likely to be resolved.

Arguments based on numbers of cases stress issues of efficiency, but typically need to be under- stood within a broader framework of political win- ners and losers. Thus, some disagreements reflect divisions along the lines of the due process versus crime control models of justice. But other disagree- ments reflect institutional differences: The views of federal judges (whether appointed by Republican or Democratic presidents) contrast with the views of federal lawmakers. Concurrent federal and state jurisdiction over certain drug-related offenses, to name just one example, illustrates the political nature of the debate over the appropriate scope of federal criminal law.

CONSEQUENCES OF FEDERAL INVOLVEMENT IN THE CRIMINAL JUSTICE SYSTEM

Crime has been a pressing national concern for decades. As a result, national elected officials, whether members of Congress or the president, have often made crime a key campaign issue. In turn, the crime policies of nonelected officials, whether bureaucrats or judges, have been closely scrutinized.

L A W S O N , A N G E L A 6 8 5 3 B U

84 Part I / The Legal System

cops on the beat are seldom followed by requests for increased taxes to pay for such increased per- sonpower. Faced with these limitations, local and state officials often turn to Washington as a source of “free” money (with free defined as “no local taxes”). In turn, federal officials find that appropriating fed- eral money is one way of assuring voters that they take the crime problem seriously.

Congress has authorized spending for a variety of anticrime programs. Some are general in nature—for example, block grants for local projects that reduce crime and improve public safety. Similarly, 60 per- cent of the research budget of the National Institute of Justice—the principal federal agency involved in the war on crime—is spent on developing new technol- ogy for law enforcement and the criminal justice sys- tem. Other spending programs are targeted toward specific concerns—for example, domestic violence and victim assistance programs (see Chapter 9).

Overall, though, the amount of federal dollars is small compared to what local and state govern- ments spend. Moreover, federal money is often limited to a short period of time (typically 3 years). After federal funding ends, state or local units of government are expected to take over funding, but often these agencies are strapped for cash, leading to the cancellation of successful programs.

CONCLUSION

Offenders like Alfonso Lopez were no doubt on Justice Scalia’s mind when he condemned what he called the deterioration of the federal courts. In the 1960s, the federal courts had few judges and small caseloads, but the cases they did hear were “by and large … cases of major importance.” In contrast, Jus- tice Scalia argued that while the federal courts now have more judges and larger caseloads, many of these cases are “minor” and “routine,” concerning “mundane” matters of less import or even “over- whelming triviality” (quoted in Galanter, 1988). Thus, according to one of the Court’s leading con- servatives, the federal courts should be returned to their rightful role of deciding major controversies; lesser ones would be banished to state courts.

In the more than two decades since Justice Sca- lia made those comments, other judges, scholars, and commentators with diverse political view- points have echoed his sentiments that the federal

Despite all this clamor at the national level, the role of the federal government in the criminal justice sys- tem is limited. Crime remains primarily the respon- sibility of state and local governments. This imbal- ance between federal officials’ need to be seen as doing something about the crime problem and their limited jurisdiction to do anything explains a good deal of the political dynamics surrounding the role of the federal government (and the federal judiciary) in the criminal justice system.

Forum for Symbolic Politics

In spite of the limited scope of its involvement in crime, the federal government remains the focal point of the national debate. Crime is a powerful issue and, therefore, has attracted a variety of interest groups. Some focus on crime issues directly—for example, the American Correctional Association (ACA), the Police Executive Research Forum (PERF), and Moth- ers Against Drunk Driving (MADD). Other interest groups, such as the American Civil Liberties Union (ACLU), Lambda Legal, and the National Organiza- tion for Women (NOW)—and find that crime and crime issues are related to other concerns.

Interest groups have a major impact on public pol- icy. Most directly, they lobby on behalf of their mem- bers for favorable government policies. They can also mount campaigns encouraging their members to write federal officials in favor of (or in opposition to) specific proposals. Some organizations likewise make campaign contributions to selected officials. The National Rifle Association (NRA), for instance, contributes to officials who are dubious about gun control, whereas the Brady Campaign to Prevent Gun Violence supports candidates who favor gun control.

Federal Dollars

A basic rule of American politics is that citizens’ demands for services exceed the willingness of vot- ers to raise taxes to pay for those services. Those who one day vocally demand a tax reduction are quick to demand expanded government services the next day. Funding the criminal justice system illustrates this rule. Citizens demand that courts “get tough with criminals” but are unwilling to raise taxes to build new prison cells. Likewise, pleas for more

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 85

Federal prosecutions often grab the head- lines because the crimes are large or audacious or because the accused are people of prominence. In turn, the public by and large identifies the judiciary with federal courts. But we should not be misled. The federal courts are a relatively small part of the nation’s judicial system. A major city such as Chicago or Los Angeles prosecutes more felons in a year than the entire federal judiciary. The nature of the crimes brought to federal court differs strik- ingly from those appearing in state judiciaries, though. State courts handle primarily street crimes that require immediate action—burglary, armed robbery, and murder, for example. By contrast, with the exception of drug-related offenses, federal crimes largely concern immigration offenses, fraud cases, firearms violations, and money laundering. It is to the more common state courts that we turn our attention in the next chapter.

courts handle too many routine cases that ought to be handled in state courts so that the federal courts could focus on more important federal ques- tions (Report of the Federal Courts Study Committee, 1990). Such concerns are most evident with regard to the seemingly ever-expanding federalization of crimes—most especially drug cases (Husak, 2008; Luna, 2005). But in an era when crime remains a major political issue, rolling back federal jurisdic- tion to the “good old days” (whenever that might have been) is unlikely to happen. What we learn ultimately is that the jurisdiction of federal courts is determined in no small measure by decisions of elected officials in Congress. In an earlier era, fed- eral officials decided that federal law should cover matters such as prostitution, consumption of alco- holic beverages, gambling, and organized crime. Today they focus more on drug dealers, crooks who use guns, and intimate-partner-violence offenders.

1. Define the four primary types of jurisdiction: geographical, subject matter, personal, and hierarchical.

Geographical jurisdiction limits the power of courts to adjudicate disputes arising within certain geographic boundaries. Subject matter jurisdiction concerns the types of cases a court may hear and decide. Personal jurisdiction refers to a court’s power over a specific person or legal entity (such as a partnership or corporation). Hierarchical jurisdiction concerns whether the court has the power to originally decide a case or to review it on appeal.

2. Compare and contrast the tasks of trial and appellate courts.

Trial courts are primarily concerned with considering evidence to resolve factual decisions within the bounds of the law. Appellate courts primarily review the legal decisions made by trial courts. In doing so, they serve dual purposes: error correction and policy formation (see Chapter 16).

1LO1

2LO2

3. Explain the historical evolution of the federal courts into their present structure and operations.

Article III of the U.S. Constitution established the U.S. Supreme Court and gave Congress the power to create lower courts. Congress has exercised its authority under Article III to create inferior courts at different times in U.S. history. Today, the trial courts that primarily exercise original jurisdiction in the federal system are the U.S. District Courts, whereas most appeals are resolved by the U.S. Courts of Appeals.

4. Analyze the different responsibilities and workloads of U.S magistrate judges, district judges, circuit judges, and Supreme Court justices.

U.S. magistrate judges assist U.S. district judges by conducting pretrial criminal matters, supervising discovery in civil cases, and making reports and recommendations concerning the disposition of motions and prisoner petitions. District court judges

3LO3

4LO4

Chapter Review

L A W S O N , A N G E L A 6 8 5 3 B U

86 Part I / The Legal System

preside over trials and write opinions adjudicating many types of civil disputes. Typically sitting in panels of three, circuit judges review the records in cases appealed from district courts and write opinions ruling on the merits of legal arguments raised in those appeals.

5. Analyze the impact the federal courts have on the administration of criminal justice at the state and local levels through their federal question jurisdiction.

By interpreting the requirements of federal law—especially the U.S. Constitution—the federal courts set the parameters for the operation of the criminal justice system so that police, prosecutors, defense attorneys, and judges honor the individual rights and liberties guaranteed in Constitution.

6. Differentiate the jurisdiction and functions of Article III courts from those of Article I courts and other specialized federal courts.

Article III courts are empowered to adjudicate “cases and controversies” arising under the U.S. Constitution, federal law, and certain cases between citizens of different states or different counties. Article I courts are tribunals created by Congress to handle specialized types of cases, especially those that arise under the regulatory law of federal agencies. The decisions of Article I courts are generally reviewable in Article III courts. Article III judges are nominated by the president and confirmed to office by the U.S. Senate. Article I judges are not; they are appointed for fixed terms. Article I judges enjoy two protections to foster their independence: life-tenure (unless impeached) and a guarantee that their salaries can never

5LO5

6LO6

be decreased. Article I judges do not have these protections.

7. Distinguish the various agencies and their hierarchical responsibilities for the administration of the federal court system.

The Judicial Conference of the United States sets national administrative policy for the federal judiciary. Under the supervision of the Judicial Conference, the Administrative Office of the U.S. Courts provides administrative support to courts (including budget, personnel, space, and facilities). The Federal Judicial Center provides orientation and continuing education to judges and personnel of courts, as well as research support for courts and Judicial Conference committees. The U.S. Sentencing Commission promulgates sentencing guidelines and otherwise establishes federal sentencing policies as directed by the 1984 Sentencing Reform Act.

8. Evaluate the major problems facing the federal courts and the strengths and weaknesses of the major solutions that have been proposed to address these problems.

Heavy caseloads are the major problem facing the federal courts. Not only does the heavy workload burden those who work in the courts, but it also affects litigants whose cases may be delayed because of a backlog. Adding more staff, especially more federal judges, could help, but is cost-prohibitive. Reducing the jurisdiction of the federal courts, especially by eliminating diversity of citizenship jurisdiction, could also help, but this has not gained sufficient political support for Congress to have acted on the proposal.

7LO7

8LO8

1. To what extent are contemporary debates over the role of the federal government similar to, but also different from, the debates in the late 18th century?

2. How would the criminal justice system be differ- ent today if the founding fathers had decided not to create a separate system of federal courts and instead allowed federal laws to be enforced in state courts?

Critical Thinking Questions

L A W S O N , A N G E L A 6 8 5 3 B U

Federal CourtsChapter 3 87

appellate court 61

appellate jurisdiction 61

Article I 74

Article III 62

bankruptcy judge 65

Bivens actions 70

concurrent jurisdiction 57

constitutional courts 74

circuit justice 73

diversity of citizenship 66

dual court system 57

en banc 72

enemy combatants 75

extradition 59

federal question 67

geographical jurisdiction 57

Habeas Corpus 70

habeas corpus petitions 70

hierarchical jurisdiction 60

jurisdiction 57

legislative courts 74

mandamus petitions 70

motions to vacate sentences 70

original jurisdiction 61

personal jurisdiction 59

prisoner petitions 69

rule of four 72

Section 1983 70

subject matter jurisdiction 59

stay 73

trial court 61

U.S. courts of appeals 70

U.S. district courts 65

U.S. magistrate judges 65

U.S. Supreme Court 72

venue 57

writ of certiorari 721

Key Terms

Go to the America’s Courts and the Criminal Justice System companion website at

http://www.cengage.com/criminaljustice/neubauer,

where you will find more resources to help you study.

Resources include web exercises, quizzing, and flash cards.

Web Resources

Ball, Howard. Bush, the Detainees and the Constitution: The Battle over Presidential Power in the War on Terror. Lawrence: University of Kansas Press, 2007.

Brody, David. “The Misuse of Magistrate Judges in Federal Criminal Proceedings: A Look at the Non-Ministerial Nature of Sentencings.” Justice System Journal 23: 259–262, 2002.

Carp, Robert, Ronald Stidham, and Kenneth Manning. The Federal Courts. 5th ed. Washington, DC: CQ Press, 2011.

Chutkow, Dawn. “Jurisdiction Stripping: Litigation, Ideol- ogy, and Congressional Control of the Courts.” Journal of Politics 70: 1053–1064, 2008.

Collins, Paul, Daniel Norton, Kenneth Manning, and Robert Carp. “International Conflicts and Decision Making on the Federal District Courts.” Justice System Journal 29: 121–144, 2008.

Cross, Frank. Decision Making in the U. S. Courts of Appeals. Palo Alto, CA: Stanford University Press, 2007.

Luna, Erik. 2005. “The Overcriminalization Phenomenon.” American University Law Review 54: 703–746.

Lurie, Jonathan. Military Justice in America: The U.S. Courts of Appeals for the Armed Forces, 1775–1980. Lawrence: University of Kansas Press, 2001.

Yackle, Larry. Federal Courts. 3rd ed. Durham, NC: Carolina Academic Press, 2009.

For Further Reading

3. How would you reduce the federal court case- load? In considering where you would reduce federal court jurisdiction, also consider where you might increase it. What do your choices reflect about your political values?

4. To what extent does the debate over federaliza- tion of state crimes cut across traditional ideo- logical values as represented in the due process model and the crime control model?

5. Federal law enforcement is limited in scope but subject to considerable public attention. Why?

L A W S O N , A N G E L A 6 8 5 3 B U

State CourtsChapter 4 111

For ty-year-old Gar y Ewing was caught moments after

he attempted to steal three golf clubs, which he had

hidden in his pants leg. Under normal circumstances

Ewing would have been prosecuted for a misdemeanor

violation. But his background of several previous

convictions marked the case as unusual. Thus, the Los

Angeles District Attorney decided to prosecute Ewing

under California’s “three strikes and you’re out” law; as

a result, he was sentenced to 25 years in prison without

parole.

Three strikes laws have become an increasingly

popular reaction to citizen frustrations over crime. As

discussed fur ther in Chapter 14, these laws systemati-

cally increase potential prison sentences for defendants

who have been convicted of violent offenses. In Califor-

nia, however, only one of the convictions must be for

a violent crime, thus adding to the controversy in the

nation’s most populous state. Critics argue that such laws

are fundamentally unfair because the sentence is dispro-

por tionate to the actual crime committed. However, in

Ewing v. California a majority of the U.S. Supreme Cour t

rejected this argument, holding that the sentence was

not dispropor tionate and hence not a violation of the

Eighth Amendment prohibition against cruel and unusual

punishment.

Justice O’Connor’s opinion for the majority stressed

that in enacting three strikes laws, the California

legislature had made a deliberate policy choice that

individuals who repeatedly engage in serious or

violent criminal behavior have not been deterred by

conventional punishments, and therefore society can

protect itself by isolating the defendant. Justice Stevens

and three other justices dissented, arguing that a 25-

year sentence for such a petty offense was “grossly

dispropor tionate” and therefore constituted cruel and

unusual punishment.

These laws increase the volume of criminal prosecu-

tions. Note that Gary Ewing would normally have been

tried in a misdemeanor cour t, where costs are low and

trials are few. Instead, he was prosecuted in a more

costly felony cour t, where trials are more likely and also

more time consuming. In California, for example, felony

jury trials increased by nearly 10 percent after the state

enacted its Three Strikes law (Brown & Jolivette, 2005).

The felony trial rate more than quintupled in Los Angeles

(Schultz, 2000).

Ample evidence shows that such get-tough policies

have resulted in uneven application of the laws. “In

some counties, for example, prosecutors seek Three

Strikes enhancements only in cer tain cases, such as for

cer tain types of crimes that are par ticular problems

in their county or when the current offense is serious

or violent. In other counties, prosecutors seek Three

Strikes enhancements in most eligible cases” (Brown &

Jolivette, 2005). Three Strikes laws also give prosecutors

enormous leverage in forcing a defendant to accept a

plea bargain (Ryan, 2002). The risk of conviction at trial

may even lead an innocent person facing a third strike

to plead guilty.

In addition, Three Strikes laws contribute to great

variations in sentencing. For example, California’s Kern

County is 13 times more likely to send someone

to state prison with a strike enhancement than

San Francisco County is (Brown & Jolivette, 2005).

Finally, these laws have had a tremendous impact on

corrections. Not only have Three Strikes laws increased

the number of pretrial inmates being detained in local

jails, but also they have resulted in a growing and aging

prison population (Brown & Jolivette, 2005; see also

Chapter 14).

Suppor ters of Three Strikes laws point to falling

crime rates as evidence of the law’s effectiveness.

But there is little agreement among researchers about

the these laws’ impact on crime and public safety.

Consider that the “violent crime rate in those counties

least likely to send strikers to prison declined by an

average of 45 percent, while the violent crime rate

in the counties most likely to send strikers to prison

declined by an average of 44 percent” (Brown &

Jolivette, 2005).

EWING CALIFORNIA AND THREE STRIKES LAWSC A S E C L O S E - U P

L A W S O N , A N G E L A 6 8 5 3 B U

read

Condensed_AmericasCourts_Neubauer_ch01

Ch 1: Courts, Crime, and Controversy��

Learning Objectives
Courts and Crime��
Courts and the Criminal Justice System��
An Overview of the U.S. Courts
Identifying the Actors in the Courthouse��
Following the Steps of the Process��
Law on the Books��
Law in Action��
Courts and Controversy��
Media Depictions and Distortions of Criminal Courts��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��

Condensed_AmericasCourts_Neubauer_ch02

Ch 2: Law and Crime��

Learning Objectives
The Basis of Law��
The Common Law Heritage��
The Adversary System��
The Rights of the Accused��
Civil Law Overview��
Criminal Law Overview��
Effects of Criminal Law on the Courts��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��

Condensed_AmericasCourts_Neubauer_ch03

Ch 3: Federal Courts��

Learning Objectives
Basic Principles of Court Organization��
History of the Federal Courts��
U.S. Magistrate Judges��
U.S. District Courts��
U.S. Courts of Appeals��
U.S. Supreme Court��
Specialized Federal Courts��
Federal Judicial Administration��
Caseloads in the Federal Courts��
Consequences of Federal Involvement in the Criminal Justice System��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��

Condensed_AmericasCourts_Neubauer_ch04 27