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

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

ELEVENTH EDITION

AMERICA’S COURTS

AND THE CRIMINAL JUSTICE SYSTEM

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

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

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4 State Courts

Suspected drug traffickers, arrested and handcuffed by the police,

walk past packages containing cocaine in Cali, 185 miles southwest

of Bogota, Colombia. The cocaine, destined for the United States,

was found in brick form, wrapped in brown paper, and hidden

in a Cali apartment. While this arrest occurred in Colombia, the

world’s leading cocaine exporter, similar “drug busts” occur in the

United States, especially in cities and towns along the United States–

Mexican border.

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Chapter Outline HISTORY OF STATE COURTS

Colonial Courts Early American Courts Courts in a Modernizing Society

TRIAL COURTS OF LIMITED JURISDICTION: LOWER COURTS

Cases in the Lower Courts

Courts, Controversy, & Reducing Crime Should DUI and Distracted Driving Prosecutions

Be Increased?

Justice of the Peace Courts Municipal Courts Sentencing in the Lower Courts Problems of the Lower Courts Community Justice

TRIAL COURTS OF GENERAL JURISDICTION: MAJOR TRIAL COURTS

Courts, Law, & Media American Gangster (2007)

INTERMEDIATE COURTS OF APPEALS

STATE HIGH COURTS OF LAST RESORT

COURT UNIFICATION Key Components Analysis

CASE CLOSE-UP: Ewing v. California and Three Strikes Laws

PROBLEM-SOLVING COURTS Drug Courts Domestic Violence Courts Mental Health Courts

TECHNOLOGY SHAPES THE COURTROOMS OF THE FUTURE

CONSEQUENCES OF COURT ORGANIZATION

Decentralization and Choice of Courts Local Control and Local Corruption Uneven Court Financing

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several judicial conferences around the nation, two judges had little trouble identifying the major problem facing the Los Angeles County municipal courts: Soaring drug prosecutions were further crowding jails that were already full. Implementing a solution, however, proved a more troublesome and time-consuming process. To establish a drug court, the judges needed the active cooperation of other judges, the district attorney, the public defender, treatment providers, and the sheriff. To ensure that these agencies had a voice in the process, a coordinating council was formally established. Finally, after months of meeting and planning, two drug courts were created (Torres & Deschenes, 1997).

After reading this chapter, you should be able to:

Outline the four layers of a typical state court system. Describe the types of cases handled by the trial courts of limited jurisdiction. Discuss the similarities and differences between justice of the peace courts and munici- pal courts. List the four primary problems confronting the lower courts in the United States. Identify the types of civil and criminal cases filed in trial courts of general jurisdiction. Explain briefly the differences between a state high court of last resort in states with and without intermediate courts of appeals. List the key components of court unification. Identify how problem-solving courts using therapeutic jurisprudence handle cases. Discuss the consequences of court organization.

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Learning Objectives

little trouble identifying the

After attending

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State CourtsChapter 4 91

and highly specialized English courts were ill suited to the needs of a small group of colonists try- ing to survive on the edge of the wilderness, so the colonists greatly simplified the English procedures. As towns and villages became larger, however, new courts were created so that people would not have to travel long distances to have their cases heard. Moreover, a notion of separation of governmen- tal powers began to emerge. In the early days, the same governmental body often held executive, leg- islative, and judicial powers. The county courts, for example, stood at the heart of American colonial government. In addition to adjudicating cases, they performed important administrative functions. Gradually, different institutions began to perform these tasks.

Diversity was the hallmark of the colonies, with each colony modifying its court system according to variations in local customs, different religious practices, and patterns of commercial trade. Some of these early variations in legal rulings and court structures have persisted and contribute to the great variety of U.S. court systems today (Friedman 2005; Glick & Vines 1973).

In the northern colonies, biblical codes were often adopted. In the South, laws governing slavery were enacted. Overall, public punishments like the pillory and the stocks were commonly used, but the death penalty was used less often than in England.

Early American Courts After the American Revolution, the functions of state courts changed markedly. Their governing powers were drastically reduced and taken over by the legislative bodies. The former colonists dis- trusted lawyers and harbored misgivings about English common law. They were not anxious to see the development of a large, independent judiciary. Thus, state legislatures often responded to unpop- ular court decisions by removing some judges or abolishing specific courts all together.

A major source of political conflict between leg- islatures and courts centered on the issue of mon- etary debtors. Legislators were more responsive to policies that favored debtors, usually small farm- ers. Courts, on the other hand, reflected the views of creditors, often merchants. Out of this conflict over legislative and judicial power, the courts gradually emerged as an independent political institution.

Discussions of state courts usually contain refer- ences to major cases, such as armed robberies and automobile accidents. But this is only part of their workload. State judges must also adjudicate cases involving wives who want divorces from unfaithful husbands and husbands who physically abuse their wives; juveniles who rob liquor stores and juveniles who simply drink liquor. The contemporary realities reflect an increase in the number of cases placed on the dockets of state courts and rising societal expec- tations about the administration of justice—while staffing levels remain constant. Thus, although an earlier generation viewed court reform in terms of a neater organizational chart, contemporary discus- sions are more likely to focus on topics such as find- ing a better way to handle drug cases.

This chapter examines the structure and func- tions of state courts. We begin with a discussion of the development of American courts and then divide the somewhat confusing array of state courts into four levels: trial courts of limited juris- diction, trial courts of general jurisdiction, inter- mediate courts of appeals, and courts of last resort. (Chapter 16 examines the lower courts in depth, and we will discuss juvenile courts in Chapter 17.) We will examine the efforts of court reformers to reorganize state court structure as well as the con- sequences of court organization for the adminis- tration of justice.

HISTORY OF STATE COURTS

Just as American law borrowed heavily from Eng- lish common law, the organization of American courts reflects their English heritage. But the colo- nists and later the citizens of the fledgling new nation that called itself the United States of America adapted this English heritage to the realities of the emerging nation. Issues such as the clash of oppos- ing economic interests, the debate over state ver- sus national power, and outright partisanship have shaped America’s 50 diverse state court systems.

Colonial Courts Early colonial courts were rather simple institu- tions whose structure replicated English courts in form but not in substance. The numerous, complex,

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92 Part I / The Legal Actors

In the northern states, European immigration generated cultural and religious tensions between new arrivals and current residents. In the South, the justice system focused on tracking down escaped slaves. Meanwhile, the nation was steadily moving west, and a unique form of frontier justice emerged.

Courts in a Modernizing Society Rapid industrialization following the Civil War produced fundamental changes in the structure of the American judiciary. Increases in population led to a higher volume of litigation. Just as important, the growing concentration of people in the cities (many of whom were immigrants) meant the courts were faced with a new set of problems. Thus, by the end of the 19th century, the nation had to respond to a new type of social problem—crimes committed by juveniles (see Chapter 17).

The American courts, still reflecting the rural agrarian society of the early 19th century, were inadequate in the face of rising demands for ser- vices (Colburn, 2006; Jacob, 1984). States and locali- ties responded to societal changes in a number of ways. City courts were created to deal with new types of cases in the urban areas, including public drunkenness, gambling, and prostitution. Special- ized courts were formed to handle specific classes of cases (for example, small claims courts and fam- ily relations courts). Additional courts were cre- ated, often by specifying the court’s jurisdiction in terms of a geographic boundary within the city.

The development of courts in Chicago illus- trates the confusion, complexity, and administra- tive problems that resulted from this sporadic

and unplanned growth. In 1931, Chicago had 556 independent courts; the majority were justice of the peace courts, which handled only minor offenses (Glick and Vines, 1973). The jurisdiction of these courts was not exclusive; that is, a case could be brought before a variety of courts, depending on the legal and political advantages that each offered. Moreover, each court was a separate entity; each had a judge and a staff. Such an organizational structure meant that cases could not be shifted from an overloaded court to one with little to do. Each court also produced patronage jobs for the city’s political machines.

The sporadic and unplanned expansion of the American court system has resulted in an often confusing structure. Each state system is different. Although some states have adopted a unified court structure, others still have numerous local courts with overlapping jurisdictions. To reduce confusion, we will examine state courts at four levels: trial courts of limited jurisdiction, trial courts of general jurisdic- tion, intermediate appellate courts, and courts of last resort. Table 4.1 summarizes the tremendous volume of cases decided each year by state courts.

TRIAL COURTS OF LIMITED JURISDICTION: LOWER COURTS

At the first level of state courts are trial courts of limited jurisdiction, sometimes referred to as inferior courts, or more simply, lower courts. The United States has more than 13,500 trial courts of

TABLE 4.1 ■ CASE FILINGS IN STATE TRIAL COURTS IN 2009 Traffic Criminal Civil Domestic Juvenile Total

Unified trial courts 11,412,497 2,437,408 2,620,043 742,197 241,007 17,453,152

Major trial courts of general jurisdiction

3,442,263 3,802,927 6,591,754 3,406,641 1,011,431 18,255,016

Minor trial courts of limited jurisdiction

43,184,929 14,465,449 10,313,815 1,612,290 724,335 70,300,818

Total 58,039,689 20,705,784 19,525,612 5,761,128 1,976,773 106,008,986

SOURCE: Robert C. Lafountain, Richard Y. Schauffler, Shauna M. Strickland, Sarah A. Gibson, and Ashley N. Mason. Examining the Work of State Courts: An Analysis of 2009 State Court Caseloads. Williamsburg, Va: National Center For State Courts, 2011.

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State CourtsChapter 4 93

limited jurisdiction, staffed by about 18,500 judicial officers (LaFountain et al., 2008). The lower courts constitute 85 percent of all judicial bodies in the United States. Six U.S. jurisdictions— California, Iowa, Illinois, Minnesota, the District of Columbia, and Puerto Rico—have unified court systems that do not use trial courts of limited jurisdiction. On the other hand, New York has more than 2,900 and Texas has over 2,230 courts of limited jurisdiction.

Variously called district, justice, justice of the peace, city, magistrate’s, or municipal courts, the lower courts decide a restricted range of cases. Most of these courts are created by city or county governments and therefore are not part of the state judiciary. Thus, lower courts are typically con- trolled only by the local governmental bodies that create them and fund them.

Cases in the Lower Courts The caseload of the lower courts is staggering— more than 70 million cases a year, the overwhelm- ing number of which are traffic cases (more than 43 million in any given year—see Table 4.1). Thus, these are the courts with which the average citizen is most likely to come into contact.

Lower-court judges typically authorize search warrants. In addition, the lower courts are pri- marily responsible for handling the early stages of felony criminal cases. Thus, after an arrest, a judge in a trial court of limited jurisdiction will hold the initial appearance, appoint counsel for indigent defendants, and conduct the preliminary hearing, if applicable. Later, the case is transferred to a trial court of general jurisdiction for trial (or plea) and sentencing. But the bulk of the work in the lower courts involves several types of nonfelony criminal cases and small claims of a civil nature.

Lower courts typically adjudicate two types of nonfelony criminal cases: misdemeanors and ordi- nance violations. Lower courts also adjudicate all of the traffic offenses in a jurisdiction.

Nonfelony Criminal Cases A misdemeanor is a crime punishable by a fine, imprisonment (usually in a local jail, for a period of less than 1 year), or both. Misdemeanors are enacted by state legislative bodies and cover the entire state.

Ordinances, on the other hand, are laws passed by a local governing body such as a city council. They are similar in effect to a legislative statute, but they apply only to the locality, and any fine that is assessed for violations goes to the local govern- ment, not to the state. It is typical for ordinances to prohibit the same types of conduct (for example, disorderly conduct, public drunkenness) as state misdemeanors. Ordinance violations are techni- cally noncriminal, which means that they are easier to prosecute. At times, police prefer to arrest a sus- pect for an ordinance violation because it presents fewer legal obstacles to gaining a conviction.

Traffic Offenses Traffic offenses refer to a group of offenses involv- ing self-propelled motor vehicles. These violations range from parking violations to improper equip- ment. Speeding is the most common traffic offense, followed by driving without a license, and driving while a license is suspended or revoked.

For a time the number of traffic cases heard in the lower courts was declining, but no longer. Dur- ing 9 of the last 10 years the volume of traffic cases has increased (LaFountain et al., 2011). New Jersey leads the nation, with more than 5.6 million traffic cases each year, which translates into 64,824 traffic cases per 100,000 people. Overall, as Table 4.1 illus- trates, traffic cases constitute nearly 55 percent of lower-court caseloads.

Traffic offenses are typically punishable by fines. But because the volume of these cases is quite large, traffic tickets can be big moneymakers for local governments. Indeed, traffic fines and fees are a multi-billion-dollar business in the United States. The money a driver pays for a typical traffic ticket includes both fines and fees. Revenue generated from fines usually goes to the government that has created the court, either the city, the county, or the state. Typically, this revenue stream is then used to pay the expenses of the court itself (judges, clerks, and the like) as well as the prosecutor’s office and the public defender, but not necessarily. Revenue generated from court-imposed fees, on the other hand, goes to the court itself. In some jurisdictions, these fees are used to support important court matters, such as expenses of the public defender’s office and reimbursing jurors. These revenues may also be dedicated to programs we have discussed

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94 Part I / The Legal Actors

Court unanimously ruled that there were no con- stitutional violations because these infractions are civil and not criminal (Mendenhall v. Akron, 2008).

On the other hand, some driving-related offenses, like driving under the influence (DUI), are serious enough that they are prosecuted as misdemeanors. Repeat or extreme cases of DUI are routinely classified as felonies today (see “Courts, Controversy, & Reducing Crime” on page 95).

Small Claims Civil Cases On the civil side, the lower courts decide disputes under a set dollar amount; these cases are often referred to as “small claims.” Small claims courts handle cases involving maximum amounts that range from a low of $2,500 in Arizona, Kentucky, and Rhode Island, to a high of $25,000 in Tennessee (NOLO, 2012). The trend is clearly in an upward direction. The largest number of cases falling under these dollar amounts is debt collection, primarily involving nonpayment for goods purchased or ser- vices rendered. Another major category includes landlord–tenant disputes—mostly claims by land- lords against tenants concerning past-due rent, evictions, and property damage. A smaller number of small claims cases involve alleged property dam- age, largely stemming from automobile accidents.

In most states, streamlined procedures have been adopted to provide quick, inexpensive pro- cessing by dispensing with strict rules of evidence and the right to trial by jury. Accordingly, small claims cases are less formal and less protracted than other civil cases. Yet, as Table 4.1 illustrates, they comprise roughly 53 percent of the civil cases filed each year in the nation’s state courts.

Justice of the Peace Courts The legal system in the United States is largely county-based, and approximately 80 percent of U.S. counties are rural. In most rural areas, the lower courts are collectively called justice of the peace courts. The officeholder is usually referred to simply as a JP. This system of local justice traces its origins to 14th-century England, when towns were small and isolated. The JP system developed as a way to dispense simple and speedy justice for minor civil and criminal cases. The emphasis was decidedly on the ability of local landowners, who

throughout this book, including specialized courts, alternative dispute resolution (ADR) programs, driver education programs, victim-compensation funds, and domestic-violence facilities.

In some jurisdictions, the government makes a considerable profit from court-imposed fines. Over the years, some localities have become known as speed traps. Although this appears to be less true today, there are still some small towns that finance a considerable part of their expenses, including the police department, from tickets issued to out- of-town motorists. In Oklahoma, for example, 15 small towns with populations of fewer than 2,000 people reported more revenue from traffic fines and fees than from sales taxes (Killman, 2006).

When governments, whether state or local, are faced with a budget crisis, one place they often look for additional revenue without having to take the unpopular step of raising taxes is to increase fines and fees on traffic offenses. Florida, for example, facing a major budget shortfall, increased traffic fines by a projected $63 million a year, sparing fur- ther budget cuts for courts, prosecutors, and public defenders (Dunkelberger, 2009). At the local level, in 2009 El Paso County, Colorado, reaped 147 percent more from moving violations than the year before thanks to an increase in traffic fines voted by the state legislature (Zubeck, 2009). Legislatures in over 40 states are likewise looking to solve some of their fiscal crisis in a similar manner (Schwartz, 2009b).

Modern technology is making it even easier for local governments to generate more revenue through traffic enforcement. Across the nation, cit- ies are installing cameras at traffic lights that take pictures of cars that run red lights. The result is often a significant increase in the citations gener- ated by the computer and fines billed. In suburban New Orleans, for example, traffic cameras gener- ated over 140,000 tickets and $11 million in fines. If supporters say traffic cameras increase safety, critics say the red-light system is all about seeing green (Waller, 2008). The use of traffic cameras to collect fines has been being challenged in court (Roesler, 2009). One such lawsuit alleged that using photographic evidence to nab speeders and red- light runners violates basic constitutional rights to due process, including the rights to be presumed innocent, to have a hearing before an impartial judicial official, and to have the opportunity to challenge the evidence. But the Ohio Supreme

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State CourtsChapter 4 95

Drinking and driving has been a problem since the invention of the automobile, but it did not gain recogni- tion as a prominent social concern until the 1980s (Applegate, Cullen, Link, Richards, & Lanza-Kaduce,

1996). The group most responsible for focusing public at- tention on drinking and driving is Mothers Against Drunk Driving (MADD). Depending on the state, offenses related to driving while under the influence of alcohol or drugs is termed “driving under the influence” (DUI) or “driving while intoxicated” (DWI).

MADD is victim-oriented, with many leaders having themselves experienced a family death due to DUI violations. They are closely related to the victims’ rights movement (see Chapter 9). Publicly they are recognized as the leading proponents of increasing the criminal penalties for DUI. The almost sole emphasis on enforcement and punishment differs from other approaches, which stress prevention of early alcohol use and treatment of alcohol dependence as better approaches to prevent drug- and alcohol-related crashes (Hingson, Heeren, & Edwards 2008).

For almost three decades, legislatures—under consider- able pressure from MADD and other groups like it—have passed a variety of “get tough with drunk drivers” laws, including:

Increasing the drinking age to 21 Lowering from .15 to .08 the blood alcohol content

(BAC) level at which a person is presumed legally intoxi- cated

Increasing jail penalties for DWI, particularly for repeat offenders

Mandating that drivers who refuse to take a breathalyzer test will automatically lose their driver’s license

But somehow the get-tough laws recently passed never seem to be harsh enough, so in subsequent years legislatures are called upon to crack down even harder on DUI offenders. And when the threats of even more arrests

and harsher punishments do not seem to be working, the agenda is shifted to technology—mandating that even first offenders be required to install a device that tests drivers and shuts down the car if it detects alcohol (MADD, 2009; Wald, 2006). Evolving legislative agendas are crucial for organizations like MADD because they need to constantly motivate their constituents lest the organization lose mo- mentum and also lose members.

To sociologist Joseph Gusfield, groups like MADD engage in symbolic politics, portraying DUI offenders as villains. The difficulty with this approach is that DUI arrestees reflect a range of social backgrounds, including ordinary citizens and at times even prominent members of the community. Moreover, the range of behavior varies greatly from a person barely at .08 and having caused no accident to those measuring near .30 (comatose for most people) who have killed several people. This analysis of MADD is reinforced by the organiza- tion’s refusal to even discuss lowering the legal drinking age. MADD has long cast underage drinking in black-and-white terms, whereas many college officials see it as impossible gray. Raising the legal drinking age has not stopped student drinking, only displaced it, driving such activity off campus and behind doors, making it even more difficult to deal with (Hoover, 2008).

The absence of criminal stereotypes is compounded by the pervasive role of alcoholic beverages in American social and economic life. As a result, there is considerable societal ambivalence toward drinking and driving. Society is quick to condemn impaired drivers involved in serious accidents, but those who drive after a few drinks often evoke the attitude of “There but for the grace of God go I” (Gusfield, 1981).

The contradictions in societal attitudes toward drinking and driving explain why the enforcement of DUI laws is riddled with loopholes. These contradictions help us understand why actual enforcement of DUI laws blunts the cutting edge of the harsh penalties. Law on the books treats drinking and driving as a serious problem, but law in action sees DUI not as a criminal offense, but as a traffic violation. The end product is not a series of absolutes

COURTS, C O N T ROV E R S Y, & REDUCING CRIME

SHOULD DUI AND DISTRACTED DRIVING PROSECUTIONS BE INCREASED?

Continued on next page

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96 Part I / The Legal Actors

propounded by MADD but rather a negotiated reality (Homel, 1988). With the imposition of tougher laws:

Police do not necessarily make more arrests. Faced with serious crime problems, big-city police forces assign higher priority to violent offenders than to DUI offend- ers (Mastrofski & Ritti, 1996).

Prosecutors are pressured to plea-bargain. Given that local jails are already overcrowded and most defendants are not as villainous as public images suggest, pleas to lesser charges such as reckless driving are often arranged.

Juries are reluctant to convict. As discussed in Chapter 13, if jurors think the penalty is too harsh for the crime, they are less likely to convict.

As more people go to jail for longer times following DUI convictions, the prisons become overcrowded, which ne- cessitates shortening actual sentences (Vermont Center for Justice Research, 1995).

Those who lose their licenses may continue to drive, and those previously convicted may continue to drive while impaired. Indeed, one survey found that more than half the persons in local jails charged with DUI had prior sentences for DUI offenses (Cohen, 1992).

Overall, studies of DUI laws tend to be skeptical of a deterrent effect of get-tough legislation (Fradella, 2000). Typically, new, tougher laws are ushered in with announcements of a major crackdown followed by increased arrests for DWI. But over time, levels of drinking

and driving return to previous levels as the perceived certainty of punishment declines with experience (Homel, 1988; Ross, 1992). For example, one study found “no evidence that lowering the BAC to .08 reduced fatality rates but other approaches like seat belt laws have been effective” (Freeman, 2007).

What works and what does not in reducing DUI fatali- ties is now being applied to a major new highway safety threat—texting while driving (Lowy, 2009). The National Transportation Safety Board has declared that texting, e- mailing, or talking on a cell phone while driving is simply too dangerous to be allowed. Indeed, in recent years a number of major accidents have been blamed on such practices (Lowy, 2011). Yet efforts to curb such dangerous practices quickly run into a basic problem—people engage in such behavior because they like to and because they do not think it is dangerous. Thus, these so-called driver distraction laws are often unpopular. And in a democracy, governmental efforts to enforce unpopular laws (which requires expendi- tures of tax dollars) often proves difficult.

What do you think? Should there be tougher punish- ments for DUI or are current punishment levels about right? Should more efforts be made to arrest and pros- ecute impaired drivers or is the current level of effort about right? And what should be done about drivers who operate vehicles while distracted by their cell phones? Overall, how do punishment and enforcement levels of DUI and distracted-driver laws compare with other social problems, such as domestic violence and drug abuse?

Continued from previous page

served as part-time JPs, to decide disputes on the basis of their knowledge of the local community.

The small-town flavor of the JP system persists today (even in large urban places such as Harris County, Texas, which includes Houston, and Mari- copa County, Arizona, which includes Phoenix). In the past, the vast majority of JPs were part-time non- lawyers who conducted court at their regular place of business—the back of the undertaker’s parlor, the front counter of the general store, or next to the grease rack in the garage. Today, however, JPs tend to be more professional and hold court in a courthouse

or another government building. Yet, many JPs are not trained lawyers and, as a result, they often fail to abide by the rules that are supposed to bind them (Mansfield, 1999).

Many JPs are locally elected officials or mayors of small towns who serve ex officio. The Office of Justice of the Peace in Texas (2009) lists the follow- ing qualifications:

U.S. citizenship At least 18 years of age on the first day of the

term or date of appointment

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State CourtsChapter 4 97

Not mentally incompetent by a final judgment of a court

Not finally convicted of a felony Continual Texas resident for 12 months; pre-

cinct resident for 6 months Have no conviction for giving or offering a

bribe to procure election or appointment

Critics argue that the JP system has outlived its purpose. It may have met the needs of the small, isolated towns of a century ago, but it is out of step with the modern era. The ultimate goal of judicial reformers is to abolish the JP system altogether. A major defect is that JP courts are not part of the state judiciary; they are controlled only by the local gov- ernment bodies that create and fund them. Only recently have judicial conduct commissions (see Chapter 8) been granted the authority to discipline or remove local judges who abuse their offices.

Nor are the activities of the lower courts subject to appellate scrutiny. Rarely are trial courts of lim- ited jurisdiction courts of record; no stenographic record is kept of the witnesses’ testimony or the judges’ rulings. When a defendant appeals, the appeal is heard by a trial court of general jurisdic- tion. This court must conduct an entirely new trial, taking the testimony of the same witnesses and hearing the same attorneys’ arguments as the lower court did. This is called a trial de novo.

Today, many JPs have been replaced with magistrates, who assume the same kinds of responsibilities as traditional JPs but do not use that title. Magistrates are more likely to be appointed than elected and tend to have better training than JPs. For example, North Carolina has phased out its JPs and replaced them with magistrates who are required to have more education and are appointed by the district court (Neubauer & Meinhold, 2013).

Overall, the issues facing rural courts are quali- tatively different from those faced by urban courts (Baehler & Mahoney, 2005). Compared to their big- city counterparts, rural courts exhibit three special features: lower caseloads, lack of resources, and greater familiarity (Bartol, 1996; see also, McKeon & Rice, 2009).

Lower Caseloads Caseloads in rural courts are lighter than those in suburban or urban courts, largely because of higher

crime rates in urban areas as compared with rural ones. This is particularly true of violent offenses, which are more than four times more likely to occurs in urban as opposed to rural areas (Lee, 2008; Thompson, 1996; Weisheit, Falcone, & Wells, 2006). But this does not mean that rural citizens do not experience crime. Over the past decades, rural crimes have increased at the same rate as big-city crimes. And some types of crime—DUI and fraud, for example—are more prevalent in rural areas. Moreover, illegal drug use is increasingly common in rural areas, so much so that that the “scourge of social and criminal problems associated with the methamphetamine epidemic” is putting a stress on rural courts (White, 2008). Treating drug addiction is more difficult in rural areas because of the lack of public transportation, the shortage of treatment facilities, and the additional resources necessary to treat the medical conditions of addicts (Cooper, 2003).

Rural settings present unique problems for domestic violence cases (Pruitt, 2008). And rural areas also tend to harbor hate groups, militia, and others who bill themselves as antigovernment.

Lack of Resources Although rural courts have lower caseloads, this does not mean that they do not face problems pro- cessing their workloads. Rural courts receive less federal money and have a lower local tax base than larger counties (McDonald, Wood, & Pflug 1996; McKeon & Rice, 2009). As a consequence, court facilities are often outmoded and salaries are low.

Lack of resources is a particular problem in criminal cases in which defendants are indigent (Chapter 7). Because few attorneys practice law in rural areas, the defense pool is limited. These built- in limitations have been compounded in recent years by cutbacks in federal funding. Rural areas have been hardest hit by drastic reductions in pub- licly funded legal services for the poor, resulting in ever dwindling access to justice for nonurban resi- dents (Kerrigan, 2008).

Familiarity Whereas big-city courts are characterized by the interface of numerous bureaucracies, in rural areas contacts are invariably one-on-one (Weisheit et al.,

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2006). The active bar consists of a dozen or fewer members, including the prosecutor, the judge, and the lawyer who represents the local government. Often, there are five or fewer sheriff’s deputies and a single probation officer, each of whom is known to the judge. The clerk’s office typically consists of two or three long-term employees.

Not only is the number of actors in rural courts small, but their interactions are frequent and long term. By and large, justice is administered by those who grew up in the community, and they are bound together by long-standing social and fam- ily networks. As a result, rural courts place greater emphasis on informal mechanisms of social con- trol, whereas urban courts are more legalistic and formal (Weisheit et al., 2006).

Although such comity generally creates a friendly social atmosphere, it also can mean “You scratch my back, and I’ll scratch yours.” It’s not always a conscious thing. The members of the courtroom work group are friends; some may even be related. Thus, some point to a lack of an inde- pendent judiciary and a weak adversarial process in many parts of rural America. The danger is that community knowledge is substituted for the Con- stitution. Some specific types of injustices include capricious arrests, unduly high bonds, rubber- stamping prosecutorial decisions, and pressuring defendants into pleading guilty (Glaberson, 2006; Sitomer, 1985; Waldron, 2008). Defendants who are not part of the community (either socially or geo- graphically) may be at a disadvantage. These courts want to preserve the peace and their community’s traditional values; however, doing so sometimes comes at the expense of minorities, the poor, and those considered “outsiders” (Sitomer, 1985; see also, Pruitt, 2006).

Reforming JP Courts Some reformers would unify state courts into a three-tier system, consisting of a single trial court that handles both major and minor cases, an inter- mediate appellate court, and a state high court of last resort. This reform would abolish the office of justice of the peace, require all judges to be lawyers, and eliminate the trial de novo system. The biggest change occurred in California, which began phasing out its JPs after a landmark 1974 decision in which the Supreme Court of California unanimously

held that it was a violation of federal due process to allow a nonlawyer to preside over a criminal trial that could result in incarceration of the defen- dant (Gordon v. Justice Court, 1974). The remaining justice courts (as well as municipal courts) were eliminated by the passage of Proposition 220 in June 1998, which merged all lower courts within the state judicial branch into the superior courts (the courts of general jurisdiction). Under cur- rent California law, all California judges must be licensed attorneys. Notably, the U.S. Supreme Court disagreed with California’s analysis of the Fourteenth Amendment in the landmark case of North v. Russell (1976), which is why JPs still exist in numerous states.

One major obstacle to abolition is the power- ful influence of nonlawyer judges, who do not want their jobs abolished. Another is some peo- ple’s belief that JPs are easily accessible, whereas more formal courts are miles away. For example, JPs are readily available to sign arrest warrants for the police or to try a motorist accused of driv- ing too fast. JP courts are often viewed as peo- ple’s courts, forums where people without much money can go to resolve their problems without the necessity of having a lawyer.

Historically, the low pay and equally low status of the JP did not attract highly qualified person- nel. One survey showed that between a third and a half of California’s lower-court judges were not even high-school graduates (Ashman & Chapin, 1976). Perhaps most shocking of all, the assistant attorney general of Mississippi estimated that “33 percent of the justices of the peace are limited in educational background to the extent that they are not capable of learning the necessary elements of law” (North v. Russell, 1976). Although some states have moved to upgrade the quality of the per- sonnel, others have not. In the state of New York, 75 percent of the JPs are not lawyers, and over the past three decades over 1,100 have been repri- manded by the Commission on Judicial Conduct. Some are not even high-school graduates. The problems that arise are perhaps best summed up in a quote from a JP who, after threatening to jail a woman because her dog was running loose, said: “I just follow my own common sense. And the hell with the law” (Glaberson, 2006). And the problems persist. A rural judge has been cited for levying over $11,000 in illegal fines and at least created the

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appearance he was doing so to provide additional revenue for the city (Gorman, 2009).

High on the judicial reformers’ list of priorities has been upgrading the quality of lower-court judges, and they have made major strides. Many states have instituted training programs for lay judges. For exam- ple, Texas requires all newly selected JPs to attend a training seminar and provides ample oppor tunities for continuing judicial education. Indeed, most states now require judges of limited jurisdiction courts to have graduated from law school and passed the state bar. In 1987, only 44 percent of these courts required judges to be licensed attorneys, but today that num- ber is 52 percent (Langton, 2007). But to many reform- ers, the ultimate goal remains the elimination of nonlawyer judges.

Municipal Courts The urban counterparts of the justice of the peace courts are municipal courts. The overriding reality of municipal courts in the nation’s big cities is the press of cases. Accordingly, “obstacles” to speedy disposition—constitutional rights, lawyers, trials— are neutralized. In a process some have labeled an assembly line, shortcuts are routinely taken to keep the docket moving. Thus, the municipal courts more closely resemble a bureaucracy geared to mass processing of cases than an adjudicative body providing consideration for each case.

The emphasis on moving cases begins when the defendant is arraigned. Instead of addressing defendants individually—a time-consuming pro- cess—municipal court judges often open court by advising defendants of their constitutional rights as a group. Notification of rights is treated by the court as a clerical detail to be dispensed with before the taking of guilty pleas can begin.

Defense attorneys constitute another poten- tial obstacle to the speedy disposition of cases. Although defendants have a theoretical right to be represented by an attorney, in practice the presence of an attorney in the lower courts is rare except for DUI prosecutions, for which defendants face potentially severe penalties. The general absence of defense attorneys reinforces the informality of the lower courts and the lack of attention to legal rules and procedures.

What of those too poor to hire a lawyer? In Arg- ersinger v. Hamlin (1972), the Supreme Court ruled

that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel.” Thus, an indigent defendant may be fined without having a lawyer, but a judge considering imposing a jail term must give the impoverished defendant the opportunity to have a court-appointed counsel at state expense. Compliance, however, has generally been token in nature, meaning that the legal right to counsel in lower courts remains an empty right for many defendants.

In municipal courts, the defendant’s initial appearance is usually the final one. Most people charged with a traffic violation or minor misde- meanor plead guilty immediately. The quick plea represents the fatalistic view of most defendants: “I did it—let’s get it over with.” Realistically, a defen- dant charged with crimes such as public drunken- ness and disorderly conduct probably cannot raise a valid legal defense. What has struck all observ- ers of the lower courts is the speed with which the pleas are processed.

Few trials are held in the lower courts. A defen- dant has a right to a jury trial only if the offense can be punished by imprisonment for more than 6 months (Baldwin v. New York, 1970). The absence of attorneys and the minor nature of the offenses combine to make requests for jury trials rare. If there is a trial, it is a bench trial often conducted in an informal manner.

Assembly-Line Justice and the Courtroom Work Group The courtroom work group often toils together to keep cases moving quickly. Some courts manipu- late bail to pressure defendants into an immediate disposition. During arraignment, each defendant is informed of the right to a full hearing with a court- appointed attorney. But, if the hearing can- not be held for 2 or 3 weeks, during which time the defendant will have to be in jail, it is not sur- prising that the majority of defendants choose to waive their right to counsel in favor of a speedy disposition.

The routines of the lower courts are threatened, however, by uncooperative defendants. Judges and prosecutors dislike defendants who “talk too much.” The accused who unreasonably take up too much of

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the court’s time can expect sanctions. Consider the case of a young, middle-class, white man who made a detailed inquiry into his rights and then gave a relatively lengthy account (roughly 2 minutes) of his alleged offense of vagrancy. Although the defendant was polite, the judge interrupted him with “That will be all, Mr. Jones” and ordered him to jail. Other defendants who “talked too much” received sen- tences that were longer than normal (Mileski, 1971; see also, Mack & Anleu, 2007).

Sentencing in the Lower Courts Because few defendants contest their guilt, the lower courts are more sentencing institutions than true trial courts. The courtroom encounter is geared to making rapid decisions about which sentence to impose. The punishments imposed by lower-court judges include many of those found in the major trial courts—fines, probation, and jail. In the mis- demeanor courts, however, judges can choose alter- native sanctions, including community service, victim restitution, placement in substance-abuse treatment programs, mandatory counseling, and required attendance in education programs such as driver clinics (Meyer & Jesilow, 1997). Despite the diversity of potential sanctions, fines play a pre- dominant role. Few misdemeanor defendants are sentenced to jail.

The sentencing process in the lower courts involves elements of both routinization and indi- vidualization. Lower-court judges define their role as “doing justice”; rather than merely being bound by rules of law, judges use their discretion to achieve what they believe to be a fair and just result (Meyer & Jesilow, 1997). In attempting to achieve justice, lower-court judges use readily identifiable characteristics to sort defendants into categories. In the lower courts, sentencing involves a process of quickly determining group averages. The result is a high degree of uniformity; by and large, a defen- dant gets the same sentence as all others in the same category. To the casual observer, the process appears to be an assembly line, but sentences can also be fitted to the specific defendant. During plea negotiations, there is some individual attention to cases. Despite sentencing consistencies, exceptions are made (Ragona & Ryan, 1983). The most impor- tant factors in both the routinization and the indi- vidualization of sentencing in the lower courts are

the nature of the event and the defendant’s crimi- nal record.

The defendant’s prior criminal record is also a key factor in sentencing. First offenders rarely receive a jail term. Indeed, for petty offenses, first offenders may be released without any penalty whatsoever. Repeaters are given more severe sanc- tions (Mileski, 1971). For example, a study of DUI dispositions in Sacramento, California, highlights the importance of a prior record and the nature of the event (Kingsnorth, Barnes, & Coonley, 1990). For defendants with no prior convictions, the like- lihood of a reduction to a charge of reckless driv- ing increased three to four times. Similarly, the probability of receiving a jail sentence increased dramatically for those with a prior record. The nature of the event (measured by the level of blood alcohol) also played a role. A low level of blood alcohol was of primary importance in the decision to reduce charges from DUI to reckless driving. Similarly, for defendants with a high level of alcohol in their systems, not only was a jail sen- tence much more likely, but also that jail term was probably lengthy. These two factors, of course, operate together. Defendants with no priors and low levels of blood alcohol fared much better than those with prior convictions and high levels of alcohol in their system. Studies like this one, how- ever, rarely enter the public discourse.

Problems of the Lower Courts For decades, reformers have criticized the lower courts, highlighting a variety of problems. Only a shadow of the adversary model of criminal justice can be found in these courts. Few defendants are represented by an attorney. Trials are rare. Rather than the rules of courtroom procedure, informal- ity predominates. And some defendants have been denied fundamental legal rights, including the right to a trial, an impartial judge, and the presump- tion of innocence (Glaberson, 2006). Jail sentences are imposed, sometimes with lightning speed and not always in accordance with law (Ashman, 1975; Glaberson, 2006). In short, practices that would be condemned if they occurred in higher courts are commonplace in the lower courts. Is this justice?

Research over the years has focused on four problem areas: inadequate financing, inadequate facilities, lax procedures, and unbalanced caseloads.

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Inadequate Financing In general, lower courts are funded locally. Sparsely populated counties and small municipalities often lack funds to staff and equip their courts adequately. Even when funds are available, there is no guar- antee that local governments will spend money on the lower courts. In many cities, these courts are expected to produce revenue for local govern- ments. Indeed, some lower courts generate revenues much greater than their operating expenses, yet they still lack adequate courtrooms and other facilities. Rather, the funds go to pay for city services.

Inadequate Facilities Lower-court courtrooms are often crowded and noisy, with 100 or more people forced to spend hours waiting for their minute before the judge. Some are makeshift, hastily created in the side of a store or the back of a garage. In the state of New York, “Some of the courtrooms are not even court- rooms: tiny offices or basement rooms without a judge’s bench or jury box” (Glaberson, 2006). Such courtroom conditions lack dignity and leave a bad impression, suggesting that the judiciary is more interested in collecting the fine for speeding than bothering to do justice. Such inadequate facilities are detrimental to the attitudes of the defendant, prosecutor, judge, and all others involved in the justice process.

Lax Court Procedures Besides singling out inadequate facilities, critics of lower courts often cite lax procedures in the day- to-day administration of these courts. Many trial courts of limited jurisdiction do not have written rules for the conduct of cases. Conventional book- keeping methods are often ignored. How much fine money was collected and how it was spent is often impossible to determine. You can find some information in the city budget but not in the court records; this frustrates any attempts to assess the effectiveness of these courts.

Unbalanced Caseloads Many lower courts are characterized by moder- ate to heavy caseloads, but others appear to have little to do. Because of unbalanced caseloads, some courts have huge backlogs that they are ill equipped

to handle. But because these courts are locally con- trolled, there is no way to equalize the workload.

Unbalanced caseloads are the clearest indica- tion that any generalizations about the problems of the lower courts must be coupled with the observa- tion that the nation’s lowest tribunals are tremen- dously varied. From state to state, between one county and its neighboring county, and even within a city, wide discrepancies exist in the quality of jus- tice rendered. There is no easy way to determine what is wrong (or even what is right) about these courts. Because of the wide disparity, it is best to examine rural justice of the peace courts separately from urban municipal courts. Although they share many problems, they are also sufficiently different to warrant separate treatment.

Community Justice As court activities have been consolidated and streamlined, some of the qualities of locally dis- pensed justice have been lost. As a result, some court reformers continuously seek ways to reestab- lish court–community cooperation.

The central target of these community justice efforts is minor disputes between parties in ongo- ing relationships (domestic partners, neighbors, consumers–merchants, landlords–tenants, employ- ees–employers). Examples include unruly children who annoy neighbors, dogs who defecate on the wrong lawns, owners who neglect their property, and acquaintances who dispute small debts. It is not clear what role the criminal justice system can play in resolving such private disputes. Yet private disagreements between friends, neighbors, and significant others are the steady diet of the police and the lower courts. A trial would only obscure the underlying issues because the problem is either irrelevant or immaterial to the legal action. In such interpersonal disputes, the person who files a com- plaint may be as “guilty” as the defendant. Many of these private disputes are essentially civil matters, yet criminal justice agencies must deal with them to head off the commission of a more serious crime. In addressing problems such as these, mediation programs seek solutions not in terms of a formal finding by a judge, but rather through compromise and bargaining. The goal is to seek long-term solu- tions in the hope the disputants will not return. The two most commonly mentioned types of programs

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are alternative dispute resolution and community courts.

Alternative Dispute Resolution Efforts at court–community collaboration are but one example of a broader movement termed alterna- tive dispute resolution (ADR), which seeks to settle disputes by less adversarial means than the tradi- tional legal processes (Coltri, 2009; Goldberg, Sander, Rogers, & Cole, 2007; Nolan-Haley, 2008). Many ADR programs function as alternatives to going to court. Others involve efforts to settle court cases after they have been filed but before they are tried by a judge. ADR efforts, such as arbitration and mediation, most often focus on civil matters, but nonserious criminal matters may also be included.

The rapid growth of ADR programs has pro- duced a second-generation wave of reforms aimed at improving the qualifications of those who serve in these programs, often through the use of special- ized community courts (Brown, 2005; Pou, 2005).

Community Courts Courts across the nation are searching for ways to reach out in order to be more responsive to the needs of specific communities within their geographical jurisdictions. The phrase “justice community” refers to the range of organizations and people within any specific locale who have a stake in the justice system. It includes judges, court personnel, district attor- neys, public defenders, private attorneys, probation departments, law enforcement personnel, commu- nity organizers, business groups, and others (Borys, Banks, & Parker, 1999; Williams, 2007).

Often these outreach efforts lead to an emphasis on mediation of minor disputes. There are impor- tant organizational differences, though, between court-based mediation and community courts.

Community courts, or community mediation programs, as they have sometimes been called, are government-sponsored (by either court or prosecu- tor) and as a result, these programs receive the bulk of their cases as referrals from criminal justice agen- cies. The dominant goal is to improve the justice sys- tem by removing minor cases from the court. In their view, cases such as simple assault, petty theft, and criminal trespass are prime candidates for mediation and not formal processing in the lower courts.

The “community courts” of today were ini- tially termed “criminal justice–based mediation programs,” also known as “multidoor court- houses” or “neighborhood justice centers.” Many of these dispute-resolution programs began with a primary emphasis on misdemeanor criminal cases and later added civil matters from the local small claims court and other sources. In a sense, they convert criminal matters to civil ones by treat- ing the cases as matters for discussion between the individual disputants and not for processing between the state and the defendant. The Center for Court Innovation (2012a) stresses that commu- nity courts are neighborhood-focused courts that attempt to harness the power of the justice system to address local problems.

The best-known community court in the nation is the Midtown Community Court in New York City. The Midtown experience was born of a pro- found frustration with quality-of-life crime in the neighborhood, particularly prostitution, graffiti, illegal vending, vandalism, and low-level drug offenses (Center for Court Innovation, 2009). Offenders are sentenced to make restitution to the community through work projects in the neighbor- hood: removing graffiti, cleaning subway stations, and sorting cans and bottles for recycling. But at the same time, the court attempts to link offenders with drug treatment, health care, education, and other social services. Perhaps one of the most distinctive features is that the courthouse includes an entire floor of office space for social workers to assist offenders referred by the judge in the courtroom a few floors below. Thus, instead of sending an offender to a distant bureaucracy, the courthouse now incorporates helping institutions within its midst. The Midtown Community Court is serving as a prototype for other jurisdictions as well (Clear & Cadora, 2003).

TRIAL COURTS OF GENERAL JURISDICTION: MAJOR TRIAL COURTS

At the second level of state courts are the trial courts of general jurisdiction, usually referred to as major trial courts. An estimated 2,000 major

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trial courts in the 50 states and the District of Columbia are staffed by more than 11,000 judges (LaFountain et al., 2008). The term general juris- diction means that these courts have the legal authority to decide all matters not specifically delegated to lower courts. The specific division of jurisdiction between the lower courts and the major trial courts is specified by law—statutory, constitutional, or both. The most common names for these courts are district, circuit, and superior. The specific names used in all states are listed in Table 4.2.

The geographical jurisdictions of the major trial courts are defined along existing political bound- aries, primarily counties. Each court has its own support staff consisting of a clerk of court, a sheriff, and others. In most states, the trial courts of general jurisdiction are also grouped into judicial districts or circuits. In rural areas these districts or circuits encompass several adjoining counties. Here, the trial court judges are true generalists who hear a wide variety of cases as they literally ride circuit, holding court in different counties on a fixed sched- ule. More populated counties have only one circuit or district for the area. Here, judges are often spe- cialists assigned to hear only certain types of cases, such as criminal, family, juvenile, or civil. Refer to Table 4.1 for some basic workload data on the major trial courts.

As discussed in Chapter 3, the lion’s share of the nation’s judicial business takes place at the state, not the federal, level. About 35 million cases are filed each year in the major trial courts of the states, more than 95 times the number of similar filings in the federal district courts. Moreover, the types of cases filed in the state courts differ greatly from those filed in the federal courts. Litigants in federal courts are most often big businesses and governmental bodies. In sharp contrast, litigants in state courts are typically individuals and small businesses.

Whereas federal courts hear a high percent- age of cases dealing with white-collar crimes and major drug distribution, state courts decide pri- marily street crimes. The more serious criminal violations are heard in the trial courts of general jurisdiction. The public associates felonies with crimes of violence, such as murder, robbery, and rape, but as Chapter 10 will show, 90 percent of criminal violations involve nonviolent crimes, such as burglary and theft. State courts must also process a rising number of drug-related offenses, ranging from simple possession of small amounts of illicit drugs to the sale of large quantities of cocaine and heroin. Over the past decade and a half, criminal cases filed in general jurisdiction courts (primarily felonies) increased 25 percent. Most criminal cases do not go to trial. Thus, the dominant issue in the trial courts of general juris- diction is not guilt or innocence, but what penalty to apply to the guilty.

TABLE 4.2 ■ MAJOR TRIAL COURTS IN DIFFERENT

STATES Circuit Court

Alabama, Arkansas,a Florida, Hawaii, Illinois, Indiana,b Kentucky, Maryland, Michigan, Mississippi,a Missouri, Oregon, South Carolina, South Dakota, Tennessee,a Virginia, West Virginia, Wisconsin

Court of Common Pleas Ohio, Pennsylvania

District Court Colorado, Idaho, Iowa, Kansas, Louisiana, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Texas, Utah, Wyoming

Superior Court Alaska, Arizona, California, Connecticut, Delaware,a District of Columbia, Georgia, Maine, Massachusetts, New Hampshire, New Jersey, North Carolina, Rhode Island, Vermont,c Washington

Supreme Court New Yorkd

a Arkansas, Delaware, Mississippi, and Tennessee have separate chancery courts with equity jurisdiction.

b Indiana uses superior and circuit courts. c Vermont also uses district courts. d New York also uses county courts. SOURCE: Based on Data from Court Statistics Project. (2012). State Court Structure Charts. Williamsburg, VA: National Center for State Courts. Available online at http://www .courtstatistics.org/Other-Pages/State_Court_Structure_ Charts.aspx.

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AMERICAN GANGSTER (2007)

American Gangster contrasts the wealthy Frank Lucas (Denzel Washington) with the looming poverty of Richie Roberts (Russell Crowe), a Newark

Police Department Detective. Lucas has made a fortune as Harlem’s top heroin dealer largely because he delivers a quality product and has cut out the middleman—he imports his drugs directly from Thailand on U.S. Air Force planes. Roberts, meanwhile, is on the economic brink because of a pending divorce. Financial salvation seems at hand when the detective and his partner discover nearly $1 million in unmarked bills in a car. But he resists temptation and turns in the money, which results in his being ostracized from his precinct. His honesty catches him a break, however, and he is assigned to a newly created drug task force that concen- trates on going after high-level drug suppliers, rather than lower-level dealers.

Lucas usually avoids any flashy behavior that might attract unwanted police attention, but to impress a beauty queen (who will soon become his wife) he attends the Muhammad Ali and Joe Frazier fight in a gaudy chinchilla fur coat. Detective Roberts is at the event and spots this unknown person of great wealth who has easy access to the top crime figures of the area. Richie eventually discov- ers how the drugs are being smuggled into the country and meets with Frank and offers him a deal—go to prison for the rest of your life or get a shorter prison term by cooperating. He chooses cooperation, and his testimony leads to more than 100 drug convictions, the arrest of numerous narcotics cops who have been taking bribes, and the destruction of one of New York City’s mafia families. Lucas has his sentence reduced to 4 years and is placed in the witness protection program (but he cannot stay out of trouble).

American Gangster captures the reality of drug dealing, including racial tensions in Harlem, the wars between rival drug dealers, and the waning influence of Italian-based

mafias in drug dealing. Indeed the movie trailer proclaims that it is based on a true story. But how true is the portrayal? Federal Judge Sterling Johnson, Jr., who served as a special narcotics prosecutor, describes the film as “one percent reality and ninety-nine percent Hollywood.” The real Frank Lucas was “illiterate, vicious, violent, and everything Denzel Washington was not” (CNN, 2008). And in terms of legal ethics, the movie sets an all-time low. Detective Richie graduates from law school and later prosecutes Lucas and still later serves as his defense attorney. This creates a conflict of interest that would not be allowed in any real court.

The deal Lucas strikes with the prosecution raises some troubling policy questions. At one point he is described as the “most dangerous man walking the streets of our city.” Yet he is allowed back on the streets for turning in lower-level criminals. Drug dealers are depicted very differently in the 1971 movie The French Connection, which stars Gene Hackman as a New York detective trying to break up an organized crime gang smuggling heroin from Turkey through the French port of Marseilles. The French Connection presents no moral or policy ambiguities; it is an action movie about a good cop arresting bad guys. Thus, simply busting big-time drug dealers is the end in and of itself. The movie Traffic (2000), however, highlights the moral ambiguities of American drug policy. It sparked a national debate on drug policy by offering three separate narratives: the morally hazy world of drug cops in Tijuana, Mexico; the political ambiguity of drug policy makers in Washington, D.C.; and the real source of wealth in a socially snobby country club of La Jolla, California.

American Gangster shows how difficult it is to put a face on the complex issues involved in the War on Drugs. Publicly elected officials treat the War on Drugs like a third rail—touch it and you die. Privately, however, many government officials (some even in law enforcement) have serious doubts that this war is winnable. Amidst these con- flicting assessments, America’s courts must process approximately 1.7 million drug arrests each year.

COURTS,

LAW,

& MEDIA

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INTERMEDIATE COURTS OF APPEALS A century ago, state court systems included only a single appellate body—the state court of last resort. Like their federal counterparts, however, state courts have experienced a significant growth in appellate cases that threatens to overwhelm the state high court of last resort. State officials in 39 states have responded by creating intermediate courts of appeals (ICAs) (Exhibit 4.1). The only states that have not followed suit are sparsely

populated ones with a low volume of appeals. The ICAs must hear all properly filed appeals. Subse- quent appeals are at the discretion of the higher court. Thus, a decision by the state’s intermediate appellate court is the final one for most cases.

The structure of the ICAs varies in several ways. Twenty-four states organize their ICAs on a statewide basis and the rest on a regional basis. In most states, these bodies hear both civil and criminal appeals. Alabama and Tennessee, however, have separate courts of appeals for civil and criminal cases. Like their federal counterparts, these courts typically use rotating three-judge panels for deciding cases.

Appeals Court Massachusetts (25)

Appellate Court Connecticut (9), Illinois (52)

Appellate Division of Superior Court New Jersey (34)

Appellate Divisions of Supreme Court New York (55)

Appellate Terms of Supreme Court New York (15)

Commonwealth Court Pennsylvania (9)

Court of Appeals Alaska (3), Arizona (22), Arkansas (12), Colorado (16), Georgia (12), Idaho (3), Indianaa (15), Iowa (9), Kansas (14), Kentucky (14), Michigan (28), Minnesota (16), Mississippi (10), Missouri (32), Nebraska (6), New Mexico (10), North Carolina (15), Oregon (10), South Carolina (9), Tennesseeb (12), Utah (7), Virginia (11), Washington (22), Wisconsin (16)

Courts of Appeal California (105), Louisiana (53), Ohio (68)

Courts of Appeals Texas (80)

Court of Civil Appeals Alabama (5), Oklahoma (12)

Court of Criminal Appeals Alabama (5), Tennessee (12)

Court of Special Appeals Maryland (13)

District Court of Appeals Florida (62)

Intermediate Court of Appeals Hawaii (4)

Superior Court Pennsylvania (15)

None Delaware, District of Columbia, Maine, Montana, Nevada, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, West Virginia, Wyoming

INTERMEDIATE COURTS OF APPEALS (NUMBER OF JUDGES IN DIFFERENT STATES)

aTemporary b Civil only SOURCE: Bureau of Justice Statistics. 2007. State Court Organization, 1987–2004. Washington, DC: U.S. Department of Justice.

Exhibit 4.1

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106 Part I / The Legal Actors

The ICAs handle the bulk of the caseload in the appellate system, and their workload has increased dramatically in the past decade. States have created these courts and given them additional judgeships in hopes of relieving the state high courts of last resort of crushing caseloads, only to find that the ICAs experience the same problems.

ICAs will be covered in more detail in Chapter 16, but in general, intermediate courts of appeals engage primarily in error correction; they review trials to make sure that the law was followed. The overall standard is one of fairness—the defendant is entitled to a fair trial but not a perfect one. As a result, defendants find that appellate courts are markedly unsympathetic to their legal arguments; only a small percentage of such appeals results in a victory. Moreover, those victories are often tem- porary ones, since the handful of defendants who win the right to a new trial are often reconvicted during their second trial. Thus, although the pub- lic perceives that appellate courts are prone to release defendants on technicalities, the opposite is true.

As we will shortly see, the intermediate courts of appeals represent the final stage of the process for most litigants. Very few cases make it to the appellate court in the first place, and of those cases,

only a handful will be heard by the state’s highest appellate court.

STATE HIGH COURTS OF LAST RESORT

The court of last resort is generally referred to as the state high court of last resort. The specific names vary from state to state, and to further complicate the picture, Texas and Oklahoma have two courts of last resort—one for civil appeals and another for crimi- nal appeals. The number of state high court judges varies from a low of five to as many as nine (see Exhibit 4.2). Unlike the intermediate appellate courts, these courts do not use panels in mak- ing decisions; rather, the entire court participates in deciding each case. All state high courts of last resort have a limited amount of original jurisdic- tion in dealing with matters such as disciplining lawyers and judges.

In states without an intermediate court of appeals, however, the supreme court has no power to choose which cases will be placed on its docket; in most other states, the high court has a purely discretionary docket. As with the U.S. Supreme Court, the state high courts of last resort select only

Supreme Court Alabama (9), Alaska (5), Arizona (5), Arkansas (7), California (7), Colorado (7), Connecticut (7), Delaware (5), Florida (7), Georgia (7), Hawaii (5), Idaho (5), Illinois (7), Indiana (5), Iowa (8), Kansas (7), Kentucky (7), Louisiana (7), Michigan (7), Minnesota (7), Mississippi (9), Missouri (7), Montana (7), Nebraska (7), Nevada (7), New Hampshire (5), New Jersey (7), New Mexico (5), North Carolina (7), North Dakota (5), Ohio (7), Oklahomaa (9), Oregon (7), Pennsylvania (7), Rhode Island (5), South Carolina (5), South Dakota (5), Tennessee (5), Texasa (9), Utah (5), Vermont (5), Virginia (7), Washington (9), Wisconsin (7), Wyoming (5)

Court of Appeals District of Columbia (9), Maryland (7), New York (7)

Supreme Judicial Court Maine (7), Massachusetts (7)

Court of Criminal Appeals Oklahomaa (5), Texasa (9)

Supreme Court Of Appeals West Virginia (5)

COURTS OF LAST RESORT IN DIFFERENT STATES (NUMBER OF JUDGES)

Exhibit 4.2

a Two courts of last resort in these states. SOURCE: Bureau of Justice Statistics. 2007. State Court Organization, 1987–2004. Washington, DC: U.S. Department of Justice.

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a few cases to hear, but these cases tend to have broad legal and political significance. The ability of most state high courts of last resort to choose which cases to hear and which cases not to hear makes them important policy-making bodies. Whereas intermediate appellate courts review thousands of cases each year looking for errors, state high courts of last resort handle a hundred or so cases that present the most challenging legal issues arising in that state.

Nowhere is the policy-making role of state high courts of last resort more apparent than in decid- ing death penalty cases. In most states with death penalty laws, if the judge imposes the death pen- alty, then the case is automatically appealed to the state’s highest court, thus bypassing the interme- diate courts of appeals. Because of the high stakes, state high courts of last resort expend considerable time and energy in reviewing these cases. The out- comes of these reviews, though, vary greatly from state to state; some state high courts of last resort rarely overturn a death penalty decision, but oth- ers are very prone to reverse it.

The state high courts of last resort are the ulti- mate review board for matters involving interpre- tation of state law. The only other avenue of appeal for a disgruntled litigant is the U.S. Supreme Court, but successful applications are few and must involve important questions of federal law. Chapter 16 will probe why many state high courts of last resort have in recent years emerged as sig- nificant governmental bodies. In state after state, the supreme courts are deciding issues that have a major impact on the law and government of their jurisdiction.

COURT UNIFICATION

Historically, court reform focused on organiza- tional structure. To court reformers, the multiplic- ity of courts is inefficient (because judges cannot be shifted to meet the caseload needs of other courts) and also inequitable (because the administration of justice is not uniform). Thus, traditional court reform has most often identified with implement- ing a unified court system. Figure 4.1 provides a diagram of a state (Florida) with a unified court system; Figure 4.2 offers a contrasting diagram of a state (Texas) with limited unification.

Key Components The principal objective of a unified court system is to shift judicial administration from local control to centralized management. The loose network of independent judges and courts is replaced by a coherent hierarchy with authority concentrated in the state capital. Although court reformers differ about the exact details of a unified court system, their efforts reflect five general principles: a sim- plified court structure; centralized administration, rule making, and judicial budgeting; and statewide financing (Berkson & Carbon, 1978).

Simplified Court Structure Court reformers stress the need for a simplified court structure with a simple, uniform court struc- ture for the entire state. In particular, the multiplic- ity of minor and specialized courts, which often have overlapping jurisdiction, would be consoli- dated in one county-level court. This would mean that variations between counties would be elimi- nated and replaced by a similar court structure throughout the state. Overall, the court reformers envision a three-tier system: a state court of last resort at the top, intermediate courts of appeal where the volume of cases makes it necessary, and a single trial court.

Centralized Administration Reformers envision centralized administration, with the state high court of last resort, working through court administrators, providing leader- ship for the state court system. The state court system would embody a genuine hierarchy of authority, in which local court administrators would be required to follow the policy directives of the central office and would in turn be held accountable by the state high court of last resort. Thus, a centralized state office would supervise the work of judicial and nonjudicial personnel.

Centralized Rule Making Reformers argue that the state high courts of last resort should have the power to adopt uniform rules to be followed by all courts in the state. Exam- ples of centralized rule making include procedures

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Figure 4.1 ■ Example of a State with a Unified Court Structure: Florida Court Structure

for disciplining errant attorneys and time standards for disposing of cases. In addition, judges could be temporarily assigned to other courts to allevi- ate backlogs and reduce delay. Centralized rule making would shift control from the legislature to judges and lawyers.

Centralized Judicial Budgeting Centralized judicial budgeting would give the state judicial administrator (who reports to the state high court of last resort) the authority to prepare a single budget for the entire state judi- ciary and send it directly to the legislature. The

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Figure 4.2 ■ Example of a State with Limited Court Unification: Texas Court Structure

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governor’s power to recommend a judicial budget would be eliminated. Likewise, lower courts would be dependent on the state high court of last resort for their monetary needs and unable to lobby local representatives directly. Thus, decisions about allo- cating funds would be made at the state and not the local level.

Statewide Financing Along with centralized judicial budgeting, reform- ers argue for the adoption of statewide financing of the judiciary. Although courts are mandated by state law, they are often financed in whole or in part by local governments. Given that courts are often not a high priority for local government, they end up with less-than-adequate local financing. State government, in contrast, has more money and could better support necessary court services.

With the recent economic downturn across the nation, the issue of how to fund the courts has taken on new significance. Faced with mounting deficits, many states are cutting funding for the courts, with potentially serious consequences. In the words of the American Bar Association (2009), judicial inde- pendence is “a value that is indispensable to our democratic republic. A large part of that indepen- dence lies in courts having consistent, adequate funding to deliver justice.” Yet at the same time, public demands for court services are increasing. Faced with these realities, court leaders are being encouraged to examine zero-cost or very-low-cost innovations (Broccolina & Zorza, 2008).

Analysis The assumptions and philosophy of traditional notions of court reform have been called into serious question. Some scholars believe that the old princi- ples of court reorganization hamper creative think- ing about the direction court reform should take (Flango, 1994; Lamber & Luskin, 1992). One concern is that the concept of a unified court system does not allow for a desirable diversity. The standard blueprint of court organization fails to consider, for example, important differences in the working environment of courts in densely populated cities as opposed to those in sparsely inhabited rural areas.

Critics have also charged that traditional con- cepts of court reform stress abstract ideals of court organization (law on the books) to the neglect of

the realities of the courthouse (law in action) (Baar, 1980). As a result, court reformers suffer from elite bias. Their perceptions of the problems of the court- house extend only to cases with policy significance involving major community actors and rarely extend to ordinary cases affecting average citizens. In the biting words of Laura Nader (1992), court reformers talk about ridding the courts of “garbage cases,” which include domestic violence, substance abuse, and neglected children. The solutions pro- posed by lawyer elites seem unresponsive to the realities of ordinary cases heard in the nation’s trial courts. A judiciary with a clearly delineated orga- nizational structure staffed by judges selected on the basis of merit (see Chapter 8) will face the same problems of large caseloads and types of cases— juvenile delinquency, for example—that are dif- ficult to decide. Moreover, courts, no matter how well organized, must cope with public sentiments demanding getting tough with crime (see “Case Close-Up: Ewing v. California and Three Strikes Laws”).

PROBLEM-SOLVING COURTS

Contemporary court reform concentrates more on improving the quality of justice meted out by American courts and less on providing a neat orga- nizational chart. The modern agenda of court reform includes topics such as reducing trial court delay (Chapter 5), improving the efficiency of the appel- late courts (Chapter 16), creating alternative dispute resolution, and establishing community courts.

Contemporary court reform is often identified with problem-solving courts (Wolf, 2007). Although problem-solving courts vary considerably from place to place, they all emphasize addressing the underly- ing issue of the individual appearing in court. More- over, these judicial bodies actively collaborate with service providers (Casey & Rottman, 2004).

Contemporary court reform involves the cre- ation of specialized courts to deal with specific types of cases. Initially, these were called “designer courts” or “boutique courts,” indicating their spe- cialized nature. Common examples include drug court, domestic violence court, juvenile drug court, gun court, DUI court, elder court, mental health court, and reentry court (which deals with prison- ers reentering the community). More recently, these

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Forty-year-old Gary 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 further 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- portionate to the actual crime committed. However, in Ewing v. California a majority of the U.S. Supreme Court rejected this argument, holding that the sentence was not disproportionate 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 disproportionate” 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 court, where costs are low and trials are few. Instead, he was prosecuted in a more

costly felony court, 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 certain cases, such as for certain types of crimes that are particular 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).

Supporters 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 LAWSCASE CLOSE-UP

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officers, monitored offenders’ progress by requir- ing participants to report periodically to the court. The judge assessed offenders’ progress and moved them through the phases of the program.

Since the advent of the first drug court, these specialized courts have grown to become an impor- tant part of the criminal justice system (Belenko, 2001). There are more than 2,600 drug courts oper- ating in the 50 states today (National Drug Court Resource Center, 2011). Early drug courts had the simple goal of reducing drug use and recidivism by monitoring offenders through weekly court visits, drug testing, and supervision by probation officers and judges alike. It soon became clear that offend- ers needed more in-depth treatment in order to change behavior patterns so that long-term goals of reduced criminal activities and drug use could be maintained after the offender was out of the pro- gram (Belenko, 2001).

The Effectiveness of Drug Courts Initial evaluations of early drug courts found favor- able rates of success. For example, as compared with defendants not in the program, offenders in the Dade County drug court treatment program had lower incarceration rates, less frequent rear- rests, and longer times to rearrest (Goldkamp & Weiland, 1993). More sophisticated evaluations, however, have highlighted the complex impact of drug courts. In Washington, D.C., participation in a drug court treatment program has been relatively poor—only 41 percent of those eligible chose to par- ticipate. Moreover, completion of the program took much longer than anticipated; cases were open an average of 11 months as opposed to the 6 months estimated (Harrell, Cavanagh, & Roman, 2000).

More recent studies support the earlier con- clusions that drug courts have a positive impact (Downey & Roman, 2010; Huddleston & Marlowe, 2011). Most drug court studies have found:

that overall treatment retention is substantially better than in other community- based treat- ment programs for offenders (Belenko, 2001; Springer & Roberts, 2007; Goldkamp, White, & Robinson, 2001; U.S. Government Accountabil- ity Office, 2005);

lower recidivism rates from drug-court par- ticipants than for comparison groups (Banks &

specialized courts have been said to rely on thera- peutic jurisprudence (Amendola, 2010; Rosenthal, 2002; Wexler & Winick, 1996). Such courts have five essential elements:

1. Immediate intervention 2. Nonadversarial adjudication 3. Hands-on judicial involvement 4. Treatment programs with clear rules and struc-

tured goals 5. A team approach that brings together the

judge, prosecutors, defense counsel, treatment provider, and correctional staff (Rottman & Casey, 1999)

Drug courts, domestic violence courts, and mental health courts are prime examples of courts based on the concept of therapeutic jurisprudence.

Drug Courts The emergence of drug courts illustrates how the judiciary is responding both to increases in caseload and changes in the types of cases being brought to court. In the mid-1980s, drug caseloads increased dra- matically in courts throughout the country. As a cen- terpiece of the so-called war on drugs, elected officials across the nation backed efforts to arrest, prosecute, and imprison persons possessing or selling illegal drugs. As a result, arrests for drug-related violations represent the largest single category of police activity, particularly in the nation’s major urban areas.

Faced with a rapidly increasing caseload of types of cases that did not seem to fit the traditional criminal court model, courts began to experiment with new ways of processing cases by creating drug courts. Rather than viewing these defendants as criminals, they saw them as persons with an addiction problem. Drug courts emphasize treatment. The assumption was that treatment would reduce the likelihood that convicted drug offenders would be rearrested.

The first drug court was created in 1989 in Dade County, Florida Circuit Court (in which the city of Miami is located). To be eligible, defendants must have had no prior felony convictions, must have been charged with possession only (not sale), and must have admitted their drug problem and requested treatment. Such offenders were diverted into treatment. A judge, in addition to probation

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Gottfredson 2004; Belenko, 2001; Gottfredson, Najaka, & Kearley, 2003; Springer & Roberts, 2007); and

a net cost savings to the criminal justice system by providing offenders with treatment that is much less expensive than incarcerating them (Aos, Miller, & Drake 2006; Belenko, 2001; Carey, Finigan, & Pukstas, 2008; Logan, Hoyt, McCollister, French, Leukefeld, & Minton 2004; Springer & Roberts 2007).

But the impact of drug courts varies by time, manner, and place (Goldkamp, 2002). Moreover, the drug-court model appears to be relatively inef- fective when applied to drunk drivers (Bouffard & Richardson 2007). Completion of drug court reduced recidivism among non-DUI offenders but there was no significant reduction in recidivism among chronic DUI offenders (Bouffard, Richard- son, and Franklin, 2010).

Juvenile Drug Courts Some jurisdictions have extended the therapeutic jurisprudence model of drug courts to youthful offenders (Belenko, 2001). Although dramatically fewer in number than adult drug courts, juvenile drug courts “are quickly emerging as one of the most popular means of diversionary treatment within the juvenile justice system” (Miller, Ventura- Miller, and Barnes 2007, pp. 246–247).

Juvenile drug courts use judicial and multiagency teams (e.g., prosecutors, defense attorneys, treatment providers, school officials, etc.) to provide intensive and continuous supervision of participants to ensure “compliance with the court-imposed conditions of participation,” such as “treatment program partici- pation, school attendance, drug testing, community service, court appearances” (Cooper, 2001, p. 6). Fre- quent court appearances for active judicial involve- ment in case management, juvenile accountability, and a behaviorally based system of rewards and sanctions (especially using community service and curfews) are all key differences from regular juvenile courts. In addition, juvenile drug courts offer earlier and “far more comprehensive assessments of offend- ers based on an integration of cumulative informa- tion, a heavy concentration on family functioning, and highly coordinated services for offenders and their families” (Gilmore, Rodriguez, & Webb, 2005, p. 289; see also, Chassin, 2008).

Most studies have reported that juvenile drug- court participation reduced recidivism (Applegate & Santana, 2000; Shaffer, 2006; Shaw & Robinson, 1998). However, the positive effects of participation in juvenile drug courts appear to “decline when court supervision ends” (Chassin, 2008, p. 170; see also, Belenko & Dembo 2003; Flanzer, 2005). And, the efficacy of drug-court interventions for juve- niles is significantly affected by the length of drug use, whether the juvenile is involved in other types of criminal offenses, and the presence of co-occur- ring psychiatric disorders (Fradella, Fischer, Klein- peter, & Koob, 2009).

Domestic Violence Courts Domestic violence courts comprise another type of problem-solving court being created in a growing number of communities across the nation. Domes- tic violence was once considered a private family matter but is now viewed as a significant social problem (Chapter 9). Changes in how police and prosecutors respond to domestic violence cases have produced changes in how courts respond as well.

In domestic violence courts, the emphasis is on integration. These courts respond to a histori- cal problem in the court system, which required domestic violence victims and their families to appear in different courts before multiple judges, often located in different courthouses in differ- ent parts of the county. As a result, a single family could be involved in several courts before several different judges and face the possibility of conflict- ing court orders (Casey & Rottman, 2004).

Today, practices of domestic violence courts typically include the following:

A dedicated judge presides over all phases of domestic violence cases, and related cases are consolidated.

Ongoing monitoring by judge and staff enables the court to hold offenders accountable.

A resource coordinator prepares information for the judge and is the court’s primary liaison with the community.

On-site victim advocates serve as the primary linkage to social service agencies.

The emphasis is on a coordinated community response that includes information sharing,

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Mental Health Courts Mental health courts (MHCs) are a third type of problem-solving court using the concept of thera- peutic jurisprudence. Over the past several years there has been a growing awareness that the men- tally ill are overrepresented in the criminal justice system. It is estimated that anywhere from 14.5 percent to 31 percent of those in jail suffer from serious mental illness, a rate that is many times that of the general adult population (Steadman, Osher, Robbins, Case, & Samuels, 2009). Indeed, Los Angeles County Jail and New York’s Rikers Island held more people with mental illness than the largest psychiatric hospital inpatient facilities in the United States (Council of State Governments Justice Center, 2008). Not only do mentally ill defendants present special security risks in courts and jails, but they are also more likely to repeatedly recycle through the criminal justice system (Mental Health America, 2012).

The first MHC was established in 1997; since then, a growing number of courts across the nation are establishing MHCs that are remarkably diverse. For example, Mann (2011) found that 85 percent of MHCs accept misdemeanor cases; 75 percent of MHCs handled felony cases (although only 20 percent accepted violent felony cases and only 1 percent handled seriously violent felony cases); and the eligible clinical diagnoses for participation varied significantly across MHCs. Nonetheless, these courts exhibit several key features:

A specialized court docket is created. Mental health screening is available for accept-

able candidates. Mentally ill defendants voluntarily enroll in

the specialize court which, in turn, processes their cases on the basis of therapeutic jurispru- dence rather than the adversary style of justice.

Judges supervise a community-based treat- ment plan for each defendant, involving a team of court staff and mental health professionals.

The judge and probation officials periodically review the progress of each defendant and use a system of incentives for compliance and sanctions for noncompliance with the conditions imposed by the court.

Criteria define a participant’s completion (sometimes called “graduation form”) of the

education, and coordination across the criminal justice system (Center for Court Innovation, 2012c).

Operating within this general framework, more than 200 specialized domestic violence courts have been created across the nation and a similar num- ber internationally (Labriola, Bradley, O’Sullivan, Rempel, & Moore, 2009). One example is Manhat- tan’s Specialized Domestic Violence Court (Center for Court Innovation, 2009). By removing domestic violence cases from mixed-docket courts, this spe- cialized court seeks to increase defendant account- ability, promote victim safety, and better coordinate the activities of governmental agencies that respond to domestic violence. Also called “integrated domes- tic violence courts,” they are dedicated to the one- family–one-judge concept. Thus, a single judge handles multiple criminal, family court, and divorce cases involving the same defendant (Peterson, 2004).

Most evaluations of domestic violence courts suggest that they are successful in reducing reof- fenses of domestic violence. For example, an eval- uation of a California domestic violence court found a 62 percent completion rate for a year- long program and lower recidivism rates among program completers versus noncompleters— specifically 15 percent vs. 25 percent for domestic violence arrests (Petrucci, 2010). Other evaluations of domestic violence court programs in Albuquerque, New Mexico (Pitts, Givens, & McNeeley, 2009) and Lexington County, South Carolina (Gover, McDon- ald, & Alpert, 2003) similarly found that program completers were significantly less likely to receive subsequent charges for domestic violence, other violent offenses, or any other criminal offense. In contrast, an evaluation of Manhattan’s Specialized Domestic Violence Court showed mixed results: Conviction rates did not increase, cases were dis- posed of more quickly, defendants were more likely to be placed in a batterer-intervention program, and rearrests increased (Peterson, 2004). The mixed results from evaluations of different domestic vio- lence courts may be because completion rates vary dramatically, often as a function of the length of the program (Petrucci, 2002). Still, the evidence indi- cates that these courts enhance victims’ and defen- dants’ satisfaction with the court process and deliver more services to victims and their families (Casey & Rottman, 2004).

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Courtroom 23 is billed as the courtroom of the future and is the outgrowth of an earlier effort known as Courtroom 21. Launched in 1993 as a joint effort of the National Center for State Courts and the William and Mary School of Law, Court- room 21 was the most technologically advanced courtroom in the world (National Center for State Courts, 2012). As technology has evolved, so has the notion of a high-technology courtroom. In the words of DC Superior Court Judge Herbert Dixon (2011), these changes have not always been easy. “Traditional litigators and judges whose skills were honed without the newfangled gadgets were not the fastest to embrace new technologies.” As time passed, however, the number of old-time liti- gators diminished and interest in using new tech- nologies increased.

Based on conducting several complex criminal trials, Judge Dixon highlights several important features of the courtrooms of the future. Evidence cameras, which project images of paper documents and the like, he labels as essential. Witnesses can readily mark vital aspects of the evidence and jurors can easily see it as well. Laptop connections are likewise of key importance. Lawyers can pres- ent digital images and sounds without carrying the evidence physically to the courtroom. Overall, jurors rated the use of courtroom technology very positively (Dixon, 2011).

Beyond trials, technology is shaping the future of courts in another important way, through elec- tronic communications. Termed cyber-courts or virtual courts, judges can resolve disputes through electronic communications without the lawyers and parties being physically present. And at the discretion of the judge, proceedings of the cyber- court may be open to the public on the Internet (Global Courts, 2012). In the not-too-distant future, bail hearings and routine arraignments may be rou- tinely conducted in a virtual court.

CONSEQUENCES OF COURT ORGANIZATION

What activities legislatures define as illegal has a major impact on the courts. In turn, how the courts are organized and administered has a profound effect on the way cases are processed and on the type of justice that results.

program (Council of State Governments Justice Center, 2012; Mann, 2011).

Judge Matthew D’Emic (2009) of the Brooklyn Mental Health Court writes that in the 7 years of that court’s operation, over 275 persons have suc- cessfully graduated. But he is quick to point out that public policy should not be driven by anecdotes of individual successes, but rather by research that systematically evaluates the effectiveness of the growing number of MHCs. Such evaluations must take into account the difficult population that these courts work with as well as the difficulty of coor- dinating efforts not just within the criminal justice system but also in the mental health community.

The few empirical evaluations of MHCs to date generally found that these specialized courts are effective (Herinckx, Swart, Ama, Dolezal, & King, 2005; McNiel & Binder, 2007; Moore & Hiday, 2006; Trupin & Richards, 2003). For example, Dirks- Linhorst and Linhorst (2012) found that the rearrest rate of 351 defendants who successfully completed an MHC program was 14.5 percent, as compared with 38 percent among defendants negatively ter- minated from the program and 25.8 percent among defendants who chose not to participate. But at least two studies have concluded that there is lit- tle difference in reoffending levels between MHC graduates and those who do not complete such a program (Christy, Poythress, Boothroyd, Petrila, & Mehra, 2005; Cosden, Ellens, Schnell, & Yamini- Diouf, 2005). The intense variations in the MHC programs may be responsible for these divergent findings.

TECHNOLOGY SHAPES THE COURTROOMS OF THE FUTURE

From the outside looking in, Courtroom 23 in Orange County, Florida, looks like your typical courtroom— a jury box, tables for the lawyers, the judge’s bench and the like. But from the inside looking out, Court- room 23 hardly resembles a traditional courtroom— computer monitors are everywhere, microphones are located around the courtroom, and video monitors are in plain view. Welcome to the modern courtroom, where technology is an integral part of the design, not a retrofitted feature.

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The locally administered criminal justice sys- tem has also been marked by pockets of injustice. At times, the police and the courts have been the handmaidens of the local economic elite. In the South, historically, the police and the courts hin- dered efforts to exercise civil rights by arresting or harassing those who sought to register to vote, eat at whites-only lunch counters, or simply speak up to protest segregation. The dual court system has provided a safety valve for checking the most fla- grant abuses of local justice. Often, it is federal— not state or local—officials who prosecute corrupt local officials.

Uneven Court Financing The combination of court decentralization and local control of the judiciary results in uneven court financing. As discussed earlier, only a few states have adopted statewide financing of courts. Thus, in most states, courts are financed by a some- times bewildering array of state taxes, local taxes, court fees, and fines. During normal times, this patchwork system of financing courts provides limited funding for the judiciary. In the words of David Boies, cochair of a commission formed by the American Bar Association to study court bud- get issues, “The justice system’s funding has been decreasing in constant dollars for at least two decades” (Schwartz 2011, p. A18).

During a nationwide financial crisis, like the one that began in 2008, cutbacks in funding the courts have resulted in major reductions in ser- vices. A 30-percent reduction in state general funds over a 3-year period in California means that citi- zens of the nation’s largest state will face delays in finalizing divorces, prolonged custody battles, and extended waits for lawsuits to go to trial (Dolan & Kim, 2011). Steep reductions in overtime pay for court employees in the state of New York means that a 3-day trial will now take 4 days, thus backing up the justice system even further (Caher & Kesh- ner, 2011). Across the nation, getting cases, civil or criminal, to trial will prove to be a struggle.

Economic downturns not only reduce court funding but also increase demands for court ser- vices. Financial crises, for example, typically result in increased filings of bankruptcy petitions in fed- eral courts (Chapter 3) and mortgage foreclosure cases in state courts (Sommer & Li, 2011).

Decentralization and Choice of Courts Although people often talk about the Ameri- can legal system, no such entity exists. Instead, America has 51 legal systems—the federal courts and separate courts in each of the 50 states. Chap- ter 2 stressed the significant differences in the law among these separate systems. As a result, lawyers sometimes try to maneuver cases so that they are heard in courts that are perceived to be favorable to their clients. For example, some criminal offenses violate both state and federal laws. As a general rule, federal officials prosecute major violations, leaving more minor prosecutions to state officials.

The prosecution of the DC-area snipers illus- trates the importance of the choice of courts. Dur- ing a 3-week shooting spree, John Muhammad and Lee Malvo engaged in 13 shootings, killing 10 people and wounding 3. The U.S. attorney gen- eral decided to transfer the defendants to Virginia because that state’s law makes the death penalty more likely than in the other jurisdictions where murders occurred— Maryland and the District of Columbia. After both were convicted, Muhammad was sentenced to death, but Malvo (because he was young) was sentenced to life imprisonment.

Local Control and Local Corruption The 50 state court systems are in actuality often struc- tured on a local basis. The officials who staff these courts—judges and lawyers, prosecutors and defense attorneys—are recruited from the local community they serve and thus reflect the sentiments of that community. As a result, the U.S. system of justice has close ties to local communities and the application of “state” law often has a local flavor. Jurors in rural areas, for example, often have markedly different atti- tudes toward guns than jurors in suburban areas.

Local control of justice has the obvious advantage of closely linking courts to the people they serve. But local control has also been an incubator of corrup- tion and injustice. Every state invariably has a town or two where gambling and prostitution flourish because the city fathers agree to look the other way. Not surprisingly, they often receive monetary ben- efits for being so nearsighted. Increasingly, though, such activities attract the attention of state police, state attorneys general, and federal prosecutors.

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State CourtsChapter 4 117

of professionalism that disdained popular input. Likewise, court reform in the contemporary context stresses the importance of working with other agen- cies rather than viewing the judge as a lone author- ity figure. The next chapter focuses on these other agencies, elaborating on the concept of the courtroom work group.

What is perhaps most striking is that the ideas that have dominated discussion of court reform for most of this century are now being quietly buried. Instead of stressing organizational charts and other abstract notions, most efforts to reform the judi- ciary now focus on more specific matters—reduc- ing court delay and targeting drug cases for special treatment, for example. Thus, today’s court reform is marked by tremendous experimentation at the local level. Judges and other court actors iden- tify a problem and seek solutions, adapting local resources and local understandings in the process. This adaptation to change has always been the hall- mark of the American judiciary. Perhaps the only differences today are the rapid pace of change and the public attention paid to these ongoing efforts at judicial reform.

Beyond the immediate problems of trying to pro- vide the same services with less funding, courts also face long-term limitations in designing new pro- grams to respond to changing social problems. Citi- zen demands to create or expand problem-solving courts—like drug courts, domestic violence courts, and mental health courts—are stymied because of a lack of funding. Other sectors of the criminal jus- tice system face similar frustrations. Budget cuts, for example, often force prosecutors to provide fewer services for crime victims (Chapter 9) and public defenders to reduce services (Chapter 7).

CONCLUSION

The implementation of drug courts across the nation illustrates a major shift in thinking about court reform in the United States. Whereas traditional court reform emphasized consolidating various judicial bodies, the emerging agenda encourages the creation of spe- cialized courts. Modern court reform also actively encourages working with members of the commu- nity, whereas the older tradition stressed notions

1. Outline the four layers of a typical state court system.

A typical state court system includes lower courts (trial courts of limited jurisdiction), major trial courts (trial courts of general jurisdiction), intermediate appellate courts, and the state high court of last resort.

2. Describe the types of cases handled by the trial courts of limited jurisdiction.

The lower courts handle the preliminary stages of felony cases and also decide a large number of misdemeanor, traffic, and small claims cases.

3. Discuss the similarities and differences between justice of the peace courts and municipal courts.

Both justice of the peace (JP) courts and municipal courts are considered lower courts.

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They differ primarily in terms of caseloads. The rurally based JP courts have relatively low caseloads, whereas the urban-based municipal courts have very large caseloads. Different urban and rural tax bases also affect their funding levels.

4. List the four primary problems confronting the lower courts in the United States.

The four major problems confronting the lower courts are inadequate financing, inadequate facilities, lax court procedures, and unbalanced caseloads.

5. Identify the types of civil and criminal cases filed in trial courts of general jurisdiction.

The major trial courts decide felony cases and civil cases including domestic relations, estate, personal injury, and contract cases.

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Chapter Review

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118 Part I / The Legal Actors

6. Explain briefly the differences between a state high court of last resort in states with and without intermediate courts of appeals.

In states without intermediate appellate courts, state courts of last resort must hear all criminal appeals. In states without intermediate courts of appeals, state courts of last resort have discretion to hear only the cases they decide are the most important.

7. List the key components of court unification. The key components of court unification include simplified court structure, centralized administration, centralized rule making, centralized judicial budgeting, and statewide financing.

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8. Identify how problem-solving courts using therapeutic jurisprudence handle cases.

Courts using therapeutic jurisprudence have five essential elements: (1) immediate intervention, (2) nonadversarial adjudication, (3) hands-on judicial involvement, (4) treatment programs with clear rules, and (5) a team approach to treatment.

9. Discuss the consequences of court organization.

The organization of courts in the United States impacts the processing of cases in several ways, including the decentralization of justice, which at times can mean that there is a choice of courts and that local control has at times resulted in local corruption.

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are opposing court reform, and what disadvan- tages do they cite?

4. Why do crime control advocates often oppose drug courts, and why do due process proponents support drug courts?

5. Make a list of state and local politicians who have been tried in federal court. Were there parallel state investigations or prosecutions? To what extent would corrupt local officials be better off if federal court jurisdiction were limited?

1. Although we typically talk of state courts (as opposed to federal courts), would it be better to talk about local courts? To what extent are there major variations within your state?

2. Compare your state’s court structure to those in Figures 4.1 and 4.2. How unified is your state court structure?

3. Have there been discussions in your state of court reorganization? What major interest groups are urging court reform, and what ad- vantages do they suggest? What interest groups

Critical Thinking Questions

alternative dispute resolution

(ADR) 102

arbitration 102

centralized administration 107

centralized judicial

budgeting 108

centralized rule making 107

community courts 102

drug courts 112

inferior court (lower court) 92

intermediate courts of appeals

(ICAs) 105

JP 94

justice of the peace courts 94

mediation 102

misdemeanor 93

municipal court 99

ordinance 93

simplified court structure 107

small claims court 94

state high court of last resort 106

statewide financing 110

therapeutic jurisprudence 112

traffic offenses 93

trial court of general

jurisdiction 102

trial court of limited jurisdiction

(lower court/inferior court) 92

trial de novo 97

unified court system 107

Key Terms

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State CourtsChapter 4 119

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

Abadinsky, Howard. Drug Use and Abuse: A Comprehensive Introduction. 7th ed. Belmont, CA: Wadsworth, 2011.

Adler, Parericia, Peter Adler, and Patrick O’Brien. Drugs and the American Dream: An Anthology. Hoboken, NJ: Wiley-Blackwell, 2012.

Almquist, Lauren, and Elizabeth Dodd. Mental Health Courts: A Guide to Research Informed Policy and Practice. Council of State Governments Justice Center, 2009.

American Judicature Society. “The Cost of Justice: Funding State Courts.” Judicature 88: 158–169, 2005.

Beckett, Katherine, Kris Nyrop, and Lori Pfinst. “Race, Drugs, and Policing: Understanding Disparities in Drug Delivery Arrests.” Criminology 44: 105, 2006.

Champagne, Anthony. “Judicial Reform in Texas: A Look Back after Two Decades,” Court Review 43 (2): 68, 2006.

Council of State Governments. 2008 Mental Health Courts: A Primer for Policymakers and Practitioners. Austin: Council of State Governments Justice Center, 2008.

Council of State Governments 2012. “Mental Health Consensus Project.” Available online at http://consen- susproject.org

Crow, Matthew, Richard Hough, Jason Mosley, John Smykla, and Kimberly Tatum. “Drunk and Alone in a K-Mart Parking Lot: The Pedagogy of Simulations and Contem- porary Attitudes toward Drinking and Driving.” Journal of Criminal Justice Education 19: 417–431, 2008.

Erickson, Patricia, and Steven Erickson. Crime, Punishment, and Mental Illness. Piscataway, NJ: Rutgers University Press, 2008.

Federal Judicial Center. “Resources on Courtroom Technol- ogy,” Available online at http://www.fjc .gov/public/ home.nsf/autoframe?openform& url_l=/public/home. nsf/inavgeneral? openpage&url_r=/public/home.nsf/ pages/1100

Fell, James, Deborah Fisher, Robert Voas, Kenneth Black- man, and Scott Tippetts. “The Impact of Underage Drinking Laws on Alcohol-Related Fatal Crashes of Young Drivers.” Alcoholism, Clinical, and Experimental Research 33: 1208–1219, 2009.

Gerber, Rudolph. Legalizing Marijuana: Drug Policy Reform and Prohibition Politics. Westport, CT: Praeger, 2004.

Hartley, Roger, and James Douglas. “Budgeting for State Courts.” Justice System Journal 24: 251–264, 2003.

Lederer, Fredic. 2010. “Wired: What We’ve Learned about Courtroom Technology.” Criminal Justice 24: 18–25.

Lightcap, Tracy. “Issue Environments and Institutionaliza- tion: Structural Changes in U.S. State Judicial Institu- tions, 1975–1995.” Justice System Journal 24: 183–204, 2003.

Nafisi, Terry. “One Hundred Years since Pound: Has Court Reform Mattered?” Justice System Journal 27: 223–236, 2006.

Slate, Risdon, and W. Wesley Johnson. The Criminaliza- tion of Mental Illness: Crisis and Opportunity for the Justice System. Durham, NC: Carolina Academic Press, 2008.

Solomon, Freda. “New York City’s Gun Court Initiative: A Pilot Program Study.” CJA Research Brief No. 11. New York: New York City Criminal Justice Agency, 2006.

Willrich, Michael. City of Courts: Socializing Justice in Pro- gressive Era Chicago. New York: Cambridge University Press, 2003.

Winick, Bruce, and David Wexler, eds. Judging in a Thera- peutic Key: Therapeutic Jurisprudence and the Courts. Durham, NC: Carolina Academic Press, 2003.

Winkle, John III, and Robert Oswald. “The Role of Trial Judges in State Court Reform: The Case of Missis- sippi.” Judicature 91: 288–297, 2008.

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

ELEVENTH EDITION

AMERICA’S COURTS

AND THE CRIMINAL JUSTICE SYSTEM

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120

The Dynamics of Courthouse Justice5

A judge watches as a sheriff ’s deputy checks his notes before an-

swering a question posed to him by a lawyer . While such a scene

is typical, the courtroom work group is composed of many people

who rarely are depicted in news photos or on television. Rather, the

courtroom work group works together “behind-the-scenes” out of

shared norms and their mutual interdependence on each other.

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Chapter Outline THE COURTHOUSE AND THE PEOPLE WHO WORK THERE

The Courthouse The Courtroom Behind the Scenes

COURTHOUSE SECURITY AND CHANGING TECHNOLOGIES

Courts, Law, & Media Law & Order

DYNAMICS OF COURTHOUSE JUSTICE

ASSEMBLY-LINE JUSTICE Strengths of the Explanation Weaknesses of the Explanation

DISCRETION

THE COURTROOM WORK GROUP Mutual Interdependence Shared Decision Making Socialization Normal Crimes

Courts, Controversy, & Gender Equity Is Gender Bias a Significant Problem in the Courts?

Rewards and Sanctions Variability in Courtroom Work Groups

THE PROBLEM OF DELAY Consequences of Delay Assessing the Costs of Delay

LAW ON THE BOOKS APPROACH TO COURT DELAY

Speedy-Trial Laws Limits of Speedy-Trial Laws

LAW IN ACTION APPROACH TO COURT DELAY

CASE CLOSE-UP: Barker v. Wingo and the Right to a Speedy Trial

Case Scheduling Efforts at Coordination Variability in Courtroom Work Groups Revisited

LEGAL ETHICS

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Willie Barker’s murder case was set for trial, and sixteen times it was continued. At first the defense readily agreed, gambling that Barker’s codefendant would be found not guilty. Thus, some of the continuances were caused by the six separate trials before the codefendant was finally convicted. Other continuances were granted because of the ill- ness of the police investigator. It was not until 5 years after arrest that Barker was convicted of murder. To Barker’s lawyer, this lengthy delay clearly violated the Sixth Amendment’s right to a speedy trial. The Kentucky prosecutor replied that the delay did not jeopardize Barker’s right to a fair trial.

Barker v. Wingo (1972) underscores three key points about criminal-case processing in con- temporary courts. First, courts deal with lots of cases. From the perspective of victims and defendants, criminal cases are discrete life events, but from the vantage point of judges, pros- ecutors, and defense attorneys, the docket consists of numerous cases, each demanding the court’s time. The pressure to move cases, often referred to as assembly-line justice, is the first concept discussed in this chapter.

W continued.At first the de

Sixteen times,

122

After reading this chapter, you should be able to:

Have a general sense of who works where in the courthouse. Analyze the importance of assembly-line justice. Describe why discretion is found in the criminal courts. Identify the principal actors in the courtroom work group. Indicate why ethics is important to the American legal system. Contrast differing understandings of why delay is a problem in the courts. Discuss the strengths and weaknesses of speedy-trial laws. Explain why law in action approaches to court delay are more effective than law on the books approaches..

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Learning Objectives

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The Dynamics of Courthouse JusticeChapter 5 123

Second, the problems in prosecuting and convict- ing Barker indicate that discretion is often needed in interpreting the law. After all, the meaning of “speedy trial” is not self-evident. As we shall see, the concept of discretion begins to grapple with the day-to-day realities of courthouse dynamics.

Third, the Barker case shows that case disposi- tions involve far more than the isolated actions of individual judges. From arrest through trial and sen- tencing, case dispositions require mutual activity on the part of prosecutors and defense attorneys, to say nothing of police officers and probation officers, bail agents, and bailiffs. This chapter uses the concept of the courtroom work group to analyze the complexi- ties of interaction among courthouse regulars.

This chapter examines the dynamics of court- house justice by analyzing three major explanations for the great difference between textbook images of criminal procedure and the realities of the court- room. We will then apply these concepts to one of the most often mentioned problems of Ameri- can justice—delay. As in the Barker case, though, we will see that deciding how long is too long is a knotty question. But first let us begin with a tour of a typical U.S. courthouse.

THE COURTHOUSE AND THE PEOPLE WHO WORK THERE

Court jurisdiction and court structure are admit- tedly intangible concepts. Courthouses, on the other hand, are concrete. From the outside, court- houses appear to be imposing government build- ings, but on the inside they are beehives of activity. Most immediately, courthouses are places where you find lawyers arguing before juries, talking to their clients, and conversing with one another. But courthouses also employ numerous nonlaw- yers who perform vital roles; without clerks and probation officers, bail agents and bailiffs, court- houses could not function. Not to be overlooked, ordinary citizens (whether victims or defendants, witnesses or jurors) also perform important roles in the courthouse.

In trying to understand how lawyers and nonlawyers, regular participants and occasional ones, dispense courthouse justice on a daily basis, it is helpful to start with a walking tour of a

courthouse. What goes on inside different court- houses, of course, varies in important ways. In the courthouses of small towns, for example, one finds only a few courthouse regulars who handle many different types of matters. By contrast, in the courthouses of major cities you will find numer- ous courthouse regulars who specialize in specific duties. Moreover, in some courthouses, civil and criminal cases are heard in the same courtroom at the same time; in other jurisdictions, civil and criminal cases are separated by time and place. These variations aside, the following provides an overview of a typical day in a medium-sized courthouse in the United States.

The Courthouse Early American courthouses were simple struc- tures with “plain furnishings and finishes” (Sahoo, 2006, p. 9). But by the mid-1800s, major courthouses were designed to be “imposing, grandiose” structures that incorporated “formal architectural elements such as columns, domes, clock towers, and grand entrances” (Sahoo, 2006, p. 9). Today, courthouses in the United States “come in a myriad of designs, from centuries-old stone fortresses to modern-day, multifloor mono- lithic towers, from the one-room council cham- bers to the abstract designs of the creative archi- tect” (Zaruba, 2007, p. 46).

The locations of courthouses vary dramatically as well. In some cities, courthouses are landmarks in the center of downtown areas. Such courthouses have served as anchors “for many commercial and community activities” (Sahoo, 2006, p. 9). In sharp contrast, for security reasons, criminal courts of other cities were purposefully constructed near pretrial detention facilities in isolated and incon- venient locations. Clustered nearby are older buildings, occupied by bail agents and defense attorneys. Garish neon signs proclaiming “Bail Bonds, 24-Hour Service” compete with unpainted wooden structures to provide a general sense of urban decay. The courthouse building likewise often has a haggard and unkempt look about it. Beneath the veneer of decades of grime, though, one sees a once grand building built during an era when citizens took great pride in their pub- lic buildings. Although criminal court buildings are constructed in a variety of architectural styles,

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124 Part II / Legal Actors

suggests that this is not an ordinary public build- ing. This initial impression of orderliness under law quickly gives way to a sense of social anar- chy. One is immediately confronted with a visual and audio reality far different from that por- trayed on television or in the movies (Figure 5.1). What is happening inside the courtroom is best viewed in terms of the actors who congregate in different locations.

In the front is an imposing bench that domi- nates the courtroom, literally elevating the black- robed judge on a pedestal. Court begins by the customary call of the crier: “All rise, the court for County is now in session, the Honorable

presiding.” On cue, the judge strides mind- fully from behind a hidden door, law book or case folder tucked under one arm. Just below the bench sits the clerk of court (sometimes called the “calendar clerk”), who controls the scheduling of cases and keeps the judge apprised of the relevant details of the case. To one side of the bench sits the court stenographer, whose machine mysteri- ously makes a shorthand record of the proceed- ings. Also in attendance is a bailiff, who tries to maintain order in the courtroom. The judge’s staff also may include a law clerk and a secretary (who guards access to the judge when he or she is not presiding in the courtroom).

About 10 to 20 feet from the front of the bench are two tables reserved for the defense and pros- ecution, respectively. The district attorney’s (DA) table is piled high with case folders needed for the day’s activities. Somehow, no matter how high the pile of case folders, a file or part of a file is invariably missing, resulting in last-min- ute scurrying by frantic assistant DAs trying to rectify the periodic lapses of the prosecutorial bureaucracy. The mountain of files on the pub- lic defender’s (PD) table nearly matches that of the prosecutor’s. The public defender likewise finds that files are missing or incomplete, result- ing in scurrying around looking for missing pieces of paper. When a case involving a pri- vate criminal lawyer is called, the PD temporar- ily gives up the seat at the defense table, but the files remain, an indication that it is really the PD who dominates. Between the bench and the law- yers’ tables stands a battered wooden podium, which is typically used only for ceremonial occasions—most notably, when the defendant

they nevertheless all seem to present an image of solidity and unyielding strength.

In the modern era, court security concerns drive courthouse design, renovation, and function. Entrance is usually gained by climbing an excessive number of steps that lead to a single set of doors through which all people must enter.

Visitors or employees entering the courthouse are

met by CSOs [Court Security Officers] and screened

as they pass through a metal detector. Persons set-

ting off a metal detector are scanned by a CSO using

a handheld detector. Briefcases, packages, and other

items in which dangerous or prohibited items might

be stored are X-rayed. The CSOs also hand-check any

item deemed suspicious or problematic. Policies re-

garding the use, or even the presence, of cellular and

digital phones, personal digital assistants, or other

electronic devices are set by each individual court-

house. (Novak, 2003, p. 24)

In older courthouses, prisoners used the same entrances and circulation paths as judges, jurors, and members of the public. Modern courthouses, however, are designed to transfer prisoners securely from holding facilities into courthouses using different entrances and restricted internal routes so that they are kept separated from the public and courthouse personnel (Novak, 2003; Zaruba, 2007).

Once inside a courthouse, visitors may find themselves in an austere, small area or in a mas- sive lobby with an impressive, high-arched ceil- ing. Either way, the lobby and hallways typically resound with animated conversations among lawyers, bail agents, bailiffs, defendants, family members, witnesses, and a variety of other inter- ested parties. Indeed, for many bail agents and private criminal lawyers, these hallways are their daytime offices.

The Courtroom After some difficulty, most first-time visitors manage to locate their courtroom of interest, entering through heavy double doors, which

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The Dynamics of Courthouse JusticeChapter 5 125

in court provides a pretty good indication of the perceived threat of the defendants; the higher the ratio of guards to prisoners, the more serious the crime and the criminal.

A railing separates the courthouse regulars from the occasional participants. The first row or two are reserved for lawyers waiting for their cases to be called. Sitting in the remaining rows are the defendants (those who have been freed on bond or released on their own recognizance), family members, and perhaps a variety of other observers—for example, senior citizens, who enjoy rooting for the prosecutor. Increasingly in contemporary courthouses, one will also find vic- tim advocates affiliated with organizations such as victim/witness-assistance programs, Mothers Against Drunk Driving, child advocates, and rape crisis centers. Like senior citizens, these people make known their desire for harsh punishments. Table 5.1 summarizes the courthouse actors and their main activities.

What is disconcerting to the newcomer to the courtroom is that these actors seem in constant

enters a plea of guilty, or the lawyers argue before a jury. Otherwise, lawyers typically argue while sitting behind the table.

To the side of the bench is the jury box. On trial day, jurors occupy these seats; when no jury trial is being conducted, a variety of folks can be found in and around the jury box, waiting, socializing, and occasionally conducting business. Often the easi- est to identify are police officers who are in court to provide testimony. Also in attendance are probation officers, substance-abuse counselors, and pretrial services representatives. Bail agents also often drop in to make sure that the persons for whom they have posted bail have indeed arrived as scheduled.

Often sitting in the jury box, too, are defen- dants who have been detained before trial. Defen- dants out on bail sit in the public sector, but those in jail sit in brightly colored uniforms with the name of the county jail readily displayed. Often they are manacled together and are temporarily unchained when their cases are called. Surround- ing the defendants, hovering like brooding hens, are the sheriff’s deputies. The number of deputies

Figure 5.1 ■ Courtroom

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in g

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126 Part II / Legal Actors

motion. Small groups form and re-form as cases are called and defendants summoned before the bench. In one corner, an assistant DA can be seen conversing with an assistant PD, while in the back of the room a private defense attorney is engaged in whispered conversations with a defendant and his mother. Moreover, the cast of characters is ever changing. Many actors are in court for a specific case, and when that case has finished, they leave, often walking to another courtroom where they have other cases to attend. Most exasperating of all, the courtroom alternates between bursts of energy and periods of lethargy. Cases are called, only to be put on hold because one of the needed participants is temporarily busy elsewhere in the courthouse.

Behind the Scenes Outside the great hall of the courthouse and behind the individual courtrooms are areas where visitors seldom venture. What is immediately obvious is that the steady march of people and the accompa- nying din are absent. Behind the scenes work the actors who provide essential support for courtroom activities.

Courts are paperwork bureaucracies. Even the simplest case requires sheets and sheets of paper: the initial charge, and later, the indictment, bail release forms, pretrial motions, notice of appear- ance of counsel, and so on. Most of the behind- the-scenes people process this paperwork. Their actions are almost never visible, but their inaction can make headlines.

Other behind-the-scenes actors are managers. A constant complaint is that the courts are mis- managed. Alas, the definition of management in a court setting is elusive. Part of the difficulty is that in many jurisdictions, three distinct sets of court managers—clerks of court, chief judges, and court administrators—are often in compe- tition. Just as important, it is difficult to define what the managers should be doing. A funda- mental conflict exists between management (standardized work processes and standard out- puts) and the profession of law (individual atten- tion to cases that are fundamentally different). Thus, at the heart of the problem of managing the

courthouse is the tension between the rational- ity of bureaucracy and the antibureaucratic phi- losophies of judges (DuPont-Morales, Hooper, & Schmidt 2000; Saari 1982).

The clerk of court, variously referred to as pro- thonotary, register of probate, and clerk, is pivotal in the administration of local judiciaries. They are responsible for docketing cases, collecting fees, overseeing jury selection, and maintaining court records. These local officials have enormous power. Since they are elected officials in all but six states, they can operate semi-autonomously from the judge. Thus, they have traditionally competed with judges for control over judicial administra- tion (Aikman, 2006; Mays & Taggart, 1986).

Judges are responsible for court administra- tion, but they have most often been ineffective managers. This is primarily due to the unique environment in which the courts operate. Judges may be held responsible, but they seldom have the necessary authority to implement systemic change in a courthouse (Aikman, 2006; Jacob, 1997). Moreover, they are not trained in man- agement. The end result is that the lawyers who become judges are not accustomed to analyzing patterns of case dispositions or managing large dockets—the essential skills a manager needs. These problems are reflected in the position of chief judge. Although the chief judge has gen- eral administrative responsibilities, the position is really one of “first among equals.” Particularly when the chief judge assumes the position by seniority, as many do, there is no guarantee that the person will be interested in management or will be effective at it.

One of the most innovative approaches to court problems has been the creation of a profes- sional group of trained administrators to assist judges in their administrative duties. In short, management—like law—is a profession; there- fore, well-trained managers can give the courts what they have often lacked—managerial skill and bureaucratic knowledge. The development of the professional position of court administrator has been sporadic (Flanders, 1991; Lawson & How- ard, 1991). However, by the 1980s, every state had established a statewide court administrator. In the years since then, court administration has become

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The Dynamics of Courthouse JusticeChapter 5 127

TABLE 5.1 ■ COURTHOUSE ACTORS Actors Main Activities

Law enforcement Court security staff Provide security throughout the courthouse

Sheriff ’s deputy Transports prisoners to and from jail

Bailiff Maintains order in the courtrooms; handles evidence

Lawyers Prosecutor Government official who prosecutes criminal cases

Public defender Government attorney who represents indigent defendants

Private defense attorney Lawyer paid by a defendant for representation

Court personnel Judge Officer who presides in a court of law

Law clerk Performs legal research for the judge

Clerk of court Record keeper, often responsible for summoning potential jurors to participate in the jury-selection process

Court reporter Makes verbatim transcript of proceedings

Secretary Handles routine work of judge’s office, including keeping the judge’s calendar

Translator Renders another language into English and vice versa

Court administrator Supervises and performs administrative tasks for the court

Docket clerk Prepares and assembles case files; distributes legal documents to attorneys and judges; maintains files and records, including entry of data into computer records

Corrections Probation officer Recommends defendants for probation and monitors their activities while on probation

Pretrial services representative Handles release of qualified pretrial detainees

Diversion program representative Recommends defendants for diversion programs such as drug rehabilitation and anger management programs and monitors progress in them

Public Bail agent Secures pretrial release of defendants for a fee

Reporter Provides media coverage of key events

Defendant Person accused of violating the law

Victim Person who has suffered a loss due to crime

Witness Anyone who will testify in court

Jurors Citizens who will decide whether the defendant is guilty or not guilty

Rape crisis center representative Provides counseling and support services for sexual assault victims; provides counseling to rape victims

Child advocate Person who speaks up for a child’s best interest

Court watchers Reporters, researchers, students, retirees, and others who go to court to observe proceedings

Victim/witness assistance Public or private agency seeking to improve treatment program of victims and witnesses

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little more than walking through the door past a bored security officer. No longer. Now metal detectors guarding courthouse doors are an ever- present reminder of how threats of violence have altered American society, courthouses included. Metal detectors and surveillance cameras hardly qualify as modern technologies, because they have been in use for a long time. But what has changed dramatically is how widespread they have become in courthouses in recent years. And changes in airport security are certain to affect courthouse security as well.

Operating a court building today is, by its very nature, a risky business. Governmental build- ings, courthouses included, represent important symbolic targets for terrorist groups, whether of domestic or international origin. The bombing of the federal courthouse in downtown Oklahoma City in 1995 exposed external threats to buildings like these. Protecting older courthouses is diffi- cult because they were built for ready access, not protection. But newer courthouses are constructed with safety as a primary focus.

But most attention is focused on internal secu- rity threats. Every day, court buildings are vis- ited by a large volume of disgruntled and even lawbreaking citizens (National Center for State Courts, 2010). Gang members trying to intimi- date witnesses, defendants charged with domes- tic violence, and disgruntled spouses litigating a divorce are but three examples of types of people who might explode into violence in the court- room. No wonder there is often extra security in a courtroom when the judge or jury reaches a verdict.

In some ways security at courthouses is more restrictive than its better-known counterpart at airports. Weapons of course are strictly off limits in both places. But depending on the courthouse, one may not be able to carry in cameras, cell phones, laptop computers, or knitting needles. Moreover, courthouse security is also very con- cerned about persons smuggling contraband to prisoners.

Beyond the changing technology of courthouse security is a changing mind-set of what courthouse security means. Security is no longer merely pro- tecting the people who work in the courthouse,

increasingly professionalized (Aikman, 2006). Moreover, the profession has expanded signifi- cantly; today, most courts (even at the trial court level) routinely employ professional court admin- istrators (Aikman, 2006). The primary duties of these officials are preparing annual reports, sum- marizing caseload data, preparing budgets, and troubleshooting. Usually, they report to the state supreme court or the chief justice of the state supreme court.

Tension between judges and the court admin- istrator may arise. Some judges are reluctant to delegate responsibility for important aspects of the court’s work, such as case scheduling (Aik- man, 2006; Mays & Taggart, 1986). In practice, the distinction between administration and adju- dication is not clear-cut. A court administrator’s proposal to streamline court procedures may be viewed by the judges as an intrusion on his or her role in deciding cases. For example, it is not easy to determine whether transferring a judge from one assignment to another is a judicial or nonjudi- cial responsibility (Aikman, 2006; Hoffman, 1991; Stott, 1982).

COURTHOUSE SECURITY AND CHANGING TECHNOLOGIES

Upset with the way his divorce and child cus- tody case had been handled, James Ray Palmer, 48, headed back to the Crawford County Court- house in Van Buren, Arkansas. When the sec- retary politely informed Palmer that the judge was not available he pulled out a semi-automatic weapon and began firing. The secretary was wounded in the leg but escaped life-threatening injuries. Before he was shot by a sheriff’s deputy, Palmer managed to fire 70 rounds from some of the four weapons in his possession (CNN, 2011, September 14).

The shooting in rural Arkansas is but the latest incident of violence in courthouses, and such attacks have greatly changed courthouse security. On a typical morning, you will find long lines of jurors, witnesses, defendants, and litigants waiting to enter the courthouse. Not too long ago, entering a courthouse often meant

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LAW & ORDER

Law & Order is the longest-running drama series on network television. First aired in 1990, the show has proven so popular that the producers have spun off shows such

as Law & Order: Special Victims Unit and Law & Order: Criminal Intent. The shows are also aired regularly on cable television. Indeed, it has been estimated that a viewer can watch a full 20 hours of these shows each week.

Part of the popularity of Law & Order stems from its “ripped-from-the-headlines” style. Each episode is self- contained. The stripped-down quality means that plot is everything. And the stories often have a twist—the most obvious suspect is not necessarily the one who commit- ted the murder. Although there are continuing characters, there is little effort at character development (Dempsey, 2003). The entrapping sense of reality is reinforced by the video—outdoor scenes are shot on the streets of New York City, and indoor scenes are shot on a soundstage on the Hudson River.

At its best, Law & Order (and its numerous spinoffs) is willing to confront social issues, such as sexually trans- mitted diseases and promiscuous sex, that typically go unmentioned on prime-time television. Unlike stereotypi- cal crime stories in which most characters live stereotypi- cal lives, the episode characters on Law & Order are more likely to experience issues associated with interracial dat- ing and illegal immigration. Overall, the series seems best when its plots highlight the complexities of emotionally charged issues such as child molestation and child custody battles.

But how real is Law & Order? To scholars, the sense of realism projects a number of dubious images about policing and prosecution. Law & Order often distorts policing and prosecution beyond recognition. Investigation

techniques are often bad, as, for example, in the episode in which the police searched the car of the murder victim on the street instead of impounding the vehicle inside a weather-free building. Interrogation techniques are equally faulty. Suspects are interrupted as they make statements instead of being allowed to tell their version before fac- ing more probing questions. Plea-bargaining sessions also represent major distortions of reality. Typically on Law & Order, the defendant is in the same room as the prosecu- tor and the defense attorney. Overall, the program gives the impression that the law (particularly the part related to the constitutional rights of all citizens) is a nuisance. Indeed, disrespect for the law extends to police actions— some episodes show police brutality (minor but often unnecessary force in arresting a suspect).

Television shows such as Law & Order have had a major impact on the American legal system. Professors teaching courses like violent crime scene analysis find that they must first help students unlearn what they had learned incor- rectly from watching television (Lacks, 2007). Similarly, juries now demand forensic evidence. Moreover, jurors have to be instructed that Law & Order is fiction, not fact. Chapter 13 focuses on a closely related show, CSI: Crime Scene Investiga- tion. Defense lawyers love the “CSI shows because they have caused juries to demand DNA analysis in nearly every two- bit 7-Eleven holdup. Prosecutors, meanwhile, feel hampered by the fact that 10 eyewitnesses are not enough to satisfy CSI-watching jurors who crave the supposedly conclu- sive proof of hair follicles on a knife” (Goehner, Lofaro, & Novack, 2004).

Concerns that fiction might dictate fact are not hypo- thetical. The Texas Appellate Court reversed the conviction of Andrea Yates (the Houston woman who drowned her chil- dren in a bathtub) because the prosecution psychiatrist falsely testified that he had consulted on a Law & Order episode with a similar theme (Liptak, 2005). Frequent viewing of television crime dramas significantly increase concerns about crime (Holbrook & Hill, 2005).

COURTS,

LAW, &

MEDIA

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Expecting to see individual trials, they instead witness a parade of defendants and their cases. In particular, newcomers to the courthouse are often struck by the sheer volume of cases.

Expecting the law to provide guidance, they instead find that decisions are not necessarily clear-cut and that some leeway is available. How else can one explain disagreements over lengths of prison sentences and terms of probation?

Expecting to observe the conflict (and perhaps even hostility) projected by the adversarial model, courthouse watchers discover coopera- tion among judges, prosecutors, and defense attorneys. At times, conversations become ani- mated, but by and large, the verbal exchanges reflect a good amount of badinage.

In exploring these differences, practitioners and scholars have used three concepts—assembly-line justice, discretion, and the courtroom work group (see Table 5.2).

Assembly-line justice explains why few cases receive individual treatment.

Discretion emphasizes that decisions, al- though guided by law, are not totally deter- mined by rules found in statutes or court decisions.

The courtroom work group concept stresses the importance of the patterned interactions of judges, prosecutors, and defense attorneys.

As we shall see, each of these explanations is use- ful in understanding the dynamics of courthouse justice.

ASSEMBLY-LINE JUSTICE

The most commonly advanced reason that crimi- nal courts do not administer justice according to the textbook image is assembly-line justice. This explanation was put forth by the President’s Com- mission on Law Enforcement and Administration of Justice (1967, p. 31): “The crux of the problem is that there is a great disparity between the number of cases and the number of judges.” Not only judges but also prosecutors, defense attorneys, and proba- tion officers are in short supply. The deluge of cases is reflected in every aspect of the courts’ work, from

judges and lawyers primarily. Notions of court- house security have expanded to protecting the citizens in the courthouse as well. According to the National Sheriff’s Association (2011), courthouses and their immediate areas now need a security component that can only best be described as a police district in and of itself. Thus, courthouse security needs to be concerned about the possibil- ity of physical disagreements between litigants, civil or criminal, in the courthouse and outside as well. And it needs to take into account that court- house disagreements may lead to retaliation in other places.

Consistent with the theme of this chapter, courthouse actors like the sheriff, court admin- istrator, chief judge, and county boards at times disagree about the adequacy of security. Increas- ing security sounds good in the abstract but takes on a different tone when the issue turns to who will pay. Sheriffs have been known to plead pov- erty when it comes to requests for even more deputies assigned to courtroom duty rather than patrol, investigation, or jail duties. There are also important policy disagreements among courthouse actors. Some judges express concerns that too much security lessens public access to the courthouse and often causes major inconve- nience to jurors.

Courthouse security varies from place to place, with rural areas like Van Buren, Arkansas, less restrictive than big cities. The courthouse in Van Buren had no metal detector, and an armed deputy was on duty only when the court was in session. But the trend for even more costly and expansive security is sure to continue. On occa- sion, the news media carry stories about violence in the courthouse, which inevitably leads to even tighter security.

DYNAMICS OF COURTHOUSE JUSTICE

A brief tour of a courthouse indicates that justice is very unlike the dramatizations one sees on TV or in the movies. First-time observers find scant rela- tionship between the dynamics of courthouse jus- tice (law in action) and widely held cultural images (law on the books).

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To cope with large caseloads, prosecutors, defense attorneys, and judges often apply sev- eral mass-production techniques. Thus, actors often specialize in specific tasks. In big-city pub- lic defender’s offices, for example, one assistant will conduct the initial interview with the defen- dant, another will represent him or her at the ini- tial appearance, and still another will negotiate the plea. Another mass-production technique is group processing. During the initial appearance, felony defendants are often advised of their rights in one large group rather than individually. Moreover, in the lower courts, sentences are often fixed on the basis of the defendant’s membership in a given class rather than on detailed consideration of the individual case.

Weaknesses of the Explanation Although the assembly-line justice explanation draws our attention to some important aspects of the criminal courts, it also obscures many impor- tant considerations. First of all, this orthodox explanation stresses that excessive caseloads are a modern problem. Repeated references are made to the “rise” of plea bargaining and the “decline” of the trial. However, these vivid metaphors

overcrowded corridors and courtrooms to the long calendars that judges, prosecutors, and defense attorneys face each day. Although this report was written nearly 50 years ago, sadly, these facts have not changed, as the court system remains grossly underfunded and understaffed today (Broccolina & Zorza, 2008).

Strengths of the Explanation The assembly-line justice explanation highlights some important features of the contemporary courthouse. No one disputes that the volume of cases is large. Every year, approximately 14 mil- lion persons are arrested—3 million for felonies and the rest for misdemeanors. Because of the large volume, overworked officials are often more interested in moving the steady stream of cases along than in individually weighing each case on the scales of justice. Particularly in large cities, tre- mendous pressures exist to move cases and keep the docket current lest the backlog becomes worse and delays increase. In short, law on the books sug- gests a justice process with unlimited resources, whereas law in action stresses an administrative process geared toward disposing of a large vol- ume of cases.

TABLE 5.2 ■ THREE CONCEPTS EXPLAINING THE DYNAMICS OF COURTHOUSE JUSTICE

Concept Definition Examples Assembly-line justice The operation of any segment of

the criminal justice system with such speed and impersonality that defendants are treated as objects to be processed rather than as individuals.

The war on drugs has greatly increased case volume.

Judges feel pressure to move cases.

Discretion The authority to make decisions without reference to specific rules or facts.

Prosecutors decide whether to file criminal charges.

Judges choose between prison or probation.

Courtroom work group

The regular participants in the day-to-day activities of a particular courtroom; judge, prosecutor, and defense attorney interacting on the basis of shared norms.

Cooperation more than conflict governs the working relationships of courtroom actors.

Case disposition requires joint actions of judge, prosecutor, and defense attorney.

Rules of thumb guide bail release and sentencing.

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imposed roughly similar sentences. Each court spent the same amount of time per case, moving through its business “rapidly and mechanically.” The only difference was that the busier court was in session longer than the court that had fewer cases (Feeley, 1979). This and other studies clearly suggest that the criminal court process cannot be understood solely on the basis of excessive casel- oads, because such an explanation omits too many important considerations—most especially organi- zational relationships and local legal culture (Heu- mann, 1975; Lynch, 1994; Nardulli, 1979; Roach- Anleu, 2000).

DISCRETION

Law on the books projects an image of a legal sys- tem that seemingly runs by itself—a mechanical process of merely applying rules of law to given cases. Law in action, however, emphasizes a legal system in which the legal actors exercise discretion because choices must be made.

Discretion lies at the heart of the criminal justice process. From the time a crime is committed until after a sentence is imposed, discretion is exercised every time key decisions are made. After arrest, the prosecutor may decide not to prosecute. Once charges have been filed, a lower-court judge must set the amount of bail and decide whether sufficient probable cause exists to hold the defendant for the grand jury. In turn, grand juries have discretion over indictments; trial juries over conviction; and the judge over sentencing.

Discretion is best defined as the lawful abil- ity of an agent of government to exercise choice in making a decision. Viewed from this perspective, discretion has three major subcomponents: legal judgments, policy priorities, and personal philoso- phies (Cole, 1970; Stith, 2008).

Many discretionary decisions in the crimi- nal court process are made on the basis of legal judgments. An example would be a prosecutor who refuses to file a criminal charge because in her legal judgment, the evidence is insufficient to prove all the elements of the offense. Some legal judgments stem from a prediction about the likely outcome of a case at a later stage in the proceed- ings. The prosecutor, for example, may believe

distort history. American courts have been faced with caseload pressures for more than a century. Even more important, plea bargaining predates any of the “modern” problems of the courthouse. Indeed, plea bargaining “began to appear during the early or mid-nineteenth century and became institutionalized as a standard feature of Ameri- can urban criminal courts in the last of the nine- teenth century” (Haller, 1979, p. 273; see also, Fisher, 2003). In short, those who try to explain how justice is administered in the courthouse simply in terms of too many cases resulting from the growth of big cities are ignoring the historical evidence.

Emphasizing excessive caseloads also fails to consider the types of cases trial courts must decide. Most trial court cases, criminal or civil, present no disputed questions of law or fact. Rather, most case dispositions reflect routine administration: “A matter is routine when a court has no disputed question of law or fact to decide. Routine administration means the processing or approving of undisputed matters” (Friedman & Percival, 1976, p. 267). Most cases, therefore, end with a plea of guilty (rather than a trial), not because the courthouse has too many cases, but because the courts are confronted with a steady stream of routine cases in which the only major question is the sentence to be imposed. This has led some commentators to conclude that the emphasis on due process procedures that “domi- nated the era between the 1930s and the 1970s, [has been] supplanted by a model . . . in which the focus (both in criminal and civil cases) is on how to achieve resolution without or with little adjudication” (Resnik, 2006, p. 1140).

Although heavy caseloads are part of the con- ventional wisdom surrounding the operations of criminal courts, several studies cast serious doubt on this proposition. A 1979 study in Connecticut compared two courts—one with a heavy casel- oad, another with a light one. It would be logi- cal to expect major differences in how cases were processed and in the substance of justice handed out, but the results indicated that the courts were remarkably similar. Neither court had many tri- als. In neither did the defense attorneys engage in a pitched battle with the prosecution. Both courts set bail in approximately the same amounts and

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the newspaper themselves. The ordinary citizens sit on hard benches in the rear of the courtroom and may approach the bench only when specifi- cally requested to. The courthouse regulars, on the other hand, enjoy easy access to the front part of the courtroom.

The activities of the courthouse regulars rep- resent a complex network of ongoing social rela- tionships (Blumberg, 1970; Flemming, Nardulli, & Eisenstein, 1992; Guzik, 2007; Neubauer, 1974b; Sarat & Felstiner, 1995). These relationships are as important as they are complex. James Eisenstein and Herbert Jacob (1977) have proposed that the best way to analyze the network of ongoing rela- tionships among the courthouse actors is through the concept of the courtroom work group.

Judges, prosecutors, and defense attorneys are representatives from separate, independent spon- soring institutions. They are drawn together by a common task: Each must do something about a given case. As a result, courthouse regulars work together cooperatively on a daily basis in ways not envisioned by the formal adversary model (Jacob, 1991; Lichtenstein, 1984; Lynch & Evans, 2002). Indeed, in problem-solving courts (especially those subscribing to a therapeutic jurisprudence model) such cooperation forms the philosophi- cal backbone for the courts’ existence (Worrall & Nugent-Borakove, 2008). To understand the extent as well as the limits of this cooperation, we need to examine why courtroom work groups form in the first place and their impact on the administration of justice.

Mutual Interdependence The criminal courthouse is not a single organiza- tion but rather a collection of separate institutions that gather in a common workplace. Whereas most large organizations consist of distinct divi- sions operating under a central leadership, the criminal courthouse consists of separate institu- tions without a hierarchical system of control. For instance, a judge cannot reward a prosecutor or a public defender who performs well. Rather, each of the courthouse regulars is a representative of a sponsoring institution, which hires and fires them, monitors their activities, and rewards their performance.

that the defendant did violate the law but that no jury would convict.

Other discretionary decisions reflect policy priorities. Because criminal laws are so broad and general, they must be selectively enforced. The number of crimes that could be charged is virtually unlimited, but the resources devoted to detecting wrongdoers and processing them through the courts (and later incarcerating them) are limited. Thus, discretionary decisions are often made on the basis of policy priorities. Through policy priorities, court officials try to devote more resources to prosecuting serious crimes, such as murder, rape, and armed robbery, rather than minor offenses.

Other discretionary decisions reflect the deci- sion makers’ personal values and attitudes—their personal philosophies. Judges and prosecutors have varying views of what offenses are serious and deserving of a high priority. Differences among judges in the same courthouse are readily appar- ent. Some differences center on the purpose of the criminal law. Those who believe that the courts can deter crime (through heavy sentences, for exam- ple) behave differently from those who discount the role the courts can play in deterrence. Stated another way, the same differences of opinion about crime that characterize society as a whole likewise divide courthouse actors.

THE COURTROOM WORK GROUP

Every day, the same group of courthouse regulars assembles in the same courtroom, sits or stands in the same places, and performs the same tasks as the day before. The types of defendants and the nature of the crimes they are accused of also remain con- stant. Only the names of the victims and defen- dants are different. Whereas defendants come and go, the judges, prosecutors, defense attorneys, clerks, and probation officers remain the same. To even the most casual observer, the courthouse regulars occupy a special status. They freely issue instructions to the temporary visitors to the court- house (don’t smoke, don’t talk, don’t read the newspaper), although they smoke, talk, and read

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are made jointly. If something later goes wrong, work-group members have protected themselves because everyone thought it was a good idea at the time (Clynch & Neubauer, 1981).

The hallmark of work groups is regularity of behavior. This regularity is the product of shared norms about how each member should behave and what decisions are desirable. Courthouse workers can make their common worksite a fractious and unpredictable place for carrying out assigned tasks or, through cooperation, a predictable place to work. The greater the certainty, the less time and resources they need to spend on each case. Newcomers learn these important informal norms of cooperation through a process referred to as “socialization.”

Socialization A problem common to all organizations, courts included, is the need to break in new members, a process known as socialization. Through socialization, newcomers are taught not only the formal requirements of the job (how motions are filed and so on), but also informal rules of behavior. In other words, veteran members of the courtroom work group have to “break in” new members so that they understand the ways things are done (Haynes, Ruback, & Cusick, 2010; Wiseman, 1970).

Thus, newcomers learn not only from their peers but also from other members of the social network. One of the most important things they learn is the importance of shared norms. It is the shared norms that provide structure to what otherwise would appear to be an unstructured, almost chaotic, pro- cess. These shared norms allow the members of the courtroom work group to routinely process what are known as "normal crimes.”

Normal Crimes As discussed earlier, most of the matters before the courts are routine. Although each case is unique, most fall into a limited number of categories. Based on similarities among cases, members of the work group develop certain ideas about types of crimes and criminals. A landmark study in 1965 by Sudnow aptly labeled this phenomenon the normal

None of these actors can perform his or her tasks independently; they must work together. These interactions are critical because none of the courthouse regulars can make decisions indepen- dently; each must consider the reactions of oth- ers. This is most readily seen in the work of the defense attorney. In representing his or her client, the defense attorney must consider the type of plea agreement the prosecutor may offer, the sen- tencing tendencies of the judge, and the likelihood of a jury verdict of guilty. Prosecutors and judges are interdependent in similar ways.

Each member of the work group can achieve individual goals and accomplish separate tasks only through work-group participation. The actors come to share common interests in disposing of cases. Hence, cooperation—mutual interdependence— within the work group is viewed to lead to mutual benefits. Assistant prosecutors, for example, are judged by their superiors not so much on how many cases they win but on how few they lose. Thus, to secure their primary goal of gaining con- victions, they must depend on defense attorneys to sell their clients on the advantages of the bargain offered and also on judges to impose the agreed- upon settlement.

Shared Decision Making Courtroom work groups reflect shared decision making. Judges retain the legal authority to make the major decisions, such as setting bail and impos- ing sentences, but they often rely on others. They routinely follow the bail recommendations of the prosecutor and accept guilty-plea agreements reached by the defense and prosecution. This does not mean that the judge is without power; the other actors must be sensitive to what the judge might do. Prosecutors (and defense attorneys) know the amount of bail a particular judge has set in past situations, so that is what they recommend in the current case.

This shared decision making is highly func- tional because it diffuses responsibility. Judges, prosecutors, defense attorneys, and others are aware that the decisions they make could turn out to be wrong. Since such dire results cannot be pre- dicted, the members of the courtroom work group share a sense that when one of their members looks bad, they all look bad. Decisions, therefore,

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The Dynamics of Courthouse JusticeChapter 5 135

The past several de- cades have witnessed a monumental change in the gender composition of the American workforce. Not only are a higher percentage of women working outside the home, but women are also increasingly work-

ing in what were once considered male professions. Law most certainly is a case in point. Today, women constitute between 40 and 55 percent of all law students and make up nearly 30 percent of the nation’s judges (National Associa- tion of Women Judges, 2012).

One of the areas of most concern to the women’s rights movement is gender bias. Thirty-six states have created task forces to investigate gender bias in the legal system. Some state task forces define gender bias as making decisions based on stereotypes about men and women; others stress insen- sitivity toward certain aspects of men’s and women’s lives; still others emphasize intentional bias and ill will. Regardless of the precise definition, a team of researchers found these reports to be remarkably consistent. The state task forces consistently found gender bias in four areas of the legal sys- tem: domestic violence, sexual assault, divorce, and behavior toward female workers and domestic violence (Belknap, Hartman, & Lippen 2010; Hemmens, Strom, & Schlegel, 1997).

Sexual assault is one area in which women experience gender bias. Sexual assaults are underreported for a number of reasons, ranging from the stigma and internalized sense of shame that sexual assault victims often experience (Koss, 2000) to concerns about whether victims will be believed and whether they will be blamed (see Russell, Oswald, & Kraus, 2011). Moreover, many victims fear that reporting their sexual assault will result in revictimization by the justice system when its actors make judgments about the case based on their own attitudes (including sexism and belief in rape myths) and their perceptions of victim credibility, attractiveness, sexual history, attire, and level of intoxication (for a review, see Grubb & Har- rower, 2009).

Divorce cases are another area in which the possibility of gender bias looms. State task force reports unanimously

found that women suffer from gender bias in terms of awarding alimony, division of property, and child support. The courts, on the other hand, appear to be biased against fathers in child custody awards.

Finally, all the state task force reports found gender bias against female lawyers and court employees. Of principal concern were offensive and intolerable actions toward female participants in the legal system. The most common form of gender bias mentioned was the practice of judges’ and attorneys’ addressing female lawyers in a demeaning manner. Female lawyers, more so than their male counterparts, were addressed by their first names. Moreover, terms like “sweet- ie,” “little lady lawyer,” “pretty eyes,” and “dear” were used. Another common form of gender bias suffered by female attorneys (and judges) is sexist remarks or jokes. Gender bias also affects hiring and promotion. Female lawyers perceive that it is harder to get hired, and once hired they are paid less and have fewer opportunities for promotion.

It is important to underscore that these findings are based on reports of specific events (“Have you ever had remarks made about your looks?”) as well as perceptions of gender bias or problems. Women consistently reported problem areas at higher levels than men. Answers to questions like those asked in surveys, of course, can be understood in different ways. Per- haps women are oversensitive to these issues (or alternatively, males are oblivious). Another stumbling block is the difficulty in estimating the true extent of the gender-bias problem. Percep- tions of bias could be the product of an isolated few who have contact with many female lawyers and judges or they could be the result of persistent practices by numerous male lawyers and judges.

Perceptions of gender bias are a serious matter because they affect litigants’ perceptions of the fairness of justice. If litigants and/or their lawyers perceive that they are treated differently, they have less confidence in the process of justice, irrespective of the outcome of the case. It is also im- portant to underscore that the gender-bias issues investigat- ed must be taken seriously because they directly affect the lives of many women and their children as well. Moreover, the issues are some of the most explosive facing the justice system and have become, in a relatively few years, important public issues.

IS GENDER BIAS A SIGNIFICANT PROBLEM IN THE COURTS?

COURTS, C O N T ROV E R S Y,

& GENDER EQUITY

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stability of the work groups varies—low turn- over in some courts promotes stability in the work group, while high turnover in others pro- duces ongoing disruptions of the relationships in the courthouse.

Mavericks can be found in most courthouses. Some defense attorneys engage in hostile rela- tions with prosecutors and exhibit many attri- butes of adversarial behavior. They do so at a price, however: They are seldom able to negotiate effectively for good deals during plea bargaining (Covey, 2007).

The policy norms vary from community to community. Property crimes are viewed as more threatening in rural areas than in urban ones, so the appropriate penalty for a defendant convicted of burglary in a rural area is more severe than that for a defendant convicted in a big city. In recent years, one set of major concerns about the policy norms relates to gender equity (see “Courts, Controversy, and Gender Equity: Is Gender Bias a Significant Problem in the Courts?”).

To the general public, perhaps the most visible variation between work groups concerns delay. Each courthouse has, over time, evolved a set of expectations about the proper pacing of case dispo- sitions. Some courthouses process cases in a timely fashion, others do not.

THE PROBLEM OF DELAY

A commonly mentioned problem affecting many of the nation’s courts is that too many cases take too long to reach disposition. The magni- tude of the backlog and the length of the delay vary greatly, however, depending on the court involved.

crime, a term still used today. The legal actors cat- egorize crimes on the basis of the typical manner in which they are committed, the typical social char- acteristics of the defendants, and the types of vic- tims. Once a case has been placed into one of these categories, it is usually disposed of on the basis of a set pattern. In essence, normal crimes represent a group sense of justice.

Rewards and Sanctions Actors who violate these rules of personal and professional conduct can expect sanctions from the other members of the work group. A variety of rewards (carrots) are available as benefits to those who follow the rules. For example, defense attor- neys who do not unnecessarily disrupt routines are able to negotiate a sentence that is slightly less severe than normal. In turn, some sanctions (sticks) may be applied to those who do not coop- erate. Judges can sanction uncooperative private defense attorneys, for instance, by making them wait for their case to be called. By far the more effective approach is the carrot, because it oper- ates indirectly and is less disruptive. The impo- sition of sanctions can lead to countersanctions, with the result that the network is disrupted even further.

Variability in Courtroom Work Groups Virtually all criminal courts studied to date exemplify the patterns that were just discussed of how courtroom work groups operate that were just discussed, but some important varia- tions need to be considered. For example, the

Gender bias is not a problem created by the court system; rather, it is a reflection of prevailing attitudes in society. Although “current laws and affirmative action plans have furthered women’s equality, they cannot by themselves change the attitudes of individuals. It is the individual attitudes that require change if gender bias is to be eradicated” (Hem- mens et al., 1997, p. 31).

What do you think? Is gender bias a serious problem in the nation’s courthouses? Have you seen or experienced biased behavior by lawyers, judges, or other court personnel? If you are troubled by using individual reports to make the case for gender bias, what alternative methods would you use to study the problem?

Continued from previous page

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In a general sense, the term delay suggests abnormal or unacceptable time lapses in the pro- cessing of cases (Neubauer, Lipetz, Luskin, & Ryan, 1981). The inherent subjectivity of the term becomes apparent when we try to define unnecessary delay (Neubauer, 1983; Steelman, 1997). Although the question “How long is too long” varies by both jurisdiction and the complexity of cases, the American Bar Association (ABA) and the Confer- ence of State Court Administrators (COSCA) have both established standards that establish nonbind- ing expectations for the reasonable processing of cases (Figure 5.2).

Over three-fourths of the states have adopted their own case-disposition targets, some of which aspire to meet the ABA or COSCA standards (Van Duizend, Steelman, & Suskin, 2011). And, many

courts are, in fact, meeting these model time stan- dards, as 88 percent of felony defendants in large urban counties have their cases disposed within 1 year (Cohen & Kyckelhahn, 2010). But, as Figure 5.3 illustrates, there is great variability.

From one perspective, the data presented in Figure 5.3 suggest that some courts are not cur- rently meeting the recommended standards. But from a different perspective, perhaps they are, because the data measures time from arrest to dis- position, thus including the time that passes in the prosecutor’s office as well as in the courts.

Consequences of Delay Concern that “justice delayed is justice denied” is as old as the common law itself. In the 13th century,

Figure 5.2 ■ Case-Processing Standards SOURCE: Model Time Standards for State Trial Courts: Williamsburg VA: National Center for State Courts, 2011. Available online at http://www.ncsconline.org. Reprinted by permission.

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138 Part II / Legal Actors

legal system. The three most often cited negative consequences of delays in the courthouse center on defendant, society, and citizen.

Historically, court delay was considered a problem because it jeopardized the defendant’s right to a speedy trial. The Sixth Amendment provides that “in all criminal prosecutions, the

the nobles forced King John to sign the Magna Carta and promise not to “deny or delay right or justice.” In the 19th century, the novelist Charles Dickens condemned the tortuous process of litiga- tion in the English courts. Today, judicial reform- ers and critics argue that case delay undermines the values and guarantees associated with the

Figure 5.3 ■ A Comparison of Felony Disposition Times in Four Courts SOURCE: CourTools: Trial Court Performance Measures. Williamsburg VA: National Center for State Courts, 2005. Available online at http://www.ncsconline.org/D_Research/CourTools/Images/courtools_measure3.pdf.

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and defendants’ skipping court appearances (Chapter 10) were related to case delay, the report did not find support for the assertions that case delay causes deterioration of cases or pres- sures prosecutors to offer lenient plea bargains. Over the decades since then, we have learned more about the problems of court delays. While improved case-flow management implemented in the 1980s and 1990s shortened the median time from arrest to disposition, it is clear that such techniques “can probably never be viewed as a full and final solution to court delay” (Steelman, 1997, p. 158).

LAW ON THE BOOKS APPROACH TO COURT DELAY

The law on the books approach to court delay focuses on resources and procedures. It is an article of faith among many commentators that the problem of delay results from an imbalance between available resources and mounting case- loads (Church & McConnell, 1978). A common response is to supplement resources—add judges, prosecutors, clerks, and so on—although the reali- ties of today’s austere budgets often prevent doing so. Beyond adding more resources when finan- cially feasible, traditional court reformers empha- size streamlining procedures. They view proce- dural stages such as preliminary hearing, grand jury indictment, and pretrial motions as sources of delay. But this conventional wisdom about court delay has been called into serious question (Church, 1982; Gallas, 1976).

In Justice Delayed (Church, Carlson, Lee, & Tan, 1978), the National Center for State Courts stud- ied 21 courts across the nation and found that the level of court resources was not associated with court delay. The relative size of court caseloads, for example, bore little relationship to case-pro- cessing time. Similarly, court procedures were poor predictors of delay. Courts that emphasized plea bargaining (as opposed to trying cases) were as fast (or as slow) as their opposite numbers (see also, Steelman, 1997).

These findings explain why the law on the books approach—issuing more and more rules and regulations—is often ineffective in speeding up

accused shall enjoy the right to a speedy and public trial. . . .” Defendants may languish in jail for a number of months before guilt or innocence is determined. A number of states have enacted speedy-trial laws premised on the need to protect the defendant’s rights.

More recently, delay has been viewed as hampering society’s need for a speedy convic- tion. This view stresses harm done to the pros- ecution’s case. As the case becomes older and witnesses’ memories diminish, the defendant’s chances of acquittal increase. In short, the state is also viewed as possessing the right to a speedy trial. Thus, in recent years some jurisdictions have enacted speedy-trial laws to try to increase conviction rates.

Regardless of the costs or benefits to either the defense or the prosecution, a third perspective emphasizes that delay erodes public confidence in the judicial process. Citizens lose confidence in the swiftness or certainty of punishment for those who are found guilty. In addition, victims and wit- nesses may be forced to make repeated, needless trips to the courthouse. Such appearances can cost citizens time and money and ultimately discourage them from prosecuting. Overall, delay in disposing of cases wastes the resources of the criminal justice system.

Assessing the Costs of Delay Assertions about the costs of delay require care- ful scrutiny. A general consensus has emerged that delay is a problem facing the courts, with no agreement about the particulars. The three perspectives just described stress different rea- sons that delay is a problem. Some perceive that lengthy pretrial incarceration forces defendants to enter into detrimental plea bargains. Others, however, portray caseload pressures as forcing prosecutors into offering unduly lenient negoti- ated agreements.

In 1978, The National Center for State Courts sponsored a landmark study on the problem of delay in criminal cases (Church & McConnell, 1978). The report noted that few of the assertions about the social costs of delay have been sub- jected to empirical examination. While there was some evidence to indicate that jail overcrowding

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delaying civil cases. Potential difficulties also arise because not all cases fit easily into the mandated time frames. A major murder case or a large drug- smuggling case takes longer to prepare than an ordi- nary burglary prosecution.

Researchers approach speedy-trial laws with considerable skepticism. Various studies find that such laws have had limited impact in speeding up the flow of cases through the state criminal court process (Church et al., 1978; Mahoney, Aik- man, Casey, Flango, Gallas, Henderson, Ito, Steel- man, & Weller, 1988; Nimmer, 1978). The primary reason is that most state laws fail to provide the court with adequate and effective enforcement mechanisms. As a result, the time limits specified by speedy-trial laws are seldom a guide to actual practice. One study found that North Carolina’s speedy-trial law did indeed speed up the crimi- nal docket, but Connecticut’s law did not (Marvell & Luskin, 1991). The federal speedy-trial law has proven effective. The average criminal case filed in the federal courts in the early 1970s took 7 months to reach a disposition. By the early 1980s, the aver- age case was disposed of in less than 3 months. Thus, the federal approach of court planning fol- lowed by fixed standards works to reduce delay (Garner, 1987).

Without adequate resources, however, speedy trials are doomed to failure. Recent budget cuts have increased court delays in California. Officials predict extended waits for lawsuits to reach court, longer custody fights, and even lengthy battles to challenge traffic citations (Dolan & Kim, 2011)

Overall, researchers stress that law in action approaches to reducing court delay are ultimately more effective.

LAW IN ACTION APPROACH TO COURT DELAY

Law on the books approaches to reducing court delay are ineffective because they ignore the dynamics of courthouse justice. All too often, the impression conveyed is that case-flow manage- ment is somehow removed from other issues in the criminal court process. Delay is related not to how many cases a court must process but to the choices that the actors make in how they process these

case dispositions and reducing excessive caseloads. Speedy-trial laws are a case in point.

Speedy-Trial Laws Speedy-trial laws are federal or state statutes that specify time limits for bringing a case to trial after arrest. Some speedy-trial laws specify precise time standards for periods from arrest to arraignment, trial, and or sentencing. These laws supplement the provisions of the U.S. Constitu- tion and 35 state constitutions that have speedy- trial guarantees. These provisions, however, apply only when the delay has been “extensive.” What constitutes unnecessary delay, however, is difficult to pinpoint (see “Case Close-Up: Barker v. Wingo and the Right to a Speedy Trial”). Given the vagueness of these constitutional standards, legislatures have shown considerable interest in putting some teeth into the guarantee of a speedy trial. The best-known such effort is the Speedy Trial Act of 1974 (amended in 1979), which speci- fies time standards for the two primary stages in the federal court process. A span of 30 days is allowed from arrest to indictment, and 70 days from indictment to trial. Certain time periods, such as those associated with hearings on pretrial motions and the mental competency of the defen- dant, are considered excludable time.

Speedy-trial statutes exist in all 50 states (Herman & Chemerinsky, 2006), but they have a different orientation from their federal counterpart. Most state laws are defendant-centered; that is, they are designed to protect defendants from suffering extensive delay, particularly if they are incarcer- ated prior to trial. By contrast, the federal law is designed to protect the interests of society; that is, a speedy trial is viewed as an important objective irrespective of whether the defendant’s interests are in jeopardy.

Limits of Speedy-Trial Laws Efforts to mandate speedy trials are striking in their lack of specifics. These laws are not based on an analysis of why delay occurs. Moreover, they do not provide for any additional resources (more judges or prosecutors) to aid the courts in complying. This can produce unforeseen consequences. In a number of federal courts, compliance has come at the price of

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for typical cases. Within the four courts stud- ied—the Bronx, Detroit, Miami, and Pittsburgh— there was little systematic disagreement among judges, defense counsel, and prosecutors on the appropriate pace of case dispositions (Church et al., 1978). More recent studies have similarly concluded that “pervasive local legal culture that transcends court jurisdiction, court size, judicial resources, court rules, or calendaring systems as the explanation of differences in the pace of litigation in fast and slow courts” (Gal- las, 2005, p. 23). Findings like these show why law in action approaches to court delay seek to

cases. Defense attorneys, for example, may seek continuances to avoid harsh judges, to obtain more time to prepare a defense, or even to pressure the client to pay the agreed-upon fee. Prosecutors may use delay to increase the stakes of plea bargaining or to postpone weak cases they are likely to lose. Judges acquiesce to requests for continuances so as not to disrupt the dispositional process (Flemming et al. 1987).

For these reasons, lawyers and judges are generally content with the existing pace of liti- gation in their courts. Practitioners were asked to provide appropriate case-processing times

The police arrested two suspects—Willie Barker and Si- las Manning—for beating an elderly couple to death with a tire iron in Christian County, Kentucky. The district at- torney had a stronger case against Manning and believed that Barker could not be convicted unless Manning testi- fied against him. Thus, the district attorney first sought a conviction against Manning. The court-appointed lawyer initially had no objection to continuing the trial; after all, an acquittal could only help Barker.

The Commonwealth of Kentucky, however, encoun- tered more than a few difficulties in its prosecution of Manning. Altogether, six trials were conducted. Two ended in hung juries and two others in convictions that were reversed on appeal. Finally, Manning was convicted of mur- dering one victim, and a sixth trial resulted in a conviction for the other murder.

During these legal maneuverings, Barker was in jail for 10 months, which largely explains why at the time the 12th continuance was requested, the defense filed a motion to dismiss the charges. By the time the Com- monwealth was ready to try Barker (after two more continuances), another problem arose: The chief inves- tigator on the case was ill, resulting in two additional continuances. Eventually, the judge announced that the

case would be dismissed if it were not tried at the next scheduled date. The trial finally commenced, with Manning as the chief prosecution witness; Barker was convicted and given a life sentence.

In assessing these lengthy delays, the opinion of the Court notes that “the right to speedy trial is a more vague concept than other procedure rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate” (Barker v. Wingo, 1972, p. 522). In essence, the right to a speedy trial is relative, not absolute. The test would be a balancing test, in which the conduct of both the prosecution and the de- fendant are weighted. Calling the delay “extraordinary,” the Court nonetheless ruled that Barker’s case was not seriously prejudiced by the more than 5-year delay.

Only in extraordinary circumstances has the Court ordered criminal charges dismissed for lack of a timely trial. One such situation involved an 8-year gap between indictment and arrest. The government was negligent in making any effort to track down the defendant, and the defendant was entitled to go free without a trial (Doggett v. United States, 1992).

BARKER . WINGO AND THE RIGHT TO A SPEEDY TRIALCASE CLOSE-UP

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Variability in Courtroom Work Groups Revisited The variability in courtroom work groups (dis- cussed earlier in this chapter) has major conse- quences for how long it takes courts to dispose of cases. A team of researchers associated with the National Center for State Courts studied a blend of urban and rural courts (Ostrom, Ostrom, Hanson, & Kleiman, 2007). In each courthouse, they inter- viewed the wide range of officials discussed in this chapter. They focused on how cases were managed and how court actors interacted and found four distinctive ways of doing things.

Some courts were characterized as hierarchical because there was a clear chain of command among judges, administrative staff, and courtroom staff. Courts with a hierarchical culture processed felony cases significantly faster than other courts. Other courts were characterized as communal because they valued communication, cooperation, and com- promise. Courts with a communal culture processed felony cases more slowly than other courts. The authors caution that no cultural type is necessarily good or bad. Rather, variations in courtroom work groups reflect responses to multiple goals as well as differing ways of managing relations between a diverse set of courthouse actors (Ostrom et al., 2007).

LEGAL ETHICS

Lawyers often suffer from a negative public image, which is one reason the legal profession places considerable emphasis on legal ethics. Ethics refers to the study and analysis of what constitutes good or bad conduct (Pollock, 2012). Legal ethics represents a specific type of ethics. First, it is an example of applied ethics, in which ethical prin- ciples are applied to specific issues. Legal ethics is also an example of professional ethics, because it involves the behavior of a profession, in this case the legal profession. All ethical systems, legal ethics included, have a moral component. But morality and ethics are different. Whereas morality empha- sizes a set of moral absolutes, legal ethics involves the difficult task of helping lawyers sort out the best option when perhaps no good options exist.

Legal ethics is of critical importance because the American legal system is based on the adversarial

alter practitioners’ attitudes regarding proper case-disposition times. Improving case sched- uling and trying to achieve better coordination among courtroom work-group members are two such approaches.

Case Scheduling Waiting is one activity in which people at the courthouse inevitably become engaged. A busy courtroom can grind to a halt because an impor- tant witness fails to show up or a lawyer is detained in another courtroom. From an adminis- trative perspective, the courts are extremely com- plex institutions. The disposition of a case often requires the presence of the following individu- als: judge, clerk, court reporter, bailiff, defendant, prosecutor, defense attorney, police officer, victim, and witness. Depending on the procedural stage, jurors, a probation officer, a pretrial services rep- resentative, and an interpreter may also need to appear.

Many of these people have several differ- ent courts to appear in during a single day. For example, defense attorneys, prosecutors, and pro- bation officers may have several cases set for the same time. There can be administrative problems, too. Because of an illegible address, the defendant never receives a notice. Or the jailer may forget to include the needed defendant on the day’s list. If just one person is late, the others must wait, and if one person never shows up at all, the hearing must be rescheduled.

Efforts at Coordination As we have noted previously, the court is actually a collection of agents from separate and indepen- dent organizations: judge, police officer, prosecu- tor, sheriff, clerk, and probation officer. Most of these organizations are headed by elected officials or, like the police, report to elected officials. They have their own bases of power, their own sepa- rate legal mandates, and their own scheduling problems. Judges and court administrators, there- fore, have only limited control over coordinating interagency schedules and cooperative efforts (although they are often held responsible when something goes wrong).

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The Dynamics of Courthouse JusticeChapter 5 143

disbarment, which permanently revokes a lawyer’s right to practice law. These recommendations may be appealed to the state supreme court, which, after a public hearing, may accept, modify, or reject them. Bar association sanctions against lawyers are rela- tively rare, however.

The typical remedy for legal mistakes made during the trial is an appellate court reversal (Chapter 16). Legal ethics is enforced in other ways, as well, including sanctions meted out by judges (Chapter 8) and civil lawsuits for legal malpractice (Chapter 7). Typically though, lawyers working in the criminal justice system enjoy legal immunity, which is to say you cannot sue a prosecutor, defense attorney, or a judge just because you lost your case.

The ethical issues surrounding the three types of lawyers who appear in court vary greatly depend- ing on the role they play. In the next chapters, we will examine some of the legal issues facing pros- ecutors, defense attorneys, and judges.

CONCLUSION

Discussions of court delay and its consequences all too often are conducted in abstract terms. Barker v. Wingo, however, forces one to deal with some of the realities. The Court’s opinion is clearly mindful of the fact that to interpret the right to a speedy trial in a manner understood by the drafters of the Con- stitution would, in all likelihood, result in brutal murderers being set free.

Barker v. Wingo and our discussion of the prob- lem of delay show that the actual operations of the criminal courts differ greatly from official expec- tations. Three concepts—excessive caseloads, discretion, and the courtroom work group—have been used to explain this gap between the law in action and the law on the books. Although courts are burdened with too many cases, an excess of cases is at best only a partial explanation for the behavior of the criminal courts. More important is the role discretion plays in the court system, shap- ing the dictates of formal law to the actual cases and defendants that come to the criminal courts. The courtroom–work-group concept emphasizes the interactions among the key actors in court. The next three chapters will examine in greater depth how prosecutors, defense attorneys, and judges work within the courtroom work group, and why.

system, which stresses verbal combat. At its basis, this system represents a fight between opposing viewpoints, and the use of legal ethics is one way to regulate this verbal combat to ensure, in essence, a fair fight. At heart, legal ethics emphasizes protect- ing clients by ensuring that they have competent attorneys to forcefully present their cases. Legal ethics also seeks to promote public respect for the legal system. Thus, lawyers are not allowed to mis- lead the court, nor can they knowingly allow wit- nesses for their side to perjure themselves.

Regulation of the legal profession begins with codes of legal ethics and professional responsibili- ties. The American Bar Association (ABA) adopted the Model Rules of Professional Conduct in 1983, which it updates periodically. These rules serve as mod- els for the ethics rules of most states. But, consis- tent with federalism (see Chapter 3), each state has adopted its own code. Thus, state bar associations, not the national association of lawyers, enforce these codes. Law students are required to take a course in legal ethics, and before they can be admitted to the bar, they must pass a separate test on legal ethics.

The codes of legal ethics promulgated by the legal profession are increasingly supplemented by statutes and court decisions. Most important, the Supreme Court has made significant rulings on when pros- ecutors must disclose exculpatory information to the defense (Chapter 12) and when prosecutors may not use race as a factor in jury selection (Chapter 13).

The primary responsibility for establishing and enforcing professional standards of conduct for the legal profession rests with the highest court of each state. In turn, state courts of last resort have delegated enforcement to the state bar association, which estab- lishes a specific committee to enforce the provisions. Disciplinary proceedings typically begin with the fil- ing of a complaint by a disgruntled client, although judges, other lawyers, or the committee itself can initi- ate action. Complaints about attorney misconduct are typically investigated in secret, although a few states mandate a more public process. Most complaints are dismissed because of insufficient evidence. But when evidence of an ethical violation exists, the commit- tee files charges and conducts a private hearing. If the charges are proved, the committee recommends disciplinary actions, which can range from a repri- mand (either private or public) to a suspension of the license to practice law for a given period of time to restitution to the client. The most severe sanction is

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144 Part II / Legal Actors

1. Take a tour of your local courthouse. How does your perception of it match the description at the beginning of this chapter? Compare notes with other classmates; perhaps they focused on features that you did not.

2. Place yourself in the position of a felony court pros- ecutor. In what ways does the cooperation of other

members of the courtroom work group work to your benefit? How would your answer be different if you approached the question from the vantage point of the judge or the defense attorney?

3. Of the several consequences of delay, which one do you think is the most important? Which one is the least important?

Critical Thinking Questions

1. Have a general sense of who works where in the courthouse.

Bail bondsmen have their offices outside courthouses. Judges, lawyers, clerks, court stenographers, law clerks, and bailiffs work inside the courtroom. Clerks of court and court administrators work behind the scenes.

2. Analyze the importance of assembly-line justice.

The concept of assembly-line justice stresses the high volume of cases in courthouses and the emphasis on moving the docket.

3. Describe why discretion is found in the criminal courts.

At every key stage of the criminal court process, humans must apply the law. Choices are made on the basis of legal judgments, policy priorities, and values and attitudes of the actors.

4. Identify the principal actors in the courtroom work group.

The courtroom work group refers to the regular participants, such as judges, prosecutors, and defense attorneys, who interact on a daily basis.

5. Indicate why ethics is important to the American legal system.

Legal ethics are important because they provide necessary boundaries on conflict

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represented by the adversary system and also seek to ensure clients that their lawyers are working in their best interests.

6. Contrast differing understandings of why delay is a problem in the courts.

Some see delay as a problem because it works to the disadvantage of the prosecutor, others see delay as a problem because it jeopardizes the rights of defendants, and still others see delay as a problem because it reflects a waste of resources.

7. Discuss the strengths and weaknesses of speedy-trial laws.

Speedy-trial laws reflect a law on the books approach to problem solving. Although these laws have the advantage of calling attention to delay as a problem, they are limited because they provide no mechanisms to deal with discretion.

8. Explain why law in action approaches to court delay are more effective than law on the books approaches.

Law in action approaches to solving the problem of delay can prove effective because they focus on coordinating the activities of the key actors in the courthouse. Without such coordination, the local legal culture is unlikely to be changed.

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Chapter Review

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The Dynamics of Courthouse JusticeChapter 5 145

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

assembly-line justice 130

clerk of court 126

courtroom work group 133

delay 137

discretion 132

legal ethics 142

normal crime 134

routine administration 132

socialization 134

speedy-trial laws 140

Key Terms

Aikman, Alexander. The Art and Practice of Court Adminis- tration. Boca Raton, FL: CRC Press, 2006.

Bach, Amy. Ordinary Injustice: How America Holds Court. New York: Holt Paperbacks, 2009.

Barrett, Jimmie. Protecting Court: A Practitioner’s Guide to Court Security. Minneapolis, MN: Mill City Press, 2009.

Braswell, Michael, Belinda McCarthy, and Bernard Mc- Carthy. Justice, Crime and Ethics. 5th ed. Cincinnati: Anderson, 2005.

Burke, Kevin, and Frank Broccolina. 2005. “Another View of Local Legal Culture: More Than Court Culture.” Court Manager 20: 29.

Castellano, Ursula. 2009. “Beyond the Courtroom Work- group: Caseworkers as the New Satellite of Social Control.” Law and Policy 31: 429–462.

Gould, Jon, Roger Hartley, William Raftery, Linda Merola, and James Oleson. “The Challenges and Opportuni- ties of Evidence-Based Management in the Courts.” Judicature 95: 61–67, 2011.

Haynes, Stacy, Barry Ruback, and Gretchen Cusick. ”Courtroom Workgroups and Sentencing: The Effects of Similarity, Proximity, and Stability.” Crime & Delin- quency 56: 126–161, 2008.

Lipetz, Marcia. “Routines and Deviations: The Strength of the Courtroom Workgroup in a Misdemeanor Court.”

International Journal of the Sociology of Law 8: 47–60, 1980.

Merritt, Nancy. 2006. Sentencing Reform and the Influence of Courtroom Communities: Oregon’s Measure 11. Newark: Rutgers, The State University of New Jersey–Newark.

National Association for Court Management. 2011. “Visioning and Strategic Planning.” Available online at http://www.nacmnet.org/CCCG/strategic-planning. html

1Olin, Dirk, and Rebecca Kourlis. Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care. Golden, CO: Institute for the Advancement of the American Legal System, 2011.

Orlik, Deborah. Ethics for the Legal Professional. 7th ed. Upper Saddle River, NJ: Pearson, 2010.

Peak, Kenneth. Justice Administration: Police, Courts and Corrections Management. 7th ed. Upper Saddle River, NJ: Pearson,2012.

Souryal, Sam. Ethics in Criminal Justice: In Search of the Truth. 5th ed. Burlington, MA: Anderson, 2011.

Stojkovic, Stan, John Klofas, and David Kalinich. The Administration and Management of Criminal Justice Organizations. Long Grove, IL: Waveland Press, 2010.

Wendel, Bradley. 2007. Professional Responsibility and Explanations. New York: Aspen.

For Further Reading

4. In Barker v. Wingo, the U.S. Supreme Court stressed the legitimate reasons for the 16 trial

continuances. But is there a danger that prosecu- tors might illegitimately seek continuances?

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

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

ELEVENTH EDITION

AMERICA’S COURTS

AND THE CRIMINAL JUSTICE SYSTEM

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6 Prosecutors

Former District Attorney Mike Nifong, left, speaks while Duke lacrosse player Reade Seligmann, right, listens in the courtroom

at a Durham County, NC, court building in 2006. Instead of trying to

find the truth about what happened on March 13, 2006, Nifong set

out to prove that three Duke University lacrosse players had raped

an exotic dancer. Nifong’s conduct led to his being disbarred from the

practice of law by the State Bar of North Carolina. But the result of

the disciplinary action against Nifong may never be able to erase the

stain left by a case that went wrong from the start for Duke lacrosse

players Dave Evans, Collin Finnerty, and Reade Seligmann.

146

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Chapter Outline ROLE OF THE PROSECUTOR

Broad Discretion Charging Decisions

CASE CLOSE-UP: Connick v. Thompson and Prosecutorial Misconduct

Decentralization

PROSECUTION IN FEDERAL COURTS

Solicitor General Criminal Division of the Justice Department U.S. Attorneys

PROSECUTION IN STATE COURTS State Attorneys General Chief Prosecutor Local Prosecutor

THE PROSECUTOR’S OFFICE AT WORK

Assistant District Attorneys Learning the Job Promotions and Office Structure

Supervision Attempts at Greater Supervision

PROSECUTORIAL ETHICS Prosecutorial Immunity

Ethical Duties of Prosecutors

Courts, Law, & Media Nancy Grace

PROSECUTORS AND COURTROOM WORK GROUPS

Conflicting Goals and Contrasting Work Groups Political Styles and Contrasting Work Groups

THE EXPANDING DOMAIN OF THE PROSECUTOR

Improving Police–Prosecutor Relationships Community Prosecution

Courts, Controversy, & Gender Equity Are Sexual Assaults against Women

Underprosecuted?

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to become known for ‘a bunch of lacrosse players from Duke raping a black girl,’” proclaimed Mike Nifong, candidate for district attorney. After a 30-year career as an assistant prosecutor in Durham County, North Carolina, Nifong was running for election as district attorney. His comments fanned the fires of what quickly became a sensational national case.

Following a party thrown by the Duke lacrosse team, three team members were accused of sexually assaulting a woman who had been hired as a stripper. While the case was being investigated and while charges were pending, Nifong made nearly 50 pretrial statements to the press.

Among the statements, ten were alleged to be improper commentary on the team members’ failure or refusal to give information to law enforcement authorities and their invocation of their constitutional rights. Another ten were alleged to be “improper commentary on [his] opinion about the guilt of the accused and/or about his opinion that a crime had occurred.” Finally, the bar listed statements that particularly heightened public condemnation of the accused, many of which asserted a racial motivation for the attack. (Mosteller, 2007, p. 1349)

Nifong was apparently motivated to appear in the media as a crusader for racial justice while he was locked in a tight reelection battle. He represented himself as someone fighting to vindicate a young, African-American woman’s sexual victimization by White student- athletes of socioeconomic privilege. And his plan worked; Nifong was reelected with strong support from the Black community in the Durham area even though one of his opponents, a Black man, had won some major community endorsements that would typically sway the larger community (Mosteller, 2007). Nifong would win the election, but the rape charges would eventually be dismissed for lack of evidence.

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After reading this chapter, you should be able to:

Discuss the two major characteristics of prosecutors in the United States. Describe the three most important entities in federal prosecution. Identify the three somewhat overlapping agencies involved in prosecution in state courts. Explain the major factors affecting the work life of assistant district attorneys. Analyze the principal factors affecting prosecutorial ethics. Outline two major examples of the expanding domain of the prosecutor.

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This chapter discusses several factors involved in the work of the prosecutor. We begin by exam- ining the prosecutor’s role in the criminal justice system and then consider separately the struc- ture of federal and state prosecutors’ offices. Our focus then shifts to actual courtroom behavior, looking at prosecutors at work. But prosecutors do not work in isolation. Thus, the later parts of this chapter look at prosecutors within the context of the courtroom work group and their expanding domain in the criminal justice system.

Although the Duke lacrosse sexual assault case was highly unusual, it illustrates the influential role prosecutors play in the criminal justice sys- tem. More so than judges and defense attorneys, the prosecutor is the most powerful official in the criminal courts. From initial arrest to final disposition, how the prosecutor chooses to exer- cise discretion determines to a large extent which defendants are prosecuted, the type of bargains that are struck, and the severity of the sentence imposed.

In addition to filing politically motivated charges that were allowed to continue for months even though it had become clear that the defendants were innocent, Nifong concealed exculpatory DNA evidence and made deceptive and misleading statements to the press, the trial court, fellow attorneys, and the state bar. This unethical conduct ultimately resulted in Nifong being hauled before the State Bar of North Carolina for disciplinary proceedings. The State Bar concluded that Nifong violated several provisions of the North Carolina Revised Rules of Professional Conduct, including two parts of Rule 3, which concern pretrial publicity. (These rules are based on the Model Rules of the American Bar Association which have been adopted in more than 40 states.)

Rule 3.6(a) prohibits a lawyer from making an “extrajudicial statement that the lawyer knows, or reasonably should know, will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Rule 3.8(f) prohibits prosecutors from making out-of-court statements that have a substantial likelihood of heightening public condemnation of the accused.

Nifong’s violation of these rules, among others, ultimately caused him to lose his license to practice law, because the rules are designed to protect criminal defendants’ Sixth Amendment right to a fair trial from being eroded by unfair media coverage from a seemingly reliable source (see Chapter 13). But Nifong made some outrageous statements in spite of these ethics rules when he said things like, “The guilty will stand trial” and “I am convinced there was a rape.”

Nifong also improperly commented on the lacrosse players’ invocation of the right to remain silent and the right to counsel as evidence of their guilt when he said to the media, “If it’s not the way it’s been reported, then why are they so unwilling to tell us what, in their words, did take place that night?” Nifong also said, “And one would wonder why one needs an attorney if one was not charged and had not done anything wrong.”

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ROLE OF THE PROSECUTOR

The prosecutor is of critical importance because of the office’s central position in the criminal justice system. Whereas police, defense attorneys, judges, and probation officers specialize in specific phases of the criminal justice process, the duties of the prosecutor bridge all of these areas. This means that on a daily basis, the prosecutor is the only offi- cial who works with all actors of the criminal jus- tice system. As Justice Robert Jackson (1940, p. 18) once remarked, “The prosecutor has more control over life, liberty, and reputation than any other per- son in America.”

Prosecutors stand squarely in the middle of the fragmented nonsystem of criminal justice discussed in Chapter 1. Naturally, the various actors have conflicting views about how prosecutorial discre- tion should be used—the police push for harsher penalties; defense attorneys, for giving their clients a break; and judges, to clear the docket. Thus, pros- ecutors occupy a uniquely powerful and highly visible position in a complex and conflict-filled envi- ronment. Amid the diffusion of responsibility that characterizes the criminal justice system, power has increasingly been concentrated in the hands of the prosecutor (Misner, 1996; Worrall & Borakove, 2008).

Broad Discretion A key characteristic of the American prosecutor is broad discretion. Although the prosecutor works in the courthouse, the office of prosecutor is part of the executive branch of government. This indepen- dence from the judiciary is vital for the proper func- tioning of the adversary system, since prosecutors at times challenge judicial decisions. The breadth of prosecutorial power stems from numerous court cases since 1833. Typical is People v. Wabash, St. Louis, and Pacific Railway, an 1882 decision in which the Illinois Court of Appeals stated that the district attorney (DA) “is charged by law with large dis- cretion in prosecuting offenders against the law. He may commence public prosecutions . . . and may discontinue them when, in his judgment the ends of justice are satisfied.” In decisions like this one, appellate courts have allowed the modern pros- ecuting attorney to exercise virtually unfettered discretion relating to initiating, conducting, and

terminating prosecutions (Albonetti, 1987; Jacoby, 1980; Sarat & Clarke, 2008). The “Law on the Books vs. Law in Action” feature provides an overview of the role of the prosecutor throughout the criminal justice process.

It is only during the trial itself that appellate courts have placed restrictions on the exercise of prosecutorial power. In the context of the adversary system, the prosecutor is expected to advocate the guilt of the defendant vigorously. But the prosecu- tor is also a lawyer and is therefore an officer of the court; that is, he or she has a duty to see that justice is done. Violations of the law must be prosecuted, but in a way that guarantees that the defendant’s rights are respected and protected. In 1935, the Supreme Court spelled out the limitations imposed on prosecutors by their obligation as officers of the court: “He may prosecute with earnestness and vigor—indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful convic- tion as it is to use every legitimate means to bring about a just one” (Berger v. United States 1935, p. 88).

In recent years, the Supreme Court has expressed repeated concern about prosecutorial misconduct. Convictions have been reversed because prosecu- tors were too zealous in their advocacy. But at the same time, the nation’s highest tribunal has also decided that prosecutors enjoy absolute immunity from civil lawsuits when acting as courtroom advo- cates. However, under other conditions, prosecu- tors may be sued civilly (see “Case Close-Up: Con- nick v. Thompson and Prosecutorial Misconduct”).

Charging Decisions Of all the discretionary decisions prosecutors routinely make, perhaps none is more important than the decision whether to file charges, thereby transforming a suspect into a criminal defen- dant. There are few, if any, legislative or judicial guidelines to guide prosecutors in the exercise of their discretion in this domain. Indeed, the Supreme Court has made it clear that, “So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury generally rests entirely in his discretion”

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LAW ON THE BOOKS VS. LAW IN ACTION ROLE OF THE PROSECUTOR IN STEPS OF CRIMINAL PROCEDURE

LAW ON THE BOOKS LAW IN ACTION

Crime Must enforce all laws to the fullest. The impossible legal mandate means that priorities must be established.

Arrest Little involvement. In major crimes, may advise the police whether sufficient evidence of probable cause exists to arrest.

Initial appearance Represents the government. Manages the chaos in the lower court, where there are many cases and little is known about the crime or the defendant.

Bail Can make a bail recommendation to the judge.

Typically recommends a high bail amount to the judge.

Charging Exclusive domain of the prosecutor. Often decides which defendants will be charged with what crime.

Preliminary hearing Dominates this step because of the authority to call witnesses.

Highly successful in having defendants bound over for further proceedings.

Grand jury Acts as legal adviser to the grand jury. The prosecutor largely decides which cases will be heard; the grand jury tends to “rubber stamp” prosecutorial requests for indictments.

Arraignment Formally presents the charges against the defendant in open court.

By taking the case this far, the prosecutor has indicated his or her willingness to move forward on a case.

Discovery Important variations in state law regarding how much information must be disclosed prior to trial.

Informally provides trusted defense attorneys with information to induce a plea of guilty.

Suppression motions Argues that police acted legally in searching and/or interrogating the suspect.

Argues that police acted legally in searching for evidence to be admitted.

Plea bargaining District attorneys have considerable discretion in plea bargaining.

Based on normal penalties, dictates the terms under which defendant pleads guilty.

Trial Presents witnesses proving defendant guilty and urges jury to return a verdict of guilty.

Very successful in gaining convictions.

Sentencing In many jurisdictions, the district attorneys can make a sentencing recommendation to the judge.

Judge is more likely to follow the district attorney’s sentencing recommendation than the defense attorney’s.

Appeal Argues before the appellate court why the lower court conviction should stand, and often wins.

Wins a significant victory in most appeals.

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John Thompson spent 14 years on death row because a prosecutor deliberately withheld evidence that might have led to his acquittal. Should the district attorney’s office have to pay for such egregious prosecutorial misconduct? A six-person federal jury decided that the district attorney’s office was liable and calculated damages at $1 million per year. Five justices of the Supreme Court reached a very different decision.

John Thompson was charged with the murder of a New Orleans hotel executive, and the extensive publicity surrounding that case resulted in Thompson being charged with an unrelated armed robbery that occurred after the murder. To enhance their chances of getting a guilty verdict in the murder case, the Orleans Parish District Attorney’s Office tried Thompson first on the armed robbery charge and secured a conviction. During the subsequent murder trial, the defendant declined to testify because he didn’t want the jury to know of his prior felony conviction. Thompson was convicted and sentenced to death.

A month before the scheduled execution, a private investigator found a lab report that clearly showed that Thompson could not have committed the armed robbery—the robber had type B blood; Thompson’s blood was type O. Assistant District Attorney Gerry Deegan had checked out the lab report from the police evidence locker but never placed it in the courthouse property room. On his death bed, Deegan confessed to a friend and former prosecutor that he had deliberately withheld the evidence. Under Brady v. Maryland (1963), prosecutors must disclose evidence favorable to the defense (see Chapter 11).

Thompson’s attempted armed robbery conviction was dismissed and he was retried on the murder charge. This time he took the stand in his own defense and after only 30 minutes of deliberation, the jury acquitted. Thompson filed a Section 1983 civil rights suit (discussed in Chapter 2) in the U.S. District Court for the Eastern District of Louisiana. The $14 million verdict was upheld by the U.S. Fifth Circuit before the Supreme Court decided to hear the appeal from the District Attorney’s office.

Writing for the five-judge conservative majority, Justice Thomas overturned the jury verdict arguing that one cannot sue for civil rights violations under Section 1983 for failure to train prosecutors based on a single Brady violation. Assistant District Attorney Deegan was viewed as a rogue prosecutor and not typical of prosecutors in the office. Justice Ginsburg’s dissent scoffed at such notions of an isolated act, writing that under Connick “long-concealed prosecutorial transgressions were neither isolated nor atypical.”

The current Orleans Parish district attorney reacted positively to the decision, noting that the $14 million verdict would have crippled his office (Maggi, 2011). Others, however, feared the decision would lead to prosecutorial impunity (Appleton, 2011). An influential article in the online edition of The Yale Law Journal argues that this decision means that prosecutors cannot be held accountable. The Court based its decision in part of the availability of other measures to check pros- ecutorial misconduct but these are ineffective (Keenan, Cooper, Lebowitz, & Lerer, 2011).

Connick v. Thompson is but the latest in a some what tortured line of prosecutorial misconduct decisions. Prosecutors are immune from civil lawsuits when they are performing their prosecutorial role, but they enjoy only qualified immunity outside the judicial arena, in particular when they provide faulty legal advice to the police (Burns v. Reed, 1991). The Court revisited the issue 2 years later and laid down a slightly more discernible line of permissible and impermissible conduct. The Court restated that prosecutors have absolute immunity from civil damage suits for actions in connection with the traditional role of courtroom advocacy. But DAs enjoy only “qualified immunity” for other actions. The Court unanimously held that statements made in a news conference were not protected by absolute immunity. But the justices split 5 to 4 on whether investigative actions by the DA were subject to suit (Buckley v. Fitzsimmons 1993).

CONNICK THOMPSON AND PROSECUTORIAL MISCONDUCTCASE CLOSE-UP

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ProsecutorsChapter 6 153

the degree to which the accused cooperates in prosecuting others (Gershman, 2011); and

the availability and likelihood of prosecution by another jurisdiction (Gershman, 2011).

The extralegal factors are not quite as clear-cut. Most concern either victim or offender charac- teristics, such as race, sex, age, educational level, employment status, and so on.

Some studies conclude that race does not influence the decision to prosecute or dismiss a case (e.g., Albonetti, 1986, 1987; Baumer, Mesner, & Felson, 2000; Spears & Spohn, 1997). Other studies disagree, finding that the race of the suspect or the racial differences in the victim–offender dyads (especially if the defendant is Black or Hispanic and the vic- tim is White) significantly affect the charging and dismissal decisions (Baumer, Messner, and Felson 2000; Spohn, Gruhl, and Welch, 1987; Spears and Spohn 1997). And still oth- ers report findings that advantage racial and ethnic minorities over Whites, especially in misdemeanor shoplifting (Myers, 1982) and felony drug cases (Barnes & Kingsnorth, 1996; Franklin, 2010; Wooldredge & Thistle- thwaite, 2004).

Researchers have demonstrated that pros- ecutors are more likely to charge defendants who are male (Nagel & Hagan, 1983; Spohn, Gruhl, & Welch, 1987; Spohn & Spears, 1997) or unemployed (Schmidt & Steury, 1989).

But few people assume that racism, sexism, and other forms of intentional bias are, in and of them- selves, responsible for invidious discrimination in charging decisions. Rather, most researchers

(Bordenkircher v. Hayes, 1975, p. 364). Scholars posit that prosecutorial discretion in charging decisions is guided by a set of focal concerns on the practical constraints and consequences regarding both organizational efficiency and the certainty of conviction (Beichner & Spohn, 2005; Ulmer, Kurlychek, & Kramer, 2007).

Focal concerns about organizational efficiency require prosecutors to evaluate the consequences of their charging decisions with the contexts of media scrutiny, their relationships with other members of the courtroom work group, and the limitations of budgets, personnel, and time (Gershman, 2011). In contrast, the focal concern about obtaining a con- viction involves a complex interplay of both legal and extralegal factors (factors that are not sup- posed to be legally relevant).

The legal factors prosecutors routinely consider in charging decisions include:

the seriousness of the offense (Albonetti, 1987; Jacoby, Mellon, Ratledge, & Turner, 1982; Neu- bauer, 1974a; Spears & Spohn, 1997);

the strength of the evidence, such as valid eyewitness identifications, victims who are cooperative and willing to testify, and the corroborating physical or forensic evidence (Albonetti, 1987; Jacoby et al., 1982; Spohn & Holleran, 2001);

the culpability of the defendant, including the number of charges, the accused person’s prior criminal history, and the accused person’s mo- tives for the offense (Albonetti. 1987; Gershman. 2011; Neubauer, 1974a; Spohn & Holleran 2001);

the degree of harm caused by the offense and the corresponding proportionality of the poten- tial punishment (Gershman, 2011);

Continued from previous page

How these cases apply to Mike Nifong in the Duke lacrosse case is unclear. The players sued the former North Carolina prosecutor, but the federal judge ruled that they would have to prove that Nifong “willfully and maliciously prosecuted the players,” a high legal hurdle (McDonough, 2008).

After the Connick decision, part of the lawsuit was allowed to proceed. But the issue may be moot. Nifong has filed for bankruptcy and even if he were to be found liable in a civil judgment, it is unlikely the plaintiffs would ever recover any monetary damages (Chapter 2).

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Commensurate with the nation’s often confusing dual court system, separate prosecutors are found in federal and state courts. The structure, however, is not parallel with court structure; that is, each court does not have attached to it a specific prosecutor. DAs, for example, often conduct the trial in the trial court of general jurisdiction and then appeal through both layers of state courts and, on rare occasions, even to the U.S. Supreme Court (a federal judicial body). Moreover, different prosecutors’ offices may handle the same case; sometimes, the city attorney conducts the preliminary stages of a felony case in the lower courts, and the district attorney prosecutes in the trial court of general jurisdiction.

Table 6.1 provides a rough overview of typi- cal state and federal prosecutorial structure. Be aware, however, that the apparent hierarchy of prosecutorial structure is an illusion. In the fed- eral courts, the U.S. attorneys enjoy considerable autonomy from the U.S. Justice Department, and in the states, local district attorneys are totally sep- arate from state attorneys general. We will begin with prosecution in federal courts and then turn to the more complex realities of state prosecutions.

believe these factors influence prosecutors’ predic- tions of how judges and jurors might assess the background, behavior, and motivations of both suspects and victims (Frohmann, 1997). Indeed, there is ample evidence that prosecutors are more likely to file charges when there is a “stand-up” victim—someone whose personal characteristics align with societal stereotypes concerning who is credible and undeserving of victimization (see Stanko, 1988). These factors are particularly salient in sexual assault cases (see “Courts, Controversy, and Gender Equity: Are Sexual Assaults against Women Underprosecuted?”).

Decentralization Another characteristic of the office of prosecutor is decentralized organization. Although the American prosecutor represents the state in the prosecution of criminal cases, the office is not centralized, as it is in England and most of Europe (Flemming, 1990; Jehle & Wade, 2006). Instead, prosecution is highly decen- tralized, with more than 8,000 federal, state, county, municipal, and township prosecution agencies.

TABLE 6.1 ■ OVERVIEW OF PROSECUTORS IN THE DUAL COURT SYSTEM

Federal State

Solicitor General

Represents the U.S. government before the U.S. Supreme Court in all appeals of federal criminal cases.

Often appears as amicus in appeals involving state criminal convictions.

Attorney General

Chief legal officer of the state.

Civil duties more extensive than criminal duties.

Has limited authority in criminal prosecutions.

Criminal Division

Prosecutes a few nationally significant criminal cases.

Exercises nominal supervision over U.S. attorneys.

Chief Prosecutors and Their Assistants

(see Table 6.2 for varying names)

Have great autonomy in prosecuting felony cases.

Typically argue cases on appeal.

U.S. Attorneys and Their Assistants

Prosecute the vast majority of criminal cases in federal courts.

Enjoy great autonomy in actions.

Local Prosecutors

Often handle preliminary stages of felony cases.

Prosecute the large volume of cases in the lower courts

NOTE: To learn more about the vast bureaucracies included in the U.S. Department of Justice, go to http://www.usdoj.gov.

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The office of the solicitor general is in essence a small, elite, very influential law firm whose client is the U.S. government. The staff consists of 23 of the most able attorneys found anywhere. As the rep- resentative of the United States in litigation before the Supreme Court, the solicitor general’s office argues all government cases before the Court. For example, the assistant solicitor general argued the major issues in Burns v. Reed. But the influence of the office extends further.

Roughly half the work of the solicitor general’s office involves coordinating appeals by the federal government. With few exceptions, all government agencies must first receive authorization from the solicitor general to appeal an adverse lower court ruling to the Supreme Court. The office requests Supreme Court review only in cases with a high degree of policy significance and in which the gov- ernment has a reasonable legal argument. In turn, the solicitor general has a high rate of success in petitioning the Supreme Court and in winning cases argued on their merits.

Criminal Division of the Justice Department The criminal division formulates criminal law enforcement policies over all federal criminal cases, except those specifically assigned to other divisions. The criminal division, with the U.S. attorneys, has the responsibility for overseeing criminal matters under more than 900 statutes, as well as certain civil litigation. The criminal division is organized into a number of units that handle matters such as fraud, organized crime, and public integrity. Sev- eral of the units deal with international matters and have become more visible with the U.S. efforts to fight terrorism.

Criminal division attorneys prosecute many nationally significant cases—for example, the Unabomber and the Oklahoma City bombing cases. In the wake of 9/11, the criminal division has directed prosecutions of several alleged ter- rorists and overseen the detainment of enemy noncombatants on federal military bases. Through the years, the criminal division has also received extensive press coverage for cases involving corrupt government officials, alleged members of organized crime, and major drug- dealing enterprises.

PROSECUTION IN FEDERAL COURTS

Prosecutions in federal courts are conducted by the U.S. Department of Justice. Billed as the world’s largest law firm, the Department of Justice rep- resents the U.S. government in all legal matters not specifically delegated to other agencies. The department is headed by the U.S. Attorney General, who is a member of the president’s cabi- net. Top-level officials are presidential appointees who reflect the views of the administration on important policy issues. Day-to-day activities are carried out by a large cadre of career lawyers, who enjoy civil service protection and have, over the years, developed invaluable expertise in particular areas of law (Landsberg, 1993; Sisk, Noone, Stead- man, & Lester, 2006).

The Department of Justice has grown tremen- dously in recent years. It is a sprawling series of bureaucracies including investigatory and law enforcement offices such as the Federal Bureau of Investigation, the Drug Enforcement Administra- tion, the U.S. Marshals Service, and the Federal Bureau of Prisons. Also in the Department of Jus- tice is the Office of Justice Programs, which over- sees the Bureau of Justice Assistance and other entities.

In terms of prosecution, three entities—solicitor general, criminal division, and U.S. attorneys— are particularly important. We will examine them from the top down, although, as we shall see, the hierarchy does not prevent the exercise of consid- erable autonomy.

Solicitor General The U.S. Solicitor General is the third highest- ranking official in the Justice Department. The solicitor general’s principal task is to represent the executive branch before the Supreme Court. But at the same time, the justices depend on the solicitor general to look beyond the government’s narrow interests. Because of the solicitor general’s dual responsibility to the judicial and executive branches, the officeholder is sometimes called the Tenth Justice, an informal title that underlines the special relation- ship with the Supreme Court (Aberbach & Peterson, 2006; Caplan, 1988; Meinhold & Shull, 1993).

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Thus, in the vast majority of cases, the decisions are made by U.S. attorneys scattered across the nation rather than by the central office based in Washington, D.C.

PROSECUTION IN STATE COURTS

Decentralization and local autonomy characterize prosecution in state courts. The result is divided responsibility, with state prosecution authority typ- ically found in three separate offices: state, county (or district), and local. At times, the relationship among these separate agencies is marked by com- petition; various prosecutors jockey to be the first to prosecute a notorious defendant. We will exam- ine the three major state prosecutors from the top down, but bear in mind that each office is separate and not necessarily subject to the dictates of the office above it.

State Attorneys General The position of Attorney General, the state’s chief legal officer, is typically spelled out in the state’s constitution. Among the most important duties are providing legal advice to other state agencies and representing the state in court when state actions are challenged. In recent years, attorneys general have focused on their civil responsibili- ties by emphasizing their role in protecting con- sumers from various forms of fraud. Thus, the typical home page of the Attorney General of a state proclaims how many individual consumer complaints (many of which involve motor vehi- cle and home repair fraud) are handled annually. Many state attorneys general have also been vis- ible in filing consumer lawsuits against major U.S. businesses. The biggest of all involves the suits by more than 30 states against the tobacco industry.

State attorneys general have chosen to empha- size their civil responsibilities because they typi- cally have limited authority over criminal matters. Local autonomy is a key characteristic of the office of prosecutor. In general, state officials do not mon- itor the activities of local prosecutors. Although the state Attorney General is the state’s chief law

U.S. Attorneys The U.S. attorneys serve as the nation’s principal litigators under the direction of the Attorney Gen- eral. 94 U.S. attorneys are stationed throughout the United States, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands.

U.S. attorneys are appointed by, and serve at the discretion of, the President of the United States, with the advice and consent of the Sen- ate. One U.S. attorney is assigned to each of the judicial districts, with the exception of Guam and the Northern Mariana Islands, where one serves both districts. Each U.S. attorney is the chief fed- eral law enforcement officer of the United States within his or her particular jurisdiction. The 93 U.S. attorneys are assisted by over 6,000 assistant U.S. attorneys, who increasingly have become career employees.

U.S. attorneys represent the federal government in court in many matters. They have three statutory responsibilities:

Prosecution of criminal cases brought by the federal government

Initiation and defense of civil cases in which the United States is a party

Collection of certain debts owed the federal government

The volume of litigation varies considerably among the districts. U.S. attorneys along the Mexican bor- der, for example, initiate a large number of drug prosecutions. Nonetheless, each district handles a mixture of simple and complex litigation.

U.S. attorneys enjoy full authority and control in the areas of personnel management, financial man- agement, and procurement. They exercise wide discretion in the use of their resources to further the priorities of local jurisdictions and the needs of their communities.

Although the criminal division of the U.S. Department of Justice supervises all federal pros- ecutions, in practice U.S. attorneys enjoy consid- erable autonomy. This is partly because of their remoteness from Washington, D.C.—the 93 U.S. attorneys are widely dispersed geographically. The selection process also plays a role. Many U.S. attorneys owe their appointments primarily to persons other than the U.S. attorney general or, in some cases, even the U.S. president (Bell, 1993).

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the prosecutor is the chief law enforcement official of the community. Altogether, 2,344 chief prosecu- tors are employed across the nation, with a staff of almost 80,000. Structure and workload differ according to the size of the population. The typi- cal office serves a population of 36,000 people, with 250 adult felony cases in the district, a staff of 9, and a budget of $355,000. But deviations are readily apparent (Perry, 2006). The great majority of the nation’s prosecutors’ offices are small ones (Table 6.3). Frequently, rural prosecutors are part- time officials who also engage in private law practices.

Elections are a key characteristic of the office of prosecutor, as 95 percent of chief prosecutors are locally elected officials who typically serve 4-year terms. The exceptions are Alaska, Connecticut, Delaware, the District of Columbia, New Jersey, and Rhode Island, where chief prosecutors are either appointed or are members of the state Attor- ney General’s office.

Because of elections, the work of the American prosecutor is deeply set within the larger politi- cal process. For a lawyer interested in a political career, the prosecutor’s office offers a launching

enforcement official, his or her authority, over local criminal procedures is quite limited. Indeed, in a handful of states, the Attorney General has no legal authority to initiate or intervene in local prosecu- tions. In other states, this authority is limited to extreme situations.

Thus, the state Attorney General exercises virtu- ally no control or supervision over chief prosecu- tors at the county level. This lack of supervisory power, coupled with the decentralization of the office, means that local prosecutors enjoy almost total autonomy. Only the local voters have the power to evaluate the prosecutor’s performance, by means of their votes.

Chief Prosecutor The American prosecutor has few direct parallels elsewhere in the world (Flemming, 1990; Jehle & Wade, 2006). Compared to their counterparts in England and Europe, American prosecutors enjoy unmatched independence and discretionary pow- ers (Albonetti, 1987).

Variously called the “district attorney,” “county attorney,” or “prosecuting attorney” (Table 6.2),

Title States District attorney Alabama, California, Colorado, Georgia, Kansas,a Louisiana, Maine, Massachusetts, Mississippi,

Nevada, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Texas,a Wisconsin, Wyominga

County attorney Arizona, Iowa, Kansas,a Minnesota, Montana, Nebraska, New Hampshire, Texas,a Utah

State’s attorney Connecticut, Florida, Illinois, Maryland, North Dakota, South Dakota, Vermont

Prosecuting attorney Arkansas, Hawaii, Idaho, Indiana, Michigan, Missouri,a Ohio, Washington, West Virginia

Commonwealth attorney Kentucky, Virginia

County prosecutor New Jersey

District Attorney General Tennessee

County and prosecuting attorney Wyominga

Solicitor South Carolina

Circuit Attorney Missouria (City of St. Louis)

No local prosecutor Alaska, Delaware, Rhode Island

TABLE 6.2 ■ CHIEF PROSECUTORS WHO HANDLE FELONY CASES IN STATE COURTS

aKansas, Missouri, Texas, and Wyoming use varying names depending on the jurisdiction. SOURCE: Steven Perry, Prosecutors in State Courts, 2005. Washington, DC: Bureau of Justice Statistics, National Institute of Justice.

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also want one of their own serving as district attor- ney to guarantee that their affairs will not be closely scrutinized and to act as a vehicle for harassing the opposition.

Local Prosecutor Little is known about the activities of local prosecutors—variously called “city attorneys,” “solicitors,” or the like. In some jurisdictions, local prosecutors are responsible for the preliminary stages of felony cases as they are processed in the lower courts. In these jurisdictions, it is the local prosecutor (not the chief prosecutor) who represents the govern- ment at the initial appearance, argues bond amounts, and conducts the preliminary hearing. These decisions may have important consequences for later stages of the felony prosecution, but the chief prose- cutor’s office has no direct control over these matters.

Local prosecutors, however, are primarily responsible for processing the large volume of minor criminal offenses disposed of in the lower

pad. Indeed, prosecutors “virtually own the politi- cally potent symbols of ‘law and order’ politics” (Flemming, Nardulli, & Eisenstein, 1992, p. 23).

Numerous government officials—governors, judges, and legislators—have begun their careers as crusading prosecutors. Many prosecutors, how- ever, do not plan to enter politics. Studies in Wiscon- sin and Kentucky, for example, indicated that more than half of the prosecutors had no further politi- cal ambitions. They viewed the office as useful for gaining visibility before establishing a private law practice (Engstrom, 1971; Jacob, 1966). Thus, after serving one or two terms in office, former DAs typi- cally practice private law or assume other positions in the public sector—primarily judge (Jones, 1994).

The tremendous power of the prosecutor means that political parties are very interested in control- ling the office. The chief prosecutor has numerous opportunities for patronage. In some communi- ties, partisan considerations play a large role in the hiring of assistant district attorneys (Eisenstein, Flemming, & Nardulli, 1988). Political parties may

TABLE 6.3 ■ STATE COURT PROSECUTORS’ OFFICES

All Offices

Full-Time Offices (By Population Served)

Part-Time Offices

1 Million or More People

250,000 to 999,999 People

100,000 to 249,999 People

Under 99,999 People

Number of offices 2,330 43 211 341 1389 346

Mean population served

299,567,000 2,025,000 496,000 158,000 36,000 13,000

Full-time equivalent employees

34,288 attorneys 43,640 staff 77,928 total

244 attorneys 291 staff 535 total

57 attorneys 74 staff 131 total

17 attorneys 22 staff 39 total

4 attorneys 6 staff 10 total

2 attorneys 1 staff 3 total

Felony cases closed

2,906,795 3% by jury verdict

759,057 2% by jury verdict

934,884 3% by jury verdict

622,073 3% by jury verdict

555,050 3% by jury verdict

35,731 3% by jury verdict

Mean budget $5.8 billion $49.2 million $9.9 million $2.3 million $562,000 $157,000

Mean salary of chief prosecutor

$98,024 $165,732 $138,017 $121,777 $96,956 $44,981

Entry-level assistant prosecutor salary

$46,330 (full-time) to $55,885 (full-time)

$51,354 to $64,517

$47,580 to $57,759

$44,007 to $55,263

$42,380 to $46,000

$33,460 to $36,712

SOURCE Steven W. Perry and Duren Banks, Prosecutors in State Courts, 2007 - Statistical Tables. Washington, DC: Bureau of Justice Statistics. 2011. Available online at http://bjs.ojp.usdoj.gov/content/pub/pdf/psc07st.pdf.

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leaving prosecution to enter private practice, poli- tics, business, or another field. Thirty-five percent of all prosecutors’ offices nationwide report significant problems retaining assistant DAs, with low salaries cited as the leading reason for the high turnover (Perry, 2006). Indeed, low salaries were “the primary obstacle cited by prosecutors’ offices with recruit- ment problems (83%) and offices with retention prob- lems (71%),” especially when compared to the higher salaries lawyers earn in private law practice—a dis- parity that seems to grow over time (Perry, 2006, p. 3).

Turnover is also a product of assistants’ grow- ing tired of the job. With its never-ending stream of society’s losers, the criminal courthouse can become a depressing place to work. Moreover, regular trial work creates numerous physical and psychologi- cal pressures. In the words of a former New Orleans prosecutor, “The average trial assistant leaves work every day with a huge stack of papers under his arm. The grind can really wear you down. There’s just too much work” (Perlstein, 1990). In Bronx D.A., Sarena Straus (2006) discussed the day she reached her breaking point. She was a felony prosecutor in the Domestic Violence and Sex Crimes Unit. She had just interviewed a 6-year-old autistic boy who watched his sister get stabbed to death that morning. “When I finished the interview, I went back to my office. It was 7 pm. Everyone else had gone home for the evening. I sat in my office and cried.” Realizing she could no longer separate herself from her work, she left the job.

Although many assistants view their job as a brief way station toward a more lucrative and var- ied private practice, some see it as a permanent career position. In Wisconsin, the average tenure is about 6 years, and perhaps just as important, some assistants advance to become the elected DA in their county, run for the position in a neighboring county, or make other lateral moves (Jones, 1994). Across the nation, a marked trend toward a pros- ecutorial “civil service” has become obvious, with assistants moving from office to office (Jones, 2001).

Learning the Job Law schools provide an overview of law on the books—criminal law, criminal procedure, evidence, and constitutional law, to name just a few. But most law schools give their students very little exposure to law in action. Thus, the typical assistant DA

courts. As explained in Chapter 4, public drunk- enness, petty theft, disorderly conduct, and minor assaults are the staple of these judicial bodies.

THE PROSECUTOR’S OFFICE AT WORK

In the courtroom, one’s attention normally gravi- tates toward the individual lawyers as they call witnesses, ask questions, and cross-examine the opponent’s witnesses. These individual activities, however, must be understood within the larger context in which they occur. As Table 6.3 illustrates, the day-to-day work of the prosecutor’s office is executed by nearly 78,000 people—approximately 34,288 attorneys and 43,640 investigators, legal services personnel, victim advocates, and support staff. How these persons are hired, trained, and supervised has a major bearing on the exercise of prosecutorial discretion.

Assistant District Attorneys Most assistant district attorneys (sometimes called “deputy district attorneys”) are hired immedi- ately after graduation from law school or after a short time in private practice. Traditionally, these young attorneys attend local or regional law schools, rather than the nation’s most prestigious law schools (whose graduates are usually able to obtain higher-paying jobs in private practice with prestigious law firms). This has changed somewhat in the past decade or two, as competition for posi- tions in major prosecutor’s offices has increased significantly, especially since new prosecutors gain valuable trial experience that new lawyers in law firms typically cannot.

In the past, many prosecutors hired assistants on the basis of party affiliation and the recommen- dations of elected officials. Increasingly, however, greater stress is being placed on merit selection, a trend exemplified by the Los Angeles prosecu- tor’s office—the nation’s largest, with more than 1,000 lawyers—where hiring is done on a civil service basis.

The turnover rate among assistant DAs is high. Most serve an average of 3 to 6 years before

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of learning law in action involves working with the office clientele. Here is how journalist Gary Delsohn (2003b, p. 13) described the reality of the prosecutor’s office in Sacramento, California:

In an urban prosecutor’s office, witnesses you build a

case around are often just a shade less unsavory than

the defendants you’re trying to put away. It’s blue-

collar law. To succeed, a prosecutor has to be willing

and able to deal with all kinds of people.

New assistants quickly learn to ask questions of more experienced prosecutors, court clerks, and veteran police officers. Through this socialization process, assistants learn important unwritten rules about legal practice relating to what types of viola- tions should be punished and the appropriate pen- alties to be applied to such violations. Assistants also learn that their performance and chances for promotion are measured by how promptly and efficiently they dispose of cases. They become sen- sitive to hints—for example, if a judge complains that a backlog is developing because prosecutors are bringing too many minor cases, the new assis- tant usually gets the message that his or her plea- bargaining demands are too high.

Promotions are also related to the candidate’s reputation as a trial attorney. Assistants are invari- ably judged by the number of convictions they obtain. In the courthouse environment, however, not losing a case has a higher value than winning. Thus, assistants learn that if the guilt of the defen- dant is doubtful or the offender is not dangerous, it is better to negotiate a plea than to disrupt the courtroom routine by attempting to gain a jury conviction.

Promotions and Office Structure As assistants gain experience and settle into the courthouse routine, they are promoted to more demanding and also more interesting tasks. Pro- motions are related to office structure (Flemming, Nardulli, & Eisenstein, 1992). Small prosecutors’ offices usually use vertical prosecution, in which one prosecutor is assigned responsibility for a case from intake to appeal (Nugent & McEwen, 1988). In these offices, assistants are promoted by being assigned more serious cases. However, such an

comes to the job having little familiarity with the day-to-day realities of the profession. Here is how one lawyer described his first days on the job:

For the first week or two, I went to court with guys

who had been here. Just sat there and watched. What

struck me was the amount of things he [the pros-

ecutor] has to do in the courtroom. The prosecutor

runs the courtroom. Although the judge is theoreti-

cally in charge, we’re standing there plea-bargaining

and calling the cases at the same time and chewing

gum and telling the people to quiet down and setting

bonds, and that’s what amazed me. I never thought

I would learn all the terms. What bothered me also

was the paperwork.

Not the Supreme Court decisions, not the mens rea or

any of this other stuff, but the amount of junk that’s

in those files that you have to know. We never heard

about this crap in law school. (Heumann, 1978, p. 94)

For decades, training in prosecutors’ offices was almost exclusively on the job; it was not unusual for recent law school graduates with no experience to be sent into court on their first day on the job. One assistant summed up the office tradition as follows: “They have a very unique way of break- ing people in. They say, ‘Here’s a file. There’s the jury. Go try it’” (Flemming, Nardulli, & Eisenstein, 1992). More recently, large prosecutors’ offices have begun to train new employees more systematically. After a week of general orientation to the different divisions of the office, new assistants are allowed to watch various proceedings and observe veteran trial attorneys at work.

Law schools have been under increasing pres- sure to teach their students more about the actual practice of law. Many have responded by add- ing more skills-oriented classes to their curricula, problem-based learning within classes, and a host of community-engaged learning activities (such as legal practice clinics and internship placement pro- grams) that are aimed at helping students become more prepared to enter the legal workforce (Bard, 2011). Still, even if one graduates from law school with a more applied than theoretical legal educa- tion, there is still much to learn upon entering pros- ecutorial practice. For example, an important part

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unique witness problems, and so on. A supervi- sor has no way to monitor such situations except on the basis of what the assistant reports orally or writes in the file. Here, as elsewhere, information is power. Assistants can control their supervisors by selectively telling them what they think they should know (Neubauer, 1974b).

Attempts at Greater Supervision The traditional form of prosecutorial management is centered on autonomy; each individual assistant DA is granted a great deal of freedom to make his or her own decisions. The Erie, Pennsylvania, DA’s office is typical; it “promulgated few formal writ- ten policies, gave most of its assistants fairly wide latitude to dispose of cases in ways consistent with the general aim of the office, and relied on informal supervision” (Eisenstein, Flemming, & Nardulli, 1988, p. 215).

Concerned that autonomy allows too much unchecked discretion, some prosecutors have attempted to exert greater supervision by adopting a rigid system of office policies. Some forbid any charge reductions whatsoever for some types of defendants (habitual offenders) and for serious charges such as violent offenses and major drug dealing (Eisenstein, Flemming, & Nardulli 1988). To ensure compliance with these detailed office policies, formal, detailed, bureaucratic enforcement mechanisms are imposed. Typical is DuPage County, Illinois, where the DA’s office “was highly centralized, rigidly enforcing the ‘bottom-line’ pleas established by the indictment committee. The DA’s office relied on a formally struc- tured hierarchy to administer its policies” (Eisenstein, Flemming, & Nardulli, 1988, p. 215). Chief prosecu- tors believe that these management systems monitor prosecutorial discretion, minimize differences among individual assistants, and concentrate scarce crime- fighting resources (Jacoby, 1980).

Attempts by supervisors to control the work of the assistants tend to erode the morale of the office, as the following account from the Sacramento, California, DA’s office illustrates. According to one of the top supervisors in the office, second-guessing is rarely worth the trouble, because the deputies tend to “stay pissed” forever. Indeed, one assistant is still furious 7 years after his boss refused to allow him to par- ticipate in a meeting involving his case (Delsohn,

assignment system is administratively burden- some in large courthouses; assistants would spend much of their time moving from one courtroom to another and waiting for their one or two cases to be called. Therefore, most big-city prosecutors’ offices use horizontal prosecution, in which pros- ecutors are assigned to specific functions, such as initial appearance, charging, preliminary hearing, grand jury, trial, or appeal. On a regular basis, one or two attorneys are systematically assigned to one courtroom with a given judge. Over time, prosecu- tors come to know the judge’s views on sentenc- ing and the like. Under horizontal prosecution, assistants spend a year or more handling misde- meanor offenses before they are promoted by being assigned to courtrooms with felonies.

Over the past decades, specialization has become increasingly common in chief prosecutors’ offices, particularly in densely populated jurisdic- tions. Often it is the most experienced trial attor- neys who staff these positions. Specialized units dealing with murder, sexual assault, armed rob- bery, and major drug crimes are the most presti- gious, mainly because trial work is both plentiful and challenging.

Supervision Assistant district attorneys are supervised by a sec- tion head, who is supposed to ensure that they fol- low office policies. However, for several reasons, assistant DAs enjoy fairly broad freedom.

Office policies are often general and somewhat vague. In small offices, they are seldom even put in writing. Official and unofficial policies are sim- ply part of what the assistant learns informally; for this reason, it is hard for the bureau chief to enforce them. In large offices, decentralized work assign- ments mean that supervisors can exert only lim- ited control over specific cases or individual assis- tants. Assistant DAs spend most of their time not in the central office but in the courtroom. Indeed, in crowded courthouses, trial assistants often have offices adjoining the judge’s chambers and only rarely appear in the prosecutor’s office at all. It is therefore difficult for supervisors to observe and monitor the assistant district attorney’s activities. Each assistant has dozens of cases that require individual decisions on the basis of specific facts,

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words of the Criminal Justice Standards: “The duty of the prosecutor is to seek justice, not merely to convict” (Standard 3-1.2c, American Bar Associa- tion 2012). And, because prosecutors represent the government, they enjoy a great deal of protection from civil lawsuits.

Prosecutorial Immunity Prosecutors enjoy absolute immunity—com- plete freedom from civil liability—for everything they do with regard to the core prosecutorial functions of initiating criminal charges and pur- suing criminal convictions as the government’s advocate (Imbler v. Pachtman, 1976). Such abso- lute immunity extends to all actions, even those motivated by ill will or bad faith, concerning filing or declining to file criminal charges, plea bargaining, and presenting arguments or evi- dence in court (whether before a grand jury, at bail hearings, at preliminary hearings, at trials, or on appeal). Thus, for example, a defendant whose conviction is overturned on appeal (and is later found not guilty) cannot sue the prosecu- tor for malpractice. The appellate court reversal is viewed as a sufficient remedy.

In contrast, when prosecutors are not acting as the government’s advocate in some judicial phase of the criminal justice process, they enjoy

2003a,b). Overall, office review of all case files (to ensure that policies have been followed) makes some assistants uncomfortable because they think this means that they are not completely trusted. Reductions in individual discretion increase the general level of tension in the office. One trial assis- tant related how a colleague was summarily fired on the same day he violated office policy on plea bar- gaining. All the assistants resented and feared the administrator who fired him (Eisenstein, Flemming, & Nardulli, 1988, p. 215).

PROSECUTORIAL ETHICS

The Duke lacrosse team rape case has become the contemporary poster child for prosecutorial mis- conduct. But this was a truly exceptional case and needs to be analyzed within an array of legal issues that limit prosecutorial power.

Ethical issues facing prosecutors are very dif- ferent from those confronting defense attorneys because prosecutors do not represent individual clients. Prosecutors often define their jobs as rep- resenting victims of crime (Chapter 9), but these are not typically considered to fit under the attor- ney–client relationship. Rather, the client of the prosecutor is the government, and for this reason, prosecutors are given special responsibilities. In the

KEY DEVELOPMENTS CONCERNING THE PROSECUTOR

Berger v. United States (1935) The prosecutor’s primary interest is in doing justice, not simply winning cases.

Imbler v. Pachtman (1976) Prosecutors enjoy absolute immunity from civil liability when initiating and pursuing a criminal prosecution.

Morrison v. Olson (1988) Independent counsel law is constitutional.

Burns v. Reed (1991) Prosecutors enjoy only qualified immunity from lawsuits concerning advice given to the police.

Buckley v. Fitzsimmons (1993) Prosecutors enjoy only qualified immunity from civil lawsuits for actions during criminal investigations and statements made during news conferences.

Kalina v. Fletcher (1997) A prosecutor may be sued for making false statements of fact in an affidavit in support of an arrest warrant.

Connick v. Thompson (2011) A district attorney’s office may not be held liable under Section 1983 for failure to train prosecutors based on a single Brady violation (or perhaps, even a handful of Brady violations).

C en

ga ge

L ea

rn in

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was prosecuted while the lawyer was working for the prosecutor’s office. Even if he or she had no contact with the case, the lawyer may not represent that individual defendant.

As explained above, prosecutors exercise a tremendous amount of discretion in the charg- ing decision, and several ethical standards relate to how this discretion should be used. Prosecu- tors are not supposed to institute any criminal charges that are not supported by probable cause, although many prosecutors charge only cases they feel they can win by proving guilt beyond a rea- sonable doubt. The ambiguous nature of varying legal standards may lead to criticism that prosecu- tors unfairly failed to prosecute a case. Conversely, prosecutors may be criticized for unfairly pros- ecuting a defendant based on political motives.

The ethical issues surrounding prosecutors’ discretion to seek the death penalty are often debated. Although only a few homicides are eli- gible for sentence of death (Chapter 14), prosecu- tors often must make a series of close calls in these cases to decide which defendants should face capi- tal punishment. To ensure that these decisions are made in an evenhanded manner, many big-city prosecutors’ offices have a special review process. Moreover, the courts have imposed a proportion- ality requirement—that is, they seek information that the decision to seek the death penalty in a spe- cific case is proportional to the decision in other cases. Although ethical issues like this one are at the forefront of the debate over capital punish- ment, appellate courts rarely find that prosecutors abused their discretion.

How much information to release to the pub- lic presents another ethical issue for prosecutors (Pollock, 2012). In the modern era, both the pros- ecution and the defense often try their cases in the press before a jury is picked. For this reason, judges often impose a gag order on high-profile cases (Chapter 13), prohibiting either side from releasing information to the press. In ordinary cases, only on rare occasions have judges found that prosecu- tors went too far in seeking to convince the public (meaning potential jurors) of the overwhelming guilt of the defendant. But, as the “Courts, Law, & Media” feature on the following page should make clear, even without prosecutorial misconduct, the media can inflame public sentiments through less- than-objective news coverage.

only qualified immunity for their actions. Qualified immunity shields prosecutors from civil liability for acts beyond those associated with courtroom advocacy, but still within the scope of their professional duties (such as when advising the police or speaking to the media). However, qualified immunity applies only if prosecutors are acting in good faith that they are not violating any law or ethical rule of which a reasonable person in his or her position would be aware. Examples of situations in which prosecutors enjoy only qualified immunity are presented in the “Key Developments” feature on page 162.

Ethical Duties of Prosecutors Prosecutors have a number of specific ethical obli- gations in addition to the overarching prosecutorial duty to seek justice, such as disclosing exculpatory evidence, avoiding conflicts of interest, and refraining from any behavior that would interfere with the fair administration of justice. This section highlights only a few of prosecutors’ major ethical responsibilities.

Chapter 11 discusses a series of Supreme Court cases that, like Brady v. Maryland (1963), require the prosecutor to hand over to the defense exculpatory evidence (evidence that tends to show the innocence of the defendant). But this can be a vague mandate that leads some prosecutors to hand over as little evidence as possible. One result is that appellate courts find that prosecu- tors sometimes improperly withhold evidence from the defense, and therefore the guilty verdict is reversed and a new trial ordered. Note that this is the typical remedy—appellate reversal— and does not sanction the erring prosecutor. Only on rare occasions do prosecutors face sanctions from the bar association for failure to disclose evidence to the defense.

Conflict of interest is another ethical issue fac- ing prosecutors (and defense attorneys as well). Prosecutors employed part-time, for example, may confront a host of ethical issues. In private practice, a lawyer may represent an individual, but if that person runs afoul of the law, then the prosecutor must recuse himself or herself. Conflicts of inter- est may also arise when the prosecutor leaves the office for private practice. As a general rule, the now-private lawyer may not represent anyone who

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PROSECUTORS AND COURTROOM WORK GROUPS

Prosecutors spend most of their time working directly with other members of the courtroom work group. Even when interviewing witnesses or con- ducting legal research, the prosecutor is anticipat- ing the reactions of judges and defense attorneys. Thus, the activities of prosecutors can be under- stood only within the setting of the courtroom work group (Worden, 1990).

The prosecutor is the most important member of the work group. Prosecutors set the agenda for judges and defense attorneys by exercising dis- cretion over the types of cases filed, the nature of acceptable plea agreements, and the sentences to be handed out. Prosecutors also control the flow of information about cases by providing access to police arrest reports, laboratory tests, and defen- dants’ criminal histories. By stressing certain information or withholding facts, prosecutors can influence the decisions of judges and defense attorneys.

NANCY GRACE

“I absolutely cannot believe Caylee’s death has gone unavenged” opined an obviously upset Nancy Grace. For months, the investigation and trial

of Casey Anthony for allegedly killing her daughter and the media coverage of the trial had become so enmeshed it was hard to separate the two (Chapter 1). Indeed Nancy Grace provided the biting description of the defendant as the “tot mom.” In announcing the not-guilty verdict, Nancy Grace no doubt expressed the sentiments of many of her viewers. But to her critics, it simply underscored her lack of objectivity— blurring the lines between journalism and advocacy.

According to the official HLN website (2012), Nancy Grace is television’s only justice themed/interview/debate show, designed for those interested in the “breaking crime news of the day.” Before becoming a TV commentator, Grace worked for nearly a decade in the Atlanta-Fulton County, Georgia District Attorney’s office as a special prosecutor focusing on felony cases involving serial murder, serial rape, and serial child molestation. Nancy Grace describes the murder of her fiancé in 1979 as the impetus for her career as a prosecutor and victims’ right advocate.

Nancy Grace’s outspoken style attracts a wide following and good ratings, the key to the survival of any show on TV. But this same aggressive style and an attitude that often comes across as preaching that “the prosecutor is always right” has also drawn

condemnation. In the words of a journalist, “the boundaries be- tween illusion and reality, journalism and advocacy, fair trial and free press, all seemed elusive” during Nancy Grace’s announce- ment of the not-guilty verdict in the Casey Anthony trial (Garvin, 2011). One law professor is even harsher accusing her of rushing to prejudice every case, blatantly taking sides, and being intel- lectually dishonest (Bainbridge, 2011).

Critics also note that Nancy Grace made the wrong calls in other high-profile cases. In the Duke lacrosse case (see chapter opener), she was quick to take the side of the victim. But in the end, the prosecution ended in disaster. Similarly, she rushed to judgment when Dominique Strauss-Kahn—the high ranking French finance minister—was accused of raping a New York hotel employee, only to see that case dropped because of contradictions in the victim’s stories (Chapter 9). Moreover, as a prosecutor she was twice cited by the Georgia Supreme Court for prosecutorial misconduct.

Nancy Grace responds to criticism by stating, “If you don’t like my coverage then don’t watch it” (Alvarez, 2011). And in a strange twist she has defended herself in a book with the improbable title Objection!: How High-Priced Defense Attorney’s Celebrity Defendants, and a 24/7 Media Have Hijacked Our Criminal Justice System (Grace, 2005). Some wonder if she has confused cause and effect.

Do you think that media distort or sensationalize criminal justice processes? How? In light of the First Amendment protections of free speech and a free press, what might be done to curtail media figures from interfering with the rights of the accused?

COURTS,

LAW, &

MEDIA

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also quickly learn the tendencies of the judge. No prosecutor can afford to ignore how the judge wishes the courtroom to be run.

Although the prosecutor is generally the most important member of the courtroom work group, work groups show considerable variability. Differ- ences between one community and the next abound, and in big-city courthouses, these differences often exist from courtroom to courtroom. Conflicting goals and varying political styles are two factors that account for contrasting work groups.

Conflicting Goals and Contrasting Work Groups On the surface, the goals of prosecutors seem the model of simplicity: Their job is to convict the guilty. But a closer examination shows that the goals are not as clear-cut as they first appear. Prosecutors define their main job in different ways. Some stress work- ing closely with law enforcement agencies. Thus, they serve as police advocates in court and stress punishing the guilty. Others emphasize their role as court-based officials. Thus, they define their job as impartially administering justice and emphasize securing convictions (Delsohn, 2003a,b; Eisenstein, 1978; LaFave, 1965). The uncertainties about which goals should come first have historically produced marked diversity among prosecutors, with some prosecutors’ offices focusing on the administra- tion of justice, and others focusing on an adver- sarial model (McDonald, 1979; Utz, 1979). Such differences in philosophies still exist today (Baker, 1999; Delsohn, 2003a,b), although media attention has often focused on prosecutors whose “win at all costs” mentality has eroded public confidence in those who are supposed to advocate for justice (Roberts & Stratton, 2008).

Political Styles and Contrasting Work Groups The prosecutor’s role within the courtroom work group also needs to be understood within the broader political context in which the office func- tions. This was the conclusion of Roy Flemming’s (1990) study of nine prosecutors’ offices in three states. Because they exercise broad discretion (in the context of decentralization and local autonomy),

As the dominant force in the courtroom work group, prosecutors clearly set the tone for plea bargaining. This is how one veteran explained his perspective:

I get so damned pissed off and tired of these guys

who come in and cry, “My guy’s got a job” or “My

guy’s about to join the army,” when he’s got a rap

sheet as long as your arm. His guy’s a loser, and he’s

wailing on my desk about what a fine man he is.

What really wins me is the guy who comes in and

says, “O.K., what are we going to do with my crimi-

nal today? I know he has no redeeming social value.

He’s been a bad son of a bitch all his life, so just let

me know your position. But frankly, you know, my

feeling is that this is just not the case to nail him on.

We all know if he does something serious, he’s go-

ing.” And before long the guy who approaches it this

way has you wrapped around his little finger (Carter,

1974, p. 87).

Prosecutors’ actions, in turn, are influenced by other members of the courtroom work group.

Through the socialization process, assistant district attorneys internalize the accepted ways of doing things in the courthouse, learning to plead cases out on the basis of normal crimes (discussed in Chapter 5). Prosecutors who stray too far from the shared norms of the courtroom work group can expect sanctions. The judge may informally indi- cate that the state is pushing too hard for a harsh sentence or may publicly chastise a district attor- ney in open court, thus threatening the attorney’s status among peers. The defense attorney may not agree to a prosecutor’s request for a continuance or may use delaying tactics to impair the state’s efforts to schedule cases, thus further disrupting the prosecutor’s efforts to move cases. (The pros- ecutor, of course, is not without countersanctions. These will be discussed in the next two chapters.)

Operating within the constraints of the court- room work group, effective assistant DAs are those who make tactical decisions that maximize their objectives. Experienced prosecutors, for example, know which defense attorneys can be trusted, granting these people greater access to information about the case and listening to them more when the case involves unusual circumstances. Prosecutors

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to develop innovative approaches to prosecutorial work. They do not shrink from trying to alter their relationships with judges. Erie, Pennsylvania, pro- vides a case in point. Embittered by the decline of the office when he left as an assistant to enter pri- vate practice, the new Erie prosecutor bucked the political establishment and decisively trounced the incumbent in the Democratic party primary to win the office. However, his plans to restore the respect of the office clashed with the docket policies of the court. Rather than fighting openly, the Erie DA mounted an indirect campaign to wrest control of the docket from the judges.

Flemming’s study highlights two aspects of prosecutorial behavior that are not immediately obvious. First, differences in political styles cross party lines; these are not Republican or Democratic styles. Second, differences in political styles are not necessarily constant through time. In several com- munities, a district attorney was initially elected as an insurgent or a policy reformer but through the years came to adopt a conservator style.

THE EXPANDING DOMAIN OF THE PROSECUTOR

The domain of the prosecutor has been expanding throughout the past century, and pressures to place greater authority in the hands of the prosecutor are likely to continue (Davis, 2007; Worrall & Borak- ove, 2008). Within the fragmented, sometimes non- system of criminal justice, the prosecutor is in the best position to provide coordination. Moreover, with crime as a dominant issue in elections, the prosecutor is uniquely able to capitalize on his or her role as the community’s chief law enforcement official and to promise the voters to expand crime- fighting efforts.

We will examine two types of programs that exemplify the contemporary expansion of the domain of the prosecutor: improving police–prosecutor relationships and community prosecution.

Improving Police–Prosecutor Relationships Police and prosecutors are commonly viewed as members of the same crime-fighting team, but a

elected prosecutors choose political styles. This choice is both personal and strategic. It depends first on the prosecutor’s satisfaction or dissatisfac- tion with the office’s status within the courthouse community. It also depends on the prosecutor’s perception of the value of conflict as a means of changing the office’s status.

Prosecutors satisfied with the status of the office adopt an “office conservator” style. Office conserva- tors accept the status quo. Continuity is often a key consideration; former assistants are elected with the blessings of the previous officeholder and the sup- port of the local political establishment. Once in office, conservators do not deliberately step on toes; if they push for change, it generally comes as a response to the requests of others. Montgomery County, Pennsylvania, provides an example. The newly elected DA retained the preexisting staff intact. He did fashion some guidelines regarding guilty pleas, but they were flexible, symbolic gestures—signals that a changing of the guard had taken place, not a revolution. Most important, however, the DA toler- ated the judges’ traditional dominance of the court- house community.

Prosecutors who are less content with the sta- tus of their offices face a more complicated set of choices. They must decide whether conflict is an effective tool for them to use. These “courthouse insurgents” are very dissatisfied with the status quo and are prepared to do battle to change it. They do not shy away from open conflict, nor do they hesitate to challenge the courthouse community in pursuit of their goals. DuPage County, Illinois, is an example. The state’s attorney was an outsider to the county who won the office by narrowly defeat- ing the Republican party’s favored candidate in a bitterly fought, mudslinging primary. Perceiving that the office failed to stand up to defense attorneys, the new state’s attorney turned the office inside out. Immediately after election, he eliminated the part- time staff, hired aggressive assistants, and instituted policies severely restricting plea bargaining. More- over, the insurgent DA minced no words in publicly criticizing judges and defense attorneys.

“Policy reformers” are also dissatisfied with the status quo, but unlike courthouse insurgents, they are cautious, often conciliatory, in their approach. Upon taking office, they gradually move to tighten their offices’ guilty-plea policies, encourage more assertive attitudes among their assistants, and try

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apparently are bridging the gap. But a word of caution is in order. No research to date has sys- tematically evaluated these programs to indicate their overall effectiveness. Until such research is conducted, no predictions can be made about which programs are likely to be effective in other communities.

Community Prosecution The historic image of the district attorney stresses case processing: The DA files charges and dog- gedly pursues a conviction. But this traditional image is becoming blurred as locally elected prosecutors respond to a wide variety of social problems such as domestic violence (Chapter 9), drug abuse (Chapter 10), disorder on city streets (Chapter 4), and growing numbers of juvenile offenders (Chapter 17). In responding to these types of social problems, which often reflect disintegrat- ing neighborhoods, prosecutors today are more likely to stress problem-oriented approaches (Cen- ter for Court Innovation, 2012b). At times, the spe- cifics are hard to pin down because the approaches are truly shaped to local needs rather than to national program guides (Porter, 2011; Coles & Earle, 1996). But these new approaches have three elements in common (Center for Court Innovation 2012b; Jacoby, 1995):

Prosecutors have the responsibility not only to prosecute cases but also to reduce crime.

The most effective results are obtained within small, manageable geographic areas, which of- ten means working out of neighborhood offices.

Change is more likely to occur through co- operative efforts or partnerships rather than through prosecutorial dictates. In many instances, community stakeholders help set the crime-fighting agenda.

The Neighborhood District Attorney approach in Multnomah County (Portland, Oregon) provides a case in point. Business leaders in Lloyd District (an inner-city neighborhood) called for more police protection as well as the assignment of a special prosecutor to the district (for which they provided one year’s funding). Citizen demands were invariably expressed in traditional law enforcement terms—more police, more arrests, and more convictions, particularly

closer look reveals a more complex reality (Harris, 2011). Police and prosecutors have differing per- spectives on the law. To the police, the case is closed when the suspect is arrested, but prosecutors stress that they often need additional information to win in court (Stanko, 1981).

Inadequate police reports present a classic illustration of noncoordination within the criminal justice system. The thoroughness of police inves- tigations and the quality of their arrests directly affect the likelihood of the prosecutor’s obtaining a conviction. In a survey of 225 (mostly big-city) prosecutors, 66 percent cited inadequate police preparation of crime reports as a major problem in their offices (Nugent & McEwen, 1988). Com- monly mentioned problems were that names and addresses of victims and witnesses were lacking, full details of how the crime was committed were missing, and vital laboratory reports were not for- warded on time. Faced with incomplete or inaccu- rate police reports, the prosecutor may be forced to drop charges (see Chapter 10).

Police and prosecutors in several jurisdictions have adopted strategies to improve coordination and communication between the two groups (Buchanan, 1989). In Indianapolis, for example, the prosecutor has funded a computer messaging system that enables attorneys in the office to transmit notes, case dispositions, and subpoenas directly to police officers at their work locations. In Alameda County, California, and Montgomery County, Maryland, “street jump” narcotics offi cers and prosecutors consult frequently, both in person and over the telephone, to build cases that meet the requirements of the search-and-seizure law.

A few agencies have gone further, institution- alizing teamwork and making communication between investigators and prosecutors a top prior- ity. In Multnomah County, Oregon, the Organized Crime/Narcotics Task Force has brought together 12 investigators from several area agencies and two prosecutors from the district attorney’s office, instituting daily informal contact about the prog- ress of pending cases. Moreover, prosecutors act as consultants to the police during the investigative phase. Thus, investigators can get answers to dif- ficult legal questions in a few minutes, just by walk- ing down the hall.

Programs like these indicate that, despite a long history of difficulties, some agencies

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168 Part II / Legal Actors

Perhaps most important, the program was problem- oriented: Rather than focusing on individual arrest- ees, the Neighborhood District Attorney addressed problems from a larger perspective, with long-term goals in mind. Ultimately, what emerged was an approach, not a program. Rather than being guided by clear-cut procedures, Portland has adopted a highly flexible organization that can meet the dif- ferent needs of different neighborhoods (Boland, 1996).

Overall, community prosecution stresses a proactive approach: Rather than reacting to crime through prosecution, these programs stress crime prevention (Coles & Kelling, 1999). And often the crimes stressed are minor ones that are nonethe- less serious irritants to local residents (Goldkamp, Irons-Guynn, & Weiland, 2002).

of repeat offenders. The Lloyd District special prosecutor, however, quickly saw that people’s concerns were more immediate than he had imagined. “They wanted something done about prostitution, public drinking, drug use, vandalism, [minor] assaults, littering garbage, and ‘car prowls’ (thefts from cars)” (Boland, 1996, p. 36). Although none of these problems (except thefts from cars) fit traditional notions of serious crime, they nonetheless raise serious concern among citizens. (This approach clearly emphasizes the activities of the local courts, discussed in Chapter 4.)

As the program developed, several distinc- tive features became apparent. For one, the assis- tant DA used the laws in new ways, including using civil remedies to fight crime (see Chapter 2).

To many critics, the criminal justice system does not take allegations of rape/sexual assault seriously enough. On the other hand, the Duke lacrosse player sexual assault prosecution serves as a cautionary tale, because in these types of cases, stories of

victims can change and the physical evidence does not always corroborate the victim’s version of the truth. Similarly, a New York prosecutor was quick to prevent Dominique Strauss- Kahn, the powerful head of the International Monetary Fund, from leaving the country after he was accused of sexual assault by a hotel maid. Three months later, the criminal charges were dropped because the victim told too many inconsistent stories to prosecutors. But Strauss-Kahn’s chance to be elected President of France was over (Smith-Spark, 2011).

Sexual assault is one of the most visible gender equity controversies in the criminal justice system. Along with domestic violence (see Chapter 9) and gender bias in the courtroom (Chapter 5), it is the topic that feminists have most identified as involving systematic bias throughout the criminal justice system. A report of the U.S. Senate Judiciary Committee—The Response to Rape: Detours on the Road to

Equal Justice (1993)—forcefully concludes that the justice system creates serious barriers to women who are sexually assaulted. Assessing the continuing validity of these arguments approximately 20 years later is difficult because the statistics on the number of sexual assaults each year, the percentage of them reported to the police, the number resulting in criminal charges, and how many cases result in conviction vary widely.

When testifying before a subcommittee of the U.S. Sen- ate’s Judiciary Committee, Michelle Dempsey, a professor at Villanova Law School, argued that rape “is one of the most un- derreported offense in the United States with empirical studies estimating that merely 15-20 percent of cases are reported” (Financial Express, 2010). Professor Dempsey cited the find- ings of a major study using data collected from the National Violence Against Women Survey (Tjaden & Thoennes, 2006). Official statistics suggest that the reporting rate for the crime of rape has increased by nearly 35 percent in recent years (Truman, 2011). Consider that in 2010, a total of 188,380 rapes were reported in the National Crime Victimization Survey, 84,767 (45 percent) of which were reported to police accord- ing to the FBI in its annual publication, Crime in the United States (2011). Of course, these statistics are based on official data which, in turn, are affected by police actions.

The reporting rate for rape does not tell the whole story. According to the FBI (2011), only 40 percent of rapes

ARE SEXUAL ASSAULTS AGAINST WOMEN UNDERPROSECUTED?

COURTS, C O N T ROV E R S Y,

& GENDER EQUITY

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assessed within the broader context. For years, courts have granted prosecutors wide-ranging dis- cretionary powers. The exercise of this discretion shapes the dynamics of the courthouse. In effect, all others involved in the criminal courts—judges, defense attorneys, probation officers, juries, wit- nesses, and so on—must react to the decisions made by the prosecutor. But the law imposes few formal restrictions on the use of these discretionary pow- ers. Prosecutors’ offices are decentralized, autono- mous, and headed by locally elected officials.

This does not mean that prosecutorial discre- tion is uncontrolled; rather, it is influenced by other members of the courtroom work group. Through the socialization process and the occasional application of sanctions, new prosecutors are educated in the norms of the courtroom work group.

CONCLUSION

Prosecutors in the United States are powerful, but, as with all other governmental officials, there are limits. In the Duke lacrosse case, the state’s Attorney General took over the case and eventually dismissed all charges because of a lack of evidence. Moreover, the North Carolina Bar Association charged Nifong with lying to the judge, withholding key DNA evi- dence from the defense, and making inflamma- tory statements to the public. The North Carolina Supreme Court agreed and disbarred him.

The Duke lacrosse case and the Supreme Court decision in Connick v. Thompson are examples of prosecutorial misconduct and efforts to control prosecutorial abuse. But these examples must be

reported to police are cleared by arrest. Prosecutors, in turn, file charges in only about half of the cases in which arrests are made (Spohn, Beichner, Frenzel, & Holleran 2002). And, of the cases prosecuted, only half result in a felony conviction (Cohen & Kyckelhahn, 2010). Critics argue that these figures support the conclusion that sexual assaults are underprosecuted. Some research supports this position, while other research does not.

McCahill, Meyer, and Fischman (1979) and Kerstetter (1990) found that police tend to take reported rapes by strangers more seriously than reports of rapes by people known to the victim. Prosecutors evidence the same bias when deciding whether to prosecute cases (Battelle Memorial Institute Law and Justice Center, 1977; Vera In- stitute of Justice, 1981). Other researchers, however, have not found support for these propositions (see Spohn & Holleran, 2000).

Police or prosecutorial discretion in rape cases is often guided by whether the victim is someone whom a judge or jury would find credible. But in assessing credibility, some researchers argue that the character of the victim (and sometimes the accused as well)—are assessed using stereotypes (Stanko, 1988). Similarly, unfair judg- ments about victims’ moral character are often made on the bases of their behavior just prior to the alleged sexual assault, including factors such as how the victim

was dressed or whether the victim consumed alco- hol or drugs (McCahill et al., 1979). In contrast, other researchers find little support for victim characteristics influencing prosecutorial charging decisions (Spohn & Holleran, 2000). Rather, legally relevant evidentiary factors, such as the victim’s ability to identify the assail- ant and the presence of physical or medical evidence to corroborate the victim’s accusation are the salient factors that explain prosecutorial decisions whether to file or drop charges (Holleran, Beichner, & Spohn, 2010; Horney & Spohn, 1996).

The often ideological debate aside, a new program shows how the legal and medical community can do a better job in sexual assault cases. The SANE (Sexual Assault Nurse Examin- ers) program began by training hospital nurses in evidence collection, injury-detection methods, and ways of avoiding re-traumatizing a victim during the examination. Research- ers found statistically significant increases in guilty pleas or convictions. According to one detective, the program was successful because the quality of the medical forensic exams improved (Bulman, 2009).

What do you think? Are sexual assaults underprosecuted? If so, is the reason because criminal justice officials fail to adequately consider the plight of the victim or because these cases are more likely to have evidence problems?

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170 Part II / Legal Actors

1. Discuss the two major characteristics of prosecutors in the United States.

The role of the prosecutor involves broad discretion and decentralization.

2. Describe the three most important entities in federal prosecution.

The three most important entities in federal prosecution are the U.S. Solicitor General, the Criminal Division of the U.S. Department of Justice, and the offices of 94 U.S. Attorneys.

3. Identify the three somewhat overlapping agencies involved in prosecution in state courts.

The three major agencies involved in prosecution in state courts are the state Attorney General, the chief prosecutor and the local prosecutor.

4. Explain the major factors affecting the work life of assistant district attorneys.

1LO1

2LO2

3LO3

4LO4

Chapter Review Assistant district attorneys are typically young lawyers who must learn how law in action is practiced, seek promotions to prosecuting more serious crimes, and are often loosely supervised.

5. Analyze the principal factors affecting prosecutorial ethics.

As governmental officials, prosecutors are largely immune from civil lawsuits and if an error is made, an appellate court reversal is the typical remedy.

6. Outline two major examples of the expanding domain of the prosecutor.

Programs aimed at improving police– prosecutor relationships and community prosecution are two contemporary examples of the expanding domain of the prosecutor.

5LO5

6LO6

their best judgment, or should they have more limited authority so that the office has a uniform policy?

4. Of the three political styles—office conservator, courthouse insurgent, and policy reformer— which best describes your local prosecutor?

5. Community prosecution stresses the need for the prosecutor to reach out to the community, but what does “community” mean? Is this reform based on a naive assumption that all members of the same geographic entity share similar views? How might different communities within the same city (or perhaps county) stress different law-enforcement priorities?

1 Robert Misner (1996) argued that given the frag- mented nature of the criminal justice system (see Chapter 1), over the past 30 years responsibility has increasingly been centralized in the hands of the district attorney. What factors support this assessment?

2. Should state attorneys general be given author- ity to supervise locally elected district attorneys? How would such increased authority alter the criminal justice system?

3. How much authority should assistant district attorneys be given? As licensed attorneys, should they be given a large amount of discretion to dispose of cases according to

Critical Thinking Questions

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ProsecutorsChapter 6 171

absolute immunity 162

local prosecutor 158

officer of the court 150

prosecutor 150

qualified immunity 163

state Attorney General 156

U.S. Attorney General 155

U.S. Attorneys 156

U.S. Solicitor General 155

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.

Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. Thousand Oaks, CA: Sage, 2008.

Davis, Angela. Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press, 2007.

Delsohn, Gary. The Prosecutors: Kidnap, Rape, Murder, Justice: One Year behind the Scenes in a Big-City DA’s Office. New York: Plume, 2003.

Delsohn, Gary. The Prosecutors: A Year in the Life of a District Attorney’s Office. New York: Dutton/Penguin, 2003.

Frohman, Lisa. Prosecutors and Prosecution. Burlington, VT: Ashgate, 2008.

Heath, Brad, and Kevin McCoy. “Prosecutors’ Conduct Can Tip the Scales.” USA Today. September 23, 2010.

Markovits, Daniel. A Modern Legal Ethics: Adversary Advocacy in a Democratic Age. Princeton, NJ: Princeton University Press, 2008.

Mason, Caleb. “The Police-Prosecutor Relationship and the No-Contact Rule: Conflicting Incentives after Montejo

v. Louisiana and Maryland v. Shatzer. Cleveland Law Review, 58: 747–780, 2010.

Sanders, Andrew (Ed.). Prosecution in Common Law Juris- dictions. Brookfield, VT: Dartmouth, 1996.

Senjo, Scott. Sexual Deviancy and the Law: Legal Regulation of Human Sexuality. Dubuque, IA: Kendall Hunt, 2011.

Straus, Sarena. Bronx D.A.: True Stories from the Sex Crimes and Domestic Violence Unit. Fort Lee, NJ: Barricade Books, 2006.

Suthers, John. No Higher Calling, No Greater Responsibility: A Prosecutor Makes His Case. Goldon, CO: Fulcrum, 2008.

Train, Arthur. True Stories of Crime from the District Attorney’s Office. Charleston, SC: BiblioBazar, 2010.

Worrall, John, and M. Elaine Nugent-Borakove (Eds.). The Changing Role of the American Prosecutor. Albany, NY: SUNY Press, 2008.

Key Terms

Web Resources

For Further Reading

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

Condensed_AmericasCourts_Neubauer_ch04

Ch 4: State Courts��

Learning Objectives
History of State Courts��
Trial Courts of Limited Jurisdiction: Lower Courts��
Trial Courts of General Jurisdiction: Major Trial Courts��
Intermediate Courts of Appeals��
State High Courts of Last Resort��
Court Unification��
Problem-Solving Courts��
Technology Shapes the Courtrooms of the Future��
Consequences of Court Organization��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��

Condensed_AmericasCourts_Neubauer_ch05

Ch 5: The Dynamics of Courthouse Justice��

Learning Objectives
The Courthouse and the People Who Work There��
Courthouse Security and Changing Technologies��
Dynamics of Courthouse Justice��
Assembly-Line Justice��
Discretion��
The Courtroom Work Group��
The Problem of Delay��
Law on the Books Approach to Court Delay��
Law in Action Approach to Court Delay��
Legal Ethics��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��

Condensed_AmericasCourts_Neubauer_ch06

Ch 6: Prosecutors��

Learning Objectives
Role of the Prosecutor��
Prosecution in Federal Courts��
Prosecution in State Courts��
The Prosecutor's Office at Work��
Prosecutorial Ethics��
Prosecutors and Courtroom Work Groups��
The Expanding Domain of the Prosecutor��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��