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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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9 Defendants and Victims

AP Photo/Bob Breidenbach, Pool

Sarah Ballard tries to control her emotions as she deliv- ers a victim impact statement in which she described how her life

was changed by her mother’s death in a nightclub fire in Rhode

Island that was caused when indoor fireworks ignited soundproofing

foam that had been installed in the club. The owners of the club pled

“no contest” to 100 counts of involuntary manslaughter. One was

sentenced to 4 years in prison and the other was spared any period

of incarceration when he received a suspended sentence and 500

hours of community service. Families of those who died in the fire

expressed outrage at the plea-bargained sentence. Stories like this

call into question how the criminal justice system treats victims.

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Chapter Outline CHARACTERISTICS OF DEFENDANTS

Overwhelmingly Male

Courts, Controversy, & Racial Discrimination

Can Latinos Get Equal Justice under the Law?

Mostly Underclass Racial Minorities Overrepresented

DEFENDANTS IN COURT Pro Se Defendants Social Media Trap

COURTS THROUGH THE EYES OF VICTIMS AND WITNESSES

Frustrations in Coping with the Process Travails of Testifying Surprising Support for the System

VICTIMS AND WITNESSES THROUGH THE EYES OF THE COURT

Lack of Cooperation Witness Intimidation

CHARACTERISTICS OF VICTIMS Prior Relationships between Defendants

and Victims Domestic Violence

CASE CLOSE-UP: Thurman v. Torrington and Domestic Violence Arrests

AIDING VICTIMS AND WITNESSES Victim/Witness Assistance Programs Victim Compensation Programs Victims’ Bill of Rights Victim Impact Statements

Courts, Law, & Media Law and Order: Special Victims Unit

(NBC, 1999–present)

AIDING OR MANIPULATING VICTIMS?

The Victims’ Rights Movement Differing Goals Do Victims Benefit?

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officer on the scene described Pervis Tyrone Payne as looking like “he was sweating blood.” The officer’s partner followed the trail of blood into the

kitchen, where he found Charissee Christopher and her two-year-old daughter Lacie butch- ered to death. After returning a verdict of guilty on two counts of first-degree murder, the trial proceeded to the penalty phase of a capital murder prosecution. The defense called four witnesses, who testified that Payne was a very caring person but had such a low score on an IQ test that he was mentally handicapped. The prosecutor countered by calling the victim’s grandmother to the stand, who testified that three-year-old Nicholas (the lone survivor) kept asking why his mother didn’t come home, and he cried for his sister. During closing arguments, the prosecutor made maximum use of this emotional testimony, imploring the jury to make sure that Nicholas would know later in life that justice had been done in his mother’s brutal slaying. The Memphis, Tennessee, jury imposed the death penalty.

The difficulty with the grandmother’s testimony in this case is that, just a couple of years be- fore, the Supreme Court had ruled that such emotional statements are inadmissible because they tend to mislead jurors. But in the interim, the membership of the Court had changed with the addition of two conservatives appointed by Republican presidents. By agreeing to hear the case, the Court was signaling that it might be willing to reverse itself and allow victim impact statements during sentencing.

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After reading this chapter, you should be able to:

List the three characteristics of defendants. Describe how victims and witnesses view the court process. Describe how court actors view victims and witnesses. Discuss the prior relationships between defendants and victims and why this is important in domestic violence cases. Identify three types of programs that are designed to aid victims and witnesses in coping with the criminal justice process. Explain why some view victim programs as aiding victims whereas others view these programs as manipulating victims.

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Learning Objectives

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Defendants and VictimsChapter 9 223

Payne v. Tennessee directs our attention to both defendants and their victims. All too often, when we think about the criminal courts, our minds immedi- ately focus on the members of the courtroom work group: prosecutors, defense attorneys, and judges. We are less likely to think about the other partici- pants: victims, witnesses, or even defendants. Yet these other actors are also important.

Victims greatly influence workload. Courts are passive institutions. They do not seek out cases to decide; rather, they depend on others to bring matters to their attention. How many cases are filed, as well as what kinds of cases are brought to court, is determined by the decisions of others— police, victims, and those who violate the law in the first place. Thus, the courtroom work group has very little control over its workload. Second, victims, witnesses, and defendants are the consum- ers of the court process. Democratic governments are expected to be responsive to the wishes and demands of their citizens; victims and witnesses often complain about how the courts handle their cases. Victims and defendants are both subjects and objects of the criminal justice process. Their impor- tance for how the courtroom work group admin- isters justice on a day-to-day basis is the subject of this chapter.

CHARACTERISTICS OF DEFENDANTS

In some ways, those accused of violating the criminal law are a diverse lot. Although many defendants are economically impoverished, their numbers also include high-ranking government officials, businesspeople, and prominent local citi- zens. An indicator of the diversity of defendants centers on how often they are involved with the criminal justice system. At one end of the spec- trum are those who are arrested once and are never involved again. At the other end are a small group of career offenders who are responsible for a disproportionate share of offenses (Tracy, Wolfgang, & Figlio, 1990; Wolfgang, Figlio, & Sellin 1972). In fact, it is estimated that over 70 percent of all serious criminal offenses are com- mitted by roughly 7 percent of offenders, a group commonly referred to as career criminals, (DeLisi 2005; Vaughn & DeLisi, 2008). To complicate

matters further, a generational effect seems to be indicated. Violent offenders are much more likely to have experienced neglect, abuse, or violence in their families (Farrington, 2006; Harlow, 1999). Moreover, conviction of a parent is correlated with the likelihood of a child offending and being con- victed (Farrington, 2006; Roettger & Swisher, 2011; Rowe & Farrington 1997). Whether it is possible to predict who will become a career criminal, how- ever, is subject to extensive debate.

Aside from certain aspects of diversity, the majority of violators conform to a definite profile. Compared to the average citizen, felony defen- dants are significantly younger, overwhelmingly male, disproportionately members of racial minor- ities, more likely to come from broken homes, less educated, more likely to be unemployed, and less likely to be married (see Table 9.1). Three characteristics of defendants—sex, poverty, and race—figure prominently in discussions of crime and crime policy and therefore deserve expanded treatment.

Overwhelmingly Male Defendants are overwhelmingly male. In fact, women account for only 25.5 percent of all arrests for all crimes (Federal Bureau of Investigation, 2011). Although these percentages represent a sig- nificant increase over the past few decades, it is unclear whether women are actually committing

SOURCE: Thomas H. Cohen and Tracey Kyckelhahn. Felony Defendants in Large Urban Counties, 2006. Washington, DC: Bureau of Justice Statistics, 2010. Available online at http://bjs.ojp.usdoj.gov/content/ pub/pdf/fdluc06.pdf.

Male 82%

Racial or ethnic minorities 71%

At least one prior conviction 61%

Younger than age 35 53%

Under criminal justice supervision at the time of arrest (probation, parole, pretrial release, or in custody)

31%

TABLE 9.1 ■ PROFILE OF FELONY DEFENDANTS

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224 Part II / Legal Actors

rates of female involvement in the justice system have been increasing in recent years, but their absolute numbers still fall well below those of males.

Mostly Underclass Typical felony defendants possess few of the skills needed to compete successfully in an increasingly technological society. They are drawn from what sociologists call the urban underclass (Jencks & Peterson, 1991). In turn, the more poverty in a com- munity, the higher the amount of crime (Hipp &

more crimes or whether changes in the criminal justice system itself have occurred. For example, decreases in sexist and paternalistic thought pro- cesses might now lead police to arrest and pros- ecutors to charge female offenders at higher rates than in the past (Pollock & Davis, 2005). Accord- ing to this view, there has been no major shift in girls’ or women’s relative violence (Schwartz, Steffensmeier, Zhong, & Ackerman, 2009). On the other hand, there is empirical evidence that the gap between male and female offenders in vio- lent crimes is decreasing (Lauritsen, Heimer, & Lynch, 2009). Whatever the causes, it is clear that

The nomination of Sonia Sotomayor and a recent report of the U.S. Census Bureau (2011) have focused attention on race, ethnicity, and the justice system. More than one-third of our nation’s population belongs to a minority group. Sotomayor

is the first Hispanic, an ethnic group that constitutes the fastest-growing segment of the U.S. population, to serve on the U.S. Supreme Court. The U.S. Census Bureau reports that Hispanics now constitute nearly one in six residents, or 50.5 million people. Even more telling for the future: 44 percent of children younger than 18 years and 47 percent of children younger than 5 are now from minority families.

Hispanics (the identification adopted by the government) or Latinos (a term some in this group prefer) are diverse in terms of country of origin. Some, like Sonia Sotomayor, are from Puerto Rico, a U.S. territory. Others are Cuban, many of whose parents fled the dictatorship of Fidel Castro. Others are from Mexico, the world’s 12th most populous country, with over 114 million people. Others are from other central and South American countries. Although united by the Spanish language, the Latino population is heterogeneous in many ways.

Most importantly for American politics, Hispanics are also diverse in terms of their immigration status. No accurate counts of how many illegal immigrants are in the country

exist, but many estimate about 11 million. (Some advocacy groups place the number higher.) The majority of detained immigrants do not have an attorney during their deportation hearings (Hamblett, 2012). Immigration has become a major political issue in the United States, dividing both the Ameri- can population and the nation’s two major political parties. Part of this debate focuses on the role of the criminal justice system.

Hispanics share many of the same social disadvantages as Blacks (Demuth, 2003), including poverty, unemployment, living in neighborhoods with high crime rates and a history of discrimination. But in addition, they face some unique prob- lems surrounding language and cultural heritage. Some Latino victims/defendants speak little if any English, which makes it hard for them to understand what is happening during investi- gations, arrests, court appearances, and the like. Besides lacking language skills, Latino victims/defendants also often lack a basic understanding of the American justice system. Their heritage is European law, which places less emphasis on the rights of crim- inal defendants. Moreover, in some of their native countries, the justice system has a history of suppression, which makes them particularly fearful of governmental officials.

The social disadvantages faced by Latinos have several important consequences for the criminal justice system. For one, Latinos express the same levels of lack of confidence in the U.S. criminal justice system as Blacks (Pew Hispanic Center, 2009). Perhaps for this reason, they are less likely to report crimes to the police. In crimes of violence such as

CAN LATINOS GET EQUAL JUSTICE UNDER THE LAW?

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

& RACIAL DISCRIMINATION

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Defendants and VictimsChapter 9 225

opposed to those of mainstream society” insofar as they endorse violence as an appropriate response to disrespect (see also, Bourgois, 2003).

Racial Minorities Overrepresented Race remains a divisive issue in American politics, and nowhere is this more evident than in the area of crime. African-Americans, Hispanics, and Native- Americans are arrested, convicted, and imprisoned at significantly higher rates per capita than Whites. At the same time, it is important to stress that his- torically Whites constituted the majority of those in

Yates, 2011). The association of crime with poverty helps to explain, in part, why the overwhelming number of crimes—primarily burglary, theft, and drug sale—are committed for economic motives. Although crimes of violence dominate the head- lines, most defendants are not dangerous; they are charged with property or drug offenses. As for violent crimes, competing theories offer vary- ing explanations for the fact that the “ghetto poor” are disproportionately involved in violent crime. Anderson (1999, p. 33) argued that the “street code” in such economically depressed areas leads to a subculture with norms that are “conspicuously

assaults, robberies, and rapes, for example, Hispanic women report the crime to authorities just 35 percent of the time, as compared with 51 percent for White women, and 63 percent for Black women (Karmen, 2012). The lack of trust in gov- ernmental authorities coupled with a fear of being deported is a major reason Latinos often do not report crimes to the police. In turn, Latinos may be targeted because they are less likely to report the crime.

It is also harder for police and prosecutors to deal with crimes in which Latinos are victims or defendants. Traditionally, the Hispanic population was concentrated in states sharing a border with Mexico and a few big cities. Today, the population has spread across the nation, meaning that many police depart- ments have few if any officers who can take an accurate police report from a Spanish speaker. The same barriers face prosecu- tors, public defenders, and judges, with justice sometimes lost in the translation. For example, following the slaying of a Hispanic migrant worker, six Spanish-speaking witnesses were held for months in jail as material witnesses, but they had no court- appointed lawyer because no one in the public defender’s office could read the letters they wrote (Alexander-Bloch, 2007).

How well or how poorly Latinos fare in the criminal justice system is hard to tell. An extensive body of research has compared White defendants with Black defendants, but rela- tively little is known about Latino defendants (Martinez, 2007). But we do know that after arrest, Hispanics are more likely to be detained in jail than Blacks or Whites (Demuth, 2003).

The growing Hispanic population and the issues sur- rounding immigration have strained the U.S. justice system

in several important ways (Hsu, 2009). When an immigrant, whether in this country legally or illegally, is arrested, he or she is more likely to be detained in jail because Immigration and Customs Enforcement (ICE) puts a hold on that person for possible deportation. As a result, jail populations increase and local officials demand that the U.S. government pay for the additional costs (Bowes, 2009). Yet ironically, many undoc- umented immigrants convicted of a minor crime are not de- ported because the U.S. immigration system is overwhelmed and therefore chooses to deport only those convicted of the most serious offenses (Carroll, 2008). Several states have recently passed major anti-immigration laws that threaten to increase tensions between Latinos the police and the criminal justice system (Martinez, 2010).

The growing number of immigrants has also placed the United States at odds with the international legal community. The Vienna Convention on Consular Rela- tions gives foreign nationals who are accused of a crime the right to talk with the consulate of their home coun- try. The International Court of Justice found that Texas violated the treaty by not informing Jose Medellin, a Texas death row inmate, of these rights. But the Supreme Court refused to follow the decision of the world court, holding that the treaty was not binding on the United States and that rulings of the International Court of Justice are not binding when they contradict states’ criminal procedures (Medellin v. Texas, 2008). It is also worth noting that the Mexican constitution prohibits that nation from deporting one of its citizens in death penalty cases.

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226 Part II / Legal Actors

prison, a fact conveniently ignored on some radio and TV discussions.

Why minorities are overrepresented in the criminal justice system is a topic of considerable importance (and therefore addressed in several later chapters). To some it is an indication that minorities are more likely to be poor and, therefore, more likely to commit crimes for economic advancement (Haynie, Weiss, & Piquero, 2008). Others counter that discrimination is the reason; minorities are more likely to be targeted by criminal justice officials and also more likely to receive a harsh sentence (Keen & Jacobs, 2009). Whatever the cause, the impact is enormous. An estimated 16.6 percent of African- American males will serve time in state or federal prison in their lifetimes, as compared with 7.7 percent of Latino males and 2.6 percent of White males (Bureau of Justice Statistics, 2007). But no matter the cause, in terms of attitudes about the racial gap in the criminal justice system, Whites and African- Americans are, in Unnever’s (2008) words, “two worlds that are far apart” (p. 534).

Altogether, one out of three Americans is a minority, with Hispanics having recently become the largest minority. As explored in the “Courts, Controversy, & Racial Discrimination” feature on page 224, some question whether Latinos can get equal justice under the law.

DEFENDANTS IN COURT

The defendant is supposed to stand at the center of the criminal court drama. Yet typical felony defen- dants are largely powerless to control their fates; they are more objects to be acted upon than keys to what happens.

Because most defendants are poor and unedu- cated, they are ill equipped to deal with the techni- cal abstractions of the criminal court process. Many are incapable of understanding even the simplest instructions about the right to bail or the presump- tion of innocence. Many are too inarticulate to aid their attorneys in preparing a defense. Many hold unfavorable attitudes toward the law and the crim- inal justice system and thus regard the judge and all other court personnel, including their defense attorneys, with hostility and distrust.

The mental competence of criminal defen- dants is another significant concern for the courts.

Competency to stand trial concerns itself with a criminal defendant’s mental state at the time of trial. If a bona fide issue regarding the defendant’s com- petency to stand trial has been raised, the defendant must be clinically assessed. In Ake v. Oklahoma (1985), the Supreme Court held that an indigent criminal defendant had the right to have the state provide a psychiatric evaluation that can be used not only to determine competency to stand trial, but also may be used to help prepare and present an insanity defense, if warranted (see Chapter 14).

Even when the mental competency of a criminal defendant is not in question, the nature of the clien- tele can make criminal courts a depressing place to work. Judges, prosecutors, and defense attorneys seldom come away from their day’s activities with a sense of accomplishment, for many of the crimi- nal cases involve social problems—drug addiction, marital problems, lack of education, and mental illness—over which court personnel have no control. Many cases stem from disputes between people who know one another.

Court personnel have little empathy with or understanding of the types of defendants whose fates they must decide. Members of the courtroom work group are essentially middle class. Little in their backgrounds or training has equipped them to deal with violations of the law committed by the poor.

Pro Se Defendants In spite of the legal maxim that only a fool has him- self as a client, more and more court litigants elect to act pro se, meaning they speak on their own behalf by serving as their own attorneys. Pro se litigants are far more numerous in civil cases, especially in family law cases, largely because of the high costs of legal assistance and the general unavailability of appointed counsel in most civil cases. And although legal repre- sentation is provided free of charge to indigent crimi- nal defendants facing incarceration (see Chapter 7), not all defendants avail themselves of this right.

Although a “right” to self-representation is not explicitly mentioned in the Sixth Amendment, in Faretta v. California (1975), the U.S. Supreme Court determined that the right to make one’s own defense is necessarily implied by the plain language of the Amendment. To do so, however, one must be mentally competent to waive counsel and serve as one’s own attorney. In Indiana v. Edwards (2008),

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Defendants and VictimsChapter 9 227

the Court held that “the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial . . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves” (p. 178).

When a criminal defendant acts pro se, courts have the discretion to appoint standby/shadow counsel to assistant the defendant as needed. Hav- ing a lawyer able to take over the case is desirable if the court revokes the defendant’s right to self- representation either because of emerging ques- tions of mental incompetence or if the defendant is abusive, threatening, obstructionist, or the cause of repeated, unnecessary delays.

Pro se litigants can be expensive and time con- suming for the courts.

Pro se cases increase the complexity of the duties

assigned to judges, magistrates, and other court ad-

ministrators and personnel and can challenge the im-

partiality of both judges and clerks. Pro se litigants,

meanwhile, increase administrative costs, skip court

proceedings or attend proceedings unprepared, and

upset court routines. This development has proven to

be a “fundamental challenge to many basic assump-

tions of our adversary system”; a system that built

the roles of judges and clerks on the premise that

each party is represented. (Thompson, 2010-2011, p. 610)

For example, pro se defendants plead “not guilty” and go to trial at significantly higher rates than do felony defendants represented by counsel (Hashimoto, 2007). And because pro se litigants are usually unfamiliar with the law, the rules of evi- dence, and the rule of criminal procedure, they can pose significant challenges for court personnel.

Yet, pro se criminal defendants appear to fare reasonably well in state courts. Those who do plead guilty often do so to significantly higher percent- ages of misdemeanors and lower numbers of felo- nies (47 percent and 53 percent, respectively) as compared with represented defendants, nearly 84 percent of whom plead guilty to felonies and only 16 percent to misdemeanors (Hashimoto, 2007). Of those who go to trial, acquittal rates for pro se defen- dants are generally the same as those for defendants represented by counsel. In federal courts, however, pro se defendants tend to garner less favorable pleas

and enjoy only one-third the acquittal rate of repre- sented defendants (Hashimoto, 2007).

Social Media Trap Defendants “I could win most of my cases if it weren’t for the cli- ents. . . . They will waltz into the witness-box and blurt out things which are far better left unblurted” com- plained Horace Rumpole, a fictitious British defense attorney (Mortimer, 1984). Modern American defense attorneys no doubt complain that they could win a few more of their cases if their clients did not text, e-mail, tweet, or otherwise post online what was best untexted, un–e-mailed, untweeted, or unposted.

To be sure defendants enjoy the privilege against self-incrimination, which means they cannot be forced to testify at trial. And this privilege has been extended to include police interrogation, because the police must provide suspects with Miranda warnings. But the privilege against self-incrimination does not apply to voluntary statements made by defendants. In the era of social media, what people tweet on Twitter, send by e-mail, or post to Facebook can have major legal repercussions. The conviction of Dharun Ravi for hate crimes is a case in point.

Dharun Ravi, a freshman at Rutgers Univer- sity, used a web cam to spy on his gay roommate’s dorm-room sexual encounters and streamed the video on the Internet (Shallwani, 2012). A few days later, his roommate Tyler Clementi, a talented young musician, committed suicide. These events quickly became the subject of intense national interest and Ravi was charged under New Jersey law with a hate crime, invasion of privacy, witness intimidation, and bias intimidation (but not murder). The government case was based on a pixelated paper trail of twitter feeds, Facebook posts, text messages e-mails, and other chatter. Ravi, for example, widely publicized his actions using social media and deleted texts sent to the prosecution. In the end, the jurors decided that this overwhelming amount of social media data elevated the case from one of a teenager behaving cruelly to a person committing an insensitive crime (Halbringer & Kormanik, 2012).

Social media can also pose a problem for con- victed defendants at sentencing, as the case of People v. Binkerd (2007) illustrates. The defendant was driving home from a party when she col- lided into oncoming traffic, killing the friend and coworker who had been her passenger. Her blood

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228 Part II / Legal Actors

alcohol concentration was more than twice the legal limit. At her sentencing for vehicular homicide, the probation officer had recommended a jail sentence of less than 1 year, a sentence the deceased victim’s family supported. Yet, the judge sentenced the defendant to 64 months in state prison after seeing pictures of the defendant posted on her MySpace page wearing a t-shirt reading “I Patron” while drinking with friends after the fatal accident. The judge thought that the photos indicated the defen- dant lacked remorse and therefore deserved a tough sentence (see Chapter 15).

COURTS THROUGH THE EYES OF VICTIMS AND WITNESSES

Traditionally, victims and witnesses have been the forgotten participants in the criminal justice system. Fictional and nonfictional treatments of the court process direct attention to the criminal as victim rather than to the victim as victim (Elias, 1986). More recently, however, a growing number of studies have focused on the victim (Karmen, 2012). These stud- ies have identified ways in which the courts, along with the rest of the criminal justice community, have ignored the interests of victims and witnesses.

Frustrations in Coping with the Process Crime victims once played a prominent role in the criminal process. Before the American Revolu- tion, victims were the central figures in the crimi- nal justice drama. Criminals’ fates were closely tied to their victims’ wishes. When crime became viewed as an offense against the state, the victim was assigned a subordinate role. As prosecuto- rial dominance increased, the power of the victim declined (see Chapter 6). Victims lost control over their cases, and their role was reduced to initiating investigations by complaining to the police and testifying for the prosecution as just another piece of evidence in the state’s presentation of damning facts against the accused (Karmen, 2012).

Several studies have documented the hardships victims and witnesses face while participating in the criminal court process (Cannavale & Falcon, 1976; Connick & Davis, 1983; McDonald, 1976).

Although some are minor inconveniences, such as getting to the courthouse and finding a parking place, other hardships are more significant:

Trial delays, which result in frequent travel and wasted time

Long waits in uncomfortable surroundings Wages lost for time spent going to court Fear of the defendant or retaliation from the

defendant’s associates A sense that criminal justice personnel are

indifferent to their plight

Travails of Testifying Victims and witnesses also face major problems while testifying in court. Because few people are accustomed to testifying, lawyers must coach their witnesses ahead of time to answer only the question asked, to speak forcefully (but not belligerently), and not to become rattled by cross-examination. Even after such preparation, many witnesses are uncomfortable during cross-examination, as the defense attorney tests their memory, challenges their veracity, or even suggests that they were somehow responsible for their own victimization. After enduring cross-examination, some victims report feeling as though they, and not the offender, have been portrayed as the criminal.

Most of what we know about the ordeal of tes- tifying in court comes from studies of rape victims (Resick, 1984). The dominant conclusion is that the victim, rather than the defendant, is put on trial. Tes- tifying in court provokes anxiety for several months, exacerbating psychological distress (Steketee & Aus- tin, 1989). Holmstrom and Burgess (1983), both of whom counsel rape victims at Boston City Hospi- tal, followed the cases of 14 women who testified in court during a rape trial. They concluded that the trauma is often significant, because the victim must publicly repeat in detail how the rape occurred. The type of defense used by the defense attorney also has an impact on the victim’s adjustment to the crime. A defense claim that the woman consented to sex is injurious, because it puts the victim on trial and calls into question her discouragement of the perpetra- tor (Steketee & Austin, 1989). Moreover, the defense often seeks to blame the victim by suggesting that she consented, did not resist, was provocatively dressed,

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Defendants and VictimsChapter 9 229

and so on. It can take little to discredit the victim. Following the Holmstrom and Burgess study, most states have passed legislation limiting inquiry into a rape victim’s past sexual conduct (Caringella, 2008).

Surprising Support for the System Somewhat surprisingly, despite the problems and frustrations experienced, victims and witnesses still express overall support for the court process (Hagan, 1983). A study conducted in Milwaukee found that victims and witnesses were satisfied or very satisfied with the handling of their cases by the police (81 percent), district attorney (75 percent), and judge (66 percent). Less than 15 percent said that they were dissatisfied (Knudten, Meader, Knudten, & Doerner, 1976). Favorable judgments were inde- pendent of whether a victim was satisfied with the eventual outcome of the case. Since that time, courts have grown more responsive to the needs of victims and witnesses. Research suggests that increased levels of victim input into the handling of criminal cases moderately increase victims’ satisfaction with the judicial system (Erez & Roberts, 2007). Such findings, however, are contingent upon a variety of factors, such as whether victims even know about their rights to participate in various processes, whether the victim was treated with dignity and respect, and whether there was an admission of guilt or an apology from the perpetrator.

VICTIMS AND WITNESSES THROUGH THE EYES OF THE COURT

The criminal courts confront a double bind with regard to victims. On the one hand, victims are valued for the cases they bring to the system; their misfortunes become the raw material of the court process (see the “Law on the Books vs. Law in Action” feature on the following page). On the other hand, individual victims represent a potential source of irrationality in the process. The personal and often emotional involvement of victims in the crime expe- rience can generate particular demands for case out- comes that have little to do with the public interest. Thus, at times members of the courtroom work group perceive that the victim’s demands for public justice

actually mask a desire for private vengeance (Hagan, 1983). Members of the courtroom work group also know that, particularly in violent and gang-related crime, the same individual may, at difference times be a victim, a witnesses, and an offender (Dedel, 2006).

Lack of Cooperation Many victims and witnesses are reluctant to become involved in the criminal justice process. More than half of all major crimes are never reported to the police; even when they are reported, not all vic- tims wish to prosecute (Chapter 10). Particularly in the low-income, high-crime neighborhoods of the nation’s largest cities, victims and witnesses may fail to cooperate with the police. In the words of Captain Sheilah Coley of Newark, New Jersey: “I don’t know what frustrates me more. Those knuckleheads killing each other, or the residents who won’t cooperate with my officers” (quoted in Jacobs, 2007). When her officers respond to reports of gun fire, potential wit- nesses respond with blank looks.

Scholars refer to this lack of cooperation as legal cynicism. Youths in a high-crime neighborhood are negatively disposed toward police; this is grounded in the lived experience of negative encounters with law enforcement (Carr, Napoliatano, and Keating 2007). Overall, legal cynicism refers to a cultural orientation in which law and the courts are viewed as illegitimate, unresponsive, and ill equipped to ensure public safety (Kirk & Matsuda, 2011).

This lack of cooperation is fueled by hip-hop culture’s “stop snitching” mantra. Indeed hip-hop superstar B.G., known for his song “I Ain’t Tellin,” accepted a longer-than-normal prison term on a fed- eral gun charge rather than snitch (McCarthy, 2011).

Some specific witness-related problems include giving the police incorrect addresses, failing to show up in court, and offering testimony that is confused, garbled, or contradicted by other facts. Witness-related problems result in a significant number of cases in which the prosecutor refuses to file charges or the case is later dismissed (Boland, Brady, Tyson, & Bassler, 1982). But when victims cooperate with the prosecution, the odds that a case will be prosecuted increase dramatically (Dawson & Dinovitzer, 2001).

Not all uncooperative behavior can be blamed on victims and witnesses, however; the court pro- cess can be equally at fault. In Washington, D.C., a

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study focusing on what it called “noncooperative” witnesses reported that 41 percent were never told that they should contact the prosecutor; 62 percent were never notified of court appearances; and 43 percent stated that the police, prosecutor, and

judge all failed to explain the witnesses’ rights and duties. Other reports have found that the longer the case is delayed, the more likely it is that witnesses will not appear when summoned (Cannavale & Falcon, 1976).

LAW ON THE BOOKS VS. LAW IN ACTION MAJOR ACTIVITIES OF VICTIMS IN THE STEPS OF THE COURT PROCESS

LAW ON THE BOOKS LAW IN ACTION

Crime No general requirement to report crimes to the police. Thirty-eight percent of personal and household crimes are reported to the police.

Arrest A citizen’s arrest is the taking of a person into physical custody by a person other than a law enforcement officer for the purpose of delivering the person to the custody of a law enforcement officer.

The vast majority of arrests are made by law enforcement officers. Citizen’s arrests may result in injury to the victim and may also result in civil lawsuits.

Initial appearance

Open to the public. Very unlikely for victim to be present because unlikely to know timing of the event.

Bail VRAa provides that victims have a right to be heard if present and to submit a statement “to determine a release from custody.”

Victims are very rarely present.

Charging Victim has no role, and the VRA states that “nothing in this article shall provide grounds for the victim to challenge the charging decision.”

Reluctance or refusal of victims to cooperate is a key reason for case dismissal.

Preliminary hearing

Besides the right to notice and to be present, the VRA is silent on the role of victims during this stage.

Victims rarely testify because hearsay evidence is admissible.

Grand jury Grand jury can subpoena victim to testify. In grand jury states, victim is likely to be subpoenaed to testify.

Arraignment VRA provides that victims of crimes have the right to notice of proceedings like this.

Victims are rarely present.

Evidence In some jurisdictions, the defense is entitled to see a copy of the victim’s statement to the police.

Even if not required, some district attorneys disclose the victim’s statement in hopes of inducing a guilty plea.

Plea bargaining

VRA provides that victims may be heard and may submit a statement during an acceptance of a negotiated plea.

Some jurisdictions allow victims to be heard with regard to the plea bargain, but few actually appear.

Trial If they are to testify, victims generally cannot view the trial (wording in the VRA concerning public proceedings might change this law).

Victim’s testimony is a key part of the trial.

Sentencing VRA provides that victims may be heard and may submit a statement during sentencing.

Victims are unlikely to appear.

Appeal Like other court proceedings, appellate argument is open to the public.

Victims are very unlikely to be present.

aVRA = Proposed Victims’ Rights Amendment to the U.S. Constitution.

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Defendants and VictimsChapter 9 231

Witness Intimidation One form of noncooperation involves witness intimidation. Persons who have been victims of crime, or witnessed a crime, may be pressured not to testify. Witness intimidation may take the form of threats of violence or actual violence against the person in question or his or her friends and family members. Property damage may also be involved. Such pressures may be made by the defendant, members of the defendant’s family, other associ- ates, or even gang members (Dedel, 2006). Witness intimidation is often a specific focus of victim/wit- ness assistance programs, discussed later in this chapter.

CHARACTERISTICS OF VICTIMS

In some ways, victims of crimes are a diverse lot, including the rich and the poor, the young and the old, and men as well as women. This diversity aside, however, crime victims are more likely to be young, nonwhite, male, divorced or never married, low-income, and unemployed (Elias, 1986; Truman, 2011). Thus, in many ways, the profile of victims matches that of defendants. Indeed several decades of research have established that offenders and victims often possess the same characteristics and engage in many of the same behaviors (Schreck, Stewart, & Osgood, 2008). The major deviation is that rates of female victimization approaches that of males.

The overlaps of offenders and their victims possess numerous problems for members of the courtroom. Indeed, it is not uncommon to find that a person who appears in court as the defen- dant was in the past in court in the role of victim. How a case is handled is determined by the iden- tity of the victim as well as that of the offender. Prosecutors allocate their limited resources to the cases they believe constitute the most “trouble” (Hagan, 1983). Not surprisingly, such judgments correlate with the desire for high conviction rates. Prosecutors assume that judges and juries will find the claims of certain kinds of victims credible and acceptable, but not the claims of others (Stanko, 1981–1982). The troubles of older, white, male, employed victims are considered more worthy

of public processing (Myers & Hagan, 1979), For example, legal outcomes in murder cases were related to the race, gender, and conduct of victims at the time of the incident (Baumer, Messner, & Felson, 2000).

Prior Relationships between Defendants and Victims Perhaps the most important victim characteristic that influences case processing is the prior relation- ship between defendants and victims. The follow- ing case is illustrative.

An auxiliary police officer watched a woman ap-

proach a man as he emerged from a liquor store. It

was dark. The officer thought he saw a knife flash

in her hand, and the man seemed to hand her some

money. She fled, and the officer went to the aid of the

victim, taking him to the hospital for treatment.

The officer saw the woman on the street a few days

later and arrested her for first-degree robbery on the

victim’s sworn complaint. It was presumably a “high-

quality” arrest—identification of the perpetrator by an

eyewitness, not from mugshots or a lineup, but in a

crowd. Yet, shortly thereafter, this apparently airtight

case was dismissed on the prosecutor’s motion.

What the victim had not explained to the police

was that the defendant, an alcoholic, had been his

girlfriend for the past five years; that they had been

drinking together the night of the incident; that she

had taken some money from him and got angry

when he took it back; that she had flown into a fury

when he then gave her only a dollar outside the li-

quor store; and that she had slashed at him with a pen

knife in anger and run off. He had been sufficiently

annoyed to have her charged with robbery, but, as the

judge who dismissed the case said, “He wasn’t really

injured. Before it got into court they had kissed and

made up.” In fact, the victim actually approached the

defense attorney before the hearing and asked him to

prevail upon the judge and the assistant district at-

torney (ADA) to dismiss the charges against his girl-

friend. (Vera Institute of Justice, 1981, p. xxii)

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This case is one of many cited by the Vera Institute that show the importance of the prior relationship between defendants and victims.

Prior relationships between defendants and vic- tims are more common than generally assumed. In half of all felony arrests in New York, the victim had a prior relationship with the defendant. Prior rela- tionships were frequent in cases of homicide and assault, in which they were expected, but they were also frequent in cases of robbery, in which they were not. Other studies reach a similar conclusion. Nation- wide, roughly half of all violent crimes (rape, assault, and robbery) are committed by relatives, friends, or acquaintances of the victim (Truman, 2011). Homi- cides, in particular, are usually committed not by strangers but by someone the victim knows by sight; in fact, the victim and the perpetrator are strangers in only 14 percent of all murders (Fox & Zawitz, 2007). Criminal court officials often regard crimes involv- ing people who know one another as not very seri- ous, viewing them as private disputes rather than offenses against the entire community.

Domestic Violence The prior relationship between victims and defen- dants is most apparent in crimes against women. Women are much more likely than men to experi- ence violence committed by an intimate partner, such as a current or former spouse, lover, or boyfriend or girlfriend, including same-sex relationships. Measur- ing violence between intimate partners is difficult because it often occurs in private, and victims are often reluctant to report incidents to anyone because of shame or fear of reprisal. Rates of intimate violence have been declining over the past several decades but still remain a significant issue in American soci- ety (Catalano, Smith, Snyder, & Rand, 2009).

Domestic Violence and the Police Historically, police officers made an arrest only as a last resort—if taking the suspect into custody seemed the only way to ensure no more violence that night. Justice-system actors—including police officers, pros- ecutors, and judges—seemingly believed “that the importance of protecting families from interference outweighed the importance of protecting women from abuse” (Goldfarb, 2008, p. 1495-1496; see also, “Case Close-Up” on Thurman v. Torrington). In the

late 1970s through the 1980s, however, this attitude began to change as domestic violence came to be understood as a serious social problem.

Advocacy groups for battered women and vic- tims have worked vigorously for policy changes designed to make the criminal justice system treat domestic violence as a serious offense. Jeffrey Fagan (1996) gave this movement a name in his aptly titled book, The Criminalization of Domestic Violence. As a result, there have been significant changes in how the criminal justice system responds to domestic violence. The question of what constitutes the most effective criminal justice response, however, has stirred considerable controversy (Maxwell, Garner, & Fagan, 2002). The prior relationship between victim and offender causes particular problems for law enforcement officials in the area of domestic violence (Buzawa & Buzawa, 1996).

The police have been urged to make more arrests, and prosecutors to file charges, no matter what the wishes of the victim. Mandatory-arrest policies clearly produce higher arrest rates (Hirschel, Buzawa, Pattavina, & Faggiani, 2007). Whether these mandatory-arrest policies are effective in reduc- ing intimate-partner violence has been questioned, however (Hirschel, Hutchison, Dean, & Mills, 1992). Researchers report that arrest reduces domestic vio- lence in some cities but increases it in others (Schmidt & Sherman, 1993). Although some exceptions exist, most studies to date indicate that criminal justice interventions deter intimate-partner violence or improve victim safety (Cosimo, 2011; Spohn, 2008).

Domestic Violence in the Courts Arrests do not always lead to prosecutions. Many women call the police to stop the violence but later have a change of heart and refuse to sign a com- plaint. In Bronx D.A., Sarena Straus (2006, p. 31) expressed her frustration as a prosecutor in the sex crimes and domestic violence unit:

I found that a large percentage of the abused women

who came into the Complaint Room refused to press

charges, and most of them would return time and

time again. Many of these women were known to

their local precincts as they were constantly calling

911 for help. . . . The story was often the same. They

loved the guy. They knew he wouldn’t do it again.

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Defendants and VictimsChapter 9 233

Between October 1982 and June 1983, Tracey Thurman repeatedly notified the police of threats made on her life and the life of her child by her estranged husband, Charles Thurman. On one of those occasions, Charles screamed threats at Tracey while she was sitting in her car. A police officer watched and did nothing until Charles broke the windshield on the car while Tracey was still inside of it. The officer then arrested Charles. He was convicted of breaching the peace and received a suspended sentence of 6 months. The police continued to ignore Tracey’s requests each time she called. Indeed, both she and a neighbor at- tempted to file criminal complaints against Charles when he violated orders of protection, but police repeatedly ignored her.

On June 10, 1983, Charles appeared at the home of one of Tracey’s friends, demanding to speak with Tracey, who remained indoors. The police were called with a request that Charles be picked up for violation of his probation. After about 15 minutes, Tracey went outside to speak to her husband in an effort to per- suade him not to take or hurt their son. Soon thereaf- ter, Charles stabbed Tracey 13 times in the chest, neck, and throat.

Approximately 25 minutes after Tracey’s call to the Torrington Police Department, and after her stabbing, a single police officer arrived on the scene. He saw Charles holding a bloody knife. Charles dropped the knife and, in the presence of the officer, kicked Tracey in the head and ran into the house. Charles returned from within the residence holding their son. He dropped the child on his wounded mother and then kicked Tracey in the head a second time. Soon thereafter, three more police officers arrived on the scene, but all of them permitted Charles to wander about the crowd and to continue to threaten Tracey. Finally, upon approaching Tracey once again—this time while she was lying on a stretcher—Charles Thurman was arrested and taken into custody.

Miraculously, Tracey survived the attack, although she suffered significant injuries that left her with impaired motor function. She and her son sued the City of Tor- rington, Connecticut, and 24 of its police officers for their failure to arrest her violent, estranged husband. Tracey alleged that by following a policy of not arresting abusive husbands or boyfriends, Torrington police failed to pro- vide the same protection for abused wives and children as they provided for victims of similar assaults outside a domestic relationship. The court agreed with her.

City officials and police officers are under an af- firmative duty to preserve law and order, and to protect the personal safety of persons in the com- munity. This duty applies equally to women whose personal safety is threatened by individuals with whom they have or have had a domestic relation- ship as well as to all other persons whose personal safety is threatened, including women not involved in domestic relationships. If officials have notice of the possibility of attacks on women in domestic relationships or other persons, they are under an affirmative duty to take reasonable measures to protect the personal safety of such persons in the community.

* * *

[A] police officer may not knowingly refrain from interference in such violence, and may not auto- matically decline to make an arrest simply because the assailant and his victim are married to each other. Such inaction on the part of the officer is a denial of the equal protection of the laws. (pp. 1527–1528)

Ultimately, Tracey Thurman was awarded $2.3 million in compensatory damages. But perhaps the true legacy of her story is that it prompted Connecticut to revise its domestic violence laws to include mandatory arrest provisions.

THURMAN TORRINGTON AND DOMESTIC VIOLENCE ARRESTSCASE CLOSE-UP

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He said he was sorry. He bought them flowers. It was

their fault because they provoked him.

At times, the district attorneys would pressure the woman to file charges, but often they simply accepted defeat.

The criminalization of domestic violence has also greatly increased the workload of the courts. Between 1989 and 1998, for example, the number of domestic relations cases in state courts across the nation grew by 178 percent (Ostrom & Kauder, 1999) with about a 10 percent increase in the following decade (LaFountain et al., 2008). In response to the growing awareness of domestic violence as a serious social problem, many courts in the United States have created domestic violence courts that emphasize a problem-solving approach (see Chapter 4). An evaluation of one such court found significantly lower rates of re-arrests among defendants processed through the domestic violence court (Gover, MacDonald, & Alpert, 2003).

A growing number of courts rely on batterer programs as the mandate of choice. Some research- ers report that batterer programs do not appear to reduce recidivism (Labriola, Rempel, & Davis, 2008), but others argue that these programs are appropriate in most cases (Gondolf, 2012). However, programs involving a coordinated response that involve courts and justice agencies appear to be more effective (Visher, Harrell, Newmark, & Yahner, 2008).

Legal sanctions against domestic violence are not limited to criminal law. Victims of domestic violence may request a civil protection order. Recent legislative changes in most jurisdictions now make these court orders easier to obtain. They are no longer limited to women who have filed for divorce, and they may be issued on an emergency basis without the other party present. Half of the women in five Kentucky counties who received a civil protection order experienced no violations; among the half who did experience a violation, the levels of violence and abuse declined significantly (Hawkins, 2010). However, civil protection orders are not self-enforcing; there is even a danger that a civil protection order may induce a false sense of security among some women who are at risk of continued battery from a former intimate. Conversely, some are concerned that protection orders can be abused. In the words of public defender David Feige (2006, p. 182), “Though a fine idea in principle, orders of pro- tection are constantly abused. It is not at all uncom- mon for vindictive, angry partners to use orders of

protection to wreak havoc on each other—using them as substitutes for eviction orders or citing them to justify ignoring child custody agreements.”

AIDING VICTIMS AND WITNESSES

For decades, reformers have urged that victims and witnesses be accorded better treatment.

In 1931, the National Commission on Law Observance and Enforcement concluded that effective administration of public justice re- quired willing witnesses, but testifying in court imposed unreasonable burdens on citizens.

A 1938 American Bar Association report found that witness fees were deplorably low, court- house accommodations were uncomfortable, and witnesses were frequently summoned to court numerous times only to have the case continued.

But it was not until the 1960s that attention was seriously devoted to the problems faced by victims and witnesses in court and to ways of improving the situation (Karmen, 2012).

In 1967, the President’s Commission on Law Enforcement and Administration of Justice highlighted a “growing concern that the aver- age citizen identifies himself less and less with the criminal process and its officials.”

A few years later, concern for victims and witnesses of crime rose to a crescendo. Crime victims received special attention from the White House.

In 1982, the President’s Task Force on Victims of Crime stressed the need for achieving a balance between the needs and rights of the victim and those of the defendant.

Public and governmental concern over the plight of victims has prompted numerous pieces of legisla- tion (see the “Key Developments” feature on the next page). The Victim and Witness Protection Act, a federal law passed in 1982, required greater protection of victims and witnesses and also mandated guide- lines for the fair treatment of victims and witnesses in federal criminal cases. The Victims of Crime Act of 1984 authorized federal funds for state victim pro- grams. Spurred by these concerns, every state has passed comprehensive legislation protecting the inter- ests of victims. In short, a wide variety of programs

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Defendants and VictimsChapter 9 235

have been adopted in recent years to improve the treatment crime victims receive from the criminal justice system. The four most common types of ini- tiatives are: (1) victim/witness assistance programs, (2) victim compensation programs, and (3) a victims’ bill of rights, and (4) victim impact statements.

Victim/Witness Assistance Programs Victim/witness assistance programs encourage cooperation in the conviction of criminals by reducing

the inconvenience citizens face when appearing in court (Finn & Lee, 1988). Typical activities include providing comfortable and secure waiting areas, assisting with the prompt return of stolen property that has been recovered, and providing crisis inter- vention. These programs also provide victims and witnesses with a clearer understanding of the court process by distributing brochures, explaining court procedures, and notifying witnesses of upcoming court dates (Webster, 1988). Of particular concern is victim and witness intimidation. Intimidation can be

KEY DEVELOPMENTS IN LAW RELATING TO VICTIMS National Crime Victims’ Week (1980)

Annual event focusing on the plight of crime victims.

Victim and Witness Protection Act (1982)

Enhance and protect the necessary role of crime victims and witnesses in the criminal justice process.

Victims’ Bill of Rights (1982) California was first state to adopt.

Victim of Crimes Act (1984) Established Crime Victim Fund from fines, penalties, and bond forfeitures of convicted federal criminals.

Booth v. Maryland (1987) In capital cases, victim impact statements are unconstitutional because they introduce the risk of imposing the death penalty in an arbitrary and capricious manner.

South Carolina v. Gathers (1989) Characteristics of the victim are irrelevant during death penalty deliberations.

Payne v. Tennessee (1991) The Eighth Amendment creates no bar to the introduction of victim impact statements during sentencing.

Simon & Schuster v. New York State Crime Victims Board (1991)

Declared unconstitutional New York’s “Son of Sam” law, which sought to prevent criminals from profiting from their crimes.

Violence Against Women Act (1994) Comprehensive law creating a variety of programs to strengthen law enforcement, prosecution, and victim services in cases involving crimes against women.

The Antiterrorism and Effective Death Penalty Act (1996)

A federal court must impose mandatory restitution, without consideration of the defendant’s ability to pay.

Victims’ Rights Amendment (VRA 1996)

VRA proposed in the U.S. Congress.

VRA (2000) VRA withdrawn in face of virtually certain defeat.

Crime Victims’ Rights Act (2004) Federal legislation protecting victims in federal court that parallels the former Victims’ Rights Amendment.

Town of Castle Rock, Colorado v. Gonzales (2005)

A victim of domestic violence does not have the right to sue the local police department for failing to enforce a restraining order against her husband, who subsequently murdered her three children.

Carey v. Musladin (2009) A federal appeals court overstepped its authority when it granted a new trial to a murder defendant whose victim’s relatives sat at the trial, in the view of the jury, wearing buttons with the victim’s picture on them.

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either case-specific—threats or violence intended to dissuade a witness from testifying in a specific case— or communitywide—acts of gangs or drug-selling groups intended to foster a general atmosphere of fear and noncooperation within a neighborhood or community (Healey, 1995).

Today, virtually all jurisdictions of any size have established programs aimed at helping crime vic- tims cope with the hardships of victimization and deal with the often-troublesome demands of the criminal justice system. Most are based in criminal justice agencies (prosecutors’, police, and sheriffs’ offices). Often the program title is Victim Services. Overall, few victims use these programs, and older victims of violent crimes are more likely to use vic- tim services than are younger victims of nonviolent crimes (Sims, Yost, & Abbott, 2005).

Evaluations of victim/witness assistance pro- grams have yielded mixed results. In some com- munities, a victim’s willingness to cooperate in the future was positively associated with considerate treatment by criminal justice personnel (National Institute of Justice, 1982; Norton, 1983). Thus, vic- tims and witnesses receiving help were more likely to appear when summoned than those who had not been aided. But no such impact was found in other communities (Davis, 1983; Skogan & Wycoff, 1987). Those helped by the program appeared at the same rate as those who were not aided, and there was no change in the rate of case dismissals.

Andrew Karmen (2012) suggests that one expla- nation for these research findings is that expecta- tions of significant improvements in case outcomes were based on faulty assumptions. The presump- tion is that the adjudication process is character- ized by an adversarial model. The reality is that the courtroom work group has a mutual interest in processing large numbers of cases expeditiously. Thus, whereas victims see their situations as unique events that deserve careful and individual consid- eration, judges, prosecutors, and defense attorneys see them as routine occurrences, to be disposed of based on “going rates.”

Victim Compensation Programs The criminal justice system in the United States is offender-oriented, focusing on the apprehen- sion, prosecution, and punishment of wrongdoers. While emphasizing the rehabilitation of offenders,

the system has done little to help victims recover from the financial and emotional problems that they suffer.

Civil lawsuits are of little relevance, because most criminal defendants have no money to pay monetary damages for personal injuries or damage to property. An increasingly common technique is restitution, in which the court orders the defendant to pay the victim for the losses suffered (see Chapter 15). But a major shortcoming of restitution is that in many crimes, no offender is convicted. Even if convicted, many defendants have little or no ability to provide adequate compensation to a victim. And once restitu- tion is ordered, the victim’s likelihood of collecting is not good (Davis, Smith, & Hillenbrand, 1992).

When restitution by the offender is inadequate or impractical, compensation by a third party (an insurance company, for example) is the only alter- native. But many victims, because they are poor, do not have insurance covering medical expenses or property losses. The government is another sort of third party. Victim compensation programs rest on the premise that the government should coun- terbalance losses suffered by victims of criminal acts. The first compensation program in the United States began in California in 1965. Similar programs quickly emerged in a few other states.

In 1984, Congress passed the Victims of Crime Act, which established a Crime Victims Fund administered by the Office for Victims of Crimes within the U.S. Department of Justice. The fund is financed primarily from fines paid by defendants in federal court (Parent, Auerbach, & Carlson, 1992).

The federal backing has now spurred all states to enact legislation providing compensation for at least certain classes of crime victims. The staffs are small, however, and relatively few claims are filed—fewer than 100,000 during a typical year. Most programs provide for recovery of medical expenses and some lost earnings; none reimburses the victim for lost or damaged property. The maxi- mum amount that can be paid in damages ranges from $1,000 to $50,000.

Victim compensation programs appear to pro- vide clear benefits to victims of crime, but the actual results of such programs require careful scrutiny. Preliminary evaluations of compensation programs have yielded findings that are disappointing for administrators (Karmen, 2012). Cumbersome admin- istrative procedures lead to added frustrations and

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Defendants and VictimsChapter 9 237

increased alienation. Moreover, few victims of violent crimes apply for benefits, and even fewer claimants receive any money (Elias, 1986). Eligibility require- ments are strict. Most states require that the victim assist in the prosecution of the offender, effectively excluding many domestic violence, child abuse, and sexual assault victims (McCormack, 1991). Similarly, most states also have a “family exclusion” clause, which makes victims living in the same household as the offender ineligible. Crime victims must also be “innocent” victims (those to whom no contribu- tory fault can be ascribed). Indeed, in eight states, all persons with a felony conviction are ineligible for aid, even if their current problem has nothing to do with their past illegal activity (Mitchell, 2008). Over- all, these programs are designed to spread the lim- ited funds around, rather than to concentrate on a few badly injured victims.

Victims’ Bill of Rights Nowhere is the awakened concern about victims of crime more readily apparent than in propos- als for a victims’ bill of rights. Apart from sharing the title, however, these proposals vary markedly, reflecting different philosophies. In 1982, the Pres- ident’s Task Force on Victims of Crime submitted 68 separate recommendations aimed at achieving a balance between the needs and rights of the victim and those of the defendant. Also in 1982, California voters approved Proposition 8 by a 2-to-1 margin. Known as the Victims’ Bill of Rights, it added 12 controversial provisions to the state constitution and the criminal code. In 2008, California voters approved Proposition 9, which granted additional rights to the victim at the expense of the defendant (Karmen, 2012). These versions of the victims’ bill of rights reflect the rallying cry of the law-and- order movement, which accuses the courts of pro- tecting the rights of defendants rather than those of victims. Premised on the notion that defendants escape too easily from the court process, these pro- posals stress substantive changes in the law, such as abolishing the exclusionary rule, limiting bail, restricting plea bargaining, and imposing stiffer sentences.

Other proposed victims’ bills of rights are less ideological, emphasizing improvements in court procedures to better the lot of victims and wit- nesses. For example, the National Conference of the

Judiciary on the Rights of Victims of Crime adopted a Statement of Recommended Judicial Practices, suggesting: (1) fair treatment of victims and wit- nesses through better information about court pro- cedures; (2) victim participation and input through all stages of judicial proceedings; and (3) better pro- tection of victims and witnesses from harassment, threats, intimidation, and harm.

Efforts to protect the rights of victims began with the passage in most jurisdictions of victims’ rights legislation. These activities soon expanded to include a demand that these protections be given even greater force of law by placing them in state constitutions, and the public has responded with overwhelming support. Nearly two-thirds of the states have passed victims’ rights amendments to their state constitutions (National Center for Victims of Crime, 2012a). Having achieved considerable suc- cess at the state level, victims’ rights groups began pressing for an amendment to the U.S. Constitu- tion. Senator Dianne Feinstein (D-California) was a cosponsor of the proposed amendment, arguing that the Constitution protects the rights of criminal defendants but “crime victims, families, survivors have no rights at all, according to the Constitution of the United States” (Cannon, 1996).

The most fundamental concern expressed about the proposed victims’ rights amendment is that its guiding assumption—that victims are being excluded from the judicial process—is patently false. Unlike many nations of the world, in the United States all steps of the criminal process (except grand jury proceedings) are mandated to be open to the public. Victims are excluded from trial only when they will be witnesses, and this is happening more often because of another facet of the victims’ rights movement—victim impact statements.

Proposals to amend the U.S. Constitution are frequently offered but rarely adopted. This appears to be the fate of the proposed Victim’s Rights Amendment.

Victim Impact Statements Victim impact statements consist of written or oral information about how the crime impacted the vic- tim and the victim’s family. These emotion-filled statements are usually offered in an attempt to sway the sentencing court to impose a severe sen- tence on the convicted offender, although pleas for

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238 Part II / Legal Actors

process, rather than reducing them to a mere sta- tistic. Proponents contend that, consistent with restorative justice principles (see Chapter 14), by allowing victims to vent their feelings, they are better able to get on with their lives. But critics fear that the venting of frustrations can demean the judicial process. Consider, for example, that as a certain death sentence was about to be pro- nounced against Richard Allen Davis for sexually molesting and then killing Polly Klaas (discussed in Chapter 15), Davis told the court that Polly’s father had sexually molested her, a charge that crime-victim advocates labeled outrageous and sickening.

Incidents like this one lead critics to wonder whether victim impact statements help victims; perhaps the possibility of speaking in court at a much later date unnecessarily prolongs their grieving process. Victims are not encouraged to reach a sense of closure until they testify (or in some cases, until the defendant is actually executed). In spite of these concerns, research supports the conclusion that victim impact statements produce a beneficial effect for those making them and increase their satisfaction with both the outcomes of the case and with the criminal justice system as a whole (Alexander & Lord, 1994; Hoyle, 2011).

Effects of Victim Impact Statements on Sentences In the states that allow for the death penalty, victim impact statements are typically allowed with few procedural restrictions. During the penalty phase of a capital trial, victim impact statements can have a very emotional impact on jurors typically eliciting punitive impulses (Mille et al. 2008).

In non–capital cases, research suggests that victim impact evidence has not dramatically increased defendants’ sentences (Davis & Smith, 1994; Erez & Roger, 1999). In fact, victim impact evidence appears to have little effect on over- all sentence severity (Villmoare & Neto, 1987), although it can affect judicial imposition of special conductions of probation, “causing the judge to order anger-management treatment, drug and alcohol supervision, domestic violence counseling, or such” (Propen & Schuster, 2008, p. 315). Victim impact statements also appear to have a significant impact on parole hearing outcomes (Morgan & Smith, 2005).

leniency do occur from time to time. Today, every state permits victim impact statements as part of the sentencing process (see Chapter 15).

Almost invariably, neither the defendant nor the defense counsel interrupt or make any after- the-fact attempt to rebut the statement. Such silence, however, should not be interpreted as acquiescence. Rather, the rules of procedure in some states prohibit the defense from challenging victim impact statements on cross-examination or otherwise. But even in the handful of states that statutorily grant an opportunity to cross-examine victim impact testimony, the defense runs the risk of alienating those in court since any “attempt by defense counsel to obstruct [a victim impact state- ment] will surely be met with disapproval, if not disgust, and possibly retaliation by the sentencing authority, particularly where a jury determines the sentence” (Stevens, 2000, p. 17).

Constitutionality of Victim Impact Evidence In the late 1980s, the U.S. Supreme Court decided two cases, Booth v. Maryland (1987) and South Caro- lina v. Gathers (1989), in which the Court held that victim impact statements were unconstitutional in capital cases because they can create an unac- ceptable risk that a jury may impose the death penalty in an arbitrary and capricious manner. But this approach was short-lived. In Payne v. Tennessee (1991), the Court decided that the Eighth Amendment was not a per se bar to victim impact evidence during sentencing, even in death penalty cases.

Still, under some circumstances, Payne can serve as the basis for disallowing, on due process grounds, inflammatory and highly prejudicial victim impact evidence. For example, in Salazar v. State (2002), the Texas Court of Criminal Appeals invalidated the use of a 17-minute video that dis- played 140 photos of the deceased victim, arranged chronologically from infancy through adulthood. The court concluded that the montage, set to the music of Enya and Celine Dion’s “My Heart Will Go On,” was unfairly prejudicial.

Victim Impact Evidence and Restorative Justice The National Victim Center and other victims’ groups support giving victims a voice in the

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Defendants and VictimsChapter 9 239

LAW AND ORDER: SPECIAL VICTIMS UNIT (NBC, 1999–PRESENT)

This long-running television show tells the stories of an elite squad of police detectives who are assigned to a Special Victims Unit (“SVU”)

in New York City, which investigates sexually related offenses like rape and child molestation. The show, while fictional, often bases its storylines on real cases. Sometimes, the show gets it right; most of the time, however, its depictions of de- fendants and victims are inaccurate. Britto, Hughes, Saltzman, and Stroh (2007) conducted a content analysis of the fifth season of SVU. Here are the highlights of their findings.

What they get right:

As in reality, SVU depicts police officers and prosecu- tors struggling with the difficult subject matter of sexual victimization.

As in real life, the majority of SVU cases do not involve strangers, but rather involve individuals who know each other.

“The majority of the victims portrayed on SVU were shown as innocent or blameless and it appeared that the show actively tried to counter the common myth that victims cause sexual assault” (p. 51).

What they get wrong:

Clearance rates—Sex crimes pose significant problems for the criminal justice system. In Manhattan, “just less than one half of all murder and rape reports are cleared by arrest, and of those cleared by arrest only 51% result in a conviction” (p. 49). In contrast, 100% of suspects on SVU were caught and 92% of them were convicted in court.

Types of rape—Most of the rapes that occur on SVU are not spousal or date-rapes; in reality, these two types of rape account for the overwhelming majority of rapes.

Nature of harm—While sexual assaults are clearly vio- lent crimes that inflict a tremendous amount of psycho- logical harm, “victims generally survive and in the majority of cases do not require hospitalization for their physical

injuries” (p. 45). On SVU, however, the crimes are usually extremely violent, resulting in the physical brutalization of victims. Indeed, nearly 60 percent of the victims on the show are dead by the end of an episode.

Victim age—Nearly half of all SVU victims are under the age of 18. According to the National Crime Victimization Survey (NCVS), “the actual figure is closer to one- quarter of all victims” (p. 46).

Victim gender—Roughly 40 percent of the victims on SVU are male whereas “only 12 percent of all victims of sexual assault and murder are male” according to the NCVS victimization rates adjusted for the population of Manhattan (p. 46).

Victim race—Almost two-thirds of the victims on SVU are white, while the majority of sex crime victims in Man- hattan are members of racial and ethnic minority groups.

Offender and gender issues—Females commit approxi- mately 5 percent of the sexual assaults and murders in Manhattan. On SVU, however, females commit more than one-third of these offenses. In contrast, males commit 95 percent of the rapes, murders, and manslaughters in Man- hattan, but only 63 percent of the crimes on SVU. More- over, female offenders on the show are often portrayed “as being particularly manipulative and cruel in their planning and execution of violent crimes” (p. 48). This is especially true for female juvenile offenders who are depicted as “brutal, vindictive,” and “petty”; in contrast, “juvenile male offenders were shown as victims of their circumstances” (p. 48). Finally, male offenders were significantly more likely to plea bargain a reduced sentence, whereas female offenders were more likely to go to trial, be convicted, and receive a harsh suggested sentence.

After watching one or more episodes of Law and Order: SVU, be prepared to discuss the following questions:

1. Britto et al. found that although most victims on SVU were portrayed sympathetically, female victims were more likely than men to appear to contribute to their victimization by associating with the wrong crowd,

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240 Part II / Legal Actors

AIDING OR MANIPULATING VICTIMS?

After a long period of neglect, aiding victims has become good politics. These efforts are backed by a national movement for the rights of crime victims.

The Victims’ Rights Movement Organizing crime victims is a difficult task. Aside from having been harmed by criminals, victims as a group have very little in common (Karmen, 2012). Despite these obstacles, victim advocacy groups have become a powerful political voice.

The emergence of the victims’ rights movement reflects several parallel trends. One is the law-and- order rhetoric of the 1960s, which emphasized the harm criminals do to victims. Another is the women’s rights movement, which came to take a special interest in crimes involving women. A key feature of the feminist movement is its emphasis on grassroots activism. Thus, a logical extension of the women’s movement was to form local programs to aid women who had been victims of rape or spou- sal abuse (Weed, 1995).

The victims’ rights movement involves people striking back to turn tragedy into action and rage into reform (Office for Victims of Crime, 1998). The best known of these organizations is Moth- ers Against Drunk Driving (MADD). Founded by Candy Lightner, whose daughter was killed by a drunk driver, MADD has become the nation’s larg- est victim advocacy group (see Chapter 4). A search of the Internet reveals numerous other groups. Many of these groups are local, emphasizing

various types of victims ranging from those harmed by drunk drivers to battered women. These grass- roots operations function loosely under the national umbrella organization, the National Organization of Victim Assistance, which provides a larger focus for their specialized concerns.

Today, the victims’ rights movement involves a loose coalition of local, state, and national organizations with wide-ranging interests. Their activities constitute a full-blown social move- ment that seeks to place the interests of crime victims into the mainstream of American politi- cal discourse. Although diverse in origins, the victims’ rights movement shares a common ide- ology, seeking to demonstrate the triumph of good over evil. Thus, the movement resonates with a moral view of crime held by many average citizens (Weed, 1995).

Differing Goals The victims’ rights movement reflects the mutual interests of a strange set of political bedfellows, which explains why, beneath the rhetoric about aiding vic- tims of crimes, important disagreements over goals and priorities exist (Viano, 1987). A study of a victims’ rights organization in Alabama found that the mem- bership was disproportionately white and female, with African-Americans excluded from potential membership. These results suggest that the victims’ rights movement is becoming polarized, with some quite concerned about secondary victimization and others more focused on punishment of defen- dants (Smith & Huff, 1992). Similarly, a study in the state of Washington found that groups supporting the Community Protection Act reflected a punitive

talking to strangers, or using drugs and alcohol” (p. 45). What are the societal implications of this?

2. Do you think that the overrepresentation of female offenders and male victims on SVU tends to de-gender sex crimes? Why or why not? Because the storylines often illicit sympathy for victims, do you think that these overrepresentations mask issues of gender inequality, patriarchy, and male socialization? Explain your position.

3. Britto et al. argued that because SVU consistently depicts extremely violent rapes that cause severe injuries or death, the show perpetuates the “myth of the sadistic, psychologi- cally disturbed rapist who preys on innocent victims for ‘sick’ enjoyment” (p. 51). What effect do you think this has on jurors who sit in judgment of real sexual assault cases that lack the extreme brutality that is often portrayed on the show? Why?

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Defendants and VictimsChapter 9 241

orientation toward defendants more than an effort to aid victims of sexual assault (Scheingold, Olson, & Pershing, 1994). These differing goals explain why victims’ rights laws and constitutional amendments are so contradictory.

Do Victims Benefit? Everyone agrees that victims and witnesses should be treated better during the court process. But political rhetoric should not be allowed to obscure some important issues. Although enthusiasm for helping victims is clearly growing, the willing- ness to pay for the necessary services is not always present. Overall, legislators and other government officials find voting for victim-oriented legislation politically advantageous, but when it comes to vot- ing money for another “welfare program,” they are much more hesitant.

Moreover, it is unclear how much aid victims and witnesses receive from these programs. Once enacted, programs do not always work as intended. Elias (1993) concluded that victim compensation laws were exercises in symbolic politics. Few claim- ants ever received compensation; the laws provided “political placebos,” with few tangible benefits for victims (see also, Erez & Roberts, 2007).

Victim/witness assistance programs appear to be important first steps in providing better ser- vices to citizens who find themselves thrust into the criminal court process, but not all agree that these programs actually benefit the victim. Soci- ologist William McDonald (1976, p. 35) charged that “some projects that are billed as ‘assisting victims’ are more accurately described as assisting the criminal justice system and extending govern- ment control over victims. Whether the victims so controlled would regard the project as ‘assisting’ them is problematic.” Some victims do not wish to become involved.

An important question is, at whose expense should victims be compensated? Some versions emphasize protecting the rights of victims by denying privileges and benefits to suspects, defen- dants, and prisoners. This type of victim’s bill of rights is the most recent example of the conflict between the due process model and the crime control model (highlighted in Chapter 1). Other versions emphasize improving the welfare of vic- tims at the expense of the privileges and options

enjoyed by members of the courtroom work group (Karmen, 2012).

CONCLUSION

The future of both Pervis Tyrone Payne and his victim are difficult to predict. Payne is on Tennessee’s death row. Having lost on appeal to the Supreme Court, his lawyers hope to set aside the death penalty during further rounds of habeas corpus review. Meanwhile, he sits in his cell, wondering whether he will die. Predicting Nicholas’s future is even more difficult. At his young age, his mind might be able to block out the memories of seeing his mother and younger sister murdered in his presence. But the chance of flashbacks and antisocial behavior—which psychol- ogists label posttraumatic stress disorder—is good. It is possible that as he grows up, Nicholas will him- self shift from victim to defendant. As we learned in this chapter, many defendants arrested for violent crimes were themselves the victims of violent acts as children.

The perhaps troubling future of Nicholas highlights some of the contradictions still apparent in how society reacts to victims. Today, blaming victims (particularly rape victims) for causing their own misfortune is more unusual than in the past. Instead, numerous groups are ready to step forward and call for helping victims. Yet some of these same voices who are quick to champion the cause of victims are just as quick to denounce what has become popularly called the “abuse excuse.”

Victims and witnesses provide the raw material for the court process. The complaints they bring, the credibility of their stories, and their willingness to participate directly affect the courtroom work group’s activities. But members of the courtroom work group do not respond uncritically to the demands for their services. They find some stories more believable than others and some claims more worthy than others.

The clientele shapes the criminal court process in a less obvious way. Most defendants are young, male, illiterate, impoverished members of minority groups. Many victims share similar traits. They are also poor, unversed in the ways of the courts, and disproportionately members of minority groups. As a result, in the criminal courts, victims and witnesses often exert little influence over the disposition of the cases in which they are involved.

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242 Part II / Legal Actors

1. List the three characteristics of defendants. Defendants are overwhelmingly male and mostly economically underclass, and racial minorities are overrepresented.

2. Describe how victims and witnesses view the court process.

Victims and witnesses face frustrations in coping with the process (long waits and uncomfortable surroundings), experience travails in testifying, but overall exhibit surprising support for the system.

3. Describe how court actors view victims and witnesses.

Members of the courtroom work group become frustrated when victims and witnesses do not cooperate and are intimidated by the defendant or the defendant’s friends and family.

4. Discuss the prior relationships between defendants and victims and why this is important in domestic violence cases.

In roughly half of the crimes of violence, the defendant and the victim had a prior

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relationship. Prior relationships are most notable in domestic violence cases, in which the battered women is not always interested in criminal prosecution.

5. Identify three types of programs that are designed to aid victims and witnesses in coping with the criminal justice process.

Victim/witness assistance programs are designed to help better navigate the court process. Victim compensation seeks to provide economic assistance for victims of crime. And the Victims’ Bill of Rights seeks to provide rights for victims because defendants already have rights.

6. Explain why some view victim programs as aiding victims whereas others view these programs as manipulating victims.

Some see the victims’ movement as providing much needed support for victims of crime. Others view the victims’ movement as manipulating victims by providing symbols but no substance.

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1. In what ways are victims and defendants simi- lar? In what ways are they different? Is there any difference in the characteristics of victims and defendants when the victim is male as opposed to when the victim is female?

2. Many discussions of crime suggest that smart defendants are able to beat the rap by pleading insanity (see Chapter 14), slanting their testi- mony at the urging of the defense counsel (see Chapter 7), and exploiting legal loopholes such as the exclusionary rule (see Chapter 12). Given the profile of the typical criminal defendant, how realistic are these assumptions of a smart crook?

3. To some, the victims’ rights movement is more an exercise in symbolic politics than a substantive

program. Thus, some critics argue that many of these programs are really more interested in severe punishment of the defendant than in helping victims adjust socially, economically, or psychologically to their new role as victim. Which dimensions of helping victims reflect the crime control model? Which dimensions reflect the due process model?

4. Would your views on victim impact statements be different if the U.S. Supreme Court had chosen a less emotional case to consider in deciding their constitutionality? Overall, do you think victim impact statements correctly allow victims a voice in the process or just add unnecessary emotionalism?

Critical Thinking Questions

Chapter Review

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Defendants and VictimsChapter 9 243

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

career criminals 223

civil protection order 234

defendant 226

pro se 226

standby/shadow counsel 227

victim impact statements 237

Key Terms

Belknap, Joanne. The Invisible Woman: Gender, Crime and Justice. 3rd ed. Belmont, CA: Wadsworth, 2007.

Bergelson, Vera. 2009. Victim’s Rights and Victims’ Wrongs: Comparative Liability in Criminal Law. Stanford, CA: Stanford University Press.

Davis, Robert, Arthur Lurgio, and Susan Harmon (Eds.). Victims of Crime. 4th ed. Thousand Oaks, CA: Sage, 2012.

Dragiewicz, Molly. Equality with a Vengeance: Men’s Rights Groups, Battered Women, and Antifeminist Backlash. Boston: Northeastern University Press, 2011.

Hickey, Eric. Serial Murderers and Their Victims. 5th ed. Belmont, CA: Wadsworth, 2010.

Humphries, Drew (Ed.). Women, Violence and the Media: Readings in Feminist Criminology. Boston: Northeastern University Press, 2009.

Johnson, Michael. A Typology of Domestic Violence: Intimate Terrorism, Violent Resistance and Situational Couple Violence. Boston: Northeastern University Press, 2008.

Karmen, Andrew. Crime Victims: An Introduction to Victimology. 8th ed. Belmont, CA: Wadsworth, 2012.

Kochel, Tammy Rinehart, David Wilson, and Stephen Mastrofski. “Effect of Suspect Race on Officers’ Ar- rest Decisions.” Criminology, 49(2), 473–512, 2011.

Mann, Coramae, Marjorie Zatz, and Nancy Rodriguez. Images of Color, Images of Crime. 3rd ed. Los Angeles: Roxbury, 2006.

Morin, Jose Luis. Latino/A Rights and Justice in the United States: Perspectives and Approaches. 2nd ed. Durham, NC: Carolina Academic Press, 2008.

Ridgway, Delissa (Ed.). “The Unique Challenges of Cross-Cultural Justice. Judicature 92: 190–242, 2009.

Schuster, Mary, and Amy Propen. Victim Advocacy in the Courtroom: Persuasive Practices in Domestic Violence and Child Protection Cases. Boston: Northeastern University Press, 2011.

Slate, Risdon, and W. Wesley Johnson. The Criminaliza- tion of Mental Illness: Crisis and Opportunity for the Justice System. Durham, NC: Carolina Academic Press, 2009.

Smith, Erica, and Donald Farole. Profile of Intimate Partner Violence Cases in Large Urban Counties. Washington, DC: Department of Justice, Bureau of Justice Statistics, 2009.

Vazquez, Yolanda. “Perpetuating the Marginalization of Latinos: A Collateral Consequences of the Incorpora- tion of Immigration Law into the Criminal Justice System. Howard Law Journal, 54(3), 639–674, 2011.

Vogel, Mary (Ed.). Crime, Inequality and the State. New York: Routledge, 2007.

Walker, Samuel, Cassia Spohn, and Miriam DeLone. The Color of Justice. 5th ed. Belmont, CA: Wadsworth, 2012.

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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From Arrest and Bail through Arraignment10

Pfc. Bradley Manning was arrested in Iraq in May 2010 after allegedly having downloaded nearly 700,000 documents, the majority of which

were classified, and transferred most of them to WikiLeaks. Manning spent 10

months in solitary confinement until public outcry from legal scholars, Amnesty

International, and the public at large led to his being transferred to a military

prison in Kansas. From the perspective of the criminal justice wedding cake model,

this is a celebrated case for several reasons: the nature of the crime, since Manning

is accused of creating the largest breach of classified information in U.S. history;

the breakdown in security that enabled a low-ranking, enlisted Army intelligence

analyst to obtain a vast quantity of classified documents; the fact that series of

violent outbursts and other behaviors caused members in his unit to suspect

that Manning was in serious mental distress, but nothing was done about it; and

the fact that he was held in pretrial solitary confinement for almost a year even

though there is no allegation that any of the material Manning is alleged to have

revealed caused any harm other than embarrassment to the United States. 244

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Chapter Outline CRIME

Measuring Crime

ARREST Quality of Arrests

INITIAL APPEARANCE

CASE CLOSE-UP: County of Riverside v. McLaughlin and a Prompt Hearing before a Magistrate

CHARGING Law on the Books: Prosecutorial Control Law in Action: Police Influence Courts and Controversy: Charging Decisions

Courts, Controversy, & Economic Inequality

Are White-Collar Criminals Underprosecuted?

BAIL Law on the Books: The Monetary Bail System Law in Action: The Context of Bail Setting Bail Agents and Bounty Hunters Effects of the Bail System

PRELIMINARY HEARING Law on the Books: Weighing Probable Cause Law in Action: Variations in Using the Preliminary

Hearing

GRAND JURY Law on the Books: Shield and Sword Law in Action: Prosecutorial Domination Courts and Controversy: Reform the Grand

Jury?

ARRAIGNMENT

LAW IN ACTION PERSPECTIVE: CASE ATTRITION

WHY ATTRITION OCCURS Legal Judgments Policy Priorities Personal Standards of Justice

THE CRIMINAL JUSTICE WEDDING CAKE

Celebrated Cases Serious Felonies Lesser Felonies The Lower Depths

Courts, Law, & Media Crime on The Nightly News

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arrest, all people have a right to have a “prompt hearing” at which a neutral judicial officer reviews the arrest to determine whether it was supported by probable cause. In Riverside County, California, arrestees were routinely taken before a judge within 2 days, exclusive of Saturdays, Sundays, or holidays. Thus, many of those arrested on a Friday, like Donald Lee McLaughlin, had to wait in jail at least 3 days before a judge was available to conduct a probable cause hearing. On holiday weekends, the wait could be even longer—4, 5, or even 6 days. The public defender for the County argued that the U.S. Constitution requires a more prompt hearing. Not practical, countered the district attorney, stressing the realities of the contemporary criminal justice system in large urban areas—thousands of arrests, overcrowded jails, and lack of availability of judges, to say nothing of defense attorneys and prosecutors. It is in this context that the U.S. Supreme Court had to decide how prompt a “prompt hearing” needs to be. It settled on 48 hours, including weekends.

County of Riverside v. McLaughlin (1991) highlights the importance of the early stages of a felony prosecution. At first glance, the numerous preliminary stages of a prosecution seem to be of only procedural interest, with cases moving automatically from arrest to charging through preliminary hearing and grand jury before arriving at the major trial court. But a closer look indicates that at numerous stages during these early proceedings, prosecutors, judges, police officers, and victims have the option of advancing a case to the next step, seeking an alternative disposition, or dropping the case altogether. These screening decisions result in significant case attrition, with half of all felony arrests being dropped at some point after arrest and before arraignment.

a which a neutral judicial officer review

After a warrantless

After reading this chapter, you should be able to:

Define the two methods of estimating the amount of crime in the United States. Discuss how arrests made by the police impact the criminal court process. List the four ways that criminals are formally charged in court and the major actors in each of these important documents. List the four most common ways that defendants secure pretrial release. Compare and contrast “law on the books” and “law in action” approaches to bail setting, including the overall effects of the bail system on criminal defendants and their cases. Explain the role bail agents play in the criminal justice system. Contrast how the law on the books approach to criminal justice and the law in action perspective offer contrasting views of the preliminary hearing. Explain why some jurisdictions use grand juries extensively and others do not. Delineate the three major reasons for case attrition. Describe the four layers of the criminal justice wedding cake.

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Learning Objectives

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247From Arrest and Bail through ArraignmentChapter 10 247

nonviolent offenses involving burglary and lar- ceny. In fact, property crimes outnumber violent offenses by a ratio of 8 to 1. The UCR program also gathers statistics on index offenses that are cleared by the police via arrest, providing a rough measure of police performance in solving crimes.

By the late 1970s, law enforcement recognized that more detailed crime data would be beneficial to crime prevention and analysis. After a pilot study in South Carolina, the FBI began to gather more detailed information for crimes reported to the police in 1988 called the National Incident Based Reporting System (NIBRS). NIBRS is incident-based, rather than summary-based. It tracks all of the same offenses covered in the traditional UCR Type I and Type II categories, plus a few others, such as criminal trespass and passing bad checks. A wealth of data is gathered about each incident, including

the location of the crime whether the crime was completed or attempted

(the traditional UCR did not differentiate be- tween attempts and completed crimes)

the type of weapon used (if any) the type and value of properly damaged or

stolen the personal characteristics of both the offender

and the victim (e.g., age, sex, race/ethnicity, marital status, and socioeconomic status)

Another significant difference concerns the so- called hierarchy rule. If two or more crimes were com- mitted, the traditional UCR reported the most serious of the crimes. For example, if during the commission of an armed bank robbery, the offender shoots a secu- rity guard in the foot then steals a car to escape from the bank, the UCR would count this as a robbery only since robbery is a more serious crime than aggravated assault and motor vehicle theft. NIBRS, on the other hand, would count all three crimes and gather data concerning each of the three distinct offenses.

A major weakness of both the UCR and NIBRS is that they are based only on crimes known to the police. But only a fraction of the number of crimes committed are actually reported to the police. Of the personal and household offenses measured in the National Crime Victimization Survey’s yearly sam- ple of households, only half of the violent crimes and almost two thirds of the property crimes were not reported to the police (Rand, 2008). What this means

This chapter examines the early stages of a crimi- nal case, focusing on when and why case attrition occurs. The discussion begins with crimes and the arrests that sometimes follow. Our attention then shifts to events in the courthouse, including initial appearance, charging, bail, preliminary hearing, grand jury, and (for some cases) arraignment in the trial court of general jurisdiction.

CRIME

Beginning in the early 1960s, the United States expe- rienced a dramatic increase in crime. For almost two decades, the number of crimes known to the police increased much faster than the growth in population. In the early 1980s, the crime rate reached a plateau, and since the early 1990s, it has decreased consid- erably. The peaks and valleys of the official crime figures, however, are largely irrelevant to the general public. Rather, the public continues to perceive (no matter what the official figures say) that crime is on the increase. These fears are reinforced by extensive media coverage, particularly of violent crime.

Measuring Crime There are two official measures of crime in the United States. The most publicized and widely used measure of crime comes from the Federal Bureau of Investiga- tion’s (FBI) Uniform Crime Reporting (UCR) Pro- gram. Each year, policing agencies voluntarily report summary-based measures of crime within their juris- dictions to the FBI, such as the number of murders in a year. The FBI, in turn, compiles those data and dis- seminates statistics in a number of publications, the most comprehensive of which is their annual publi- cation Crime in the United States. Nearly 18,000 cam- pus, local, tribal, county, and state law enforcement agencies—representing roughly 96 percent of the U.S. population—are active in the UCR program today.

The UCR divides criminal offenses into two categories: Type I and Type II Offenses. As sum- marized in Table 10.1, there are eight serious Type I offenses that are referred to as index crimes; Type II offenses are less serious, but more numer- ous. Still, Type I offenses are the crimes that pro- duce headlines about rising crime rates. Contrary to public perceptions, most felony crimes are for

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is that the official FBI crime statistics underestimate the total amount of crime in the United States.

ARREST

The term arrest is difficult to define because it is used in different ways. In its narrow sense (some- times called a “formal or technical arrest”), arrest

is defined as the taking of a person into custody for the commission of an offense as the prelude to prosecuting him or her for that offense. In its broader sense, arrest means any seizure of a person significant enough that it becomes the functional equivalent of a formal arrest in that the person seized would reasonably not feel free to terminate the encounter (United States v. Drayton, 2002).

TABLE 10.1 ■ A COMPARISON OF TYPE I AND TYPE II UCR OFFENSESTYPE II UCR OFFENSES

Part I: Index Crimes Part II: Other Crimes

Violent crimes Murder and nonnegligent man- slaughter

Forcible rape

Robbery

Aggravated assault

Simple assault

Property crimes Burglary

Larceny/theft

Motor vehicle theft

Arson

Embezzlement

Forgery and counterfeiting

Fraud

Stolen property offenses

Vandalism

Other crimes None Disorderly conduct

Driving under the influence

Drug offenses

Drunkenness

Gambling

Liquor law offenses

Loitering

Prostitution

Offenses against the family (e.g., child neglect)

Sex offenses (other than forcible rape)

Vagrancy

Weapons offenses

Status offenses by juveniles

None Curfew and loitering offenses

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Of the crimes known to police, the percentage that is cleared by an arrest varies greatly by the type of offense, as illustrated in Table 10.2.

Collectively, all of the crimes cleared by police each year result in approximately 13.1 million arrests

for nontraffic offenses, about 2.2 million of which are for UCR index crimes (see Figure 10.1). Other than a handful of criminal prosecutions that are instituted as a result of a grand jury investigation that results in an indictment, these arrests are the overwhelming

Violent Crime Clearance Rates Property Crime Clearance Rates Murder and nonnegligent manslaughter 64.8% Burglary 12.4%

Forcible rape 40.3% Larceny/theft 21.1%

Robbery 28.2% Motor vehicle theft 11.8%

Aggravated assault 56.4% Arson 19.0%

Overall Clearance Rate for Type I violent crimes 47.2% Overall Clearance Rate for Type I property crimes

18.3%

TABLE 10.2 ■ CLEARANCE RATES FOR UCR TYPE I OFFENSES

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Figure 10.1 ■ Criminal Arrests SOURCE: Federal Bureau of Investigation, Crime in The United States—2010. Washington, DC: Government Printing Office, 2011.

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LAW IN ACTION VS. LAW ON THE BOOKS STEPS IN PRETRIAL CRIMINAL PROCEDURES

LAW ON THE BOOKS LAW IN ACTION

Crime Any violation of the criminal law. Property crimes outnumber violent crimes by an 8-to-1 ratio.

Arrest The physical taking into custody of a suspected offender. Each year, police make more than 13 million arrests for nontraffic offenses, about 2.2 million of which are for UCR index crimes.

Initial appearance

The accused is told of the charges and advised of his or her rights. A neutral judicial officer reviews the arrest to make sure it was supported by probable cause. Preliminary bail may be set. Date for the preliminary hearing is set, if applicable.

Occurs in lower courts. Many misdemeanor defendants plead guilty. May be combined with other judicial proceedings, such as a preliminary hearing, formal bail hearing, or an arraignment, depending on the jurisdiction.

Charging Formal criminal charges are brought against the defendant, stating which criminal law was violated.

Information: Formal accusation of a crime made by the prosecutor.

Complaint: Formal accusation of a crime supported by oath or affirmation of the victim.

Arrest warrant: An official document, signed by a judge, accusing an individual of a crime and authorizing law enforcement personnel to take the person into custody.

Prosecutor is supposed to prosecute all known criminal conduct.

Prosecutor controls charging decision.

From arrest to arraignment, half of felony arrests are terminated, downgraded, or diverted in some manner.

Complaints very rarely used in felony prosecutions.

Prosecutor exercises discretion in deciding which charges should be filed.

Some prosecutors allow police input into the charging decision.

Bail No general right to bail under the Eighth Amendment, but commonly guaranteed as a statutory right.

The average daily jail population is approximately 750,000.

Preliminary hearing

A pretrial hearing to determine whether probable cause exists to hold the accused for further proceedings. Typically used only in jurisdictions that do not require grand juries to make a probable cause determination.

In many jurisdictions, the preliminary hearing is brief, with a strong probability that the case will proceed.

Grand jury Required for felony prosecutions in 19 states and the federal courts.

Grand juries have extensive powers, not possessed by law enforcement, to investigate crimes.

Indictment: Formal accusation of a crime, made against a person by a grand jury, upon the request of the prosecutor.

Subpoena: Court order requiring a person to appear before the grand jury and/or produce documents.

Typically not a major decision maker.

Prosecutor dominates grand jury proceedings, deciding which cases will be presented and which charges filed.

The investigatory powers of the grand jury are most likely to be used in cases involving major drug rings, governmental corruption, and significant white-collar crime.

Arraignment Stage of the criminal process in which a defendant is formally informed of the charges pending and must enter a plea.

A significant milestone because it indicates that the evidence against the defendant is sufficient to warrant impaneling a jury for trial.

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From Arrest and Bail through ArraignmentChapter 10 251

be done promptly, using terms such as “immedi- ately,” “without unnecessary delay,” “forthwith,” or other similar statutory language. These statutes confer a substantial right on the arrestee and create a corresponding duty on law enforcement officers.

The reasons for requiring an initial appearance without unnecessary delay are:

To verify that the person arrested is the person named in the complaint.

To advise arrested persons of the charges, so that they may begin to prepare a defense.

To advise arrested persons of their rights, such as the right to counsel, the right to remain silent, and the right to either a preliminary hearing or a grand jury indictment.

To protect arrested persons from being aban- doned in jail and forgotten by, or otherwise cut off from contact with, people who can help them.

To prevent secret and extended interrogation of arrested persons by law enforcement officers.

To give arrested persons an early opportunity to secure release on bail while awaiting the final outcome of the proceedings. If the person has been bailed earlier, the magistrate simply reviews that bail. Release on personal recognizance may also be granted at the initial appearance.

To give arrested persons an opportunity to speedily conclude proceedings on charges of minor offenses by pleading guilty to the charges, paying fines, and carrying on with their lives.

To obtain a prompt, neutral “judicial determi- nation of probable cause as a prerequisite to extended restraint of liberty following arrest.” (Ferdico, Fradella, & Totten, 2013, p. 54, quot- ing Gerstein v. Pugh, 1975, p. 114)

As a general rule, the Supreme Court expects an initial appearance to occur within 48 hours of a warrantless arrest, inclusive of weekends (County of Riverside v. McLaughlin, 1991). Note that in indict- ment jurisdictions, if a grand jury has already returned an indictment, an initial appearance is not mandated under Gerstein v. Pugh (1975), although some states require an initial appearance for all arrests. Not all states, however, provide for a judi- cial determination of probable cause at the initial appearance before a magistrate. Some states make a probable cause determination at bail hearings

source of work for the criminal courts, since an arrest triggers the first of the steps summarized in the Law in Action vs. Law on the Books box on page 250.

Quality of Arrests The police have a lot to do with what happens in court after arrest. The strength of the evidence police provide to prosecutors is one of the most important factors influencing whether prosecutors file criminal charges (Holleran, Beichner, & Spohn, 2009). Thus, when police are able to secure tangible evidence and cooperative witnesses for the prosecution (while honoring suspects’ constitutional rights), the pros- ecutor is not only more likely to file charges, but is also more likely to win a conviction (Albonetti, 1987; Forst, Lucianovic, & Cox 1977; Worrall, Ross, & McCord 2006). Conversely, when police conduct incomplete investigations (missing important evi- dence or witnesses), or improperly seize, mark, or store the items they do gather, prosecutors find themselves without sufficient evidence to prosecute a case successfully, a situation that often puts stress on the relationship between police and prosecu- tors (Dantzker, 2005). Of course, the quality of law enforcement investigations varies greatly. Not only do individual police officers differ in particular investigatory skills, but also, some police depart- ments, as units, function better than others when conducting investigations because of differences in management, training, resources, procedures, and analytical processes (Keel, Jarvis, & Muirhead, 2009).

INITIAL APPEARANCE

In Gerstein v. Pugh (1975, pp. 113–114), the U.S. Supreme Court held that although a police offi- cer’s “on-the-scene assessment of probable cause provides legal justification for arresting a per- son suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest[,] ... the Fourth Amendment requires a judicial determination of probable cause as a pre- requisite to extended restraint of liberty following arrest.” Thus, after a person has been arrested, a law enforcement officer must take the arrested per- son before a magistrate for an initial appearance (sometimes called a Gerstein hearing after the case). Statutes in different jurisdictions require that this

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252 Part III / Processing the Accused

Beyond the bare fact that he was arrested in Riverside County, California, little is known about Donald Lee McLaughlin. Who he was, why he was arrested, and whatever happened to his case quickly became irrelevant. For whatever reason, the public defender’s office decided that the facts of his case made him an ideal candidate to be used as a plaintiff in a suit filed in federal court. The office was prepared to challenge countywide practices; a plaintiff was needed and, at the last minute, McLaughlin’s name was inserted. Thus, McLaughlin’s name went first in a class action lawsuit filed on behalf of McLaughlin and all other individuals in the same situation.

McLaughlin v. County of Riverside raised the diffi- cult question of how prompt is prompt. California law mandated a probable cause hearing for all those arrested without a warrant within 48 hours of arrest, weekends and holidays excluded. Thus, an individual arrested late in the week might in some cases be held for as long as 5 days before appearing before a neutral judicial official; over the Thanksgiving holiday, a 7-day delay was possible. The U.S. district court agreed with part of McLaughlin’s plight and ordered a probable cause hearing within 36 hours of arrest. Having lost in the trial court, the county appealed (hence the names changed place, with the county now listed as the moving party). The Ninth Circuit affirmed the district court’s decision, and the county appealed to the U.S. Supreme Court, which granted certiorar i.

Although County of Riverside v. McLaughlin appears to be a minor quibble over a few hours, the underlying issues are much more fundamental, centering on where to strike the balance between an individual’s right to liberty and society’s need for effective law enforcement. The Supreme Court has allowed police officers to make arrests, based on their own assessment of probable cause, without first

obtaining a warrant. To counterbalance this privilege, the Court established that an individual arrested without a warrant is entitled to a prompt judicial determination of probable cause afterward. In Gerstein v. Pugh, they wrestled with this issue and held that the defendant was entitled to a timely determination. The Court ruled that the 30-day wait in Florida was too long, but failed to be much more specific. As a result, Gerstein “created a nationwide divergence in postarrest and pretrial procedures and subjected some individuals to what numerous courts and commentators believed to be unjustifiably prolonged restraints of liberty following their arrests” (Perkins & Jamieson 1995, p. 535).

Justice Sandra Day O’Connor wrote the opinion of the Court, evidencing her ability to strike a compromise. The earlier decision in Gerstein, she wrote, provided flexibility to law enforcement, but not a blank check. She recognized that the standard of “prompt” has proved to be vague and therefore has not provided sufficient guidance. In the future, prompt shall be defined in most circumstances as 48 hours—a time period she labeled as a “practical compromise between the rights of individu- als and the realities of law enforcement.” A 24-hour rule would compel local governments across the nation to speed up their criminal justice mechanisms substantially, presumably by allotting local tax dollars to hire additional police officers and magistrates. What is perhaps most striking is how forthright the opinion is in recognizing that law on the books must take into account law in action.

What is most interesting about the four dissenters is their ideological mix. The three moderates agreed with the lower courts that the 36-hour standard was best. But Justice Antonin Scalia, one of the Court’s most conservative mem- bers, would have fixed the time at 24 hours, a standard he says existed in the common law from the early 1800s.

COUNTY OF RIVERSIDE MCLAUGHLIN AND A PROMPT HEARING BEFORE A MAGISTRATECASE CLOSE-UP

while other states use preliminary hearings for this purpose. But even in jurisdictions that combine an initial appearance with other pretrial proceedings, judicial probable cause determinations must gener- ally occur within 48 hours of a warrantless arrest (see “Case Close-Up”).

Most misdemeanor defendants enter a plea of guilty at their initial appearance and are sentenced immediately (see Chapter 14). For those arrested on a felony, however, a plea is not possible because the initial appearance occurs in a trial court of lim- ited jurisdiction, which has no authority to accept

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a plea. Thus, the initial appearance is typically a brief affair, as little is known about the crime or the alleged criminal. At times suspects insist on tell- ing their side of the story, but the judge typically cautions that anything said can be used against the defendant. Lawyers provide the same advice.

CHARGING

The criminal court process begins with the filing of a formal written accusation alleging that a specified person or persons committed a specific offense or offenses. The charging document includes a brief description of the date and location of the offense. All the essential elements (corpus delicti) of the crime must be specified. These accusations satisfy the Sixth Amendment provision that a defendant be given information with which to prepare a defense. Applicable state and federal laws govern technical wording, procedures for making minor amendments, and similar matters.

The four types of charging documents are: com- plaint, information, arrest warrant, and indictment (which will be discussed later). Which one is used depends on the severity of the offense, applicable state law, and local customs.

A complaint must be supported by oath or affir- mation of either the victim or the arresting officer. It is most commonly used in prosecuting misdemeanor offenses or city ordinance violations. An information is virtually identical in form to the complaint, except that it is signed by the prosecutor. It is required in felony prosecutions in most states that do not use the grand jury. In grand jury states, an information is used for initiating felony charges pending grand jury action. An arrest warrant is issued by a judicial officer—usually a lower-court judge. On rare occa- sions, the warrant is issued prior to arrest, but for most street crimes, the police arrest the suspect and then apply for an arrest warrant. Some states require that the prosecutor approve the request in writing before an arrest warrant can be issued.

Law on the Books: Prosecutorial Control Through the charging decision, the prosecutor controls the doors to the courthouse. He or she can decide whether charges should be filed and

what the proper charge should be. Although the law demands prosecution for “all known criminal conduct,” the courts have traditionally granted prosecutors wide discretion in deciding whether to file charges. For example, no legislative or judicial standards govern which cases merit prosecution and which should be declined. Moreover, if a pros- ecutor refuses to file charges, no review of this deci- sion is possible; courts have consistently refused to order a prosecutor to proceed with a case.

Law in Action: Police Influence Although the prosecutor has the legal authority to dominate the charging process, the police often influence the prosecutor’s decision. Police and prosecutors regularly discuss cases before charges are filed. Sometimes, the police exercise consider- able influence by pressuring prosecutors to over- charge defendants or to file charges even though the evidence is weak (Cole, 1970; Skolnick, 1993). Prosecutors, however, rarely need external pres- sure to overcharge defendants; they do so because it gives them leverage in the plea-bargaining pro- cess (see Chapter 12). But in a large number of cases, prosecutors decline to file charges against those arrested by police. In most jurisdictions, the number of police arrests that result in no criminal charges being filed varies between 20 and 50 per- cent (Boland, Mahanna, & Sones, 1992; Collins, 2007; Neubauer, 1974a; O’Neill 2003).

Courts and Controversy: Charging Decisions Police departments sometimes object when pros- ecutors set high standards for charging because they see case rejections as an implicit criticism of the arresting officer for making a “wrong” arrest. Prosecutorial screening can have consequences at the polls. In one jurisdiction where a district attor- ney refused to file charges in a significant number of arrests, the Fraternal Order of the Police forced the incumbent not to seek reelection (Flemming, Nardulli, & Eisenstein, 1992). But police and pros- ecutors alike can be subject to public scrutiny for how they use their resources. For example, there is much controversy surrounding whether police and prosecutors devote sufficient attention to white- collar crimes.

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BAIL

Bail is a guarantee. In return for being released from jail, the accused promises to return to court as needed. This promise is guaranteed by posting money or property with the court. If the defendant appears in court when requested, the security is returned. If he or she fails to appear, the security can be forfeited. The practice of allowing defendants to be released from jail pending trial originated centu- ries ago in England, largely as a convenience to local sheriffs. The colonists brought the concept of bail with them across the Atlantic. It eventually became

embedded in the Eighth Amendment, which pro- vides that “excessive bail shall not be required.”

Law on the Books: The Monetary Bail System A careful reading of the Eighth Amendment reveals that the Constitution does not specifically provide that all citizens have a right to bail. Rather, if bail is granted, it must not be “excessive,” defined by the Supreme Court in Stack v. Boyle (1951), as an amount higher than reasonably calculated to ensure the defendant’s presence at trial.

Normally, Martha Stewart was at ease before television cameras as she demonstrated the latest in decorating and en- tertainment ideas, but she was noticeably harried as cameras caught her quick entry into the New York federal courthouse. Martha Stewart became

the most recognizable person to be caught up in recent high- profile white-collar crime prosecutions. But the scope of her crime (relatively small) was soon eclipsed by Bernard Madoff, who defrauded investors (some of whom were personal friends) of $50 billion, in the largest Ponzi scheme in American history. Ponzi schemes are named after Charles Ponzi, who in 1919 and 1920 cheated investors out of $10 million. A Ponzi scheme, or pyramid scheme, is a scam in which people are persuaded to invest in a fraudulent operation that promises unusually high returns. The early investors are paid their returns out of money put in by later investors (Lavoie, 2008).

Madoff was ultimately sentenced to 150 years in prison for his crimes. Other prominent persons who have been prosecuted for white-collar crimes are:

John Rigas and his son Timothy were convicted of fraud and sentenced to 10 years in prison for hiding $2.3 billion in liabilities, reporting inflated earnings, and using millions of corporate dollars for personal use while running

Adelphia Communications. Notably, Rigas’s other son, Michael, pled guilty to the charges and received a much lighter sentence: 10 months of home arrest and 2 years of probation.

Sam Waksal, founder of ImClone, was sentenced to 7 years in prison for selling stock in his company the day before a negative ruling from the Food and Drug Administration.

Ken Lay and Jeffrey Skilling, top executives of Enron, were found guilty of numerous charges of cooking the books, leading to the nation’s biggest corporate collapse. (Lay died shortly thereafter, thereby making it more difficult for for- mer employees to pursue restitution in civil court.) Skilling was sentenced to a $45 million fine and 24 years in prison. He appealed his conviction to the U.S. Supreme Court, argu- ing that he did not receive a fair trial in Enron’s home base of Houston, Texas—an argument the high Court rejected.

Bernie Ebbers, the former top executive at Worldcom, was found guilty of criminal activity after that company was forced into bankruptcy because of approximately $11 billion in fraudulent accounting practices. Ebbers was sentenced to 25 years in prison for his crimes.

L. Dennis Kozlowski and Mark Swartz, the former heads of Tyco International, were found guilty of stealing hundreds of millions of dollars from the company. Both were sentenced to between 8 and 25 years in prison and ordered to pay $134 million in restitution to Tyco and additional fines of $105 million.

ARE WHITE-COLLAR CRIMINALS UNDERPROSECUTED?

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

& ECONOMIC INEQUALITY

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A right to bail, however, was recognized in com- mon law and in statutes as early as 1789 for all those accused of committing noncapital crimes. In 1966, Congress enacted the Bail Reform Act, thereby creating a statutory presumption favoring pretrial release of federal arrestees.

Bail Procedures Bail procedures vary by jurisdiction and according to the seriousness of the crime. In the majority of states, those arrested for minor misdemeanors can be released fairly quickly by posting bail at the police station. In most communities, lower-court judges

The term white-collar is used because it suggests crimes committed by persons of higher economic status, as opposed to the typical street crimes most often associated with the social underclass. As such, the term encompasses a broad range of matters, ranging from crimes against consumers and the environment to securities fraud and governmental corruption (Rosoff, Pontell, & Tillman, 2007). The public, though, remains relatively indifferent to white-collar crimes. One reason is that white-collar crimes lack the drama associated with murders and bank robberies. Another is that the defendants are respectable—they don’t look like criminals (whatever that might mean). In the words of David Friedrichs (2009), they are “trusted criminals.” Society’s contradictory assessments of white-collar criminals are most noticeable when it comes to sentencing: although the crime has negatively affected some individuals, the offenders do not present a physical threat to society. To some, draconian sentences (often amounting to ef- fective life imprisonment) are excessive (Podgor, 2007).

Allegations that white-collar crimes are underpros- ecuted, however, require close scrutiny. After all, a number of major prosecutions and convictions have occurred over the years. In addition, since the Enron scandal, public attention to white-collar crimes has clearly increased, and Congress passed the Sarbanes–Oxley Act, which, among other things, sharply increased penalties for various forms of fraud (“Go Directly to Jail,” 2009). At the federal level, the Justice Department and other federal regulatory agencies such as the Securities and Exchange Commission have large staffs devoted to these matters. At the local

level, though, district attorneys’ offices have only small staff devoted to fraud and similar crimes because the office is overwhelmed by the sheer volume of day-to-day street crimes like murder, robbery, and drug offenses. Moreover, convincing a jury to return a guilty verdict in a white- collar crime presents a difficult task to prosecutors. For one, jurors often find it difficult to follow the detailed testimony from accountants. For another, a “smoking gun” seldom points convincingly to guilty intent (Glater & Belson, 2005). But juries are increasingly returning guilty verdicts, particularly in cases like Tyco, where jurors said they did not find the defendants’ stories on the witness stand to be credible (Maremont & Bray, 2005). Nor are juries any longer impressed with the “dummy defense,” whereby chief executives testify that they were paid millions every year, but knew nothing about the details of their company (Norris, 2005).

On the other hand, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that in 2011, the annual total of financial fraud prosecutions was down nearly 29 percent in 5 years and nearly 58 percent from a decade earlier even though financial institution fraud played a major role in the 2008 economic meltdown that paralyzed the U.S. economy. Yet, few corporate or banking executives have faced any criminal charges for their roles in creating deceptive derivative contracts that inflated the real-estate bubble.

What do you think? Are white-collar crimes underpros- ecuted? Would white-collar crimes be better deterred by more prosecutions or more government regulations?

have adopted a fixed bail schedule (also known as an “emergency bail schedule”), which speci- fies an exact amount for each offense. In contrast, bail procedures for felony or serious misdemeanor cases are considerably more complex. Depending on the jurisdiction, bail may be set during an initial appearance, a preliminary hearing, or a separate bail hearing. Either way, the arrestee appears before a lower-court judge who must determine whether the arrestee qualifies for release on bail and, if so, what those conditions will be. Accordingly, those accused of serious crimes remain in police custody for a number of hours before they have the oppor- tunity to make bail.

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bail for up to 90 days pending trial if the judge finds clear and convincing evidence that:

1. there is a serious risk that the person will flee; 2. the person may obstruct justice or threaten,

injure, or intimidate a prospective witness or juror; or

3. the offense is one of violence or one punishable by life imprisonment or death.

The law also creates a presumption against pre- trial release for major drug dealers (Berg, 1985). The Supreme Court upheld the Bail Reform Act in United States v. Salerno (1987), ruling that Congress enacted preventive detention not as a punishment for dan- gerous individuals, but as a potential solution to the pressing social problem of crimes committed by per- sons on bail. Approximately 6 percent of all felony defendants are denied bail and held in pretrial deten- tion, a figure that has remained remarkably consis- tent since the Bail Reform Act of 1984 and its state law counterparts went into effect (Cohen & Reaves, 2007).

Law in Action: The Context of Bail Setting Deciding whom to release and whom to detain pending trial poses critical problems for American

Forms of Bail Once bail has been set, a defendant can gain pretrial release in four basic ways, outlined in Table 10.3. Because many of those arrested lack ready cash, do not own property, or lack the needed social clout, the first three options for making bail listed in Table 10.3 are only abstractions, requiring most to post a bail bond.

Preventive Detention In the American system of monetary bail, those who are rich enough can often buy their freedom while awaiting trial. But the poor await trial in jail. On any given day, there are nearly 750,000 persons in jail (not prison), nearly 63 percent of whom have not been convicted of any crime (Minton & Sabol, 2009). Five out of six of these pretrial detainees “had bail set with financial conditions required for release that were not met” (Cohen & Reaves, 2007, p. 1).

Congress amended the Bail Reform Act in 1984 to make clear that when setting bail, a judge may remand arrestees to preventive detention, effectively holding suspects without bail if they are accused of committing a dangerous or violent crime and locking them up is deemed necessary for community safety. Specifically, the Bail Reform Act of 1984 allows a suspect to be held in jail without

TABLE 10.3 ■ FORMS OF BAIL Release on recognizance (ROR) Judges release a defendant from jail without monetary bail if they believe the person is

not likely to flee. Such personal bonds are used most often for defendants accused of minor crimes and for those with substantial ties to the community.

Cash bond The accused must post either the full amount of cash bail with the court or a percentage of it in the form of a cash bond. All of this money will be returned when all court appearances are satisfied. Because it requires a large amount of cash, this form of bail is seldom used. If, for example, bail is set in the amount of $10,000, most persons cannot raise that much money easily and quickly.

Property bond Most states allow a defendant (or friends or relatives) to use a piece of property as collateral. If the defendant fails to appear in court, the property is forfeited. Property bonds are also rare, because courts generally require that the equity in the property must be double the amount of the bond. Thus, a $10,000 bond requires equity of at least $20,000.

Bail bond The arrestee hires a bail agent (often called a bail bondsman), who posts the amount required and charges a fee for services rendered, usually 10 percent of the amount of the bond. Thus, a bail agent would normally collect $1,000 for writing a $10,000 bond; none of that money is refundable.

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Moreover, each bail decision is risky. In the face of uncertainly (often caused by a lack of complete information), judges must weigh risks such as whether a defendant released on bail will commit another crime and whether police groups, district attorneys, and the local newspapers may criticize a judge severely for granting pretrial release to defendants.

In addition, judges have to worry about jail overcrowding. If a particular arrestee is placed in pretrial detention, might that result in someone else—perhaps someone more dangerous—being released from a jail crowded beyond its capacity?

Bail Agents and Bounty Hunters If a judge grants bail, many defendants who lack the financial resources to post cash or property as bail turn to the services of commercial bail agents—people who, for a nonrefundable fee, post a bond with the court. If the defendant does not appear for subsequent court proceedings, the bail agent is responsible for the full amount of the bond. For assuming this risk, he or she is permit- ted to charge a fee, usually 10 percent of the face amount of the bond. Rarely, however, do bail agents post cash directly with the court. Instead, they pur- chase a surety bond from a major insurance com- pany, which charges 30 percent of the bail agent’s fee. Thus, if the total amount of the bail is $10,000, the bondsman receives $1,000 from the client and keeps $700 of it.

As a condition of posting bail, bail agents require their clients to sign a contract waiving any protections against extradition and allowing the bail agent or a bounty hunter acting on behalf of the bail agent to retrieve the defendant from wher- ever he or she may have fled. These powers exceed any possessed by law enforcement officials since bail agents and bounty hunters are private actors; they are not, therefore, bound by the same con- stitutional constraints placed on law enforcement officers, who act under governmental authority when they seek, apprehend, detain, and transport bail jumpers. The exercise of such broad power has often led to corruption, “excessive use of force, false imprisonment, destruction of property, and arrest of innocent citizens” (Baker, Vaughn, & Topalli, 2008, p. 125). As a result, organizations like the American Bar Association and the National

courts. The realities of the bail system in the United States reflect an attempt to strike a balance between the legally recognized purpose of setting bail to ensure reappearance for trial and the working perception that some defendants should not be allowed out of jail until their trial.

Trial court judges have a great deal of discre- tion in fixing bail. Statutory law provides few spe- cifics about how much money should be required, and appellate courts have likewise spent little time deciding what criteria should be used. Although the Eighth Amendment prohibits excessive bail, appellate courts will reduce a trial judge’s bail amount only in the rare event that flagrant abuse can be proved. In practice, then, trial court judges have virtually unlimited legal discretion in deter- mining the amount of bail. The discretion is often guided by the following factors:

Risk of flight and other nonappearance: Considers the suspect’s “ties to the community” in terms of stable employment, property ownership, marital status, number of close, stable relation- ships, length of presence in the community, and such.

Risk to self and others: Considers the suspect’s mental condition, the seriousness of the crime(s) for which the suspect was arrested, and the arrestee’s prior criminal history.

Situational justice: Considers factors such as how the defendant appears, acts, responds to questions, and the like. Note that the use of situational justice might lead judges to make certain judgments about defendants based on demographic characteristics, resulting in racial, ethnic, gender, and sexual orientation dispari- ties to manifest themselves in bail decisions (Demuth, 2003; Katz & Spohn, 1995; Schlesing- er, 2005; Spohn, 2008).

At first blush, these factors might seem straight- forward. But uncertainty abounds because typi- cally few details of the alleged crime are available shortly after a warrantless arrest. Similarly, the information about the defendant’s mental status, ties to the community, and even criminal history are often in short supply. In many courts, for exam- ple, police “rap sheets” (lists of prior arrests) are available, but typically do not contain information about how prior cases were eventually disposed of—dismissal, plea, or imprisonment.

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Psychologically, they are subjected to stress, anxi- ety, and isolation. Physically, they are held in a violence-prone atmosphere. Indeed, some defen- dants spend time in jail during pretrial detention and are later not convicted.

More indirectly, defendants who cannot make bail may be at a disadvantage during the criminal justice process. Conversely, those who have been released may not appear in court as required. The effects of bail have been an active area of concern for the public, policymakers, and researchers alike. The topics that have received the greatest atten- tion are jail conditions, race and ethnicity, failure to appear, and case disposition.

Jail Conditions In an influential 1965 book Ransom: A Critique of the American Bail System, Ronald Goldfarb described the conditions of jails in the United States as “the ultimate ghetto.” Over the past decades, jail conditions have improved greatly; Section 1983 conditions of confinement lawsuits filed in federal courts have played a role in these improvements. Nonetheless, many jails are still substandard, since efforts to improve jail condi- tions are typically low on the priority list of local officials, who are reluctant to spend taxpayers’ dollars and do not want to appear to be coddling criminals.

Race and Ethnicity Some studies have found clear differences between the defendants who await trial in jail and those who are released. Hispanics are the group most likely to be detained in jail, whites are the least likely to be detained, and African-Americans are in the middle. These differences are partially the product of variation in economic status and the cor- responding (in)ability to pay bail. Hispanics face a “triple disadvantage” during the bail-setting pro- cess—as a group they are least likely to qualify for ROR, have the highest bail amounts set, and are the least able to pay bail (Demuth, 2003; Schlesinger, 2005). Higher pretrial detention rates for Hispan- ics may be the product of immigration holds filed by the U.S. Immigration and Customs Enforcement to detain those illegally in the country (Cohen & Reaves, 2007).

District Attorneys Association have recommended the abolition of commercial bail, but they have suc- ceeded in only four states (Kentucky, Oregon, Wis- consin, and Illinois). Also, the District of Columbia, Maine, and Nebraska have little commercial bail activity (Cohen & Reaves, 2007). Yet, an estimated 14,000 commercial bail agencies nationwide secure the release of more than 2 million defendants annu- ally (Cohen & Reaves, 2007). But things are slowly changing. Today, largely as a result of state statu- tory and case law changes,

Bail bond agents and bounty hunters have juris-

dictional constraints placed on their actions, and

they must follow the law or be subject to criminal

prosecution. . . . For the most part, arbitrary, capri-

cious, and discriminatory actions committed by

bail bond agents and bounty hunters are subject to

criminal prosecution, although some continue to use

their extra-legal authority to flaunt the rule of law.

. . . Partly as a result of the threat of criminal pros-

ecution, many states have bail bond societies and

associations that are working to professionalize the

industry. More jails, and the Sheriff’s Offices that run

them, require bail bond agents and bounty hunters

to be licensed, are using technology to establish early

warning systems to monitor potential misbehavior,

and require criminal background checks to detect

potential wrong-doing within the industry before it

spirals out of control into a major scandal. (Baker,

Vaughn & Topalli, 2008, p. 129)

Effects of the Bail System The process of setting bail is not neutral. Defen- dants who have some access to money are much more likely than poor defendants to be bailed out of jail. The fact that some defendants remain in jail awaiting trial (or plea) has direct and perhaps indi- rect effects.

Most directly, defendants who cannot make bail face a variety of hardships. Even though defen- dants detained before trial are presumed innocent until proven guilty, they suffer many of the same disadvantages as those incarcerated after con- viction. Economically, they often lose their jobs.

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suggest that such conditions are functional, do serve

the needs of the production ethic that dominates our

criminal justice system. (Casper, 1972, p. 67)

The discriminatory impact of bail has been the subject of considerable research. There is wide- spread agreement in the literature that jailed defen- dants are more likely to be convicted and (once convicted) more likely to be sentenced to prison than those who have obtained pretrial release (Ares, Rankin, & Sturz, 1963; Cohen & Reaves, 2007; Phillips, 2007, 2008; Reaves, 2001). What is in dispute is the interpretation of these findings. Do these disparities result because the lack of pretrial release imposes additional burdens on the defen- dants? Or are these disparities a statistical artifact of a preselection process? Given that bail increases with the severity of the crime and the length of the prior record, one might reasonably expect that these defendants would end up disadvantaged, but for good reason.

John Goldkamp (1980) attempted to answer these difficult questions through a sophisticated analysis of more than 8,000 criminal cases in Philadelphia. Goldkamp found that jailed defen- dants did not differ from their bailed counterparts in terms of findings of guilt. At all the signifi- cant stages—dismissal, diversion, and trial—jailed defendants were as likely as bailed ones to receive a favorable disposition of their cases. When it came to sentencing, however, jailed defendants were more likely to be sentenced to prison, although the length of the sentence was not related to bail status. Another study (Eisenstein & Jacob, 1977) found no uniform impact of bail status on findings of guilt or on sentencing. Does bail status negatively affect the defendant’s case? Perhaps the best response is pro- vided by Goldkamp: “It depends.” More recently, research in New York City found that in felony (Phillips, 2008) and nonfelony cases (Phillips, 2007) pretrial detention had a small, but statistically sig- nificant effect on the likelihood of conviction and also slightly longer sentences.

PRELIMINARY HEARING

In most states, any person who has been ar- rested for a felony and has not been indicted by a grand jury (and, therefore, has been charged via

Failure to Appear Defendants who have gained pretrial release do not always appear in court when required. Skip- ping bail has several consequences. First, bail is for- feited. Second, a warrant is issued for the suspect’s arrest. This warrant, termed a bench warrant or a capias, authorizes the police to take the person into custody. The person must be delivered to the judge issuing the warrant and cannot be released on bail. Finally, failure to appear often subjects the defen- dant to a separate criminal charge of bond jumping.

How often bailed defendants fail to appear in court is subject to considerable debate. A study of felony defendants in large urban counties reports that 22 percent of the released defendants missed one or more court dates (Cohen & Reaves, 2007). This estimate defined nonappearance as missing a single court date, but the problem of people absconding from bail to become fugitives from the law is real. Some studies estimate that 6 percent of released defendants were still fugitives at the end of a year, whereas other studies have reported that up to 30 percent of felony absconders will remain fugi- tives for a least a full year (Helland & Tabarok, 2004).

Defendants who fail to appear do not always intend to miss their court dates. Failure-to-appear rates are closely related to practices within the court. A number of defendants do not show up because they were not given clear notice of the next appearance date. Another way in which courts themselves contribute to nonappearances is by lengthy delays in disposing of cases. As the time from arrest to trial increases, the rate of nonappear- ances rises even faster.

Case Disposition Pretrial detention has a great impact on the legal processing of defendants:

Viewed from the perspective of maintaining the

plea-bargaining system, pretrial detention and de-

moralizing conditions in jails are highly functional.

They discourage the defendant from bargaining too

hard; they place a high price upon filing motions or

demanding a trial. . . . This is not to argue that those

in authority consciously plan rotten jails; clearly

most are concerned about jail conditions. But it is to

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the prosecutor needs only to establish probable cause that a crime has been committed and that the defendant committed it. If the magistrate finds probable cause to believe that the defendant com- mitted the offense, the magistrate binds over the defendant to the trial court for adjudication of the felony charges. The magistrate may admit the defendant to bail at the preliminary hearing or may continue, increase, or decrease the original bail. If the magistrate does not find probable cause, the magistrate dismisses the complaint and releases the defendant. A dismissal at this stage does not invoke the constitutional safeguard against double jeop- ardy. This means that the prosecution may recharge the defendant and submit new evidence at a later preliminary hearing. Nor does a dismissal prevent the prosecution from going to the grand jury and obtaining an indictment in states that have both grand jury and preliminary hearing procedures. Table 10.4 compares the preliminary hearing with grand jury proceedings.

Law in Action: Variations in Using the Preliminary Hearing Defense attorneys weigh several factors in deciding whether to demand a preliminary hearing or waive it (Flemming, 1986b; Prosser, 2006). Practices of the local prosecutor are one important consideration. If the district attorney’s files are open and plea- bargaining policies are well known, it is viewed as time consuming and redundant to hold a prelimi- nary hearing. Second, strategic and tactical con- siderations are involved. Waiving the preliminary hearing may reflect an assessment that the infor- mation to be gained from holding a preliminary hearing does not outweigh the potential damage to the defendant’s case (for example, the publicity that may surround a rape case). A third factor is client control. Defense attorneys sometimes insist on a preliminary hearing to impress on their client the gravity of the situation. Finally, the preliminary hearing gives the defense attorney an overview of the evidence against the client and provides the opportunity for discovery (see Chapter 11).

The tactical decision of holding or waiving the preliminary hearing highlights the complexity of the preliminary hearing from the law in action perspective. Although the legal purpose of the

an information or complaint or similar document filed by a prosecutor), has the right to a prelimi- nary hearing. At the preliminary hearing (also called the “preliminary examination”), the magis- trate must determine whether probable cause exists to believe that a felony was committed and that the defendant committed it. In this context, probable cause means a fair probability, under the totality of the facts and circumstances known, that the person arrested committed the crime(s) charged. Usually held before a lower-court judge, the preliminary hearing is designed:

to prevent hasty, malicious, improvident, and op-

pressive prosecutions, to protect the person charged

from open and public accusations of crime, to avoid

both for the defendant and the public the expense

of a public trial, to save the defendant from the hu-

miliation and anxiety involved in public prosecution,

and to discover whether or not there are substantial

grounds upon which a prosecution may be based.

(Thies v. State, 1922, p. 541)

As stated above, the initial appearance before a magistrate may or may not include a probable cause hearing. If it does not, then a separate prelim- inary hearing is required unless: (1) the defendant is charged with a petty offense or misdemeanor; (2) the defendant waives the hearing; or (3) a grand jury has already determined that probable cause exists for the defendant to stand felony trial. Rule 5 of the Federal Rules of Criminal Procedure provides that, when the preliminary hearing is required, “[t]he magistrate judge must hold the preliminary hearing within a reasonable time, but no later than 10 days after the initial appearance if the defendant is in custody and no later than 20 days if not in custody.”

Law on the Books: Weighing Probable Cause The preliminary hearing is a formal adversarial proceeding conducted in open court; normally, a transcript of the proceedings is recorded. During a preliminary hearing, the state does not have to prove the defendant guilty beyond a reasonable doubt, as would be required during a trial. Rather,

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preliminary hearing is simple, the actual conduct of these hearings is quite complex. In some courts, they may last an hour or more; in others, they con- sume only a few minutes. In some jurisdictions, preliminary hearings are an important stage in the proceedings; in others, they are a perfunctory step, in which probable cause is found to exist in virtu- ally every case.

This variability makes it difficult to generalize about the importance of the preliminary hearing, but studies do reveal four major patterns. In some jurisdictions, preliminary hearings are almost never held. In many, they are short and routine, lasting but a few minutes with the defendant almost always bound over to the grand jury (Neubauer, 1974b). In most jurisdictions, the preliminary hearing is largely ceremonial, resulting in few cases being

screened out of the criminal process; but in a few courts, it is quite significant (McIntyre & Lippman, 1970; Washburn, 2008).

GRAND JURY

Grand juries make accusations; trial juries decide guilt or innocence. The grand jury emerged in English law in 1176, during a political struggle among King Henry II, the church, and noblemen. At first, criminal accusations originated with members of the grand jury themselves, but gradually this body came to consider accusations from outsiders as well.

After the American Revolution, the grand jury was included in the Fifth Amendment to the Consti- tution, which provides that “no person shall be held

TABLE 10.4 ■ DIFFERENCES IN PRETRIAL PROCEDURES TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO MAKE A

DEFENDANT STAND TRIAL IN FELONY CASES

Grand Jury Proceedings Preliminary Hearing Primary function is to determine whether probable cause exists to believe that the defendant committed the crime or crimes charged.

Primary function is to determine whether probable cause exists to believe that the defendant committed the crime or crimes charged.

If probable cause is found, the grand jury returns an indictment/“true bill” against the defendant that is signed both by the prosecutor and by the foreperson of the grand jury.

If probable cause is found, the judge binds over the defendant for the trial court for adjudication by signing an information.

Held in the grand jury room in a closed session (i.e., secret proceedings not open to the public).

Held in open court (i.e., open to the public).

Informal proceeding in which no judicial officer presides. Formal judicial proceeding presided over by a judge or magistrate.

Nonadversarial proceeding in which the grand jury hears only evidence presented by the prosecution.

Adversarial proceeding in which both the prosecution and the defense may present evidence to the presiding judicial officer.

Defendant has no right to be present or to offer evidence. Defendant has the right to be present, to offer evidence, and to cross-examine adverse witnesses.

Defendant has no Sixth Amendment right to counsel. Defendant has a right to the effective assistance of counsel under the Sixth Amendment.

Grand jury has the power to investigate crimes on its own initiative.

No power to investigate crime.

Grand jury has the power to subpoena witnesses and evidence.

No subpoena power.

Grand jury has the power to grant immunity. No power to grant immunity.

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

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the government from using the criminal process against its enemies. Sword refers to the investiga- tory powers of this body (Alpert & Petersen, 1985). If the grand jury believes grounds for holding the suspect for trial are present, they return an indict- ment, also termed a true bill, meaning that they find the charges to be true. Conversely, if they find the charges insufficient to justify trial, they return a no bill, or no true bill.

Many legal protections found elsewhere in the criminal court process are not applicable at the grand jury stage. One unique aspect of the grand jury is secrecy. Because the grand jury may find insufficient evidence to indict, it works in secret to shield those merely under investigation from adverse publicity. By contrast, the rest of the criminal court process is required to be public. Another unique aspect is that indictments are returned by a plurality vote; in most states, half to two-thirds of the votes are sufficient to hand up an indictment. Trial juries can convict only if the jurors are unanimous (or, in four states, nearly unanimous). Finally, witnesses before the grand jury have no right to representation by an attorney, whereas defendants are entitled to have a lawyer present at all vital stages of a criminal pros- ecution. Nor do suspects have the right to go before the grand jury to protest their innocence or even to present their version of the facts.

In furtherance of their investigative powers, grand juries have the authority to grant immunity from prosecution. The Fifth Amendment protects a person against self-incrimination. In 1893 Congress passed a statute that permitted the granting of transactional immunity. In exchange for a witness’s testimony, the prosecutor agrees not to prosecute

to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” The archaic phrase “otherwise infamous crime” has been interpreted to mean felonies. This provision, however, applies only to federal prosecu- tions. In Hurtado v. California (1884), the Supreme Court held that states have the option of using either an indictment or an information. Today, grand juries in every U.S. state and the District of Columbia can investigate criminal activity; in contrast, U.S. juris- dictions differ with regard to how grand jury indict- ments operate as explained in Table 10.5.

Grand juries are impaneled (formally created) for a set period of time—typically varying between 10 days and 24 months. During that time, the jurors periodically consider the cases brought to them by the prosecutor and conduct other investigations. If a grand jury is conducting a major and complex investigation, its time may be extended by the court. The size of grand juries varies greatly, from as few as 5 jurors to as many as 23, with an aver- age size of 17. Grand jurors are normally selected randomly, in a manner similar to the selection of trial jurors. In a handful of states, however, judges, county boards, jury commissioners, or sheriffs are allowed to exercise discretion in choosing who will serve on the grand jury.

Law on the Books: Shield and Sword The two primary functions of grand juries have been aptly summarized in the phrase “shield and sword” (Zalman & Siegel, 1997). Shield refers to the protections the grand jury offers, serving as a buffer between the state and its citizens and preventing

TABLE 10.5 ■ VARIABILITY IN STATE USE OF GRAND JURIES

Grand Jury Indictments Required for Most or All Felonies (N = 24)

Grand Jury Indictments Optional for Most Felonies (N = 25)

Grand Jury Indictments Abolished (N = 2)

Alabama, Alaska, Delaware, District of Columbia, Florida, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and West Virginia

Arizona, Arkansas, California, Colorado, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Michigan, Montana, Nebraska, Nevada, New Mexico, Oklahoma, Oregon, South Dakota, Utah, Vermont, Washington, Wisconsin, and Wyoming

Connecticut, Pennsylvania

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the prosecutor functions only as a legal adviser to the grand jury, but in practice, the prosecutor dominates. Grand jurors hear only the witnesses summoned by the prosecutor, and, as laypeople, they are heav- ily influenced by the legal advice of the prosecutor. Indeed, the high court has ruled that the govern- ment is under no obligation to disclose to the grand jury evidence that would tend to clear the defen- dant (United States v. Williams, 1992). This is one of a number of significant developments in the way criminal procedure has been shaped by the courts, as explained below in the “Key Developments” feature.

The net result is that grand juries often function as a rubber stamp for the prosecutor. One study found that the average time spent per case was only 5 minutes; in 80 percent of the cases, there was no discussion by members of the grand jury; rarely did members voice a dissent; and finally, the grand jury approved virtually all of the prosecutor’s recommen- dations (Carp, 1975). Similarly, federal grand juries rarely return no true bills. In short, grand juries gen- erally indict whomever the prosecutor wants indicted (Gilboy, 1984; Neubauer, 1974b; Washburn, 2008).

Courts and Controversy: Reform the Grand Jury? The grand jury system has been the object of vari- ous criticisms. In theory, the grand jury serves as a watchdog on the prosecutor, but some portray the grand jury as “the prosecutor’s darling,” a “pup- pet,” or a “rubber stamp.” To William Campbell (1973), U.S. District Court judge for the Northern District of Illinois, “The grand jury is the total cap- tive of the prosecutor who, if he is candid, will con- cede that he can indict anybody at any time, for almost anything, before any grand jury” (p. 174). These concerns have prompted a call for abolition of the grand jury. Early in the 20th century, judicial reformers succeeded in abolishing grand juries in some states. More recently, such abolition efforts have not been successful, however, because they require a constitutional amendment.

Today, critics call for reforming the grand jury (Brenner, 1998; Washburn, 2008). Often these calls are based on concerns that grand jury proceed- ings have been misused to serve partisan political ends, harassing and punishing those who criticize the government. The leading advocate for federal

the witness for any crimes admitted—a practice often referred to as “turning state’s evidence.” The Organized Crime Control Act of 1970 added a new and more limited form of immunity. Under use immunity, the government may not use a witness’s grand jury testimony to prosecute that person. However, if the state acquires evidence of a crime independently of that testimony, the witness may be prosecuted. The Supreme Court has held that use immunity does not violate the Fifth Amendment’s prohibition against self-incrimination (Kastigar v. United States, 1972). Use immunity gives witnesses less protection than does transactional immunity. A witness may not refuse the government’s offer of immunity, and failure to testify may result in a jail term for contempt of court.

The investigative powers of the grand jury to gather evidence are also seen in its subpoena power. Under the court’s authority, the grand jury may issue a subpoena requiring an individual to appear before the grand jury to testify and/or bring papers and other evidence for its consideration. Failure to comply with a subpoena (or offer of immunity) is punishable as contempt. A person found in con- tempt of the grand jury faces a fine or being jailed until he or she complies with the grand jury request. Thus, contempt of the grand jury is potentially open ended—as long as the grand jury is in existence and as long as the person refuses to comply, the person can sit in jail. Critics contend that some prosecutors call political dissidents to testify to find out informa- tion unrelated to criminal activity.

The contempt power can also be used for pun- ishment. A prosecutor may call a witness, knowing that he or she will refuse to testify, and then have the witness jailed. In this way, a person can be impris- oned without a trial. This has happened mainly to newspaper reporters. In Branzburg v. Hayes (1972), the Supreme Court ruled that journalists must testify before a grand jury. Some journalists have gone to jail rather than reveal their confidential sources, because they believe that to do so would erode the freedom of the press protected by the First Amendment.

Law in Action: Prosecutorial Domination The work of the grand jury is shaped by its unique relationship with the prosecutor. In theory at least,

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grand jury reform is the National Association of Criminal Defense Lawyers (2000). This organiza- tion advocates a Citizens’ Grand Jury Bill of Rights, which among other things would grant witnesses

the right to counsel during testimony, require pros- ecutors to disclose evidence that might exonerate the target, and allow targets of investigations to tes- tify (Lefcourt, 1998).

KEY DEVELOPMENTS CONCERNING CRIMINAL PROCEDURE Crime

Lanzetta v. New Jersey (1939)

A law is unconstitutional if it forbids an act in terms so vague that “men of common intelligence must necessarily guess at its meaning.”

Arrest

Chimel v. California (1969)

During a search incident to arrest, the police may search only the person and the area within the immediate vicinity.

Payton v. New York (1980) Unless the suspect gives consent or an emergency exists, an arrest warrant is necessary if an arrest requires entry into a suspect’s private residence.

Arizona v. Gant (2009) Police may search a vehicle incident to the arrest of its recent occupant after the arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest.

Initial appearance

Sixth Amendment (1791)

“In all criminal prosecutions, the accused shall enjoy the right . . .to be informed of the nature and cause of the accusation.”

Rothgery v. Gillespie County, Texas (2008)

Defendant’s initial appearance in which he learns of the charge(s) against him and his liberty is subject to restriction, marks initiation of adversary proceedings that trigger attachment of Sixth Amendment right to counsel.

Charging

Sixth Amendment (1791)

“In all criminal prosecutions, the accused shall enjoy the right . . .to be informed of the nature and cause of the accusation.”

People v. Wabash, St. Louis and Pacific Railway (1882)

Prosecutor has discretion in beginning prosecutions and may terminate them when, in his (or her) judgment, the ends of justice are satisfied.

Burns v. Reed (1991) Prosecutor enjoys absolute immunity to civil lawsuit for all actions involving the adversarial process.

Bail

Eighth Amendment (1791)

Excessive bail shall not be required.

Bail Reform Act of 1984 Upheld in United States v. Salerno (1987), this law created a statutory presumption in favor of pretrial release.

Grand jury

Fifth Amendment (1791)

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”

Hurtado v. California (1884)

States are not required to use a grand jury in charging felonies.

U.S. Congress (1893) Prosecutors may grant transactional immunity for testimony a witness is compelled to give before a grand jury.

Organized Crime Control Act (1970)

Prosecutors may grant a witness use immunity for testimony before the grand jury.

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ARRAIGNMENT

Arraignment occurs in the trial court of general jurisdiction. During the arraignment, the defendant is formally accused of a crime (either by an infor- mation or indictment) and is called upon to enter a plea. Thus, initial appearance and arraignment are similar in that the defendant must be informed with some specificity about the alleged criminal actions. The major difference is that felony defen- dants are not allowed to enter a plea (either inno- cent or guilty) in a lower court because that court lacks jurisdiction to take a plea and to sentence.

Procedurally, the arraignment provides the court the opportunity to ensure that the case is on track for disposition. The judge summons the defendant, verifying his or her name and address, and the law- yer provides formal notification to the court that he or she represents the defendant in this matter. Most important, the arraignment means that the defen- dant must enter a plea. Typically, defendants plead not guilty and a trial date is established. In some jurisdictions, however, a significant proportion of defendants enter a plea of guilty (Neubauer, 1996).

The arraignment is rarely a major decision- making stage in the process. Rather, its real impor- tance is measured more indirectly. The arraignment is important because it signifies to all members of the courtroom work group that the defendant is in all probability guilty and that the likelihood of being found not guilty is now slim. Thus, from the

perspective of law in action, the arraignment says something very important about case attrition.

LAW IN ACTION PERSPECTIVE: CASE ATTRITION

The law on the books perspective suggests a mechanical process—cases move almost automati- cally from one pretrial stage to the next. In sharp contrast, the law in action perspective emphasizes a dynamic process—cases are likely to be elimi- nated during these early stages.

A detailed picture of case attrition emerges in the research summarized in Figure 10.2. For every 100 arrests, 8 are diverted and 23 are dismissed by the prosecutor through a nolle prosequi (no pros- ecution). When this happens, the case is said to be “nolled,” “nollied,” or “nol. prossed.” Overall, only 69 of the 100 arrests are carried forward to the trial stage, at which 65 are resolved by guilty pleas; only 4 go to trial. These statistics underscore the fact that decisions made during early steps of felony prosecu- tions are much more important in terminating cases than the later activities of judges and juries. How- ever, important variations arise among courts in the stage at which case attrition occurs. These varia- tions reflect differences in state law, the structure of courts, and local traditions. Thus, a critical stage for case screening and case attrition in one court may be of little importance in another jurisdiction.

Kastigar v. United States (1972)

Use immunity does not violate the Fifth Amendment protection against self-incrimination.

Branzburg v. Hayes (1972)

Journalists have no constitutional right to maintain the confidentiality of their news sources when subpoenaed before grand juries, and are compelled to give testimony.

United States v. Williams (1992)

Prosecutors are under no obligation to present exculpatory evidence to the grand jury.

Campbell v. Louisiana (1998)

A White criminal defendant may challenge his conviction on grounds that African-Americans were discriminated against in the selection of grand jurors.

Arraignment

Sixth Amendment (1791)

“In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.”

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WHY ATTRITION OCCURS

Case attrition is the product of a complex set of fac- tors, including the relationships among the major actors in the criminal justice system, the patterns of informal authority within the courtroom work group, the backlog of cases on the court’s docket, and community standards defining serious criminal activity. We can best examine why attrition occurs by using three facets of discretion: legal judgments, pol- icy priorities, and personal standards of justice. As with other attempts to understand discretion, these categories are not mutually exclusive—some screen- ing decisions are based on more than one criterion.

Legal Judgments Legal judgments are the most important reason that cases drop by the wayside after arrest and before arraignment. Prosecutors, judges, and grand jurors

begin with a basic question: Is there sufficient evi- dence to prove the elements of the offense? (Cole, 1970; Feeney, Dill, & Weir, 1983). One assistant dis- trict attorney phrased it this way: “When I examine the police report, I have to feel that I could go to trial with the case tomorrow. All the elements of prosecution must be present before I file charges” (Neubauer, 1974b, p. 118).

The legal-evidentiary strength of the case is the reason cited most often for prosecutors declining to prosecute cases (Albonetti, 1987; Holleran et al., 2009; Jacoby, Mellon, Ratledge, & Turner, 1982; Miller & Wright, 2008). Such problems include noncoopera- tion by victims and witnesses; insufficient evidence to prove the elements of charged crimes; problems with the strength or credibility of witnesses’ testi- mony; and, on rare occasion, problems with the ways in which law enforcement obtained evidence. Lack of cooperation from victims and witnesses poses a particular problem in some urban areas (DeFrances, Smith, & van der Does, 1996; Miller & Wright, 2008).

Figure 10.2 ■ Case Attrition of Felony Arrests in 75 of the Largest Counties in the United States SOURCE: Bureau of Justice Statistics. 2010. Felony Defendants in Large Urban Counties, 2006. Washington, DC: Department of Justice.

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From Arrest and Bail through ArraignmentChapter 10 267

Focusing on the strength of the state’s case intro- duces an important change in evaluative standards. From an initial concern with probable cause, the emphasis shifts to whether it is a prosecutable case. At the preliminary hearing, the judge determines whether probable cause exists—that a crime has been committed and that grounds to believe that the suspect committed it are present. From the pros- ecutor’s perspective, however, probable cause is too gross a yardstick; even though probable cause exists, a case may still be legally weak. Thus, a prosecutable case is not one that merely satisfies the probable-cause standard required of police in making an arrest and used by the judge at the pre- liminary hearing. Rather, it is a case that meets the standards of proof necessary to convict.

Policy Priorities Case attrition also results from general prosecuto- rial policies about the priority of cases. Prosecutors devote greater resources to more serious offenses (Gilboy, 1984; Jacoby et al., 1982). At times, these case priorities are reflected in office structure; dis- trict attorneys around the nation have established priority prosecution programs that focus on major narcotics dealers, organized crime, sex offenders, and the like. Just as important, prosecutors use informal criteria that govern allocation of scarce resources. For example, some U.S. attorneys will not prosecute bank tellers who embezzle small amounts of money, get caught, and lose their jobs. The stigma of being caught and losing the job is viewed as punishment enough. Similarly, numerous local and state prosecutors have virtually decrimi- nalized possession of small amounts of marijuana by refusing to file charges. Based on informal office policies, district attorneys are reluctant to prosecute neighborhood squabbles and noncommercial gam- bling. And, of course, politics also plays a role, as district attorneys are much more likely to prosecute property and drug crimes in election years than at other times (Dyke, 2007).

Personal Standards of Justice Personal standards of justice—attitudes of members of the courtroom work group about what actions should not be punished—constitute the third cat- egory of criteria that explain case attrition. Thus,

some cases are dropped or reduced for reasons other than failure to establish guilt (McIntyre, 1968; Miller & Wright, 2008). Even if the evidence is strong, defendants might not be prosecuted if their conduct and background indicate that they are not a genuine threat to society. Across the nation, these reasons for rejection are referred to as “Prosecution would serve no useful purpose” or “interests of justice” (Boland, Mahanna, & Sones, 1992). Often, personal standards of justice are based on a sub- jective assessment on the part of the prosecutor that the case is not as serious as the legal charge suggests. In most courthouses, officials refer to some cases as “cheap” or “garbage” cases (Rosett & Cressey, 1976). Decisions not to file charges in cheap cases reflect the effort of court officials to produce substantive justice.

THE CRIMINAL JUSTICE WEDDING CAKE

The tyranny of criminal justice statistics is that they treat all cases in the same way in calculating the crime rate. Merely counting the number of criminal events gets in the way of understanding how and why court officials treat cases of murder differently from those of involuntary manslaughter, even though both are homicides. To understand case attrition, Samuel Walker (2011) suggested that it is useful to view crimi- nal justice as a wedding cake (see Figure 10.3).

The wedding cake model is based on the observation that criminal justice officials handle different kinds of cases very differently. The cases in each layer have a high degree of consistency; the greatest disparities are found between cases in different layers. An examination of these layers illuminates the paradox of American criminal justice: “The problem is not that our system is too lenient, or too severe; sadly, it is both” (Zimring, O’Malley, & Eigen, 1976).

Celebrated Cases The top layer of the criminal justice wedding cake consists of a few celebrated cases. Every year, a few cases dominate media attention because of the num- ber of persons killed, the bizarre nature of the crime, or the prominence of the defendant. Likewise, local communities may have a few celebrated cases, either

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268 Part III / Processing the Accused

their day in court, complete with first-rate defense counsel and an attentive jury. But on another level, celebrated cases highlight the public’s worst fears— the rich often get off scot-free because they can afford an expensive attorney. All too many seem to beat the rap. People assume that the court process ordinarily functions this way, but in fact it does not. Celebrated cases are atypical; they do not reflect how the courts operate on a day-to-day basis.

Serious Felonies The second layer of the wedding cake consists of serious felonies. The courtroom work group distin- guishes between this level and the next on the basis of three main criteria: the seriousness of the crime, the criminal record of the suspect, and the relationship between the victim and the offender. The guiding question is, “How much is the case worth?” Serious cases end up in the second layer; the “not-so-serious” ones in the third. Murders, armed robberies, and

because a local notable has been charged with a seri- ous crime or because the crime itself was particularly heinous.

From the moment these cases begin, criminal justice officials treat them as exceptional, making sure that every last detail of the judicial process is followed. The cases are also extraordinary because they frequently involve the rarest of criminal court events—the full jury trial. To the fascination of the viewing and reading public, controversial matters are aired in public. As in morality plays of old and soap operas of today, public attention is focused on the battle between good and evil, although who is playing which role is not always obvious.

These celebrated cases are most likely to be broadcast on television, with some cable stations offering instant analysis and critique. Because of the publicity surrounding them, celebrated cases have a tremendous impact on public perceptions of criminal justice. On one level, these cases reinforce the textbook notion that defendants will receive

Figure 10.3 ■ The Criminal Justice Wedding Cake SOURCE: Samuel Walker. Sense and Nonsense about Crime and Drugs: A Policy Guide. 7th ed. Belmont, CA: Wadsworth, 2011.

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From Arrest and Bail through ArraignmentChapter 10 269

most rapes are treated by all members of the court- room work group as serious felonies, resulting in less likelihood that the suspect will be released on bail. In addition, at this level, more pretrial maneuvering (Chapters 10 and 11) means less chance that the sides can reach a plea agreement (Chapter 12), a strong like- lihood of trial (Chapter 13), and eventually, an appeal (Chapter 16).

Lesser Felonies Of course, no automatic formula dictates sort- ing cases into serious and not-so-serious felonies; the key is a commonsense judgment about the facts of the case. What first appears to be a serious offense might be downgraded because the victim and the offender knew one another. For example, what starts out as an armed robbery might later be viewed as essentially a private disagreement over money owed, with the criminal act a means of seek- ing redress outside accepted channels. On the other hand, a suspect’s long criminal record might trans- form an otherwise ordinary felony into a serious one, at least in the eyes of the prosecuting attorney.

Analysis of the true seriousness of a case is part of the everyday language of the courthouse actors. Serious cases are routinely referred to as “heavy” cases or “real” crimes, and the less serious ones as

“garbage,” “bullshit,” or simply not real crimes. The practical consequences are that second-layer felonies are given considerable attention, whereas third-layer crimes receive less attention and are treated in a routine and lenient manner.

The Lower Depths The bottom layer of the criminal justice wedding cake is a world unto itself, consisting of a stagger- ing volume of misdemeanor cases, far exceeding the number of felony cases. As discussed in Chap- ter 4, about half are “public order” offenses— disorderly conduct, public drunkenness, disturb- ing the peace, and the like. Only about a third involve crimes against property or persons, many of which are petty thefts or physical disagree- ments between “friends” or acquaintances. Rarely do these defendants have any social standing. In the eyes of the courtroom work group, few of these cases are worth much, and relatively little time is devoted to their processing. They are usu- ally handled by a different court from the one that handles felony cases and are processed in a strik- ingly different way. Dispositions are arrived at in a routine manner. Defendants are arraigned en masse. Guilt is rarely contested. Even more rarely are the punishments harsh.

CRIME ON THE NIGHTLY NEWS

“Violent Weekend in the City” “Pair Arrested in Deadly Home invasion” “Guilty on All Counts”

The local nightly news often leads with head-

lines like these because they attract viewers. In case fictional shows have not provided viewers with their daily fill of cops, crimes, criminals, and courts, the local nightly news provides even more coverage. Indeed, at times it is hard to distinguish the entertainment value of fictional crime shows from the media attention to real crimes. We need to think critically about these matters because how the local nightly news

covers crime stories has a major impact on how ordinary citizens view the criminal justice system (Surette, 2010).

The nightly news provides a lot of crime-related stories because they attract viewers. Local television stations generate considerable revenue from locally produced news shows and the higher the ratings, the higher the advertising revenues. The central goal of generating high ratings leads to the mantra of news directions: “If it doesn’t bleed, it doesn’t lead.” As a result, crime coverage features as much blood and violence as possible. Footage of crimes scenes and police investigations are supple- mented by interviews with victims, family members, and neigh- bors, with an emphasis on emotion and cries for vengeance. Conversely, nonviolent crimes merit attention only if the dollar amount is large or a newsworthy person is implicated.

COURTS,

LAW, &

MEDIA

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270 Part III / Processing the Accused

Local TV news devotes a fair amount of time to crimes, but offers less coverage of arrests because arrests by real law enforcement officers are often less dramatic than arrests by fictional cops. Viewers are accustomed to watching TV shows that feature chase scenes and daring arrests. But news cameras are seldom able to capture such action, so TV news often settles for the next best thing—the “perp walk” (perp being short for perpetrator). Police accommodate the media by walking the suspect to jail in front of waiting cameras. TV reporters are quick to ask suspects why they committed such a dastardly crime and suspects are just as quick to respond with a scowl or a profanity-laced diatribe. No matter, the drama has been en- hanced. For the police, the perp walk is highly functional because it offers compelling visual evidence that they have done their job—an arrest has been made. For prosecutors, the perp walk is highly valued because the circus-like atmosphere undermines the presumption of innocence—the suspect clearly looks guilty. And, for the media, the perp walk provides dramatic footage.

TV coverage of the arrest often reinforces the image from TV cop shows that the case is now closed, the suspect has been arrested and is in jail awaiting trial. These notions are reinforced because there is considerably less coverage of later court proceedings in the case. Unless the crime was very dramatic, or the case has achieved celebrity status, TV is interested in little more than a brief report on the outcome of the trial. The lack of attention to trials is partly a function of the lack of expertise of reporters, who are seldom trained in the intricacies of legal proceedings, but also a reflection of what viewers want to see. Television viewers who are accustomed to seeing dramatic moments in fictional trials have less patience for watching actual

trials that often proceed at a ponderous pace. If it takes Law and Order only an hour to solve the crime, arrest the suspect, and convict him, why does a local municipality or city take days, weeks, months, or even years to accomplish the same thing?

How the local nightly news covers crime, cops, criminals, and courts has several positive features. For one, television provides coverage of one of our nation’s most pressing social problems. And in doing so, they put faces on the stories, capturing the emotions of victims, defendants, and their family members. Following a jury verdict, the cameras sometimes capture the joy of victory (a conviction or an acquittal de- pending on who won) or the agony of defeat (a conviction or an acquittal depending on who lost).

How the local nightly news covers crimes, cops, crimi- nals, and courts also distorts the process in fundamental ways, however. All this news coverage of course reinforces public concern that crime is a serious social problem and out of control. And by concentrating on crimes of violence, the false impression conveyed is that most criminals commit violent offenses. And in the end, all the time local television stations devote to these matters seems to suggest that after the crime footage has been run and the suspect arrested, the case is over. By the time the defendant pleads guilty or goes to trial, there is a sense that the outcome was foreordained. Trials, rather than being forums for assessing innocence or guilt within the framework of law, are reduced to rubber stamps. Not-guilty verdicts in turn are often portrayed as a defect in the system caused by shifty defense attorneys, soft- hearted judges, or dishonorable witnesses. The end result can be a citizenry even more cynical than before the trial.

Continued from previous page

CONCLUSION

The debate among the nine justices in Country of Riverside v. McLaughlin over what constitutes a prompt hearing may seem arcane, but it illustrates the overriding reality of the modern age: At times, the rights of individuals must be considered not just on their own merits but also in the context in which they are raised. Individually providing each defen- dant a probable cause hearing within 24 hours would cause no disruption to the system. But providing potentially hundreds of suspects a day such a right runs smack into logistical problems—transporting

prisoners from distant jails, hiring more magistrates, making sure that police reports are available quickly, and many other issues. What is ultimately impor- tant about County of Riverside v. McLaughlin is that it focuses attention on what is otherwise an invisible time period in the history of a felony prosecution.

Bail is another often invisible step in the prosecu- tion of a felony. Bail serves several purposes in the American court system, some legally sanctioned, others definitely extralegal. Bail is used to guarantee a defendant’s appearance at trial, to protect society by holding those perceived to be dangerous, to pun- ish those accused (but not yet convicted) of violat- ing the law, and to lubricate the system by softening

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From Arrest and Bail through ArraignmentChapter 10 271

case. The wedding cake model highlights this sorting process. Considerable resources are devoted to seri- ous felonies. Lesser felonies receive less attention; they are more likely to be filtered out of the system.

The decisions made at these early points set the tone of cases moving through the criminal court pro- cess. Quantitatively, the volume of cases is directly related to screening decisions. In many areas, it is common for roughly half the defendants to have their charges dismissed during these early stages. Quali- tatively, screening decisions greatly influence later stages in the proceedings. Most directly, plea bargain- ing reflects how cases were initially screened. For instance, it is a long-standing practice in many courts for prosecutors to overcharge a defendant by filing accusations more serious than the evidence indicates, in order to give themselves leverage for later offering the defendant the opportunity to plead to a less seri- ous charge. Thus, the important decisions about inno- cence or guilt are made early in the process by judges and prosecutors—not, as the adversary system proj- ects, late in the process by lay jurors.

defendants up to enter a plea of guilty. These vary- ing purposes are partially the result of the tension among conflicting principles. Although the law rec- ognizes that the only legal purpose of bail is to guar- antee a suspect’s future appearance at trial, court officials perceive a need to protect society. Out of these conflicting principles arise compromises.

The specific steps of criminal procedure are important because they help to ensure fairness in the process. But equally important is the substance of the decisions made. In statistical profile, the process resembles a funnel—wide at the top, narrow at the end. Fewer than half of all crimes are ever reported to the police. Only one in five of the crimes known to the police results in an arrest. Thus, most crimes never reach the courts. Of the small subset of criminal events referred to court officials, half are dropped after pros- ecutorial screening, preliminary hearings, or grand jury deliberations. Prosecutors and judges decline to prosecute or later dismiss charges that have been filed because the case lacks sufficient evidence, falls too low on the priority list, or is viewed as a “cheap”

1. Define the two methods of estimating the amount of crime in the United States.

In the United States the two methods of estimating the amount of crime are the Uniform Crime Reports, based on crimes reported to the police, and the National Crime Victimization Survey, based on self-reports from households.

2. Discuss how arrests made by the police impact the criminal court process.

Arrests made by the police impact the criminal court process in two ways: (1) if the police fail to gather enough evidence, it will be difficult for the police to gain a conviction, and (2) the increase in the number of arrests has swollen the dockets of the courts.

3. List the four ways that criminals are formally charged in court and the major actors in each of these important documents.

Defendants are formally charged in court with a violation of the criminal law by: (1) a

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complaint signed by the victim, (2) a bill of information filed by the prosecutor, (3) an arrest warrant prepared by the police, or (4) a true bill issued by a grand jury.

4. List the four most common ways that defendants secure pretrial release.

The four most common ways defendants secure pretrial release are: (1) release on recognizance (ROR), (2) cash bond, (3) property bond, and (4) bail bond through the services of a commercial bail agent.

5. Compare and contrast “law on the books” and “law in action” approaches to bail setting, including the overall effects of the bail system on criminal defendants and their cases.

Law on the books expresses a strong preference for bail unless clear and convicting evidence establishes that: (1) there is a serious risk that the person will flee; (2) the person may obstruct

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Chapter Review

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272 Part III / Processing the Accused

justice or threaten, injure, or intimidate a prospective witness or juror; or (3) the offense is one of violence or one punishable by life imprisonment or death. In contrast, law in action affects bail setting in terms of uncertainly, risk, jail overcrowding, and situational justice. How these factors coalesce in a bail decision affects the processing of criminal defendants in terms of jail conditions, disparate impact on racial and ethnic minorities, the failure of some defendants to appear in court as promised, and case disposition.

6. Explain the role bail agents play in the criminal justice system.

The bail agent provides a specialized form of insurance and makes a profit by focusing on low-risk offenders accused of less serious crimes.

7. Contrast how the law on the books approach to criminal justice and the law in action perspective offer contrasting views of the preliminary hearing.

The law on the books approach to criminal justice emphasizes that during the preliminary hearing the judge decides whether there is probable cause to hold the defendant, while the law in action perspective emphasizes that in most jurisdictions there is a strong probability that the case will proceed.

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8. Explain why some jurisdictions use grand juries extensively and others do not.

Grand juries are used extensively in jurisdictions where the constitution requires a grand jury indictment in all felonies. In jurisdictions that do not have this constitutional requirement, grand jury indictments are required in only select offenses.

9. Delineate the three major reasons for case attrition.

The three major reasons for case attrition are: (1) legal judgments (lack of evidence), (2) policy priorities (some cases are considered too minor to be prosecuted), and (3) personal standards of justice (attitudes of the courtroom work group about what actions should or should not be punished).

10. Describe the four layers of the criminal justice wedding cake.

From the top to the bottom, the four layers of the criminal justice cake are: (1) celebrated cases (which are very atypical), (2) serious felonies (which are treated as meriting major attention), (3) lesser felonies (which are treated as of less importance), and (4) the lower depths (which comprise the large volume of misdemeanor arrests).

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1. How long can an arrested person be held before being brought before a neutral judicial official? Do you think it was proper for the Court to take into account law in action fac- tors such as case volume in deciding County of Riverside?

2. In your community, at what stage does case attrition occur? Do you detect any public displeasure with how the process currently operates?

3. If you were the prosecutor, what arguments would you make to the police chief(s) regard- ing a policy of careful screening of cases soon

after arrest? Conversely, what arguments do you think law enforcement officials would make?

4. In what ways do crime control model advocates approach bail differently than do backers of due process model values?

5. Examine the local papers. Have there been re- ports of defendants’ committing crimes while out on bail? Have there been reports of poor condi- tions in the local jail? How might these reports affect bail setting?

6. To what extent do the issues of weeding out weak cases cut across ideological dimensions?

Critical Thinking Questions

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From Arrest and Bail through ArraignmentChapter 10 273

7. Do you know of any local crimes that fit the celebrated cases category of the criminal justice wedding cake? Why did these cases receive

such attention? Are they similar to or different from cases that receive extensive coverage in the media?

arraignment 265

arrest 248

arrest warrant 253

bail 254

bail agent 257

bail bond 256

bench warrant (capias) 259

bind over 260

cash bond 256

charging document 253

complaint 253

contempt (of court) 263

grand jury 261

hierarchy rule 247

immunity 262

index crimes 247

indictment 262

information 253

initial appearance 251

National Incident-Based Reporting

System (NIBRS) 247

nolle prosequi 265

no true bill 262

preliminary hearing 260

preventive detention 256

probable cause 260

property bond 256

release on recognizance

(ROR) 256

subpoena power 263

transactional immunity 262

true bill 262

Type I offenses 247

Uniform Crime Reports

(UCR) 247

use immunity 263

Key Terms

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

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

where you will find more resources to help you study.

Resources include web exercises, quizzing, and flash cards.

Friedrichs, David. Trusted Criminals: White Collar Crime in Contemporary Society. Belmont, CA: Wadsworth, 2009.

Goldkamp, John, and Michael White. “Restoring Account- ability in Pretrial Release: The Philadelphia Pretrial Release Supervision Experiments.” Journal of Experi- mental Criminology 2: 143–181, 2006.

Holleran, David, and Cassia Spohn. “On the Use of the Total Incarceration Variable in Sentencing Research.” Criminology 42: 211–240, 2004.

Kingsnorth, Rodney, Randall MacIntosh, and Sandra Suther- land. “Criminal Charge or Probation Violation? Prosecuto- rial Discretion and Implications for Research in Criminal Court Processing.” Criminology 40: 554–578, 2002.

Messner, Steven, and Richard Rosenfeld. Crime and the American Dream. 4th ed. Belmont, CA: Wadsworth, 2007.

O’Neill, Michael. “Understanding Federal Prosecutorial Declinations: An Empirical Analysis of Predictive Factors.” American Criminal Law Review 41: 1439, 2004.

Pontell, Henry, and William Black. “White-Collar Crimi- nology and the Occupy Wall Street Movement.” The Criminologist 37: 1–6.

Rose, Kenneth. “Pretrial Justice: Principles and Practice (NIC Update). Corrections Today 69: 72, 2007.

Taylor, Terrance, David Holleran, and Volkan Topalli. “Racial Bias in Case Processing: Does Victim Race Affect Police Clearance of Violent Crime Incidents?” Justice Quar- terly 26: 562–591, 2009.

Terry, Karen. Sexual Offenses and Offenders: Theory, Prac- tice, and Policy. Belmont, CA: Wadsworth, 2006.

Web Resources

For Further Reading

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Condensed_AmericasCourts_Neubauer_ch09

Ch 9: Defendants and Victims��

Learning Objectives
Characteristics of Defendants��
Defendants in Court��
Courts through the Eyes of Victims and Witnesses��
Victims and Witnesses through the Eyes of the Court��
Characteristics of Victims��
Aiding Victims and Witnesses��
Aiding or Manipulating Victims?
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��

Condensed_AmericasCourts_Neubauer_ch10

Ch 10: From Arrest and Bail through Arraignment��

Learning Objectives
Crime��
Arrest��
Initial Appearance��
Charging��
Bail��
Preliminary Hearing��
Grand Jury��
Arraignment��
Law in Action Perspective: Case Attrition��
Why Attrition Occurs��
The Criminal Justice Wedding Cake��
Conclusion��
Chapter Review��
Critical Thinking Questions��
Key Terms��
Web Resources��
For Further Reading��