Crim 2

DETERRING THE DRUNK DRIVER

- 31% of traffic fatalities were due to alcohol impairment in 2011 - Chronic drunk drivers are RARE and fatalistic about being stopped, arrested, and punished. They believe they'll get caught eventually, but it doesn't deter them from reoffending. - 66% of the time, fatal alcohol-impaired accidents kill the driver only, 16% passengers, 11% driving in the other car, 7% pedestrians. - Most drivers killed in drunk driving incidents do not have a history of drunk driving. - Drunk driving cannot be reduced by a single policy.

ABOLISH OR REFORM BARGAINING?

- Conservatives believe plea bargaining is yet another loophole for criminals to avoid punishment. -Liberals believe that plea bargaining is a source of great injustices: "a hidden and unregulated process by which prosecutors offer better deals to some types of defendants, while also coercing defendants to waive their right to a trial. BOTH WRONG

DETERRENCE AND DRUNK DRIVING

- Crackdown efforts in England worked for a while, but after a few years the deterrent effect decayed.

Deterrence

- Deterrence is an article of faith to conservatives: Punishment deters crime (swifter, more certain, and more severe punishments). -Criminal law can be effective in reinforcing established behavior; but it is not clear that it can be effective as the primary influence on people's behavior (SOME PEOPLE ARE SOCIALIZED ACCORDING TO CRIMINAL LAW, OTHERS ARE IMPULSIVE AND LACK SELF CONTROL)

THE REALITY OF POSTCONVICTION APPEALS - Postconviction appeals play a minor role in the administration of criminal justice; 1% succeed

- Habeas corpus petitions are much like the insanity defense: a procedure that raises a lot of fascinating legal issues but is rarely used in practice and rarely successful when tried.

AFTERMATH OF AQUITTAL

- Liberals: think that mentally insane offenders will spend more time in an institution than if they had been sent to prison. -Conservative: argue that mentally insane people get out too soon from facilities.

1. Appeals are filed in so few cases that they cannot have any broad impact on criminal justice 2.Many factors undermine the deterrent effect (low probability of arrest, a relatively high probability of the charges being rejected or dismissed, whether the threat of punishment even works for certain categories of offenders and so forth)

- Like the insanity defense, successful postconviction appeals are rare events

PROPOSITION #21 - ABOLISHING OR EVEN SIGNIFICANTLY REFORMING PLEA BARGAINING WILL NOT REDUCE SERIOUS CRIME

- Most defendants do not contest their guilt - Factually weak cases have already been screened out - All that is left is bargaining over the exact charge and punishment - Exact charges and punishments have become predictable and are subject to sentencing guidelines. -Once a case is deemed likely to be won, it goes through the Early Plea Unit to negotiate a guilty plea. If not settled by the EPU, the case will go to the Trial Unit.

PLEA BARGAINING AND CRIME.. The reality of the courtroom work group

- Once a work group reaches a consensus about the proper "going rate" for different kinds of cases, not much actual bargaining is necessary. - All of the studies of plea bargaining have found a high degree of regularity and predictability in the disposition of cases. -Cases the workgroup feels that it can't win, they reject

EVADING HARSH MANDATORY SENTENCES First time sex offenders

- Plea bargaining is a convenient means by which the courtroom can evade harsh punishment of sex offender registration (which lasts for life). -Most members of the work group shared the opinion that most, but not all juveniles initially charged with sex offenses should not suffer punishment.

In Sum..

- Restrictions on appeals DON'T cause the number of deaths sentences to decline - Limitations on appeals HAVE NO impact on homicides -Conservatives argue that appeals delay "finality" and thereby undermined the deterrent effect of the criminal process, which is wrong.

THE PREDICTION PROBLEM REVISITED

- Some programs are effective for some offenders. Achieving the proper match, however brings us back to the prediction problem. - Sentencing a convicted offender to a community-based drug treatment program represents a prediction that he or she is: 1. not a serious danger to the community and therefore does not need to go to prison 2.will respond positively to the drug treatment program.

THE REALITY OF THE INSANITY DEFENSE

- The insanity plea is rarely used successfully. Used in 1% of cases, and 15-25% of pleas are successful. - Few offenders raise it, fewer still get to court with it, and most of those do not win it. -The belief that offenders getting off the hook by an insanity pleas a lot is an example of celebrated case power.

PERCEIVED VS. REAL RISK OF PUNISHMENT

- The risk of arrest is high for murder, not so much for drug dealing (caught once every 4,500 deals) -The risk of getting caught committing a crime other the murder is quite low if done one time only. Risk gets greater each time a crime is committed by someone

ABOLISH THE INSANITY DEFENSE

- When John Hinckley attempted to assassinate Ronald Reagan in 1981 and was ruled not guilty by reason of insanity, it sparked a national outcry over the insanity defense. - The insanity defense is commonly seen as a loophole, or "getting off". -NGRI people are sent to institutions (in some cases) for longer than people convicted to prison.

Baxstom v. Herold

- forced the release of persons held for long periods of time in the NY State Hospital for the Criminally Insane and necessitated the development of new procedures for continued confinement.

- Third-layer cases (low-level assaults/burglaries) are often settled by pleas to lesser offenses and sentences of probation. A ban on plea bargaining closes off this avenue of mitigation and produces convictions on more serious charges and harsher sentences than would normally be the case.

-BUT... third-layer cases were not the target of Alaska's policy change, and thus there was no impact on serious crime.

- Just how a 4 year old might shoot someone and not truly understand what they did, a truly deranged person who hears voices and commands from another planet telling him to kill does not appreciate the criminal nature of his actions.

-If mental conditions couldn't be used as a defense, it would essentially abolish the mens rea requirement all together. And different "degrees" of murder could not exist.

SUPREME COURT RULES ON PLEA BARGAINING: NEW DAY OR BUSINESS AS USUAL? Missouri v. Frye

-In 2012, the Supreme Court ruled that convicted offenders had a right to challenge their convictions on grounds of ineffective assistance of counsel in violation of the 6th Amendment.

DOES A SPECIAL PROSECUTION UNIT MAKE A DIFFERENCE?

-No, because loopholes aren't really there.

After a while people become less aware of the increased punishment.

-Police return to normal too. - Most people think they won't get caught drunk driving à no perception of a threat - Mandatory sentencing can be avoided by: dismissals, plea bargaining, or blatant disregard of the law. -Police officers don't hunt drunk drivers very often. Without any incentives, like court time (which can be a source of extra pay), it Is unlikely that traffic officers will take more time out of their shift to hunt down drunk drivers.

liberals on the other hand see the absence of finality a virtue.

-Protection of individual rights requires recognition of the possibility of error in the criminal justice system and the existence of a procedure for correcting mistakes.

DANGER TO THE COMMUNITY

-Recidivism for persons acquitted by reason of insanity was "no greater than that of felons"

DID THE BAN SURVIVE? CHARGE BARGAINING ULTIMATELY CAME BACK TO ALASKA, AND THE BAN OF PLEA BARGAINING HAD NO IMPACT ON CRIME.

-Screening decisions remained the critical point in the process and resulted in higher standards for sending a case forward. The resulting pressure for improved police investigations also continued.

- Rehabilitation, or correcting criminal offenders is the cornerstone of traditional liberal crime control policy.

-The goal is to reduce crime by rehabilitating, correcting, or treating criminals to help them reestablish lives and be reintegrated into their communities as law abiding citizens.

ALASKA TRIES ABOLISHING PLEA BARGAINING - The most celebrated attempt to abolish plea bargaining in Alaska (1975) How did it attack plea bargaining?

-The new policy attacked plea bargaining in 3 ways: [1] forbidding sentence bargaining [2] forbidding charge bargaining [3] abolished the establishment of procedures for supervising plea negotiations

- The Antiterrorism and Effective Death Penalty Act reflected double use the endless appeals undermined the deterrent effect of the death penalty in 2 different ways.

1. The act extends the time between the crime and the punishment thereby nullifying both swift and certain justice. 2.The act overturns a number of convictions thereby absolutely nullifying certain justice.

SORTING OUT THE ISSUES -The concerns of the insanity defense: what questions arise

1. The extent of the use of the defense (how often should it be used? How many people successfully used the defense?) 2. The fate of those who win acquittal (do they go free? How soon?) 3. Predicting dangerousness (when do we release them?) 4.What is the effect of abolishing the insanity defense?

Pros to plea bargaining

1. The prosecutor is guaranteed a guilty verdict 2. The defense attorney can claim to have gotten a better deal than appeared possible at the outset 3. The defendant gets a sentence less severe that it could've been in trial. 4.Both sides avoid time, expense, and uncertainty of a trial

DETERRENCE THEORY ASSUMPTIONS: A potential criminal...

1. must be aware of the threat (of punishment) 2. must perceive the consequences of lawbreaking as unpleasant 3. must believe in a real risk of arrest/punishment 4. is a rational actor

Conservatives believe that post conviction appeals undermine the criminal justice system in several ways.

1. some offenders win and thereby escape punishment altogether 2. appeals delay final resolution of a case and undermined the deterrent effect of the criminal law 3.appeals transformed the criminal process into a sporting contest a game rather than a search for truth

PROPOSITION #14 - A MULTIPRONGED STRATEGY INCLUDING USING NONCRIMINAL JUSTICE PROGRAMS, HAVE PROVEN EFFECTIVE IN TRAFFIC RELATED INCIDENTS

A MULTIPRONGED STRATEGY FOR DEALING WITH TRAFFIC FATALITIES

Intensive probation supervision or intensive parole supervision (IPS):

one of the new intermediate punishments designed to improve probation and parole. Flourished in the 1990s and is frequently combined with other intermediate sanctions (boot camps on confinement and electric monitoring.)

Legitimacy:

people are more likely to obey they law if the respect and trust the CJ system (especially the police). If people do not believe the CJ system is legitimate due to a bad experience, then they are not likely to respect any deterrent messages.

Charge Bargaining:

pleading for a lesser felony or even a misdemeanor. (What critics of plea bargaining believe to be the reason offenders avoid prison and long sentences)

PROPOSITION #20 - ABOLISHING OR LIMITING THE INSANITY DEFENSE WILL HAVE NO IMPACT ON SERIOUS CRIME.

1. ABOLISHING THE INSANITY PLEA DEFENSE WOULD FAIL TO REDUCE CRIME, BECAUSE INSANITY CASES ARE SO RARE TO BEGIN WITH. 2.ABOLISHING THE INSANITY PLEA DEFENSE WOULD CREATE NEW PROBLEMS FOR THE CJ SYSTEM (it would blur the degrees of intent and defense attorneys would still try to prove the absence of mens rea).

- Conservatives Response to Close the Loophole:

1. Abolish the insanity defense all together 2. Changing the tests of insanity 3. Shifting the burden of proof to the defendant (instead of state having to prove intent, the defense needs to prove mental illness) 4. Creating a new "Guilty, but mentally insanse" verdict (GBMI) 5. Revising the trial procedure for raising an insanity plea 6.Changing procedures for committing a person found not guilty by reason of insanity

Tougher enforcement has contributed to lower fatality rates in car accidents, but social policies also play important roles:

1. Cars are safer 2. New safety features (airbags, seatbelts, child restraints 3. Rise in legal drinking age to 21 4. Administrative License Revocation: if a person fails a breath test, their license is revoked. 5. Socialization àla anti-drunk driving campaigns 6. Graduated Driver Licensing à gradually expanding driving privileges. (level 1, 2..) 7.Ignition Interlock Systems: in-car breathalyzer test that prevents the vehicle from starting if the driver's BAC is too high. (selective incapacitation, not deterrence)

DETERRENCE AND THE DEATH PENALTY Two main justifications of the death penalty:

1. Deterrence 2.Retribution - justice for a heinous crime

NEW DEVELOPMENT IN THE FIELD OF CORRECTIONS

1. Evidence-based policy making (beginning with Martison's report: reviewed all evaluations of correctional programs between 1945-1967) 2. Community reinvestment 3.Drug courts

PROBLEMS WITH "GUILTY BUT MENTALLY INSANE" ALTERNATIVE

1. It strikes indirectly with the mens rea requirement, introducing the notion that the accused had partial, but not complete criminal intent. 2. It creates a lesser and included offense that judges and juries might choose simply as a compromise verdict 3. Does not guarantee treatment for the person who has been declared mentally ill. Prisons are il-equipped for the mentally ill. -Basically the GBMI option is symbolic to appease public opinion by providing a verdict with the word "guilty" in it.

GOOD THINGS ABOUT ALASKA'S ABOLISHMENT OF CHARGE BARGAINING

1. It was expected that there would be more court delays because of this policy, but in Anchorage, the mean disposition time for felony cases was cut in half. 2. RESTRICTIONS ON PLEA BARGAINING ELIMINATE CERTAIN ALTERNATIVES AND UNCERTAINTIES ABOUT WHICH ONE TO CHOOSE. In other words, the courtroom had "less items on the menu" to choose from. 3. The ban on charge bargaining forced police officers to become "good investigators" 4.THE BAN ON PLEA BARGINING HAD NO IMPACT ON CASES INVOLVING DEFENDANTS CHARGED WITH SERIOUS CRIMES. This proves that dangerous offenders had not been beating the system through plea bargaining (since the ban didn't change anything in Alaska)

- There are two exceptions, however:

1. People on death row exhaust every possible appeal 2."Writ writers": Prisoners who file innumerable appeals in federal court challenging their conviction or prison conditions

PROBLEMS WITH SENDING THE MENTALLY INSANE TO PRISON (CYCLE)

1. Person A, who is mentally ill, is sent to prison 2. The behavior of person A becomes a problem 3. Person A is sent to a state mental hospital for treatment 4. Person A's behavior stabilizes 5. Person A is sent back to prison 6.Brutal prison conditions cause person A to have BEHAVIORAL PROBLEMS again

PROPOSITION #13 - ENFORCEMENT CRACKDOWNS DO NOT DETER DRUNK DRIVING OVER THE LONG TERM

1. Risk of arrest is LOW for drunk driving crackdowns

The National Academy of Sciences concluded that there were conceptual and empirical flaws in virtually ALL of the studies

1. Studies fail to place the death penalty in context to the full regime of punishments (life without parole or fixed prison terms) How do those alternative punishments affect a criminals' decision? 2. Studies don't examine how potential murderers "respond to the objective risk of execution". We know almost nothing about the process of risk assessment by criminals.

- Rehabilitation:

Any planned intervention that reduces an offender's further criminal activity. - Aging is the best crime reduction policy we know about - Probation and parole have been the most important programs for more than 100 years. -Some treatment programs do have an appreciable effect on recidivism. The critical fact seems to be the conditions under which the program is delivered.

EXECUTIONS AND CRIME

Broad social factors common to all states, rather than executions, are the primary causal factors in homicide rates. THIS IS TOO SIMPLISTIC.

The major violator unit had ONLY A MODEST IMPACT ON THE PROSECUTION OF CAREER CRIMINALS.

Convictions to prison did go up from the program, but there was no significant loophole to fill in the first place. We are tough on career criminals.

Pulling Levers:

Delivering the threat of punishment to the targeted group in person by the police. Pulling levers is effective because: 1. there is no question the threat message was heard 2.the police actually followed up on the threats made

RAND INMATE STUDY (RIS):

Found most criminals are fatalistic about their behavior, they assume they will eventually be caught. Provides little evidence for deterrence theory. Criminals act impulsively, overestimating short-term benefits and underestimating long-term consequences.

Missouri v. Frye:

Frye's defense attorney never communicated an offer from the prosecutor to accept a plea to a misdemeanor and a 90-day jail term. The offer expired and Frye was arrested on the same charge. He then appealed his conviction, claiming "ineffective assistance of counsel". FRYE WON -Nothing has changed, business as usual.

DETERRENCE THEORY:

Harsher punishment = higher deterrence. This does not work in the real world.

DID SAN DIEGO MAJOR VIOLATOR UNIT REDUCE THE CRIME RATE?

No! Just as increasing prison term length doesn't reduce the rate, the San Diego Major Violator Unit also did not reduce the crime rate.

DID SAN DIEGO MAJOR VIOLATOR UNIT INCREASE CONVICTION RATE?

Not by itself. The major violator unit did double the average length of incarceration (increased severity of punishment), but this trend had been happening in the United States despite the special unit.

Vertical Approach:

One prosecutor handles the case from initial charge to the end.

CONCLUSIONS FROM PROBATION AND PAROLE: why it doesn't work for some

Perhaps no formal probation and parole, intense or minimal has any real impact on the lives of people who are embedded environments with few positive opportunities, weak or nonexistent family supports, and many dysfunctional pure influences (friends involved in drugs and crime).

The San Diego Major Violator Unit answers the question of whether a special prosecution unit results in higher rate of convictions and more serious punishment.

Programs like these restrict plea bargaining.

LIMITING HABEUS CORPUS APPEALS OF CRIMINAL CONVICTIONS WILL HAVE NO EFFECT ON SERIOUS CRIME

RESTRICT APPEALS

Fear-based deterrence

Scared Straight: a deterrence-based program for potential offenders that exposes them to the experiences of prison - A Michigan program in the 1960s resulted in a 43% recidivism for those in the program - The program is still popular because of criminological theology (triumph of faith over facts). - The scared straight program is different than "pulling levers" because in the Boston Gun Project, the police actually followed through with threats. -Because of the lack of immediate consequences, fear-based deterrence programs DO NOT REDUCE CRIME.

4 TYPES OF DETERRENCE:

Specific , General, Absolute, Marginal

Fay v. Noia (1963):

Supreme Court decision that expanded the ability of an offender convicted in a state court to obtain a rehearing in federal court.

Horizontal Approach:

heavily used in urban environments à one group handle initial filing of charges and arraignment, a second group takes a case to trial and negotiates PLEA BARGAINS

Announcement Effect

The initial announcement of a crackdown can help deter people from drinking and driving. There was a perceived threat. It also effects police officers to become more active at stopping drunk drivers.

Proving Guilt: Actus Reus, Mens Rea, and a connection between the two.

The key issue with the insanity plea is the mens rea requirement

Choosing Crime? Rationale Criminal?

The question that remains is: If criminals' estimate of bad consequences are so high, and their estimate for benefits is low, WHY DO THEY COMMIT CRIMES? à perhaps criminals AREN'T rational as deterrence theory suggests.

PROSECUTE THE CAREER CRIMINAL

To close alleged "loopholes", some prosecutor offices have created major-offender or career criminal programs.

FROM THEORY TO PRACTICE: DETERRENCE IN THE REAL WORLD OF CJ -Boston Gun Project (part II):

Used focus-deterrence by "pulling levers"

-Affirmative Defense:

When the accused DID commit the crime intentionally, but does not have criminal responsibility for the act (because of self-defense, duress, or insanity)

DETERRENCE-ORIENTED CRIME POLICIES ARE NOT LIKELY TO REDUCE SERIOUS CRIME Why?

[1] "Pulling levers" isn't always possible (impossible to make EVERYONE aware of threat) [2] If arrest and imprisonment are common experiences for a particular social group, the stigma begins to lose its negative effect and deterrent effect weakens (PUNISHMENT NOT PERCEIVED AS UNPLEASANT) [3] The real risk of getting caught committing a crime other the murder is quite low if done one time only. Risk gets greater each time a crime is committed by someone. [4] by the Rand Inmate study it was found: criminals act impulsively, overestimating short-term benefits and underestimating long-term consequences. Criminals are not always rational.

TWO LIMITS ON APPEALS:

[1] The Antiterrorism and Effective Death Penalty Act and [2] the Prison Litigation Reform Act

Issues with the death penalty:

[1] is it moral? [2] is it constitutional? (yes, Gregg v. Georgia) [3] does it deter crime?

- Myth of the Killer Drunk:

[1] places blame on a small number of dangerous people [2] emphasizes killing innocent people [3] blames CJ system for not punishing offenders and keeping them on the roads [4] makes criminal punishment the primary focus of efforts to reduce traffic fatalities.

- Plea Bargaining:

a negotiated plea of guilty by a defendant, typically in return for some concession on the part of the prosecutor.

Costs of Crime:

includes the pain of arrest, collateral consequences of a criminal record, and social stigma of criminal record. Deterrence theory: higher the cost = less crime

-Sentence Bargaining:

involves a guilty plea in return for an agreement by the prosecutor to recommend a particular sentence to the judge.

Marginal Deterrence:

a relative improvement over what we're currently achieving. Focus on small reductions of crime rather than eliminating it as a whole. REALISTIC

Regime of Punishments:

all possible punishments for a crime, both positive and negative.

- Ordinary Offense:

an attempt to show that the prosecution has failed to connect the accused to the crime

General Deterrence

directed at society by communicating a message to the larger audience.

Specific Deterrence

directed at the individual offender or potential offender. Discourages one to make the rational choice to commit a crime.

Major-offender/Career Criminal Programs:

focus special attention on major offenders and make sure that they are prosecuted, convicted, and sentenced to an appropriate prison term.

Absolute Deterrence:

when a particular punishment will completely deter a specific crime. IMPOSSIBLE.

- Charge Bargaining:

when defendant agrees to a guilty plea to a lesser charge (generally, this method avoids prison terms)

EFFECTIVENESS OF PROBATION: is probation more effective than incarceration and are some probation programs more effective than others?

· In California, after 40 months on probation 65% of the probationers had been rearrested. · Probationers re convicted of a violent crime took an average of only 8 months to recidivate. · The level of supervision has always been minimal with probation · The quality of the treatment services are also an issue · Most probationers eventually rehabilitate themselves through maturation, finding a job, getting married, and so on.

EFFECTIVENESS OF PAROLE

· Overall, parole supervision has little effect on the recidivism rates of released prisoners. · Within 3 years 67.5% parolees were rearrested for either a felony or serious misdemeanor. · The overall impact of supervision was minimal or nonexistent for the largest groups of people released from prison: Men convicted of violent drug or property crimes. · Parole supervision is in fact quite minimal in most cases ·In short, the released offenders have significant needs but received little in the way of services to address those needs (treatment programs)

probation

· The most widely used correctional program in the criminal justice system · 25% of all convicted felons were sentence to probation in 2009 · Probation involves keeping convicted offenders in the community rather than sending them to prison · Probation is the appropriate sentence for someone convicted of a less serious offense or for a first-time offender. ·Probation is cheaper than prison.

PAROLE

· The second most prevalent rehabilitation program · Like probation, it seeks to reintegrate the offender into the community ·One difference between parole and probation is that parole usually is given to those who were released early from prison, but still need supervision.