Intro to criminal justice: exam 2 (Chapters 8-14)

_______ deterrence convinces offenders not to repeat their criminal behavior.

specific

The trial begins when the jury is ______ by the judge.

sworn in

Incapacitation

to remove the offender's ability to reoffend • Incarcerating an offender for stealing a car or selling drugs

When an adult court _____ is issued, the case is excluded from juvenile court.

transfer

t or f: Research suggests a correlation between individualist beliefs and support for harsh criminal punishment.

true

In a criminal trial, the jury must reach a _____ decision on the defendant's guilt

unanimous

______ is the process of selecting a jury to serve at trial.

voir dire

What is a petit jury?

• A panel of citizens (9-12) who sit through a trial, hear evidence, and determine the verdict • Once jury is impaneled, they select or elect a foreman (foreperson) who speaks for the jury in court • The trial begins when the jury is sworn in by the judge • If there is a risk the jury will be influenced or pressured by outside sources, the judge may sequester the jury

Critiques of Diversion Programs

• Access to diversion programs is not equitable (race and class disparities) • Diversion programs require offenders to pay for some services (drug tests, electronic monitoring), which many offenders cannot • Critics argue that problem-solving courts are "invasive behavior modification" (Miller, 2004)

The Death Penalty

"Capital punishment is the ultimate expression of government power" (Fitchelberg, 2020) • Capital cases - cases involving the potential punishment of execution Execution has long been a form of criminal punishment in the U.S. • Serves the purposes of incapacitation, retribution, and specific deterrence The severity and irrevocability of the death penalty make it unique from all other forms of criminal punishment • Public support for capital punishment has declined in recent decades, though 60% still support it for the crime of murder (Gallup Poll, 2018)

5 Stages of a criminal trial

1. Opening statements • Purpose is to frame the evidence the jury is about to hear (provide a context for the case) • Theory of the case - what each side believes actually happened 2. Case in chief - burden of proving the case is on the prosecution 3. Defense - does not need to prove innocence, only needs to create reasonable doubt 4. Closing statements - summary of arguments made, appeal to jury 5. Jury instructions/deliberation/verdict - judge instructs jury on how to apply the law to the facts of the case; jury deliberates evidence, makes decision on guilt

Three parts of a criminal trial

1. Pre-trial process - from arrest to start of trial (jury sworn in by judge) 2. Trial - presentation of evidence to the court, followed by judge/jury deliberation and verdict 3. Post-trial process - sentencing and appeals

Trials serve three functions

1.To determine "the truth" - whether defendant committed the alleged crime (or at least what can be proven in court) 2. Punitive function - to assign blame and determine appropriate sanction for convicted offenders 3. Symbolic function - to project an image of fairness, respect, and power of the state

Defendants have a _____ right to legal representation in a criminal prosecution.

6th Amendment

The financial cost of capital punishment

A common perception is that execution is cheaper than life in prison • The reality is that life in prison costs considerably less than execution Capital cases cost an estimated 70% more than non-capital cases • Pre-trial process and bifurcated trials are lengthier and require more resources from courts, prosecutors and defense attorneys • Appeals process lasts an average of 15 years before inmate is executed or sentenced is commuted (reduced) • The average death row inmate costs $1.12 million more than a general population inmate (McFarland, 2016) • Drugs needed for lethal injection (most common form of execution) are expensive, difficult to obtain, and require special training to administer

Civil Commitment

A form of alternative incarceration that entails detention beyond a criminal sentence (sex offenders) or detaining a person who has not been convicted of a crime (NGRI) • Detention is justified based on belief the person is a danger to self or others • Individual is evaluated throughout commitment to determine if/when it is safe to release them into the community • Undocumented immigrants are also held under civil commitment laws, until they are deported or allowed to stay in the U.S. • Civil commitment does not afford individuals the same rights as the CJS • No right to legal representation or trial by jury

What is a grand jury?

A group of randomly selected citizens (16-22) who hear evidence against a suspect to determine whether it is sufficient to file official charges • If evidence is sufficient, the grand jury will indict the defendant (only used with felony charges) Heavily biased toward the prosecution • Closed to the public and defense counsel is not permitted to challenge the evidence • Defense cannot review the evidence until preliminary hearing (after grand jury indictment)

Types of pretrial motions

A motion is a legal term for a request made to the court

What is bail?

A sum of money (or property) put forward by the defendant to guarantee they will return to court for trial

Appellate Courts

Administered by a panel of judges • Hearing is referred to as oral argument, not a trial • Only the prosecutor and defense attorney are present to offer arguments and answer judges' questions Once the case is decided by a majority, the judges write an opinion • Judges on the panel who disagree with the majority can write a dissenting opinion • Judges only deal with legal questions (not guilt or innocence) Under scrutiny is whether the trial court judge applied the law correctly

Despite issues, support for capital punishment remains

American individualism - the belief that individuals are responsible for their own conduct, independent of external circumstances • "Anyone can achieve the American dream if they work hard enough" • "People who fail to succeed must have done something wrong" Many Americans are unsympathetic to people who claim their bad acts are not entirely their fault • Research suggests that countries with individualist beliefs tend to support harsher punishments, including capital punishment (Kornhauser, 2015)

Prosecutors

Arguably, the most powerful actors in the criminal court system • Prosecutorial discretion - the authority to charge or not charge a person with a crime and to determine the charges • Discretion is a necessary element of the job - all cases cannot be prosecuted

Policing juveniles

Arrest occurs in less than 25% of cases involving a juvenile suspect Police are more likely to: • Threaten the juvenile with custody (arrest) • Issue a citation (order to appear in court at a later date) • Order juvenile to leave the premises • Bring juvenile home to parents For felony offenses, police need probable cause to takejuvenile into custody For status offenses, police can meet lower standards such as reasonable suspicion (police are given more discretion in how they respond to status offenders)

Revenue distorts CJ policy and practice

As revenue from criminal justice increases, so does the potential for the distortion of policy and practice • When financial profit is the motive, corporate lobbying and campaign donations have more influence on policy than public safety and public interests The desire for profit also drives criminal justice practice on a local level • Aggressive policing of misdemeanor infractions results in fines/court fees that many defendants cannot pay, resulting in arrest, incarceration, more fines Defendants incur the cost of supervision (electronic monitoring)until case is resolved • Predatory finance and collection practices are used by jurisdictions across U.S.

Institutionalization

As total institutions, prisons can have a dramatic impact on the psyche of inmates, especially those serving long sentences This impact can make it difficult for inmates to adjust to life after prison Prisonization - the effect of long-term incarceration that leaves inmates unable to function outside of prison (Haney, 2002) • Dependence on institutional structure • Hypervigilence, interpersonal distrust, suspicion • Social withdrawal, psychological distancing, and isolation • PTSD reactions to stress of imprisonment

Juvenile OffenderCharacteristics

Boys make up majority (72%) of delinquency cases • 62% of delinquency cases involve White juveniles (drug crimes #1) • 42% of Black juveniles in court are accused of violent crime Youth under age 16 make up 53% of all delinquency cases Black youth are 4 times more likely than White youth to be placed/committed (Turner, 2007) White youth are more likely to receive community supervision or diverted from system

Adult court transfer

Case is excluded from juvenile court jurisdiction due to severity of offense or juvenile's offense history Discretionary exclusion - juvenile court judge or prosecutor has discretion to transfer case to adult court • Transfer is based on belief that 1) offender is beyond rehabilitation or 2) offender deserves harsher punishment than juvenile court can offer • If beyond rehabilitation, transferred by judge (judicial transfer) • If seen as deserving of harsher punishment, transferred byprosecutor (prosecutorial transfer) Mandatory exclusion - case is automatically transferred to adult court; cannot be heard in juvenile court (dictated by law)

The prosecutor and defense can challenge (object to) a prospective juror in two ways:

Challenge for cause - objection based on potential bias • Example: prospective juror is a retired police officer • Prosecutor and defense each have an unlimited number Peremptory challenge - objection that requires no justification • Prospective jurors cannot be challenged based on race, gender or sexual orientation • Prosecution and defense each have a limited number (6-10)

Types of problem-solving courts

Drug court - designed to help offenders overcome addiction to avoid further offending (and prison) • Facilitated by a judge working with prosecution, defense, probation, social workers and treatment providers • Offender is monitored for period of 12-18 months, and required to meet certain conditions (sobriety, employment, housing) Mental health court - designed to help offenders suffering from mental illness to avoid further offending (and prison) • Team of professionals develop a treatment plan (counseling, medication) for offender who must meet certain conditions to avoid criminal punishment

Parole

Community supervision after prison • Prison inmates who reach their parole eligibility date can petition the parole board to consider them for release • Parole boards weigh a variety of factors, including time served, conduct while in prison, risk of recidivism, nature of offense, and offender's attitude toward offense (acceptance of responsibility) • Conditions of parole are similar to probation, as are the consequences for violation (revocation and re-incarceration) • Offender remains under correctional control until parole sentence is served

Probation

Community supervision in lieu of prison Convicted offenders agree to be monitored by the court and check in with a probation officer for a set period of time • Conditions of probation often include travel restrictions, drug testing, employment, housing, and avoidance of any criminal activity • Levels of supervision range from "banked caseload" to intensive supervised probation (ISP) • Violations of probation can result in revocation and incarceration • Most violations are technical (failure to meet conditions of probation), rather than a new criminal offense

Juvenile Justice System

Developed at turn of 20th Century to: • Intervene in lives of at-risk youth (homeless, orphans) • Shield young offenders from adult system Decentralized, fragmented structure; operates separately from CJ system Jurisdiction over criminal (delinquent) and non-criminal (status) offenses • Delinquent offense - a crime committed by a person under age 18 • Status offense - a law violation only for persons of juvenile status (truancy, running away, curfew violation) • Family matters - child custody/support, paternity, adoption

Other Motions at Trial

Directed verdict •Request by the defense for the judge to end the trial, based on argument that prosecution has not proven its case Mistrial •Request for the judge to declare the trial invalid •The defendant is neither acquitted or convicted •The prosecutor can decide to start over with another trial, negotiate a plea deal with the defense, or drop the case

_______ programs offer treatment to offenders while placing prison sentences on hold.

Diversion

At the _____, the judge informs the defendant of the charges alleged by police.

initial appearance

Types of Evidence

Evidence is any material presented to the court at trial • Inculpatory - evidence of the defendant's guilt • Exculpatory - evidence of the defendant's innocence • The prosecutor must disclose all exculpatory evidence to the defense, but the defense does not need to disclose inculpatory evidence to the prosecutor Direct - requires little to no interpretation by the judge/jury • Video footage of defendant committing the alleged crime Circumstantial - requires some interpretation and does not directly point to the defendant's guilt • A receipt for a firearm purchased by the defendant the day before the crime It's not uncommon for a case to be based entirely on circumstantial evidence Probative - relevant to proving a material fact of the case; relates to a significant issue in the defendant's guilt or innocence • Evidence of the defendant's state of mind around the time of the alleged crime Prejudicial - evidence that unfairly favors one side of the case • Defendant's prior arrest for a violent crime Testimony - verbal or written statements made to the court while under oath • Victim, eyewitness or expert witness testimony Physical - material objects that show guilt or innocence, can be entered into court by prosecution, defense or a witness under oath • Detective gives testimony on shell casings offered as evidence by the prosecution

__________ evidence is evidence of the defendant's innocence.

Exculpatory

What is voir dire?

French term meaning "to see to speak" or "to speak the truth" The process of selecting a jury to serve at trial • The prosecutor and defense examine prospective jurors to assess whether they will be unbiased when they hear evidence at trial • In adversarial process, each side wants jury to be empathetic toward their case • Process begins with jury pool (venire) of randomly selected individuals who are identified by the court as prospective jurors (registered voters, driver's licenses) • Prospective jurors are asked to complete a questionnaire about family, work, etc., then questioned by prosecutor and defense on any connections to the case or life experiences that would bias them toward one side or the other

Arbitrary application of capital punishment

Furman v. Georgia (1972) U.S. Supreme Court ruled capital punishment was "cruel and unusual" if arbitrarily enforced (violation of 8th and 14th Amendments), resulting in a 4 year moratorium Gregg v. Georgia (1976) U.S. Supreme Court reinstated capital punishment for states with revised statutes that included the following protections: • Bifurcated (two stage) trial - guilt is determined in first stage, then sentence is decided by judge or jury in second stage • Aggravating and mitigating circumstances must be considered at sentencing • Appellate review of capital cases resulting in conviction (direct appeal)

Juvenile court jurisdiction

Geography - case is typically heard in court where juvenile resides (not where offense was committed) Age - minimum age ranges from 6 to 12 years; maximum age ranges from 15 to 17 (varies by state) • Most states use age at time of offense • Some states have concurrent jurisdiction for juveniles age 16-17 (case can be heard in either juvenile or adult court) Age of retention - maximum age the juvenile court can have control over an offender • Ranges from 17 to 25 (age 21 in most states)

Types of Objections

Hearsay - second hand testimony; witness testifies to what someone else told them • Inadmissible in court because it violates the defendant's right to confront accusers Narrative - witness can only testify to what they are asked by attorney; cannot provide material beyond that Scope - in cross examination, a witness cannot go beyond testimony in direct examination Badgering - asking a question in a hostile manner with the intent to upset or fluster the witness Speculation - witness testifying to what they think might have happened; can only testify to what they actually witnessed Asked and Answered - attorney cannot ask the same question more than once in the same examination

Inmate Rights

Historically, prisoners "forfeited" their rights upon incarceration (Ruffin v. Commonwealth of VA, 1871) Cooper v. Pate (1964) allowed state inmates to sue in federal court for violations of constitutional rights: • Freedom of religion (1st Amendment) • Right to due process and access to courts (5thAmendment) • No right to legal representation post conviction (6thAmendment) Wolff v. McDonnell (1974) granted due process rights to inmates (the right not to be punished by prison officials without a fair, impartial hearing)

Intake

If not released, juvenile is taken to intake officer; initial contact with juvenile court Intake officer has three options: • Take no official action - warn the offender or refer to services outside court system • Divert case from formal process with a diversion agreement (conditional dismissal) • File a petition (juvenile court version of criminal complaint) Intake officer conducts a risk and needs assessment for judge to review (focusing on individual risks and needs of the offender)

Appeals

If the defendant is found guilty, they can file an appeal • If the appeal is successful, the conviction is overturned and a new trial is ordered Appellate court judges do not examine evidence; they review the transcripts of the trial and written statements (briefs) submitted by the defense and prosecution Amicus brief - statement submitted by individuals or groups who were not part of the criminal trial, but have a stake in the case • American Civil Liberties Union may file a brief if a violation of constitutional rights is in question

Constitutional rights of juvenile offenders

In re Gault (1967), guaranteed juveniles the right to be notified of charges, to counsel, to confront witnesses, and protection against self-incrimination • Due process clause of 14th Amendment applies to juvenile defendants • Court ruled juvenile offenders were entitled to "fundamental fairness" In re Winship (1970), declared that "beyond a reasonable doubt" must be the burden of proof in juvenile court Breed v. Jones (1975), declared that juvenile offenders cannot be "adjudicated delinquent" and "found guilty" for same crime (violation of 5th Amendment double jeopardy clause)

Alternatives to Prison

In the U.S., about 7 million people are under correctional control • 2.1 million in jails and prisons • 5 million on probation, parole, community supervision Community corrections - criminal punishments that seek to manage convicted offenders in the community Alternatives to incarceration are cheaper and offer better outcomes for offenders, families, communities • Collateral consequences - indirect harms of incarceration on the families of offenders (child-parent separation, loss of income/health insurance, food insecurity, homelessness, post-release stressors)

Executions of the Innocent

It's impossible to know the extent to which we have (or will) execute innocent people who have been wrongfully convicted • One study estimated 4% of death row inmates were innocent of the crimes for which they were sentenced to die (Gross, O'Brien, Hu, & Kennedy, 2014) Currently, there are about 2,500 people on death row in the U.S. • 4% amounts to 100 potentially innocent people Since 1973, 186 people have been exonerated and released from death row due to evidence of wrongful conviction (DPIC, 2021) • Exonerate - to clear from guilt or blame; to reverse a guilty verdict

Jury Instructions, Deliberation, & Verdict

Judge informs the jury of: • The precise legal definitions of the alleged offenses ("first-degree murder") • What they must believe the defendant did in order to convict Jury must deliberate in a closed door session on whether the prosecutor proved its case beyond a reasonable doubt • Jury might take a "quick vote" before deliberating • Can ask the judge for guidance, review evidence and court transcripts • Can decide the defendant is not guilty of one crime, but guilty of another • The decision must be unanimous (Ramos v. Louisiana, 2020) Hung jury - cannot come to a unanimous decision; judge declares a mistrial; prosecutor can decide to try the case again with a new jury

Differences between juvenile and criminal justice

Juvenile court is not open to public (protects identity of juvenile) Traditional focus on rehabilitation, not punishment (therapeutic approach) • Priority is placed on keeping child out of custody • Less punitive, but with fewer procedural safeguards Offender is "petitioned to court" (not "indicted") Offender is "adjudicated delinquent" (not "convicted") Offender is "placed or committed" (not "incarcerated") Upon release, offender is put on "aftercare" (not "parole")

How has juvenile justice changed over the years?

Juvenile courts were developed to intervene in the lives of at-risk youth • Initial focus was therapeutic, not punitive • Central goal was to keep juveniles out of adult system Over time, juvenile courts became more punitive, mirroring practices in adult court • Transfers to adult court have increased for a wider range of offenses, resulting in more juveniles punished in adult court • The likelihood of adult court involvement has increased for (some) offenders in juvenile court, suggesting a shift away from original mission

Patterns in juvenile crime

Juvenile crime typically occurs in or around schools • Most crimes occur 3-6pm • Most crimes are committed against other juveniles • Property and drug crimes more common than violent crimes Violent juvenile offenders share similar characteristics • Exhibit signs of aggression before age 12 • History of family dysfunction (parental divorce/absence/addiction) • History of poverty, homelessness, food insecurity • Access to a firearm (75% of juvenile homicides involve a firearm)

Taken into custody

Juvenile suspects must be brought to a juvenile detention facility, unless police have a separate holding cell for juveniles at local jail Police must make an effort to notify parents immediately, promptly, without unnecessary delay, or within a given time period (varies by state law) • If police cannot/will not release juvenile to parents, juvenileis referred to court • Police are required by law to bring status offenders home (in most states) Presumption of release for juvenile suspects (in most states) • If released, parents must sign a document promising to appear in court at a later date

What is perjury?

Knowingly giving a false statement while under oath • It is a crime to lie under oath • It is also a crime to lie to police or federal officials in the context of a criminal investigation Suborning perjury - attempting to get someone else to commit perjury

Parens Patriae

Legal doctrine in Latin means "father of the country" • Established in Ex Parte Crouse (1839), PA Supreme Court case • Provided justification for the state to take into custody children who were neglected, abused, abandoned by their parents • Provided legal foundation for the establishment of juvenile courts Juvenile Court Act of 1899, created first juvenile court in Cook County, IL Commonwealth v. Fisher (1905), PA Supreme Court extended parens patriae, gave courts complete control of juvenile offenders (no procedural protections)

Era of Mass Incarceration (late 70s to 2000)

More people went to prison in the last quarter of the 20thcentury than in any period in American history • During this time, the U.S. became the country with the largest prison population in the world • This happened while crime rates were decreasing in the U.S. So, why were we incarcerating more people? • The war on drugs shifted law enforcement attention to drug abuse, which prior to 1970s was treated similar to alcoholism • A reduction in federal funding for mental health services lead to an increase in homelessness and CJ involvement among the mentally ill • A "tough on crime" mentality was considered a necessity for any politician running for office

Prosecutorial Misconduct

Once the prosecutor decides to take a case to trial, they have great discretion in how the case is tried, amidst pressure for a guilty verdict • Misconduct occurs when a prosecutor abuses their authority • Examples include: • Violation of Brady Rule - failing to disclose exculpatory evidence (evidence suggesting the defendant's innocence) • Using evidence in court that was (knowingly) obtained illegally • Asking/allowing witnesses to commit perjury (giving false testimony) • Prosecutors are rarely sanctioned for their misconduct and are protected from criminal prosecution by qualified or absolute immunity

The ______ system of prisons was characterized by solitary confinement and religious reformation.

Pennsylvania

Early prison models in America

Pennsylvania System (late 1700s) • Characterized by hard labor, religious reformation (penance), solitary confinement and mandatory silence • Eastern State Penitentiary (1820) was the first penitentiary built in America New York System (early 1800s) • Characterized by congregate (group) labor during day and mandatory separation and silence at night • Auburn Prison (1818) used military-style discipline and corporal punishment Neither model showed evidence of reform and overcrowding quickly became a problem

______ is a juvenile suspect's first contact with the juvenile court.

intake

Adjudication process

Pre-adjudication can be handled at a single hearing, typically an advisory hearing or status conference • Informal resolutions/agreements can be made during pre-adjudication Competency hearing - if juvenile's ability to form criminal intent (mens rea) is in question • Requires assessment of developmental maturity, mental health, cognitive ability Adjudication hearing - evidence of alleged offense presented by prosecutor, disputed by defense (similar to trial in adult court) • Juvenile can accept a plea bargain (in most states) Disposition hearing - determines plan of action if juvenile is adjudicated delinquent (similar to sentencing hearing in adult court)

A judge's sentencing decisions are heavily influenced by the _______ report.

Pre-sentence investigation

_____ is the effect of long-term incarceration that leaves inmates unable to function post-release.

Prisonization

Community Corrections

Programs that seek to manage offenders within their communities; with the threat of prison if conditions are not met • Community service/restitution - court ordered service work usually geared toward the offense • Home confinement/house arrest - restricts offender to home/property for set periods of time; may require electronic monitoring (paid for by offender) and checks-ins by probation officer • Levels of confinement vary from curfew, home detention, home incarceration • Diversion - offer treatment to offenders by placing prison sentence on hold, if treatment is completed and conditions are met, criminal case can be expunged (erased)

_____ discretion includes the authority to charge or not charge a person with a crime.

Prosecutorial

The rationales for punishment are complex

Rationales are not mutually exclusive • Criminal punishments often seek to serve more than one rationale • The death penalty is meant to incapacitate the offender and deter others from committing capital crimes Rationales do not always reflect the outcome of the punishment • Incarceration does more than incapacitate offenders, it also creates deprivation and suffering for families and communities • Similar to policing, our system of criminal punishment disproportionately impacts the poor and racial minorities • Mass incarceration maintains social, economic, and racial inequalities

Prison Populations

The U.S. has the highest rate of prisoners per capita in the world (the highest percentage of the population is imprisoned) and the highest number of prisonersoverall Currently, the incarceration rate in the U.S. is 700 per 100,000 • UK - 148, Australia - 133, Canada - 118, France - 100, Germany - 77 • 1.5 million people in state and federal prisons • 2.1 million in prisons and jails Most inmates are held in state prisons (most crimes are state offenses)

Rehabilitation as a purpose of criminal punishment

Rehabilitation is any effort to help offenders change their behavior, often by addressing underlying causes (addiction, mental health, poverty) • Substance abuse/anger management counseling, job training/assistance • Similar to deterrence and incapacitation, rehabilitation is future-oriented (use of punishment to prevent future crimes) • Focus is on the offender's likelihood of responding to punishment, not the nature or severity of the crime ("the punishment fits the offender")

______ justice emphasizes repairing the harm caused by the offender.

Restorative

______ is punishment for the sake of punishment, regardless of the potential impact.

Retribution

Retribution as a purpose of criminal punishment

Retribution • Punishment for the sake of punishment, regardless of the potential impact on the offender or society (i.e. general deterrence) • Based on ancient principle of "an eye for an eye" • Also known as the categorical imperative - society has a right to treat you the way you have treated others • Punishment fits the crime, not the offender • Justifies the use of death as a criminal sanction for anyone who commits murder, regardless of circumstances of crime or impacts of punishment

Jury Nullification

The jury has the power to acquit a defendant even if they believe he is guilty of the crime Originated in 17th century England as a way for juries to protest prosecutions they believed were unjust • In the 1800s, juries in the North used nullification in the trials of escaped slaves, and those who harbored slaves • During Prohibition, juries used nullification in the trials of those accused of violating alcohol control laws Controversial practice that gives juries great power to defy their oath • Acquittal of O.J. Simpson in the murder of his ex-wife was considered by many a response to systemic racism in the LAPD

The Prison Industrial Complex

The overlap of government and private interests that endorse surveillance, policing, and imprisonment as solutions to economic and social problems In the past 40 years, crime control has become a lucrative industry for public and private agencies • The U.S. criminal justice budget (currently $300 billion) has tripled since the late 1970s • Funding for policing and incarceration increased substantially after the "war on drugs" was funded by President Reagan in 1982 Much of the growth in prison industries has been driven by special interest groups (GEO, CCA) that seek billions of dollars in grants from federal and state governments each year

Objections to Evidence

The prosecutor and defense may object to evidence presented in court for a variety of reasons: • To convince the judge to "throw out" evidence that weakens their case • To disrupt their adversary's argument and seek to control the narrative • To establish a basis for appeal (judge made a reversible error in allowing the evidence at trial)

Inmate Code(s)

There is no single code (informal rules for behavior) that applies to all inmates However, research suggests a commonality in inmates codes: • Do your own time - stay out of other people's business • Keep your word - don't lie, steal, cheat, or go back on bets • Be "a man" - stand up for yourself when challenged • Don't trust guards - they are not your friends, protect your own Prison gangs have their own codes that may contradict one another, but help to maintain stability among gangs if members obey rules

Overcrowding

When prisons house more inmates than they were designed to hold Creates a number of issues: • Inmates have less access to rehabilitative/treatment programs • Increased tension/violence among inmates • Increase in tension/stress among prison staff Brown v. Plata (2011) U.S. Supreme Court ruled prison overcrowding was a violation of 8th Amendment protection against cruel and unusual punishment • Ordered prisons to reduce populations if beyond capacity; partially responsible for reduction in inmate population in recent years

Witnesses

Witnesses for the prosecution will be questioned by the prosecutor first, then the defense • Direct examination - the first line of questioning of the witness • Cross examination - the second line of questioning by the other side of the case Hostile witness - one that refuses to answer the questions asked or is antagonistic (uncooperative) • Leading questions are typically not permitted, except for hostile witnesses Defendants have a constitutional right not to "stand in their own defense" (do not have to testify in court)

An appeal of a criminal conviction must be based on _______.

a reversible error

Pre-trial

a series of events that begins with arrest, and ends with the start of a trial (jury is sworn in by judge)

The statement "There's a winner, a loser, and a referee" describes the _____ model of criminal courts.

adversarial

At the _______, the judge asks the defendant to enter a plea.

arraignment

In jury selection, the prosecutor and defense have an unlimited number of _______.

challenges for cause

_________ consequences are the indirect harms of incarceration on inmates' families and communities.

collateral

Pre-trial detention

defendant is held in jail until case is resolved; deemed a flight risk or danger to public safety

Release on own recognizance (ROR)

defendant is released without posting bail; deemed trustworthy and likely to return

______ is a request for access to evidence held by the prosecutor.

discovery

The ______ hearing determines the plan of action for an adjudicated delinquent.

disposition

t or f: U.S. states with death penalty statutes typically have lower murder rates than states without death penalty statutes.

false

A ______ jury is a group of citizens who determine whether there is enough evidence to file an official charge.

grand

________ is inadmissible in court because it violates the defendant's right to confront their accusers.

hearsay

A ______ witness is one that refuses to answer the questions asked or is antagonistic.

hostile

Bail hearing

if bail is not set at initial appearance or arraignment

Probation is community supervision _______ prison.

in lieu of

Either the prosecutor or the defense can make a ________ for a change of venue.

motion

Jury _______ is the power to acquit a defendant even if the jury believes they are guilty.

nullification

The purpose of the _____ is to provide the theory of the case.

opening statement

Jail

operated by city/county governments (not state-run) • Short-term facility; does not address long-term needs of inmates (fewer programs/resources than prisons) • Defendants awaiting trial who are denied (or can't post) bail • Convicted offenders serving short (less than 1 year) sentences • Juvenile offenders awaiting transfer to juvenile court • Mentally ill awaiting transfer to mental health facility • Immigrants awaiting transfer to deportation facility • Offenders being held on probation/parole violations until case is resolved

In ______ privatization, companies build, own, and manage prison facilities.

operational

The juvenile court equivalent to an indictment is a _________.

petition to court

_______ evidence consists of material objects that show guilt or innocence.

physical

Contract

private attorneys who agree to represent clients for a fee per case

Drug and mental health are two types of ________ courts.

problem-solving

In most states, there is a presumption of ______ for juvenile suspects.

release

Discovery

request for access to evidence held by the prosecutor

Dismiss

request to dismiss the case against the defendant (after discovery)

Change of venue

request to move the site of the trial outside the jurisdiction where the alleged crime occurred (due to concern over bias from local media attention or high profile defendant)

Suppress evidence

request to preclude the prosecutor from using a specific piece of evidence at trial

The age of ______ is the maximum age a juvenile court can have jurisdiction over a juvenile.

retention

Restorative Justice

• An alternative approach to justice that seeks to restore the victim and the offender • Rooted in non-Western (traditional African, Native American and Japanese) cultures • Emphasizes repairing the harm caused by the offender and reintegrating them into their communities rather than ostracizing/stigmatizing them • Victim-offender mediation - a form of RJ that brings the victim and offender together to discuss the harm caused and allow offender to express remorse • Victims often report higher levels of satisfaction with RJ and a greater sense of closure

Courtroom Staff

• Bailiff - law enforcement officer of the court; responsible for maintaining order and security in the courtroom • Clerk - head administrator of the court; responsible for keeping case records, scheduling cases, and administering oaths to witnesses • Reporter - records testimony of courtroom proceedings using a stenograph • Social workers/psychologists/translators - interview defendants, victims and witnesses, assist with testimony, provide recommendations to the judge (typically employed by court) • Advocates - accompany witnesses/victims to court proceedings; provide support, referrals to social services (typically employed by prosecutor's office or non-profit victim service agency)

Outcomes of diversion programs

• Children, families, and communities avoid the collateral consequences of incarceration • Offenders are less likely to recidivate (re-offend) • Diversion programs cost less than incarceration

The appellate court has three options:

• Conclude that the lower court was correct and deny the appeal • Conclude that the lower court made a harmless error that did not impact the outcome of the trial and uphold the conviction • Conclude that the lower court made a reversible error that puts the outcome of the trial in doubt • The court vacates the conviction and orders a new trial

Why are plea bargains problematic?

• Defendant may be pressured to plead guilty to a crime they did not commit out of fear of greater punishment • The constitutional right to a fair, impartial trial must be waived • If the defendant fails to waive this right and is convicted, they are often punished more harshly • "The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control" (Alexander, 2012)

Pre-modern forms of punishment

• Execution - one of the most common forms of punishment in human history; used for a wide variety of offenses (including minor crimes like theft, adultery) • Exile - forced exclusion from society, often resulting in death • Corporal punishment - inflicting physical pain on the offender's body (flogging, stoning) • Disfigurement - permanently marking offenders thru amputation or branding • Enslavement - sentencing offenders to forced labor • Humiliation - publicly ridiculing offenders (pillories, tarring/feathering, shaving head)

Recent efforts to reform sentencing

• Fair Sentencing Act (2010) eliminated the minimum 5 year prison term for possession of crack cocaine and reduced other drug-related mandatory minimums • Miller v. Alabama (2012) U.S. Supreme court ruled it was unconstitutional to sentence juvenile offenders to life in prison • Sentencing Reform and Corrections Act (2015) reduced prison sentences for non-violent drug offenders • Liberal and conservative law makers have been critical of a system that puts so many people behind bars and costs taxpayers so much money

Deterrence happens in two ways:

• General - convincing would-be offenders that the risk of crime outweighs the potential benefits of crime • Expelling a student from school for assaulting a classmate sends a message to other students that this behavior entails great risk • Specific - convincing actual offenders not to repeat their behavior • Giving a student an F for cheating on an exam without the class knowing of the sanction

Defendant has three choices when entering a Plea deal:

• Guilty - admission of guilt; no need for plea bargain or trial • Not guilty - opens up possibility of plea negotiation; if no plea, case goes to trial • Nolo contendere ("no contest") - no admission of guilt, but defendant does not contest the charges; protection from civil liability

Seeking alternatives to incarceration

• Historically, prison reform has been a progressive cause • In recent decades, political conservatives have criticized the cost of incarceration and called for alternatives • Reducing prison populations saves the government money and limits the government's reach into individuals' lives • Humonetarianism (Aviram, 2010) - a value-free, cost-centered approach to correctional policy based on the reduction of "big government" rather than moral or ethical concerns

Double Jeopardy

• If the jury finds the defendant not guilty, they cannot be prosecuted for the same crime again, even if new evidence is discovered • 5th Amendment clause banning "double jeopardy" • The defendant can be tried for a separate offense and can be sued in civil court for harm caused by the original crime

Classification

• Many state and federal prisons use a classification process to assess newly sentenced inmates and determine their skills, risks (violence, gang affiliation), and needs (mental/physical health, education) • Inmates can be re-classified during their incarceration and living situations can be adjusted (security level, access to jobs, programming) • Classification becomes part of the inmates' official record and is used in release decisions (early release, parole), along with disciplinary records

Types of Prison by Security Level

• Minimum security - designed for least dangerous inmates, unlikely to escape; dormitory like setting (federal prison camps) and freedom to move about • Low security - include a fenced/guarded perimeter and less freedom to move about • Medium security - "typical" prison with barbed wire fence/guard tower and a mix of prison cells and communal living; limited movement • Maximum (high) security - designed for dangerous inmates with high risk of escape; inmates stay in cells except to exercise/shower/meals • Supermax - the most secure facility in the U.S.; houses high profile federal inmates (Terry Nichols, Robert Hansen, Ted Kaczynski) who may continue to pose a threat to public safety

General deterrent effect of the death penalty

• Much of the research suggests that capital punishment does not have a general deterrent effect • States with death penalty statutes do not have lower murder rates than states without death penalty statutes • States with the highest murder rates are also those where the death penalty is most frequently used (TX, GA, FL, AL) • There are too many other factors that affect murder rates for the death penalty to have any measurable impact

Privatization is problematic

• Nominal privatization - granting contracts to private companies for specific services (food, healthcare, education) • Operational privatization - private companies build, own, and manage entire facilities • Expands beyond prisons and jails to include immigration detention, juvenile and mental health facilities, as well as community supervision • Includes multi-billion dollar companies with stocks traded on Wall Street (CCA) • Corrections is increasingly less about the goals of punishment (deterrence, rehabilitation) and more about financial profit • Private facilities offer staff lower wages and fewer benefits; results in poorer living/working conditions, higher rates of abuse, violence, and staff turnover

History of Punishment

• One of the most common forms of punishment used in the U.S. today was historically among the least common • Incarceration was not used as a criminal sanction in the U.S. before the 1800s • Prior to 1800s, punishments were more violent, gruesome, and publicly displayed • The purpose of punishment was to deter and incapacitate offenders

Indeterminate Sentencing

• Overcrowding and lack of rehabilitation lead to prison reform in the late 1800s • The practice of making prison terms indefinite gave inmates incentives to reform (release on "good time") • Indeterminate sentences were created as an alternative to fixed prison sentences • Probation and parole programs were developed around same time • Parole - supervised release from prison • Probation - supervised sentence instead of prison

Many pressures influence prosecutorial discretion:

• Politics - elected or appointed by elected officials • Justice - must ensure the law is enforced in a fair, impartial manner • Performance - typically evaluated based on # of convictions

Prison Life

• Popular images of prison (portrayed in entertainment media) do not represent what life is really like inside American prisons • Prison life is characterized by mundane activities (sitting in a cell, watching TV, waiting for meals or access to mail/phone calls) • Violence is real, but less common than perceived; more common in institutions with higher % of violent offenders and gang presence • Despite popular notions of rampant and random acts of violence, "time is the greatest enemy in prison"

Judges

• Primary responsibilities include making legal decisions before and during trial and administration of the courtroom • Part of the courtroom workgroup, must approve plea bargains and decide sentencing in plea bargain agreements • Elected or appointed by elected officials - creates political pressure to take cases to trial or sentence harshly (if demanded by public) • Research suggests elected judges give harsher sentences than non-elected judges, including more death sentences (Bright & Keenan, 1995) • Judicial activism - using judicial power to promote a political agenda

Inmate Demographics

• Prison inmates are disproportionately male (84%), African American (35%), and young (52% under age 40) • In state prisons, over half of the inmates are incarcerated for violent felonies (less than 20% for drug felonies) • In federal prisons, over half of the inmates are incarcerated for drug felonies (less than 10% for violent felonies)

Total Institutions (Goffman, 1961)

• Prisons are unique social places that seek to shape people by isolating them from the outside world and controlling every aspect of their existence • The goal of the institution is to control the individual's behavior at the most minute level, to both manage and change them • Military institutions and psychiatric hospitals have also been described as total institutions • When people leave prison, they are very different than who they were when they went in; creates barriers to life after prison

What is the courtroom workgroup?

• Prosecution and defense work together to settle cases without trial (process is cooperative, not adversarial) • Over 95% of criminal cases result in a plea bargain • Defendant pleads guilty to a lesser offense in exchange for less severe punishment • Common perception is that "everyone wins" in a plea bargain

Presenting Evidence

• Prosecution presents its evidence first (case in chief) • If the evidence does not meet the standard of proof, the defense can make a motion to dismiss the case • If not, the defense presents its evidence to cast doubt on the prosecution's case • The defense can also cross-examine the prosecution's witnesses • The judge or jury can only weigh evidence presented in court

What is immunity?

• Qualified immunity - legal principle that grants government officials who perform discretionary functions immunity from criminal prosecution or civil suit, unless the official violated "clearly established statutory or constitutional rights of which a reasonable person would have known" • Absolute immunity - legal principle that grants complete immunity from criminal prosecution or civil suit to government officials acting within the scope of their professional duty

Rehabilitation Era of Early-Mid 1900s

• Reforms of the early 1900s emphasized the use of psychology in the "treatment" of offenders • Prisons began using therapeutic approaches (psychotherapy, behavioral modification) to treat offenders who were viewed as "sick" • Activists challenged the notion that offenders were "damaged," instead suggesting they were victims of an unjust social order • Black Power Movement argued the mass incarceration of Black Americans was the product of a racist society, not offender "illness" • Political conservatives pushed for more retributive punishment in the 1970s, calling into question the value of rehabilitation efforts

Corrections and Special Topics

• The final section of the text examines criminal punishment and "corrections" • Corrections is a misnomer, as our system of criminal punishment (jail, prison, probation, parole) does little to "correct" behavior • Before we can understand why punishments fail to correct behavior, we must examine why we punish in the first place

Racial disparities in capital sentencing

• The percentage of African Americans on death row (42%) is greater than the percentage of African Americans in total U.S. prison population (NAACP, 2018) • The cases most likely to result in a death sentence involve a black defendant and a white victim, even though they represent a small fraction of all murders • Among people executed for interracial murders since 1976, 20 were white defendants convicted of killing a black victim, and 290 were black defendants convicted of killing a white victim (DPIC, 2019)

Receiving a Prison Sentence

• The sentencing process begins once a defendant pleads guilty to or is convicted of a crime • The judge determines punishment, except capital cases in which the jury determines whether the defendant will be sentenced to death • Sentencing decisions rely heavily on the pre-sentencing investigation (PSI) report • PSI is prepared by a probation officer who works for the court and examines the defendant's background for the purpose of making a sentencing recommendation to the judge • Victim impact statement - an oral or written statement provided by the victim (or victim's family) to explain to the court how the crime impacted their lives

Amount of bail is typically based on defendant's:

• Ties to the community (job, home, family, children) • Seriousness of alleged crime • Criminal history

What is the adversarial model?

• Two opposing sides (prosecution and defense), each presents counter arguments to a neutral third party • Judge (finder of law) or jury (finder of fact) • "There's a winner, a loser, and a referee"

Defense Attorneys

• While prosecutors represent "the people," defense attorneys represent only their clients • Zealous defense - fighting for the client's best interests within the confines of the law and legal ethics • The client's guilt or innocence is less relevant than their right to counsel • 6th Amendment right to legal representation in a criminal prosecutio • Gideon v. Wainwright (1963) U.S. Supreme Court extended this right to defendants who cannot afford an attorney

Support for capital punishment and racial hostility

• White Americans are much more likely to support capital punishment than any other racial/ethnic group (Smith et al., 2018) • Fear of and negative attitudes toward African Americans correlate with support for capital punishment (Soss, et al., 2003) • African Americans' lack of support for capital punishment is often rooted in the American history of lynching and perceptions of racial bias in the system (Unnever and Cullen, 2007) • Feelings toward capital punishment in the U.S. are "heavily racial"

Public defender

• employed by the state to represent indigent defendants • Eligibility determined by defendant's income • Part of the courtroom workgroup - must maintain relationships with prosecutors • Often burdened with large caseload and limited resources

Initial appearance

• judge informs defendant of charges alleged by police, asks about legal representation, and sets bail • Ensures defendant is not being held without justification and is aware of rights

Arraignment

• judge informs defendant of official charges filed by prosecutor and asks defendant to enter a plea • Typically, first hearing at which defendant has legal representation

Pro bono attorney

• offer legal services free of charge to defendants who cannot afford legal representation • Pro bono ("for the common good") work is considered part of lawyers' professional responsibility

Criminal defense

• private attorneys who only represent criminal defendants • Highest paid, access to greatest resources, most likely to secure best outcome for client