POSC 432: Criminal Justice Final Exam

News Accounts Regarding Bail System

"America's bail system: one law for the rich, another for the poor." - The Guardian, 14 Feb., 2013 - "it is no secret that the best quality justice is generally reserved for those who can afford to pay for it." "America's justice system runs on an exchange of money for freedom. Some say that's unfair. But can data fix it?" - NBC News Report, 22 August, 2017 - NJ bail is now determined by complicated algorithm: a formula runs criminal history of suspect which is "given a numerical weight and then boiled down to two numbers that appear on the judge's computer screen. They often dictate whether the suspect is a low risk of skipping court and/or committing a new crime of high risk "The Problem With Bail" - Slate, 11 June, 2015 - "in practice, [bail] has become nothing more than a shockingly effective way to coerce guilty please from poor people." "California's bail system punishes the poor, and its time for the government to do something about it" - LA Times, 16 Jan., 2017

History of Bail in America

"By the ancient common law, before and since the conquest, all felonies were bailable, but murder was excepted by statute," so persons were admitted to bail before conviction in almost every case... - Blackstone - In England, sheriffs originally determined whether to grant bail to criminal suspects. Initially it was based on the "fine" which the criminal process might impose - Once criminal sanctions became more punitive, bail was rarely granted, so Parliament passed a law defining bailable offenses - Finally, the English Bill of Rights (1689) held that "excessive bail ought not be required." - In colonial America, some courts nonetheless set excessively high bails -- which means, a bail that the Defendant could not meet With passage of the Judiciary Act of 1789, specific types of crimes identified as bailable - the act provided that all non-capital crimes are bailable and that in capital cases a decision to detain a suspect, prior to trial, was to be left to the judge

DOJ Report Explaining Modern Movement to Restoration

"Crime was once defined as a 'violation of state interest.' This remains the case today, but we now recognize crime is far more. It is --among other things-- a violation of one person's rights by another. While retributive justice may address the first type of violation adequately, restorative justice is required to effectively address the later..." Thus through restorative justice, we seek to attain a balance between the legitimate needs of the community, the offender and the victim

White Collar Crime Has Diversified

"Despite Sutherland's initial definition of white collar crime... this phenomenon should NOT be understood in terms of corporate fraud alone. Though the underlying attributes (deception and a lack of physical force) remain constant, the means of commission have evolved and the individuals responsible have proliferated across socio-economic strata... These fraudulent activities are now so common as to affect the general public on a day-to-day basis." Therefore, white collar crimes are defined "as illegal or unethical acts that violate fiduciary responsibility or public trust for personal or organization gain and which do not involve violence, threats of violence or illicit substances."

Defining Statement of White Collar Crime

"Persons who violate laws regarding restraints of trade, advertising, pure food and drugs, and similar practices are not arrested by uniformed policemen, are not tried in criminal courts, and are not committed to prisons; this illegal behavior receives the attention of administration commissions and of courts operating under civil or equity jurisdiction. For this reason such violations of law are not included in the criminal statistics nor are the individual cases brought to the attention of scholars who write theories of criminal behavior." - Edwin Sutherland (1939)

Counterargument to reducing dependence of system on financial bonds

(1) Algorithms don't work (2) Use of the federal system of PSA review is too resource intensive (3) Corporate bondsmen perform useful service because they track and delivery defendants who abscond from court - Who you gonna call? (4) Alternatives fail to adequately protect public safety (murder case above^^^)

Equal Protection - Three Fundamental Values

(1) All persons should be treated equally, fairly and without regard for: - race, ethnicity, religion and/or other protected classes - income - indigent are every bit as entitled to due process and an effected defense as the rich and affluent (2) No one should be punished unless and until a conviction is obtained with all Constitutional Protections provided (3) "Presumption of innocence" must be respected. Supreme Court has cautioned that in "out society, liberty is the norm, and detention... without trial is the carefully limited exception." - any coercive actions taken by the state in advance of conviction (before due process) that infringes on any of the foregoing must be done in accordance with Least Intrusive Means Test

Purpose of Juvenile Proceedings

(1) Ascertain truth of allegations petition filed by district attorney (similar to criminal complaint) (2) Preserve and promote child's welfare (3) Provide care, treatment and guidance in the child's best interest (4) For minors (under 18 years old at time of commission of the offense

Five Ways to AVOID Financial Scams

(1) Be skeptical of all claims made: ask for everything in WRITING (2) Do your homework: ask for documentation - Ponzi schemes do not keep financial records nor do they have audited financials - Check SEC websites for list of persons enjoyed "officers or directors" - Ask what accounting firm audits the company - Google the principals of the company (3) Visit the company's physical premises (4) Always check out unfamiliar companies or persons with local consumer protection agency, Better Business Bureau, state Attorney General, the National Fraud Information Center, etc. Unfortunately, not all bad businesses can be identified through these organizations though (5) Never give out personal information over the phone or internet

Various Types of Bail:

(1) Corporate or Surety Bond (2) Release on Own Recognizance (ROR) (3) Cash Bail (4) Appearance Bond (unsecured) (5) Citation Release also known as "Cite Out" (6) Property Bond (7) Immigration Bond

Questions to Consider

(1) Should judges be "activists?" i.e. combine executive and legislative branch responsibilities to improve the penal system? (2) Is it appropriate for judges to focus on so-called "inmate rights" rather than be concerned about punishment and the impact on victims and their families? (3) Is it DEMOCRATIC for judges to mandate that the States spend more money to improve conditions in prison or face the threat to public safety caused by release order? (4) If the Courts don't force states to adhere to Constitutional standards, who will?

Bail Releases: State vs. Federal

(1) DOJ publishes report on Federal Pretrial Release (2012) - 71% of Defendants whose charges involved property crimes released pretrial; - 65% of Defendants who were charged with public order crimes released - Only 38% charged with drug offenses - 32% charged with weapons violations - 30% charged with crimes of violence - 12% with criminal immigration charges - 20% of defendants charged with drug crimes were released after detention hearing, while only 18% were released at initial appearance (2) 75% of the federal criminal defendants who were released pretrial were released using non financial methods such as person recognizance or unsecured appearance bonds - Compare 12% were released on a deposit bond - 8% on Surrey bond, and 7% collateral bond. Courts imposed conditions--such as travel restrictions, mandatory substance abuse treatment, weapons prohibitions or employment requirements--on 79% of those released pretrial (3) Pretrial releases according to the economic circumstances of the defendant not reported. However, it can be expected that the rich rarely see jail while the poor often remain there for long periods

After Bail Reform Act of 1984 - Federal Bail Was Determined in A Four Step Process

(1) Defendant Arrested on Warrant or PC Arrest: - No bail schedule federally - defendant arraigned within 72 hours - At first appearance Magistrate sets bail based on PSA report which allows bail determination based on four factors: seriousness of crime, ties to the community, the flight risk posed by the defendant, and the danger posed by the defendant to his or her community (2) Pre-trial Services Agency Interviews Defendant - Provides report to the Court with bail recommendation - "Condition of combination of conditions" may be imposed to: - Assure public safety & mitigate flight risk - Conditions may include... intense supervision by PSA, travel restrictions & GPS monitoring, Drug testing (3) Court Hearing / Arraignment to Set Bail - Court hearing within 72 hours of arrest - bail set (until government moves for detention): - Appearance Bond (AB) with cash deposit usually established - In flight risk present, AB secured with deeding of property - Conditions of release to provide assurances (4) Or Detention Hearing held where government is must "prove by clear and convincing evidence" that no condition of release would reasonably ensure that the defendant would appear for trial and not pose a risk to the community

How Bail is Determined in California - Bail By Schedule

(1) Defendant arrested on warrant or PC Arrest - Bail schedule comes into play (2) If arrested for Domestic violence in LA - Schedule recommends $50,000 bond - Defendant remains incarcerated until bond is posted - Can request bail review by Superior Court (3) Court hearing / bail review can take up to 72 hours

Five Kinds of Juvenile Court

(1) Delinquency (criminal only) (2) Dependency (crossover between civil and criminal) (3) Informal Juvenile (4) Youth (teen) Courts (5) Adoption/Custody & Visitation

Bernie Madoff, A WALL STREET INSIDER

(1) Founder: Bernard L. Madoff Investment Securities LLC (2) Prestigious: "company is a securities broker dealer with offices in NY, NY a leading international market maker. The firm has been providing quality executions for broker-dealers, banks and financial institutions since its inception in 1960." (3) Company was BIG: "[with] more than $700 million in firm capital, Madoff currently ranks among the top 1% of US Securities firms" (4) Madoff was Wall Street heavyweight -- former Chairman of the Board of Directors of the NASDAQ stock market (5) Company was reputable: "clients know that Madoff has a personal interest in maintaining an unblemished record of value, fair-dealing, and high ethical standards that has always been the firm's hallmark."

Key Elements of a Ponzi Scheme

(1) No legitimate underlying business: source of "income" = new investors' money $$$ (2) Fraud: false promises of extravagant rates of return. Typically 20%-50% per annum (3) Old investors paid off with "new" money (4) The "pyramid scheme" must collapse - typically scheme fails within 1 year or less due to exponential growth (5) Schemers (almost always) go to jail

Distinguish from ADULT Criminal Proceedings

(1) Order of Wardship is NOT Conviction Of a Crime (2) No Right To Jury Trial (3) Trial is a "Jurisdictional" Hearing (4) Sentence called "Disposition" (5) Incarceration Intended to Promote Rehabilitation (6) Juvenile Not Entitled to Bail (presumption at initial hearing however: release to care of family) (7) Probably Cause Must Be Made to Detain Minor Within 72 Hours (8) Generally Proceedings Are CLOSED To Public, but some limited press access (9) Waiver of Counsel For Minor Almost Always Denied (10) Juvenile Court Hearing Officers Need Not Be Judges (11) Failure to Appear By Parents Or Guardians In Juvenile Court May Result in Arrest Warrants For Parents/Guardians and Minors (parents must be present for all hearings) (12) Eighth Amendment Issues - People v. Perez (2013) upholding 30 year sentence on juvenile who was 16 when committed sexual offense

What does the media do that is potentially harmful to a Defendant's rights?

(1) Prejudge a case - 6th Amendment Violations (2) Distort the facts in reporting trial testimony (3) Can excessive pretrial publicity taint the jury pool? (4) Invade a defendant's privacy (5) Publicity may harm minor (victim) witnesses by reporting salacious or embarrassing facts (6) Can cause lawyers to "showboat" Isn't the simple solution to close those portions of trials considered "sensitive?"

Does race affect the outcome of bail decisions?

(1) Research suggests answer is "YES" - research on bail practices has shown that both legitimate factors, such as offense severity and prior criminal record, and demographic factors such as race and age, exert a significant influence on bail decisions and outcomes - Black and Hispanic defendants are more likely than their white counterparts to have to pay a financial bail requirement (2) According to California Supreme Court Report - Research indicates that Black and Hispanic defendants are more likely to detained pretrial than are white defendants - Blacks are 3.6% more likely to be assigned monetary bail than white defendants and... receive bail amounts that are $9,923 higher

Does race affect other key decision points of criminal justice system?

(1) Research suggests the answer is "YES" - Racial disparities exist at every stage of U.S. criminal justice system. Black persons are.... - more likely to be stopped and searched for contraband - more likely to experience police force - more likely to be charged with a serious offense - more likely to be convicted - more likely to be incarcerated (2) Blacks more likely to be convicted of capital crime and sent to Death Row -- 41.5% of persons on death row are black, compared to 42.5% white - Blacks make up 13% of the population, but make up 42% of death row and 35% of those executed

Five principle goals of SENTENCING

(1) Retribution (2) Deterrence (3) Incapacitation (4) Rehabilitation (5) Restoration / Restitution

What is White Collar Crime & how is it different from "Street Crime" (or Blue Collar Crime)?

(1) Status of offender: - White: upper socioeconomic class - Blue: lower class (2) Means / Methods of committing offense - White: fraud, false statements & deception - crime by pen or computer - Blue: violence - crime by guns & use of force (3) Enforcement mechanism - White: administrative, civil or regulatory - if law enforced at all - Blue: criminal enforcement (4) Stigma of enforcement mechanism - White: low stigma - viewed as a cost of doing business - Blue: high stigma - penal sanctions: loss of liberty, prestige, family (5) Resources used in defense of enforcement action - White: very high -- high powered defense attorneys - Blue: minimal - constitutional standard of effective representation, low (6) Sanctions after process applied - White: minimal, sentences low - Blue: severe, sentences high

In California Criminal Cases, PC 1275 Sets Forth Factors For a Court in Setting Bail

(1) The protection of the public; (2) The seriousness of the offense charged; (3) The previous criminal record of the defendant; and (4) The probability of his or her appearing at trial or hearing of the case The Penal Code stipulates that ensuring "public safety shall be the primary consideration."

Why have bail at all? Purpose of bail in criminal matters:

(1) To provide assurance that defendant make all court appearances (2) To enable defendant to cooperate with his attorney thus "permitting an unhampered defense" (3) To "prevent the infliction of punishment prior to conviction" (4) To prevent flight: ensure defendant will submit to his sentence if found guilty (5) To safeguard community by assuring that the defendant will not commit more crimes while awaiting trial

George DeVincenzi

*Alcatraz* --> Formerly a military fortress and prison 1934-1962, it was transformed into a penitentiary A guard at Alcatraz from 1950 to 1957, related that the proximity of California culture drove many prisoners nearly INSANE: "Yachts circled the island, and men on the third tier of C and B blocks could see girls in bikinis drinking cocktails," he said. "I was so near, and yet so far." "In all, eight people were killed by inmates at Alcatraz. One guard was murdered in an assault in the prison's laundry room in the late 1920s, and two others died during an attempted breakout in 1946. Five inmates were killed in random attacks. Five other prisoners committed suicide." DeVincenzi witnessed a killing on his first day as a guard. He'd been assigned to the prison's barbershop.. Early in his shift, as he was watching an inmate shave another with a straight razor, all hell broke loose.

Cost of White Collar Crime

- "True extent and expense of white collar crime are UNKNOWN."** - 1976 Joint Economic Committee of Congress estimated the cost of certain white collar crimes to be $100 billion - 2006 monetary estimates from the Federal Bureau of Investigation & Association of Certified Fraud Examiners approximated annual cost of white collar crime to be between $300 and $660 billion - 2016 Report commerce Department -- $895 billion in fraud losses - Billy Madoff Scheme = $20-$50 billion - Compare: FBI estimate cost of all bank robberies in U.S. in 1992 - $35 million

Mitchell Sims aka "The Human Ashtray"

- 30 years, 6 months on death row - Sims and a partner killed a pizza delivery man, stole his uniform and then robbed the pizza restaurant where he worked, locking the employees in a locker

Varieties of White Collar Crimes Per FBI

- Adulterated food, drugs or cosmetics - Anti-trust violations: Restraint of trade, price fixing or market allocations - Bank fraud: writing bad checks, check kiting, mortgage fraud, money laundering - Child pornography - Computer crimes or cyber crime - Counterfeiting U.S. currency - Environmental law violations - Credit card fraud

When can Bail apply?

- After an arrest - After criminal charges are filed - After conviction by pending appeal

Massive Fraud Schemes - ENRON

- Enron: Securities Fraud - manipulating company's books to hide poor financial results, losses, missed profits - Collapse of energy company in December 2001 precipitated what became "most complex white-collar crime investigation in the FBI's history." - Top officials at the Houston-based company cheated investors and enriched themselves through complex accounting gimmicks like overvaluing assets to boost cash flow and earnings statements, to enhance attractiveness to investors - When Enron declared bankruptcy in December 2001, investors lost millions, promoting the FBI and other federal agencies to investigate - Magnitude of the case prompted creation of the multi-agency Enron Task Force, headed by DOJ and FBI

What did these factors lead to?

- Essential qualities of all criminal fraud schemes: "TRUST." The is why we call them Con Men for "Confidence" which is what they develop - Few questioned whether Madoff was actually capable of doing what he claimed to be doing - delivering consistent yields in good markets and bad - Actually one person did question what Bernie was doing: This person wrote a report to SEC in 2001 which claimed that Madoff's Scheme must either be a Ponzi or securities fraud.. SEC all but ignored it

How Prevalent is White Collar Crime Now?

- Estimated that approx. 36% of business and 25% of households are victims of white-collar compared with 8& estimated prevalence rate of property crime - Embezzlement rarest forms of white collar crime, accounting for just 6.5 arrests per 100,000 persons - Individual victims are the most common targets of white collar crime (WCC) - accounting for 75% of all reported incidents - Rarest form of white collar crime that is investigated: bribery which accounts for less than 1% of WCC

Why are Criminal Prosecutions for Financial Frauds Falling?

- Federal prosecutions for financial institution fraud have continued by downward slide despite the financial troubles - Based on comparisons of the number of defendants charged with financial institution fraud offenses are based on case-by-case information obtained by the Transactional Records Access Clearinghouse (TRAC) under the Freedom of Information Act from the Executive Office for United States Attorneys

What factors would you argue in getting the trial court to allow cameras?

- First Amendment will NOT get you there. Same constitutional dialog that applied in media access - CA Courts allow TV coverage if Court approves: the "camera rule," provides judge with discretion to allow cameras and other recording devices into their courtroom. There is a process for media when making a request

Barriers to Successful Rehabilitation

- Lack of Education - Abuse of Psychotropic Medication - Lack of Adequate Facilities - Lack of Funding - Lack of Trained Personnel - Courts are Overwhelmed: each judge has over 1,000 cases - Staff and defense attorneys also overwhelmed; may not meet "client" until time of actual hearing

Prisoner's Rights Revolution

- Legal trend began in 1960s - coincided with the Civil Rights Movement - Cooper v. Pate --> 1964; landmark decision; supreme court ruled that prisoners could file a lawsuit in federal court against prison officials for violating their constitutional rights - Based on the Civil Rights Act of 1871 - Courts retreated from the former policy of hands off - prisoners now had rights - Lawsuits began to challenge various aspects of prison life - Quality of healthcare, prison overcrowding, excessive force

Features of Retribution

- Point of retribution is NOT deterrence, but satisfaction.. some might say "justice" - Part of the social contract that takes vengeance out of the hands of private parties and makes punishment solely a prerogative of the state - Source of Victims' rights -- victims are deemed to hold salient interests in the application of "just deserts" to offenders

Death Penalty Pros

- Promotes confidence in the Justice system: almost 70% believe in swift, sure punishment for deserving criminals - Retribution: societies have always imposed the ultimate penalty for the ultimate crime (eye for an eye) - Cost savings: some argue that swift and sure executions are much cheaper than a lifetime sentence - Protection of the community: general and specific deterrence

State Objectives in Sentencing

- Protecting society - Punishing defendant - Deterring others by demonstrating consequences - Encouraging defendant to live law abiding life - Preventing defendant from committing new crimes by isolation - Securing restitution for victims - Uniformity in sentencing

Delinquency Proceedings

- Roots are from the English Common Law System - After age 14, minors are treated like adults and punished like adults In 1800's, thinking began to change: special juvenile facilities opened to protect minors from abuse; progressive movement at the turn of century caused development of Separate Court System; emphasis based on rehabilitation, not punishment; first juvenile court was in Cook County (Chicago); these courts initially marked by more informal setting when judges had much discretion

Which Federal Courts allow cameras?

- Supreme Court? No - Federal Circuit Courts? Yes, some allow - 9th Circuit has been live-streaming arguments for years - District Courts? Judicial Conference in March 2016 authorized 3 districts in the 9th Circuit to allow cameras a pilot project (CA Northern, Washington Western, and Guam) to provide longer term data and information on practice

California Prison Overcrowding Case

- The suicide rate in CA's overcrowded prisons is nearly TWICE the national average - 15 year legal battle over whether the state's prisons are failing to provide human medical care for the 165,000 inmates "In December 2010, the problems of CA's prisons... moved to a national stage where the supreme Court heard the state's challenge to an extraordinary court order that would require the prison population to be reduced by about 25% in two years. That could mean releasing or transferring more than 40,000 inmates, state lawyers say." Two separate lawsuits by inmates ultimately were merged before a three-judge District Court to consider whether a mandate to free prisoners would ultimately be necessary to meet the health threat. The state's prisons are operating at close to twice their actual design capacity. - Federal Court ordered CA to reduce over-crowding from peak of 196% of design capacity to 137.5%, within two years: effectively a release of 40,000 prisoners

Prison Overcrowding

- US has the highest rate of imprisonment in the world - mass incarceration - Prison overcrowding - social phenomenon when the demand for space in prisons in a jurisdiction exceeds the capacity available' - In Texas, since 1992, prisoner population has more than doubled - California currently has 120,000 inmates Total federal: 221,000 (down from 225,000)

Nebraska Press Association v. Stuart (part 1)

1976 - Facts: gruesome multiple murder in small town where the suspect confessed to police and the media was posed to report on it Defendant and prosecutor jointly asked court to forbid the media from reporting salacious details - Initial issue? Order forbidding press to report on certain aspects of trial -- aka a "prior restraints" constitutional? Holding of Supreme Court Nebraska Press was that the media may not be enjoined from publishing information obtained during open court proceedings even it it was strong implicative of guilty - in response, many courts began to close court proceedings

Richmond Newspapers v. Virginia

1980; Richmond Newspapers argued that the closure went too far: the Supreme Court held trial court may not close the trial to public due to presumptive public right of access - 7-to-1 decision: held right to attend criminal trials was "implicit in the guarantees of the 1st Amendment." The court held that the First Amendment encompassed not only the right to speak, but also the freedom to listen and receive information

Samuel Moses Nelson

15-year-old on trial for breaking into a neighbor's house and killing the resident; during interrogation he kept asking to speak to his mother but the officer continued questioning: the CA Supreme Court ruled that he didn't invoke his miranda right to be silent because his request was "ambiguous"

Scopes Trial: Monkey Trial

1925: AKA State of Tennessee v. John Thomas Scopes; was a landmark legal case in which high school science teacher, John Scopes, was accused of violating Tennessee's Butler Act which made it unlawful to teach evolution in any state-funded school He was recruited to stand as defendant and represented by lawyer Clarence Darrow. He was found guilty, but the verdict was overturned on a technicality and he went free The trial drew intense national publicity (why? big-name lawyers representing each side). William Jennings Bryan, three-time presidential candidate for the Democrats, argued for the prosecution. The trial pitted modernists, who said religion was consistent with evolution, against fundamentalists who said the word of God as revealed in the Bible took priority over all human knowledge.

Wolf v. McDonnell

1974; claims made to challenge prisons procedures about disciplinary measures; due process clause applies where inmate faces serious charges and punishment, including solitary confinement; notice of charges, right to call witnesses, neutral decision maker, counsel or "jail house" attorney as a substitute - Prisoners entitled to use of law library, plus pens and paper and postage stamps - Class actions began to be filled: inmates purported to represent others "similarly situated" or in the same correctional system - Judges would order charges to be made and would sometimes retain jurisdiction for years or decades as a result of "Consent Decrees"

Globe Newspapers v. Superior Court

1982 - Question: What if the criminal action involved really sensitive issues? In Globe Newspapers, a state law excluded the public from attending courtroom testimony of minor victims in sex-offense trials - legitimate interest? child victim testifying - what can the court do to protect the rights of innocent participants? (particularly victims) - court struck down law as violation of 1st Amendment Limited areas of closure may be okay, if justified by the "compelling government interest" - narrowly tailored - But now strong presumption against court closure

Lewis v. Casey

1996; Prisoner must show that the claimed deprivation (i.e. no law library) actually hindered his ability to make his case in court - Legal standard: "deliberate indifference," e.g. must show intent of the prison administration, that is, officials actually knew of risk and disregarded it - Inadequacies in prison legal services aren't enough

Kent v. U.S. (part 1)

1996; held that if a minor is to be tried criminally there must be following protections if potential punishment includes loss of liberty Due Process akin but NOT equal to Adult Due Process: - (1) notice of charges - (2) right to counsel - (3) confrontation clause - (4) privilege against self incrimination - (5) but: no jury trial

Federal Authorities Cut Back on Resources to Investigate White Collar Crimes

2008 - Cutbacks hamper FBI investigations of financial crimes "The FBI is struggling to find enough agents and resources to investigate criminal wrongdoing tied to the country's economic crisis, according to current and former bureau officials." "The bureau slashed its criminal-investigative work force to expand its national-security role after the September 11 attacks, shifting more than 1,800 agents (nearly 1/3 of all agents in criminal programs) to terrorism and intelligence duties."

Bail Governed Both By Bill of Rights and Statute

8th Amendment prohibits excessive bail but does not set forth what bail amounts would be deemed so under what circumstances Colonial politician Samuel Livermore commented "the clause seems to have no meaning." Several principles: (1) No "right to bail." Preventive detention authorized by the Bail Reform Act of 1984, which the Supreme Court upheld in U.S. v Salemo 1987. Court held that the only limitation imposed by the bail clause is that "the governments proposed conditions of release or detention not be excessive in light of the perceived evil." (2) In CA, the CA Constitution establishes the right to obtain release on bail from pretrial custody. It specifies certain crimes where bail is unavailable: it prohibits the imposition of excessive bail as to other crimes, and sets forth the factors a court shall take into consideration in fixing the amount of the required bail

Bureau of Prison (BOP) Organized in 1930s (also when FBI was created)

90 institutions across the US holding less than 200,000 prisoners - ADX Florence Called "SuperMax" - U.S. Penitentiary - high security - Federal Correctional Institutions (FCI's) - Prison Camps - Currently some privately run federal prisons (Taft) Education programs for federal inmates: GED, ESL, Parenting, Therapy, Residential Drug Abuse Problem, Adult Education, Occupational Training, Religious Programs

Rhodes v. Chapman

A 1981 U.S. Court decision that overcrowded conditions resulting in two inmates housed in cells designed for one person was not a violation of the Eighth Amendment right of protection from "cruel and unusual" punishment. - "The Constitution does not mandate 'comfortable prisons'"

Bail

A Fundamental Constitutional Right The temporary release of an accused person awaiting trial, sometimes on condition that a sum of money be lodged to guarantee their appearance in court The release of an individual following an arrest upon their promise - secured or unsecured, conditioned or unconditioned - to appear at subsequent judicial criminal proceedings, including surrendering to jail if sentenced An accused may be denied bail if he is unable to satisfy the conditions set for his release. He also may be denied if the court concludes that no amount of security or combination of conditions will suffice to ensure public safety or the defendant's court appearances

Determinant or Mandatory Sentencing

A principle problem of the former scheme of sentencing was that the judge was left to his or her own discretion in imposing an appropriate term of incarceration: - individualized justice was highly valued but led to substantial sentencing discrepancies - sometimes it became a product of racial biases So, legislation passed to reduce judges discretion - The Sentencing Reform Act, part of the Comprehensive Crime Control Act of 1984: federal statute intended to increase consistency in federal sentencing

Ponzi goes BIG TIME: 2008 Madoff Scheme

Affinity Fraud - targeting inter-related groups - different marketing approach: Elitism - potential investors would be told that "You Can't Join Our Club" Relatively modest rates of return, but still unrealistic: 12-20% without regard to market conditions -- in good markets 7 bad - Mystery: Madoff claimed to use sophisticated methods like complicated hedges to accomplish high returns Use of establishment credentials to bolster confidence Scheme remarkable in 2 respects (1) length of time - 20 YEARS (2) amount of loss - $20-$50 BILLION

Do the algorithms work?

Arnold Foundation says it DOES: "Preliminary data indicate that the PSA has the potential to produce a positive impact. For example, in Lucas County, Ohio, pretrial crime is down and more people are returning to court since the county began using the risk tool. More people who belong in jail are behind bars, while more who don't are released on their own recognizance. This means the system is fairer and the community is safer." SF County District Attorney's Office says YES: "During its first 15 months of implementation, just 6% of defendants released by the PSA were arraigned for a subsequent crime; 20% failed to appear in court." There are of course instances in which the algorithm didn't work.. for example: Edward French - murdered by a defendant who had earlier been arrested on a gun charge

Donald Gerald Schmidt

Arrested in 2012 in Long Beach - was paroled but then arrested in January 2012 for allegedly violating the conditions of his release 37/39 at the time of trial OLDEST defendant ever in California's juvenile justice system; was only 16 when he molested and drowned a 3 year old girl while high on meth

DP in USA Since 1977 - On the Decline

As of March 2021, DP authorized by 27 states, the federal government, and the U.S. Military. The 33 jurisdictions without the DP include Virginia, DC, Alaska, Hawaii, Iowa, Maine, Massachusetts, Connecticut, Michigan, Minnesota, New Jersey, NY, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin and New Mexico Delaware outlawed DP in 2016; Maryland in 2013; CA suspended imposition of DP in 2019 In 2008, the Nebraska Supreme Court ruled that the use of the electric chair as a method of execution violated the states constitution. Nebraska now only uses legal injection - 11 people on death row In 2004, the NY Court of Appeals ruled that the existing death penalty procedures violated the states constitution. NY Legislature has made no effort to change the procedures, effectively eliminating the DP in the state Only one state still has the firing squad In 2000, 3,593 inmates on death row -- highest of the last 45 years # of Executions since 1975: 1532

Proposals for Reform: SB No. 10 (Part 2)

Bail Bondsmen: "This is not all about saving the bail industry. This is about the taking away of a constitutional right [to bail] that people had, and now there is only one way out of jail, and that is if a judge decides to let you out." - Greg Padilla. Backers of the proposal: "We knew this historic step forward for civil rights wouldn't come easy, because it threatens the business model of a predatory and racially biased bail industry. We won't stand by while mothers are forded into guilty pleas because there's no one to care for their children while they wait in a jail cell to prove their innocence." - Roxanne Sanchez, president of Service Employees international Union California

(4) Appearance Bond (unsecured)

Bond is signed by defendant in an amount set by the court, but is not paid by the defendant unless the court orders it forfeited - Common in federal courts and in many jurisdictions that as of 2012 prohibited surety bail bondsmen. Some courts insist on "cash deposit" be provided to the court. Cash deposit is refunded if the defendant adheres to the conditions of bail - Appearance bond may be secured with deeding of property, which is also returned to defendant following conclusion of case.. only 1% of cases in CA chose this option!

Proposals for Reform

California Supreme Court Reform (1) Abolish or reduce reliance on Money Bond System-- Bail Bondsmen: "implement a robust risk-based pretrial assessment and supervision to replace the current monetary bail system." (2) Keep risk-based preventative detention (3) Establish pre-trial services agency to do review and recommendation (4) Use a validated pre-trial risk assessment tool (either discard or reduce reliance on the bail schedule) (5) Make early release / detention decisions

Press Enterprise I & Press Enterprise II Cases (1984 and 1986)

Court reviewed a trial court's closure of a six week void dire in a rape and murder trial of a teenage girl... the trial court also sealed the transcript Supreme Court applied "strict scrutiny" test to overcome "presumption of openness" rjeclosure of Court proceedings Highest presumption that court should remain open, even for jury selection, unless party moving for closure can show a compelling reason why the alternatives don't work In Press Enterprises II, Supreme Court even applied presumption of openness to "preliminary hearings conducted in CA"

Impact of DOJ Prosecutions

Criminal Prosecutions for Financial Fraud Crimes Continue to FALL - DOJ prosecuting "fewer white-collar criminals now than at any time since records back more than 30 years ago." Federal prosecutions of white-collar criminals plunged in January to the lowest level on record, falling 25% from the levels reached just five yeas ago

Federal Appeal in People v. Sims

Death sentence upheld in killing of employee of Glendale Domino's; his confession was obtained in a violation of his Miranda Rights - he was not deprived of Due Process though Judge Rymer - agreed with CA Supreme Court, rejecting Sims' appeal in 1993 that any error in admitting the confession was harmless beyond a reasonable doubt - Sims was read his Miranda rights and opted to remain silent, he then asked for an explanation of the extradition procedure which was given to him before discussing the murder Sims then confessed and made other incriminating statements. One officer told Sims they could not talk to him further because he had invoked his Miranda Rights. The next day, Sims requested to speak to the officers again and made further incriminating claims The trial court ruled the statements were admissible, state high court agreed but only about the statements on the second day Rymer wrote for the 9th circuit and explained that it is now settled law that the erroneous admission of a confession can be harmless error if the remainder of the prosecution's case is so strong there is no reasonable possibility that the outcome would have been different; Conviction was UPHELD

Brown v. Plata

Decision rendered: Argued on November 30th, 2010, decided on May 23, 2011 Issues: (1) whether the three-judge district court properly determined that crowding was the primary cause of continuing violations of prisoners' constitutional rights to adequate health care, and that no other remedy existed (2) whether the system wide Prisoner Release Order issued by the three-judge court are narrowly drawn, extends no further than necessary to correct the violation of the federal right, and are the least intrusive means necessary to correct the violation of the Federal right in compliance with the PLRA (3) whether the same court properly gave substantial weight to any adverse impact on public safety or the operation of a criminal justice system in ordering a reduction in population of approx. 46,000 inmates Held that Conditions in CA's prisons were so bad that they violated the 8th Amendment's ban on cruel and unusual punishment.. Supreme Court thus ordered CA to reduce its prison population by more than 30% (approximately 46,000 inmates) over the next few years) - 5-4 Decision by Justice Kennedy

(3) Cash Bail

Defendant deposits full of "cash" with court or agency holding defendant in the amount set by warrant, bail schedule or order. Full amount of such bond is returned after completion of case but Court may deduct fines and costs from the bond before refunding balance. Only 2% of cases did so! Anyone including the defendant can post a cash bond.

(2) Release on Own Recognizance (ROR)

Defendant simply "promises" to appear meaning she/he will make all required judicial proceedings and refrain from committing crimes. No cost to defendant

When is bail EXCESSIVE?

Depends on the context and seriousness of the crime "Excessive" defined by the court: Bail is excessive in violation of the 8th Amendment when it is set at a figure higher than the amount reasonably calculated to ensure the government interest." - Stack v. Boyle 1951 EXAMPLE: Case of NY real estate mogul Robert Durst on trial in Texas for murder - Bail was set at $3 billion. On appeal to Texas Court of Appeals, court found that amount excessive, noting "... it could not find a case where bail was set, let alone upheld, at even I percentage of any of the amounts against Durst, regardless of the underlying offense, wealth of the defendant or any other circumstance." - Bail was reduced to $450,000

Deterrence (Second Goal)

Deterrence is social engineering.. application of social sanction to convince general populace that "crime does not pay." - there are two varieties of deterrence Several points: - Justified by Utilitarian theory: deterrence prevents criminality = promotes public good - Does good by way of effective conditioning (negative reinforcement of widespread group) Deterrence is a "rational" object of sentencing

What can be done to PREVENT Fraud Schemes?

Deterrence: We need to send a message (again) that white collar crime, securities fraud, corruption and financial swindles will be investigated promptly and aggressively

Television

Does right of access include the right to televise trials? Is this simply a downside of cameras in courtroom that there may be an impact on the participants? - Cameras may cause delay Argument for having TVs in courtroom: - Constitutional right for TV? - TV is the most effective way to provide info to the public. Public cannot really get into there. Has the Supreme Court held that there is a constitutional right to cameras in the Courtroom?

History of Correctional System

Essentially no prisons until end of middle ages - Then punishments for criminal offenses were brutal and didn't even include incarceration - banishment, death, torture - There was a belief that criminal sanctions needed to scare people Background (back then..... 19th century) - Prisoners thought to be more dangers and violent than others in the country (convicted of the most serious offenses - common law crimes: robbery, murder, rape, assault, kidnapping) - Goal: protect society; prevent repeat offenses; deter others - Wasn't rehabilitation which it supposedly is now - Incarceration was deemed little more than slavery... prisoners had a very rough time: - Subjected to 12 or more hours of hard labor per day, strict discipline imposed by guards, ate in silence - administration/guards had unlimited discretion - Courts gave great deference to this part of the executive branch - supposed "experts" in penology - Severe discipline was commonplace and approved (whips, dogs, deprivation of food, "solitary confinement." - Prisons were "Closed Communities" - The outside world didn't really know much about what went down in prison - The courts dismissed all lawsuits brought on by prisoners

FBI Takes Similar Approach of Definition of White Collar Crime

FBI has opted for a similar approach to defining it in terms of the offense" - "... those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence. Individuals and organizations commit these acts to obtain money, property, or services; to avoid the payment or loss of money or services; or secure personal or business advantage." Some experts have criticized defining white-collar crime by focusing on type of offense because such definition emphasizes the nature of the acts rather than the background of the offender. Per FBI's definition, there is no mention of the type of occupation or the socioeconomic position of the "white-collar" offender.

Fitness Hearings (part 1)

FIRST HEARING in proceedings (typically for 16 & 17 year olds, but applies to kids as young as 14): - the question: is minor a fit and proper subject to be dealt with under juvenile court law? - if declared "unfit," the court finds that minor would not be amenable to care, treatment and training program through facilities of the juvenile court (known as "Judicial Waiver") - is initiated by prosecutor Depends on a wide range of factors: seriousness of the crime - whether the minor can be rehabilitated while still subject to juvenile court jurisdiction - prior delinquency history - success of past attempts to rehabilitate - sophistication of the offense

Hauptman Trial - Lindbergh Baby Kidnapping

Facts: - March 1, 1932: Lindbergh baby kidnapped - September 19, 1934: Bruno Hauptman arrested - January 3, 1935: Trial begins - April 3, 1936: Appeals concluded; Hauptman executed Trial was a spectacle: 20,000 spectators came daily to watch the trial and absolute circus ensure *Led to a judicial ban on camers In 1979, certain states started bringing the cameras back - Florida first to do so - CA was going strong until OJ Simpson trial - this led to a change in the law - CA law now gives more discretion to the individual judge. Now the trial judge has complete discretion.

Decision of California Court of Appeals (In re Humphreys)

Facts: Defendant stole $5 and bottle of cologne from neighbor in his building but threatened him with suffocation while doing so - Bail schedule set $600,000 initial bail, reduced after hearing to $350,000 Holding: Defendant cannot be denied bail based on indigence unless court finds danger to community and supported by record - "If trial court determines the defendant is unable to afford the amount of money bail [otherwise set to assure appearances in court], it may set bail at the amount only upon a determination that no less restrictive alternates will satisfy that purpose." Thus, "defendant may not be imprisoned solely due to poverty.." - revolutionary decision, if it is upheld

Who Are the Prosecutors?

Federal Primarily: - US Attorney's Office (LA) - First office to achieve success: Southern District of New York - LA (Central District of CA) has distinguished itself - Department of Justice Specialized in Sections: - Public Integrity Section, Fraud Section, Election Crimes Branch, Internal Security, Tax Division, Civil Rights Division, Anti-trust Division - State Attorney Generals generally lack resources / training - Few District Attorneys' offices have resources - City Attorneys' offices also lack sufficient resources

Prison

Federal or state institution in which offenders are (1) felons and (2) serving custodial sentences exceeding one year - Prisons, especially federal prisons, provide better services than jails - Educational, therapeutic services, recreational, some state prisons even allow visits

Constitutional Rights May Conflict When Media Covers Controversial Trials

First Amendment: "Congress Shall Make No Law ... Abridging the Freedom of the Press." Sixth Amendment: "In all criminal prosecutions the accused shall enjoy the right to a [fair]... public trial." Trial By Media: phrase to describe the impact of TV and newspaper coverage on a person's reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law

Gary Gilmore

First person to be executed after Death Penalty reinstated by Supreme Court in Greg v. Georgia (1976)

Pump & Dump Schemes

Form of Securities Fraud in which a stock promoter will promote (usually through publication) a thinly capitalized stock, and then when public interest stimulated by the publicity causes the stock price to rise, will sell out from under the "bubble" - Be extremely wary of "tips" about stocks and other investment opportunities - If it sounds too good to be true, it generally is too good to be true

Cybercrime (Phishing Schemes)

Fraudulent practice of sending emails purporting to be from known sources in order to induce individuals to reveal personal information, such as passwords and credit card numbers.

Death Penalty in USA between 1972 & 1977

Furman v. Georgia --> 1972; Supreme Court ruled that the DP was unconstitutional as arbitrary and inconsistent as applied, in violation of 8th and 14th Amendments, constituting cruel and unusual punishment - J. Stewarts Opinion: "these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible of these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed." - This resulted in De Fact Moratorium on executions until 1976 when the Court upheld Georgia's new DP in Gregg v. Georgia (1976) because the state has established some standards to inform DP decisions

Bail Reform Act of 1966

Game Changer in Federal Courts - In mid-1960s, state of federal bail troubled Congress - recognition that in spite of the presumption of innocence, an accused prospects of pretrial release turned primarily on his wealth "Every witness before the subcommittees agreed that, at least in noncapital cases, the principle purpose of bail is to assure hat the accused will appear in court for his trial. There is no doubt, however, that each year thousands of citizens accused of crimes are confined before their innocence or guilt has been determined by a court of law, not because there is any substantial doubt that they will appear for trial but merely because they cannot afford money bail. There is little disagreement that this system is indefensible."

If courts could not forbid media from publishing "facts" in criminal procedures, what measures could they impose to protect Sixth Amendment rights?

Gannett Co. v. DePasquale --> 1979; the Supreme court upheld closure of pre-trial proceeding, finding that the Defendant's right to fair trial outweighed the public's right to know Richmond Newspapers v. Virginia --> 1980; the trial court closed the ENTIRE trial; defendant made the motion, after three mistrials and the prosecution did not object to closure - however, newspapers challenged the closure of trial, citing the first amendment (this is the actual case) Alternate remedial measures must be tried and failed: What measures should the trial court implement first? (1) Gag the attorneys - limit the ability of lawyers to speak (2) Sequester the jury (3) Jury questionnaires (4) Change of venue (5) Jury instructions

General Deterrence vs. Specific Deterrence

General Deterrence --> Seeks to influence the behavior of people who may have been tempted but have not yet committed a crime - many crimes can be virtually eliminated if the punishment is swift and harsh enough (EX: incarceration for speeding, mandatory jail sentences for using a gun) Specific Deterrence --> Seeks to reduce the likelihood of a specific offender from committing further crimes in the future (DP is the ultimate specific deterrence)

How to get away with a PONZI SCHEME?

Get appointed as Director of Social Security Administration ! This is a joke because the essential element of a fraud scheme is deception and being director of Social Security Administration would allow your financial books to be transparent - wouldn't be a Ponzi scheme!

Restoration (Fifth Goal)

Goal of criminal sentencing in which the victim is fully compensated for losses by order of restitution In CA, victims' rights to restitution are part of the State Constitution.. Victims MUST be heard at sentencing Restorative Justice --> modern theory focusing on crime and wrongdoing as acted against the individual or community rather than the state. The wrongdoer takes responsibility for their action and the victim assumes central role in the process, in many instances receiving an apology and reparations from the defendant. Restorative processes foster dialog between offender and victim show the highest rates of victim satisfaction, true accountability by the offender and reduced recidivism Problem? Defendants usually lack funds

Telemarketing Schemes

HUGE problem in Southern California - Not all such schemes are criminal -- Generally unsolicited telephone calls used to peddle: - Securities (unregistered) in start-up or penny stock company - Commodities such as gold sold, but generally worthless - Various products that usually are overvalued & that you just don't need EXAMPLE: Telephone Calls from people pretending to be from IRS or DEA threatening arrest or prosecution

RED Flags of Ponzi Scheme

High investment returns with LITTLE/NO risk: every investment carries some degree of risk; investments yielding higher returns typically involve more risk Overly consistent returns: investment values tend to fluctuate over time, especially those offering high rates of return. Be suspicious of investments that continue to generate regulatory returns regardless of overall market conditions Unregistered investments & unlicensed sellers: Ponzi schemes typically involve investments that have not been registered with the SEC or with state regulators. Registration / Licensing important as it provides investors with key information about management and finances Shortage of Paperwork: company does not document its operations. Also, account statement errors and inconsistencies may be signs that funds are not being invested as promised Secretive and/or complex strategies: schemers do not provide complete information about their operations

Early Example of White Collar Crime: Ponzi Scheme

In 1920, Charles Ponzi invented "Pyramid Scheme" - he founded Securities Exchange Co. of Boston which guarantees rates of return on capital of 50% in 45 days / double return in 90. - ironic title for his company? SEC? - Sounds too good to be true.. it was, it was fraud - Origins were legit: Company involved in international arbitrage: selling international postage reply coupons - Within 6 months, Ponzi had 20,000 investors and raised nearly $10 million in capital - Soon the incoming "investments" far outstripped any actual profits of the business, which were limited - Essence of scheme: use of "new" investors' money to repay "old" investors (with appreciation) - Fraud kept growing until it eventually collapsed - **Essentially a Pyramid Scheme is a criminal venture that MUST collapse as numbers of investor grows exponentially, but revenues are linear at best; generally no actual earnings

Fitness Hearings (part 2)

In certain cases, fitness hearings are set for minors 14 years of older: crimes punishable by death or life sentences, crime committed for benefit of street gang, if victim was 65 or older or disabled If found "unfit" for juvenile court, the minor is transferred to adult criminal court where they may then be housed in adult facilities (jails) Criteria for appropriate placement for minors: least restrictive setting necessary, most family-like environment, closest proximity to minor's home, meets minor's best interests and special needs Minor is declared dependent of court is no parent/guardian is available or appropriate for care Minor CANNOT be held in physical confinement for period in excess of maximum term of imprisonment (which could be improved as adult for some offenses)

Multi-Level Pyramid Scheme

Ingenious structure similar to Ponzi scheme, but not actually criminal in nature - Shares the characteristic that it relies on disbelieve in financial reality, including the hope of an extremely high rate of return over period of time - One characteristic distinguishes these from Ponzi scheme: - Structure. A multilevel scheme is bound to collapse a lot faster due to the necessity of exponential increases in participants to sustain it. By contract, Ponzi schemes can survive simply by persuading most existing participants to "reinvest" their money, with a relatively small number of new participants

Bail Reform Act of 1966 Was a Game Changer FEDERALLY

It provided defendants charged with non-capital crimes a statutory right (in the absence of a Constitutional right) to a pre-trial release, on personal recognizance or an appearance bond, unless the judicial officer determined that no conditions would adequately assure his appearance at trial or safety of community Courts could NOT needlessly detain defendants pre-trial!! Law required that in setting bail, federal judges consider family and community ties, employment history, and past record of court appearances in setting bail

Problem with Deterrence Theory

Its efficacy depends on the TARGET AUDIENCE.. not necessarily turn on the severity of the sanction - Corporations effectively deterred - White collar offenders -- e.g. inside traders or antitrust violators - Are petty criminals or violent offenders actually deterred?? -- it is questionable whether the death penalty actually deters other serious criminals

Detention Facilities

Jails: places of detention for two types of prisoners: (1) pre-trial detainees and (2) criminals convicted of misdemeanor offenses - less than 1 year - LA County Men's Central Jail Massive population. It is larger than 16 state prison systems - 22,000 prisoners in LA County Jail - Largest jail in the world; population dropped by 17% after Prop. 47 took effect

OJ Trial Returned TV Coverage to CA

Judge Lance Ito permitted TV in OJ's 1995 trial for murder Dream team of defense lawyers so trial rivaled the Scopes Trial for Drama and Excess.. led to some creative reporting: - Dancing Itos --> Prosecutor Marcia Clark and "Dancing Itos" in a creative interpretation of the OJ trial played during trial

Kent v. U.S. (In Re Gualt) (part 2)

June 8, 1964 - Sherrif in AZ arrests 15 year old Gerald Gualt after receiving reports of kid making obscene telephone call to neighbor Judge McGhee of Superior Court presided over the preliminary hearing the next morning - Gualt was released next day but parents first hear about it when his mother got a note informing her that her son was set for a delinquency hearing within days At hearing, judge found that "minor is a delinquent child, ordering him confined at the State Industrial School for the period of his minority [that is, until 21], unless sooner discharged by due process of law" Lewd Phone Calls - trivial crime - had he been convicted as an adult, the maximum punishment would be 2 months in jail and a fine of $550; Arizona law permitted no appeal of a juvenile disposition

Textual Originalism: DP

Justice Scalia: "Originalism gives to those terms the meaning they were understood to have when the people adopted them. Is the DP cruel and unusual punishment? A hard question, perhaps, for the non-originalist. But for the originalist the answer is easy: at the time the people ratified the 8th Amendment, no one thought to forbade the death penalty. The death penalty was at the time, and remained for some years later, the only penalty for a felony." The Constitution specifically acknowledges the DP twice in the 5th Amendment: (1) preventing the deprivation of "life" without due process, and (2) requiring an indictment for the prosecution of a "capital" crime

Youth (TEEN) Courts

LA Superior Court Program - 20 year anniversary - Participants: students usually in high schools - Cases: minor crimes/infractions: cheating, bullying, petty thefts - Students provide the personnel (prosecutor, defense counsel, jury, bailiffs, real judges preside) - Defendant must agree to procedure and jury of his peers - Punishments can be very creative.. graffiti removal, community service, counseling, etc. - If successful, no criminal record - If unsuccessful, may be returned to regular juvenile system

Litigation Explosion

Litigation was single most important source of change in jails and prisons during the last 40 years - States began to address problems raised in lawsuits: more funding, newer prisons, better training, written policies and procedures Congress reacts and enacted the Prison Litigation Reform Act (PLRA) - created a barrier for inmates filing lawsuits; prisoners must first "exhaust administrative remedies" (no award for emotional distress without actual physical injury; cap on attorneys' fees, prisoners pay filing fees if that inmate has money in their inmate trust account) - Judges limited in fashioning future relief - Any equitable relief affecting prisoners must be the last resort and only way to remedy the violation

Effects of conviction and imprisonment

Loss of Civil Rights Significant - cannot possess firearms - removal from elected office - cannot serve on a jury - loss of suffrage - violating rights lost only in prison in CA - deportation (if not a citizen) Registration with Local Sheriff or Police Station - sex offenders, arson offenders, gang members, drug offenders - "willful" failure to register can be a new felony conviction, punishable in state prison up to 3 years Stigma: difficult to obtain employment

Bail Reform Act of 1984

Main innovation of the new law was to allow pre-trial detention of individuals based upon a perceived danger to the community; under prior law and traditional bail statutes in the U.S., prolonged detention had to be based solely upon the risk of flight Detainees could include: - Persons charged with crimes of violence - Certain drug offense (sentence exceeding 10 years) - Serious flight risk or risk of obstruction of justice Preventative detention authorized by the Bail Reform Act of 1984 was upheld in U.S. v. Salerno (1987). Supreme Court held that the only limitation imposed by the bail clause is that the "governments proposed conditions of release or detention not be 'excessive' in light of the perceived evil."

Scopes Monkey Trial Media-fest

Media Blitz: remote broadcast radio to the center of town - "like so many archetypal american events, the trial itself began as a publicity stunt" - more then 200 newspaper reporters from all parts of the country and two from London were in Dayton - trained chimpanzees performed on the courthouse lawn

Are the efforts to reduce prison overcrowding leading to increased crime?

Ms. Hanisee says YES (President of the Association of Los Angeles Deputy District Attorneys) Sal Rodriguez (Reporter for OC Register) responds saying NO: (1) "There's been no evidence to date that Prop 47 is actually the driver of any of these increases. Beyond anecdotes and people confusing correlation with causation, there is no evidence that Prop 47 is responsible." (2) In 2014, "year prop 47 was passed... [was] the year in which property crime rate hit the lowest every recorded by the state. Consequently, the increase from 2014 - 2016 turned out to be a case in which California's property crime rate rose from the lowest on record to the second-lowest on record. The sky isn't falling."

Top reasons against the DP

NO deterrence: some studies show that states without DP have lower murder rates Too expensive: it is much more expensive to house convicts on death row Inadequate representationL some commentators open that the quality of the defense attorney is the most significant factor in whether the sentence imposed is death Improper factors: may be at issue (race) Wrongful convictions? data is unclear

Death Penalty Update

Nearly 40 years later, Sims is still fighting to avoid the DP # of inmates on Death Row in CA in 2020: 724.. down from 740 On March 13, 2019, Governor Gavin Newsom issued executive order to imposing a moratorium on the DP - temporarily granting reprieves to 737 inmates.. he stated that his ultimate goal is to end the DP in CA Not all agree though - Assemblyman Tom Lackey (Republican-Palmdale) says that Newsom is protecting monsters and putting his own views above the will of the people

Other proposals for bail reform

New Jersey Approach: Algorithms to set bail - formulaic approach -- formula yields a result or number - overseen by a judge (with input by prosecutors office) Some U.S. jurisdictions are using advanced formulas to evaluate the risks that defendants pose (both flight and public safety) and make recommendations for pre-trial release. Judges weigh these evaluations when considering terms of release. Arnold Foundation created a tool called the Public Safety Assessment (PSA) which calculates flight risk and safety risk based on objective set of factors: - the defendants age, current charges, criminal history - the defendants record of appearances (or failing to appear)

What mischief does current bond system cause?

Numbers of jailed pre-trial detainees sharply up. Citing a national trend of increasing reliance on bail bondsmen, CA Supreme Court found that "the number of pretrial inmates in jail populations has grown at a faster rate than sentenced inmates." 61% of inmates in jails have not been convicted of a crime First, it may cause significant increase of the number of people pleading guilty to crimes they did not commit. More folks, particularly low level misdemeanors are being in jail. Puts pressure on Defendants to plead guilty in order to get out of jail! According to a 2012 report by NYC Criminal Justice agency in nonfelony cases in which defendants were not detained (either cite and release or bail was met), conviction rates were about 50% - When defendants were jailed, the conviction rate rose to 92% - Report concluded: "The data suggests that detention itself creates enough pressure to increase guilty pleas."

Should the punishment fit the crime or fit the offender? Dilemma of Uniform Sentencing or Individualized Justice

Pre-Sentence/Probation report on offender is prepared by a Probation officer in the federal system, the PSR looks into the offender's background prior to sentencing. PSR provides an exhaustive analysis and makes discrete and customized sentencing recs. What factors should the Court take into account in determining a sentence? - Circumstances underlying the crime: facts re offense, aggravating factors, mitigating factors, personal factors (criminal history or familial background)

Fallacies / Issues this Lecture

Principal Objective of sentencing is "Corrections or Reformation" - Issue: should the punishment "fit" the crime or the offender - the dilemma of choosing between uniform sentencing or individualized justice The tension between true "discretion" and uniform treatment Ultimate Penalty: DP

California Model: Department of Corrections & Rehabilitation

Principle Characteristics: - CDCR is principal administrative agency - Established in 1944 - Part of a major reorganization of the penal system - Chief Administrator is the "Director of Corrections" - Responsible for care, custody, treatment and discipline of prisoners - Establishes policies and procedures - Assists prisoners to find jobs upon release Board of Prison Terms: - Preciously: Parole Board or "Adult Authority" - Objective: release of prisoner prior to expiration of full term of imprisonment - Parole conditioned on "good behavior"

White Collar Crime is NEW - Underlying conduct is not...

Professor Edwin Sutherland (1939) argued that concepts of criminology should be expanded to include behavior by respectable persons and organizations, not generally thought by public to be criminal, as crime and persons who violated such laws were criminals - that is, "white collar" criminals - HE defined white-collar crime as: "crimes committed by a person of respectability and high social status in the course of his occupation."

Conviction of Madoff

Questioned after his conviction, Madoff said he could've been caught in 2003, but the bumbling investigators had acted like "L.t Colombo" and never asked the right questions: "They never even looked at my stock records. If investigators had checked with The Depository Trust Company... it would've been easy for them to see. If you're looking at a Ponzi scheme, its the first thing you do."

Rehabilitation (Fourth Goal)

Reformation or "corrections" premised on the notion that convicted criminals can still be saved and their criminal ways "reformed" - Important precept: Job training skills in prisons where convicts learn actual trades and can become useful citizens - "Perceived need" to enter such programs may be subject to manipulation - Early "rehabilitative efforts" gave rise fo the Penitentiary: where prisoners were reformed by giving Penance - In the 1970s, corrections movement lost steam it was largely replaced in the 1990s with "warehousing"

Retribution (First Goal)

Retribution is society's answer to ancient call of vengeance - what would be revenge if perpetrated by the victim, society calls retribution - the need to punish an offender - Examples: Old Testament dictum of "Eye for an eye" or a "tooth for a tooth" -- somewhat savage, but meets an important society need to retribution Aligned with Kantian mortality: that punishment is "just" whether it furthers an ultimate public good or not "Just deserts" -- model that holds that criminal offenders deserve the punishment they receive and that the punishment "should fit the crime"

Incapacitation (Third Goal)

Seeks to protect innocent members of society (those not yet victims) from offenders who might do them harm in the future - protection from incipient mischief of anticipated criminal misconduct "Warehousing" as a mechanism to reduce the likelihood that an offender will be capable of committing future offenses Underlying justification for "Three Strikes Laws," "Mandatory Minimums" and "Sentencing Guidelines" resulting in "tougher" sentences, especially for the Defendant with past criminal history

Mark Ciavarella

Sentenced to 28 years in federal prison following a 2011 conviction in what prosecutors called a "kids for cash" scheme ranking among biggest courtroom frauds in U.S. History Sentenced for taking $2.6 million in bribes/kickback from a builder of juvenile detention centers Consequences? Pennsylvania Supreme Court reversed 4,000 convictions issued by Ciavarella between 2003 and 2008; said he violated the constitutional rights of juveniles, including the right to legal counsel and the right to intelligently enter a plea

Who is Executed?

Since DP was reinstated in 1976, 1,532 convicted murderers have been executed in the US - 16 were female (57 women still on death row) - 22 were under the age of 18 (the last was Scott Allen Hain in Oklahoma on April 3, 2003) - 56% white, 34% black, 9% hispanic - 1129 (87%) were executed by lethal injection - 158 were executed by electric chair (Last one: John Young in GA on 3/20.1985) - 11 were executed by gas chamber - 3 were executed by hanging (Last one: Billy Bailey in DE on 01/25/1996) - 3 were executed by firing squad (Last one: Ronnie Gardner in Utah on 1/27/1996) Death Row Exonerations: Since 1973, over 165 people released from Death Row based on innocence established by groups like the Innocence Project

Death Penalty Cons

Study in CA revealed that the cost of the DP in the state has been over $4 billion since 1978. Study considered pre-trial and trial costs, costs of automatic appeals and states habeas corpus petitions, costs of federal habeas corpus appeals, and costs of incarceration on death row Florida: Enforcing the DP in Florida costs about $51 million a year over what it would cost to prosecute and imprison first degree murderers for life In Texas, by contrast, the DP costs an average of $2.3 million, still approximately 3x the cost of prosecuting and imprisoning murderers for life

Who did execute prisoners in 2020?

The Federal Government More than half of executions in 2020 were conducted by the Federal Government, which in less than 6 months carried out more federal civilian executions than any prior president in over 100 years - The Trump Administration performed the first lame-duck federal execution in more than a century - 10 prisoners were executed by the Federal government in 2020... Five states (7) and the Federal Government (10) carried out executions - President Biden has said he will NOT carry out any executions

(6) Property Bond

The accused or a person acting on his behalf pledges real property having a value at least equal to bail amount set. If the principal fails to appear for trial the state can levy or institute foreclosure proceedings against the property to recover the bail. Common in federal court and in certain jurisdictions like CA. Often, the equity of the property must be twice the amount of the bail set

The Motivation of The Media

They are interested in ratings (profits) as well as transparency of the process (educating the public) FACT: More people watched the 1995 OJ Trial than followed the Gulf War. That trial highlighted important issues: - the role of race in criminal justice system - unequal justice - is "justice" dependent on the resources of the Defendant? - Domestic Violence as a prevalent problem - Fourth Amendment issues: search of OJs house - Important of forensics: science -- DNA testing

(1) Corporate or Surety Bond

Third party agrees to be responsible for the debt or obligation of the defendant should he fail to appear or "default." This service is provided by bail bonding agent, in exchange for 10% of the bail amount up front. Bondsman keeps that amount regardless of whether the defendant appears in court

(5) Citation Release also known as "Cite Out"

This procedure involves the issuance of a citation by the arresting officer to the arrestee, informing the arrestee that he or she must appear in an appointed court date. Cite Outs usually occur immediately after an individual is arrested and no financial security is taken - common with low level misdemeanor offenses such as DUI's and shoplifting, petty theft, low level assaults

Proposals for Reform: SB No. 10 (Part 1)

This triggered legislation: Senate Bill 10, would have effectively outlawed money bail, passed the state Senate and signed by Gov Senate Bill 10 would have abolished California's cash bail system effective October 1. In stead of bail schedule, and corporate sureties Court use a risk assessment-based bail system -- an algorithm which would determine an individual's likelihood of returning for court appearances. The law calls for pretrial assessments to categorize arrested persons as low, medium or high risk Only defendants charged with certain low-level, nonviolent misdemeanors would be eligible for automatic release within 12 hours of being booked into jail. Judges would have greater discretion to weigh the release of defendants charged with felonies in a practice known as preventative detention But wait, Bail bondsmen put an initiative on the 2020 Ballot to overturn the law

Mortgage Fraud

Triggered by the housing crisis in 2008, some companies will claim to be able to "fix" a homeowner's credit. Such schemes have sometimes induced persons to transfer their title to a fraudster

U.S. Sentencing Guideline Grid

USGG

Statutory Collusion Sentencing Guidelines vs. Sixth Amendment

United States v. Booker, Fan-Fan: Supreme Court (2005) held that judges may not "find facts" that result in sentencing determinations that increase sentences above the normal range - court said this violates a defendants right to jury trial (6th Amendment) California v. Cunningham (2006): Supreme Court invalidated CA's Determinate Sentencing Laws on same basis Result is that USSG are now "advisory" and not mandatory. But, under CA law, judges are still limited to "low, medium, high" ranges

(7) Immigration Bond

Used when the defendant that been arrested is an illegal immigrant. This is a federal bond and not a state bond. The defendant deals directly with either the Department of Homeland Security (DHS) or (ICE). Immigration bonds are typically cash but only a fraction of normal criminal bonds

Monkey Trial: H.L. Mencken's Trial Reports

We're heavily slanted against the prosecution. He did not like the prosecutors' case: jury which was "unanimously hot for Genesis." He mocked the town's inhabitants as "yokels" and "morons." Mencken liked Bryan even less: - called him a "buffoon" and his speeches "theological bilge."

Why Allow Media To Follow Trials?

Who has the greatest interest in criminal justice?? - General public has strong interest in following the progress of criminal trials - The importance of educating the public regarding this important branch of government

Do Juveniles have Miranda Rights?

YES - the Q used to be whether or not they could intelligently waive such rights ... can they? Question is now answered by SB 395-- as of 2017, children 15 and younger can only waive Miranda rights after speaking with an attorney