Chapter Topics
Crime
Policing
Arrests
The Defendant
Prosecution
Grand Juries
Exclusionary Rules
Case Attrition
The Criminal Justice Wedding Cake
Crime
• Crimes known to the police increased
for twenty years, declined in the 1990s
and have stabilized the last few years
•Data comes from the FBI Uniform
Crime Reports
• Type I offenses (homicide, rape, arson,
aggravated assault, robbery, burglary, auto
theft, larceny over $50)
•Type II offenses (theft, simple assault,
public drunkenness, disorderly conduct,
etc.)
Crime
• 1 in 4 crimes is Type I
• Fighting crime is a regular campaign
slogan, but is a difficult social problem.
• Despite money and effort crime remains
persistent.
• U.S. has the highest crime rate of any
Western industrial nation
• A large number of American are
fearful of crime, however studies show
that is not necessarily related to actual
risk
Policing
• Policing is decentralized (800,000
officers in nearly 18,000 agencies)
• Historically connected to party politics
• Today regulated by civil service
• Modern policing is heavily influenced by
problem solving approaches (e.g.,
community policing)
Arrests
• Of crimes brought to the attention of
the police, only 20% result in arrest
(clearance rate)
• varies by type of crime, 46% of violent
crimes result in arrest, but only 16% of
property offenses
• 13.6 million people arrested
• drug and property crime arrests are
nearly triple the arrests for violent crime
The Defendant
• Most defendants are charged with
nonviolent offenses
• Career criminals make up a
disproportionate share of the arrests
• Felony defendants are:
• younger, male, disproportionately
members of minority groups, come from
broken homes, less educated, unemployed,
single
Initial Appearance
• The police must bring an arrested
person before a judge “without
unnecessary delay”—typically 48 hours
• An initial appearance is a
defendant’s first encounter with the
courts and judicial process
• judge advises defendant of rights
• typically last a few minutes
• for minor crimes, defendants may plead
guilty and receive immediate sentence
Initial Appearance
• For major crimes, the judge will set
bail, schedule next court appearance
and appoint a counsel if the defendant
is an indigent
Bail
• Bail is a guarantee that in return for
being released from jail, the accused
will return to court as needed
Bail
• procedures vary depending on
seriousness of crime
• for minor offenses bail may be posted at
the police station (which often has a fixed
bail schedule)
• for felony or serious misdemeanors the
court must set a bond amount
• Once amount is set there are four ways to
post a bond
Bail
• Bond procedure include:
• provide cash bond
• provide property bond (equity of twice the
face amount of bond)
• bail bondsman – which posts the bond
for the defendant and charges a
nonrefundable fee (often 10% of face value
of bond)
• personal recognizance – judge may
release defendant from jail without
monetary bail
Bail
• The poor often wait in jail, while the
rich are able to post bond
• studies show that defendants held in jail
without bon are more likely to be convicted,
and more likely to be sentenced to prison
• In serious cases there is a lot of
discretion in setting the bail amount
• a few defendants are held over without
bail
Bail
• Over 700,000 people are held in jail
(v. prison)
• Debate is the goal of bail to:
• 1) ensure the appearance of the
defendant, or 2) to protect the public
• preventive detention emphasizes the
public protection aspect and allows
judges to hold over those accused of
dangerous crimes without bail
Prosecution
• Prosecution is found at all major
governmental levels: national, state,
county and local
• may be called U.S. Attorneys, state
attorneys general, prosecutor, district
attorney, state’s attorney, city
attorney
• Prosecutors have broad discretion –
prosecutors decide which cases to
pursue
Filing Charges
• The sixth amendment requires the
defendant to be given information about
the charges against them
• a charging document includes the
name of the person charged, brief
description of how and where the
offense was committed and the
statute allegedly violated
Filing Charges
• Three major types of charging
documents:
• complaint – is supported by oath or
affirmation of an arresting officer, used in
misdemeanor or city ordinance violations
• information – identical to complaint but
signed by prosecutor
• indictment – issued by a grand jury
(citizens)
Filing Charges
• There is considerable discretion in the
prosecutor’s decision to follow an arrest
with a charge.
• the prosecutor controls the “doors to
the courthouse”
• very little oversight—other than
prosecutors are typically elected officials
• some police consider every decision
not to charge as a repudiation of their
policing
Preliminary Hearing
• A preliminary hearing is the first time
a criminal case is reviewed by someone
other than a law enforcement official
• an arrested person is entitled to a timely
hearing before a neutral judge to determine
probable cause for the detention
• protects the innocent and provides the
defendant with an overview of the case
against him
• does not require the establishment of
guilt—only probable cause
Grand Juries
• Grand juries are different from trial
juries—they determine probable cause
• Two primary functions:
• determine whether there is probable
cause the defendant committed the crime
• protect the public from overzealous
prosecutors
• issue a true bill if the case continues
• grand jury use varies but is used mostly for
felonies and capital crimes
Grand Juries
• size of the grand jury varies 6 – 23
• normally selected in a manner similar
to trial juries
• impaneled for a set time and meet
periodically
• legal protections of criminal court do
not apply—the work is done in secret,
plurality vote, no right to an attorney
• prosecutors dominate process
Exclusionary Rules
• many factors affect how the police
arrest and prosecutors charge those
accused of committing crimes
• The Bill of Rights and Supreme Court
decisions
• Exclusionary Rule – prohibits the
prosecutor from using illegally obtained
evidence during a trial
Exclusionary Rules
• There are three distinct exclusionary
rules:
• identification of suspects – defendant’s
have the right to be assisted by counsel
during a police lineup
• confessions – no physical or psychological
coercion, Miranda rights inform a suspect
of their legal guarantees
• searches – the gathering of physical
evidence must follow certain rules and be
truthful and relevant
Exclusionary Rules
• Lawyers ask for evidence to be
excluded through pretrial motions
• pretrial motions are a request to suppress
evidence that was illegally obtained
• empirical studies show that despite great
public concern over the exclusionary rule—
relatively few pretrial motions to suppress
evidence are actually filed
Exclusionary Rules
• Debate centers on whether convictions
lost, and the guilty let go because of the
suppressed evidence.
• it is difficult to resolve this debate
because it hard to determine precisely why
cases are dropped
• we do know that far more cases are
dropped because of a lack of evidence or
witness problems than are dropped because
the prosecutor cannot use illegally obtained
evidence.
Case Attrition
• The exercise of discretion (by police,
prosecutors, judges, etc.) causes many
cases to be dropped
• out of 100 felony arrests only 55
survive to trial stage
• once a case reaches felony court is
highly likely to end in a guilty plea or
trial verdict of guilty
• there are variations across courts in
case attrition rates
Why Attrition Occurs
• Legal Judgments – at every stage a decision
is made about whether there is sufficient legal
evidence to move a case forward
• Policy Priorities – prosecutors are simply not
interested in pursuing some cases (where the
punishment may have already occurred), yet
very aggressive in pursuing others
• Substantive Assessments – some cases are
dropped because the officials decide
prosecution would serve no useful purpose
Criminal Justice Wedding Cake
• Not all cases should be treated or
counted the same way
• Samuel Walker suggests using a
wedding cake as a metaphor—with each
layer representing a different type of
case but with consistency in each layer
• Walker observes that criminal justice
officials handle the various layers of the
cake very differently
Celebrated Cases
• at the top of the wedding cake
• dominate the news headlines, but are
atypical of most cases
• the judicial process is carefully
followed
• these cases are likely to go to a full
jury trial
• have considerable impact on the
public perception (too much?)
Serious and Lesser Felonies
• The second and third layers of the
cake are felony cases
• Differentiation between the two levels
is based on: 1) the seriousness of the
crime, 2) the criminal record of the
suspect, 3) relationship between the
victim and the offender
• serious felonies are carefully handled
and lesser felonies are dispensed of
routinely and quickly
Misdemeanors
• misdemeanors far outnumber all other
types of cases
• half of the misdemeanor cases
represent “public order” offenses, fewer
than a third represent crimes against
persons or property
• processed very differently from
felonies: routine handling, defendants are
arraigned en masse, guilt is rarely contested,
punishment is not severe
Conclusion
• America’s courts process millions of
criminal cases every year—most are
routine
• Crime rates continue to be high profile
and a frequent subject of political
campaigns
• Crime is persistent (if dropping) despite
considerable effort and expenditures
• Discretion occurs at every stage of the
criminal justice process