Courts
Jurisdiction
Limited vs. General Jurisdiction:
Courts with limited jurisdiction can only hear certain types of cases. Some examples of courts
with limited jurisdiction include juvenile courts, family courts, and drug courts. These courts are
designed to process and adjudicate certain types of offenses. Juvenile courts can only try
minors. Family courts can only adjudicate cases involving custody disputes, alimony, divorce,
etc. Drug courts only deal with drug offenses. Almost every type of court is limited in some
capacity; criminal courts, for example, can’t try civil cases, and federal courts only have
jurisdiction over cases that meet certain criteria. Courts with general jurisdiction, on the other
hand, can handle virtually any case. State courts are generally considered to have general
jurisdiction since they can try almost any type of crime. The supreme court is also considered to
be a court of general jurisdiction because they can and regularly do hear a broad spectrum of
case types.
Original vs. Appellate Jurisdiction (“questions of fact” vs. “questions of the law”):
Courts with original jurisdiction are the courts that hear a case for the first time. If an offender is
found guilty and wants to appeal the ruling, they can appeal to a higher court, which is then said
to have appellate jurisdiction. The most fundamental difference between the two types of
jurisdiction is that courts with original jurisdiction rule on questions of fact (did Mr. Plum in fact
stab Mrs. Peacock with a candlestick in the dining room?), while courts with appellate
jurisdiction rule on questions of the law (was Mr. Plum given adequate representation during his
trial?).
Courtroom Actors
Judicial Appointment: Merit Selection or the “Missouri Plan”:
The “Missouri Plan” for judicial selection has an incredibly interesting origin story involving a
very mobbed-up local politician named Tom Pendergast. Google him if you want further
explanation. Basically, judicial elections were being controlled by political fixers, and people
didn’t like that. One section of the Missouri constitution stipulates that associate and circuit
judges in Jackson County must be selected via a pretty specific process: “...the governor shall
fill such vacancy by appointing one of three persons possessing the qualifications for such
office, who shall be nominated and whose names shall be submitted to the governor by a
nonpartisan judicial commission established and organized as hereinafter provided. If the
governor fails to appoint any of the nominees within sixty days after the list of nominees is
submitted, the nonpartisan judicial commission making the nomination shall appoint one of the
nominees to fill the vacancy.” This idea seemed to work pretty well as a means of keeping
corruption and politics out of the courts, and it caught on quickly in other states. Today, 34 states
use some sort of merit-based approach to select some or all of their judges. 23 states use a
merit-based system to select their supreme court justices.
Public Prosecutor vs. Defense Attorney:
The obvious difference between a public prosecutor and a defense attorney is that the former
tries to convict offenders, while the latter tries to stop offenders from being found guilty.
Prosecutors represent the state and defense attorneys represent their clients. But that’s not
where the differences end. All prosecutors are employed by the government (usually by a
district attorney, county attorney, state attorney, or chief solicitor), while some defense lawyers
are employed by the government (the public defender’s office) and some are employed by
private firms. Private defense attorneys generally handle cases where the accused can afford to
pay for a lawyer and public defenders are called in to represent clients who can’t afford to pay a
lawyer. In most states, prosecutors have more money and resources at their disposal than
public defenders. Part of this disparity can be attributed to the fact that the state (theoretically)
has a much tougher case to prove; they must convince the jury to find a defendant guilty beyond
a reasonable doubt, while the defense only has to show reasonable doubt. In practice, however,
underfunded and overworked defense attorneys have a tough job.
Movement Through the Court System
Initial Appearance vs. Arraignment:
The initial appearance is an offender’s first court experience. A judge decides whether there is
probable cause to detain the accused, and then reminds the accused of their rights (Miranda
rights, right to counsel, right to a preliminary hearing, right to know charges, and right to seek
pretrial release). If there is sufficient cause to detain, the offender will be held until their
arraignment, where a judge will read the charges leveled against them. At an arraignment, the
offender must enter a plea (guilty, not guilty, or no contest).
Bench Trial vs. Jury Trial:
All Americans have a constitutional right to a trial by jury. In a jury trial, the jury is tasked with
deciding guilt and the judge hands down a sentence. In some cases, however, it may be in a
defendant’s best interest to waive a jury trial and opt for a bench trial, where the judge decides
guilt and hands down a sentence. This can be advantageous for the defendant if they know that
the judge holds opinions that may be favorable to their case or if they feel that a jury may be
unsympathetic due to the nature of their crime.
Plea Bargaining:
The majority of criminal cases don’t go to trial. In fact, between 90% and 95% of cases are
settled by “plea bargaining,” an oft-controversial process in which the prosecution and defense
agree on lesser charges or leniency in order to avoid the risk, cost, and labor of a trial. For
example, Linda has been indicted on one count of aggravated assault after she (allegedly)
attacked a mailman with a letter opener. Several of her neighbors claim to have witnessed the
crime, but none of them can say definitively whether the person attacking the mailman was in
fact, Linda. You see, Linda has an identical twin named Binda who lives in the same
neighborhood and was wearing similar clothes to Linda at the time of the attack. The prosecutor
doesn’t want to risk taking the case to trial since there’s a chance Linda might be acquitted, so
they offer to drop the aggravating factor and charge Linda with simple assault instead. Linda is
incentivized to take the deal because she knows there’s a chance she’ll be found guilty of
aggravated assault if her case goes to trial. There you have it: prosecutors love plea bargaining
because it’s fast, easy, and gives them a guaranteed win. Defense attorneys love plea bargains
because they’re fast, easy, and they guarantee some sort of benefit for the accused.
Sentencing
Different Ways to Approach Corrections
General vs. Specific Deterrence:
In CJ lingo, deterrence is the idea that harsh punishments are an effective way to reduce crime.
There are two broad categories of deterrence: general deterrence, whose goal is to reduce
crime in society, and specific deterrence, whose goal is to reduce crime in an individual. You’ve
probably heard of Vlad the Impaler. If you haven’t, all you need to know for now is that the dude
had a thing for impaling people on wooden spikes if he didn’t like them. This sent a pretty clear
message to the people under Vlad’s rule: “don’t **** with me.” As you can probably imagine, this
worked pretty well as a method of general deterrence (hence Vlad’s nickname). However, this
would not be an effective method of specific deterrence, because if you kill all of the specific
people you’re trying to reform, they can’t become reformed. They can only become dead. The
American criminal justice system uses both general and specific deterrence. One argument for
the death penalty is that people won’t commit murder if they know it’ll cost them their life. That’s
an example of general deterrence. Often, judges impose harsher sentences or larger fines on
reoffenders. This is an example of specific deterrence: these cases aren’t often codified as law
or given a lot of publicity. The aim is not to deter society at large from reoffending, but to deter
the specific offender from repeating their mistake.
Indeterminate vs. Determinate Sentencing:
Determinate sentences require that an offender spend a specific amount of time in prison
without parole. Indeterminate sentences, on the other hand, give a window with a minimum and
a maximum amount of time that an offender must spend in prison (i.e. 20-life). Indeterminate
sentences are subject to review by a parole board. Determinate sentences are usually given in
states where there are mandatory sentencing laws that limit judicial discretion.
Restorative Justice:
Restorative justice refers to a process in which offenders, victims, and communities work
together to repair the personal damage inflicted by a crime. Often, this involves supervised
meetings between the offender, the victim, and community members to discuss the impact of
the crime and how to make amends. Sometimes, the offender may be asked to pay a sum of
money to the victim or to a community fund. On other occasions, they may be asked to
participate in targeted education or community service. At times, victims simply ask for an
apology or an explanation. The concept of restorative justice stems from the idea that all human
beings have dignity. It differs from retributive justice in that it seeks to restore dignity to all
parties (the victim, the offender, and the community), instead of seeking to deprive the offender
of their dignity. Social studies indicate that restorative justice practices may reduce recidivism
and help with reintegration for incarcerated offenders.
Issues to Weigh in Sentencing
Mitigating vs. Aggravating Circumstances:
Certain crimes can be judged as more or less serious based on the circumstances in which they
were committed. Mitigating circumstances are factors that favor the defendant (in some way
make their crime less egregious), and aggravating circumstances are factors that make the
offender’s crime worse in the eyes of the law. Age, mental state, history of abuse (battered
woman syndrome, for example), and fewer offenses may be used as mitigating factors. The
idea here is that although the offender has violated the law, their violation may not be as serious
as other violations of the same type because they either had reduced decision-making abilities,
felt forced into breaking the law, or simply haven’t ever broken the law before. Common
aggravating factors used by prosecutors to obtain heftier sentences include criminal history, type
of force used in commission of the crime (deadly vs. non-deadly), whether violence or weapons
were involved in the commission on a non-violent felony (brandishing a gun during a robbery),
victim vulnerability (was the victim a child? Disabled? Elderly?), number of victims involved,
whether the crime was committed in front of a child, etc. The idea here is that the offender
should be sentenced to a longer term because the circumstances in which they committed the
crime make their violation of law worse.
Pre-Sentence Investigation Report (PSI):
A Presentence investigation report is prepared by a probation officer after an offender has been
found guilty. The purpose of the report is to gather background information on the offender in
order to inform the sentencing process; to that end, the probation officer will interview the
offender to find details about their family history, community ties, educational background,
employment history, physical health, mental health, history of substance abuse, financial
condition, willingness to accept responsibility for their crime, and any other pertinent facts. The
probation officer may also interview others with relevant information, including family & friends,
employers, medical providers, law enforcement officers, victims, or others. This report helps the
judge to decide on an appropriate sentence and is used by the parole board to evaluate fitness
for parole after the offender has begun to serve their time.
Institutional Corrections
Types of Institutions
Jails vs. Prisons:
Jails are used to hold offenders who are serving short sentences (typically less than one year,
almost always misdemeanors) or are awaiting trial. Prisons are used to house offenders who
have been sentenced to longer terms of imprisonment (generally for felonies). Jails are (almost
always) run by local law enforcement, while prisons are run by the state or federal department
of corrections.
The Auburn Model vs. The Pennsylvania Model:
Early prisons were sometimes called penitentiaries, a name derived from the idea that criminals
ought to feel penitent for their crimes. In early 19th century Pennsylvania, authorities decided
that they could best drive prisoners to penitence by subjecting them to complete solitude, day
and night. Prisoners were expected to undergo some sort of internal transformation by silently
reflecting on their crimes. As an alternative to the Pennsylvania system, authorities in New York
implemented a different regimen for prisoners held in the Auburn penitentiary. Here, inmates
were held to a strict code of silence and were put into solitary confinement during the night, but
during the day, they were allowed to eat and engage in hard labor together. Advocates for the
Auburn system argued that it was a better vehicle for rehabilitation because it taught inmates
the value of work, property, and other people. Eventually, due to rising prison populations and
the high cost of solitary confinement, most prisons in America adopted a model of corrections
that resembled a more liberal version of the Auburn Model.
Minimum Security vs. Maximum Security Prisons:
Depending on the crime they have committed, offenders may be housed in facilities of a certain
security level. Minimum security prisons tend to house nonviolent offenders. They are
characterized by dorm-style housing, few security features (no fences, gun towers, or armed
perimeter patrols), and more rehabilitative programs (vocational & work opportunities, classes,
group counseling, etc.). Maximum security prisons, on the other hand, usually house violent
offenders or prisoners who have attempted to escape in the past. They are characterized by
cage-style housing with remote-opening doors, minimal interaction between prisoners (and little
interaction between prisoners & guards), and heavy security protocols (razor-wire fences, guard
towers, regular shakedowns, armed patrols, etc.).
Issues Within Total Institutions
Prisoner/Inmate Rights:
Prisoners don’t have many enumerated rights, which makes sense, given that prisons are
meant to restrict inmates to a great degree. In fact, some of the only guaranteed rights prisoners
have are food, warmth, and exercise. Over time, other rights such as limited freedom of
expression, access to medical care, and others have been named by numerous courts, but
these aren’t yet recognized as universal. For the most part, courts have maintained a “hands off”
policy regarding corrections; they let correctional institutions set most of their own rules and
protocols, recognizing that perhaps the people on the front lines of corrections are better suited
to make executive decisions than the more detached courts.
Community Corrections
Institutional vs. Community Corrections
When an inmate is housed in an institutional correction center, they are pulled from their
community and kept in relative isolation. Prisons, jails, and mental institutions are all examples
of institutional correction centers. Some inmates are able to participate in community
corrections, programs that allow them to have more interaction with their communities. Some
examples of community correction centers are halfway houses, work or study release programs,
probation, and parole. Usually, inmates who participate in community corrections are allowed to
do so because they are deemed to be low-risk. They generally have an exemplary prison record
(obedient, helpful, non-violent) or have committed non-violent crimes. There is significant
evidence that community corrections reduce recidivism and allows offenders to make
meaningful social and economic contributions to their communities. On top of that, allowing
offenders to serve a sentence outside of prison means less money spent on housing, feeding,
guarding, and providing services for prisoners.
Probation vs. Parole
Presentence Investigation:
See the previous section on pre-sentence investigation reports.
The Process of Probation Revocation:
There are numerous terms attached to probation: offenders on probation may not violate any
laws or use controlled substances without a prescription. They must submit to drug and alcohol
tests, consent to searches, report regularly to their probation officer, and obey any other
miscellaneous probation terms. If they’re caught violating any of these terms, they’re brought in
for a hearing before a judge (a jury is never involved in probation hearings) who will decide
whether they have violated their probation based on the preponderance of evidence. This is
different from the “beyond reasonable doubt” standard of proof. When proving preponderance of
evidence, prosecutors must only convince a judge that at least 51% of the evidence indicates
that probation was broken. If the judge determines that probation was violated, the offender is
sent to prison with little to no chance of parole in the future. If the judge determines that
probation was not violated, the offender may continue their probation period.
The Role of Parole Boards:
The primary distinction between probation and parole is that probation is assigned before any
prison time has been served- it allows offenders to remain outside of prison as long as they
don’t violate the conditions of their probation. Parole is assigned to prisoners who have begun
their prison stay. Parole boards determine which prisoners can be sent back into their
communities on conditional release. Parole boards are typically made up of community
members (often judges, sociologists, or psychologists), who review inmates’ files, interview
defense attorneys, prosecutors, and victims, and look at the inmate’s background. If the inmate
is deemed suitable for parole, they may be given a conditional release. Factors that play into
parole eligibility include lack of a juvenile record or no significant criminal history, conditions
under which the crime was committed, stable social history, remorse, age, etc. Parole boards
differ from state to state, but their purpose and general function remains the same.
The Caseload Dilemma in Community Corrections:
The number of offenders involved in community corrections has grown substantially over the
last 20-30 years. Unfortunately, most community corrections institutions have not been funded
or staffed adequately to handle the increased workload, meaning that probation and parole
officers have to handle hundreds of cases at once. On top of that, there are a growing number
of conditions attached to community corrections programs, which means that community
corrections workers have to meet with offenders more often and spend more time ensuring that
no conditions are being violated. A 2006 study showed that cutting caseloads in half for
probation and parole officers in Maryland resulted in significantly lower violation and rearrest
rates.
Long-Term Effects of Felony Status Post-Release:
American felons are subject to a great deal of social stigma. Depending on the nature of their
offense, the details of their crime may be public; it is often difficult for reformed felons to find
work, obtain housing, and regain the trust of their community. Felons and ex-cons are typically
subject to enhanced scrutiny by law enforcement and may face harassment, false accusations,
and ostracization as a result. Felons are federally prohibited from owning firearms and are
prohibited from voting or sitting on juries at a state-wide level. Felons are often barred from jobs
in the military, law-enforcement, healthcare, and the k-12 education sector. In some states,
felons are barred from receiving public aid such as food stamps or education assistance. What’s
more, people who have been incarcerated once have a 42% higher risk of suicide than the
general populace and people who’ve been to prison at least three times are 113% more likely
than average to commit suicide.
Juvenile Justice
Parens Patriae in Juvenile Justice:
Parens Patriae is a latin term used in legal circles to describe the idea that the state has a right
and duty to act as the guardian of minors who do not receive adequate parental care. It
originated with the idea that juvenile delinquency is more the fault of the parents than the fault of
the offender. Theoretically, minors do not have the same decision-making capabilities as adults,
and it is their caretakers who ought to be responsible for teaching them social norms and
policing their behavior. When they fail to do so, it is right and just for the state to take temporary
custody of the offending child until they have been successfully reformed. The juvenile justice
system was originally formed in order to fulfill this purpose and to protect vulnerable children
from the worst aspects of adult prison life.
Adjudicatory Hearing vs. Dispositional Hearing:
In an adjudicatory hearing, the judge hears evidence from the prosecution and the defense and
decides whether a juvenile is delinquent or not. This process is analogous to an adult trial, but it
uses different terminology in order to avoid stigmatizing the young offender. The records for
juvenile hearings are also sealed and adjudications are much easier to get expunged than adult
records. In a dispositional hearing, the judge hands down the adjudication (delinquent or not
delinquent) and assigns some sort of punishment to the offender. This is similar to an adult
sentencing hearing, but juvenile corrections are more rehabilitation-focused than
retribution-focused. Juvenile courts tend to avoid incarceration in detention centers and favor
community service, probation, and fines.
Adult Waivers for Juvenile Offenders:
Most states allow juveniles to be waived into criminal court. The types of crime and minimum
age that are eligible for transfer vary from state to state, but the most common eligible offenses
are violent crimes or homicides, and the most common minimum age to be eligible for a waiver
to criminal court is 16. The rationale behind adult waivers for juvenile offenders holds that
minors who commit particularly egregious crimes, particularly large-scale or premeditated
offenses, ought to be held accountable at the same level as adults. They have committed
adult-level offenses and must face adult-level consequences. This stance has become
controversial as crime rates drop and society grows increasingly concerned with mental health
and civil liberties. Prosecutors can request to have juveniles waived into adult courts, but the
judge ultimately decides whether to grant the waiver. Judges sometimes use their discretion to
waive children into criminal court, and some states have presumptive and mandatory waiver
laws based on the offense committed.
Juvenile Residential Treatment:
DIfferent from a jail or prison, the primary focus of juvenile residential treatment centers is to
treat mental, emotional, or behavioral issues in minors. Juveniles can be sent to a residential
treatment center by a juvenile court or by their parent/guardian(s). Youth residential treatment
centers offer a number of rehabilitative opportunities and therapeutic programs whose aim is to
teach youth coping mechanisms, social skills, and values that will carry over once their stay is
finished.
Debate-Specific Material
Capital Punishment
Furman v. Georgia:
Three cases were grouped together in a 1972 supreme court ruling. The court decided that the
death penalty is cruel and unusual (thereby violating the 8th amendment) if it is applied in an
arbitrary or discriminatory manner. The court found that in each of the three cases being
considered, the death penalty had been inappropriately applied to the offenders due to their
minority status. After Furman, the death penalty was put on hold while states made changes to
their laws and prosecutorial processes to ensure that the death penalty would no longer affect
minorities at a disproportionate rate.
Gregg v. Georgia:
Five cases were grouped together and heard by the supreme court in 1976. In each case,
defendants relied on the court’s 1972 Furman v. Georgia ruled to argue that the death penalty
was a form of cruel and unusual punishment. The defendants also argued that capital
punishment was a violation of human dignity and a consequence disproportionately severe for
the crimes they had committed. The supreme court ruled that the death penalty was not cruel or
unusual, since the states in which each of the defendants had been sentenced had revised their
capital punishment statutes to control for racial bias. The court also ruled that capital
punishment is not a violation of human dignity and is not a disproportionate form of retribution
for violent, egregious crimes.
1990s “Get-Tough” Policies
Three Strikes & Habitual Offender Laws:
Due to the uptick in violent and drug crime in the ‘80s and ‘90s, many state legislatures passed
“three-strikes” or “habitual offender” laws that punished repeat offenders more with extra
severity. In some states, offenders could be convicted to life in prison for their third crime,
regardless of the nature or severity of their offense. Lawmakers expected that harsher
sentencing practices across the board would reduce non-violent and violent crime alike. For
example, it was thought that a large proportion of violent crimes were committed in connection
to drug crimes, so by locking up drug offenders for life at a higher rate, lawmakers hoped to
dampen the rising violent crime rates in their jurisdictions. In most cases, habitual offender laws
had little to no effect on crime rates and have since become a matter of widespread controversy.
“Truth in Sentencing” Laws:
Also due to the crime epidemic of the late 19th century, some states passed “truth in
sentencing” laws that prohibit parole or early release for offenders who had served less than
85% of their minimum sentence, regardless of good behavior or credit for time served.
Legislators believed that criminals were being treated too leniently by corrections institutions
and that more guaranteed prison time would act as a deterrent and reduce crime.
Sentencing Guidelines:
Mandatory sentencing guidelines have been implemented in many states in order to ensure
universality of sentencing and corrections. Lawmakers who support mandatory sentencing want
to ensure that criminals are punished proportionately to the severity of their crime. Sentencing
guidelines are a deterrent, much like the other “tough on crime” policies of the ‘90s. Many
criminologists and legal experts have spoken out against deterrence policies as outdated and
ineffective.
Solitary Confinement
Solitary Confinement and the Four Philosophical Justifications for Corrections:
● One philosophical justification for corrections is retribution. Under this ideal, offenders
are imprisoned as a means of punishment; they’ve wronged society and they deserve to
have certain freedoms denied in retaliation. Solitary confinement fits this justification if it
is used as a punishment for unacceptable or deviant inmate behavior. This is closely tied
to the idea of specific deterrence.
● Another philosophical justification for corrections is deterrence. The idea here is that if
people know they will be incarcerated when they commit a crime, they will be less likely
to offend the law. The same idea can apply to the use of solitary confinement after a
person has been incarcerated: if all inmates are aware that solitary can be used as a
punishment for misbehavior, the majority of inmates are less likely to act out.
●
●
The third major philosophical justification for corrections is incapacitation, which refers to
rendering a person incapable of inflicting harm on others. If a criminal is considered
violent or dangerous, proponents of incapacitation would argue that they ought to be
incarcerated in order to protect society. Similarly, if a prisoner is violent, dangerous, or
thought to influence their peers negatively, they may be put in solitary in order to protect
other inmates.
The final major philosophical justification for corrections is rehabilitation. The Auburn and
Pennsylvania models of incarceration held that prisons should force inmates to reflect on
their mistakes and undergo a profound inner change (back in the day, this had heavy
religious connotations). The same can be said for solitary confinement today. Some
inmates may be restricted to solitary confinement until their belligerent attitude is
“broken” or until they realize that they need to change in order to be allowed in the
general prison population.
“For Profit” Prisons
Justifications for Using For-Profit Prisons:
For profit prisons were created to alleviate the cost and burden of housing state-held inmates.
During the late 20th century, rising prison populations created overcrowding issues in many
prisons, and some institutions were even forced to release prisoners early in order to make
room for new convicts. A few people with experience in corrections thought that they could run
private prisons at a lower cost than the state, so they set up a company and started charging
the government to house some of their excess prisoners. Theoretically, the benefits of for-profit
prisons should have included lower operation costs, better facilities & rehab programs, less
overcrowding, and safer prisons. In reality, none of that has really panned out.
Extra Credit
3 Potential Explanations for Racial Disparities in Incarceration:
● The theory of differential involvement holds that some racial groups commit crime at a
higher rate than other groups, and so it is natural that they are overrepresented in the
carceral system. This theory posits that the laws are justly made and administered, and
that the only factor to blame in minority overrepresentation in the justice system is
minority behavior.
● The theory of differential selection argues that law enforcement officers interact with
and/or single out minority offenders at a disproportionately high rate. Some argue, for
example, that racial profiling and implicit bias are to blame for higher rates of imprisoned
blacks and hispanics. This theory holds that the laws are just, but the people who
enforce the laws do not always act fairly.
● The theory of institutional racism asserts that minorities have more police interactions,
are arrested at a higher rate, and are punished more harshly than their non-minority
counterparts because the entire law-enforcement mechanism is corrupt. Many argue, for
example, that drug laws target only the types of controlled substances popular among
impoverished and minority users and ignore or fail to punish as harshly the types of
drugs favored by rich suburbanites. Others cite America’s troubled history of slavery and
racism to argue that the criminal justice system has not yet untethered itself from the
idea that minorities ought to hold second-class legal status or be treated as inferiors.
This theory holds that the laws, lawmakers, and peace officers in America are all
responsible for the overrepresentation of minorities in the justice system.