University of the West Indies
Criminal Justice in America:
A Sociological Approach
Randall G. Shelden
University of Nevada-Las Vegas
Criminal Justice in America:
A Sociological Approach
Randall G. Shelden
University of Nevada-Las Vegas
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Introduction:
The Criminal
Justice Process
The Homogenization Process
Criminal justice in America is a process of selection. Not every crime that is committed is
reported to the police; not every crime reported to the police results in an arrest; not every
arrest results in a conviction; not every conviction results in a prison sentence. In other
words, criminal justice is a process whereby individuals are sifted and sorted out at various points
within the system. This book is about this process.
To serve as a model to guide us, we shall conceive of the criminal justice process as a
homogenization process. The term may be defined by describing it as a process. This concept
was conceived by the late Professor Charles H. Newton and elaborated upon in an -article
appearing in the International Journal of Criminology and Penology by Newton, Shelden, and
Jenkins (1975). Figure I-1 illustrates this process. It begins with acts that may or may not be
considered as "criminal" (designated as "social harms"). At the beginning of the process we
have a very heterogeneous group of people, since just about everyone com mits some act
that could be considered a "social harm" or even "criminal." However, very few of these
acts come to the attention of the police. Of those that do come to the attention of the
police (most often from a citizen who calls the police and reports a crime), only a small
percentage (less than 20 percent) results in an arrest. Even of those ar rested, many are never
charged with a crime (or "booked"). As we proceed through the stages of the system, we see
that the number of people involved as defendants are futher reduced. Also, and more
importantly, the kinds of people involved become more and more homogeneous. For instance, they become
more alike in terms of age (younger), sex (more are males), race (increasingly nonwhite), social
class (increasing numbers of lower- and working-class people), offense (more and more "index"
offenses, especially property offenses such as robbery, burglary, and larceny), and more and more
with previous experiences with the criminal justice system. When we arrive at the last stage,
the prison populations, we have the most homogeneous grouping in which the vast majority are
poor, unskilled, uneducated, and well experienced in crime and have had much contact with the
criminal (and juvenile) justice system.
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No Legislation (Not Considered a “Crim e”)
Soc ial
Harm s
Legislation (Considered a “Crim e”)
Not Reported
Crim e
Com m itted
Reported
No Arrest
Polic e
Responc e
Arrest
Not Charged with a Crim e
Charging
Proc ess
Charge with a Crim e
Charge Not Ac c epted
Prosec uter’s
Dec ision
Charge Ac c epted, Com plaint Filed
Com plaint Dism issed
Initial
Appearanc e
Com plaint Ac c epted
Dism issed/No True Bill
Prelim inary
Hearing
Indic tm ent/Inform ation
Dism issed
Arraignm ent
Set for Trial
Not Guilty
Trial
Guilty
NP
Sentenc e
PNI
Prison
NP = non-punitive response (e.g., probation, suspended sentence)
PNI = punitive response, non-institutional (e.g., community-based correction
Figure I-1 The homogenization process.
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While this sifting and sorting are often based on such legal criteria as offense (especially its
seriousness) and past record, nonlegal variables such as class, race, and sex play an important role
as well. An inmate at a women's prison told Kathryn Burkhart: "Money talks, bullshit walks"
(Burkhart, 1973: 3). This statement illustrates a strong feeling among many inmates (and noninmates too) that if you have money and power you may never go to prison no matter what kind
of offense you commit. There is certainly an element of truth to this and, as we shall document
throughout this text, money does in fact buy one's freedom.
Several studies have documented this homogenization process, studies which will be discussed
throughout this text. One writer, while not stressing nonlegal factors, nevertheless states that the
criminal process is like a "sieve" in that it is "constantly sifting persons out of the criminal justice
system before they complete all of the stages in the process" (Kerper, 1979: 176-177). Reiman, on
the other hand, flatly asserts that "the criminal justice system effectively weeds out the well-to-do,
so that indeed by the time we reach the end of the road in prison, the vast majority of those we find
there come from the lower classes." He further asserts (1979: 96):
This "weeding out" process starts before the agents of law enforcement go into
action ... our very definition of crime excludes a wide variety of actions at least
as dangerous as those included and often worse ... Even before we mobilize our
troops in the war on crime, we have already guaranteed that large numbers of
upper-class individuals will, never come within their sights ... At every level,
from arrest to sentencing, the likelihood of being ignored or released or
lightly treated by the system is greater the better off one is economically.
One important factor that is crucially linked to class position and criminal justice is that of
power. Power can be defined in many different ways. One sociology text has defined it as follows
(Light and Kellar, 1975: 197): "Basically, power is the ability to mobilize collective energies,
commitments, and efforts. Personal power is the freedom to choose, to design one's own destiny.
Social power is the ability to affect public affairs, even if others oppose you. Social power may be
formal or informal. By formal power or authority, we mean the prerogatives that legitimately go
with an office, such as the presidency of a nation or company. By informal power, we mean
influence, the know-how and know-who to pull the strings behind the scenes." Those who have this
power are able to influence legislation to their own advantage and/or the disadvantage of others.
Another example of power, as indicated in the above definition, is that certain individuals with
"pull" can avoid detection of criminal acts;,, (or prevent acts from being defined as "criminal") or,
if caught, can avoid or at least minimize punishment.
The remainder of the book will be a more detailed elaboration of the general principle of this
homogenization or filtering process. The process contains a number of major steps and key
decision points within each major step. At each point, such social factors as race, social class, and
sex play important roles in determining whether or not one proceeds to the next stage.
The homogenization process, graphically illustrated in Figure I-1, shows the major stages of
the criminal justice process. Not counting legislation, there are eight major stages noted here. In
the first stage, a crime is committed, with two alternative responses: reported or not reported to
the police. In the second stage, the police respond in one of two ways: either an arrest is made or
no arrest is made. After an arrest is made, we arrive at the third stage in which the police decide
whether or not to officially charge the suspect with a specific offense. It is at this stage that the
nature of the offense largely determines where the case will go. For misdemeanors, the individual
is typically released on his or her own recognizance (or for a rather small bail) and told to appear
in court on a certain date (in the case of most traffic offenses, the individual simply pays a fine on
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or before the court date). For felonies, the following stages are typically followed. In the fourth
stage, the district attorney's office screens the case and either files a formal complaint or dismisses
the case (e.g., because of lack of evidence). In the fifth stage, the initial appearance, a magistrate
(judge) either accepts the prosecutor's complaint or dismisses the case. In the sixth stage, the
preliminary hearing, a judge determines whether or not to accept the case. If the case is accepted,
there is either a grand jury indictment (if a grand jury hears the case, this is an additional stage in the
process) or an information is filed by the prosecutor. The seventh stage is the arraignment, during
which time a case may be dismissed or set for trial in the case of a not guilty plea. The eighth stage
is the trial. We will now continue this introductory chapter with a more detailed overview of these
stages in the criminal justice system.
The Criminal Justice Process: An Overview
The actual criminal justice process is set in motion when either a citizen reports a crime or an
offense is witnessed by the police. After this occurs, the case continues through the following
stages. At each of these stages the case may be discontinued for one of many reasons. The
majority of all cases are disposed of before the final stage is reached.
1. The Arrest. If a citizen reports that a crime has been committed, this does not
necessarily mean that what happened was really a crime. In the first place, the police
may choose to ignore the citizen's complaint and never respond. In the second place,
the police may arrive at the scene and decide that either no crime was actually
committed or what happened is too minor or unimportant (at least from the police's
standpoint) to be taken seriously (i.e., considered a crime). In the third place, by the
time the police arrive the alleged offender may be long gone, in which case the officers
merely record all relevant information and pass it along to police investigators, who
may or may not be able to solve the case by an arrest. Finally, the police may stop the
person who committed the crime and may choose not to make an arrest (e.g., in the
case of a drunk driver, the police may escort the driver home). In any event, the fact
remains that the vast majority of crimes known to the police never result in an arrest. If an arrest
does take place, the person arrested will be booked at the police station. This is merely
a clerical process in which the arrest is officially recorded. If the arrested person is a
juvenile (in most states anyone under 18 years of age), the case is referred to juvenile
court. If not, the case proceeds to the next stage.
2. Charging. The next critical decision is that of whether or not to file a formal charge. A
member of the police department reviews the case and if it is decided to press charges,
the case is passed along to the prosecutor's office. If not, the case is dismissed, usually
with the notation in the records sent to the FBI that no charges were filed, and the
defendant is freed. If charges are filed, the prosecutor's office reviews the case and
decides whether or not to file a complaint, which moves the case to the next stage.
3. Filing a Complaint. If the prosecutor decides to proceed with the case, he or she files a
complaint. This formal procedure specifies the charges to be presented to a magistrate
(usually a local justice of the peace), who in turn (at least in felony cases) reviews the
case and decides whether or not the case has the legal basis to continue.
4. The Initial Appearance. An arrested person must, according to law, be presented before a
magistrate "without unnecessary delay." This is usually within a 72-hour period. The
first appearance is usually brief. At this time the defendant is apprised of his or her
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rights (e.g., right to counsel) and bail is set. (It should be noted that in many cases the
defendant is already out on bail through a bailbondsman.)
5. Preliminary Hearing. If the case is accepted at the initial appearance (which is not, of
course, automatic), there is a much more formal hearing. Both the prosecuting and
defense attorneys present their case before a magistrate (often the same judge who was
present at the initial appearance). If the magistrate believes that there is sufficient
evidence to support the complaint, the case is "bound over" to either the grand jury or
a trial court. If not, the case is dismissed and the defendant is freed. (In misdemeanor
cases the next stage is bypassed.)
6. Filing the Indictment or Information. In some cases, a grand jury is convened to decide
whether or not there is sufficient evidence to bring the case to trial. If there is, an
indictment is filed with the court. In most cases, however, the prosecutor files what is
called an information, a formal charging document similar to an indictment, which brings
the case to trial. But before this takes place one more stage is passed.
7. Arraignment on the Information or Indictment. It is at this stage that most cases come to an
abrupt halt because the defendant is asked to enter a plea. Most plead either guilty or
nolo contendere (no contest) and the case is set for sentencing. If the plea is not guilty, the
case goes to trial.
8. The Trial. A trial is an adversary proceeding during which the defense and prosecution
present their cases. There are several critical points during this stage (some of which
could end the case), such as the selection of a jury, pretrial motions (e.g., change of
venue, motion to dismiss), cross-examination of witnesses, etc. The defendant is either
found guilty or not guilty by the jury (a group of citizens, usually 6 or 12). In some
cases, the jury cannot reach a verdict (a unanimous decision); this is known as a hung
jury. If there is a hung jury, the jury is dismissed and the case is tried over again (unless
the prosecutor's office refuses to do so). If the defendant is found guilty, the case
proceeds to the next stage.
9. Sentencing. If there is a guilty verdict, a sentence is passed by either the judge or the jury.
Sentencing follows shortly after the trial has ended. Between the time of the verdict
and sentencing the Department of Probation (in most jurisdictions) prepares what is
known as a presentence report. Among other items of information, this report contains a
recommended sentence. The sentence is either a prison term (or jail term in the case of
a misdemeanor) or some form of probation, or a combination of the two.
The criminal justice process comes to a close at this stage, but there are two more stages which
may be reached by some defendants. One is the appeal stage. Every defendant has the right to file
an appeal of the decision to a higher court (e.g., court of appeals, supreme court). This court
(called an appellate court) either affirms or reverses the conviction. If the conviction is reversed, the
case goes to trial again. The other stage is that of probation or parole revocation. If a defendant is
placed on probation, there are a number of rules and regulations that must be followed. If one of
these rules is violated, the state may revoke probation and sentence the defendant to prison. If the
defendant is sentenced to prison, he or she at some point (in most cases) will be released on
parole prior to the expiration of the sentence. Parole is a period of supervision in the community.
If parole rules are violated, the defendant may have his or her parole revoked and may be put back
in prison to serve out the remainder of the original sentence.
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The presentation given above is, of course, an idealized version of what is supposed to happen.
What really happens varies in both time and space. Figure I-1 and the above discussion indicate
that there are several critical stages during which important decisions are made. It is especially
during these decision-making stages that the homogenization process is most recognizable. It
must be noted, however, that one very important stage is omitted: the formulation of criminal
laws (which, after all, define what is "criminal" and hence what the criminal justice system will
process). This is actually the first stage in the beginning of the homogenization process. As the
Reiman quote above suggests, many acts that are harmful are not considered criminal. It is not by
accident that many harmful acts engaged in by those of high social standing are either not
considered criminal or if so are considered misdemeanors.
Those who pass these laws are predominantly those of high social standing (in many cases
they are quite wealthy; some are even classified as millionaires), specifically upper-middle and
upper-class white males.
Key Terms
Homogenization process
Power
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