The Courts
What happens between arrest and
corrections
The Structure of the Courts
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State Courts
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Layers of Trial Courts (Superior and inferior)
Appellate courts
Supreme court
Federal Courts
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Trial courts
Federal Appeals courts “District courts”
The Supreme Court
U.S. Supreme Court
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9 Justices, appointed by president, in
consultation with senate
Appointment is for life
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High stakes for politics
Interpret laws in light of constitution
and past court rulings
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Choose what cases they wish to hear—can
originate in state or federal court
Who are the “players” in the
judicial system?
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Prosecutor
Defense Attorneys
Judges
The Prosecutor
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Represents the state in criminal matters
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Federal = Attorney general and U.S.
attorneys
State = District or State attorney
The 400 pound gorilla of the court
system
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What does a 400 pound gorilla do?
Prosecutorial Discretion
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Whatever he wants!
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Decisions
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Whether or not to
charge & specific
charge
Decision to drop case
May enter and end
plea negotiations
The Defense Attorney
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Private Attorneys (Johnny Cochran)
Sixth Amendment right to counsel
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Attorney list system
Contracting with law firm
Public defenders system (large, urban)
Roughly ¾ of state inmates are
represented by publicly funded
attorneys
Role of the Defense
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Represent their client in a vigorous,
adversarial manner
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Investigate incident, interview
client/witnesses, represent client at all
proceedings, negotiate plea with district
attorney
Conflict of interest? The Devil’s Advocate
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Low pay and conflict of interest =
burnout
The Judge
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During Trial
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Rule on questions of procedure
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how to question witnesses, rules of evidence
May determine guilt in a bench trial
After trial or plea bargain
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Responsible for determining sentence
TYPICAL PROCESS
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Pre-Trial Decisions
Trial/Plea Bargain
Sentencing
The Courts System Process
1.
2.
3.
4.
5.
Formally charge
Pre-trial Detainment Decisions
Determine guilt or innocence
Impose a sentence
Hear appeals
Pre-Trial Decisions
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Prosecutor must issue a criminal charge
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Formal document, lays out facts of case,
circumstances of arrest, penal code
Felony cases = bill of “indictment” or
“information”
Misdemeanors = criminal complaint
Pre-Trial Decisions
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Arraignment
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Judge makes sure defendant understands
charge
Makes sure defendant has counsel
Defendant enters plea
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Guilty
No Contest
Not Guilty
Decision regarding pre-trial detainment
Pre-Trial Detainment
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Jail
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50% pre-trial, 50% sentenced < 1 year
Alternatives to Jail?
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Bail System
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Bail Bondsmen
Fairness?
Alternatives to Bail?
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Pretrial Supervised Release
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Release on Recognizance (ROR)
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Essentially probation while out in community
before trial (similar “conditions”)
Promise to come back
Why do people fail to show up for court
dates?
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Role of pretrial services
The Trial
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Jury Selection
Trial Process
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Opening statement
Prosecutor
Defense
Closing argument
Verdict
Sentence
Is the process really
“adversarial?”
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Sam Walker’s “Wedding Cake” Model
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Celebrated cases may approach ideal of an
adversarial process
Lower “layers” = administrative rather
than adversarial
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Judge, defense, and prosecutor have a
shared understanding of what a case is
“worth”
The Courtroom Workgroup
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Term coined by Malcolm Feeley
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Judges, prosecutors and defense work together
daily
Minimize conflict and develop informal procedures
for dealing with cases
The “Going Rate”
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Seriousness of offense
Prior record of defendant
Relationship between victim and defendant
Plea Bargaining
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What is bargained?
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Charge
Sentence
Conservatives = loophole
Liberals = perversion of the system
Reality? Given the “going rate,” it is not
so much a “bargain” as standardized
administrative process
Benefits of Plea Bargaining
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State
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Prosecutor assured of guilt verdict
Save the court time and cash
More time for “serious cases”
Defendant
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Avoid pre-trial detention
No uncertainty in sentence
May get more lenient sentence
Sentencing Structures
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Indeterminate
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Tied to rehabilitation
More open ended, typically tied to parole release
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Sentence = 2-5 years
Determinate
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More Fixed
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Sentence = 26 months
May still get out early through a variety of mechanisms
(e.g., good time credits)
Specialized Sentencing Schemes
within Determinate Sentencing
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Mandatory Minimum Sentences
3 strikes legislation
Truth in sentencing
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Federal initiative 85% for UCR Part I
violent offenses
Sentencing Guidelines
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End result of the debate over rehabilitation
and intermediate sentences (1960s-1970s)
 Take discretion away from…
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Liberals = racist / classist judges
Conservatives = liberal weenie judges
Question: Where does the discretion go?
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Who creates the sentencing grid?
CRIMINAL HISTORY SCORE
SEVERITY LEVEL OF
CONVICTION OFFENSE
(Common offenses listed in italics)
0
1
2
3
4
5
6 or
more
Murder, 2nd Degree
(intentional murder; drive-byshootings)
XI
306
299-313
326
319-333
346
339-353
366
359-373
386
379-393
406
399-413
426
419-433
Murder, 3rd Degree
Murder, 2nd Degree
(unintentional murder)
X
150
144-156
165
159-171
180
174-186
195
189-201
210
204-216
225
219-231
240
234-246
Criminal Sexual Conduct,
2
1st Degree
Assault, 1st Degree
IX
86
81-91
98
93-103
110
105-115
122
117-127
134
129-139
146
141-151
158
153-163
Aggravated Robbery 1st Degree
Criminal Sexual Conduct,
nd
2
2 Degree (c),(d),(e),(f),(h)
VIII
48
44-52
58
54-62
68
64-72
78
74-82
88
84-92
98
94-102
108
104-112
Felony DWI
VII
36
42
48
54
51-57
60
57-63
66
63-69
72
69-75
Criminal Sexual Conduct,
2nd Degree (a) & (b)
VI
21
27
33
39
37-41
45
43-47
51
49-53
57
55-59
Residential Burglary
Simple Robbery
V
18
23
28
33
31-35
38
36-40
43
41-45
48
46-50
Nonresidential Burglary
IV
12
1
15
18
21
24
23-25
27
26-28
30
29-31
Theft Crimes (Over $2,500)
III
12
1
13
15
17
19
18-20
21
20-22
23
22-24
Theft Crimes ($2,500 or less)
Check Forgery ($200-$2,500)
II
12
13
15
17
19
21
20-22
Sale of Simulated
Controlled Substance
I
12
13
15
17
19
18-20
1
12
1
1
12
1
1
12
Sentencing and Discretion
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With guideline sentencing, who has
discretion?
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Who creates the grids?
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Many states = legislature
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MN: The Minnesota Sentencing Guidelines Commission
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Constant pressure to increase sentences
1980 guidelines tied to prison population
Prosecutors
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Decide the charge (where you land on offense
seriousness)
Sentencing Disparity
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When 2 people who commit similar
crimes, and have the same prior record
receive different sentences
What stage do disparities enter?
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Jurisdictional Differences
Plea bargaining (part of “going rate?”)
Victim/Offender relationships
Sentencing judge (biased, bad day…)
Racial Disparities
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RACE
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Incarceration Rates
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Black = 3,300/100,000
Hispanic = 1,200/100,000
White = 500/100,000
BUT…
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Disparities enter prior to judicial involvement
(police)
Disproportionate involvement in serious crime
Racial Disparity in Sentencing II
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The “Liberation Hypothesis”
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More disparity when black offender and white
victim
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More disparity in less serious cases
Rape and Capital Murder
Race as part of “offense seriousness” and
“prior record”
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Crack cocaine laws, aggressive policing of minority
communities
Other Disparities
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Class = Difficult to detect (most in
system are relatively poor)
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Difference between white collar and street
Differences in some “celebrated cases” are
obvious
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Full benefit of highly paid defense attorneys
Gender
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Females more likely to be treated leniently
Reducing Sentencing Disparity
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Sentencing guidelines
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May reduce some disparity, but does not
eliminate
Disparity may be “built in” to sentencing
grid (e.g., crack penalty)
Do we want to eliminate all disparity?
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More harsh with females?
Some disparities may be due to legitimate
factors