The use of Deadly Force



Tennessee v. Garner
(1985) “Fleeing Felon”
Trend of police killings (and
killings of police) have been
downward
Most department have
guidelines for when police
may discharge firearm

Review boards for firearm
discharge + administrative
leave
1
The Courts
What happens between arrest and
corrections
The Structure of the Courts

State Courts




Layers of Trial Courts (Superior and inferior)
Appellate courts
Supreme court
Federal Courts



Trial courts
Federal Appeals courts “District courts”
The Supreme Court
U.S. Supreme Court


9 Justices, appointed by president, in
consultation with senate
Appointment is for life


High stakes for politics
Interpret laws in light of constitution
and past court rulings

Choose what cases they wish to hear—can
originate in state or federal court
Who are the “players” in the
judicial system?



Prosecutor
Defense Attorneys
Judges
The Prosecutor

Represents the state in criminal matters



Federal = Attorney general and U.S.
attorneys
State = District or State attorney
The 400 pound gorilla of the court
system

What does a 400 pound gorilla do?
Prosecutorial Discretion

Whatever he wants!

Decisions



Whether or not to
charge & specific
charge
Decision to drop case
May enter and end
plea negotiations
The Defense Attorney


Private Attorneys (Johnny Cochran)
Sixth Amendment right to counsel




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

Represent their client in a vigorous,
adversarial manner


Investigate incident, interview
client/witnesses, represent client at all
proceedings, negotiate plea with district
attorney
Conflict of interest? The Devil’s Advocate

Low pay and conflict of interest =
burnout
The Judge

During Trial

Rule on questions of procedure



how to question witnesses, rules of evidence
May determine guilt in a bench trial
After trial or plea bargain

Responsible for determining sentence
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

Prosecutor must issue a criminal charge



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

Arraignment



Judge makes sure defendant understands
charge
Makes sure defendant has counsel
Defendant enters plea




Guilty
No Contest
Not Guilty
Decision regarding pre-trial detainment
Pre-Trial Detainment

Jail


50% pre-trial, 50% sentenced < 1 year
Alternatives to Jail?

Bail System


Bail Bondsmen
Fairness?
Alternatives to Bail?

Pretrial Supervised Release


Release on Recognizance (ROR)


Essentially probation while out in community
before trial (similar “conditions”)
Promise to come back
Why do people fail to show up for court
dates?

Role of pretrial services
The Trial


Jury Selection
Trial Process






Opening statement
Prosecutor
Defense
Closing argument
Verdict
Sentence
Is the process really
“adversarial?”

Sam Walker’s “Wedding Cake” Model


Celebrated cases may approach ideal of an
adversarial process
Lower “layers” = administrative rather
than adversarial

Judge, defense, and prosecutor have a
shared understanding of what a case is
“worth”
The Courtroom Workgroup

Term coined by Malcolm Feeley



Judges, prosecutors and defense work together
daily
Minimize conflict and develop informal procedures
for dealing with cases
The “Going Rate”



Seriousness of offense
Prior record of defendant
Relationship between victim and defendant
Plea Bargaining

What is bargained?





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

State




Prosecutor assured of guilt verdict
Save the court time and cash
More time for “serious cases”
Defendant



Avoid pre-trial detention
No uncertainty in sentence
May get more lenient sentence
Sentencing Structures

Indeterminate


Tied to rehabilitation
More open ended, typically tied to parole release


Sentence = 2-5 years
Determinate

More Fixed


Sentence = 26 months
May still get out early through a variety of mechanisms
(e.g., good time credits)
Specialized Sentencing Schemes
within Determinate Sentencing



Mandatory Minimum Sentences
3 strikes legislation
Truth in sentencing

Federal initiative 85% for UCR Part I
violent offenses
Sentencing Guidelines

End result of the debate over rehabilitation
and intermediate sentences (1960s-1970s)
 Take discretion away from…



Liberals = racist / classist judges
Conservatives = liberal weenie judges
Question: Where does the discretion go?

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

With guideline sentencing, who has
discretion?

Who creates the grids?

Many states = legislature


MN: The Minnesota Sentencing Guidelines Commission


Constant pressure to increase sentences
1980 guidelines tied to prison population
Prosecutors

Decide the charge (where you land on offense
seriousness)
Sentencing Disparity


When 2 people who commit similar
crimes, and have the same prior record
receive different sentences
What stage do disparities enter?




Jurisdictional Differences
Plea bargaining (part of “going rate?”)
Victim/Offender relationships
Sentencing judge (biased, bad day…)
Racial Disparities

RACE

Incarceration Rates




Black = 3,300/100,000
Hispanic = 1,200/100,000
White = 500/100,000
BUT…


Disparities enter prior to judicial involvement
(police)
Disproportionate involvement in serious crime
Racial Disparity in Sentencing II

The “Liberation Hypothesis”


More disparity when black offender and white
victim


More disparity in less serious cases
Rape and Capital Murder
Race as part of “offense seriousness” and
“prior record”

Crack cocaine laws, aggressive policing of minority
communities
Other Disparities

Class = Difficult to detect (most in
system are relatively poor)


Difference between white collar and street
Differences in some “celebrated cases” are
obvious


Full benefit of highly paid defense attorneys
Gender

Females more likely to be treated leniently
Reducing Sentencing Disparity

Sentencing guidelines



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?

More harsh with females?

Some disparities may be due to legitimate factors
Corrections

Carrying out the sentence of the
decreed by the judicial system




History of Corrections
Community Corrections
Intermediate Sanctions
Institutional Corrections
Colonial America (1600s1750s)



Punishment was public
Punishment was corporal or capital
Prison-like institutions existed, but were
not used as “punishment”
COPORAL PUNISHMENTS
The Rise of the Penitentiary
(1750-1800)

William Penn


Revised criminal code in Pennsylvania to
forbid torture and mutilation; ordered new
“houses of correction”
Walnut Street Prison (1790)

Other states (New Jersey, New York)
followed
Walnut Street Jail and Eastern
Penitentiary
Corrections in the 1800s



Prison brutal, corporal punishment
prevalent
Prison building boom (1850s)
The Rise of Prison Industry

Contract system, convict-lease, state
account
The Progressive Era (early 1900s)
to the 1960s


The Progressives attacked many social
ills (working conditions, poverty….)
In Criminal Justice

Rehabilitation (not punishment, penance)
should be the goal of corrections


Psychology/Sociology “Causes”
Platform of indeterminate sentences,
probation, parole…
Corrections from 1970 to
present

1960s-1970




1970s = deterrence
1980s-2000s: deterrence/incapacitation




Faith in rehabilitation crushed
Liberals = justice model, Conservatives = punish
Return to determinate sentencing
3 strikes legislation, mandatory minimums, harsh
sentencing guidelines…
Chain gangs, “strip-down” prisons
Currently: Evidence based corrections?
Conscience and Convenience

Why were the first prison built?



Revulsion of Gallows  “Penitentiaries”
Then, “Correctional Facilities”
Why do we still build prisons if we no
longer believe in rehabilitation?

Incapacitation as the “default” goal of
prisons….or “convenience”
The Corrections Continuum




Probation
Intermediate Sanctions
Jails
Prisons
Probation


Formally adopted in progressive era
Suspend sentence, in return, offender
abides by “conditions of probation”


Conditions set and enforced by judicial
system
Offenders who “fail” may have probation
revoked, and original sentence imposed
Functions of Probation
Departments

Pre-sentence Investigation (PSI)



Interview offender, case history, tied to
rehabilitation
Includes recommendation for sentence
Supervision of Offenders



Counseling, meet with offenders
Help with job, broker community resources
Supervise (house visits, drug testing)
Use of Probation

65% (almost 2/3) of the total corrections
population is on probation



Roughly 4.2 million offenders are on probation
Average Caseload = 120
Goal has shifted

Rehabilitation (1920-60s) to supervision/zero
tolerance (1980s-1990s) to “balanced” (?)
Parole

Parole as release from prison


Discretionary release
Parole board = appointed by governor


Related to rehabilitation and intermediate sentences
Parole as supervision



Similar to probation supervision
Early release a privilege, therefore must follow conditions of
release
Many states abolished parole release in 1980s, but now
retain supervision

“Post-custody supervision” or “Community Control”
How “effective” are probation
and parole supervision?

Cost savings


Probation and parole are much less expensive than prison
Recidivism
 Large differences in “recidivism” across
jurisdictions



For felons on probation, as high as 65% (California
felons), as low as 17% get arrested within 3 years
Depends upon “risk” of clients
Failure rates higher for parolees

40% return to prison within 3 years, arrest rates much
higher
Intermediate Sanctions
Probation
Prison Death
ISP EM Boot Camp
WHY do these critters exist?



Prison crowding in 1980s
Probation viewed as failure
Need for “continuum” of sanctions
What is the goal of these
critters?



Divert offenders from prison (save
money)
Reduce recidivism (through deterrence)
Provide an option to judges that fits
between prison and probation
Intensive Probation or Parole
Supervision (ISP) as Example

Idea is to “soup up” traditional
supervision




Reduce Caseloads (15 to 40 offenders)
Daily contact with offender
Routine drug testing
Curfews, home and employment visits
Do ISP’s work?

Do ISP’s divert from prison?


NO, judges are reluctant to send “prison-bound”
offenders to ISP (Net Widening)
Do ISP’s reduce recidivism?

NO, when compared to similar group of
offenders, they actually do worse (fishbowl
effect)

Movement over past decade to use ISP as a way to punish
probationers, to enforce treatment, or to incorporate effective
treatment within the ISP framework
Residential Community
Corrections

Traditional “Half-way house”


Used to reintegrate prison inmates into
society
Now




Traditional functions
Sanction for probation violators
Day reporting centers
Split sentences (probation + RCC time)
How do RCC’s Work?

Typically, they are house-like structures
(not prison-like)

Inmates (clients) are usually free to leave
during the day (job, classes), and return at
night


Progression from little freedom to more
freedom
RCC as primary way to provide correctional
treatment
Institutional Corrections
Go to jail, go directly to jail, do
not pass go, do not collect $200
JAILS

County Level Institutions



Usually run by Sheriff and deputies
House inmates (less than 1 year) and
pre-trial detainees
Conditions notoriously poor


Little programming, no medical facilities
Violence, shifting population, suicide rates
high
Prisons


Hold individuals sentence to at least 1
year
Operated by the executive branch
Federal Bureau of Prisons
(BOP)

98 Facilities


Most inmates (60%) are serving time
for drug offense


From 140,00 at yearend 2000 to 215,000
inmates at yearend 2011
Clear product of “War on Drugs”
Prisons ranked on a 1 to 6 scale (1 =
FCI in Colorado)
State Prisons



Over 500 prisons, and 1.5 million
offenders
Governor typically appoints warden
Organization



Maximum (razor wire, guard towers…)
Medium (similar to max, but less serious
offenders)
Minimum (typically campus style)
Since the late 1970s, the total number of
inmates in custody has increased
dramatically
Why the dramatic increase?

Change in public opinion, and political
emphasis

Three strikes laws, “truth in sentencing”
Longer sentences in “guidelines”
Drug Policy

Increase in felony convictions



Factors that do not clearly influence
incarceration

Crime rates, Economy
For the first time in decades…

The corrections population is declining


Great recession/budgets, change in attitude?
2011 Figures





Probation: 3,971,319
Parole: 853,852
Jail: 735,601
Prison: 1,504,150
Roughly 7 million under supervision


About 100,000 less than previous year
 1.4% decline
Almost all of the decline (82,000) due to declines in
probation
What type of offenders go to
prison?