CJ 600
Issues in the Court System
Historical Overview
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Use of British common law
Colonial courts unclear as to which acts of
Parliament or case law applied
Every colony different
Colonial courts had wide powers, very
undifferentiated, with legislative, executive
and judicial functions
Mistrusted, associated with Br. Gov.
History
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Movement to codified law
Requirements fo practice law varied
Following the Revolutionary War,
established of more courts, appellate
courts
Constitution established Supreme Court,
authorized other courts
Vague
History
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Lower courts a hodge podge, differ from
state to state
Organization was frequently tied to politics
Judges elected or appointed
Dual nature of US Government
Supreme court established by constitution,
and the federal courts by the Judiciary Act
of 1789
History
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Supreme Court had little power until
Marbury v. Madison, when the court struck
down a section of the Judiciary Act as
unconstitutional –judicial review
Around 1820s, courts began a trend of
setting legal doctrine
Until WW II, conservatives and business
depended on judicial branch, distrusted
legislature
History
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Courts seldom dealt with constitutional
rights of individuals, tended to rule against
individuals and labor
Section 1983 and post civil war
amendments passed after the war, but
had little effect
Plessy v. Ferguson (1896)--segregation
History
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Early 20th century began an expansion of
due process for criminal defendants
Powell vs. Alabama, 1932 (Scottsboro
case)
Incorporation controversy
Depression era: federal legislation kept
getting struck down by the Supreme Court
Roosevelt threatened court packing
History
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Court backed down
1950s, Warren court, civil rights revolution
Brown v. Board of Education
Series of decisions: Mapp v. Ohio,
Miranda v. Arizona, Gideon v. Wainwright
Burger court: Furman v. GA and Gregg v.
GA, prisoners rights cases
Some “erosion” since then
History
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Other decisions, such as religion cases,
Roe v. Wade
Controversy: original intent, strict
interpretation, social interpretation
Courts have become increasingly powerful
Number of cases and lawsuits
Number of cases filed against the criminal
justice system, esp. police and corrections
Court issues
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1. Court models: constellation, federation,
union
2. Selection of judges: appointed vs.
election
3. Bail: purpose to assure presence at
trial
Problems: favors rich, unnecessary
detention in some instances, get longer
sentences, the bail bondsman
Issues
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Deposit bail: eliminating the bail
bondsman
Manhattan Bail Project
4. Preventative detention
5. Courtroom work group: prosecutors,
defense counsel, judges, also police and
probation officers
Issues
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Courtroom work group a community of
people who work together and have a
mutual interest in getting the job done as
efficiently as possible
“Going rate” the group develops over time
a consensus about what a crime and prior
criminal history is “worth”
Often not adversarial, consensus reached
Issues
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Observational studies find that researchers
are able to predict outcomes after
studying such groups
Why sentence disparity? Each courtroom
work group develops its own going rate,
based on the individuals involved,
community standards, etc.
Issues
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6. Prosecutor
Prosecutor’s dilemma
Quasi-judicial immunity
Prosecutorial discretion—power to pursue
or dismiss cases
Of every 100 cases, 35 sent to JJS, 65 to
district attorney
Prosecutor
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Of those 65, 20 rejected or diverted, 45
accepted for prosecution
Of those 45, 10 dismissed or failed to
appear, 35 plead guilty (30)or go to trial
(5)
2 acquitted in trial, 33 convicted (3 in trial)
There is considerable variation across
jurisdictions
Prosecutor
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Factors that affect discretion
Nature of the evidence
Attitude of the victim
Relationship of victim to the offender
(chances of conviction 20-30% lower if
they know one another)
Harm to the victim
Costs
Prosecutor
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Available alternatives
Use of civil sanctions
Willingness of suspect to cooperate
Strength of the evidence and seriousness
of the offense appear to be the greatest
factors
Defense counsel
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Gideon v. Wainwright and Argersinger v.
Hamlin
Private, contract, assigned, public
defender
Defense counsel’s dilemma—the guilty
client
Loyalties divided, not only to client, must
also get along with courtroom work group
Plea bargaining
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Advantages: costs decrease, more
efficient
Less time spent on minor and clear-cut
cases
Decrease pretrial detention time
Victims and witnesses spared a trial
Plea bargaining
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Disadvantages
Innocent may plead guilty
Loss of rights
Might contribute to sentence disparity
Attempts to curtail plea bargaining have
not usually been successful
Preplea conference
Trial issues
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Review: constitutional rights
Speedy, public, jury, summon witnesses,
cross-examination, counsel
Issues
Scientific jury selection
Does it give certain clients an advantage
by virtue of some extralegal factor?
Issues
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Unanimous vs. non-unanimous decisions
9 out of 12 the lowest
Advantages: more efficient, less hung
juries, less possibility of a bribe
However, an important minority (the
thoughtful juror) could be ignored
Court issues
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12 person jury vs. lesser numbers (6)
Advantages: easier to obtain a jury,
cheaper, more convictions
Disadvantages: less representative of the
community, less discussion of the case
Court issues
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Videotaping
Trials, testimony
Trials—many judges opposed, argue that
it is distracting and detracts from the
dignity of the proceeding
On the other hand, provides a record, can
be used as an educational tool
Court Issues
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Videotaping of testimony
Police could be on the streets, spares
victims, confessions and lineups could be
used
Inadmissible sstatements could be
eliminated
Child victims could be spared the stress
However, violates right to confrontation
Other issues
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Continuances
Victim-witness bureaus
Sentencing
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Purposes: individual deterrence
(punishment), general deterrence,
retribution, incapacitation, rehabilitation
Punishment: must be consistent,
immediate, introduced at its maximum
intensity, too severe is not effective,
extended periods not effective, rewards
for punished responses must be reduced
Punishment
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Alternative response with same or greater
reward
Access to different situations to obtain
those rewards
Types of sentences
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Indeterminate, determinate (flat),
indefinite (range, good time, parole)
Disenchantment with indeterminate
sentences and rehabilitation, sentencing
disparity
Consequences
Longer sentences
Sentencing
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Sentence reform
Sentencing guidelines (presumptive
sentencing)
Remove judicial discretion
Federal: Sentencing Reform Act of 1984
Sentencing guidelines, abolition of parole
Mandatory minimums for certain types of
crime
Sentencing reforms
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Controversial law, disliked by federal
judges, perceived as to inflexible
Partially account for the dramatic increase
in the federal prison population
Have most affected the minority prison
population
State reform
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Several states have implemented
sentencing guidelines with less
controversy
Minnesota the most notable example
Reduction of disparity without additional
discrimination, and
Guidelines are tied to predictions of prison
populations, can be modified
Other reforms
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Megan’s laws
Selective incapacitation
Mandatory minimums (mostly for drug and
weapons offenses)
Truth-in-sentencing laws (reduction of
good-time, elimination of parole
discretion, or use of presumptive parole)
Three strikes and you’re out
Other alternatives
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Fines, probation, shock probation,
intermediate sanctions (boot camps,
electronic monitoring, intensive probation
supervision, community-based corrections)