4. The criminal justice system is not a national system but a system of four layers of governments--federal, state, county and municipal--with divergent roles and responsibilities, in the public sector, and many specialized private agencies involved as well: about $300 per person spent on civil and criminal justice, a public payroll of 1.7 million people, more private employees than public; including private security, attorneys, counselors, teachers and others, more than 4 million people working directly with criminal justice--more employees than offenders controlled by the system at any given time. No centralized policy-making authority; no one really in charge of this system, or "non-system." The result: thousands of independent operating units, each performing one part of the process but interacting with several other units, pursuing related ends but for unrelated or often contradictory purposes, with different perspectives and for various political and personal motives, without anyone in a position to control what the others are doing. Kind of a "small business" approach to doing the work of criminal justice.

How are crime and criminal justice in America different from in other Western nations?

    1. A much higher level of violent crime: generally the highest overall levels of homicide, robbery, assault and rape among Western nations. What causes?

       a. history of violent conflict in America; the legitimate and illegitimate use of violence throughout American history. Individual autonomy and the Frontier.

        b. the violent urban culture of today, a product of extreme social disorganization and economic change: large numbers of poor minorities making up a permanent underclass.

        c. the ready availability of firearms, especially handguns.

        d. from the viewpoint of other societies, lack of civilization (though some Northern and Midwestern States have rates of violent crime comparable to the European countries).

    2. The role of juveniles in criminality: property crime arrest rates peaking at 16, violent crime arrest rates at 18. High number of baby boomers in the population blamed for the sharp increase in crime in the 1960s. Leveling off of numbers of young people and of the overall crime rate since.

    3. Since the mid-60s, a high level of drug use in American society, resulting in a complex relationship of drug and alcohol abuse and criminal activity: most offenders are abusers, increasing numbers of offenders in jail and prison for drug-related offenses.

    4. Crime is generally under reported (only about 1/3 of Index offenses) and most crimes reported are not cleared by arrest (about 21% of Index offenses). Violent crimes--homicide, rape, aggravated assault--much more likely to be reported and cleared.

    5. The most punitive system in the world: highest rate of confinement in jail and prison worldwide: 700 per 100,000. Partially explained by level of violent crime, but influenced by class, cultural and perhaps racial biases.

Americans are very punitive toward people different from themselves; more cultural differences in America than in any other nation (except possibly Russia and China). The longest theoretical and actual sentences of any nation, and the only major Western nation with the death penalty in peacetime.

    6. Legal concern with protecting the rights of the individual ("due process"), rather than getting at the truth. A higher burden of proof, and more restrictions on police and prosecutors, resulting in more guilty offenders not being charged and convicted than in other countries.

    7. Nationalized, professionalized bureaucracies running criminal justice in other countries; amateurs and politicians making criminal justice policies in the U.S. The courts, especially the federal courts, exercising a standardizing, stabilizing influence over the decentralized American justice system.
 
 

 CJUS 101

Criminology
 

What is criminology? Generally the study of crime and criminal behavior; emphasis on causes for the last 50 years or so.

What causes crime? What do people attribute crime to today?

Usual responses: family causes, drugs, unemployment, gangs, urban decay, weapons, decline of religious values, etc.

The scientific study of crime and criminals only a little over a hundred years old, going back to Cesare Lombroso in late 1800s.

Before that, criminology more philosophical, moral or legal: the nature of good and evil, conduct, the effect of law upon behavior.

The Classical School of Criminology: 1700s and early 1800s, emphasized free will and choice, urged legal reforms to make crime less attractive and punishment more certain.

The Positivist School of Criminology: later l800s, focused on determinism, the belief that behavior is caused by the environment.

Many early scientific criminologists emphasized biological and psychological causes. Important early criminologists:

    Lombroso: born criminals, less developed, an atavism or throwback.

    Freud: the psyche or mental state; product of childhood experiences.

Early emphasis on family studies to support theories that criminal behavior was inherited (which recent studies tend to support to a degree).

Most influential 20th century theories are sociological, focusing on human social relationships. Important early thinkers:

    Durkheim--crime normal in modern urban society. The concept of "anomie," meaning normlessness, loosening social controls.

    Merton--anomie giving rise to differential access; focusing on alternative means (crime) to reach desirable goals (materialism)

    Sutherland--white collar crime and differential association (definitions supporting crime vs. those opposing crime)

The three general categories of sociological theories:

    social structure--lower class, particularly youth, where crime rate is high.

    social process--crime as learned behavior.

    social conflict--class conflicts; crime defined by class values.

More recent theories of widespread emphasis:

    sociobiology--genetics, the environment and learning combined together to determine behavior.

    victimology--focusing on victims and their involvement in crime.

General criticism of theories: the apply well to explain individual cases, but not to explain groups. Why don't all poor turn to crime?
 
 

CJUS 101

Police History
 

Modern policing associated with the development of the city in the 1700s and 1800s. Policing was previously a community responsibility, without a specially empowered, continuing police force. Local citizens were responsible for organizing to protect themselves and bringing criminals to the attention of the magistrates. In early societies, the military could assume police responsibilities in crisis times (like the National Guard being called out today).

Heritage of British Policing in the United States

British police history goes back over a thousand years.

Mutual pledge system (also called Frank Pledge or tithing system).

Community organized into groups of ten and one hundred under the direction of a shire-reeve. About 900-1300 A.D.

Watch and Ward. System of watchmen to police towns and cities. Watchmen under the control of local justices of the peace and constables. Very low-key, informal policing with generally disreputable officers. In effect from 1300 to early 1800s.

Metropolitan Police Act of 1829. Created the first modern Western police force. Uniformed officers, in a military rank structure, patrolling the beat aggressively to prevent crime. Called the "New Police," to distinguish them from the watchmen. Very influential in Western societies; effective in dealing with crime, disorder, vagrancy, drunkenness, juvenile gangs and other problems of cities in the 1800s.

Controlled by the British Parliament through the Home Office.

History of American Policing

Colonial policing. Based on British model. Importance of local constables and justices of the peace. Watchmen in towns; sheriffs important in southern colonies.

Police in the 1800s. Urban police departments from 1840s on in larger cities. Adopting the British model, but left under the control of local governments rather than states or federal government. Serious developmental problems by the late 1800s:

    police dominated by local politics, seen as the servants of the power structure.

    corruption of police in many cities; association with gambling, liquor, prostitution and other vice and criminal elements.

    physical violence and mistreatment of citizens, especially immigrants, minorities, and lower class.

    no job security; lack of civil service protection.

    ineffective police leadership.

    lack of public respect.

Police in the 20th century:

    Increased responsibilities, focusing on crime-fighting and law enforcement roles. Legal accountability through the courts.

    Growth of major state and federal agencies with specialized functions.

    Development of the police career, with emphasis on training and education.

    Professionalization of police management.

    Impact of technology on routine policing.

    Continuing problems with public dissatisfaction, especially among the lower class and minorities.
 
 

CJUS 101

American Policing Today
 

American policing the most decentralized of any Western nation. A tradition of local policing since the 1800s. Four basic levels of policing:

    Federal (about 50 major agencies, less than 100,000 employees): mostly investigative and regulatory agencies with specific responsibilities; not general purpose law enforcement. FBI, Customs, DEA, IRS, U.S. Marshal, Secret Service. Not the CIA. Increased powers as federal criminal laws increase.

    State (about 200 agencies with over 100,000 employees). Growth of state police and highway patrol organizations in the 20th century, necessitated by state highway systems. In some states, state police taking over rural law enforcement from sheriffs. Other state level agencies: investigative, narcotics, regulatory, crime law, fire marshal, National Guard.

    County/Parish (About 3,000 agencies with about 200,000 employees). Especially important in more rural America. Wide variation in sheriffs' departments today. Some are full purpose agencies: jail, patrol, investigation, courts, civil processes, tax collecting; some trends toward consolidation of city and small town police under the sheriff's control. But many sheriffs have limited purposes and small agencies, especially in small rural counties and in counties dominated by large cities (not much left for sheriff to do). Main general function of sheriff today is to operate county jails.

    Municipal (between 16,000 and 20,000 agencies with at least one full-time employee; over 600,000 employees total). The basic general purpose police agency, serving 80% of the American public. Basic divisions of a municipal police department: patrol, investigation, traffic, juvenile, records, communications, administrative support. Division into "sworn officers" and civilian employees (about 20% of total). Recent emphasis on police productivity, caused by budget limitations, and on more effective crime control efforts, giving rise to "neighborhood oriented policing" or community policing approaches that de-emphasize traditional preventive patrol and stress storefronts, foot patrol and interaction between police and citizens.

"Broken windows" theory of community responsibility for crime control: the community as the first line of defense against crime.

Problems of the American system of policing:

    "non-system," many independent agencies working separately.

    duplication and overlapping jurisdiction (example: narcotics)

    no central policy-making authority; disagreement on approaches

    absence of widespread standards (reason for the Supreme Court to issue many of its landmark cases on criminal procedure in the 1960s)

    quality of policing determined by local authorities, often with limited resources at their disposal
 
 

CJUS 101

Issues in Policing
 

Much attention focused on policing since the crisis decade of the 1960s. Issues focused internally and externally.

Internal Issues

The "police personality," which is to say, "Who becomes a police officer, and why?" or "Are police already like this, or do they adapt to fit the work?" Strong evidence that people going into police work are normal; they adapt to the job. Main elements of police working personality: cynicism, authoritarianism, conservatism, secrecy, loyalty. Arising from role expectations? A less well-defined personality now as policing is less dominated by white males?

Police styles: a matter of focus and purpose, varies among individuals and departments. Old style "watchman," more recent styles of "law enforcer," "crime fighter," "social agent." Other classifications in other schemes: James Q. Wilson's service, legalistic, and watchman. Depends on what the department and the officer emphasize.

Stress. What is stress, and what causes it? Stress in policing: strange working hours, pressure to produce, job dissatisfaction. Not really related to violence and danger. Value of physical activity and other stress relievers.

Women in police work. Women only performing uniformed patrol work for 20 years. Less than 10% of sworn officers are women. Still objections to the physical capabilities of women police, but much less opposition to women among this generation of police officers. Do women do police work different from men; review summary findings of attitudinal and performance contrasts.

Minorities in police work. Vigorous effort to recruit more minorities into policing after racial problems of the 1960s. Number of minorities increasing steadily, more movement into supervisory, management and executive ranks. Black officers once suffering from "double marginality," rejected by both police and other minorities, but no longer a real problem.

Education and professionalism. Strong impact of higher standards of education and training. Most new police have some college background; degrees for police managers and executives. Average of 9 or 10 weeks of basic training required for new police in states nationwide. Are police more professional? What makes a profession?

External Issues

Discretion. What is discretion? Compare discretion and discrimination. What determines what action police will take in a given situation? Important variables: departmental policy, the officer's views and how he feels, the presence of others, the seriousness of the event, whether a member of the public wants him to do something, the attitudes of the offenders/participants. How do police officers learn to exercise discretion? Can discretion be structured, guided and controlled?

Violence. Against police and by police against public. Deadly violence against police responsible for about 50 to 80 deaths a year; most dangerous situations making arrests and responding to crime in progress calls, lots of assaults associated with domestic disturbances.

Police kill about four times as many citizens each year, mostly shot to death during disturbance and crime in progress calls. Change in the rules for police use of deadly force over the last 10 years: old common law "fleeing felon rule," authorizing the use of deadly force to apprehend felons, giving way to the "life threatening rule" of Garner v.Tennessee. Departmental policies more restrictive on use of deadly force; lawsuits an important force for restraint. Some cities much more violent than others. Police brutality (excessive use of physical force) a problem in some cities and among some officers. In most departments, a small number of officers involved in most complaints of excessive force. How to identify and retrain (or discharge) violent officers?

Corruption. A pervasive problem in local law enforcement even back into the Watch and Ward of old England. A problem associated with organized crime and local politics in American cities as modern police agencies developed in the 1800s. Corruption not a major problem in most cities; extensive corruption in some. Knapp Commission documented serious corruption in New York City in late 60s and early 70s: the Serpico investigation. "Grass eaters and meat eaters" as levels of corrupt cops. Great opportunities for vice cops, especially working in narcotics, to make lots of money. Most ordinary cops can only get lesser "freebies" and favors in return for showing favoritism or not enforcing the law. Why do officers become corrupt? Is it to make money, or more because the practices are already established and it is easier to go along than to say no?
 
 
 

CJUS 101

Legal Powers of Police
 

Arrest. Police authority for an arrest is based on the "probable cause" standard from the Fourth Amendment; in Louisiana the standard is "reasonable cause to believe" that the person has committed an offense (Article 213 of the Code of Criminal Procedure).

Probable cause means that the person probably did the crime; more evidence tends to show guilt than not. Most arrests police make are on-view arrests, where police see law violations taking place and take action. Arrests can also be made with a warrant, or if the officer knows of the existence of a valid warrant, such as by its number.

A warrant is simply a legal form authorizing certain action, such as an arrest or a search. The warrant must be particular, as to the name of the person to be arrested or the premises to be searched. It must also be issued by a magistrate, a legal official having the authority to issue it.

The arrested person is under arrest once he is deprived of liberty, whether he has been told he is under arrest or not.

Search and seizure. Also governed by the probable cause standard of the Fourth Amendment. Police must generally have a search warrant to search a person's home or place of work, but there are numerous exceptions to the rule:

    search incident to a lawful arrest. When a person is taken into custody.

    inventory search. When a vehicle is impounded.

    consent search. When a person is asked to voluntarily consent to a search of his person, vehicle or home by a law enforcement officer.

    plain view. Whatever the officer can see in plain sight.

    abandoned property.

    automobile search. Search based on probable cause, but no warrant is required in advance.

    stop and frisk. Based on reasonable suspicion associating the person with a crime; short of probable cause. The stop is for investigative purposes. The person must either be arrested or let go after brief questioning; the detention cannot go on indefinitely. The frisk is based on the possibility that the suspect may be armed; it is defensive, looking for a weapon only.

Interrogation. In a custodial interrogation, police must advise suspect of right to silence and right to counsel (Miranda rights).

Exclusionary Rule. A court-established rule (Mapp v. Ohio) that allows the trial court to suppress evidence improperly obtained by police. Usually the subject of a pre-trial motion hearing. If the evidence is excluded, any other evidence deriving from it is also excluded--the "fruit of the poisonous tree."
 
 
 
 

CJUS 101

Criminal Law
 

What do we need criminal law for? What is the relationship of crime and criminal law? If no one broke the rules, would we need criminal law and the criminal justice system? Crime feeds more families that just the criminals'.

Origins of the criminal law:

    Early codes--as in the Bible, simple codes of crimes and punishments applied by judges, often tribal elders.

    Roman laws--development of many precepts of law and procedure.

    English common law--judge-made, unwritten laws that applied precedents developed over hundred of years. Eventually codified and exported during the colonial period.     Modern urban society--expanded role of government and explosive growth of moral and social statutes.

Ways of explaining or categorizing the law:

    mala in se and mala prohibita--morally wrong and condemned or only "legally" wrong. Murder vs. cocaine use or tax evasion. Mala in se crimes still important from early codes; mala prohibita much more common today.

    felonies and misdemeanors--distinction in seriousness from common law. The concept of relative felony used in Louisiana.

    federal, state and local crimes--jurisdictional differences according to seriousness and type of crimes. Give examples of each level.

    civil and criminal--private disputes vs. the state acting in the public interest. Different rules and procedures.

    substantive and procedural--the content or provisions vs. the process or the steps in applying the law.

What do we expect of a criminal law today?

    Legislatively enacted--Congress, state legislature, city council.

    Defining specific behavior--the elements of the offense.

    Providing a sanction--there must be a penalty.

Recent trends in the criminal law:

    decriminalization--removal of penalties for traffic and some victimless crimes, such as gambling and drunkenness. What about decriminalizing drug use? What effects would that have?

    victims' rights--more concern with victims; compensation and restitution; victim impact in sentencing.

    increased penalties for violent offenders and repeaters ("three strikes and you're out"); the reapplication of the principles of the Classical School of Criminology.

    standardization of procedures--first through Supreme Court rulings in landmark cases, now through study group guidelines ("sentencing guidelines") adopted from state to state.
 
 
 

CJUS 101

Courts and Judges
 

A dual court system--separate federal and state courts.

Federal Courts                 State Courts

U.S. Supreme Court             State Supreme Court

Circuit Courts (appeals)        Appeals Court (35 states)

District Courts (trials)        Trial Court (often called district or superior court)

Most states also have what are called "lower" or "limited" courts that are not a part of the state court system (in effect like another dual court system but within the state). The lower courts are local courts of limited jurisdiction: traffic, misdemeanor, small civil, small claims, juvenile or family matters. The limited courts in Louisiana: City Courts, Mayors Courts, Justice of the Peace Courts.

The U.S. Supreme Court is the highest court of the land. Nine justices appointed for life. Final appeal court in federal cases, discretionary appeals from state supreme courts. Cases ordered forward through a writ of certiorari if at least four justices agree to hear the case. Majority decisions (5 of 9) establishing binding precedent, until overturned by a subsequent decision. Courts known by Chief Justice: Warren, Burger, Rehnquist.

Judges: an official who presides over a court. Full-time and part-time; lawyers and non-lawyers; federal, state and lower courts; sitting alone (in a bench trial) or as part of a panel (hearing an appeal); specialized (as in hearing only traffic or criminal cases) or a generalist (hearing all types of cases, often in rotation).

Judicial selection:

    Election. Partisan or non-partisan. Candidates are elected by popular vote. All Louisiana judges elected; running on a ballot without party affiliation.

    Appointment. By President or governor (in a few states), usually with legislative confirmation. For life (federal) or a set term subject to reappointment.

    Merit Selection (Missouri Plan). A combined method of appointment and popular control. A nominating committee maintains a list of judicial nominees; the governor fills vacancies from this list; after a period of service, the judge runs in a "yes" or "no" public referendum on his own record to retain his office; either he stays or a new nominee replaces him. Merit selection becoming more common nationwide.

Judicial qualifications: In the state and federal courts, generally a lawyer with several years of practice. No particular expertise or well-rounded legal experience required. Generally middle-aged white males with a conservative background; greater influx of women and minorities recently, particularly in urban courts. New judges generally "amateurs" who know little about judicial roles or court administration.
 
 
 

CJUS 101

Prosecution and Defense
 

The prosecutor in the state court systems: usually called district attorney, county attorney or state's attorney. Popularly elected for a four or six year term; usually a politically active attorney with prior prosecutorial or judicial experience. Said to be "the most powerful official in the criminal courts." Why? DA's power lies in:

    power to decide charges

    power to decline or dismiss charges for a reason (nol pros)

    power to determine outcome through plea negotiation

    representation of legal system to the public

    coordinating role among other legal participants--police, victims and witnesses, defendants, defense counsel, judges

    influence on legislation

DAs may be career prosecutors or political climbers using the position as a step upward; must be politically active and popular to retain office.

Day to day decisions made by assistant DAs, possibly full-time but more part-time in most places. Usually younger attorney learning the trade, building a practice and interested in politics. A good way to get trial experience and build a practice. Many DAs have a few basic policies but leave most decision-making to assistants. Usually a few senior assistants who handle important, well-publicized felony cases.

The prosecutor works from a position of strength; most defendants are guilty, and he can prove them so if he needs to. But there are too many cases to be tried, and he bargains to get guilty pleas, avoid trials and keep the cases flowing along.

What is the prosecutor's obligation: to protect society or see justice done? To convict the guilty or see that a balance is maintained?

The defense counsel's role is more narrowly defined: to protect his client's rights, to counsel and advise, to challenge the state. Most criminal defense means indigent defense--65% to 90% of felony defendants are indigent, depending on particular location. Two important legal decisions in indigent defense:

    Gideon v. Wainwright (1963)--appointed counsel for indigent felons

    Argersinger v. Hamlin (1972)--appointed counsel when jail is likely, including misdemeanors

Three basic methods of providing indigent defense:

    public defender offices. Full-time attorneys who only handle criminal defense cases (sometimes 300 to 400 at a time). Found in most large metropolitan counties; representing largest number of defendants.

    appointed counsel systems. Either a voluntary list or involuntary appointments as necessary. Paid by the hour or by the case, or not at all. Mostly in smaller counties or rural areas.

    contract systems. More popular recently. County/state contract with several lawyers or firms to handle all indigent cases.

Common criticisms of indigent defenders: less-skilled, paid by government, don't take cases seriously, overlook the possibility of innocence. Not necessarily so, though criminal practitioners do become bureaucratically interdependent on assistant DAs to get a good plea and get their clients off as lightly as possible.

Always a few popular attorneys available for paying clients; often attorneys with prior indigent defense or prosecutorial experience.

Defense counsel: fighting a perpetually losing battle.
 
 
 

CJUS 101

Pre-Trial Steps and Trial
 

Only about five of every 100 felony arrests result in a trial (either jury or bench), so the real action in the criminal courts takes place pre-trial rather than at the trial.

How long is pre-trial? Three to nine months for an average felony, depending on the speed of processing through the local legal culture.

Pre-trial steps:

    Initial appearance. Before a magistrate for a probable cause hearing.

    Bail. Cash, property, bail bond (10% or more non-refundable deposit), conditional release. Dollar figure set by a judge for felony offenses.

    Bringing charges. Information (by prosecutor) or indictment (by grand jury). Enough evidence (a prima facie case) to proceed toward trial. Grand jury a closed, confidential hearing without judge or due process procedures; controlled by DA.

    Preliminary hearing. Used in many states to test the evidence in open court.

    Arraignment. A hearing to enter a formal plea: guilty, not guilty, insanity, nolo contendere (no contest; treated as a guilty plea but without a formal admission of guilt).

    Filing of pre-trial motions (by both sides but particularly defense counsel as he attacks the state's case):

        bill of particulars--specifics of crime charged

        discovery--nature of evidence against defendant

        motion to suppress evidence--to exclude improperly obtained evidence, such as physical evidence or confessions.

        continuance--asking for a delay

        severance and consolidation--separate or put together defendants.

        change of venue--to move the trial, usually because of pre-trial publicity.

        motion to quash--for a reason, such as statute of limitations, no crime, or double jeopardy.

Plea bargaining. May go on any time but often around the time for court appearances. Negotiations to reduce the charges or the sentence most commonly, but may involve other issues. About 90 to 95% of convictions nationwide obtained through guilty pleas. Pleas must be knowing and voluntary; must be approved by the judge in open court. Bargaining speeds up the processing of obviously guilty defendants; seen as working to the advantage of both prosecution and defense. Bargaining involves the attorneys and the defendant, and finally the judge; judges differ on how much they want to be involved in the process.

The trial: the exception rather than the rule. For those serious cases where the punishment is severe, the evidence in doubt, the defendant stubborn or the attorneys unable to reach an agreement.

Trials are a lot of trouble, to prepare for and conduct.

Steps in the trial:

    Selection of the jury (skip this if it is a bench trial, heard by the judge alone). Juries may have from 6 to 12 members, depending on state laws. The voir dire process: asking questions of potential jurors; excluding some for cause and others through peremptory challenges that do not have to be explained. Jury may be sequestered, or isolated, in death penalty and other controversial cases.

    Opening statements. State and defense tell what they are going to do.

    State's case. Burden of proof on the state to establish the body of the crime (corpus delicti) and the accused's guilt: proof of guilt beyond a reasonable doubt. State doesn't have to call every witness, only enough to establish the crime and the defendant's guilt.

    Defense motion for a directed verdict. On the basis of insufficient evidence. Almost always denied.

    Defense case. What is the defense obligated to prove? Nothing, but the defense usually presents some evidence: denial, alibi, affirmative defense (self-defense, entrapment, coercion, etc.) Should the defendant testify? Not supposed to lie under oath; perjury charges possible. All witnesses subject to cross examination.

    Rebuttal. The state and defense present answers to arguments made earlier in the trial.

    Closing arguments. The state and the defense sum up to the jury.

    The instructions or charge. Given by the judge on the law and the possible verdicts.

    Jury deliberation. As long as they are making progress toward a verdict, or until they are hopelessly deadlocked (mistrial; not double jeopardy).

    Verdict. About 75 to 80% guilty verdicts nationwide; juries slightly more likely to acquit than judges. Jury verdicts are generally unanimous, but Louisiana and at least four other states allow non-unanimous verdicts in twelve-person juries. Vote must be at least 10-2 to decide. Death penalty verdicts unanimous.

    Motion for a new trial. Open to defendant, based on errors during the trial. Must be filed within a time limit.

    Sentence. Usually done after the trial. A pre-sentence investigation may be ordered done by a probation officer.

    Appeal. To the appropriate appellate court, may go on for years. Post-conviction proceedings, alleging exceptional circumstances, may go on after the appeal is over.
 
 

CJUS 101

History of Juvenile Justice
 

What is the basis of the distinction between juveniles and adults, in determining jurisdiction of the juvenile courts?

"Age of responsibility" considered in holding juveniles accountable.

Roman law--three classes of offenders by age.

Common law: children under 7, children 7 to 14, children over 14.

The English chancery courts of the 1400s: to protect those needing state intervention. Dealing with orphans, neglected or dependent children: "parens patriae" and "in loco parentis."

English common law and American colonial law had no distinct policies or separate facilities based on age. Informal adjustments and local practices; apprenticeships and removal from parents were legally sanctioned for paupers.

Early 1800s social reformers in the United States: private citizens promoting public intervention in the lives of poor unfortunate children. Houses of Refuge in New York (1824) and Boston (1826).

The Child Saving Movement distributing many orphans and lost children during the 1800s. Juvenile training schools (or reform schools) established in mid-1800s to give vocational skills to unemployed teenagers; national meeting in New York in 1857--17 institutions with 20,000 juveniles. No real distinctions in the types of behavior for which one might be sent to training school--criminals, non-criminals, orphans, runaways, neglected children.

Legal foundations of American juvenile justice:

    1. Poor Laws of the 1600s, expanding control over begging and vagrants.

    2. Common law criminal offenses.

    3. Social welfare concerns dealing with inappropriate behavior by children, the contemporary "status offenses."

The first Juvenile Court--Cook County, Illinois, 1899, established through the efforts of local reformers, many of them women.

Juvenile court was established was established as a civil court, informal, closed and intended to rehabilitate children who needed help. Really intended to deal more with neglected children, status offenders and petty criminals; all states continued to send juvenile felons into the adult courts at first. Gradual expansion of the powers of the juvenile court with a separate set of staff--juvenile officers, judges, probation officers, detention staff, corrections officials.

Developments in juvenile justice since the 1960s (according to James O. Finckenauer):

    Due process--applying adult standards of fair trial to juvenile criminal proceedings.

    Deinstitutionalization--reducing the number of juveniles in confinement, especially status offenders.

    Diversion--putting deserving juveniles into alternative programs instead of sending them to court.

    Decriminalization--taking status offenders out of secure criminal facilities and in court dealing with them in the same category as neglected and dependent children.
 
 

CJUS 101

Juvenile Court Acts
 

Juvenile courts established in all states between 1899 and 1945.

Deliberately different terminology and procedures, intended to promote rehabilitation rather than punishment:

Adult Court Juvenile Court

complaint/information        petition

arrest and booking           intake

jail                         detention

bail                         release to parental custody

trial                        hearing

conviction                   adjudication

sentencing                   disposition

probation                    probation

prison                       training school

parole                       after care

Uniform Juvenile Court Act (UJCA) adopted by American Bar Association in 1968. The UJCA defines a "child" as under 18, or in some cases an under 21 year old could be sent down from adult court. Waiver of jurisdiction (transfer) to adult criminal court possible for 16 and 17 year olds.

Not adopted in the states, but used as a model in some.

UJCA: "delinquency" a crime, specifically, not vaguely defined inappropriate behavior.

Conflict between the "due process" model, guaranteeing legal protections, and the "rehabilitation" model, providing proper treatment. UJCA says an adjudicated delinquent is in need of "treatment or rehabilitation."

Some critics call the juvenile court process "schizophrenic," meaning it can't decide its purpose or the proper track. Before the late 1960s, the juvenile said to receive the worst of both worlds: no legal protections, no rehabilitation.

UJCA uses the term "unruly child" to apply to status offenders, truants, runaways or incorrigibles. Most states call them "in need of supervision," as Children in Need of Supervision (or now FINS--Families in Need of Services) in Louisiana.

UJCA sets another category of "deprived, neglect, or dependent children," called "children in need of care" in Louisiana:

    deprived--without proper parental care or control

    neglected--injury, abuse, sex offense, injurious environment

    dependent--parental disability or failure of care

Distinction between neglect and dependent one of parental fault.

There is no minimum age of juvenile court jurisdiction over juveniles in 39 states; maximum age varies by state.
 
 

CJUS 101

Key Figures in Juvenile Court Proceedings
 

The courtroom work group of the juvenile court. Traditional importance of the judge and the police officer, but some changes in recent years. Key figures:

    The Juvenile Court Judge. In theory the most powerful figure in the juvenile court. Originally intended as a wise, all powerful Solomon, supposed to serve as a "father figure" for wayward youths. Intervening as a father might, without following legal rules. Decline of the parental or paternalistic juvenile court judge over the last 20 years, trend toward more of a legalistic or law-giver role. Most juvenile court judges part-time; protected from scrutiny by the closed door. "Adults would never stand for the way some juvenile court judges operate."

    The Police Juvenile Officer. The confidant and legal advisor of the judge. Maintains the criminal records (separate files) and knows about the delinquent and his friends. The judge's best source of information. "What should I do with him?"

    The Prosecutor. Usually a part-time Assistant DA or Assistant City Attorney who specializes in juvenile cases. Works with the police in reviewing juvenile arrests; screening cases for evidence and worth as in adult courts. More power as plea bargaining becomes institutionalized in the juvenile courts; prosecutor really determines what constitutes an acceptable plea.

    Defense Counsel. Early on a very limited role in the juvenile court. As a civil proceeding, no defense attorney needed (or allowed in some courts). Much more impact since the due process ruling inGault in 1967. Counsel either indigent defenders or private. Mostly indigent

defenders in urban courts.

    The Juvenile Probation Officer. The judge's assistant in making dispositions. A long-established role in many progressive juvenile courts: centering on social background investigations and then supervising the juvenile on probation. Working closely with the juvenile court judge; usually a much closer relationship than in the adult criminal court.

The juvenile court hearing: who else may be present, either ordinarily or in specific cases? Parent or guardian, witnesses, social workers, school board officials, child protection investigators.

The working relationship of the juvenile court work group: adversary or bureaucratic, legalistic or cooperative?
 
 

CJUS 101

Sentencing
 

For the convicted defendant, a crucial decision. Common sentences:

    traffic and misdemeanors--fine, suspended sentence, jail term

    felonies--prison, jail term followed by probation, probation

Other sentencing options:

    restitution to victim

    community service

    substance abuse counseling

    driver improvement training

    house arrest or electronic monitoring

    halfway house

    death penalty (about 250 to 300 sentences a year)

The judge does the sentencing, except for jury sentencing in capital cases (optional in a few other states). Sentenced may be agreed to in plea bargaining, or the judge may order a pre-sentence investigation report (PSI), done by the probation officer. A PSI is a comprehensive background investigation of the defendant.

Problems in sentencing. What is the purpose of the sentence: retribution, deterrence, incapacitation, rehabilitation.

Criticisms of the current sentencing framework:

    disparity in sentencing--wide variation in sentences given to defendants who have committed similar crimes.

    inequitable statues--differences in penalties from one place to another.

    lack of sentencing criteria--no formal guidelines for judges to follow.

    too much judicial discretion.

Types of sentences:

    indeterminate--once most common; an open-ended sentence (like one to 15 years), intended to encourage rehabilitation.

    determinate--fixed period of years (like six years); more common now.

    mandatory--requires a prison term; like many violent crimes, gun crimes and drug distribution offenses now.

    presumptive--narrowed range of choices; lessening discretion.

    consecutive--one sentence to be served after the completion of another.

    concurrent--two or more sentences served at the same time.

Other variables complicating sentencing: good time, parole, mandatory release, clemency.

Proposed changes in sentencing (sometimes called "sentencing reforms").

    sentencing councils--judges reviewing sentences as a group.

    sentencing institutes--training in sentencing for judges.

    appellate review--appeals courts authorized to change sentences up or down (now generally allowed to reduce sentences only, in half the states).

    written explanations required by judges.

    sentencing guidelines--written guidelines (usually represented in chart form) for judges to follow. Prescriptive guidelines pioneered in Minnesota in 1980. Non-mandatory guidelines now in use in Louisiana.

    flat sentences. Same punishment for all offenders.

Basic question: Should punishment fit the crime, or the criminal?

Trends toward reducing judicial discretion over past two decades, which really transfers more power to prosecutors in charging and plea bargaining.
 
 
 

CJUS 101

Returning to Society
 

How do offenders get out of prison?

Parole. Through the action of a parole board. In 35 states. Discretionary release from confinement to community supervision, after serving some minimum eligibility period in prison. Most common release method (40%).

Mandatory release. "Good-time" release date: sentence less time off for good behavior. Generally released under parole supervision. About 30% of releases.

Emergency release. In states where prison overcrowding is a continuing problem, prisons may have authority to release short-time inmates when population caps are reached.

Commutation. Through use of the governor's clemency power, and usually through the action of a state pardon board, the prison inmate's sentence can be shortened to time served. Discharge. Outright full-term release. No supervision.

Escape. Less than 1% nationally, mostly from non-secure facilities.

Death. In states with natural life sentences, a growing number.

Other release options:

    furloughs--weekend passes, special visits; return to custody.

    work release--from either jails or prisons.

    pre-release--in the prison or in the community; a short-term program to prepare the offender for release back into the community.

    halfway houses--for parolees, inmates on work release, violators, or a stricter form of probation. Non-secure community facilities.

    shock parole ("intensive incarceration")--boot camp. Used in the majority of the states. A short-term, military-style program generally used with younger, first-time offenders.

Parole remains the oldest and most frequently used option. Used since mid-1800s. Tied to indeterminate sentence and rehabilitation. Parole boards today are more likely to be staffed by professionals and use some risk assessment or prediction guidelines. Inmates release on parole are subject to supervision of parole officer (who in 34 states is also a probation officer). Subject to return to confinement for law or technical violations. Parolees generally supervised more strictly than probationers. Parole hearing required as part of revocation. Levels of parole supervision vary widely from one state to another: the more intensive the supervision, the more technical violators are likely to be returned.

Problems of ex-convicts:

    loss of legal standing, including certain rights of citizenship. Can be restored by pardon process.

    employment stigma. Harder to get public employment and some occupational licenses in many states.

    economic disadvantage. Lacking education and job training to pursue non-criminal vocations.

    relations with family members and former friends. Not supposed to associate with undesirables.

    resumption of drug and alcohol abuse habits.

    recidivism. About 40 to 60% of prison inmates return to prison for a new crime. Younger, chronic property and drug offenders with a drug or alcohol problem have highest recidivism rates.

CJUS 101

Corrections History/Corrections Today
 

"Corrections" a modern concept. Before the 1800s, the emphasis in sentencing was on punishment, not correcting the offender.

Early punishments were physical, economic and social. Frequent use of capital punishment and corporal punishments, such as whipping, branding, and amputation. Many economic penalties, including fines, forfeiture of property and payments to victims (what we would call "restitution" today. Social punishments include use of banishment or exile (including "transportation" to the colonies from England), and such forms of public humiliation as the pillory and stocks (or wearing "scarlet letters" in Puritan times).

Wide discretion in judicial selection of penalties, and a tendency to make punishments more violent over time. Punishments were worse but not consistently applied. Rational philosophers of the 1600s and 1700s wanted more certain and more deterrent, but also more humane and effective punishments (Classical School). The philosophical origin of the "penitentiary," as a place where criminals were sent as punishment.

Jails long in use to hold pre-trial detainees, debtors and those awaiting imposition of sentence, but convicted offenders were not generally sentenced to a term of imprisonment prior to the 1800s.

The American penitentiary of the 1800s: a humane and reformative alternative to prior punishments. Two competing models:

    Pennsylvania: prisoners held in solitary confinement in large cells. Work in the cells. Moral instruction.

    Auburn (New York): the congregate model. Prisoners slept in isolation but ate and worked together. The ill effects of solitary confinement, plus working together was more economically productive. The rule of silence as the key to maintaining discipline.

The Pennsylvania model was closer to the ideas of the reformers, but it was more trouble and more costly. The Auburn model won out because it was cheaper to house larger numbers of convicts and was more economically beneficial; it served as the basis for the factory prison of the late 1800s and early 1900s.

The spread of the penitentiary, and the recognition that it was not having the desired effect on criminals, led to the development of other alternatives:

    probation. Augustus in Boston before Civil War. Exempting deserving offenders from confinement.

    parole. Used first by Maconochie and Crofton with British convicts in Australia and Ireland. Earned early release from prison; parole officer added later for supervision in community.

    juvenile training schools. Work-training centers for wayward and abandoned youths.

    reformatory. Brockway at Elmira in 1876. The first attempt at modern rehabilitation: indeterminate sentence, work, school, military discipline, parole.

    juvenile courts. Chicago in 1898.

    work release.

As alternatives were used more, prisons grew larger: the walled, maximum security prison as a self-contained unit, built around the factory as a way of producing goods to defray costs. Prison farms used in the South and elsewhere. Modern corrections developing in the 1800s: the penitentiary and reactions to it.

American corrections today: a huge bureaucracy with authority over seven million adults and a million juveniles at any given time.

    Prisons: 1,400,000

    Jails: 700,000

    Probation: 4,500,000

    Parole and supervised release: 600,000

    Juvenile institutions: 100,000

    Juvenile probation and alternative placements: 900,000

Corrections operated mostly under state control but made up of three levels of organizations:     state: prisons, reformatories, training schools, parole, some probation.

    local: jails, juvenile detention homes, some probation.

    private: halfway houses, group homes, some institutions.

Eras in 20th century American corrections:

    The industrial prison of the early 1900s. The Big House. Prisoners worked at hard labor, usually in a factory-type setting. Killed off by labor opposition and restrictive legislation of the Depression.

    The rehabilitation era after World War II. The correctional institution. Emphasis on vocational training, education, medical treatment and counseling. In decline from the 1970s on, as it could not be demonstrated to change behavior.

    The reintegration era of the 1970s. Against institutions; in favor of keeping offenders in the community as much as possible: probation, halfway houses, work and educational release, pre-release centers.

    The neoclassical era from the late 1970s to the present. Emphasis on the incapacitative, retributive and deterrent effects of punishment. The warehouse.

Locking more people up. A declining percentage of violent offenders in prison, as more drug offenders and repeat property offenders are confined. Making non-confinement alternatives, such as probation and parole, more restrictive and punitive: intensive probation, shock probation, shock incarceration ("boot camp"), electronic monitoring, house arrest, day reporting centers.

Levels of prison security:

    maximum. Often older, larger prisons designed to house more than a thousand men. High walls or double fences. Guard towers. Cellblocks and steel bars; concrete construction.     medium. Several hundred to about 1,500 convicts, dormitories and cellblocks, perimeter security fences, controlled movement inside but much less use of lockdown. Generally newer and more nicely equipped. Biggest expansion in new prisons; most inmates now held in medium or multilevel (medium-maximum or medium-minimum) security prisons.

    minimum. A fence or no fence, dorms or rooms, little internal security. Easy to escape from, but at a severe cost if recaptured. Smaller, usually with some purposeful activity required (work, school, vocational training).

    open. No security. Escape by walking out and not coming back. Pre-release and work release centers in the community.

    farms, camps, forestry camps. Used in many states, may be any security level.

How prisons have changed in this century:

    decline of prison industries and hard labor.

    growth of rehabilitation and treatment programs.

    abolition of silence and strict discipline.

    specialized institutions (age, mental, sex offenders, drugs).

    prisoners have more legal rights.

    more contact with outside world.

    professionalization of staff services.
 
 
 

CJUS 101

Prison Life
 

Who goes to prison, and what happens to them once they get there?

    Profile of adult prison inmates today:

    Gender: 94% male, 6% female

    Age: 51% under 35

    Race/Ethnicity: 33% white, 48% black, 17% Hispanic

    Marital Status: 55% never married, 18% married

    Education: 34% high school graduates

    Employment(at arrest): 33% not employed, 55% working full-time

    Income(at arrest): 52% earning less than $10,000 per year

    Crimes: 30% drug trafficking and possession, 15% robbery, 12% burglary, 11% murder, 8% assault

    Prior Record: 18% none, 11% juvenile only, 36% adult only, 35% both juvenile and adult prior convictions

    Drug Abuse: 54% claimed under influence of drugs or alcohol or both at time of offense; 62% regular drug users.

Basic profile: young man, prior record of confinement, undereducated and underemployed, unattached, with a history of abusing drugs and alcohol.

Classification: the basis of custody and treatment in the prison system. For new inmates, creates prison records, evaluates security needs, medical and psychological tests, education needs.

Basic decisions to be made with the new inmate:

    institution to be assigned to.

    living quarters.

    job assignments.

    treatment--education, job training, counseling.

Very different living environments according to level of security:

    supermax--perpetual lockdown, no work.

    maximum--cells, high security.

    medium--dormitory life.

    minimum--dorms and rooms.

    open--community centers.

The concept of the prison at a "total institution:" assuming that custody can totally control the lives of the inmates--procedures, rules, discipline, punishment. In opposition to the official world is the "inmate subculture," which represents the values of the inmates. "Prisonization:" Donald Clemmer's term for the adaptation of the inmate to the prison subculture; easier for previously institutionalized inmates than new, inexperienced younger inmates.

The inmate code: a set of informal rules ("Don't be a rat." "Do your own time." "Don't be a snitch."), roles ("right guy," "rat," "tough," "merchant," "gorilla"), structures and beliefs that defined the old prison subculture. Not as strong today, due to the breakdown of the old social structure. Prison inmates today are more violent, more racially divided (in some prisons), more gang-oriented, and more institutionalized than earlier inmates.

Other influences on prison life: overcrowding; asexual prison life (little use of conjugal visiting or coed prisons; sex not permitted in prison); legal rights of inmates; improved living environment, including better medical care for inmates; more access to outside world; higher quality security; more professional treatment services available; longer prison terms for violent and repeat offenders.