![2455 Teller Road
Thousand Oaks, California 91320
E-mail: [email protected]
SAGE Publications Ltd.
1 Oliver’s Yard
55 City Road
London, EC1Y 1SP
United Kingdom
SAGE Publications India Pvt. Ltd.
B 1/I 1 Mohan Cooperative Industrial Area
Mathura Road, New Delhi 110 044
India
SAGE Publications Asia-Pacific Pte. Ltd.
18 Cross Street #10-10/11/12
China Square Central
Singapore 048423
Printed in the United States of America
This book is printed on acid-free paper.](https://image.slidesharecdn.com/thisassigmenthastwopartsdueweek3isthereadifferenc-220922143255-7f8159bc/85/THIS-ASSIGMENT-HAS-TWO-PARTS-Due-week-3Is-there-a-differenc-8-320.jpg)
![Library of Congress Cataloging-in-Publication Data
Names: Mallicoat, Stacy L., author.
Title: Crime and criminal justice : concepts and controversies /
Stacy L. Mallicoat, California State University, Fullerton.
Description: Second Edition. | Thousand Oaks : SAGE
Publications, Inc., Corwin, CQ Press, [2019] | Revised edition
of
the author’s Crime and criminal justice, [2017] | Includes
bibliographical references and index.
Identifiers: LCCN 2018035888 | ISBN 9781544338972 (pbk. :
alk. paper)
12
Subjects: LCSH: Crime. | Law enforcement. | Criminal justice,
Administration of.
Classification: LCC HV6025 .M3145 2019 | DDC 364–dc23 LC
record available at https://lccn.loc.gov/2018035888
19 20 21 22 23 10 9 8 7 6 5 4 3 2 1
Acquisitions Editor: Jessica Miller
Editorial Assistant: Rebecca Lee
Content Development Editor: Laura Kearns
Production Editor: Laureen Gleason](https://image.slidesharecdn.com/thisassigmenthastwopartsdueweek3isthereadifferenc-220922143255-7f8159bc/85/THIS-ASSIGMENT-HAS-TWO-PARTS-Due-week-3Is-there-a-differenc-9-320.jpg)
![CON: Marijuana Should Not Be Legalized
Under the Controlled Substances Act, passed as part of the
Comprehensive Drug Abuse Prevention and Control Act
of 1970 (and still in effect today), marijuana is classified as a
Schedule I drug (along with heroin, MDMA [ecstasy],
and PCP, among other substances). A Schedule I substance is
defined as a drug that has “a high potential for abuse, no
medical use in the United States, and a lack of accepted safety
for use under medical supervision.”33
Most states created legislation prohibiting marijuana use over
the 1900–1930 period, and in 1937, marijuana was
effectively banned at the federal level with the passage of the
Marijuana Tax Act. This was largely in response to the
efforts of Harry Anslinger and the Federal Bureau of Narcotics
(FBN, essentially the precursor to the current Drug](https://image.slidesharecdn.com/thisassigmenthastwopartsdueweek3isthereadifferenc-220922143255-7f8159bc/85/THIS-ASSIGMENT-HAS-TWO-PARTS-Due-week-3Is-there-a-differenc-180-320.jpg)
![Crime is often defined as acts such as the traditional street
offenses perpetrated by low-status offenders or, in other
cases, crimes of violence against society. In defending this
definition, criminologist James Q. Wilson indicated that
excluding white-collar offenses from the discussions about
crime “reflects my conviction, which I believe is the
conviction of most citizens, that predatory street crime is a far
more serious matter than consumer fraud [or] antitrust
violations … because predatory street crime makes difficult or
impossible maintenance of meaningful human
communities.”29
White-collar offenses usually include acts such as forgery,
embezzlement, and fraud. While one might consider these
acts to be property crimes, information about these crimes is not
included in the Uniform Crime Reports because these
acts are not considered index crimes. Therefore, is it reasonable
to assume that such acts are not considered as serious](https://image.slidesharecdn.com/thisassigmenthastwopartsdueweek3isthereadifferenc-220922143255-7f8159bc/85/THIS-ASSIGMENT-HAS-TWO-PARTS-Due-week-3Is-there-a-differenc-280-320.jpg)
![Despite Title IX requirements and the benefits universities
provide, critics argue that the criminal legal system is still
the best system, despite its flaws.
These critics often point to the lack of due process—a
foundational component of the criminal legal system—in
university proceedings. Law professors at Harvard and the
University of Pennsylvania have issued statements
criticizing their universities’ Title IX policies and processes for
“stack[ing the deck] against the accused” and
overreaching beyond what is required by Title IX regulations.34
They specifically take issue with “victim-centered”
policies when they deny or limit the accused’s ability to defend
himself or herself in a manner that is routine in
criminal courts. For instance, universities do not or have not
always allowed accused students to review the evidence
against them before the hearing, to confront the victim and any
witnesses during the hearing, or to have an attorney to](https://image.slidesharecdn.com/thisassigmenthastwopartsdueweek3isthereadifferenc-220922143255-7f8159bc/85/THIS-ASSIGMENT-HAS-TWO-PARTS-Due-week-3Is-there-a-differenc-492-320.jpg)
![positions, which are highly competitive.
832
Role of Parole Officers
While parole supervision was once intended to help offenders
successfully transition back to
the community, the role of the parole officer has shifted. Due to
the high caseloads that many
parole offices face, the opportunities to provide individualized
care to these offenders are
limited. Instead, the majority of a parole officer’s time is spent
monitoring offenders and
waiting to respond if and when an offender violates the
conditions of his or her release. One
woman shared the struggles in meeting the demands of her
parole, expressing fear of the
unknown in her new life and her ability to be successful in her
reentry process:
I start my day running to drop my urine [drug testing]. Then I
go see my children, show](https://image.slidesharecdn.com/thisassigmenthastwopartsdueweek3isthereadifferenc-220922143255-7f8159bc/85/THIS-ASSIGMENT-HAS-TWO-PARTS-Due-week-3Is-there-a-differenc-1256-320.jpg)
![up for my training program, look for a job, go to a meeting
[Alcoholics Anonymous],
and show up at my part-time job. I have to take the bus
everywhere, sometimes eight
buses for 4 hours a day. I don’t have the proper outer clothes, I
don’t have the money to
buy lunch along the way, and everyone who works with me
keeps me waiting so that I
am late to my next appointment. If I fail any one of these things
I am revoked. I am so
tired that I sometimes fall asleep on my way home from work at
2:00 a.m. and that’s
dangerous given where I live. And then the next day I have to
start over again. I don’t
mind being busy and working hard…. That’s part of my
recovery. But this is a situation
that is setting me up to fail. I just can’t keep up and I don’t
know where to start.52
833
Issues in Reentry](https://image.slidesharecdn.com/thisassigmenthastwopartsdueweek3isthereadifferenc-220922143255-7f8159bc/85/THIS-ASSIGMENT-HAS-TWO-PARTS-Due-week-3Is-there-a-differenc-1257-320.jpg)
THIS ASSIGMENT HAS TWO PARTS Due week 3Is there a differenc
- 1. THIS ASSIGMENT HAS TWO PARTS Due week 3: Is there a difference between “common practice” and “best practice”? In this Assignment, your Evidenced Based Project, you will identify clinical areas of interest and inquiry and practice searching for research in support of maintaining or changing these practices. You will also analyze this research to compare research methodologies employed. There are multiple parts to this assignment that will be due over the weeks of the course. Part 1 and 2 will be due in the 3rd. week. Part 1: An Introduction to Clinical Inquiry Create a 4- to 5-slide PowerPoint presentation in which you do the following: Identify and briefly describe your chosen clinical issue of interest. Describe how you used keywords to search the published literature regarding your chosen clinical issue of interest. Identify the four research databases (remember that libraries are not databases)that you used to conduct your search for the peer - reviewed articles you selected. Provide APA citations of the four peer-reviewed articles you selected. Part 2: Identifying Research Methodologies After reading each of the four peer-reviewed articles you selected, use the Matrix Worksheet template to analyze the methodologies applied in each of the four peer-reviewed articles. Your analysis should include the following: The full citation of each peer-reviewed article in APA format. A brief (1-paragraph) statement explaining why you chose this peer-reviewed article and/or how it relates to your clinical issue of interest, including a brief explanation of the ethics of
- 2. research related to your clinical issue of interest. A brief (1-2 paragraph) description of the aims of the research of each peer-reviewed article. A brief (1-2 paragraph) description of the research methodology used. Be sure to identify if the methodology used was qualitative, quantitative, or a mixed-methods approach. Be specific. A brief (1- to 2-paragraph) description of the strengths of each of the research methodologies used, including reliability and validity of how the methodology was applied in each of the peer-reviewed articles you selected. Instructors: Your time is valuable. We’re here for you! SAGE coursepacks: our content tailored to your LMS We make it easy to import our quality instructor and student content into your school’s learning management system (LMS). 2 No new system to learn Intuitive and simple to use Allows you to customize course content to meet your student’s needs
- 3. A variety of high-quality assessment questions and multimedia assignments to select from No required access codes Contact your SAGE sales representative to learn more: sagepub.com/findmyrep 3 http://sagepub.com/findmyrep SAGE Premium Video Boost Comprehension. Bolster Analysis. SAGE Premium Video exclusively curated for this text Bridges book content with application and critical thinking Includes short, auto-graded quizzes that directly feed to your LMS gradebook 4 Premium content is ADA compliant with transcripts Comprehensive media guide to help you quickly select meaningful video tied to your course objectives 5
- 4. SAGE Outcomes: Measure Results, Track Success FOR STUDENTS, understanding the objectives for each chapter and the goals for the course is essential for getting the grade you deserve! FOR INSTRUCTORS, being able to track your students’ progress allows you to more easily pinpoint areas of improvement and report on success. 6 This title was crafted around specific chapter objectives and course outcomes, vetted by experts, and adapted from renowned syllabi. Tracking student progress can be challenging. Promoting and achieving success should never be. We are here for you. Course outcomes for Introduction to Criminal Justice: ARTICULATE the foundations of criminal justice, including definitions, theories, typologies, measurement issues, and the law. EXAMINE the development of policing organizations and strategies and the challenges faced by police.
- 5. EXPLAIN the structure and processes of the judiciary at the local, state, and federal levels. IDENTIFY the goals, methods, and effectiveness of various forms of corrections. ANALYZE important criminal justice issues and their impact on society. Want to see how these outcomes tie in with this book’s chapter - level objectives? Visit us at edge.sagepub.com/mallicoatccj2e for complete outcome-to-objective mapping. 7 http://edge.sagepub.com/mallicoatccj2e “A WELL-WRITTEN, CONCISE OVERVIEW of the main components of the CJS—not a lot of filler, does a great job of getting the basic elements like history and terminology across without being dry, focusing instead on issues.” –Dan Dexheimer Boise State University 8
- 6. “An excellent text for both instructor and students. VERY CONTEMPORARY and useful in today’s CJ world. I would adopt over my current book for sure.” –Jeffrey M. O’Donnell Community College of Allegheny County “The text is logically organized, easy to read and understand. Students will find the text INTRIGUING as they move through the coverage of the controversies from the text.” –Michelle L. Foster Kent State University “The book presents the most important information the Intro to CJ students need without overwhelming students with details. Chapters are a reasonable length and EASY TO READ. And it is a REASONABLE PRICE.” –Stacy K. Parker Muskingum University 9 Crime and Criminal Justice
- 7. 2 Edition 10 Crime and Criminal Justice Concepts and Controversies 2 Edition Stacy L. Mallicoat California State University, Fullerton 11 Copyright © 2020 by SAGE Publications, Inc. All rights reserved. Except as permitted by U.S. copyright law, no part of this work may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system, without permission in writing from the publisher. All third party trademarks referenced or depicted herein are included solely for the purpose of illustration and are the property of their respective owners. Reference to these trademarks in no way indicates any relationship with, or endorsement by, the trademark owner. For information: SAGE Publications, Inc.
- 8. 2455 Teller Road Thousand Oaks, California 91320 E-mail: [email protected] SAGE Publications Ltd. 1 Oliver’s Yard 55 City Road London, EC1Y 1SP United Kingdom SAGE Publications India Pvt. Ltd. B 1/I 1 Mohan Cooperative Industrial Area Mathura Road, New Delhi 110 044 India SAGE Publications Asia-Pacific Pte. Ltd. 18 Cross Street #10-10/11/12 China Square Central Singapore 048423 Printed in the United States of America This book is printed on acid-free paper.
- 9. Library of Congress Cataloging-in-Publication Data Names: Mallicoat, Stacy L., author. Title: Crime and criminal justice : concepts and controversies / Stacy L. Mallicoat, California State University, Fullerton. Description: Second Edition. | Thousand Oaks : SAGE Publications, Inc., Corwin, CQ Press, [2019] | Revised edition of the author’s Crime and criminal justice, [2017] | Includes bibliographical references and index. Identifiers: LCCN 2018035888 | ISBN 9781544338972 (pbk. : alk. paper) 12 Subjects: LCSH: Crime. | Law enforcement. | Criminal justice, Administration of. Classification: LCC HV6025 .M3145 2019 | DDC 364–dc23 LC record available at https://lccn.loc.gov/2018035888 19 20 21 22 23 10 9 8 7 6 5 4 3 2 1 Acquisitions Editor: Jessica Miller Editorial Assistant: Rebecca Lee Content Development Editor: Laura Kearns Production Editor: Laureen Gleason
- 10. Copy Editor: Shannon Kelly Typesetter: Integra Proofreader: Scott Oney Indexer: Jeanne Busemeyer Cover Designer: Janet Kiesel Marketing Manager: Jillian Ragusa 13 https://lccn.loc.gov/2018035888 Brief Contents Preface Acknowledgments About the Author Part I: Foundations of Criminal Justice Chapter 1: Crime and Criminal Justice Chapter 2: Concepts of Law and Justice Chapter 3: Defining and Measuring Crime Chapter 4: Explanations of Criminal Behavior Chapter 5: Victims and the Criminal Justice System Chapter 6: Criminal Justice Policy Part II: Policing Chapter 7: Policing Organizations and Practices Chapter 8: Issues in Policing Part III: Courts
- 11. Chapter 9: Courts and Crime Chapter 10: Punishment and Sentencing Part IV: Corrections Chapter 11: Prisons and Jails Chapter 12: Community Corrections Part V: Special Topics in Criminal Justice Chapter 13: Juvenile Justice Chapter 14: Transnational Criminal Justice Glossary Endnotes Index 14 Detailed Contents Preface Acknowledgments About the Author Part I: Foundations of Criminal Justice Chapter 1: Crime and Criminal Justice Brief History of the American Criminal Justice System Stages of the Criminal Justice System Policing The Courts Corrections Discretion and Ethics in the Criminal Justice System ● CAREERS IN CRIMINAL JUSTICE: So You Want to Work in
- 12. Criminal Justice? The Wedding Cake Model of Justice Models of Criminal Justice The Crime Control Model The Due Process Model The Influence of the Media on the Criminal Justice System The CSI Effect ● AROUND THE WORLD: Crime, Law, and Justice From a Global Perspective Reality TV The Media and Perception of Crime Rates Influencing Public Policy ● SPOTLIGHT: The State v. Jodi Arias Conclusion ● CURRENT CONTROVERSY 1.1: Is Justice Served by Our Criminal Justice System? ● CURRENT CONTROVERSY 1.2: Is the Media a Credible Source on Crime? Key Terms 15 Discussion Questions Learning Activity Suggested Websites
- 13. Chapter 2: Concepts of Law and Justice Types of Law Civil Cases Criminal Cases Federal Criminal Laws State Criminal Laws Municipal Criminal Laws Sources of Law Constitutional Law Statutory Law Federal Statutory Law State Statutory Law Administrative Law ● SPOTLIGHT: Concealed Weapons on College Campuses Case Law Criminal Law Components of a Criminal Act ● AROUND THE WORLD: International Law Substantive Criminal Law Procedural Criminal Law Criminal Defenses Necessity, Duress, and Entrapment Self-Defense ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Defense Attorney? Intoxication Insanity The M’Naghten Rule
- 14. The Irresistible Impulse Test The Model Penal Code Guilty but Mentally Ill 16 Conclusion ● CURRENT CONTROVERSY 2.1: Should Marijuana Be Legalized? ● CURRENT CONTROVERSY 2.2: Should Sexual Harassment Be Identified as a Form of Sexual Assault? Key Terms Discussion Questions Learning Activities Suggested Websites Chapter 3: Defining and Measuring Crime Defining Crime Violent Offenses Murder Sexual Assault Assault Robbery Property Offenses ● SPOTLIGHT: Sexual Harassment in Hollywood Status Offenses Victimless Crimes White-Collar Offenses Crimes Against the Government
- 15. Uniform Crime Reports Data Collected Rates of Crime Data on Offenders Limitations of the UCR National Incident-Based Reporting System ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Research Analyst? Data Collected Limitations of NIBRS National Crime Victimization Survey Data Collected ● AROUND THE WORLD: International Crime Data 17 Self-Reported Offending Datasets Data Collected Limitations of Self-Reported Offending Datasets Conclusion ● CURRENT CONTROVERSY 3.1: Is White-Collar Crime Harmful to Society? ● CURRENT CONTROVERSY 3.2: Is Violent Crime on the Rise? Key Terms Discussion Questions Learning Activities
- 16. Suggested Websites Chapter 4: Explanations of Criminal Behavior What Is a Theory of Crime? ● SPOTLIGHT: Theories and Research on Crime Classical Theories of Crime Cesare Beccaria Jeremy Bentham Biological and Psychological Theories of Crime Foundations of Biological Theories of Crime Cesare Lombroso William Ferrero Foundations of Psychological Theories of Crime Sigmund Freud Contemporary Biological and Psychological Theories of Crime Jean Piaget ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Criminologist? Lawrence Kohlberg Biosocial Theories Sociological Theories of Crime Social Disorganization Theory ● SPOTLIGHT: Flint, Michigan, and Social Disorganization Theory Anomie and Strain Theories of Crime General Strain Theory
- 17. 18 Differential Association Theory Labeling Theory Social Learning Theory Social Bond Theory Control Theory Contemporary Theories of Crime Life Course Theory ● AROUND THE WORLD: Criminological Theory in a Global Context Feminist Criminology Feminist Pathways Masculinities Queer Criminology Conclusion ● CURRENT CONTROVERSY 4.1: Is There a Relationship Between Race and Class and Criminal Behavior? ● CURRENT CONTROVERSY 4.2: Does Mental Illness Cause Crime? Key Terms Discussion Questions Learning Activities Suggested Websites Chapter 5: Victims and the Criminal Justice System Victims and Crime Theories of Victimization
- 18. Early Theories of Victimology Just-World Hypothesis Routine Activities and Lifestyle Theory ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Victim Advocate? History of Victims’ Rights The Current State of Victims’ Rights Victims in the Criminal Justice System ● SPOTLIGHT: Politics and Victims’ Rights: The Violence Against 19 Women Act Who Are the Victims of Crime? Unreported Crimes: Why Do Victims Not Report to the Police? Conclusion ● AROUND THE WORLD: Criminal Victimization in a Global Context ● CURRENT CONTROVERSY 5.1: Are Colleges and Universities the Best Place to Respond to Campus Sexual Assault? ● CURRENT CONTROVERSY 5.2: Is Restorative Justice an Effective Tool for Victims? Key Terms Discussion Questions Learning Activities
- 19. Suggested Websites Chapter 6: Criminal Justice Policy What Is Policy? Why Do We Need Criminal Justice Policies? How Do Criminal Justice Policies Develop? Planning a Policy Adopting and Implementing a Policy Evaluating a Policy Who Develops Criminal Justice Policy? Direct Democracy The Goals of Criminal Justice Policies Cost-Saving Measures Politics and Criminal Justice Policy ● SPOTLIGHT: Stand-Your-Ground Policy Presidential Politics and Criminal Justice Policies Congress and Criminal Justice Policies Public Perception and Criminal Justice Policies ● AROUND THE WORLD: Drug Policy in the Netherlands Research and Criminal Justice Policies Conclusion ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Policy 20 Advocate? ● CURRENT CONTROVERSY 6.1: Are Laws Requiring Sex
- 20. Offender Registries Effective? ● CURRENT CONTROVERSY 6.2: Should the United States Increase Its Laws About Gun Control? Key Terms Discussion Questions Learning Activities Suggested Websites Part II: Policing Chapter 7: Policing Organizations andPractices A Brief History of Policing Political Era Reform Era Community Problem-Solving Era Types of Police Organizations Federal Law Enforcement Department of Justice ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Police Officer? Department of Homeland Security State Law Enforcement Local Law Enforcement ● SPOTLIGHT: Mandatory Arrest Policies Special Law Enforcement Agencies Women in Policing Racial and Ethnic Diversity in Policing The Importance of a Diverse Police Force What Do the Police Do?
- 21. Police Roles Strategies and Tactics of Policing Random Versus Directed Patrols Order Maintenance Policing Community Policing 21 Problem-Oriented Policing ● AROUND THE WORLD: Community Policing in Action Predictive Policing Conclusion ● CURRENT CONTROVERSY 7.1: Is Targeted Policing a Good Policing Strategy? ● CURRENT CONTROVERSY 7.2: Is Street-Level Bureaucracy a Good Thing? Key Terms Discussion Questions Learning Activities Suggested Websites Chapter 8: Issues in Policing Policing and the Law Search and Seizure The Role of Technology in Searches Warrantless Searches Automobile Searches
- 22. ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Criminal Investigator? The Miranda Warning ● SPOTLIGHT: DNA Collection Ethical Dilemmas and Corruption Discretion Duty Honesty Corruption Why Does Corruption Occur? Racial Profiling ● AROUND THE WORLD: Policing in the Middle East Research on Racial Profiling Strategies to Reduce Racial Profiling Use of Force Types of Force 22 Police Legitimacy Police Occupational Stress Conclusion ● CURRENT CONTROVERSY 8.1: Should Police Agencies Require Officers to Wear Body Cameras? ● CURRENT CONTROVERSY 8.2: Does Police Discretion Help or Harm Our Criminal Justice System?
- 23. Key Terms Discussion Questions Learning Activities Suggested Websites Part III: Courts Chapter 9: Courts and Crime Criminal Versus Civil Courts Jurisdiction and the Courts System Geographical Jurisdiction Concurrent Jurisdiction Subject Matter Jurisdiction Appellate Jurisdiction Structure of the Courts The Federal Court System Magistrate Courts District Courts Appeals Courts Supreme Court Women and Minorities on the Bench The State Court System Judicial Selection of State Trial Court Judges State Appellate Courts Courtroom Participants and Their Duties Ancillary Members Judges Prosecutors Ethical Challenges for Prosecutors
- 24. 23 Defense Attorneys ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Prosecutor? Juries Grand Juries ● SPOTLIGHT: The Impact of Gideon v. Wainwright Trial Juries ● AROUND THE WORLD: Juries in a Global Context Stages of a Criminal Court Case Pretrial Arraignment Trial Conclusion ● CURRENT CONTROVERSY 9.1: Should Physical Evidence Be Required in Serious Criminal Cases? ● CURRENT CONTROVERSY 9.2: Should We Limit the Use of Plea Bargains? Key Terms Discussion Questions Learning Activities Suggested Websites Chapter 10: Punishment and Sentencing Correctional Philosophies Deterrence
- 25. Rehabilitation Incapacitation Retribution ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Drug and Alcohol Counselor? Restoration Determinate Sentencing Sentencing Guidelines ● SPOTLIGHT: Lynching and Mass Incarceration Opposition to Sentencing Guidelines 24 Indeterminate Sentencing Mandatory Sentences Opposition to Mandatory Sentences ● AROUND THE WORLD: Criminal Sentencing in China Capital Punishment Legal Challenges Methods of Execution Under the Eighth Amendment Firing Squad Hanging Electrocution Lethal Gas Lethal Injection Conclusion ● CURRENT CONTROVERSY 10.1: Do Habitual Sentencing Laws
- 26. Deter Offenders? ● CURRENT CONTROVERSY 10.2: Should We Abolish the Death Penalty? Key Terms Discussion Questions Learning Activities Suggested Websites Part IV: Corrections Chapter 11: Prisons and Jails History of Jails and Prisons The Pennsylvania System The New York System The Reformatory Era The Punishment Era Jails Jail Inmates Jail Challenges Types of Prisons State Prisons ● AROUND THE WORLD: Prisons in Russia 25 Federal Prisons Private Prisons Military Prisons Prison Security Levels
- 27. Inmate Classification Issues in Incarceration Racial Disproportionality Overcrowding Incarceration of Women Financial Issues Behind Bars Prison Misconduct Prison Gangs Prison Riots Sexual Misconduct Legal Rights of Prisoners ● SPOTLIGHT: The Incarceration of the Mentally Ill ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Correctional Officer? Conclusion ● CURRENT CONTROVERSY 11.1: Should We Use Solitary Confinement to Control Violent and Disruptive Behaviors? ● CURRENT CONTROVERSY 11.2: Should Prisons Punish or Rehabilitate Offenders? Key Terms Discussion Questions Learning Activities Suggested Websites Chapter 12: Community Corrections Pretrial Release Programs Diversion Specialized Courts Probation
- 28. A Brief History of Probation Probation in the Twenty-First Century 26 Types of Probation ● SPOTLIGHT: Recidivism Duties of the Probation Officer The Presentence Investigation Report Probation Revocation Intermediate Sanctions ● AROUND THE WORLD: Probation in Italy House Arrest and Electronic Monitoring Day Reporting Centers and Work/Study Release Programs Halfway Houses Parole A Brief History of Parole Parole in the Twenty-First Century ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be a Probation or a Parole Officer? Role of Parole Officers Issues in Reentry Employment Challenges Disenfranchisement Drug Addiction Access to Health Care Access to Resources Conclusion ● CURRENT CONTROVERSY 12.1: Should Employers Be Permitted to Ask About Criminal History?
- 29. ● CURRENT CONTROVERSY 12.2: Is Parole an Effective Correctional Strategy? Key Terms Discussion Questions Learning Activities Suggested Websites Part V: Special Topics in Criminal Justice Chapter 13: JuvenileJustice History of the Juvenile Justice System 27 The U.S. Supreme Court and Juveniles ● CAREERS IN CRIMINAL JUSTICE: So You Want to Work in Juvenile Justice? Structure of the Juvenile Court Delinquency Cases Dependency Cases Juvenile Justice Process Intake Processing Diversion Adjudication Sentencing ● SPOTLIGHT: Michelle Carter Confinement ● AROUND THE WORLD: Juvenile Justice in Japan
- 30. Juvenile Waiver Legislative Waiver Prosecutorial Waiver Judicial Waiver Demographics of Juvenile Offenders Conclusion ● CURRENT CONTROVERSY 13.1: Have Zero-Tolerance Policies Made Schools Safer? ● CURRENT CONTROVERSY 13.2: Should the Juvenile Court Be Abolished? Key Terms Discussion Questions Learning Activities Suggested Websites Chapter 14: Transnational Criminal Justice Transnational Crime Terrorism Types of Terrorism Prevalence of Terrorism 28 ● SPOTLIGHT: The Boston Marathon Bombings Homeland Security Responses to Terrorism Before 9/11
- 31. ● AROUND THE WORLD: Terrorism in Indonesia Responses to Terrorism After 9/11 The USA PATRIOT Act The Trump Administration and the Travel Ban Drones and the Law Border Control Immigration ● CAREERS IN CRIMINAL JUSTICE: So You Want to Be an Interpreter? Human Trafficking Organized Crime Drug and Arms Trafficking Conclusion ● CURRENT CONTROVERSY 14.1: Should Enemy Combatants Be Denied Due Process Rights? ● CURRENT CONTROVERSY 14.2: Does Immigration Impact Crime? Key Terms Discussion Questions Learning Activity Suggested Websites Glossary Endnotes Index 29 Preface
- 32. This text is a unique approach to studying the concepts and controversies of the criminal justice system. Like many introductory texts, this book covers the major structures, agencies, and functions of the criminal justice system. In each chapter, you will learn about the different features and functions of our criminal justice system. You’ll also learn about examples of high-profile cases and how the criminal justice system has responded to these crimes. The book also provides an in-depth look at the role of victims and policy in our criminal justice system, two topics that are often either absent or covered in a limited fashion in most texts. In addition, this book provides a unique look at some of the emerging issues in criminal justice in the twenty-first century, such as homeland security, transnational crime, and the use of drones. Finally, you’ll learn about some of the cutting-edge issues and debates that face the criminal justice system today. 30 Organization of the Book This book is divided into 14 chapters, with each chapter dealing with a different subject related to the criminal justice system. Each chapter begins with an issue or topic relevant to the themes that are discussed in the chapter. Each chapter summarizes some of the basic terms and concepts related to the subject area.
- 33. Each chapter also provides the following features: Spotlights. Each chapter presents either case studies or special topic discussions on the issues presented in the chapter. These spotlights provide you with the opportunity to learn about an issue in depth or to investigate a real-world event in light of the terms and concepts presented in the text. Around the World. Each chapter presents an international example of how criminal justice systems function around the world. Careers in Criminal Justice. Each chapter provides an example of a criminal justice career that you may choose to pursue. Current Controversies. Within each chapter, you’ll be presented with two current controversies that the criminal justice system faces. Within each of these debates, you’ll be presented with the pros and cons of each topic, followed by critical thinking questions to help you think more deeply about these key issues. 31 Chapter Contents Chapter 1: Crime and Criminal Justice provides an introduction to the issues of crime and justice. In this chapter, you will learn about the criminal justice
- 34. system and the different models that help describe its functions. You’ll also learn about the role of the media and how information about crime is shared with the public. The chapter concludes with two Current Controversy debates. The first, by Kareem L. Jordan, questions whether justice is served by our criminal justice system. The second, by Amanda Burgess- Proctor, investigates whether the media is a credible source on crime. Chapter 2: Concepts of Law and Justice investigates the concepts of law and justice within our criminal justice system. In this chapter, you will learn about the development of law and how it relates to the criminal justice system. The chapter begins with a discussion on the different sources of law in the United States. The chapter then focuses on the different types of law and their relationship to the criminal justice system. You’ll also learn about the different legal defenses that are used in the criminal courts to explain or justify criminal behaviors. The chapter concludes with two Current Controversy debates. The first, by Clayton Mosher and Scott Akins, looks at the debate over legalizing marijuana. The second, by Alissa Ackerman, questions whether sexual harassment should be included as a form of sexual assault. Chapter 3: Defining and Measuring Crime looks at the types of crime that our criminal justice system manages. This chapter begins with a review of the different types of crime and how we classify these offenses. The chapter then turns to a
- 35. discussion of how crime is measured in society. You’ll learn about the different official sources of crime data, such as the Uniform Crime Reports, the National Incident-Based Reporting System, and the National Crime Victimization Survey, as well as self-reported studies of crime. You’ll also learn about international databases of crime that can be used to understand the presence of crime around the world. The chapter concludes with two Current Controversy debates. The first, by Henry N. Pontell, Gilbert Geis, Adam Ghazi-Tehrani, and Bryan Burton, looks at whether white- collar crime is considered harmful to society. The second, by Vaughn Crichlow, addresses whether or not violent crime is on the rise. Chapter 4: Explanations of Criminal Behavior investigates the different theoretical explanations for criminal behavior. This chapter begins with a discussion about the classical 32 theories of crime. The chapter then explores biological and psychological explanations of crime, in which theorists historically looked at factors such as biology and genetics to help understand criminal behavior. This chapter also looks at how external social factors such as poverty, family, and peers can help to explain crime. The chapter then moves to a review of some of the contemporary theories of crime, such as life course theory and feminist
- 36. criminology. The chapter concludes with two Current Controversy debates. The first, by Kenethia McIntosh-Fuller, questions whether race and class can impact criminal behavior, and the second, by Robert Schug, asks whether mental illness causes crime. Chapter 5: Victims and the Criminal Justice System highlights the issues that victims of crime face in dealing with the criminal justice system. This chapter looks at the role of victims in the criminal justice system. The chapter begins with a discussion of the history of the victims’ rights movement and then turns to a review of the theories that help to explain criminal victimization. This is followed by a discussion of the types of victims and an exploration of the extent of victimization both within the United States and worldwide. The chapter concludes with two Current Controversy debates. The first, by Allison Foley, explores whether universities are best suited to respond to cases of rape and sexual assault among college students, while the second, by Kimberly J. Cook, investigates how a restorative justice model might help in the healing process for victims. Chapter 6: Criminal Justice Policy focuses on how policy can shape and is shaped by the criminal justice system. The chapter begins with a discussion on the need and function of criminal justice policies. The chapter then looks at how policies are developed and the role of politics in this process. The chapter concludes with two Current Controversy debates related to criminal justice policies. The first, by David Bierie and Sarah
- 37. Craun, looks at whether sex offender registries are an effective tool for keeping the public safe. The second, by Thaddeus Lateef Johnson and Natasha N. Johnson, asks whether the United States should change its laws about gun control. Chapter 7: Policing Organizations and Practices presents the different types of police organizations and practices. This chapter begins with a look at the historical roots of policing and then presents the different types of police organizations. The chapter then turns to a review of the various styles of policing, such as order maintenance, community policing, and problem-oriented policing. The chapter concludes with two Current Controversy debates. The first, by Meghan Hollis and Amber Richey, asks whether targeted policing is a good 33 strategy. The second, by Shelly Arsneault, questions whether street-level bureaucracy is a good practice in criminal justice. Chapter 8: Issues in Policing highlights some of the issues that the police face both as individual officers and as an organization at large. The chapter begins with a discussion of the legal issues in policing and the rules that impact how police officers do their job. The chapter next turns to a discussion of ethical challenges, corruption, racial profiling, and the use of
- 38. force and how these issues can have an effect on the public’s perception of the police. The chapter then looks at the nature of police legitimacy and how these types of issues can serve as a threat. The chapter concludes with two Current Controversy debates. The first, by Bill Sousa, investigates how body cameras should be utilized in the line of duty, and the second, by Lorenzo M. Boyd, asks whether police discretion is helpful or harmful to our criminal justice system. Chapter 9: Courts and Crime discusses the role of courts in our criminal justice system. In this chapter, you will learn about the structure of the American court system and its relationship to the criminal justice system. The chapter begins with a discussion about how courts are organized. The chapter then looks at the different participants in the courtroom and their roles. After that, the chapter moves to a discussion of the stages of a criminal court case. The chapter concludes with two Current Controversy debates related to the criminal court system. The first, by Julius (Jay) Wachtel, asks whether physical evidence should be required in serious criminal cases. The second, by G. Max Dery, asks whether we should limit the use of plea bargains in criminal cases. Chapter 10: Punishment and Sentencing introduces you to the different types of sentencing practices that are used in the criminal justice system. The chapter begins with a discussion about the various philosophies that guide sentencing practices. The chapter then looks at the
- 39. different types of sentences. The chapter concludes with two Current Controversy debates related to the criminal court system. The first, by Kimberly Dodson, asks whether habitual sentencing laws deter offenders. The second, by Connor Bell and Gavin Lee, looks at whether we should abolish the death penalty. Chapter 11: Prisons and Jails highlights the various programs and practices that make up the field of community corrections. In this chapter, you will learn about each of these programs and how they balance the safety and security of the community with the needs of the 34 offender. You’ll also learn about the process of reentry after prison and the role of parole. The chapter concludes with two Current Controversy debates. The first, by Brett Garland, investigates whether we should use supermax facilities to control violent offenders. The second, by Sean Wilson, investigates whether prisons should be designed to punish or rehabilitate inmates. Chapter 12: Community Corrections focuses on the role of correctional institutions such as prisons and jails. In this chapter, you will learn about the structure of prisons and jails in the United States. The chapter begins with a historical review of how prisons and jails developed. It then looks at the current state of jails and the different types
- 40. of populations that these facilities serve. The chapter then turns to a review of prisons and highlights how issues such as security levels impact the design and organization of a facility. You’ll then learn about life behind bars and how issues such as violence, programming, and health care can impact the quality of life of inmates. You’ll also learn about the legal rights of prisoners and how landmark Supreme Court cases have impacted the prison environment. Finally, you’ll hear about the role of correctional officers in the prison. The chapter concludes with two Current Controversy debates. The first, by Monica Solinas-Saunders and Melissa Stacer, asks whether employers should be permitted to ask applicants about their criminal history. The second, by Christine Scott-Hayward, looks at whether parole is an effective correctional strategy. Chapter 13: Juvenile Justice shows how the juvenile justi ce system functions as a separate but similar counterpart to the criminal justice system. The chapter begins with a discussion of the history of the juvenile justice system and then turns to a review of the key decisions by the U.S. Supreme Court on juveniles. Next, the chapter examines the structure of the juvenile court and some of the differences between the juvenile and criminal courts. The chapter also explores juvenile waivers. The chapter concludes with two Current Controversy debates. The first, by Alicia Pantoja, Sanna King, and Anthony Peguero, asks whether zero-tolerance policies have made schools safer. The second, by Schannae
- 41. Lucas, addresses whether or not the juvenile court system should be abolished. Chapter 14: Transnational Criminal Justice concludes the text with an investigation of the global issues that are facing the criminal justice system. The chapter begins with a discussion of terrorism and then addresses homeland security. It also explores some of the privacy threats that exist due to the use of drones. Finally, the chapter turns to a discussion of border control. 35 The chapter also looks at how issues such as human trafficking, organized crime, and drugs and arms trafficking impact both the United States and international criminal justice systems. The chapter concludes with two Current Controversy debates. The first, by Gus Martin, asks whether enemy combatants should be denied due process rights. The second, by Zahra Shekarkhar, discusses whether immigration impacts crime. Through this text, I hope that you gain a strong foundation in the organization and issues of our criminal justice system. For those students who are majors in criminal justice, this text supplies the foundation to build your future coursework on. For students who have enrolled in an introductory course to satisfy a basic requirement or who are taking the course out of a general interest in crime, the information in this text will provide you with a new lens to look
- 42. at how crime and our criminal justice system work together as a function of society. 36 New to the Second Edition New Current Controversy boxes, such as these: Current Controversy 1.2: Is the Media a Credible Source on Crime? Current Controversy 2.2: Should Sexual Harassment Be Identified as a Form of Sexual Assault? Current Controversy 3.2: Is Violent Crime on the Rise? Current Controversy 5.1: Are Colleges and Universities the Best Place to Respond to Campus Sexual Assault? Current Controversy 6.2: Should the United States Increase Its Laws About Gun Control? Current Controversy 7.1: Is Targeted Policing a Good Policing Strategy? Current Controversy 10.2: Should We Abolish the Death Penalty? Current Controversy 11.1: Should We Use Solitary Confinement to Control Violent and Disruptive Behaviors? Current Controversy 11.2: Should Prisons Punish or Rehabilitate Offenders? Current Controversy 12.1: Should Employers Be Permitted to Ask About Criminal History?
- 43. New or expanded coverage of critical topics, including the following: A brief history of the American criminal justice system Criminal defenses Constitutional rights under criminal law Masculinities and crime Queer criminology Tasers and the use of force Women and minorities in the judiciary Judicial selection Bail and pretrial release California’s prison realignment Supermax prisons Inmate classification The incarceration of women 37 Financial issues behind bars Prison riots Legal rights of prisoners Reentry Transnational criminal justice Cyberterrorism The Trump administration and the travel ban New case studies and spotlights, including the following: The wrongful conviction of Ricky Jackson Sexual harassment in Hollywood Mental illness and gun control The victims of the Seal Beach salon shooting Mandatory arrest policies
- 44. The importance of a diverse police force Race and the use of deadly force by police The role of technology in searches Recent Supreme Court cases, including Utah v. Streiff, Riley v. California, Carpenter v. United States, Birchfield v. California, Collins v. Virginia, Byrd v. United States, and Class v. United States The case of Larry Nassar Lynching and mass incarceration The case of Bill Cosby The case of Michelle Carter Terrorism in London, England Statistics, graphs, and tables have all been updated to demonstrate the most recent trends in criminal justice 38 Digital Resources 39 Interactive eBook Learn more at edge.sagepub.com/mallicoatccj2e/access Career Videos: In the Interactive eBook, interviews are available with criminal justice professionals discussing their day-to-day work and current issues related to technology, diversity, and cutting-edge developments in their field.
- 45. SAGE News Clips: In the Interactive eBook, relevant news clips are available that deepen students’ understanding of key concepts and help students apply knowledge. Criminal Justice in Action: Decision-Making Scenarios: In the Interactive eBook, original animations are available that give students the opportunity to apply the concepts they are learning and to check for a deeper understanding of how these concepts play out in real-world scenarios. Journal Articles: Articles from highly ranked SAGE journals such as Crime and Delinquency, Theoretical Criminology, Criminal Justice Review, and more can be accessed. SAGE edge offers a robust online environment featuring an impressive array of tools and resources for review, study, and further exploration, keeping both instructors and students on the cutting edge of teaching and learning. SAGE edge content is open access and available on demand. Learning and teaching has never been easier! edge.sagepub.com/mallicoatccj2e 40 http://edge.sagepub.com/mallicoatccj2e/access http://edge.sagepub.com/mallicoatccj2e Instructor Resources
- 46. SAGE edge for Instructors supports teaching by making it easy to integrate quality content and create a rich learning environment for students. Test banks provide a diverse range of pre-written options as well as the opportunity to edit any question and/or insert personalized questions to effectively assess students’ progress and understanding. Editable, chapter-specific PowerPoint® slides offer complete flexibility for creating a multimedia presentation for the course. Lecture notes summarize key concepts by chapter to ease preparation for lectures and class discussions. Discussion questions help launch classroom interaction by prompting students to engage with the material and by reinforcing important content. Tables and figures from the printed book are available in an easily downloadable format for use in papers, handouts, and presentations. EXCLUSIVE! Access to full-text SAGE journal articles that have been carefully selected to support and expand on the concepts presented in each chapter. Learning objectives reinforce the most important material. Multimedia resources include timely and relevant video, audio, and web links to further explore topics and highlight responses to critical thinking questions. Coursepacks provide easy LMS integration. 41
- 47. Student Resources SAGE edge for Students provides a personalized approach to help students accomplish their coursework goals in an easy-to-use learning environment. Mobile-friendly eFlashcards strengthen understanding of key terms and concepts. Mobile-friendly practice quizzes allow for independent assessment by students of their mastery of course material. Learning objectives reinforce the most important material. Multimedia resources include timely and relevant video, audio, and web links to further explore topics and highlight responses to critical thinking questions. EXCLUSIVE! Access to full-text SAGE journal articles that have been carefully selected to support and expand on the concepts presented in each chapter. 42 Acknowledgments Thank you to Jessica Miller and the amazing support staff at SAGE Publishing. Your support has been instrumental in bringing this book to life. Throughout my career, I have been blessed with amazing colleagues and mentors, including Jill Rosenbaum, Hank Fradella, Denise Paquette Boots, Lorenzo Boyd, and my colleagues and
- 48. friends with the Division on Women and Crime, the Division on People of Color and Crime, and the Minorities and Women Section. Thank you to my colleagues in the Division of Politics, Administration and Justice for their support and regular supply of Diet Coke and chocolate to get me through the day—Matt Jarvis, Sarah Hill, Shelly Arsneault, Christie Gardiner, Moe Miller, and Alissa Ackerman. Finally, I am deeply appreciative of my family and friends, who have provided me with the space to create and expand the understanding of what is possible, and for their endless encouragement of my adventures. This book has truly been a labor of love, sweat, and tears and one that would not have been possible without the support and sacrifices of my husband and boys. Thank you to Jeff, Taylor, and Keegan for joining me on the wild and crazy adventure of our lives. I also want to take a moment to thank the many friends and colleagues who contributed to this book: Scott Akins, Oregon State University Alissa Ackerman, California State University, Fullerton Shelly Arsneault, California State University, Fullerton Connor Bell, University of West Georgia David Bierie, U.S. Marshals Service Lorenzo Boyd, University of Maryland, Eastern Shore Amanda Burgess-Proctor, Oakland University Kimberly J. Cook, University of North Carolina, Wilmington Sarah Craun, Federal Bureau of Investigation Vaughn Crichlow, Florida Atlantic University G. Max Dery, California State University, Fullerton
- 49. Kimberly Dodson, University of Houston, Clear Lake Allison Foley, Augusta University Kenethia Fuller, North Carolina Central University 43 Brett Garland, Missouri State University Meghan Hollis, Texas State University Natasha N. Johnson, Georgia State University Thaddeus Lateef Johnson, Georgia State University Kareem Jordan, American University Sanna King, University of Hawai’i at Manoa Gavin Lee, University of West Georgia Schannae Lucas, California Lutheran University Gus Martin, California State University, Dominguez Hills Clay Mosher, University of Washington, Vancouver Alicia Pantoja, University of Pennsylvania Anthony Peguero, Virginia Tech Henry Pontell, John Jay College of Criminal Justice Amber Richie, Texas State University Robert Schug, California State University, Long Beach Christine Scott-Hayward, California State University, Long Beach Zahra Shekarkhar, Fayetteville State University Monica Solinas-Saunders, Indiana University Northwest Bill Sousa, University of Nevada, Las Vegas Melissa Stacer, University of Southern Indiana Jay Wachtel, California State University, Fullerton Sean Wilson, William Patterson University A huge thank-you as well to the many reviewers who provided suggestions throughout the development of this book:
- 50. Mario Cano, University of Texas at El Paso Robert M. Clark, PhD, Pennsylvania Highlands Community College Dan Dexheimer, Boise State University Michelle L. Foster, Kent State University Janet A. Heuer, Bemidji State University Dr. Hae Rim Jin, University of Houston–Clear Lake Rebecca Headley Konkel, University of Wisconsin–Milwaukee Jeffrey M. O’Donnell, Community College of Allegheny County Stacy K. Parker, Associate Professor, Muskingum University 44 And those who aided with the previous edition: Stephanie Albertson, Indiana University Southeast Andi Bannister, Wichita State University Kevin Barnas Erie, Community College, South Campus Lauren Barrow, Chestnut Hill College Butch Beach, Point University Ursula Ann Becker, Georgia Military College Michael Bisciglia, Southeastern Louisiana University Nicholas J. Blasco, The University of South Carolina Jennifer Bourgeois, Lone Star College, CyFair Bruce Carroll, Georgia Gwinnett College Darian Carter, Anne Arundel Community College Darla Darno, East Stroudsburg University Jacquelynn Doyon-Martin, Grand Valley State University Katie Ely, Lock Haven University Diane Evett, Pensacola State College Jodie Fairbank, Husson University Brian Fedorek, Southern Oregon University Chivon Fitch, Indiana University of Pennsylvania Laura Fletcher, College of Southern Nevada
- 51. BC Franson, Southwest Minnesota State University Danny Hayes, Peru State College Shawn Ingalls, University of Pittsburgh at Johnstown Janice Iwama, Northeastern University Casper Johnson, Valencia College Keith Johnson, Mansfield University Jason Jolicoeur, Washburn University Kimberly A. Kampe, University of Central Florida Bobbi Kassel, Utah Valley University William E. Kelly, Auburn University Jim Kerns, Boise State University Kenneth Leon, George Washington University Catherine D. Marcum, Appalachian State University 45 Philip McCormack, Fitchburg State University Naghme Morlock, Gonzaga University Shawn Morrow, Angelo State University Brian Murphy, Valencia College Charles Myers, Aims Community College Mai Naito, University of West Georgia Whitney Nickels, Northwest Mississippi Community College Michael O’Connor, Upper Iowa University Stacy Parker, Muskingum University Rebecca Pfeffer, University of Houston, Downtown Forrest Rodgers, Salem State University John Schafer, Western Illinois University Rachel Schmidt, Suffolk County Community College Margaret Schmuhl, John Jay College Sarah Scott, Texas A&M University–Corpus Christi Renita Seabrook, University of Baltimore Zahra Shekarkhar, Fayetteville State University Diane Sjuts, Metropolitan Community College
- 52. Sherry Lynn Skaggs, University of Central Arkansas John Sloan, Piedmont Technical College Edward Smith, Plattsburgh State University Elicka Peterson Sparks, Appalachian State University James M. Stewart, Calhoun Community College Jeanne Subjack, Southern Utah University Daniel Swanson, Southern Utah University Sema Taheri, Northeastern University John Tahiliani, Worcester State University N. Prabha Unnithan, Colorado State University Sheryl L. Van Horne, Arcadia University Theodore D. Wallman, University of North Florida Robert E. Wardle III, Youngstown State University Janese Weathers, University of Maryland Eastern Shore Jennifer Wiley, Sampson Community College Bill Williams, Phoenix College 46 Donna Wilson, Prince George’s Community College Tracey Woodard, University of North Florida 47 About the Author Stacy L. Mallicoat is a professor of criminal justice in the Division of Politics, Administration and Justice at California State University, Fullerton. She earned her BA in legal studies and sociology from Pacific Lutheran University and her PhD in sociology from
- 53. the University of Colorado, Boulder. She is the author of several books, including Women and Crime: A Text/Reader, Women and Crime: Core Concepts, and Criminal Justice Policy. Her work also appears in a number of peer-reviewed journals and edited volumes. She is an active member of the American Society of Criminology (ASC), the ASC’s Division on Women and Crime, and the Academy of Criminal Justice Sciences. 48 © iStock.com/Art Wager 49 50 Part I Foundations of Criminal Justice Chapter 1 Crime and Criminal Justice Current Controversy 1.1: Is Justice Served by Our Criminal Justice System? Current Controversy 1.2: Is the Media a Credible Source on Crime? Chapter 2 Concepts of Law and Justice Current Controversy 2.1: Should Marijuana Be Legalized?
- 54. Current Controversy 2.2: Should Sexual Harassment Be Identified as a Form of Sexual Assault? Chapter 3 Defining and Measuring Crime Current Controversy 3.1: Is White-Collar Crime Harmful to Society? Current Controversy 3.2: Is Violent Crime on the Rise? Chapter 4 Explanations of Criminal Behavior Current Controversy 4.1: Is There a Relationship Between Race and Class and Criminal Behavior? Current Controversy 4.2: Does Mental Illness Cause Crime? Chapter 5 Victims and the Criminal Justice System Current Controversy 5.1: Are Colleges and Universities the Best Place to Respond to Campus Sexual Assault? Current Controversy 5.2: Is Restorative Justice an Effective Tool for Victims? Chapter 6 Criminal Justice Policy Current Controversy 6.1: Are Laws Requiring Sex Offender Registries Effective? Current Controversy 6.2: Should the United States Increase Its Laws About Gun Control? 51 1 Crime and Criminal Justice 52
- 55. © iStock.com/Zolnierek 53 Learning Objectives Identify the major stages of the criminal justice system Explain the importance of discretion and ethics in the criminal justice system Describe the different tiers of the wedding cake model Compare and contrast the crime control model with the due process model Assess how media can impact the criminal justice system On May 19, 1975, Harold Franks was the victim of a robbery- murder in Cleveland, Ohio. The 59-year-old money order salesman was walking from a local neighborhood store when he was approached by two men, one of whom subsequently tossed acid in Franks’s face and shot him in the chest. A second bullet broke through the window of the store and hit Anna Robinson, the store owner’s wife. While she survived, Franks died at the scene. The take from the crime was $425 from Franks’s briefcase.
- 56. Within a week of Franks’s murder, the police had an eyewitness who stated that he had seen the three men who robbed and shot Franks. Eddie Vernon was just 12 years old when he identified 18-year-old Ricky Jackson as the man who shot Franks. Vernon also identified Ronnie and Wiley Bridgeman as co-conspirators to the crime. None of the three men had had any previous engagements with the law, and no physical or forensic evidence linked them to this crime. The gun used in the crime was never found, nor was the getaway car that was used to flee the scene. The only evidence presented by the prosecution was the testimony of Eddie Vernon, whose stories about the crime were inconsistent. Despite defense witnesses who contradicted Vernon’s description of the events, Jackson and the Bridgeman brothers were found guilty. Even though each was tried separately, it took the local courts less than four months after the murder to convict and sentence all three to death. In 1978, the state struck down the death penalty and all three had their sentences commuted to life in prison. It was over two decades before any of the men saw life outside of the prison walls. In 2001, Wiley was granted parole, and his brother Ronnie was released the following year. During a chance encounter, Wiley ran into Eddie Vernon at the City Mission, a shelter in Cleveland, but he could not
- 57. convince Vernon to speak out about his testimony. Wiley returned to prison in 2002 on a parole violation. Jackson remained behind bars. Ronnie (who later changed his name to Kwame Ajamu) worked with local reporters and the Ohio Innocence Commission to try and clear their names and get Wiley and Jackson released. In 2013, Vernon recanted his testimony and stated that he had been pressed by the police to lie about seeing Jackson and the Bridgeman brothers at the scene of the Franks murder. It took over a year for the court to hold a hearing on a petition for a new trial for Jackson. The judge vacated the convictions for all three men, and the prosecutor dismissed their charges. Ricky Jackson served 39 years, three months, and nine days in prison. His case stands as the longest incarceration sentence of an exonerated individual in the United States.1 54 Ricky Jackson, 57, of Cleveland, center, with his lawyers, looks skyward after being released from his life sentence for a 1975 murder. © AP Photo/Phil Long
- 58. This text is designed to provide an overview of our criminal justice system. In each chapter, you will learn about different features and functions of this system. You’ll also learn about different high-profile cases and how the criminal justice system has responded to these crimes, and examples of how criminal justice issues are handled in a global context will be provided. As a student of criminal justice, you’ll also learn about some of the different careers that you might pursue within this field. Finally, you’ll explore some of the cutting-edge issues and debates that face the criminal justice system today. In this chapter, you will learn about the criminal justice system and the different models that help describe its functions. You’ll also learn about the role of the media and how information about crime is shared with the public. The chapter concludes with two explorations of current controversies that debate the pros and cons of key issues in criminal justice. The first, by Kareem L. Jordan, questions whether justice is served by our criminal justice system. The second, by Amanda Burgess-Proctor, asks whether the media is a credible source on crime. 55 Crime: An act that is against the law and causes a punishment. 56
- 59. Brief History of the American Criminal Justice System Throughout this text, you’ll learn about the basic features of our criminal justice system, the origins of these features, and how past practices evolved into our current system. Politics played a significant role in the development of our criminal justice system as well as in justice itself during early colonial America. Justice during this period was broadly shaped by the traditions of the English common law system. There were few legal professionals among the early settlers, which gave government leaders wide latitude in shaping the system. This meant that religion and, in particular, puritanical values were strong influences on the development of our criminal codes. The fact that religion had such an influence on our system is rather ironic, given that many settlers came to America to escape the religious persecution under English law. During these early colonial times, there was no unified criminal code. As such, the definition of crime and the types of punishments that were used varied from colony to colony. For example, the law in Massachusetts was dominated by puritanical values, and the influence of religion was significant. Judges were highly ranked political and religious leaders in the community, and criminals were seen as individuals who had sinned. Indeed, there was very little distinction between criminal acts and sins. Trials were a form of religious ceremony, “an
- 60. occasion for repentance and reintegration: a ritual for reclaiming lost sheep and restoring them to the flock.”2 While the death penalty was a legally recognized punishment for offenses such as witchcraft, adultery, assault in anger, and poisoning (as well as premeditated murder and manslaughter),3 its use varied between the colonies. Massachusetts law required testimony by two or three witnesses in order to sentence someone to death. Without these witnesses, the individual would receive a lesser punishment. In Virginia, punishments and executions were carried out in public as a way both to warn would-be offenders and to reinforce the legitimacy of the criminal justice process and religious rule.4 In contrast, Pennsylvania was heavily influenced by the Quakers. William Penn was the first Quaker reformer, and he abolished the death penalty for all crimes except murder. He also believed that prisons should be used to incapacitate and reform individuals, not simply to punish them. His work became a primary influence in the development of the first American prisons. Following the Revolutionary War, the colonists continued to develop a new system of justice. The Founding Fathers had a strong belief in protecting the rights of those accused of a crime. 57
- 61. We see this influence throughout the Bill of Rights and its emphasis on due process. They were also concerned about creating a system that was transparent and regulated, which can be seen through the codification of our criminal laws. Finally, the Founding Fathers valued a legal system that balanced the needs of Federalism with states’ rights. As you can see, the core features of the new government system were closely linked to the development of the criminal justice system. Over time, these structures and practices evolved into the system we have today. And, as you will learn throughout this text, these practices continue to evolve into the twenty-first century. 58 Stages of the Criminal Justice System There are three major components of the criminal justice system: police, courts, and corrections. Each of these systems functions both in relationship to the others and as a separate entity. In terms of the criminal justice system, the police are tasked with investigating crime and apprehending offenders. The courts are responsible for determining whether an offender should be charged with a crime and managing the process to determine whether he or she should be held criminally responsible. The courts are also responsible for handing down a punishment in cases where the court determines
- 62. that the offender is guilty of a crime. It is then up to the corrections system to carry out the punishment as ordered by the court. Throughout this text, you’ll be exposed to all of these groups and learn about their key functions and processes. Police: Police are tasked with investigating crime and apprehending offenders. Courts: The courts are responsible for determining whether an offender should be charged with a crime and also manage the process to determine whether the offender should be held criminally responsible for the crime. Corrections: The corrections system carries out the punishment as ordered by the court. With so many different players, how do these components work together to form our criminal justice system? While the police, courts, and our correctional systems all have different roles and responsibilities, each group makes decisions that ultimately impact the other groups. Figure 1.1 highlights how a case moves through the different stages of the criminal justice system. Figure 1.1 The Criminal Justice Process 59 Source: Bureau of Justice Statistics, “Criminal Justice System
- 63. Flow Chart,” August 2, 2018, http://www.bjs.gov/content/largechart.cfm. The flowchart is divided into the following parts: Entry into the system Prosecution and pretrial services Adjudication Sentencing and sanctions Corrections The following stages happen after a crime is committed: Reported and observed crime, Investigation, and Arrest. From here for juveniles, it goes through the Police juvenile unit. For juveniles, the stages are Non-police referrals, Intake hearing, Informal processing diversion, Formal juvenile or youthful offender court processing, Adjudication, Disposition, Probation or other non-residential disposition or Residential placement. From Residential placement, there is Aftercare or Out of system. The next stages for adults are Charges filed, Initial appearance , Preliminary hearing, and Bail or detention hearing. For misdemeanors, following Preliminary hearing, the stages are Arraignment, Guilty plea/Trial, Acquitted or
- 64. Sentencing, Intermediate Sanctions, Probation, and Jail/Prison. For felonies, the stages are Arraignment, Guilty plea/Trial, Acquitted or Sentencing, Appeal, Probation, Revocation to Prison. The following stages are Habeas corpus or Pardon and clemency or Parole or capital punishment. At various stages, the cases can be moved to Released or Diverted or Acquitted or Charges dismissed. 60 http://www.bjs.gov/content/largechart.cfm Policing Police officers are generally the first point of contact in the system, and they learn about crime in a variety of ways. They might be called to the scene of a crime to take a statement from a victim or witness or to preserve and collect evidence in a case. If an offender is identified, the police may arrest the offender. In cases in which the perpetrator is unknown, the police investigate the crime in an attempt to identify a suspect. 61
- 65. The Courts Once this information is collected and processed, it is forwarded on to the courts. Here, a district attorney (also called a prosecutor) will review the information and determine what charges, if any, will be filed against an offender, also known as the defendant. In order to proceed with a case, the prosecutor must prove that she or he has probable cause that the accused committed the crime. If someone has been arrested and is currently in custody, courts will begin the proceedings on whether the offender is eligible for release or must stay in custody. The offender will also plead guilty or not guilty at an arraignment. If the offender enters a guilty plea, the judge will issue a sentence. If the offender pleads not guilty, then the case will proceed. The prosecutor may choose to take the case to trial or may decide to offer a plea bargain, which generally allows the offender to enter a guilty plea for a lesser charge and reduced sentence. While it is the responsibility of the district attorney to carry out the legal proceedings of the case, it is the job of the defense counsel to ensure that the rights of the accused are upheld and to defend the client throughout the criminal justice process. Defendant: Someone who has criminal charges filed against her or him. The judge is an impartial moderator of the court process. The judge resolves disputes between the prosecution and the defense. In some cases, the judge may also be responsible for
- 66. making a decision on whether the defendant is guilty or not guilty. In other cases, a jury determines the outcome. A jury is made up of a group of citizens who are charged with reviewing the evidence presented in court and then making a decision about the defendant’s guilt. In certain cases (like capital punishment cases), a jury is also responsible for determining the sentence for the guilty offender. However, in the majority of criminal cases, it is up to the judge to make this decision during a sentencing hearing. 62 Corrections If an offender is sentenced to a period of incarceration, he or she will serve that sentence in either a jail or prison. In other cases, an offender may be sentenced to community-based supervision, such as probation. This allows the offender to remain in the community rather than being sent to a facility.5 63 Discretion and Ethics in the Criminal Justice System The decision-making power of criminal justice agents is called discretion. Discretion refers to
- 67. the freedom to make decisions. It is perhaps the most powerful tool of the criminal justice system. Laws and policies can help guide the discretion of individuals in the criminal justice system, such as the police, prosecutors, and the courts. Discretion: The power of criminal justice officials to make decisions. Related to this issue is the question of ethics. Ethics in criminal justice refers to the understanding of what constitutes good or bad behavior. As agents of criminal justice exercise their discretion, they may face ethical challenges about which course of action is the most appropriate. Ethics can help guide the decision-making process. In some cases, ethical violations occur. Consider the case that you were introduced to at the beginning of this chapter. Eddie Vernon was pressured by the police to identify Ricky Jackson and his friends as the men who shot and killed Harold Franks. Was this ethical behavior on the part of the police? Throughout this text, you’ll learn about how the police, courts, and correctional systems are faced with ethical challenges. Ethics: The understanding of what constitutes good or bad behavior. Another example of the use of discretion by our criminal justice system can be observed by investigating how different types of offenders are treated by the system. For example, there is a large body of research highlighting the mistreatment of individuals at every stage of the
- 68. criminal justice system based on their race or gender. In other cases, you’ll note that certain groups receive preferential treatment. In some cases, we blame increases in crime on certain groups of individuals, such as immigrants or the mentally ill. Yet many of these populations require increased attention by the criminal justice system as a result of their unique needs for services and rehabilitation. You’ll be exposed to some of these findings throughout this text as well as within some of the debates on current controversies. 64 65 Careers in Criminal Justice So You Want to Work in Criminal Justice? There are many different opportunities to work in the criminal justice system. Throughout this text, you’ll learn about the different types of jobs that are available throughout the police, courts, and correctional agencies. In addition, there are also opportunities for employment with organizations and agencies that are affiliated with or linked to the criminal justice system, such as offender treatment programs and facilities, social services, and victim assistance programs.
- 69. As you think about the type of career that you might be interested in, consider what issues or topics you are most drawn to in criminal justice. What are the requirements to work in these fields? Do you need a bachelor’s degree or a graduate degree? Is there specialized training that is involved? Will being fluent in multiple languages help you in your career? You will also want to consider how your personality fits with your career choice. Are you someone who likes to work as part of a team, or do you prefer work that is more independent? Your answers to these questions will help you determine what your future career might look like. Many jobs within criminal justice agencies are government related. This means that postings for these positions can be quite competitive and involve several steps as par t of the application process. Jobs are typically advertised online with each agency. For example, if you are interested in working for a local police agency, you would want to seek out information about the hiring department for that specific city or county. Meanwhile, jobs with the federal government (such as the Department of Homeland Security) are often posted on the USAJobs website for all federal agencies. If you are thinking about a job in the federal government, make sure you consider different
- 70. types of agencies since many agencies employ similar types of positions. For example, maybe you’re set on being a special agent for the Federal Bureau of Investigation (FBI). These jobs are often very competitive, and only a few people are selected from a large pool of applicants. But there are several opportunities for these types of positions within other federal agencies, such as the U.S. Fish and Wildlife Service or the Office of Criminal Investigations for the U.S. Food and Drug Administration. Some criminal justice occupations require a number of different security screenings as part of the application process. Many jobs require that applicants undergo a background investigation, and applicants may also be required to complete a polygraph examination. Finally, applicants are often required to complete a physical fitness test and submit to a drug test. In order to get a sense of the types of career opportunities that are available, you may want to consider an internship with a criminal justice agency. Internships are a great way to get applied experience with an agency in the criminal justice field. Depending on the requirements of your educational program, an internship may be part of the curriculum, or you may be able to receive academic
- 71. credit for your work with an agency. You should talk with a faculty member or adviser from your program to determine whether this is an option for you. Depending on the placement, internships may involve paid or unpaid work. Alternatively, you might consider volunteering with an agency. Unlike an internship, which usually requires that a specific number of hours be completed over a specific period of time, volunteer opportunities can vary dramatically. While volunteer work may involve basic tasks (whereas internships can involve more professional tasks), volunteers serve an important role for organizations, and such opportunities can also provide a window into the different types of careers that are available within the organization. 66 67 The Wedding Cake Model of Justice While Figure 1.1 earlier in this chapter demonstrates how a case can move through the criminal justice system, not all cases are handled in the same way. Some cases may be handled
- 72. more informally because they are minor offenses. In other instances, some offenders may receive preferential treatment as a result of their status in society. The wedding cake model (Figure 1.2) helps us understand how cases can be treated differently by the criminal justice process. Consider that a wedding cake is generally made up of several different tiers, with the largest tier appearing at the bottom of the cake and tiers decreasing in size as one moves up to the top layer of the cake, which is the smallest. Wedding cake model: Model that demonstrates how cases are treated differently by the criminal justice process. 68 Figure 1.2 The Wedding Cake Model of Justice Source: © iStockphoto.com/azshooter. If we apply this analogy to the criminal justice system, the bottom layer of the cake represents the largest number of cases that are handled by the criminal justice system. Misdemeanors are the least serious types of crimes that are typically handled by the criminal justice system. However, these types of cases also make up the majority of those in the system. Given the nature of these offenses, the majority of these cases are not resolved by a trial, and the offenders in these cases are offered plea bargains with reduced sentences or other lower-level punishments. Generally speaking, the maximum punishment for
- 73. a misdemeanor crime is less than one year in jail. In comparison, punishment for a felony crime can range from more than one year in prison to life without the possibility of parole or, in some cases, the death penalty. The severity of the punishment is linked to the severity of the crime. Misdemeanors: Lower-level crimes that are punished by less than one year in jail. Punishments can also involve community-based sanctions, such as probation. Felony: Serious crime that can be punished by more than one year in prison. The second tier is smaller and composed of lower-level felony cases. These cases are typically nonviolent in nature, and the offenders in these cases are generally lower-level offenders. Like misdemeanors, many of these cases are handled with plea agreements and generally do not involve significant incarceration sentences. The next tier is filled with upper-level felony cases, which tend to be violent in nature and involve offenders with significant criminal histories. Unlike the cases in the lower levels, these cases are more likely to proceed to a trial if the offender pleads not guilty. If the offender is found guilty, she or he will likely face time in prison. Finally, the top layer of the cake represents the high-profile cases. These cases tend to be covered by the media and often involve the potential for significant penalties, such as life in
- 74. prison or the death penalty. However, other cases that are also found in this category involve well-known offenders, such as celebrities. For example, rapper Nelly was accused of raping a young woman on his tour bus in Washington State. Nelly protested the charges and argued that he was the victim of a false accusation. Prosecutors ultimately were unable to file charges 69 against him as the accuser decided not to cooperate with the authorities.6 Another example of a high-profile case was that of Anthony Weiner. The former New York congressman was sentenced to 21 months for engaging in a sexting conversation with a 15-year-old girl. Weiner pled guilty to the charge of transferring obscene material to a minor. His lawyer requested that Weiner be sentenced to probation so that he could continue to participate in treatment for his sex addiction. Although the prosecutor requested a sentence of 21 to 27 months, in many ways Weiner benefited from leniency from the court as this crime carries a maximum penalty of 10 years.7 Louis Tomlinson, a member of the boy band One Direction, was arrested in March 2017 for assaulting a paparazzo who was taking photos of the star and his girlfriend at the Los Angeles Airport. As a celebrity, which layer in the wedding
- 75. cake model would this case represent? If this was a case between two ordinary citizens, how would this case be viewed differently? Should cases involving celebrities be viewed differently by the criminal justice system? Why or why not? 70 © Press Association via AP Images 71 Models of Criminal Justice Within our criminal justice system, there are two competing ideologies: the crime control model and the due process model (Table 1.1).8 Table 1.1 72 The Crime Control Model The crime control model believes that the most important function of the criminal justice system is to suppress and control criminal behavior as a function of public order in society.
- 76. This philosophy is often aligned with a more conservative perspective. The crime control model focuses on a criminal justice system that processes criminals in an efficient, consistent manner. Justice under the crime control model resembles an assembly line. Under this model, the plea bargain is an essential tool as it allows the wheels of justice to continue to move. Trials are viewed as taking up excessive time in the system and can slow down the efficiency of the “factory.” Here, the focus is on swift and severe punishments for offenders. For example, supporters of a crime control model would argue that the identification and detention of enemy combatants following the 9/11 terror attacks was a good policy in fighting against future terrorist threats. Any risk of violating individual liberties was considered secondary to the need to protect and ensure the safety of the community. Crime control model: Model of criminal justice that advocates for the suppression and control of criminal behavior as a function of public order in society. 73 The Due Process Model In contrast, the due process model believes that the protection of individual rights and freedoms is of utmost importance. The due process model embodies more of a liberal
- 77. perspective compared with the crime control model. One could argue under the due process model that it is better for the guilty to go free than to risk incarcerating or executing the innocent. In contrast to his identification of the crime control model as an assembly line, Packer suggested that the due process model resembles an obstacle course, consisting of a variety of legal challenges that must be satisfied throughout the criminal justice process in order to hold someone accountable for a criminal action (and therefore punish that person for said action). The due process model emphasizes the formalized legal practices of the criminal justice process and requires that each stage of the criminal justice system represent a fair and equitable treatment of all cases and all offenders. Drawing from the 9/11 example used earlier, supporters of the due process model would argue that individuals identified as enemy combatants were denied their due process rights and were therefore detained by the U.S. government illegally following the 9/11 terror attacks. Under the due process model, it is not acceptable to engage in such practices just to suppress the risk for potential harm. While liberals would argue that the crime control model infringes on the rights of individuals, conservatives fear that the due process model ignores crime victims and gives criminals too much leeway to escape “justice.” Due process model: Model of criminal justice that believes the protection of individual rights and freedoms is the most important function of the system.
- 78. 74 Under the crime control model, criminal justice is seen as an assembly line where efficiency and productivity are valued. The due process model views criminal justice as an obstacle course made up of legal challenges to protect individual rights. Which approach makes more sense to you? 75 © iStock.com/vm; © iStock.com/CAEccles 76 The Influence of the Media on the Criminal Justice System The majority of Americans have limited direct experience with the criminal justice system. As a result, what most people know about crime comes not from personal interactions but perhaps from the experiences of others known to them (peers and family members) or within the general community. The mass media also has significant power in shaping individuals’ perceptions of crime and
- 79. justice.9 The scope of the media is extensive since it includes “mechanisms for public presentations of entertainment, propaganda, and nonfiction information.”10 More important than the levels of media consumption is how the information is interpreted.11 For the majority of Americans, the images generated by the media regarding crime and criminal justice are often internalized as “facts” about the world we live in.12 “The public’s perception of victims, criminals, deviants, and law enforcement officials is largely determined by their portrayal in the mass media.”13 However, the content and prevalence of stories relating to crime presents a distorted view of the realities of the criminal justice system. The popular expression “If it bleeds, it leads” represents the prevalent position of crime stories for media outlets. While stories about violent crime make up almost one- third of all news time, that does not reflect the reality of crime in society.14 These exaggerations have a direct relationship to public understanding of crime. Adding to this equation are findings that individuals tend to retain the content of these stories, affirming any negative notions regarding crime, criminals, and criminal justice.15
- 80. “The public’s perception of victims, criminals, deviants, and law enforcement officials is largely determined by their portrayal in the mass media.” 77 Around the World Crime, Law, and Justice From a Global Perspective The issues of crime, law, and justice vary dramatically around the world. While many other countries have similar functions, practices, and policies compared with the American criminal justice system, there are many countries whose perceptions of crime and punishment are very different. For example, in countries such as Pakistan and Turkey, honor killings have been carried out in cases of adultery—or even perceived infidelity. Harsh punishment can even be handed down for acts that many Western cultures would consider to be normal, everyday occurrences, such as requesting a love song on the radio or strolling through the park. However, not only are such acts rarely reported, even when they are brought to the attention of legal authorities; the perpetrators are rarely identified, and, as a result, such crimes often go unpunished.a Other crimes are often punished more severely than they would be in the American legal system. In March
- 81. 2016, Otto Frederick Warmbier, a student from the University of Virginia, was sentenced to 15 years of hard labor in North Korea after he was arrested for committing a hostile act against the state. His crime? Warmbier confessed to tearing down a poster of a political slogan at the hotel where he was staying as part of a student tour group.b Warmbier spent 17 months in North Korea before he was released. However, his return home was anything but a joyous occasion as he was on his deathbed when he arrived and had suffered from a number of abuses. He died within a week of returning to the United States.c Throughout this text, you’ll learn about various examples of crime, law, and justice from countries around the world. As you read about these examples, consider how they relate to the American criminal justice system. Are there features that you can identify as similar to the practices that we use here? How are things different? Are there ways in which these systems could benefit from our experiences here in the United States? Or are there features in other countries that we should consider adopting as part of our system? 78
- 82. Critical Thinking Questions 1. How are issues of culture reflected in the development of crime, law, and justice in a global society? 2. Research a case in which an American was punished for a crime in a foreign country. How was this person treated in the foreign legal system? Would he or she be treated in a similar fashion if the crime had happened in the United States? 79 The CSI Effect In addition to the portrayal of crime in the news, stories of crime, criminals, and criminal justice have been a major staple of television entertainment programming. These images, too, present a distorted view of the reality of crime as they generally present crimes as graphic, random, and violent incidents. Entertai nment television about crime has covered a variety of topics, including policing, courtroom portrayals, forensic investigations, and corrections. For example, the different installments of the Law & Order series cover all aspects of the criminal justice system, from offenders to police and investigators to the court process and its actors.
- 83. These crime dramas have such an impact on individuals that criminologists have begun to study what is known as the CSI effect, which references the popular crime drama CSI: Crime Scene Investigation. In this program, crimes are solved in a single episode using sophisticated techniques of crime analysis that aren’t readily available or utilized in a typical criminal case. The CSI effect can have a significant impact on real issues of criminal justice. For example, juries may believe that DNA evidence is readily available and required in every case in order to secure a conviction. 80 Reality TV Crime is also present in reality TV programming. From COPS to Forensic Files, viewers are afforded the opportunity to see the criminal justice system in action. In addition, networks such as A&E, the Discovery Channel, Investigation Discovery, and the History Channel have made documentaries about crime and justice a major component of their programming. Even airing real-life criminal justice cases on networks such as Court TV (now truTV) can have an effect on the public. Often it is the atypical, high- profile cases, such as the trials of O. J. Simpson, Casey Anthony, and George Zimmerman, that garner the greatest attention. This fascination with crimes of violence has created a demand for multiple avenues of
- 84. information about issues of crime and justice. Live streaming of these proceedings on cable television and online, as well as updates via social media, provides an all-access pass to the courtroom action. Such attention also creates “wanna-be” experts out of ordinary citizens. As in many other high-profile cases, these themes were displayed in the case of Jodi Arias (see Spotlight feature). 81 The Media and Perception of Crime Rates While there is documentation that the saturation of crime stories on the news impacts viewers’ opinions of crime, how does crime as “entertainment” influence fears about crime and victimization? Crimes of murder and violence in general are overemphasized in television entertainment.16 For example, the victimization of women is often portrayed by “movie of the week” outlets such as Lifetime TV that showcase story lines of women being sexually assaulted, stalked, or otherwise injured by a stranger. Unfortunately, these popular-culture references paint a false picture of the realities of crime since most women are not maltreated by strangers (as portrayed in these story lines) but are victimized by people known to them.17 While the enjoyment of reality-based crime programming is
- 85. related to punitive attitudes on crime, such an effect is not found for viewers of fictional crime dramas.18 However, viewers of nonfiction television shows (such as The First 48) can experience increased fear of crime.19 Dramatic and reality-based television programming about crime and criminal justice is designed to entertain the public, not educate. Such programming can lead to an inaccurate understanding of the criminal justice system. What are some inaccuracies you can spot in your favorite crime drama? © Neil Jacobs/CBS Photo Archive via Getty Images 82 Influencing Public Policy While the public’s concern about crime may be very real, it can also be inflamed by inaccurate data on crime rates or a misunderstanding about the community supervision of offenders and recidivism rates. Indeed, a fear of crime, coupled with the public’s perception about rising crime rates, contributes to a lack of faith by citizens in the efficacy of the criminal justice system.20 Watching television news programs also contributes to this because the increased
- 86. viewing of local news is associated with punitive beliefs in the punishment of offenders.21 Together, these factors can influence a rise in the public dialogue about crime, which can lead to changes in criminal justice policies. Agents of criminal justice can respond to a community’s fear of crime by increasing police patrols while district attorneys pursue tough- on-crime stances in their prosecution of criminal cases. Politicians respond to community concerns about violent crime by creating and implementing tough-on-crime legislation, such as habitual sentencing laws like “three strikes,” and targeting perceived crimes of danger, as the so-called war on drugs attempts to do. Unfortunately, “public policy is influenced more by media misinformation and sensationalized high profile cases than by careful or thoughtful analysis.”22 83 Spotlight The State v. Jodi Arias Violence. Murder. Lies. And a woman behind it all. The case of Jodi Arias had everything it needed to be a television movie. Yet this was no fictionalized story line. Over the course of her four-month trial, every moment was broadcast on cable television. In addition, there was no
- 87. shortage of “legal experts” waiting to give their opinion on the events of the day, the evidence presented, or the demeanor of the defendant. Arias was charged and ultimately convicted for the murder of her boyfriend, Travis Alexander. This was no simple murder but rather an act of extreme aggression as Alexander was found in his shower, where he had been stabbed 27 times, had his throat slit, and been shot in the head. But it wasn’t just the excessive nature of the crime that drew the attention of the media. Arias was the perfect candidate to fuel the media fire. The frenzy began when Arias changed her story about the crime several times. At first, she denied any involvement in the murder. Later, she alleged that she and Alexander had been attacked by two masked intruders who murdered Alexander but allowed her to live. During the trial, her story was amended once again to one of self-defense. Arias asserted that Alexander had frequently abused her throughout their relationship and that she killed him during one of these attacks. However, she claimed that she did not remember the specific events of his death and that she had blocked out these events due to her emotional trauma.a One of the particularly sensationalized parts of the trial
- 88. involved Arias’s own testimony, which lasted 18 days. Under Arizona law, members of the jury are allowed to submit questions to the accused should she or he choose to take the stand to offer a defense. “Some of the questions seemed to serve no other purpose but to mock Arias and illustrate the jurors’ annoyance with her claims.”b While Arias was convicted of first-degree murder, the same jurors were unable to reach an agreement on the sentence, resulting in a hung jury. During a second sentencing hearing, the jury was unable to reach a unanimous verdict on a death sentence. As a result, Arias was sentenced to life without the possibility of parole.c 84 Critical Thinking Questions 1. Why do you think this case was so sensationalized in the media? 2. What impact might the media representation of this case have on other cases before the courts? The use of the public’s fear of crime as momentum for generating policies to control crime can be a dangerous incentive. Chapter 6 of this text highlights the development of criminal justice policies. Indeed, many of our criminal justice policies have been named after crime
- 89. victims or high-profile events that helped inspire or influence the development and passage of such legislation. Given that much of the public’s fear of crime is not generated from personal experiences, it is important to remain aware of the role of the media in generating fear (and therefore crime control policies; see Figure 1.3). “Even if information coming through the media causes fear, first amendment protections for freedom of the press have to be respected and many follow the credo that the public has a right to know regardless of the outcome.”23 Figure 1.3 Public Perception of Crime Rate at Odds With Reality Source: Pew Research Center, “Perceptions of Crime Rate at Odds With Reality,” January 31, 2018, http://www.pewresearch.org/fact- tank/2016/11/16/voters- perceptions-of-crime-continue-to-conflict-with-reality/ft_16– 11-16_crime_trend-2. 85 http://www.pewresearch.org/fact-tank/2016/11/16/voters- perceptions-of-crime-continue-to-conflict-with- reality/ft_16%E2%80%9311-16_crime_trend-2 The first line graph shows the percentage of people saying there is more crime in the U.S. than a year ago. Percentage is plotted on the vertical axis on a scale of 0 to 100%, in increments of 20%. Years from 1993 to 2015
- 90. are plotted on the horizontal axis. A summary of data from every five years are shown in the table below. People’s perception improved between 1993 and 2001, following which there was a gradual increase until 2005 after which there is a steady rate between 60 and 80%. All values are approximate. The second line graph shows Violent crimes per 1,000 persons, ages 12 and older. Percentage is plotted on the vertical axis on a scale of 0 to 100%, in increments of 20%. Years from 1993 to 2015 are plotted on the horizontal axis. A summary of data from every five years are shown in the table below. The percentage of violent crimes decreased steadily from 80% in 1993 to about 18% in 2015. All values are approximate. 86 Conclusion The criminal justice system contains powerful tools to combat crimes, such as laws, discretion, and ethics. Each of these tools is used at different stages to move cases through the system. However, there are often competing interests that impact this process and how agents of the system respond to cases. Throughout this text, you’ll learn about the functions
- 91. of each stage of the system as well as the challenges that arise. As you read the Current Controversy debates at the end of this chapter, consider how the tools used by the criminal justice system both help and harm society. How do we balance the diverse needs of society with our criminal justice system? With competing interests throughout society, how do we know if justice is served? 87 Current Controversy 1.1 Is Justice Served by Our Criminal Justice System? —Kareem L. Jordan— Where do you stand? Cast Your Vote! 88 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-1/current-controversy-videos Introduction There is not an easy way to define justice. There is some debate on whether “justice” means a fair process, regardless of the outcome, or a fair outcome, regardless of the process. In other words, is justice based on the means or the ends? Historically, the American criminal justice system has defined justice in terms of process, with the hope that the
- 92. correct outcome will be achieved. In fact, some would suggest that the criminal justice system’s process is thought to be so fair that it is better to let many of those criminally guilty go free than to punish one innocent person. Stated differently, the criminal justice process should be fair and set such a high threshold for conviction that the outcomes should be presumed “just” because the process was “just.” If we look at this issue through the lens of policing, we would argue that one of the primary responsibilities of the police is to enforce the laws established by lawmakers.24 Police officers have the legal authority to deprive people of their physical freedom (e.g., temporarily detain and/or arrest) if appropriate circumstances exist. They also have the legal authority to use force (even deadly force) in certain situations. How do we determine whether justice is served in these cases? Is justice about whether the law is followed? What if the law itself or its application is viewed as unjust? 89 PRO: Justice Is Served by Our Criminal Justice System Police represent the first stage in serving justice. Crimes ar e reported to the police, who, in turn, respond to identify and apprehend a suspect. A just policing system means that the
- 93. police exercise their responsibilities based on objective factors, without regard to discriminatory practices.25 For example, police officers should only arrest when they have, at a minimum, probable cause for believing that a crime was committed. This ensures that the police have a minimum legal standard to meet in order to make an arrest. Such a standard ensures that all cases are handled in a similar fashion, which promotes a just and fair system. The court plays an integral role in the criminal justice system. After an arrest takes place, the court is the venue where certain important decisions and actions occur: bail decision, the trial, and sentencing, if convicted. During the court process, the prosecutors and judges are presumed to want justice, though again, it is not always clear that every key actor in the system agrees on the definition.26 Judges are actors in the court process who interpret the law in such a way to provide impartiality in outcomes. The decisions of judges are to be based on the law and legally relevant factors (e.g., offense charged, prior record of defendant, conviction offense, etc.). In order to minimize potential biases in court, judges are typically required to use written statutory guidelines to help guide in their decision making. These sentencing guidelines ensure that each case of a similar nature is decided in a similar fashion. Such a process is a key
- 94. characteristic of a just system. The American correctional system is considered the last phase of the criminal justice system.27 There is debate on whether the purpose of the correctional system is to rehabilitate or punish. Most of those under correctional supervision will return to the community at some point.28 In some cases, the correctional system helps prepare offenders for (re)integration into the community (i.e., rehabilitation). In other cases, the sentence is designed to punish the offender. The correctional system is unique because it must be responsive to the orders of the criminal court. If defendants are convicted in the court system and sentenced to confinement, the correctional system must confine those offenders in either a local or state correctional facility. Or if convicted offenders are sentenced to community supervision, the correctional system must supervise those offenders in the community to ensure they are adhering to the conditions set by the court. Depending on how you define the role of our correctional system, both options can be considered ways in which justice is served. Under the crime control model, justice is served by cases moving through the system in a consistent, efficient, and fair
- 95. manner. The majority of cases in our system are managed in this fashion. As a result, we can say that justice is served by our criminal justice system. 90 CON: Justice Is Not Served by Our Criminal Justice System We have examples throughout each stage of the criminal justice system wherein justice is not served. Consider how injustices occur in policing. While research generally indicates that those objective factors influence the decision to arrest and use force, empirical studies also find that extralegal factors influence these very important acts by police officers.29 For instance, Blacks are more likely to be arrested, be given a speeding ticket rather than a warning,30 and be victims of police use of force.31 In cases of discriminatory applications of the law, would we suggest that the quest for justice has failed? We also have examples of injustices occurring within our court system. In practice, legally relevant factors are the biggest predictors of court outcomes. Most research does find that the seriousness of the offense and prior record are the factors that largely influence judicial decision making. Other factors, though, are also significant in this process. Empirical research generally
- 96. indicates that race, gender, and age influence particular outcomes.32 Blacks are less likely to be released on bail33 and are sentenced more harshly than Whites.34 Hispanics are also shown to have some harsher sanctions within the court process.35 While males are generally sentenced more harshly than women (due to men committing more serious offenses), research does indicate that females are sometimes given more punitive sentences than males, especially when they commit offenses that are generally viewed as counter to the “traditional” and historical roles of females.36 Stated differently, females are often treated more leniently than males in court outcomes because of the patriarchal view of females being weak and needing protection. However, when females step outside of those “traditional behaviors,” they are given harsher outcomes than males as a form of punishment for not being consistent with the established gender roles. In addition, age has been shown to influence court decisions. The impact of age on court decisions varies, though, based on the age of the offenders. Although race, gender, and age have independent effects on court decisions, the combination of the three has been shown to produce a very substantial impact. Young Black males are often treated more harshly than most groups, which can be observed when examining court outcomes.37 One
- 97. rationale provided is that this group is perceived to be more dangerous and threatening.38 Although crime statistics debunk the myth of the “dangerous” Black male, it still appears to enter the decision-making process within the criminal court process. In these cases, does it appear that justice is always a fair and equitable process? As a result of these processes, the correctional population can reflect many of the problems that exist within the criminal justice system. Many jails and prisons are overcrowded, which results in more uncomfortable and tighter living conditions, decreased services and programming, and increased costs to address the needs (food, health care, etc.) of those confined.39 Some have challenged whether these conditions are a violation of the Eighth Amendment protection against cruel and unusual punishment. In addition, the racial/ethnic makeup of those confined is indicative of a broken criminal justice system, given the disproportionately higher numbers of minority inmates who fill our nation’s correctional institutions.40 91 Summary
- 98. The ideals of the criminal justice system allow for justice to be served. After all, the law provides for certain due process rights for every individual who is accused of a crime. But does the reality differ from the ideal? Certainly, we can say that the criminal justice system is not overrun with systematic discrimination, which would occur across all stages of the criminal justice system, in every jurisdiction, and at all times. At the same time, it is reasonable to conclude that pure justice is an elusive concept and that discrimination does occur.41 So where does that leave us? Do we have the best system that is possible? Or are there opportunities for reform at a fundamental level? 92 Discussion Questions 1. Do you believe that the criminal justice system is fair and just? Or are some groups more likely than others to have a negative experience? 2. What does it mean for justice to be served? How might this change depending on the perspective of the community? The criminal justice system? The victim? 93
- 99. Current Controversy 1.2 Is the Media a Credible Source on Crime? —Amanda Burgess-Proctor— Where do you stand? Cast Your Vote! 94 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-1/current-controversy-videos Introduction The American public has long been fascinated by crime. Consider the case of Harry K. Thaw. The wealthy heir to a coal and railroad fortune, Thaw fatally shot renowned architect Stanford White during a theater performance on the rooftop of New York’s Madison Square Garden, reportedly to avenge White’s prior relationship with model and entertainer Evelyn Nesbit, whom Thaw had since married. The “trial of the century,” as it came to be known, dominated newspaper headlines. Media coverage was so overwhelming that the jury in Thaw’s criminal trial was sequestered for the duration of the proceedings—the first use of such sequestration in U.S. history.42 The murder that so fully captured the nation’s attention occurred on June 25, 1906.
- 100. Today, more than a century later, there are dozens of outlets for crime-related media content both fictional (such as the prolific Law & Order franchise) and nonfictional (including reality shows like The First 48). There is even a cable television channel, Investigation Discovery, dedicated entirely to 24-hour true crime content. Just recently, SiriusXM satellite radio announced expansion of its programming via the Law & Crime network, which promises to “broadcast live high-profile trials and riveting crime cases in a new, exclusive programming lineup.”43 Perhaps rivaled only by cooking and home improvement, criminal justice is among a handful of topics that can sustain this level of media saturation. Some observers might argue that such media exposure is welcome as it offers the general public knowledge about the criminal justice system and allows lay citizens to understand their criminal legal rights. Other observers may fret that this media frenzy perpetuates inaccurate, exaggerated, or otherwise unrepresentative views of crime and the criminal justice system. Either way, media amplification of crime events—especially those involving serious, violent victimization—can create the false impression that such crimes occur more frequently than they actually do. Another dimension to consider is that media content has become
- 101. increasingly decentralized. Prior generations received their news from a limited number of sources: a few main national newspapers, three national broadcast networks (ABC, CBS, and NBC), and local newspapers and television newscasts. Today, given an Internet connection and a smartphone, users can access news outlets from nearly anywhere on Earth. The decentralization of news media and the resulting proliferation of content adds complexity to the current crime media landscape. As a result, identifying reputable sources of crime and justice news can be increasingly challenging. Hence the question: “Are the media a good source of information about crime?” Before this question can be answered, it is important to clarify what the term the media actually means. Generally speaking, there are two types of media: news media and entertainment media. However, classification of content as either “news” or “entertainment” is complicated by popular multi-episode, true-crime documentary programming like the 2015 Netflix series Making a Murderer44 and the public radio podcast Serial.45 Another w ay to classify media is by the method of transmission. Traditional sources of print media (newspapers and magazines) and broadcast media (radio and television) have been
- 102. joined by websites, blogs, YouTube channels, social media sites, and other electronic content, dramatically expanding the pool of available information. In this context, the precise definition of the media may be difficult to identify. 95 96 PRO: The Media Is a Credible Source on Crime Examples of excellent reporting on crime and justice stories can be found in every medium, and high-quality investigative journalism has uncovered some of the most newsworthy crime stories in recent years. One reputable source of crime information is the Marshall Project,46 “a nonpartisan, nonprofit news organization that seeks to create and sustain a sense of national urgency about the U.S. criminal justice system.” Named after Thurgood Marshall, the first African American United States Supreme Court justice, the Marshall Project provides investigative journalism on a host of crime and justice topics, and in 2016 was awarded a Pulitzer Prize for its reporting.47 Another reputable source of crime information is the Crime Report,48 “the nation’s only comprehensive news service
- 103. covering the diverse challenges and issues of 21st century criminal justice in the U.S. and abroad.” Featuring pieces of original investigative journalism, a daily digest of top crime and justice headlines, and commentary from criminal justice experts, the Crime Report is a worthwhile resource for crime news. The Crime & Justice Research Alliance49 (CJRA) likewise deserves mention. A joint effort of two leading criminological organizations, the American Society of Criminology and the Academy of Criminal Justice Sciences, the CJRA “is a centralized resource of authoritative experts and scholarly studies created to provide policymakers, practitioners and the public direct access to relevant research on crime and criminal justice issues.” Among other valuable resources, the CJRA provides a monthly newsletter that is available free to download. Finally, podcasts can be a useful tool for members of the public, including students, to learn about crime and justice issues in an accessible manner. A good example is Ear Hustle,50 which is recorded and produced entirely within California’s San Quentin prison and which brings listeners a firsthand account of life “on the inside.” For more academic content, the National Institute of Justice has a podcast51 focused on informing listeners about the latest
- 104. trends in criminal justice research. These examples make clear that there are many ways in which the media, broadly defined, “get it right” when it comes to crime information. 97 CON: The Media Is Not a Credible Source on Crime However, it is also possible to identify examples of times the media “get it wrong” when it comes to crime information. Hoaxes, rumors, and urban legends are by no means a new phenomenon, and likely have existed for as long as humans have been communicating with one another. Eighteenth-century essayist Jonathan Swift wryly observed that “falsehood flies, and the truth comes limping after it.”52 Unfortunately, the Internet and social media have made it even easier for false or misleading crime information to “fly.” Not all misinformation about crime is the result of a purposeful attempt to mislead. In fact, news stories about crime— like other areas of significant interest to the general public —are ripe for misrepresentation in part because the public appetite for these stories is insatiable. The more voraciously the public consumes crime-related headlines, the more
- 105. incentive there is for media outlets to quickly (and, sometimes, carelessly) provide fodder to consumers. Unfortunately, in the United States especially, distorted depictions of crime often are raced and classed and so perpetuate stereotypes of criminality among people of color, poor people, and members of other marginalized groups. As evidenced by the 1980s uproar over “crack babies”53 and the 1990s obsession with juvenile “superpredators,”54 the U.S. news media bears the scars of the moral panics55 it once helped perpetuate. Thus, it is essential for media consumers to exercise caution when consuming crime and justice information, particularly if the news source is not reputable and/or if the assertions presented are not supported by evidence. 98 Summary So, how can savvy consumers better navigate this ever- expanding crime media landscape? First, it is a good idea to diversify your media diet. As with the food you consume, it is best to rely mostly on a range of news sources that offer intellectual diversity and that “nourish” your brain. To do this, it is helpful to distinguish between information (like
- 106. empty calories, this is the mere existence of consumable content) and knowledge (this is content that offers analysis, context, or otherwise fortifies your understanding of a subject). Prudent media consumers also should be skeptical of strident knowledge claims, whatever the source, and to seek out information that is supported by research evidence. For example, the National Institute of Justice maintains a website called Crime Solution s.gov56 that makes it easy to identify which crime and justice policies empirical evaluation research has determined to be effective. Taking heed of Swift’s warning and bearing in mind the damaging impact of distorted crime information, we each have a responsibility to help ensure that the media “get it right” when it comes to informati on about crime. 99
- 107. Discussion Questions 1. Have you ever had a friend or relative share a crime-related news item that you realized was inaccurate or misleading? If so, what did you do? What are strategies for helping to correct public misperceptions about crime? 2. Do you think fictional television programs like Law & Order, NCIS, Criminal Minds, and others help or hurt the public’s understanding of the criminal justice system? What about reality-based programming like Making a Murderer or The First 48? 3. Think of an example of a recent high-profile news story related to crime. What was your initial understanding of this story based on the immediate headlines? Did your perception of the story change at all as more information became available? How so?
- 108. 100 Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Corrections 5 Courts 4 Crime 3 Crime control model 10 Defendant 5 Discretion 6 Due process model 10 Ethics 6 Felony 9 Misdemeanors 9 Police 4 Wedding cake model 8 101
- 109. http://edge.sagepub.com/mallicoatccj2e Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. What are the three main components of the criminal justice system? 2. How might discretion be used in a positive manner? A negative manner? 3. How does the wedding cake model illustrate how cases are processed by the criminal justice system? 4. What are the differences between the crime control model and the due process model? 5. How do the media influence the public’s fear of crime? 6. How do the media influence public policy related to criminal justice? 102
- 110. http://edge.sagepub.com/mallicoatccj2e Learning Activity 1. Pick a television show about criminal justice. As you watch this show, highlight areas that you think might lead the general public to make incorrect assumptions about the criminal justice system. 103 Suggested Websites U.S. Department of Justice: https://www.justice.gov National Institute of Justice: http://www.nij.gov Crime, Media, Culture: http://cmc.sagepub.com 104 https://www.justice.gov
- 111. http://www.nij.gov http://cmc.sagepub.com Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 1.1 Craig Hemmens: Professor Criminal Justice in Practice 1.1 Overview of the Criminal Justice System
- 112. SAGE News Clip 1.1 Sessions: Help on the Way to Fight Violent Crime 105 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e 106 2 Concepts of Law and Justice ytwong/Getty Images 107 Learning Objectives Compare how criminal law differs from civil law Identify the historical influences of modern American criminal
- 113. law Describe the four different sources of law Discuss the burden of proof required in a criminal case Define the four components of a criminal act Explain the different types of criminal defenses On July 20, 2012, during a midnight showing of the film The Dark Knight Rises, James Holmes entered a Century 16 movie theater in Aurora, Colorado. Dressed in tactical clothing, Holmes set off tear gas grenades and opened fire into the theater audience. At the end of his rampage, 12 people were dead and 70 others were injured. He was apprehended outside of the movie theater.1 In addition to filing 24 counts of first-degree murder, 116 counts of attempted first-degree murder, and one count of illegal possession of explosives,2 the district attorney stated
- 114. that the state would seek the death penalty in the case. At the time, Colorado had only three people residing on death row, and the last execution had been carried out in 1997.3 Holmes’s attorneys indicated that they would be pursuing an insanity defense. The state sent out juror summonses to 9,000 candidates, and 12 jurors and 12 alternates were selected. The trial began on April 27, 2015.4 After more than 11 weeks of testimony, the trial concluded and jury deliberations began. It took 12 hours for the jury to find Holmes guilty of all crimes. Although the court-appointed forensic scientist testified that Holmes suffered (and continues to suffer) from significant mental illness, jurors believed Holmes understood that his actions were wrong at the time of the crime.5 This finding made it such that an insanity defense was unsuccessful, and the jury found Holmes guilty. 108
- 115. James Holmes appears in a Colorado courtroom with his attorney shortly after his arrest. Holmes was convicted of a mass shooting in an Aurora, Colorado, theater during a screening of The Dark Knight Rises. Why was his insanity defense unsuccessful? Pool/Getty Images News/Getty Images The same jury was then faced with the task of determining whether James Holmes should be sentenced to death for his crimes or if he should be sentenced to life without the possibility of parole. They heard stories about Holmes’s childhood and evidence about his history of delusions and mental illness. They heard stories about the victims and the lives that were lost or irrevocably damaged as a result of Holmes’s actions.6 In the end, the jury could not reach a unanimous verdict on the death penalty. Holmes received 12
- 116. sentences of life without the possibility of parole—one for each victim—and an additional 3,318 years for the nonlethal crimes.7 In this chapter, you will learn about the development of law and how it relates to the criminal justice system. The chapter begins with a discussion on the different sources of law in the United States. The chapter then focuses on the different types of law and their relationship to the criminal justice system. You’ll also learn about the different legal defenses that are used in the criminal courts to explain or justify criminal behaviors. The chapter concludes with two Current Controversy debates. The first, by Clayton Mosher and Scott Akins, looks at the debate over legalizing marijuana. The second, by Alissa Ackerman, questions whether we should identify sexual harassment as a form of sexual assault. 109
- 117. 110 Types of Law 111 Civil Cases In the United States, we have two separate court systems to respond to our two primary areas of law: civil law and criminal law. Civil law governs disputes between individuals or private parties (which can include corporations) and generally involves violations of private acts, such as contracts, property disputes, and family law. In these cases, the person who initiates the case is referred to as the plaintiff, and the person who is responding to the case is the defendant. The burden to prove the case is placed on the plaintiff. Under civil law, the plaintiff must provide evidence to prove her or his case by the
- 118. preponderance of the evidence. This means that if the evidence presented is more likely to prove that the law was violated, then the plaintiff wins the case. Under civil law, the form of punishment is financial. Civil law: Law that governs disputes between individuals or private parties and generally involves the violation of private acts. Plaintiff: A person who brings a suit in a civil case. Preponderance of the evidence: The burden of proof in a civil case. Refers to when the totality of the evidence exceeds a 50% likelihood that the law was violated. One of the most famous civil court cases was Liebeck v. McDonald’s Restaurants (1994), otherwise referred to as the McDonald’s hot coffee case. Ms. Liebeck ordered a cup of coffee from the drive-thru at a local McDonald’s. While sitting in the passenger’s seat, she placed the cup between her knees to steady the coffee while she
- 119. removed the lid to add cream to the beverage. She subsequently spilled the contents of the cup over her groin and legs and suffered third-degree burns as a result of the high temperature of the beverage. Her burns were so extensive that she required several skin grafts and was partially disabled for two years as a result of her injuries. Ms. Liebeck sought assistance from McDonald’s to cover her medical expenses. Despite several requests for a settlement, McDonald’s refused. She filed a suit with the civil court of New Mexico (where she resided) , and her lawyers alleged that by serving the coffee at such a high temperature, McDonald’s was guilty of gross negligence. The jury in the case agreed with Ms. Liebeck and awarded her $160,000 in damages for her pain and suffering. The jury also awarded punitive damages in the case of $2.7 million.8 112
- 120. 113 Criminal Cases In contrast to civil law, criminal law cases are brought by the government against a defendant for violating a specific law. In a criminal law case, the burden of proof is beyond a reasonable doubt. Figure 2.1 demonstrates how this burden of proof is different from other forms of proof that are used throughout our justice system. This means that in order to convict a defendant of a crime, the court must find that there is little doubt according to the reasonable or typical individual that the defendant committed the crime. Depending on the type of crime that the defendant is convicted of, he or she may receive probation, spend time in jail or prison, or be executed as punishment for the crime. You’ll learn more about the different types of punishment in Chapter 10. Beyond a reasonable doubt: In order to convict a defendant of a
- 121. crime, the court must find that there is little doubt according to the reasonable person standard. Figure 2.1 Burden of Proof The proofs, from the bottom of the pyramid, are: Reasonable suspicion: An officer needs specific articulable facts for a stop. Probable cause: Facts and circumstances that would lead an ordinary person to believe a crime may have been committed. Preponderance of evidence: Greater weight of the evidence. Accusations are more likely than not to be true. This is the standard in civil cases. Clear and convincing evidence: Requires a rm belief and conviction of the truth. Beyond a reasonable doubt: The highest burden of proof;
- 122. requires the elimination of every reasonable 114 doubt. Federal Criminal Laws Federal criminal laws are enacted by the legislative branch of the federal government. Federal law related to criminal justice includes the regulation of firearms, drugs, money laundering, fraud, and a variety of other criminal activities. Federal law also governs activities within federal government buildings, in national parks, and on tribal land. In addition, federal law violations can be triggered when crimes occur across state lines. State Criminal Laws States also have the power to make laws prohibiting behaviors under the Tenth Amendment. Unlike federal criminal law, which applies to all 50 states as
- 123. well as the District of Columbia and U.S. territories, state law is limited to the specific geographic jurisdiction of that state. While criminal laws may have similar characteristics across the nation, there are also differences in the types of behaviors that are defined as criminal from state to state, as well as in the types of punishments that violators are subjected to. For example, several states, such as Washington, Colorado, and California, have legalized the recreational use of marijuana, but the majority of states continue to criminalize the behavior. Alabama’s criminal law defines the personal possession of marijuana as a misdemeanor, but subsequent possessions can be charged as felonies. Meanwhile, several other states have decriminalized simple possession or limited its enforcement to a civil violation. Even in states that have decriminalized marijuana possession, several have created specific laws about the amount that one is permitted to possess. While Mississippi state law allows for someone to possess up to 30 grams of marijuana in a first offense, Maryland’s law on the decriminalization of marijuana only allows
- 124. for the possession of 10 grams or less. You’ll learn more about this debate in Current Controversy 2.1 at the end of this chapter. Marijuana: Drug derived from the cannabis plant. Municipal Criminal Laws A municipality can have its own body of law. In terms of jurisdiction, these laws are generally the most limited as they are only applied to a specific city or county. Municipal criminal law 115 is limited to cases involving infractions and misdemeanors. An infraction is a violation that is punishable by a fine but does not carry a potential jail sentence. Unlike misdemeanors and felonies, cases involving infractions do not involve jury trials, nor is the accused provided an attorney if she or he cannot afford one (though defendants are permitted to hire an attorney if
- 125. they wish). The most common type of infraction is a traffic violation, but infractions can also include jaywalking and disturbing the peace. Infractions are also unique in that they follow the burden of proof similar to a civil case—preponderance of the evidence. Cases that involve misdemeanor crimes at the municipal level are handled just like misdemeanors under state and federal law, and these cases are managed by the same due process protections. The Twelve Tables represented the codified customs of early Roman law. What influences of Roman law and English common law can we see in the American legal system today? Public domain 116 117
- 126. Sources of Law If we look throughout history, we see several references to law and legal systems. One of the earliest examples of law can be found in the code of Hammurabi, which dates back to 1754 BCE and contained references to 282 different laws. It is here that we find the first reference of lex talionis, which argued that the punishment should fit the nature of the crime. For example, the law against slander stated that “if anyone ‘point the finger’ at a sister of a god or the wife of any one, and can not prove it, this man shall be taken before the judges and his brow shall be marked.”9 In contrast, ancient Roman law developed through centuries of customs that were passed down from one generation to another. These customs later became codified in 449 BCE as the Twelve Tables and stood as the foundation of the Roman law. As the Roman Empire expanded, so did its legal system. During the third century BCE, we see the emergence of the first legal scholars. These trained jurists
- 127. were tasked with interpreting the law, much like the U.S. Supreme Court does today. Indeed, Roman law significantly influenced much of Western law, including the English common-law system.10 English common law emerged during the Middle Ages. Henry II (1154– 1189 CE) established a system whereby judges were sent out to resolve disputes throughout the country. One of the key features that emerged under the common-law system was the doctrine of stare decisis (which means “to stand by things settled” in Latin). This refers to a system of precedent whereby future legal decisions are required to take into consideration previous rulings. This means that a court should issue a ruling that aligns with not only its own previous decisions but also the rulings of higher-level courts. This system is still in use today. Lex talionis: Latin term that refers to the theory that punishment should fit the crime. The concept derives from ancient law and is referenced in biblical texts as eye for an eye.
- 128. Stare decisis: Latin for “to stand by things settled.” Refers to the system of precedent. Precedent: Refers to the legal standard whereby future decisions are required to take into consideration previous rulings. Both Roman law and English common law heavily influenced the American legal system. Today, we can find laws among four primary sources: constitutional law, statutory law, administrative law, and case law. 118 119 Constitutional Law
- 129. A constitution serves to establish and govern a government.11 The U.S. Constitution stands as the highest law of our country and embodies the principles from which all other legal rules and processes are derived. It was written in 1787 in Philadelphia and was ratified by nine states on June 21, 1788. The first 10 amendments compose the Bill of Rights, and several of these amendments relate directly to criminal law. Table 2.1 highlights the constitutional law protections that the Bill of Rights provides. The framers of the Constitution were particularly concerned about preserving due process for individuals who are accused of a crime. Constitutional law: Law that is specified by either a state or the U.S. Constitution. Table 2.1 Most of the rights that we refer to as part of our criminal justice process come from the Fourth, Fifth, Sixth, and Eighth Amendments. The Fourth Amendment protects individuals against unreasonable searches and seizures. Perhaps the best
- 130. understanding of this is that police officers are generally required to obtain a warrant before conducting a search of your home. You’ll learn about this rule of law as well as its exceptions in Chapter 8. The Fifth Amendment protects against double jeopardy and self- incrimination. Double jeopardy means that a person cannot be tried for a crime more than once. So if an individual is found not guilty by the court, she or he cannot be retried for the same case in the future. Self- incrimination means that a person has the right to remain silent and does not have to respond to questions that might implicate himself or herself in a criminal offense. Double jeopardy: A person cannot be tried for a crime more than once. Self-incrimination: A person has the right to remain silent and does not have to respond to questions that might implicate himself or herself in a criminal offense 120
- 131. The Sixth Amendment provides for the right to a speedy trial by an impartial jury of one’s peers in the jurisdiction where the crime occurred. It also provides for the right to be informed of the nature of the charges, to confront any witnesses that will testify against you, and to present witnesses in your own defense. It also provides for the right to an attorney. In many ways, it is the provisions of the Sixth Amendment that have structured our criminal courts system. You’ll learn more about this structure and its processes in Chapter 9. Finally, the Eighth Amendment protects against cruel and unusual punishment. Perhaps the most commonly known argument involving the Eighth Amendment is the use of the death penalty, but this amendment has also been invoked to defend against other practices, such as the use of solitary confinement and mandatory sentencing schemes. It also protects against excessive bail.
- 132. Several of the amendments have been used to challenge various practices within the criminal justice system, such as the application of the Eighth Amendment to reduce prison overcrowding. You’ll learn more about the rights of convicted individuals and the incarcerated in Chapters 11 and 12. In addition to the U.S. Constitution, each state has its own constitution that serves as a binding document for all laws at the state level. However, these laws bind only that specific state. This means that state laws must abide by the rules set forth in not only that state’s constitution but the U.S. Constitution as well. If a law is challenged, it is up to either the state supreme court or the U.S. Supreme Court to determine whether the law violates the relevant constitution. As you will see throughout this book, many of our policies and practices of criminal law have been established through the constitutional review process. 121
- 133. Statutory Law Federal Statutory Law Statutory law refers to laws that are established by governments. Federal law is created by members of Congress, who first introduce a bill in either the House or the Senate (wherever their seat is held). These bills are then debated by a committee (and in some cases a subcommittee, which comprises a small number of congressional members). Once the bill is approved by committee, it is returned to the House or the Senate for general debate. At this stage, members can reject the bill, propose amendments to the bill, or pass the bill. The bill is then sent to the president, who either signs the bill and allows it to become a law or vetoes the bill. However, Congress can override the presidential veto with a two-thirds vote by each of its chambers.12
- 134. Statutory law: Laws that are established by governments. State Statutory Law At the state level, statutory law is proposed by a member of the state legislature and is debated in a fashion similar to the federal process. Once a majority of the members of the state legislature approve the measure, it is sent to the state’s governor for approval. State law exists in partnership with federal law. In cases where there is a conflict between state and federal law, it is up to the federal court system to resolve these disputes. Since each state has its own set of laws for its jurisdiction, you may often find differing and contradictory approaches to issues. In addition to legislators, citizens of several states can create laws as a result of direct democracy. Twenty-four states allow for laws to be adopted via a ballot initiative process. Under a direct initiative, signatures are gathered by registered voters to place an initiative on the election ballot. If the measure passes by a majority vote,
- 135. then the initiative is enacted into law. This method of direct democracy is particularly popular in California, which has used this practice to enact a number of state laws, including several related to criminal justice. For example, Proposition 83 (otherwise known as Jessica’s Law) was passed by a vote of 70.5% of Californian voters in 2006 and was designed to increase the punishment for individuals who are convicted of sex crimes against adults and children. The law also increased the 122 postincarceration restrictions on convicted sex offenders through residency requirements and requiring offenders to wear GPS tracking devices. The law was challenged on the grounds that the residency requirements, which prohibited convicted sex offenders from living within 2,000 feet of a school or park, were too strict. Since many offenders were forced to live on the
- 136. streets (which could be viewed as a violation of their parole), the court held that these provisions were a violation of the liberty and privacy interests of the individuals. The court also held that restricting the residency of convicted offenders did little to protect the community. In its decision, the California supreme court determined that while such restrictions could be upheld in certain types of cases (like those involving victims under the age of 14), a blanket restriction was unconstitutional.13 123 Administrative Law Administrative law refers to the body of law that governs the creation and function of state and federal government agencies. Administrative law focuses on the powers that are granted to these agencies, the types of rules that they make, and how these agencies are linked to
- 137. other areas of the government as well as the general public. Administrative law spans across virtually every topic, including intelligence, security, banking, finance, food, education, and communications—if there is a governmental agency involved in its regulation, then administrative law is at the center of this discussion. The primary source for administrative law is the Federal Administrative Procedure Act (APA). The APA has four primary purposes: (1) to mandate that government agencies inform the public of the nature, procedures, and rules of their organization; (2) to provide a process whereby the public can participate in making such rules; (3) to establish and implement a uniform process by which rules are made and violations are adjudicated; and (4) to define the scope of judicial review.14 Current administrative law is published daily in the Federal Register and is reorganized on an annual basis into the Code of Federal Regulations. Administrative law: Body of law that governs the creation and
- 138. function of state and federal government agencies. 124 Spotlight Concealed Weapons on College Campuses The issue of allowing concealed weapons on college campuses has seen significant debate in recent years. While some states have passed laws permitting the practice, others have moved in the opposite direction to oppose it. While all 50 states have laws that allow citizens to carry concealed weapons in certain circumstances, only 19 states permit individuals to carry a concealed weapon on a college campus. An additional 23 states allow individual campuses to determine their own policies on the practice.a In June 2015, Texas governor Greg Abbott signed Senate Bill 11, which permits individuals with a
- 139. concealed handgun license to legally carry on college campuses. The sponsor of the bill, Allen Fletcher, argued that since Texas law already permits individuals with a concealed weapons permit to carry in public, it was likely that many students already carried in class unbeknownst to university faculty and staff.b As in other states, Texas state colleges and universities must create policies for their individual campuses that determine where concealed weapons can be carried. While the law does provide the creation of gun-free zones, it is unclear as to how these zones can be defined.c Texas already allows teachers in public elementary and secondary schools to carry a concealed weapon in the classroom if they have permission from their school district superintendent.d Meanwhile, other universities are purchasing bulletproof whiteboards for professors to help protect in the case of an active shooter.e California governor Jerry Brown signed a bill in
- 140. October 2015 banning concealed guns from all California schools, including universities.f In addition, states such as Michigan and Montana have vetoed bills that would permit the expansion of concealed weapon carry laws on college campuses.g Local police arrive on scene at Seattle Pacific University on June 5, 2014, after Aaron Ybarra opened fire in the university library, killing one student and injuring two others. Should concealed weapons be allowed on college 125 campuses? Mat Hayward/Stringer/Getty Images News/Getty Images Critical Thinking Questions
- 141. 1. Do you think that allowing concealed weapons on college campuses will increase or decrease student safety? 2. What are the laws for concealed weapons carry for your state? What do these laws mean for the schools in your community? Administrative law is often involved in criminal justice matters. For example, the Department of Agriculture was one of the first agencies involved in the investigation of Michael Vick. While Vick was ultimately convicted of federal crimes related to his involvement in dog- fighting events, it was administrative law that granted the Department of Agriculture the necessary jurisdiction to initiate the investigation in conjunction with the Department of Justice. Vick was ultimately sentenced to 23 months in prison. While his conviction did not prohibit him from being reinstated by the NFL, the case did result in new federal laws, such as the Animal Fighting Prohibition Enforcement Act of 2007.
- 142. This new law amended the Animal Welfare Act and increased the penalties in cases of animal fighting ventures.15 In addition, dog fighting is now a felony in all 50 states.16 126 Case Law Unlike statutory law, which is typically created by legislatures (and, in some cases, the initiative process), case law is created as a result of legal decisions by courts. These new interpretations of the law are called precedent. You learned earlier in this chapter that the origins of precedent lie in English common law, which served as a significant influence on the American judicial system. Case law involves a judge or panel of judges who provide a written explanation of their decision in a court case. These explanations are called opinions. Opinions
- 143. are generally written in appellate cases, so they focus on issues of law rather than the facts of the case. These opinions lay out the reasoning used by the justices to make their decision. These written opinions often build upon—or in some cases even overturn—previous decisions. Case law is directly linked to statutory law. Most legal challenges that create case law arise out of a conflict of statutory law. Generally speaking, in order to challenge statutory law, there needs to be an allegation that the law or its application is in violation of the governing constitution (such as a state constitution or the U.S. Constitution). Case law: Law that is created as a result of legal decisions by the court. Opinions: Written decisions of the court. Focus on issues of law that can be used as precedents in future cases. An example of case law is the recent U.S. Supreme Court decision in Rodriguez v. United States. Dennys Rodriguez was stopped by the Nebraska Highway Patrol for driving on the
- 144. shoulder of the highway. The stop was legal as such conduct is prohibited by state law. The officer requested and received the license of Mr. Rodriguez and his passenger and subsequently issued a traffic citation for the conduct. The officer then asked if Mr. Rodriguez would consent to a perimeter search of his vehicle by a K-9 dog that was in the patrol car. When Mr. Rodriquez denied the request, the officer detained him until a second officer arrived. Upon the arrival of the backup officer, the K-9 dog performed a perimeter search of the vehicle and detected an illegal substance. A subsequent content search of the vehicle found methamphetamine. The length of time between the issuing of the traffic citation and the alert by the dog was seven to eight minutes. While Mr. Rodriguez’s attorney argued that the evidence from the traffic stop should not be admissible, the objection was overruled by the trial court. Mr. Rodriguez was subsequently convicted on federal drug charges. Mr. Rodriguez appealed his conviction. The case ultimately appeared before the justices of the U.S. Supreme Court (Rodriguez v. United States, 2015), who
- 145. agreed with Mr. Rodriguez. In 127 its opinion, the Court stated that the extension of a traffic stop in order to conduct a dog sniff is a violation of the Fourth Amendment’s protection against illegal search and seizure.17 128 Criminal Law Each crime is defined under various different bodies of law — municipal law, state law, federal law, and even international law. In order to define an act as a crime, there must be a law that identifies this behavior as wrong. Laws are designed to represent the interests of the citizens. Laws about crime generally fall into one of two categories:
- 146. mala in se and mala prohibita. Crimes that are mala in se are acts that are considered to be inherently illegal. Murder is an example of a crime that is mala in se. In comparison, acts that are mala prohibita are only crimes because they have been defined under the law as illegal. Examples of crimes that are mala prohibita are drug use, prostitution, and gambling.18 Mala in se: Latin for crimes that are considered to be inherently wrong and therefore illegal. Mala prohibita: Latin for crimes that are illegal only because they have been defined as such under the law. 129 Around the World International Law Each government has its own body of law to govern its citizens. International law focuses on regulations between
- 147. nations. International law covers a number of different topics, including human rights, international crime, refugee and migration issues, and conditions of war. International law also provides guidance on global issues such as the environment, international waters, trade, and communications. The United Nations Security Council is tasked with maintaining international peace and security. Here, members meet to discuss the current security concerns in the Republic of Mali, in West Africa. The region has been battling a civil war since 2012. How does international law differ from other forms of law? HABIBOU KOUYATE/Stringer/AFP/Getty Images The United Nations (UN) is the primary body tasked with supporting issues of international law. Founded in 1945, it is made up of 193 member states. According to the
- 148. governing charter, the UN promotes discussion among the member nations to help address the needs of various countries and help solve problems that exist between countries. In addition, the UN provides support for issues that impact the global community as a whole.a To date, more than 500 treaties have been deposited with the UN. One example of such a treaty is the International Convention for the Suppression of the Financing of Terrorism. Passed in 1999, the treaty aims to criminalize the financial support of terrorist entities and acts. It has been ratified by 187 states, making it one of the most successful antiterrorism treaties.b The International Court of Justice (ICJ) is the judicial entity within the United Nations that is used to resolve 130
- 149. disputes between states and violations of international law. The court can also provide advisory opinions on issues of law and policy. In addition to the ICJ, several UN tribunals have been established by the UN Security Council and used to resolve specific disputes.c For example, the Special Court for Sierra Leone was established in 2002 to address significant war crimes that occurred during the country’s civil war between 1991 and 2002.d However, the legal authority of these courts and tribunals is often limited as they are often established to address specific issues. In 1998, the international community adopted the Rome Statute, which provided the legal basis to establish a permanent international court system. The International Criminal Court is involved in prosecuting cases of war crimes, genocide, and crimes against humanity. Since its creation, it has been involved in 23 cases
- 150. stemming from nine international events.e While the other forms of law discussed in this chapter reflect the various sources of law that can be found in many different jurisdictions, international law is unique in that it represents the needs and interests of the international community as a whole. 131 Critical Thinking Questions 1. What are the challenges of maintaining a system of international law? 2. How does international law influence the legal decision making of the United States? 132
- 151. Components of a Criminal Act Under criminal law, there are four components of a criminal act (Figure 2.2). The first is actus reus. Actus reus is Latin and means “evil act.” In order for a crime to exist, there must be an act that is defined by society as bad or wrong. The second component is mens rea. While the actus reus is the act, mens rea is the “evil thought” that accompanies the crime. Thoughts alone are not considered to be criminal, but they contribute to the act of the crime by providing intent. In order for something to be considered a crime, there must be an evil act (or actus reus) and the bad intention to cause harm (or mens rea). When mens rea joins with actus reus, this is called concurrence. In a criminal case, both mens rea and actus reus must be proven beyond a reasonable doubt in order to convict someone of the crime. However, some crimes are defined as strict liability crimes. This means that mens rea does not need to be proven in order for an individual to be guilty of the criminal act. For example, if a man is found to be going over the speed limit, he can be
- 152. charged with the violation even if he didn’t realize he was speeding. Another example is that someone who drives drunk and subsequently kills another person in an accident most likely did not intend to harm anyone when she or he got into the car. Yet we define this as a cr ime. In this case, the decision to consume alcohol and then get into a car to drive home is considered a voluntary act, while the decision to get into an accident that causes harm to another person is an involuntary act. Actus reus: Latin for “evil act.” One of the four required components of a criminal act. Mens rea: One of the four required components of a criminal act. Latin for the “evil thought.” Refers to the intent of an offender. Intent: Refers to the conscious decision to engage in a criminal act. Concurrence: When the mens rea and actus reus join together in a crime.
- 153. Strict liability: Select cases where acts are crimes even if the individual lacked the mens rea or intent to commit a crime. Voluntary act: A crime that is the product of a conscious choice. Involuntary act: A crime that is performed with constraint or under duress. 133 Figure 2.2 Components of a Criminal Act In many cases, there will also be attendant circumstances to a crime. Attendant circumstances refer to what happens within the context of the act that makes it a crime. It is the relationship between mens rea and actus reus. For example, in the crime of rape, the act of sexual intercourse is not, in and of itself, a crime. However,
- 154. in order for sex to be a lawful behavior, you must have consent from the parties involved in the act. Failure to obtain consent is an example of an attendant circumstance and is what defines the act as a crime. Finally, there is the result, or the harm, that is experienced as a result of the act and the intent joining together. Attendant circumstances: The relationship between mens rea and actus reus. Refers to what happens within the context of the act that makes it a crime. Result: Component of a crime that refers to the harm that is experienced as a result of the mens rea and actus reus joining together. 134 Substantive Criminal Law
- 155. Defining what makes something a crime is a part of substantive criminal law. Substantive criminal law is another way to describe statutory law because i t refers to what acts we define as criminal. For example, substantive criminal law in many states defines the possession of marijuana as an illegal act. You’ll learn more about the criminalization of this act in the debate at the end of this chapter. Substantive criminal law also defines the potential punishment for someone who is convicted of a crime. For example, Title 21 of the United States Code, otherwise known as the Controlled Substance Act, states that it is against the law to intentionally purchase over a 30-day period more than nine grams of certain controlled substances that are typically used in the creation of methamphetamine. The law further states that violators are subject to a minimum fine of $1,000 as well as an imprisonment sentence of no more than one year. If, however, the individual has a prior conviction for a drug-related charge, the sentence increases to a $2,500 fine and the potential for up to two years in prison. The potential sentence increases even further for those
- 156. offenders with two or more prior convictions.19 Substantive criminal law: Defines what makes behavior a criminal act under the law. 135 Procedural Criminal Law While substantive criminal law tells us what is a crime and how such crimes should be punished, procedural criminal law provides the structure by which such cases should move through the system. In Chapter 1, you were introduced to the criminal process and learned about how a case moves through the criminal justice system. It is procedural criminal law that provides the rules and regulations for how a case will proceed. It dictates the roles and responsibilities for each of the courtroom participants. It also provides guidance on how to
- 157. ensure that a defendant’s constitutional rights are protected. For example, procedural criminal law provides the time line by which the accused must receive a probable cause hearing or provides details as to how a defendant can waive her or his right to a speedy trial. Procedural criminal law also requires that police officers inform someone of his or her constitutional right to remain silent if placed under arrest for a crime. The Miranda warning also informs the accused of his or her right to an attorney and that one will be provided if he or she is indigent. Informing suspects of their rights and ensuring that those rights are upheld is an important feature of procedural criminal law. Procedural criminal law: Provides the legal structure and rules by which cases should move through the system. The Federal Rules of Criminal Procedure guide the federal criminal court system. They also provide the procedures that investigators must follow when building their case. This includes the rules for questioning a suspect as well as how searches are conducted. Each state also has
- 158. its own code of procedural law. For example, Colorado procedural criminal law can be found within several different volumes, including the Colorado Rules of Criminal Procedure and the Colorado Rules of Evidence. 136 Criminal Defenses When someone is accused of a crime, it is up to the prosecutor to prove that the defendant is guilty. In order to prevent a guilty verdict, offenders or their legal counsel will present their own evidence to refute or challenge the facts of the prosecution’s case. This is called a defense. In this section, you’ll learn about several common types of criminal defenses. You’ll also learn about insanity defenses, which are far less common in real life compared with their representation on television series. Defense: A strategy to justify, explain, or excuse criminal
- 159. behavior. 137 Necessity, Duress, and Entrapment In some cases, defendants will admit that they broke the law but claim that their actions were justifiable. Cases of necessity suggest that the individual had to break the law in order to prevent a more significant harm from occurring. In these cases, the original violation is considered moot. Consider a case in which an individual walking by an abandoned building hears someone scream. The building is locked, and “Do Not Trespass” signs are displayed prominently. However, the individual ignores these signs and breaks a window to gain illegal entry into the building where he or she finds a young woman being assaulted. The second offender runs away, and the young woman is spared additional harm. In this case, the courts would view the case of trespass and destruction of property as
- 160. necessary and justified in order to prevent the assault of the woman. In comparison, someone who engages in a criminal act under duress is forced to violate the law out of fear for her or his own safety. In order for duress to be seen as a viable justification, the threat must be serious (generally involving serious bodily injury to oneself or loved ones). In addition, the threat must be immediate, meaning that there is no option to escape. Necessity: Refers to cases in which an individual had to break the law in order to prevent a more significant harm from occurring. Duress: A defense strategy that describes people who are forced to violate the law out of fear for their own safety or the safety of others around them. 138
- 161. Careers in Criminal Justice So You Want to Be a Defense Attorney? When someone is accused of either a misdemeanor or a felony crime, the U.S. Constitution guarantees the right to an attorney under the Sixth Amendment. In its interpretation of the Constitution, the U.S. Supreme Court has held that if a defendant cannot afford an attorney, the state or federal government is required to provide one. This right was first upheld in the case Powell v. Alabama (1932).a In Powell, the Court reversed the convictions of nine young Black men who had been convicted and sentenced to death for the rape of two White women on a train traveling through Scottsboro, Alabama. The ruling stated that the right to an attorney is necessary in order to ensure that a defendant receives a fair trial. While the ruling initially applied only to death-eligible cases, the right to an attorney for the indigent was extended to all felony
- 162. cases in Gideon v. Wainwright (1963).b You’ll learn more about these cases in Chapter 9. The job of a defense attorney is to ensure that the defendant’s rights are upheld and to defend him or her in a criminal case. Defense attorneys can be either retained privatel y by the defendant or employed by the government as a public defender. As a defense attorney, it is your job to ensure that your client’s rights are upheld at every stage of the criminal justice system—from arrest, to the trial, and beyond. Those who are interested in working as defense counsel attend law school following their undergraduate studies. During law school, students who are interested in careers in this field might intern with a local public defender’s office or private office. They must pass the bar exam in the state that they wish to practice law in.
- 163. Entrapment is different from duress and necessity in that it involves the actions of government officials. Entrapment occurs when an individual is deceived by an official (such as a police officer) into engaging in an illegal act. While the police are allowed to use techniques to gain information on a suspect, it is against the law to encourage or persuade someone to break the law in order to make an arrest. The involvement of the defendant must be of his or her own free will and not the result of any pressure or promises made by law enforcement. Entrapment: A defense strategy that describes when an individual is deceived by a government official to engage in an act that is against the law. 139 Self-Defense
- 164. In some cases, individuals may engage in criminal acts in self- defense, meaning they feared for their own safety. Cases of self-defense require that the use of force is justified based on the nature of the intrusion. For example, many states have provisions for castle law (otherwise known as “make my day” laws), which allows citizens to protect their homes (and in some cases, their property and workplace). These allow individuals to defend themselves with force, including, in some cases, deadly force, if they feel that their home or the individuals inside the home are under attack. One of the most liberal rules is found in Texas, which allows for the use of lethal force in cases where an intruder has either unlawfully entered or attempted to enter another individual’s home for any purpose. Other states restrict the use of force to cases in which a person believes that he or she is in physical danger. Self-defense: A defense strategy that allows for the use of force to defend oneself against an attacker. In order to prove that a person acted in self-defense, the courts generally look at four criteria.
- 165. First, the individual must show that the attack was unprovoked, meaning that he or she did not do anything to encourage the attack. Second, the threat of injury or death must be imminent or immediate. Third, the individual must prove that he or she used reasonable force in his or her defense. Finally, the individual must demonstrate that he or she reasonably felt that he or she would be severely injured or killed if not for the use of self-defense.20 There are examples that do not fit within this model, such as cases where an individual kills a past or present intimate partner following a history of abuse. The battered woman syndrome has been introduced as evidence to explain the actions of women on trial for killing their batterers.21 The goal of introducing evidence of abuse is to provide an understanding to juries regarding why women in these extreme cases of intimate partner abuse believed that their lives were in danger and that violence was the only option to ensure their safety. However,
- 166. juries and judges have generally shown little sympathy for women who kill their abusers, and many of these women have received either long-term or life sentences for these crimes.22 140 Intoxication While being under the influence of drugs and/or alcohol is often used as a justification for offending, it is rarely a successful defense strategy. Under this strategy, defendants argue that they were unable to appreciate the wrongfulness of their actions due to their intoxicated state. The intoxication defense hinges on the argument that a person who is under the influence lacks the mens rea to commit a criminal act. Alas, most state laws do not require the prosecution to prove specific intent—meaning that the individual intentionally caused the act and intended for that act to lead to a specific result. Rather,
- 167. most crimes require only general intent, which states that the defendant intended to engage in the criminal act, regardless of the outcome of the crime. While involuntary intoxication (meaning that the person did not consent to intoxication) is more likely to be presented as a reasonable defense strategy, success in even these cases is rare. Intoxication defense: A criminal defense that uses being under the influence of drugs or alcohol as a justification for offending. 141 Insanity While the depiction of insanity as a criminal defense is present in a number of films and television episodes, the use of it as a defense strategy is rare in the real world. Less than 1% (.85%) of all criminal cases involve an insanity plea, and only
- 168. one out of every four of these cases is successful.23 The concept of insanity means that an individual is not held responsible for her or his criminal actions as the result of a mental condition. One of the most famous insanity trials in the twentieth century was that of John Hinckley. Hinckley became infatuated with Jodi Foster when she first appeared as a child prostitute in the film Taxi Driver. Hinckley’s obsession with Foster continued while she was a student at Yale, but he failed to gain her attention after numerous letters and phone calls. In 1981, Hinckley attempted to assassinate President Ronald Reagan in an effort to impress Foster. He was found not guilty by reason of insanity (NGI) for his crimes and was committed to St. Elizabeths Hospital in Washington, D.C., for treatment. Today, he is allowed extended overnight visits outside of the hospital with his family, though he remains in the custody of the facility. In 2016, Hinkley was allowed to leave the facility and live full-time with his mother. In 2018, the court granted him the right to live on his
- 169. own, though he is still subjected to several residential and lifestyle restrictions.24 Insanity: An individual is not held responsible for his or her criminal actions as a result of his or her mental state. The concept of not guilty by reason of insanity has been a feature of law throughout history. The argument has been that someone who is insane lacks the mens rea to understand his or her actions and to punish that person would not deter the rest of society.25 Throughout the twentieth century, the American criminal justice system developed several different standards to determine whether a defendant is insane. There are four states that do not allow for an insanity defense—Kansas, Montana, Idaho, and Utah. The remaining states use one of four different legal standards: The M’Naghten rule, the irresistible impulse test, the model penal code test, or the Durham rule. Figure 2.3 highlights the status of the insanity defense for each state.
- 170. 142 Figure 2.3 Legal Standards of the Insanity Defense Source: FindLaw, “The Insanity Defense Among the States,” 2018, https://criminal.findlaw.com/criminal-procedure/the-insanity- defense-among-the- states.html. No insanity defense: Montana, Idaho, Utah and Kansas. Durham rule: New Hampshire and Upper Peninsula of Michigan. Model penal code test: Maine, Vermont, New York, Massachusetts, Rhode Island, Connecticut, Delaware, Maryland (and DC), West Virginia, Kentucky, Tennessee, Arkansas, Indiana, Illinois, Wisconsin, Michigan, North Dakota, Wyoming, Oregon, and Hawaii.
- 171. Irresistible impulse test and/or M’Naghten rule: Virginia, Texas, and Colorado. M’Naghten rule: New Jersey, Pennsylvania, Ohio, North and South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Oklahoma, Missouri, Iowa, Minnesota, Nebraska, South Dakota, New Mexico, Arizona, California, Nevada, Washington, and Alaska. 143 https://criminal.findlaw.com/criminal-procedure/the-insanity- defense-among-the-states.html The M’Naghten Rule The first standard is the M’Naghten rule, which is the foundation for most state definitions of insanity. The M’Naghten rule comes from the 1843 acquittal by the British courts of Daniel M’Naghten for the murder of Edward Drummond. M’Naghten suffered from
- 172. delusions. The court held that this condition made it such that the defendant was unable to understand the difference between right and wrong. Following the trial, M’Naghten was sent to a local asylum for two decades until his death. Today, a court that finds a defendant insane under the M’Naghten rule must answer two questions: (1) Did the defendant know what he or she was doing at the time of the crime? And (2) did the defendant understand that these actions were wrong? If the answer to both of these questions is no, the defendant is found not guilty by reason of insanity. Based on this criterion, the M’Naughten Rule is often referred to as the “right–wrong” test. M’Naghten rule: One of the standards of insanity. Refers to situations when the defendant is unable to understand the difference between right and wrong at the time of the crime. Andrea Yates appears before a Texas court after admitting to drowning her five children in a
- 173. 144 bathtub at the family home. Her life sentence was overturned on appeal, and she was sent to a mental hospital instead of prison. © AP Photo/David J. Phillip, Pool The Irresistible Impulse Test While the M’Naghten rule is still used by many jurisdictions, several states have adopted alternative measures. The irresistible impulse test expands the M’Naughten rule to include the issue of control—even though offenders may know that their actions are wrong, are they unable to stop themselves from engaging in the act? The irresistible impulse test was first adopted in 1887 in Alabama. One of the challenges of this test is how a court can determine whether an individual is able to control her or his behavior. The court needs to hear from
- 174. medical experts to determine whether the defendant was unable to control his or her behavior as the result of a mental disease or defect. Irresistible impulse test: One of the tests of the insanit y defense. Expands the M’Naghten rule with the issue of control. Describes the condition that even though an offender may know that an action is wrong, she or he is unable to refrain from engaging in the criminal act. The Model Penal Code The American Law Institute (ALI) standard (also referred to as the model penal code test) combines the features of the M’Naghten rule and the irresistible impulse test to establish that defendants can be found criminally insane if due to a mental disease or defect they are unable to understand the difference between right and wrong or to control their behavior.26 Texas is one state that uses the model penal code as its definition of insanity. Andrea Yates, for
- 175. example, was initially found guilty for drowning her five children in 2001 in Texas. Her conviction was overturned on appeal due to false and misleading evidence that was used against her. She was retried in 2006 and was found not guilty by reason of insanity. Model penal code test: Combines the features of the M’Naghten rule and the irresistible impulse test to establish that a defendant can be found criminally insane if, as a result of a mental disease or defect, he or she is unable to understand the difference between right and wrong or to control his or her behavior. Also known as the American Law Institute standard. 145 Guilty but Mentally Ill Finally there is the distinction of guilty but mentally ill
- 176. (GBMI). This standard was developed to provide an alternative to the NGI verdicts. However, some scholars have questioned whether the GBMI distinction does more harm than good. In particular, does the GBMI classification result in a longer punishment than a traditional guilty plea would give?27 Unlike NGI cases, GBMI defendants are still sentenced to prison. To date, there have been several high-profile cases involving a ruling of GBMI. In 1997, John E. du Pont, an heir to the du Pont fortune, was found guilty but mentally ill for the death of Dave Schultz, who trained and supported several Olympic athletes on du Pont’s estate in Pennsylvania.28 The film Foxcatcher (2014), starring Steve Carell, Channing Tatum, and Mark Ruffalo, is based on the story of du Pont and Mark and Dave Schultz.29 Guilty but mentally ill: Legal ruling that allows courts to hol d an offender guilty for a crime but acknowledges the
- 177. issues of mental illness as a cause of the criminal behavior. 146 Conclusion The sources of criminal law guide our systems not only on what acts constitute crimes but also on how the criminal justice system should respond to these violations. From the roots of lex talionis to stare decisis, modern criminal law has been influenced by historical legal traditions. It is important to remember that not only is the law derived from a variety of different sources—which can influence how a crime is defined and processed—but the role of jurisdiction determines which court is charged with responding to the violation. While many of the features of our criminal law have remained constant throughout history, it is also important to remember that it is always growing and changing in response to society’s issues
- 178. and challenges. 147 Current Controversy 2.1 Should Marijuana Be Legalized? —Clayton Mosher and Scott Akins— Where do you stand? Cast Your Vote! 148 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-2/current-controversy-videos Introduction Globally, it is estimated that 183 million people used marijuana in the past year,30 and in the United States, close to half of all residents are estimated to have used marijuana at least once in their lifetime. Between 1980 and 2017, several
- 179. million people were arrested for marijuana offenses in the United States, the overwhelming majority for simple possession of the substance. While marijuana arrests have been declining in recent years (with legalization of the substance in nine states), in 2016 there were approximately 1.5 million people arrested for drug-related offenses in the United States, and 587,700 of these were for simple possession of marijuana.31 Marijuana possession arrests accounted for over 5% of all arrests in 2016, and there were more arrests for marijuana possession than for all crimes the Federal Bureau of Investigation classifies as violent. There is also tremendous racial disparity in marijuana arrests—even though Blacks and Whites are estimated to use marijuana at roughly equivalent rates, Blacks are almost 4 times more likely to be arrested for marijuana offenses than Whites.32 149
- 180. CON: Marijuana Should Not Be Legalized Under the Controlled Substances Act, passed as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (and still in effect today), marijuana is classified as a Schedule I drug (along with heroin, MDMA [ecstasy], and PCP, among other substances). A Schedule I substance is defined as a drug that has “a high potential for abuse, no medical use in the United States, and a lack of accepted safety for use under medical supervision.”33 Most states created legislation prohibiting marijuana use over the 1900–1930 period, and in 1937, marijuana was effectively banned at the federal level with the passage of the Marijuana Tax Act. This was largely in response to the efforts of Harry Anslinger and the Federal Bureau of Narcotics (FBN, essentially the precursor to the current Drug
- 181. Enforcement Administration), who engaged in a concerted campaign to demonize marijuana to justify federal legislation banning the substance. Some may recall the movie Reefer Madness (produced with the influence of the FBN), in which the FBN emphasized several themes to demonize the substance: the notion that marijuana led to violence and involvement in aberrant sexual behaviors, that its primary users were members of minority groups (Blacks and Mexicans), that its use led to an array of adverse psychological effects, and that use of the drug was spreading to young people. A 2012 publication by the Office of National Drug Control Policy (ONDCP), What Americans Need to Know About Marijuana, emphasized the theory that marijuana is a “gateway” to the use of harder drugs, such as heroin, cocaine, and methamphetamine, and that the THC (the primary psychoactive ingredient) in marijuana available to consumers
- 182. today is considerably higher than in the past. The National Institute on Drug Abuse (NIDA) has expressed concern that the legalization of marijuana will be associated with increases in youth use of the drug. Some studies have also suggested that marijuana use among youth leads to decreased IQ, brain abnormalities, and mental diseases such as schizophrenia. In addition, the Food and Drug Administration (FDA) requires that in order for drugs to be shown to be safe and effective, they must undergo clinical trials to provide scientific data on the efficacy of their treatment for medical conditions. To date, and largely due to marijuana’s Schedule I status, no such trials have been approved by the FDA. The legalization of marijuana brings additional concerns, such as increases in drugged driving. Driving under the influence of marijuana could result in slow reaction time,
- 183. weaving between lanes, and lack of attention to road conditions. Related, some have also claimed that marijuana consumption leads to traffic fatalities—using as evidence the fact that in recent years, a higher proportion of those involved in traffic fatalities have been found to have marijuana in their systems. Despite its legalization in several states, it is important to reiterate that marijuana remains a Schedule I drug under the Controlled Substances Act, and, as such, it is possible that federal government agencies will attempt to intervene in states that have legalized the substance. Given the conflict between federal and state laws, as well as the concerns for public health and safety, marijuana should remain an illegal drug. 150
- 184. 151 PRO: Marijuana Should Be Legalized Marijuana’s classification as a Schedule I drug is curious, given that it has been used for medicinal purposes for possibly thousands of years, and more than 100 articles on its therapeutic uses were published in medical journals between 1840 and 1900. Cannabis was formally recognized as a medicine in the United States until 1942, and in some states, could be purchased at pharmacies. As the use of marijuana spread to middle-class youth in the 1960s and 1970s, 11 states removed criminal penalties for those found in possession of the drug. California legalized medicinal marijuana in 1996, and, as of 2018, 29 states and Washington, D.C., allowed use of the substance for medical
- 185. purposes. Also as of 2018, nine states (Alaska, California, Colorado, Maine, Massachusetts, Oregon, Nevada, Washington State, Vermont) had legalized recreational marijuana. Recent public opinion polls, including those by the Pew Research Center and Gallup, indicate that the majority of Americans (between 61% and 64%) support marijuana legalization, and it is likely that several other states will consider marijuana legalization soon. Support for legalization is at least partially driven by the fact that the baby boomers who consumed marijuana in their youth do not share previous generations’ fear of the substance, and by state governments, which are seeking alternative sources of revenue (by taxing marijuana production and sales) in light of economic crises. In states that have already legalized marijuana, there has also been an emphasis on social and racial justice issues (i.e.,
- 186. the fact that even though Whites and members of minority groups use cannabis in roughly equal proportions, Blacks and Hispanics are significantly more likely to be arrested for the violation of marijuana laws.) While some research has suggested that the legalization of marijuana may lead to increased harm in society, critics of these studies have pointed out that there are problems with respect to determining causal order—for example, does cannabis use increase the risk of schizophrenia, or are those with schizophrenia predisposed to using cannabis (perhaps for “self-medication”)? Similarly, does marijuana consumption result in lower grades, or are young people with lower grades more likely to use marijuana? With respect to the relationship between marijuana use and traffic fatalities, a recent meta-analysis of studies on this relationship concluded that there was no statistically significant effect of driving under the influence of cannabis on
- 187. vehicle collisions and traffic fatalities.34 And even in cases of marijuana use and traffic fatalities, it is not clear that the marijuana use caused the collision that led to the fatality. Research has indicated that adult marijuana use has been increasing in recent years and that the increases in use have been greater in states that have legalized the substance. However, several studies have indicated that for at least some users, marijuana may be a substitute for opioids (prescription and street), and states that have legalized medicinal marijuana have seen declines in opioid overdose deaths. With respect to youth use, a study of states that allow medical marijuana found no significant increase in adolescent marijuana use within two to three years following the passage of medical marijuana laws. While there are concerns that youth perceptions of risks/harms from using marijuana have declined, one could argue that youth are simply being rational—
- 188. the fact is that marijuana is less harmful than other currently legal drugs (e.g., tobacco, alcohol, and some prescription drugs). 152 Figure 2.4 Marijuana Laws in 50 States as of 2018 Source: Norml, “State Laws,” 2018, http://norml.org/laws. Marijuana laws in the different states, as of 2018. Illegal: Virginia, South Carolina, Georgia, Alabama, Tennessee, Kentucky, Indiana, Wisconsin, Iowa, South Dakota, Kansas, Texas, Wyoming, Utah, and Idaho. Medicinal use only: New Jersey, Pennsylvania, West Virginia, Michigan (and Upper Peninsula), Florida, Louisiana, Arkansas, Oklahoma, New Mexico, Arizona, North Dakota, Montana, and Hawaii
- 189. Decriminalized: North Carolina, Mississippi, Missouri, and Nebraska. Medicinal use only and decriminalized: New Hampshire, Vermont, New York, Rhode Island, Connecticut, Delaware, Maryland, Ohio, Illinois, and Minnesota. Legal: Maine, Massachusetts, DC, Colorado, Nevada, California, Oregon, and Washington. 153 http://norml.org/laws Conclusion While, as noted above, it is likely that several other states will consider marijuana legalization in coming years, it remains to be seen whether the federal government will intervene. Jefferson Sessions, the current attorney general in the Trump administration, believes that marijuana is a gateway
- 190. drug, is skeptical regarding the utility of medical marijuana, does not support marijuana legalization, and has given some indications that the federal government will take action in states that have legalized the drug. In addition, even though nine states have legalized recreational marijuana, in 21 states more people were arrested for marijuana offenses in 2016 than in 2014. 154 Discussion Questions 1. What purposes are served by maintaining marijuana as an illegal substance? 2. If marijuana is legalized by states, what types of laws should be put in place to regulate its use? 3. What lessons can we learn from the legalization and decriminalization of marijuana in the United States and
- 191. abroad? 155 Current Controversy 2.2 Should Sexual Harassment Be Identified as a Form of Sexual Assault? —Alissa Ackerman— Where do you stand? Cast Your Vote! 156 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-2/current-controversy-videos Introduction The phrase “Me Too” was used by activist Tarana Burke in 2006 to elevate conversations around sexual violence. Actor Alyssa Milano then used the term in late 2017 when she tweeted that anyone who had been sexually assaulted or
- 192. harassed should reply to the tweet with “Me Too.” In a matter of moments, people from all over the world took to social media to share their experiences. For many, it was the first time they felt empowered to speak up about sexual misconduct in its many forms. Celebrating the fact that people have found solidarity with the #MeToo movement is important. However, there are questions we should be asking about whether the various forms of sexual misconduct are one issue or whether our conversations around sexual misconduct are more nuanced. I offer two points of view in this essay. The first considers all forms of sexual misconduct as one issue. The second argues that sexual misconduct varies in degrees of seriousness and that we should discuss each as its own separate issue. 157
- 193. PRO: Sexual Harassment Is a Form of Sexual Assault The term sexual misconduct refers to sexual harassment, sexual assault, rape, and everything in between. The #MeToo movement did not define the various forms of sexual misconduct, nor should it have done so, as all forms of sexual misconduct are harmful and can have serious consequences for the person who experiences these acts. These consequences can present themselves at home, at school, in the workplace, and within interpersonal relationships. Bringing attention to sexual misconduct allows any person affected by it to join the movement in solidarity. Indeed, after Alyssa Milano tweeted for her followers to use the hashtag “#MeToo,” people who had never considered themselves a part of the movement now found a place. People who had minimized their experiences now found words for what had happened to them.
- 194. One of the most important aspects of healing from sexual misconduct is validation that what happened was unacceptable and harmful. Additionally, healing happens in community. As more people speak out about experiencing sexual misconduct, the less taboo it becomes. When a subject becomes less taboo it becomes easier for people to speak about it without shame. This is why we should consider sexual harassment and all other forms of sexual misconduct as sexual assault. 158 CON: Sexual Harassment Is Separate From Other Forms of Sexual Assault Just as there are many forms of sexual harassment, there are varied individual responses to sexual harm. In some cases, the emotional, psychological, and behavioral responses to
- 195. sexual trauma are pervasive, while in others they are almost nonexistent. As outsiders we cannot determine the impact of sexual misconduct. However, we can recognize that any and all forms of sexual misconduct bring an unacceptable risk of potential harm. We must also recognize that sexual harassment, sexual assault, and rape are not the same. At the heart of the #MeToo movement were people who had experienced rape who felt that their lived experiences were diminished and devalued by the conflation of sexual harassment with other forms of sexual violence. Similarly, there were people who had experienced sexual harassment who felt that their experiences did not rise to the level of seriousness that other forms of sexual violence did. Herein lies the problem. All forms of sexual violence have the propensity to cause pain. We can honor this pain and suffering while
- 196. acknowledging the need for different, but equally important, conversations around each. The reasons why people engage in sexual harassment are often different from the reasons people engage in sexual abuse. Likewise, though the impacts of sexual harassment are harmful and painful, they are different from the impacts of rape. To conflate the two thwarts our ability to address important nuances that are integral to prevention. Making these distinctions is necessary if we are to have critical and meaningful dialogue moving forward. Grouping all forms of sexual misconduct was never meant to minimize the trauma of some, but the unintentional consequences of this grouping does just that. This distinction between sexual assault and sexual harassment is not to discount the trauma of sexual harassment, either. In fact, the distinction is to honor the unique experiences and consequences of each type of sexual trauma, while
- 197. acknowledging that they are fundamentally different. Creating a cultural shift where sexual misconduct of all forms disappears requires nuance. Broad sweeping generalizations cause more harm than good. 159 Discussion Questions 1. What are the pros and cons of lumping all forms of sexual misconduct into one category? 2. How does the #MeToo movement affect people who have experienced sexual misconduct? 3. How did social media aid survivors in speaking out for the first time? 160
- 198. Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Actus reus 29 Administrative law 28 American Law Institute standard 35 Attendant circumstances 31 Beyond a reasonable doubt 24 Case law 29 Civil law 23 Concurrence 30 Constitutional law 26 Defense 32 Double jeopardy 26 Duress 32 Entrapment 32 Guilty but mentally ill 35 Insanity 34 Intent 30 Intoxication defense 33 Involuntary act 31 Irresistible impulse test 35
- 199. Lex talionis 25 Mala in se 29 Mala prohibita 29 Marijuana 25 Mens rea 30 M’Naghten rule 35 Model penal code test 35 Necessity 32 Opinions 29 161 http://edge.sagepub.com/mallicoatccj2e Plaintiff 23 Precedent 26 Preponderance of the evidence 23 Procedural criminal law 31 Result 31 Self-defense 32 Self-incrimination 26 Stare decisis 26 Statutory law 27 Strict liability 30
- 200. Substantive criminal law 31 Voluntary act 31 162 Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. What are the key differences between civil and criminal cases? 2. How do statutory law, case law, and constitutional law all work together? 3. What are the components of a criminal act? 4. How is substantive law related to procedural law? 5. What is the difference between being declared innocent and being declared not guilty? 6. Why is it so difficult to find someone not guilty by reason of insanity? 163
- 201. http://edge.sagepub.com/mallicoatccj2e Learning Activities 1. Review the criminal code in your state. Identify a particular crime, and determine the four components of the criminal act under the law. 2. Identify a U.S. Supreme Court decision related to a criminal justice issue from the most recent term. How did the court reach its decision? What implications does this decision have for the system? 3. Select an article from the newspaper about a crime. What are the actus reus, mens rea, attendant circumstances, and result of this crime? Is this crime mala in se or mala prohibita? 164
- 202. Suggested Websites U.S. Supreme Court: http://www.supremecourt.gov U.S. Constitution: https://www.congress.gov/constitution- annotated U.S. Code Title 18, Crimes and Criminal Procedure: https://www.law.cornell.edu/uscode/text/18/part-I 165 http://www.supremecourt.gov https://www.congress.gov/constitution-annotated https://www.law.cornell.edu/uscode/text/18/part-I Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access
- 203. practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 2.1 Jeffrey Mason: Attorney Criminal Justice in Practice 2.1 Criminal Intent and Defenses SAGE News Clip 2.1 Martin Shkreli Pleads 5th Amendment at Hearing 166 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e 3 Defining and Measuring Crime © iStock.com/monsitj 167
- 204. Learning Objectives Identify the six different categories of crime Compare the differences between the Uniform Crime Reports, the National Incident-Based Reporting System, and the National Crime Victimization Survey Explain how crime rates are used to understand the prevalence of crime in society Assess how self-report studies of crime provide a different perspective on offending In 2012, the city of Chicago registered 500 homicides, leading some to characterize the city as the murder capital of the country.1 Certainly, there was a kernel of truth to this characterization.2 Chicago had the highest murder count nationwide that year. This means that there were more murders in Chicago compared with other cities, such as New
- 205. York City or Los Angeles. However, crime data can be deceiving. Chicago actually had fewer homicides in 2013—88 fewer deaths. In 2015, the murder rate for the city was the lowest since 1965.3 Even though 2016 saw the highest tally in 20 years with 771 people killed in the city, there were still eight other cities that had higher homicide rates. That year St. Louis had the highest murder rate amongst cities with a population of 250,000 or greater. In 2017, Baltimore had the highest rate of lethal violence with 343 homicides.4 What has led to the changes in Chicago’s crime rate? Police have cited an increased police presence on the streets, targeted enforcement of gang activity, and an increase in community youth programs. Meanwhile, others have suggested that recent years are not reflective of the overall trend in the city and nationwide—that violent crime has decreased since the early 1990s.5 Still others cite concerns
- 206. about the way in which crimes are classified, which may provide inaccurate perceptions about whether crime is really decreasing.6 Chicago also has one of the largest urban emergency medical networks, which has significantly lowered the mortality rate. Consider the events of the long weekend of July 4th, 2017. Over five days, 101 residents were shot, but only 15 died as a result of their injuries.7 Given the different voices weighing in on this issue, what should Chicago residents believe about crime and violence in their city? 168 What effect do you think an increased police presence may have had on the crime rate in Chicago? © iStock.com/400tmax
- 207. In Chapter 2, you learned that a crime is an act that goes against the law. In this sense, crimes can be harmful to either an individual or the community at large. In many cases, there are punishments associated with these violations. This chapter begins with a review of the different types of crime and how we classify these offenses. The chapter then turns to a discussion of how crime is measured in society. You’ll learn about the different official sources of crime data, such as the Uniform Crime Reports, the National Incident-Based Reporting System, and the National Crime Victimization Survey, as well as self-reported studies of crime. You’ll also learn about international databases of crime that can be used to understand the presence of crime around the world. The chapter concludes with two Current Controversy debates. The first, by Henry N. Pontell, Gilbert Geis, Adam Ghazi-Tehrani, and Bryan Burton, looks at whether white-collar crime is considered harmful to society. The second, by Vaughn Crichlow, asks whether violent crime is on the rise.
- 208. 169 Defining Crime Even though we look at crime as a general category, there are several different categories of crime, each of which contains several different types of criminal activities. In this book, crimes are organized into six categories: violent offenses, property offenses, status offenses, victimless crimes, white-collar offenses, and crimes against the government. 170 Violent Offenses Violent offenses generally involve a criminal action against another person. When people talk about crime, it is violent offenses that are typically the first that come to mind. Certainly,
- 209. violent crime plays a major role in both fictionalized and true - crime portrayals and is responsible for much of the public’s fear of crime and victimization. Despite the high degree of attention that is given to violent crime, however, these acts are much less common than other forms of crime. Murder is a great example of this phenomenon. Violent offenses: Crimes that typically involve acts against another person. Figure 3.1 Homicides Involving Firearms in Chicago, Illinois Source: Data Reporting Lab/CityLab/Atlanta Online/TNS. Line graph showing homicides involving firearms. Number of homicides are plotted on the vertical axis on a scale of 0 to 800 and years are plotted on the horizontal axis from 1995 to 2015. The data are summarized in the table given below. All values are approximate. A dotted, linear line is plotted
- 210. between 700 in 1995 and 480 in 2015 as a best fit for the graph. 171 Murder Murder (also referred to as homicide) involves the killing of one human being by another. Even though the crime of murder invokes high levels of fear among the public, it is the least common type of crime. Murder carries with it the most serious penalty; depending on the laws of the region where the murder was committed and the circumstances of the crime, an offender may be put to death as punishment. Within the crime of murder, there are several different degrees or classifications in terms of severity and responsibility to help distinguish different acts from each other. While the laws vary from state to state, murder can generally be classified into four subcategories: First-degree murder—generally includes acts that are
- 211. premeditated, committed with malice, or committed during the commission of a felony. Second-degree murder—includes acts that are not premeditated or planned and do not involve torture. Voluntary manslaughter—involves acts in which the offender intended to take someone’s life, but there are mitigating circumstances that might excuse or minimize the actions of the offender. For example, crimes of passion are generally considered voluntary manslaughter. Involuntary manslaughter —involves acts in which there was no intent to take someone’s life, but the loss of life occurred due to negligence. For example, someone who drives while under the influence of alcohol and causes an accident that results in the death of another has committed involuntary manslaughter. Murder: A crime that involves the killing of one human being by another. 172
- 212. Contrary to what is seen on popular crime dramas, murder occurs less often than other types of crimes. Why do you think this difference exists, and how might it affect the public’s perception of crime? © Robert Voets/CBS Photo Archive via Getty Images Sexual Assault Another set of crimes that falls within the category of violent crime is rape and sexual assault. These acts involve sexual activity without consent. In many jurisdictions, the definition of rape involves unwanted penile–vaginal sexual contact or penetration, whereas sexual assault is considered a general term for all other forms of unwanted sexual contact, including genital fondling, forced oral copulation, sodomy, and penetration by a foreign object, among others. Many states also have laws prohibiting sexual contact with someone who is unable to consent due to intoxication or disability. Offenders who are in a
- 213. position of trust (such as a teacher or clergy member) or who engage in multiple acts of sexual assault may be prosecuted under specific laws that allow for enhanced penalties. Finally, laws may also be distinguished by the age of the victim, as in cases of child rape or molestation. However, not all sexually based offenses are considered violent crimes. Unlike other forms of violent sexual assault, statutory 173 rape generally involves someone who is legally unable to consent to sexual activity due to her or his age. Statutory rape is considered a strict liability crime. As you learned in Chapter 2, a strict liability crime does not require someone to have mens rea in order for an act to be against the law. Some would consider the crime of statutory rape a victimless crime, as individuals in these cases often do not define themselves as victims. Rather, they see themselves as willing participants in sexual activity. It is purely
- 214. the legal distinction of who can and cannot consent that makes these acts crimes. For example, the age of sexual consent in California is 18, and anyone under 18 who engages in intercourse is in violation of the state’s statutory rape law. So, two 17-year-olds who engage in intercourse would be breaking the law. Rape and sexual assault: A crime that involves sexual activity without consent. Statutory rape: A crime that involves sexual activity with someone who is legally unable to consent to sexual activity due to her or his age. Assault Perhaps the most common form of violent crime is assault. Assault involves the physical harm (or the threat of physical harm) of a victim. Cases of assault are generally divided into two categories. Cases of simple assault generally do not involve the use of a weapon and
- 215. minor, if any, injuries, whereas cases of aggravated assault may involve serious injury to the victim or the use of a weapon. For example, a bar fight between two individuals is often considered a simple assault. However, if one of the individuals pulls out a knife and stabs the other during the fight, this would be considered an aggravated assault. Assault: A crime that involves the physical harm (or threat) to a victim. 174 Spotlight Sexual Harassment in Hollywood Harvey Weinstein has served as a producer in the movie industry since the early 1980s. As the cofounder of Miramax and later the Weinstein Company, he was responsible for bringing hundreds of films to the big screen.
- 216. Over 20 of his films, such as Good Will Hunting and the Lord of the Rings series, were nominated for Academy Awards for Best Picture. Five of these films—The English Patient, Shakespeare in Love, Chicago, The Lord of the Rings: The Return of the King, and The King’s Speech—were awarded Hollywood’s top prize. In October 2017, a different claim to fame for Mr. Weinstein began to take shape in Hollywood. An investigation spanning acts committed over three decades found dozens of accounts of sexual harassment by the producer. Actresses such as Ashley Judd, Rose McGowan, and Uma Thurman have all spoken publically about how Mr. Weinstein engaged in inappropriate and lewd sexual behaviors against them. Within just three weeks of the initial story breaking, 84 women had come forward with accusations. The narrative of these interactions are similar—women were invited to attend what they thought would
- 217. be a business meeting in a hotel room only to find Mr. Weinstein naked and requesting massages or other sexual favors in exchange for a job, a role in one of his films, or other lucrative opportunities in Hollywood. Over the years, Mr. Weinstein settled eight different lawsuits involving various allegations of sexual harassment and sexual assault.a As a result of the extensive allegations, he was fired and his company filed for bankruptcy.b However, the case of sexual harassment in Hollywood doesn’t begin nor end with the story of Harvey Weinstein. In the months following Mr. Weinstein’s exposure, hundreds of men in Hollywood and in other professions were accused of various acts of sexual harassment and assault. The list includes prominent actors such as Ben Affleck, Jeremy Piven, and Kevin Spacey; television stars Charlie Rose and Matt Lauer; comedians Louis CK and Andy
- 218. Dick; and even politicians such as Senator Al Franken and President Donald Trump. Social media posts encouraged women both inside and outside of Hollywood to stand up and tweet #MeToo if they had ever been the victim of sexual harassment and/or sexual assault. Whi le this sparked a huge rising of women and men of all ages who gave voice to victimization, #MeToo was not a new movement. In 2006, Tarana Burke, a sexual violence activist, had created a Me Too campaign to bring together women (and particularly woman of color) who had been victims of sexual violence.c The movement’s momentum has led to displays of protest at Hollywood award shows, such as the 2018 Golden Globes (at which all of the women wore black), as well as the creation of the TIME’S UP Legal Defense Fund. The fund seeks to improve the corporate policies of Hollywood and other work environments to address the systemic
- 219. inequalities against women and other marginalized groups who have experienced abuse and discrimination.d Robbery The last type of violent crime is robbery. Robbery involves taking personal property from someone through the use of force or fear. In some cases, a weapon might be used to facilitate a robbery. Robbery is often confused with the crime of burglary. While both involve the 175 taking of personal property, the crime of robbery involves a face-to-face confrontation, whereas someone can be burglarized without being present. Crimes such as carjacking or purse snatching are examples of robbery. Robbery: A crime that involves taking personal property from someone through the use of force or fear.
- 220. 176 Property Offenses Property crimes are the most common criminal offense and involve the taking or damage of physical goods. Within this classification, there are several types of crimes. In the previous section, you learned a bit about burglary, which is considered a property crime. Burglary occurs when someone enters a building or other physical space (residence, business, or car) with the intent of taking property without permission. Note that the crime of burglary does not require that anything be taken, and it is the act of entering without permission that constitutes the crime. You’ll learn more about the crime of burglary in Current Controversy 3.2 at the end of this chapter. The most common property crime is larceny-theft. Larceny- theft involves the taking of property without the use of force. Larceny-theft includes
- 221. shoplifting and motor vehicle theft and can also be combined with acts of burglary in cases where property is taken during the course of unlawfully entering a building. Finally, acts such as vandalism and arson are also considered property crimes. Vandalism involves the destruction or damage of a physical structure or building. For example, smashing storefront windows during a riot is considered an act of vandalism. In comparison, the crime of arson involves the destruction of a physical structure or item (such as a home, business, or automobile) by fire. Property crimes: Crimes that involve the taking of or damage to physical goods. Burglary: A crime that occurs when someone enters a building or other physical space with the intent of taking property without permission. Larceny-theft: A crime that involves the taking of property without the use of force.
- 222. Vandalism: A crime that involves the destruction or damage of a physical structure or building. Arson: A crime that involves the destruction of a physical structure or item by fire. 177 Of the two crimes depicted above, which would be considered robbery and why? © iStock.com/4x6; 178 © iStock.com/stevecoleimages 179
- 223. Status Offenses Status offenses are acts that are considered illegal for only certain groups of offenders. Status offenses are most commonly committed by juveniles, and certain acts are defined as illegal only because of the offender’s age. Examples of status offenses include truancy (skipping school), underage consumption of alcohol, and running away from home. Historically, juveniles could be institutionalized for engaging in these illegal acts. Today, these acts can lead to intervention by the juvenile court. You’ll learn more about these offenses and the response to them by the juvenile justice system in Chapter 13. Status offenses: Refers to acts that are considered illegal for only certain groups of offenders based on their age. 180 Victimless Crimes
- 224. Victimless crimes are acts that are considered illegal under the law but do not involve victims in the traditional sense. In many cases, the offenders engage in acts that are harmful to themselves or that are consensual. For example, the use of illicit substances is considered illegal under the law. However, some question whether drug use is a victimless crime. As a stand-alone offense, drug use is harmful to an individual. However, addiction can have collateral consequences and lead to other criminal offenses to support a drug habit. Drugs can also have large-scale implications for communities. So it remains to be seen whether drug use is a victimless crime. Another crime that is often considered victimless is prostitution. Prostitution involves the exchange of sexual favors for money or other resources. While there are certainly acts of prostitution that are considered consensual, others involve the exploitation of individuals or compelling people to engage in sexual behaviors against their will (such as human trafficking). As with drugs, some scholars question whether prostitution is a victimless crime since some individuals may find
- 225. themselves turning to these acts out of economic necessity or addiction. Gambling is also considered a victimless crime as it involves a wager of money or other valuable goods in hopes of increasing one’s financial status. Unlike most criminal acts, gambling is a regulated business and is legal under specific circumstances. For example, certain forms of gambling are legal in states such as Nevada and New Jersey and are also allowed on tribal lands. However, gambling also occurs illegally and is considered a federal crime if the organization of gambling activities is part of a business. For example, it is legal to host a poker party in a private residence for your friends. However, if you charge a fee to play and end up making a profit on that fee or offer other gambling options in which the odds are in your favor (such as blackjack), then it is considered illegal. Recently, the U.S. Supreme Court held that a state, not the federal government, can determine whether sports betting should be legalized within that state (Murphy v. National Collegiate Athletic Association).8
- 226. Victimless crimes: Crimes that involve acts of self-harm or consensual behaviors. Drug use: A crime that involves the use of illegal or illicit substances. Prostitution: A crime that involves the exchange of sexual favors for money or other resources. Gambling: A crime that involves the wager of money or other valuable goods in hopes of improving one’s financial status. 181 Martha Stewart was convicted of obstruction of justice related to the sale of her shares of ImClone stock. She was sentenced to five months in prison and five months of house arrest. Though her case received extensive media attention, most white-collar cases do not. Why do
- 227. you think that is? New York Daily News Archive/New York Daily News/Getty Images 182 White-Collar Offenses The term white-collar crime describes a category of offenses that traditionally occur within corporate and related fields and includes a diverse range of criminal and civil offenses—fraud, embezzlement, corruption, insider trading, malpractice, misconduct, tech-based offenses, extortion, bribery, and deception.9 White-collar crimes are unique in a number of different ways from many of the other offenses that dominate our criminal justice system. First, white- collar crimes generally do not garner the same type of attention as street crimes. Second, white-collar crime usually involves significant amounts of
- 228. money. Offenders tend to be adults from middle-class and upper-class backgrounds who are often involved in large-scale corporate organizations. For example, the Enron energy scandal involved significant acts of corporate and accounting fraud, which led to inflated assets and stock profits for its natural gas and water utilities.10 Similarly, the recent mortgage industry meltdown involved several banks, including JPMorgan Chase, Bank of America, and Citigroup.11 Finally, white-collar crimes involve both criminal and civil law violations, although the criminal punishments typically involve significantly shorter sentences compared with traditional violent and property crime offenders. Several of the key players in Enron were sent to prison. Jeffrey Skilling, the ex-CEO of Enron, was originally sentenced to 24 years but later saw his sentence reduced to 14 years,12 while several others entered guilty pleas. Meanwhile, the settlements with the major banks in the subprime loan crisis
- 229. have been primarily limited to the financial arena.13 White-collar crime: Describes a category of offenses that traditionally occur within the corporate field. White-collar crimes often escape public attention because they are not violent events. However, these acts have significant financial costs to both individuals and the larger economy. Consider the example above involving the Enron scandal. Many people who invested their savings and retirement plans in Enron stock based on its inflated performance figures saw their investments crash, which subsequently jeopardized their financial safety. Generally speaking, the financial effects of white-collar crime outnumber all other crimes. Research indicates that street crimes such as violent and property crimes cost $17.6 billion annually. Certainly, this is a significant amount of money. However, compare these costs with the estimated $250 billion each year that is lost as a result of white-collar crimes (Figure
- 230. 3.2). In addition, white-collar crimes don’t stop when someone goes to prison because the 183 effects of this victimization are both widespread and long lasting.14 You’ll learn more about white-collar crime and its effects in the Current Controversy 3.1 debate at the end of this chapter. Figure 3.2 Estimated Cost of Crime 184 Crimes Against the Government Criminal acts against the government are typically punished under federal law. Examples of these acts include treason, espionage, and terrorism. The crime of treason refers to acts that
- 231. attempt to overthrow the government. Treason is noted as the cause of the first execution in the United States, when Captain George Kendall was hung at the Jamestown Colony in Virginia in 1608 for plotting to betray the British.15 Espionage occurs when an individual or a government obtains secret or confidential information. Unlike intelligence gathering, which is a legal practice of gathering data, acts of espionage typically involve the illegal search and seizure of information. Perhaps the most famous American icons of this crime were Ethel and Julius Rosenberg, who were executed in June 1953 for being spies for the Soviet Union during the Cold War. Despite their protests of innocence, they were convicted of conspiracy to commit espionage for passing top-secret information to the USSR about the atomic bomb.16 While these two crimes can sound very similar, espionage involves acting as a spy for or against the government, whereas treason refers to betraying one’s country by working against the government. Depending on the nature of their
- 232. actions, offenders can be charged with both treason and espionage. Treason: A crime that involves acts that attempt to overthrow the government. Espionage: A crime that occurs when an individual or a government obtains secret or confidential information. While crimes such as espionage and treason appear to be relics of history, the crime of terrorism occupies a significantly greater space in the mind-set of Americans. Acts of terrorism involve acts of violence with the goal of instilling fear within residents. Such acts are perpetrated in the name of a political objective. While most people primarily associate terrorism with the acts of September 11, 2001, the reality is that acts of terror are far more common than we perceive. Prior to the events of 9/11, the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, on April 19, 1995, by Timothy McVeigh and Terry Nichols was the largest act of terrorism on American soil. One hundred and sixty-
- 233. eight people were killed in the attack, and another 650 people were injured.17 Other significant acts of terrorism in the United States include the first bombing of the World Trade Center in 1993; the acts of Theodore Kaczynski, otherwise known as the Unabomber; and the Boston Marathon bombing. Acts of terror against Americans have also occurred abroad, such as the bombing of the USS Cole in 2000 and the 1988 midair bombing of Pam 185 Am Flight 103, which was en route from London to New York when it exploded over Lockerbie, Scotland. You’ll learn more about these events and the global response to terrorism in Chapter 14. Terrorism: A crime that involves acts of violence with the goal of instilling fear.
- 234. 186 Uniform Crime Reports In order to develop an understanding of the extent of criminal activity, it is important to look at how information about crime is gathered. While there is no one dataset that tells us everything that we want to know about crime, we can learn something from each source, as each represents a different point of view. Datasets vary based on the type of information collected (quantitative and/or qualitative), who manages the dataset (such as government agencies, professional scholars, or community organizations), and the purpose for the data collection. Finally, each dataset represents a picture of crime for a specific population, region, and time frame or stage of the criminal justice system. The Uniform Crime Reports (UCR) represent one of the largest datasets on crime in the United States. Since 1930, the Federal Bureau of Investigation
- 235. (FBI) has been responsible for collecting and publishing the arrest data from police agencies in the United States. These statistics are published annually and present the rates and volume of crime by offense type, based on arrests made by police. The dataset includes a number of demographic variables to evaluate these crime statistics, including age, gender, race/ethnicity, location (state), and region (metropolitan, suburban, or rural). UCR data give us a general understanding of the extent of crime in the United States and are often viewed as the most accurate assessment of crime. In addition, the UCR data allow us to compare how crime changes over time by comparing arrest data over a specific time frame or from one year to the next. Generally speaking, it is data from the UCR findings that are typically reported to the greater society through news media outlets, and they form the basis for headline stories that proclaim the rising and falling rates of crime. Uniform Crime Reports: One of the largest datasets on crime. Based on police arrest and reporting data.
- 236. 187 Data Collected The Uniform Crime Reporting program organizes its collection of crime data into two categories. Much of the focus of the UCR is on Type 1 offenses, also known as index crimes. Type 1 crimes include eight separate offenses that are divided into two categories: violent crime and property crime. Within the category of violent crime, data is collected on four crimes: murder, aggravated assault, rape and sexual assault, and robbery, whereas the category of property crime includes data on burglary, motor vehicle theft, larceny-theft, and arson. For each of these offenses, agencies report on the number of crimes known to the police, the number of arrests made, and the age, race, and sex of the offender. Arrest data is also collected on several lesser criminal events (known as Type 2 crimes). Definitions of each type
- 237. of crime for which data are collected under the UCR program can be viewed at https://www2.fbi.gov/ucr/cius2009/about/offense_definitions.ht ml. Type 1 offenses: Also known as index crimes under the Uniform Crime Reports. Includes eight specific crime categories: murder, aggravated assault, rape and sexual assault, robbery, burglary, motor vehicle theft, larceny- theft, and arson. 188 https://www2.fbi.gov/ucr/cius2009/about/offense_definitions.ht ml Most official crime statistics are based on arrest data. Here, a female is fingerprinted as part of the arrest process. Considering that not all individuals who are arrested are guilty of a crime, what are some challenges of using arrest rates to measure crime?
- 238. © Stockbyte/Thinkstock Images Rates of Crime 189 In addition to reporting the numbers of arrests, UCR data present the rates of crime. At the beginning of this chapter, you learned about how the number of murders in Chicago had increased, yet it had one of the lowest rates of crime in recent decades. A crime rate compares the number of occurrences of a particular crime with the size of the total population. Crime rates make it easy to understand trends in criminal activity and victimization over time, regardless of changes to the population. A crime rate is calculated by taking the number of crimes and dividing it by the population or the number of residents of a specific region. Then, take this answer and multiply it by 100,000. This will give you the standard rate of crime per
- 239. 100,000 individuals. Crime rates can be used to compare the number of crimes across regions of different sizes or even across different time periods. Crime rate: A calculation that compares the number of crimes with the size of the population. Allows for standardized comparisons across time and space. A review of arrest data from the UCR indicates that the rate of violent crime in 2016 was 386.3 per 100,000 inhabitants. While this represented a slight increase in the rate since 2014 (361.6), a review of data over a 10-year period demonstrates that the violent crime rate fell 19.4% between 2006 and 2016. We have also seen a reduction in the rate of property offenses. In 2016, the property crime rate was 2,450.7 per 100,000 individuals. Between 2014 and 2016, the rate of property crime decreased by 4.8%, and it has fallen 26.8% since 2006. In order to assess the reasons why these crimes have fallen, we need to take a deeper look at the individual offenses within the violent and property crime categories. Figure 3.3 illustrates the
- 240. UCR data for each of the index crimes. Here, we note that while all crimes demonstrated a reduction in their rates since 2006 (except for rape, for which the definition changed between those years), some crimes saw a greater decrease than others. For example, a .5% decrease in the murder rate (from 5.8 in 2006 to 5.3 in 2016) is equal to an 8.6% reduction. Meanwhile, a 44-point reduction in the rate of aggravated assault is equal to a 14.9% reduction in the crime rate. 190 Figure 3.3 Crime Rates for UCR Index Offenses, 2006 and 2016 References acts defined under the following: the carnal knowledge of a female forcibly and against her will. Attempts or assaults to commit rape by force or threat of force are also included; however, statutory rape (without force) and other sex offenses are excluded. As of January 1, 2013, the revised definition of rape
- 241. is “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a 191 sex organ of another person, without the consent of the victim.” Due to limited data, the UCR does not report statistics on rates of arson. Source: Federal Bureau of Investigation, Uniform Crime Reports, “Crime in the United States, 2016,” Table 1, https://ucr.fbi.gov/crime-in-the- u.s/2016/crime-in-the- u.s.-2016/topic-pages/tables/table-1. Data on Offenders UCR data can also give us information about the perpetrators of crimes. From this data, we learn that most offenders are White, male, and over the age of 18. Figure 3.4 illustrates the
- 242. differences between adult and juvenile offenders in arrests for index crimes. Here, UCR data show us that the most common crime, regardless of age, is larceny-theft. However, it is interesting to note that the proportion of certain offenses is greater for juveniles than it is for adults. For example, just over 8% of the arrests for the crime of robbery involve juvenile offenders under the age of 18. In comparison, robbery makes up approximately 4.7% of adult arrests. In contrast, arrests for the crime of aggravated assault involve a greater proportion of adults compared with juveniles (21.7% vs. 11.8%). Figure 3.4 Percentage of Arrests of Offenders by Age, Juveniles Versus Adults, 2015 Source: Federal Bureau of Investigation, Uniform Crime Reports, “Crime in the United States, 2015,” Table 41, https://ucr.fbi.gov/crime-in-the- u.s/2015/crime-in-the- 192 https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-
- 243. 2016/topic-pages/tables/table-1 https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.- 2015/tables/table-41 u.s.-2015/tables/table-41. The bar chart is titled Percentage of Arrests of Offenders by Age, Juveniles Versus Adults, 2015. The type of crime is plotted on the vertical axis and the percentage of arrests of offenders over and under 18 are plotted on the horizontal axis on a scale of 0 to 60% at 10% intervals. The data can be shown as a list below. For each type of crime two values are listed in order, over 18 and arrests of offenders under 18. All values are approximate. Murder or non-negligent manslaughter: 1%, negligible Rape: negligible, negligible
- 244. Robbery: 3%, 7% Aggravated assault: 22%, 12% Burglary:11%, 14% Larceny-theft: 55%, 56% Motor vehicle theft: 4%, 7% Figure 3.5 highlights the differences in offending categories with regard to sex. For both men and women, larceny-theft is the most common of the index crimes; however, it makes up a much larger proportion of offenses for women than it does for men. For women, larceny- theft represents 75% of all crimes, whereas for men it makes up 50.7%. Men are more likely to engage in every other offense category than women. For example, burglary makes up 13.4% of male offenses and 6.2% of female offenses. Robbery makes up 6.2% of male offenses and 2.0% of female offenses. 193
- 245. Figure 3.5 Sex Differences in UCR Index Offenses, 2015 Source: Federal Bureau of Investigation, Uniform Crime Reports, “Crime in the United States, 2015,” Table 42, https://ucr.fbi.gov/crime-in-the- u.s/2015/crime-in-the- u.s.-2015/tables/table-42. The figure is titled, Sex Differences in UCR Index Offenses, 2015. Data in the pie charts are given in the list below in the following order: Type of crime: no. of offenses by men; no. of offenses by women. Arson: 5,460; 1,342 Murder and non-negligent manslaughter: 7,549; 984 Rape: 16,990; 514
- 246. Motor vehicle theft: 47,169; 12,662 Robbery: 62,721; 10,509 Aggravated assault: 221,993; approximately 13% Burglary: 135,064; approximately 6% Larceny-theft: 511,557; approximately 75% Finally, the UCR measures race by five categories: White, Black, Asian, Pacific Islander, and 194 https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.- 2015/tables/table-42 American Indian/Alaska Native. The proportion of Asian, Pacific Islander, and American Indian/Alaska Native arrests is less than 2% for each crime. A review of these findings in Figure 3.6 indicates that Whites make up the majority of arrests
- 247. for six of the eight index crimes. Blacks represent a greater proportion of arrests for the two crimes of robbery as well as murder and nonnegligent manslaughter. Meanwhile, Hispanic/Latinos make up between 14.6% and 24.4% of offenders across all categories of crime, with aggravated assault comprising the greatest representation. Figure 3.6 Percentage of Arrests of Offenders by Race and Ethnicity, 2016 Source: Federal Bureau of Investigation, Uniform Crime Reports, “Crime in the United States, 2016,” Table 21, https://ucr.fbi.gov/crime-in-the- u.s/2016/crime-in-the- u.s.-2016/topic-pages/tables/table-21. The bar graph is titled Percentage of Arrests of Offenders by Race and Ethnicity, 2016. Percentage of arrests is plotted on the vertical axis and category of crime is plotted on the horizontal axis. Data can be shown in the table below. All values are approximate.
- 248. 195 https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.- 2016/topic-pages/tables/table-21 Limitations of the UCR While the UCR data can illustrate important trends in crime, the reporting of UCR data as the true extent of crime is flawed for the majority of the crime categories (with the exception of homicide), even though these data represent arrest statistics from approximately 95% of the population. Here, it is important to take several issues into consideration. First, the UCR data represent statistics on only those crimes that are reported to the police. As a result, the data are dependent on both what police know about criminal activity and how they use their discretion in these cases. If the police are not witnesses to a crime or are not called to deal with an offender, they cannot make an arrest. Arrests are the key variable for UCR data. This
- 249. means that unreported crimes are not recognized in these statistics. Sadly, many criminal acts are significantly underreported and therefore do not appear within the UCR data. These unreported crimes are known as the dark figure of crime. Sources such as the National Crime Victimization Survey or self-reported studies attempt to capture some of this data to provide a greater understanding of the total extent of crime in the United States. Dark figure of crime: Refers to unreported crime in official crime statistics. Second, the definitions of the crimes that are included within the UCR can be limited. Consider the category of forcible rape. Historically, the UCR defined forcible rape as “the carnal knowledge of a female forcibly and against her will.” This definition failed to capture the magnitude of sexual assaults, which may not involve female victims or may involve other sexual acts beyond vaginal penetration. In January 2012, the FBI announced a revised category to include crimes of rape and sexual assault with a
- 250. definition to include “the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”18 This new definition went into effect in January 2013. The new law not only allows for both males and females to be identified as victims or offenders but also allows the UCR program to include cases where the victim was either unable or unwilling to consent to sexual activity (for example, in cases involving intoxication). In addition, the new definition removes the requirement of force. As a result of these changes, the category of rape now captures a greater diversity of sexual assaults. This new definition is more in line with the variety of state laws related to rape and sexual assault. This change will help present a more accurate picture of the prevalence of rape and sexual assault in society.19 196
- 251. Forcible rape: The carnal knowledge of a female forcibly and against her will. Third, the reporting of the crimes to the UCR program is incomplete as only the most serious crime is reported in cases where multiple crimes are committed during a single criminal event. This is referred to as the hierarchy rule. These findings skew the understanding of the prevalence of crime since several different offenses may occur within the context of a single crime incident. For example, a crime involving physical battery, rape, and murder is reported to the UCR by the most serious crime, murder. As a result, the understanding of the prevalence of physical battery and rape is incomplete because these crimes are not counted. Hierarchy rule: Uniform Crime Reporting program rule that counts only the most serious crime. 197
- 252. Careers in Criminal Justice So You Want to Be a Research Analyst? Researchers play an important role in evaluating whether a criminal justice policy or program is effective. Depending on the environment that you work in, the job titles for this type of work include research analyst, research scholar, crime analyst, and criminal intelligence analyst. There are several different types of settings where you could perform this work. First, you could work for a college or university as a professor. Many institutions require full-time faculty to conduct research in addition to their teaching responsibilities. In order to pay for these research activities, faculty secure financial grants through foundations and government agencies. You might also work directly for a research center, foundation,
- 253. or government organization. In these settings, your primary role centers on reviewing data, analyzing the results, and publishing the data. For example, the Bureau of Justice Statistics, which is an agency within the Department of Justice, is involved in administering surveys about crime in a number of different settings, including jails and prisons. They also work with population data to determine how many individuals are housed in jails and prisons in a specific year or across several years. Research analysts might also work for a specific agency, such as a local police department. For example, the NYPD’s Office of Management Analysis and Planning employs several research analysts and data analysts. These positions work with data to analyze both existing and proposed law and policies. The education and training that is required to work as a research analyst varies depending on the type of agency
- 254. or organization. Most positions require that candidates have a significant understanding of statistics and other analytical tools. In some cases, these positions will require that you have an advanced degree, such as a master’s or doctoral degree. You may also need specialized training in things such as geographic information systems (GIS), crime mapping, and social network analysis. Since you will likely be writing reports on a number of issues, you’ll need to have strong writing skills as well. As the need for research on crime continues to grow, so will the need for people to work in applicable positions. If you are someone who likes to solve problems and assess which types of policies and practices offer the greatest success in responding to crime, this may be an ideal career for you. Fourth, the reporting of these data is organized annually, which
- 255. can alter our understanding of crime as police agencies respond to cases. For example, a homicide that is committed in one calendar year may not be solved with an arrest and conviction until the following calendar year. This might initially be read as an “unsolved crime” in the first year but as an arrest in the subsequent year. Finally, the participation by agencies in reporting to the UCR program has fluctuated over time. While there are no federal laws requiring agencies to report their crime data, many states today have laws that direct law enforcement agencies to comply with UCR data collection. However, this means that the analysts of crime trends over time need to take into consideration the number of agencies involved in the reporting of crime data. Failure to do so 198 could result in a flawed analysis of crime patterns over time.20
- 256. These flaws of UCR data can have significant implications for members of society about the understanding of crime data. Most of us get our information about crime from news headlines or other media reports. These 30-second clips about crime rates do little to explain the intricate nature of UCR data definitions and collection practices. Indeed, when the UCR program was first assigned to the FBI, early scholars commented, “In light of the somewhat questionable source of the data, the Department of Justice might do more harm than good by issuing the Reports.”21 199 National Incident-Based Reporting System In an effort to develop a better understanding of the extent of offending, the National Incident-Based Reporting System (NIBRS) was implemented in
- 257. 1988. Rather than compile monthly summary reports on crime data in their jurisdictions, agencies now forward data to the FBI for every crime incident. The NIBRS catalog involves data on 22 offense categories and includes 46 specific crimes known as Group A offenses. Data on 11 lesser offenses (Group B offenses) are also collected. Unlike the UCR program, which organizes its data into violent crimes and property crimes, the NIBRS divides its data into three themes: crimes against persons, crimes against property, and crimes against society. In addition to an increased diversity in the types of crimes that data are collected on, the NIBRS changed the hierarchy rule that was part of the UCR. This means that cases that involve more than one specific offense count toward all of the different offenses that are reported and not just the most serious event. In addition, NIBRS data are collected on both completed and attempted crimes. Overall, the NIBRS allows for a more comprehensive understanding of crime in the United States compared with the UCR.22
- 258. National Incident-Based Reporting System: System of crime data that offers expanded data categories of crime statistics. Removes the hierarchy rule of the UCR. 200 Data Collected Data from the 2016 NIBRS report demonstrate how incident- based reporting provides significantly greater detail of the types of crimes that are reported to police compared with UCR data. In addition to the greater number of offenses that are included in the NIBRS, the report includes information on the age, sex, and race of the offender and the victim as well as data on the location and time of day of the offense and the type of force and weapons used. However, the reporting of data to the NIBRS remains incomplete. In 2016, only 6,849 law enforcement agencies reported their crime data to the NIBRS.
- 259. This represents only one-third of those agencies that report to the UCR program. Table 3.1 illustrates data on the incidents, offenses, victims, and known offenders by offense category in 2016.23 Table 3.1 The actual number of incidents is 5,001,060. However, the column figures will not add to the total because incidents may include more than one offense type, and each 201 appropriate offense type is counted in this table. Victims represents the number of victims associated with each offense type. The term Known Offender does not imply the identity of the suspect is known, but only
- 260. that an attribute of the suspect has been identified, which distinguishes him/her from an unknown offender. The figures in the column Known Offenders do not include the 1,741,162 incidents with an unknown offender. Source: Federal Bureau of Investigation, Uniform Crime Reporting, National Incident-Based Reporting System, 2016, https://ucr.fbi.gov/nibrs/2016/tables/data-tables. A review of these data demonstrates how the NIBRS data paint a more detailed picture about crime. While there were 5.2 million incidents reported to police in 2016, there were almost 6.1 million offenses. This highlights that many criminal acts involved multiple offenses. At the same time, there were almost 6.4 million victims, indicating that some criminal acts involved multiple victims. We also learn that 4.9 million offenders committed these acts. This means that some offenders engaged in multiple incidents of crime. These are data that are not included as part of the Uniform Crime Reports.
- 261. The NIBRS data also provide a unique insight as to the conditions under which crime occurs. For example, we learn about relationships that victims have with their perpetrators. In 2016, 21.4% of offenses involved a family member as the offender, compared with 52.4% who were known offenders and 10.4% who were strangers. We also learn when crimes are likely to occur. Figure 3.7 illustrates the different times of day that offenses against people, property, and society occur.24 Across all three categories, NIBRS data indicate that crime is generally 40% to 50% higher between noon and 11:59 p.m. compared with between midnight and 11:59 a.m. For example, crimes against persons and crimes against society tend to fall during the middle of the night and steadily climb as the day progresses, with the highest levels of these offenses occurring between midnight and 1:00 a.m. In comparison, property offenses are much more varied throughout the day, with spikes occurring during the afternoon and again at midnight.
- 262. 202 https://ucr.fbi.gov/nibrs/2016/tables/data-tables Figure 3.7 NIBRS Crimes Against Property, Persons, and Society by Time of Day, 2016 Source: Federal Bureau of Investigation, Uniform Crime Reports, “2016 National Incident-Based Reporting System,” https://ucr.fbi.gov/nibrs/2016/tables/data-tables. The line graph is titled, NIBRS Crimes Against Property, Persons, and Society by Time of Day, 2016. Number of offenses are displayed on the vertical axis on a scale of 0 to 300,000. Time of day, at one hour intervals, are plotted on the horizontal axis. In general, the number of offenses against property were more than those committed against society or persons.
- 263. The trends for crimes against property are as follows. Between midnight and 12:59 am, 250,000 crimes have been reported following which there is a steep decline to about 75,000 between 1 and 1:59 am. The decreasing trend continues until 6 am after which there is a gradual increase to 190,000 between 8 and 8:59 am. 203 https://ucr.fbi.gov/nibrs/2016/tables/data-tables Limitations of NIBRS While the variability of NIBRS data is a great asset in understanding the extent and nature of crime in the United States, it remains an incomplete source due to the small number of agencies that are currently certified to submit their data. Hopefully, additional jurisdictions will be able to contribute to this rich data source as it provides a more comprehensive way of looking at offending data compared with the UCR. The
- 264. transition of agencies to the NIBRS has been slow, and the deadline for a full conversion is only three years away (with a target date of January 1, 2021). While the NIBRS is an improvement over the UCR program, this system still carries over a fatal flaw from the UCR in that both are limited to reported crimes. In spite of this, it is hoped that the improvements in official crime data collection will allow for an increased understanding of the extent of offending patterns. 204 National Crime Victimization Survey In contrast to the limitations of the UCR and NIBRS datasets, the National Crime Victimization Survey (NCVS) represents the largest victimization study conducted in the United States. National-level victimization data were first collected in 1971 and 1972 as part of the Quarterly Household Survey conducted by the Census
- 265. Bureau. In 1972, these efforts evolved into the National Crime Survey (NCS), which was designed to supplement the data from the UCR and provide data on crime from the victims’ perspective. The NCS was transferred to the Bureau of Justice Statistics (BJS) in 1979, and the BJS began to evaluate the survey instrument and the data collection process. Following an extensive redesign process, the NCS was renamed the National Crime Victimization Survey in 1991. National Crime Victimization Survey: The largest victimization study in the United States. Attempts to fill the gap of understanding between reported and unreported crime. 205 Around the World International Crime Data While the UCR, NIBRS, and NCVS are examples of official
- 266. data sources in the United States, there are several examples of international crime surveys that can shed light on the nature of crime in other countries. The Australian Bureau of Statistics (ABS) collects data on arrested individuals throughout Australia. Unlike the UCR program, which collects data on a calendar year basis, the ABS data cycle runs from July 1 to June 30. In 2016– 2017, 413,894 individuals ages 10 and older were processed by the police for eight different offenses (homicide, assault, sexual assault, robbery, kidnapping, unlawful entry with intent, motor vehicle theft, and other theft).a Another example of an official source of crime statistics is the annual report produced by the Bundeskriminalamt (Federal Criminal Police Office of Germany). The Bundeskriminalamt (BKA) statistics include data for all crimes handled by the police. In 2016, there were 6,372,526 crimes reported to the police, 3,584,167 of which
- 267. were considered “cleared” or solved. Violent crime represents only 3% of crime in Germany. The largest crime category is theft, which represents 37.3% of all criminal offenses. Men are much more likely to be considered a suspect by the police in these criminal activities—out of 2.3 million suspects, only 25.1% are women. Men are also more likely to be victims of crime; 59.9% of victims are male.b Australia’s and Germany’s crime statistics agencies are just two examples of official international data sources on criminal offending at the country level. Due to the differences in laws and reporting practices, it is difficult to compare such statistics at a global level. However, there have been attempts to collect basic informatio n on recorded crime across several jurisdictions. The United Nations Survey of Crime Trends and Operations of
- 268. Criminal Justice Systems (UN-CTS) compiles crime data from a variety of different sources, including the World Health Organization, Eurostat, and national police organizations from individual countries (to name a few). Its data indicate that there were 262,770 global victims of homicide reported to the police in 2015. El Salvador had the highest homicide rate with 108.64 murders per 100,000.c 206 Figure 3.8 Characteristics of Crimes Reported in Germany Data from the outermost to the innermost concentric circles are as follows: (1) 5,997,040 Crimes Reported; 46% unsolved; 54% solved (2) Violent Crime 3%; Theft 40%; Other 57% (3) Female Victims 40%; Male Victims 60%
- 269. (4) Female Suspects 25%; Male Suspects 75% 207 Critical Thinking Questions 1. How are statistics about crime in other countries similar to and different from data on crime in the United States? 2. What are the challenges in comparing international statistics on crime with the types of data that are available on crime in the United States? 208 Data Collected The greatest achievement of the NCVS lies in its attempt to fill
- 270. the gap between reported and unreported crime, described as the dark figure of crime. The NCVS gathers additional data about crimes committed and gives criminologists a greater understanding of the types of crimes committed and characteristics of the victims. Table 3.2 presents the different types of data that are included within the NCVS. In 2011, the NCVS interviewed 143,120 individuals age 12 and older in 79,800 households. Based on yearly survey findings such as this, the Bureau of Justice Statistics makes generalizations to the population regarding the prevalence of victimization in the United States.25 You’ll learn more about the extent of victimization and the benefits and limitations of the NCVS in Chapter 5. Table 3.2 209
- 271. Self-Reported Offending Datasets While much of what we know about offending comes from the UCR and the NIBRS, there are other sources of data available that can shed light on offending behaviors. These types of projects typically involve self-reported data and researchers asking people about the types of behaviors that they engage in. Generally speaking, these studies involve one of three populations: (1) studies of at-risk or general populations, (2) studies of offenders involved in the criminal justice process, and (3) convicted offenders who are incarcerated or are participating in a community-based sanction. Self-reported data: Refers to crime statistics that are based on personal disclosures. 210 Data Collected
- 272. Like the UCR, NIBRS, and NCVS, some self-reported studies are conducted on an annual or semiannual basis. The Youth Risk Behavior Surveillance System (YRBSS) began in 1991 and includes data on several categories of at-risk behaviors in youth. Organized by the Centers for Disease Control and Prevention (CDC), this study includes data from ongoing school-based studies as well as one-time national and special- population studies.26 In 2015, 15,713 questionnaires were completed in 125 public and private high schools (Grades 9–12) across the nation. Along with health risk behavior data, this study also includes measures of at-risk and offending behaviors. In 2013, 16.2% of students surveyed had carried a weapon at least once during the previous month and 4.1% had carried a weapon on school grounds. Boys (24.3%) were more likely to engage in these behaviors compared with girls (7.5%), and White males (28.0%) were more likely to carry a weapon compared with Black (17.6%) and Hispanic (0.2%) males. Almost a quarter of all students (22.6%) nationwide had been in a
- 273. physical fight at some point during the previous year, and 7.8% of students were involved in an altercation on school property. Youth Risk Behavior Surveillance System: Research study by the CDC that focuses on health and youth risk behaviors among high school students. Data is also collected on alcohol and drug use. Table 3.3 highlights some of the findings from this survey on the prevalence of teen use of controlled substances. Here, we learn that experimentation and use of illicit substances is quite common among the teen population. The most common substances used by youth are (1) alcohol, (2) marijuana, and (3) prescription drugs. Girls are slightly more likely than boys to have ever used alcohol (though the rates of current use are similar for both), while boys are more likely to have used hallucinogens and ecstasy. Use of these substances varies by race/ethnicity. While Whites are more likely to have a current history of alcohol use, Black youth are more likely to use
- 274. marijuana. Hispanic youth tend to use alcohol at the same rates as White youth and smoke marijuana at similar rates to those of Black youth.27 Table 3.3 211 Current use is defined as at least one experience in the past 30 days. Binge drinking is defined as five or more drinks in a row (within a couple of hours) at least once in the past 30 days. Self-report studies may also reflect offending behaviors over a period of time. These studies are referred to as longitudinal studies. Typically, these projects select their subjects based on the factors they are looking to study and then follow this group of individuals over a specific time period. One of the most influential longitudinal studies on
- 275. at-risk behaviors and youth is the National Youth Survey Family Study (NYSFS). The NYSFS began in 1976 and included 1,725 youth between the ages of 11 and 17 (and a parent) who were selected randomly from across the United States. In 2004, the NYSFS collected its eleventh wave of interviews. In addition to interviews with 70% of the original participants, it also included interviews with 71% of their parents, 71% of their current spouses, and 77% of their adolescent children. What once began as a snapshot of youth at-risk and offending behaviors has transformed into an understanding of behaviors throughout the lives of the study participants and their families. To date, the NYSFS has produced hundreds of publications on topics such as violence, substance use, and causes and correlates of delinquent and criminal behavior.28 Longitudinal studies: Self-report studies that investigate crime over a period of time. National Youth Survey Family Study: Longitudinal study of at-
- 276. risk behaviors and youth. 212 Limitations of Self-Reported Offending Datasets Self-reported studies such as these provide value as they measure things (both substantively and with particular detail) that are generally not provided by the official sources of data. Although these studies often assure subjects that their identities and responses will be kept confidential, there is no way to ensure that the people who participate in these studies will be truthful in their responses. In addition, not all self-reported studies use a random sample. Many draw upon convenience-based samples, such as students in a college classroom. This means that the results from these studies cannot be compared with the population at large. 213
- 277. Conclusion There are several ways to think about the prevalence of crime in society. Statistics about crime inform policymakers and the public alike. So the next time you are faced with the question of how much crime exists, remember to consider the following: What type of crimes are you looking for data on? Is there a particular stage of the criminal justice system that you are interested in? Are you interested in understanding rates of reported crime, unreported crime, or both? Are you looking for the presence of crime in a particular region? For a specific group of people? Or do you want to know about the estimated rates of crime for an entire population? Your answers to these questions and more will determine which type of data source you should look for. Each source of data has its own strengths and weaknesses that you will need
- 278. to keep under consideration. In many cases, you may pull together information from a variety of different sources to help answer your questions. Together, these types of crime data help us gain a better understanding of crime in society. 214 Current Controversy 3.1 Is White-Collar Crime Harmful to Society? —Henry N. Pontell, Gilbert Geis, Adam Ghazi-Tehrani, and Bryan Burton— Where do you stand? Cast Your Vote! 215 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-3/current-controversy-videos Introduction White-collar crime constitutes one of the more challenging
- 279. problems confronting law enforcement in the United States and, indeed, throughout the world. The core difficulty is that these offenses, by definition, are committed by persons who have power in the worlds of business, politics, or the professions. The status of white-collar criminals is reflected in biases in criminal codes that favor them. In addition, efforts to discover and penalize white-collar and corporate crimes are largely in the hands of persons with the same background and beliefs as those who are perpetrating the offenses. To a certain extent, answering the question of whether white-collar crime is harmful to society requires us to ask, what do we consider harmful? 216 CON: White-Collar Crime Is Not Harmful to Society
- 280. Crime is often defined as acts such as the traditional street offenses perpetrated by low-status offenders or, in other cases, crimes of violence against society. In defending this definition, criminologist James Q. Wilson indicated that excluding white-collar offenses from the discussions about crime “reflects my conviction, which I believe is the conviction of most citizens, that predatory street crime is a far more serious matter than consumer fraud [or] antitrust violations … because predatory street crime makes difficult or impossible maintenance of meaningful human communities.”29 White-collar offenses usually include acts such as forgery, embezzlement, and fraud. While one might consider these acts to be property crimes, information about these crimes is not included in the Uniform Crime Reports because these acts are not considered index crimes. Therefore, is it reasonable to assume that such acts are not considered as serious
- 281. compared with other crimes. While we can locate data on these acts through the National Incident-Based Reporting System, not all agencies report their crime statistics to the NIBRS, making it difficult to understand the prevalence of these acts in society.30 In addition, upper-class violators are not persons on the outer rim of society who commit burglaries and robberies in order to purchase another dose of an illegal drug or to secure funds to “keep the party going.”31 They are individuals and executives of entities who characteristically live in a style that is the envy of most of those of us who are less favored. They are likely to be well educated, which would presume that they are capable of making reasonably accurate linkages between causes and effects—that is, that they are or become aware that if they break the law and are caught doing so, this could possibly result in serious consequences for
- 282. their lifestyle and reputation and the well-being of their family. The question is this: Does the criminal justice system inherently create these differences by treating these offenders differently? Or is the system simply responding to the perception of harm caused by these acts? Given the current status of punishment in regard to these acts, one might assume that such acts are not as harmful as, say, other types of crimes. Perhaps the most appropriate word to describe the current state of policy in the United States with regard to individual and corporate white-collar crime is erratic. As far as can be determined, it was decided in high government circles during the last part of the Bush administration and during the Obama presidency that bringing criminal charges against prominent businesspeople who had done woefully aberrant things (including actions that resulted in the meltdown of the mortgage industry during the first decade of the twenty-first century), acts that
- 283. might reasonably be charged as criminal, was a matter best overlooked, since to prosecute them would undermine already skeptical views about those in power and the marketplace. In a major piece of investigative journalism, reports indicated that because of the seeming fragility of America’s financial system, Timothy Geithner, the secretary of the treasury and a former star player in the world of high finance, had persuaded prosecutors to ignore Wall Street crimes. The aim, the reporters wrote, was “a desire to calm markets, a goal that could be compromised by a hard-charging attorney general.”32 The most visible aspect of this approach was the use of civil suits launched by the Securities and Exchange Commission (SEC) against some of the more prominent malefactors and the companies they piloted. Bank of
- 284. America, for instance, agreed to a fine of $155 million for its failure to notify stockholders that its acquisition of Merrill Lynch also involved the assumption of millions of dollars awarded to more than 100 employees of the near- 217 defunct company. Yet none of the employees, including upper- level management, were held either civilly or criminally responsible. In its agreement to pay the fine, Bank of America insisted the court acknowledge that the payment did not indicate guilt, a traditional dodge aimed at helping a company prevail against later lawsuits. Given the perceptions of these acts in society and the response by the criminal justice system, these findings seem to suggest that acts of white-collar crime are not harmful to society.
- 285. 218 PRO: White-Collar Crime Is Harmful to Society Certainly, predatory street crimes net their perpetrators far less loot than the bonuses that are obtained by corporate executives whose businesses have virtually or actually gone bust. But corporate crimes can have long-term financial consequences. One could observe that the great economic meltdown made it exceedingly difficult or impossible to maintain meaningful human communities in areas where a barrage of foreclosures had been fueled by sales tactics that resulted in the subprime crisis; home owners lost their homes as a result of poor business practices. The lenders, who themselves profited handsomely, had readily unloaded the high- risk obligations on investment firms, which bundled them together and sold them to unwary investors.33
- 286. Consider one of the examples that was presented in the previous section. Bank of America agreed to a fine of $155 million. But what were the costs that resulted from its harmful practices? This is difficult, if not impossible, to measure, but we can look at some of the ripple effects. Unemployment rose, further making it impossible for home owners who had been gulled into absurd mortgage arrangements to meet payments. House values went “under water”—that is, a house often was not worth what the purchaser owed on it. This fueled a barrage of foreclosures. Banks became wary of making loans so that businesses that depended on such financing to meet payrolls gave up the ghost. Many of these legal actions were settled with financial payments but without any admission of wrongdoing. In a related case involving Citigroup, the judge asked rhetorically
- 287. why a company would pay a fine and, at the same time, insist that it was not guilty of having done anything that was against the law. Given the costs and consequences of these actions, should we devote greater attention to these crimes as they may cause greater harm than we realize? 219 Discussion Questions 1. Given the perceptions of these acts in society and the response by the criminal justice system, are acts of white- collar crime harmful to society? 2. Should we devote greater attention to these crimes? 3. At the end of the day, how do these acts compare with the violent and property crimes that dominate our criminal justice system?
- 288. 220 Current Controversy 3.2 Is Violent Crime on the Rise? —Vaughn Crichlow— Where do you stand? Cast Your Vote! 221 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-3/current-controversy-videos Introduction Citizens make choices that are often influenced by perceptions toward crime and criminality when faced with life’s major questions, such as “Where should I live?” or “Where will my children go to school? ”These perceptions shape ongoing discussions about safety, security, and the quality of life in America. We live in an era of deeply held
- 289. differences across political, racial, and cultural lines, and public officials often leverage the fear and distrust of citizens for votes. In such a climate, it can be difficult to discern fact from fiction. Although empirical information about crime is publicly available, it is often challenging for the average person to make valid conclusions about crime trends. For example, violent crime measures typically include homicide, robbery, rape, and assault but might not include shooting incidents in which the victims survived. Furthermore, homicides might be rising in several cities while also declining in others, and this could amount to a net decline in violent crime rates. How violent crime is defined, where it happened, and the time span in which it occurred are also important to consider. It is within this context that we consider whether violent crime is rising or declining. 222
- 290. PRO: Violent Crime Is Rising Since the 1930s, the FBI through its Uniform Crime Reporting (UCR) program has provided statistics on national crime trends based on data reported by police agencies. The UCR is a clearinghouse for data on crimes known to the police, and its composite measure for violent crime includes murder, nonnegligent manslaughter, forcible rape, aggravated assault, and robbery. According to the UCR, violent crime in America increased by 7% between 2014 and 2016, with a 20% increase in the homicide rate—from 4.4 to 5.3 per 100,000 residents. Between 2015 and 2016, there was a 4% increase—from 1,199,310 to 1,248,185 incidents, with a 10% increase in homicides. Chicago, St. Louis, and Baltimore are some of the major cities that experienced a rise in violent crime during this period.34 At the time of
- 291. writing, preliminary findings also revealed that homicides increased significantly in Charlotte and Baltimore in 2017.35 The National Crime Victimization Survey (NCVS) presents an alternative method for collecting data that helps address the dark figure of unreported crime by conducting a random survey of households. The NCVS noted that violent crime victimizations per 1,000 persons increased from 18.6 to 20.1 between 2015 and 2016. There is no consensus on the reasons for these crime increases. Some plausible reasons are the proliferation of firearms, sustained poverty, and gang violence in America’s urban centers.36 Another possible reason is that police are l ess willing to make arrests due to increasing public scrutiny in the aftermath of deadly encounters with African American residents. These controversial encounters have fanned the flames of public outrage and this has led to a crisis of confidence in police in which residents are less inclined to
- 292. cooperate with the police. As a result, police are less effective in investigating crimes. Potentially violent individuals might feel empowered to carry out their violent agendas in cities where the police have pulled back. It should be noted that the notion of a police pullback is purely anecdotal and there is no empirical evidence to support it. 223 CON: Violent Crime Is Not on the Rise There is a compelling alternative perspective that may lead one to conclude that violent crime is not on the rise. Despite the uptick in violent crime between 2014 and 2016, crime is still at a historical low when compared with where it was in the late 1980s. Furthermore, it can be argued that a two-year rise in violent crime rates is not a long
- 293. enough time frame to establish conclusively that violent crime is trending upward. One might also argue that concerns about crime should not be strictly based on national rates due to the limitations of crime statistics. This notion is highlighted by the possibility that more accurate reporting of crimes can impact crime statistics by erroneously showing a sudden spike in crime. The underreporting of crimes such as sexual assault, crimes against immigrants, and crimes occurring in cultural contexts in which residents view calling the police as futile might also impact crime trends. If residents, community groups, and organizations are encouraged to cooperate and partner with police in locales where community-oriented approaches are utilized, this might also lead to a net increase in calls for service and residents’ reporting of crimes. The Brennan Center for Justice projected that the violent crime rate for 2017 would be close to 2014’s rate, which was
- 294. actually the lowest recorded since 1990. The data are preliminary, but the overall crime rate in the 30 largest U.S. cities in 2017 was estimated to decline by 2.7%. Columbus, Ohio, and Washington, D.C., registered the largest drops with 11.8% and 23.5%, respectively.37 The overall decline in violent crime rates since 1990—a period of more than 25 years —is noteworthy. According to the UCR, violent crime increased steadily in the 1970s and 1980s, reaching a peak in 1990. Subsequently there was a significant decline that took many experts by surprise. Violent crime decreased by 48% between 1993 and 2016 based on the UCR, and this trend is also supported by the NCVS, which shows a violent crime decrease of 74% during this period. As stated earlier, the NCVS relies on self-reports rather than crimes known to the police. It is also an interesting research finding that more than half of registered voters believe that crime has
- 295. gotten worse. A majority of the population appears to have held the view that crime was rising in the United States in times when both violent crime and property crime were declining.38 This reflects the disjuncture between perceptions and reality as well as the role of mass media and social media in sensationalizing violent crimes and increasing citizens’ fear of crime. 224 Summary It is recommended that those interested in learning more about crime data reflect on the potential influence of social biases: Crime in micro places (street segments) can unfairly impact how entire neighborhoods are perceived. Deeply held perceptions toward crime and stereotypes about offenders can also influence attitudes about crime. These
- 296. considerations highlight the dangers of overgeneralizations. Furthermore, sensational 24-hour news coverage on events such as mass shootings, terrorist plots, and police-involved shootings of unarmed Black men can potentially create an exaggerated picture of crime in the minds of viewers. This is further complicated by allegations of “fake” or fraudulent news. Ultimately, in order to make valid conclusions about violent crime it is important to consider how the data were collected and analyzed and to determine whether agencies that interpret crime trends are free from political bias. 225 Discussion Questions 1. Do you agree that crime in the United States is rising? Explain your answer. 2. How could statistics lead residents and policymakers to
- 297. conclude that crime rates are increasing or decreasing? 3. What sort of issues should individuals consider when thinking about crime data? 226 Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Arson 46 Assault 45 Burglary 45 Crime rate 50 Dark figure of crime 54 Drug use 47 Espionage 49 Forcible rape 54 Gambling 47 Hierarchy rule 54
- 298. Larceny-theft 46 Longitudinal studies 60 Murder 44 National Crime Victimization Survey 57 National Incident-Based Reporting System 54 National Youth Survey Family Study 60 Property crimes 45 Prostitution 47 Rape and sexual assault 45 Robbery 45 Self-reported data 59 Status offenses 46 Statutory rape 45 Terrorism 49 Treason 49 Type 1 offenses 50 Uniform Crime Reports 49 Vandalism 46 227 http://edge.sagepub.com/mallicoatccj2e Victimless crimes 46
- 299. Violent offenses 44 White-collar crime 47 Youth Risk Behavior Surveillance System 59 228 Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. List the six general categories of crime and give an example of each. 2. Discuss how the Uniform Crime Reports and the National Incident-Based Reporting System provide an understanding about the extent of crime in society. 3. How do self-reported datasets provide valuable information about crime and offending behaviors that is not captured by official data sources?
- 300. 4. What are the strengths and limitations of the various datasets on crime? 229 http://edge.sagepub.com/mallicoatccj2e Learning Activities 1. Go to your state’s criminal law legal code. Select a crime and provide a definition of this act. Compare this definition with that from another state. What are the similarities and differences in how this crime is defined? 2. Go to the Uniform Crime Reports website. Select an offense and discuss how the occurrence of this crime has changed over the past decade. 230 Suggested Websites
- 301. Uniform Crime Reports: http://www.fbi.gov/about- us/cjis/ucr/ucr National Incident-Based Reporting System: http://www.fbi.gov/about- us/cjis/ucr/nibrs/2012 National Crime Victimization Survey: https://www.bjs.gov/index.cfm? ty=dcdetail&iid=245 United Nations Office on Drugs and Crime: https://www.unodc.org/unodc/en/data- and-analysis/statistics/data.html 231 http://www.fbi.gov/about-us/cjis/ucr/ucr http://www.fbi.gov/about-us/cjis/ucr/nibrs/2012 https://www.bjs.gov/index.cfm?ty=dcdetail&iid=245 https://www.unodc.org/unodc/en/data-and- analysis/statistics/data.html Student Study Site Review • Practice • Improve
- 302. edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 3.1 DJ Rogers: Crime/Statistical Analyst Criminal Justice in Practice 3.1 Hierarchy Rule SAGE News Clip 3.1 Harvey Weinstein Arraigned on Felony Sex Charges 232 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e
- 303. 233 4 Explanations of Criminal Behavior © iStock.com/Juhku 234 Learning Objectives Describe how theories of crime are developed Evaluate the contributions of classical, biological, and psychological perspectives of criminal behavior Identify the differences between macro and micro theories of crime Compare and contrast the different features of strain theory, differential association theory, and labeling theory
- 304. Discuss how social bond theory differs from other forms of macro-level theories of crime Discuss the contributions of contemporary theories of crime in understanding criminal behavior On December 14, 2012, Adam Lanza walked into Sandy Hook Elementary School in Newtown, Connecticut, and opened fire. In less than 11 minutes, he had shot and killed 20 children and six adults and wounded several others before turning the gun on himself.1 Fast forward to February 14, 2018, and more than 1,600 more mass shootings had occurred since Sandy Hook.2 On February 14, Nikolas Cruz went to Marjory Stoneman Douglas High School in Parkland, Florida, armed with an AR-15 semi-automatic rifle and pulled the fire alarm. As students and teachers entered the hall, he opened fire, killing 17 individuals and injuring 17 others.3 Another mass shooting occurred in 2017 in Las Vegas, when Stephen Paddock fired hundreds of
- 305. bullets into the crowd of the Route 91 Harvest Music Festival from the window of his hotel room at the Mandalay Bay. Fifty-eight people were killed and almost 800 were injured.4 With each tragedy, debates have been rekindled about issues such as mental illness and gun control. However, there have been few answers as to what has led these individuals to carry out such violent attacks. Reports indicate that Lanza was obsessed with mass-murder events, particularly those involving children. Although he was diagnosed with Asperger syndrome in 2005, there was no indication that he ever received any sort of mental health or other medical treatment.5 With Stephen Paddock, authorities remain puzzled. There was no suicide note or manifesto. Searches of his computer found hundreds of photos of child abuse and searches on explosives and SWAT tactics. He was also a
- 306. heavy gambler and had experienced bouts of depression and anxiety.6 In all three cases—Sandy Hook, Las Vegas, and Parkland—all of the weapons used were purchased legally. Despite significant debate and calls for action, very little was done on a policy level between the events of Sandy Hook and Parkland. However, since the shooting in Florida, students have participated in walkouts nationwide. Stores such as Dick’s Sporting Goods and Walmart have shifted their policies on gun sales. Recently, Florida lawmakers passed new gun control legislation that raises the legal age for purchasing rifles from 18 to 21 and imposes a three-day waiting period for the sale of all guns.7 235 © iStock.com/Allkindza
- 307. 236 What Is a Theory of Crime? Theories of crime help us understand what causes events such as the Sandy Hook tragedy. A theory refers to a set of ideas that is used to explain a particular phenomenon or concept. Criminologists look to theories to help explain what causes crime and, more specifically, why people engage in criminal behavior. Theories of crime are divided into two primary categories: micro and macro. Micro theories of crime focus on individual differences between law-abiding and law-violating behaviors. In contrast, macro theories of crime explore the large-scale social explanations for crime, such as poverty and community disorganization. Theory: A set of ideas used to explain a particular phenomenon or concept. Micro theories of crime: Focus on individual differences
- 308. between law-abiding and law-violating behaviors. Macro theories of crime: Focus on large-scale social or structural explanations of crime. This chapter begins with a discussion about the classical theories of crime. The chapter then explores biological and psychological explanations of crime, which historically have looked at factors like biology and genetics to help understand criminal behavior. This chapter also examines how external social factors such as poverty, family, and peers can help to explain crime. The chapter then moves to a review of some of the contemporary theories of crime, such as life course theory and feminist criminology. The chapter concludes with two Current Controversy debates. The first, by Kenethia McIntosh-Fuller, questions whether race and class can impact criminal behavior, and the second, by Robert Schug, asks whether mental illness causes crime. 237
- 309. Spotlight Theories and Research on Crime As a student of criminal justice, you’ll learn about different research studies that scholars engage in. These research studies aim to investigate the causes and correlates of crime in an attempt to better understand these behaviors. Crime is inherently a complex phenomenon. As a result, it can be very difficult to say what causes crime since causation implies that there is something that directly influences or is responsible for people engaging in criminal behavior. In contrast, many theories of crime investigate how different variables can be correlated with criminal behavior. Correlation means that two variables are linked together. When two variables are correlated, we will notice patterns; when one variable increases, so does the other. For example, the use of illegal
- 310. drugs is often correlated with crime. While the mere possession of these substances is, in and of itself, a crime, the majority of these discussions look at how addiction to illicit substances can lead to criminal activity. Economic explanations for this relationship suggest that addiction may lead individuals into criminal acts (such as property offenses) in order to finance their drug habits.a However, this does not suggest that all people who use drugs will engage in crime, nor does it mean that all property offenders have issues with substance abuse. So we can’t say that drug use causes crime (or the other way around), but we can say that there is a relationship between the two variables. Causation: Implies that there is something that directly influences or is responsible for people engaging in criminal behavior.
- 311. Correlation: Describes two variables or factors that are linked or related in some way. Sometimes, research attempts to test different relationships as a way to develop new theories of crime or to examine current theories of criminology in a different way. This process is called testing a hypothesis. A hypothesis frames a question that research is looking to answer. For example, a research study in criminology or criminal justice might pose the following hypothesis: As the number of arrests increases, the length of the prison sentence also increases. Here, the researcher is investigating whether there is a causal relationship between a defendant’s prior criminal record and the length of a prison sentence. Similar to a hypothesis is a research question. While a hypothesis follows an “if x happens, then y will occur” format, research questions provide a
- 312. path of inquiry to study. For example, a research question in criminology might ask, what are the effects of a criminal record on the likelihood of incarceration? While the presentation of a hypothesis and a research question varies, the intent is the same as each sets out a direction for the research study and may reference the anticipated results of the study. It is then left up to the researcher(s) and their findings to determine whether they proved or disproved their hypothesis or if the results of their study provided an answer to their research question. Hypothesis: Term that describes the research process that investigates if a factor or variable causes an outcome. Research question: Similar to a hypothesis but is not limited to investigating causation. Research questions provide a path of study or investigation.
- 313. As you learn about the various theories of crime and criminal behavior, keep in mind how research uses these 238 theories to understand criminal behavior. Even though the majority of our theories of crime were first developed during the nineteenth and twentieth centuries, scholars continue to test these theories in new arenas and new populations to determine how these theories can help explain criminal behavior around the world in the twenty- first century. 239 Critical Thinking Questions 1. Why is it important to consider theory when conducting research about crime?
- 314. 2. Why is it important to continue to investigate how different theories can explain crime in the twenty-first century? 240 Classical Theories of Crime The era of modern criminological theory is represented by two distinct schools of thought. The classical school began during the eighteenth century and was followed by the positivist school in the nineteenth century. The fundamental perspective of the classical school of criminology is that people engage in criminal behavior as a result of their own free will—that is, that people make a choice to engage in behaviors that are considered against the law. In contrast, the positivist school of criminology emerged out of a focus on the scientific method and involved a data-driven approach to understanding criminal
- 315. behavior. While the theories that arose from these specific models have been heavily critiqued over the past several centuries, the roots of these perspectives have had a significant impact on the development and reinforcement of contemporary explanations of crime. Classical school of criminology: Posits that people engage in criminal behavior of their own free will and that people choose to engage in illegal acts. Positivist school of criminology: Perspective that involves a data-driven approach to understanding criminal behavior. 241 Cesare Beccaria The works of Cesare Beccaria and Jeremy Bentham represent the most significant
- 316. contributions of the classical school of criminology. Beccaria (1738–1794) was a professor of law from Italy. His book, On Crimes and Punishment, is considered to be one of the first works on the study of penology.8 Penology is a subfield of criminology that specifically looks at the issues of punishment, incarceration, and rehabilitation. One of Beccaria’s greatest contributions was the pain–pleasure principle. Here, Beccaria posited that individuals choose their behaviors based on how much pleasure they derive from them. Similarly, he believed that experiences of pain would lead individuals to avoid other experiences. Beccaria’s pain– pleasure principle is linked to the notion of deterrence. The theory of deterrence suggests that people will avoid potentially pleasurable acts (such as criminal behaviors) if the pain or fear of punishment is significant. You’ll learn more about deterrence in Chapter 9. In his plea to revolutionize the punishment of criminals, Beccaria argued against the death penalty and the torture of criminals and suggested that offenders needed to be treated with care and
- 317. dignity. He argued for the use of citizen juries and eliminating bias in the sentencing and punishment of offenders. Not only did his arguments lead to significant reforms to the criminal justice systems in Europe; they also strongly impacted the development of the American criminal justice system. Penology: A subfield of criminology that focuses on punishment, incarceration, and rehabilitation. Pain–pleasure principle: Individuals choose their behaviors based on the amount of pleasure versus pain derived. Deterrence: Suggests that people will avoid potentially pleasurable acts if the pain or fear of punishment is significant. 242 Jeremy Bentham
- 318. While the principles expressed by Jeremy Bentham were similar to those of Beccaria, Bentham argued that the criminal justice system should take any mitigating factors into consideration when determining an appropriate punishment. For example, Bentham would argue that younger offenders should be treated differently than adult offenders as a result of their lower age, maturity, and decision-making abilities. He also suggested that lesser punishments can be equally, if not more, effective than extreme and harsh punishments. His most significant contribution to criminological theory came with the publication of his book An Introduction to the Principles of Morals and Legislation in 1789.9 In addition, Bentham is known for his development of the panopticon.10 The design of the panopticon is circular, and it is intended to be placed at the center of a larger complex. Here, the idea is to allow an individual or small group of people the ability to view the actions of the larger structure. One of the most unique features of the panopticon is its symbol ic
- 319. function. In the case of a prison environment, it was suggested that the mere presence of the panopticon would encourage good behavior as the inmates could only assume that they were being observed at any time. Panopticon: A circular structure placed at the center of a larger complex that is under surveillance, such as a prison. Allows an individual or small group of people to set up an observation point and watch over the larger surrounding area. 243 Jeremy Bentham’s development of the panopticon had a significant impact on the architecture of prisons. In this photo of Presidio Modelo, the most famous Cuban prison, the panopticon allows guards to observe a large number of inmates simultaneously. What effect might this have on inmate behavior?
- 320. © Friman/Wikimedia Commons. Licensed under GNU Free Documentation License, https://en.wikipedia.org/wiki/GNU_Free_Documentation_Licens e 244 https://en.wikipedia.org/wiki/GNU_Free_Documentation_Licens e Biological and Psychological Theories of Crime Biological and psychological theories of crime focus on the characteristics of an individual to explain criminal behavior. While biological theories of crime look at genetic characteristics to explain offending, psychological theories of crime explore how factors such as early childhood experiences, cognitive development, and personality characteristics can help explain criminality. While many of these works were introduced during the late nineteenth and early twentieth centuries, themes from this research have continued to
- 321. inspire scholars in recent decades. Biological theories of crime: Look at how genetic characteristics can be used to explain crime. Psychological theories of crime: Explore how characteristics related to childhood development, cognitive development, and personality can be used to explain criminal behavior. 245 Foundations of Biological Theories of Crime According to biological theories, crime occurs as a result of an inherited trait in an individual. To this extent, there is no action or free will of the individual to either engage in or desist from crime. Cesare Lombroso
- 322. The works of Cesare Lombroso are perhaps the best representation of these biological theories of criminal behavior. As a medical doctor from Italy during the nineteenth century, Lombroso argued that there were several distinctive physical features that could be used to distinguish criminal offenders from law-abiding citizens. Lombroso’s basic idea was that criminals are biological throwbacks to a primitive breed of man and can be recognized by various degenerative physical characteristics.11 Lombroso was the first to use the scientific method to explain criminal behavior. Unlike scholars before him, who approached the understanding of crime from a philosophical perspective, Lombroso collected extensive amounts of data to help support his theory. While Lombroso’s research has been highly criticized for how his data were collected (most of his subjects came from Italian prisons), his efforts led him to be recognized as the father of modern criminology.
- 323. 246 Italian scholar Cesare Lombroso was the first criminologist to use the scientific method to explain the causes of criminal behavior, but this did not always lead him to accurate conclusions. He speculated that there was a link between physical deformities and criminal behavior. Why is this problematic? 247 © Chronicle/Alamy Stock Photo William Ferrero Lombroso’s work was not limited to the male offender, and he joined forces with William Ferrero to investigate the nature of the female offender. Lombroso and Ferrero went to women’s prisons and noted the physical characteristics of the
- 324. incarcerated women. They attributed a number of unique features to the female criminal, including occipital irregularities, narrow foreheads, prominent cheekbones, and a “virile” type of face. While they found that female offenders had fewer degenerative characteristics compared with male offenders, they explained these differences by suggesting that women, in general, are biologically more primitive and less evolved than men. They also suggested that the “evil tendencies” of female offenders “are more numerous and more varied than men’s.”12 Female criminals were believed to be more like men than women in terms of both their mental and physical qualities, suggesting that female offenders were more likely to experience suppressed “maternal instincts” and possess fewer “ladylike” qualities. They were convinced that women who engaged in crime would be less sensitive to pain, less compassionate, generally jealous, and full of revenge—in short, criminal women possessed all of the worst characteristics of the female gender while embodying the criminal tendencies of the
- 325. male. 248 Foundations of Psychological Theories of Crime Like biological theories of crime, psychological theories of crime look at how individual factors can be used to explain criminal behavior. Psychologically based criminologists explain criminal behavior by individual factors such as deficiencies in early childhood socialization or experiences that lead to gaps in cognitive development. It is such gaps that these theorists suggest can explain why people commit crime. Psychological theories have also investigated how behaviors such as aggression, violence, and impulsivity are learned behaviors. Such theories also look at how mental disorders are related to criminality. However, psychological theories of crime still see criminal behavior as something that people are compelled toward, rather than an action of free will or rational choice.
- 326. 249 Careers in Criminal Justice So You Want to Be a Criminologist? Criminologists investigate a number of different topics, including the causes of crime, criminal behavior, crime prevention, and how society responds to crime. Since criminology is a diverse field, people who work in this area approach the study of crime from a number of different backgrounds, including sociology, psychology, criminal justice, economics, and biology. As a criminologist, you might be employed by a university, a government agency, a research institute, or a nonprofit organization. If you are employed by a university, chances are you might spend part of your day in a
- 327. classroom—in fact, many of your faculty members in criminal justice are also actively engaged in research on criminal justice issues. Many universities also have faculty members who devote all of their time to research. As a government employee, you might work for organizations such as the Bureau of Justice Statistics (BJS), which is part of the Office of Justice Programs. The BJS conducts a number of different surveys on issues such as the mental health of inmates in solitary confinement or sexual assault in juvenile detention facilities. It also produces an annual report on trends in corrections, such as the number of individuals who are sentenced to probation or who are admitted to jails annually. Think tanks like the RAND Corporation and the Urban Institute are also involved in research, such as evaluating whether police-worn body cameras reduce citizen complaints or whether the use of technology could improve parole supervision.
- 328. The education level needed for this job is dependent on where you will be working and the type of work that you will be doing. For those criminologists who teach at a college or university, the minimum degree is a master’s degree, though many academics have a doctoral degree (PhD). Most of these positions require a master’s degree or higher. In addition, specialized training in statistics and research methods is often part of the job requirement. Depending on the type of work that you are performing and your educational level and experience, the starting salary for these types of jobs ranges from $33,000 to $80,000. Sigmund Freud While his psychoanalytic theory was not specific to understanding criminal behavior, Sigmund Freud’s work on the unconscious mind is often used to help explain criminality from a psychological perspective. Freud argued that an
- 329. individual’s personality is based on three parts: the id, the ego, and the superego. The id refers to one’s instinctual wants and desires and is present at birth. The id does not have the ability to moderate itself, and, as we grow, the id must be controlled. In comparison, the ego is more realistic and represents the part of the personality that deals with cognitive decision- making skills. The ego is the rational thinker of one’s personality. If the id represents the passionate side of one’s personality, then the ego is the reflection of common sense and morality. Finally, the superego refers to the ability to create balance between the id and the ego. While the id is 250 present at birth, and the ego evolves as part of one’s development, the superego is the voice of reason. In many cases, this voice is instilled by influential individuals in our lives, such as parents, teachers, and other authority figures.
- 330. How can Freud’s concepts of the id, ego, and superego be used to understand criminal behavior? In some respects, the id can be thought of as the part of the personality that drives impulsive behavior. Given that many crimes are committed in the heat of the moment or are acts of opportunity, they would be considered to be driven by the id. In comparison, the ego is the side of the personality that would encourage law-abiding behavior, with the superego being the calculating rational thinker, making engaged decisions about whether to commit a crime.13 251 Contemporary Biological and Psychological Theories of Crime Since the days of Lombroso and Freud, several other biologically and psychologically based theories have emerged to help explain criminal behavior on an
- 331. individual scale. Psychological theories such as cognitive development theories were initially developed by Jean Piaget and later refined by Lawrence Kohlberg and colleagues. Cognitive development theories posit that offenders have failed to develop the capacity to make moral judgments. Cognitive development theories: Theories that suggest offenders have failed to develop the capacity to make moral judgments. Jean Piaget Piaget’s work identified four stages in the cognitive development of children. First, the sensorimotor stage refers to the first two years of life. During this stage, children learn about the world through their sensory explorations. The second stage is the preoperational stage, which lasts from age two to age seven. During this stage, children develop their language communication skills. They also build their imagination and play skills. It isn’t until the third
- 332. stage, the concrete operational stage, that children begin to develop their logic skills. They begin to understand how they relate to a larger community, such as a group of friends. They also begin to feel empathy for others. The concrete operational stage begins around age seven and lasts until age 11. Finally, the formal operational stage begins at age 12 and continues into adulthood. During this fourth stage, children increase their logic development and begin to explore deductive reasoning skills. They also begin to diversify their thought and identify multiple solutions to a problem.14 Lawrence Kohlberg The work of Lawrence Kohlberg applied Piaget’s theory of moral development to the study of criminal behavior. Their six stages of development can be grouped into three levels, each with two steps. Level one is the preconventional stage. Here, children develop obedience and are first introduced to the notion of punishment. They also begin to determine their own self-
- 333. interests. At this level, children may evaluate how they can avoid punishment. Level two is the conventional level. Here, youth identify with the social norms of law-abiding behavior and, as a result, avoid law-violating behaviors. Level three is the postconventional level. At 252 this level, young adults begin to consider their worldview in light of their own moral compass. Kohlberg and his colleagues found that youth who engaged in violent behaviors had significantly lower levels of moral development as illustrated by these three levels compared with youth who were not involved in acts of violence.15 Preconventional stage: Level one of Lawrence Kohlberg’s theory of cognitive development and crime. Refers to the stage when children develop obedience and are introduced
- 334. to the concept of punishment. Conventional level: Level two of Lawrence Kohlberg’s theory of cognitive development and crime, where youth begin to identify with the social norms of law-abiding behavior. Postconventional level: Level three of Lawrence Kohlberg’s theory of cognitive development and crime where young adults begin to consider their worldview in light of their own moral compass. Contemporary studies on the psychology of crime have influenced the criminal justice system in a number of ways. One area in which such theories have had an instrumental effect is our correctional system. While you’ll learn more about this in Chapter 11 of this text, two of the most significant contributions include the classification of offenders and the use of cognitive- based therapies. For example, the use of risk assessment tools to predict the behavior of offenders has altered not only the sentencing of offenders but also how they are supervised in
- 335. the community and how they are managed within a correctional institution. Biosocial Theories Just as psychological theories have evolved since the days of Freud, so have biological theories of crime. The works of Lombroso have inspired a new generation of biological and biosocial theories of crime. These individual-level theories began to reemerge following several decades of focus on sociological theories, which you’ll learn more about in the next section. In some cases, scholars have combined the knowledge of biological factors of crime, such as genetics, with the understanding of social environments. These modern perspectives do not identify biological factors as the sole cause of crime (as early biological theories did). Rather, these works investigate how biological traits can contribute to crime and, in many cases, how these factors interact with social environments to produce criminal behaviors. For example, a number of biosocial explanations of crime have focused on how variance in brain chemistry
- 336. can have an impact on criminal behavior. Here, scholars such as Adrian Raine and Diana Fishbein look at how variables such as neurotransmitters (chemicals that carry information to the brain)—for example, dopamine and serotonin—and hormones (like testosterone) can 253 impact behavior. Research has linked higher levels of testosterone with aggression and antisocial behaviors.16 Meanwhile, antisocial individuals are more likely to possess lower levels of serotonin.17 Both aggression and antisocial behavior are correlates of criminal behavior. Biosocial theories of crime: Combine features of biological theories of crime and how they interact with social environments to produce criminal behaviors.
- 337. Finally, research has also documented a relationship between environment and crime. One of the most studied variables in this realm is lead poisoning. During the 1920s, the use of lead paint increased. Similarly, from the 1940s to the 1970s, gasoline also contained high levels of lead. While we can’t conclude that spikes in violent crime during the 1930s and from the 1950s to the 1980s were a result of lead exposure, there is a corresponding pattern.18 Research has noted that exposure to lead, particularly for young children, can increase the risk of learning disabilities, behavioral problems, and attention- deficit/hyperactivity disorder.19 In 2015, the city of Flint, Michigan, was thrust into the national spotlight when it was discovered that the public water source (the Flint River) was heavily polluted by lead. Worse yet, documents indicate that government officials shifted to using the Flint River as a water source (versus Lake Huron, which is treated by anticorrosives)
- 338. in an effort to save money. Even once state officials learned that there were high levels of lead in the water, they failed to do anything about it.20 Given what we know about lead exposure, will we see increased harm to a community that is already challenged by poverty and crime in future decades? You’ll learn more about the challenges that communities such as Flint experience later in this chapter. 254 Sociological Theories of Crime Biological and psychological theories focus on individual acts of crime. As a result, punishment for crime deals with how we can treat or reform an individual. These types of theories are considered micro-level theories. In contrast, sociological theories of crime are macro-level theories in that they look at how larger social structures, such as environments
- 339. and institutions (for example, schools, peer groups, and the family), can help explain criminal behavior. Sociological theories of crime: Macro-level theories that look at how larger social structures can help explain criminal behavior. 255 Social Disorganization Theory Social disorganization theory investigates how neighborhood environments contribute to criminal behavior. Using the city of Chicago as their laboratory, Robert Park and Ernest Burgess suggested that as cities grow and prosper, residents are either forced out of the business zones or choose to exit in an effort to escape the chaos of city life.21 This, in turn, leads to a deterioration of inner-city communities. Their work
- 340. provided the foundation for Clifford Shaw and Henry McKay’s discussion of social disorganization as an explanation for criminal behavior.22 Shaw and McKay demonstrated how the expansion of factories in Chicago during the 1920s and 1930s, coupled with the rise of immigration and the creation of suburban communities for upper- and middle-class families, led to a breakdown in traditional communities. The communities around these factories were often the most affordable places to live and were often dominated by workers and those new to the area and in search of employment. This constant turnover of residents meant limited opportunities to develop a sense of community culture. Those who could afford to do so moved out of the area. As factories continued to expand, the migration of new residents into these working- class areas increased, and, at the same time, the exit of those with greater financial resources accelerated. This led to a lack of community cohesion, and criminal behavior began to rise as a result.
- 341. Social disorganization theory: Theory that investigates how neighborhood environments contribute to criminal behavior. Social disorganization theory is a reflection of how crime is related to socioeconomic status, particularly for lower-class communities. Unlike previous theories of crime that focused on an individual’s biological or psychological characteristics to explain offending, social disorganization theory was one of the first efforts to look at the effects of social structures on crime. If we think of communities as a reflection of commonly shared values and norms for behavior and believe that these values help guide individuals toward law-abiding behavior, what happens when a community lacks cohesion? When a community is characterized by a state of frequent migration, people don’t get the opportunity to know their neighbors and to develop networks, which, in turn, leads to a breakdown in the informal social controls that can help prevent crime. Figure 4.1 illustrates how these sorts of
- 342. factors can lead to social disorganization and its link to criminal behavior. 256 Figure 4.1 Shaw and McKay’s Theory of Social Disorganization 257 What elements of social disorganization are evident here? Based on social disorganization theory, do you think crime rates in this neighborhood would be low, average, or high? © AP Photo/Al Behrman 258 Spotlight
- 343. Flint, Michigan, and Social Disorganization Theory The city of Flint, Michigan, is located 66 miles northwest of Detroit. During the 1960s, Flint was the second- largest city in Detroit, with almost 200,000 residents, and stood as an economic and political powerhouse in the state. As the home to numerous automotive factories, Flint was a town of employment, growth, and prosperity. However, beginning in the late 1960s, the city started to suffer from deindustrialization and urban decay. People began to leave the city as the factories began to close. Once a region dominated by companies such as General Motors (which in 1978 provided jobs to more than 80,000 individuals in the region), changes to the automotive industry resulted in a significant hit to the city’s employment rate. Today, fewer than 8,000 people are employed in this field.
- 344. The changes to the city were reflected in a mass exodus of middle-class communities from Flint. Such a phenomenon is not unique, and similar patterns emerged in other cities that saw a reduction in blue-collar jobs. Similar to the movement of communities from Chicago as described by Shaw and McKay in the 1920s and 1930s, the urbanization of the city and surrounding region reflected a time of rapid growth. Today, the population density in Flint is much greater than other parts of the state (3,065 residents per square mile, compared with 174 persons per square mile statewide). Alas, the downturn of the economy meant that people were soon left with an area where there was little social structure to help promote a positive community. Poverty and inequality soon became the new neighbors in the city. For example, the median household income in Flint today ($26,339) is nearly half of the per capita income for the
- 345. state ($48,471). Many of the residents in Flint live below the poverty line (39.7% in Flint, compared with 16% statewide). The median value of a Michigan home is $128,600, but the median value of a Flint home is $50,500. Finally, the educational level of Flint residents further differentiates them from other state residents; while 25% of state residents hold a bachelor’s degree or higher, only 11% of Flint residents do so. Considering that these shifts have occurred over less than four decades, the effects have been significant for the community. The effects of these experiences are reflected in the high levels of crime and violence in the region. Since 2007, Flint’s violent crime rate has been in the top five among cities of 100,000 or more, and the city has been ranked number one since 2011. In addition, it has been ranked as the sixth most violent city for women, had the highest
- 346. per capita murder rate in the country (2012), and had the most per capita arson fires in the United States (2011). Aside from the issue of crime, Flint can be found in the top 100 cities with the oldest houses, the top 100 least educated cities, and among cities with the highest number of infant deaths. Looking at the city of Flint today through the lens of social disorganization, the shift in the economic climate of the city plays a significant role in the rise of crime and violence. Indeed, the change has been significant—what were once fields of wild raspberries or calm middle-class areas only four decades ago are now a region replete with crack houses in which gunshots ring out near parks and schools. Although community leaders work to bring the residents together, there has been a mass exodus of educated individuals who can afford to move to other regions. This, combined with a pervasive state of poverty, the number of
- 347. dilapidated buildings, and a population that is one of the largest for the region, makes it difficult to establish a cohesive community. It is this type of social disorganization that Shaw and McKay suggested creates a breeding ground for criminal behavior. 259 260 Critical Thinking Questions 1. What makes communities such as Flint, Michigan, ideal examples of social disorganization theory? 2. Based on this theory, how can cities like Flint reduce their crime rate?
- 348. 261 Anomie and Strain Theories of Crime Strain theory focuses on stress and frustration as a cause of criminality. Within strain theory, there are a number of theoretical perspectives, each of which differs on the causes of this stress and frustration. Despite these differences, they all begin with the works of Robert Merton as their foundation. Strain theory: Focuses on stress and frustration as a cause of criminality. Robert Merton’s theory of strain was heavily influenced by Émile Durkheim’s concept of anomie. Anomie refers to a sense of normlessness that societies experience as a result of a breakdown in the social cohesion of society. Individuals experience anomie when they lack guidance and structure for appropriate social behaviors. Here, criminal behavior is a
- 349. consequence of anomie.23 Anomie: Theory that refers to a sense of normlessness that societies experience as a result of a breakdown in social cohesion. According to Robert Merton, people experience strain when the socially approved goals do not mesh with the socially approved means to achieve those goals. Merton identified five different categories within his theory. The conformist is someone who accepts both the socially approved goals and the means to achieve them. Even though they may not always be successful in their quest, these individuals remain commi tted to this path by working hard to achieve success in their lives. A ritualist is someone who rejects the socially approved goals but engages in the processes that society mandates. Ritualists resign themselves to a particular life, in that they likely won’t achieve high levels of wealth and status, thereby relieving strain. Conformists and ritualists are generally law-abiding individuals.
- 350. In comparison, Merton’s three other categories (the innovator, the retreatist, and the rebel) are more likely to engage in crime. An innovator is someone who embraces the socially approved goals but rejects the means to get there. The common example of an innovator is a drug dealer. This person wants the fruits of success in his or her life, such as money and status, but is either incapable of or not interested in doing what society says one should. Instead, the innovator finds a different way (even if it breaks the law) to get what she or he wants. A retreatist isn’t interested in traditional measures of success, nor is this person willing to engage in hard work. Rather, these individuals tend to remove themselves from society entirely. For example, someone who 262 engages in heavy drug use as a method of escape would be considered a retreatist. Finally, the rebel is someone who, in rejecting socially approved goals and
- 351. means, develops new goals and means.24 Conformist: Conformists are people who accept both the socially approved goals and the means to achieve them. Ritualist: Someone who rejects socially approved goals but engages in the processes that society mandates. Innovator: Someone who embraces the socially approved goals but rejects the means to get there. Retreatist: Someone who is neither interested in the traditional measures of success nor willing to engage in hard work. Rebel: Someone who rejects both the socially approved goals and means and replaces them with alternatives. General Strain Theory While several theorists have made contributions to understanding how an individual’s
- 352. aspirations collide with the goals of society, the works of Robert Agnew represent perhaps the most modern of these applications in terms of criminal behavior. While traditional theories of strain focused on the structural limitations of success, Agnew’s general strain theory looks into individualized psychological sources as correlates of criminal behavior (Table 4.1). Agnew highlights three potential sources of strain: (1) failure to achieve positive goals, (2) the loss of positive influences, and (3) the arrival of negative influences.25 In particular, strain- inducing events are most likely to lead to criminal behavior if they “1) are seen as unjust; 2) are seen as high in magnitude; 3) are associated with low social control, and 4) create some pressure or incentive to engage in criminal coping.”26 General strain theory: Looks at individualized psychological sources as correlates of criminal behavior. Table 4.1
- 353. Research on strain theory highlights that some individuals are more likely to engage in 263 criminal and delinquent behaviors than others as a result of their experiences with strain. For example, juveniles who experience strain within their relationships with their families, schools, and neighborhoods are more likely to engage in delinquent acts.27 African Americans also experience strain in ways that are unique to their community. Efforts to cope with such strain may lead to increased risks for crime and delinquency. For example, victimization rates are higher in communities of color. This is particularly true for cases of violent victimization. These experiences of victimization impact not only individuals but also larger social groups such as families and communities. Fighting back against victimization
- 354. becomes a way to deal with strain and, in turn, can lead to increased risks of offending.28 General strain theory can be used to explain gender differences in crime. Girls are more likely to experience strain as a result of violence in the home (physical, emotional, and sexual), which, in turn, leads to delinquent acts such as running away and substance abuse. Second, boys and girls respond to strain differently. While strain can manifest as anger for both boys and girls, they exhibit this anger in different ways. For example, girls are more likely to internalize their feelings of anger, which can lead to self- destructive behaviors and depression. In contrast, boys tend to exhibit anger in physical and emotional outbursts.29 264 Differential Association Theory
- 355. Differential association theory focuses on the influence relationships have on crime—in particular, the influence of peer relationships on delinquent behavior. Developed by Edwin Sutherland, differential association theory is influenced by social learning theory. Differential association theory posits that learned behaviors about crime and delinquency are a result of peer associations. As youth spend time with people, these people then influence their knowledge, practices, and judgments of delinquent behavior. The more a person is exposed to delinquent attitudes and behaviors, the more they influence that person. Differential association theory: Focuses on how relationships, particularly peer relationships, influence delinquent behavior. Sutherland identified nine key principles for his differential association theory (Table 4.2). Each of these principles reinforces the idea that criminal behavior is a learned behavior. This perspective was a significant departure from many of the other
- 356. theories about crime during this time period as they were more likely to identify crime as an inherent or biological trait. Table 4.2 Since Sutherland first published his theory of differential association, there has been a substantial body of research highlighting the importance of peer relationships in crime. Recent research has highlighted how demographic factors such as race, ethnicity, and gender can impact how peer relationships affect delinquent behavior. For example, as girls spend more time with their delinquent peers, their likelihood of engaging in delinquent behaviors increases.30 Meanwhile, other research indicates that the effect of delinquent relationships is stronger for males than females.31 However, there have also been criticisms of differential 265
- 357. association theory. One of the key criticisms involves the temporal order of criminal behavior. In this instance, it can often be difficult to determine whether an individual engages in crime because of her or his association with delinquent peers or whether someone seeks out like- minded individuals as a result of becoming involved in criminal behavior. Differential association theory suggests that criminal behavior is learned. Peer relationships represent one of the primary ways in which delinquent behaviors are shared among youth. What assumptions about causation does this theory make? © iStock.com/grandriver 266 Labeling Theory
- 358. Labeling theory focuses on how people react to criminal behavior. In many ways, labeling offenders allows society to separate the law-abiding individuals from the deviant and delinquent ones. Edwin Lemert popularized labeling theory by creating a framework for understanding how people are labeled as delinquent or criminal and how this label can impact future behaviors. He distinguished between two different types of behaviors: primary deviance and secondary deviance. Primary deviance refers to minor acts that are often not serious. However, these acts are brought to the attention of police and the courts. As a result, the individual is labeled an offender. As the label of delinquent or criminal carries a negative association in society, an individual may then adopt this new identity. This process is known as a self-fulfilling prophecy. As a result, the individual, who may not have been engaging in serious acts initially, may subsequently be drawn to these negative behaviors. Here, the assumption becomes this: “Well, if I’m going to be looked at in a negative way, I might as well embrace it.” In turn, individuals can find themselves
- 359. engaged in acts of secondary deviance, which may often increase in frequency or severity.32 Labeling theory: Focuses on how being labeled as delinquent or criminal can influence future behaviors, regardless of the accuracy of the label. Primary deviance: Refers to minor acts that are often not serious yet result in being labeled as an offender. Self-fulfilling prophecy: Describes the process whereby individuals who may not have been engaging in serious acts initially may subsequently be drawn to these negative behaviors as a result of being labeled as an offender. Secondary deviance: Refers to acts of deviance that occur as a result of assuming the identity of a label. 267
- 360. Social Learning Theory According to Albert Bandura, social learning theory suggests that people learn from observing the behaviors of others around them. This is referred to as modeling—“from observing others one forms an idea of how new behaviors are performed, and on later occasions this coded information serves as a guide for action.”33 Bandura also suggested that there are multiple reinforcements of learning behaviors. Just as the larger social environment can reinforce the learning experience, there are also internal intrinsic rewards, such as experiencing personal satisfaction or pride from learning a new behavior. However, it is important to note that just because a behavior is learned, that doesn’t mean that it will result in a change in behavior. We can think about these concepts in relationship to crime in the following way. Consider how popular culture can influence behavior as individuals mimic or model acts that they see on television, in movies, and even in music lyrics and video games. If
- 361. such behaviors are perceived by some as “cool” or “popular,” this can impact how people weigh out the costs and rewards of illegal activity. Another example is through peer relationships. If your peers are involved in shoplifting and you want to be accepted by your peers, then the intrinsic rewards of being part of the group can outweigh the moral concerns about breaking the law. Ron Akers and Robert Burgess refer to this process as differential reinforcement. Differential reinforcement looks at behavior as a balance between increasing the rewards that come with engaging in deviant or criminal behaviors and minimizing the potential consequences and punishments. We learn this balance as a result of our relationships with those around us, such as parents and peers.34 While differential reinforcement is an adaptation of Sutherland’s differential association theory, it has been criticized for not acknowledging the differences between individuals and how such differences might alter the process of reinforcement in group settings.
- 362. Social learning theory: Suggests that people learn from observing the behaviors of others around them. Modeling: New behaviors are learned from observing others. Differential reinforcement: Theory that looks at behavior as a balance between increasing the rewards that come with engaging in deviant or criminal behaviors while minimizing the potential consequences and punishments. 268 269 Social Bond Theory While most theories up to this point have focused on why offenders engage in crime, Travis Hirschi’s work was unique in that he looked for explanations as to why people might desist
- 363. from criminal behavior. His social bond theory focused on four criteria, or bonds, that prevent people from acting on potential criminological impulses or desires. He identified these bonds as (1) attachment, (2) commitment, (3) involvement, and (4) belief. Attachment refers to the bond that people have with family, friends, and social institutions (such as government, education, and religion) that may serve as an informal control against criminality. Hirschi posited that people refrain from criminal behavior as a result of these attachments because they do not want to disappoint people in their lives. For example, youth who have positive attachments to parents or peers may limit their delinquent behavior because they do not want to disappoint these important people. The second concept, commitment, refers to the investment that an individual has in the normative values of society. In many ways, the concept of commitment embodies the spirit of rational choice perspectives. For example, if one is committed to obtaining a college degree, and a violation of the law might limit the ability to achieve that goal, one might decide not to engage in
- 364. illegal behavior out of fear of jeopardizing one’s future. Involvement refers to the degree to which one participates in conventional activities such as studying or playing sports. The idea behind involvement is that youth who are more involved in these sorts of activities are less likely to engage in delinquent activities. Finally, belief refers to a general acceptance of the rules of society—“the less a person believes he should obey the rules, the more likely he is to violate them.”35 Social bond theory: Focuses on why people might desist from criminal behavior. 270 Hirschi’s social bond theory suggests that attachment to conventional activities such as school or sports can serve as a protective factor against delinquency. Which of the four bonds could involvement in a sports team strengthen?
- 365. © iStock.com/FatCamera 271 Control Theory While Hirschi’s social bond theory is considered a macro-level perspective on criminal behavior, his general theory of crime (with Michael Gottfredson) is considered more of a micro-level theory. Gottfredson and Hirschi focus on self- control as the single explanatory factor for delinquent and criminal behavior. According to the general theory of crime, those individuals with high levels of social control will remain law abiding while those with low social control will be more likely to engage in deviant and criminal activities. But the question remains: What influences an individual’s self-control? Gottfredson and Hirschi posit that the development of self-control is rooted in the family. The more involved parents are in their
- 366. children’s lives, the more likely they are to be aware of challenges to the development of their children’s self-control. This awareness then leads to action, and parents are more likely to correct these issues at a young age. As a result, Gottfredson and Hirschi’s general theory of crime suggests that early intervention efforts are the only effective tool to deter individuals from crime. From their perspective, variables such as gender, race, and class are irrelevant as everything comes down to self-control.36 General theory of crime: Focuses on self-control as the factor that explains delinquent and criminal behavior. 272 Around the World Criminological Theory in a Global Context Explanations of crime and criminal behavior are not limited to American soil. Indeed, many of our criminal
- 367. justice processes originated in the United Kingdom (UK), continental Europe, and Australia. At the same time, the experiences of crime in the United States and our justice system have influenced systems around the world. The same is true for understanding criminological theory. Many of the early criminologists wrote in Europe. For example, Cesare Lombroso was an Italian criminologist during the nineteenth century, and Michel Foucault was a French philosopher whose works during the mid-twentieth century had a significant impact on modern penology. While Adrian Raine is currently a professor in the United States, he was raised and trained in psychology in the UK. In addition, the work of understanding criminal behavior looks at both national and international populations. For example, research on social bonds among Turkish youth
- 368. indicates that these bonds have a stronger effect on the lives of female students. Given the heightened status of the family within Turkish culture and differences in gender socialization between adolescent boys and girls in this region, it is not surprising that girls would be highly attached to the family unit. For boys, educational bonds, such as an attachment to teachers, are a stronger influence in preventing delinquency.a Research on labeling theory in China demonstrates that labeling someone a delinquent can actually have positive effects because the stigma is a deterrent. As a result, a negative label can actually be a tool for rehabilitation. In addition, the effects of labeling are not limited to the individual but extend to the family and the general community. Consequently, there are significant sources of support for individuals to move away from a criminal
- 369. identity. In this manner, families, neighborhoods, and schools are all active participants in cases of crime and delinquency.b A final example of using criminological theory in an international context is the application of strain theory in a study of South Korean adolescents. The findings of this research indicate that stress related to academic performance on an exam and emotional and physical abuse by teachers are two significant sources of strain for these youth. Even though these pressures are meant to encourage student success, they can have the opposite effect and encourage delinquent behaviors.c 273 Critical Thinking Questions 1. Why is research on theories of crime in international contexts
- 370. important to consider? 2. What are the challenges of using theory to understand criminal behavior in different countries? What are some of the other factors that you need to consider in this type of research? Since the development of Gottfredson and Hirschi’s general theory of crime, many researchers have looked at the role of gender in this process using constructs such as impulsivity, risk-taking, and aggression as indicators of self- control. These findings demonstrate that the general theory of crime can explain the delinquency of boys but fails in its explanation for girls. For example, research on delinquent youth housed in the California Youth Authority indicates that while self-control measures are effective in predicting behavioral violations for incarcerated males, the misconduct in girls is more likely to be explained by other variables, such as age (younger girls are more likely to act out) and the
- 371. presence of a psychiatric disorder.37 The offense type can also make a difference in the role of self-control. While low self-control did predict offending behaviors for Latino boys and girls in terms of violent offenses, it did not predict the behaviors of girls who engaged in property offenses (which generally compose much of female offending patterns).38 274 Contemporary Theories of Crime 275 Life Course Theory While most theories look at a particular stage in life to explain delinquency and criminality, life course theory looks at how these behaviors begin during
- 372. adolescence or young adulthood and either persist or desist throughout one’s life. It also examines the factors or life events that may encourage these shifts in behavior. One of the most well- known theories within this field is Robert Sampson and John Laub’s age-graded developmental theory (Figure 4.2).39 Sampson and Laub’s framework suggests that the events of one’s life (from birth to death) can provide insight as to why one might engage in crime and highlights the importance of adolescence as a crucial time in the development of youthful (and ultimately adult) offending behaviors. Here, ties to conventional adult activities, such as family bonding and work, can serve as a protective factor in adulthood, even if the individual has engaged in delinquent acts during adolescence. Sampson and Laub suggest that it is a matter of how much social capital or how many positive relationships one has that can determine whether people continue to engage in crime or end up in a law-abiding lifestyle.
- 373. Life course theory: Looks at how delinquent behaviors either persist or desist throughout one’s life and how life events might encourage shifts in behavior. Age-graded developmental theory: Explains how one might engage in crime as a result of one’s life events. Figure 4.2 Sampson and Laub’s Age-Graded Theory The infographic is titled, Sampson and Laub’s Age-Graded Theory. High-risk trajectory has the following path from early childhood to late adulthood: 1. Early childhood 1. Low SES, low IQ, difficult temperament, family disruption 2. Adolescence 276
- 374. 1. Poor bonds to parents and school 1. Negative social capital 2. Serious delinquency 3. Early adulthood 1. Poor marriage, poor job 1. Negative turning points 2. Continued offending 4. Late adulthood 1. Gradual desistance from offending Low-risk trajectory has the following path from early childhood to late adulthood: 1. Early childhood 1. Lower level of risk factors
- 375. 2. Adolescence 1. Good bonds to parents and school 1. Positive social capital 2. Minor delinquency 3. Early adulthood 1. Good marriage, good job 1. Positive turning points 4. Desistance from offending In developing their theory, Sampson and Laub returned to a dataset that was collected between 1949 and 1963 by Sheldon and Eleanor Glueck, who were early pioneers of longitudinal research. Of the 500 people in this sample, Sampson and Laub were able to follow up with 52 of the original study participants. Their research indicated that regardless
- 376. of whether participants were identified as having a low or high risk of offending, everyone had stopped engaging in criminal behaviors by age 70. Their theory demonstrates that eventually everyone ages out of crime. 277 Feminist Criminology Feminist criminology rose as an alternative to many of the traditional theories of crime. The majority of mainstream theories of crime failed to understand how female offenders differed from male offenders. In response, feminist scholars have sought out new perspectives to represent the female offender and her social world. Feminist criminology: Alternative to traditional theories of crime, which often did not consider how the lives of women are different from those of men and, as a result, may explain the differences in offending behaviors.
- 377. The emergence of feminist criminology builds upon the themes of gender roles and socialization to explain patterns of female offending. Here, scholars begin with a discussion on the backgrounds of female offenders in an effort to assess who they are, where they come from, and why they engage in crime. Feminist criminologists suggest that “feminist criminology began with the awareness that women were invisible in conventional studies in the discipline… . Feminist criminology began as a reaction … against an old established male chauvinism in the academic discipline.”40 While some criminologists suggested that traditional theories of crime could account for female offending, others argued that in order to accurately theorize about the criminal actions of women, a new approach to the study of crime needed to be developed. Scholars point out that feminist discussions about crime aren’t limited to “women’s issues.” They argue that it is important that any discussion of women’s
- 378. lives and criminality incorporate conversations on masculinity and patriarchy. Given the historical distortions and the casual assumptions that have been made about women’s lives in relationship to their criminal behaviors, incorporating feminist perspectives can provide a richer understanding about not only the nature of female offending but also how women’s experiences with victimization shape this process. In addition, feminist perspectives highlight that feminist criminology is not uniform but an opportunity to consider multiple influences when understanding issues of gender and crime.41 Feminist Pathways The use of feminist theory, methodologies, and activism in discussions of criminology has led to a variety of new understandings about gender and crime. Perhaps one of the most 278
- 379. influential perspectives to date on female offending is the feminist pathways approach. Feminist pathways research seeks to show how life events (and traumas) affect the likelihood to engage in crime. While the pathways approach has many similarities with other theories, such as life course or cycle-of-violence perspectives, these theories do not explain women’s criminality from a feminist perspective. In comparison, the feminist pathways approach begins with a feminist foundation.42 Within the feminist pathways approach, researchers have identified a cycle of violence for female offenders that begins with their own victimization and results in their involvement in offending behavior. One of the most significant contributions of feminist criminology is an understanding of the role of victimization in the histories of incarcerated women since female offenders report substantially high occurrences of physical, emotional, and sexual abuse throughout their
- 380. lifetimes. This is especially true of juvenile offenders, as shown in Figure 4.3. While such an explanation does not fit all female offenders (and also fits some male offenders), the recognition of these risks appears to be essential for understanding the etiology of offending for many girls and women. Yet this link between victimization and offending has largely been invisible or deemed inconsequential by the powers that be in criminology theory building and by those responsible for responding to women’s and girls’ victimizations and offenses.43 Feminist pathways approach: Provides a life course perspective from a feminist approach and highlights how trauma and abuse contribute to offending behavior. Figure 4.3 Prevalence of Adverse Childhood Experiences in Juvenile Offenders 279
- 381. Source: Michael T. Baglivio et al.,“Prevalence of Adverse Childhood Experiences (ACE) in the Lives of Juvenile Offenders,” OJJDP Journal of Juvenile Justice 3, no. 2 (2014): 1– 23, 8. The bar chart is titled, Prevalence of Adverse Childhood Experiences in Juvenile Offenders. Percentage of offenders is plotted on the vertical axis on a scale of 0 to 100%, at 20% intervals. The different types of adverse childhood experiences are plotted on the horizontal axis. The data can be shown as a list with the percentages listed in the following order: (1) effect on girls, (2) effect on boys. Family Violence: 84%, 81% Parental Separation/Divorce: 84%, 78% Household Member Incarceration: 68%, 65%
- 382. Emotional Abuse: 39%, 31% Physical Abuse: 41%, 26% Household Substance Abuse: 30%, 24% Emotional Neglect: 39%, 31% Sexual Abuse: 31%, 7% Physical Neglect: 18%, 12% Household Mental Illness: 12%, 8% Feminist criminologists have also worked at identifying how issues such as race, class, and sexuality impact criminality (and the system’s response to these offending behaviors). From this inquiry, we learn that women of color possess multiple marginalized identities, which, in turn, impact their trajectories of offending. Combining Black feminist theory and critical race feminist theory with feminist criminology allows for an enhanced understanding of how Black women experience crime. This perspective—Black
- 383. feminist criminology—identifies four themes that alter the experiences for Black women in the criminal justice system. First, many Black women experience structural oppression in society. Second, the Black community and culture features unique characteristics as a result of this population’s racialized experiences. Third, Black families differ in their intimate and familial relations. Finally, this perspective looks at the Black woman as an individual, unique in her own right.44 Together, these unique dimensions lead to a different experience for Black women within the criminal justice system that needs to be recognized within theoretical conversations on women and crime. 280 Developments in feminist criminology have addressed the significant relationship between victimization and offending. A history of abuse not only is highly correlated with the
- 384. propensity to engage in criminal behaviors but also often dictates the types of behaviors in which young girls engage. Often, these behaviors are methods of surviving their abuse, yet the criminal nature of these behaviors brings these girls to the attention of the criminal justice system. The success of a feminist perspective is dependent upon a theoretical structure that not only has to answer questions about crime and delinquency but also has to address issues such as sex role expectations and patriarchal structures within society.45 Masculinities The concept of masculinity refers to qualities that are typically associated with the male gender. These include characteristics such as dominance, control, aggression, and strength (or the opposite of weakness). Like feminist theory, theories of masculinity also focus on the role of patriarchy and hegemonic ideals. But in this case, masculinity plays upon these constructs to assess how men and boys “should” behave. These definitions
- 385. are socially constructed, meaning that they are created by the cultural structures of society (and not the biological characteristics of an individual). While many of the traditional theories of crime focused primarily on male crime, few of these theories looked at the role of gender and the construction of masculinity as it pertained to male offending behaviors. And while many of the historical theories about female offending suggested that female criminality was best described by women who were less feminine and more masculine (and therefore, more like male offenders), early theories about male criminals viewed such individuals as an abnormal subset of the population. Contemporary theories of crime began to allude to issues of masculinity through discussions of dominance and the physicality of offending behaviors. The work of James Messerschmidt has been influential in understanding the relationship between masculinity and crime, particularly issues of violence. His work built upon the
- 386. concept of hegemonic masculinity, which was first developed by Raewyn Connell.46 Hegemonic masculinity explains how a culture of dominance creates structures whereby men are placed in a state of power and dominance compared with the social culture of women. For Messerschmidt, hegemonic masculinity is measured by “work in the paid labor market, the subordination of women, heterosexism, and the uncontrollable sexuality of men … practices 281 towards authority, competitive individualism, independence, aggressiveness, and the capacity for violence.”47 This notion of maleness is something for men to aspire to and idealize, and crime is a normal expression of masculinity. “Crime, therefore, may be invoked as a practice through which masculinities (and men and women) are
- 387. differentiated from one another. Moreover, crime is a resource that may be summoned when men lack other resources to accomplish gender.”48 From here, it is not a far jump to understand how crimes such as sexual assault and intimate partner violence can be illustrations of hegemonic masculinity whereby men exhibit their power over women. Crimes of sexual and intimate violence are most likely to be perpetrated against women by men, and such acts are best explained as an illustration of power and control. Theories of masculinity can also be used to understand acts of violence by men in general in their search for maleness. For example, most of the high- profile school shooting events throughout the 1990s and 2000s involved boys who used their acts of violence to retaliate against individuals who were viewed as popular or who had bullied them throughout their youth. The mass shooting at Columbine High School in 1999 is an example of this type of masculine violence; in this incident, Eric Harris and Dylan Klebold carried out a planned attack against their high school, killing 12
- 388. students and a teacher before turning their guns on themselves. The case of masculinity and violence has also been used to describe acts of gang violence49 and prison violence.50 Queer Criminology Like feminist criminology, which provides an alternative to traditional theories of crime to understand women as victims and offenders, queer criminology is centered on the experiences of the LGBTQ community within the criminal justice system. In particular, queer criminology seeks to “investigate and challenge the ways that the criminal legal system has been used as a tool of oppression against Queer people.”51 Historically, the issues faced by the queer community as victims and offenders have been ignored by mainstream criminologists. To date, there is very little data on LGBTQ offending. None of the official crime databases on offenses or arrests have included demographic measures on
- 389. sexual orientation or gender identity. While in recent decades scholars have started to engage in research related to these variables, their focus is limited. At the same time, there has been virtually no conversation among traditional schools of criminological thought on the nature of queer offending. Some argue that expanding official data sources to include variables on sexual orientation or gender identity would help bring resources for queer communities to the criminal justice system. 282 This is particularly important given that LGBTQ youth have higher risks for victimization compared with cisgender youth.52 However, others wonder whether including such variables in official crime data would best serve the LGBTQ population out of concerns that this data could be used in a negative or discriminatory fashion.53
- 390. Scholars have pointed out that queer lives have in many ways been criminalized by our justice and legal systems. For example, the U.S. Supreme Court in Bowers v. Hardwick (1986) held that a Georgia state law that criminalized the act of sodomy was constitutional, even when such sexual activity was consensual. While the law itself did not distinguish between heterosexual and homosexual actors and only focused on the acts of oral and anal sex, Justice Byron White’s majority opinion focused on homosexual sexual activity.54 A later ruling in 2003 in Lawrence v. Texas overturned the ruling and also invalidated the remaining state sodomy laws, arguing that such laws were unconstitutional under the due process clause of the Fourteenth Amendment.55 Similar to minority communities, LGBTQ communities have experienced violence and abuse by members of law enforcement, leading to feelings of distrust
- 391. and fear.56 Once in prison, transgendered inmates have historically been forced to be housed in facilities based on their sex at birth. While a 2017 federal policy shifted this practice to allow transgender inmates to choose where they were housed based on their gender identity, in 2018 Attorney General Jeff Sessions indicated that the Bureau of Prisons would return to housing assignments based on birth sex.57 As the works in queer criminology continue to grow and develop, it is important to keep in mind that theorizing about criminal behavior and victimization in LGBTQ communities is about more than just sexual orientation and gender identity. Queer criminology is the intersection of these variables, and the very real power differences that exist for LGBTQ offenders and victims in a heteronormative system must be acknowledged.58 283
- 392. Conclusion Whether it be a micro or a macro theory of crime, each perspective has contributed to the understanding of criminal behavior. It is important to remember that no single theory can explain all acts of crime and that each theory has strengths and weaknesses. In addition, theories of crime continue to be tested both to provide a better understanding of criminal behavior and to expand upon the foundations of these schools of thought. Most notably, research on these theoretical perspectives today looks at how issues of race, gender, class, and sexuality might shift how we understand criminal behavior. Research on theories of crime has also taken on an international perspective; while most of the theories of criminal behavior originated in the United States, research on perspectives such as social bond theory and differential association are now examined using an international context to explain at-risk and
- 393. criminal behaviors in a global society. Figure 4.4 provides an overview of the development of these theories over time. Figure 4.4 Time Line of Theories of Criminal Offending Timeline of the theories of criminal offending is shown in the table below. 284 Current Controversy 4.1 Is There a Relationship Between Race and Class and Criminal Behavior? —Kenethia McIntosh-Fuller— Where do you stand? Cast Your Vote! 285 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-4/current-controversy-videos
- 394. Introduction Race and social class are two very important divisions or classifications in American society. They are also two very controversial areas in the discussion of the causes of criminal behavior. At times, these variables are at the forefront of the discourse on crime, but at other times, they are the unexplored or ignored variables. But what are the core arguments around the relationship between race, social class, and crime? 286 Race 287 PRO: There Is a Relationship Between Race and Crime Much of the research on race and crime focuses on the
- 395. differences between Blacks and Whites, though the literature on Native Americans, Latinos, and other ethnic groups is increasing. Official statistics on crime show a difference in crime rates by race. Year after year, the UCR arrest data show that minorities are overrepresented for numerous offenses. This means that a group is arrested at a percentage higher than its percentage in the U.S. population. The positivist school of criminology suggests that criminals are different from other citizens. It is those differences that induce an individual to engage in crime. To follow this line of thinking in reference to race would mean that there is something different about certain racial groups that compels them to engage in more criminal activities than other racial groups. A wide variety of perspectives exists in positivist criminology. Biological and psychological criminology research has
- 396. suggested that crime is actually a product of the biological makeup of certain human beings or their psychological characteristics. This research has a long tradition, starting with “the father of criminology,” Cesare Lombroso. In his book, The Criminal Man (1876), Lombroso stated, “Criminals resemble savages and the colored races.”59 His work referred mainly to the differences among various groups i n northern and southern Italy. However, in the second edition of his book, in 1878, Lombroso wrote that certain groups, such as tribes in Africa, “have no morality at all.”60 In addition, he stated that in Italy, the descendants of Arabs, Jews, and Gypsies were also more likely to be criminal. Herrnstein and Murray wrote one of the most well-known studies on intelligence and crime, The Bell Curve.61 One of the underlying assumptions of their research is that IQ is an accurate measure of intelligence and is inherited. The authors concluded that the people who struggle the most with
- 397. social problems in society, such as poverty and criminal behavior, are also the groups that are more likely to have lower IQs. According to their research, of the groups studied, African Americans and immigrants are the groups most likely to be involved in crime, due to their low IQ scores. Sociological perspectives on the relationship between race and crime also provide interesting insights. While most of the sociological criminology points to the conditions of an area as the main cause of crime, some research has examined the connection between neighborhoods and race. William Julius Wilson pointed out that Blacks and Whites live in different areas.62 While many African Americans tend to live in areas with higher rates of poverty, African Americans who are the most successful move out of the poverty-stricken areas, which leads to further decline. This results in social isolation, or the lack of interaction with mainstream society and mainstream values. Others have found
- 398. support for this theory and suggest that this type of racial segregation leads to greater social and economic disadvantage. This, in turn, leads to increased crime.63 288 CON: There Is Not a Relationship Between Race and Crime Critical criminology suggests that crime is a social construct meant to oppress certain groups to protect the privileged position of groups in power. These theories realize that social inequality exists and is an inherent part of the criminal justice system. There is a history of discrimination against minorities in the United States, particularly African Americans in the criminal justice system. These “systems of racial justice” set the foundations for racialized crime and justice policies
- 399. that exist today.64 Slave codes, Black codes, and Jim Crow were all forms of legal discrimination that served to keep African Americans from having any power or control in any arena. These laws severely restricted what African Americans could do and where they could go and outlawed behaviors that were completely acceptable and lawful for White citizens. Violation of these laws resulted in strict and severe punishments. Discriminatory policies continued into more current times. Policies such as the war on drugs and the war on gangs in the 1980s and 1990s focused primarily on minority youth and resulted in harsher punishments for people of color.65 Since then, other criminal justice practices have been called into question, such as racial profiling by law enforcement and sentencing disparities. Such practices have resulted in increased contact between minorities and the criminal justice system and harsher penalties. This may help explain the
- 400. overrepresentation of minority offenders in official data. A look at other data sources shows that race is not a significant factor in explaining differences in criminality. The UCR data show that Whites are arrested in greater numbers than any other group in the United States. Self-report studies have also consistently shown there are no significant racial differences in offending among different racial groups. 289 Social Class Generally, the public tends to think that crime is mostly committed by people within the lower classes of society. This perspective is understandable given that the UCR (which is supposed to be our best place for official data) focuses on
- 401. street crimes as the index crimes or Part I offenses. That would indicate that these are the most important crimes and that these offenses happen more than other types of crimes. But is this an accurate statement? 290 PRO: There Is a Relationship Between Social Class and Crime There is some research support for a class–crime relationship. A lot of the support comes directly as a result of the introduction of some of our most influential crime theories. Park and Burgess studied the city of Chicago and found that cities expanded outward from the central business district. These concentric circles around the city formed zones. Zone two was referred to as the “slums,” where crime rates were higher than anywhere else in the city.66
- 402. Merton proposed the idea of structural strain. According to Merton, crime is a result of the American desire for wealth. In an attempt to reach this highly valued cultural goal, some individuals will do whatever is necessary to achieve the goal, even if the methods to do so do not respect the law. Scholars have built upon Merton’s work and referred to this goal as the “American Dream.”67 American society is focused on monetary gain and material possessions as the primary measure of success. All Americans are expected to reach for this goal in order to become successful. However, this focus leads to an imbalance of power in society and the devaluation of cultural norms, which then leads to crime.68 291 CON: There Is Not a Relationship Between Social Class and
- 403. Crime As previously mentioned, according to the perspectives found in critical criminology, law is a social construct and social process. The law represents the values of the controlling classes of society. This means that when we talk about “crime,” we talk about the perspective of crime presented by the “power elite” in society. This perspective is then publicized and reinforced by the media and internalized as fact by the general public.69 Given this definition, social class is inescapably linked to political power. Reiman and Leighton propose that some people do not think of white-collar crimes as negatively as other offenses because the problem is not as widespread, the harm is indirect, and the injuries are not as bad. In addition, if white- collar crimes were as bad as street crimes, the laws against and punishments for white-collar crimes would be harsher, and accounts of white-collar crimes would be more prevalent in
- 404. the media.70 Evidence for this argument is illustrated by the fact that the focus of the study of crime tends to be on street crimes, or the crimes of the lower classes. The index crimes of the Uniform Crime Reports focus on street crimes rather than white-collar crimes. Media representations of crime focus on “crime in the streets” and not “crime in the suites.” Research on crime and justice tends to focus on the lower classes, property crimes, violent crimes, delinquency, and status offenses. The largest area of discourse in criminological theory is on the sociological explanations of offending, not on critical perspectives. The research and political agendas surrounding crime may (even if unknowingly) support the myth that crime is a lower- class problem. 292
- 405. Summary Given the research on race, class, and crime, we are left with the question of whether race and class status impact criminal behavior. At the same time, a look at our incarcerated population indicates that prisoners are disproportionately people from lower-class and minority communities. Here, the question remains: Are people of color and the poor more likely to engage in criminal activity, or are they more likely to be prosecuted and incarcerated for these offenses? 293 Discussion Questions 1. How have criminological theories been used to support the idea that a relationship exists between race and crime?
- 406. 2. How have policies led to the overrepresentation of minority offenders in our official data sources on crime? 3. How is our understanding about the relationships between social class and crime limited through our use of official crime data sources? 294 Current Controversy 4.2 Does Mental Illness Cause Crime? —Robert Schug— Where do you stand? Cast Your Vote! 295 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-4/current-controversy-videos Introduction
- 407. Adam Peter Lanza (Sandy Hook Elementary School shooting, December 2012), James Eagan Holmes (Aurora, Colorado, movie theater shooting, summer 2012), Jared Loughner (Tucson, Arizona, parking lot shooting), Seung Hoi Cho (Virginia Tech shooting spree, April 2007)—we are repeatedly reminded via a seemingly never-ending stream of news media stories and images that individuals with mental illness commit extreme and even bizarre acts of crime and violence, which often may seem to defy rationality. Killers acting at the command of voices in their heads or under the belief that Satan is guiding their hands both suggest and continually underscore what appears to be a close association between mental illness and crime. Though the association may seem rather clear (at least to the average media consumer and even to a growing number of scientists and researchers), the question arises: Does mental illness cause crime?
- 408. Clearly, the question of whether or not mental illness causes crime is both timely and important. Socially, it is a phenomenon that appears to be gaining more public attention. Research continues to demonstrate a relationship between different forms of mental illness and criminal and violent behavior.71 However, the concepts of mental illness and crime are both complex, as is the relationship between the two. For example, mental illness as a term is often misused or poorly understood. In reality, mental illness is an umbrella term that may represent a number of different types of conditions. Individuals may have as few as one or two symptoms, which do not rise to the level of clinical significance, or several symptoms that meet the criteria of one or more full-blown clinical diagnoses. Similarly, crime is an umbrella term, encompassing a spectrum of behaviors and acts that are against the law. But other behaviors—
- 409. aggressive, antisocial, and violent behaviors—are also worthy of study in their relationship with mental illness and are often the focus of research in this area. When looking at the relationship between mental illness and crime, we need to be specific about what we mean by crime. For example, the relationship of mental illness to petty theft may be very different from its relationship to murder. Even with an understanding of the concepts of mental illness and crime separately, appreciating the relationship between the two can be challenging. To that end, three general relationships have been suggested based on the role of mental illness symptoms in crime and violence: (1) Mental illness causes crime and violence; (2) mental illness contributes to (but does not directly cause) crime and violence; and (3) crime and violence occur in spite of mental illness. This section looks at the relationship between the first perspective, compared with the second and third
- 410. arguments. 296 PRO: Mental Illness Causes Crime and Violence Scholars argue that mental illness may play a role in causal factors leading to crime and violence—specifically in the area of motivation for offending.72 While this is a tremendous oversimplification (and remembering that as a cause, the onset of the illness must occur before the onset of the offense behavior), anecdotal clinical evidence has indicated support for the notion that symptoms of mental illness can become the motivation for criminal and violent behavior. Psychotic symptoms (which represent a subjective break from reality for the individual), which may characterize disorders on the schizophrenia spectrum or some types of mood disorders, may serve as motivations for acts of
- 411. violence. Auditory hallucinations (e.g., hearing voices which are not actually there), for example, may instruct an individual to kill another. Delusional beliefs (strong, unconventional beliefs maintained despite evidence to the contrary) may also provide motivation for criminal offending. For example, an individual may commit sexual assaults against children based on religious delusions. One paroled sexual offender assaulted his own daughters because he thought the Bible instructed him to teach his daughters about sex. In this case, the delusion could be seen as the motivator or cause of the crime. 297 CON: Mental Illness Does Not Cause Crime and Violence Mental illness contributes to (but does not directly cause) crime and violence. In this viewpoint, symptoms of mental illness
- 412. do not directly cause crime and violence but contribute to impairments in behavioral “safeguards” that may have— under normal circumstances—prevented the criminal and violent acts from occurring. Put another way, they facilitate crime, insomuch as the symptoms do not cause the criminal behavior but rather do nothing to help the individual not commit the criminal behavior. Such facilitative impairments would include symptoms such as impulsivity, paranoia, and decreased judgment. Also in this role, mental illness symptoms could serve to exacerbate situational factors or preexisting (yet unrealized) tendencies toward crime and violence. Examples of the latter might be racist views or having a “bad temper,” whereas examples of the former might include homelessness. One hypothesis related to this role might be that the type of mental illness or symptom may not, in and of itself, contribute to a specific relationship
- 413. with crime and violence (e.g., schizophrenia more or less so than depression). Rather, life may simply be more challenging when one suffers from a mental disorder—of any kind—and it is the additive effects of these challenges that contribute to criminal and violent behavior. Crime and violence occur in spite of mental illness. In this viewpoint, mental illness in essence plays no role i n the occurrence of crime and violence—the two are independent and unrelated to each other. Here, the contributions of traditional and contemporary criminology provide better explanations for the crime committed by the individual with mental illness. It is noteworthy that these theories can apply to individuals with full-blown mental illnesses (a point often overlooked given the unusual and even bizarre nature of the presentation of some of these illnesses), but they can also explain crime and violence occurring before the onset of mental disorder (i.e., an individual who was criminal
- 414. and/or violent before the illness developed—a nuanced phenomenon not always addressed in studies of mental illness and crime). Finally, often lost in the argument is an understanding that individuals with mental illness may commit crimes or become violent for exactly the same reasons that people without mental illness do. For example, individuals with mental illness may experience economic hardship (i.e., they need money), get into an argument with a family member or loved one (i.e., they got angry), or simply choose to commit crime (i.e., for no reason other than they thought they could get away with it). Individuals with even the most severe forms of mental illness may have periods of lucidity and clarity and can be capable of planning and organizing even elaborate criminal behaviors. They may even experience periodic symptom remission—in fact, when adhering to
- 415. prescribed medication regimens, these individuals may even function at relatively normative levels. Criminal, violent, and antisocial behavior occurring during these periods thus cannot be directly attributed to the effects and influences of mental illness. 298 Summary Does mental illness cause crime? The problem with this question is partly the question itself, which fails to capture the complexity of mental illness and crime separately and their relationship (causal or not) together. A more appropriate question is, does mental illness play a role in crime? And if so, what role? The answer to this better phrased question is maybe a large role, maybe a small role, or maybe no role at all. Ultimately, continued research is needed in this very
- 416. important area of study, and focusing efforts on understandi ng the underpinnings of crime and violence in mental illness helps identify treatments and approaches that may help individuals with mental illness who become criminal and violent and reduce stigma associated with those who are not. 299 Discussion Questions 1. Why is it important to understand the relationship between mental illness and crime? What are the implications? 2. Who (individuals, organizations, etc.) stands to benefit from a responsible understanding of the relationship between mental illness and crime? Who stands to benefit when this relationship is not understood?
- 417. 300 Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Age-graded developmental theory 82 Anomie 77 Biological theories of crime 72 Biosocial theories of crime 75 Causation 70 Classical school of criminology 71 Cognitive development theories 73 Conformist 78 Conventional level 74 Correlation 70 Deterrence 71 Differential association theory 79 Differential reinforcement 80 Feminist criminology 83 Feminist pathways approach 83
- 418. General strain theory 78 General theory of crime 81 Hypothesis 70 Innovator 78 Labeling theory 80 Life course theory 81 Macro theories of crime 69 Micro theories of crime 69 Modeling 80 Pain–pleasure principle 71 Panopticon 71 Penology 71 Positivist school of criminology 71 301 http://edge.sagepub.com/mallicoatccj2e Postconventional level 74 Preconventional stage 74 Primary deviance 80 Psychological theories of crime 72 Rebel 78 Research question 70
- 419. Retreatist 78 Ritualist 78 Secondary deviance 80 Self-fulfilling prophecy 80 Social bond theory 80 Social disorganization theory 75 Social learning theory 80 Sociological theories of crime 75 Strain theory 77 Theory 69 302 Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. What role does the scientific process play in the development of criminological theories? 2. What is the difference between causation and correlation? How can we use these terms
- 420. to understand criminal behavior? 3. Compare the micro theories of crime with the macro theories of crime. Which do you believe best explain criminal behavior and why? 4. How does social bond theory differ from other macro-level theories of crime? 5. How might race, class, and gender differences in offending be explained by criminological theory? 303 http://edge.sagepub.com/mallicoatccj2e Learning Activities 1. Pick a newspaper article about a criminal act. Which theory best explains why the crime occurred? 2. Identify a criminal justice program in your community.
- 421. Which theories are they using to help address criminal behavior, and how does the program use its information to punish or rehabilitate offenders? 3. Pick your favorite theory of crime. What types of information would you use to help prove that this theory is an effective perspective to understand criminal behavior? 304 Suggested Websites Theoretical Criminology: http://tcr.sagepub.com Feminist Criminology: http://fcx.sagepub.com Critical Criminology: http://link.springer.com/journal/10612 American Society of Criminology: http://www.asc41.com 305 http://tcr.sagepub.com http://fcx.sagepub.com
- 422. http://link.springer.com/journal/10612 http://www.asc41.com Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 4.1 Steve Tibbetts: Criminological Theory Criminal Justice in Practice 4.1 Criminology SAGE News Clip 4.1 Gov. Named in Lawsuits Over Flint
- 423. Water Crisis 306 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e 5 Victims and the Criminal Justice System 307 Andy Cross/Denver Post/Getty Images 308 Learning Objectives Assess the role of the just-world hypothesis in victim blaming Explain how routine activities theory and lifestyle theory help to understand why people are victimized
- 424. Compare and contrast the different typologies of crime victims Summarize the rights of crime victims Discuss how legislative efforts have improved the rights of crime victims Describe the extent of victimization in the United States On October 12, 2011, Scott Dekraai entered the Salon Meritage in Seal Beach, California. Wearing body armor and armed with three handguns, he opened fire, killing eight people and significantly injuring one other. One of the victims was Dekraai’s ex-wife, Michelle Fournier. When asked why he killed others in addition to his ex-wife, Dekraai acknowledged that the other victims were “collateral damage.”1 Although Dekraai pled guilty to the murders in 2014, he wasn’t sentenced until September 2017, almost six years after the crime. The delay was the result of a legal scandal involving
- 425. the use of illegal jailhouse informants. Many of the family members of Dekraai’s victims urged the county prosecutor to not pursue the death penalty and allow Dekraai to be sentenced to life in prison without the possibility of parole. Bethany Webb lost her sister to Dekraai’s violence. She begged prosecutors to stop seeking the death penalty and to conclude the case to allow the victims’ families to find closure and move on. By not listening to the wishes of the victims’ family members, Webb claimed the prosecution was “not doing this for my family…. they are doing this to my family.”2 Both Webb and her mother, who survived the shooting that day, became advocates for abolishing the death penalty. While not all of the families initially felt the same way—some hoped Dekraai would be sentenced to death— many began to change their minds as the case dragged on. Paul Wilson, whose wife, Christy, was killed, said, “We are exhausted from this continuous pain, and this has got
- 426. to be over with. Life will never be the same for us, but we should have the chance to move on.”3 In August 2017, Judge Thomas Goethals ruled that the death penalty would not be an option for Dekraai due to the misconduct by the prosecutor’s office and county sheriff.4 A month later, Dekraai received eight sentences of life without the possibility of parole. During his sentencing heari ng, family members of the victims had the opportunity to address Dekraai. When he tried to apologize, the family members rebuffed his statements. In a rare turn of events, three of the family members thanked the public defender for his work on the case and for helping the families find closure.5 309
- 427. Victim impact statements provide individuals with the opportunity to have their voices heard during the sentencing process. Here, family members of those killed in the Salon Meritage hair salon shooting offer their victim impact statement in the case of Scott Dekraai, who received eight consecutive life terms. © Mark Rightmire/The Orange County Register via AP This chapter looks at the role of victims in the criminal justice system. It begins with a discussion of the history of the victims’ rights movement. The chapter then turns to a review of the theories that help to explain criminal victimization. This is followed by a discussion of the types of victims as well as the extent of victimization both within the United States and worldwide. The chapter concludes with two Current Controversy debates. The first, by Allison Foley, explores if universities are best suited to respond to rape and sexual assault among college students. The second, by Kimberly J. Cook, investigates how a restorative
- 428. justice model might help in the healing process for victims. 310 Victims and Crime When you think about crime, the majority of these acts involve a victim. A victim is someone who has been injured or harmed by the actions of another. While there are a few crimes that are considered victimless, most criminal acts involve an offender whose actions have in some way caused harm to another person or group. Why do victims seek out the criminal justice system? Do they desire justice? What does justice mean for victims of crime? Is it retribution? Reparation? Despite their presence in criminal acts, victims have traditionally played a minor role in the criminal justice process. In many cases, human victims of crime are reduced to tools of the justice system or pieces of evidence in a criminal case. As a result, many of these victims experience frustrations with a system that seems to do
- 429. little to represent their needs and concerns. In some cases, victims can even be further traumatized by their experiences in dealing with the criminal justice system. Victim: Someone who has been injured or harmed by the actions of another. 311 Theories of Victimization In an effort to understand the victim experience, social science researchers investigate the characteristics of crime victims and the responses by society to these victims. While criminology focuses predominantly on the study of crime as a social phenomenon and the nature of offenders, the field of victimology places the victim at the center of the discussion. Victimology: A field of study within criminology that places the victim at the center of the discussion.
- 430. 312 Early Theories of Victimology Early perspectives on victimology focused on how victims either knowingly or unconsciously could be at fault for their victimization based on their personal life events and decision- making processes. One of the early scholars in this field, Benjamin Mendelsohn,6 developed a typology of victimization that distinguished different types of victims based on the relative responsibility of the victim in his or her own victimization (Table 5.1). Embedded in his typology is the degree to which victims have the power to make decisions that can alter their likelihood of victimization. As a result of his work, the study of victimology began to emerge as its own distinct field of study. Table 5.1
- 431. Source: Adapted from M. C. Sengstock, “Culpable Victims in Mendelsohn’s Typology,” paper presented at the annual meeting of the Midwest Sociological Society, April 21–24, 1976, St. Louis, Missouri. Mendelsohn’s theory of victimology is based on six categories of victims. The first category is the innocent victim. This distinction is unique in Mendelsohn’s typology as it is the only classification that does not have any responsibility for the crime attributed to the victim. As the name suggests, an innocent victim is someone who is victimized by a random and unprecipitated crime, such as a school shooting. Unlike the other categories in Mendelsohn’s typology, the innocent victim is one with no responsibility for his or her victimization. In contrast, the other five categories assign a degree of blame or responsibility to the victim. Mendelsohn’s second category is the victim with minor guilt. In this case, victimization occurs as a result of one’s carelessness or ignorance. Victims with minor guilt are people who,
- 432. if they had given better thought or care to their safety, would not have been victims of crime. An example of this is a victim who is walking alone down the street in a high-crime area and is robbed. Mendelsohn’s third category is a victim who is equally as guilty as the offender. This victim is someone who shares the responsibility for the crime with the offender and 313 deliberately placed himself or herself in harm’s way. An example of this classification is the individual who seeks out the services of a sex worker only to contract a sexually transmitted infection as a result of their interaction. The fourth category represents the case wherein the victim is deemed “more guilty” than the offender. This is a “victim” who has provoked another to engage in criminal activity. An example of this category is one who is killed by a current or former intimate partner following a history of abuse. The fifth category is a victim
- 433. who is solely responsible for the harm that comes to him or her. These individuals are considered to be the “most guilty” of victims as they engaged in an act that was likely to lead to injury on their part. Examples of the “most guilty” victim include a suicide bomber who engages in an act that results in his or her death or when a would-be attacker is killed by another in an act of self-defense. Mendelsohn’s final category is the imaginary victim. This is an individual who, as a result of some mental disease or defect, believes that he or she has been victimized by someone or something when in reality this person has not been victimized. While Mendelsohn focused on the influence of guilt and the responsibility of victims, Hans von Hentig’s typology of victims looked at how personal factors, such as biological, psychological, and social factors, influence one’s risk of victimization.7 The categories in von Hentig’s typology of victims include the young; the female; the old; the mentally defective
- 434. and deranged; immigrants; minorities; dull normals; the depressed; the acquisitive; the wanton; the lonesome or heartbroken; the tormentor; and the blocked, exempted, or fighting. Table 5.2 provides a description of each of these categories. Table 5.2 Source: From Stacy L. Mallicoat and Connie E. Ireland, Women and Crime: The Essentials (Thousand Oaks, CA: Sage Publications, 2014). Originally adapted from Hans von Hentig, The Criminal and His Victim: Studies in the Sociobiology 314 of Crime (New Haven, CT: Yale University Press, 1948). 315 Just-World Hypothesis
- 435. To some extent, each of these perspectives places some degree of responsibility or blame on the victim. Why do we blame the victim? At its core, the process of victim blaming is linked to a belief in a just world. The just-world hypothesis suggests that society has a need to believe that people deserve whatever comes to them. Simply put, bad things happen to bad people, and good things happen to good people.8 Under these assumptions, if a bad thing happens to someone, then that person must be at fault for his or her victimization because of who he or she is and what he or she does. Just-world hypothesis: A hypothesis that suggests society has a need to believe that people deserve whatever happens to them. A just-world outlook gives a sense of peace to many individuals. Imagining a world where crime victims must have done something foolish, dangerous, or careless allows members of
- 436. society to distinguish themselves from this identity of victimhood—“I would never do that, so therefore I must be safe from harm.” This, in turn, allows individuals to shield themselves from feelings of vulnerability and powerlessness when it comes to potential acts of victimization. However, there are several problematic assumptions surrounding the just-world hypothesis—namely, that it incorrectly (1) assumes people are able to change the environment in which they live, (2) implies only “innocent” victims are true victims, and (3) creates a false sense of security about the risks of crime and victimization. 316 Rape myths assert that women ask to be sexually assaulted based on their appearance. “Slut Walks” have been organized around the world to raise awareness about the danger of rape myths and their effects on victims. How might early theories of victimization have
- 437. perpetuated the victim blaming that still occurs today? © iStock.com/jentakespictures Given the nature of victimization patterns in society, few victims of crime meet the criteria for an “ideal” victim. Yet this process of subtle victim blaming allows society to diffuse the responsibility of crime between the victim and the offender. For example, the battered woman is asked, “Why do you stay?” or given the message that “I wouldn’t put up with that!” The rape victim is asked, “What were you wearing?” or “Why did you let him come into your apartment if you didn’t want sex?” The assault victim is asked, “Why didn’t you fight back?” The fraud victim is chastised, “Why did you provide your credit card number online?” The burglary victim is asked, “Why didn’t you lock the door?” Essentially, any victim who inadvertently puts herself or himself in harm’s way is asked, “What were you thinking?” Each of these scenarios shifts the blame away from the perpetrator and assigns some degree of responsibility to the victim. Victim blaming enables people to
- 438. make sense of the victimization and makes them feel somehow different from the person who is victimized. In many cases, 317 the process of victim blaming allows people to separate themselves from those who have been victimized—“I would never have put myself in that situation”— and this belief allows people to feel safe in the world. Victim blaming: Enables people to make sense of the victimization and makes them feel somehow different from the person who is victimized. How does the just-world hypothesis work, and what are the implications for this application in the criminal justice system? Consider the crime of sexual assault. Under the just-world hypothesis, the victim often is assigned victimization responsibility for this violation in the
- 439. eyes of the public. This can impact future reporting trends because victims may be less likely to report their own victimizations after observing what happened to similar victims. The just- world hypothesis may also have an effect on potential offenders. For example, potential offenders who view media accounts of a crime that is not prosecuted or an offender who receives little punishment may adopt a belief that such acts are not criminal, particularly if those accounts engage in victim blaming.9 People walk by a memorial outside the gates of Marysville- Pilchick High School, where Jaylen Fryberg opened fire on four of his classmates, killing two of them. It is unclear why Jaylen, a homecoming prince from a prominent tribal family, fired on his friends and family 318 members before turning the gun on himself.
- 440. © AP Photo/Elaine Thompson 319 Routine Activities and Lifestyle Theory While early theories of victimization provided a foundation to understand the victim experience, modern victimization theories expand from these concepts to investigate the role of society in victimization and to address how personal choices affect the victim experience. One of the most influential perspectives in modern victimology is Cohen and Felson’s routine activities theory.10 Routine activities theory suggests that the likelihood of a criminal act (and, in turn, the likelihood of victimization) occurs with the convergence of three essential components: (1) someone who is interested in pursuing a criminal action (offender), (2) a potential victim (target) “available” to be victimized, and
- 441. (3) the absence of someone or something (guardian) that would deter the offender from making contact with the available victim. The name of the theory is derived from a belief that victims and guardians exist within the normal, everyday patterns of life. Cohen and Felson posited that lifestyle changes during the second half of the twentieth century created additional opportunities for the victim and offender to come into contact with each other as a result of changes to daily routines and activities. Cohen and Felson’s theory was created to discuss the risk of victimization in property crimes. Here, if individuals were at work or out enjoying events in the community, they were less likely to be at home to guard their property against potential victimization, and burglary was more likely to result. Routine activities theory: Suggests that a criminal act is likely to occur when someone who is interested in committing a crime converges with a potential victim and there is an absence of something that would deter the
- 442. offender. Routine activities theory has been used to understand a variety of different forms of crime, particularly in relation to demographic differences in victimization. For example, research tells us that girls are at a greater risk for cyberbullying than boys, even though boys engage in similar risky online behaviors.11 Meanwhile, minority women are more likely to experience risk of victimization when riding public transportation, and neighborhood factors can also have an effect on the odds of women’s victimization.12 Finally, while men are more likely to experience increased risks of violent victimization because they go out at night, women have a greater risk of theft based on increased shopping activities.13 320
- 443. Based on routine activities theory, what are some “guardians” this homeowner is using to deter offenders? © iStock.com/CPCollinsPhotography Like routine activities theory, lifestyle theory seeks to relate the patterns of one’s everyday activities to the potential for victimization. While routine activities theory was initially designed to explain victimization from property crimes, lifestyle theory was developed to explore the risks of victimization from personal crimes. Research on lifestyle theory suggests that people who engage in risky lifestyle choices place themselves at risk for victimization.14 Based on one’s lifestyle, one may increase the risk for criminal opportunity and victimization through both an increased exposure to criminal activity and an increased exposure to motivated offenders. However, crime is not the only factor that can place people at risk for victimization; nonviolent deviant behaviors, mental health
- 444. status, and substance use can increase the potential for victimization. For example, adolescent girls who have delinquent friends are more likely to participate in risky behaviors such as substance abuse, sexual activity, and delinquency. These behaviors, in turn, increase the odds that they are victims of physical and/or sexual abuse in a dating relationship.15 321 Lifestyle theory: Theory that explores the risk of victimization from personal crimes whereby people place themselves at risk as a result of their lifestyle choices. 322 Careers in Criminal Justice So You Want to Be a Victim Advocate?
- 445. With the increased attention on victims’ rights throughout the 1970s and 1980s, the number of agencies that provided assistance to crime victims began to expand. While some of these groups were nonprofit, community- based organizations, there was also a push for victims’ services within local and state government bureaus. Today, there are a number of employment opportunities to work with victims of crimes. To work in this arena, many agencies require formal education in fields such as victimology, psychology, criminology, social work, and sociology. Depending on the type of position, there may also be specialized training on issues such as domestic violence and sexual assault. The demand for services, particularly in these specialized areas, is high. Advocates in cases may provide a variety of services, such as counseling and case management, or provide referrals for these
- 446. services. People in these positions may also help victims secure temporary and transitional housing and provide support in legal cases. Depending on the type of agency, advocates may also be involved in community education, outreach, and fund-raising activities. Working with crime victims can be a very rewarding experience. However, it is important to consider that victimization is a highly sensitive experience, and the people that work within these fields are often faced with high exposure to emotion within the context of their work. Over time, this can take its toll. For example, victims of intimate partner abuse often leave their abuser several times before they are able to completely sever the relationship. Over time, this can impact how an advocate feels about her or his position and lead to questioning whether one is able to be effective and successful in the position. It’s important that people working in this field
- 447. practice positive self-care strategies and develop peer support networks to prevent burnout and protect against stress. In addition to paid career opportunities as a victim advocate, many agencies rely heavily on the contributions of volunteers. Since many of these organizations are run on small budgets within the community, volunteers can provide valuable support for related tasks. As a student interested in this work, you might want to consider donating some time to a local organization. Not only will the organization benefit from your contribution, it may also give you better insight into whether this is the right career for you. Some agencies may also have formalized internship programs that would provide you with greater experiences in the day-to-day activities of the organization.
- 448. 323 History of Victims’ Rights The fight for victims began as a grassroots movement during the 1970s in response to the lack of attention by the criminal justice system to victims’ issues. Groups such as Mothers Against Drunk Driving, Parents of Murdered Children, and the National Organization for Victim Assistance were developed.16 In 1972, the first victim services organization was developed in St. Louis, Missouri (Crime Victim Advocacy Center), and it remains in operation today. At the same time, the women’s movement led to the development of organizations such as rape crisis and domestic violence centers to provide services to victims of these crimes. Indeed, two of the three original victims’ services organizations served this population—the Bay Area Women Against Rape in San
- 449. Francisco, California, and the D.C. Rape Crisis Center in Washington, D.C. The general mission of these efforts was to raise awareness of the needs of victims and to provide support to them and their families. In 1982, President Ronald Reagan established the Presidential Task Force on Victims of Crime. Composed of law enforcement officers, lawyers, and members of the judiciary as well as victim advocates, the task force’s report included 68 recommendations to reform the experience of crime victims. Many of these recommendations have since been adopted into law. For example, the Victim and Witness Protection Act of 1982 was passed by Congress to provide fair treatment to crime victims and witnesses. In 1983, the Office for Victims of Crime was established within the Office of Justice Programs to help implement the recommendations of the presidential task force and to provide resources and assistance to local professionals and jurisdictions. Perhaps one of the most significant recommendations that was incorporated into law was the 1984 Victims of Crime
- 450. Act (VOCA), which established the Crime Victims Fund. To date, the fund has received almost $19 billion.17 Presidential Task Force on Victims of Crime: Task force created in 1982 by President Ronald Reagan to develop recommendations to reform the experience of crime victims. Victim and Witness Protection Act of 1982: Passed by Congress to provide fair treatment standards to crime victims and witnesses. Victims of Crime Act: Federal legislation that established the Crime Victims Fund. 324 Lucia McBath receives a hug after reading her victim impact statement at the sentencing hearing for Michael Dunn. Dunn was convicted of first degree
- 451. murder for shooting 17-year- old Jordan Davis in Jacksonville, Florida, after a dispute over loud music. What rights are afforded to victims during the trial process? © AP Photo/The Florida Times-Union, Bruce Lipsky, Pool 325 The Current State of Victims’ Rights Over the past three decades, a number of different policies at the federal level have focused on expanding the rights of victims and providing resources for training programs for criminal justice professionals and resources for community services. Table 5.3 highlights some of the policies that have been implemented at the federal level that have focused on victims. While all of these legislative actions helped to increase resources and services for victims, it is the Crime Victims’ Rights Act of 2004 (18 U.S.C. section 3771) that currently provides victims
- 452. with legal rights in federal criminal cases. These rights include the following: 1. The right to be reasonably protected from the accused 2. The right to reasonable, accurate, and timely notice of any public court proceeding or any parole proceeding involving the crime, or of any release or escape of the accused 3. The right not to be excluded from any such public court proceeding unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding 4. The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding 5. The reasonable right to confer with the attorney for the government in the case 6. The right to full and timely restitution as provided in law 7. The right to proceedings free from unreasonable delay
- 453. 8. The right to be treated with fairness and with respect for the victim’s dignity and privacy Crime Victims’ Rights Act of 2004: Federal legislation that provides victims with legal rights in federal criminal cases. Table 5.3 326 While there have been two attempts to introduce a federal amendment for victims’ rights to the U.S. Constitution, these efforts have been unsuccessful to date. However, several states have amended their individual constitutions to expand victims’ rights. California was the first state to establish constitutional rights for crime victims and continues to have one of the most comprehensive bills of rights for victims in the nation.18 Today, 35 states have amended their
- 454. constitutions to provide rights to victims during the criminal justice process. While the laws vary from state to state, they generally allow for the victim to receive information about the process, attend court hearings, be heard, and receive restitution.19 Figure 5.1 highlights one of the more common features of these individual state laws. In addition to the constitutional amendments for these jurisdictions, all 50 states as well as the District of Columbia, the U.S. Virgin Islands, Puerto Rico, and Guam have established programs to provide crime victims with compensation.20 327 Figure 5.1 States With Constitutional Amendments Granting Victims the Right to Confer With Prosecution* Source: Adapted from the National Center for Victims of Crime.
- 455. *The following states do not have a victims’ rights amendment: Delaware, District of Columbia, Georgia, Hawaii, Iowa, Kentucky, Maine, Massachusetts, North Dakota, New Hampshire, New York, Pennsylvania, Rhode Island, South Dakota, West Virginia, and Wyoming. In those states that have a victims’ rights amendment, all but Montana provide victims with the right to be informed, present, and heard during criminal proceedings. States where victims have the right to confer with prosecution: Connecticut, Virginia, North Carolina, South Carolina, Tennessee, Michigan, Wisconsin, Illinois, Indiana, Louisiana, Texas, New Mexico, Arizona, Idaho, Oregon, and Alaska. State where victims do not have the right to confer with prosecution: Maine, New Hampshire, Vermont, Massachusetts, New York, Rhode Island, New Jersey, Pennsylvania, Ohio, Delaware, Maryland, DC, West
- 456. Virginia, Kentucky, Florida, Georgia, Alabama, Mississippi, Arkansas, Oklahoma, Missouri, Kansas, Iowa, Nebraska, Minnesota, North and South Dakota, Colorado, Wyoming, Montana, Utah, Nevada, California, 328 Washington, and Hawaii. In addition to efforts to increase the rights of victims, practices such as restorative justice have created alternative models of justice that provide increased opportunities for victims to have a voice in the criminal justice process. Restorative justice (RJ) programs not only are victim centered but also provide offender-sensitive responses to crime. There are several different types of models of restorative justice programming, and they include both diversion and therapeutic-based interventions. You’ll learn more about the pros and cons of restorative
- 457. justice in the Current Controversy debate at the end of this chapter. Restorative justice: Alternative model of justice that provides increased opportunities for victims to have a voice in the criminal justice process. 329 Victims in the Criminal Justice System While the fight for the rights of victims has led to several improvements in the criminal justice system, the role of victims is often minimized. In Chapter 1, you learned about the criminal justice process. Now, consider how a case moves through the criminal justice system from the victim’s perspective. In order for offenders to be held accountable for their actions, the police must be made aware of their crimes. At this point, police may exercise their discretion on whether or not to make an arrest. While many
- 458. department policies allow for the victim to give her or his input into this decision, police are not required to follow the wishes of the victim. In many cases, mandatory arrest policies may require that an arrest be made, regardless of what the victim wants. Once a case reaches the court, criminal charges are filed by the district attorney or prosecutor. Victims do not get to choose whether charges are filed against an offender. Under criminal law, the criminal act is considered a violation of the laws of the state (or, depending on the type of law violation, a municipality or the federal government). This is why the name of a criminal case is listed as the State or U.S. v. John Doe and not Jane Smith (victim) v. John Doe. The prosecutor is also in charge of determining whether a plea bargain will be offered to the offender. Finally, it is the judge who determines the sentence for the offender. While the push for victims’ rights has allowed greater participation throughout this process, it is still the criminal justice system that controls the outcome.
- 459. 330 Spotlight Politics and Victims’ Rights: The Violence Against Women Act The fight for victims’ rights is often a challenging one. Sometimes, this process can get tangled up as part of a political battle. Consider the most recent reauthorization efforts of the Violence Against Women Act in 2012. First passed in 1994, the Violence Against Women Act (VAWA) provided victims of intimate partner violence (IPV) support through the allocation of federal funds for prosecuting offenders, the coordination of services for victims, and the establishment of the Office of Violence Against Women within the Department of Justice. Reauthorized with support from both sides of the politi cal aisle in 2000 and 2005, the VAWA continued to
- 460. expand the rights of victims in these cases. Each reauthorization also increased the support for research in the field, training for criminal justice professionals, and services for victims. Table 5.4 highlights the allocation of resources and the provision of services through the different reauthorizations of the VAWA. However, the 2012 attempts to reauthorize the bill were filled with partisan debates over the protections of victims of IPV for specific populations, such as same-sex victims, immigrants, and Native Americans. What had once been a joint collegial effort between Democrats and Republicans transformed into a hotly contested political debate. Alas, conservatives and liberal representatives were unable to find a compromise on the issues prior to the end of the 2012 congressional session.a The issue was once again raised at the outset of the 2013 congressional session. Despite holding a majority of representatives in the House, the
- 461. GOP version of the bill, which advocated for narrower protections for certain population groups, ultimately failed. This paved the way for the House to pass the Senate’s version of the bill in February 2013, which ensures that LGBT, Native American, and immigrant victims have access to federally funded programs and resources.b The 2018 reauthorization bill was introduced by Sheila Jackson Lee (D-TX) on July 26, 2018; it provides for expanded programs on youth education and prevention and allocates additional resources for victims.c In order for any current funding to continue or any proposed additions to be incorporated, Congress needed to pass VAWA before it expired on September 30, 2018. As of this writing, it was yet to be determined whether VAWA would be reauthorized.. Violence Against Women Act: Federal legislation that provides victims of intimate partner violence
- 462. support through the allocation of federal funds to prosecute offenders, the coordination of services for victims, and the establishment of the Office of Violence Against Women. Table 5.4 331 Sources: Lisa N. Seghetti, The Violence Against Women Act: Overview, Legislation and Federal Funding, Congressional Research Service, 2012, http://www.fas.org/sgp/crs/misc/R42499.pdf; National Coali tion Against Domestic Violence, Comparison of VAWA 1994, VAWA 2000, and VAWA 2005 Reauthorization Bill, 2006, http://www.ncadv.org/files/VAWA_94_00_05.pdf; Office of Violence Against Women, VAWA 2013
- 463. Summary: Changes to OVW-Administered Grant Programs, November 6, 2013, https://www.justice.gov/sites/default/files/ovw/legacy/2014/06/ 16/VAWA-2013-grant-programs- summary.pdf. 332 http://www.fas.org/sgp/crs/misc/R42499.pdf http://www.ncadv.org/files/VAWA_94_00_05.pdf https://www.justice.gov/sites/default/files/ovw/legacy/2014/06/ 16/VAWA-2013-grant-programs-summary.pdf Who Are the Victims of Crime? In Chapter 3, you learned about the National Crime Victimization Survey (NCVS) and how it helps to reveal the dark figure of crime—those crimes that are not reported to the police. We can use this data to get a better understanding about the extent of victimization in the United States. Data from the NCVS is organized into two
- 464. separate categories: personal crime and property crimes. Within the category of personal crime, the NCVS looks at the acts of rape and sexual assault, robbery, simple and aggravated assault, and pickpocketing/purse- snatching. Within the category of property crime, the following four offenses are included: burglary, theft, motor vehicle theft, and vandalism. Figure 5.2 Rate of Victimization Reported and Not Reported to Police, 2016 Source: Rachel E. Morgan and Grace Kena, Criminal Victimization, 2016, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2017, https://www.bjs.gov/content/pub/pdf/cv16.pdf. According to the NCVS, both violent crime and property crime are underreported, with 333 https://www.bjs.gov/content/pub/pdf/cv16.pdf
- 465. property crimes less likely to be reported. In addition, there are differences between the types of crimes and their reporting rates. For example, in 2016 the rate of victimization for reported cases of robbery was 1.0, compared with 0.7 for unreported cases. This means that there were more robbery cases reported to the police than not reported. In contrast, the rate of rape or sexual assault cases reported to the police was 0.3, compared with an unreported rate of 0.9. Within property crimes, the rate of reported cases of motor vehicle theft was 3.5, compared with a rate of 0.8 of unreported cases. Reported cases of general theft had a rate of 26.9, compared with an unreported rate of 62.3.21 With only 42% of victims reporting violent crime and 36% of victims reporting property crime, the NCVS provides valuable insight about the dark figure of crime that is missing in official crime statistics. However, this dark figure varies by offense, indicating that victims may be more likely or less likely to make a report to the police
- 466. depending on the type of victimization. For example, while 59% of cases of aggravated assault were reported, victims reported only 38% of simple assault cases. Similar patterns are observed in cases involving property crimes. While 80% of cases of motor vehicle theft were reported, other thefts were reported only 30% of the time.22 Figure 5.3 Violent Victimization by Type of Crime, 2003, 2011, and 2016 Source: Morgan and Kena, Criminal Victimization, 2016. 334 The bar chart is titled, Violent Victimization by Type of Crime, 2003, 2011, and 2016. The following questions have been raised next to the chart: Many crimes have seen a decrease in victimization over the past
- 467. decade. Which crimes have experienced the greatest reductions? Which acts have stayed the same? How do you explain these patterns? Rate, per 1,000 is plotted on the vertical axis on a scale of 0 to 13, at increments of 5. The type of crime is plotted on the horizontal axis. For each type of crime, data in the chart is given as a list below in the following order: rate per 1,000 in 2003; rate in 2011 and rate in 2016. All values are approximate. Intimate partner violence: 4; 3; 2.5. Domestic violence: 6; 5; 4.5. Simple assault: 22; 15; 14. Aggravated assault: 5.5; 4; 3.5. Assault: 27.5; 19.5; 18. Robbery: 3; 2.5; 2.
- 468. Rape/sexual assault: 1.5; 1; 1.25. Total violent crime: 32; 22.25; 21. The NCVS also provides opportunities to learn about demographic differences in victimization. Table 5.5 highlights the rates of violent victimization by sex, race/ethnicity, age, and household income. A review of this information indicates that men and women have similar rates of violent crime victimization. Individuals who identify as American Indian or Alaska Native have the highest rates of victimization when compared with Whites and Hispanics, who have the lowest rates of violent victimization. We also learn that the rate of victimization decreases as individuals age and as their household income increases. Also of note, the rate of violent victimization is highest in the Midwest and West (compared with the Northeast and the South), and these crimes are most likely to occur in urban areas (although it is interesting to note that the rate of violent victimization is higher in rural areas than
- 469. suburban areas). In addition, we also see demographic differences in reporting rates for these crimes. Figures 5.4 to 5.7 demonstrate that men are slightly more likely to report their violent victimization to the police. In terms of race/ethnicity, Hispanics are most likely to report their victimization. While the reporting rates increase as individuals get older, they generally decrease as household income increases. Table 5.5 335 Source: Morgan and Kena, Criminal Victimization, 2016. 336 Figure 5.4 Reporting of Violent Victimization by Sex, 2016 Figure 5.5 Reporting of Violent Victimization by
- 470. Race/Ethnicity, 2016 337 Figure 5.6 Reporting of Violent Victimization by Age, 2016 Figure 5.7 Reporting of Violent Victimization by Household Income, 2016 The bar chart is titled, Reporting of Violent Victimization by Household Income, 2016. The data for each household income category can be shown in the list below: <$ 10,000: 43.7 $ 10,000-$ 14,999: 50.2 338 $ 10,000-$ 24,999: 45.3
- 471. $ 10,000-$ 34,999: 42.2 $ 10,000-$ 49,999: 34 $ 10,000-$ 74,999: 42.4 >$ 75,000: 39.4 Like other data sets, the NCVS has limitations that need to be considered when reviewing its findings. While the NCVS illuminates the dark figure of crime, the types of crime that it collects data on are different than the UCR data. This makes it difficult to make direct comparisons between the two datasets. For example, the NCVS does not include information on the crime of homicide since the NCVS requires individuals to report those crimes that they personally experience. The NCVS also includes only individuals over the age of 12. This means that data on childhood victimization are missing from the dataset. From time to time, additional crime data may also be collected
- 472. as a part of the NCVS. This allows for researchers to look at a particular category of crimes that may not be generally covered within the survey. For example, an additional survey was administered in early 2014 to a subsample of the NCVS participants related to the crime of identity theft. While media outlets have suggested that the rates of identity theft have skyrocketed, what do we really know about this crime? If we look at the data from this survey, we learn that approximately 17.6 million people were victimized by acts of identity theft in 2014. The most common crime of identity theft involves the unauthorized use of a banking or credit card account (86% of all cases). While the majority of these cases involve a small amount of money, some cases are quite extensive. Figure 5.8 highlights the costs of identity theft in comparison with other acts of property crime. While the average incident of identity theft ($2,183) is financially similar to an act of burglary ($2,378), there are far more people victimized by identity theft. The overall losses from identity theft are much more expensive, with $24.7 billion lost in
- 473. 2014.23 That year almost 2 million victims had a new account opened in their name or had their personal information used without their knowledge. In the latter situation, a person’s identity might be used without his or her knowledge to rent an apartment or provided to law enforcement in an attempt to evade the police. Most victims are able to easily remedy the violation by working with their financial institution, but not all cases are so handily resolved. 339 Figure 5.8 The Cost of Identity Theft Victimizations, 2012* Source: Erika Harrell and Lynn Langton, Victims of Identity Theft, 2012, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2013, http://www.bjs.gov/content/pub/pdf/vit12.pdf. *Most recent data available.
- 474. The bar chart is titled, The Cost of Identity Theft Victimizations, 2012. The graph has been plotted from the most recent data available. Total losses from identity thefts are plotted on the main vertical axis on a scale of 0 to $30,000,000,000, in $5,000,000,000 increments. A secondary vertical axis shows average loss per incident on a scale of 0 to $9,000 in increments of $1,000. The different types of identity thefts are plotted on the horizontal axis. For each type of identity theft, the total losses and average loss are shown in the list below. Identity Theft: $24.7billion, $2,183 Property Crime: $13.9 billion, $915 Burglary: $5.2 billion, $2,378 Motor Vehicle Theft: $3 billion, $7,963
- 475. Theft: $5.7 billion, $447 340 http://www.bjs.gov/content/pub/pdf/vit12.pdf 341 Unreported Crimes: Why Do Victims Not Report to the Police? There are many reasons why victims might choose not to report their victimization to the police. Some victims feel embarrassed by the crime. Others may decide not to report a crime to the police out of the belief that nothing can be done. In many cases, people don’t report the crime because they believe that the crime was not serious enough to make a big deal over it. Still others believe it is a personal matter. For some victims, a fear of retaliation can affect their decision to make a report to the police.
- 476. However, a failure to report does not mean that victims do not seek assistance for issues related to their victimization experience. In fact, victims often seek help from resources outside of law enforcement, such as family and friends, and many seek assistance through formal mental health services following a victimization experience.24 While many victims may be reluctant to seek formal help, research suggests that those who receive positive support from informal social networks, such as friends and family, are subsequently more likely to seek out formal services, such as law enforcement and therapeutic resources. In these cases, informal networks act as a support system to help victims seek professional help and to make an official crime report.25 Victims may also choose not to report their crimes due to concerns about secondary victimization. The concept of secondary victimization refers to the practice whereby victims
- 477. of crime feel traumatized as a result of not only their victimization experience but also the official criminal justice system response to their victimization. For those cases that progress beyond the law enforcement investigative process, few have charges filed by prosecutors, and only rarely is a conviction secured. Indeed, many victims indicate that had they known what was in store for them, they might not have reported the crime.26 Secondary victimization: A process whereby victims feel traumatized not only as a result of their victimization experience but also by the official criminal justice system response to their victimization. 342 Around the World Criminal Victimization in a Global Context While the National Crime Victimization Survey measures
- 478. victimization in the United States, there are other surveys designed to look at these issues from an international perspective. Similar to the NCVS, the Crime Survey for England and Wales (CSEW) is administered to a random sample of households and is designed to develop estimates about the rate of crime and victimization in England and Wales. The CSEW first began as part of the British Crime Survey in 1984 and included data from Scotland and Northern Ireland. Today, these jurisdictions carry out their own victimization surveys, though the design and intent of the data collections are similar. Like the NCVS, the CSEW attempts to shed light on the dark figure of crime by capturing victimizations that may not be reported to the police. While the NCVS collects data on individuals ages 12 and over, the CSEW data includes individuals ages 16 and older. In 2017, the CSEW estimated that approximately
- 479. 10.6 million incidents of victimization against individuals and households had occurred. This means that 2 in 10 adults were the victim of a crime in that year. While this number seems high, it is actually much lower than previous surveys. Not only was this rate 4% lower than 2015, it represented a 38% reduction since 2007 and a 60% reduction since 1966.a Meanwhile, the International Crime Victims Survey (ICVS) compares levels of crime victimization on a global level.b The ICVS measures 10 common crimes (car theft, theft from a car, bicycle theft, burglary, attempted burglary, robbery, theft of personal property, sexual offenses, and assault and threat). These data indicate that the countries of Ireland, England and Wales, New Zealand, and Iceland have the highest levels of victimization, whereas the lowest rates are found in Spain, Japan, Hungary,
- 480. and Portugal. The ICVS also looks at the rates of victimization in major cities as compared with the rates of victimization for the country overall. For all 32 cities investigated, the levels of victimization for these common crimes are higher in the city compared with the national rate of victimization for the country as a whole. Figure 5.9 demonstrates these differences. For example, the average victimization rate in these countries is 15.8 per 1,000 residents, compared with 19.9 in the major cities.c 343 Figure 5.9 International Rates of Crime Victimization Source: European Survey of Crime and Safety (2005 EU ICS), Brussels, Gallup Europe. Copyright © 2007
- 481. Gallup, Inc. All rights reserved. The content is used with permission; however, Gallup retains all rights of republication. The bar chart is titled, International Rates of Crime Victimization. Main cities and the respective countries are plotted on the vertical axis. The rates of victimization are plotted on the horizontal axis on a scale of 0 to 50, at increments of 10. For each of the locations, the rates for main city and country are given in the list below. All data, except the average values, are approximate. Average: 19.9, 15.8. 344 London (England & Wales): 32, 22.
- 482. Tallinn (Estonia): 29, 20. Amsterdam (Netherlands): 27, 19.5. Reykjavik (Iceland): 26.5, 21. Belfast (Northern Ireland): 26, 20. Dublin (Ireland): 26.25, 22. New York (USA): 23.5, 17.5. Copenhagen (Denmark): 23, 18.5. Stockholm (Sweden): 22.5, 16. Warsaw (Poland): 19, 14. Oslo (Norway): 22, 15. Helsinki (Finland): 20.25, 12. Zurich (Switzerland): 20, 18. Brussels (Belgium): 20, 17.25.
- 483. Berlin (Germany): 18.5, 12.5. Istanbul (Turkey): 17.5, not available. Paris (France): 17.5, 13. Vienna (Austria): 17, 11.25. Edinburgh (Scotland): 16, 12.75. Rome (Italy): 16.25, 12. Sydney (Australia): 15.25, 16. Madrid (Spain): 13, 8.75. Athens (Greece): 12.75, 12. Budapest (Hungary): 12.25, 10. Lisbon (Portugal): 9.75, 10.25. Hong Kong (SAR China): 7.5, not applicable.
- 484. 345 346 Conclusion While most criminal offenses involve a victim, much of the response by the criminal justice system has traditionally focused on the offender. As a resul t, victims may not feel like the criminal justice system effectively responds to their needs. According to the National Crime Victimization Survey, there may be as many as 3 million victims of violent crime and more than 15 million property crime victimizations in the United States annually.27 While significant progress has been made to address victims’ rights over the past few decades, there are still several areas of unmet needs for victims. While criminal justice policies have
- 485. attempted to bridge the gap for victims by increasing resources and improving processes within the criminal justice system, there is still work to be done in this area. As you read through the chapters of this text and learn about the different agents of the criminal justice system and the roles that they play, ask yourself how victims are represented in each of these processes and how we might improve on these experiences. Are there things that we can do to help prevent victimization? Are there alternatives to the criminal justice system that could provide a better experience for crime victims? 347 Current Controversy 5.1 Are Colleges and Universities the Best Place to Respond to Campus Sexual Assault? —Allison Foley— Where do you stand? Cast Your Vote! 348
- 486. https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-5/current-controversy-videos Introduction Imagine your college roommate was sexually assaulted by a classmate who lives in your dorm. Your roommate is hesitant to report this to the police and simply plans to stop attending class and to sleep on a friend’s couch for a while in order to avoid the perpetrator. Unfortunately, this is a realistic scenario for many college students who experience sexual assault. One in 5 women and 1 in 16 men experience sexual assault—including nonconsensual sexual touching in addition to rape—in college.28 The majority of victims do not report these crimes to authorities. Students who experience sexual assault are at increased risk for a range of problems including depressi on,
- 487. anxiety, posttraumatic stress disorder, suicide, substance abuse, and academic failure. So what should the role of colleges and universities be in responding to sexual assault? Are colleges and universities the best place to address it, or should this be left to the criminal legal system? 349 PRO: Universities Should Investigate Campus Sexual Assault The first reason why universities should investigate sexual assault is that it is required by a federal law known as Title IX, which is a part of the Education Amendments Act passed in 1972. Title IX prohibits federally funded educational institutions from discriminating against or denying educational opportunities and benefits to anyone on the basis of their sex.29 A series of court cases and Department of Education guidelines later established that colleges and
- 488. universities would violate this law if they failed to respond to sexual harassment or sexual assault. How does this constitute discrimination or denial of educational opportunities and benefits? Studies consistently show that females are more likely than males to experience sexual assault; transgender students are at highest risk.30 This means females and transgender individuals are more likely to experience the emotional and academic problems that result from such assaults, such as dropping out of school, failing exams and courses, and losing scholarships. If universities did nothing, they would be placing females and transgender individuals at higher risk of having their educational rights violated. Still, these policies require universities to respond to sexual assault of males as well. Proponents of the university process also point to the actions universities can take that criminal courts cannot. If a student reports her or his assault to the university’s police or a
- 489. Title IX Coordinator or Office, the university could implement what Title IX guidance refers to as “interim measures” that could help the student avoid academic failure.31 Examples include issuing a no-contact order against the perpetrator, changing the victim’s class schedule, negotiating with a professor for extended due dates or makeup assignments, new housing arrangements, and/or making appointments with mental and physical health services and counselors. Universities can also punish offenders for violating the student code of conduct. To do so, university faculty and staff members investigate the incident and convene a panel of faculty and staff members to hear the case. The process is similar to when a student cheats on an exam, physically assaults someone at a school event, or has drugs, alcohol, or a gun in student housing. The faculty and staff involved, however, generally have received specialized training about
- 490. Title IX and the nature of sexual assault. Consequences for offenders can include reprimands or warnings, loss of privileges, no-contact orders, residence hall relocation or eviction, a notation on one’s academic transcript, probation, and even suspension or expulsion; counseling, written assignments, and community service may be required as well.32 The criminal court system does not have jurisdiction to impose many of these sanctions, which makes the university process particularly important for assisting victims and protecting students. The university process can and often does take place simultaneously with a criminal court process, but proponents of the university system rightly point out the flaws of the criminal legal system. The majority of cases reported to law enforcement do not result in arrest or conviction. Estimates show that for every 1,000 rapes, about 300 are reported to
- 491. police, 57 arrests are made, and 11 cases go forward through the criminal courts, resulting in seven people convicted and six incarcerated.33 This is in part because these cases can be difficult to prove beyond a reasonable doubt, particularly when alcohol or drugs are involved to cloud memory. Many victims choose not to report to law enforcement for fear that they will not be believed or will struggle through the lengthy and intimidating court process. Student victims may feel more comfortable staying within the confines of the smaller, more private university system. 350 351 CON: Universities Should Let Criminal Courts Handle Cases of Sexual Assault
- 492. Despite Title IX requirements and the benefits universities provide, critics argue that the criminal legal system is still the best system, despite its flaws. These critics often point to the lack of due process—a foundational component of the criminal legal system—in university proceedings. Law professors at Harvard and the University of Pennsylvania have issued statements criticizing their universities’ Title IX policies and processes for “stack[ing the deck] against the accused” and overreaching beyond what is required by Title IX regulations.34 They specifically take issue with “victim-centered” policies when they deny or limit the accused’s ability to defend himself or herself in a manner that is routine in criminal courts. For instance, universities do not or have not always allowed accused students to review the evidence against them before the hearing, to confront the victim and any witnesses during the hearing, or to have an attorney to
- 493. represent them. A second and related critique of the university process is that the risk of a wrongful conviction due to a false accusation is higher. This is because the Department of Education’s Office of Civil Rights, in a 2011 “Dear Colleague” letter, required universities to decide sexual assault cases based on a preponderance of evidence standard.35 Commonly used in civil courts—for instance when an abuse victim seeks a protective or restraining order against an abuser—this standard requires an accused student to be found responsible (or guilty) when the majority of the evidence (at least 51 percent) suggests it. This was a significant change, as the prior standard was higher—clear and convincing evidence was required. Higher still, of course, is the beyond a reasonable doubt standard used in criminal courts. Many people and groups, from legal experts and politicians to the American
- 494. Association of University Professors, oppose the preponderance of evidence standard. The new secretary of education Betsy DeVos reversed that requirement in 2017, but universities have the option to continue it.36 The final argument in favor of the criminal process is that it can implement punishments that universities cannot. A student who is expelled from school for sexual assault can still enroll in a new school, move away, have a job, and live life freely—and with the freedom to rape someone again. While arrest, conviction, and imprisonment do not happen frequently enough, when the system works, perpetrators are punished, ordered to complete treatment programs, supervised in the community if released, and oftentimes tracked for the rest of their lives via the sex offender registry. The flaws of the criminal legal system are real, but, as former secretary of homeland security and current University of
- 495. Southern California president Janet Napolitano said, “Rather than pushing institutions to become surrogates for the criminal justice system, more work should be done to improve that system.”37 Collectively, the critics argue, victims may be fleeing one flawed system in favor of another flawed system—one which may have less power to protect and deter those ultimately responsible for sexual assault: the perpetrators. 352 Conclusion Given these pros and cons, it is clear that each system has its flaws. Proponents of the university system express concern that the criminal system stacks the deck against victims, while critics express concern that the university system stacks the deck against the accused. The fundamental difference between the two is the standard of evidence
- 496. used to determine guilt or responsibility for the offense. Aside from this, most everyone agrees that the flaws in each system are real and should be addressed. Despite this, both systems play an important role as each is set up to sanction offenders in its own unique way. Universities can provide unique and significant forms of assistance to victims as well. Regardless of the debate, universities will remain involved in responding to sexual assault on campus unless federal laws change. 353 Discussion Questions 1. Given the rarity of criminal convictions for sexual assaults, do you think being investigated and arrested for sexual assault is a stronger deterrent than being suspended or expelled from school? Why or why not?
- 497. 2. What are the advantages and disadvantages of the preponderance of evidence standard? 3. When it comes to sexual assault cases, how could the university process be improved? How could the criminal legal system be improved? Would it be harder to improve the university process or the criminal legal system? 354 Current Controversy 5.2 Is Restorative Justice an Effective Tool for Victims? —Kimberly J. Cook— Where do you stand? Cast Your Vote! 355 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-5/current-controversy-videos
- 498. Introduction While some people correctly point to ancient traditions of indigenous cultures as the starting point for restorative justice (RJ), the modern application of this practice is fairly young. In the 1980s, New Zealand began implementing what was called family group conferencing as a means to address juvenile offending. The practice there stemmed from a Maori tradition (whānau) in which the extended family of offenders (and victims, whenever possible) would meet with the offenders to discuss what happened, why it happened, and how it could be repaired to the satisfaction of the community, the victim, and the extended families. Eventually, the practice became routine within the juvenile court system and adapted within the adult courts as well. Australia adapted the practice in the 1990s and established diversionary conferencing programs in some limited
- 499. jurisdictions that eventually spread throughout the country. The idea for diversionary conferences was to “divert” juvenile offenders out of the formal court system by offering them an opportunity to take responsibility for their actions and make amends at the same time. This early Australian application of RJ was housed within local police departments, and sessions were conducted by specially trained police officers. The sessions provided space for victims and their supporters to describe how the crime injured them so that the offender could hear it firsthand; it also provided offenders time to explain their behavior, take responsibility for it, and possibly apologize and then make amends. In addition to diversion programs, some RJ initiatives are therapeutic in design. An example of a therapeutic RJ program is the postconviction Victim–Offender Mediated Dialogue program in Texas. It provides opportunities for
- 500. victims and survivors of violent crime (including homicide) to meet with the person convicted of those crimes. Victims who are interested in this option can register with the state department of corrections, and the incarcerated offender can register his or her willingness to participate, provided the offender promises to take responsibility for the crime. Once both sides express their interest in this meeting, a professionally trained facilitator meets with both and outlines a complex plan to prepare for the meeting. Preparations can take months and perhaps well over a year, depending on the case. Both offenders and victims can back out at any time should they desire to do so. Offenders gain no speci al advantages for participating. 356
- 501. As part of a restorative justice program, victims and offenders meet to talk about the crime and the experience of victimization. Research indicates that such programs can be a therapeutic and healing option in some cases. Under what circumstances might this not be a positive experience? Christian Science Monitor/Getty Images 357 PRO: Restorative Justice Is an Effective Tool for Victims During the early phase of the development of restorative justice practices involving juvenile offenders, scholars such as John Braithwaite, Lawrence Sherman, and Heather Strang tested the program to determine whether RJ was an effective approach compared with those of conventional courts in cases involving nonviolent crime, some violent crime, and drunk driving. In order to be approved for this program, the
- 502. young person responsible for the crime was required to admit responsibility and the injured persons had to be willing to participate. The tests documented that for the most part, victims of crime were much more satisfied with the diversionary conferences than victims whose cases went to the conventional court; also, young people responsible for the injuries were more satisfied than young people whose cases went to court as well. Typical resolutions included paying back the cost of what was lost or damaged during the offense, agreeing to stay out of trouble, and apologizing for the crime. These early findings inspired jurisdictions from around the world to build RJ programs within their communities. Making amends in cases of severe violence, such as the rape and murder of a young woman, is impossible. Taking responsibility and offering genuine information to the victim’s survivor is possible, however. In one case, a mother and
- 503. her granddaughter met with the man who killed their daughter/mother thirteen years after the murder was committed. The victims were able to talk about aspects of their loved one’s life that were important for them to share with the offender—their daughter/mother and the new baby she had just found out she was carrying, the family’s loss when she died, the pain of their grief, the loss of their sense of security, and many other aspects of how this tragedy affected their lives. The offender was able to explain how messed up he was as a boy and as a teen when he committed the crime. He related how he was abandoned by his parents to a series of abusive foster care situations, how he attempted suicide when he was eight years old, his experience being in juvenile detention at a very young age, how he got in trouble with the law, how he performed poorly in school, and how he had no guidance throughout his sad young life. He also
- 504. shared how deeply he regretted that violent act every day of his life. The offender shared with them his victim’s final words—“God will forgive you, and so do I”—which always haunted him. This knowledge was a comfort to the victims because it affirmed for them that their family member’s last act was peaceful and loving even as she faced the horrific reality of her own death. They spent about nine hours talking to each other, crying, being silent, holding hands, praying, and also laughing, hugging, and taking photos together. It seems incredulous to imagine such a meeting, but such is the capacity of restorative justice.38 Research into RJ programs shows promising results: Victims feel more satisfied and heard, and offenders have a place where they can take responsibility and genuinely offer their apologies to those who suffered from their actions. There are many organizations that promote restorative justice, and searching online will yield a wealth of information.
- 505. Ultimately, as Professor Braithwaite says, “If crime is about injury, then justice should be about healing.” Participants in restorative justice programs have stated that these meetings can create the space and the opportunity for healing to occur.39 358 CON: Restorative Justice May Not Be the Best Option for Victims On the other hand, scholars and practitioners caution against using restorative justice in some cases. Concerns can center on whether the offender is truly remorseful for his or her actions. For instance, imagine a situation in which a battered woman might desire an RJ-based remedy for her and her children’s needs, but her abusive (former) partner continues to be manipulative and emotionally abusive. During
- 506. the meeting, he may behave in ways that trigger her continued trauma rather than provide opportunities for healing and moving forward. Such situations must be avoided, and facilitators need to be perpetually vigilant regarding the possibility of continued abuse of victims and survivors. Furthermore, some scholars and practitioners suggest that RJ may not be well suited for culturally specific situations. For example, some scholars argue that victims of gendered violence within Indian cultures would likely continue to be victimized given the powerful cultural emphasis on women’s submission and the patriarchal power of men.40 359 Conclusion Restorative justice programs have been successful in many settings. Such options provide crime victims and
- 507. communities the opportunity to serve as active participants in the criminal justice experience, and these programs can also provide avenues for healing. However, such a model does not fit all offenders and all victims. The challenge is understanding when and where such programs would be the most effective. 360 Discussion Questions 1. Do you think restorative justice programs offer an opportunity for closure for victims of crime? 2. What are the challenges that exist in implementing these types of programs? 3. How might the criminal justice system learn from this approach? 361
- 508. Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Crime Victims’ Rights Act of 2004 100 Just-world hypothesis 97 Lifestyle theory 99 Presidential Task Force on Victims of Crime 100 Restorative justice 101 Routine activities theory 98 Secondary victimization 109 Victim 95 Victim and Witness Protection Act of 1982 100 Victim blaming 98 Victimology 96 Victims of Crime Act 100 Violence Against Women Act 104 362 http://edge.sagepub.com/mallicoatccj2e
- 509. Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. In what ways does the criminal justice system fail to meet the needs of victims? 2. How do secondary victimization and blaming the victim impact rates of reporting crimes? 3. How do perspectives such as routine activities theory and lifestyle theory help explain the risks of victimization? 4. How does the National Crime Victimization Survey add to our understanding about the presence of crime in society? 363
- 510. http://edge.sagepub.com/mallicoatccj2e Learning Activities 1. While many states have constitutional amendments that provide rights for victims of crime, attempts to create a federal victims’ rights amendment have failed. Investigate these failed attempts and highlight some of the challenges that these efforts have faced. How would you design a new campaign for a federal victims’ rights amendment? 2. Compare the crime rates between (1) the National Crime Victimization Survey and (2) the Uniform Crime Reports and National Incident-Based Reporting System data. How are these data similar? How are they different? How can we use these different types of data together to develop an understanding about crime rates in society? 3. Research your campus policies on reporting and responding to acts of rape and sexual
- 511. assault. How do these efforts compare with the requirements set forth by state and federal policies such as Title IX? 364 Suggested Websites National Center for Victims of Crime: http://www.victimsofcrime.org Office for Victims of Crime: http://www.ovc.gov Crime Victims United: http://www.crimevictimsunited.com California Victim Compensation Program: http://vcgcb.ca.gov/victims/ Victims’ Voices Heard: http://www.victimsvoicesheard.org Restorative Justice Online: http://www.restorativejustice.org 365 http://www.victimsofcrime.org http://www.ovc.gov http://www.crimevictimsunited.com http://vcgcb.ca.gov/victims/
- 512. http://www.victimsvoicesheard.org http://www.restorativejustice.org Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 5.1 Barb Lamanna: Victim Advocate SAGE News Clip 5.1 Female House Members: Don’t Dismantle Title IX
- 513. 366 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e 367 6 Criminal Justice Policy 368 Theo Stroomer/Stringer/Getty Images News/Getty Images 369 Learning Objectives Define how polices can be used in criminal justice
- 514. Explain why we need criminal justice policies Describe how criminal justice policies develop Analyze how politics impact criminal justice policies Explain the importance of research in criminal justice policies The war on drugs began in 1971 when President Richard Nixon declared the abuse of illegal drugs as “public enemy number one.” While the trend of decriminalization experienced a brief revival under President Jimmy Carter in the late 1970s, the tides shifted back to drugs as a criminal justice issue during President Ronald Reagan’s administration. The campaign to “just say no” led to stricter legislati on and enhanced penalties. Throughout the 1980s, the public’s fears about drugs grew exponentially.1 In October 1986, Reagan signed the Anti–Drug Abuse Act. In addition to allocating $1.7 billion to expand prison facilities and provide drug education and treatment, the act established
- 515. mandatory minimum sentences for the possession of crack and powder cocaine.2 These regulations existed for almost three decades and both led to the rapid growth in the U.S. prison population throughout the end of the twentieth century and contributed to significant racial disparities in the arrest, prosecution, and incarceration of men and women of color.3 The Fair Sentencing Act of 2010 reduced the sentencing ratio between crack and powder cocaine to an 18 to 1 ratio. Under this new law, a conviction for the possession of 28 grams of crack or 280 grams of powder cocaine triggers a five-year mandatory sentence.4 However, this change in policy was not retroactive, meaning those who had previously been sentenced under such draconian laws remained incarcerated.5 While the Obama administration made significant progress in reforming laws associated with the war on drugs, the
- 516. Trump administration and Attorney General Jeff Sessions have signaled a return to the war and the tough-on-crime philosophies of the 1980s and 1990s. In May 2017, Sessions directed federal prosecutors to “charge and pursue the most serious, readily provable offense… . The most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”6 Sessions has argued that drug use is tied to the rise of violent crime, despite evidence to the contrary. For his part, President Trump has signaled his approval of Philippines president Rodrigo Duterte, whose antidrug efforts have resulted in numerous murders of drug suspects by law enforcement and vigilante groups.7 Trump has also stated that the death penalty should be enacted against drug dealers as a way to combat the opioid crisis.8 370
- 517. With the signing of the Fair Sentencing Act in 2010, the sentencing disparity for violations involving crack cocaine and powder cocaine was reduced, but not eliminated. Some argue that because these are just different forms of the same drug, there should be no differences in sentencing. Do you think a person charged with possession of crack cocaine should receive a longer sentence than someone in possession of powder cocaine? © AP Photo/Pablo Martinez Monsivais In this chapter, you will learn about how policy can shape—and is shaped by—the criminal justice system. The chapter begins with a discussion about the need for and function of criminal justice policies. The chapter then looks at how policies are developed and the role of politics in this process. The chapter concludes with two Current Controversy debates related to criminal justice policies. The first, by David Bierie and Sarah
- 518. Craun, looks at whether sex offender registries are an effective tool for keeping the public safe. The second, by Thaddeus Lateef Johnson and Natasha N. Johnson, asks if the United States should increase its laws about gun control. 371 What Is Policy? Policy is used in a variety of ways by the criminal justice system. Policies provide guidance to criminal justice officials. Policies can be particularly useful in cases where there are high levels of discretion. For example, sentencing guidelines have been used in a number of different states as well as by the federal government. These guidelines provide judges with a range that they can use to help make sentencing decisions for offenders. Policies are also used to facilitate and regulate action. In this sense, policies serve as the rules that workers in the
- 519. criminal justice system use to do their jobs. For example, many jurisdictions use mandatory arrest policies in cases of intimate partner violence. Here, officers are required to make an arrest if called to a domestic dispute; an officer’s discretion is significantly reduced, and it is policy that guides her or his action on the job. Frank Loane, a gun shop owner in Maryland, stands in front of a wall of assault rifles at his store. In 2013, Maryland lawmakers passed a sweeping gun control bill, banning 45 types of guns like the ones featured at Loane’s store. The new law requires customers to submit their fingerprints and attend a gun safety course in order to purchase a handgun. Do you think this will reduce gun violence? 372 © AP Photo/Brian Witte Policy: Law or practice that is used to provide guidance to
- 520. criminal justice officials. 373 Why Do We Need Criminal Justice Policies? Changes in criminal justice policy generally occur in response to a need or issue that faces the criminal justice system and society as a whole. Many of these needs are rooted in discussions about the levels of crime in society. Here, policy is seen as a way to deal with the presence of crime and the handling of offenders. The federal government has been an active player in the creation of crime control policies. Given the high level of policy implementation related to criminal justice issues, one might be led to believe that crime rates have spiraled out of control. After all, we have more police officers on the streets, our prisons are overcrowded, and we spend billions of dollars nationwide supporting the enterprise of criminal justice. In
- 521. 2011, the Department of Justice’s budget included $27.1 billion in discretionary funding.9 374 How Do Criminal Justice Policies Develop? While there have been a number of different theories and discussions about the policy development process, we can generally organize this process into six stages: (1) problem identification, (2) policy demands, (3) agenda formation, (4) policy adoption, (5) policy implementation, and (6) policy evaluation. Figure 6.1 show cases how these six stages work together in the development of policy. Figure 6.1 Stages of Policy Development 375
- 522. Source: Adapted from Clarke E. Cochran et al., American Public Policy: An Introduction (Boston, MA: Wadsworth Publishing, 2011). 376 Planning a Policy Before a policy can be developed, there must be an issue at hand. Issues can be identified by concerned citizens, the media, and/or advocacy groups as well as politicians. Issues in criminal justice might include rising crime rates, the need for drug and alcohol counseling in prisons, or concerns about the residency requirements for convicted sex offenders in the community. Once an issue is identified, significant debate can occur about the demands of the policy. What is the goal or objective of the policy? Is it to increase punishments? Is it to increase community safety? It is during this stage that the intent of the policy is put forward. Once this is decided, we move into the agenda formation process.
- 523. This is perhaps one of the most politicized stages in policy development as it involves a variety of different voices—from government officials to special interest groups and individuals who will ultimately be affected by the policy—all of whom want to be heard. 377 Adopting and Implementing a Policy The next stage involves the adoption of the policy. Depending on the nature of the policy, this could involve the passage of new laws or the signing of executive orders. Upon completion of this stage, the cycle moves to policy implementation. Implementation is all about spending money—from hiring more officers to increasing police presence in particular regions to allocating funds to supervise offenders in the community. This can present significant challenges—perhaps the law as it was written was too vague, or there isn’t enough
- 524. funding to effectively implement the policy, or there may be challenges to the policy that may stall or halt its implementation. The ways in which a policy is implemented may differ significantly from the original intention of the authors of the policy. 378 Evaluating a Policy Finally, the evaluation stage looks at the efficacy of the policy. Did the policy accomplish what it set out to do? What impact does the policy have?10 Policy evaluation can be divided into two general categories: process evaluation and outcome evaluation. Process evaluation involves looking at the progression of the policy development experience. Are there areas where these methods could be improved or streamlined? If the implementation of the policy differs from the original intent (positively or negatively), how
- 525. might this be resolved? In contrast, an outcome evaluation looks at the changes that occur as a result of the policy. For example, does the implementation of early intervention programming in elementary school reduce the number of youth who are adjudicated delinquent in juvenile court? It is important that both process and outcome evaluations be conducted in order to identify whether the policy produced a change (outcome) and why the change did or did not occur (process). Evaluation is perhaps the most important stage of policy development but one that many suggest is overlooked and underemphasized. Process evaluation: Method of research that looks at the progress of the policy development experience to determine how the policy is developing and being implemented. Outcome evaluation: Method of research that looks at the changes that occur as a result of a policy to determine whether the policy is effective.
- 526. 379 Who Develops Criminal Justice Policy? When it comes to developing criminal justice policy, there are several key players involved. Political figures such as a congressional member of a state government or a member of the U.S. Congress may sponsor a bill that affects the criminal justice system. Following a period of debate and discussion about the proposed policy, the bill is voted on by the members of the governing body and is then signed into law by either the state’s governor or the president of the United States (depending on whether it is a state or federal policy that is being enacted). For many states, this is the primary way that new policies are developed and implemented. In addition to the creation of new policies, sometimes laws are passed to amend existing regulations. Consider the case of Brock Turner, who was convicted in the state of California
- 527. on three counts of sexual assault for assaulting an unconscious and intoxicated woman following a campus party at Stanford University. While Turner was facing up to 14 years in state prison for his crimes, he was sentenced to just six months in county jail and three years of probation supervision. He will also be required to register as a sex offender for the rest of his life.11 Following the public outcry over this lenient sentence, Governor Jerry Brown signed two bills into law that closed a sentencing loophole in such cases. AB 2888 removed probation as a sentencing option in cases of rape or sexual assault when the victim was either unconscious or intoxicated.12 A second bill (AB 701) expanded the definition of rape to include all forms of nonconsensual sexual assault. Previously, the definition was limited to cases involving lack of consent, force, or duress.13 380
- 528. In a highly controversial decision, Brock Turner was sentenced to only six months in jail for sexually assaulting an intoxicated, unconscious woman. While Turner attempted to appeal his conviction, the court upheld the decision. The judge who handed down the sentence in this case was later recalled by voters. © Historic Collection/Alamy Stock Photo Direct Democracy Some states have an alternative method of creating new laws and policies. Under the practice of direct democracy, citizens in 17 states are empowered to make law through an initiative process. The initiative process begins with a petition for a new law. If a minimum number of 381
- 529. signatures from registered voters is obtained, the measure is placed on the ballot for the citizenry to vote on. In states such as California, if a meas ure receives a majority of the votes, it is enacted into law. What makes the process of direct democracy unique is that it completely bypasses the traditional structures of lawmaking— that is, it does not require the support of elected officials in order to pass new laws. In addition, a policy enacted through the process of direct democracy does not necessarily endure the same rigorous process of vetting the budget in terms of implementation.14 Many of California’s most famous criminal justice policies were created through the citizen initiative process, including the habitual- offender law Three Strikes (Proposition 184, 1994, later amended through Proposition 36 in 2012); Jessica’s Law (Proposition 83, 2006), which created new regulations for sexual offenders; and the diversion of low-level drug offenders from prison to drug treatment (Proposition 36, 2000).
- 530. Direct democracy: Political process by which citizens are empowered to make law through an initiative process. Initiative: Political process by which prospective laws are proposed for voters to approve during an election. 382 The Goals of Criminal Justice Policies In many cases, criminal justice policies are implemented to change the way in which offenders are processed by the criminal justice system. A review of recent history demonstrates that many of these policies are designed to be tougher on crime by increasing the penalties for various crimes and restricting the movement of offenders in the community. Despite the continued push toward retributive punishments, we do find examples of policies that seek to change the definitions of criminal behavior and the responses by police agencies to crime. In recent years, many states have attempted either to
- 531. legalize the use of marijuana for medical purposes or to decriminalize marijuana use in general. For example, in 2010, California citizens introduced an initiative to legalize marijuana. While California’s measure failed that year, other states were successful in changing their laws. In 2012, voters legalized the use of marijuana in both Washington and Colorado. Washington State voters approved the possession of up to an ounce of marijuana for individuals over the age of 21. While the sale of marijuana remains illegal, the state is making plans to set up a system of state- approved growers (similar to having state-licensed liquor stores) within the year, a plan that could bring in hundreds of millions of dollars in revenue to the state.15 A similar law passed in Colorado with 55% of voters in support.16 In 2014, voters legalized marijuana in Alaska, Oregon, and Washington, D.C.17 By 2018, eight states, including California, had legalized
- 532. the general sale of marijuana, and 32 had authorized its use for medical purposes.18 383 Criminal justice policies around the use of marijuana have evolved significantly in recent years as many states move to decriminalize or legalize the practice. How has this policy change come about? 384 © iStock.com/Anchiy Cost-Saving Measures Attempts such as these have highlighted the fiscal concerns of states as many are struggling to maintain the growing incarcerated populations stemming from the implementation of the
- 533. tough-on-crime initiatives that have dominated the criminal justice landscape in recent times. However, the legalization of marijuana is not the only topic in this debate about dollars and cents. For example, the Savings, Accountability, and Full Enforcement (SAFE) for California Act (2012) highlighted the fiscal concerns of maintaining the death penalty. While public-polling data indicated that many California voters were in support of this initiative, it ultimately failed, with only 48% of the votes in favor of the measure.19 In Maryland, legislators sought to introduce a graduated-sanctions program for technical parole violators. Rather than return these offenders back to prison, this program allowed for nonincarceration forms of punishment for cases such as missing a meeting with a parole officer or failing to complete community service hours. This change in policy would have freed up some of the $1 billion that the state spends yearly on its correctional system. Due to the high start-up costs of the program (versus a focus on its long-term savings), its implementation was scaled back
- 534. to only three counties instead of a statewide effort.20 385 Politics and Criminal Justice Policy When we think about politics, we can generally divide beliefs into two separate camps: liberals and conservatives. Liberal politics tend to focus on the importance of due process, individual freedoms, and constitutional rights. Liberals also look to the government to help create equality in society and to solve problems. Socially, liberals believe that the government should help support those individuals who may suffer from various disadvantages in society. In terms of crime-related issues, liberals believe that society should fight against the racist, gendered, and classist disparities that exist in the system. When it comes to the punishment of offenders, liberals tend to lean toward a more rehabilitative focus.
- 535. Liberal: A political perspective that tends to focus on the importance of due process, individual freedoms, and constitutional rights. In contrast, conservative politics lean toward less intervention by the government and focus on traditional values. “Conservatism also refers to a belief that existing economic and political inequalities are justified and that the existing order is about as close as is practically attainable to an ideal order.”21 On crime, conservatives see the actions of criminals as part of a rational- choice process whereby the offender makes a cognitive decision to participate in criminal activity. Conservatives follow more of a law-and-order philosophy and generally cite retributive values, or an “eye for an eye,” in their perspective on punishing offenders. Conservative: A political perspective that follows more of a law-and-order philosophy and generally cites
- 536. retributive values in punishing offenders. Given these different philosophical foundations, it is not surprising that liberals and conservatives think differently about criminal justice policies. One example is Arizona’s immigration law (called the Support Our Law Enforcement and Safe Neighborhoods Act, or SB 1070). Since the law was adopted in 2010, it has been debated by politicians and the public and challenged in the legal arena. One of the more controversial issues within the law calls for police officers to determine whether an individual is a legal U.S. citizen during a “lawful stop, detention or arrest” or any other form of “lawful contact” where there is reasonable suspicion that the person is an illegal immigrant. Supporters of SB 1070 (most of whom were conservative policymakers) argued that the federal government has failed to adequately police illegal immigration. For these conservatives, SB 1070 served to protect their 386
- 537. communities from rising crime rates and other social problems (such as strains on educational resources and the state welfare system) that they percei ved were directly related to illegal immigrants. However, opponents of the law (who generally identify as more liberal on the political spectrum) argued that Arizona’s law was unconstitutional and that the implementation of SB 1070 would divert important resources away from fighting violent crimes.22 Ultimately, the U.S. Supreme Court held that the investigation of immigration status in cases of a lawful stop, detention, or arrest is permissible (Arizona v. United States).23 387 Spotlight Stand-Your-Ground Policy
- 538. Stand-your-ground laws exist in 24 states nationwide. Such laws are also referred to as the castle doctrine. These policies are based on the common-law doctrine that individuals have the right to protect themselves in their homes if they are under attack. Florida’s use of the stand-your- ground policy has led to significant attention from the media and public alike. Florida’s stand-your-ground law was the first such law in the nation that reflected an expansion of the castle doctrine. Passed in 2005 and signed into law by Governor Jeb Bush, the stand-your-ground law only requires that the police and courts consider three basic criteria: (1) Was the individual entitled to be present, (2) was the individual engaged in a law-abiding activity, and (3) could the individual reasonably believe that he or she was at risk for significant bodily harm or injury? Recently, there have
- 539. been several controversial perceptions of the law related to some high-profile incidents in which the offender alleged self-defense. One recent well-known critique of the stand-your-ground law involved the case of Trayvon Martin and George Zimmerman. Martin was walking in his gated neighborhood community following a trip to a local convenience store. Zimmerman, head of the neighborhood watch, contacted the police to report a suspicious individual (Martin) walking in the neighborhood. Zimmerman followed Martin and confronted him. Zimmerman alleged that Martin attacked him. In response, Zimmerman pulled out a gun and shot Martin, who died from his injuries.a While much was made of the stand-your-ground law, ultimately, Zimmerman did not use this option in his case. In July 2013, Zimmerman was acquitted of second- degree murder after maintaining that he shot
- 540. Martin in self-defense.b While Zimmerman did not expressly rely on the pretrial option of the stand-your- ground law, the public perception is that the law was used to acquit Zimmerman. A case where stand your ground was expressly used was that of Marissa Alexander. During a confrontation with her husband in August 2010, Alexander fired a bullet into the wall. Luckily, no one was hurt in the incident. Alexander testified that she had felt threatened. Even though Alexander used Florida’s stand-your-ground law, the jury convicted her of aggravated assault with a deadly weapon and she was sentenced to 20 years in prison because her actions triggered a mandatory minimum gun law.c Her case was overturned on appeal, and in January 2015, she pled guilty to aggravated assault. She was sentenced to three years and received credit for the time she
- 541. had already served.d She was also sentenced to two years of house arrest, which she successfully completed in 2017. After Alexander’s release, she created a nonprofit organization that focuses on issues of social justice, criminal justice reform, and domestic violence.e While several groups have called for the repeal of the stand- your-ground law in Florida, state legislators are working on reforms to the rule. One proposal currently under consideration would shift the burden of proof for the pretrial hearing to the prosecutor. The proposed changes articulate that the stand-your-ground law “is not intended to encourage vigilantism or acts of revenge, authorize the initiation of a confrontation as a pretext to respond with deadly force, or negate a duty to retreat for persons engaged in unlawful mutual combat.”f While high-profile cases have drawn a disproportionate amount of attention to this issue (and in many instances,
- 542. attention based on incorrect facts about the law), it remains to be seen what changes the legislature will make to 388 the law. 389 Critical Thinking Questions 1. What challenges exist with stand-your-ground laws? 2. Given these examples, what recommendations for reform should states consider with regard to stand-your-ground laws? Even crime policies that have traditionally represented bipartisan efforts to protect the interests of victims can be subjected to political controversy. In
- 543. Chapter 5, you learned about the Violence Against Women Act. While this piece of legislation has historically been a bipartisan endeavor, its most recent reauthorization demonstrated a significant departure from previous efforts and became a battle between Republicans and Democrats. Ultimately, the bill did pass both the House and the Senate, but its journey was a rather political one. 390 Presidential Politics and Criminal Justice Policies Regardless of values and ideologies, criminal justice issues are a hot topic for the body politic, including the White House. A focus on policing first began back in the 1930s with the creation of the Wickersham Commission (by President Herbert Hoover) and continued into the 1960s with research by groups such as the President’s Commission on Law Enforcement
- 544. and the Kerner Commission (President Lyndon B. Johnson).24 However, it wasn’t until the 1970s that crime became a key component of the presidential platform when President Richard Nixon declared a war on crime. The shift tow ard being tough on crime was highlighted during the 1988 presidential election when the Democratic candidate for president, Massachusetts governor Michael Dukakis, was heavily criticized by Republican candidate George H. W. Bush for Dukakis’s support of weekend furlough releases for convicted offenders. This weekend furlough program was used by the Massachusetts State Prison as part of the state’s rehabilitation program for offenders. Though Willie Horton was a convicted murderer who had received a sentence of life without the possibility of parole for his crime, he was still permitted to participate in the program. Unfortunately, Horton never returned from his furlough and instead traveled to Maryland, where he robbed a local couple, physically assaulted the male, and raped the woman.25 As governor, Dukakis was held
- 545. politically responsible for Horton’s release (which led to these crimes) and declared soft on crime, a position that ultimately contributed to his loss in the election.26 As a result of growing public concerns about crime, it seems that virtually every election discussion on criminal issues results in candidates presenting a tough-on- crime stance in their attempts to garner public support. As the leader of our nation’s government structure, the president has surprisingly little power when it comes to making policy. While each president enters the office with ideas for reforming policies such as health care, education, and social welfare, success in making these reforms is dependent on the actions of the House and the Senate. While it is up to the president to sign these acts into law, even this practice can be overruled by a two-thirds vote. Here, presidents have no direct ability to pass legislation; rather, their goal is to persuade members of Congress to introduce items that are consistent with their interests. (At the state
- 546. level, similar processes occur between the governor and state senators and representatives.) Presidents can also have significant influence in criminal justice policy in terms of their cabinet and judicial appointments. As you learned in the opening vignette, the appointment 391 of Jeff Sessions by President Trump has led to the rollback of many Obama-era policies as well as a return to many of the tough-on-crime practices that dominated the late twentieth century. Trump’s judicial appointments, such as the nomination of Neil Gorsuch to the U.S. Supreme Court, support a more conservative philosophy. While conservative members of the Court have often represented a law and order perspective, in some instances these judges have decided cases against the government. Prior to his death, Justice Antonin Scalia was often one whose legal decisions spoke in favor of harsher punishments. However, he also had
- 547. conflicting views on the police. In Kyllo v. United States (2001), Scalia delivered the opinion of the Court and argued that the use of thermal imaging without a warrant to determine whether the defendant was growing marijuana was a violation of the Fourth Amendment protection against unreasonable search and seizure.27 However, he also believed that the police could use traffic violations as a pretext stop to conduct a search of a vehicle (Whren v. United States).28 It remains to be seen how Justice Gorsuch will decide in these types of cases. In the recent oral arguments for Carpenter v. United States, Gorsuch appeared to side with more liberal judges by suggesting that police should be required to obtain a warrant to use cellphone data to identify the location of a suspect.29 392
- 548. Congress and Criminal Justice Policies Given that presidents have made criminal justice issues a part of their policy agenda for the past five decades, it begs the question of how much influence various presidents have had over Congress’s ability to introduce legislation on crime-related issues. Between 1946 and 1996, 3,373 congressional hearings were held on crime-related issues such as drug abuse and drug trafficking, juvenile crime, white-collar crime, and court administration. In comparing these data with the number of presidential speeches and conferences on crime-related issues, we learn that the president has little influence over the actions of Congress when it comes to crime policy. In fact, research demonstrates that the only variables that appeared to influence crime policy discussions in Congress were the crime rate and whether it was an election year. Specifically, as the crime rate increased, the number of congressional hearings on crime- related issues increased. In addition, the number of congressional hearings on crime drops significantly during an election year. While presidential politics
- 549. doesn’t appear to impact congressional activity during that same year, it does appear to have an influence on the actions of Congress in the following year. This finding shows that it can take time to raise awareness of an issue within Congress and to effect behavioral changes.30 However, awareness of an issue does not always lead to behavioral changes. Indeed, there are several examples where policymakers have enacted new laws despite evidence to the contrary. As noted earlier in this chapter, Attorney General Sessions has repeatedly pushed a crime control agenda irrespective of decades of research that show that policies such as mandatory minimums have led to the significant growth of our prison populations and significant harm to many communities, particularly communities of color. 393 Public Perception and Criminal Justice Policies
- 550. It is important to remember that criminal justice policies change over time. In some cases, this reflects changes in our government structure and the positions of those who hold political office. You’ll learn more about the juvenile justice system in Chapter 13, but the laws surrounding juvenile crime are a great example of how our beliefs about offenders have evolved throughout history. For example, the juvenile court was founded on the notion that youth should be treated differently from adult offenders. Yet the rising crime rates and the involvement of youth in criminal activities led many policymakers to shift their thinking about how children who engage in at-risk and criminal behaviors should be treated. Indeed, the tough-on-crime practices that were common within the criminal justice system also influenced the juvenile court. Whereas youth were once seen as individuals capable of reform and change, laws during the late twentieth and early twenty-first centuries began to view juveniles as similar to their adult counterparts, particularly in relation to violent crime. As a
- 551. result, many young teen offenders saw themselves sentenced to significant prison terms (or even life sentences) as early as 14 years old. In 2012, the U.S. Supreme Court held that the use of mandatory juvenile sentences of life without the possibility of parole for certain crime categories was unconstitutional. At the time, this ruling only applied to future cases and left the current population of juvenile lifers with little recourse. In 2016, the U.S. Supreme Court held in Montgomery v. Louisiana that the decision in Miller v. Alabama (2012) was retroactive. This means that juveniles who received a mandatory sentence of life without the possibility of parole can now return to the courts to have a hearing on whether they should be sentenced to a term with the opportunity of parole. 394 Around the World Drug Policy in the Netherlands
- 552. While popular culture presents the image that drug use in the Netherlands is widely accepted, this is not an accurate reflection of drug policies throughout the country. Drugs are prohibited in the Netherlands. However, the Netherlands approaches drug use as a public health issue, accepts that drugs are an inevitable feature of a modern society,a and utilizes a harm reduction strategy. Current drug policies in the Netherlands organize drugs into two separate categories. In the first category are substances that are viewed as harmful to individuals, such as heroin and cocaine. The second category includes soft drugs, such as marijuana and hashish. The division of drugs into these two separate categories allows the Dutch to approach the enforcement of hard drugs differently than soft drugs. Despite claims that marijuana is a gateway drug to more significant drug use, there is little research to substantiate this claim.b While there is no
- 553. punishment for the simple possession of marijuana, possession of 15 to 300 grams of crack cocaine yields a sentence of 6 to 18 months. Compare this with mandatory minimum laws in the United States, where the possession of one ounce (28 grams) of crack will trigger a mandatory sentence of five years.c 395 Licensed coffee shops have historically been allowed to sell small amounts of marijuana for personal use to Dutch citizens only. The Bulldog coffee shop in Amsterdam first opened its doors in 1975 and is regarded as the first coffee shop to sell marijuana. Should the United States take a similar approach? © AP Photo/Peter Dejong
- 554. 396 The Dutch also rely on a harm reduction model to deal with cases of addiction. Harm reduction policies argue that the best way to address drug use is to minimize the risks on both a social and an individual level.d In the Netherlands, drug treatment programs are widely available, and the costs are covered by the nationalized health care system. The Dutch were also the first to implement needle exchange programs for IV drug users. Such policies demonstrate a concern with reducing the personal harms (such as HIV transmission as a result of IV drug use) related to drug addiction.e While policies in the United States have suggested that drug use can lead to criminal activity, crime rates in the Netherlands are significantly lower, as is the presence of
- 555. violence related to drugs.f Indeed, the crime rates are so low in the Netherlands that Dutch officials recently announced the closure of eight prisons throughout the country due to low population levels.g Evidence also indicates that there are fewer users of such substances in the Netherlands than there are in regions where stricter drug policies exist. For example, research tells us that 41% of people in the United States have used marijuana in their lifetime while only 23% of people in the Netherlands have. Similar results are demonstrated with hard drugs, where 14.7% of Americans have used cocaine as compared with 3.4% of the Dutch.h The majority of Americans surveyed thought that when it comes to drug policy, the government should focus more on providing treatment than on prosecuting drug users and that courts should move away from mandatory
- 556. minimum sentences for nonviolent drug crimes (Figure 6.2). Figure 6.2 Public Views on Drug Policy in the United States Source: Pew Research Center. Pie chart: 67% favor providing treatment; 26% favor prosecuting drug users and 7% are inconclusive. Bar graph: In 2014, 63% favor moving away from set drug terms, while 32% oppose moving away from set drug terms. 397 398 Critical Thinking Questions 1. Given the challenges associated with the war on drugs in the United States, are there things we
- 557. can learn from the policies in use under Dutch law? If so, what? 2. How could a harm reduction model, coupled with the decriminalization or legalization of soft drugs such as marijuana, provide opportunities for us to think differently about our drug laws in America? 399 Research and Criminal Justice Policies When it comes to responding to crime, how do we know what works? Alas, policymakers do not always know what the cutting-edge research says about the types of programs and strategies that are effective at reducing crime rates. While there are certainly examples of policies that were created or changed using research, these cases are often the exception rather
- 558. than the rule. As a result, scholars are often left looking at whether a policy is effective after it has been implemented. One of the initial efforts to share research findings on effective crime control strategies and prevention/intervention programming came with the passage of the Crime Control Act of 1973. Within this legislation, the government established the National Institute of Law Enforcement and Criminal Justice, which served as a clearinghouse for criminal justice information. Today, there are many federal agencies (such as the Office of Justice Programs, Community Oriented Policing Services, and the Office on Violence Against Women, to name a few) as well as private foundations and organizations (such as the Sentencing Project and the Police Foundation) that fund, conduct, and disseminate research on criminal justice policies and practices.31 In 2018, the omnibus spending bill included language that now allows the CDC to study gun violence—a change from the last two decades during which the
- 559. Dickey Amendment had prohibited such research. However, as with many other areas of research, a lack of funding may mean that limited progress will be made.32 At the beginning of this chapter, you learned about the role of process and outcome evaluation in criminal justice policies. It is important to remember that the results of evaluations can vary across time and space. For example, what if a program evaluation demonstrates that a particular policy is effective at reducing crime? This is great news. But what if the next time someone implements the policy, they do so in a slightly different manner? Or in a community with different structures or needs? Are we to assume that if the program fails, it is a bad program? Consistency is important when it comes to replicating successful efforts in a new environment. This is called program fidelity. Program fidelity involves seven different factors. Table 6.1 highlights these factors and how they can impact the results when a program or policy is implemented.
- 560. Table 6.1 400 Source: Adapted from the California Healthy Kids Resource Center, http://www.californiahealthykids.org/fidelity. 401 http://www.californiahealthykids.org/fidelity Careers in Criminal Justice So You Want to Be a Policy Advocate? There are a variety of career opportunities for someone interested in criminal justice policy. Although some of these jobs are found within governmental agencies and offices, others involve work with nonprofit organizations. Policy work within the government occurs at every stage and
- 561. within a variety of different settings. At the local level, policy is made by a number of individuals and involves the criminal justice system in different ways. For example, as a chief of police you would be involved in setting policy and managing the organization. Your day- to-day activities might include meeting with the mayor or city manager, working with representatives from the police union, or talking with your managerial staff about issues facing your city and how the police are involved in responding to these concerns. Another example of policy work at the local level is the city council. City councils (also referred to as the board of supervisors or municipal legislature in some regions) are composed of several elected individuals who work together to propose policies and laws to help govern the city. In some cases, decisions are made in response to a public reaction. For example, the Greensboro, North Carolina, city council
- 562. voted in May 2016 to release body camera footage of the shooting death of one of its residents after family members argued that the shooting was unjustified.a In some cases, the decisions made by these councils are financial. In 2011, Topeka, Kansas, debated whether to decriminalize domestic violence due to a lack of funds to handle such cases.b Government-based policy work also occurs at the state and federal levels. As you’ve learned throughout this chapter, members of state legislatures and the U.S. Congress are elected officials who are responsible for the drafting and passage of new legislation. The requirements to serve as a member of the U.S. Congress are stated in Article I of the Constitution, which notes that senators must be at least 30 years old, citizens of the United States for the past nine years, and live in the state that they represent
- 563. at the time of their election. To serve as a member of the House of Representatives, you must be 25 years old and have been a citizen of the United States for the past seven years. Members of the House and Senate serve on a variety of different committees, and several of these groups focus on criminal justice issues. For example, the Senate Caucus on International Narcotics Control focuses on issues related to domestic and international drug trafficking. Committees hold hearings, issue reports, and draft legislation related to their areas of interest. However, there are other opportunities to work as a policy advocate without serving as an elected official. For example, each of these officials has staff members who work on research related to various policy issues. They may attend committee hearings and help members of Congress prepare items for discussion and debate.
- 564. There are also several non-government-based opportunities to engage in policy work. Perhaps you are interested in working for a nonprofit organization such as The Sentencing Project, the Police Foundation, or the Death Penalty Information Center. Each of these groups is involved in research and advocacy regarding criminal justice issues. Nonprofit organizations are also involved in local -level activities such as domestic violence shelters and rape crisis organizations. These agencies work with local and state officials to provide training for the police and courts and advocate for city and state funding to help support their organizations. In addition, research-based organizations focus on policy development and advocacy. Here, you might be involved in evaluating a local program designed to prevent at-risk youth from joining gangs or in assessing whether police use-of-force tactics are effective in reducing injuries to officers in the line of duty.
- 565. As a research policy analyst, you might work for 402 organizations such as the RAND Corporation or the Urban Institute. These types of organizations often use their research findings to influence policymakers at the regional and national level. The requirements for policy analyst positions vary dramatically. Some require sophisticated analytical skills, whereas others require strong interpersonal and networking skills. Some of these positions are available to students with a bachelor’s degree, while others require advanced education and experiences in the field. Regardless of the type of position, people who work in these fields have a strong desire to engage in public service and advocacy.
- 566. As you review the Current Controversy debates at the end of this chapter and consider the policies presented throughout this text, ask yourself the following question: What does the research show about whether or not these policies are effective at reducing crime rates, preventing future crimes, and reforming offenders? In some of the examples, has the policy in question made matters worse? 403 Conclusion From elected officials who utilize criminal justice issues as key components of their political platform to citizens who issue demands for safer communities and increased punishments for offenders, discussions about criminal justice policy evoke a variety of emotions across the population. Every policy relies on political influence in the passage and implementation of its
- 567. practices. In many cases, the passage of policies is intended to increase the safety of our communities. But is this actually the case? Or do these policies just make people think that they are protected? While politicians aim to reflect the values and ideals of their constituency, agents of the media can inflame the “threats” that criminal activity can represent. Is it possible that such threats lead to the retention of outdated policies and practices? Consider these questions as you read the following debates: Does the presence of the policies discussed lead to reductions in crime? Is there the potential for unintended consequences as a result of such laws? 404 Current Controversy 6.1 Are Laws Requiring Sex Offender Registries Effective? —David Bierie and Sarah Craun— Where do you stand? Cast Your Vote!
- 568. 405 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-6/current-controversy-videos Introduction Sex offender registries first appeared in the United States in California during the mid-1940s. Registry laws provide for the creation of a database for law enforcement that contains personal identifiers, addresses, and criminal histories of convicted sex offenders. They have expanded significantly since that time and transitioned into national policy in 1994 via the Jacob Wetterling Act and in 1996 with Megan’s Law. The most recent iteration of national policy was created in the Adam Walsh Child Protection and Safety Act of 2006.33 The fundamental premise of the registry is that people who have been convicted of a sex crime in the past are at a
- 569. higher-than-average risk of committing a new sexual crime. Sex offender registries generally comprise two components: (1) the creation of a database for law enforcement that contains personal identifiers, addresses, and criminal histories of convicted sex offenders (registration) and (2) the public display of portions of that information for some offenders (community notification) through a public sex offender registry website. There are numerous goals of the sex offender registry. However, two are particularly important from a law enforcement perspective: to prevent sexual crimes and to help law enforcement in responding to sexual crimes. The first goal of registries is to prevent sexual crimes— primarily through enhancing guardianship of potential victims. In signing the Adam Walsh Act, for example, President George W. Bush argued that a key intent was to make sure “parents have the information they need to protect their chi ldren
- 570. from sex offenders that might be in their neighborhoods.”34 Research suggests that nearly 80% of sexual assaults are committed by friends, acquaintances, neighbors, or people otherwise known to the victim.35 In addition, a large portion of sexual predators target victims living within a 15-minute walk of a given crime location.36 The hope, then, is that identifying known sex offenders in one’s neighborhood allows citizens to better protect themselves and their children through limiting contact with those known offenders. 406 Sex offender registry laws provide options for community notification of convicted sex offenders. Websites such as this present residency and status information about registered sexual offenders. What are some of the benefits and
- 571. drawbacks of having this information publicly available? The Florida Department of Law Enforcement The following details for each of the offenders are given: Column 1: proximity – example 0.8 Mile N or 2.5 Mile SE Column 2: picture of the offender Column 3: name – Last name, First name of the offender Column 4: status – example Supervised – FL Dept of Corrections or Released, subject to registration Column 5: address – complete residential address of the offender Column 6: address source information – source, received date and type of residency. The other links available on the website are: Offender Search: Click to search for Sexual Predators &
- 572. Offenders Offender Alert: Click to subscribe to e-mail notifications FAQ: Click for Frequently Asked Questions Important: Information for Sexual Predators and Offenders The second goal of registries is to assist law enforcement in solving a specific type of sexual crime (those committed by strangers). If a child is abducted, for example, police might want to check whether the suspect’s description matches any registered sex offenders who live or work in the area. This might lead to a higher clearance rate and, more importantly, a faster recovery of victims. The latter benefit (speed) is critical to law enforcement because the harm an abducted child experiences grows quickly as time passes. Research shows 75% of kidnapped children who are murdered are killed within the first three hours of their abduction.37 Thus, “law enforcement officials realize that the
- 573. faster the child is found, the greater the chance he or she will be unharmed.”38 The same is presumed with other types of sex crimes by strangers—a faster apprehension will reduce the total harm that person can inflict on the community. 407 CON: Sex Offender Registries Are Not Effective Academic researchers have been deeply critical of registries and have articulated a broad number of potential costs or limitations associated with them.39 For example, they argue that registration may lead to unfair stigma placed on family members of registrants, vigilante justice, and money spent maintaining a registry instead of alternative policies. They worry that having a registry may give a false sense of security to families as there are plenty of people who are sexually dangerous and not on the registry. Most importantly,
- 574. however, critics warn that registries may actually increase danger to the public by making registrants more crime prone. They argue that being on the registry likely makes it difficult to get a job, obtain housing, or make friends. This might add stress that manifests in strain or defiance (motivation toward crime) and diminishes social control or prosocial values that might otherwise constrain or reduce that motivation. With respect to the first key goal (reducing sexual assault), early research comparing sexual offense rates in communities before and after the enactment of a registry generally found no effect. Regarding the second key goal (clearance rate), there is far less research available to consider. One of the only studies examining this question to date found a nonsignificant increase in clearance rates as a function of registries.40 One
- 575. might expect the effect of registries to be helpful in locating victims of abduction or rape by strangers (i.e., when the offender isn’t already known at the time the crime is reported). But one wouldn’t expect it to matter with the (approximately) 80% of sex crimes in which the offender is already known (e.g., those committe d by family members against children or date rape). There is no doubt that registries are controversial—informed people can and do disagree on what benefits and costs they generate and especially whether the benefits outweigh the potential costs. The scientific literature is not particularly persuasive in this debate. Opponents have generated a number of criticisms and found some evidence that there are unintended consequences of the registry (as noted above). On the other hand, there is some evidence that registries are associated with decreases in sexual offending. But in general, there are too few studies available, which,
- 576. coupled with methodological limitations,41 limits understanding about the effects of the registry on law enforcement outcomes. 408 PRO: Sex Offender Registries Are Effective Despite these challenges, recent research on this issue has shown that sexual crimes declined by an average of 13% in communities after the enactment of a registry.42 Additionally, there are qualitative examples that illustrate the power of sex offender registries. For example, a woman in New Jersey opened the door to a census worker and recognized him from the registry as an offender who had multiple convictions for sexually assaulting children (he had given a fake name when obtaining employment with the census). Concerned that the registrant was using a fake name and federal
- 577. credentials to gain access to area homes, she contacted police. The registrant was arrested.43 In another example, a former deputy in Colorado saw a man who appeared to be watching children from his car, which was parked outside an elementary school. The deputy recognized the man from his image on the sex offender registry. The registrant, previously convicted of sexually assaulting children, was interviewed by police. They determined he was there looking for the “perfect” girl to lure into his car. He was arrested.44 It’s not guaranteed that these offenders would have committed a sexual assault if not recognized. But is it possible that they were pursuing opportunities and access to potential victims? If so, it is unlikely these crimes would have been detected without the registry. This effect is difficult to measure. 409
- 578. Discussion Questions 1. What are the goals of sex offender registries? 2. What are some of the criticisms of sex offender registries? 3. Do sex offender registries infringe on the rights of those accused and convicted of these crimes? Or are they important tools in evaluating and managing the risk of potentially dangerous offenders in the community? 4. Based on the evidence presented, are the laws that permit sex offender registries effective at preventing crime? 5. Do these laws go too far? Or not far enough? 410 Current Controversy 6.2 Should the United States Increase Its Laws About Gun Control?
- 579. —Thaddeus Lateef Johnson and Natasha N. Johnson— Where do you stand? Cast Your Vote! 411 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-6/current-controversy-videos Introduction In recent years, a string of high-profile mass shootings has prompted public outcry for stricter gun control laws in the United States. Although most Americans agree that something needs to be done about gun violence, fundamentally opposing views have fueled widespread disagreement on how to do so. As such, two rival camps have emerged. On one side, gun control advocates call for comprehensive background checks, bans on certain firearms (e.g., the AR-15) and accessories (e.g., bump stocks), and crackdowns on illegal gun sales/possession. On the other side, opponents of such
- 580. efforts argue that laws aimed at restricting firearm access represent a dangerous infringement upon Americans’ Second Amendment rights. In short, this heated debate essentially centers on one question: Should the United States change its gun laws? 412 PRO: The United States Should Increase Its Laws About Gun Control Beyond establishing a mandatory waiting period for gun purchases and raising the minimum age requirement for long- gun ownership (e.g., shotguns), two of the most bitterly contested gun control proposals include (1) closing background check loopholes and (2) outlawing military-style assault weapons and high-capacity magazines. Regarding background checks, federal and state statutes mandate that
- 581. licensed gun retailers formally screen prospective buyers for a history of violent crime, drug convictions, or mental illness — all disqualifiers for gun ownership. Unfortunately, not all jurisdictions actively enforce these laws. For instance, only about half of the U.S. states bar persons previously convicted of a gun-related crime from buying a firearm.45 Another common loophole surfaces during private gun transactions (over 40% of all gun sales).46 With independent sales often taking place online or at gun shows, transactions between private parties often occur unmonitored, without the guarantee of proper screening measures. Given that a disturbing number of firearms used in crimes were purchased privately by ineligible offenders,47 concerns abound regarding the effectiveness of the current background check system. The final loophole takes place when individuals are convicted
- 582. of a disqualifying crime or diagnosed with mental illness after having legitimately obtained a firearm.48 In this situation, authorities struggle to trace and retrieve guns from these persons. This issue is further compounded by the fact that mental health records are generally underreported to federal and state databases during background checks.49 Although a majority of states have laws in place requiring the submission of such records to the FBI, there is little enforcement of these regulations. This, coupled with the significant variation in record-keeping from one state to the next, has resulted in the continuance of these same gaps.50 To close the noted loopholes, leading public health, legal, and law enforcement organizations have strongly endorsed mandatory screening for all gun sales—whether involving commercial retailers or private sellers—with exceptions
- 583. made for intrafamily transfers and secondary transfers for sporting and hunting purposes.51 It is important to note that between 1994 (when the federal background check requirement went into effect) and 2015, more than 3 million people were denied a firearm transfer or permit through the FBI’s background check system. Of those denials, over 60% were based on an individual’s status as a convicted felon (43%) or as a fugitive from justice (19%).52 Establishing laws that restrict access to assault rifles and large- capacity magazines represents the second major gun reform priority. After witnessing multiple shooting events carried out with military-style weapons in the past decade, Americans have begun to question whether average citizens should have ready access to such heavy artillery. Despite this newfound momentum, gun control supporters remain unsuccessful in their push for a federal assault weapons ban, largely due to the efforts of Republicans and the powerful gun
- 584. party lobby. Most notably, the National Rifle Association (NRA) and other pro-gun groups protest that gun ownership restrictions threaten our constitutional liberties.53 413 414 CON: The United States Should Not Increase Its Laws About Gun Control The gun debate has evolved into arguments surrounding the Second Amendment, which states that “a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”54 Gun rights advocates accuse opposing parties of trying to strip Americans of their constitutional right to
- 585. own guns. Simply put, they believe that an attack on gun ownership is a blatant attack on the Constitution. While the pro-restrictions camp emphatically refutes such claims, conservatives and pro-gun groups remain staunch in their position. In fact, President Trump recently warned political backers at the Conservative Political Action Conference (CPAC) that liberals were attempting to rob gun owners of their right to bear arms.55 In spite of the heightened political and public attention paid to this hot-button topic, debates surrounding the constitutionality of gun control are as old as the Constitution itself. Those in favor of less gun regulation usually cite the Second Amendment and how its provisions have not strongly contributed to gun crime.56 Given the historical contexts in which the Constitution was written, some have questioned whether the framers truly intended for citizens
- 586. to have unrestricted access to firearms. However, gun rights supporters not only maintain that the Constitution guarantees private gun ownership rights but also claim that tighter limits on guns violate these liberties. Several landmark court decisions have supported the Second Amendment argument on gun ownership. For instance, in striking down a long-standing handgun ban in the nation’s capital, the U.S. Supreme Court ruled (5–4) in District of Columbia v. Heller (2008) that the Second Amendment grants citizens the right to bear arms for self-defense.57 Two years later, in the case of McDonald v. City of Chicago (2010), the Court held that it is unlawful to deny citizens the fundamental right to use a firearm for self-protection.58 These verdicts reflect a growing consensus that the Second Amendment guarantees an individual’s right to bear arms. Following this logic, anti–gun control supporters maintain that (1) city residents should be able to keep guns in their
- 587. homes to protect themselves against crime and (2) there is no evidence that restrictions on gun ownership reduce violent crime rates. 415 Conclusion The debate continues. Will stricter gun control regulations avert senseless killings? Should we aim for a gun-free society? Or should more attention be given to the persons who buy firearms? The answers to these questions are not straightforward, and, from the looks of it, much work needs to be done before this matter is settled. No meaningful gun control measures have been passed since the Brady Bill (formerly known as the Brady Handgun Violence Prevention Act) lapsed nearly 15 years ago. And given the current political climate, partisans are not any closer to
- 588. finding common ground on this highly controversial social issue. 416 Discussion Questions 1. What roadblocks have prevented Congress from passing another assault weapons ban? 2. Is prohibiting gun ownership a violation of the Second Amendment? Should we modify or abolish the Second Amendment altogether? Or should gun laws remain the same? 3. Should the states or the federal government be responsible for establishing and enforcing gun laws? 417 Key Terms
- 589. Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Conservative 123 Direct democracy 122 Initiative 122 Liberal 123 Outcome evaluation 121 Policy 119 Process evaluation 121 418 http://edge.sagepub.com/mallicoatccj2e Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. How does fear of crime influence criminal justice policy decisions?
- 590. 2. What are the six stages of policy development? 3. How have criminal justice policies led to unintended consequences for individuals and the larger system? 4. How might a criminal justice policy or practice be compromised or challenged due to political differences? 419 http://edge.sagepub.com/mallicoatccj2e Learning Activities 1. Review the six stages of policy development. Pick a criminal justice policy and discuss how your example was developed through each of these stages. 2. Locate a criminal justice policy that has been implemented in your state. How has this policy assisted in reducing criminal behavior?
- 591. 3. Review the efforts of states that have been successful in legalizing marijuana and those that have failed. What were the differences in these campaigns that led to their success or their failure? 4. Research a criminal justice policy or practice that is used internationally. What could the American criminal justice system learn from this international example? 420 Suggested Websites Urban Institute Research Center: https://www.urban.org/research Center for Evidence-Based Crime Policy: http://cebcp.org Center for Research on Direct Democracy: http://c2d.ch Initiative & Referendum Institute: http://www.iandrinstitute.org 421
- 592. https://www.urban.org/research http://cebcp.org http://c2d.ch http://www.iandrinstitute.org Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 6.1 Alice Madden: Lawyer/Legislator SAGE News Clip 6.1 Sessions Talks Tough on Immigration in
- 593. Arizona 422 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e 423 Dennis Van Tine/LFI/Photoshot/Newscom 424 425 Part II Policing Chapter 7 Policing Organizations and Practices
- 594. Current Controversy 7.1: Is Targeted Policing a Good Policing Strategy? Current Controversy 7.2: Is Street-Level Bureaucracy a Good Thing? Chapter 8 Issues in Policing Current Controversy 8.1: Should Police Agencies Require Officers to Wear Body Cameras? Current Controversy 8.2: Does Police Discretion Help or Harm Our Criminal Justice System? 426 7 Policing Organizations and Practices © iStock.com/aquatarkus 427
- 595. Learning Objectives Discuss the three eras of policing Identify the different types of police organizations Discuss the history of women in policing Explain the importance of racial and ethnic diversity in policing Explain the structure of a police organization and the various job functions that officers hold within the agency Distinguish between the various strategies and tactics of policing Stop-and-frisk policies allow for police to use their discretion to briefly detain an individual if they believe the individual may be engaging in illegal behavior and to pat down that person’s exterior clothing if they believe he or she may have a weapon. Stop-and-frisk practices were upheld by the Supreme Court decision in Terry v. Ohio (1968). In this case, an experienced police officer noticed two men were
- 596. alternating walking past a storefront and peering inside. After their viewing, the two would confer on the corner of the street out of view of the store employees. At one point, the two men were joined by a third individual for a brief conversation. The officer believed that the men were planning to rob the store, so he approached the individuals and proceeded to pat down their jackets. His search revealed that two of the men were in possession of guns, and he subsequently arrested them. While the defense argued that the officer’s pat down was an unreasonable search and seizure under the Fourth Amendment, the Court held that the search, given the context of the officer’s observations, was reasonable and therefore the search was conducted legally.1 Stop and frisk was adopted as a specific police strategy by the New York Police Department (NYPD) in 2003 as part of Mayor Michael Bloomberg’s fight against violent crime. In 2011, officers made 684,330 stops across the five
- 597. boroughs,2 but these stops led to the seizure of only 780 firearms—hardly a significant number given the volume of stops.3 In addition, very few stops resulted in an arrest. In addition to concerns that the policy was not effective, it was challenged for unfairly targeting people of color. Data indicate that people of color are more likely to be the subjects of stop-and-frisk policies when compared with Whites.4 Figure 7.1 presents the racial breakdown of stop and frisks in New York City in 2011, compared with the demographics of the city. While Blacks and Latinos made up 52.7% of the city population according to U.S. Census data, they constituted over 86% of these stops. Concerns over racial bias led to legal challenges to the policy by groups such as the New York Civil Liberties Union and the Center for Constitutional Rights. In August 2013, U.S. district court judge Shira Scheindlin declared that the use of stop and
- 598. frisk by the NYPD was unconstitutional due to its discriminatory application.5 As a result of this legal challenge, the NYPD has shifted away from the practice. In the first nine months of 2014, police engaged in 38,456 stop-and-frisk actions, a 79% decrease compared with the same time period in 2013.6 Although some city officials, such as former New York police commissioner Ray Kelly, questioned whether a reduction in stop and frisk would lead to increases in the violent crime rate, it appears that the opposite has occurred as crime in New York City was down 4.4% in 2014.7 Stop and frisk: Policy that allows police to briefly detain an individual if they believe the individual may be engaging in illegal behavior and to pat down the individual’s exterior clothing if they believe the individual may have a weapon. 428
- 599. Figure 7.1 NYPD, Race, and Stop-and-Frisk Data Source: NYCLU stop-and-frisk-data. The infographic is shown as an illustration of silhouette of the New York City skyline. The percentage of different ethnic groups according to the 2010 census are shown in front of the silhouette, shaped as buildings. The percentages of stops and frisks conducted against the specific ethnic groups are shown as shadows emerging from the buildings. The data can be shown in the table below. This chapter begins with a look at the historical roots of policing. The chapter presents the different types of police organizations and then turns to a review of the various styles of policing, such as order maintenance, community policing, and problem-oriented policing.
- 600. The chapter concludes with two Current Controversy debates. The first, by Meghan Hollis and Amber Richey, asks whether targeted policing is a good policing strategy. The second, by Shelly Arsneault, investigates whether street-level bureaucracy is a good thing. 429 A Brief History of Policing The earliest example of policing in the United States is found back in 1631 in the city of Boston, with the development of a volunteer night watch (Figure 7.2).8 Boston continued to make history with the first full-time paid law enforcement organization in 1712.9 The U.S. Marshals was the first federal law enforcement organization and was created by Congress in 1789. Following its establishment, President George Washington appointed 13 officers to
- 601. serve in this role. The Secret Service was established by President Abraham Lincoln on April 14, 1865 (which was, ironically, the day that he was assassinated by John Wilkes Booth).10 Throughout the 1800s, other major cities followed suit and created their own police agencies, including New York, Chicago, and Los Angeles.11 Figure 7.2 Development of Policing in Early America Photo credits: 1631: © iStockphoto.com; 1789: © iStockphoto.com; 1865: Civil war photographs, 1861–1865, Library of Congress, Prints and Photographs Division, Mathew B. Brady Collection, Alexander Gardner. Timeline of the development of policing in early America is shown in the table below. Alt text is given in cases where images accompany the relevant description. 430
- 602. Members of the White House police in 1923. The White House Police was first developed in 1922 and was responsible for the safety and security of the White House and the president. It was incorporated into the Secret Service in 1930. How did Peel’s principles influence these early police organizations? © Library of Congress/Prints and Photographs Division/National Photo Company Collection These early police organizations were heavily influenced by their British counterparts and, in particular, the ideologies of Sir Robert Peel, who was responsible for creating the London Metropolitan Police Force in 1829. Table 7.1 identifies nine principles that have been associated with Peel and his model of policing (though is it widely believed that it was not Peel but his two commissioners who were the original authors of this philosophy). Not only
- 603. did these principles shape the modern system of policing, but many of them remain central components of police organizations throughout the United States and around the world today. Table 7.1 431 Source: Charles Reith, A New Study of Police History (London: Oliver & Boyd, 1956), http://www.civitas.org.uk/pubs/policeNine.php. 432 http://www.civitas.org.uk/pubs/policeNine.php Political Era The first era of American policing, the political era, began with
- 604. the emergence of professional police departments during the 1840s and continued throughout the early twentieth century. This time frame was so labeled because these early departments had close ties with the local politicians. Police operations were generally conducted via foot patrols, and officers engaged in both crime fighting and social services. While officers engaged in investigative work, their efforts were usually centered not on solving crimes but on seeking information for local politicians. In many cases, these close relationships created opportunities for police corruption and abuses of power. Toward the end of this era, August Vollmer was selected as the first police chief of Berkeley, California, in 1909. He is considered the founder of professional policing for his innovative policing tactics during this time. He advocated for the hiring of college-educated officers as well as women and minorities. He also introduced a number of technological advances to the field. Figure 7.3 highlights some of these innovations. Political era: Describes the first era of policing that existed
- 605. from the 1840s to the early twentieth century. Began with the emergence of professional police departments that had close ties with local politicians. Figure 7.3 Contributions of August Vollmer to Policing Photo credits: 1911: Vintage Images/Getty Images; 1920: Keystone-France/Getty Images; 1924: © iStockphoto.com. 433 Timeline of the contributions of August Vollmer to policing is shown in the table below. Alt text is given in cases where images accompany the relevant description. 434 Reform Era
- 606. These challenges during the political era as well as the efforts of people like August Vollmer led to the rise of the reform era, which began in the 1920s. Law, not politics, became the foundation for modern policing, and agencies focused on controlling crime by apprehending offenders and deterring would-be violators. One of the primary shifts during the reform era was the increased professionalism of policing organizations. Agencies engaged in public relations campaigns to help reform their image from corrupt and chaotic organizations to ones with the centralized mission of crime fighting. Police agencies became large, bureaucratic organizations with several levels of management. The emphasis on professionalism shifted officers away from providing social services to members of the community. The use of foot patrols was eliminated, and officers instead used marked automobiles and cruised randomly through the streets. Not only was the presence of police used as a visible deterrent to would-be offenders, but a centralized 911 system allowed for
- 607. citizens to contact the police via telephone. Operators could then contact a local officer via radio and quickly dispatch him to an area in need of service. Reform era: Began in the 1920s as the foundation for modern policing. Agencies focused on controlling crime by apprehending offenders and deterring would-be violators. 435 Community Problem-Solving Era While the reform era was successful throughout the 1930s and 1940s, the civil unrest throughout the 1960s and 1970s brought new challenges to policing. Rising crime rates and increased fears about victimization demanded a return to a more personal approach by officers. Thus, the community problem-solving era was born. Foot patrols were revived in an effort to better connect with community members. As a result of these interactions, officers
- 608. were often able to gain information about criminal activities, which, in turn, increased the number of crimes solved. At the same time, officers were able to learn about citizen concerns and respond accordingly, which helped improve relationships between police and the community. However, not all communities felt that the police were interested in their needs, and issues such as discrimination, poverty, and corruption challenged police–community relations in many areas.12 Community problem-solving era: A time period in which the primary strategy involved the use of foot patrols to better connect with community members, which allowed for increased numbers of crimes to be solved and improved relationships between the police and community. Throughout this chapter, you’ll learn how these three eras of policing have shaped how police agencies are organized and the strategies they use on the job. Technology and innovation
- 609. continue to shape the daily lives of officers on the street, leading some scholars to suggest that we have moved into a fourth era of policing as we enter the twenty-first century: the information era.13 Information era: Twenty-first century policing involving technological innovations that have altered the daily lives of officers on the street. 436 Types of Police Organizations There are several different types of police agencies. Police agencies are defined by their jurisdiction. Jurisdiction refers to two conditions: (1) Do the police have the legal authority to handle a particular matter? And (2) are the police authorized to operate within a specific geographic location? In terms of geographic jurisdiction, there
- 610. are three levels of policing: federal, state, and local. There are also agencies that have jurisdiction over special areas, such as college campuses, transportation agencies, or special -subject enforcement agencies. Jurisdiction: Determines when and how the criminal justice system can respond. Legal jurisdiction means that an organization or individual has the legal authority to handle a particular matter, whereas geographic jurisdiction means that an organization or individual is authorized to operate in a specific geographic location. 437 Federal Law Enforcement Federal law enforcement has the authority to act when a federal law has been broken. Currently, there are 73 different federal agencies that incorporate officers who are authorized
- 611. to carry a firearm and make arrests. Figure 7.4 presents the types of duties performed by these agencies. Figure 7.4 Primary Functions of Federal Law Enforcement The job duties of federal law enforcement officers are varied, but investigation and patrol remain the primary functions. Source: Brian A. Reaves, Federal Law Enforcement Officers, 2008, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2012, http://www.bjs.gov/content/pub/pdf/fleo08.pdf. Note: Most recent data available. The different functions are plotted on the vertical axis, while percentage of federal officers is plotted on the horizontal axis. The data is shown in the list given below. Criminal investigation: 37%
- 612. 438 http://www.bjs.gov/content/pub/pdf/fleo08.pdf Police response and patrol: 23% Inspections: 15% Corrections and detention: 14% Security and protection: 5.1% Court operations: 4.7% Text next to the graph reads, The job duties of federal law enforcement officers are varied, but investigation and patrol remain the primary functions. The majority of all federal law enforcement agencies fall under two general categories. The Department of Justice (DOJ) and the Department of Homeland Security (DHS) contain
- 613. several federal organizations, though each has four primary law enforcement agencies.* The DOJ includes four law enforcement agencies: the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the U.S. Marshals Service, and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The DHS includes U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), the Secret Service, and the security branch of the Federal Emergency Management Agency (FEMA). Together, the DOJ and DHS employ the majority of federal law enforcement officers. * Also included under the DOJ umbrella is the Federal Bureau of Prisons (BOP), which is charged with supervising inmates incarcerated in federal facilities. BOP officers are typically not armed while on duty but retain the right to carry a firearm and make an arrest during emergencies. 439
- 614. Careers in Criminal Justice So You Want to Be a Police Officer? What do you need in order to get a job as a police officer? As you’ve learned throughout this chapter, there are several different jurisdictions that you can choose from when thinking about the type of agency that you want to apply to. Generally speaking, you need to have a high school diploma or GED, though many jurisdictions require that applicants have completed either a certain number of hours of college coursework or, in some cases, hold a college degree. You must be a U.S. citizen and, for many agencies, be at least 21 years old. At the federal level, most agencies require a bachelor’s degree, and in some instances having an advanced degree or specialized training or skills will allow a candidate’s application to be more competitive. Many also require applicants to have
- 615. three years of full-time professional work experience. Agencies may also have upper age limitations—federal agencies such as the FBI, DEA, and CIA require that special agents be appointed prior to turning 37, and these positions have a mandatory retirement age of 57.a Applicants must pass several requirements as part of the application process, including a written exam, physical agility exam, interview board, psychological exam, medical exam, and background investigation. Generally speaking, a felony conviction will exclude you from being offered a job, and agencies vary on their position about experimental drug use. Some prohibit the use of all drugs in one’s lifetime, while others will accept a person if he or she experimented with marijuana as a youth. The median wage for a patrol officer in 2014 was $56,810, while a detective made $79,870. At the federal level, salaries are paid
- 616. based on the General Schedule, which organizes salaries based on a scale of GS-1 to GS-15. An FBI agent starts at the GS-10 level, and in 2018 the range for a GS-10 was $48,297 to $62,787.b The demand for officers continues to grow even though crime rates are falling. However, factors such as job growth, officer retirement and attrition, and budget can all impact the availability of positions for a particular agency.c 440 A Border Patrol guard stands at the entrance of Friendship Park. Located at the U.S.- Mexico border between San Diego and Tijuana, the historical park has served as a meeting place for families from both sides of the border through a chain- link fence. Bill Wechter/Getty Images News/Getty Images
- 617. Department of Justice The Federal Bureau of Investigation was founded in 1908 with only 34 agents.14 Today, it is the largest law enforcement agency within the Department of Justice, with more than 12,000 agents. The FBI is responsible for the investigation and enforcement of more than 200 different federal criminal and civil laws, targeting violent crime, organized crime, and white- collar crime, among other things. The Drug Enforcement Administration deals with crimes related to drug manufacturing and trafficking and employs more than 4,000 agents. The U.S. Marshals Service is the oldest law enforcement agency in the nation and provides security and transportation for federal inmates while they are awaiting trial. Today, it employs more than 3,300 agents. Finally, the Bureau of Alcohol, Tobacco, Firearms and Explosives handles acts of illegal possession and trafficking of these items as well as incidents of arson, terrorism, and 441
- 618. bombings and employs more than 2,500 agents.15 Together, these agencies work toward three primary goals: 1. prevent terrorism and promote the nation’s security consistent with the rule of law; 2. prevent crime, protect the rights of the American people, and enforce federal law; and 3. ensure and support the fair, impartial, efficient and transparent administration of justice at the federal, state, local, tribal and international levels.16 Department of Homeland Security Meanwhile, the mission of the Department of Homeland Security is centered on protecting our nation’s borders and preventing acts of terrorism. The DHS was created after the September 11 terrorist attacks in New York City and Washington, D.C., and consolidated 22 federal agencies under a central mission in an effort to streamline resources and improve
- 619. communications among these agencies.17 Four of these agencies are involved in law enforcement efforts. The largest is U.S. Customs and Border Protection, which employs more than 37,000 officers tasked with controlling our nation’s borders by preventing the entry of illegal persons and contraband.18 The origins of the U.S. Customs Service can be traced back to 1789 and the functions of the Border Patrol back to 1924.19 U.S. Immigration and Customs Enforcement handles investigations related to crimes such as illegal immigration, human trafficking, child exploitation, fraud, and financial crimes. ICE is the second-largest law enforcement agency under the DHS and employs more than 12,600 officers. The U.S. Secret Service is generally known as the protective detail of noted political dignitaries, including the president of the United States. In
- 620. addition, it investigates crimes such as counterfeiting, financial crimes, and computer fraud.20 The U.S. Secret Service was first created back in 1865 to deal with the problem of counterfeit currency. It wasn’t until 1894 that agents’ duties were expanded to include a security detail. President Grover Cleveland was the first president to receive protection from the Secret Service, although it was only provided on a part-time basis. In 1902, the detail became a full-time responsibility, and it was expanded to include the family of the president as well as the vice president in 1951. Congress authorized the Secret Service to provide lifetime protection for former presidents in 1965.21 442 The smallest law enforcement agency under the DHS is the security branch of the Federal
- 621. Emergency Management Agency, which employs fewer than 100 officers.22 443 State Law Enforcement Each state operates its own police agency. Recent data indicate that there are 93,149 officers working full time for the 50 state law enforcement agencies. Of these employees, 65.2% are sworn officers and 34.8% are civilian employees. State law enforcement agencies are often defined as a highway patrol, though some also provide investigative and emergency assistance. The first state police agency was the Pennsylvania Constabulary, formed in 1905. Today, the largest state police agency is the California Highway Patrol, with more than 7,200 sworn personnel, and the smallest state police agency is North Dakota, with only 139
- 622. officers.23 State law enforcement: Often defined as highway patrols. Provides investigative and emergency assistance to local agencies. Highway patrol: Also known as state law enforcement agency. 444 Local Law Enforcement The majority of people employed by law enforcement agencies work for local agencies. Local law enforcement agencies are defined as either (1) county sheriffs or (2) municipal police. County sheriffs are responsible for running the local county jail, providing security for the local courthouse, and serving warrants and subpoenas. County sheriffs may also provide patrol services to unincorporated areas of the county or contract with local jurisdictions to
- 623. provide policing services in the absence of a city agency. Table 7.2 highlights the five largest sheriff agencies in the United States and their duties. Currently, sheriff agencies employ more than 353,000 personnel nationwide. Local law enforcement: Accounts for the majority of all law enforcement agencies. County sheriff: Agency that is responsible for running the local county jail. Also provides security for the local courthouse, serves warrants and subpoenas, and provides patrol services. Municipal police: Local-level police departments that have geographic jurisdiction limited to a specific city or region. Table 7.2 445
- 624. Spotlight Mandatory Arrest Policies According to the Centers for Disease Control and Prevention and the National Intimate Partner and Sexual Violence Survey (NISVS), over 37% of American women and almost 31% of American men will be victimized by an intimate partner at some point during their lifetime.a Meanwhile, data from the National Crime Victimization Survey reveal that the rate of domestic violence (DV; which is defined as victimization committed by intimate partners and family members) was 4.1 per 1,000 individuals, or more than 1.1 million victims in 2016. Acts of serious domestic violence accounted for an additional 272,380 victims (or a rate of 1.5 per 1,000).b Given the prevalence and impact of domestic violence and intimate partner violence on victims, their families,
- 625. and society as a whole, federal, state, and local governments have implemented a number of policies in order to prevent and intervene in IPV cases, including the removal of the spousal exemption for rape, enhanced police officer and judicial training, the provision of domestic violence civil-protection orders, the implementation of no- drop prosecution policies, and mandatory arrest and pro-arrest policies for DV. Mandatory arrest policies refer to the legal duty of a police officer to make an arrest if the officer has reason to believe that domestic violence has occurred, whereas pro-arrest policies do not require officers to make an arrest, though that is the preferred course of action.c Mandatory arrest policies were first implemented in Oregon in 1977 and grew in popularity throughout the 1980s and 1990s. The laws vary from state to state, but most state laws recognize both current and previous spouses or cohabitants
- 626. as protected categories under the law, though not all states cover dating or prior dating relationships. As of 2016, 22 states had some form of mandatory arrest policy in place. An additional six states had pro-arrest laws. Laws vary as to when a mandatory arrest must be made. For example, laws in Alaska and Missouri require that a report be made within 12 hours of the assault, whereas Mississippi and Nevada extend the time frame to 24 hours. Washington State and South Dakota represent some of the most narrowly defined time frames and require that the police make an arrest within four hours of the assault. Washington State law is also unique in that it limits cases to individuals who are 16 or older.d Another requirement of mandatory arrest policies is that they are limited to those cases that meet the legal
- 627. definition of DV, which is far more restrictive than what most people consider to be DV. Officers use a two-part test to determine whether to make an arrest: (1) whether the victim and perpetrator have a “domestic” relationship and (2) whether a criminal act that can be legally classified as DV has occurred. Although the specific statutes vary by state, in most states, individuals who are related by blood, marriage, or cohabitation or who have a shared biological child have a “domestic” relationship. It is important to note that in 15 states, dating relationships are not considered “domestic” relationships,e and in three states, same-sex relationships are specifically excluded from the DV statutes.f The movement toward mandatory arrest clarified the role of officers when dealing with domestic violence calls for service. It also removed the responsibility of arrest from the victim’s decision and placed it on the shoulders of
- 628. police personnel. However, because these policies removed the victim’s responsibility for instituting formal charges against an offender, there have been some unintentional consequences. In many cases, a victim’s call to the police for help has resulted in her own arrest, leaving many feeling betrayed by the system that they sought 446 help from.g Other victims might be less likely to call for intervention knowing that their batterer (or themselves) would be arrested.h Dual arrests are more likely to occur when state laws or policies do not include a primary aggressor designation. As a result, officers are required to make a determination about who the “real” offender is. Even with a primary aggressor designation, officers may lack the training or experience to make a professional
- 629. judgment about whom to arrest, resulting in both parties being arrested. These dual-arrest practices result in women being arrested for domestic violence with their partner. As a result, many women victims find themselves labeled as offenders of IPV by police and the courts for engaging in acts of self-defense.i Dual-arrest policies also have negative consequences for the LGBTQ community as same-sex couples are more likely to be involved in dual-arrest situations (female-to-female = 26.1% and male-to- male = 27.3%), compared with heterosexual couples (3.8%).j Dual-arrest policies also disproportionately impact communities of color: “Mandatory arrest laws will inevitably result in increased prosecution and consequently, increased oppression for Black men and women in the criminal justice system.”k Finally, mandatory arrest policies are primarily intended to
- 630. reduce the prevalence of DV and IPV in the United States through deterrence. The argument is that if perpetrators know that they will be arrested for incidents of DV and IPV that are reported to law enforcement, they will be less likely to abuse their victims. Since mandatory arrest laws were first implemented, arrest rates for IPV have risen from between 7% and 15% to between 33% and 57%, and this increase is directly attributable to mandatory and pro-arrest policies.l In this sense, mandatory arrest policies have been a success. Victims, advocates, and legal actors have also reported that mandatory arrest policies have been beneficial to victims and their families. However, these policies continue to be controversial, in large part due to the unintended negative consequences they have had on victims. Many criminal justice officials and victims have acknowledged that the decrease in violence was only temporary and that the possibility of
- 631. increased violence exists after an offender returned to the family home following an arrest or court proceedings.m A careful assessment of both the potential benefits and negative consequences of mandatory arrest policies may provide insights as to how the criminal justice and civil legal system can best support victims and their families in achieving safety. 447 Critical Thinking Questions 1. Should victims be able to decide whether or not their abuser should be arrested when police respond to a case of domestic or intimate partner abuse? 2. Do the potential benefits of mandatory arrest policies outweigh any unintended consequences
- 632. of an arrest on a victim and abuser? Why or why not? 3. Are there other ways to improve the criminal justice response to cases of domestic and intimate partner violence? If so, how would you improve it? If not, why not? Local law enforcement accounts for the majority of all law enforcement agencies, with 12,326 agencies and 604,959 full-time employees in 2013 (78.9% were sworn personnel). Although several agencies employ a large number of officers, 48% of local police agencies employ fewer than 10 officers, and only 4% of departments employ more than 100 officers.24 Figure 7.5 shows the largest local police departments in the United States. With more than 34,000 sworn personnel, New York City has the largest metropolitan police department in the nation. However, it does not have the greatest number of officers proportionate to the population—that would be Washington, D.C.
- 633. 448 449 Figure 7.5 Largest Local Police Agencies by Number and Proportion Source: Brian A. Reaves, Local Police Departments, 2013, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, May 2015, http://www.bjs.gov/content/pub/pdf/lpd13ppp.pdf. Graph 1 shows the number of full-time sworn personnel, plotted on the vertical axis on a scale of 0 to 40,000, in increments of 5,000, versus the different cities in the U.S. The data can be shown as the list below. New York (NY): 34,454
- 634. Chicago (IL): 12,042 Los Angeles (CA): 9,920 Philadelphia (PA): 6,515 Houston (TX): 5,295 Graph 2 shows the proportion of full-time sworn personnel per 10,000 residents, plotted on the vertical axis on a scale of 0 to 70, in increments of 10, versus the different cities in the U.S. The data can be shown as the list below. Washington (DC): 61 Baltimore (MD): 47 Chicago (IL): 44 Atlanta (GA): 44 St. Louis (MO): 42
- 635. New York (NY): 41 450 http://www.bjs.gov/content/pub/pdf/lpd13ppp.pdf Special Law Enforcement Agencies There are more than 1,700 agencies and almost 57,000 sworn personnel that provide law enforcement to special regional or subject jurisdictions. The majority of these officers serve for university police agencies. There are also 250 departments that are responsible for providing law enforcement for public school districts. Unlike New York and Chicago, which draw from the local municipal police agency to provide security services for their public schools, school districts in Philadelphia, Los Angeles, and Houston have separate police forces for this purpose. There are also 167 agencies whose primary focus of enforcement is related to transportation. The largest of these is the Port
- 636. Authority of New York and New Jersey, employing more than 1,600 officers. Several areas, including Los Angeles, Dallas/Fort Worth, and the Washington, D.C., metropolitan region, have their own airport police.25 451 Women in Policing An examination of the history of policing indicates that women did not enter the police force as bona fide sworn officers until the start of the twentieth century. While there is some debate as to who was the first female police officer, most sources point to Alice Stebbins Wells, who was hired by the Los Angeles Police Department in 1910. Her philosophy centered on working with women and juvenile offenders and focused on preventative, rather than reactive, responses. Following in Wells’s footsteps, many women sought out positions as
- 637. police officers. The hiring of women by police agencies throughout the early twentieth century did not mean that these women were assigned the same duties as male police officers. Rather, these policewomen were essentially social workers armed with a badge. The mid-twentieth century saw significant growth in the numbers of women in policing. In 1922, there were approximately 500 policewomen in the United States; by 1960, more than 5,600 women were employed as officers.26 Throughout this time, the majority of these policewomen remained limited in their duties, due in large part to a traditional policing (i.e., male) model. Policewomen were not permitted to engage in the same duties as policemen due to fear that it was too dangerous and that women would not be able to adequately serve in these positions. Most importantly, the “all-boys club” that existed in most departments simply did not want or welcome women intruding on their territory. It was only during times of war that women found themselves placed in positions
- 638. normally reserved for male officers, although these assignments were only temporary.27 As in many other fields during the 1960s, the civil rights and women’s movements had a tremendous effect on the presence of women in policing. Legal challenges paved the way toward gender equality in policing by opening doors to allow women to serve in more active police capacities. However, women continued to face significant barriers in the field, such as low pay, limited opportunities for promotion, and a lack of family-friendly policies such as maternity leave.28 Departments continued to resist calls to expand the role of women in policing, arguing that women lacked the necessary level of physical fitness in order to effectively detain suspects. Subsequent legal challenges and new legislation continued to open more opportunities for women in policing.29 452
- 639. A group of female recruits taking the New York Police Department qualifying exam in 1947. Once hired, what might the duties of a female officer at this time be? © Dick De Marsico/Underwood Archives/Getty Images Over the past four decades, there have been significant increases in the number of women employed as sworn law enforcement officers. By 1986, approximately 8.8% of municipal officers were female,30 and this increased to 9.8% of sworn personnel in 1995 and 11.9% in 2014 (Figure 7.6). Women are more likely to be employed in larger jurisdictions (22%) and federal agencies (24%), compared with smaller jurisdictions (defined as departments with fewer than 500 officers), where women make up only 8% of all sworn personnel.31
- 640. Meanwhile, few women have successfully navigated their way to the top position of police chief.32 453 Figure 7.6 Percentage of Males and Females Working in Law Enforcement in 1995 and 2014 Though the proportion of women who are employed by law enforcement agencies has not increased, the number of women who work as law enforcement officers, as opposed to civilian employees, has increased. Source: Federal Bureau of Investigation (FBI), Uniform Crime Reports, “Crime in the United States, 1995: Law Enforcement Personnel,” https://ucr.fbi.gov/crime-in-the- u.s/1995/95sec6.pdf; FBI, Uniform Crime Reports, “Crime in the United States, 2014,”
- 641. Table 74, https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the- u.s.-2014/tables/table-74. 454 https://ucr.fbi.gov/crime-in-the-u.s/1995/95sec6.pdf; https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.- 2014/tables/table-74 The stacked horizontal bar chart is titled, Percentage of Males and Females Working in Law Enforcement in 1995 and 2014. Year is plotted on the vertical axis and percentage on a scale of 0 to 100% at 20% intervals is plotted on the horizontal axis. For each year, the data can be shown as a list in the following order: (1) percentage of male law enforcement officer, (2) percentage of female law enforcement officer. All law enforcement 1995: 73.4, 26.6.
- 642. 2014: 73.4, 26.6. Law enforcement officers 1995: 90.2, 9.8. 2014: 88.1, 11.9. Civilian law enforcement employees 1995: 38, 62. 2014: 39.9, 60.1. Text next to the graph reads, Though the proportion of women who are employed by law enforcement agencies has not increased, the number of women who work as law enforcement officers, as opposed to civilian employees, has increased. Despite the significant advances that women in policing have made over the past century,
- 643. research is mixed on whether the contemporary situation is improving for women in law enforcement. While legal challenges have required equal access to employment and promotion within law enforcement, research indicates that many women continue to be passed over for positions that are ultimately filled by male officers.33 Sexual harassment by their male peers and superior officers has also been a continued part of the landscape of policing.34 Despite these challenges, the culture of policing has become more accepting of women throughout their careers. In particular, policewomen are noted for the positive traits that they bring to the profession. Research indicates that policewomen have been particularly successful within models of community policing due to their enhanced problem-solving skills through communication.35 As a result, women officers have better relationships with members of their
- 644. community, have fewer citizen complaints compared with their male counterparts, and are less likely to jump to physical interventions.36 Feminine traits such as care and compassion are also viewed as an asset, particularly when dealing with victims.37 Finally, women officers 455 are typically not involved in cases of police brutality and corruption. Research indicates that male officers are at least 8.5 times more likely than female officers to be accused of excessive force.38 456
- 645. Racial and Ethnic Diversity in Policing The first Black police officer was Wiley G. Overton, who was appointed to the Brooklyn Police Department in 1891.39 Samuel Battle became the first Black NYPD officer in 1911, and he rose through the ranks and became the first Black sergeant (1926) and the first Black lieutenant (1935).40 In 1886, the LAPD hired its first African American officer, Robert W. Stewart. Yet it wasn’t until 1992 that the LAPD saw its first African American chief of police with the appointment of Willie L. Williams.41 Today, racial and ethnic diversity is reflected in a number of different departments. In 2013, 27% of sworn police personnel identified as a racial or ethnic minority. This represents a significant growth since 1987, when racial and ethnic minorities made up only 14.6% of the sworn force. You’ve already learned about how federal law enforcement agencies
- 646. have become more diverse in recent years. The Law Enforcement Management and Administrative Statistics (LEMAS) Survey collects data on state and local law enforcement agencies. Figure 7.7 shows how the representation of minorities in these agencies has shifted over the past three decades. 457 Figure 7.7 Racial and Ethnic Diversity in Local Police Agencies Why do you think it’s important for minorities to be represented in a community’s police force? Source: Reaves, Local Police Departments, 2013. a. Excludes persons of Hispanic or Latino origin. b. Includes Asian, Native Hawaiian, or other Pacific Islanders; American Indian or Alaska Natives; and persons identifying as being of two or more
- 647. races. The bar graph is titled, Racial and Ethnic Diversity in Local Police Agencies. Percentage of officers, on a scale of 0 to 30% at 5% intervals is plotted on the vertical axis, while the years are shown on the horizontal axis. For each of the years, the percentages are listed in the following order: (1) Black/African American (excludes persons of Hispanic or Latino origin), (2) Hispanic/Latino, (3) Other (excludes persons of Hispanic or Latino origin; 458 includes Asian, Native Hawaiian, or other Pacific Islanders; American Indian or Alaska Natives; and persons identifying two or more races.). 1987: 9.3, 4.5, 0.8. 1990: 10.5, 5.2, 1.3.
- 648. 1993: 11.3, 6.2, 1.6. 1997: 11.7, 7.8, 2.0. 2000: 11.7, 8.3, 2.6. 2003: 11.7, 9.1, 2.8. 2007: 11.9, 10.3, 3.1. 2013: 12.2, 11.6, 3.5. Text next to the graph reads, Why do you think it’s important for minorities to be represented in a community’s police force? The size of a department can impact the racial and ethnic diversity of its officers. The larger the department, the more racially and ethnically diverse are the sworn personnel.42 The size of a department also alters which racial and ethnic minorities are represented. For example, in
- 649. departments that serve a population of 500,000 to 999,999, the representation of Black or African American officers is 23.2%, and Hispanic or Latino officers comprise 9.9% of the staff. However, in some departments, the proportion of minority personnel exceeds the proportion of White sworn and civilian personnel. Consider the example of the LAPD. In 2018, 31.8% of sworn and civilian personnel were White, while 47.5% identified as Hispanic or Latino. In addition, 10% of the department was Black and 10% Asian.43 In contrast, in departments that serve populations of 1 million residents or more, Black officers make up only 17.0% while Hispanic or Latino officers compose 24.7% of the sworn personnel. Meanwhile, smaller departments remain more homogeneous. For example, the racial and ethnic makeup of departments that serve populations of 2,500 to 9,999 residents is 89% White, 4.4% Black, and 4.4% Hispanic or Latino.44 459
- 650. The Importance of a Diverse Police Force The diversification of police agencies is important. In 1965, President Johnson’s Commission on Law Enforcement and the Administration of Justice suggested that minority officers not only would have a greater understanding of the needs of their communities but also would have greater credibility. One argument suggests that hiring a workforce that reflects the demographics of a neighborhood can help increase the positive relationships between the police and community, particularly under community-policing models. This is especially the case among ethnic communities that have a history of distrusting the police, particularly immigrant and refugee populations. American history and modern-day events also play a role here as well due to the negative treatment of African Americans by the police.45
- 651. Research by the RAND Corporation identifies several hiring barriers in diversifying police agencies. For example, some agencies have residency requirements that can limit who can apply for positions. The NYPD requires that officers must live in either one of the five boroughs or their surrounding counties in order to be eligible. They cannot live in New Jersey or Connecticut. Similarly, members of Boston’s police department must live in Boston. If communities are not as racially diverse as the regions surrounding them, ethnic minorities may find themselves shut out of the hiring process. Meanwhile, the limited number of minorities in upper management not only can impact the number of officers of color seeking out these positions but could prevent some from applying to the police force in the first place. Such barriers to promotion could also impact the retention of qualified minority candidates.46 In 2016, the Department of Justice released its findings from the Advancing Diversity in Law Enforcement Initiative, which was a collaborative research
- 652. initiative aimed at providing agencies with best practices in the recruitment, training, retention, and promotion of officers from diverse backgrounds as one step in improving relationships between community residents and local police departments. Figure 7.8 highlights some of the barriers that impact the ability of departments to successfully support a diver se workforce. In order to address these barriers and challenges, there are several practices that agencies can adopt, including engaging stakeholders both from within the department and from diverse communities, engaging in recruitment and outreach efforts targeted at diverse populations, and assessing whether current standards allow for diverse candidates to be successful in the hiring process. When diverse officers are hired and as they progress through their careers, the facilitation of 460 mentoring networks and leadership development are essential in
- 653. their retention. Transparency in promotion processes can also help retain officers as this helps them more easily identify and pursue a path for career development.47 Figure 7.8 Barriers to Diversity for Police Organizations Source: U.S. Equal Employment Opportunity Commission, “Advancing Diversity in Law Enforcement,” October 2016, http://www.eeoc.gov/eeoc/interagency/police- diversity-report.cfm. 461 http://www.eeoc.gov/eeoc/interagency/police-diversity- report.cfm What Do the Police Do? The duties of police can vary dramatically depending on the structure of the organization. The jurisdiction of an agency determines the geographic
- 654. boundaries of its authority as well as the types of cases it might handle on a regular basis. Given that the majority of police officers work in local environments, let’s take a look at the type of activities common to these organizations. As a result of the efforts of police reformers back in the 1950s, all police departments have a chain of command. Figure 7.9 displays the typical structure of a local police organization. The chain of command provides guidance for each group by placing a direct supervisory rank immediately ahead of it. Chain of command: Process that provides guidance for each group by placing a direct supervisory rank immediately ahead of it. 462 Figure 7.9 Organizational Structures of Police Agencies
- 655. 463 Police Roles A police chief is the leader of the organization and is generally appointed by the mayor, often in consultation with the city council. Some cities place a limit on how long someone can serve in this position. For example, the police chief for the city of Los Angeles is limited to two five-year terms.48 In New York City, the police chief is called the commissioner. In some departments, the police chief is a sworn law enforcement officer, while other agencies have a civilian administrator in their top post. The police chief is responsible for maintaining the budget of the organization, working with local government entities such as the city council and the mayor’s office on solving community issues, and setting policy priorities for the organization. The chief also serves as the public face of a
- 656. department and communicates with local citizens and the media. The deputy police chief is the second-highest-ranking officer in an organization and reports directly to the chief of police. The deputy police chief is essentially the “right hand” of the police chief and serves in the top position if the chief of police is unavailable. An assistant chief is generally responsible for a specific subdivision of the organization, such as community affairs, internal affairs, or intelligence. Police chief: Leader of the police organization. Chiefs ar e typically appointed by the mayor of a city, often in consultation with the city council. Deputy police chief: Second-highest-ranking office that reports directly to the chief of police. Assistant chief: Upper-level management position in policing in which the person is responsible for a specific subdivision of the police organization.
- 657. As you move down the chain of command, the duties of leadership are more narrowly defined, and these leaders are involved in more of the day-to- day activities of officers. For example, a police captain may be involved in the reviewing of personnel files and incident reports to ensure that officers are acting in compliance with the rules and regulations of an organization. She or he may also be tasked with interviewing and hiring new officers. In some instances, a police captain may be the lead officer for a specialized unit, such as narcotics, organized crime, or financial crimes. Lieutenants are responsible for ensuring that the appropriate number of officers are delegated to a particular neighborhood. As supervisors, they are tasked with many administrative functions, such as ensuring that the officers in their group have the equipment and training necessary to effectively perform their job. They will also respond on site in serious cases. Finally, the sergeant is the first rank that carries 464
- 658. supervisory duties. He or she may be in charge of creating the staffing schedule, providing training for new and continuing officers, and relaying information regarding important policies and practices. Police captain: Upper-level manager within the police organization; often serves as the lead officer for a specialized unit or may be involved in a specific administrative task, such as the hiring of new officers. Lieutenant: Police supervisors who are tasked with many administrative functions for line officers, such as equipment, training, and staffing. Sergeant: First rank in a police organization that carries supervisory duties. The last category of police officers involves two subsets that are responsible for the hands-on aspects of policing. A detective is responsible for following a
- 659. case throughout an investigation. Detectives begin at a crime scene, where they prepare a report of the incident. They are involved in the investigation of the crime and prepare the case for the prosecutor. In many cases, they are called to testify in court about a crime. While many of the portrayals of policing in television shows and movies are based on detectives, it is the patrol officers that make up the majority of the sworn officers in a department. Patrol officers are typically assigned a transportation style, such as automobile, motorcycle, and even bicycle or foot patrol. Patrol officers are typically the first responders at the scene when a call for service is made. Patrol officers can interview suspects and witnesses of a crime and prepare reports on these experiences. They provide security and traffic control for community events. They are also responsible for arresting individuals and transporting them to the local jail.49 Detective: A sworn police officer who manages a case throughout the investigative process.
- 660. Patrol officer: Most common classification of sworn officers. Serve as first responders. As you can see, the job of a police officer is quite diverse and varies based on the rank of an officer within an organization. However, it is important to keep in mind that local environments will have a significant impact on how police do their job. For example, a police officer in a small community will likely handle several different tasks as part of her or his daily duties. In comparison, larger agencies have the opportunity to allow officers to be more focused and specialized in their positions. 465 466 Strategies and Tactics of Policing
- 661. Throughout the evolution of policing, a variety of different strategies have been used by officers. Such tactics not only provide guidance on the daily activities of police officers but also help guide their discretion when it comes to decision making. Police chiefs often meet with division captains and other supervisory officers to review issues facing their cities. What other responsibilities does a police chief typically have? © Marmaduke St. John/Alamy Stock Photo 467 Random Versus Directed Patrols What are the differences between random patrols and directed patrols, both of which were popular during the reform era? Random patrols allowed officers to cruise randomly
- 662. throughout the streets. Here, the idea was that a visible polic e presence would serve as a deterrent to would-be criminals. At the same time, law-abiding citizens would feel safer knowing that the police were present. How do we know whether these sorts of random patrols are effective in curbing crime? In 1972, the Kansas City Preventive Patrol Experiment found that increasing (or decreasing) the level of police presence in a region did not have a significant effect on crimes such as burglary, theft, robbery, or vandalism. Such changes in patrol patterns also did not impact citizen satisfaction levels with their police or their fear of crime.50 Random patrols: Style of policing that allowed officers to cruise randomly throughout the streets and provide a visible police presence. Kansas City Preventive Patrol Experiment: Police study that found that changes to police presence did not have a
- 663. significant effect on crime or change citizen satisfaction levels with the police. In contrast to preventive patrols, directed patrols target a specific area of a city. In many cases, these regions are identified because either they have a high rate of crime in a particular area or the area is dominated by a particular type of criminal activity. Hot spots policing (also called place-based policing) is an example of directed patrol. Research indicates that it is an effective strategy in reducing crime.51 Generally speaking, hot spots policing involves the use of crime-mapping technologies such as geographic information systems (GIS) to help track geographic patterns in criminal incidents. The information is then used to predict future patterns of crime and make decisions about how to deploy officers. One example of how hot spots technology is used to identify areas of high crime is CompStat. Figure 7.10 presents the four core components of CompStat. In 1994, NYPD police commissioner William Bratton implemented CompStat in his organization. As a result of this
- 664. new technology, crime rates in New York City significantly decreased, in some cases by over 80%.52 CompStat is not without its issues, however. One of the primary criticisms is that a focus on statistics means that there is a risk of unethical reporting practices in order to meet goals and demonstrate success. For example, research has noted that the pressure to reduce index crimes has led to the downgrading of felonies to misdemeanors or noncrimes, effectively eliminating these acts 468 from the data (which, in turn, can make crime rates appear lower). As a result, it can be difficult to determine whether any successes were the result of the use of a particularly policing tactic or just the way in which CompStat tools were deployed.53
- 665. Directed patrol: A police practice that targets a specific area of a city due to crime rates. Hot spots policing: Type of directed patrol that uses crime- mapping technologies to identify areas where crime is most likely to occur. Crime mapping: Process by which information about crime locations is used to identify patterns of crime to assist in the deployment of officers. Geographic information systems: A type of crime-mapping technology that is used to track geographic patterns in criminal activity that can, in turn, be used both to predict future patterns of crime and to make decisions about the deployment of officers. CompStat: A practice that first began in the NYPD that focuses on the comparison of different crime statistics to guide policing decisions.
- 666. Figure 7.10 Core Components of CompStat Source: Police Executive Research Forum, CompStat: Its Origins, Evolution, and Future in Law Enforcement Agencies, 2013, https://www.bja.gov/Publications/PERF- Compstat.pdf. 469 https://www.bja.gov/Publications/PERF-Compstat.pdf 470 Order Maintenance Policing Order maintenance policing directs police to handle minor incidents and crimes in an effort to prevent larger crimes in the future. The belief is that a focus on minor crimes, such as
- 667. loitering, vandalism, and littering, can help create public order.54 Order maintenance policing is influenced by the broken windows theory, which suggests that when lesser acts of disorder are left unattended in a neighborhood, there is an increased risk for serious crime to breed. If communities (and the police) respond to these minor incidents, this creates more of a deterrent for would-be criminals.55 Research indicates that order maintenance strategies have been effective in several jurisdictions. One study showed that in New York City, which during the period under review saw a high number of arrests for minor misdemeanors and ordinance violations, the rates of robbery and homicide decreased significantly.56 However, critics have questioned whether it was the focus on broken windows policing that was the cause of the drop in the crime rate. After all, misdemeanor arrests are only one aspect of maintaining order within a community.57 While some have questioned whether the
- 668. aggressive pursuit of these minor offenses results in a zero- tolerance model, research indicates that the pursuit of minor offenses is just one option for police officers under a model of order maintenance.58 Order maintenance policing: Policy that directs police to handle minor incidents and crimes in an effort to prevent larger crimes in the future. Broken windows theory: Theory that suggests that when lesser acts of disorder are left unattended in a neighborhood, there is an increased risk for serious crime to breed. 471 Community Policing At the same time that some departments were experimenting
- 669. with order maintenance strategies, others were looking at models of community policing in an effort to reduce the crime rate. Agencies such as the San Diego and Santa Ana police departments were some of the early pioneers in implementing community policing during the early 1970s. The idea behind community policing is to establish better partnerships between the police and the neighborhoods they serve. Community policing is “a philosophy that promotes organizational strategies, which support the systematic use of partnerships and problem-solving techniques, to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.”59 Community policing requires that police departments be proactive and develop partnerships with other community actors, such as schools, churches, business owners, and other community groups. These groups work together to identify and respond to issues of crime and disorder. In addition, the decision-making
- 670. process is decentralized to allow street-level officers to make decisions about how to best respond to issues on a more immediate level. While there are many different variations of community-based policing in practice, the majority of police departments today have adopted characteristics of community policing as part of their organizatio n. Community policing: A philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime. The Office of Community Oriented Policing Services (COPS) was established within the Department of Justice in 1994 as part of the Violent Crime Control and Law Enforcement Act. It is responsible for providing training and funding to departments to help expand efforts in community policing. Over the past 20 years, the COPS
- 671. office has awarded more than $14 billion to help hire additional officers and provide training and resources to departments that are engaging in community policing.60 While evidence indicates that community-policing efforts have been successful, there are several challenges that threaten the current stage of this philosophy. In particular, while many departments have adopted the language of communi ty policing, not all have implemented the 472 core strategies of the practice, which, in turn, can impact how successful a police department is in its efforts.61 For example, research indicates that community-policing techniques do increase the levels of satisfaction that citizens have with their local police department. In addition, community policing has been effective in reducing
- 672. violent crime, but its effect on other types of crimes is mixed.62 Some of the challenges to community policing include the following: 1. Recruitment, hiring, and retention of service-oriented officers 2. Reinforcing the commitment to community policing by department supervisors 3. Inability to institute changes within the department 4. Dealing with disengaged communities 5. Budget and staffing shortages 6. Politics of public safety 7. Poor collaboration between police and other local government agencies 8. Local, state, and federal policies on criminal justice issues 9. Shifting the media’s message on policing63 Members of the Denver Police Department reach out to the city’s homeless population to provide referrals and services to help people find food, shelter, and mental health care. What type of policing is this an example of?
- 673. 473 RJ Sangosti/Denver Post/Getty Images Given the current challenges that departments face, there is a great need to look at how community policing can help rebuild and strengthen relationships between residents and the police. New York City mayor Bill de Blasio has commented that community-policing efforts can help prevent events such as the deaths of Eric Garner and Michael Brown.64 In December 2014, President Obama announced the establishment of a task force on twenty- first century policing to help further research and strategies in this area.65 474
- 674. Problem-Oriented Policing Like community policing, problem-oriented policing is a more proactive approach compared with order maintenance policing, which is a reactive model of policing. Problem-oriented policing (POP) encourages police officers not just to look at individual crimes or issues but rather to understand the root causes of crime. Problem-oriented policing strategies both assist the police in fighting crime and also help to identify other issues within a community. This type of policing encourages departments to use a variety of tactics to identify and fight crime in their communities while at the same time helping to prevent future crime and disorder.66 Problem-oriented policing: Policy that encourages police officers not just to look at individual crimes or issues but rather to understand the root causes of crime. Problem- oriented policing strategies both assist the police in fighting crime and also help to identify other issues within a
- 675. community. Many departments use the SARA model to help identify problems. SARA stands for scanning, analysis, response, and assessment. The first stage, scanning, asks for both the police and members of the community to identify issues they are concerned with and the consequences of these problems. The analysis stage is heavily influenced by social science research methods. In order to understand the extent of an issue, it is important to develop an understanding of what is already known about the issue and identify the types of data available to investigate the issue. The response stage involves taking this new information and proposing potential interventions or solutions to the issue. The final stage is assessment. In many ways, this is the most important stage of problem-oriented policing because it looks at how the plan was implemented, gauges its successes and failures, and makes suggestions for the future.67
- 676. SARA: Policing model that is used to help identify problems. Stands for scanning, analysis, response, and assessment. 475 Around the World Community Policing in Action Community policing is not just an American phenomenon, and characteristics of this philosophy can be found in departments around the world. For example, the police de proximité is France’s example of neighbor hood policing, which provides specialized training for officers and encourages collaborations with other local partners to identify and implement crime prevention efforts.a These sorts of examples portray the movement toward community policing as a deliberate choice for change. Police in
- 677. the Netherlands have embraced characteristics of community-oriented policing (COP) and have found great success in particular regions with the use of community patrols and partnerships.b For community officers in El Salvador, efforts such as painting over graffiti or digging a ditch to help prevent flooding are tasks that fall outside the realm of traditional police work, yet these efforts have gone a long way in building trust between officers and residents.c In other environments, community policing emerges as the only option to help reestablish public order. Countries throughout Africa, such as Kenya, Nigeria, and South Africa, have turned to community policing not only to help deal with corruption within the existing police ranks but, in some cases, to help establish new political and economic development within the region.
- 678. In order for these international efforts to be successful, countries must be realistic about both the issues within the community and the resources that the police have available to address such concerns. For some regions of the world, the desire to change may not be enough. Israel is a great example of this. Community policing was seen as a way to completely reform the police organization within the country, but while COP did have positive effects, a lack of commitment by the organization to shift away from its military culture was a major barrier to success.d Attempts to incorporate community policing into local settings must make sure that efforts are culturally relevant for the specific community.e 476 Critical Thinking Questions
- 679. 1. What lessons can the United States learn from the adoption of community policing around the world? 2. What challenges do international police forces face when adopting a community-policing strategy? In developing the model of problem-oriented policing, Herman Goldstein acknowledged that police departments not only will need to change the way that they go about their job on the street; they will also require a new level of analytical skills and resources in order to effectively identify problems and develop strategies to address these issues.68 To date, research has shown that problem-oriented policing and SARA are effective models in reducing crime and disorder within communities.69 Many departments utilize problem-oriented policing as part of a
- 680. community-policing model. However, there are several noted areas where problem-oriented policing differs from a traditional community-policing approach. Table 7.3 presents some of the similarities and differences that exist between these two approaches. Table 7.3 Source: Michael S. Scott, Problem-Oriented Policing: Reflections on the First 20 Years (Washington, DC: U.S. Department of Justice, Office of Community Oriented Policing Services, 2000). 477 478 Predictive Policing
- 681. Predictive policing involves “taking data from disparate sources, analyzing them, and then using the results to anticipate, prevent and respond more effectively to future crime.”70 Predictive policing involves using several policing strategies in partnership with each other, such as community-oriented policing and problem-oriented policing. While predictive policing begins with approaches such as hot spots technology, it involves the gathering of data from a variety of different sources to identify areas of future risk and help prevent criminal acts from occurring. Within predictive-policing models, crime data are not the only source of information as models also include measurements such as demographics, neighborhood characteristics, environmental factors, and economic data. Once the different data are identified, computerized programs use sophisticated models to analyze the data and make predictions about areas of risk for future criminal acts. Police then use these results to make decisions about how to combat these areas that are at risk
- 682. for future crimes. As a result, this technology can be used to predict the types of crimes that will occur as well as the place and time of these offenses, the typical perpetrator of these crimes, and the potential victims of these crimes.71 Figure 7.11 illustrates the process of predictive policing. Predictive policing: Policy that involves taking data from sources and using the analysis to anticipate, prevent, and respond more effectively to future crime. 479 Figure 7.11 Predictive Policing Source: Walter L. Perry et al., Predictive Policing: The Role of Crime Forecasting in Law Enforcement Operations, RAND Corporation, 2013, https://www.ncjrs.gov/pdffiles1/nij/grants/243830.pdf.
- 683. Steps in the predictive policing process: (1) data collection data fusion (2) analysis prediction (3) police operations Assessment (police operations to criminal response) intervention (criminal response to police operations) (shown by two-sided arrows) (4) criminal response 480 https://www.ncjrs.gov/pdffiles1/nij/grants/243830.pdf
- 684. altered environment Step (4) leads back to step (1). Proponents of predictive policing indicate that the practice could be useful to help identify how to strategically deploy department resources, particularly given the tight budget constraints that many agencies face. Critics question whether the use of such data could violate the constitutional rights of potential suspects.72 Since the use of data under predictive policing is a relatively new practice, there is limited evidence to understand whether these efforts have been successful in improving how departments respond to such identified trends in crime. A review of the use of predictive policing within the LAPD indicates that the use of historical data has been successful in predicting burglaries. Similarly, the town of Modesto, California, has seen decreases in residential burglaries, commercial theft, and robbery.73 Such successes have led several other cities to experiment with
- 685. predictive policing, including San Francisco, Atlanta, and Chicago. 481 Conclusion Police officers are the most visible component of the criminal justice system. As you learned in this chapter, the structure of law enforcement organizations and their duties vary dramatically. Without police officers to investigate crimes and make arrests, the other stages of our criminal justice system would not exist. Unlike the courts and correctional systems, police officers deal with not just offenders but everyday citizens as well. As you’ve learned in this chapter, the focus of these organizations has evolved significantly throughout history, yet the core philosophy of policing has remained the same: to serve and protect members of the community.
- 686. 482 Current Controversy 7.1 Is Targeted Policing a Good Policing Strategy? —Meghan E. Hollis and Amber Richey— Where do you stand? Cast Your Vote! 483 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-7/current-controversy-videos Introduction Predictive policing is a proactive police strategy aimed at reducing future criminal activity. Although the term is relatively new, the concept has been used in policing for several decades. Similar approaches have included problem- oriented policing, hot spots policing, and intelligence-led policing. These approaches differ from traditional reactive
- 687. policing strategies in several key ways. Proactive policing involves gathering and analyzing data to identify patterns and understand underlying problems. In predictive policing strategies, police departments use data to design and implement data-driven and evidence-based interventions to prevent future crime problems. Predictive policing combines various types of information, including crime data, calls for service data (whether crime related or not), local land-use data, and other information for analysis to predict where future crime problems are most likely. These areas are then targeted for police (and, at times, nonpolice) enforcement efforts. Early forms of predictive policing included problem-oriented policing and hot spots policing. Hot spots policing uses analyses of previous crime events to predict where future crime events are likely to occur. Through geospatial analyses
- 688. of previous crime events, hot spots maps are developed that indicate the “hottest” locations where future criminality is most likely. Typically, researchers and crime analysts focus on specific crime problems to generate these heat maps (e.g., violent crimes, assaults, gun crimes, burglaries). Hot spots analysis has been refined in recent years. One example of this involves risk terrain modeling.74 Risk terrain modeling merges crime data and other information to produce risk scores for geographic micro places (which are often as small as a city block or half a city block). This approach uses criminological theory–informed risk factors (risky places), combined with previous criminal activity, to predict locations that have the highest risk for future criminal activity. The risky places chosen depend on the crime problem identified but often include locations such as alcohol sales outlets, bars, pawnshops, pharmacies, banks, ATMs, and
- 689. convenience stores/gas stations. These locations are mapped with crime data, and a risk matrix is created. This can then be used to communicate with police officers about targeted strategies to address the most risky locations. Predictive policing can also be used to target people, groups, or specific incident categories. One example that combines a focus on people, places, and specific incidents is the geographic profiling work of Dr. Kim Rossmo.75 Geographic profiling is used in serial violent crime investigations. In geographic profiling, a series of connected (or serial) crimes is analyzed to identify where the offender is most likely to live. This process incorporates spatial analysis of crime places, information on individual offender behaviors, and a focus on specific incident characteristics. As indicated above, predictive policing can come in a variety of forms. This discussion has highlighted how a lot of
- 690. these approaches work but has not addressed two key questions: Do these strategies work to reduce criminal activity, and are there negative societal consequences to implementing these types of strategies? The remainder of this section will address these questions. 484 485 PRO: Targeted Policing Is a Good Policing Strategy Predictive policing modalities have been examined through rigorous research efforts. Evaluations of hot spots policing, risk terrain modeling, and other similar modalities have demonstrated that these approaches can be effective in reducing crime and disorder. Hot spots policing, risk terrain modeling, and other similar policing approaches have
- 691. demonstrated significant reductions in crime and disorder in targeted locations (as will be discussed in this section). Additionally, proponents of these approaches often indicate that they can reduce bias in policing and create more objective police strategies. Hot spots policing strategies have demonstrated success in reducing crime in local areas. A systematic review of hot spots policing strategies found support for the use of these programs. The review identified 19 studies with 25 tests of hot spots policing. The meta-analysis of all studies indicated that hot spots policing strategies are effective in reducing crime and disorder.76 Similarly, risk terrain modeling research has demonstrated that this approach can be effective in reducing specific crime problems in micro places.77 Recent approaches based on predictive policing have also garnered support for their use. The Operation LASER
- 692. program in Los Angeles was an intervention that focused on targeting violent places and people to reduce violence concerns.78 This intervention was found to significantly reduce gun crime in targeted locations. A similar program is the PIVOT program used in Cincinnati. This program goes beyond a focus on crime hot spots based on criminal activity to include crime place networks. These networks include locations frequented by chronic offenders. Once these networks are identified through data collection, analysis, and information sharing, the analyst– police partnership is used to identify appropriate interventions. PIVOT goes beyond police interventions and can include such activities as nuisance abatement, parking enforcement, and spatial redesign to reduce criminality of places. This program has demonstrated some success in reducing violent crime in targeted locations.79
- 693. The biggest benefit to predictive policing is the reduction of crime and disorder in targeted locations. Some also believe that the use of independent analysis of police data reduces the potential for biased police enforcement activities. It could be argued that the use of data-driven approaches can reduce the influence of racial profiling and biased policing. Proponents of these approaches indicate that they are based on unbiased and objective analyses that do not take into account human biases. This can reduce the influence of bias and, therefore, could serve to improve police– community relations by targeting crime problems without a focus on minority groups in society. The next section addresses key problems with predictive policing approaches. 486
- 694. CON: Targeted Policing Is Not a Good Policing Strategy Although proponents of predictive policing argue that the approach is data driven and objective, there are fundamental problems with the predictive policing approach that should be addressed. In research there is a saying: “Garbage in, garbage out (GIGO).” If the data that informs models and analyses is fundamentally flawed, the outputs will be flawed as well. This can present some serious concerns for policing researchers and police departments implementing predictive policing models and approaches. If the data that is used to inform predictive policing models is already flawed, the resulting models will be flawed as well. For example, if a department has a history of serious racial profiling, biased policing, and overtargeting of minority communities, this will influence the data that is produced as policing outcomes. When researchers pull that data and analyze it, the models will continue to focus on the
- 695. overpoliced locations. These models are not as objective and unbiased as researchers might claim. The use of predictive policing based on biased data can result in systemic overpolicing of minority populations. When the models reinforce that crime is most problematic in disadvantaged and minority neighborhoods and police decision making and enforcement actions are focused in areas identified by these models, it can create a feedback loop that promotes aggressive overpolicing in disadvantaged neighborhoods. There is no easy way to disentangle the biased data from good police data in building these models. A serious consequence of overpolicing these locations is that it can harm police–community relations and reduce perceptions of police legitimacy and trust. In these locales, perceptions of police are already negative. If predictive
- 696. policing models cause police to further target these locations, the police could further harm the relationship with the local community. This can exacerbate already tenuous relations with the police, causing reductions in willingness to cooperate with the police, reduced crime reporting, an increased prevalence of gangs, and the formation of other groups to address crime (and other) problems that the community members feel the police are not addressing. This causes irreparable harm to the democracy that the police represent and moves police away from democratic policing modalities.80 487 Summary While predictive policing tactics have been shown to reduce crime and disorder, this must be balanced with the
- 697. potential for harming the police–community relationship. Policing practitioners and researchers must pay careful attention to the data that informs predictive policing model s. If there is any concern that the police activities informing the data might be influenced by such concerns as racial profiling, biased policing, or overpolicing of minority populations, researchers and practitioners must give careful consideration to the use of this flawed data in building predictive policing models. Misuse of these approaches can harm police–community relations, damage perceptions of police trust and legitimacy, and reduce citizen cooperation with the police. In summary, although these approaches show promise in reducing crime and disorder, it is essential that the full range of consequences be considered prior to their implementation in local agencies. 488
- 698. Discussion Questions 1. How can predictive policing harm police–community relations? 2. How do predictive policing strategies work to reduce crime and disorder in local communities? 3. If you were a local police chief, what elements would you consider prior to implementing a predictive policing approach? 489 Current Controversy 7.2 Is Street-Level Bureaucracy a Good Thing? —Shelly Arsneault— Where do you stand? Cast Your Vote! 490
- 699. https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-7/current-controversy-videos Introduction A well-dressed couple in their mid-50s sits on a shady park bench talking and laughing. They pull out a bottle of champagne from a picnic basket and drink a toast. A police officer, recognizing the champagne as a clear violation of the city’s ordinance against open alcohol containers, stops at the park bench. The couple explains that they were married under these trees 25 years ago and have come to celebrate. The officer congratulates them, reminds them to keep the champagne out of sight, and moves on. Now, imagine that on that same park bench two homeless people are sharing a bottle of Boone’s Farm wine from a paper bag. What do you suppose the officer’s reaction would be to the second couple? While both couples are engaged in the same
- 700. illegal behavior, the people in these two scenarios will probably experience very different treatment from the police. This different treatment of a similar situation is an example of bureaucratic discretion. When an officer of the law has the authority to use his or her own judgments, opinions, experience, or reasoning to make decisions in the course of carrying out the law, he or she is exhibiting discretion. You might think that it isn’t fair for these two couples to be treated differently because they both violated the same law, or you may think that different treatment is perfectly logical and that the circumstances and characteristics of each couple should allow an exception to the law for the anniversary couple. Maybe you can see it both ways; if so, you are well on your way to understanding the complexity and ambiguity of bureaucratic discretion in the criminal justice
- 701. system. Before discussing the pros and cons of bureaucratic discretion, let us define some terms. Bureaucracy describes any large organization that is characterized by a defined structure and rules that allow it to pursue its mission and goals. In this case, bureaucracy is “the system” of the criminal justice system; it includes law enforcement agencies such as local police and sheriff’s departments or the state highway patrol. Other bureaucratic agencies of the criminal justice system include criminal courts, county probation offices, or a state’s department of prisons. A bureaucrat in the criminal justice system, therefore, is someone who works in the criminal justice bureaucracy, such as a police officer, judge, district attorney, probation officer, or prison guard. We consider these people to be the street- level bureaucrats of the criminal justice system, those “who interact directly with citizens in the course of their jobs, and
- 702. who have substantial discretion in the execution of their work.”81 These are the people at the front lines, carrying out the difficult, often dangerous work of the justice system. 491 CON: Street-Level Bureaucracy Is Not a Good Thing Criminal justice bureaucrats often have authority to use their own judgments, opinions, experience, or reasoning to make decisions in the course of carrying out the law. There are two key problems with this discretion. First, street- level bureaucrats have not been elected by anyone, and sometimes their discretionary decisions seem to ignore the laws written by democratically elected lawmakers. For example, if state law requires a minimum 10-year sentence in a drug case, should the county’s prosecuting attorney have the authority to reduce the charges against a defendant to avoid the
- 703. minimum sentence? This question is related to the second, more troubling aspect of bureaucratic discretion: the fact that it gives a high level of power to street-level bureaucrats. Especially in the criminal justice system, where police, prosecutors, judges, and corrections and parole officers have coercive power over citizens—including the right to kill— discretion can be used in ways that may appear to be discriminatory, unfair, political, and, at worst, abusive. For example, individual bureaucrats often make decisions based on their perceptions of the “worthiness” of the citizens they encounter. We saw this concept with the couples enjoying alcohol in the park.82 Many would argue that it is unfair for two equally guilty parties to be treated so unequally based upon one police officer’s judgments. Another example comes from California’s three-strikes law, which requires 25 years to life for someone convicted of a
- 704. third felony. An early study found that district attorneys and judges at the local level played an important role in implementation of the law because they were granted a fair amount of discretion over how prior “strike” violations were counted. In politically liberal regions of the state, such as the San Francisco Bay area, defendants were less likely to be subject to three strikes than in more politically conservative areas.83 Some would argue that political ideology should not matter when charging or sentencing criminals and that this is a misuse of bureaucratic discretion. The worst cases involve instances of racial profiling, violence, and excessive force experienced at the hands of prison guards or police officers. Although there are policies for escalation of physical force against suspects, what is appropriate use of force is left to the discretion of officers and their evaluation of the situation. A well-known case involving excessive force occurred in Los Angeles in 1991
- 705. when, after a high-speed chase, four White officers used batons and a Taser gun on an African American man, Rodney King, in order to force him to comply with arrest. The videotaped beating left King hospitalized with multiple broken bones; however, the LAPD defended its officers, arguing that this was not an abuse of power but rather “a professional response to the seemingly dangerous situation.”84 Although a jury acquitted the officers of excessive use of force, the verdict sparked six days of rioting in 1992, during which 50 people were killed and more than 1,000 injured.85 Later, King successfully sued the city of Los Angeles for $3.8 million, and, in a federal trial, two of the officers were found guilty of federal civil rights violations and sentenced to two years in prison.86 To this day, some argue that Rodney King’s treatment was an appropriate use of professional
- 706. police discretion while others say it was a racially motivated abuse of police power. 492 493 PRO: Street-Level Bureaucracy Is a Good Thing Given all of the ways in which bureaucratic discretion at the street level can go wrong, why does the system allow for so much discretion? Those at the street level are granted discretion for a variety of reasons. First, although elected officials make the laws, putting those laws into practice in the criminal justice system often occurs in situations that lawmakers cannot imagine. Discretion allows street-level bureaucrats the freedom to carry out their duties and obligations in complex, often dangerous situations, such as a
- 707. hostage-taking or domestic-violence case.87 It would be impractical to provide detailed instructions on dealing with such complicated situations; instead, street-level bureaucrats must use their discretion—based on their training, education, experience, and moral judgments —to carry out their duties. Second, those at the front lines in the criminal justice bureaucracy are typically professionals in their fields. There are training academies for law enforcement officers and law schools for lawyers and judges, and a great deal of experience and level of mastery is learned while on the job. For example, seasoned police officers often learn how to detect cues that lead them to successful discovery of illegal goods during discretionary citizen searches.88 When we give a parole officer the discretion to assess a parolee’s progress and recommend intervention programs or allow a judge to sentence
- 708. someone to the minimum rather than the maximum term in prison, we are acknowledging that she or he has the professional standing and experience to make a good decision. Third, we must remember that while they enjoy a great deal of discretion, the behavior of street-level bureaucrats in the criminal justice system is constrained in many ways. These constraints include the following: basic rules and procedures that must be followed, monitoring and evaluation of performance, and sanctions for poor performance. Other constraints include professional norms and codes of conduct; for example, attorneys and judges who fail to uphold appropriate legal standards or engage in unethical behavior can be disbarred from the profession. Finally, those in the criminal justice bureaucracy usually view public service as a noble calling and dedicate themselves to it, reducing the odds that they will abuse their power.89
- 709. 494 Discussion Questions 1. As citizens, how do we ensure that street-level bureaucrats of the criminal justice system use their discretion wisely and fairly? 2. Should the powers of discretion be restricted? How do the various levels of discretion benefit the criminal justice system? 495 Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e
- 710. Assistant chief 154 Broken windows theory 156 Chain of command 154 Community policing 156 Community problem-solving era 144 CompStat 155 County sheriff 147 Crime mapping 155 Deputy police chief 154 Detective 155 Directed patrol 155 Geographic information systems 155 Highway patrol 147 Hot spots policing 155 Information era 144 Jurisdiction 145 Kansas City Preventive Patrol Experiment 155 Lieutenant 154 Local law enforcement 147 Municipal police 147 Order maintenance policing 156 Patrol officer 155 Police captain 154 Police chief 154 Political era 143
- 711. Predictive policing 159 Problem-oriented policing 157 Random patrols 155 496 http://edge.sagepub.com/mallicoatccj2e Reform era 143 SARA 157 Sergeant 155 State law enforcement 147 Stop and frisk 141 497 Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e
- 712. 1. What indicators do we have that we are moving into the “information era?” How might this era involve features from the three previous eras of policing? 2. How are Sir Robert Peel’s principles of policing reflected in today’s law enforcement organizations? 3. How are issues such as jurisdiction reflected in the various different law enforcement organizations? 4. What are some of the benefits of having a diverse police force? 5. According to research, which is more effective: random or directed patrols? 498 http://edge.sagepub.com/mallicoatccj2e Learning Activities
- 713. 1. Interview a police officer in your city or at your university police department. What types of policing strategies does that officer use as part of her or his job duties? 2. Schedule a ride-along with a local officer. How do officers use technology to perform their jobs? 3. Research the history of the Department of Homeland Security. How has the creation of this organization provided assistance to DHS agencies? What are some of the challenges of combining several agencies under one “roof”? 499 Suggested Websites Discover Policing: http://discoverpolicing.org National Sheriffs’ Association: http://www.sheriffs.org/content/about-nsa International Association of Chiefs of Police:
- 714. http://www.theiacp.org U.S. Department of Homeland Security: http://www.dhs.gov 500 http://discoverpolicing.org http://www.sheriffs.org/content/about-nsa http://www.theiacp.org http://www.dhs.gov Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these
- 715. premium resources: Career Video 7.1 Dr. Tracie Keesee: Police Captain Criminal Justice in Practice 7.1 Call for Service SAGE News Clip 7.1 DOJ: Baltimore PD Had Pattern of Excessive Force 501 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e 502 8 Issues in Policing Anadolu Agency/Getty Images 503
- 716. Learning Objectives Discuss how the law has impacted the ways in which police carry out searches Identify the ethical challenges that police officers face as part of their job duties Discuss how actions by the police may involve the discriminatory treatment of certain groups in society List the different types of force used by the police Describe how police departments establish legitimacy in a community Identify sources of occupational stress for police officers On March 3, 1991, Rodney King was stopped by LAPD officers after refusing to pull over and leading them on a high-speed chase. Following their attempts to subdue King, the officers began to physically assault him. The
- 717. encounter was recorded by a neighbor and was released on local television. Although the officers in this case were tried, they were acquitted of multiple crimes related to their use of excessive force. In recent years, a number of incidents have resulted in the deaths of individuals at the hands of the police. News accounts of these events quickly go viral through news organizations and on social media.1 However, the prosecution and conviction of officers in these cases is rare. Officers Howie Lake and Blane Salamoni did not face criminal charges in the case of Alton Sterling, who died as a result of being shot by them. Although Salamoni was terminated, Lake returned to duty two years after the offense.2 In the case of Philandro Castile, who was shot during a traffic stop in Falcon Heights, Minnesota, Officer Jeronimo Yanez was charged with second-degree manslaughter but was acquitted by a jury.3 Perhaps the most recent high-profile case of this type is that of former South Carolina
- 718. police officer Michael Slager, who shot Walter Scott, an unarmed African American man. Slager was initially charged with second-degree murder in state court but the case ended in a mistrial. Slager eventually pled guilty in federal court to violating Scott’s civil rights and was sentenced to 20 years in prison. Slager had argued that he shot Scott in self- defense, but video from a witness’s cell phone showed that Scott was running away from Slager and was shot in the back.4 In each of these cases, Black men experienced significant harm or death at the hands of White police officers, which strongly impacted the relationship between residents and the police in the affected communities. Such effects have also been felt nationwide and have had collateral impacts on many other departments and communities. These cases have also had substantial financial implications for cities. Of 15 high-profile cases involving the deaths of Blacks at the
- 719. hands of police that have occurred in the past three years, 11 resulted in financial settlements ranging from $850,000 to $6.5 million and totaling over $46 million.5 What remains to be seen is how communities and police organizations are able to rebuild trust in each other following these types of events. In this chapter, you’ll learn about some of the issues that the police face both as individual officers and as an organization at large. The chapter begins with a discussion of the legal issues in policing and the rules that impact how police officers do their job. The chapter next turns to a discussion of how ethical challenges, corruption, racial profiling, and the use of force can have an effect on the public’s perception of the police. It then looks at the nature of police legitimacy and how these types of issues can threaten it. The chapter concludes with 504
- 720. two Current Controversy debates. The first, by William Sousa, investigates if body cameras should be utilized in the line of duty. The second, by Lorenzo M. Boyd, asks if police discretion helps or harms our criminal justice system. 505 Policing and the Law Much of the law that mandates how the police do their job comes from the Fourth Amendment to the U.S. Constitution. The Fourth Amendment protects individuals from unreasonable searches and seizures and requires the police to have probable cause to obtain a warrant in order to conduct most searches or make an arrest. But what exactly does this mean? Probable cause means that an officer believes an offense has been (or is about to be)
- 721. committed. Probable cause can be established based on the officer’s own observations or information that the officer receives from others, such as witnesses. Probable cause is required in order to conduct a search. A search is when a person’s reasonable expectation of privacy is violated. Generally speaking, an officer must have probable cause in order to obtain a warrant (although there are some exceptions). A warrant is a legal document that allows an officer to complete a search of a person’s belongings. The police can then seize, or take, items and admit them into evidence to be used in a court case. Probable cause: Legal standard that means an officer believes an offense has been or is about to be committed. Can be established by officer observations or information that is received from others. Search: The process by which the criminal justice system is allowed access to your personal space and belongings to determine whether evidence of a criminal act is present.
- 722. Warrant: A legal document that allows an officer to complete a search of a person’s belongings. Seize: Practice that allows the police to take items and admit them into evidence. 506 Search and Seizure If evidence is obtained outside of the context of a warrant, such items must be excluded and cannot be used against someone in a court of law. This is called the exclusionary rule, and it was established by the U.S. Supreme Court case Mapp v. Ohio (1961). In addition, any evidence that is subsequently obtained as a result of this illegal search is also excluded. This is known as the fruit of the poisoned tree doctrine. The purpose behind the exclusionary rule is to ensure that the police follow the law and uphold the rights of the accused when gathering evidence. However, there are exceptions to the exclusionary
- 723. rule. If the police act in accordance with the law but make an unintended error, then the evidence can still be used. For example, say the police are granted a warrant for 332 East 39th Street, but when the warrant is processed into the computer system, the address is entered as 332 West 39th Street. Upon arriving at 332 West 39th Street, the officers seize 10 grams of crack cocaine that were sitting on the coffee table in the living room. Under the good faith exception to the exclusionary rule, an arrest can be made and the drugs can be used as evidence against this new offender. Exclusionary rule: Established by the U.S. Supreme Court case Mapp v. Ohio (1961). It states that items obtained outside the context of a warrant cannot be used against someone in a court of law. Fruit of the poisoned tree: This doctrine states that any evidence obtained as a result of an illegal search is excluded and cannot be used against someone in a court of law.
- 724. Good faith exception: If evidence is obtained without a warrant as a result of unintended error, then the evidence can still be used. In 2016, the U.S. Supreme Court heard the case of Utah v. Strieff. Edward Strieff was observed leaving a known drug house. The police approached him and, after asking him for identification, found an outstanding warrant for an unpaid parking ticket. As part of a lawful search of Strieff’s person and belongings, the officers found methamphetamine and drug paraphernalia. While the district court and Utah’s court of appeals allowed the search to stand, the state supreme court reversed their decision, arguing that the evidence should have been suppressed as it was only obtained because Strieff was found to have an outstanding warrant. The U.S. Supreme Court agreed with the lower courts and held that even if the original stop was unlawful, the evidence could be admitted because it was a legal search as part of a lawful arrest (in this case, Strieff’s warrant). In
- 725. writing the majority opinion, Justice 507 Clarence Thomas stated that while the officer made errors in judgment, these mistakes did not constitute a violation of Strieff’s constitutional rights.6 In contrast, Justice Sonia Sotomayor’s dissent condemned the Court for its decision to further limit the exclusionary rule: “Do not be soothed by the opinion’s technical language. This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”7 508 The Role of Technology in Searches
- 726. As technology continues to evolve, a number of issues have been raised regarding the use of technology and Fourth Amendment protections. During the 2014 term, the U.S Supreme Court heard the case of Riley v. California,8 which asked whether the police are allowed to search the cell phone of an arrestee without a warrant. David Leon Riley was pulled over by a police officer in San Diego, California, because the registration tags on his car had expired. Upon making contact with Riley, the officer noted that he was driving on a suspended license. In response to department policy, Riley was arrested, his car was towed, and the contents of his car were cataloged. During this process, the officers discovered two handguns that were located under the hood of the car. Mr. Riley was placed under arrest, and his personal belongings, including his cell phone, were confiscated by the police as part of the arrest process. His cell phone was subsequently searched, and officers learned that he had ties to a local gang. They also discovered photos on his phone,
- 727. including one of him with a car that had been used in a gang-related shooting. Based on the evidence on the phone, in conjunction with ballistics testing that indicated the two guns found in his car were used in the shooting, police filed charges against Riley in the gang- related shooting. Riley was convicted and received an enhanced sentence, based on his gang involvement, of 15 years to life. Riley appealed his conviction to California’s court of appeals on the grounds that the evidence from his phone was obtained illegally and therefore should not have been used against him in his trial. While the court of appeals affirmed his convi ction, the U.S. Supreme Court granted certiorari to hear the case. In June 2014, the Court unanimously ruled that police must obtain a warrant in order to search the cell phone of someone under arrest. In the majority opinion, Justice John Roberts stated that people have a reasonable expectation of privacy with their cell phones given the large amount of personal information that is generally stored on these
- 728. devices. During the 2017 term, the Court heard the case of Carpenter v. United States.9 In this case, the justices considered whether the police could obtain cell phone data records, which include the location and movement behaviors of individuals, without a warrant. In Carpenter, four defendants were arrested in connection with several armed robberies. One of the defendants confessed to the crime and provided the police with the cell phone numbers of his 509 codefendants. Police used this data to obtain digital locations of the other defendants and used this to connect them to the crimes. This data was obtained under the Stored Communications Act, which only requires officials to have reasonable grounds that the data is related to a crime. The defendants argued that this data was inadmissible as the FBI did
- 729. not have a warrant based on probable cause, which is a higher burden of proof. The Court held that a search of these cell phone records without a warrant is a violation of the Fourth Amendment protection against unreasonable search and seizure. 510 Warrantless Searches There are cases in which a warrant may not be required. For example, police can simply ask if they can search your home. If you say yes, then no warrant is required. This is considered a consent search because you agree to allow the police to conduct the search. As a result, anything that the police find that is considered illegal can be used in a case against you. Another example is that if the police legally stop you for a traffic violation and see, in plain view, a crack pipe sitting on the passenger seat, the police can legally seize this as evidence of criminal activity. Police can also exercise an emergency
- 730. exception to the warrant requirement if they are concerned that waiting to secure a warrant could either jeopardize the safety of others or threaten the integrity of potential evidence. Consent search: A type of search that occurs when the individual gives permission to conduct a search. Emergency exception: An exception to the warrant requirement that is invoked if police are concerned that waiting to secure a warrant could either jeopardize the safety of others or threaten the integrity of potential evidence. Automobile Searches What about automobile searches? Can the police search your car if you are pulled over for a lawful traffic stop? The answer to this specific question is no. If, however, you are placed under arrest, then the police can search a vehicle without a warrant if they have probable cause to arrest the occupants of the vehicle and if they have
- 731. probable cause that the car contains illegal items. This is known as the Carroll doctrine, and it comes from the U.S. Supreme Court decision in Carroll v. United States in 1925.10 The logic of the Court was that since an automobile can be moved (potentially out of a specific jurisdiction), a warrant is not required. Throughout the twentieth century, the Court heard dozens of cases that limited the scope of warrantless automobile searches. The search of an automobile can include not just the basic interior of the car but also confined spaces if the officer believes that such spaces (such as a trunk) contain illegal property.11 Meanwhile, United States v. Chadwick held that while the police could seize any containers found within the car (such as a suitcase), they could not open them without a warrant.12 While the Court held that there is a lower expectation of privacy in an automobile compared with a residence,13 cases involving
- 732. “vehicles” such as mobile homes and motor homes were less clear about how a warrantless 511 search could be conducted. Carroll doctrine: Legal doctrine that allows the police to search a vehicle without a warrant if they have probable cause to arrest the occupants of the vehicle and if they have probable cause that the car contains illegal items. A police officer has pulled over a motorist and is using a flashlight to check the backseat of his car. Would this be considered a legal search? © iStock.com/lisafx The confusion over when and how a warrantless search of an automobile can be conducted was addressed by the U.S. Supreme Court in 1991 in California v. Acevedo. The Court
- 733. reinstated the Carroll doctrine as the primary rule of law and held that “police, in a search extending only to a container within an automobile, may search the container without a warrant where they have probable cause to believe that it holds contraband or evidence.”14 Despite the return to the Carroll doctrine, there are still some circumstances that limit when a warrantless search can be conducted. While it has been established that the police can conduct a reasonable search to ensure that there is nothing in the car that might place the officer or others at risk of personal harm, this provision is eliminated if it is unlikely that the 512 driver would be able to gain entry back into the car. Consider the case of Rodney J. Gant, who was arrested in Tucson, Arizona, for driving on a
- 734. suspended license. Mr. Gant was restrained by a pair of handcuffs and placed into the backseat of a patrol car. During a search of his vehicle, the police located a handgun and some cocaine. The U.S. Supreme Court held that since Mr. Gant was restrained and therefore unable to access the car or its contents, the search was illegal.15 The Court has also weighed in on whether the refusal to be searched can be a criminal act in itself. In the case of Birchfield v. North Dakota, the Court was faced with the question of whether an individual’s refusal to submit to a breathalyzer or blood draw in a suspected DUI case is a crime. While most states penalize individuals who refuse such tests by either suspending or revoking their driver’s license, North Dakota state law stated that such refusals could carry several potential criminal penalties, including mandatory drug treatment, fines ranging from $500 to $2,000, and even a maximum imprisonment of 366 days behind bars. In a 7–1 decision, the Court partially agreed with Mr. Birchfield
- 735. and the defendants in two related cases and stated that while the state could criminalize the rejection of a breathalyzer, it could not do so in cases of a blood draw. The Court argued that the state does have an interest in preventing drunk driving and that the decision to criminalize the refusal of a breath sobriety test was reasonable. However, a blood draw is an invasive procedure and one that violates an individual’s right to privacy, as a blood sample contains far more data than just one’s level of blood alcohol.16 During the 2017–2018 term, the Court weighed in on two additional cases involving the searches of automobiles. In Collins v. Virginia, the Court considered whether the automobile exception applies to an unaccompanied vehicle parked in a person’s driveway. In this case, police were looking for a motorcycle that had broken traffic laws and had evaded them on multiple occasions. After locating the home where the suspected driver lived, the police identified the motorcycle, which at the time was concealed by a
- 736. tarp in the driveway. The defendant argued that the search was illegal as the police did not have a warrant to search under the tarp. The Court held that the automobile exception does not apply to a vehicle that is parked on a homeowner’s property. Since the police did not have a warrant, the search was illegal. The Court also considered whether a driver of a rental car has a reasonable expectation of privacy if he or she did not sign the rental agreement. In the case of Byrd v. United States, the 513 defendant was pulled over for violating a traffic law. Noting that the car was a rental, police asked Byrd for the rental agreement and discovered that he was not listed as an authorized driver. Upon running his identification, the police discovered an outstanding warrant in another state. While there is some dispute in the case as to
- 737. whether Byrd provided consent to search the automobile, the police did so and found drugs and body armor. At trial, Byrd sought to suppress the findings of this search, arguing that he had a reasonable right to privacy. The Court held that even though Byrd was not listed on the rental agreement, he still had a reasonable expectation to privacy. The case was remanded to the lower courts to determine whether the police had probable cause to search the vehicle and whether Byrd intentionally used a third party (in this case, his girlfriend) to mislead the rental company and use the rental car to engage in criminal activity. 514 The Miranda Warning If you’ve ever watched a television show about police officers, you’ve probably heard the Miranda warning: “You have the right to remain silent. Anything you say can and will be used
- 738. against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” Miranda warning: Used to inform people who are under arrest that the Fifth Amendment provides protection against self-incrimination during an interrogation. The Miranda warning is used to inform people who are under arrest that the Fifth Amendment provides protection against self-incrimination during an interrogation. This warning comes from the 1966 U.S. Supreme Court decision in Miranda v. Arizona. In this case, Ernesto Miranda was accused of rape and kidnapping. After two hours of interrogation by the police, he confessed to the crime. Armed with his confession, the court convicted Miranda of these crimes. Miranda appealed his conviction on the grounds that he was not informed of his right to remain silent. The U.S. Supreme Court agreed with Miranda and
- 739. overturned his conviction.17 515 Careers in Criminal Justice So You Want to Be a Criminal Investigator? As a result of television shows about crime, one of the more popular jobs in criminal justice is that of the criminal investigator. However, the job on the streets is very different from what is portrayed on television. Criminal investigators are usually sworn law enforcement officers who may perform a number of different tasks, including gathering evidence, arresting and questioning suspects, working with crime victims, writing reports, and testifying in court. In 2014, the average pay for a criminal investigator was
- 740. $79,620. With only a few opportunities available in each department, these are highly competitive positions. Criminal investigators can work for a variety of different agencies, including local police departments (where they typically serve as detectives) or the federal government.a Most investigators are officers who have spent several years working for a police agency. Advancement to this rank often requires an exam and interview process that screens potential candidates for the job. Candidates selected for these positions receive specialized training on topics such as methods of interrogation and evidence or specific types of crimes (such as computer crimes, child abuse, or insurance fraud). In addition to their experience on the job, many investigators have met additional educational requirements, such as a bachelor’s or master’s degree.
- 741. Since Miranda, the Court has heard several challenges. In 1980, the Court heard the case of Rhode Island v. Innis, which sought to clarify the meaning of the term interrogation. Miranda had held that the Fifth Amendment protection existed during an interrogation. In the case of Innis, the suspect was read his Miranda rights and expressed a desire to speak to an attorney. The officers who were transporting him began to engage the suspect in a conversation about the crime but did not ask him any questions about the event. As a result of this conversation, the suspect disclosed the location of a weapon that was used in the crime. While the attorney for Innis moved to suppress the evidence, the motion was denied. In hearing the case, the Supreme Court held that an interrogation involves both directed questions and any conversations by the police with the accused that could elicit incriminating evidence.18 516
- 742. Spotlight DNA Collection When a suspect is arrested, it is standard procedure to take her or his photograph and fingerprints. While fingerprints have been used as a method to identify perpetrators since the late nineteenth century, technological advancements have opened the doors to other forms of identifying data. DNA, or deoxyribonucleic acid, was first identified in 1953. DNA is unique to every individual (except in cases of identical twins) and can be found in a person’s bodily material, such as blood, saliva, hair, and semen. It has been used in criminal cases to (1) identify an offender who was otherwise unknown to the police, (2) confirm the identity of an offender, and (3) exonerate those who have been wrongfully convicted. During the 1980s, states began to pass laws that require the collection
- 743. of DNA from offenders who are convicted of a sexual or violent crime.a In 2005, Congress passed the DNA Fingerprint Act, which required that any adult who is arrested for a federal crime provide a DNA sample. This marked a departure from earlier laws, which limited the collection of DNA to only those convicted of an offense. In addition, 28 states have passed similar laws for state criminal offenses. Of these laws, 13 states require DNA collection in cases of any felony arrest, and seven states allow for DNA to be collected for misdemeanor cases. While 17 states allow for DNA to be collected at the time of arrest, 11 states require that the court conduct a hearing to establish that there is probable cause that the offender engaged in the crime before DNA can be collected.b All 50 states, plus the District of Columbia, Puerto Rico, and the federal government, submit their data to the National DNA Index System (NDIS).c Data are then
- 744. connected to other DNA laboratories through the Combined DNA Index System, or CODIS. To date, almost 11 million offender and arrestee profiles have been entered into this system.d The collection of DNA from arrestees and convicted offenders has been heavily debated. Supporters argue that the use of DNA databases (and their expansion) is a powerful crime-fighting tool. By collecting DNA data at the arrest stage, police may be able to link repeat criminals to unsolved crimes, even if they are not convicted on the current case. Opponents of these laws argue that the collection of DNA following an arrest is an unreasonable search and seizure and therefore violates the Fourth Amendment.e The U.S. Supreme Court addressed this issue in Maryland v. King in 2013 and held that the collection of DNA from an individual following a lawful arrest is
- 745. constitutional. King was arrested for first- and second-degree assault. When his DNA was entered into the Maryland State DNA database, it matched evidence collected in an unsolved rape from 2003. Using the DNA match from his 2009 arrest, King was convicted for the 2003 rape. In a 5–4 decision, the Court noted that when officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographi ng, a legitimate police booking procedure that is reasonable under the Fourth Amendment.f Just as DNA can help identify the correct offender, it can also exonerate someone who has been wrongfully convicted of a crime. However, this process is not as simple as it sounds. Not every case has biological evidence
- 746. available to test. Sometimes, the quality of the evidence has eroded over time, or there might not be enough usable evidence to carry out such tests. DNA testing is also very expensive. While the National Institute of Justice 517 provides funding through its postconviction DNA testing program, these funds are highly competitive and can only support a small number of cases.g While every state has a law that allows for postconviction DNA testing, the majority of these laws are very limited. On one end of the spectrum, we find 20 states that allow anyone convicted of a crime to apply for testing. On the other end is Alabama, which only allows for postconviction DNA challenges in death row cases.h Finally, there is the issue of errors in DNA testing. While DNA has been
- 747. seen by many to be the Holy Grail of identifying a suspect, mistakes do happen. Technicians may lack supervision or have inappropriate training. Samples can be contaminated and lead investigators to the wrong person.i And, alas, in some cases results have been falsified. Consider the case of the Houston Crime Lab. Over the past two decades, the city’s lab has come under fire for issues of mismanagement of the unit, falsified results by technicians, and structural issues that have compromised the integrity of evidence. Peter Lentz was a lab technician who worked on 185 cases over a 14-month period. Shortly before he was removed from duty, he admitted to his colleagues that he had not followed standard protocols, had lied about his findings, and had tampered with official crime lab records.j In a separate scandal, a crime scene investigator had 65 errors in cases
- 748. that were caused by failing to gather evidence at crime scenes.k 518 Critical Thinking Questions 1. What are some of the challenges that exist with using DNA as a form of evidence? 2. Review the laws about the collection of DNA from offenders in your state. Under what circumstances might your DNA be collected as a result of criminal activity? 519 Ethical Dilemmas and Corruption Ethics is the study of what is right or wrong, good versus evil. But how do we know what is right or wrong? Given their powerful position in society, we
- 749. expect that police will have a high sense of ethics and that they will serve as representatives of fairness and justice in society. Most police departments have a code of ethics for their officers. Here is the Code of Ethical Conduct for the Oregon State Police: As a peace officer, I am the image of penal law and its warden. If I am to be esteemed and the law I typify respected, I must know my authority well and use it wisely. I shall neither exceed nor abuse it. During my private and public life, I shall conduct myself with the highest degree of integrity and honesty. I shall at all times conduct myself in a manner which consistently maintains the public trust. I shall be intolerant of dishonorable or unethical conduct by any person in the criminal justice community. As an Oregon State Police officer, I shall strive to be courageous in my professional and everyday life, and will take prudent and judicious action when faced
- 750. with danger, scorn, or ridicule. Although the way I choose to conduct my private life is a personal freedom, I accept responsibility for my actions while on or off duty. I will not become a party to conduct that is likely to, or does bring disrespect to myself, my fellow employees, or the Oregon State Police. To that end, I shall not engage in personal conduct that affects, or could be perceived to affect, impartiality in my official capacity. I shall not use my position or authority for any personal gain or benefit. I shall refrain from seeking or accepting any gift, gratuity, or favor that is tendered, or could reasonably be perceived as being tendered, as an attempt to influence impartiality in my official capacity. As an Oregon State Police officer, I acknowledge the authority and responsibility entrusted to me and will use only the amount of force reasonably necessary to accomplish and fulfill my duties. I consider the use of deadly
- 751. physical force as the final 520 option to protect myself or another person from what I reasonably believe to be the infliction, or threatened infliction, of serious physical injury. I shall bear faithful allegiance to the State of Oregon and the Oregon State Police and shall be loyal to the highest ideals of my profession. I will serve the public with due respect, concern, courtesy, and responsiveness without prejudice. I recognize the service to the public is beyond service to myself. As a police officer, I consider it a privilege, and the greatest honor that may be bestowed upon any person, to defend the principles of liberty.19 Police confront ethical dilemmas every day on the job. An ethical dilemma occurs when an
- 752. officer is unsure about the right path of action, when following the right path is difficult, or when the wrong path becomes tempting to the officer.20 Ethical dilemmas can occur in four different realms: discretion, duty, honesty, and corruption. Ethical dilemma: Occurs when an officer is unsure about the right path of action, when following the right path is difficult, or when the wrong path becomes tempting to the officer. 521 Discretion You’ve already learned about how discretion is one of the most powerful tools of the criminal justice system. In policing, discretion allows for officers to determine when to stop an individual, when to issue a citation, and, in many cases, when to initiate an arrest. However,
- 753. the power of discretion also has its challenges. In some cases, officers have limited discretion and have specific policies dictating how they should respond. In other cases, an officer’s use of discretion can result in either discriminatory or favorable treatment, which can lead to ethical violations. You’ll have the chance to weigh in on the use of police discretion in Current Controversy 8.2 at the end of this chapter. 522 Duty Ethical dilemmas involving issues of duty occur in two different ways. In some cases, officers are faced with challenges based on how they view their role as police officers. Is it to help prevent crime? Is it to help people? In other cases, the officer may know what is expected of him or her but may not be inclined to perform a particular aspect of the job. Each officer has her or his own perspective on duty, which can impact how the
- 754. officer responds to ethical dilemmas in these cases. Issues of duty: Ethical dilemmas where officers are faced with challenges based on how they view their role as police officers. An issue of duty also occurs when an officer knows what is expected of her or him but is not inclined to perform a particular aspect of the job. 523 Honesty As a police officer, you are expected to be honest in your interactions with the public as well as with fellow officers or other criminal justice professionals. Failures of honesty can not only impact how the public views the police but also lead to acts of corruption, such as bribery. What if you discover that an officer within your unit is involved in illegal behavior? What do
- 755. you do? Do you report him or her, or do you look the other way? Even if you don’t approve of the behavior of your fellow officer, do you still support her or him as a member of the department?21 524 Corruption Ethical challenges can lead to corruption. Corruption occurs when officers fail to make good ethical decisions (generally involving the abuse of their authority as an officer) and the results of their actions lead to personal gain. The most common forms of corruption include acts such as theft (such as of drugs or other seized property) and selling information about police strategies and operations. Officers might also commit perjury by lying to cover up their wrongdoing.22 Other acts of corruption include mooching or
- 756. bribery (receiving free items in exchange for favorable treatment) and shakedowns (taking items without paying for them). The extent of corruption is difficult to measure because it occurs in every type of department: big, small, urban, and rural. Corruption: An ethical dilemma that occurs when officers fail to make good ethical decisions and the results of their actions lead to personal gain. Perjury: Lying to cover up wrongdoing. Mooching: A form of corruption that involves receiving free items in exchange for favorable treatment. Bribery: Involves the solicitation of something of value to influence the actions of another. Shakedowns: A form of corruption that involves taking items without paying for them. In its investigation of the New York Police Department in the 1970s, the Knapp
- 757. Commission identified two categories of police corruption. Those officers who were described as grass-eaters were considered to be involved in corrupt activities in a passive sense. Here, officers would accept payoffs and opportunities that came their way. In contrast, meat-eaters would actively pursue corrupt activities that could result in significant and illegal gains. While it seems like a meat-eater would be the most problematic due to his or her overt illegal behaviors, the Knapp Commission suggested that it was the grass-eaters that were the more dangerous of the two because they portray a culture wherein such behaviors are permissible as long as one doesn’t actively seek them out.23 Grass-eaters: Officers who are considered to be involved in corrupt activities in a passive sense. Meat-eaters: Officers who actively pursue corrupt activities that could result in significant and illegal gains. Since the 1970s, corruption has been more systematic in design. Previously, corruption was
- 758. more of an individual effort and generally reflected that these officers deviated from 525 department rules and norms. Today, corruption in policing is generally conducted outside of the public eye and is only exposed when officers and agencies are sanctioned for these behaviors. Why Does Corruption Occur? One perspective is the rotten apple theory, which suggests that the corruption of a select few individuals can, in turn, shed negative light on a department. While some may perceive that corruption in these cases is easy to resolve through the removal of the few guilty individuals, others may believe that these few bad apples have spoiled the bunch.24 In some cases, we have seen examples in which an entire division of a department
- 759. becomes involved in corrupt and illegal activities, such as the Rampart Division of the LAPD. During the 1990s, more than 70 officers were implicated in and 24 officers were found guilty of wrongful activities. These acts of corruption proved costly to the department. To date, the city has faced more than 140 civil lawsuits and awarded $125 million in settlements in these cases.25 Rotten apple theory: Suggests that the corruption of a select few individuals can, in turn, shed a negative light on a department. 526 Racial Profiling Racial profiling occurs when “the race or ethnicity of an individual is used as the sole or
- 760. primary determinant” by the police when making decisions.26 The U.S. Supreme Court has stated that the police are prohibited from stopping an individual based solely on her or his racial or ethnic makeup.27 However, race can be used in conjunction with other factors in describing a suspect in a crime.28 While the decision in Whren v. United States (1996) permitted the police to stop motorists and search their vehicles if they had probable cause that the drivers were transporting contraband such as illegal drugs or weapons, scholars have suggested that this decision has given de facto permission to engage in racial profiling on the roadways.29 Racial profiling: Occurs when the race or ethnicity of an individual is used as the sole or primary determinant by the police when making decisions. 527
- 761. Around the World Policing in the Middle East Corruption among the police within developing nations is a significant issue. Consider the challenges of developing nations. They often face authoritative challenges within the structure of the government, high rates of crime and poverty, and a great deal of pressure to establish a system of democracy. Examples of police corruption in such settings can range from accepting bribes and kickbacks from individuals and local businesses to extorting money from citizens for protection and covering for criminal enterprises. Consider the case of Afghanistan, a country that is struggling to establish a legal system. Several countries including the United States have contributed resources to help
- 762. the nation reform its system of policing. Prior to these efforts, there was no system of central control or a chain of command. Officers had limited training and even lacked uniforms to establish their official role within the community, which limited their ability to generate trust and support from residents. Low pay and ethnic tensions within the force contributed to a lack of cohesion within the units.a At the same time, the illegal drug trade fueled opportunities for corruption whereby police accepted funds from drug traffickers in exchange for protection for illegal activities.b We can see how these challenges can lead to corruption among the police force: It is not uncommon for police officers to buy their positions by paying bribes to superiors for unjustified promotions and for assignments that provide opportunities to extort truckers and merchants and engage in
- 763. smuggling. Embezzling official funds and stealing gasoline to sell on the black market is common. Police officers are also reported to have sold their weapons and ammunition to the Taliban.c The efforts to build a civilian police force have been threatened by limited opportunities for training as well as threats and violence against the police. While Germany provided significant training assistance to help build the infrastructure within the organization during the early years of the post-Taliban era, its efforts were restricted geographically. While an increase in resources from the international community (including significant contributions by the United States) meant that training for officers was expanded, the focus was on increasing the number of officers who received basic training rather than on reviewing the quality of the training. As a result, many of these newly trained officers still had a limited skill set,
- 764. which left them ill-equipped to do their jobs in an effective manner. This was further complicated by the fact that many of the individuals who were recruited to serve in these positions were illiterate, which limited the type of work that they could engage in. For many of these individuals, their training focused on applied skills such as learning how to search for weapons and explosives at checkpoints.d In an effort to support the establishment of a security force, the Afghan police system began to take on a military influence and focused on rebuilding regions that had been controlled by insurgents. This shift in training, coupled with an increase in compensation, helped to reduce the threats of corruption. Community-based policing was also introduced as a way to build trust.e However, there are still many reforms to be considered. Features
- 765. such as citizen oversight bodies, a discussion of police powers, and the creation of internal policies and procedures will be necessary to establish the police as a legitimate s ecurity force within the community. There will also need 528 to be an increased focus on community building while de- emphasizing the military roots of the police force.f Finally, scholars have recommended that the region focus on developing methods to research and analyze both the context of crime in the region and the response by the police to these events.g 529 Critical Thinking Questions 1. How has the changing political landscape in Afghanistan
- 766. impacted the development of a legitimate police force? 2. How do on-the-job challenges threaten the status of police in the community? 3. What lessons from American policing could be useful to the reform of Afghan police organizations? 530 Research on Racial Profiling Gallup has regularly conducted research on racial profiling by surveying the public about their opinions on the issue. In 2013, the organization found that 24% of young Black men surveyed stated that they had been treated poorly by the police during the past month. Meanwhile, women and those aged 55 and older were more
- 767. likely to believe they had received fair treatment. Overall, 17% of Black adults believed they had experienced unfair treatment by the police. These rates have continued to decrease since 2004. Figure 8.1 presents these data over the past 16 years.30 Figure 8.1 Gallup Poll Data on Racial Profiling Source: Frank Newport, “In U.S., 24% of Young Black Men Say Police Dealings Unfair,” Gallup, July 16, 2013, http://www.gallup.com/poll/163523/one- four-young-black-men- say-police-dealings-unfair.aspx? utm_source=racial%20profiling&utm_medium=search&utm_ca mpaign=tiles. Copyright © 2013 Gallup, Inc. All rights reserved. The content is used with permission; however, Gallup retains all rights of republication. The line graph is titled, Gallup Poll Data on Racial Profiling. Percentage of Blacks Who Said Yes is plotted on the vertical axis. Year is plotted on the horizontal axis. The
- 768. trend shows a gradual increase in the percentage of racial profiling from 1997 to 2004, when it is at the maximum, followed by a steep decline. Values of a few data points are shown in the list below. 1997: 15% 531 http://www.gallup.com/poll/163523/one-four-young-black-men- say-police-dealings- unfair.aspx?utm_source=racial%20profiling&utm_medium=s ear ch&utm_campaign=tiles. 1998: 16% 1999: 20% 2001: 21% 2002: 22%
- 769. 2004: 25% 2007: 21% 2013: 17% Much of the research on racial profiling is focused on traffic stops and whether minorities are disproportionately stopped by the police. The phrase dr iving while Black or Brown has become synonymous with the practice of racial profiling and traffic stops. The Bureau of Justice Statistics indicated that in 2008, White, Black, and Hispanic/Latino drivers were stopped at similar rates. While there were no differences by race in terms of who was stopped, we do see demographic differences in the reasons why people were stopped as well as in the subsequent actions by the police. While 86.3% of Whites who were stopped by the police felt that it was for a legitimate reason, only 73.8% of African Americans believed their stop was valid. Figure 8.2 illustrates the actions by police made during traffic stops by race and ethnicity. Here, we can see that Whites are less likely to be ticketed by the police
- 770. and African Americans are more likely to be arrested when stopped by the police for a traffic violation.31 Research has indicated that Black drivers are more likely to be searched than White drivers once a driver gives consent32 or when officers have probable cause to conduct a search.33 Scholars have also noted that African Americans are disproportionately stopped when driving through communities that are composed primarily of Caucasian residents, highlighting that police are more likely to stop minority individuals if they are perceived to be “out of place.”34 532 Figure 8.2 Enforcement Actions by Police During Traffic Stops, by Race/Ethnicity Source: Christine Eith and Matthew R. Durose, Contacts
- 771. Between Police and the Public, 2008, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, October 2011, http://www.bjs.gov/content/pub/pdf/cpp08.pdf. The bar chart is titled, Enforcement Actions by Police During Traffic Stops, by Race/Ethnicity. The type of enforcement action is plotted on the vertical axis, while percentage is plotted on the horizontal axis on a scale of 0 to 70%, in increments of 10%. For each enforcement action, the percentages are listed in the following order: (1) Hispanic/Latino, (2) Black, (3) White. No enforcement action: 15.0, 16.2, 15.6. Given a verbal warning: 4.5, 6.0, 11.2. Issued a written warning: 15.0, 14.8, 17.7. Ticketed: 62.9, 58.3, 53.1.
- 772. Arrested: 2.6, 4.7, 2.4. 533 http://www.bjs.gov/content/pub/pdf/cpp08.pdf Baltimore police form a line near the area where several riots were held following the arrest of Freddie Gray, who later died in police custody. Charges were filed against three officers, and three case went to trial; however, no one was convicted. Allison Shelley/Stringer/Getty Images News/Getty Images 534 Strategies to Reduce Racial Profiling How can agencies reduce racial profiling? While it is important for agencies to develop policies that prohibit such behaviors, it is perhaps more important to develop guided
- 773. procedures that mandate how officers should carry out traffic stops to help prevent the practice in the first place. While many agencies use dashboard cameras to document traffic stops, this is another area where body camera data could not only reduce the opportunities for officer misconduct but also protect officers and departments from fabricated claims of discrimination. Finally, it is important that states collect data on police stops and that scholars engage in independent analyses to assess the extent of racial profiling as well as how policies designed to prohibit the practice are being implemented on the streets.35 535 Use of Force Police often use force as part of their job. They may need to exert force to apprehend a suspect who is resisting arrest. The use of force is a part of a
- 774. police officer’s duties. Even cases of deadly force, such as returning fire against someone who is shooting at the police while trying to flee the scene of a bank robbery, would be considered a reasonable expectation of an officer’s duty. In the case Tennessee v. Garner (1985), the U.S. Supreme Court held that deadly force may be used to prevent the escape of a known offender if the officer’s life or the lives of others around him or her are at imminent risk.36 However, it is the issue of excessive use of force that is highly criticized. Excessive use of force is defined as “the application of amount and/or frequency of force greater than required to compel compliance from a willing or unwilling subject.”37 Despite what the public believes, the use of excessive force is incredibly rare (see Figure 8.3). Alas, the portrayal of these cases can dominate the media when they do occur. Given the public’s fascination with crime, it is not surprising that these cases can perpetuate an unrealistic view of the realities of
- 775. policing.38 However, in some instances, police do engage in acts of excessive force. These incidents can lead to civil lawsuits against the officers and their departments. For example, there have been dozens of lawsuits over the past decade against the Cleveland Police Department (CPD). The claims of these lawsuits center on a single theme—that the limited availability of appropriate and ongoing training for officers has led to the use of excessive force or, in some cases, unnecessary deadly force.39 In a review of the CPD’s training protocols, the U.S. Department of Justice noted that CPD police recruits receive only four hours of classroom experience on the use of force during the academy. The lack of training on how to de-escalate incidents has resulted in the use of firearms and Tasers by the officers on a regular basis.40 In other cases across all police departments, the use of deadly force results in criminal charges against the police officer. Excessive use of force: Defined as the application of amount
- 776. and/or frequency of force greater than required to compel compliance from a willing or unwilling subject. 536 Figure 8.3 Percentage of Police Interactions That Resulted in Threat or Use of Force Captured on video, Salt Lake City Officer Jeff Payne used force against Alex Wubbels, a nurse at the University of Utah hospital, for her refusal to allow Payne to draw blood from an unconscious patient without a warrant. Following review by the department, the officer was 537 fired. Do you agree with the outcome in this case? Why or why not?
- 777. © Salt Lake City Police Department/Courtesy of Karra Porter via AP, File 538 Types of Force There are five different types of force that can be used by officers: Physical force: Involves the use of physical restraint techniques such as wrist locks, bodily force, and choke holds. Chemical force: Chemical force involves the use of restraining substances such as pepper spray or mace. Electronic force: Electronic force involves the use of electrical current to temporarily incapacitate an offender, such as with a Taser. Impact force: Impact force involves the use of batons, flashlights, and other implements to deliver force against an individual.
- 778. Firearm force: involves the pointing of or firing of a handgun.41 Physical force: Involves the use of physical restraint techniques such as wrist locks, bodily force, and choke holds. Chemical force: Force that involves the use of restraining substances such as pepper spray or mace. Electronic force: Force that involves the use of electrical current to temporarily incapacitate an offender, such as with a Taser. Impact force: Force that involves the use of batons, flashlights, and other implements to deliver force against an individual. Firearm force: Force that involves the pointing of or firing of a handgun. According to the Bureau of Justice Statistics, 44 million persons aged 16 or older (or approximately 19% of the population) had face-to-face contact
- 779. with the police between 2002 and 2011. More than 700,000 of these contacts involved either threats of force or the use of force. In a majority of these cases, individuals overwhelmingly believed that the use of force was excessive in both instances of verbal (71%) and physical (75%) force. Males are more likely to be involved in use-of-force incidents compared with women, as are African Americans compared with Whites and Hispanics. Eighty-four percent of those involved in these incidents believed that the police acted improperly, and 14% filed a complaint against the officer.42 While instances involving use of force have been a significant issue in some communities and can greatly impact how a community views the police,43 the reality is that the actual number 539
- 780. of these cases is rare, particularly given the number of citizen contacts that the police engage in throughout the country. Currently, a growing body of research on police use of force is assessing how and why police make decisions about use of force. Three things have been found to influence this decision-making process: (1) the nature of the interaction, (2) the culture and administrative policies within a department about use of force, and (3) the community or environmental context. For example, when agencies have strong policies about how and when force should be used, officers rarely deviate from these policies.44 However, we tend to see increases in use of force when the suspect is hostile or disrespectful45 or when the neighborhood is one with high levels of violence.46 Changes in technology have also impacted the use of force. At the end of this chapter, you will learn about the pros and cons of police body-worn cameras
- 781. and how the development of this technology has impacted events involving use of force. We have also seen how the development of conducted energy devices such as the Taser has impacted police use of force. The Taser was developed in 1974 by Jack Cover, a scientist with the National Aeronautics and Space Administration. The early design of the Taser incorporated the use of gunpowder to deploy two barbs that could attach to an individual and administer a jolt of electricity to temporarily incapacitate that person. Throughout the late 1970s and 1980s, the Taser was marketed to the police and the military as a less-than-lethal technology. Later revisions replaced the gunpowder with compressed air. This change not only represented an improvement on the weapon for police but also allowed for it to be sold to the general public without a gun license.47 Research on Taser use notes that officers will often choose to draw their Taser instead of their firearm. In 26.7% of cases, officers used their Taser even
- 782. though they could have been legally justified to use deadly force against an individual. The Taser is also used as a replacement for other forms of impact force (60.6%), such as a baton.48 Although the Taser was developed as a less-than-lethal technology, cases have occurred in which individuals died as a result of its use. Research notes that most fatal cases of Taser use involved a suspect who was under the influence of drugs, who was mentally ill, or who exhibited continued resistance against the police.49 Research has also shown that the cognitive functioning of individuals can be impacted in the initial moments following a Taser incident, which calls into question whether an individual can willingly waive his or her constitutional right against self- incrimination while thus mentally altered.50 Such findings have led many to question whether 540
- 783. policies on the use of Tasers should be revisited. 541 Police Legitimacy Establishing legitimacy within a police department requires that the community view the department as one with strong ethics that is committed to obeying and upholding the law. When the police lose their legitimacy, it is difficult to do their job in an effective way. After all, how do the police maintain order if the community does not support them in these efforts?51 At its core, the legitimacy of the police is dependent on how officers deploy their power and authority. This is referred to as procedural justice. Officers who are fair and transparent in their
- 784. decision making are viewed as being just, whereas officers who make decisions based on factors such as race, gender, or age can be viewed in a negative light, which, in turn, can threaten the legitimacy of the police.52 Research indicates that race can indirectly impact the levels of community satisfaction with the police. For example, neighborhoods with higher crime rates (which also tend to be disproportionately minority communities) are more likely to be dissatisfied with the police. Data also indicate that communities of color tend to have a high number of negative contacts with the police; experiences such as these can threaten the legitimacy of the police in such areas.53 The shooting of Michael Brown in Ferguson, Missouri, is just one example of how police legitimacy can be threatened. A woman pauses at a makeshift memorial where Michael Brown was fatally shot on August 542
- 785. 9, 2014, by Darren Wilson, a Ferguson, Missouri, police officer. How do communities rebuild police–citizen relationships following events such as this? © AP Photo/Jeff Roberson On August 9, 2014, Michael Brown, an 18-year-old African American male, was shot and killed by Darren Wilson, a White officer of the Ferguson Police Department. The contested circumstances of the shooting, coupled with historical tensions between the police and the Black community, resulted in unrest and a series of protests not only within the region but across the United States. In the days following the shooting, tactical police officers were called to the region to manage the disturbances. Their efforts to disperse the crowds included the use of tear gas against the protestors. The protests returned in November after a St. Louis grand jury
- 786. failed to indict Wilson on any charges related to the shooting of Brown.54 Although a subsequent federal investigation cleared Wilson of any civil rights violations as a resul t of the shooting,55 an additional investigation by the Department of Justice indicated that the police department in Ferguson routinely violated the constitutional rights of citizens through disparate treatment of Black members of the community. The report found that Black drivers were searched more than twice as often as White drivers even though police were more likely to find contraband on White drivers when searches were conducted. Black residents were also more likely to be the subjects of municipal law violations; they represented 95% of jaywalking cases, 92% of resisting-arrest charges, and 94% of failure-to-comply charges. In addition, the courts were more likely to dismiss charges against White defendants. While some have suggested that the police department may be too broken and may need to be dismantled completely, only time
- 787. will tell how the relationship between the police and the community will be repaired. 543 Police Occupational Stress Police officers work in high-intensity environments where they must deal with stressful situations. What makes police occupational stress so different compared with job-related stress in other fields is that the typical day of a police officer can actually be rather mundane. Stressful situations tend to occur as a result of high-pressure incidents, which, contrary to the portrait painted by television and film, are not a regular component of the typical workday. However, the potential for stress can build over time, to the point that the anticipation of danger in and of itself can produce stress. In addition to the sources of stress that are unique to policing (e.g., violence), officers also experience stress that occurs as the result of working
- 788. within a bureaucratic environment (shift work, limited opportunities for promotion, etc.).56 Stress can also come from unexpected sources. For example, officers indicate that they experience stress due to the time and energy they spend on issues of prejudice and bias,57 both within the community and also with other officers in their department.58 Such stress can be particularly enhanced if an officer is the only or one of a few minority members in the department.59 Occupational stress can have several implications for the lives of police officers, including physical and mental health problems, poor job performance, burnout, and the use of force.60 For example, work stress is related to feelings of depression and experiences with intimate
- 789. partner abuse.61 Officers may also suffer from posttraumatic stress due to the types of issues that they confront on the job. However, job stress can be mediated by job satisfaction. Research demonstrates that higher job satisfaction is linked to positive relationships with peers and supervisors, as is a reasonable promotion system.62 In addition, agencies should promote training, mentorship, and counseling opportunities for officers to develop positive coping strategies.63 544 Conclusion As the first responders to crime, the police are subjected to several legal and policy directives that impact how they do their job on the streets. Throughout history, however, the U.S.
- 790. Supreme Court has been mixed on when, where, and how offenders should be identified and apprehended by the criminal justice system. Given the vast array of power that the police carry, there will always be the risk that an officer will do the wrong thing and fall into corrupt and illegal activities. While such practices are regularly portrayed on the nightly news and in popular culture, these cases represent a small number of officers within the much larger population of those who work in the field on a daily basis. Alas, these few bad apples can indeed spoil the bunch and challenge the legitimacy of the police within the community. 545 Current Controversy 8.1 Should Police Agencies Require Officers to Wear Body Cameras? —William H. Sousa— Where do you stand? Cast Your Vote!
- 791. 546 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-8/current-controversy-videos Introduction The body-worn camera (BWC) is a relatively recent technological innovation that is now in use by American police agencies. Although there are different models of BWCs, most are small video- or audio-recording devices that are placed somewhere on an officer’s uniform, usually in the chest area or on the lapel or collar. (Some models can also be mounted on a headband or on sunglasses.) BWCs are designed to record officer activities and encounters with citizens. Policies vary from department to department, but BWCs are generally activated when officers respond to emergencies or interact with members of the public. Videos that are recorded by a BWC are typically stored on the camera itself
- 792. until the data are transferred to a larger storage device (such as a computer server) where they can be accessed at a later time. Many departments are deploying body-worn cameras as a way to document police encounters with citizens. How might this change interactions between officers and the communities they serve? David McNew/Stringer/Getty Images News/Getty Images BWCs are generally considered to be a technology that can help improve police practice. Many politicians, members of the public, and police themselves therefore support the use of BWCs. While BWCs do offer a number of potential advantages for policing, these benefits should be considered in light of several concerns that arise when video recording is in use. 547
- 793. 548 PRO: Police Agencies Should Require Officers to Wear Body Cameras There are several benefits of requiring police to use body-worn cameras. These include the greater transparency of police activities with the general public, protections from police misconduct, protection of officer actions and decisions, and other improvements to police practices. Greater transparency. One argument for BWCs is that they demonstrate a police agency’s willingness to be open and transparent in terms of the activities of its officers. Since BWCs record officer behaviors, police can be held accountable for their actions. Greater transparency and openness on the part of police agencies can help improve
- 794. police–community relations, build trust, and enhance legitimacy in the eyes of the public. Protection of citizens. Many believe that BWCs can help protect citizens from acts of police misconduct. Officers, of course, are aware that BWCs record their activities. Since their superiors, the courts, the media, or the public could potentially review those recordings, officers will be more likely to act with integrity and professionalism when interacting with citizens. BWCs, therefore, can potentially reduce police misconduct, including unnecessary use of force, discourtesy, and abuse of authority. Protection of officers. BWCs can also potentially help protect officers. Because BWCs record from an officer’s point of view, the recordings provide a different perspective than what is often observed by bystanders. Some believe that video from an officer’s perspective will help demonstrate that police
- 795. actions are justified. Recordings can therefore be used to help exonerate officers who are falsely accused of improper actions. In addition, many believe that citizens who are aware of BWCs on officers may be less antagonistic or confrontational when interacting with police. Other improvements to police practice. There are other advantages to BWCs as well. For instruction and training purposes, video from BWCs can demonstrate examples of proper techniques that were performed in the field. BWCs can also make investigation practices more efficient. The audio and video capabilities of BWCs can record visual evidence, victim statements, and witness accounts at the scene of incidents, making it easier for police to gather and review information. 549
- 796. CON: Police Agencies Should Not Require Officers to Wear Body Cameras Just as there are benefits to the use of body-worn cameras, there are also concerns. These include the limits of technology, issues of privacy, a threat that police organizations will return to a more bureaucratic and legalistic style of policing, and a reduction in the levels of proactivity among police officers. Limits of technology. BWCs can provide more information about police–citizen interactions, but the recordings may not offer all of the answers concerning controversial police actions. First, although the video and audio capabilities of BWCs are generally good, numerous conditions can impact the quality of the recordings. Distortions can occur, for example, if the officer is running, scuffling with a suspect, or otherwise engaged in physical activity. Second, even if the recordings are clear, videos can still be open to interpretation.
- 797. Several people, for instance, could view the same video of a contentious interaction between an officer and a citizen and reach very different conclusions regarding the appropriateness of the officer’s actions.64 In other words, just because there may be video of a controversial encounter between an officer and a citizen, this does not mean that the video will necessarily resolve the controversy to everyone’s satisfaction. Privacy issues. Although BWCs can capture potentially controversial interactions between officers and the community, many other types of police contacts with citizens will be recorded as well. Most events that gain public notoriety (such as police use of deadly force) are very rare given the number of contacts that police have with citizens. Other types of police contacts are much more common, such as assisting people in distress, helping with medical emergencies, dealing
- 798. with traffic accidents, managing family or neighborhood disputes, and aiding juveniles. This means that BWCs will record many events where people are very exposed and vulnerable—a concern for those who worry about government intrusion into the private lives of citizens. Policing could become more legalistic and bureaucratic. One of the possible consequences of BWCs is that officers may shift to a more legalistic style of policing. For example, officers with BWCs may be more inclined to issue citations rather than warnings in situations that involve a high degree of discretion (such as minor traffic violations). This is because officers may feel more comfortable taking formal action—or feel pressure to take formal action—knowing that evidence of the violation is on video record. Less proactivity. Another possible consequence of BWCs is that officers may become less proactive in terms of
- 799. managing community problems. A good deal of research has demonstrated that when officers are reactive (i.e., mostly responding to 911 calls), they are not very effective at preventing larger neighborhood problems.65 However, when police are proactive (e.g., communicating with citizens, working with juveniles, partnering with social services, managing quality-of-life offenses in neighborhoods, etc.), they can be much more effective at preventing crime and disorder.66 Some believe that officers with BWCs will be less proactive because self-initiated police activities are often discretionary. Aware that their actions are being recorded, police may be reluctant to engage in self-initiated activities so as to avoid scrutiny over discretionary decisions. In addition, some believe that citizens will also be less proactive in terms of communicating with police. Knowing that the interaction could be recorded, citizens may be uncomfortable when approaching an officer or when providing confidential
- 800. information to the police. 550 551 Summary BWCs offer a number of potential advantages for the practice of policing. One should, however, balance these potential advantages with potential concerns. To date, very little case law has been produced that can guide policies regarding the use of BWCs—and recent research is somewhat inconsistent regarding the impact of the technology. While some studies have demonstrated the benefits of BWCs in terms of reducing misconduct complaints and use of force, other studies have not found that BWCs have such an effect.67 In addition, recent survey data suggest that
- 801. while citizens are generally supportive of BWCs on police, they are somewhat skeptical in terms of the technology’s ability to increase trust between police and citizens.68 Until more research sheds light on these issues, questions still remain regarding the true value of BWCs on police. 552 Discussion Questions 1. Should officers who wear BWCs be required to notify citizens that their interaction is being recorded? 2. Video storage is one of the major financial costs associated with BWC systems. With this in mind, should video of police interactions with citizens be stored indefinitely? If not, how long should it be stored? Under what circumstances should video be deleted?
- 802. 3. BWC systems allow officers to activate and deactivate the technology. This is to protect the officer’s privacy (such as during lunch or restroom breaks) and to save on the costs of video storage space. Under what circumstances should officers be required to turn the BWC on, and when should they be allowed to turn it off? 4. Who should have access to videos that are recorded by police BWCs? Many police records are available to the public and can be obtained through Freedom of Information Act (FOIA) requests. Should video records also be available to the public? 553 Current Controversy 8.2 Does Police Discretion Help or Harm Our Criminal Justice System? —Lorenzo M. Boyd—
- 803. Where do you stand? Cast Your Vote! 554 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-8/current-controversy-videos Introduction One of the most debated issues and biggest sources of contention within policing is the seemingly wide use of discretionary practices and decision making. At all levels of justice, some form of discretion is used regularly. Admittedly, there are no two crimes or potential offenders that are exactly alike, but it would appear that there needs to be some sort of uniformity in the ways in which the criminal justice system deals with each situation. Because the police are the gatekeepers for the entire criminal justice system, the use of discretion by police can have sweeping and profound effects in subsequent stages of the criminal justice
- 804. system. One side would argue that the overuse of discretion in dealing with citizens is a major cause of disparities within the system. The other side would assert that discretion is a necessary tool in the criminal justice system because discretion affords the criminal justice professionals a chance to be lenient and consider mitigating circumstances at each level of the system while tailoring appropriate responses for all concerned. Examples of criminal justice discretion can include whether a driver will be stopped and ticketed, whether a suspect will be arrested or simply questioned and released, and the charge that an arresting officer will pass on to the courts. Police discretion weighs heavily in other parts of the system as well. The discretionary actions of the police may help determine whether a prosecutor will charge a suspect and, if so, with which charge; the negotiation of a plea
- 805. arrangement; the amount of time a convicted offender will likely serve in prison; and whether a parole board is willing to accept treatment success as a reason that an inmate will be released early. This nonexhaustive list is just a small sample of the levels of discretion that are afforded the police every day and the wide-reaching implications of that discretion. So the question at hand is whether discretion is a discriminatory tool wielded by the police or a necessary evil employed by criminal justice professionals in order to keep the criminal justice system moving in a more efficient manner. Police discretion is the decision to act or not act based on an individual police officer’s judgment regarding the best course of action to take in any given situation. Discretionary decisions are usually based on the officer’s experience, training, philosophy, and knowledge, as well as situational factors such as type of crime, size and number of suspects,
- 806. and damage done or injury to victims. Other factors may come into play, such as demographic considerations like gender, race, ethnicity, and social status, and situational considerations like knowledge of suspect or victim and personal relationships. When we have a discussion about criminal justice discretion, many times the conversation begins with a focus on the police. Many would argue that the occupational mandate of the police is to maintain order and keep the peace and that enforcing laws is secondary to order maintenance. Others would posit that enforcing laws is paramount in a police officer’s job. Regardless of which view you subscribe to, each version of policing has an incredible amount of discretion associated with it. 555
- 807. PRO: Police Discretion Is Helpful to the Criminal Justice System Police discretion gives the police the ability or option to handle community-level problems informally and help citizens work through disputes and determine informal resolutions that will be best for all parties involved without bogging down the already overburdened criminal justice system. Sometimes, community-level officers are better suited to handle community-level issues without directing all problems formally into the courts system. A lack of police discretion amounts to having a zero-tolerance policy for all infractions. Discretion will allow an officer to give a stern warning and counsel a speeding driver to slow down instead of the officer issuing a ticket, which comes with additional court costs and a financial hit on a driver’s car insurance. Police use of discretion is often associated with the order
- 808. maintenance role of the police. For instance, police discretion is often a technique utilized when mediating disputes instead of making arrests, or referring citizens to social service agencies instead of bringing them into the criminal justice system. The use of discretion can be seen when an officer chooses to commit a person with a mental illness to a health facility rather than arrest that person for disorderly conduct. Police officers are often forced to make discretionary decisions because many criminal laws are written too broadly. Many times, lack of specificity in written laws exists to encompass many different scenarios, but this leaves a lot of room for different interpretations and thus discretionary decision making by the police. 556 CON: Police Discretion Is Harmful to Our Criminal Justice
- 809. System Discretion in policing continues to be a major point of debate with community members and scholars alike. The presence of large-scale occupational discretion can be viewed as a double-edged sword. Discretion also has an ugly side that often rears its head in policing. Discretion is not just a helpful tool for officers in effectively doing their jobs; often, it serves as a crutch that allows officers to violate rules, laws, and civil rights. On one hand, discretion allows officers to use their authority appropriately to mitigate street- level disturbances. On the other hand, it also allows officers to use discriminatory practices against citizens on the basis of extralegal factors such as race, gender, or class.69 Research shows that officers have ample opportunities for misconduct while on patrol, primarily because of the existence of large-scale occupational discretion and the ability of street-level officers to make decisions in the absence
- 810. of any direct supervision.70 Empirical research has provided overwhelming support for the idea that police officers have a great deal of discretion in how they deal with a citizen’s conduct and that both legal (seriousness of the crime, past criminal history, etc.) and extralegal (race, class, gender, etc.) criteria can influence the outcomes of police–citizen encounters.71 Scholars note that the actions of the police are not at all based entirely on laws. Officers, for the most part, use extralegal factors as the basis for decisions in the course of performing their duties. Although, for the most part, they do work within the constraints of the law, they seldom actually invoke the law in performing their police duties.72 Police discretion sometimes manifests itself as racial profiling on the part of the police. The American Civil Liberties Union (ACLU) published a 2014 report that asserted police officers often engage in widespread racially biased stop-
- 811. and-frisk practices, targeting people of color at far greater rates than White people. The report also stated that Black citizens in the city studied were subjected to 63% of these encounters even though they made up just 24% of that city’s population. Moreover, the report showed that controlling for neighborhood-level crime rate did not explain this racial disparity. The report further showed that as the Black population in the city increased as a percentage of the total population, so did the number of police encounters. The ACLU reported that even after controlling for crime, police officers were more likely to initiate encounters in Black neighborhoods and to initiate encounters with Black people. When questioned about this disparity, police officials gave no justification for 75% of these encounters, simply stating that they were investigatory in nature. More than 200,000 of these stop-and-frisk investigative encounters
- 812. over a four-year period yielded no arrests, and only 2.5% led to seizure of contraband of any kind. 557 Summary From this discussion, you can see that discretion in the realm of policing can be both useful and troublesome. Often, that discretion appears to occur in the form of biased policing, and without proper oversight, it can wreak havoc on disenfranchised communities. Where there is discretion, there is the possibility of discriminatory practices and biased policing. But without some level of personal discretion in policing, we run the risk of moving toward a situation in which zero-tolerance policing is the outcome. We have to decide whether we want to have a firmer hold on and oversight of police officers’ daily decision making or be willing
- 813. to allow levels of professional discretion in policing and all that comes with that. The hard part will be balancing levels of potential discrimination with the need for occupational efficacy in the criminal justice system. 558 Discussion Questions 1. What are the benefits and consequences of the use of police discretion? 2. What suggestions would you offer to prevent abuse and misconduct that can occur under the umbrella of police discretion? 559 Key Terms
- 814. Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Bribery 176 Carroll doctrine 171 Chemical force 180 Consent search 171 Corruption 176 Electronic force 180 Emergency exception 171 Ethical dilemma 175 Excessive use of force 179 Exclusionary rule 170 Firearm force 180 Fruit of the poisoned tree 170 Good faith exception 170 Grass-eaters 176 Impact force 180 Issues of duty 176 Meat-eaters 176 Miranda warning 173 Mooching 176 Perjury 176
- 815. Physical force 180 Probable cause 169 Racial profiling 177 Rotten apple theory 176 Search 169 Seize 169 Shakedowns 176 Warrant 169 560 http://edge.sagepub.com/mallicoatccj2e 561 Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. How does the Fourth Amendment protect individuals from
- 816. unreasonable searches and seizures by the police? When are there exceptions to this rule? 2. How do issues such as racial profiling and use of force challenge the legitimacy of the police? 3. How can lawsuits against police departments lead to changes in policies and practices? 4. What strategies should departments use to rebuild their communities following high- profile events? 5. What types of ethical dilemmas do police officers face? 6. What types of force can police officers use? 7. Why is legitimacy important when it comes to policing? 8. What are some sources of occupational stress for police officers? 562 http://edge.sagepub.com/mallicoatccj2e Learning Activities
- 817. 1. Select a U.S. Supreme Court case from the most recent term that deals with a Fourth Amendment issue. What was the decision by the Court? How does this decision impact the on-the-job experience for police officers? 2. Identify a case in which officer misconduct led to policy changes within a police department. What is the new policy and how is it designed to protect against similar events in the future? 563 Suggested Websites Center for Problem-Oriented Policing: http://www.popcenter.org Police Executive Research Forum: http://www.policeforum.org Police Foundation: http://www.policefounda tion.org 564
- 818. http://www.popcenter.org http://www.policeforum.org http://www.policefoundation.org Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 8.1 Angela Benford: Crime Scene Investigator Criminal Justice in Practice 8.1 Traffic Stop: Search and
- 819. Seizure SAGE News Clip 8.1 Supreme Court: Warrant Needed to Track Cell Data 565 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e © iStock.com/dkfielding 566 567 Part III Courts Chapter 9 Courts and Crime Current Controversy 9.1: Should Physical Evidence Be Required
- 820. in Serious Criminal Cases? Current Controversy 9.2: Should We Limit the Use of Plea Bargains? Chapter 10 Punishment and Sentencing Current Controversy 10.1: Do Habitual Sentencing Laws Deter Offenders? Current Controversy 10.2: Should We Abolish the Death Penalty? 568 9 Courts and Crime © iStock.com/RichLegg 569 Learning Objectives Discuss the differences between the criminal courts and the
- 821. civil courts Identify the different types of jurisdiction that impact how courts hear cases Describe the typical structure of the state and federal court systems Discuss the various actors in the court system and their duties Identify the different forms of bail and discuss issues with this process Explain how a case moves through the trial process During the 2017 term, the U.S Supreme Court heard the case of Class v. United States, which asked whether a defendant has the right to challenge the constitutionality of his or her crimes if he or she pleads guilty. Rodney Class was arrested in the District of Columbia for possession of firearms on federal grounds. His car was parked in a lot that was located on capitol grounds, but he lacked the required
- 822. permit to do so. When contacted by police, who had noticed a knife and gun holster in plain view, Class informed them that he had legally permitted firearms locked in his car. He was arrested for violating federal law, which prohibits individuals from having access to firearms while on capitol grounds. Although he pled guilty in the case, Class challenged the law on the grounds that it violated the Second Amendment. The D.C. Circuit Court held that his guilty plea and failure to reserve the right to appeal waived his right to challenge the law. In a 6–3 decision, the Supreme Court held that while a defendant does waive certain rights through this process, a guilty plea does not specifically limit an individual’s rights to challenge the constitutionality of a law.1 In this chapter, you will learn about the structure of the American court system and its relationship to the criminal justice system. The chapter begins
- 823. with a discussion about how courts are organized. The chapter then looks at the different participants in the courtroom and their roles. This is followed by a discussion of the stages of a criminal court case. The chapter concludes with two Current Controversy debates related to the criminal court system. The first, by Julius (Jay) Wachtel, asks whether physical evidence should be required in serious criminal cases. The second, by G. Max Dery, asks whether we should limit the use of plea bargains in criminal cases. 570 Criminal Versus Civil Courts In Chapter 2, you learned about the differences between criminal law and civil law. As a result of these primary differences in law, we also have differences in the courts—criminal courts hear issues of criminal law while civil courts hear matters of civil law. You also learned
- 824. how the decision making in these cases varies. Criminal law requires that a criminal court satisfy a burden of proof of beyond a reasonable doubt. Meanwhile, the burden of proof in civil courts is a lower standard: preponderance of the evidence. Generally speaking, cases are heard either in criminal court or in civil court. However, there are some occasions when a case may involve violations of both criminal and civil law. The murders of Nicole Brown Simpson and Ronald Goldman are perhaps one of the most well - known examples of this. Nicole Brown Simpson was the ex-wife of football star O. J. Simpson, and Ronald Goldman was her friend. The two were found murdered on June 12, 1994. Mr. Simpson was arrested and tried for their murders. After a long trial, he was found not guilty of criminal murder by a Los Angeles jury. The verdict indicated that the jury was not able to find Mr. Simpson guilty beyond a reasonable doubt. The families of Ms. Brown and Mr. Goldman subsequently filed a wrongful death case against Simpson. They won their case with the lower burden of proof
- 825. of preponderance of the evidence. The judgment in the case totaled $33.5 million.2 A more recent example of a case involving both the criminal and civil court can be found in the legal cases against Jameis Winston. Winston was a student at Florida State University (FSU) in December 2012 when Erica Kinsman accused him of rape. The case made national headlines when Winston won the 2013 Heisman Trophy and FSU won the national college football championship. Limited investigation of the criminal complaint was conducted by the Tallahassee police; for example, they failed to interview any witnesses or even the accused until several weeks after the case was reported. The lead detective took over two months to write his report. By the time the case was handed to the prosecutor, key pieces of evidence had gone missing. As a result, no criminal charges were filed. Two cases were filed in civil court, however. First, Kinsman filed a civil case in which she asked for $15,000 in damages against Winston on the grounds of sexual battery, false imprisonment, and emotional
- 826. distress.3 The second case involved a Title IX lawsuit against Florida State over how it mishandled her complaint. Title IX provides several educational rights to students, including a requirement that colleges and universities investigate allegations of rape and sexual assault. In January 2016, FSU settled the lawsuit for $950,000.4 571 While O. J. Simpson was found not guilty of the murders of his ex-wife and her friend, he was found to be liable in their deaths in civil court. How was he able to avoid a criminal conviction but still be held responsible in a civil suit? David Hume Kennerly/Archive Photos/Getty Images 572
- 827. Jurisdiction and the Courts System 573 Geographical Jurisdiction Following an arrest, a criminal case moves to the courts system. The jurisdiction of a court depends on several factors (Table 9.1). First, does the court have geographical jurisdiction? In order to answer this question, we need to know what type of law was broken. Say you are arrested by a local police officer for trespassing on private property. This crime is likely a local offense, and therefore this case would be heard by a local municipal court. The most common type of criminal act is a violation of state law. As a result, these cases are brought to the court by the state, so a criminal court case would be heard in state court. These cases are presented as the state of New York (or whatever state that the crime occurred in) versus the name of the
- 828. defendant. Finally, there are several offenses that are considered a violation of federal law. As a result, these cases would be heard in federal court. While federal law applies to all 50 states, state law applies only to the jurisdiction of that particular state. In some cases, federal law and state law contradict each other. The recent legalization of marijuana by Washington and Colorado is an example of this situation. Although users would not be subject to any punishments for possessing marijuana in these two states, they could face punishment under federal law. In addition, laws of one state are limited only to that state. So it would be illegal to possess marijuana under Texas state law, even if it was purchased legally in another state. Geographical jurisdiction: Jurisdiction determined by the physical location of a crime. Table 9.1 574
- 829. Concurrent Jurisdiction A recent example of a federal case is the prosecution of Dzhokhar Tsarnaev for the bombings during the 2013 Boston Marathon. Why was this case heard in federal court and not the state court of Massachusetts? The crimes for which he was charged are illegal under both state and federal law. When acts are illegal under both federal law and state law, this is referred to as concurrent jurisdiction. As a result, it is up to the federal government to decide whether it will prosecute a case or whether it will allow the state to do so. While Tsarnaev could certainly have been charged for the events that ultimately killed three people and injured 260 others under Massachusetts state law, several of his acts also fell under federal law violations, such as conspiracy to use a weapon of mass destruction resulting in death. In 2015, Tsarnaev was found guilty on all 30 crimes that he was charged with and was sentenced to death. While such punishment is allowed under federal law, it is not an option under Massachusetts
- 830. state law, which some argue influenced the decision to charge him in federal court.5 Concurrent jurisdiction: Allows a case to be heard in either state or federal court (or adult and juvenile courts). In some cases, both the federal and state governments will pursue a criminal case against a defendant. For example, Terry Nichols was prosecuted by the federal government for his involvement in the Oklahoma City Bombing of the Alfred Murrah Federal Building with Timothy McVeigh in 1995. In 1997, the federal government successfully convicted Mr. Nichols for conspiring to build a weapon of mass destruction as well as eight additional counts of involuntary manslaughter of federal officers; the jury in this case sentenced Nichols to life in prison without the possibility of parole. The state of Oklahoma then subsequently tried Nichols for 161 counts of first-degree murder in an effort to sentence him to death. The jury in that case was deadlocked on whether to sentence Nichols to death. As a result, the
- 831. judge handed down 161 consecutive sentences of life in prison without the possibility of parole.6 575 Subject Matter Jurisdiction The jurisdiction of a court is also based on the type of case that it is allowed to hear. This is known as subject matter jurisdiction. At the lowest level, courts of limited jurisdiction handle misdemeanor cases. Limited jurisdiction courts may also handle specific types of cases; examples of limited jurisdiction courts include drug courts, domestic violence courts, and mental health courts. In contrast, courts of general jurisdiction do not have any restrictions on the types of cases that they can hear. In the criminal courts, general jurisdiction courts hear the most serious felony cases. A criminal case begins in a court of original jurisdiction or
- 832. a trial court, where a case is heard for the first time. Trial courts are concerned with issues of fact. In these courts, evidence is presented and decisions of guilt are made. Subject matter jurisdiction: Courts that hear specific types of cases based on their topic. Limited jurisdiction: Courts that handle misdemeanor cases or specific types of cases. General jurisdiction: Courts that do not have any restrictions on the types of cases that they hear but generally hear the most serious felony cases. Original jurisdiction: Courts that hear cases for the first time. Also called trial courts. Trial court: A court of original jurisdiction that hears issues of fact and makes decisions based on the law. 576
- 833. Appellate Jurisdiction Meanwhile, courts of appellate jurisdiction are concerned with issues of law and whether there were errors made by the trial court. In criminal court, only the accused can file the first appeal. If a prosecutor loses at trial, there is no option to appeal the decision. Unlike a trial court, which may use a jury to make a decision, appellate courts use a judge or a panel of judges to render a decision. The decision at this level can either reverse or uphold the verdict of the lower court. Appellate jurisdiction: Level of the courts that is concerned with issues of law and whether an error was made by the trial court. 577 Structure of the Courts
- 834. As you have just learned, we have laws at both the federal level and the state level. In order to prosecute these crimes, the federal court system handles cases that violate federal law. While there are offices and courtrooms located throughout the United States, they all operate under the same system. At the same time, each state has its own separate court system. Together, these make up our dual court system. Figure 9.1 demonstrates how these two systems work in a separate yet similar fashion. Dual court system: Explains how the state and federal court systems work in separate yet similar fashions. Figure 9.1 The Dual Court System Source: U.S. Courts, “Court Role and Structure,” n.d., http://www.uscourts.gov/about- federal-courts/court-role-and-structure. The flowcharts are shown as lists below. Federal courts
- 835. 1. U.S. Supreme Court 2. U.S. Court of Appeals (Circuit Courts) – Appellate Courts 578 http://www.uscourts.gov/about-federal-courts/court-role-and- structure 3. Trial Courts 1. U.S. District Courts 2. U.S. Courts of Federal Claims 4. U.S. District Courts 5. U.S. Magistrate Courts – Civil Courts State courts 1. State Supreme Court
- 836. 2. Appellate Courts 1. Court of Civil Appeals 2. Court of Criminal Appeals 3. Court of Civil Appeals 1. Small Claims Court – Civil Courts 4. Court of Criminal Appeals 5. Trial courts 1. Municipal Court 2. Probate Court 3. District Court In the flowchart, Supreme court, Appellate Courts, Trial Courts, and Civil Courts are shown as separate rows behind both the federal and state structures to illustrate the similarity in structure between the two court systems.
- 837. 579 The Federal Court System The federal court system is responsible for managing criminal, civil, and administrative cases under federal law. Its jurisdiction covers all 50 states and also includes U.S. territories and the District of Columbia. Figure 9.1 shows the structure of the federal court system. Within the federal system, most judges are appointed by the president, confirmed by the Senate, and serve a life term. Magistrate Courts The first level of courts in the federal system is the U.S. magistrate courts. These courts have limited jurisdiction and generally hear misdemeanor cases. They can also be involved in pretrial matters for more serious cases. Their duties in criminal matters include authorizing
- 838. search and arrest warrants and conducting detention hearings, initial appearances, and arraignments. However, the bulk of their work involves civil cases. In 2015, magistrate judges were involved in more than 1 million matters, including 192,593 felony pretrial matters, 94,906 Class A misdemeanor and petty crimes cases, and 25,959 cases of prisoner litigation.7 Magistrate judges are the only judges in the federal system who are appointed in a manner that is different from other federal judicial appointments. In addition, these positions have term limits. Magistrate judges are selected by the district court judiciary and serve a term of eight years. In 2015, there were 573 magistrate judges.8 U.S. magistrate courts: First level of courts in the federal courts system. Courts of limited jurisdiction that generally hear misdemeanor cases. District Courts
- 839. U.S. district courts are courts of general jurisdiction. There are 94 district courts spread throughout the 50 states, the District of Columbia, and the U.S. territories. These courts hear cases, review evidence, and apply legal reasoning in deciding a case. In 2017, there were 75,861 criminal filings in U.S. district courts, which were heard by 677 judges. Federal judges are nominated by the president and confirmed by the Senate.9 The most common offense heard by these courts involves drugs (32%). Immigration cases make up 27% of the caseload for district courts, a majority of which involve cases of illegal border entry. Since 2008, the number of defendant filings has decreased by 15.6%.10 580 U.S. district courts: Courts of general jurisdiction in the federal courts system.
- 840. Appeals Courts The U.S. courts of appeals are intermediate courts that hear appeals from the U.S. district courts or from the federal administrative courts. There are 13 courts of appeals, called circuit courts. Figure 9.2 presents a map of the U.S. federal judicial circuits. As appellate courts, the circuit courts hear cases to determine whether there was an error in how the law was applied in a lower court. In 2017, the U.S. courts of appeals heard 58,951 cases, 17.6% of which involved criminal matters. There were also 13,391 habeas corpus petitions by prisoners.11 Cases are typically heard by a three-judge panel, though in rare instances, a case may be heard en banc, meaning that the full bench hears the case. In 2017, judges from the circuit courts issued 4,269 published and signed opinions.12 Like federal judges in the U.S. district courts, judges at the federal appellate level are nominated by the
- 841. president and confirmed by the Senate. U.S. courts of appeals: Intermediate courts of appeals that hear cases of law from the U.S. district courts or from the federal administrative courts. Circuit courts: Another name for the federal courts of appeals. En banc: A hearing of the full bench of a U.S. circuit court. 581 Figure 9.2 United States Federal Judicial Circuit Courts Source: U.S. Courts, “Court Role and Structure,” n.d., http://www.uscourts.gov/about- federal-courts/court-role-and-structure. The 13 federal circuit courts are as follows: 1. Federal circuit
- 842. 2. D.C. Circuit: District of Columbia. 3. First Circuit: Maine, Massachusetts, Rhode Island, New Hampshire, and Puerto Rico. 4. Second Circuit: Vermont; Northern, Eastern, Southern, and Western New York; Connecticut. 5. Third Circuit: Delaware; New Jersey; Eastern, Middle, Western Pennsylvania, and the Virgin Islands. 6. Fourth Circuit: Maryland; Eastern, Middle, and Western districts of North Carolina; South Carolina; Eastern and Western Virginia; Northern and Southern West Virginia. 7. Fifth Circuit: Eastern, Middle, and Western Louisiana; Northern and Southern Mississippi; Eastern, Northern, Southern, and Western Texas. 8. Sixth Circuit: Eastern and Western Kentucky; Eastern and Western Michigan; Northern and Southern
- 843. Ohio; Eastern, Middle, and Western Tennessee. 9. Seventh Circuit: Central, Northern and Southern Illinois; Northern and Southern Indiana; Eastern and Western Wisconsin. 10. Eighth Circuit: Eastern and Western Arkansas; Northern and Southern Iowa; Eastern and Western Missouri; Minnesota; Missouri; Nebraska; North Dakota; South Dakota. 11. Ninth Circuit: Alaska; Arizona; Central, Eastern, Northern, and Southern California; District of Guam; 582 http://www.uscourts.gov/about-federal-courts/court-role-and- structure Hawaii; Idaho; Montana; Nevada; District of the Northern Mariana Islands; Oregon; Eastern and
- 844. Western Washington. 12. Tenth Circuit: Colorado; Kansas; New Mexico; Eastern, Northern, and Western Oklahoma; Utah; Wyoming. 13. Eleventh Circuit: Northern, Middle, and Southern Alabama; Northern, Middle, and Southern Florida; Northern, Middle, and Southern Georgia. A panel of appellate judges hears arguments in a case to determine whether there was a legal violation that altered the decision by a lower court. © AP Photo/David Goldman Supreme Court The U.S. Supreme Court is the highest court that can hear cases on criminal law. The Supreme Court is an institution unlike any other in the nation. The first Court was established in 1789 with six members—a chief justice and five
- 845. associate justices. Today, the law states that the Court be composed of nine justices—eight associates plus the chief justice. Over the past 211 years, there have been 113 justices and 17 chief justices. Justices are selected by the president of the United States and confirmed by the members of 583 the Senate. Turnover on the Court is a slow process as members are appointed for life (and many serve until death).13 In 2016, the death of Justice Scalia left the Court with only eight justices as well as a significant battle within Congress over the confirmation of a new justice. President Obama nominated Merrick Garland to serve as an associate justice, but Republican leaders refused to hold hearings or vote on the nomination on the grounds that a president in his last year should not be allowed to fill the vacancy. After a
- 846. significant delay (and a presidential election), Neil Gorsuch was appointed by President Trump and confirmed by the Senate to fill the seat that was vacated by Scalia. The Court generally hears only cases that involve a constitutional question—that is, questions of whether a defendant’s constitutional rights were violated as a result of her or his criminal conviction. Table 9.2 highlights some of the notable Supreme Court decisions on issues of criminal law. U.S. Supreme Court: Highest court that can hear cases. Makes decisions based on issues of law. Decisions are used to establish precedent in subsequent cases. Table 9.2 In order for a case to reach the Supreme Court, all appeals in the lower courts have to be exhausted.* * The Court also holds original jurisdiction on cases involving
- 847. disputes between states. Then, an appellant—the person who is appealing—must petition the Court to hear her or his case. This petition is called a writ of certiorari. However, the Court hears only a select few of the cases that it is asked to review each year. Generally speaking, the Court will accept only between 100 and 150 cases, even though there are more than 7,000 requests annually.14 In order for a case to be heard, four of the nine justices must vote in its favor. If a case is granted 584 certiorari, both sides will submit a brief that outlines the legal arguments of their case. Briefs may also be submitted by outside parties that have an interest in the case. These briefs are called amicus curiae, or “friend of the court,” briefs. The parties will then appear before the
- 848. nine justices for oral arguments. Following the oral arguments, the justices meet to discuss the case and cast their votes to make a decision. Decisions are written down in an opinion, which is then used to guide future decisions in similar cases. This is known as precedent. The majority opinion of the court and its legal reasoning becomes the decision in the case. In some cases, a justice who agrees with the decision of the majority but perhaps differs in the reasoning provided by the Court may choose to write a concurring opinion. Finally, any justice who disagrees with the decision can write a dissenting opinion. Writ of certiorari: A petition to the U.S. Supreme Court to hear a case. Brief: Document submitted by a party in an appellate case that outlines her or his legal argument. Amicus curiae: “Friend of the court” briefs that are submitted to appellate courts in support of a legal argument. Oral arguments: Arguments presented by the parties to the court
- 849. in an appellate case. Majority opinion: Legal reasoning that is used to make a decision in a case, which becomes precedent. Concurring opinion: An opinion provided by a justice that agrees with the outcome of the majority but has different reasoning for the decision. Dissenting opinion: A written opinion by a justice who disagrees with the majority decision. Women and Minorities on the Bench The first non-White federal judge was Irvin Mollison, who was appointed to the U.S. Customs Court in 1945. It took five years before another judge of color was added to the ranks, with the appointment of William Hastie to the U.S. Court of Appeals for the Third Circuit. Over the past eight decades, the diversity in court appointments has continued to increase, though the majority of federal judges are still White and male. In 2017, the federal
- 850. judiciary was 80.4% Caucasian, 10.9% African American, 6.6% Hispanic, and 2% Asian American.15 A review of judicial appointments notes that President Obama appointed the largest number of judges of color during his time in the Oval Office, followed closely by President Bill Clinton. During his tenure, President Obama appointed 121 judges of color, representing 35.8% of his judicial appointments. Since assuming the presidency, Donald Trump has only appointed 33 judges, 30 of whom were White. He has an additional 70 585 nominations awaiting confirmation, only six of whom are non- White.16 A historical review of the U.S. Supreme Court finds that 80% of the justices have been White, male, and Protestant.17 The first justice of color was
- 851. Thurgood Marshall in 1967. Prior to his time on the Court, Marshall spent 25 years as an attorney with the NAACP Legal Defense Fund. During that time, he argued several important civil rights cases before the Court, including the educational segregation case Brown v. Board of Education (1954). Marshall was appointed to the Court by President Johnson in 1967. During his 24 years on the court, his liberal philosophy concentrated on strong protection for the rights of individuals. It was during Marshall’s tenure on the Court that several landmark decisions on the rights of offenders were handed down.18 The only other African American justice has been Clarence Thomas. Thomas was appointed by President George H. W. Bush in 1990 and confirmed the following year. Unlike Marshall, Thomas is very conservative in his legal ideology. He is a strong supporter of states’ rights.19 The nine justices of the U.S. Supreme Court are considered the highest judicial authority in
- 852. the United States. The newest associate justice is Brett Kavanaugh (not pictured), who was appointed by President Trump in 2018. Franz Jantzen, Collection of the Supreme Court of the United States 586 The first woman appointed to the federal judiciary was Genevieve Cline in 1928. Over the next four decades, few women were appointed to the bench. Since the 1970s, however, the number of women in these positions has increased dramatically. This trend is likely a result of an increase in the number of women in the legal field as well as an increased effort to appoint more women in these positions in recent decades. In addition to increasing the racial and ethnic diversity of the judiciary, President Obama was also responsible for appointing the largest proportion of women compared with those who served before him. During his eight
- 853. years as president, he appointed 138 women to the federal judiciary, which represented 42% of his nominations.20 The presence of women on the Supreme Court is a newer development. It wasn’t until 1981 that the first female justice was appointed to the Court. To date, only four women have served on the Supreme Court: Sandra Day O’Connor, Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan. In 1981, President Ronald Reagan appointed Sandra Day O’Connor as the first woman to grace the Supreme Court’s bench. At the time of her appointment, there were few women in high-ranking judicial positions at the state and federal level. O’Connor began her tenure on the Court as a conservative voice, and she voted with her conservative colleagues in the overwhelming majority of her decisions.21 However, she was not always aligned with the political right and became the swing vote alongside more liberal
- 854. justices in some high-profile cases before the Court. She retired in January 2006. In 1993, President Clinton appointed Ruth Bader Ginsburg to serve as the second female justice. During her tenure as a lawyer, she had appeared before the Court on six separate occasions in cases involving women’s rights. As a justice, Ginsberg has presented a balanced view in her decision making—sometimes voting with her liberal colleagues and other times serving as the swing vote for the conservative voice. Recently, Ginsberg has been joined by two additional female justices: Sonia Sotomayor in 2009 and Elena Kagan in 2010. Their appointments marked a shift in the judiciary of the highest court in the land. Sotomayor, a Latina, is the first woman of color to serve on the Supreme Court, and the inclusion of Kagan created a historical first as it represented the first time that three women served simultaneously on the Court. Both Sotomayor and Kagan were appointed by President Obama. Sotomayor has been involved in several landmark decisions,
- 855. 587 including those on health care reform and immigration laws. She has served as a liberal voice and is often viewed as a champion for the rights of the downtrodden.22 In 2010, Elena Kagan was appointed.23 While some viewed her lack of experience in the judiciary as a negative, she has positioned herself as one of the more influential leaders on the Court. 588 The State Court System The purpose of the state criminal courts is to try cases that allege violations of state criminal law. The majority of criminal cases are heard in state courts,
- 856. rather than federal courts. Indeed, given the size of some states in the United States, the caseload of one state can exceed that of the entire federal system. Like the federal courts, most state court systems are organized into four tiers based on their subject matter jurisdiction. The majority of cases involving criminal matters are heard in the trial courts (both limited and general jurisdiction cases). While most states divide their original jurisdiction cases into two categories (limited and general jurisdiction), some states combine all cases into a single court. In 2016, state courts across the United States heard more than 73 million cases. Figure 9.3 highli ghts the different types of cases that are handled by state courts. The majority of these cases are heard by limited jurisdiction courts, meaning that these offenses tend to be less serious in nature. Figure 9.4 presents data on the criminal rates for all state courts. Texas handles significantly more cases than anywhere else in the nation, with almost 2.7 million criminal filings in 2016. Even when you consider the population of the state, this number is disproportionately high
- 857. compared with other state courts. While the rate of criminal filings in Texas exceeds 9,600 cases per 100,000, other states have a very low rate of criminal filings, such as Kansas (1,617 per 100,000) and Wisconsin (1,916 per 100,000).24 589 Figure 9.3 Incoming Caseload Composition in State Trial Courts Source: R. Schauffler et al., eds., Court Statistics Project, Examining the Work of State Courts: An Overview of 2013 State Court Caseloads, 2015, http://www.courtstatistics.org/~/media/Microsites/Files/CSP/E WSC_CSP_2015.ashx. Graph 1: Percentages of cases in each type under General and Limited Tiers—36 States (58.8 million cases). The types of cases are plotted on the vertical axis and percentages are plotted on the horizontal axis. Data are shown in
- 858. the list below. Traffic: 54% Criminal: 19.7% Civil: 19.1% Domestic relations: 5.7% Juvenile: 1.5% General and Limited tiers are further divided into two graphs, General Tier—35 States (13.3 million cases) and Limited Tier—28 States (45.5 million cases). The percentages of cases in each type are given in the following order (1) General Tier, (2) Limited Tier. Traffic: 17.3%, 64.8% Criminal: 20%, 19.6% Civil: 33.1%, 15%
- 859. Domestic relations: 23.6%, 0.5% Juvenile: 6%, 0.2% Graph 2: Percentages of cases in each type under Single Tier—9 States (14.2 million cases). Data are shown in the list below. Traffic: 62.4% Criminal: 16.6% Civil: 14.1% Domestic relations: 5.6% Juvenile: 1.4% 590 http://www.courtstatistics.org/~/media/Microsites/Files/CSP/E WSC_CSP_2015.ashx
- 860. Figure 9.4 Statewide Criminal Case Rates per 100,000, 2014 Source: R. Schauffler et al., eds., Court Statistics Project, January 2017, http://popup.ncsc.org/CSP/CSP_Intro.aspx. The figure is titled, Statewide Criminal Case Rates per 100,000, 2014. The data are shown in the list below. No data: Delaware, Virginia, West Virginia, South Carolina, Tennessee, Mississippi, Arkansas, Oklahoma, Upper Peninsula of Michigan, North and South Dakota, Wyoming, and Oregon. 10,001–18,000: North Carolina 6,501–10,000: New Jersey, Michigan, Ohio, Kentucky, Texas, Nebraska, Nevada, and Arizona. 4,501–6,500: Maine, New Hampshire, Maryland, Georgia, Alabama, Louisiana, New Mexico, Colorado, Montana, Idaho, and Hawaii.
- 861. 3,501–4,500: D.C., Pennsylvania, Indiana, Florida, Iowa, Missouri, Utah, California, and Alaska. 1,600–3,500: Vermont, New York, Massachusetts, Rhode Island, Connecticut, Illinois, Wisconsin, Minnesota, Kansas, and Washington. 591 http://popup.ncsc.org/CSP/CSP_Intro.aspx Judicial Selection of State Trial Court Judges The selection process for state court judges varies from state to state. Figure 9.5 presents a map showing the different methods of judicial selection that are utilized by each of the 50 states. There are five primary ways in which state judges are selected. While most states have adopted one of these practices, some states use a combination of methods. Some states use either a partisan or nonpartisan election. A few states use an
- 862. appointment system whereby either the governor of the state or the legislature appoints someone to the bench. The majority of states use a combined process called the Missouri plan. This process, named after the state that first developed it, was crafted in 1940. The concept of a merit-selection plan was created out of concerns that the judiciary be an independent body, not one that was politicized. The Missouri plan involves three steps. First, candidates are nominated by a citizen committee. Here the purpose of a nomination process is to provide an initial screening of candidates that tests their qualifications for the position. This commission is independent of the political process and is composed of members of the community. The nominees are presented to either the governor or the head of the state’s judicial system, who then makes a selection. Once the appointed judge has served a year (or otherwise designed period) in the post, his or her name appears on a ballot as part of a retention election, which allows for the residents of the state to determine whether the individual should remain in the position.
- 863. Proponents of the Missouri plan argue that while there are areas within a merit-based system that could be improved, it is far better than a partisan election that can be influenced by politics and financial contributions to campaigns.25 Missouri plan: A three-step plan of judicial selection. Candidates are nominated by a citizen committee and one is selected by either the governor or the head of the state’s judicial system. After a year, a retention election is held. 592 Figure 9.5 Methods of Judicial Selection in State Courts Source: BallotPedia, “Judicial Selection in the States,” n.d., https://ballotpedia.org/Judicial_selection_in_the_states. The figure is titled, Methods of Judicial Selection in State
- 864. Courts. The data are shown in the list below. Appointed by U.S. president: District of Columbia Appointed by governor: Maine, New Hampshire, Massachusetts, New Jersey, and California. Appointed by legislature: Virginia and South Carolina. Nonpartisan election: Michigan, Ohio, West Virginia, Kentucky, North Carolina, Georgia, Mississippi, Arkansas, Wisconsin, Minnesota, North Dakota, Montana, Idaho, Washington, Oregon, and Nevada. Partisan election: Pennsylvania, Alabama, Illinois, Louisiana, Texas, and New Mexico. Appointed by commission: Vermont, New York, Rhode Island, Connecticut, Delaware, Maryland, Florida, Tennessee, Indiana, Iowa, Missouri, Oklahoma, Kansas, Nebraska, South Dakota, Wyoming, Colorado, Utah, Arizona, Alaska, and Hawaii.
- 865. 593 https://ballotpedia.org/Judicial_selection_in_the_states State Appellate Courts For the majority of states, the appellate level is divided into intermediate courts of appeals and a court of last resort, the state supreme court.* * Eleven states do not have an intermediate level of appeal— Nevada, the District of Columbia, West Virginia, New Hampshire, Delaware, Maine, Montana, Vermont, Rhode Island, South Dakota, and Wyoming. These states direct all appellate cases to the state supreme court. In 2016, state appellate courts heard 146,849 cases nationwide.26 State appellate courts hear four different types of cases. Appeals by right are cases the appellate court must hear. The majority of cases heard in state intermediate appellate courts
- 866. involve appeals by right cases, whereas the courts of last resort generally involve appeals by permission cases. Appeals by permission cases involve reviews of lower decisions that the court may choose to accept. Appellate courts will also hear cases in which the death penalty was imposed as well as cases for which they hold original jurisdiction. Criminal cases make up the majority of all cases heard in both intermediate courts of appeals and courts of last resort.27 Judges at the state appellate level may be selected using the same method as trial court judges. However, some states use a combination of different methods for the various judicial levels. Indiana, for example, uses elections for its superior (trial-level) judges. In some counties, these elections are partisan, while other counties use a nonpartisan process. Only a select few use the merit process. Meanwhile, at the state court of appeals and state supreme court level, judges are appointed on a merit system and face a retention election after a 10-year term. Several states
- 867. also use gubernatorial or legislative appointments for appellate level justices.28 Appeals by right: Involve cases that the appellate court must hear. Appeals by permission: Involve reviews of lower-level decisions that the court may choose to accept. 594 Courtroom Participants and Their Duties There are several players in a courtroom who work together to hear cases and make decisions. The courtroom workgroup is made up of the judge, the prosecutor, and the defense attorney. These three individuals are the primary members of the group. 595
- 868. Ancillary Members In addition, there are three ancillary members: the bailiff, the clerk of the court, and the court reporter. The bailiff provides security for the courtroom, escorts the defendant in and out of the courtroom if he or she is in custody, and provides assistance to members of the jury. The clerk of the court manages all of the paperwork for the courtroom and works closely with the judge. The court reporter prepares the transcript of the trial and other official hearings. 596 Judges The judge presides over the courtroom. The judge is the primary decision maker throughout the process. She or he listens to the information presented by the prosecutor and defense counsel and makes decisions by applying the law. For example, the judge decides whether
- 869. probable cause exists in a case, determines bail for the accused, rules on pretrial motions, and ensures that the rights of the defendant are upheld. During a trial, the judge officiates over the proceedings and rules on any objections raised by the prosecutor or defense. When a jury is involved, the judge provides instructions to the jury and answers questions about the law. In the absence of a jury, the judge listens to the evidence presented and makes a determination of guilty or not guilty. If a defendant is found guilty, the judge hands down a sentence. 597 Prosecutors The prosecutor is tasked with bringing the case to the court. She or he represents the state in a criminal case. Unlike an attorney in a civil case, who represents an individual, a prosecutor represents the larger community. In most jurisdictions, the lead
- 870. prosecutor is an elected official. As a result, he or she has to consider the needs of many individuals when determining how to proceed in a case. In larger jurisdictions, the lead prosecutor serves in a supervisory role while deputy prosecutors carry out the daily tasks of the office. These tasks include conducting trials and hearings, negotiating plea bargains with defendants, and interviewing witnesses and victims. Prosecutors have a high degree of discretion in many of their duties. They determine whether charges will be filed against someone who is arrested by the police. They also decide whether an offender will be offered a plea bargain and, if so, the details of this negotiation. At the federal level, there are 93 U.S. attorneys, one for each office. Each office then employs several assistant U.S. attorneys. For example, the U.S. Attorney’s Office for the Southern District of Texas has 160 assistant U.S. attorneys working in its office.29 At the state level, there are more than 2,300 state prosecutors’ offices throughout the
- 871. United States, with more than 78,000 attorneys and related support staff who work in these offices managing more than 2.9 million cases each year. These offices serve communities of all sizes, ranging from 500 residents to more than 10 million.30 Ethical Challenges for Prosecutors Like police officers, prosecutors have a high level of discretion. As a result, they are faced with ethical dilemmas on the job. Due to a growing population of wrongfully convicted individuals, we know that some prosecutors have acted in a manner that blurs the line of what is right and wrong in their pursuit of justice. The American Bar Association Model Rules of Professional Conduct provide guidance for prosecutors. They state that prosecutors should (1) only file cases in which probable cause exists; (2) make a reasonable effort to ensure that the accused has been advised of his or her right to an attorney; (3) not pressure an unrepresented defendant
- 872. to waive his or her pretrial rights; (4) disclose evidence in a timely manner to the defense, particularly information that might show that the defendant is not guilty of the crime or information that mitigates the 598 defendant’s role in the offense; (5) exercise care when communicating details about the case to the public, the media, or other criminal justice personnel; and (6) disclose any new evidence in a case that might vindicate a convicted offender and assist the authorities in remedying the issue.31 The case of Brady v. Maryland (1963) requires that prosecutors must disclose any exculpatory evidence to the defense.32 Exculpatory evidence is evidence that is favorable to the defense and may exonerate a defendant from any criminal wrongdoing.
- 873. Exculpatory evidence: Evidence that is favorable to the defense and may exonerate a defendant from any criminal wrongdoing. 599 Careers in Criminal Justice So You Want to Be a Prosecutor? In order to work as a prosecutor, you have to have a law degree and pass the bar for the state where you want to work. But beyond the minimum qualifications, it takes a certain personality to work in this field. As a prosecutor, you are interacting with many different types of people, including defense attorneys, judges victims, and offenders. You will also interact with the public when you are on a case. As a prosecutor, you will spend a lot of time in courtrooms, which is generally not true for those who
- 874. practice other types of law. In addition to possessing legal skills and the ability to argue a case, prosecutors must be able to be fair and show compassion. Prosecutors hold a great deal of power in determining when to file charges or when to offer a plea bargain in a case. As a result, you need to have strong ethics—a clear sense of right and wrong. If you are interested in becoming a prosecutor, you should spend a fair amount of time observing a courtroom to see the type of work that a prosecutor does on a daily basis. You may also want to seek out internship opportunities with your local prosecutor’s office, either as an undergraduate student or once you are enrolled in law school. Internships can give you valuable experience to help you decide whether this is the type of career for you.
- 875. It is important to note that the job of a prosecutor is a busy one, and as a public servant, most of these positions have lower salaries than positions in corporate and private law firms. However, most individuals who work in these fields find satisfaction in knowing that they have helped achieve justice for victims. When a prosecutor engages in conduct that violates these ethical codes, the results can be catastrophic for the lives of individuals and the community at large. Consider the case of Ron Williamson, whose story is told by popular author John Grisham in his book An Innocent Man. Williamson was convicted of the murder of Debra Carter in 1988 and was sentenced to death by the state of Oklahoma. After spending 11 years in prison and even coming within five days of being executed, Williamson was released with his codefendant, Dennis Fritz, in 1999. While Williamson was exonerated by DNA evidence that showed he did not commit the crime, the truth was also shrouded by prosecutorial misconduct because the district
- 876. attorney had failed to turn over evidence that could have altered the outcome of the trial. In particular, the prosecutor failed to provide the defense a videotaped statement by Williamson after he had completed a polygraph examination. In addition to failing to turn over exculpatory evidence, prosecutorial misconduct can include behaviors such as the use of perjured testimony, failing to disclose preferential treatment given to a jailhouse informant, or misstating the law to the jury, which then impacts their decision-making process.33 The case of Williamson is just one example where prosecutorial 600 misconduct had an effect on the outcome of a case. According to the Innocence Project, prosecutorial misconduct was a factor in 36% to 42% of cases in which an offender was
- 877. ultimately exonerated by DNA.34 Prosecutorial misconduct: Can include behaviors such as the use of perjured testimony, failure to turn over exculpatory evidence, failing to disclose preferential treatment to a jailhouse informant, or misstating the law to the jury, which then impacts their decision-making process. While most cases of prosecutorial misconduct go unrecognized or unpunished, the state of Texas recently brought charges against a local prosecutor for concealing evidence. In November 2013, Ken Anderson, who was once named prosecutor of the year by the Texas State Bar Association, was convicted of evidence tampering in the case of Michael Morton. Morton was convicted in 1986 for the murder of his wife. After serving nearly 25 years in prison, Morton was exonerated by DNA. For his crimes, Anderson was sentenced to 10 days in jail, ordered to complete 500 hours of community service, and disbarred.35 You’ll read
- 878. more about this case in Current Controversy 9.1 at the end of this chapter. Dennis Fritz and Ron Williamson listen as Judge Tom Landrith dismisses murder charges against them. After serving 12 years in prison, DNA proved that the two did not commit the 601 crime. What role did prosecutorial misconduct play in this case? © AP Photo/J. Pat Carter 602 Defense Attorneys While the prosecutor represents the state in a criminal case, the defense attorney represents those who have been accused of a crime. The Sixth Amendment
- 879. of the Constitution states that persons who have been accused of a crime have the right to an attorney to assist in their defense. If a defendant cannot afford an attorney, the government will provide one to him or her. This right was established as a result of the U.S. Supreme Court case Gideon v. Wainwright (1963).36 In order to satisfy this burden, most jurisdictions have established an office of the public defender. There are also cases in which the court will appoint private counsel to represent a defendant. This occurs in those districts and states where an office of the public defender has not been established. Private appointed counsel or an alternative defender is also used in cases where a codefendant is already represented by the public defender’s office. Due to a conflict of interest, this office cannot represent the defendant and the codefendant. In some jurisdictions, there is a separate office that is funded to support these cases. In others, private counsel is appointed by the judge to provide the defendant with an attorney at the expense of the local or state government. In
- 880. cases where a defendant is deemed to have adequate resources to afford an attorney, the defendant can hire a private attorney to defend his or her case in court. In some cases, the defendant may decide to act as her or his own attorney or to proceed through the case without the assistance of counsel. The work of a defense attorney centers on protecting the rights of the accused, most notably their Fourth, Fifth, and Sixth Amendment rights. The Fourth Amendment protects against unreasonable searches and seizures. A defense attorney may petition the court to have evidence against the defendant excluded if he or she believes that it was obtained illegally. The Fifth Amendment protects individuals against self- incrimination as well as double jeopardy. This means that people cannot be compelled to testify against themselves, nor can they be tried for the same crime twice. The Sixth Amendment includes several due process protections for the accused, such as the right to an attorney, the right to a speedy trial, the right to confront witnesses against her or him, and the right to
- 881. have her or his case heard before a jury of peers. As a case proceeds, the defense attorney is focused on preparing for trial and managing any pretrial motions to the court. She or he represents the client in any court hearings and negotiates with the prosecutor on potential plea bargain opportunities. In those instances 603 where a case proceeds to trial, the defense attorney cross - examines prosecution witnesses and calls his or her own witnesses to testify on behalf of the defendant. The defense attorney also conducts investigations to challenge the evidence presented by the prosecutor or to identify mitigating evidence for her or his case. Mitigating evidence is any evidence that serves to either explain the defendant’s involvement in the crime or reduce his or her potential sentence.
- 882. Mitigating evidence: Any evidence that serves to either explain the defendant’s involvement in the crime or reduce her or his potential sentence. 604 Spotlight The Impact of Gideon v. Wainwright Fifty-five years ago, the U.S. Supreme Court’s landmark decision in Gideon v. Wainwright proclaimed that counsel must be provided for all indigent defendants. The mission of Gideon was a significant one as it set forth to provide equal access for all to legal assistance. However, providing such services continues to challenge jurisdictions across the United States in several ways. The first challenge of Gideon is ensuring that those accused of a
- 883. crime have access to qualified and competent counsel. The first public defender’s office was established in 1914 in Los Angeles. Today, this office has more than 700 licensed attorneys as well as hundreds of support staff and an annual budget of $186 million.a Estimates indicate there are more than 15,000 court-appointed attorneys nationwide.b However, the demand for assistance exceeds the availability of attorneys. Clients can spend months in jail while they wait for an attorney to be appointed in their case. This is a direct result of a system that is overstretched in terms of available resources. The American Bar Association recommendation indicates that the caseload for a public defender should not exceed 150 felony cases annually. However, the reality in many jurisdictions is that public defenders can represent more than 300 clients each year.c Research on the workloads of public defenders in Missouri indicates that
- 884. attorneys are able to spend only 8.7 hours on a typical high- level felony case, 4.4 hours on a lower-level felony, and 2.3 hours on a misdemeanor case. This is a sharp departure from what attorneys feel they should expect to spend on such cases.d The second challenge of Gideon is the financial cost to provide public defense systems. In 2012, state governments spent $2.3 billion nationwide on indigent-defense systems.e While many of these offices are supported as part of the state budget, 18 states leave it to the local counties to fund indigent defense.f As a result, significant regional disparities can exist. Disparities in funding also exist between the district attorney and public defender offices. Consider Orange County, California, which has well-funded public and alternative defender systems. In 2014, these offices received $78 million. In
- 885. comparison, the Orange County District Attorney’s Office received $123 million to prosecute cases. Given that 80% of all defendants nationwide are represented by appointed counsel, these discrepancies in funding can limit the abilities of public defenders.g While Gideon held that counsel must be provided to indigent defendants, the twenty-first century realities of the criminal justice system affect its implementation. The Court held in Strickland v. Washington (1984) that in order to prove ineffective assistance of counsel, the defendant must show not only that his or her attorney failed to perform in a reasonable manner but also that these deficiencies significantly impacted the outcome of the case. While some cases that are successful under Strickland involve instances where attorneys were intoxicated or asleep, many others involve what has become the reality for many jurisdictions: systems that are significantly
- 886. underfunded to meet the demands and attorneys who are so overwhelmed that their ability to provide an adequate defense is challenged. In 2013, the Florida Supreme Court held that public defenders had the right to refuse to accept new assignments due to overburdened caseloads, a decision which may mark a shift in how resources for indigent-defender systems are prioritized within the criminal justice system.h 605 606 Critical Thinking Questions 1. Why is the holding in Gideon v. Wainwright important? 2. What are the challenges for upholding the decision of Gideon
- 887. in the twenty-first century? 607 Juries The jury is a group of citizens who are responsible for determining whether someone is guilty of an offense. Juries are used in both criminal and civil cases. There are two different types of juries that are used as part of the criminal process: grand juries and trial juries. Grand Juries A grand jury is composed of a group of citizens who are called to serve for a specific period of time. In the federal system, grand juries serve for a period of one year. A prosecutor presents his or her case to the grand jury, which then reviews the evidence to determine whether an indictment should be issued. The accused and her or his attorney do not have a right to
- 888. appear, present witnesses, or cross-examine witnesses in a grand jury proceeding. The indictment is the official declaration that there is probable cause to charge the accused with a crime. Grand jury: A group of citizens who review the evidence presented by a prosecutor to determine whether an indictment should be issued. Indictment: An official declaration that there is probable cause to charge the accused with a crime. Trial Juries When most people think of serving on a jury, they are thinking of a trial jury. A trial jury is selected through a process of questioning by the prosecutor and the defense attorney, known as voir dire. In the federal system, 12 people are selected to serve on a criminal jury. Alternate jurors may also be selected to serve in case someone falls ill or is unable to complete his or her jury service. Jurors in federal court are paid $40 a day, though
- 889. the rate for state and local jurisdictions can be as little as $5. While employers are not required to continue to pay regular salary while one serves on a jury, the Jury Act prohibits them from firing someone for missing work as a result of jury duty.37 To serve on a jury, one must be a U.S. citizen 18 years or older, be proficient in the English language, reside in the jurisdiction that calls one for service, and have never been convicted of a felony.38 Trial jury: A group of citizens who are charged with listening to the evidence that is presented by the attorneys and making a judgment of whether someone is guilty or liable. 608 Voir dire: The process of questioning by the prosecutor and the defense attorney that is used to select a trial jury.
- 890. The right to trial by a jury of one’s peers is guaranteed in the Constitution, yet there are many controversies around jury service. Should jurors be paid more? Should attorneys have the ability to select a jury based on race or ethnicity? © iStock.com/Image Source During the voir dire process, the prosecutor and the defense question potential jurors to determine who should be selected to serve. Potential jurors can be excused for three general reasons. First, potential jurors can request that they be excused from service. Here, individuals may suggest that serving on a jury would present a hardship on either their work or their family life. In these cases, it is up to the judge to determine whether a juror will be excused. Second, jurors can be excused for cause. A challenge for cause is granted in cases where the court believes that a potential juror may be unfair or biased in her or his decision making. Finally, jurors can also be excused by the choice of the prosecutor or the defense. Each side has a limited number of peremptory challenges whereby an
- 891. attorney can reject a juror without having to give a specific reason. It is important to note that the U.S. Supreme Court held in Batson v. Kentucky (1986) that peremptory challenges cannot be used against a potential juror 609 solely on the basis of his or her race or ethnicity.39 Alas, however, some have questioned whether the use of peremptory challenges on the basis of race has continued into the twenty- first century; current data has found that Black prospective jurors are excluded from service 2.5 times more often than White jurors.40 In the 2016 decision in Foster v. Chatman, the Court held that purposeful discrimination in jury selection is unconstitutional. During the trial of Foster, a Black man who murdered an elderly White woman, the prosecutor had offered a long list of race-neutral reasons to exclude four Black potential jurors from service,
- 892. but he allowed White jurors with the same traits to serve.41 Challenge for cause: Allows attorneys to exclude a potential juror in cases where the court believes that the individual may be unfair or biased in her or his decision making. Peremptory challenge: Allows attorneys to reject a juror without having to give a specific reason. 610 Around the World Juries in a Global Context The use of juries to render an impartial verdict in a criminal case is not a new phenomenon, nor is it limited to the American justice system. The roots of the modern jury system come from medieval England. In particular, it
- 893. was under the reign of Henry II that the use of juries began to develop. Today, these influences can be found not only throughout the U.S. system but in many other modern democratic countries as well. Under King Henry II’s rule, the courts of assizes would travel to local regions to hear cases involving criminal matters four times a year. The judge would summon 12 “free and lawful men” to determine whether the accused was guilty or innocent of the crime. These early juries were self-informing, which meant that they were not neutral participants in the process and were expected to come to the court with personal knowledge about the crime. Over time, this feature shifted to one where jurors were expected to be neutral in their opinions and base their decisions only on the information presented within the court proceedings.a Today, more than 40 countries use citizen juries as part of their
- 894. criminal court process.b Generally speaking, these countries use juries for only the determination of guilt while the declaration of a sentence is left to the judge. The major exception to this rule is the United States in death penalty cases. In 2002, the U.S. Supreme Court decision in Ring v. Arizona held that a defendant has the right to have a jury, rather than a judge, decide his or her fate when it comes to the death penalty. While countries such as Australia and New Zealand rely on citizen juries, other countries, such as Germany and France, use a combination of lay and professional panels to make decisions. Some countries, such as Thailand and Croatia, require particular areas of topical expertise from their jury members in order to serve.c What about those jurisdictions that do not use a jury to make decisions? Consider the case of South Africa,
- 895. which abolished the use of juries in 1969. During the early twentieth century, laws were adopted that allowed defendants to choose to have their case decided by a judge rather than a jury. Over time, the law was amended, which further limited the use of juries. Ultimately, South Africa ended its use of the citizen jury, partly in response to concerns about racial prejudice. Between 1948 and 1991, the country was divided under a system of apartheid whereby Whites and non-Whites lived separately, maintained separate facilities, and had limited contact with each other.d In many ways, South African apartheid mirrored Jim Crow laws in the United States. While apartheid ended near the close of the twentieth century in South Africa, the use of juries has not reemerged. Instead, cases are decided by a judge. However, the judge is not the only decision maker in the case; he or she is joined by assessors who offer expert advice and
- 896. provide assistance with the facts of the case.e Some scholars have questioned whether the jury experience should remain a part of the criminal justice system. On one hand, a jury of one’s peers is fundamental to the American justice system and that of many others. Yet several issues have challenged the modern jury experience. For example, the rise of popular-culture television shows has created what scholars call the CSI effect whereby jurors believe that advanced technology such as DNA analysis should be required in all cases. As a result, jurors may be faced with making a decision in a case but lack the training or background to adequately understand the evidence as it is presented.f 611 612
- 897. Critical Thinking Questions 1. What challenges exist with the use of juries in the criminal justice system, both domestically and internationally? 2. How might international examples of juries improve the American jury system? In order to find someone guilty in federal court, all 12 jurors must agree on the verdict, or decision. If a jury is unable to come to a unanimous decision, it results in a hung jury. In these cases, it is up to the prosecutor to determine whether she or he will refile charges against the defendant or let him or her go free. While most states require a unanimous jury decision, Oregon and Louisiana allow for guilty verdicts when 10 of the 12 jurors vote to convict. While such a practice has been challenged in front of the Supreme Court in the past,
- 898. the Court declined to hear a case on this issue in 2014.42 Verdict: A decision in a case. Hung jury: Occurs when a jury is unable to make a unanimous decision. 613 Stages of a Criminal Court Case In Chapter 1, you learned how a case moves through the criminal justice system. During the court process, there are several stages that a case moves through. 614 Pretrial During an initial appearance, the defendant is official ly notified
- 899. by the court of the charges that are pending against her or him. It is during this stage that the court will appoint an attorney for an indigent defendant. Earlier in this chapter, you learned about the grand jury proceeding. The preliminary hearing is another option for the court to establish whether probable cause exists for the case to move forward. In some cases, the defense will waive its right to a preliminary hearing. If the defendant is in custody, he or she may have a bail hearing to determine whether the accused is eligible for bail. Initial appearance: First appearance by a defendant where she or he is officially notified by the court of the charges that are pending against her or him. If the defendant is indigent, it is during this stage that an attorney is appointed for her or him. Preliminary hearing: One option for the court to establish whether probable cause exists for the case to move forward.
- 900. Bail is a promise to return for future court appearances in exchange for one’s release during the pretrial stage. During the bail hearing, the court hears arguments about whether someone is a risk if released. When someone is released on bail, he or she has provided the court with a financial promise to appear. In some cases, defendants will use a bail bondsperson to help secure their bond. In this case, the defendant pays a fee to the bail bondsperson along with some form of collateral (such as the deed to a home or a car) in exchange for the bondsperson putting up the remaining amount of the bail. In these cases, if a defendant fails to appear, the bail bondsperson will seize the asset to pay the debt. Bail: A promise to return for future court appearances in exchange for one’s release during the pretrial stage. The topic of bail has always been a much-discussed one in the American criminal justice system. While there is no right to bail, the Eighth Amendment of the U.S. Constitution does specify that excessive bail is unconstitutional. One of the first
- 901. efforts to reform bail was the Manhattan Bail Project. Established in 1961, the project interviewed defendants to assess their ties to the community and investigate the likelihood that they would appear at their court hearings if they were released from custody on their own recognizance. The results of this project indicated that defendants with ties to family and employment were more likely to return to court under a personal promise than individuals who satisfied a monetary bail 615 requirement. As a result of these findings, release on own recognizance (ROR) programs are now in place in most jurisdictions in the nation.43 ROR programs have several benefits. As the financial burden of bail can be difficult to meet, many people who are accused of a crime cannot afford to pay these fees (Figure 9.6).
- 902. Research from New York City’s misdemeanor cases indicates that bail is set in 22% of cases, while the rest of defendants are released on their own recognizance. Alas, only 13% of those who are ordered to pay bail can afford it. The remai ning 87% of individuals remain behind bars. In many of these cases, the bail is less than $1,000. As a result, the individual spends an average of 15.7 days behind bars. Seventy-one percent of these cases involve nonviolent, non- weapons-related charges.44 Research has indicated that failure to make bail has other consequences as well. For example, offenders who are detained prior to trial are more likely to receive harsher sentences compared with those who remained free on bond.45 This has a significant impact, particularly for people of color, who are more likely to be detained prior to trial compared with White defendants.46 Men are also more likely to be detained at the pretrial stage than women.47 Offense type also plays a role, as
- 903. women who are charged with drug or property crimes are less likely to be detained prior to trial compared with women who engage in crimes against persons.48 Released on own recognizance: Type of release where the defendant promises to appear for all future court dates but does not have to provide the court with any sort of financial guarantee. Figure 9.6 Average Bail Amount for Felonies in California Source: Public Policy Institute of California. Note: Most recent data available. In August 2018, California passed a bill to eliminate its cash 616 bail system.
- 904. In some cases, a defendant is held in custody until trial. This is called preventative detention. Preventative detention is used in cases where the court believes that the person might be a danger to the community or would flee the jurisdiction if she or he were allowed out of jail during the pretrial stage. In other cases, defendants may be released on their own recognizance, as discussed above. Preventative detention: Used in cases where the court believes that the person may be a danger to the community or would flee the jurisdiction if she or he were allowed out of jail during the pretrial stage. 617 Arraignment The arraignment is the formal reading of the charges. It is during the arraignment that the defendant enters a plea. In most cases, the defendant will enter
- 905. a plea of either guilty or not guilty. In some cases, the court may allow the defendant to enter a plea of nolo contendere. A nolo contendere plea is a no-contest plea. In this case, the defendant is not admitting guilt but accepts responsibility for the criminal act. A nolo contendere plea means that the defendant is not required to address his or her crimes (Figure 9.7). Allocution occurs when a defendant appears before the court and publicly admits involvement in the crime. This can be an important variable in any subsequent civil actions that may be filed following the conclusion of the criminal case. Nolo contendere: A no-contest plea in which the defendant does not admit guilt but accepts responsibility. Allocution: Occurs when a defendant appears before the court and publicly admits his or her involvement in a crime. Figure 9.7 Types of Pleas Entered at the Arraignment
- 906. Entering a plea 618 Guilty Defendant admits guilt Sentencing Not guilty Defendant does not admit guilt Trial Nolo contendere Defendant does not admit guilt, but accepts responsibility for the criminal act Sentencing
- 907. At any point during the process the defendant can plead guilty to the charges and waive her or his right to a trial. By pleading guilty, the defendant admits wrongdoing in the case. The prosecutor may also offer a plea bargain to the defendant. A plea bargain is a reduction in charges (and punishment) in exchange for a guilty plea. Plea bargains are an essential part of the criminal justice system because they provide a way to resolve cases in an efficient manner. You’ll learn more about the use of plea bargains in Current Controversy 9.2 at the end of this chapter. Plea bargain: A reduction in charges (and punishment) in exchange for a guilty plea. 619 Trial Only a small percentage of cases go to trial. A trial is when a prosecutor presents her or his
- 908. case to either a judge or a jury. The burden of proof during a criminal trial falls on the prosecutor to prove that the defendant committed the crime in question. The trial has eight stages. During the first stage, both the prosecution and defense attorney present their opening statements to the court. During the opening statement, each side presents its core arguments to the judge and jury. After the opening statements, the prosecution begins by calling witnesses to provide testimony about what they believe happened during the offense. A witness is someone who can provide information about the case. He or she will introduce evidence to support his or her position. There are two different types of evidence. Direct evidence refers to evidence that is directly linked to the defendant’s involvement in the crime. For example, a witness who says that she or he saw the offender enter the home illegally is providing direct evidence. In contrast, circumstantial evidence is evidence that requires the jury to make some sort of inference about the defendant’s involvement in the crime. Using the example above, circumstantial evidence would be if the
- 909. defendant was seen with a new piece of jewelry. Combine this with testimony that the jewelry matches a necklace that was reported missing following the home invasion, and the jury is asked to infer whether the defendant could have taken the jewelry. Opening statements: The first stage of the trial, when each side presents its core arguments to the judge and jury. Direct evidence: Refers to evidence that is directly linked to the defendant’s involvement in the crime. Circumstantial evidence: Evidence that requires the jury to make some sort of inference about the defendant’s involvement in the crime. During the presentation of the case by the prosecutor, the defense is given the opportunity to cross-examine, or question, the witnesses that are called to testify on behalf of the prosecution. Following the presentation of all of the prosecution’s witnesses, the prosecution rests its case. At this point, the defense has the opportunity to
- 910. put on its case. It is the job of the defense counsel to provide alternative explanations for the theories presented by the prosecution. Just as the defense can question any witnesses presented by the prosecution, the district attorney is provided with the opportunity to cross- examine any witnesses that testify on behalf of the accused. 620 In some cases, the prosecution or defense may object to the information that is presented by the other side. In these cases, it is up to the judge to determine whether the jury should consider this information under the law. For example, a witness may indicate on the stand that she or he was told by someone else that the defendant admitted to the home invasion. This is an example of hearsay. In most cases, hearsay evidence is not admissible, though there are some exceptions to this rule.
- 911. Once each side presents its case, they both have the opportunity to make a summary statement to the court. This is called a closing argument. It is then up to the jury members to make their decision. Forty-eight states use standardized jury instructions that provide guidance to the members of the jury about how to apply the law to the facts that were presented during the trial. In order to find a defendant guilty, the jury must agree that the facts of the case prove beyond a reasonable doubt that the defendant committed the crime. If the jury believes that there is reasonable doubt, then the defendant is found not guilty. Sometimes, the jury may not be able to agree on a decision and a hung jury results, as discussed earlier. In some cases, the jury may decide not to convict a defendant even though the evidence supports a guilty verdict. This is called jury nullification. Jury nullification occurs if the jury believes that the defendant should not have been charged with a crime or if they disagree with the law as it is written. Closing argument: Stage of a case in which each side makes a
- 912. final summary statement to the court once all the evidence has been presented. Jury instructions: Provide guidance to the members of the jury about how to apply the law to the facts that were presented during the trial. Jury nullification: Occurs when the jury decides not to convict a defendant even though the evidence supports a guilty verdict. 621 Conclusion Our criminal courts are tasked with perhaps one of the most important functions of our criminal justice system: weighing the evidence of a case and determining whether an offender is guilty of violating the law. The courts provide an important
- 913. filter between those who arrest alleged violators and those who carry out the punishments for these acts. Despite jurisdictional differences, most criminal cases are processed in a similar manner throughout a complex system involving a number of different professionals, all of whom are tasked, in one way or another, with managing the justice process. Indeed, many of the decisions of our courts have helped to shape how the criminal justice system operates on a daily basis. 622 Current Controversy 9.1 Should Physical Evidence Be Required in Serious Criminal Cases? —Jay Wachtel— Where do you stand? Cast Your Vote! 623 https://edge.sagepub.com/mallicoatccj2e/student-
- 914. resources/chapter-9/current-controversy-videos Introduction It seems that not a week goes by without news of yet another wrongfully convicted person’s release from prison. In a criminal justice system that’s supposedly the envy of the world, how can such things happen? Experts who have studied the problem attribute it to various factors, including false and coerced confessions, mistaken eyewitness testimony, lying by witnesses and informers, junk science, sloppy investigation, and, more generally, the dilemma faced by those accused who do not have the funds to marshal an adequate defense.49 Ninety percent or more of criminal cases are disposed of through plea bargains. But many of the safeguards that were designed to protect the innocent take effect only at trial. Hearsay cannot be used as evidence unless it fits into an
- 915. approved category,50 expert testimony must be based on “sufficient facts or data” and produced by “reliable principles and methods,”51 and so on. Trials also bring into play the adjudicative system’s ultimate safeguard: that an accused cannot be convicted unless a judge rules (in trials befor e the bench) or a jury unanimously finds that guilt was proven beyond a reasonable doubt. Of course, absolute certainty is often beyond reach. Evidence varies in quantity and quality and can point in different directions. Jurors are instructed to apply “common sense and experience” to resolve conflicts in testimony.52 But life experiences vary, and disagreements about what is “common sense” are, well, common. Suffice it to say that as miscarriages of justice continue to accumulate, one’s faith in the system’s ability to arrive at the truth—to do justice— suffers.
- 916. CSI technicians are used to collect and preserve physical evidence at crimes. Forensic investigation is a growing field in criminal justice. Is this a field you might be interested in? 624 © Mikael Karlsson/Alamy Stock Photo Even if errors can’t be wholly prevented, how can the likelihood of an unjust verdict be minimized? One approach is to require objective proof of guilt. And there is nothing supposedly more “objective” than physical evidence. 625 PRO: Physical Evidence Should Be Required to Convict a Defendant of a Crime On August 13, 1986, Michael Morton left for work. Later that day, a neighbor stopped by and discovered the body of
- 917. Morton’s wife. She had been beaten to death. Morton was charged with her murder. Evidence at trial focused on the couple’s quarrels and Michael Morton’s dissatisfaction with his sex life. Morton was convicted and drew a life sentence. He served 25 years before DNA positively linked his wife’s murder—and a similar killing committed two years later—to another man.53 Morton’s conviction rested on circumstantial evidence. Actually, there was physical evidence—a bloody bandanna found near the crime scene—but its presence was ignored by authorities. A quarter century later, DNA from the bandanna identified the real killer. (He was tried and convicted in 2013.54) Morton’s prosecutor ultimately gave up his law license and spent 10 days in jail for withholding other evidence that would have cast doubt about Morton’s guilt from the very start.55
- 918. On September 28, 1990, a 16-year-old girl was attacked by a masked man in a Dallas motel room. She identified her assailant as Michael Phillips, a maintenance worker at the motel, and later picked him out from a photo lineup. Phillips protested his innocence. But he had an old burglary on his record, so his public defender suggested he plead guilty to avoid a life sentence. That’s what Phillips did. He served his full term—12 years—and had to register as a sex offender.56 Five years after his release, the Dallas D.A.’s office tested all unprocessed rape kits, including the one in Phillips’s case. It turned out that DNA from the kit excluded Phillips but matched a motel resident who physically resembled him. (That man could not be prosecuted because the statute of limitations had lapsed.) Phillips was exonerated and, under Texas law, awarded financial restitution for life. “Hang on to
- 919. your faith,” he told reporters. “The Father works in his own time, and like the good song says: He may not come when you want to, but He’s always on time.”57 Rare events such as home invasions can lead fact finders astray. Morton was at work when his wife’s body was discovered. His only possible defense—that she had been murdered by an intruder—seemed implausible to jurors, who, no doubt, dutifully applied their “common sense and experience” but reached the wrong conclusion. Had physical evidence been required, authorities would have probably paid more attention to the bandanna and perhaps even caught the real killer before he struck again. Phillips was done in by careless detectives and eyewitness misidentification. Lacking the means to hire investigators, he gave up and, like others have done in his shoes, pled guilty. Had authorities tested the rape kit using techniques
- 920. then available, they might have thought to look for another suspect, and a bit of sleuthing would have led them to the perpetrator. But they didn’t, and a man needlessly lost more than a decade of his life while the real rapist roamed free. 626 CON: Physical Evidence Should Not Be Required to Convict Shoddy policing and overzealous prosecution were the culprits in the wrongful convictions of Morton and Phillips. What these examples teach is that authorities must use great care when targeting suspects and not simply accept the quickest or most convenient solution. What they don’t teach is that physical evidence is always essential. Physical clues are often absent or lacking, and insisting that it’s either that or nothing would be a public policy disaster—literally, an invitation to break the law. Consider these examples (the first two are composites, and the third is an actual case):
- 921. Witnesses record the license plate of a vehicle used in a drive - by shooting. Hours later, police find the car and detain its sole occupant. He denies involvement. Two witnesses identify him as the gunman from a photo lineup. No gun or other physical evidence is recovered. A woman pedestrian fights off an attacker. Police locate him nearby, and the witness identifies him as her assailant. But he denies everything, and there is no DNA. As happened in New York City, a man is purposely pushed into the path of an oncoming subway train. He is instantly killed. A detective connects the blurry video image of a possible perpetrator with a suspect who allegedly shoved someone on the street in an earlier incident. Police arrest the man for both crimes.58 If defendants must be physically linked to a crime, police might as well ignore all episodes such as these, where
- 922. tangible proof of guilt is lacking. Actually, our obsession with “scientific” evidence has already created perverse incentives to stretch the truth. That, indeed, is how so-called junk science came to be. Consider, for example, the case of Cameron Todd Willingham. Forensic scientists now concede that Willingham was wrongfully executed for setting a house fire that killed his three children. In fact, the fire was accidental, and Willingham, who protested all the way to the end, was really innocent.59 Years later, scientists thoroughly debunked the testimony of a fire marshal who misused burn patterns to incorrectly conclude that accelerants had been used, meaning that the fire had been deliberately set. In its landmark 2009 report, the National Academy of Sciences contested the validity of burn patterns and a host of other commonly accepted techniques, including the analysis of bite marks, bloodstain
- 923. patterns, shoeprints, and tire tracks.60 Unreliable and improperly used forensic science has caused incalculable harm to innocent persons.61 Of course, physical evidence is important. Sometimes it’s critical. But reliable physical evidence that ties in a suspect is not always available. To insist that only physical evidence will do is a terrible idea that could only tarnish law enforcement and frustrate justice. 627 Discussion Questions 1. Why does the public believe that physical evidence is required in order to convict someone? Where does this belief come from? 2. What are the risks of convicting someone without physical evidence that directly ties her or him to the crime?
- 924. 3. Identify a case of wrongful conviction. How was the evidence used to convict this individual? What errors existed in this case? 628 Current Controversy 9.2 Should We Limit the Use of Plea Bargains? —G. Max Dery— Where do you stand? Cast Your Vote! 629 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-9/current-controversy-videos Introduction Plea bargaining is controversial and can provoke intense
- 925. emotion from competing interests.62 Deciding whether this hotly debated process is good or bad for our criminal justice system requires an understanding of what plea bargaining is in the first place. Plea bargaining involves negotiation between the prosecution and the defense (and sometimes the trial judge) to reach an agreement about a case’s outcome without going through a trial.63 In the bargaining process, officials offer the defendant incentives, such as a chance to plead to a lesser offense or to serve a shortened sentence, to encourage a plea of guilty or nolo contendre (“no contest”).64 Courts recognize two fundamental kinds of plea bargaining: (1) charge bargaining and (2) sentence bargaining.65 Charge bargaining can involve negotiations about reducing the severity of the crime charged.66 For example, a prosecutor might offer to reduce a kidnapping charge to the typically less serious crime of false imprisonment. Charge
- 926. bargaining can also deal with an offer to reduce the number of charges, or counts, a defendant is facing.67 For instance, if a defendant is charged with Count 1: Drug Sales and Count 2: Possession for Sale of Drugs, a prosecutor will commonly offer to drop Count 2 if the defendant will agree to plead guilty to Count 1. Sentence bargaining involves the prosecution making a concession dealing directly with the amount of time the defendant will serve in jail or prison. In sentence bargaining, the prosecutor will agree to recommend a shorter sentence or to not argue for a longer or maximum sentence.68 630 PRO: Plea Bargaining Should Be Abolished or Limited In debating whether plea bargaining should be abolished or limited, you should consider five key questions.
- 927. The first question is this: Does plea bargaining prevent jury trials and undermine the adversarial process of our courts system? Plea bargains short-circuit the truth-finding process. Those who find plea bargaining desirable or even inevitable have forgotten the crucial importance of guaranteeing each person the chance to present his or her case in open court to a trial jury. The Sixth Amendment to the U.S. Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”69 To guard against “oppression and tyranny,”70 the Supreme Court has ruled that “only the jury can strip a man of his liberty or his life.”71 Plea bargains trade away the open and fair jury trial and therefore undermine the adversarial process itself. Instead of acting as zealous advocates for their clients’ interests, the prosecutor and defense attorney are reduced to little more than a seller and a buyer arguing over the “worth” in
- 928. prison time of a case. The second question is this: Do plea bargains encourage prosecutors to overcharge defendants? A defendant who negotiates a plea often does so under circumstances of enormous pressure. The process of reaching a bargain, in which each side moves from his or her original position toward the middle, encourages prosecutors to start by overcharging defendants with more crimes than the case truly merits.72 So a case might, from its very beginning, be distorted by the incentives created by the plea-bargaining process. When defendants are facing a long list of charges, they might feel compelled to plead guilty to one crime in order to avoid a long prison term. The third question is this: Do plea bargains force innocent defendants into pleading guilty and allow guilty defendants to receive lenient sentences? Anyone, especially if overcharged by the prosecutor, might feel that he or she cannot win,
- 929. regardless of the actual merits of the case. In order to avoid the massive risk of a jury trial, an innocent defendant might be compelled to plead guilty.73 Not only can plea bargaining unfairly punish the innocent; it also can fail to adequately punish the guilty.74 A guilty defendant, having little to lose in forcing the government into risking an acquittal or a hung jury at a costly trial, can bargain for a sentence “discount.” The fourth question is this: Does a plea bargain make a case like a commodity rather than an individual matter of justice? One of the selling points of plea bargaining is that it enables the courts to process many more cases with less time and resources. The speed at which the lawyers can resolve cases makes plea bargaining feel like an assembly line. As the lawyers bargain dozens of cases a day over the years, the very repetition of cases leads to lumping defendants
- 930. into groups, each having a case “worth” a certain “value” in terms of time in prison or jail. This process drains each defendant of his or her own individuality. A lawyer who too quickly categorizes a case based on experience in earlier bargains is in danger of missing important questions in the case. The fifth question is this: Do plea bargains create a public perception of backroom deals rather than justice? Justice Scalia, in discussing plea bargaining, compared a court to a “casino-operator,”75 and the Court itself has called plea bargaining “horse trading.”76 The game-playing atmosphere of plea bargaining is furthered by the way it is carried out. Rather than having all matters decided in open court, as would occur at a public trial, the lawyers and judge emerge from a closed-door meeting in chambers to announce a guilty plea. Both the manner and result of such bargaining harms the public’s trust.
- 931. 631 632 CON: Plea Bargaining Is Necessary and Should Be Retained In arguing that plea bargaining is necessary and should be retained, there are four issues to consider. First, plea bargaining is a necessity because it enables the courts to handle huge and continually increasing caseloads. The criminal justice system is so overwhelmed with cases that plea bargaining is a necessity.77 Noting that “ninety- seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas,”78 the Supreme Court has bluntly concluded that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”79 Also, plea bargaining removes the
- 932. straightforward cases from the system. By focusing resources where they are genuinely needed, plea bargaining actually promotes justice in the real world. Second, plea bargaining allows victims and witnesses the chance to avoid the trauma, expense, and inconvenience of going to trial. Victims of crime sometimes feel they are victimized twice—once at the time of the crime and again at the time of trial, where they are forced to confront the criminal and undergo a defense lawyer’s hostile cross- examination. If the parties agree that the defendant is guilty, no practical reason exists to force victims to undergo the ordeal of going to trial.80 Third, plea bargaining enables defendants to show remorse and embark on rehabilitation as soon as possible. When a defendant stands up and takes responsibility for the crime, the offender shows that he or she is ready to change his or
- 933. her criminal ways. A plea allows the sentence to be carried out quickly, improving the chance of rehabilitation.81 Fourth, plea bargaining provides certainty and finality to the criminal justice system. Even when a jury convicts a defendant at trial, matters can be dragged out by numerous appeals, and all the while the defendant may be out of prison awaiting a final ruling. Although pleas resulting from bargains can lead to appeals, cases ending due to plea bargains usually reach a conclusion more quickly and therefore have greater “finality.”82 633 Summary Is plea bargaining good, bad, or simply unavoidable? Even justices of the highest court in the land cannot agree on the answer to this question. Justice Scalia called plea bargaining “a somewhat embarrassing adjunct to our criminal justice
- 934. system.”83 Chief Justice Burger urged that plea bargaining was “an essential component of the administration of justice” that should be “encouraged.”84 Perhaps an answer is best reached by considering plea bargaining’s impact on the goals of the criminal justice system and the values that we give to each of these goals. 634 Discussion Questions 1. Given the arguments presented, should the use of plea bargains be eliminated, reduced, or retained? 2. What are the consequences of eliminating or reducing the use of plea bargains in our criminal justice system? 3. How does the use of plea bargains support the goal of punishing offenders for their crimes? 4. How does the use of plea bargains challenge the deterrent
- 935. value of punishment? 5. How might you reform the system to reduce our reliance on plea bargains? 635 Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Allocution 210 Amicus curiae 198 Appeals by permission 202 Appeals by right 202 Appellate jurisdiction 195 Bail 209 Brief 198 Challenge for cause 207 Circuit courts 196 Circumstantial evidence 211
- 936. Closing argument 211 Concurrent jurisdiction 194 Concurring opinion 198 Direct evidence 211 Dissenting opinion 198 Dual court system 195 En banc 196 Exculpatory evidence 204 General jurisdiction 195 Geographical jurisdiction 194 Grand jury 205 Hung jury 208 Indictment 206 Initial appearance 209 Jury instructions 211 Jury nullification 211 Limited jurisdiction 195 Majority opinion 198 636 http://edge.sagepub.com/mallicoatccj2e Missouri plan 201
- 937. Mitigating evidence 205 Nolo contendere 210 Opening statements 211 Oral arguments 198 Original jurisdiction 195 Peremptory challenge 207 Plea bargain 210 Preliminary hearing 209 Preventative detention 210 Prosecutorial misconduct 204 Released on own recognizance 209 Subject matter jurisdiction 195 Trial court 195 Trial jury 206 U.S. courts of appeals 196 U.S. district courts 196 U.S. magistrate courts 195 U.S. Supreme Court 197 Verdict 208 Voir dire 207 Writ of certiorari 198 637
- 938. Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. What are the key differences between criminal and civil courts? 2. What is jurisdiction? What are the differences between the five different types of jurisdiction discussed in this chapter? 3. Describe the similarities and differences between the federal court system and the state court system where you live. 4. What are the different methods for selecting judges? What’s problematic about these selection processes? 5. Why would someone enter a nolo contendre plea? 6. Describe the three key stages of a criminal court case. 638
- 939. http://edge.sagepub.com/mallicoatccj2e Learning Activities 1. Visit a local courtroom and observe a hearing. What do you notice about how a courtroom functions? 2. Identify a U.S. Supreme Court decision related to a criminal justice issue from the most recent term. How did the Court reach its decision? What implications does this decision have for the system? 3. Explore how jury members are selected for your county. How would your life be affected if you were selected to sit on a jury? 639 Suggested Websites
- 940. American Bar Association: http://www.americanbar.org/aba.html National Center for State Courts: http://www.judicialselection.us United States Courts: http://www.uscourts.gov U.S. Supreme Court: http://www.supremecourt.gov 640 http://www.americanbar.org/aba.html http://www.judicialselection.us http://www.uscourts.gov http://www.supremecourt.gov Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access
- 941. practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 9.1 Dan Cordova: Supreme Court Librarian Criminal Justice in Practice 9.1 Judge Sentencing Guidelines SAGE News Clip 9.1 Oregon Senators Slam Supreme Court Nominee 641 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e 10 Punishment and Sentencing © iStock.com/mediaphotos 642
- 942. Learning Objectives Discuss the different sentencing philosophies Compare the differences between indeterminate, determinate, and mandatory sentencing Explain how federal sentencing guidelines are used Identify the current methods of execution and discuss legal challenges to capital punishment Dr. Larry Nassar was an associate professor of osteopathic medicine at Michigan State University (MSU) from 1997 to 2016. Throughout these two decades, he was also the team physician for the MSU gymnastics and women’s crew teams and also served as the physician for USA Gymnastics for four Olympics. These positions gave Nassar access to hundreds of women, many of whom he abused throughout his career.
- 943. In 1997, a 16-year-old gymnast named Larissa Boyce who was attending a youth gymnastics program at MSU raised concerns about Nassar’s treatment of her and another student. Her complaint is the earliest known report of Nassar’s sexual assaults, though subsequent reports note that he was victimizing young girls as early as 1992. Unfortunately, Boyce’s statements were discounted as it was believed she must have misunderstood what had happened. Over the next two decades, additional victims came forward to report abuse by Nassar. Unfortunately, their claims were also ignored by officials. Victims were told that they should trust the doctor, even though he was performing intravaginal treatments for hamstring and other unrelated injuries. Coaches and parents often failed to report these cases to the authorities, and when such reports were made, no charges were ever referred to the prosecutor’s office.
- 944. At the same time that Nassar was abusing young girls and women at MSU, he was serving as the official physician for USA Gymnastics. Rather than contact law enforcement, USA Gymnastics chose to conduct its own internal investigation. After five weeks, USA Gymnastics contacted the FBI and fired Nassar, but it did not inform MSU of why Nassar was removed. Nassar continued to abuse additional women until September 2016.1 In July 2017, Nassar pled guilty in federal court to charges related to the possession of child pornography and the destruction of evidence and was sentenced to 60 years in prison.2 Michigan prosecutors also filed three charges of first-degree criminal sexual conduct with a child younger than 13. Nassar agreed to plead guilty to these crimes, and 156 women spoke out during his sentencing hearing. To date, it is believed that Nassar abused 265 women over a 25- year period. He was sentenced in state court to 40 to 175 years
- 945. in prison for these crimes in addition to his federal sentence for possession of child pornography.3 Since he was sentenced in federal court first, Nassar will serve his sentence with the Federal Bureau of Prisons rather than in a state prison in Michigan. In this chapter, you will learn about the types of sentencing practices that are used by the criminal justice system. The chapter begins with a discussion about the various philosophies that guide sentencing practices. It then looks at the different types of sentences. The chapter concludes with two Current Controversy debates related to the criminal court system. The first, by Kimberly Dodson, asks whether habitual sentencing laws deter offenders. The second, by Connor Bell and Gavin Lee, debates whether we should abolish the death penalty. 643
- 946. 644 Correctional Philosophies What is the purpose of punishment? Is it to prevent someone from doing the same thing again? Or do we punish someone to send a message that certain behaviors will not be tolerated? There are five different philosophies that have helped guide our sentencing and correctional practices, and each of these philosophies has been popular at different points throughout history. In order to understand these different practices and how they are used by the criminal justice system, we must first understand the foundations of these practices. 645 Deterrence
- 947. The theory of deterrence suggests that offenders will be discouraged from committing crime if they fear the punishments that are associated with these acts. There are two different ways in which deterrence theory works. First, there is the concept of specific deterrence. Specific deterrence looks at how individual behaviors are curbed as a result of Cesare Beccaria’s pain– pleasure principle. If the individual decides that the threat of punishment (such as a prison sentence) is undesirable, then specific deterrence suggests that that particular individual will make the decision not to engage in the criminal behavior. Specific deterrence is limited to a particular individual. In contrast, the theory of general deterrence suggests that if people fear the punishment that others receive, they will decide not to engage in similar acts as they do not want to risk that potential punishment for themselves.4 Specific deterrence: Looks at how an individual may avoid criminal behavior if the potential punishment is viewed as undesirable.
- 948. General deterrence: Suggests that if people fear the punishment that others receive, they will decide not to engage in similar acts in order to avoid that punishment. In order for deterrence theory to be effective, a punishment must possess three characteristics. The first of these characteristics is certainty. This means that offenders need to be reasonably aware that if they engage in a criminal act, they will be apprehended and punished. Consider that parents generally teach their children not to touch a sharp object (such as a knife) or else they will likely get hurt. This works because the punishment (getting hurt) is relatively certain. When it comes to crime and punishment, this level of certainty doesn’t exist because crimes occur every day that are not reported to the police, and offenders are not punished for these acts. Second, the punishment must be severe. If the punishment is not harsh enough, offenders may not be deterred from engaging in the criminal behavior. The severity of a punishment can limit the certainty of that punishment—as the
- 949. severity of a punishment increases, the likelihood of that punishment being implemented decreases.5 Finally, the potential punishment must be swift. This is also referred to as the celerity of punishment. Celerity of punishment references the amount of time between the criminal act and the punishment for said act. If the punishment does not occur in a timely fashion, the deterrent effect is reduced. Therefore, the most effective punishments, from the perspective of deterrence theory, are those that are certain, severe, and swift. The problem with deterrence is 646 that punishments rarely operate in this manner. For example, most people do not engage in crime with the expectation that they will be caught, which negates the certainty principle. And what is considered a severe punishment is a subjective concept—while some offenders
- 950. might feel that six months in jail is an extreme punishment, others may feel that it’s not a big deal. Finally, in an era of crowded court systems and legal challenges, how often are punishments delayed? Certainty: The notion that individuals need to be reasonably aware that if they engage in a criminal act, they will be apprehended and punished. Severity: The notion that punishment must be harsh enough to deter people from criminal behavior. Celerity: The notion that potential punishment must occur in a timely fashion. 647 Rehabilitation Many of the rehabilitative ideals that are reflected in the modern-day criminal justice system
- 951. began during the early twentieth century. Prior to this, rehabilitative efforts were tied to religious reforms.6 It was from this focus that we saw the development of practices such as probation, parole, and the juvenile justice system.7 The concept of rehabilitation focuses on reforming criminal behavior so that the offender does not need or want to engage in future acts of crime. Rehabilitation was used within the prison walls not only as a way to treat prisoners and help transform their behaviors but also to assess whether offenders were prepared to return to the community. Rehabilitation: Focuses on reforming criminal behavior so that the offender does not need or want to engage in future acts of crime. During the 1970s, rehabilitation became less popular as the result of a belief that “nothing works.” In his 1974 article, “What Works? Questions and Answers About Prison Reform,”
- 952. Martinson reviewed more than 200 programs, from counseling to education, and noted rather dismal results.8 However, he noted that these results might reflect the efficacy of the specific programs.9 Alas, the stone was cast, and Martinson’s research became part of the quest to reject rehabilitation in favor of a tougher approach.10 In political circles, support for rehabilitative programming became the equivalent of being soft on crime. Consider the 1988 presidential election in which Michael Dukakis was heavily criticized by the Republican candidate, George H. W. Bush, for Dukakis’s support of weekend furlough releases for convicted offenders. The debate centered on the case of Willie Horton, who was a convicted murderer. Even though he had received a sentence of life without the possibility of parole (LWOP) for his crime, he was still permitted to participate in the program. Unfortunately, on one occasion, Horton never returned from his furlough. Instead, he traveled to Maryland,
- 953. where he robbed a local couple, physically assaulted the male, and raped the woman.11 As governor, Dukakis was held politically responsible for Horton’s release (which had led to these crimes) and was declared to be soft on crime, a position that ultimately contributed to his loss in the election.12 Today, we have evidence that programs can work when they are targeted toward the needs of the offender (compared with a general approach), are provided with the financial support 648 needed to offer them in a manageable way, and have staff that are adequately trained and supportive of the rehabilitative mission.13 When implemented with these ideals in mind, rehabilitative efforts that focus on changing the way individuals
- 954. think about crime and criminal behavior can reduce recidivism.14 In some states, inmates have the opportunity to work by training service dogs for people with visual impairment. Such programs can provide a transformative experience for the inmates, who learn about dealing with anger and developing patience, and provide opportunities for empathy and responsibility. Should these types of programs be available to inmates? © REUTERS/Brian Snyder 649 Incapacitation Incapacitation refers to the practice of removing offenders from society so that they will not engage in criminal behaviors for a certain period of time. Generally speaking, we think of the
- 955. prison as a way to incapacitate offenders. However, technology has made it possible to utilize some of the features of incapacitation in other settings. This is particularly useful given the current issue of overcrowding in prisons. For example, few celebrity cases, such as the one you learned about at the beginning of this chapter, lead to time behind bars. The concept of incapacitation has been used for low-level offenders as well as serious offenders. Sentencing practices such as mandatory minimums and three-strikes laws are examples of how incapacitation is used to ensure public safety. Incapacitation: Refers to the practice of removing offenders from society so that they will not engage in criminal behaviors for a certain period of time. Today, most sentencing practices combine the use of incapacitation with other theories of punishment, such as deterrence and retribution, which can make it difficult to determine whether incapacitation is an effective tool in preventing crime. For low-level offenders,
- 956. research indicates that the benefits of increasing public safety through the use of incapacitation are often superseded by the challenges that come with the “ex-convict” label in society, prompting some to question whether incapacitation does more harm than good in the long run for certain groups of offenders.15 Indeed, studies find that prison may actually increase the likelihood of future offending.16 Even in the case of parole violators, research demonstrates that community-based sanctions are more effective in preventing crime compared with the use of jail time as a punishment.17 650 Retribution Retribution is a punishment philosophy that reflects the idea that offenders should be
- 957. punished for their bad acts purely on the basis that they violated the laws of society. Retribution does not take into consideration whether the punishment will lead to future change in the offender’s behavior (like deterrence or rehabilitation philosophies do). The theory of retribution embodies the concept of lex talionis from ancient law and is even referenced in biblical texts with the discussion of punishment as an eye for an eye. Retribution is a way for offenders to pay for the harms that they have perpetuated against society. Under this philosophy, there is no justice if the offender is not punished under the law. Retribution: A punishment philosophy that reflects that offenders should be punished for their bad acts purely on the basis that they violated the laws of society. Electronic monitoring is often used as a way to track offenders and monitor their whereabouts while being supervised in the community. How does this work to incapacitate offenders?
- 958. 651 © Can Stock Photo Inc./Stocksolutions 652 Careers in Criminal Justice So You Want to Be a Drug and Alcohol Counselor? As a drug and alcohol counselor, you will work with individuals who are struggling with addiction. Careers in this field are tied to many different academic backgrounds, including criminal justice, social work, human services, and psychology. Some states require a bachelor’s degree while others allow for workers to qualify for these careers with a certificate program in substance abuse counseling. Such careers also may require you to pass
- 959. an exam in order to qualify with the state department of health. People in this field work in many different environments. For example, you might work as part of a program providing counseling to inmates who have been incarcerated as a result of their addiction or whose crimes are related to their substance abuse. You might work in a residential treatment or outpatient treatment center in the community. You might also work providing educational outreach for the purposes of prevention or intervention. Within the context of your job, you will deal with emotional environments as people navigate their sobriety. In many cases, the damage caused by addiction is not limited to just the individual but can span across their family members and friends. Like other human service fields, this work can be challenging because people have to want to change their behavior. Not all who seek treatment want or are
- 960. willing to change their behaviors that create the environment for addiction. In these cases, it can be challenging for workers to identify successful outcomes with their work, and it can lead to burnout and questions about job satisfaction. This field is considered a growth industry, particularly as more people find themselves covered by health insurance under the Affordable Care Act. This policy requires that plans provide coverage for mental health programs and may include support for addiction services. In addition, many states are looking at reducing their prison populations and have directed more offenders to community-based services, which may include treatment for substance abuse. The use of retribution draws on the concept of just deserts. The theory of just deserts argues that a punishment for a crime should be proportional or equal to
- 961. the crime itself. Under this perspective, a serious crime would result in a serious punishment and a minor crime would result in a low-level punishment. While retribution often invokes a discussion about vengeance or revenge, this is not an appropriate response under retributive theory. However, the use of retribution can be a way to express the emotional or value-centered beliefs of the public on issues such as the death penalty or terrorism.18 Just deserts: Argues that a punishment for a crime should be proportional or equal to the crime itself. Unlike other philosophies, retribution is not about improving public safety or other utilitarian functions. Retribution is about looking back at the act and enacting a punishment for that violation. This key feature is often confused with many of the policies developed under the 653
- 962. tough-on-crime model that dominated the late twentieth century in the United States. For example, mandatory minimum sentences were developed during the modern retributive era, which began in the 1970s and continues today. Mandatory minimum sentencing became very popular during the war on drugs with the passage of the Anti – Drug Abuse Act of 1986. One of the more notable features of the law was that it mandated a sentence of five years for the possession of 500 grams of powder cocaine but gave the same sentence for only five grams of crack cocaine. Although this 100:1 sentencing disparity was reduced to an 18:1 ratio with the passage of the Fair Sentencing Act in 2010, the war on drugs has still made a significant contribution to the rise in prison populations nationwide. 654 Restoration
- 963. The theory of restoration is the only punishment philosophy that places the victim at the core of all decision making. This feature is very different compared with other theories, which view crime as a violation against the state. The theory of restoration is best reflected in restorative justice practices, which you learned about in Chapter 5. While restoration has often been positioned in opposition to a retributive model, some scholars suggest that the two may actually have some common themes since both strive for justice. In particular, it is important to note that a restorative philosophy does not mean that offenders are not punished for their crimes. Instead, the decision making on how the crime should be punished involves a joint process between the victim, the offender, and the community. Justice becomes an opportunity for healing. Research demonstrates that victims who participate in restorative justice programs generally have higher rates of satisfaction with the process compared with victims whose cases are handled through traditional criminal courts.19 Evidence also suggests
- 964. that offenders whose cases are handled in this fashion are less likely to recidivate, making restorative justice a cost-effective model in reducing future offending.20 Restoration: The only punishment philosophy that places the victim at the core of all decision making. Each of these punishment philosophies impacts the different types of sentences that are handed down by the courts. For example, under a model of deterrence or incapacitation, sentences may be more likely to feature time in a jail or a prison. In contrast, sentences handed down under a model of rehabilitation will be more likely to emphasize counseling and treatment. While these theories of punishment can influence how a judge will make a decision, these decisions are somewhat limited by the laws that are created by the legislature. In the next section, you will learn about some of the different sentencing structures that have been adopted by various states and the federal government.
- 965. 655 Determinate Sentencing How does a judge decide on a sentence for an offender? In some cases, the law dictates what type of punishment should be handed down for a specific crime. Many jurisdictions have passed determinate sentencing structures. Determinate sentencing is when the offender is sentenced to a specific term. While the law may allow for an offender to be released early due to good time credits, these releases are incorporated into the law. This means that there is no opportunity for an early release based on the behavior of the offender, also known as parole. You will learn more about parole in Chapter 12. Determinate sentencing: A sentencing structure in which the offender is sentenced to a specific term. Parole: Early release based on the behavior of the offender. Provides supervision and a system of accountability
- 966. for offenders for a period of time once they are released from prison. Throughout most of history, judges have had discretion in handing out sentences to offenders. In most cases, judges were free to impose just about any type of sentence, from probation to incarceration. Essentially, the only guidance for decision making came from the judge’s own value system and beliefs in justice. This created a process whereby there was no consistency in sentencing, and offenders received dramatically different sentences for the same offenses—the outcome depended on which judge heard their case. While this practice allowed for individualized justice based on the needs of offenders and their potential for rehabilitation, it also left the door open for the potential of bias based on the age, race, ethnicity, and gender of the offender. 656
- 967. Sentencing Guidelines During the 1970s, the faith in rehabilitation as an effective correctional approach began to wane and was replaced with the theory of just deserts. In an effort to reform sentencing practices and reduce the levels of discretion within the judiciary, many jurisdictions developed sentencing guidelines so offenders would receive similar sentences for similar crimes. At the heart of this campaign was an attempt to regulate sentencing practices and eliminate racial, gender, and class-based discrimination in courts. As part of the Sentencing Reform Act of 1984, the U.S. Sentencing Commission was tasked with crafting sentencing guidelines at the federal level. Several states have also adopted sentencing guidelines as part of their determinate sentencing structure. One of the key features of this act was the abolition of parole boards at the federal level. Since their implementation in November 1987, these federal guidelines have been criticized
- 968. for being too rigid and unnecessarily harsh. In many cases, these criticisms reflect a growing concern that judges are now unable to consider the unique circumstances of the crime or characteristics of the offender. Table 10.1 presents the federal sentencing guidelines. 657 Spotlight Lynching and Mass Incarceration Between 1877 and 1950, more than 4,000 documented cases of lynching occurred throughout the United States.a These incidents involved the murder of Black men, women, and children at the hands of Whites without the benefit of an investigation, criminal trial, or sentencing hearing. Their “crimes” were fueled by rumor, innuendo, and fear. Instead of any form of due process, the victims were subjected to significant acts of torture, including
- 969. being shot, stabbed, burned, dismembered, and hung. Often these acts occurred in public with dozens or even hundreds of individuals in attendance. Few of these perpetrators were ever held accountable for their acts of murder.b Scholars have argued that these lynchings throughout the nineteenth and twentieth centuries were a systematic attempt to maintain racial segregation and a dominance of White culture over Black communities following the end of the Civil War and the abolishment of slavery. Many of these cases involved no accusations of a crime; Blacks were killed for simply failing to abide by the social norms. In other instances, individuals were executed for demanding fair and equitable rights.c Such biased beliefs not only impacted these communities of the past but also influenced the development of our modern-day criminal
- 970. justice system and its policies and practices. Director Bryan Stevenson of the Equal Justice Initiative stated that “the geographic, political, economic, and social consequences of decades of terror lynchings can still be seen in many communities today and the damage created by lynching needs to be confronted and discussed. Only then can we meaningfully address the contemporary problems that are lynching’s legacy.”d One of these contemporary problems has been the use of mass incarceration and, in particular, the disproportionate use of punishments toward youth and adults of color. Examples of such practices include the following: Prior to the 2009 U.S. Supreme Court ruling in Graham v. Florida, which held that sentencing a juvenile to life without the possibility of parole for crimes other than
- 971. homicide was unconstitutional, research noted that African American and Hispanic/Latino children were more likely to be sentenced to LWOP sentences for crimes committed when they were 13 or 14, compared with White youth.e Based on current trends, estimates indicate that one in three African American males and one in six Hispanic Latino males will go to prison during their lifetime, compared with one in seventeen white males.f Following their incarceration, the majority of these individuals will be disenfranchised and unable to vote, which means a significant proportion of communiti es of color will have no voice in the political process.g A review of the use of modern-day executions notes that 90% of these executions were carried out in
- 972. jurisdictions that once supported slavery, either in law or in practice.h As these are just a few examples of these types of issues, taken individually their relationship to one another may be unclear. But when you start to put them all together, scholars such as Michelle Alexander have suggested that mass incarceration and its related practices share a similar philosophy as slavery and Jim Crow laws and represent a form of racial control.i 658 In 2018, the Equal Justice Initiative opened the National Memorial for Peace and Justice and the Legacy Museum in Montgomery, Alabama, to honor the lives of those lost to lynching and to acknowledge our country’s history of racial injustice in the hopes of healing for the future.j
- 973. A sculpture commemorating the slave trade greets visitors at the entrance of the National Memorial for Peace and Justice in Montgomery, Alabama. The memorial is dedicated to the legacy of enslaved black people and those terrorized by lynching and Jim Crow segregation in America. Bob Miller/Stringer/Getty Images News/Getty Images 659 Critical Thinking Questions 1. What additional examples can you think of that suggest that mass incarceration is a form of racial control? 2. How does revisiting the history of practices such as slavery, lynching, and Jim Crow laws
- 974. benefit the criminal justice system? Table 10.1 660 Source: United States Sentencing Commission, “Sentencing Table,” 2015, http://www.ussc.gov/sites/default/files/pdf/guidelines- manual/2015/Sentencing_Table.pdf. Each federal crime is classified on the basis of its severity level and is ranked on a scale of 1 to 43. Depending on the specific circumstances of the crime and the defendant’s role in the offense, this value may be increased. Examples of these enhancements include characteristics about the victim (such as whether the victim was a government employee or a member of law 661
- 975. http://www.ussc.gov/sites/default/files/pdf/guidelines- manual/2015/Sentencing_Table.pdf enforcement), the crime (such as a hate crime or serious human rights offense), and the offender (mitigating factors and acceptance of responsibility by the offender). These categories are reflected along the left side of the table. The number of prior convictions is organized into six categories and is listed along the top of the table. To determine the sentencing range (in terms of months), you would find the intersection of the criminal history category and the offense classification plus any enhancements. For example, the crime of aggravated assault carries a base level of 14. If a firearm was discharged during the crime, the score increases by five levels. If the victim sustained bodily injury as a result of the crime, the score increases by an additional three levels. But if the offender accepts responsibility for the crime, the score decreases by two levels. As a result, the sentencing of this act is rated at a value of 20. If the offender has no prior history, the sentencing
- 976. range for this offense is 33 to 41 months. If, however, the offender has five prior offenses, the sentencing range increases to 41 to 51 months. Opposition to Sentencing Guidelines In 2004, the U.S. Supreme Court heard the case of Blakely v. Washington.21 The Court held that while the state sentencing guidelines used by Washington State were intended to serve as a mandatory sentencing scheme, they violated a defendant’s Sixth Amendment right to a trial by jury. Blakely states that only those facts that are either admitted by the defendant or proved beyond a reasonable doubt may be used to determine an appropriate sentence for the offender. The case of United States v. Booker applied this ruling to the federal sentencing guidelines.22 Even though the guidelines now serve as an advisory practice rather than a mandatory one, research by the U.S. Sentencing Commission indicates that the majority of
- 977. sentences fall within the ranges specified by the guidelines.23 Others note that sentence severity has been reduced dramatically since Booker.24 However, minority offenders continue to receive slightly higher sentences than White offenders, as shown in Figure 10.1.25 In the case of female offenders, research notes that sentencing guidelines have accounted for more severe incarceration sentences for women in some jurisdictions. Women who were previously sentenced to community-based programs are now sent to prison, and the length of time that they spend in custody has increased as well. Meanwhile, women in jurisdictions that did not adopt sentencing guidelines have benefited from chivalrous treatment by the court and are less likely to be incarcerated. When women are sent to prison, they receive shorter sentences compared with male offenders. However, this benefit is selective as it is typically extended 662
- 978. only to White women and not to women of color.26 Figure 10.1 Race of Prisoners Serving LWOP for Nonviolent Offenses, by Jurisdiction Source: American Civil Liberties Union, Racial Disparities in Sentencing, October 27, 2014, https://www.aclu.org/sites/default/files/assets/141027_iachr_rac ial_disparities_aclu_submission_0.pdf The graph is titled, Race of Prisoners Serving LWOP for Nonviolent Offenses, by Jurisdiction. Percentage if inmates is plotted on the vertical axis on a scale of 0 to 100%, in increments of 10%. Jurisdiction is plotted on the horizontal axis. The data can be shown in the table below. All values are approximate. 663 https://www.aclu.org/sites/default/files/assets/141027_iachr_rac
- 979. ial_disparities_aclu_submission_0.pdf Indeterminate Sentencing In comparison with determinate sentencing structures, indeterminate sentencing practices generally set a minimum sentence length. The maximum sentence is reflected in the laws set forth by the legislature, though a judge may set a maximum sentence that is lower than the legal provision. Indeterminate sentencing was first featured during the progressive era of the late 1800s. It was during this time that new innovations in corrections such as probation and parole first appeared. Indeterminate sentencing structures fit within the rehabilitative focus of this time period. The theory of indeterminate sentencing is that offenders are released based not only on their time served but also on their efforts toward reforming their criminal selves. As a result, the length of time that an offender serves is determined by a parole board, which considers factors such as the types of programming that an offender participated in and his or
- 980. her institutional behavior and plan for reintegration in determining whether someone should be released. While the 1970s saw a shift toward determinate and mandatory sentencing structures, many states still retain some form of indeterminate sentencing and the use of parole boards today. Indeterminate sentencing: A sentencing structure in which the offender is sentenced to a minimum and maximum sentencing range. The actual time served is determined by a parole board, which evaluates release based on rehabilitation and behavior while in prison. 664 Parole board hearings provide the opportunity for officials to assess the inmate’s rehabilitative efforts and evaluate whether he or she should be released from prison. What factors does a parole board consider when determining if an
- 981. inmate should be released? © Rick Cruz/PDN 665 Mandatory Sentences While determinate sentences were designed to limit the discretion of judges, mandatory sentences have effectively eliminated judicial discretion from the criminal justice system. Under a mandatory sentencing scheme, the law prescribes the specific punishments. Earlier in this chapter, you learned about how the Anti–Drug Abuse Act of 1986 created mandatory minimum sentences for the possession of certain illicit drugs. Congress has also created mandatory sentencing practices for certain gun-related crimes, sexually based offenses (including pornography), and white-collar crimes.27 However, we have seen several other
- 982. examples of mandatory sentences, some of which have been declared unconstitutional by the courts. For example, the U.S. Supreme Court held that mandatory death sentences in cases of first-degree murder were unconstitutional because they did not allow for a jury to weigh in on the aggravating and mitigating factors when making a sentence recommendation (Woodson v. North Carolina).28 Mandatory sentencing: A type of sentencing structure where the law, not the judge, determines the length of punishment for specific offenses. 666 Around the World Criminal Sentencing in China Unlike the United States, the criminal justice system in China is a relatively new phenomenon. As a result, it has
- 983. embarked on several revisions and reforms over the past four decades. In some ways, the features of China’s criminal justice system are similar to those in the United States, but in others, there are marked differences between the two. While several jurisdictions in the United States are shifting the way they look at some drug offenses, nonviolent drug-related crimes are ranked as severe crimes in China (along with acts of violence such as murder and robbery). Research on drug trafficking in China demonstrates that judges are most likely to make their sentencing decisions in these cases based on the amount of drugs involved. Since many smuggling cases involve large quantities of drugs such as heroin, the sentences are quite significant and most offenders are sentenced to more than 10 years in prison, a life sentence, or even death.
- 984. However, Chinese law allows for offenders to express remorse for their crimes, which, in turn, can significantly reduce the length of the sentence that an offender will receive, even for these serious crimes.a The country has also relied less on the death penalty in recent years. During the “strike hard” era of punishment, China was a consistent user of the death penalty and even carried out more than 1,000 executions in a month.b While China still leads the world in the number of executions, some scholars have suggested that China may begin to shift its thinking on the issue as other Southeast Asian countries abolish the death penalty in law or in practice.c In addition to punishments by the judiciary for criminal offenses, China allows for individuals to be sent to a labor camp for up to three years. These decisions are based on administrative law and do not allow for judicial
- 985. interventions. This means that an individual can be sent away for a “re-education through labor” sentence (referred to as laodong jiaoyang) without any criminal charges filed or being processed by the criminal court. This is particularly interesting in that many of the students of such camps are sent there as a result of their involveme nt in minor crimes like vandalism, drug use, and theft. The labor camp is designed to rehabilitate first-time offenders, and following the completion of their service, they do not have a criminal record.d The current sentencing practices in China have been pushed by a desire to balance leniency and severity. In one high-profile incident, an offender offered a victim financial restitution in exchange for a reduced sentence.e While some suggested that this reflected a restorative justice model, others believed that the case was so minor that it would never have been considered for prosecution under
- 986. the new reforms.f Others still questioned whether preferential treatment was given to this offender because of his financial status.g Indeed, white-collar offenders who have privileged status (such as a government official) are less likely to receive a sentence of incarceration than are offenders of low social status.h Given that the modern judicial system in China is a relatively new one, it is likely the country will continue to experience efforts to reform and revise sentencing practices. 667 668 Critical Thinking Questions 1. Given that China’s criminal justice system is relatively new, what can they learn from the
- 987. experiences of the American criminal justice system? 2. What are some of the ways in which the Chinese system of justice is similar to that of the United States? In what ways does it differ? 669 Opposition to Mandatory Sentences One of the major criticisms of mandatory sentencing practices is that they prevent the judge from considering the unique characteristics of the offense or the offender in handing down a sentence. In effect, the power of sentencing is shifted to the prosecutor, who determines whether a charge that carries a mandatory sentence will be filed against an offender. Mandatory sentencing has been tied to the dramatic increase in prison populations throughout the late twentieth and early twenty-first centuries.
- 988. As a result, many states have begun to repeal their mandatory sentencing laws (Figure 10.2). South Carolina and Pennsylvania have eliminated their use of mandatory sentences for school zone drug cases. Others, such as Ohio and California, have replaced mandatory prison sentences for first-time drug offenders with drug treatment programming.29 The U.S. Supreme Court recently held that sentencing enhancements for violent felonies under the Armed Career Criminals Act are unconstitutional on the grounds that defendants were denied their right to due process and that the law was vague in its application (Johnson v. United States).30 Mandatory sentencing laws have also been used to deal with habitual offenders. You’ll learn about these types of sentences in Current Controversy 10.1 at the conclusion of this chapter. 670
- 989. Figure 10.2 State Sentencing and Correction Trends Source: Vera Institute of Justice, Recalibrating Justice: A Review of 2013 State Sentencing and Corrections Trends, July 2014, https://www.vera.org/publications/state-sentencing- and-corrections-trends-2013. The figure is titled, State Sentencing and Correction Trends. The data are given in the table below. No data: Massachusetts, New York, Pennsylvania, Ohio, Delaware, Kentucky, Virginia, Tennessee, South Carolina, Florida, Wisconsin, Iowa, Wyoming, New Mexico, and Alaska. 671 https://www.vera.org/publications/state-sentencing-and- corrections-trends-2013. Capital Punishment
- 990. The death penalty has been referred to as the ultimate punishment, reserved for the worst of the worst offenders. In Current Controversy 10.2 at the end of this chapter, you’ll be faced with the question of whether or not we should abolish the death penalty. Currently, there are 30 states (as well as the federal government and the military) that allow for the use of the death penalty. Figure 10.3 shows states that currently allow and prohibit the use of capital punishment. Figure 10.3 Implementation of Capital Punishment by State Source: Death Penalty Information Center, “States With and Without the Death Penalty,” November 9, 2016, https://deathpenaltyinfo.org/states-and-without-death- penalty. Map showing the methods of implementing capital punishment in different states. The data are shown in the list 672
- 991. https://deathpenaltyinfo.org/states-and-without-death-penalty below. No death penalty: Maine, Vermont, Massachusetts, Rhode Island, New Jersey, Maryland, D. C. and federal conviction, West Virginia, Puerto Rico, Virgin Islands, Michigan, Wisconsin, Illinois, Minnesota, Iowa, North Dakota, Alaska, Hawaii, Guam, and Northern Mariana Islands. Lethal injection only: New York, Connecticut, Pennsylvania, North Carolina, Georgia, Ohio, Indiana, Mississippi, Louisiana, Texas, New Mexico, Kansas, Colorado, Nebraska, South Dakota, Montana, Idaho, Oregon, and Nevada. Lethal injection and hanging: New Hampshire, Delaware, and Washington.
- 992. Lethal injection and electrocution: Virginia, Kentucky, Tennessee, Arkansas, Alabama, Florida, and South Carolina. Lethal injection and lethal gas: Missouri, Wyoming, Arizona, and California. Lethal injection and firing squad: Utah. Lethal injection, electrocution, lethal gas and firing squad: Oklahoma. The first use of the death penalty in the United States involved the execution of Captain George Kendall in 1608 for acts of treason against the government. Since then, an estimated 16,000 executions have taken place over the past four centuries.31 Throughout history, our system has been plagued with sentencing practices that were often disproportionate and arbitrary. As a result, the U.S. Supreme Court determined in Furman v. Georgia (1972) that the administration of the death penalty at that time constituted
- 993. cruel and unusual punishment and violated the Eighth Amendment of the Constitution. As a result, 629 death sentences in 32 states were overturned.32 673 California’s new death chamber at San Quentin Prison has sat unused since its completion in 2010. California has the largest death row in the nation but has executed only 13 individuals since the death penalty was reinstated. Legal challenges have prevented the state from carrying out an execution in the past decade. Are you for or against the death penalty? © AP Photo/Eric Risberg, File 674
- 994. Legal Challenges Following the Furman decision, several states developed new death penalty statutes to address these constitutional violations and bring the death penalty back to life. In an attempt to resolve the issue of arbitrary administration, North Carolina and Louisiana designed laws requiring mandatory death sentences for capital crimes. These states posited that such laws would eliminate the unregulated discretion of the jury decision- making process that concerned the Furman Court. The justices held that mandatory death sentences would violate “the fundamental respect for humanity” and declared these laws unconstitutional.33 However, the Court approved the statutes presented in the cases of Gregg v. Georgia (428 U.S. 153), Jurek v. Texas (428 U.S. 262), and Proffitt v. Florida (428 U.S. 242). Known collectively as the Gregg decision, these cases developed a new system by which offenders could be sentenced to death. The provisions in these cases created three new procedures that
- 995. dramatically altered the administration of capital sentences. First, the Gregg decision separated the guilt and sentencing decisions into two trials. As a result, juries must first determine whether the defendant is guilty of capital murder and then decide in a separate trial if the convicted person should receive the death penalty. For all states that have the death penalty, the alternate option is life without the possibility of parole. This means that regardless of the sentence, the offender will die behind prison walls. Second, an automatic appellate process was created that mandated the highest cour t of each state review all convictions and death sentences to protect against constitutional errors. Finally, states implemented guided discretion statutes to help juries weigh the effects of aggravating and mitigating factors in applying a death sentence. Aggravating factors are circumstances that increase the severity of the crime, such as torture, excessive violence, or premeditation. Mitigating factors include references to the defendant’s background that may explain the defendant’s behavior but that do not constitute a legally
- 996. relevant defense. In order for a death sentence to be handed out under these guided discretion statutes, a jury must determine that the value of the aggravating factors outweighs any mitigating factors. If the value of the mitigating factors exceeds any aggravators, then life without the possibility of parole (or a similarly designated sentence of incarceration) is given. Since the reinstatement of the death penalty, there have been more than 1,400 executions in the United States. Figure 10.4 illustrates the executions that have been carried out over the past 40 years. Aggravating factors: Circumstances that increase the severity of the crime, such as torture, excessive violence, or 675 premeditation. Mitigating factors: Circumstances that minimize or explain the actions of the offender or the crime.
- 997. Figure 10.4 Executions in the United States, 1976–2018 Note: Data are current as of August 14, 2018. Source: Death Penalty Information Center, “Number of Executions Since 1976,” 2018, http://www.deathpenaltyinfo.org/executions-year. Number of executions are plotted on the vertical axis on a scale of 0 to 100, at intervals of 10. All the years from 1976 to 2018 are listed on the horizontal axis. The data are given in the list below. 676 http://www.deathpenaltyinfo.org/executions-year Methods of Execution Under the Eighth Amendment Recent execution history in the United States has involved five methods: hanging, firing squad, electrocution, lethal gas, and lethal injection. While each
- 998. had its day of popularity, most of these methods have drifted into obscurity in light of constitutional challenges. Today, the primary method of execution for all states is lethal injection, though, as you saw in Figure 10.3, several states still allow these other methods. Firing Squad The firing squad involves strapping the offender into a chair and placing a white cloth over the offender’s heart. Five shooters are armed with rifles, although only four of the weapons are loaded with live ammuni tion. The cause of death is dramatic blood loss as a result of the rupture of the heart and/or lungs.34 The use of the firing squad was made famous in modern times with the execution of Gary Gilmore in January 1977, the first execution following the reinstatement of the death penalty in Gregg v. Georgia (1976).35 With the introduction of lethal injection in Utah in 1980, the state legislature retained the choice of the firing squad
- 999. “in case the man who was going to die wanted his blood to be shed, as a bid for salvation.”36 In 2004, the Utah legislature enacted a provision that eliminated the option of the firing squad.37 However, Utah recently reauthorized the use of the firing squad if other methods were found to be unconstitutional.38 The firing squad is also an accepted form of execution in Oklahoma but can only be used if lethal injection is found to be unconstitutional. Firing squad: A form of execution involving the death of an individual by a gunshot to the heart. Death occurs as a result of rapid blood loss. 677 Historically, the death penalty has been used as a deterrent for
- 1000. crime. Executions were typically public to serve as a warning against those who may consider committing similar crimes. Do you think this was effective? © Library of Congress/Prints and Photographs Division Hanging Like the firing squad, hanging remains a constitutionally valid method of execution even though many states have eliminated its use. Historically, hangings account for the majority of all executions throughout the history of the United States.39 Today, hanging is utilized as an option for execution in New Hampshire and Washington. Death by hanging is designed to occur when the offender is dropped through a trap door, causing the person’s body to fall and his or her neck to break, resulting in death. However, this method has seen a variety of botched executions, ranging from decapitation to strangulation.40
- 1001. 678 Hanging: A method of execution that involves breaking the neck of an offender by suspending him or her with a rope around the neck. Electrocution During the late 1800s, electrocution was developed as a more humane option than hanging. Death occurs from a high dose of electricity over a 30-second period that is administered to the body through electrodes attached to the skull and the leg. In some cases, multiple attempts are required to cause death. While the Court upheld the use of the electric chair in In re Kemmler (1890), many states have since outlawed its use, with Nebraska being the most recent state to declare the electric chair unconstitutional in 2008. Eight additional states (Alabama, Arkansas, Florida, Kentucky, Oklahoma, South
- 1002. Carolina, Tennessee, and Virginia) still permit the use of electrocution under law, though no states have carried out an execution in this manner since the adoption of lethal injection. Justice William Brennan argued in 1985 that the practice of electrocution is “a cruel and barbaric method of extinguishing human life, both per se and as compared with other available means of execution.”41 In recent history, several cases of botched executions via electrocution have made headlines. In Florida, the executions of Jesse Tafaro in 1990 and Pedro Medina in 1997 resulted in flames erupting from their heads due to the improper use of the sponges designed to conduct electricity to their brains.42 In both cases, the men did not die quickly. The state responded to these issues, stating that the botched executions were a result of human-related error. Electrocution: A form of execution where death occurs from a high dose of electricity that is administered to the
- 1003. body. Lethal Gas As the public grew concerned with the potential for pain in execution methods, several states looked toward technological advances in their search for humane execution. For many states, the move to lethal cyanide gas was the answer, and it was first introduced by Nevada in 1921.43 While lethal gas is still an option in Arizona, California, Missouri, Oklahoma, and Wyoming, the practice is rarely utilized today. In 1996, the Ninth Circuit Court of Appeals held in the case of Fiero v. Gomez that the use of cyanide gas was unconstitutional.44 Recently, Oklahoma passed legislation allowing for a lethal dose of nitrogen gas as an 679
- 1004. alternative to lethal injection.45 Lethal gas: A method of execution that uses cyanide gas to suffocate an individual. Lethal Injection Currently, the primary method of execution is lethal injection. First adopted by the state of Oklahoma in 1977 (with the first execution by lethal injection carried out by the state of Texas in 1982), lethal injection represents the concept of the most humane medicalized method of execution to date. Since its acceptance as a method of execution, lethal injections have accounted for the majority of all executions carried out during the modern era of the death penalty.46 Lethal injection: A method of execution that involves the injection of drugs designed to stop the heart and lung
- 1005. functions, resulting in death. The constitutionality of the use of lethal injection has been challenged in the courts and involves not only the petitions of death row inmates but also the opinions of medical professionals. This challenge is based on the administration of the drugs used during the execution process and inquires (1) whether the chemicals cause unnecessary pain and (2) whether the lethal injection “cocktail” masks the true levels of pain experienced by the inmate during the execution. In 2008, the Court heard the case of Baze v. Rees, which challenged the lethal injection process in the state of Kentucky. The Court held that the use of sodium thiopental as a sedative, which is designed to render the inmate unconscious while other drugs that stop the heart and lungs from functioning are administered, does not constitute cruel and unusual punishment. Since then, several manufacturers of this and similar drugs have either halted production or prohibited their use in lethal injection. As a result, states have been left to seek out alternative options for use in either a
- 1006. one- or three-drug protocol. One option that has been used by several states is midazolam. Several inmates challenged the use of this drug after executions in Oklahoma and Arizona were identified as botched because it was unclear whether the inmate was appropriately sedated before other drugs were administered. In Glossip v. Gross (2015), the Court held that the use of midazolam is constitutional.47 In addition to concerns over the way in which people are executed, the Court has heard several challenges over the past three decades about who can be executed (such as juveniles 680 and the intellectually disabled) as well as about procedural issues during death penalty trials, such as juror selection, racial bias, and ineffective assistance of counsel. In addition, public
- 1007. opinion polls show that support for the death penalty has declined significantly over the past two decades and that individuals are leaning more toward support for life without the possibility of parole for offenders due to the high financial costs of the death penalty. 681 Conclusion As you have learned in this chapter, our correctional system is tied to how and why offenders should be treated under the law. Whether it is rehabilitation or retribution that guides our practices, these foundations have a significant effect on the programs and practices that extend from our courts to our correctional system. As you read the next two Current Controversy debates, consider which correctional philosophies are best represented in these practices. Are these policies an accurate representation of what our criminal justice system
- 1008. should stand for? Are there alternatives that our criminal justice system should consider that would better serve our communities? 682 Current Controversy 10.1 Do Habitual Sentencing Laws Deter Offenders? —Kimberly Dodson— Where do you stand? Cast Your Vote! 683 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-10/current-controversy-videos Introduction In the 1970s, there was an anti-rehabilitation movement adopted by policymakers and legislators across the United States. The final blow to rehabilitative efforts came in the form
- 1009. of a report that declared “nothing works” to reduce recidivism.48 Rehabilitation gave way to the “get tough” movement of the 1980s and 1990s. The more punitive approach toward offenders included the development and implementation of policies to punish offenders through incapacitation, bolster victims’ rights, and address public safety concerns. Habitual offender laws were an outgrowth of this policy shift. Habitual offender statutes target individuals who repeat the same or similar types of criminal offenses. Under these laws, habitual offenders receive harsher legal penalties because of their continued involvement in criminal behavior. Most states have statutes that include provisions for sanctioning both habitual misdemeanor and felony defendants. Being classified as a habitual offender can lead to additional criminal penalties, including greater fines and the loss of
- 1010. certain rights and privileges (e.g., driver’s license revocation, inability to purchase or own firearms, or termination of parental rights). However, the most common type of sanction is a sentencing enhancement that allows or requires a judge to increase the term of incarceration for repeat or habitual offenders. Three-strikes legislation is arguably the most well-known habitual offender law in the United States. In California, if an offender has two prior felony convictions , a third felony offense (or “strike”) triggers a mandatory sentence of 25 years to life. California’s three-strikes law is one of the harshest in the country.49 The rationale for habitual offender laws is deterrence. As you recall from earlier in the chapter, deterrence consists of three primary components: certainty, severity, and celerity (i.e., swiftness). Certainty refers to the likelihood an offender will be punished for wrongdoing. If an offender
- 1011. believes the certainty of apprehension and punishment is great, he or she is more likely to be deterred. The severity of the punishment should not be excessive but rather proportionate to the crime committed to have the greatest deterrent effect. Swift punishment sends a message to would-be offenders that the consequences of criminal behavior will be immediate. Theoretically speaking, when these three components are applied properly, deterrence can be achieved. Deterrence is based on the premise that individuals are rational, calculating actors who make behavioral choices that maximize pleasure and minimize pain. If the consequences of criminal offending are sufficiently painful, individuals will likely choose not to engage in it. Following this logic, habitual offender laws may have the potential to deter individuals because the consequences for repeat offenders are substantial.
- 1012. 684 PRO: Habitual Sentencing Laws Deter Offenders Proponents of habitual offender laws believe repeat offenders are unable or unwilling to adhere to the laws of society and, as a result, should receive severe sanctions. They argue that certain and severe punishment will deter the future offending of habitual criminals and send a message to would-be repeat offenders that if they choose to break the law, they will face serious consequences. The certainty of punishment is the most important element under deterrence theory.50 To be deterred, individuals must calculate that the certainty of apprehension and punishment is relatively high. Therefore, policymakers and criminal justice practitioners must increase the public perception that those who choose to violate the law will be caught and sanctioned.
- 1013. Policymakers and criminal justice practitioners have successfully heightened the public’s awareness regarding habitual offender laws. In California, for example, the highly publicized cases of Kimber Reynolds and Polly Klaas led to the passage of three-strikes legislation, which was followed by an intense media blitz. In all, 25 states have established three-strikes and/or similar habitual offender laws, and the prosecution of two- and three-strikes cases across the country has increased dramatically since the first legislation was passed in 1993.51 Thus, it stands to reason that the certainty of punishment for repeat offending has significantly increased, and it is difficult to imagine that the public is unaware of the potential consequences of violating habitual - offending laws. Additionally, research consistently demonstrates that the certainty of punishment is a deterrent to criminal behavior.52
- 1014. Deterrence theory states that the severity of the punishment should be proportionate to the crime committed—in other words, the “punishment should fit the crime.” The penalties under habitual offender statutes for repeat offenders seem to meet this criterion. Most habitual offender laws are designed to punish serious criminal offending, especially violent crimes such as robbery, rape, and murder. It seems reasonable that harsh sanctions like life in prison for repeated acts of violence are proportionate and thus warranted. As previously mentioned, habitual offender laws, including their potential punishments, have received a great deal of media attention in the last two decades. Since they should be aware that the sanctions for repeat offending are serious, the public has been put on notice regarding these possible consequences. Rational individuals should be able to weigh the benefits of repeat offending against the costs, resulting in deterrence.
- 1015. 685 CON: Habitual Sentencing Laws Do Not Deter Offenders Opponents of habitual offender laws are skeptical about the deterrent effect of these laws. Some policymakers believe that it is unrealistic to assume habitual criminals are knowledgeable about these laws.53 If this is true, then the decision to commit future crimes is made without regard to the potential consequences of violating habitual offender statutes because the offender lacks the knowledge to conduct a cost–benefit analysis. Research shows a significant portion of offenders suffer from mental illnesses, including depression, bipolar disorder, and schizophrenia.54 Mentally ill individuals often lack the intellectual capacity to make rational decisions, so it is unlikely habitual offender laws will act as a deterrent for this population of offenders.
- 1016. Taken together, it appears that not all offenders rationally weigh and consider the possible costs and benefits of their behavior. On the contrary, there is a significant body of research that indicates they make decisions impulsively.55 Although supporters contend that habitual offender laws ensure the certainty of punishment, there is evidence to suggest otherwise. For example, research indicates that prosecutors frequently decline to pursue charges under habitual offender laws.56 Prosecutors can move to dismiss or strike prior felony convictions from consideration during sentencing. There also is evidence to suggest habitual offender laws are not uniformly applied across jurisdictions.57 When the probability of punishment is uncertain, the chance an individual will commit additional offenses is much more likely. Opponents also argue that habitual offender laws are overly
- 1017. severe. The public has been led to believe that these laws are directed at deterring serious habitual offenders, especially those with violent criminal histories. However, some estimates indicate that about 70% of defendants charged under habitual offender statutes are nonviolent.58 Habitual offenders also may trigger prosecution even if their third offense is a misdemeanor. For example, Robert Fassbender had two prior felony robbery convictions so he faced life in prison for his third offense—stealing a pack of donuts valued at less than one dollar.59 One unintended outcome of habitual offender laws is a backlog of criminal cases. Because the penalties under habitual offender laws are so severe, more and more defendants are choosing to go to trial rather than plea-bargain. Jury trials significantly slow down the courts’ ability to process cases quickly. Deterrence theory states that the punishment
- 1018. should be swift so that the offender will associate actions with consequences. Delays in court processing thus may hinder the deterrent effect of habitual offender laws. 686 Summary Proponents of habitual offender laws argue that certain and severe punishment should be imposed on habitual or repeat offenders to deter criminal behavior. In addition, some have claimed that their states experienced a significant decline in serious crime in the wake of the implementation of habitual offender laws.60 Opponents, however, maintain that habitual offender laws have not had the deterrent effect that their supporters claim. Although supporters argue that crime rates have declined after the implementation of habitual offender laws, others claim that this is merely part
- 1019. of a downward trend in crime rates across the United States, even in states without habitual offender laws.61 Below are some questions to consider. 687 Discussion Questions 1. What are some of the arguments that indicate habitual offender laws deter crime? Give specific examples. 2. What are some of the arguments that indicate habitual offender laws are not a deterrent to crime? Give specific examples. 3. Do you think habitual offender laws deter criminal behavior? Why or why not? 688
- 1020. Current Controversy 10.2 Should We Abolish the Death Penalty? —Connor Bell and Gavin Lee— Where do you stand? Cast Your Vote! 689 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-10/current-controversy-videos Introduction The death penalty continues to be one of the most controversial topics in the criminal justice system, and support for the practice is at its lowest since 1972. In the latest Gallup poll (2017), only 55% of respondents supported the death penalty.62 Notably, before his death, Justice Antonin Scalia stated that he would not be surprised if the U.S. Supreme Court eventually found the death penalty to be unconstitutional. Several arguments for and against the death penalty
- 1021. have been posited by scholars and the public alike. Supporters of the death penalty believe it is an effective deterrent, victims’ families deserve closure, it does not violate the U.S. Constitution, and that the offender simply “deserves it.” Opponents of the death penalty believe, among other things, that it is not an effective deterrent, it is racially biased, it is more expensive than life without parole, and that several innocent individuals have been executed. 690 CON: The Death Penalty Should Be Retained Supporters of the death penalty have provided arguments for its continued use. They point out that the Supreme Court has not—since Furman v. Georgia in 1972—ruled that the death penalty violates the U.S. Constitution. In fact, in Gregg v. Georgia the Supreme Court stated that capital
- 1022. punishment was, as it was then applied, constitutional. In most death penalty cases that have been brought before the Court, a majority of the justices have concluded that the death penalty does not violate an individual’s constitutional rights, including the Eighth and the Fourteenth Amendments. Most of the cases that have been brought to the Court have been brought on the basis that the death penalty violates the Eighth Amendment clause prohibiting “cruel and unusual punishment.” Several cases have focused on execution methods. To date, however, no method of execution has ever been ruled to be unconstitutional by the Court. In the cases of Wilkerson v. Utah (1878), In re Kemmler (1890), and Baze v. Rees (2008), the Court ruled that the firing squad, electrocution, and lethal injection, respectively, did not violate the Constitution. In fact, only two states, Georgia and Nebraska, have held electrocution to be unconstitutional, and the Ninth Circuit Court of Appeals
- 1023. has held that lethal gas is unconstitutional. The eye for an eye biblical attitude has often been used as an argument for the death penalty. “Retribution,” according to Fulkerson, “is not revenge but rather it is a function of the government to mete out justice to those who have violated the codified criminal law of the state.”63 The argument is that the offender has murdered a person and therefore should have his or her own life taken in return. Using this perspective, the death penalty is not only used to punish an offender but also to satisfy society’s demands for the ultimate punishment. Supporters believe that some especially heinous cases demand the death penalty. The execution of the criminal would also bring closure to victims’ families as they would see the offender receive the ultimate punishment. Supporters of the death penalty also argue that it serves as a
- 1024. deterrent. According to Pojman, “The fact that those who are condemned to death do everything in their power to get their sentences postponed or reduced to long-term sentences, in the way lifers do not, shows that they fear death more than life in prison.”64 Supporters believe that people choose to engage in heinous criminal acts and should be punished for the harm they have inflicted on others. Supporters of the death penalty argue that life without the possibility of parole (LWOP) is not as effective at deterrence or incapacitation as the death penalty. They believe that execution is the only way to ensure the individual will not kill again. Life imprisonment gives the offender the opportunity to escape, be pardoned, or have his or her sentence commuted, or kill again in prison. Lastly, death penalty proponents claim LWOP is more expensive than the death penalty, which is not the case.65
- 1025. 691 PRO: The Death Penalty Should Be Abolished Many studies have sought to discover whether or not the death penalty is a greater deterrent than its current alternative, LWOP. A majority of these studies have found that there is no such effect. For example, several studies have found that states with the death penalty do not have lower homicide rates than those states without the death penalty.66 The assumption that a capital offender makes a rational choice has also been shown to be flawed. It does not account for circumstances that may occur when a capital murder is being committed, such as when an offender does not intend to murder someone during a robbery but does. Also, only a minuscule number of murders for which a sentence of death is available result in executions. Many would argue that to be a deterrent, the death penalty should
- 1026. be swift and certain, yet convicted capital murderers can expect to spend an average of more than 12 years on death row before their execution, which is certainly not swift. Another salient issue in capital punishment involves who gets the death penalty. Baldus and colleagues carried out a thorough examination of race and capital punishment. They found that defendants charged with killing Whites were more than four times more likely to receive a death sentence than those charged with killing African Americans. Further, they found that African Americans were more than four times more likely than other defendants to be sentenced to death.67 The U.S. General Accounting Office carried out a review of studies dealing with race and the use of capital punishment. This meta-analysis found that a majority of studies showed those who murdered Whites were much more likely to be sentenced to death than those who
- 1027. murdered African Americans.68 Another group of individuals who appear to be at risk of receiving a sentence of death are people who suffer from psychological/neurological deficiencies. For example, the Fair Punishment Project indicated that over 80% of people executed in 2017 had either evidence of mental illness and/or brain damage, serious childhood trauma, or—despite the Atkins v. Virginia decision, which precludes the execution of the “mentally retarded”—IQs that suggested intellectual disability.69 The cost of the death penalty has also been an argument used by its opponents. According to Bohm, the average cost of each execution in the United States is between $1.4 and $7 million. The executed serial killer Ted Bundy’s case cost the state of Florida more than $10 million, which equates to $19 million in 2015 dollars. The death penalty costs more
- 1028. than LWOP for many reasons, but largely because of what Radin describes as “super due process,” which is required in capital cases. Additional costs include the expensive housing required for death row inmates. For example, in California it is estimated that it costs nearly $100,000 per year more to house an inmate on death row compared with an inmate serving LWOP.70 Perhaps the most salient argument against the use of the death penalty is that of innocence. Bedau and Radelet estimated that more than 20 innocent people have been executed in the post-Furman era. According to the Death Penalty Information Center (DPIC), since 1973, 166 death row inmates have been exonerated.71 The reasons for these miscarriages of justice are many and varied. These include inadequate police work (and sometimes police misconduct), sloppy analysis of forensic evidence, false confessions, misconduct by the prosecution, inadequate defense
- 1029. representation, witnesses perjuring themselves, and sometimes errors made by the judges themselves on points of law. Lawyers in capital cases have been known to sleep during the trial, arrive at the trial drunk, and on occasion use racial epithets when referring to their clients. 692 Improperly carried out or “botched” executions are also an argument against the continued use of capital punishment. According to Austin Sarat, of the 8,776 executions carried out between 1890 and 2010, 276 were botched (3.15%). Perhaps most concerning about Sarat’s study is that the method that carries with it the highest chance of being botched is the primary method of execution in the United States today: lethal injection. Rather perversely, the method
- 1030. that was not found to have produced any botched executions, the firing squad, is the method that is least used in the United States in the post-Furman era.72 693 Summary Many scholars contend the above problems associated with the practice of capital punishment may well be the main reasons behind its ever-dwindling use. For example, in 2017, only 39 death sentences were imposed and only 23 executions carried out, which highlights a trend many scholars believe may herald the end of the death penalty in the country. While several states and the federal government retain the practice legally, other states have abolished its use. 694
- 1031. Discussion Questions 1. Which reason to support or oppose the death penalty resonates the most with you? 2. What are the challenges with retaining the death penalty? With abolishing it? 695 Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Aggravating factors 231 Celerity 220 Certainty 220 Determinate sentencing 223 Electrocution 232 Firing squad 231 General deterrence 220
- 1032. Hanging 232 Incapacitation 221 Indeterminate sentencing 227 Just deserts 221 Lethal gas 232 Lethal injection 233 Mandatory sentencing 227 Mitigating factors 231 Parole 223 Rehabilitation 220 Restoration 222 Retribution 221 Severity 220 Specific deterrence 220 696 http://edge.sagepub.com/mallicoatccj2e Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e
- 1033. 1. How have sentencing philosophies evolved throughout history? What features suggest that retribution continues to dominate our sentencing practices? What signs indicate we may be moving away from retribution? 2. Compare and contrast indeterminate and determinate sentencing. What are the benefits and drawbacks of each? 3. What are some reasons for opposing mandatory sentencing? 4. What is required in order for deterrence to be an effective sentencing philosophy? In which cases is deterrence successful? In which cases does it fail? 5. What are sentencing guidelines and why are they problematic? 6. What are the five methods of execution in the United States? Which is used most frequently now? 697
- 1034. http://edge.sagepub.com/mallicoatccj2e Learning Activities 1. Review some of the criminal laws in your state. Identify which of the five sentencing philosophies best describes the types of punishments that are used for perpetrators of these crimes. 2. Research your state’s laws on capital punishment. Discuss how these practices fit within your state’s general sentencing practices. 3. Identify a case involving sentencing practices from the most recent term of the U.S. Supreme Court. How will this decision alter how offenders are sentenced in your state? What challenges do you believe will arise as a result of this decision? 698
- 1035. Suggested Websites United States Sentencing Commission: http://www.ussc.gov The Sentencing Project: http://www.sentencingproject.org Death Penalty Information Center: http://www.deathpenaltyi nfo.org 699 http://www.ussc.gov http://www.sentencingproject.org http://www.deathpenaltyinfo.org Student Study Site Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Want a better grade? Get the tools you need to sharpen your study skills. Access
- 1036. practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 10.1 Kathryn Herold: Public Defender Criminal Justice in Practice 10.1 Prosecutorial Discretion SAGE News Clip 10.1 Debrief: What’s Next After Cosby Sentence? 700 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e © iStock.com/MoreISO 701
- 1037. 702 Part IV Corrections Chapter 11 Prisons and Jails Current Controversy 11.1 : Should We Use Solitary Confinement to Control Violent and Disruptive Behaviors? Current Controversy 11.2 : Should Prisons Punish or Rehabilitate Offenders? Chapter 12 Community Corrections Current Controversy 12.1 : Should Employers Be Permitted to Ask About Criminal History? Current Controversy 12.2 : Is Parole an Effective Correctional Strategy? 703
- 1038. 11 Prisons and Jails 704 © iStock.com/djroland 705 Learning Objectives Discuss the historical significance of prisons and their influence on today’s institutions Discuss how jails are similar to and different from prisons Compare the differences between federal, state, private, and military prisons Identify the different security levels of prison institutions Discuss how issues such as racial disproportionality, overcrowding, and prison misconduct impact the
- 1039. management of prisons Discuss how the Supreme Court has interpreted the Bill of Rights for inmates Identify the challenges that correctional officers face on the job In April 2018, Bill Cosby was found guilty on three counts of aggravated indecent assault for sexually assaulting Andrea Constand in 2004. He faces up to 10 years in prison for each count. At 80 years of age, he would likely serve his sentences concurrently.1 Prison would certainly be a change of lifestyle for Cosby, a multimillionaire who owns homes throughout the country. Following sentencing, if he is to serve time in prison, he would be sent to the Correctional Diagnostic and Classification Center at Camp Hill in Cumberland County, which is where all new male inmates in Pennsylvania State enter the system. The intake and evaluation process can take anywhere from a few weeks
- 1040. to several months. Based on the information gathered, which would cover Cosby’s health care and psychological needs, security classification, and treatment programming needs, he would be assigned to one of the 23 facilities that houses men.2 In addition to being one of the oldest men in custody, he would also be one of the few who is legally blind. In similar cases, inmates with vision issues have been assigned a sighted inmate who is paid prison wages (currently between 19 and 42 cents an hour) to assist them as they move throughout the facility.3 Certainly Cosby’s celebrity status would separate him from other inmates. He would likely receive more mail and have access to increased funds in his commissary account to purchase things such as food, over-the-counter medications, and hygiene products. While it is unclear what type of facility Cosby would be housed in, some celebrity or high-
- 1041. profile offenders have been held in administrative segregation or protective custody to keep them safe. In these types of cases, there is concern about what another inmate might do to a high-profile inmate to catch his or her 15 minutes of fame. Some protective housing units, such as the one at Corcoran State Prison in California, allow inmates to spend time in a day room where they can play chess or work on their case with the assistance of inmate lawyers.4 Other secure housing units isolate inmates and keep them in their rooms 22 to 23 hours a day. They are let out to shower and exercise alone in a small gated recreation area.5 Regardless of where he might be housed, Cosby’s life would be different from the typical inmate, who often receives a work assignment and has to deal with the politics of general population. But it is also fair to say that prison life would be a far cry from the life he has experienced on the outside.
- 1042. In this chapter, you will learn about the structure of prisons and jails in the United States. The chapter begins with a historical review of how prisons and jails developed. It then looks at the current state of jails and the different types of populations that these facilities serve. 706 The chapter then turns to a review of prisons and highlights how issues such as security levels impact the design and organization of a facility. You’ll then learn about life behind bars and how issues such as violence, programming, and health care can impact the quality of life of inmates. You’ll also learn about the legal rights of prisoners and how landmark Supreme Court cases have impacted the prison environment. Finally, you’ll hear about the role of correctional officers in the prison. The chapter concludes with two Current Controversy debates. The first, by Brett Garland, discusses whether solitary confinement should be used
- 1043. to control inmates. The second, by Sean Wilson, asks whether prisons should punish or rehabilitate inmates. 707 History of Jails and Prisons A prison is a facility that is designed to house individuals for a period of time as a form of punishment for breaking the law. The concept of the prison is a relatively new one in approaches to punishment. Historically, jail facilities were used to hold people until their punishment was carried out. Prison: A facility that is designed to house individuals for a period of time as a form of punishment for breaking the law. Jail: Correctional facility that is used to hold people until their punishments are carried out. Also used to
- 1044. incarcerate misdemeanor offenders and may offer specialized programs. Walnut Street Jail in Philadelphia was the first penal institution to use individual cells and work details for inmates. What role did labor play in these early correctional facilities? © Library of Congress/Prints and Photographs Division/James Peller Malcolm Jails began to emerge in the Americas at the same time that the English settlers first arrived (Figure 11.1). Incarceration was not the typical form of punishment for much of history; preferred forms included whippings, fines, the stocks, and sentences of physical labor. Given their limited use, jails were rather small in size. For example, the city of Philadelphia built its first jail in 1683—a five-by-seven-foot cage.6 Another of the earliest jails was the Old Gaol in Massachusetts. Built in 1690, the jail was in use until 1820 and remains standing today as the
- 1045. oldest wooden jail in the United States.7 Jails such as the Old Gaol were used as pretrial 708 detention facilities, not as places of incarceration. Figure 11.1 Early History of Jails and Prisons in the United States Photo credits: 1690: Kenneth C. Zirkel, Creative Commons Attribution-Share Alike 4.0 international license, https://creativecommons.org/licenses/by- sa/4.0/deed.en; 1831: William Vander Weyde/Getty Images Timeline of the development of prisons and jails in the U.S. is shown in the list below. 1683: Philadelphia built its first jail. 1690: Massachusetts built the Old Gaol, which is now the oldest
- 1046. wooden jail in the U.S. 1776: The Walnut Street Jail in Philadelphia first opened. Later became known for its use of solitary confinement and hard labor. 1818: Auburn Prison is built. Allowed inmates to work side by side, but they were not allowed to speak to each other. 1829: Eastern State Penitentiary is built. Required inmates to be kept in complete isolation. 1831: Sing Sing is first opened. Relied heavily on the use of the electric chair for executions. 1876: New York’s Elmira Reformatory is opened. Marked the beginning of the reformatory era. 1900: The focus in correctional facilities shifted away from reformation toward punishment with the rise of high- security facilities like San Quentin, Stateville, and Alcatraz.
- 1047. 709 https://creativecommons.org/licenses/by-sa/4.0/deed.en; The conditions of these early jails were very poor. They were often overcrowded, and prisoners were required to pay their own way, including buying their own food. Facilities lacked adequate space and often did not have basic necessities such as heating, water, or plumbing. There was no form of segregation among the prisoners, and everyone was housed together, regardless of sex, health, or crime. Due to the high levels of death and disease within the jail walls, reformers set out to change the poor conditions of these facilities. For example, the Walnut Street Jail in Philadelphia first opened in 1776 and was designed to serve as a workhouse. However, this purpose was short-lived as it was reappropriated as a military prison until 1784. By 1789, the jail was being used more as a prison for offenders serving out their sentences. As a result, the facility became
- 1048. known for its use of solitary confinement and hard labor.8 710 The Pennsylvania System Meanwhile, the birth of the American prison was the first time that the idea of imprisonment in and of itself was used as a source of punishment. During the early nineteenth century, two penitentiary systems developed. The Pennsylvania system was characterized by larger cells that allowed inmates to remain isolated from each other. This system of solitary confinement was developed to prevent inmates from corrupting one another. Hard work and religious reformation were the key features of this system. The cells at Eastern State Penitentiary in Philadelphia were large enough so that inmates could engage in work within their cells. Religion was a significant component of the rehabilitative
- 1049. efforts in the Pennsylvania system. Prayer and reflection were viewed as ways in which inmates could reform themselves. Alas, facilities in this system quickly began to fill to capacity and beyond. In addition, officials noted that the regular use of solitary confinement had a significant and negative impact on the mental health of the inmates.9 Pennsylvania system: An early model of prison that focused on solitary confinement, silence, and work in cells. Eastern State Penitentiary: The first penitentiary designed within the Pennsylvania system model. 711 The New York System While the New York system featured many of the same components of Pennsylvania’s separate and silent system, there were also some notable
- 1050. differences. The cells at Auburn Prison were smaller than those at Eastern State, and inmates engaged in congregate labor systems, which allowed them to work side by side, although they were prohibited from communicating with each other. As more states began to experiment with penitentiary systems, the New York system became more popular because it allowed facilities to house more individuals and benefit from prison labor on a larger scale. However, it wasn’t long before even these penitentiaries found themselves struggling with issues of overcrowding and disciplinary issues.10 As a result, New York and others began to scramble to build more prisons. In 1826, a group of inmates from Auburn were sent to the banks of the Hudson River, north of New York City, to build the next prison. This facility was called Sing Sing, and it first opened in 1831, with 800 cells. Over time, more units were added to increase the number of inmates that could be housed. The days at Sing Sing were filled with corporal
- 1051. punishment and abuse of the prisoners in the name of “rehabilitation.”11 Sing Sing was also made famous by its use of the electric chair, which was used to execute 614 people between 1891 and 1963.12 New York system: Used the system of silence that was popular in the Pennsylvania system but adopted congregate labor systems. Auburn Prison: The first facility under the New York model. Congregate labor systems: Form of labor first used in the New York model that organized prison labor as a group process. 712 Eastern State Penitentiary was one of the first penal facilities in the United States. Inmates
- 1052. were kept in solitary confinement for the length of their sentence. What was the goal of this treatment? © Library of Congress/Prints and Photographs Division/Carol M. Highsmith Archive 713 The Reformatory Era Amid concerns that the penitentiary was unsuccessful, a new group of reformers suggested that the key features of solitary confinement and fixed sentences were ineffective and provided little incentive for inmates to rehabilitate. The reformatory era emerged in 1876 at New York’s Elmira Reformatory. Elmira utilized features such as good time credits, which allowed inmates to earn time off of their sentence for good behavior. Led by Zebulon Brockway, Elmira was dramatically different compared with the institutions of the past.
- 1053. When an inmate arrived at the institution, he was evaluated not only to determine what led to his criminal behavior but also to assess his aptitude for work and rehabilitation. This information was used to develop an individualized plan for his time behind bars. Brockway used an incentive system to motivate offender behavior changes. For example, inmates were allowed to earn statuses, which allowed them greater freedom of movement as well as privileges such as access to the mail and prison libraries.13 This era also saw the introduction of parole as an early release program to reward inmates’ rehabilitative efforts. Despite all its positive aspects, the system came under fire at the turn of the century for its continued use of corporal punishment. Reformatory era: Emerged in 1876 in response to concerns that the penitentiary was unsuccessful. Elmira Reformatory: The first facility founded during the reformatory era.
- 1054. Good time credits: Allow inmates to earn time off of their sentence for good behavior. In addition to the emergence of reformatories, many states retained the use of custodial institutions during this period. In custodial institutions, inmates were simply warehoused, and little programming or treatment was offered. The custodial institution was more popular with southern states. In cases where a state had both a reformatory and a custodial institution, the distribution of inmates was made along racial lines: Custodial institutions were more likely to house inmates of color who were determined to have little rehabilitative potential, while reformatories housed primarily White inmates.14 Black inmates were also sent to work on state-owned penal plantations under conditions that mimicked the days of slavery in the South. Louisiana State Prison at Angola (which is still in operation today) was originally a slave plantation back in the 1840s. Its name references the origin of the many African slaves who arrived from Angola, a country in southern Africa. After
- 1055. the abolishment of slavery in 714 the United States, many regions in the South used convicts in areas where slaves once worked. The convict lease system allowed states to manage a large number of inmates without bearing the high cost of their incarceration. While the convict lease system was extremely profitable since workers received little compensation, inmates were often treated very poorly.15 715 The Punishment Era The failures of the reformatory era sent the pendulum swinging back to a focus on
- 1056. punishment over rehabilitation. Between 1900 and 1940, the punishment era dominated the prison landscape. Prison labor became popular once again, particularly in the South, where convicts were leased to local farms and plantations. The number of prisons continued to grow, and high-security facilities such as San Quentin, Stateville, and Alcatraz began to emerge. By the 1940s, a post–World War II America had once again decided that a punishment model did little to curb the rising rates of criminal behavior. The next four decades saw a return to rehabilitation with the introduction of therapeutic treatments and education. However, as crime rates increased during the 1980s, rehabilitation once again fell out of favor with the public and punishment returned to center stage. Punishment era: Period between 1900 and 1940 when corporal punishment and prison labor were used to punish offenders. 716
- 1057. Jails Today, jails are used to house individuals who are awaiting criminal prosecution and who either are not eligible for bail or cannot afford it. Jails can also house individuals with shorter- term sentences or serve as a transfer facility for juvenile offenders, individuals with mental health issues or immigration violations, and individual s who are being held for a probation or parole violation. Jails can also operate community-based programs such as work release, day reporting, and other alternatives to incarceration. Unlike prisons, which are run by a state or the federal government, jails are managed by local city or county governments and are often staffed by the local police or sheriff. 717
- 1058. Jail Inmates By mid-2016, an estimated 740,700 individuals were housed in local jails. Eighty-five percent of all jail inmates are men, and Whites make up the majority (48.1%) of all inmates, compared with 34.4% for Blacks and 15.2% for Hispanics (Figure 11.2).16 However, these data capture only a snapshot of a specific day. If we look at the total number of inmates who were housed in local jails between June 2015 and June 2016, we see that more than 10.6 million persons were admitted to local jails over the course of a year. While 35% of inmates in local jails have been convicted of a crime and are serving out their sentences, the remaining 65% are waiting for their cases to proceed through the system. In addition to these populations, another group of offenders often falls under the jurisdiction of the jail but is not housed within the facility. This group is enrolled in various programs such as weekend incarceration programs, forms of alternative monitoring, work release, and treatment-based
- 1059. programs, all of which will be covered in greater detail in Chapter 12.17 In addition to jails that are run by local authorities, 80 jails are operated by tribal authorities and the Bureau of Indian Affairs. These facilities house individuals who are arrested or sentenced for crimes that occur on tribal land. These are generally short-term facilities, and the average length of a stay in 2016 was eight days. Like regional jail facilities, the majority of offenders housed in tribal facilities are male. Thirty percent of inmates are in custody for violent crimes, and cases of domestic violence make up 14% of these offenses. Fifty-five percent of those housed in Indian country jails have been convicted of a crime.18 718 Maricopa County’s Tent City was built in 1994 by Sheriff Joe
- 1060. Arpaio to house inmates convicted of low-level offenses. Arpaio’s tough law-and-order perspective had inmates wearing pink underwear and spending their days in 120-plus- degree heat in the summertime. Tent City closed in 2017. What type of punishment philosophy was being employed? Joshua Lott/Stringer/Getty Images News/Getty Images Jail operations require different types of staff to manage the day-to-day needs of the facility. In 2016, local jails employed 226,300 full-time staff. Seventy- nine percent were custodial staff responsible for the security and safety of the inmates. The remaining 21% were noncustodial staff and included administrators, professionals such as teachers and medical staff, and clerical and maintenance workers. Like the inmate population, the majority of jail employees are male; men make up 70% of correctional officers and 44% of noncustodial staff.19
- 1061. 719 Figure 11.2 Jail Inmate Characteristics Source: Zhen Zeng, Jail Inmates in 2016, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, February 2018, https://www.bjs.gov/content/pub/pdf/ji16.pdf. Barbed wire photo: © istockphoto.com/RakicN. Gender Male, 85% Female, 14.5% Race White, 48.1% Black, 34.4%
- 1062. Hispanic/Latino, 15.2% 720 https://www.bjs.gov/content/pub/pdf/ji16.pdf American Indian or Alaska Native, 1.2% Asian, Native Hawaiian, or Other Pacific Islander, 0.8% Two or More Races, 0.3% Type of crime Felony, 69.7% Misdemeanor, 25.4% Others, 4.9% Status Unconvicted, 65.1%
- 1063. Convicted, 34.9% 721 Jail Challenges Jails face several significant challenges. As short-term facilities, their population is constantly changing. In 2016, the average amount of time that an offender spent in jail was 25 days. In states such as Idaho, Oregon, and South Dakota, the average stay was only 12 days.20 Given these short time frames, it can be difficult to provide meaningful management of these offenders, many of whom have significant issues that have impacted their trajectory to jail. For example, 40% of jail inmates report at least one disability. These disabilities, which include limitations in hearing and vision, cognitive deficiencies, and compromised independent-living skills, can have a significant impact on
- 1064. inmates. Jail inmates with a disability are 2.5 times more likely to have experienced serious psychological distress in the month prior to their time in jail. The presence of a disability often co-occurs with other chronic conditions, such as mental disabilities like depression, anxiety, and schizophrenia. Female inmates are more likely to report a disability than male inmates, and women are more likely to suffer from a cognitive disability. These can include issues such as learning disorders, dementia, or traumatic brain injuries.21 Recently, a number of high-profile cases have occurred in which inmates died in custody. In 2013, 967 inmates died while in the custody of local jails, an increase over previous years. The most common cause of death in custody is suicide, which accounts for over one-third of all jail inmate deaths. Twenty-eight cases were characterized as homicide, either by other inmates, as a result of staff use of force, or from injuries sustained prior to being admitted to
- 1065. the facility.22 The U.S. Supreme Court has held that the use of excessive physical force against a prisoner may constitute cruel and unusual punishment if the force is deliberate and malicious.23 722 Types of Prisons There are several different types of prisons. Federal prisons house individuals convicted of violations of federal law. In addition to the federal prison system, each state maintains its own prison system. While the majority of offenders are held in government facilities, both the federal and state prison systems have used private prisons to help deal with the prison overcrowding crisis over the past four decades. There are also military prisons that house individuals who are members of the armed forces who engage in criminal behavior. Finally,
- 1066. there are psychiatric prisons that house offenders who either have significant mental health issues or were found guilty but mentally ill by a court of law. 723 State Prisons At the end of 2016, there were 1,316,200 inmates in state prisons nationwide. The rate of incarceration was 582 adults per 100,000 residents. While the incarceration rate has fallen 29% since 2006, the number of individuals incarcerated in prisons has increased substantially since the 1980s. Texas has the largest number of people incarcerated in the United States, with 163,703 inmates. Between 2015 and 2016, Alaska saw the greatest decrease in its prison population. However, this is due to the fact that the state’s prison population is not very large, which means that the difference of just a small number of inmates can lead to a significant statistical change. In the case of Alaska, the prison population
- 1067. changed from 5,338 in 2015 to 4,434. While this change is equal to only 904 prisoners, it represented a 16.9% decrease overall. In comparison, Florida’s prison population fell 1,450 prisoners between 2015 and 2016, but this represented only a 1.4% total reduction. State prisons: Prisons used to hold offenders convicted of state criminal law violations. In terms of severity, 54.5% of all inmates are in state prison for violent offenses, compared with 18.0% for property crimes, 15.2% for drug crimes, and 11.6% for public order offenses. While men are more likely to be incarcerated for violent crimes, women are more likely to be incarcerated for property and drug-related offenses (Figure 11.3). In terms of race and ethnicity, Blacks (58.8%) and Hispanics (60.2%) have higher rates of incarceration for violent offenses than Whites (47.1%). In comparison, Whites have higher rates of incarceration for property crimes (24.0%) when compared with Blacks (15.2%) and Hispanics (12.8%). For drug and public order crimes, there are similar rates of
- 1068. incarceration across all racial and ethnic groups.24 724 Figure 11.3 State Prison Populations by Offense, 2016 Source: E. Ann Carson, Prisoners in 2016, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, January 2018, http://www.bjs.gov/content/pub/pdf/p16.pdf. The bar graph is titled, State Prison Populations by Offense, 2016. The data can be shown in the table given below. 725 http://www.bjs.gov/content/pub/pdf/p16.pdf
- 1069. Around the World Prisons in Russia During the Soviet era, prisons were not only used as a source of workers that could help support the development of the economy; the experience of incarceration was also used as a tool for political indoctrination. Under Joseph Stalin’s rule, the Soviet Union utilized a system of forced labor camps known as the Gulag. These camps were generally located in rural areas. The conditions were so harsh that the experience of incarceration during these times amounted to a significant violation of basic human rights.a The end of the Communist government led to changes in the ecology of the Russian prison. New laws aimed at reforming the prison were designed to provide better conditions in the facilities as well as increased attention to the rights of prisoners. In particular, significant changes to the Russian legal system were made after the country
- 1070. joined the Council of Europe in 1996. As a result, increased attention has been paid to the development of criminal law and constitutional rights for all citizens.b However, one of the consequences of the development of a new social system has been the rise of illegal behavior, which, in turn, has led to significant growth in the number of incarcerated individuals.c Despite a recent downturn, Russia has one of the highest rates of incarceration in the world. In 2018, the Russian prison population was 597,619, and the rate of incarceration was 413 per 100,000 residents. This was a significant departure from 2000, which saw 729 per 100,000 people incarcerated.d Indeed, the current level of incarceration is similar to the population in 1990, which saw 698,900 inmates incarcerated. Pretrial detainees make up 17.8% of the prison population. Russian prisons are predominantly male, with women making up only
- 1071. 8.0% of the prison population. Although the percentage of women in prison has increased from 5.8% in 2002, the rate of women incarcerated has decreased from 37.0% in 2002 to 32.9% today. Youth in prison are also quite rare, with less than 1% being under the age of 18. Currently, there are 961 institutions across the country. Of these, 217 facilities are reserved for pretrial detainees and 713 facilities are identified as corrective colonies. Many of these facilities resemble minimum- or medium- security prisons in the United States, and inmates are organized by security level. However, some of these corrective colonies function as open communities. Designed for first-time, low-level offenders, these facilities house inmates in dormitories or apartments under prison control. In some cases, families live with the inmates. There are also 23 colonies designed specifically for juvenile
- 1072. offenders. Finally, there are eight prison facilities similar in design to the medium- and maximum-security facilities in the United States. The perimeters of the facilities are patrolled by armed guards. Inmates are housed in cells with 5 to 30 people, and they remain in their cells unless they are working.e One of the most notorious Russian prisons is known as the Black Dolphin Prison, which houses some of the most violent offenders in the country. In many ways, it is the counterpart to the supermax prisons in America. One of the most significant concerns in Russian prisons today is the presence of tuberculosis (TB). Over 10% of inmates suffer from TB, and the majority of these cases are not only chronic but also resistant to many of the drugs that are available to treat the illness.f While facilities attempt to isolate cases of those who are infected,
- 1073. there are not enough resources available to keep up with the demand. In addition, these confinement units are typically not available in pretrial detention centers, which places both healthy inmates and guards at risk. Left untreated, infected inmates pose a risk not only within the prison walls but also to the general population.g 726 While work is still a central component for Russian prisoners, opportunities for rehabilitation also exist. Illiterate prisoners are sent to school to learn how to read. Inmates also participate in recreational activities, including organized sports.h And, in a select number of states, a few facilities allow for young children under the age of three to reside with their mothers.i However, the system still faces significant challenges. Many facilities suffer
- 1074. from high rates of overcrowding. One intake center near Russia was so overwhelmed by the masses that inmates were required to eat and sleep in shifts.j The work conditions remain particularly harsh, and inmates spend 16 hours a day making police uniforms.k Subpar conditions are further exacerbated by the fact that many of these facilities are old and have significantly deteriorated, which leads to poor ventilation, limited lighting, and overwhelmed sewage systems.l As the country continues to determine the role of prisons in its society, it will need to find a way to balance these challenges with the limited available resources. 727 Critical Thinking Questions 1. In what ways is the Russian penal system similar to that of the United States? In what ways is it
- 1075. different? 2. What are some of the challenges that Russia is experiencing with its penal institutions and inmates? Much of the growth in our national prison population is related to changes in state policy. Figure 11.4 shows how the incarceration rate has changed dramatically in recent decades. Many states continue to see growth in their prison populations. Oklahoma incarcerates more of its residents than any other state (891 per 100,000 state residents). Oklahoma also incarcerates women at the greatest rate nationwide (149 per 100,000 female state residents), and Louisiana incarcerates the highest rate of men (1,469 per 100,000 male state residents).25 Such expansions are costly, and states spent more than $37 billion on institutional operations in 2010. This was a dramatic increase compared with 1982,
- 1076. when costs nationwide amounted to only $9.7 billion. This means that prison operating costs have increased 384% over the past three decades.26 Figure 11.4 State Policy Drives Mass Incarceratio n Source: Prison Policy Initiative. 728 The line graph is titled, State Policy Drives Mass Incarceration. Incarceration rate per 100,000 residents is plotted on the vertical axis on a scale of 0 to 500, in increments of 100. Year is plotted on the horizontal axis from 1925 to 2012. Trend for state prisons The rate of incarceration was steady between 80 and 120 from
- 1077. 1925 to 1975, following which there was a steep increase in the rate to about 420 in 1998. After this, the rate fluctuated for a few years, but remained below 450. Trend for local jails The rate of incarceration for local jails started from 1940 and remained steady below 100 till 1980. Following this there was an increase in the rate, reaching a maximum of 250 in the year 2007. Trend for federal prisons The rates have been the lowest for federal prisons during the entire timeline shown in this figure. From 1925 to 1985, it remained steady between 10 and 20. Following this, there was a slight increase. The maximum rate is around 80 in 2012. Meanwhile, several states have made significant changes to their sentencing laws in recent
- 1078. years. Since the prison populations in these states have been some of the highest nationwide, these changes have had a dramatic impact on the nationwide rate of incarceration. In one example, California’s realignment efforts have led to significant changes in the state’s incarceration population. In 2011, the U.S. Supreme Court ruled that the current state of overcrowding and the resulting conditions of the state’s prisons were a violation of the prisoners’ Eighth Amendment protection against cruel and unusual punishment. As a result, the California Department of Corrections was required to substantially reduce the state’s prison population. To bring the prison population to 137.5% of the institutional design capacity, the state needed to reduce its prison population by 40,000 prisoners (Brown v. Plata, 2011). As part of the efforts to reduce the population in the state prisons, correctional officials shifted much of the correctional supervision of lower-level offenders, parolees, and parole violators to the local governments. The state legislature also
- 1079. altered how the state punishes felony crimes. Historically, felons were sent to the state prison and only misdemeanor offenders served their time in local jail facilities. The introduction of Assembly Bill 109 reclassified certain felonies (nonviolent, not serious, and nonsexual offenses) to permit offenders to serve their time in county jails. Additional legislation allows offenders to receive good time credits based on time served as well as on participation in specialized 729 programming.27 As a result of California’s realignment plan, the state prison population has seen dramatic changes, both in terms of its overall size and also in terms of the types of offenders who remained housed in the state prison facilities. While there were noted changes in the prison population for both male and female offenders, women saw proportionally
- 1080. greater reductions. As to type of offender, those who remain in prison are more likely to be violent offenders. As a result of realignment practices, nonviolent and drug offenders are now no longer housed in California’s prison facilities. Figure 11.5 demonstrates how these efforts, coupled with other changes in legislation, have led to a significant decrease in the state prison population. In one example of new legislation, California voters passed Proposition 47 (Safe Neighborhoods and Schools Act) in 2014 with 59% of the vote. This policy changed several nonviolent offenses, such as writing bad checks, drug possession, and shoplifting, from felony crimes to misdemeanors.28 Figure 11.5 Public Safety Realignment and California’s Prison Population Source: Public Policy Institute of California, “Public Safety Realignment: Impacts So Far,” September 2015, http://www.ppic.org/publication/public- safety-realignment-
- 1081. impacts-so-far/. Reprinted with permission from Public Policy Institute of California. The figure is titled, Public Safety Realignment and California’s Prison Population. Total prison population is plotted on the vertical axis on a scale of 100,000 to 170,000, in increments of 10,000. For every year from 2010 to 730 http://www.ppic.org/publication/public-safety-realignment- impacts-so-far/ 2015, the four quarters are plotted on the horizontal axis, starting with Jan 2010 and ending with July 2015. The four years of realignments are as follows: 1st year of realignment: Oct 2011 to Oct 2012 2nd year of realignment: Oct 2012 to Oct 2013 3rd year of realignment: Oct 2013 to Oct 2014
- 1082. 4th year of realignment: Oct 2014 to - Proposition 47 is marked between Oct 2014 and Jan 2015. The trend starts at around 168,000 and remains steady till Oct 2011, the beginning of the first realignment, following which there is a drastic decrease in the prison population to reach about 132,000 in Oct 2012. This population is maintained throughout the remaining realignment phases. Following Proposition 47, there was another decrease in the population leading to <130,000 in July 2015. In addition to California’s realignment efforts, several other states have enacted new legislation that has impacted sentencing and incarceration practices. In Georgia, the state legislature passed House Bill 349, which reinstated judicial discretion for some drug-related cases and allows judges to depart from mandatory sentencing
- 1083. schemes.29 Mississippi recently passed legislation that reduced the minimum amount of time served of a sentence for nonviolent offenders from 85% to 25%, resulting in a significant reduction in its long-term prison population.30 Several other states have considered either closing facilities or reducing bed space. Incarceration is an expensive investment. California spends more than $47,000 a year to incarcerate each inmate. Security costs make up more than $19,000 of this amount. Inmate health care is also expensive, with costs of more than $12,000 a year per person. Alas, rehabilitation costs make up the smallest portion of the budget, with only $1,612 spent on each inmate yearly for academic education, vocational training, and substance abuse programs.31 New York spends the most per inmate, with an average annual cost per inmate of $60,076. In contrast, the average annual cost per inmate in Kentucky state prisons is
- 1084. $14,603.32 A recent study of 40 state correctional budgets indicates that almost $39 million is spent each year incarcerating inmates in state-run facilities.33 In addition to the costs of caring for an inmate behind bars, taxpayers are also faced with the administrative costs of staffing. Between 2010 and 2015, New York residents paid more than $3.5 billion, including $179 million in contributions to prison guard pensions and $223 million toward the health care of retired correctional employees. 731 732 Federal Prisons Federal prisons are designed to hold people convicted of federal
- 1085. crimes. The Bureau of Prisons (BOP) was established in 1930. At the time that the BOP was established, there were only 11 federal prison facilities. By 1980, there were 44 such institutions. However, many of these facilities were small, and the total number of inmates in them was fewer than 25,000. Over the next two decades, both the number of institutions and the inmate population exploded as a result of laws such as the Sentencing Reform Act of 1984, which not only introduced determinate sentencing practices but also abolished parole and reduced the availability of good time credits that inmates could earn toward their release. Subsequent laws introduced minimum sentencing practices for a number of crimes, including drug-related crimes.34 Federal prisons: Prison facilities used to hold offenders convicted of federal crimes. In April 2018, there were 183,755 inmates housed in federal prisons. Eighty-four percent of
- 1086. inmates were housed in facilities run by the BOP, and 11% were housed in privately managed facilities. An additional 5% of inmates were housed in community-based facilities.35 The majority of inmates were male (93.1%) and White (58.4%), though Blacks made up 37.9% of inmates, 32.8% of inmates identified as Hispanic, and 28% of federal inmates were not U.S. citizens. The majority of offenders were between the ages of 31 and 40 (36.4%).36 Table 11.1 presents the representation of the different offenses among the federal prison population. Notice that the majority of offenders are incarcerated for drug-related crimes, the majority of which involved powder or crack cocaine. Crack cocaine offenders have historically been sentenced to 10 years or more as a result of mandatory minimum sentences and are predominantly Black (88%).37 Prior to the crime that resulted in their federal prison sentence, 35% of inmates had a limited criminal history and had never
- 1087. been incarcerated. The majority of offenders are sentenced to 5 to 10 years (25.5%). Only 2.8% of offenders (5,387) are incarcerated for life. Another 57 offenders have been sentenced to death, though the last federal execution was in 2003.38 Table 11.1 733 734 Private Prisons In 2015, the most recent year for which data was available at the time of this writing, 126,000 inmates were housed in privately run facilities in 29 states.39 This refers to inmates under the
- 1088. jurisdiction of either the federal or state government and who are physically housed in a privately owned facility. While this number marks a decrease in recent years, the private prison population has increased 83% since 1999. Overall, inmates under state correctional authority make up 72% of the private prison population. Texas housed the greatest number of inmates in private facilities in 2015, with 14,293 inmates. Florida followed closely behind with 12,487 inmates, and Georgia (7,953), Oklahoma (7,446), and Arizona (6,471) rounded out the top five. During the Obama administration, the White House issued a directive to phase out the use of private prisons to house federal inmates. This decision was made based on the findings of a 2016 audit that showed private facilities had more security violations compared with institutions run by the BOP.40 In February, Attorney General Sessions reversed this policy, arguing that “the memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional
- 1089. system. Therefore, I direct the Bureau to return to its previous approach.”41 Some have criticized this move, arguing that the need for private prisons may increase due to the rolling back of many Obama-era directives by Sessions on issues such as the war on drugs. Private prison corporations could also benefit from the increased enforcement of illegal immigration and subsequent incarceration of such individuals during the Trump administration.42 Private prisons: Prisons that are used to house inmates when bed space is unavailable in state or federal facilities. The largest private prison entity is Corrections Corporation of America (CCA). CCA’s largest state client is California, which houses more than 8,000 of its inmates in facilities in Arizona, Mississippi, and Oklahoma. For this service, California pays $214 million to CCA. In comparison, the federal government paid CCA $752 million to house inmates for the U.S.
- 1090. Marshals Service, the BOP, and Immigration and Customs Enforcement.43 There are currently about 130 private prisons nationwide that offer 157,000 beds for hire.44 The need for private prisons resulted from the dramatic growth in prison populations during the late twentieth century. States could simply not keep up with the number of inmates that they needed to house. A lack of bed space in state and federal prisons means that inmates can 735 be sent to privately run facilities. Companies can engage in competitive-bidding practices to build and manage such facilities. Private prisons are also not subjected to the same levels of bureaucracy that state and federal facilities are.45 Finally, private prisons can be built and house inmates on an individual basis and, in turn, charge a state
- 1091. or the federal government for this cost. This means that these governments do not have to provide the startup costs of building a facility. While the federal government does not collect data on whether private prisons are more cost-efficient than government prisons, some researchers have conducted their own analyses. In one study supported by the National Institute of Justice, researchers indicated that the cost to incarcerate a federal inmate at Taft Correctional Institution, a private prison, ranged between $33.25 and $38.37 per day per inmate. In comparison, housing an inmate in a publicly run facility cost between $39.46 and $46.38 per day per inmate. The average cost savings at Taft CI were about 15% lower than the government facility.46 Yet not all states have had the same experience: Arizona paid $10 million more to incarcerate its state prisoners in private facilities.47 There is an incentive for private prisons to maintain their inmate populations. In 2012, CCA
- 1092. offered all mainland states the opportunity to sell their prison facilities to the corporation. In exchange, states would pay CCA a per-inmate cost to run the facility. One of the largest pitfalls of CCA’s offer was that it was contingent on a 20-year contract and required that states maintain a 90% occupancy rate. While no one accepted the offer, the use of guaranteed fill rates is not uncommon in the private prison sector. In these cases, states are required to pay for unused beds.48 There is no guarantee that inmates will be housed in a facility that is located in their own state. For example, Hawaii sends a number of its inmates to a private prison in Arizona, paying $60 million a year to house and rehabilitate these offenders. The Saguaro Correctional Center in Eloy, Arizona, was built primarily to house Hawaiian prisoners. In designing the prison, CCA consulted with cultural advisers to incorporate traditional Hawaiian foods, holidays, and ceremonies into the culture of the facility.49
- 1093. Nonetheless, there have been several lawsuits against the facility. Two families filed wrongful death lawsuits against Saguaro for failing to control gang violence in the prison, failing to classify inmates appropriately, and failing to adequately staff the facility.50 Another class action lawsuit alleges that the facility violated the inmates’ rights to religious practice.51 Following several inmate charges of abuse, 243 inmates were returned to the islands to serve out the remainder of their 736 sentences.52 The Saguaro Correctional Center is not the only private prison in Arizona that is experiencing problems. Between 2008 and 2010, there were more than 28 riots in six private
- 1094. prisons in Arizona.53 Research on private prisons indicates that these facilities are more likely to have problems in maintaining safety and security. For example, a prison escape is often symbolic of several failures within a facility. Although a prison escape is generally a rare event, private prisons have seen more of these incidents compared with their public counterparts. Private prisons also have a higher turnover rate. This means that much of the line and supervisory staff in private prisons are relatively inexperienced.54 Certainly, much of the news reporting on private prisons is critical and highlights individual negative events. However, the limited research in this area makes it difficult to grasp whether private prisons in general are problematic or if the issues are concentrated in specific facilities. 737 Military Prisons
- 1095. Military prisons are facilities designed to house individuals who are convicted of a crime while a member of the armed forces. In 2014, 1,409 members of the armed forces were incarcerated in military prisons for sentences greater than one year. The majority of these individuals were from the army (54%). Forty-three percent were incarcerated due to a violent crime, 24.4% were convicted of a violent sexual offense, and an additional 37.2% were convicted of a nonviolent sex offense. This means that 61.7% of all offenders in military prisons for all branches were incarcerated for sexuall y based crimes.55 Military prisons: Prisons that are designed to house individuals who are convicted of a crime while a member of the armed forces. Military prisons can house inmates from all service branches, but each branch can also coordinate separate institutions. There are six consolidated
- 1096. facilities in the United States and one in the United Kingdom. The U.S. Army has two independent institutions—one in South Korea and one in Germany. The U.S. Marine Corps operates two facilities—one in Japan and one at Camp Pendleton, which is located in California. The U.S. Navy operates the largest number of facilities both in the United States and abroad. And these facilities are not located only on land; several ships have their own brigs to isolate and punish offenders. Prior to its use as a federal prison, Alcatraz Island was a military prison that housed both military inmates and citizens accused of treason during the Civil War. The island served in this capacity from 1850 to 1933.56 Fort Leavenworth, in Leavenworth, Kansas, is perhaps the most widely known current military prison in the United States. In addition to housing a U.S. penitentiary on its grounds, it houses 671 inmates between two different military facilities: the United States Disciplinary Barracks and the Midwest Joint Regional
- 1097. Correctional Facility. Six offenders who have been sentenced to death are also housed on the grounds, although there have been no executions under military authority since 1961. One of these individuals is Nidal Hasan, who was an army psychiatrist stationed at Fort Hood, Texas. In 2009, Hasan killed 13 individuals and injured several others.57 The Midwest Joint Regional Correctional Facility is also home to Chelsea Manning, who was sentenced to 35 years for releasing more than 750,000 pages of classified documents in 2013. At the time of the crimes, Manning went by the name Bradley.58 Following her conviction, Manning 738 successfully sued for the right to receive treatment for gender dysphoria, which included psychological counseling and hormone treatments.59
- 1098. 739 Prison Security Levels States and the federal government have a variety of different types of prisons that are typically organized by security level. Generally speaking, there are four categories of prison security, although some states may have up to seven different security levels. This refers to how restrictive the security of a facility is. Each of these categories differs in terms of the physical design of the facility, how it is staffed, and the types of operational policies that are in place. Figure 11.6 presents the number of federal inmates per security level. Figure 11.6 Number of Inmates by Federal Prison Security Level Source: Federal Bureau of Prisons, “Prison Security Levels,” June 20, 2018,
- 1099. https://www.bop.gov/about/statistics/statistics_inmate_sec_leve ls.jsp. 740 https://www.bop.gov/about/statistics/statistics_inmate_sec_leve ls.jsp Alcatraz Prison, which sits in the San Francisco Bay, is perhaps one of the most famous historical federal prisons. It was operated as a federal maximum security prison between 1934 and 1963 and housed some of the nation’s most notorious offenders. In what way did Alcatraz represent a shift in correctional focus? © Library of Congress/Prints and Photograp hs Division/Carol M. Highsmith Archive 741 Built in 2010 to hold inmates in solitary confinement, Colorado
- 1100. State Penitentiary II was mothballed just two years later as officials moved away from the practice and the inmate population sharply declined. The prison’s 948 single-bed cells now sit empty, and supporters say filling them with Guantánamo detainees would be a perfect use for the shuttered prison that still costs $20 million each year. What would be the pros and cons of moving Guantánamo detainees here? © AP Photo/Brennan Linsley, File A minimum-security prison is the least restrictive level of incarceration. Minimum-level prisons are designed to give inmates the highest degree of movement and autonomy and acknowledge that these inmates, while subject to punishment for their crimes, are generally not a violent risk to the community. Many minimum-level facilities have limited or no fencing around the perimeter of the institution. Minimum- security prisons may have dormitory-style housing where several inmates reside in a space. In some states, minimum-
- 1101. security inmates are required to participate in rehabilitative programming to help prepare them for their return to the community. The majority of prisons in the United States are classified as minimum-level prisons. In the federal system, there are minimum-security and 742 low-security facilities. Minimum-security prisons are known as federal prison camps (FPCs), and low-security prisons are called federal correctional institutions (FCIs). Placement in these facilities is determined by the institutional behavior of the inmate, the inmate’s history of violence, and the length of time left on the inmate’s sentence. Generally speaking, inmates with less than 10 years remaining on their sentence are housed in FPCs and inmates with less than 20 years remaining are housed in FCIs. Just over 17% (17.2%) of federal inmates are housed in minimum-security prisons, and 37.4% of inmates are housed in low-security
- 1102. prisons. Minimum-security prison: The least restrictive level of incarceration. Minimum-security prisons are designed to give inmates the highest levels of movement and autonomy, and they acknowledge that these inmates, while subject to punishment for their crimes, are generally not a violent risk to the community. Medium-security prisons have an increased level of security compared with minimum- security prisons. There is less freedom of movement, and inmates are more likely to be housed in cells with another offender or in smaller dormitory- style units. Institutions may have a guard tower that serves to keep watch over the perimeter of the facility. The increased security of the facility means that the inmate-to-staff ratio is higher than in a minimum- security prison. These inmates may have a history of violent behavior or be an escape risk. As a result, these facilities tend to have increased physical barriers to maintain the safety and
- 1103. security of the community. At the federal level, medium- security prisons are also referred to as federal correctional institutions, though inmates housed in these facilities tend to have a more significant history of violence. Almost 30% (29.8%) of federal inmates are held in medium-security prisons. Medium-security prison: A prison that has an increased level of security and less freedom of movement than a minimum-security prison. A maximum-security prison is designed to house serious and violent offenders. Inmate movement and autonomy are significantly restricted. Inmates housed in maximum-security prisons are often a risk to themselves, other inmates, and staff. A number of inmates die each year due to prisoner-on-prisoner violence, often related to gang rivalry. These prisons tend to have the highest staffing levels. At the federal level, maximum- security prisons are known as United States penitentiaries. Nearly 12% (11.7%) of federal inmates are held in high- or
- 1104. maximum-level security facilities. 743 Maximum-security prison: A prison that is designed to house serious and violent offenders. Inmate movement and autonomy is significantly restricted. Finally, some facilities and units are designated as supermax and are designed to house the worst of the worst. The term supermax is short for super maximum. It refers to “a highly restrictive, high-custody housing unit within a secure facility, or an entire secure facility, that isolates inmates from the general prison population and from each other due to grievous crimes, repetitive assaultive or violent institutional behavior, the threat of escape or actual escape from high-custody facility(s), or inciting or threatening to incite disturbances in a correctional institution.”60 Inmates housed in supermax
- 1105. facilities are generally locked up in individual cells for 23 hours a day and are kept in solitary confinement. Contact with guards and other professionals is significantly limited, and inmate-to- inmate contact is typically eliminated. In most cases, inmates in supermaxes are permitted little or no access to programming. At the end of this chapter, you’ll learn about the controversy over solitary confinement, which has existed throughout the history of the American prison system and is a key feature of the supermax unit. What makes supermax confinement unique is that supermax offenders are normally housed in segregation for lengthier periods than in regular segregation units.61 Supermax: Prisons designed to house the worst of the worst offenders. Inmates are confined to their cells for 23 hours a day. The emergence of the modern-day supermax was ignited by the murder of two correctional
- 1106. officers by inmates at the federal prison in Marion, Illinois, in 1983. This incident fueled an extended lockdown at the prison for 23 years and essentially made Marion a full-scale supermax facility. Over time, Marion became a model for future supermax units such as Pelican Bay in California and ADX Florence in Colorado (which currently houses the Unabomber, Ted Kaczynski; Zacarias Moussaoui, the only person convicted in relation to the 9/11 attacks; and Dzhokhar Tsarnaev, the Boston Marathon bomber). Violence in American prisons had always been a serious concern, with inmate riots and rebellions flourishing during the middle of the twentieth century. The Marion incident also happened at a time when criminal justice policy was growing more stringent and tolerance for crime and disorder was rapidly declining.62 Currently, there are at least 62 facilities that are classified as supermax facilities or that are supermax units operated within another prison. 744
- 1107. 745 Inmate Classification In order to determine the type of prison that an inmate should be housed in, the inmate is first sent to a classification center (also referred to as a reception center, intake unit, or diagnostic center). Here, the inmate is evaluated based on her or his static and dynamic risk factors. Static risk factors are characteristics about an offender that do not change. Examples of these include number of prior arrests, age at first arrest, or other criminal history variables that are good predictors of risk. Dynamic risk factors, also known as criminogenic (crime- producing) needs, are characteristics or situations involving the offender that can change, such as substance abuse addictions, educational level, or peer associations. For example, during
- 1108. their initial classification, inmates sentenced in Massachusetts are evaluated on several factors including the severity of the current offense, prior criminal history during the past four years, any history of escapes or violence in prison, and their age, educational level, and employment status. Inmates are reassessed annually on these factors as well as on their participation in rehabilitative programming and their disciplinary record.63 Static risk factors: Characteristics about an offender that do not change, such as number of prior arrests, age at first arrest, or other criminal history variables. Dynamic risk factors: Also known as criminogenic (crime- producing) needs, these are characteristics or situations involving the offender that can change, such as substance abuse addictions, educational level, or peer associations. As part of their evaluation process, many facilities have turned to formal risk assessment tools to assist in their decision making. Risk assessments are also
- 1109. used in other areas of the criminal justice process, such as in presentencing decisions and probation and parole supervision. Many believe that the use of validated risk/needs assessment tools is a major advancement in offender management and treatment. Indeed, there are many reasons why risk/needs assessments are important for criminal justice professionals. First, the information gathered by the assessment can help guide and structure decision making. It aids criminal justice personnel in determining who goes where, whether it is custodial placement for prison inmates or a supervision level for individuals in the community. Second, it helps reduce bias by eliminating extralegal factors such as race or gender from consideration in the determination of risk. Third, it aids in legal challenges since individuals have a right to be placed in the most appropriate housing or treatment. If we do not assess offenders accurately, we may place them in housing that is more restrictive than necessary or assign (or fail to
- 1110. 746 assign) them to treatment programs without a legitimate basis for doing so. Fourth, using assessments helps utilize resources better because when we are able to place the individual in the best possible treatment environment, we get the most for the money that is spent on treatment. Finally, assessments enhance public safety because they allow us to know which individuals are higher risk and thus place those people in more restrictive environments so the likelihood of future victimization is decreased.64 While risk/needs assessments have been adapted in most states to assess offenders, these tools are not without criticism. One of the primary areas of critique is that the predominant assessment tools were developed to evaluate the needs of the majority population behind bars —men. Research has noted that these tools often do a poor job at assessing the unique needs
- 1111. of women in prison. Such tools also lack cultural competencies, a significant issue given the number of men and women of color who are incarcerated. Failure to acknowledge not just race, ethnicity, and gender but also the intersectionality of these issues may mean that offenders will be overclassified—that is, classified at a higher level than their needs require. This can lead to challenges in accessing appropriate and effective treatment programs for individuals.65 747 Issues in Incarceration 748 Racial Disproportionality
- 1112. Racial disproportionality exists when inmates of color are overrepresented in the prison population when compared with their representation in society in general. If we look at prison populations across the United States, Black men make up 37% of the male prison population, compared with 32% of White men and 22% of Hispanic males. For young inmates, Black males have the greatest disparity of incarceration; they are 10 times more likely to be in prison when compared with similarly aged White men.66 Women of color are also overrepresented among prison populations.67 In particular, Black women are between 1.6 and 4.1 times more likely to be imprisoned than White women.68 Racial disproportionality: Occurs when inmates of color are overrepresented in the prison population when compared with their representation in society in general.
- 1113. In Chapter 6, you learned how criminal justice policies have impacted incarceration rates. While many of these policies were intended to create a race- neutral system, they have had the opposite effect and have resulted in significant racial disparities among the prison population. The loss of men and women of color to the prison system also has a significant impact on communities. 749 Overcrowding Overcrowding occurs when there are more individuals in a prison than the facility is designed to house. The BOP and at least 18 states are currently deal ing with issues of prison overcrowding.69 Data indicate the total number of inmates that the federal system is rated to hold is 132,731. With its current population, these facilities are operating at 128% of
- 1114. capacity. While California was once one of the worst offenders, recent changes to its state policy have moved the prison population to within 93% of its operational capacity. However, other states remain serious offenders. For example, Delaware prisons currently house 6,730 inmates, even though these facilities were designed to house only 4,161 inmates. Similarly, Illinois prisons house 48,278 inmates, which is 171.1% of their design capacity. On the flip side, some state prisons, such as those in Mississippi and New Mexico, are at only half of their organizational capacity. Overcrowding: Occurs when there are more individuals in prison than a facility is designed to house. Overcrowding has a number of significant consequences for both inmates and staff. As inmate populations increase, facilities may struggle to provide adequate space to house offenders. This often leads to two or three offenders sharing a cell that was meant to house a single individual. Larger spaces such as gyms are repurposed to create open dormitories. The
- 1115. number of inmate jobs decreases, and options for and availability of rehabilitative programming such as school programs, job training, and drug treatment can be reduced. Overcrowding also can lead to increased tensions between inmates, which, in turn, can increase the levels of misconduct. Not only can this threaten the safety of the inmates but it can also impact the health and welfare of the prison staff. 750 Due to tough-on-crime policies such as the war on drugs, the number of people incarcerated has grown significantly, to the point that many facilities are overcrowded. Many facilities are faced with converting spaces that were never meant to house inmates into dormitory-style housing. What steps are being taken to address this issue? Gary Friedman/Los Angeles Times/Getty Images 751
- 1116. Incarceration of Women Since the 1980s, the number of women incarcerated in the United States has multiplied at a dramatic rate due to policies such as mandatory minimum sentences and the war on drugs. At year-end 2015, there were 111,495 women incarcerated in prisons in the United States. Table 11.2 offers a profile of women found in the criminal justice system today. Much of the rise in female criminality is the result of minor property crimes, which reflects the economic vulnerability that women experience in society, or cases involving drug-related crimes and the addiction issues facing women. Women of color are significantly overrepresented behind bars; research indicates that Black women are incarcerated at rates higher than any other females.70 Table 11.3 highlights the rates of incarceration of White, Black, and Hispanic women.
- 1117. Poverty is also an important demographic of incarcerated women as many (48%) are unemployed at the time of their arrest, which affects their ability to provide a sustainable environment for themselves and their children. It can also limit their eligibility to receive bail or have the financial means to pay a cash bond. Women also struggle with limited education and a lack of vocational training. For example, 29% of women in custody in New York have less than a fifth-grade reading ability. Yet many prison facilities provide limited educational and vocational training, leaving women ill prepared to successfully transition to the community following their release. Of the 64% of women who enter prison without a high school diploma, only 16% receive their GED and only 29% participate in any form of vocational training while they are incarcerated.71 Table 11.2 Table 11.3
- 1118. 752 * Includes American Indians and Alaska Natives; Asians, Native Hawaiians, and other Pacific Islanders; and persons of two or more races. Source: E. Ann Carson and Elizabeth Anderson, Prisoners in 2015, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2016, https://www.bjs.gov.content/pub/pdf/p15.pdf. The rise in the female prison population collides with the issue of overcrowding, which limits the ability of institutions to provide the physical and mental health services that are often required for women in custody. Incarcerated women are 3.7 times more likely to experience physical or sexual trauma in their lives compared with women in the general population.72 Given this, it is not surprising that the incarcerated female population has a high demand for
- 1119. mental health services. Women in prison have significantly higher rates of mental illness compared with women in the general population. Official data indicate that 13% of women in federal facilities and 24% of women in state prisons have been diagnosed with a mental disorder.73 Women also face a variety of physical health needs, yet there are often limited diagnostic or treatment options behind bars. 753 https://www.bjs.gov.content/pub/pdf/p15.pdf Financial Issues Behind Bars One of the myths about prison life is that everything is provided for inmates. “Three hots and a cot” is a phrase thrown about that indicates inmates are provided food and shelter. Some have complained over the “free” medical care and education that inmates receive. However, a review of these sorts of programs notes that prison life is
- 1120. anything but free. Medical care is one of the top five greatest expenditures for correctional institutions, and these costs are only expected to increase as tough-on-crime sentencing practices mean that inmates will continue to burden prison medical systems as they age.74 Recently, a female inmate who was dying of pancreatic cancer cost California over $100,000 in overtime fees alone for guards to supervise her during the 36 days that she was hospitalized prior to her death.75 As state institutions look for ways to reduce costs, many have adopted health care payment fees, which can range from $2.00 to $5.00 for a medical visit. That may not sound like much compared with the $15.00 to $20.00 that most insurance plans charge for the average individual, but consider the context. Inmate jobs pay very little—inmate wages can be as low as $0.13 per hour, with the average prison job paying $0.93 per hour. Depending on the state, these wages are taxed at anywhere between 30% and 50%. One inmate who worked in a prison kitchen reported he
- 1121. made between $5.25 and $8.75 per week after administrative costs.76 Given this context, paying between $2.00 and $5.00 for a medical visit is a significant burden. Phone calls can also be prohibitively expensive—a 15-minute call can range from $5.15 to $10.00.77 The availability of funds in an inmate’s commissary account can be a status symbol behind bars. However, this can be a difficult process to negotiate, both inside and out. Family members can deposit funds for their loved one if they have the financial means, but these funds often take a significant amount of time to be processed. In addition, these contributions are subjected to fees by the institution. In California, deposits to an inmate’s commissary account are taxed at 50% to satisfy any restitution orders, and there is an additional 10% administrative fee.78 Many inmates express feeling guilty for asking their family members to contribute to their accounts because they know it is a burden for
- 1122. them to do so. In some cases, having family members send (or withhold) money is a symbol of the inmate–family relationship: Inmates with strong familial relationships are likely to have deposits made to their accounts, while inmates with deteriorating or poor relationships are less likely to receive such support.79 754 Given the tenuous financial circumstances that many individuals find themselves in prior to arriving at prison, the cost of life behind bars can not only exacerbate preexisting physical and mental health conditions but also place additional strain on the relationships that are essential to recovery, rehabilitation, and reentry. 755
- 1123. Prison Misconduct The U.S. Constitution requires that prisons make a reasonable effort to keep inmates safe. Prison misconduct can threaten the safety and security of a facility. There are several different forms of misconduct behind bars. These include violence, drug use, rule violations, and security-related violations.80 Prison misconduct: Refers to acts of violence, drug use, rule violations, and security-related violations that can threaten the safety and security of a facility. There are several factors that predict higher levels of prison misconduct. For example, younger inmates tend to have higher rates of prison misconduct compared with older inmates. Inmates with longer sentences are also more likely to engage in acts of misconduct, as are inmates sentenced to medium- or maximum-security facilities. Finally, gang members,
- 1124. sex offenders, and those who have a history of mental health issues have higher rates of violence behind bars.81 Factors such as criminal history, facility security, overcrowding, racial tensions between inmates, and administrative practices can also contribute to incidents of misconduct. Prison Gangs Prison gangs are a constant threat to the safety and management of the facility. Prison gangs first emerged in California facilities during the 1950s. Research estimates that 12% to 16% of inmates are gang involved.82 Prison gangs are organized primarily by race and ethnicity. Some of the most prominent organizations include the Mexican Mafia (La Eme), the Aryan Brotherhood, the Black Guerrilla Family, La Nuestra Familia, and the Texas Syndicate.83 Prison gangs are primarily involved in the underground drug
- 1125. market in prison, and the majority of prison violence is attributed to these activities. 756 Tattoos provide identification of the various prison gangs. How does the presence of gangs in prison impact prison culture and violence? Andrew Lichtenstein/Corbis News/Getty Images Prison Riots Prison riots have been in existence since the emergence of the modern prison. Early research on the causes of prison riots indicated that they occurred as a result of either shifts in prison authority or changes to the conditions behind the prison walls.84 Consider the events at Attica in September 1971. More than 1,000 inmates took control of the facility and held 42 correctional officers and other staff members hostage as they
- 1126. made demands to the state about the treatment of inmates, lack of medical treatment, and general prison conditions. In the early hours of the riot, a correctional officer by the name of William Quinn died as a result of injuries sustained from being beaten by the inmates and thrown from a second-story window. After four days of unsuccessful negotiations, Governor Nelson Rockefeller issued orders for state police to take back control of the prison by force. After dropping tear gas and firing more than 3,000 rounds, the police were successful in regaining control, but not without injury and casualties to the inmates as well as the hostages. While early reports from the authorities indicated that the inmates had slit the throats of 10 hostages, the autopsies 757 found that all of these officers died as a result of gunfire by the police. Twenty-nine inmates were also killed, and another 89 suffered from injuries as a
- 1127. result of the actions by the state police.85 Unfortunately, the riot did little to stem the violent abuses by the staff, and only one officer was indicted for his abusive treatment of the inmates.86 Sixty-two prisoners, however, were indicted for their actions during the riot. While a lawsuit representing the inmates was filed against the prison and state officials in 1974, it wasn’t until 2000 that the suit was settled for $8 million. Indeed, it has taken more than four decades for many of the details about the riot and the abuses that followed to be made public.87 Since the days of Attica, prison riots have continued to occur. The 1980 riot at the New Mexico State Penitentiary was the result of changes in the management of the prison combined with a shift in prison culture that eliminated inmate employment opportunities and related programs. Tensions between inmates began to increase as few incentives for prisoners to comply with the rules of the facility remained. The
- 1128. breakdown of communication between the inmates and the prison administration further contributed to the rising tensions.88 The riot at the New Mexico State Penitentiary stands as one of the most violent events in prison history, with more than 200 inmates injured and 33 killed.89 Recent events across the nation, including one at a private prison in Arizona in July 2015, indicate that poor prison conditions, coupled with overworked officers who have limited training, lead to inmate uprisings.90 Racial tensions and gang violence have also led to several riots across prisons in California. Yet despite the rate at which these events make the news, the number of prison riots and the deaths that result from such events are actually decreasing. Much of this decline can be attributed to changes in who is incarcerated. Over the past three decades, we have significantly increased the number of individuals who are
- 1129. incarcerated for nonviolent crimes. It is these inmates who make up the majority of prison populations nationwide and reside in minimum- and medium-level secure facilities. Meanwhile, those violent inmates who once ruled the prison yard are today housed in facilities and units where there is far less freedom of movement.91 Despite these shifts, prison overcrowding continues to be a major risk factor for and contributor to prison violence.92 Indeed, as resources for inmate programming and space continue to decrease, we may see an increase in violence within the walls of these institutions. Sexual Misconduct 758 Sexual misconduct is another threat within prisons. One of the more significant efforts to combat this form of victimization is the Prison Rape
- 1130. Elimination Act of 2003. One of the challenges to understanding the extent of sexual violence in prisons is that these acts often go unreported. The Bureau of Justice Statistics (BJS) annually collects data on the characteristics of prison rape by surveying former prisoners who have been released on parole. The most recent data indicate that 9.6% of former prisoners reported at least one incident of sexual misconduct during their most recent incarceration period. About half of these experiences occurred between inmates, and the other half occurred between staff and inmates. In the majority of the staff–inmate experiences, the former inmates characterized these events as consensual. In comparison, the majority of inmate-on-inmate acts were nonconsensual. Women were three times more likely than males to experience inmate-on-inmate victimization. Race and ethnicity statistics also show differences in victimization, as White, non-Hispanic male inmates and multiracial male inmates have higher rates of this form of victimization compared with Black, non-Hispanic inmates. Finally, those who identified as
- 1131. bisexual and homosexual were more likely to be victimized than heterosexual inmates.93 While the National Prison Rape Elimination Commissions have made a number of recommendations to reduce the extent of abuse within confinement facilities, many of these reforms are costly and out of reach. Public officials have also argued that conducting annual reviews of abuse would be too costly. However, allowing such abuse to continue is also an expensive burden since the emotional experience of victimization impacts inmates long after they have departed the facility. In addition, the failure to respond to systemic abuse within the prisons places facilities at risk for lawsuits by inmates and their families. In 2007, Alabama paid a $12.7 million settlement in response to a class action lawsuit by 48 girls who served time at a state youth correctional facility. 759
- 1132. Legal Rights of Prisoners In addition to due process rights and protections for those who are accused of a crime, prisoners also retain several constitutional rights. However, this hasn’t always been the case. It was once the prevailing legal philosophy that prisoners forfeited their constitutional rights as a consequence of their crimes. Cooper v. Pate (1964) shifted this philosophy and opened the floodgates on prisoner litigation. Thomas Cooper filed suit saying that he was denied his right to practice his religion as a Black Muslim. Not only did the Court agree that the prison violated Cooper’s First Amendment rights; in handing down their decision, the justices established the rule that state prison inmates could sue the state in federal court under Section 1983 of the Civil Rights Act of 1871, which allows for individuals to sue governmental units if their policies violate an individual’s constitutional rights.94 760
- 1133. Spotlight The Incarceration of the Mentally Ill During the late 1950s, more than a half million individuals were housed in state psychiatric facilities. Over time, the move to deinstitutionalize these individuals meant that very few remained in mental hospitals while the majority transitioned into the community.a Yet the failure to provide viable resources meant that many went untreated. Over time, shifts in criminal justice policies meant that jails and prisons became the new asylums for the mentally ill. By 2005, research indicated that over half of prisoners in state and federal prisons had a mental health issue. A review of state prisoner mental health issues found that 43% of state prisoners experienced symptoms of mania,
- 1134. 23% reported symptoms of clinical depression, and 15% met the DSM criteria for a psychotic disorder.b Figure 11.7 demonstrates the extent of mental health care for inmates both prior to and after admission to prison or jail. Many of these cases are left untreated; only 38% of state prison inmates had used prescription medications and only 35% had received therapy from a mental health professional prior to their incarceration. Inmates with mental health issues are more likely to have issues with substance abuse and are more likely to be homeless prior to their arrest. The backgrounds of those with mental health issues are also dramatically different than those of individuals without such problems. For example, inmates with a mental health issue are more likely to have a family member incarcerated during their lifetime, are more likely to have received public assistance while growing
- 1135. up, and are more likely to have a history of physical or sexual abuse.c Figure 11.7 Mental Health Treatment of Offenders in Prison or Jail Graph 1 shows the percentage of offenders ever received mental health treatment. The data are shown in the table below. Graph 2 shows the percentage of offenders receiving mental health treatments while in prison/jail. The data are shown in the table below. 761 Not only is the number of inmates with mental health issues increasing; the severity of these illnesses is intensifying as well. Prisons now house more individuals with significant mental health issues than state
- 1136. psychiatric facilities. Alas, many of the traditional methods that prisons use to control the inmate population, such as restraining devices or solitary confinement, can increase the harm to inmates with these issues.d The pains of imprisonment, including separation from family and adapting to the prison environment, can exacerbate mental health conditions. In addition, many offenders with life sentences (45%) experience suicidal ideation upon receiving their sentence.e Data demonstrate that once inmates enter a correctional facility, their access to mental health treatment decreases. Unfortunately, the standard course of treatment in many facilities involves prescription psychotropic medications. Often, these medications are prescribed in excess and often in lieu of counseling or other therapeutic interventions. For example, one study indicated that 21 of the
- 1137. 22 participants were given the prescription medication Seroquel,* * The manufacturer of Seroquel indicates that it is an antipsychotic medication used to treat schizophrenia and the acute manic and depressive episodes in bipolar disorder. which is used to treat bipolar disorder. Yet only one of the women was actually officially diagnosed with bipolar disorder. And while the manufacturer of Seroquel recommends that people who take this medication be reassessed at regular intervals, few of these inmates actual ly received such treatment while in prison. The study also indicated that although some drugs were readily available, the same did not hold true for all psychotropic medications. In some cases, prison doctors would prescribe new drugs to the inmates rather than continue to offer prescriptions for drugs that had been effective in the past.
- 1138. According to one inmate, “Prison doctors just do whatever they want; the opposite of what you were getting before you went in so that they can show you who’s boss. It’s just a way for them to show you how much control they have.”f To make these situations even worse, the failure to comply with a prescribed medication protocol can be grounds for a disciplinary action while in prison, and such behaviors can also be used against an offender during a parole hearing. Some inmates believed that their mental health status improved during incarceration because they were appropriately medicated, were no longer using illicit substances, and were engaged in therapeutic support programs. However, the majority of inmates believed that incarceration exacerbated their mental health issues and that a number of variables contributed to this. First, incarceration is a stressful experience, and stress can
- 1139. increase feelings of anxiety and insecurity. Second, the majority of resources for mental health were focused on crisis intervention, not therapy. In particular, “lifers” felt that they were often placed at the end of the list and were denied services due to their sentence. Finally, many of the inmates felt degraded and abused by the staff, which added to their trauma.g Research has led to several recommendations for reforming the experience of mentally ill prisoners. First, we need increased options in the community to help stabilize individuals before they become involved in the criminal justice system. Second, we need to implement diversion-style programs in lieu of incarceration. Third, facilities need to develop better screening tools for mental health issues and expand their services beyond traditional efforts, which are often limited to suicide prevention. Finally,
- 1140. states need to allocate adequate financial resources to provide appropriate levels of care for mentally ill individuals during their incarceration.h 762 763 Critical Thinking Questions 1. What challenges do prisons face in dealing with mentally ill inmates? 2. How can prisons improve inmate treatment access and options behind bars? Over the past 60 years, the Court has heard numerous challenges in the name of prisoner rights. For example, while the Fourth Amendment contains a basic right to privacy, inmates have very few legitimate expectations of privacy. Correctional
- 1141. officials may conduct searches (including strip searches) in the name of security95 and do not need a warrant in order to search an inmate’s cell or to seize materials and use them as evidence against the inmate.96 Just as those who are accused of a crime are entitled to be represented by legal counsel, inmates are also provided this right. In cases where a professional attorney is not available, the Court has held that prisoners have the right to consult inmate lawyers.97 In addition, prisons must provide adequate legal-library facilities so that inmates can exercise their right of access to the courts.98 In addition to Section 1983 litigations, federal habeas corpus is the other legal remedy available for convicted inmates. Its origins can be found within the Judiciary Act of 1789. These petitions allow individuals to challenge their confinement
- 1142. on both legal and factual issues to determine if their imprisonment is lawful. Habeas petitions are a civil action in which the incarcerated individual brings a case against the government and the warden is named as the defendant. In 1996, the Antiterrorism and Effective Death Penalty Act significantly reduced the parameters of habeas petitions by imposing a one-year statute of limitations and restricting the number of petitions that an individual can file to a single opportunity. An individual must be incarcerated to file a habeas petition, and the courts will only allow a habeas petition after all of the issues have been heard in the state courts (if the individual is a state inmate).99 Although recent policies have restricted the grounds upon which an inmate can pursue relief under a federal habeas petition, inmates can pursue both a Section 1983 and habeas claim for the same situation. For example, the case of Wolff v. McDonald (1974) was a class-action lawsuit involving several inmates in a Nebraska State prison
- 1143. that claimed prison disciplinary proceedings violated the due process clause of the Fourteenth Amendment. In their decision, 764 the U.S. Supreme Court held that prisoners do have the right to due process in disciplinary hearings, such as a written notice of the charges and evidence, as long as it does not compromise the safety of the institution.100 A later decision on the prisoner disciplinary process further clarified the limited nature of due process in these situations and held that the right to counsel does not extend to these proceedings.101 Figure 11.8 Landmark Supreme Court Cases on Prisoners’ Rights Timeline of cases from 1960s to the present showing cases that have lead to reforms in the prison environment
- 1144. and prisoners’ rights. The data can be shown in the table below. While several cases have interpreted the First, Fourth, Fifth, and Sixth Amendments in light of prisoners’ rights, it is the Eighth Amendment that has served as the basis for some of the more sweeping reforms to the prison environment. One of the most significant decisions occurred in the case of Estelle v. Gamble (1976), which held that institutions may not be deliberately indifferent to the serious medical needs of inmates (Figure 11.8).102 In fact, recent decisions by the Court require prisons to provide adequate medical care within the prisons, though the Court does not go so far as to define what this might look like.103 While practices such as double celling are not unconstitutional on their own,104 prison administration may not be deliberately indifferent to the negative conditions of confinement,
- 1145. such as facility overcrowding, poor lighting and ventilation, and unsanitary conditions.105 Indeed, several states have active lawsuits filed by inmates alleging that their conditions of 765 confinement violate the Eighth Amendment. In 2012, the Southern Poverty Law Center filed suit against the Alabama State correctional system, claiming that the state failed to provide basic medical and mental health care to inmates.106 However, relief from the courts will not likely be swift, as a similar lawsuit in Florida was settled 19 years after it was filed.107 766
- 1146. Careers in Criminal Justice So You Want to Be a Correctional Officer? Correctional officers (COs) are a central component of the criminal justice system. Responsible for the security of the correctional institution and the safety of the inmates housed within its walls, correctional officers are involved with every aspect of inmate life. Indeed, correctional officers play an important part in the lives of the inmates as a result of their constant interaction. Contrary to other work assignments within the criminal justice field, the position of the correctional officer is integrated into every aspect of the daily lives of prisoners. Duties of the correctional officer range from enforcing the rules and regulations of the facility to responding to inmate needs to diffusing inmate conflicts and supervising the daily movement and activities of the inmate.a
- 1147. Correctional officers: Criminal justice officials who are responsible for the security of the correctional institution and the safety of the inmates housed within its walls. In 2017, there were 428,870 correctional officers working in prison facilities nationwide.b With 48,600 positions, Texas employs the largest number of correctional officers in the country. While the majority of correctional officers are men, women make up 37% of correctional officers in state adult facilities and 51% of juvenile correctional officers (Figure 11.9).c Both men and women are assigned to same-sex as well as cross-sex supervision positions. In addition, more women are working as correctional officers in exclusively male facilities, where they constitute 24.5% of the correctional personnel.d Figure 11.10 highlights the average wages in corrections, with the highest wages found in southern California, Boston, and the New York–New Jersey
- 1148. metropolitan region. For example, the mean wage in Nassau County, New York, is $82,650. (Such wages, however, are still low given the high costs of living in these large metropolitan areas.) In comparison, nonmetropolitan areas such as northeast Florida, west central Illinois, and Washington Parish in Louisiana have an average annual salary around $33,000.e Figure 11.9 Race and Sex of Correctional Officers in the United States 767 Source: Bureau of Labor Statistics, “Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino Ethnicity,” 2017, http://www.bls.gov/cps/cpsaat11.pdf. Figure 11.10 Average Mean Wages of Correctional Officers by
- 1149. State, 2017 Source: Bureau of Labor Statistics, “Occupational Employment and Wages, May 2017,” March 30, 2018, https://www.bls.gov/oes/current/oes333012.htm. The average mean wages of correctional officers in the different states are given as a list below, from the lowest to the highest. $29,040–$35,410: West Virginia, Indiana, Kentucky, Tennessee, Georgia, Alabama, Mississippi, Louisiana, Arkansas, Missouri, Kansas, and New Mexico. $35,710–$42,670: Maine, Virginia, North and South Carolina, Florida, Texas, Oklahoma, Nebraska, South Dakota, Montana, Idaho, and Wyoming. $43,000–$51,140: New Hampshire, Vermont, Pennsylvania, Maryland, Ohio, Michigan, Wisconsin,
- 1150. Iowa, North Dakota, Colorado, Utah, and Arizona. $51,270–$71,630: Massachusetts, Connecticut, New York, New Jersey, Illinois, Minnesota, Washington, Oregon, Nevada, California, Alaska, and Hawaii. 768 http://www.bls.gov/cps/cpsaat11.pdf https://www.bls.gov/oes/current/oes333012.htm In order to work as a correctional officer, you must be at least 18 years old (though many states set a minimum age of 21 years old), be a U.S. citizen, and have a clean criminal background. Generally speaking, most facilities do not require more than a high school diploma for an entry- level position. However, some states and the federal government require a bachelor’s degree. Some positions will accept active or reserve military experience in lieu of
- 1151. college coursework. Many choose corrections as a career out of interest in the rehabilitation services as well as a perception that such a career provides job security.f However, work as a correctional officer can be quite stressful. There is a high degree of bureaucracy within the prison walls, which can contribute to feelings of job dissatisfaction. On-the-job stress is also a significant issue. There is always a risk of harm from the inmates. Officers may also feel dissatisfied with their roles if they lack the resources to perform their jobs or don’t see adequate progress in the rehabilitation of the inmates. In addition, many officers may feel stuck in their roles as they perform the same duties day in and day out.g As one CO describes it, life on the job is like “serving a life sentence in eight-hour shifts.”h Stress and burnout also can extend beyond the prison walls and impact the personal lives of these officers.
- 1152. 769 Conclusion The management of jails and prisons composes a significant part of state and federal correctional budgets. Due to our current criminal justice policies and practices, institutions are faced with large numbers of offenders. In many cases, prisons are overcrowded, which not only complicates the delivery of inmate services but can threaten the safety and security of the facility, the residents, and the staff. As prisons continue to represent a dominant force in our criminal justice system, policymakers will need to reevaluate how these institutions will be used as a form of punishment and who will be housed within their walls. 770
- 1153. Current Controversy 11.1 Should We Use Solitary Confinement to Control Violent and Disruptive Behaviors? —Brett Garland— Where do you stand? Cast Your Vote! 771 https://edge.sagepub.com/mallicoatccj2e/student- resources/chapter-11/current-controversy-videos Introduction Solitary confinement is a correctional practice in America that dates back to the earliest penitentiaries. At that time, solitary confinement was used not as a punishment but as a mechanism to separate an offender from unhealthy worldly temptations and induce an ascetically inspired spiritual transformation resulting in a reformed person. This early strategy to achieve one-shot and full-scale rehabilitation proved ineffective and was short-lived. However, the practice
- 1154. of isolating specific offenders from each other soon gained an indelible foothold as a means to fulfill a different purpose—the control of disruptive and violent prisoners. The use of solitary confinement as an inmate control mechanism can be categorized as a form of either disciplinary or administrative segregation.108 Disciplinary segregation refers to the removal of offenders from the general inmate population for a specified period of time in direct response to conduct violation. The deprivations accompanying the experience of isolation are intended to serve as a resonating punishment and prompt the offenders to rethink future misbehavior. Disciplinary isolation is typically reserved for those who commit very severe infractions and have accumulated extensive records of misconduct. Administrative segregation refers to isolating offenders who are judged to be particularly dangerous, unruly, or escape prone in order to
- 1155. maintain institutional order. In recent decades, administrative segregation has been used increasingly to curb gang-related violence, such as by assigning newly admitted gang leaders immediately to solitary housing placements. Since the 1980s, a number of large supermax facilities specializing in inmate isolation have been constructed to fulfill the administrative segregation function. 772 PRO: We Should Use Solitary Confinement to Control Offenders One of the most popular arguments in favor of solitary confinement is that extended stays in segregation units by definition isolate dangerous and unruly prisoners and thereby prevent them from directly committing serious misconduct against the general prisoner population.109 This strategy is called incapacitation, and it is routinely
- 1156. advocated as a justification for using imprisonment as a punishment in the criminal justice system. The logic goes that if bad, harmful people are securely segregated in prison, they cannot hurt anyone out in society while incarcerated. Solitary confinement thus serves as a type of extra imprisonment within a prison facility. The solitary-based incapacitation approach assumes that prison staff will be able to maintain control of prisoners through the enhanced security of a solitary unit and not be victimized themselves. In addition, the physical isolation should, in theory, protect violent and disruptive prisoners placed there from inflicting harm on one another. Advocates of the incapacitative function also point out that many prisoners housed in isolation units had facilitated violence and disorder by directly influencing inmate behavior in the general population.110 Prison systems in states
- 1157. like California have placed a substantial number of gang leaders in solitary confinement within facilities, believing that by severing the head of the gang organization, lower-ranking members will no longer receive orders to carry out gang business and consequently will become less disruptive. Prison gangs such as the Aryan Brotherhood and Mexican Mafia have hierarchical organizational structures in which lower-ranking members are guided heavily by gang leadership. Isolating problem inmates—whether gang members or not—may also create a better prison environment by removing the relatively small number of “bad apples” who cause serious disruptions and threaten institutional order. With troublemakers removed, more compliant inmates have fewer opportunities to feed into episodes of misconduct. The placement of problem offenders in solitary confinement might also make institutional programs like education classes, stress and anger management sessions, and trade skill
- 1158. courses function more efficiently, with inmate distractions contained. In turn, this should lead to greater institutional order and less violence since offender programming provides positive ways for inmates to occupy time and cope with the daily grind of prison life.111 In addition to potential incapacitative benefits, some proponents of solitary confinement believe that the deprivations imposed by isolation will deter those who may fear facing solitary confinement from future misbehavior.112 Serving time in an isolated setting is often portrayed as an extremely unpleasant experience. Physical movement is severely restricted, and boredom can be extreme and agonizing. The experienced or perceived misery of isolation then should dissuade offenders from engaging in conduct that might lead to a solitary placement. 773
- 1159. CON: We Should Not Use Solitary Confinement to Control Offenders Opponents of solitary confinement challenge the claims that it successfully achieves incapacitative and deterrent goals. To reduce violence through incapacitation via solitary confinement, prison administrators need to isolate offenders who would otherwise commit violence and serious disruptions if left in the general prisoner population. Although identifying those who will reoffend sounds like a simple task, correctional risk assessment instruments sometimes inaccurately predict who will continue engaging in misconduct during a prison term.113 If the intent is to reduce violence and disorder through incapacitation but the inmate had already decided not to engage in further misconduct, the solitary placement would have no direct incapacitative impact. Critics also note that solitary confinement in
- 1160. supermax units creates potential hot spots of violence because prisoners with serious records are concentrated in close quarters.114 Even if supermax offenders are kept separate and unable to conspire together or attack one another, the frustration experienced from supermax deprivation may motivate already volatile and disruptive offenders to lash out aggressively and defiantly at staff. Others question whether solitary confinement can significantly hinder the influence of prisoners who facilitate prison disorder through their leadership positions.115 Inmates are creative and have found methods to communicate with the general prisoner population when held in high-security environments, such as sending encoded written messages and manipulating staff and other offenders to communicate on their behalf. Removing leaders of prisoner groups and gangs from the general population might also backfire by creating power vacuums. Gang members may compete
- 1161. physically against one another in a prolonged struggle to fill vacant leadership roles. In addition, leaders of inmate organizations can be very influential in keeping other inmates in line, and their controlling influence may mean the aggression of lower-ranking gang members will be unleashed during their absence.116 The deterrent value of solitary confinement is also debated. The certainty of receiving a specific punishment is critical for that punishment to achieve a deterrent effect. One study found that prisoners view supermax placements as quite arbitrary, meaning that for a serious prison violation warranting supermax isolation, an offender might get placed there or might get a different sanction, such as the loss of good time.117 Without a high degree of certainty of receiving supermax placement for serious misconduct, there is little reason to expect that inmates will be dissuaded from
- 1162. committing disruptive behavior. The same may hold true for solitary placements in general. Moreover, critics charge that the unpleasantness and loneliness of a stay in solitary confinement takes a tremendous psychological toll and has serious mental health consequences. Studies indicate that solitary confinement can cause severe anxiety, cognitive dysfunction, and suicidal ideation, which may impair one’s ability to function when released into the general prison population and back into society and thereby make inmates more likely to misbehave and reoffend.118 774 Summary Unfortunately, studies on the effectiveness of solitary confinement are relatively few in number, suffer from methodological limitations, and provide mixed results. Nonetheless, the idea of segregating violent and seriously
- 1163. disruptive prisoners from the general prison population is not new or unusual. Removing solitary confinement as an institutional management tool from prison administrators would undoubtedly limit their options and significantly impair their ability to handle the most unruly and troublesome offenders. On the other hand, overusing solitary confinement could pose unnecessary harms and possibly backfire strategically if inmates widely view the practice as unjust and revolt against it. As it is a fixture in the modern correctional system, perhaps the best course of action moving forward is to explore how solitary confinement can be utilized most judiciously and sparingly to achieve its intended goals. 775
- 1164. Discussion Questions 1. Is solitary confinement an effective deterrent against institutional violence? 2. How might the use of solitary confinement be harmful to inmates? 3. What alternatives could be used to manage the safety and security of an institution in lieu of solitary confinement? 776 Current Controversy 11.2 Should Prisons Punish or Rehabilitate Offenders? —Sean Wilson— Where do you stand? Cast Your Vote! 777 https://edge.sagepub.com/mallicoatccj2e/student-
- 1165. resources/chapter-11/current-controversy-videos Introduction Prisons serve as institutions to house individuals who have been convicted of a crime. Prisons punish offenders through stigmatization and the deprivation of liberty. Punishment is a social defense, used to protect society from the criminality of potential offenders. Imprisonment as punishment also serves a moral function, meant to deter potential criminals from committing crimes. Imprisonment has been seen as a necessary tool for maintaining social control in society. Prisons also aim to rehabilitate offenders by providing them with services aimed at reducing the offender’s probability of engaging in crime. Because the majority of incarcerated people eventually return to society, their rehabilitation while incarcerated and after incarceration is important. Rehabilitation
- 1166. was a priority of the criminal justice system in the United States until the 1970s.119 During the 1970s, prisoners were often encouraged to develop occupational skills and deal with any psychological problems while incarcerated. However, because of the tough-on-crime movement spearheaded by policymakers and legislatures across the United States, rehabilitation took a backseat to a more punitive approach to handling offenders. The tough-on-crime movement resulted in states abolishing parole authorities and creating truth-in-sentencing laws and three- strikes legislation, which has led to longer sentences for incarcerated persons. As a result, the prison population in the United States has grown sevenfold and the country has become the world leader in incarceration.120 Critics and proponents of prisons have been arguing about the purpose of the prison for years. Below are the two
- 1167. opposing viewpoints on whether prisons should be used to punish or rehabilitate offenders. 778 PRO: Prisons Should Focus on Rehabilitating Offenders Proponents of rehabilitation within prisons argue that prisons fail to prepare prisoners for reentry into society.121 A primary goal of imprisonment is incapacitation. Rehabilitation is often seen as a secondary priority by prison officials. However, rehabilitation is necessary for formerly incarcerated persons to become productive citizens in society. Many offenders are not prepared during their incarceration period for their impending return to society.122 As a result, formerly incarcerated persons tend to have high rates of recidivism once released from prison.123 Research shows that incarceration has negative consequences
- 1168. for the mental health of inmates.124 Psychologists within prisons can provide incarcerated persons with much- needed group therapy and counseling. However, many psychologists in the criminal justice system have enormous caseloads and do not have enough resources to serve every inmate.125 Prisons are often violent places that put both incarcerated persons and correctional officers in harm’s way.126 Research has found that 10% to 20% of inmates report violent victimization in prison.127 Philip Zimbardo’s seminal prison study has shown us that the prison environment can negatively affect the behavior of both incarcerated persons and correctional officers.128 A study that examined supermax prisons found that inmates in these prisons experience high levels of anxiety and other negative emotions, which results in them leaving prison without the necessary social and occupational skills required to return to society successfully.129
- 1169. Evidence to prove a correlation between incarceration rates, recidivism, and crime is limited.130 Since the 1980s, incarceration rates have been increasing. However, crime rates have been consistently decreasing since the early 1990s. Thus, factors other than incarceration rates, such as changes in the economy, changes in drug markets, and alterations in police procedures, all play a role in crime rates.131 Therefore, crime control policies and procedures must be geared toward individual-centered and community-based responses to crime. For example, work programs, educational programming, and psychotherapy can make a former inmate’s reentry into society more comfortable. Studies show that vocational education and training programming are successful in reducing recidivism.132 It costs more than $80 billion annually to incarcerate offenders, and many believe taxpayer monies could better be
- 1170. spent on rehabilitative and educational programming for former inmates in their community.133 Programs that invest in drug treatment, job training, and other interventions are a more effective crime control method than incarceration.134 Taxpayer-funded programs should be aimed at addressing poverty and educational needs rather than incarceration. Rehabilitative programming in prisons can reduce recidivism rates. Former inmates returning to society with social and occupational skills developed while incarcerated are less likely to recidivate than those without such training. Therefore, prisons should be used as an institution to rehabilitate offenders. 779 CON: Prisons Should Focus on Punishing Offenders During the 1990s, crime rates decreased substantially, perhaps due to the growth in incarceration rates during that
- 1171. period.135 For example, between 1970 and 2000, the number of people in jails and prisons rose 500%.136 One explanation for the decrease in crime is that the rewards associated with crime no longer outweigh the potential punishment. An increase in the likelihood of serving prison time has served as a deterrent for potential offenders. Research has found that as the probability of imprisonment goes down, crime rates increase.137 Thus, prisons are necessary to punish offenders, reduce crime, detain offenders who cause harm to society, and deter potential offenders from committing crime. Deterrence only works when punishment is meted out to offenders in a rational and systematic manner. The philosophical goal of punishment should be retribution. Retribution satisfies societal demands for discipline and order and subjects an offender to just punishment. The cost to build
- 1172. and maintain prisons may be expensive, but the societal costs associated with not protecting citizens from potential offenders would be higher. Recidivism is a significant concern for policymakers and criminal justice practitioners. Research has found that 40% of prisoners are chronic or habitual offenders.138 Many offenders have had several opportunities to turn their lives around, but they often fail to make meaningful changes in their lives.139 Therefore, prisons must be used as a tool to punish offenders for long periods of time. Keeping repeat violent offenders behind bars for long periods of time is an effective strategy to lower recidivism rates. It has been argued that the prison system in the United States is too large. Although there are more than 1.7 million prisoners incarcerated in prisons throughout the country, this is only a small percentage of the entire U.S. population.140 The prison population is quite small compared with the number of offenders who currently are
- 1173. not incarcerated. One can even argue that the criminal justice system is not punitive enough given the reality that many offenders are unlikely to be held accountable for crimes that they commit. Prisons are responsible for housing hardened criminals who pose a threat to society. Thus, prisons should strictly focus on punishing offenders for their criminality. 780 Summary Proponents of rehabilitation argue that prisons are not effective in rehabilitating incarcerated persons, and they also believe that prisons need more resources to properly serve inmates. Opponents of rehabilitation argue that current prison sentences are not long enough to hold criminals accountable for their criminality and that current punishments
- 1174. are not effective with repeat offenders. 781 Discussion Questions 1. What are some of the arguments that indicate rehabilitation can reduce recidivism? Provide specific examples. 2. Do you think tough-on-crime policies deter criminal behavior? Why or why not? 782 Key Terms Review key terms with eFlashcards edge.sagepub.com/mallicoatccj2e Auburn Prison 245
- 1175. Congregate labor systems 245 Correctional officers 265 Dynamic risk factors 256 Eastern State Penitentiary 244 Elmira Reformatory 245 Federal prisons 252 Good time credits 245 Jail 243 Maximum-security prison 255 Medium-security prison 255 Military prisons 254 Minimum-security prison 255 New York system 245 Overcrowding 257 Pennsylvania system 244 Prison 243 Prison misconduct 260 Private prisons 253 Punishment era 246 Racial disproportionality 257 Reformatory era 245 State prisons 248 Static risk factors 256 Supermax 256
- 1176. 783 http://edge.sagepub.com/mallicoatccj2e 784 Discussion Questions Test your mastery of chapter content • Take the Practice Quiz edge.sagepub.com/mallicoatccj2e 1. How do issues of prison misconduct threaten the safety and security of institutions? How can prison administrators and others alleviate these problems? 2. How are jails different from prisons? 3. What are the different security levels of prison facilities? 4. How does the security level of a prison facility alter the quality of life of inmates and
- 1177. efforts at rehabilitation? 5. What are some of the key Supreme Court decisions that have affected inmates’ rights? 6. How can prison officials address issues of racial disproportionality within their facilities? 7. What are some challenges that correctional officers face on the job? 785 http://edge.sagepub.com/mallicoatccj2e Learning Activities 1. Investigate the use of private prisons in your state. How many private facilities operate in your state? How are they similar to and different from state- owned institutions? How many inmates in your state are housed in private prisons? What challenges does this present for these inmates? 2. Identify a recent U.S. Supreme Court decision on the rights of offenders. How might
- 1178. this ruling be applied to individuals in custody? How will prison officials need to respond to this ruling in order to ensure that inmate rights are not violated? 786 Suggested Websites Bureau of Prisons: http://www.bop.gov Bureau of Justice Statistics: http://www.bjs.gov Prison Policy Initiative: http://www.prisonpolicy.org Corrections Corporation of America: http://www.cca.com 787 http://www.bop.gov http://www.bjs.gov http://www.prisonpolicy.org http://www.cca.com Student Study Site
- 1179. Review • Practice • Improve edge.sagepub.com/mallicoatccj2e Get the tools you need to sharpen your study skills. Access practice quizzes, eFlashcards, video, and multimedia at edge.sagepub.com/mallicoatccj2e For further exploration and application, take a look at the interactive eBook for these premium resources: Career Video 11.1 Mitch Lucas: Jail Administrator Criminal Justice in Practice 11.1 Gang-Involved Offender SAGE News Clip 11.1 Alabama Women’s Prison Abuse 788 http://edge.sagepub.com/mallicoatccj2e http://edge.sagepub.com/mallicoatccj2e
- 1180. Chapter 12 Community Corrections © iStock.com/DnHolm 789 Learning Objectives Discuss the function of pretrial services Identify how diversion programs differ from other forms of community corrections Compare the five different types of probation sentences and understand the role of the presentence investigation report Discuss the different forms of intermediate sanctions Compare the two different ways that the term parole is used Discuss the issues that ex-offenders face during the reentry process
- 1181. In the late 1960s, the charismatic Charles Manson lived with a few dozen followers on an abandoned ranch/movie lot near Topanga Canyon in Los Angeles County, engaging in free love and drug experimentation. He called these followers his “family.” Among his more radical ideas, Manson believed a race war called Helter Skelter was coming, and he developed a plan to initiate this inevitable conflict. He convinced several of his followers to commit murder, thereby both testing their loyalty and sparking Helter Skelter. Several members of his “family” followed his request, including the “Manson women”: Susan Atkins, Leslie Van Houten, and Patricia Krenwinkel. Susan Atkins and Patricia Krenwinkel participated in the now - infamous murder of the pregnant actress Sharon Tate and her houseguests on August 8, 1969. They, along with another follower of Manson, Charles “Tex” Watson,
- 1182. stabbed the five victims at Tate’s house more than 100 times, smearing blood on the walls of the home. Atkins reportedly wanted to cut out Sharon’s Tate’s unborn baby, but there wasn’t time. Two days later, Van Houten joined as Atkins, Krenwinkel, and Watson stabbed a wealthy grocer, Leno LaBianca, and his wife, Rosemary, leaving another gruesome crime scene in their wake. During their arrest, trial, and initial incarceration, the Manson women remained loyal to Manson and appeared as the monsters depicted in the media, often chanting and behaving in a bizarre fashion, presumably at Manson’s instruction. All three were convicted and sentenced to death for committing murder. Their death sentences were commuted in 1972 to life sentences with the possibility of parole when state and federal courts declared capital punishment unconstitutional.
- 1183. A psychiatrist who performed an evaluation of Susan Atkins shortly after she entered prison expressed his belief that Atkins would eventually change her worldview in opposition to Manson’s and suggested she would then no longer be a danger to society. As early as her first parole hearing in 1975, doctors recommended Atkins for release. It was never granted. For the next 30 years, her parole petitions were denied. She was a model prisoner who got along well with the other inmates and the correctional staff throughout her imprisonment; she participated in many prison programs and even started a prison choir. When she was diagnosed with brain cancer in March 2008, her husband, James Whitehouse, petitioned for a compassionate medical release; his petition was denied. In September 2009, the parole board once again held a hearing on whether or not to grant Atkins parole. The board denied parole for the thirteenth time, stating that Atkins was still a danger to society. At this
- 1184. time, Atkins was living in a skilled nursing facility inside a prison compound, near death from terminal brain cancer. She died three weeks later on September 24, 2009, as an inmate in the California prison system. Leslie Van Houten denounced her ties with Manson months before being sent to death row. She is currently working 790 toward a master’s degree and is very active in the Prison Pups program, which allows inmates to train service dogs for the disabled. Van Houten was granted parole in 2016 after 20 rejections, but Governor Jerry Brown reversed this decision and Van Houten remains imprisoned. Leslie Van Houton speaks before the board at her 20th parole board hearing. After 44 years behind bars, the board voted in favor of parole in April 2016. What might be some
- 1185. factors contributing to her inability to obtain release? © AP Photo/Nick Ut Patricia Krenwinkel was very involved in taking care of the Manson family children before she committed murder. She 791 is also described by prison staff as a model inmate. In January 2011, Krenwinkel was denied parole for the thirteenth time at the age of 63. The parole board set her next hearing date for 2018. Both Van Houten and Krenwinkel have been described by the prison staff at the California Institute of Women, where they have served most of their sentences, as model prisoners. They have perfect prison records and have never been written up for any disciplinary reason. Both earned college degrees while serving their time, as did Atkins. All
- 1186. were involved in prison programs: Krenwinkel helped other inmates learn to read, and Van Houten worked as a college tutor for other inmates. The prison staff continually recommends to the parole board that Van Houten and Krenwinkel be released, and the parole board has generally denied their requests, saying these female murderers remain a danger to society nearly half a century after their murderous summer of 1969. Community corrections work with two distinct populations: those who have been sentenced for a crime and those who have been charged with offenses and are waiting for their cases to be resolved by the criminal justice system. One group has been found guilty while the other group is presumed innocent throughout the process. As a result, programs are designed either to reintegrate offenders back into the community or to provide an alternative to incarceration. In addition, these programs allow for the supervision of offenders to retain a rehabilitative
- 1187. focus rather than a punitive one. While probation and parole are perhaps the most well -known programs in community corrections, there are several other options, including diversion, pretrial supervision programs, electronic monitoring and house arrest, day reporting centers, and work release programs. In this chapter, you will learn about all of these programs and how they balance the safety and security of the community with the needs of the offender. You’ll also learn about the process of reentry after prison and the role of parole. The chapter concludes with two Current Controversy debates. The first, by Monica Solinas-Saunders and Melissa J. Stacer, examines whether employers should be allowed to ask about someone’s criminal history. The second, by Christine Scott-Hayward, looks at whether parole is an effective correctional strategy. Community corrections: Collection of programs that work with two distinct populations: those who have been sentenced for a crime and those who have been charged with
- 1188. offenses and are waiting for their cases to be resolved by the criminal justice system. 792 Pretrial Release Programs Pretrial detention occurs when offenders either are denied bail or are financially unable to make bail and must remain in custody until their case is resolved or their status changes with the court. This has a negative impact on employment as people may lose their jobs, further jeopardizing their status with the courts. It also impacts defendants with minor children, particularly if they are the primary or sole caregiver. The length of pretrial detention is also related to recidivism; those who remain in custody longer prior to trial are more likely to recidivate following the conclusion of their case.1
- 1189. Pretrial detention: Correctional practice that occurs when an offender either is denied bail or is financially unable to make bail and must remain in custody until his or her case is resolved or his or her status changes with the court. The field of pretrial services emerged to bridge the gap between pretrial detention and bail programs. The concept was tested at the federal level in 1974 under the Speedy Trial Act, which authorized pretrial agencies in 10 judicial districts throughout the country. These agencies were tasked with supervising offenders who were released from custody prior to their court appearances and helping individuals accused of a crime find services and support within the community. Their efforts were viewed as a success, and in 1982, President Ronald Reagan signed the Pretrial Services Act to extend these services to all federal districts.2 793
- 1190. Businesses that provide bail bond services are often organized around local courthouses. What is the purpose of bail? © Ann Hermes/The Christian Science Monitor via Getty Images In addition to helping offenders maintain ties to the community, pretrial release programs save a significant amount of money for jurisdictions and are used in lieu of pretrial detention. The Bail Reform Act of 1984 states that defendants should be released unless they have a risk of failure to appear for a future court date or if their release would place the community at risk of harm. Since the introduction of this policy at the federal level, the majority of states have adopted similar measures.3 While the risk of failure to appear has always been a key consideration in bail programs, the Bail Reform Act shifted practices such that the court also considers the needs of community safety and security in
- 1191. determining the eligibility and amount of bail. In making their decision, the act held that the courts should also consider the following: the history and characteristics of the person, including the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence 794 in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law.4
- 1192. Pretrial release programs: Programs that supervise offenders in the community prior to their court proceedings in lieu of detention. Serves as an alternative to preventative detention and saves jurisdictions money. 795 Diversion The goal of diversion is to refer offenders to a program ins tead of formally processing the case through the system. The most common type of diversion program is used with first-time low-level juvenile offenders, though some jurisdictions also have options for adults. These programs often involve classes such as anger management counseling or substance abuse education, coupled with service to the community. Offenders who complete the tasks as assigned have their cases dismissed.5
- 1193. Diversion: An approach that refers offenders to a program instead of processing their cases through the system. Diversion programs have four primary benefits. First, such programs help reduce the number of cases that are formally processed by the criminal justice system. Second, they can provide skills that aid in the rehabilitation of the offender. Third, the offender is able to avoid the stigma associated with a criminal conviction. Finally, these programs have significant cost benefits as they are generally less expensive to administer.6 While diversion programs do offer several benefits, there are also negative consequences to consider. First, the presence of diversion programs can lead to net widening. Net widening refers to the practice of bringing more offenders under the jurisdiction of the juvenile and criminal justice systems. In many cases, the use of diversion can bring cases within the reach of the system that historically were not targeted.7 Second, there is little evidence that
- 1194. demonstrates diversion programs serve as an effective deterrent or help prevent recidivism.8 Still, despite some of their overall failures, there is evidence that diversion programs can be more successful than traditional court interventions.9 Net widening: Refers to the practice of bringing more offenders under the jurisdiction of the juvenile and criminal justice systems. 796 Youth courts use peers from the community to sentence low - level acts of delinquency. How might this aid all of the juveniles involved? © Bob Daemmrich/Alamy Stock Photo 797
- 1195. Specialized Courts There are also diversion programs that target specialized populations. For example, diversion programs are a popular option for mentally ill offenders. Mental health courts are a valuable option to work with this category of offenders for a number of reasons. First, the professionals that work in these programs (such as the judge, prosecutor, and case manager) are specifically assigned to this courtroom, which allows them to develop a specialized knowledge base about the needs of individuals in this community. Second, the focus of these courts is not on proving an offender’s guilt; rather, they aim to provide treatment and services for the offender. Finally, any “punishments” are designed to consider the needs of offenders and promote their reform while maintaining the safety of the community. Research indicates that these programs are more effective at preventing recidivism among mentally ill offenders
- 1196. compared with traditional court interventions.10 Like mental health courts, drug courts are used to target specific offenders and provide specialized resources to them. The first drug court was set up in 1989 in Miami-Dade County, Florida. Cases were eligible based on the type of drug- related offense the offender was arrested for, such as possession of, purchasing, or solicitation to purchase drugs. Individuals with a history of violence, who have been arrested for the sale or trafficking of drugs, or who have two felony non-drug-related convictions are not eligible to participate in the drug court program. Like mental health courts, drug courts have a different philosophy compared with the criminal justice court experience. Instead of an adversarial process, drug courts are a supportive environment geared toward rehabilitation and reform. Drug courts function as a form of diversion; the processing of a case is set aside for a year while the offender is placed in a treatment program. A participant’s progress is tracked by the court,
- 1197. and he or she is required to submit to regular drug screenings. If the offender completes the program successfully, the charges are dismissed. The process can be long and difficult, and not all participants will be successful in the intervention. In some cases, individuals may be sanctioned for their relapse or noncompliance but be allowed to remain in the program. Such sanctions may include community service or jail time.11 If they are terminated from the program, offenders will return to the criminal court, where they will be sentenced for the crime. Research on drug court programs indicates that adult participants are less likely to recidivate 798 after participation in this type of programming, compared with traditional criminal justice
- 1198. interventions.12 Similar results are demonstrated by drug courts for juvenile offenders.13 Despite the number of individuals who have entered the criminal justice system on drug- related charges, drug court programs have been unable to serve as an effective way to reduce the jail and prison population. Many of these programs do not have the adequate budget to meet the demand. In addition, the eligibility requirements to participate in these programs potentially eliminate many individuals.14 While many drug court programs target low-risk individuals, individuals who have a high risk of recidivism can also benefit from the therapeutic environment. Research indicates that high-risk offenders are more successful in drug court programs when compared with traditional probation supervision.15 799
- 1199. Probation Probation involves the supervision of offenders in the community in lieu of incarceration. The origins of probation date back to the Middle Ages and English criminal law. Probation: Form of punishment that involves the supervision of offenders in the community in lieu of incarceration. 800 A Brief History of Probation In the United States, John Augustus became the first volunteer probation officer in 1841 (Figure 12.1). In this role, he helped offenders (often first-time offenders) reform their lives by helping them post bond and find jobs and housing. He also provided support during the
- 1200. period between arrest and sentencing. His belief was that “the object of the law is to reform criminals and to prevent crime, and not to punish maliciously or from a spirit of revenge.”16 Most of his charity cases involved drunk men and abandoned children. He continued his work for more than 18 years until his death and helped more than 1,900 men and women. Historical records indicate that he was successful in getting all but 10 of these cases to honor their bond to the court.17 Figure 12.1 Early Development of Probation in the United States Photo credits: 1841: public domain; 1927: © iStockphoto.com. The timeline is shown in the list below. 1841: John Augustus became the first volunteer probation officer.
- 1201. 1859: The first probation statute was passed in Massachusetts. 1878: Probation laws were adapted for juveniles. 1925: The federal government passed the National Probation Act and established the U.S. Federal Probation 801 Service. 1927: The first federal probation officer was appointed in Massachusetts. 1930: Every state had laws for juvenile probation except Wyoming. 1951: Probation departments were established in every state. The first probation statute was passed in Massachusetts in 1859, and the practice of probation began to spread to other states. The first probation law was adopted to provide
- 1202. services for juveniles in 1878. In 1880, Massachusetts established the first statewide probation agency. Over the next 40 years, several other states followed by creating their own agencies, and by 1930, every state had laws for juvenile probation except Wyoming.18 Acceptance of probation for adults was slower in its development. The first state law permitting probation for adult offenders was passed by New York in 1901. In 1925, the federal government passed the National Probation Act and established the U.S. Federal Probation Service.19 In 1927, the first federal probation officer was appointed in Massachusetts. By 1951, probation departments had been established in every state, and in 1955, the first professional organization for probation, the Federal Probation and Pretrial Officers Association, was formed. The association was developed to provide policy analysis and advocacy on a variety of issues, including officer safety, training, and staffing.20
- 1203. Over the next few decades, probation departments struggled to find their place in the criminal justice system. While the workload and expectations of departments continued to increase, the financial support for these tasks remained stagnant.21 These challenges, coupled with a general shift from a rehabilitative philosophy to a more punitive one, led many to question whether probation was an effective correctional tool. In 1974, Robert Martinson, a correctional researcher, published an article titled “What Works? Questions and Answers About Prison Reform.” While his review focused on both probation and other forms of rehabilitation, he concluded that very few of these interventions were effective at preventing recidivism. This finding became translated to politicians and the public as “nothing works” and provided lawmakers with the fuel to shift away from rehabilitation.22 However, Martinson never stated that nothing worked. Instead, he noted that there was no “one size fits all” program that met the needs of all offenders. Since this
- 1204. period, research has noted that there are many successful programs that help to reform offenders and prevent reoffending.23 802 803 Probation in the Twenty-First Century In 2016, 3,725,638 adults were on probation. Another way to think about this statistic is to say that 1 of every 68 adults in the United States was on probation that year. The number of adults on probation has been steadily decreasing over the past decade, however. Demographics of adults on probation indicate that 25% of probationers are female; 55% are White, non-Hispanic; 28% are Black; and 14% are Hispanic. Fifty-nine percent of those
- 1205. sentenced to probation in 2016 were convicted of a felony, and 40% of a misdemeanor crime. The remaining 2% were convicted for other infractions. Twenty percent of these cases involved violent crimes, 26% property crimes, 24% drug-related crimes, and 17% public order crimes.24 Figure 12.2 presents the rate of probation exits for 2016. Figure 12.2 Exits From Probation, 2016 While the majority of inmates complete their probation, 35% do not, for various reasons, and many end up incarcerated. 804 Source: Danielle Kaeble, Probation and Parole in the United States, 2016, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, April 2018, https://www.bjs.gov/content/pub/pdf/ppus16.pdf.
- 1206. * Includes probationers who were incarcerated for a new offense and those who had their current probation sentence revoked. ** Includes probationers discharged from supervision who failed to meet all conditions of supervision. *** Includes, but not limited to, probationers discharged from supervision through a legislative mandate because they were deported or transferred to the jurisdiction of Immigration and Customs Enforcement; transferred to another state through an interstate compact agreement; or had their sentence dismissed or overturned. Percentages of exits from probation for various reasons are as follows: Completion: 50% Other or unknown: 34% Incarcerated (Includes probationers who were incarcerated for a
- 1207. new offense and those who had their current probation sentence revoked.): 12% Discharged to warrant or detainer: 0.6% Other unsatisfactory: 0.6% Absconder: 3% 805 https://www.bjs.gov/content/pub/pdf/ppus16.pdf Spotlight Recidivism Recidivism means that a person returns to criminal behavior after he or she has been punished by the criminal justice system. This return is measured by a re-arrest, reconviction, or return to prison. In one study of 30 states, the Bureau of Justice Statistics found that 76.6% of the 405,000
- 1208. prisoners who were released one year were arrested at least once within five years of their release. More than half of these arrests occurred within the first year of freedom, which highlights the challenges that offenders face during the reentry experience. Those offenders who were released without some form of community supervision (such as parole) were more likely to reoffend when compared with those who were on a conditional release. Male inmates were more likely to reoffend than women. Younger inmates were also more likely to reoffend. Property offenders were the most likely to be rearrested (82.1%) as compared with drug offenders (76.9%) and violent offenders (71.3%).a Recidivism: When a person returns to criminal behavior after he or she has been punished by the criminal justice system.
- 1209. Research tells us that programs and treatment can be effective, particularly for specific groups of offenders. For example, sex offenders who successfully complete a treatment program are less likely to recidivate compared with those who do not.b Successful completion of a drug court program is also likely to protect against recidivism.c Interestingly, while offenders with mental health issues have a higher risk of recidivism in general, they are re- arrested just as often as their counterparts without mental illness. However, once they are arrested, offenders with mental illness are more likely to be sentenced to prison.d Research also tells us that prisons do not deter offenders.e Instead, findings indicate that prison can produce a criminogenic effect. This means that prison can actually encourage offenders to engage in crime rather than prevent it, at least in terms of particular offenses. Time in prison is more likely to increase property and drug
- 1210. crimes for male offenders, and incarceration for women increases their recidivism for property offenses.f Prison may actually have the highest risk of increased recidivism for lower-level offenders.g These results indicate that the “most punitive” punishment may be the least effective in terms of rehabilitation and that reentry efforts need to consider these factors when providing support. 806 Critical Thinking Questions 1. Is prison the best tool to prevent recidivism? Why or why not? 2. Why do you believe that so many offenders have issues with recidivism? 3. What should the criminal justice system do to reduce the levels of recidivism?
- 1211. 807 Types of Probation There are several different types of probation sentences. These vary by jurisdiction and the needs of the offender. Each type of probation typically involves specific terms and conditions assigned by the court that the offender must follow. The most common type of probation is supervised probation. Under a supervised probation sentence, the offender is required to check in either face to face or by telephone on a particular schedule. Depending on the type of case, offenders may be required to check in on either a monthly or a weekly basis. Supervised probation: A type of probation sentence where the offender is required to check in either face to face or by telephone on a particular schedule.
- 1212. Below are some of the most common conditions that are assigned by the court: Report to probation officer as directed Obtain permission to change residence Report any arrests or contact with the police to probation officer Maintain employment or attendance in school Follow curfew as ordered by the court Not possess any weapons if on probation for a felony offense No contact with individuals on probation or parole or who have a criminal record Maintain sobriety from drugs and alcohol Submit to reasonable searches and seizures of person, property, and residence Submit to breath, blood, or urine testing for substance use as directed Follow house arrest procedures Participate in specific programs as ordered, such as substance abuse, anger management, or mental health treatment Pay any fines to the court as ordered Pay restitution to the victim Complete community service hours No contact with the victim
- 1213. Intensive probation (also referred to as community control probation) is a more intensive form of supervision. Under this type of sentence, probation officers closely monitor the daily activities of their offenders. As a result of this high-intensity supervision, caseloads are 808 typically kept smaller than those of traditional supervised probation. Under an intensive probation supervision sentence, offenders may also be outfitted with an electronic monitor or GPS tracker. You’ll learn more about these options later in this chapter. Intensive probation: A form of probation sentence where probation officers closely monitor the daily activities of their offenders. Probation officers provide supervision for offenders in the
- 1214. community. What are some of the specific duties of a probation officer? © Linda Davidson/The Washington Post via Getty Images Split-sentence probation involves the use of a short-term incarceration sentence in conjunction with a traditional probation sentence. Also referred to as shock probation, these sentences are designed to serve as a stronger deterrent against criminal behavior and encourage greater compliance with a probation sentence. Split-sentence probation: Form of punishment that involves the use of a short-term incarceration sentence in 809 conjunction with a traditional probation sentence. Also referred to as shock probation. Crime-specific supervision organizes a probation officer’s caseload by specific offense types.
- 1215. In these cases, probation officers may be in charge of a caseload of just sexual offenders, drug offenders, or mental health cases. This specialization allows for probation officers to focus on the unique needs of a specific population and have an increased awareness of the treatment options that are the most effective. Crime-specific supervision is often a type of intensive probation, and caseloads are kept smaller so that probation officers can give greater attention to their clients. Crime-specific supervision: Organizes a probation officer’s caseload by specific offense types. Finally, individuals on unsupervised probation are generally not required to check in with a probation officer but are required to meet certain terms and conditions set forth by the court. Unsupervised probation is also referred to as informal probation and is typically only used in cases of minor-level offenders. Individuals on unsupervised probation may be recalled by the court if they reoffend during their term of probation. If they remain out of trouble, their cases
- 1216. are closed as a successful completion term. Unsupervised probation: A type of probation where individuals are generally not required to check in with a probation officer but are required to meet certain terms and conditions set forth by the court. 810 Duties of the Probation Officer While many think of probation as something that occurs toward the end of the criminal justice process, the reality is that probation officers can be involved throughout every stage of the system. Figure 12.3 highlights how probation officers can be involved in either a primary or secondary role. For example, some jurisdictions rely on probation officers to make recommendations on whether someone should be released on her or his own recognizance during the pretrial stage. If the individual is released, the
- 1217. probation officer may be involved in supervising him or her as part of the pretrial supervision. If an offender is chosen to participate in a specialized program, such as a drug court, a probation officer is actively involved in the management of the offender’s case as part of the program. Finally, probation officers are responsible for managing the community sanctions or probation sentence of the offender as part of a plea-bargaining or sentencing process.25 811 Figure 12.3 Roles and Duties of Probation Throughout the Criminal Justice Process Source: American Probation and Parole Association, http://www.appa- net.org/eweb/Resources/PPPSW_2013/docs/sp98pers30.pdf. The flowchart can be shown as a list with details on the type of role performed by the probationary officer given
- 1218. within parentheses. 1. Stage: Law Violation 1. Main role: police 2. Role of probationary officer: Mediate/Refer/No Arrest (influential) 2. Stage: Jail detention 812 http://www.appa- net.org/eweb/Resources/PPPSW_2013/docs/sp98pers30.pdf 1. Main role: jail 2. Role of probationary officer: 1. Citation/Release (influential) 2. Release on Bail (primary responsibility)
- 1219. 3. Stage: Initial Court Appearance 1. Main role: Judge 2. Role of probationary officer: Release/ROR or Bail (influential) 4. Stage: Prosecutorial Screening/Charging 1. Main role: Prosecutor 2. Role of probationary officer: Diversion Program/Suspend Prosecution (primary responsibility) 5. Stage: Preliminary Hearing 1. Main role: Judge 2. Role of probationary officer: 1. Release/ROR or Bail (influential) 2. Reduce Charge to Misdemeanor (primary responsibility)
- 1220. 3. Accept Plea and Sentence (primary responsibility) 1. Community Sanctions (primary responsibility) 2. Jail or Prison (limited Involvement) 6. Stage: Arraignment 1. Main role: Judge 2. Role of probationary officer: 1. Release/ROR or Bail (influential) 2. Accept Plea and Sentence (influential) 1. Community Sanctions (primary responsibility) 2. Jail or Prison (limited Involvement) 7. Stage: Trial/Sentencing 1. Main role: Judge 2. Role of probationary officer:
- 1221. 1. Community Sanctions (primary responsibility) 2. Probation (primary responsibility) 3. Jail or Prison (limited Involvement) 813 The Presentence Investigation Report One of the primary tasks of the probation officer is to prepare the presentence investigation report (PSI). Following a guilty plea or finding, the probation officer conducts an interview with the offender. In cases involving juveniles, the probation officer may also include interviews with parents, legal guardians, school officials, treatment providers, and social service agents. This report provides the court with detailed information regarding the background of the offender. For example, the report can include demographic information
- 1222. and personal data on education, employment, mental health, substance abuse history, history of personal violence and abuse, and peer relationships. It includes information about the offense and restitution as well as victim impact statements and opinions by the probation officer on the likelihood that the offender will be successfully rehabilitated. Presentence reports may also include narrative data reflecting the demeanor of the offender. They also include an assessment of the offender’s needs and a recommendation to the court about the appropriate sentence for the offender.26 Presentence investigation report (PSI): A report to the court that makes a recommendation for a sentence based on the individual’s criminal history, the individual’s needs, and the nature of the offense. In some cases, it involves interviews with parents/guardians, school officials, treatment providers, and social services. Research on presentence investigation reports finds that
- 1223. probation officers can use different language in describing different categories of offenders, which can impact how those offenders are viewed by the court. Males and females are often described differently, even when they engage in the same types of crimes. The nature of offending and causation of the crime also varies.27 Girls are much more likely to be described as not criminally dangerous, suffering from a poor relationship with their families, lacking support from their parents, and out of parental control.28 Race also alters how offenders are described. Blacks are more likely to be described using negative identifiers about things such as their personality and disposition; Whites are more likely to be described using negative contexts about their environment or situational characteristics. As a result, Black youth are more likely to be described as violent and not remorseful for their crimes whereas White youth are viewed as victims of circumstances and in need of treatment.29 The way
- 1224. that people are described relates to how responsible they are perceived for their crimes. Those whose crimes are seen as a result of individual characteristics tend to be viewed as more responsible for their behavior 814 and more dangerous than those who engage in crime as a result of their social environment.30 815 Probation Revocation If defendants violate the terms and conditions of their probation or if they commit a new crime, they are subject to having their probation sentence revoked by the court. Under the law, any probation revocation must occur via a prompt hearing by the court, and the
- 1225. probationer is entitled to basic due process rights. The U.S. Supreme Court established this rule in its decision in Gagnon v. Scarpelli (1973). The Court also held in this case that probationers are not guaranteed the right to appointed counsel during these hearings. Instead, representation is offered on a case-by-case basis.31 Here are some of the rights of the offender during the revocation hearing: written notice of the alleged violation; disclosure of the evidence against the person; an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear; notice of the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and an opportunity to make a statement and present any information in mitigation.32 Probation revocation: Court hearing to potentially end probation
- 1226. and resentence an offender; takes place if the offender violates the terms and conditions of his or her probation or commits a new crime. Offenders receive due process protections. In considering revoking a sentence of probation, courts generally have two options. First, the court can decide to continue the offender on probation. Second, the court can revoke the sentence of probation and resentence the offender to a new punishment. In most cases, probation is used as an alternative to incarceration. As a result, a new sentence could involve jail or prison time. While most decisions to revoke probation are based on the discretion of the probation officer, some jurisdictions require mandatory revocations. Mandatory revocation also occurs in cases where an offender refuses to comply with drug testing or tests positive for a controlled substance three times within a year.33 Federal law requires the revocation of a probation sentence in cases where the offender
- 1227. is found in possession of a controlled substance or a firearm. These types of cases are called technical violations as they violate the terms and conditions of probation but do not generally result in an arrest for a new 816 offense. The U.S. Supreme Court has held that people on probation cannot be jailed for failing to satisfy their financial punishment, such as failure to pay a fine.34 Mandatory revocation: Revocation of a probation sentence as a result of specific violations. Technical violation: Refers to violations of the terms and conditions of probation. How often is probation revoked? Studies indicate that between 13% and 23% of probationers have their probation revoked for engaging in a new crime. If
- 1228. data on technical violations are included, the number of offenders who have their probation revoked can be as high as 50% of cases.35 Research tells us that disparity exists among probation revocations. For example, Black probationers in some regions are more than twice as likely to have their probation revoked compared with White and Hispanic probationers. We also learn that younger probationers are more likely to have their probation revoked than older adults. Women are less likely to experience a probation revocation.36 In some cases, the three variables of age, race, and gender join together: young Black men often have the highest rates of revocation.37 Research also indicates that both legal and extralegal factor s predict whether someone will be incarcerated for probation revocation. For example, those who have previously been incarcerated are more likely to be resentenced to an incarceration term for violating their
- 1229. probation. Here, probation officers may feel that a harsher sentence is required for those who have previously served time. Men are also more likely to be sent to jail or prison for a probation violation than women. Finally, those who are employed or attending school are less likely to be sent to prison as a result of violating their probation; officers are likely to show leniency toward those who are working at improving their lives but respond more harshly toward those who are unemployed.38 817 Intermediate Sanctions There is no one clear definition of what constitutes an intermediate sanction. The term is generally used to reference the category of intervention between probation and incarceration. In many cases, these interventions are used in conjunction with probation or parole
- 1230. supervision. Intermediate sanctions rose to popularity during the 1990s, an era when the public was growing increasingly concerned with the supervision of offenders in the community. In addition to anxiousness about rising incarceration rates and prison overcrowding, there was great concern that individuals on probation and parole were often unsupervised or undersupervised due to the large caseloads of the officers or the lack of viable rehabilitative options in the community. These concerns were only fueled by the increasing rates of recidivism during this time period. Intermediate sanctions also provided judges with additional sentencing options, which allowed them to better tailor these sentences to the unique needs of the offender. Finally, the rise of new technologies created more ways that offenders could be better supervised in the community without dramatic increases in costs or staff.39 This section highlights some of the commonly used forms of intermediate sanctions: house arrest and electronic monitoring, day reporting and work release programs, and halfway
- 1231. houses. Intermediate sanction: A category of interventions between probation and incarceration. 818 Around the World Probation in Italy Probation first emerged in Italy in 1975 as part of Penitentiary Act 354. Probation services are part of the Department of the Penitentiary Administration. As in many regions, probation services receive a small portion of the budget in Italy. In 2005, the budget for probation services represented only 2% of the total budget of the Penitentiary Department.a In 2014,b there were 948 probation workers employed, with an additional 662 managers and administrative and
- 1232. other staff providing assistance.c The probation service interacts with several other agencies, including hospitals for the mentally ill and treatment programs for those with drug and alcohol addiction issues. Under Article 47 of the Italian Penitentiary Act, offenders can be sentenced to probation as an alternative to detention as part of the final disposition in a criminal case. Unlike probation officers in the United States, the probation service in Italy is not involved with the presentencing investigative report. Probation is typically used in lieu of incarceration and is generally available to certain first- time and nonviolent offenders. Individuals are sentenced to probation for three years or less, and the term of probation is the same as what one would have been sentenced to prison for. Probation officers work both within and outside the prison walls. Unlike the United
- 1233. States, which separates these roles into probation (community supervision in lieu of significant incarceration) and parole (community supervision following a period of incarceration), Italy combines both of these tasks into a single agency. Offenders can also be sentenced to probation if they engaged in criminal behavior as the result of addiction or being under the influence. In these cases, probation is given to those who are willing to participate in a rehabilitation program. These offenders are eligible if they were sentenced to prison for less than six years. Here, treatment is used as a way to prevent recidivism. As a result, this form of probation is only available twice at the discretion of the supervisory court. The public health care system is responsible for the management of the treatment program while the probation officer serves as a liaison between the program and the court.
- 1234. Many of the terms and conditions of probation in Italy are similar to those in the United States: limitations on who probationers can associate with and where they can congregate as well as the requirement to work. However, there are also some unique features as well. For example, a probationer in Italy is required to “regularly fulfil his/her family obligations” and to “do his/her best in favor of the victim of his/her crime.”d Probationers can be assigned to pay restitution in cases of property damage or to perform community service. The focus on the family is a unique feature. Under Italian law, probation supervision with home detention can be used specifically for mothers of children under the age of 10.e Probation supervision in Italy can also be used as a form of split sentence. For some offenders, supervision on probation represents a semiliberty, meaning that offenders will
- 1235. spend their day outside of the prison to work, go to school, or participate in rehabilitative programming. At the end of the day, they return to prison. This feature is generally used for those who are already serving time in prison and are in the process of being reintegrated back into the community. Semiliberty was recently made available to Rudy Guede, who was convicted in 2008 of murdering Meredith Kercher. While he was initially sentenced to 30 years, his sentence was significantly cut by 819 an appeals court to just 16 years. The case made international headlines because Amanda Knox and Raffaele Sollecito were also convicted for the murder. Knox and Sollecito were ultimately exonerated after several trials and appeals. After serving just over seven years of his sentence,
- 1236. Guede was approved to participate in a semiliberty program in which he could attend a local university to study history. Initially, Guede declined to participate in the program out of fears of harassment by the media. But with Italy facing significant issues of prison overcrowding, many offenders are taking advantage of these sorts of programs. In order to receive this type of probation—day release—a surveillance judge approves the eligibility and conditions of an offender’s release and monitors her or his participation in the program. Probationers also have the option of early release. Under Article 54 of the Penitentiary Act, prisoners who exhibit good behavior in prison have their prison sentence reduced 45 days for every six months that they are incarcerated.f In the case of Guede, if he maintains good behavior, he could be released from prison in 2018.g
- 1237. 820 Critical Thinking Questions 1. Identify the similarities and differences between probation in Italy and the United States. 2. Discuss the concept of semiliberty. How is this similar to some of our programs in the United States? 821 House Arrest and Electronic Monitoring House arrest is a form of sanction that requires that offenders remain in their homes in lieu of jail or prison. The offender is permitted to leave his or her residence only for short-term approved purposes, such as going to work or school. House arrest serves a dual purpose: Not
- 1238. only does it punish the offender but it also helps keep the community safe. House arrest can be used as a pretrial release as a condition of one’s bond or as a postconviction or early release program. House arrest: A sanction that requires that offenders remain in their homes in lieu of a jail or prison. In many cases, house arrest programs are used in conjunction with electronic monitoring. Electronic monitoring involves the use of technology to follow the location of an offender. In some cases, electronic monitoring involves an ankle bracelet that is placed on the offender. Any time that the offender travels outside of a designated area, the bracelet emits a signal that notifies the supervision officer that the offender is out of compliance. Recent advances in technology have allowed for Global Positioning System (GPS) monitoring to provide greater opportunities to locate and track the movement of offenders. GPS technology is often used to monitor the transit of convicted sex offenders. However, there have been criticisms about
- 1239. how the technology is used to supervise offenders. In a recent case in Orange County, California, GPS technology was used to link two convicted sex offenders to the rape and murder of five women. However, the devices did not note that the two offenders were spending time together, which would have been a violation of the terms and conditions of their release.40 Critics of this case have questioned whether the presence of GPS technology creates a false sense of security as a result of the types of supervision that the offender may or may not be subjected to. Electronic monitoring: Form of supervision that involves the use of technology to follow the location of an offender. Global Positioning System (GPS) monitoring: A type of electronic monitoring that allows for greater opportunities to locate and track the movement of offenders.
- 1240. Perhaps one of the more famous cases of house arrest in modern times involved Martha Stewart. Stewart was an icon in American culture with a billion- dollar empire of books, magazines, products, and media specials on social entertaining. In 2004, she was convicted on 822 federal charges (conspiracy, obstruction of justice, and making false statements to federal investigators) related to her sale of ImClone stock based on insider-trading knowledge from her broker, Peter Bacanovic. While she staunchly maintained her innocence and even took out a full-page ad in USA Today to this effect, Stewart was sentenced to five months in federal prison. She served her time at the Alderson Federal Prison Camp in West Virginia.41 Following her release, she served an additional five months on house arrest at her Bedford,
- 1241. New York, home. As part of the conditions of her release, she was permitted to leave her home for up to 48 hours a week to buy groceries, go to the doctor, or attend work or religious events. Her house arrest was extended for three additional weeks after the court held that she violated the terms and conditions of her home confinement by attending a yoga class and riding an off-road vehicle around her estate.42 823 Day Reporting Centers and Work/Study Release Programs A day reporting center requires offenders to attend a program or center during the day but allows them to live in their own homes during the evening. Many of these centers provide job assistance, such as résumé writing, job searching, and other life skills programming. The goal of a day reporting center is to create a system of accountability for the offender while
- 1242. enforcing his or her sentence. These programs can be used as either a pretrial or a postconviction form of supervision. During the pretrial stage, day reporting centers are used to help reduce the likelihood that an offender will fail to appear for her or his court date. As a postconviction sentence, day reporting centers can be used as a transition period for a split sentence or as a way to provide enhanced supervision for certain offenders.43 Day reporting center: Requires an offender to attend a program or center during the day but allows him or her to live at home during the evening. In contrast, a work/study release program is used for offenders who are currently housed in a local jail. These programs allow for offenders to leave the facility during the day to go to work or school. Remaining in the jail during the evenings and weekends, however, allows for these offenders to also take advantage of any training or rehabilitative programs that might be
- 1243. available at the facility. These types of programs were first popularized during the 1960s and 1970s, when support for rehabilitation was high. Work/study release programs are most effective for low-level offenders. In order to be eligible to participate in these programs, offenders are typically nearing the end of their incarceration sentence. They are selected on the basis of their positive behavior and progress in prison. In addition, program participants are typically subjected to regular drug testing. Research indicates that offenders who participate in work release programs are more likely to find and maintain employment upon release, which, in turn, leads to lower rates of recidivism. Work release programs are also cheaper to operate compared with traditional correctional programs.44 Such programs can also provide intrinsic benefits to offenders as they serve as a positive reinforcement of good behavior.45 Work/study release: A type of program that allows offenders to
- 1244. leave the facility during the day to go to work or school and return in the evenings and on weekends to take advantage of training and rehabilitative programs. 824 825 Halfway Houses A halfway house is designed to provide a transitional living arrangement for ex-offenders upon their release from jail or prison. These residences also provide supervision of offenders and require that residents participate in programs to aid in their reentry process. Halfway houses first appeared during the early 1800s. In the early days, there was no system of parole, and halfway houses provided a supportive place for offenders to reestablish themselves in the
- 1245. community. However, some feared that congregating several offenders together would actually increase the risk of recidivism. The emergence of parole, coupled with the Great Depression of the 1930s, essentially eliminated these programs. During the rehabilitative era, from the 1950s to the 1970s, such programs returned to popularity as they provided individualized treatment and supervision for offenders. Many of these programs were run by faith-based organizations and focused on rehabilitation and redemption. The movement was legitimized during the 1960s when Congress provided financial support for programs targeting juvenile offenders. Government support of these programs continued until the tough-on-crime philosophy of the 1980s shifted the priorities of corrections to more of a retributive model. Today, halfway houses continue to exist, though they are supported primarily though private foundations and contracted funding.46 Halfway house: Designed to provide a transitional living arrangement for ex-offenders upon their release from jail
- 1246. or prison. 826 Parole 827 A Brief History of Parole Parole was first developed during the nineteenth century. Its rise as a correctional strategy is credited to the work of Alexander Maconochie and Sir Walter Crofton. In 1840, Maconochie was the leader of the English penal colony at Norfolk Island, located off of the coast of Australia. Maconochie was not in favor of prison terms and developed a system whereby inmates could earn credits based on their behavior in custody that could then be
- 1247. used toward their release. Maconochie was appointed in 1849 to serve as the head of the new prison in Birmingham, England, but his philosophy was viewed as too lenient and he was dismissed from his position in 1851. However, Sir Walter Crofton was inspired by Maconochie’s efforts and implemented his practice in the Irish prison system in 1854. In addition to providing release credits to offenders based on their behavior, Crofton also developed a supervision program for offenders once they left prison. Individuals were required to provide a report each month to the police. These police officers provided supervision and accountability to the offenders and also helped them secure jobs in the community.47 828 Parole in the Twenty-First Century Today, the term parole invokes different meanings that reflect
- 1248. the contributions of both Maconochie and Crofton. On one hand, offenders in prison can be up for parole and have their file reviewed by a board of officials to determine whether they should be released back into the community. In determining whether someone should be released from prison, the board considers a number of different factors. Some of the common characteristics that parole boards look at when making this decision include the nature of the offense; criminal history of the offender; institutional behavior of the offender (e.g., disciplinary infractions or participation in rehabilitative programming); potential for recidivism; remorse for one’s behavior and insights into causes of one’s behavior; and plan for reintegration. The passage of the Sentencing Reform Act of 1984 abolished parole at the federal level. While many states followed this trend, others retained the right to operate parole boards to
- 1249. determine whether someone should be released from custody prior to the completion of her or his sentence. For example, the Michigan Department of Corrections uses a three-member panel to decide most cases. The board uses a numerical scoring system in making its decision.48 In other states, parole eligibility is based on how much time an offender has served. In Oklahoma, an individual convicted of a violent crime must serve at least 85% of the sentence prior to being considered for parole. A nonviolent offender must serve only one- third of her or his sentence before becoming eligible for parole. If denied parole, she or he must wait one to five years before being reconsidered. The amount of time an offender has to wait is dependent on the severity of his or her crime.49 Each state varies on how its parole board is organized and how decisions are made by this body. For example, Iowa state law requires that the board be composed of five individuals. State law specifies the categories of individuals that must be
- 1250. represented on the panel. In Iowa, a parole board is composed as follows: Members must be of good character and judicious background 829 Must include a member of a minority group May include a religious leader from the community Must meet at least two of the following: Contain one member who is a disinterested layperson Contain one member who is an attorney licensed to practice law in this state and who is knowledgeable in correctional procedures and issues Contain one member who is a person holding at least a master’s degree in social work or counseling and guidance and who is knowledgeable in correctional procedures and issues50 Parole board: A group of officials who determine whether someone should be released from custody prior to the
- 1251. completion of her or his sentence. Parole also refers to the supervision of offenders following their release from prison. In 2014, there were 870,526 individuals on parole. Since 2000, the number of individuals on parole has increased by over 20%. Comparatively speaking, the number of individuals on probation during the same time decreased by 4.5%. As with probation, the majority of offenders on parole are male (88%) (Figure 12.4). Forty-five percent of those on parole are White, 38% are Black, and 16% are Hispanic. Thirty percent were sentenced to prison for a violent offense, 21% for a property offense, 31% for a drug offense, 4% for a weapons-related offense, and 13% for other crimes.51 Figure 12.4 Characteristics of Parolees The bar chart is titled, Characteristics of Parolees. The different characteristics are plotted on the vertical axis and
- 1252. the percentages are shown on the horizontal axis. The data can be shown in the list given below. Sex 830 Male: 75% Female: 25% Race White: 55% Black: 28% Hispanic: 14% American indian: 1% Other: 1%
- 1253. Offense Violent: 20% Property: 26% Drug: 24% Public order: 17% Other: 13% 831 Careers in Criminal Justice So You Want to Be a Probation or a Parole Officer? The jobs of a probation officer and a parole officer are similar in a number of ways. Both positions involve the supervision of offenders in the community. Both require officers to manage dual functions in their job. On one
- 1254. hand, they are there to ensure the safety and security of the community. In this way, officers fulfill a law enforcer role of sorts. At the same time, probation and parole officers are involved in supporting offenders in their rehabilitation. They assist with locating options for employment, housing, and treatment. In this, their jobs take on characteristics similar to a social worker. Officers also appear before the court to report on the status of offenders and whether they are in compliance. One of the key differences between probation and parole officers is their supervision population and the type of agency they work for. Most probation agencies are organized by local and regional governments. Their caseload is predominantly lower-level offenders who are supervised in the community in lieu of an incarceration sentence. Several states, such as Georgia and Tennessee, have privatized some of their probation services. In contrast,
- 1255. parole officers supervise offenders who are released from prison. These offenders were usually convicted of a felony, and many of them may have a criminal history involving serious and/or violent crimes. Since parole is an extension of the prison system, these jobs are usually at the state level. In addition, there are probation and parole officers who work for the federal government to supervise offenders in these types of cases. Work in these fields is very popular with students in criminal justice and related areas. There are approximately 90,300 probation and parole officers in the United States. To work in these fields, applicants are required to have at least a bachelor’s degree (and some jurisdictions require a master’s degree). The median pay is $48,190 annually. Much of the job growth in this field is related to job turnover and not to an increase in the number of
- 1256. positions, which are highly competitive. 832 Role of Parole Officers While parole supervision was once intended to help offenders successfully transition back to the community, the role of the parole officer has shifted. Due to the high caseloads that many parole offices face, the opportunities to provide individualized care to these offenders are limited. Instead, the majority of a parole officer’s time is spent monitoring offenders and waiting to respond if and when an offender violates the conditions of his or her release. One woman shared the struggles in meeting the demands of her parole, expressing fear of the unknown in her new life and her ability to be successful in her reentry process: I start my day running to drop my urine [drug testing]. Then I go see my children, show
- 1257. up for my training program, look for a job, go to a meeting [Alcoholics Anonymous], and show up at my part-time job. I have to take the bus everywhere, sometimes eight buses for 4 hours a day. I don’t have the proper outer clothes, I don’t have the money to buy lunch along the way, and everyone who works with me keeps me waiting so that I am late to my next appointment. If I fail any one of these things I am revoked. I am so tired that I sometimes fall asleep on my way home from work at 2:00 a.m. and that’s dangerous given where I live. And then the next day I have to start over again. I don’t mind being busy and working hard…. That’s part of my recovery. But this is a situation that is setting me up to fail. I just can’t keep up and I don’t know where to start.52 833 Issues in Reentry
- 1258. The needs of the incarcerated returning to their communities are high. While much of the research on reentry issues has focused on whether offenders will reoffend and return to prison (recidivism), recent scholars have shifted the focus to discussions on how to successfully transition offenders back into their communities. This process can be quite traumatic, and a number of issues emerge in creating a successful reentry experience. Reentry: Refers to the period of time when an offender is released from prison and returns to the community. For those few offenders who were able to receive some therapeutic treatment in prison, most acknowledged that these prison-based intervention programs provided few, if any, legitimate coping skills to deal with the realities of the life stressors that awaited them upon their release. Consider the basic needs of offenders who have just left prison. They need housing, clothing,
- 1259. and food. They may be eager to reestablish relationships with friends, family members, and, in some cases, their children. In addition, they have obligations as part of their release— appointments with their parole officer and treatment requirements. Furthermore, the majority of offenders find themselves returning to the same communities in which they lived prior to their incarceration, where they face the same problems of poverty, addiction, and dysfunction. Finding safe and affordable housing is challenging, and many of the available options place them at risk for relapse and recidivism.53 For those few offenders who were able to receive some therapeutic treatment in prison, most acknowledged that these prison-based intervention programs provided few, if any, legitimate coping skills to deal with the realities of the life stressors that awaited them upon their release. Figure 12.5 highlights the types of short- and long-term housing that many ex-offenders utilize in their exit from prison. 834
- 1260. Figure 12.5 Postrelease Housing Arrangeme nts for Women Exiting Prison Source: Nancy G. La Vigne, Lisa E. Brooks, and Tracey L. Shollenberger, Women on the Outside: Understanding the Experiences of Female Prisoners Returning to Houston, Texas, Urban Institute Justice Policy Center, 2009, http://www.urban.org/sites/default/files/publication/30401/4119 02-Women-on-the- Outside-Understanding-the-Experiences-of-Female-Prisoners- Returning-to-Houston- Texas.PDF. The bar chart is titled, Postrelease Housing Arrangements for Women Exiting Prison. Housing arrangements are plotted on the vertical axis, while percentages are plotted on the horizontal axis on a scale of 0 to 45%, in increments of 5%. The data can be shown in the list below. For each arrangement, the percentages are given in
- 1261. the following order: First night out, 8–10 months out. Relative’s home: 40%, 36% Own house or apt.: 27%, 38% Friend’s home: 17%, 8% Transitional facility or halfway house: 5%, 2% Hotel/motel/rooming house: 4%, 1% Shelter: 2%, not available/negligible Residential treatment facility: 1%, 1% 835 http://www.urban.org/sites/default/files/publication/30401/4119 02-Women-on-the-Outside-Understanding-the-Experiences-of- Female-Prisoners-Returning-to-Houston-Texas.PDF Homeless/on the street: 1%, 1%
- 1262. County jail: not available/negligible, 5% State jail/prison: not available/negligible, 3% No set place: not available/negligible, 1% Other: 3%, 6% 836 Employment Challenges Offenders have a new identity upon their release from prison: the ex-offender. This label can present significant challenges for individuals and threaten their ability to be successful upon release, particularly when it comes to finding a job. Consider the number of employment opportunities that require applicants to disclose whether they have ever been arrested for a crime. In many cases, this automatically excludes the applicant from consideration. Many also
- 1263. reference how their lack of education or training makes it difficult to secure legal and stable employment.54 A recent campaign to “ban the box” has many agencies and companies changing the way they handle ex-convicts’ applications for employment. In November 2015, President Obama announced a new policy to “ban the box” on applications for jobs in federal agencies.55 In addition, several states have similar laws on the books. You’ll learn more about this issue in the Current Controversy at the end of this chapter. Ban the box: Policy that asks or mandates that potential employers eliminate from initial hiring applications the check box that asks individuals if they have a criminal record. 837 Disenfranchisement
- 1264. Many states deny individuals the right to vote if they have been convicted of a felony. Figure 12.6 highlights this phenomenon and notes that while some states disenfranchise individuals only while they are incarcerated, others continue to disenfranchise individuals even after they have successfully completed their sentence. Nationwide, this means that 5.85 million Americans are unable to participate in the political process, 2.2 million of whom are African American.56 This has a particularly profound effect on communities of color, which lack the political power to elect officials who represent the voice of these often marginalized populations. In fact, research indicates that felony disenfranchisement policies have had a significant impact on several national-level elections.57 An inmate leaves prison after the completion of his sentence. What challenges will he likely face as an ex-offender? © Joe Raedle/Newsmakers/Hulton Archive/Getty Images
- 1265. 838 Figure 12.6 Felony Disenfranchisement Restrictions by State, 2016 Source: Jean Chung, Felony Disenfranchisement: A Primer, The Sentencing Project, July 17, 2018, http://www.sentencingproject.org/publications/felony- disenfranchisement-a- primer. Reprinted with permission from The Sentencing Project. The list below shows the states that do not allow felons to cast a vote if they are/in Prison, parole, probation, and/or post-sentence. No restrictions: Maine and Vermont. Prison: New Hampshire, Massachusetts, Rhode Island, Pennsylvania, Maryland, D.C., Ohio, Michigan, Indiana, Illinois, and Utah.
- 1266. Prison and parole: New York, Connecticut, Colorado, North Dakota, Montana, Oregon, California, and Hawaii. Prison, parole, and probation: New Jersey, West Virginia, North and South Carolina, Georgia, Louisiana, Arkansas, Missouri, Kansas, Oklahoma, Texas, New Mexico, Wisconsin, Minnesota, South Dakota, Idaho, Washington, and Alaska. 839 http://www.sentencingproject.org/publications/felony- disenfranchisement-a-primer Prison, parole, probation, and post-sentence: Delaware, Virginia, Kentucky, Tennessee, Alabama, Mississippi, Florida, Iowa, Nebraska, Wyoming, Nevada, and Arizona. While all states have a process that allows for offenders to reinstate their voting rights, the
- 1267. process is often so difficult that many are discouraged. Recently, several states have revisited these policies to determine whether individuals should have their right to vote reinstated based on their rehabilitative efforts. In 2007, Maryland’s legislature eliminated the lifetime voting ban that was previously in place. Today, all individuals receive an automatic restoration of their rights once they have completed their sentence. Similarly, Nebraska’s legislature overturned the lifetime ban for felons in their state and replaced it with a policy that bans felons from voting for two years following the completion of their punishment. Several other states, including Tennessee and Washington, require that offenders satisfy all fees and restitution orders prior to having their voting rights reinstated.58 840 Drug Addiction
- 1268. In addition to the challenges of returning home from prison, many offenders continue to battle the demons that led them to criminal activity in the first place. Drug addiction is one of the primary reasons why many offenders are involved in criminal activity and ultimately sent to prison, and research notes that only 22% of inmates receive substance abuse treatment while they are incarcerated.59 Given the limited availability of treatment options both behind bars and within the community, issues of addiction can lead to recidivism.60 Drug addiction has a multiplying effect in the lives of offenders; it can not only threaten their status on parole but impact their ability to maintain stable employment and secure housing. Without community-based resources, many offenders will return to the addictions and lifestyles in which they engaged prior to their incarceration. Throughout the reentry process, ex-offenders struggle with gaining access to these resources. Without referrals by probation and parole,
- 1269. many ex-offenders are denied access to treatment due to the limited availability of services or an inability to pay for such resources on their own. 841 Access to Health Care Many offenders have limited access to physical and mental health care, often due to a lack of community resources, an inability to pay, or lack of knowledge about where to go to obtain assistance. Given the mental and physical health needs of incarcerated men and women, the management (or lack thereof) of chronic health problems can impede an ex-offender’s successful reentry process.61 For example, data on California’s inmate population notes that 40% of individuals exiting prison have current health issues, 58% struggle with drug abuse or dependency, and 55% have mental health issues.62 The needs
- 1270. for women are particularly high: 67% of women who exit prison have been diagnosed with some sort of chronic health condition, such as asthma, high blood pressure, or an infectious disease. In addition, more than half of the women suffer from mental health issues.63 Access to mental health resources can vary significantly depending on where an ex-offender resides. There are also cultural barriers to treatment as well: African American parolees tend to have less access to mental health clinics than Latino or White parolees.64 Additionally, mental health services within the community overemphasize the use of prescription psychotropic medications. Coupled with the limited availability of therapeutic interventions, these health interventions resemble more of a Band-Aid than a comprehensive, stable approach for offenders.65 842
- 1271. With the increase in the incarcerated population during the 1990s and 2000s, coupled with longer sentences, the number of older prisoners who are now being released from prison is growing significantly. What sort of reentry challenges do older ex-inmates face? John Moore/Getty Images News/Getty Images 843 Access to Resources While a large number of ex-offenders turn to public assistance to help support their reentry transition, many come to find that these resources are either unavailable or significantly limited. The welfare reform bill of 1996—titled the Personal Responsibility and Work Opportunity Act—not only imposed time limits on the aid that individuals can receive but
- 1272. also significantly blocked the road to success by denying services and resources for those with a criminal record, particularly in cases involving felony drug- related charges.66 Section 115 of this welfare reform act called for a lifetime ban on some benefits, such as Temporary Assistance for Needy Families (TANF) and Supplemental Nutrition Assistance Program (SNAP; food stamps), for offenders convicted in the state or federal courts for a felony drug offense. In addition, offenders convicted of a drug offense are barred from living in public housing developments, and in some areas, a criminal record can limit the availability of Section 8 housing options.67 Drug charges are the only offense type subjected to this ban— even convicted murderers can apply for and receive government benefits following their release.68 This ban jeopardizes the very efforts toward sustainable and safe housing, education, and drug treatment that are needed in order for ex- offenders to successfully
- 1273. transition from prison. Figure 12.7 presents state-level data on the implementation of the ban on welfare benefits for felony drug convictions. 844 Figure 12.7 State Drug Conviction Policies on Cash Assistance (TANF) and Food Stamps (SNAP) Source: Marc Mauer and Virginia McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, The Sentencing Project, November 14, 2013, https://www.sentencingproject.org/publications/a-lifetime-of- punishment-the-impact- of-the-felony-drug-ban-on-welfare-benefits. The figure is titled, State Drug Conviction Policies on Cash Assistance (TANF) and Food Stamps (SNAP). The data are shown in the list below.
- 1274. No ban: Maine, New Hampshire, Vermont, New York, Rhode Island, New Jersey, Pennsylvania, D.C., Ohio, Michigan, Kansas, Oklahoma, and New Mexico. Cash assistance ban: Delaware, Iowa, South Dakota, Nebraska, and Washington. Food stamps ban: Wyoming. Cash assistance and food stamps ban: Massachusetts, Connecticut, Maryland, Virginia, West Virginia, North and South Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee, Kentucky, Indiana, Wisconsin, Minnesota, Illinois, Missouri, Arkansas, Louisiana, Texas, Colorado, North Dakota, Montana, Idaho, Oregon, California, 845 https://www.sentencingproject.org/publications/a-lifetime-of- punishment-the-impact-of-the-felony-drug-ban-on-welfare- benefits
- 1275. Nevada, Utah, Arizona, Alaska, and Hawaii. Since its enactment in 1996, a majority of states have rescinded the lifetime ban on resources for felony drug offenders, either in its entirety or in part. In 2015, senators Cory Booker (D- NJ) and Rand Paul (R-KY) introduced legislation titled the Record Expungement Designed to Enhance Employment (REDEEM) Act. In addition to allowing nonviolent federal offenders the option to have their criminal records sealed (thus making it easier for them to successfully reintegrate back into society), this proposed legislation would lift the lifetime SNAP and TANF bans for nonviolent drug offenders.69 But even offenders without a drug conviction still face significant issues in obtaining public assistance. TANF carries a five-year lifetime limit on assistance. (This lifetime limit applies to all residents, not just those under the criminal justice system.) In addition, the delay to receive these services ranges from 45 days to several months,
- 1276. which significantly affects the ability of parolees to put a roof over their children’ s heads, clothes on their bodies, and food in their bellies.70 Ultimately, these limitations are a reflection of budgetary decisions that often result in the slashing of social service and government aid programs while the budgets for criminal justice agendas, such as incarceration, remain supported by state and government officials. Despite the social stigma that comes with receiving welfare benefits, women in one study indicated that the receipt of such benefits represented progress toward a successful recovery and independence from reliance on friends, family, or a significant other for assistance. A failure to receive benefits could send them into a downward spiral toward homelessness, abusive relationships, and relapse. According to one woman, We still need welfare until we are strong enough to get on our feet. Trying to stay clean, trying to be responsible parents and take care of our families.
- 1277. We need welfare right now. If we lose it, we might be back out there selling drugs. We’re trying to change our lives. Trying to stop doing wrong things. Some of us need help. Welfare helps us stay in touch with society. Trying to do what’s right for us.71 Clearly, ex-offenders who