The Courts “I know you’ve been sworn and I have read your complaints” Judge Wapner

The Structure of the Courts State Courts Layers of Trial Courts (Superior and inferior) Appellate courts Supreme court Federal Courts Trial courts Federal Appeals courts “District courts” The Supreme Court

U.S. Supreme Court 9 Justices, appointed by president, in consultation with senate Appointment is for life High stakes for politics Interpret laws in light of constitution and past court rulings Choose what cases they wish to hear

Who are the “players” in the judicial system? Prosecutor Defense Attorneys Judges

The Prosecutor Represents the state in criminal matters Federal = Attorney general and U.S. attorneys State = District or State attorney Prosecutorial Discretion (400# Gorilla) Whether or not to charge & specific charge Decision to drop case May enter and end plea negotiations

The Defense Attorney Private Attorneys (Johnny Cochran) Sixth Amendment right to counsel Attorney list system Contracting with law firm Public defenders system (large, urban) Roughly ¾ of state inmates are represented by publicly funded attorneys

Role of the Defense Represent their client in a vigorous, adversarial manner Investigate incident, interview client/witnesses, represent client at all proceedings, negotiate plea with district attorney Conflict of interest? The Devil’s Advocate Low pay and conflict of interest = burnout

The Judge During Trial Rule on questions of procedure (how to question witnesses, rules of evidence) May determine guilt in a bench trial After trial or plea bargain Responsible for determining sentence

TYPICAL PROCESS Pre-Trial Decisions Trial/Plea Bargain Sentencing

The Courts System Process 1. Formally charge 2. Pre-trial Detainment Decisions 3. Determine guilt or innocence 4. Impose a sentence 5. Hear appeals

Pre-Trial Decisions Prosecutor must issue a criminal charge Formal document, lays out facts of case, circumstances of arrest, penal code Felony cases = bill of “indictment” or “information” Misdemeanors = criminal complaint

Pre-Trial Decisions Arraignment Judge makes sure defendant understands charge Makes sure defendant has counsel Defendant enters plea Guilty No Contest Not Guilty Decision regarding pre-trial detainment

Pre-Trial Detainment Jail 50% pre-trial, 50% sentenced < 1 year Alternatives to Jail? Bail System Bail Bondsmen Fairness?

Alternatives to Bail? Pretrial Supervised Release Essentially probation while out in community before trial (similar “conditions”) Release on Recognizance (ROR) Promise to come back Why do people fail to show up for court dates? Role of pretrial services

The Trial Jury Selection Trial Process Opening statement Prosecutor Defense Closing argument Verdict Sentence

Is the process really “adversarial?” Sam Walker’s “Wedding Cake” Model Celebrated cases may approach ideal of an adversarial process Lower “layers” = administrative rather than adversarial Judge, defense, and prosecutor have a shared understanding of what a case is “worth”

The Courtroom Workgroup Term coined by Malcolm Feeley Judges, prosecutors and defense work together daily Minimize conflict and develop informal procedures for dealing with cases The “Going Rate” Seriousness of offense Prior record of defendant Relationship between victim and defendant

Plea Bargaining What is bargained? Charge Sentence Conservatives = loophole Liberals = perversion of the system Reality? Given the “going rate,” it is not so much a “bargain” as standardized administrative process

Benefits of Plea Bargaining State Prosecutor assured of guilt verdict Save the court time and cash More time for “serious cases” Defendant Avoid pre-trial detention No uncertainty in sentence May get more lenient sentence

Sentencing Structures Indeterminate Tied to rehabilitation More open ended, typically tied to parole release Sentence = 2-5 years Determinate More Fixed Sentence = 26 months May still get out early through a variety of mechanisms (e.g., good time credits)

Specialized Sentencing Schemes within Determinate Sentencing Mandatory Minimum Sentences 3 strikes legislation Truth in sentencing Federal initiative 85% for UCR Part I violent offenses

Sentencing Guidelines End result of the debate over rehabilitation and intermediate sentences (1960s-1970s) Take discretion away from… Liberals = racist / classist judges Conservatives = liberal weenie judges Question: Where does the discretion go? Who creates the sentencing grid?

Sentencing and Discretion With guideline sentencing, who has discretion? Who creates the grids? Many states = legislature Constant pressure to increase sentences MN: The Minnesota Sentencing Guidelines Commission 1980 guidelines tied to prison population Prosecutors Decide the charge (where you land on offense seriousness)

Sentencing Disparity When 2 people who commit similar crimes, and have the same prior record receive different sentences What stage do disparities enter? Jurisdictional Differences Plea bargaining (part of “going rate?”) Victim/Offender relationships Sentencing judge (biased, bad day…)

Racial Disparities RACE Incarceration Rates Black = 3,300/100,000 Hispanic = 1,200/100,000 White = 500/100,000 BUT… Disparities enter prior to judicial involvement (police) Disproportionate involvement in serious crime

Racial Disparity in Sentencing II The “Liberation Hypothesis” More disparity in less serious cases More disparity when black offender and white victim Rape and Capital Murder Race as part of “offense seriousness” and “prior record” Crack cocaine laws, aggressive policing of minority communities

Other Disparities Class = Difficult to detect (most in system are relatively poor) Difference between white collar and street Differences in some “celebrated cases” are obvious Full benefit of highly paid defense attorneys Gender Females more likely to be treated leniently

Reducing Sentencing Disparity Sentencing guidelines May reduce some disparity, but does not eliminate Disparity may be “built in” to sentencing grid (e.g., crack penalty) Do we want to eliminate all disparity? More harsh with females? Some disparities may be due to legitimate factors