1. CJ 600 Issues in the Court System

2. Historical Overview Use of British common law Use of British common law Colonial courts unclear as to which acts of Parliament or case law applied Colonial courts unclear as to which acts of Parliament or case law applied Every colony different Every colony different Colonial courts had wide powers, very undifferentiated, with legislative, executive and judicial functions Colonial courts had wide powers, very undifferentiated, with legislative, executive and judicial functions Mistrusted, associated with Br. Gov. Mistrusted, associated with Br. Gov.

3. History Movement to codified law Movement to codified law Requirements fo practice law varied Requirements fo practice law varied Following the Revolutionary War, established of more courts, appellate courts Following the Revolutionary War, established of more courts, appellate courts Constitution established Supreme Court, authorized other courts Constitution established Supreme Court, authorized other courts Vague Vague

4. History Lower courts a hodge podge, differ from state to state Lower courts a hodge podge, differ from state to state Organization was frequently tied to politics Organization was frequently tied to politics Judges elected or appointed Judges elected or appointed Dual nature of US Government Dual nature of US Government Supreme court established by constitution, and the federal courts by the Judiciary Act of 1789 Supreme court established by constitution, and the federal courts by the Judiciary Act of 1789

5. History Supreme Court had little power until Marbury v. Madison, when the court struck down a section of the Judiciary Act as unconstitutional –judicial review Supreme Court had little power until Marbury v. Madison, when the court struck down a section of the Judiciary Act as unconstitutional –judicial review Around 1820s, courts began a trend of setting legal doctrine Around 1820s, courts began a trend of setting legal doctrine Until WW II, conservatives and business depended on judicial branch, distrusted legislature Until WW II, conservatives and business depended on judicial branch, distrusted legislature

6. History Courts seldom dealt with constitutional rights of individuals, tended to rule against individuals and labor Courts seldom dealt with constitutional rights of individuals, tended to rule against individuals and labor Section 1983 and post civil war amendments passed after the war, but had little effect Section 1983 and post civil war amendments passed after the war, but had little effect Plessy v. Ferguson (1896)--segregation Plessy v. Ferguson (1896)--segregation

7. History Early 20 th century began an expansion of due process for criminal defendants Early 20 th century began an expansion of due process for criminal defendants Powell vs. Alabama, 1932 (Scottsboro case) Powell vs. Alabama, 1932 (Scottsboro case) Incorporation controversy Incorporation controversy Depression era: federal legislation kept getting struck down by the Supreme Court Depression era: federal legislation kept getting struck down by the Supreme Court Roosevelt threatened court packing Roosevelt threatened court packing

8. History Court backed down Court backed down 1950s, Warren court, civil rights revolution 1950s, Warren court, civil rights revolution Brown v. Board of Education Brown v. Board of Education Series of decisions: Mapp v. Ohio, Miranda v. Arizona, Gideon v. Wainwright Series of decisions: Mapp v. Ohio, Miranda v. Arizona, Gideon v. Wainwright Burger court: Furman v. GA and Gregg v. GA, prisoners rights cases Burger court: Furman v. GA and Gregg v. GA, prisoners rights cases Some “erosion” since then Some “erosion” since then

9. History Other decisions, such as religion cases, Roe v. Wade Other decisions, such as religion cases, Roe v. Wade Controversy: original intent, strict interpretation, social interpretation Controversy: original intent, strict interpretation, social interpretation Courts have become increasingly powerful Courts have become increasingly powerful Number of cases and lawsuits Number of cases and lawsuits Number of cases filed against the criminal justice system, esp. police and corrections Number of cases filed against the criminal justice system, esp. police and corrections

10. Court issues 1. Court models: constellation, federation, union 1. Court models: constellation, federation, union 2. Selection of judges: appointed vs. election 2. Selection of judges: appointed vs. election 3. Bail: purpose to assure presence at trial 3. Bail: purpose to assure presence at trial Problems: favors rich, unnecessary detention in some instances, get longer sentences, the bail bondsman Problems: favors rich, unnecessary detention in some instances, get longer sentences, the bail bondsman

11. Issues Deposit bail: eliminating the bail bondsman Deposit bail: eliminating the bail bondsman Manhattan Bail Project Manhattan Bail Project 4. Preventative detention 4. Preventative detention 5. Courtroom work group: prosecutors, defense counsel, judges, also police and probation officers 5. Courtroom work group: prosecutors, defense counsel, judges, also police and probation officers

12. Issues Courtroom work group a community of people who work together and have a mutual interest in getting the job done as efficiently as possible Courtroom work group a community of people who work together and have a mutual interest in getting the job done as efficiently as possible “Going rate” the group develops over time a consensus about what a crime and prior criminal history is “worth” “Going rate” the group develops over time a consensus about what a crime and prior criminal history is “worth” Often not adversarial, consensus reached Often not adversarial, consensus reached

13. Issues Observational studies find that researchers are able to predict outcomes after studying such groups Observational studies find that researchers are able to predict outcomes after studying such groups Why sentence disparity? Each courtroom work group develops its own going rate, based on the individuals involved, community standards, etc. Why sentence disparity? Each courtroom work group develops its own going rate, based on the individuals involved, community standards, etc.

14. Issues 6. Prosecutor 6. Prosecutor Prosecutor’s dilemma Prosecutor’s dilemma Quasi-judicial immunity Quasi-judicial immunity Prosecutorial discretion—power to pursue or dismiss cases Prosecutorial discretion—power to pursue or dismiss cases Of every 100 cases, 35 sent to JJS, 65 to district attorney Of every 100 cases, 35 sent to JJS, 65 to district attorney

15. Prosecutor Of those 65, 20 rejected or diverted, 45 accepted for prosecution Of those 65, 20 rejected or diverted, 45 accepted for prosecution Of those 45, 10 dismissed or failed to appear, 35 plead guilty (30)or go to trial (5) Of those 45, 10 dismissed or failed to appear, 35 plead guilty (30)or go to trial (5) 2 acquitted in trial, 33 convicted (3 in trial) 2 acquitted in trial, 33 convicted (3 in trial) There is considerable variation across jurisdictions There is considerable variation across jurisdictions

16. Prosecutor Factors that affect discretion Factors that affect discretion Nature of the evidence Nature of the evidence Attitude of the victim Attitude of the victim Relationship of victim to the offender Relationship of victim to the offender (chances of conviction 20-30% lower if they know one another) (chances of conviction 20-30% lower if they know one another) Harm to the victim Harm to the victim Costs Costs

17. Prosecutor Available alternatives Available alternatives Use of civil sanctions Use of civil sanctions Willingness of suspect to cooperate Willingness of suspect to cooperate Strength of the evidence and seriousness of the offense appear to be the greatest factors Strength of the evidence and seriousness of the offense appear to be the greatest factors

18. Defense counsel Gideon v. Wainwright and Argersinger v. Hamlin Gideon v. Wainwright and Argersinger v. Hamlin Private, contract, assigned, public defender Private, contract, assigned, public defender Defense counsel’s dilemma—the guilty client Defense counsel’s dilemma—the guilty client Loyalties divided, not only to client, must also get along with courtroom work group Loyalties divided, not only to client, must also get along with courtroom work group

19. Plea bargaining Advantages: costs decrease, more efficient Advantages: costs decrease, more efficient Less time spent on minor and clear-cut cases Less time spent on minor and clear-cut cases Decrease pretrial detention time Decrease pretrial detention time Victims and witnesses spared a trial Victims and witnesses spared a trial

20. Plea bargaining Disadvantages Disadvantages Innocent may plead guilty Innocent may plead guilty Loss of rights Loss of rights Might contribute to sentence disparity Might contribute to sentence disparity Attempts to curtail plea bargaining have not usually been successful Attempts to curtail plea bargaining have not usually been successful Preplea conference Preplea conference

21. Trial issues Review: constitutional rights Review: constitutional rights Speedy, public, jury, summon witnesses, cross-examination, counsel Speedy, public, jury, summon witnesses, cross-examination, counsel Issues Issues Scientific jury selection Scientific jury selection Does it give certain clients an advantage by virtue of some extralegal factor? Does it give certain clients an advantage by virtue of some extralegal factor?

22. Issues Unanimous vs. non-unanimous decisions Unanimous vs. non-unanimous decisions 9 out of 12 the lowest 9 out of 12 the lowest Advantages: more efficient, less hung juries, less possibility of a bribe Advantages: more efficient, less hung juries, less possibility of a bribe However, an important minority (the thoughtful juror) could be ignored However, an important minority (the thoughtful juror) could be ignored

23. Court issues 12 person jury vs. lesser numbers (6) 12 person jury vs. lesser numbers (6) Advantages: easier to obtain a jury, cheaper, more convictions Advantages: easier to obtain a jury, cheaper, more convictions Disadvantages: less representative of the community, less discussion of the case Disadvantages: less representative of the community, less discussion of the case

24. Court issues Videotaping Videotaping Trials, testimony Trials, testimony Trials—many judges opposed, argue that it is distracting and detracts from the dignity of the proceeding Trials—many judges opposed, argue that it is distracting and detracts from the dignity of the proceeding On the other hand, provides a record, can be used as an educational tool On the other hand, provides a record, can be used as an educational tool

25. Court Issues Videotaping of testimony Videotaping of testimony Police could be on the streets, spares victims, confessions and lineups could be used Police could be on the streets, spares victims, confessions and lineups could be used Inadmissible sstatements could be eliminated Inadmissible sstatements could be eliminated Child victims could be spared the stress Child victims could be spared the stress However, violates right to confrontation However, violates right to confrontation

26. Other issues Continuances Continuances Victim-witness bureaus Victim-witness bureaus

27. Sentencing Purposes: individual deterrence (punishment), general deterrence, retribution, incapacitation, rehabilitation Purposes: individual deterrence (punishment), general deterrence, retribution, incapacitation, rehabilitation Punishment: must be consistent, immediate, introduced at its maximum intensity, too severe is not effective, extended periods not effective, rewards for punished responses must be reduced Punishment: must be consistent, immediate, introduced at its maximum intensity, too severe is not effective, extended periods not effective, rewards for punished responses must be reduced

28. Punishment Alternative response with same or greater reward Alternative response with same or greater reward Access to different situations to obtain those rewards Access to different situations to obtain those rewards

29. Types of sentences Indeterminate, determinate (flat), indefinite (range, good time, parole) Indeterminate, determinate (flat), indefinite (range, good time, parole) Disenchantment with indeterminate sentences and rehabilitation, sentencing disparity Disenchantment with indeterminate sentences and rehabilitation, sentencing disparity Consequences Consequences Longer sentences Longer sentences

30. Sentencing Sentence reform Sentence reform Sentencing guidelines (presumptive sentencing) Sentencing guidelines (presumptive sentencing) Remove judicial discretion Remove judicial discretion Federal: Sentencing Reform Act of 1984 Federal: Sentencing Reform Act of 1984 Sentencing guidelines, abolition of parole Sentencing guidelines, abolition of parole Mandatory minimums for certain types of crime Mandatory minimums for certain types of crime

31. Sentencing reforms Controversial law, disliked by federal judges, perceived as to inflexible Controversial law, disliked by federal judges, perceived as to inflexible Partially account for the dramatic increase in the federal prison population Partially account for the dramatic increase in the federal prison population Have most affected the minority prison population Have most affected the minority prison population

32. State reform Several states have implemented sentencing guidelines with less controversy Several states have implemented sentencing guidelines with less controversy Minnesota the most notable example Minnesota the most notable example Reduction of disparity without additional discrimination, and Reduction of disparity without additional discrimination, and Guidelines are tied to predictions of prison populations, can be modified Guidelines are tied to predictions of prison populations, can be modified

33. Other reforms Megan’s laws Megan’s laws Selective incapacitation Selective incapacitation Mandatory minimums (mostly for drug and weapons offenses) Mandatory minimums (mostly for drug and weapons offenses) Truth-in-sentencing laws (reduction of good-time, elimination of parole discretion, or use of presumptive parole) Truth-in-sentencing laws (reduction of good-time, elimination of parole discretion, or use of presumptive parole) Three strikes and you’re out Three strikes and you’re out

34. Other alternatives Fines, probation, shock probation, intermediate sanctions (boot camps, electronic monitoring, intensive probation supervision, community-based corrections) Fines, probation, shock probation, intermediate sanctions (boot camps, electronic monitoring, intensive probation supervision, community-based corrections)