Prisons and Punishment Midterm Study Guide

These flashcards provide a comprehensive review of key vocabulary and concepts from the lecture notes on prisons and punishment.

Panopticon

The Panopticon is a surveillance structure created in 1764 by Jeremy Bentham. It is a

circular design with cells along the perimeter and a guard tower in the center, creating the illusion

that the guard is always watching the prisoners in the cell. The panopticon is a form of control,

stripping away the prisoners’ humanity and dignity because one always feels watched and prisoners

cannot trust one another because they do not know who could be working with the guards. Modern

day prisons resemble the panopticon, if not in structure then in spirit, with 24/7 surveillance and

mistrust between prisoners, showing how the U.S. prison system controls, dehumanizes and takes

away the dignity of prisoners.

Stanford Prison Experiment

• Inspo: Milgram experiments of obedience

• Psychological study by Stanford professor Philip Zimbardo in 1971.

• In the experiment, students were randomly chosen and assigned to play the role of either prisoner or guard,

  • Zimbardo studied how the subjects behaved differently simply based on their role in the experiment.

• The Stanford Prison Experiment revealed that the guards acted harshly and cruelty toward the prisoners despite logically knowing they were not actual prisoners that needed to be punished.

  • Restricted bathroom access, forced exercise, arbitrary “good/bad” divisions

• The results showed that when put into specific circumstances or situations, people are susceptible to certain behaviors they never thought possible, and when given a role of authority, people may abuse that power. In relation to the U.S. prison system, these results

showed that the way the system is designed matters,

Implicit Bias

Implicit bias is deep-rooted subconscious attitudes toward a group of people which lead one to treat them differently. In Hidden Biases, Banji and Greenwald argue that while overt or

openly blatant racism has declined in the U.S., implicit racial bias still permeates in society today,

causing structural racism through small incidents of bias that lead to larger racial disparities down

the road. The Implicit Associations Test (IAT) finds implicit racism through a series of tasks forcing

users to make quick associations, finding that Americans are more likely to associate whites with

positive attributes and blacks with negative ones. Both findings have greater implications for our

criminal justice system, as implicit bias seeps into the system through discretionary behaviors such as who a police officer decides to pull over or search. When forced to make quick decisions, a police

officer’s implicit bias may come out, potentially explaining police violence against African

Americans.

Convict Leasing

In his book Worse than Slavery, David Oshinsky describes convict leasing as a

practice in the American South between 1868 and 1894, where a plantation owner would pay the

State to lease convicts to them as cheap labor. It emerged after emancipation as a way to continue

profiting off of the cheap or free labor of African Americans, but it was “worse than slavery”

because plantation owners had no incentive to keep convicts healthy since they were in high supply

and inexpensive, leading to harsher and worse working conditions. Convict leasing incentivized the

state to incarcerate black people to make a profit, leading to unethical laws such as black codes, pig

laws, or vagrancy laws which targeted black people for small crimes like loitering, animal theft, or

even not having a job. Convict leasing was significant because it was a new and worse form ofslavery disguised under the veneer of a fair process, reflecting how the criminal justice system can and does permeate racism, even if it seems fair on paper.

Parchman Farms

In his book Worse than Slavery, David Oshinsky writes about Parchman Farms, an

institution created in Mississippi in 1901 to harness the labor of incarcerated individuals for the

State. Parchman Farms was created to replace convict leasing, where plantation owners would pay

the state for cheap convict labor, since it provided a loophole for the state to continue profiting off

of convict labor without leasing them out. Parchman Farms operations heavily reflected the

structure of plantation slavery, as the superintendent who oversaw the institution was like the

“slave master,” the sergeant who oversaw specific tasks was like the “slave driver,” and drivers who

were prisoners who oversaw the others and had special privileges was like the “driver” on a

plantation. Parchman Farms was a form of state-sponsored slavery, as most of the convicts who

were sent to work there were black, oftentimes arrested and incarcerated for small crimes like theft

or not having a job (vagrancy laws) which were purposely designed to incarcerate more African

Americans to work on the Farm. Parchman Farms is significant because it was a state-sponsored

state-profiting institution that institutionalized slavery through disproportionate

incarceration of blacks and a mission of “taming the black criminal,” the effects of which we

still see in our system today.

The New Jim Crow

The New Jim Crow is a book and a term authored and coined by Michelle

Alexander, and it is used to refer to mass incarceration in America as a new form of “racial caste”

that substituted Jim Crow segregation. Mass incarceration was born shortly after the Civil Rights act

of 1964 and the Voting Rights act of 1965 which outlawed Jim Crow, and it began with Goldwater’s

1964 “tough on crime” campaign which associated criminality with African Americans. This rhetoric

grew over time, most significantly during Regan’s 1982 “war on drugs” in which blacks were targeted

through policing, marijuana arrests, and the heavy criminalization of crack cocaine, which was more

common amongst poor black communities. As a result, black people are incarcerated at a

disproportionate rate, and, due to the barriers of reentry to society for convicts—barred from state

benefits, less voting rights, difficult to find jobs or housing, etc.—this creates a new “caste” system

with whites on top and black convicts at the bottom. The New Jim Crow reflects a wider implication

that while our laws may be “race-neutral” as of today, they can and still do promote structures

of racism, which is evident through the disproportionate mass incarceration of black people in

America.

Willie Horton Ad

• Story: HW Bush aired Willie Horton Ad during 1988 campaign, claiming that Bush supported DP for first-degree murderers while Dukakis gave out “weekend passes,” one of which resulted in another killing and rape of a couple by Willie Horton

  • Racialized context: Horton not even man in photo used, and ad leveraged his status as Black man killing a white couple to sensationalize the event

  • Sensationalized: Horton did not actually rape or kill the female victim, though he maintained some involvement

• Impact (short term): Dukakis up double digits in polls by Labor Day, only to lose to Bush by 8% in November

• Impact (long term): both parties shift to a heavier enforcement ideology, making bipartisan front for “tough on crime” and penalization

• Takeaway: Polit campaigns leverage racial stereotypes and bias to tout “tough on crime” stances and tap into white fear — ultimately claiming votes without addressing root issues

Adversarial Model

• Characteristics: legal model of US, in which prosecutor and defense attorney are “fighting” and trying to “win” cases through convictions and higher sentences for prosecutors and acquittals and lower sentences for defense attorneys. 

• Actors of Adversarial model: Judge = neutral arbiter, prosecution vs defense, jury of peers to decide

  • Major challenges: 90% of judges former prosecutors; defense lawyers inundated with work, underfunded, many times don’t even go to crime scene to investigate — how “adversarial” is it really?

• Critique: In his book, Unusually Cruel, Marc Howard explains how the adversarial model corrupts the American system by incentivizing attorneys to prioritize winning before justice or the truth, and tdefendant’s success heavily relies on the quality of its defense which is usually dependant on how much a defendant can pay.

• Howard compares the adversarial model to the inquisitorial model used by other western democracies and finds that the adversarial model makes the American system exceptionally punitive, leading to greater sentences and higher rates of incarceration.

Plea Bargaining

Plea bargaining is a practice in which a prosecutor and a defendant, usually through

their defense attorney, come to a deal of a specific charge or sentence in exchange for a guilty plea or information. There are three types of plea deals: charge bargaining, where the defendant agrees to plead guilty to a lower charge; sentence bargaining, where the defendant agrees to plead guilty for a lesser sentence; or information bargaining, where a defendant provides information to a prosecutor

in exchange for a lower charge or sentence. In America, plea bargaining was created to handle the

increase in arrests that occurred due to “tough on crime” policies, and 95% of cases in the U.S. end

in a plea agreement. While plea bargaining, in theory, is supposed to help the defendant by offering

them the opportunity to bargain down their punishment, in practice it is a tool for prosecutors to

force convictions by threatening higher sentences so that defendants plead guilty to the charges and

the prosecutor does not have to go through trial. It has also become a tool for defense attorneys and

judges to expedite the process, considering that the system cannot handle the influx of cases.

Prosecutorial Discretion

Prosecutorial discretion refers to the decisions prosecutors unilaterally

make in a case in the criminal justice system, and it includes whether to charge a case, what to

charge, which penalties to pursue, whether and what to offer in a plea deal, etc. In her book, Ordinary

Injustice, Amy Bach discusses the importance of prosecutorial discretion, especially in relation to

pursuing a case. Bach cites an example of Mellen, a prosecutor in Mississippi who would let cases die

before even going to a grand jury if he could not win them, either due to unreliable witnesses,

difficult to prove crimes, or unfavorable circumstances. Prosecutorial discretion also plays a large

role in plea agreements, as the prosecutor dictates what the defendant will get for pleading guilty and

seeks the highest penalty possible. Prosecutorial discretion is one avenue in which the adversarial

model promotes winning over all, as prosecutors choose cases, charge, plea bargain, and proceed in a

case depending on if they can “win” it or not, leading to a highly punitive outcome.

Ethical Duty of Prosecutors

1) pursue justice, not convictions

• Often don’t abide — pursue winning above truth and justice

2) refrain from extrajudicial comments

• Can and do get away with making comments, be it directly (to news media) or through influence (socials, push narratives)

3) hand over exculpatory evidence to the defense.

• Established by Brady v Maryland — not abiding = Brady violationl, yet often siginif leeway/immunity for those who risk violation in order to win cases against “enemy” defense

Ethical duty of defense attorneys

1) keep client confidentiality

• Defense attorneys tend to follow

• CAN share info w/ colleagues in office, however

• Can be violated if defendant admits they WILL commit a future crime/act of harm

2) avoid conflicts of interest,

• Resulting from multiple clients w/ competing int or personal connection to those involved

• Difficult, b/c no exact method of enforcement until discovered — if they appear not to have COI, then sometimes overlooked

3) zealously advocate for their client. As for the

• Implies system should be filled with def. counsel prepping tirelessly and with full intent of best outcome

• Rare, however, b/c of underpay, overwork, and difficulty to enforce (Strickland vs Washington)

Ethical duty of judges

1) remain impartial

• Appearance often maintained, but sometimes judges are not or CANNOT BE impartial (90% former prosecutors, many in kahoots to get cases thru)

2) remain fair and above the political fray

• Very difficult — many judges elected or selected by legislature/exec, who will pursue those fulfilling agenda (tough on crime, efficient system, etc)

3) avoid conflicts of interest.

• Similarly, many appear so, but even less ability to enforce than w/ defense

• Additionally, sometimes recusal “reflects poorly” in legal circles — isn’t the POINT to be a neutral arbiter?

Ethical duty of jurors

1) decide only on the facts of the case

2) remain impartial and fair 

3) be uninfluenced by other opinions

4) keep confidentiality. While

these are the duties of jurors, Scott Sundby’s book A Life and Death Decision shows a very different

reality: jurors often bring external knowledge and experiences into deliberation and peer pressure in

the jury room often influences a juror’s opinion. Impartiality and fairness enter a gray area when life

experiences guide jurors’ decisions, and the book is proof of at least a somewhat breach inconfidentiality. Sundby’s piece goes to show that while the American public views the jury as an

ethical system that seeks unaltered truth, the reality is much different.

Batson Challenge

Established in Batson v. Kentucky (1986), a Batson challenge is when an attorney

strikes/removes a juror and must list a race-neutral reason for it. The Batson challenge, in theory, holds

attorneys accountable by not allowing them to discriminate against jurors of a certain race. However,

in practice, many attorneys can circumvent this standard by listing arbitrary reasons for striking

jurors when, in reality, they struck them for their race. Without explicit proof that a juror was struck

solely based on their race, an attorneys’ striking of a witness is permissible. Thus, while the Batson

challenge attempts to ensure that juries are chosen on race-neutral grounds, attorneys can often use

other reasons to get around this in order to form a racially biased jury.

Death Qualification

The death qualification is a determination that jurors can be struck if they are

opposed to the death penalty. Attorneys question witnesses in voir dire using Witherspoon questions

to determine whether or not a juror is anti-death penalty. As long as a juror is not completely

opposed to the death penalty, even if they are opposed except in specific circumstances, they meet

the death qualification.

Alford Plea

This is a type of plea deal whereby a defendant maintains their innocence but accedes

to formally/legally being considered guilty for the sake of receiving the benefits of a plea bargain

while agreeing to accept the ramifications of a guilty verdict. This prevents the innocent person from

having to lie; however, when done for the sake of expediency or to prevent a larger sentence at trial,

it also prevents them from being able to tell their side of the story. Came from Alford v. North

Carolina (1970).

Ruffin v Commonwealth (1871)

1871 Supreme Court Trial that permitted slavery for those who had committed a crime

Strickland v Washington (1984)

Question: “What is the standard for ineffective assistance of defense counsel?”

Answer: To overturn on ineffective counsel, defendant must both
1) prove counsel’s deficiency in performance

• Lawyers avoid culpability by claiming their actions represented a strategic choice

(2) prove this deficiency resulted in errors so serious that they “[deprived] the defendant of a fair trial”

• Lawyers avoid culpability by claiming the actions only amounted to a “harmless error”; courts avoid speculating on errors to avoid overturning

Key: Case provides pathway for defendant justice, but provisions easily sidestepped to avoid delivering

Gideon v Wainwright (1963)

Extended right to counsel to state level for defendants charged with “serious offenses” (felonies) who could not afford lawyers themselves

• Case Facts: Clarence Earl Gideon was charged with burglary in Florida but denied a court-appointed lawyer because state law only provided counsel in capital cases. Gideon, like all those detained and forced to represent themselves, couldn’t investigate for his defense while in custody (typically, a lawyer takes on this duty for their detained client). When he lost his case, Gideon submitted a handwritten petition to the Supreme Court, arguing the gap in investigation violated his Sixth Amendment right to counsel. The Court unanimously agreed, overturning Betts v. Brady and ruling that the right to an attorney is fundamental and applies to the states through the Fourteenth Amendment. Eventually, a reputable DC firm (Porter?) aided his retrial defense and quickly found evidence to acquit Gideon, The jury deliberated for only one hour at the retrial.

• Logic: Supreme Court held it was consistent w/ Constitution to require state courts to appoint attorneys for defendants who could not afford to retain counsel; Sixth Amendment’s guarantee fundamental and consistent, Fourteenth Amendment to apply to states

Argersinger v Hamlin (1972)

Extends Gideon provision, holding that defense lawyers must be provided for ALL cases where the defendant might face jail time

• Case Facts: on Argersinger was an indigent charged with carrying a concealed weapon, a misdemeanor in the State of Florida. The charge carried with it a maximum penalty of six months in jail and a $1,000 fine. During the bench trial in which he was convicted and sentenced to serve ninety days in jail, Argersinger was not represented by an attorney.

• Logic: Sixth and Fourteenth Amendments again

Johnson v Zerbst (1938)

Establishes right of counsel for all federal criminal cases

Griffin & Crenshaw v Illinois (1956)

Indigent defendants can receive free trial transcripts for their appeals

• Case Facts: Judson Griffin and James Crenshaw were indicted for armed robbery in Cook County, Illinois. Following their conviction, in preparation for filling for an appeal, Griffin and Crenshaw requested a transcript of their trial proceedings without cost, on the basis that they could not afford the standard fee for the transcript. The lower court dismissed the petition without hearing evidence. Supreme Court split 5-4 in favor of G & C, 

• Logic: There is “no meaningful distinction” between denying indigent defendants the right to appeal and denying them a trial; by extension, no transcript meant no possibility to appeal, a violation of due process (Fifth Amendment & Fourteenth Amendment)

Betts v Brady (1942)

Indigent defendants only needed to be provided with counsel under special cricumstances: if (1) penalty was severe (2) issues of case “difficult” (3) defendant was “inexperienced”

• Case Facts: Betts was indicted for robbery in Maryland. He was unable to afford counsel and requested one be appointed for him. The judge in the case denied the request, and Betts subsequently pled not guilty. He was convicted of robbery, which he eventually appealed to the Supreme Court. He argued he was wrongfully denied his right to counsel.
  

• With such vague description, even this limited provision was regularly passed over

Bordenkircher v Hayes (1978)

Held that prosecutor’s conduct (ie threatening to overcharge or oversentence for non-compliance in plea deal) is acceptable

• Case Facts: Paul Lewis Hayes was charged with forgery, an offense which carried a two-to-ten-year prison sentence. During plea negotiations, the prosecutor offered to pursue a five year sentence if Hayes would plead guilty. However, the prosecutor also stated that he would seek an indictment under the Kentucky Habitual Crime Act if the defendant did not register this plea. (Hayes had two prior felony convictions on his record.) If found guilty under this law, Hayes would be imprisoned for life. Hayes did not plead guilty and the prosecutor followed through on his promise. The Supreme Court held that due process was not violated, and in fact relevant in this plea deal (seen as essential since Santobello in 1971). Implies that the prosecutor has a legitimate interest in persuading a defendant to relinquish his or her right to plead not guilty.

• Vigorous dissenting opinion called out the vindictiveness it might encourage in prosecution

However, US Attorney’s Manual holds that attorney’s CANNOT threaten death penalty as plea bargain leverage (no binding authority)

NC v Alford (1970)

Established an “Alford Plea,” which maintains the innocence of the defendant while they acknowledge the presence of evidence that might lead a party to conclude their guilt. The plea results in conviction (guilt) remaining on one’s record

• Case Facts: North Carolina charged Henry Alford with first-degree murder. That charge carried a possible sentence of life imprisonment or the death penalty. Alford agreed to plead guilty in exchange for a second-degree murder conviction. When Alford took the stand, he testified that he was innocent and pled guilty to avoid the death penalty. The judge ensured that Alford made his decision freely after consulting counsel. Alford maintained his guilty plea, and after receiving evidence of Alford’s extensive criminal history, the judge sentenced Alford to the maximum 30-year sentence.

  After unsuccessfully attempting to obtain post-conviction relief, Alford petitioned for a writ of habeas corpus. The U.S. District Court for the Middle District of North Carolina denied relief on the grounds that Alford’s guilty plea was entirely voluntary. The U.S. Court of Appeals for the Fourth Circuit reversed, holding that the plea was involuntary because its primary motivation was the fear of death

• Supreme Court essentially said that

Santobello v NY (1971)

Enshrines plea bargaining as “an essential component of the administration of justice…when properly administered,” even encouraging use of the practice

• Case Facts: In 1969, Rudolph Santobello was indicted on two felony counts in New York. He accepted a plea deal to plead guilty to a lesser offense in exchange for the prosecutor’s promise not to recommend a sentence. Months later, with a new prosecutor unaware of the agreement, the state recommended the maximum one-year sentence, which the judge imposed despite Santobello’s objections. Santobello appealed, but the appellate court upheld his conviction.

Brady v Maryland (1963)

Set precedent that prosecution must share all (exculpatory) evidence with defense/all evidence that could assist defense. This includes alabis, witness statements, or even testimonies confirming presence of other parties or DOUBT of which party acted as key perpetrator

• Case Facts: A Maryland jury found John Brady and Charles Boblit guilty of first-degree murder. Brady maintained that he participated in the preceding robbery, but not the killing. At sentencing, both men received the death penalty. After the trial, brady leartned that Boblit previously confessed to the murder solely, but the prosecution suppressed this confession at trial

• Logic: Suppression of evidence violates Due Process Clause of Fourteenth Amendment (maybe Fifth?)

Boykin v Alabama (1969)

Established voluntariness standard for plea deals — unfortunately, most people coerced in reality (think: judge' asking if “voluntary” safeguards any petition against)

• Case Facts: In 1966, Edward Boykin Jr. was arrested in Mobile, Alabama, on five counts of armed robbery after a series of incidents in which one person was injured. With court-appointed counsel, he pled guilty to all charges, but the judge failed to confirm that his plea was made knowingly and voluntarily or that he understood his trial rights. A jury then sentenced him to death despite no evidence of prior offenses. The Alabama Supreme Court upheld the sentence, though three justices dissented, citing the unclear voluntariness of his plea.

• Logic: A defendant’s silence is insufficient to show that he understood these rights and chose to waive them.

McCleskey v Kemp (1987)

Holds that statistical discrimination/demographic dispairites cannot be used as justification for defense unless one can prove explicit discrimination in circumstance of given arrest

• Outcome in effect: No overturning unless arresting officer strictly proven to have arrested on racial lines prior — a near impossibility

Powell v Alabama

Establishes the right to an attorney in capital cases, but not yet in others

• Case Facts: Nine black youths -- described as, "young, ignorant, and illiterate" -- were accused of raping two white women. Alabama officials sprinted through the legal proceedings: a total of three trials took one day and all nine were sentenced to death. Alabama law required the appointment of counsel in capital cases, but the attorneys did not consult with their clients and had done little more than appear to represent them at the trial. This case was decided together with Patterson v. Alabama and Weems v. Alabama. Supreme Court ruled this a violation of Fourteenth Amendment due process

Batson v Kentucky (1986)

Must be able to show race-neutral reason for removing a juror

Ordinary Injustice Chapter 1: What’s a Defense

Key Point: Public Defender Surrency abused plea-bargaining, pursuing efficiency rather than justice for clients. Due to sheer number of cases inundating Surrency, system provided minimal alternative for a method like this. Additionally, even somewhat righteous prosecutors like Mitcham, who focus more on holistic justice, accomplices or enablers to this system — the pair meet in a huddle in the courtroom to discuss how a case should proceed, neither clarifying case details thoroughly or checking w/ defendant as to their preference. Judge in the chapter additionally shuts down any criticism, arguing that this was commonplace to deal with overwhelm in Greene County, GA.

• Ex (if needed): Surrency’s fill-in, Weaver, fails to check with defendant Terrical Porter on her preference in negotiated plea (outright probation vs conditional discharge), leading to her almost taking the wrong plea on terms that a judge might see as voluntary. Inadequate attention → inadequate defense counsel

Ordinary Injustice Chapter 2: A Troy Champion

Key Point: Judge Bauer of Troy, NY took a “tough on crime” attitude as a judge, and received respect in the local community (“A Troy Champion”). Ironically, Bauer’s tactics of enforcement were themselves criminal: from pleading defendants guilty without their approval/knowledge, to imposing sentences without the defendant present, to failing to inform defendants of their right to a lawyer, to setting excessive bail for minor infractions, to coercing defendants into their guilty pleas, Bauer abused discretion beyond its bounds. The local community supported him — to those on the outside, with no means to track Bauer’s behavior (?), the judge only helped keep streets safe and system moving. Bauer even overcame Judicial Conduct charges by justifying his actions with the efficiency they clearly resulted in.

• Ex (if needed): Eric Frazier caught for petty theft (Playstation game, lip balm, and gum) had bail set at $50,000. Upon meeting inmates, Frazier heard of ten more instances of excessive bail. Citing the Eighth Amendment, Frazer petitioned the New York State Commission on Judicial conduct

Ordinary Injustice Chapter 3: Miss Wigg’s List

Key Point: Abundant prosecutorial discretion contributes to justice enacted selectively and inadequately, aided and abetted by the buck passing of enforcement affiliates (ie investigators, police, etc). In Quitman County, MI, local clerk Miss Wigg kept a running list of the cases she knew went uninvestigated or unprosecuted, often winding up as “nonprosecuted” in the end. In part, this resulted from a local prosecutor, Laurence Mellen, prioritizing only big cases for trial and relegating the rest to pleas or indefinite delays. On the other hand, miscommunication and competing priorities between investigators and prosecutors resulted in some cases stopping before they even reached Mellen’s desk; those that did sometimes had improper reports or evidence, useless at trial, which effectively halted cases. Be it underfunding, selfish personalities, or lack of checks from the public (no metric for nonprosecution), justice in Quitman often left to expire.

• Ex: Jody Clifton was beaten by boyfriend BLANK Washington with a tire iron in front of her toddler daughter and niece. Washington was in jail for a time after, but NOT for the assault — Clifton didnt even know her trial wasn’t carried through. After being bound over by Judge Brown, investigators collected shoddy information, which led Mellen to deprioritize the case. Yet, Mellen’s own preferences influenced as well: he hadn’t prosecuted a DV case in 21 years, avoiding things he found difficult to win (ie child abuse, DV, things where victim refuses participation)

New Jim Crow - Introduction

Michelle Alexander’s work, released in 2013, argues that the criminal justice system remains not just linked to racial injustice, but an active force in perpetuating it. 

• Intro argues that racial injustice is NOT in the past, it’s an institutional present that has progressed from slavery to convict leasing to Jim Crow to the “New Jim Crow” of mass incarceration. Alexander bases her argument on the common consequences of each system: preventing victims from voting, participating in juries, attaining paying jobs of their own accord, and engaging in other civil responsibilities.

• Alexander begins with an example of Jarvious Cotton, framing his story through each member of his family who has passed through a previous iteration of racial injustice institutions. However, critics note that Alexander overlooks Cotton’s voluntary manslaughter charge and creates a false equivalence with his ancestors, who were subjected to circumstances they had seemingly no agency over. People split on whether the decision is conveniently selective, progressively humanizing, or necessarily tactile

New Jim Crow - Chapter 2 (War on Drugs)

Michelle Alexander’s work, released in 2013, argues that the criminal justice system remains not just linked to racial injustice, but an active force in perpetuating it.

• In Chapter 2, Alexander works to dispel various myths regarding criminal justice and mass incarceration during War on Crime/Drugs

  • Myth #1: The War on Drugs targeted drug lords and Kingpins

    • Reality: Enforcement agents targeted and arrested anyone they could, w/ multitudes of low-level dealers jailed

  • Myth #2: The War on Drugs only targeted hard drugs — narcotics like PCP, crack, etc

    • Reality: 80% of arrests focused on weed; while those later incarcerated primarily for violent crimes, not a “joint or two,” targeting itself misunderstood

• Alexander also lays out progress from Nixon’s War on Crime to Reagan’s War on Drugs

  • In essence, policies stood to discourage production, distribution, and consumption of drugs. In practice, policies gave police authority to do anything and justify with drug enforcement

  • Drugs sensationalized during period to point they were treated worse than violent crimes — higher sentences and some invalidated from public housing allowance

• Finally, “drug courier profiles” of DEA utilized to provide “non-race” reasons for DEA to justify drug sweeps — these reasons bogus, and easy way for cops to get around probable cause

  • Ex: Traveling with luggage, traveling without luggage, driving expensive car, “mismatched occupants,” driving too calmly, first last OR middle to deplane

• Drug use at similar rates, but 75% of drug convictions are black or latino

Civil Asset Forfeiture

Action by police of putting an OBJECT seized “on trial” — sinc it has no rights, police claim it; practice provides monetary incentivization for police to enforce and seize property

Drug courier profiles

“non-race” reasons DEA utilized to justify drug sweeps — these reasons bogus, and easy way for cops to get around probable cause and, in effect, police on racial lines

• Ex: Traveling with luggage, traveling without luggage, driving expensive car, “mismatched occupants,” driving too calmly, first last OR middle to deplane

New Jim Crow - Chapter 3 (Color of Justice)

Racism and implicit bias creep into policing due to tremendous discretion afforded to officers

• Stop & Frisk: 95% of those stopped were African American

• Majority of illegal drug users are white, but 75% of those incarcerated for drug crimes are black & latino (seems like a misleading stat tho? what abt possession/sale/trafficiking, not just use?)

  • Targeted sentencing: Crack sentencing used to be equal to that of coke for 1/100th of the mass (ex: 10g crack = same sentence as 1 Kilo/brick of coke)

  • Fair Sentencing Act: Addressed disparities, bringing down ratio… to 1:18 crack:coke (“fair” still 20x the weight)

• McClesky vs Kent: established that statistical disparities in policing, arrest, conviction based on demog cannot assist defense — must prove presence of discrim. in instance being discussed

New Jim Crow - Chapter 4 (The Cruel Hand)

Focuses on the rights and privileges that formerly incarcerated individuals lose upon their release

• Housing — loss of public housing provisions

• Employment — improving, but still difficult to obtain positions

• Voting — can lose vote for life or certain # of years depending on offense

• General shame and stigma

Additional pt: 95% of people return to society — what are we setting them up for if not permanent punishment

New Jim Crow - Chapter 5 (The Fire this Time)

Focuses on potential reforms to the system based on critiques made in book

• Funding for public defenders

• Legalization of marijuana

• Meaningful reentry programs

• Opting for drug treatments/rehab instead of incarceration

Blind Spot: Hidden Biases of Good People (2013)

Banaji & Greenwald cover the shift from overt racism in US to implicit racial discrimination and bias

• Overt racism: openly expressing the racist sentiments one holds

  • Declined since 1950 — Civil Rights Act, other race neutral institutions and laws

• Implicit racial discrim: subconscious feelings, attitudes, prejudices, and stereotypes against a specific race that an individual has developed

  • Unobtrusive research methods to ensure subjects observed WITHOUT their knowledge — results unaffected by perception

    • Social desirability bias prevents ppl from saying their true perceptions

• Essential point: minor acts of discrimination often result from unknowing associations, but produce tangible ripple effects for communities being profiled

  • Black ppl more likely to be ticketed or searched after a stop

Implicit Association Test

Motivation: Surveys on racism are typically null, b/c (1) ppl know racism “not socially acceptable” and mask responses accordingly and (2) most not explicitly racist anymore (lmao maybe ten years ago)

Solution: A study that test ASSOCIATIONS through quick prompting of respondents, uncovering the unconscious attitudes of ppl before their conscious can override

• Results, then, not even a measure of how associations arise in your life — if anything, smo not racist with high association in this test might be MORE actively curbing racist ideas that arise (not prejudice, but preference)

Findings: 75% of whites had degree of preference for whites

Worse Than Slavery

David Oshinsky writes about convict leasing, making assertion that the realities it posed for those subject to system were in effect worse than slavery

• Following 1865 emancipation, Missouri (and some other states) had a Black majority.

• White landowners, who still controlled agricultural structures in US, wanted cheap labor to supplant for former slaves

• Based on Ruffin v Commonwealth, they established a system that essentially “permitted slavey by another name” — as those convicted of a crime allowed to be used for forced labor

• System:

  • Wardens needed laborers —> call sheriff to arrest more —> sheriffs arrested on “crimes” former slaves couldn’t possibly avoid —> arresstees were leased out or sent to Parchman Farm, a former plantation (where some of these individuals WERE previously enslaved)

Logic of argument: Since these individuals were “convicted” and worked with no pay, wardens could essentially tell them to do ANYTHING. No investment needed to “purchase” individuals and unchecked supply via arrests meant they were treated as even more disposable than slaves. Individuals were worked to death — a fate even slaves could sometimes avoid

Final point: This had econ interest, but was part of organized effort to perpetuate racial dynamics, enforce separation and domination

James Vardemin

“The White Chief,” addressed in Worse than Slavery, who wanted to protect white people from “black barbarians”

•  a chief architect of Parchman Farms convict leasing system

• Even after system ends, he established a work plan for prisons to model this level of exploitation and cement as economic motor for states

  • Convict leasing didnt disappear, it became obscured foundation

Convict leasing

Arresting of Black people at high rates for crimes of existence in post-war South (loitering, petty theft), convicting them to justify forced work, and leasing out to landowners who would essentially work individuals to death or with minimal care for outcome (as they had no financial incentive)

• 50% death rate for those in system

• Abolished in 1890s before Vardemin helped morph into state operation for prison labor, an economic motor til today

peremptory challenge

the right for attorneys to reject a certain number of potential jurors WITHOUT stating a reason

voir dire

the process by which attorneys select or reject certain jurors

venire

the entire pool from which a jury is drawn

Jury (what it is, what is does)

• 12 members of public set to try a case neutrally, unprejudiced, and ignorant of case’s facts

• Determine if defendants are guilty or not based on facts and facts alone

  • Only evidence introduced in court & permitted by judges to be considered

• Answer for law, do not interpret

Judge selection process by state

1. Appointment: 4-5 states

2. Partisan elections: 10-14 states

3. Nonpartisan elections: 13-16 states

4. Merit election: 19-26 states

Significance of US Judge Selection (& diff from other places)

1. NO other countries have elections for justices

   1. Ironic = low turnout and contradicts impartiality

2. Justices SENTENCE HIGHER during election years

   1. Longer sentences near reelection — 2700 years of addtl prison time

3. Judges overturn jury sentence of life in favor of DP, but not often other way around

French System vs US system for justices

French:

• 4 day written exam

• 27 month training program to follow at elite Bordeaux academy

  • Only 5% of apps to academy make it thru

US: Appointment, Partisan election, nonpartisan election, or merit; technically don’t need to be lawyer

Justice Tom Parker (Alabama)

• Alabama Supreme Court Chief Justice as of now

  • Passed out Confederate flags at a funeral

  • Speaks at birthday for KKK founder

  • Poses in photo w/ board of secessionist white supremacist org

• Election history, despite these associations:

  • 2004: 55.8%

  • 2010: 59%

  • 2018: 57.4% for chief justice

Judge’s Roles & responsibilities

1. Interpret Laws

2. Establish rules for trial

3. Determine trial outcomes (sometimes) and sentences (often)

   1. Mandatory minimums limit agency even in the second case

4. Symbolize & embody justice

Average time spent on case by city

NO - 7 Min per trial

DET - 32 min

ATL - 59 min

What ways can defense attorneys be assigned? How is pay allocated?

1. Public Defenders: full-time professionals entirely dedicated to defending criminal defendants

   • Centrally funded w/ highest standard of output — leads to underfunding and overwork, limits zealous defense

2. Assigned Counsel Programs: Private practice lawyers for crim defense enter roster of ppl to be assigned and paid per case (think - Better Call Saul S1)

3. Contract System: Set amount of cases assigned to defense attorney, who is then paid fixed annual amount

   • Same amount paid regardless of case # — little incentive to work high case loads

Gideon’s broken promise

Lack of adquate funding for indigent defense counsel —> not enough incentive to attract top talent, too little time for cases leads to burnout —> pitfall of “zealous” ethical duty

Cesare Beccaria

• Who: Italian Enlightenment phil.

• Relevant Work: On Crimes & Punishments

• Thoughts: 

  • Condemned torture & DP

  • Desired criminal justice reform based on rational principles of law (not religious)

    • Punishment proportional to severity of crime (ie no DP for bread swiping)

  • Outrage at injustice & unnecessary human suffering

Foucault’s Thoughts on Panopticon

• Core Principle: States want to CONTROL ppl, be this in school or w/ military force

• Extension: Prison is a means of CONTROL, not reform; envisioned as panopticon (especially w/ modern tech advance, though Foucault himself doesn’t mention)

Modern Prison Design (extension from Foucault)

• Designed in shape of X, with cameras and surveillance tools to assist tracking of prisoners

• In effect: a modern panopticon, aided by surveillance tech, to compel obedience w/ constant threat of being watched

  • Ex: “Did you wipe” during prisoner’s bathroom use

San Quentin Rehab Center

• Prison in CA, w/ one of most rehabilitative MOs out there, mostly due to extensive programming

  • Prison conditions themselves abominable - 4 ft cells

• Includes junior college courses, marathon team, Shakespeare, Opera, Tennis

Preliminary hearing

Stage when evidence is presented for judge to determine if there is probable cause that defendant committed a crime

Stages of criminal Justice

• Crime occurs

• State pursues case against D

  • Arrest

  • Charges filed

  • Arraignment

    • D pleads, court can authorize release pre-trial or require bail

  • Prelim hearing

  • Grand jury

  • Trial

  • Sentencing

  • Appel

  • Jail (<1 yr sentences) or Prison (>1 yr sentences)

Arraignment

initial appearace before judge (w/ defense, if needed) to enter plea in relevant case

• If held on bail, essentially criminalized for poverty

Grand jury

peers determine if sufficient evidence exists to go to trial; results in indictment if so

• Could indict a “ham sandwich”

• Intended to prevent false proceedings from reaching trial (protect defendants), now almost used as early guilty

Proceedings meant to be secret

Trial

Meant to establish guilt beyond reasonable doubt that defendant committed crime (if not, acquitted)

Sentencing

Convicted defendant handed down state’s response for crime: DP, prison, probation, fine, restrictions, or alternative

Federal vs State Courts

Federal Courts:

• established by Constitution

• Only applies if case involved FED CRIME, like: hijacking, kidnapping, bank robbery, child porn, tax evasion, counterfeit, drug crimes

State Courts:

• Established by STATE constitutions

• Most criminal cases fall under state jurisdiction

Appeal

various state and federal avenues to have case reviewed on procedural grounds (not factural)

Plea Bargaining in theory vs in actuality

An efficient form of compromise between prosecution and defense with approval from the judge

• Prosecutors offer lower charges/sentence in exchange for cooperation OR threatens higher charge if defendant insists on trial

  • Bargain avg sentence = 5 yrs

  • Trial avg sentence = 16 yrs

Yet, many see as false compromise, since prosecutors hold all the cards. Prosecutors can:

• set the bargain

• threaten with overcharge

• bluff in negotiation (knowing what they lack, when inadequate rep for defendant negates them finding out)

• intimidate (directly, via family, via influence on counsel, etc)

Plea bargain

A negotiation between prosecution and defense for reduced sentencing if defendant pleads in favor of prosecution’s argument and prevents trial from occurring

• Seen as helpful tool to mitigate the skyrocketing # of criminal cases in US

• Constitutes the end stage for 97-99% of criminal trials

US Attorney manual says NO threatening w/ Death penalty, but it happens anyway

felony murder

If you commit a crime/action that results in a murder/relates you to a murder, you can receive charges as if you yourself committed the murder

• Pros. claims that trying everyone makes case easier to close — otherwise, some woudln’t talk or some codefendants would argue on facts

Prosecutors get to decide…

• What types of crimes to pursue

  • Many decide based on what protects their record/reelection chances

• Where to allocate resources across areas (of crime, of crim justice practices, etc)

  • Again, political motiv. to satisfy politicians who support

• Whether or not to bring charges in each case

• Whether to charge smo as adult or juvenile

• Whether to seek enhanced charges (stacking penalties, higher than mandatory minimum, etc)

• Whether to seek DP or LWOP

• Whether to grant immunity or leniency for testimony

• Plea bargain details

Key: Pros. enjoy abundant discretion & immunity to protect when discretion is misused (CANNOT be sued criminally or civilly)

How are prosecutors selected?

• Appointment - 3 states (AL, CT, NJ) + DC

• Election - 47 states

  • Elections subject to LCD of politics — “tough on crime",” fear a simple message to win on

Richard Posner’s opinion on defense counsel

“Criminal defendants are generally poorly represented…we must recognize that this might not be an entirely bad thing…”

• So long as defense is “good enough” to reduce likelihood of wrongful convictions, it’s doing enough

• Otherwise, more ppl would be acquited, and “society [would need to] devote much greater resources to prosecutions”

Key: Awareness & approval in CJ system for inherently subpar & unequal system; oversimplifies symptoms of overpolicing, w/o looking at root causes

Defense counsel burnout

• Burnout + combined w/ guilt of not doing enough —> even more exhaustion

• Defense constantly loses against prosecution b/c of resources and stacked odds, only deepening dejection & ingraining the stress and self-criticism that makes situation worse

Prosecutor Organization, role, office (the Prosecutor reading)

Office & selection

• Almost all states hold elections for prosecutors by county, who may hire staff and perform work of offices

• 25k prosectuors in US

Roles

• Investigate crime scene alone or w/ police

  • May employ investigators to assist

  • Write search warrants and arrest warrants

  • Interview victims

  • Decide charges & plea deals

Social Context of prosecutor (The Prosecutor reading)

Prosecutors, over time, begin to “understand” the “typical crimes and criminals” — they form associations and expectations, informing how they carry out their duties

• going rate: worth/price tag of a crime (dictates aggression of prosecution)

Prosecutors also then craft system as meets their needs & desires

• Maintain careful relationships w/ members of police, judge boards, etc, to collectively overpower defense

Controls on Prosecutors & Limits to Discretion (The Prosecutor reading)

Effective controls:

• Well-funded defense counsel

• Vigorous oversight by judge on plea bargaining system

Limiting Discretion:

• Clarifying ethical guidelines on prosecutor accountability

• Create some sort of watchdog — prosecutor currently their own auditor

Burdens of proof by incident

• Police stop = reasonable suspicion

• Police arrest & grand jury indictment = probable cause

• Civil cases = preponderance of the evidence (51%)

• Civil cases w/ high stakes/Criminal = clear and convincing

• Criminal cases = beyond a reasonable doubt

  • Supposed to be 100% certainty essentially

iniquisitorial model

• Prioritizes truth seeking

• Prosecution and defense work together to find truth

• Judge investigates facts of case

Millgram’s experiment

Pscyhological experiment which tested people’s willingness to inflict harm on others if permitted/compelled to do so in position of authority

• Experiment: Participants would shock their peer increasingly for non-cooperation when a research leader asked them to do so — both peer and research leader were actors in realit

• Result: 2/3 of people shocked peer to high end of scale — if real, could have killed them

  • Finding: People can and do abandon convictions when ordered to do so

“When Whites Just Don’t Get It” Article

Brendan’s take: Racial discrim. perhaps given less credit by majority b/c it manifests in individual experience, w/o one perpetrator per se (no one lynching, entire apparatuses perpetuate disadvantage)

Stats to be aware of:

• New worth: $6,314 per Black household vs $110,500 per white (diff nowadays, but gap abt 1:6 still)

• Income: B-W income gap 40% greater now than in 1967

• Life expectancy: Black life expectancy 5 yrs shorter

• Ed. attainment: Black students signif. less likely to attend advanced math & science courses, 3x as likely of suspension & expulsion

• Incarceration: Black Americans incarcerated at 5x the rate of Whites

Black codes

Specific laws targeting Black people in post-Emancipation to facilitate convict leasing programs and systems of domination & separation

• Ex: loitering, vagrancy, petty theft

Origins of convict leasing in Civil War

• Southern prisons destroyed during CW

• Blacks being targeted at higher rates for incarceration, per Black codes