Prisons and Punishments - Midterm

Bentham’s Panopticon

design created by Jeremy Bentham and written about by Micheal Foucault, specific layout of the prison in which guard tower is in the middle of circle with cells lining the circumference; creates illusion of always being watched and is form of mental control over incarcerated people who feel extremely vulnerable and like they have no privacy and little HOPE

Brady v. US

1970- A guilty plea is not unconstitutionally compelled when a defendant pleads guilty because they would prefer a certain or probable lesser penalty to the risk of a greater penalty.

Milgram Experiment

tested people’s obedience to authority- actors pretended to be in pain in electric chair and ⅔ of people went to full killing shock levels because authority told them to, despite obvious pain of actor; later inspiration for Stanford prison experiment

summary of Cesare Beccaria, On Crime and Punishments

Beccaria was opposed to torture and the death penalty because he thought it was too cruel which was unusual opinion for his time and lowkey ahead of our time too; he wanted reforms of criminal justice laws based on rational principles and laws

Ex. states competing to have the harshest mandatory minimum sentencing laws while judges have no power to stop it

Thought that the punishment of the crime should be proportional to the severity of the crime

Further outrage at the disproportionate punishment between areas and injustices or human suffering, had empathy and humanity for defendants

summary of Marc Howard, Unusually Cruel (Preface and Ch1) 

Takes a comparative approach at understanding “American exceptionalism” with how the US incarcerates the most people of its population and is extremely punitive; Roughly 500% increase in population of incarcerated people comparing 1980 to 2014; Countries with most similar criminal justice system - Georgia, Rwanda, and Russia CAME CLOSE; US incarcerates the most women, juveniles, and pre-trial detainees

summary of Marc Howard, San Quentin State Prison’s Tennis Team

Demonstrated how there were lots of outside programs like the nearby universities (Berkley, Stanford, run club, Ear Hustle), tennis program with incarcerated people because in urban, populated area (compared to lots of CA prisons in very rural areas further isolating incarcerated people)

Keeping connections with family members/loved ones is an important part of decreasing recidivism- this isolation hurts that greatly

Incarcerated men would try to get switched there despite the horrible, cramped, outdated, overcrowded living conditions because of the programs

summary of “Quiet Rage” Stanford Prison Experiment Documentary

Based on the Stanford prison experiment in which white, middle class young men were chosen to impersonate prisoners and prison guards to see how power dynamics of prison affected people

Experiment had to stop after days because the guards had become sadistic (power differences), the prisoners were going on hunger strikes, and it was becoming inhumane- leading psychologist, Philip Zimbardo, lost sight of the experiment, can no longer use people in experiments without their complete knowledge and consent; now seen in “prank” tv shows or videos

IAT Test on Race

survey research is limited value because people give socially acceptable answers - taps into unconscious attitudes by forcing respondents to choose images of Black or white people as fast as they can for word association, tested on various categories (gender, religion, etc.)

Banaji and Greenwald’s conclusions of IAT Test in Blind Spot

75% Americans have implicit preference for whites; authors argue that implicit preference doesn’t equate to prejudice because could be cultural (but this also plays a role in disadvantaged status of Black people in America as demonstrated by discrimination), Prof pushes back with how this prejudice plays out with deadly police violence having implicit bias against Black people (pulling trigger vs. hitting keyboard) 

Presence of implicit anti-Black preferences

Black-white income gap; life expectancy shorter for Black boys; Black students less likely to take advanced courses because of offerings and 3 times more likely to be suspended and expelled; mass incarceration, more likely for Black men without high school diplomas

Despite all this, study found that on average white people thought anti-white racism was a bigger problem than anti-Black racism

summary of Banaji and Greenwald, Blind Spot 

Demonstrate how it is no longer socially acceptable to be explicitly racist (support for segregation almost entirely disappeared but implicit attitudes are still prevalent → low support for giving government assistance to minorities + belief in “egalitarian” principles

Series of experiments to examine this → chinese couple booking hotel; Black children choosing white dolls over Black ones, random Black vs. White caller asking for assistance

Black people are still discriminated against in housing, hiring, healthcare, criminal legal system, automobile purchases, ticketed after traffic stop, getting tipped, compared to white counterparts; whites less likely to give assistance to Black people compared to other white people at random

Smaller effects of discrimination compound

convict leasing 

incarcerated Black men (who were incarcerated on minor, bogus charges in reconstruction South) were put to forced labor in extremely inhumane conditions that were torture, and basically death sentences because this filled the gap of the lack of enslaved labor without liability meaning it could be even more inhumane

Black Codes (limited rights — marriage, but prohibited voting, serving on juries, testifying against whites, and free movement), the Vagrancy Act (criminalized homelessness and unemployment), the Leasing Act (legitimized convict leasing where people sentenced to less than 10 years were leased out); Pig Act (5 year sentence for stealing animals more than $10) 

Parchman Farm

plantation turned prison in Mississippi where convict leasing was legalized until technically 1890 but still have incarcerated people working for extremely low wages, still a prison today

James Vardaman “White Chief” 

extremely racist Mississippi Governnor in 1904, supported lynching, wanted to create a plantation prison at Parchman Farm; had incarcerated people act as “trustees” to supervise other incarcerated people; economic motor for the state through prison

Angola

largest prison in the US, LA state penitentiary; host a “rodeo” every year for a month where people come in to participate in festival activities with incarcerated people which generates tons of revenue for the prison, extremley out of touch fucked up and dehumanizing

Edmund Richardson 

Businessman who, in 1868, struck a deal with federal authorities in Mississippi to allow him to work the convicts outside prison walls. He promised to feed them, clothe them, guard them, etc in return for $18,000 and labor. This began convict leasing in the state of Mississippi. In reality, the prisoners were treated horribly, especially Black prisoners (high rates of deaths), but no one truly cared because of the massive financial success he saw

Mississippi Plan

Launched in the fall of 1875, when after the Republican party left, local Democrats in Mississippi launched a campaign of violence and terror against Black people– especially elected ones. Hundreds of Black people were killed. Thus, on election day of that year, thousands of black voters stayed home, and fraud was rampant. This began the era of renewed Democrat and White domination in the South(the Mississippi version served as a blueprint for other states). In 1876 the new legislature began passing laws criminalizing minor things and paving the way for Jim Crow/Convict leasing

Summary of Oshinsky, Worse than Slavery (Ch1-4, 6, Epilogue) 

Post-emancipation, Black people were targeted by the law so that they could be incarcerated so southern whites could reinforce racialized control and domination (backlash to emancipation); to the point where if a manager needed more labor he called on sheriffs to make more arrests

The reason Oshinsky says this system is “worse than slavery” is because the managers had no need to value Black people’s lives since they could always just arrest more, whereas with slavery they were personal property and would be harder/more expensive to replace, so their health was a bit more important.

Bacon’s Rebellion 

poor white farmers and indentured servants rose up against the planter elite and joined forces with enslaved people, which threatened the white elite people in power so they had to racially subjugate the enslaved people from white indentured servants - led to huge increase of slavery with African labor

Willie Horton ad

Ad that the George HW Bush campaign put out against Dem Michael Dukais, for supporting a prisoner furlough program that allowed for weekend visit outside of the prison; Willi is a Black man incarcerated for murder and on his visit kidnapped a young couple, killed the boyfriend and raped the girlfriend, both of whom were white; super influential on presidential campaign and signaled to democrats that they had to be “tough on crime” like their conservative counterparts (i.e. Bill Clinton giving tons of funding to building new prisons, law enforcement, mandatory minimums and 3 strike laws in 1994 crime bill)

War on Drugs

Introduced by Nixon in 1970s but popularized by Reagan in the 1980s in which crack cocaine was racialized as Black problem and sentenced much harsher with lots more police targeting impoverished Black neighborhoods and incarcerated tons of Black men

McClesky v. Kemp

1987- Supreme Court ruling that in the case of a Black man being sentenced with the death penalty who pointed to a stat in his state that because he was Black he was more likely to be sentenced to a death penalty; SC said that statistical evidence of disparity wasn’t valid unless race played a factor in his individual case → basically that these disparities can’t be proven to demonstrate racial bias in sentencing even though that plays a huge role in it

Fair Sentencing Act

reduced sentencing disparity of crack cocaine vs. powder cocaine from from 100-to-1 to 18-1; still unequal because crack associated with Black communities which is so unfair

Summary of Alexander, The New Jim Crow (Ch1)

A new racial caste system through the criminal justice system that evolved from slavery (today); classifies POC, predominantly Black people, as “criminals” to incarcerate them and give them second class status and bar their access to public benefits, employment, education, etc.; War on Drugs media and policy large reason why incarceration rates of Black men rose exponentially

Ex. of Jarvis Cotton; generational trauma of his ancestors being denied the right to vote because of slavery and then racial discrimination and cycle continues with him because he is a felon and on parole

Most other countries still allow with people with felonies to vote, but only 3 states do in the US; hard to get political support to change this (because with other countries it was immediate, while US has gotten voter rights through piecemeal reform)

Timeline of arriving at the racial caste system of the “new jim crow” - chattel slavery → end of slavery and reconstruction era backlash with convict leasing → birth of jim crow which eventually died with death of jim crow (civil rights act of 1964) → birth of mass incarceration with war on drugs

Controversial challenge → does her argument take into the account that people are also choosing to commit crimes and isn’t pure external racism? But this also doesn’t take into account path dependency and generational trauma that can lead to these crimes being committed in the first place

Summary: how systems of slavery, convict leasing, and Jim crow in the south died but were then reborn because one system morphed into the next; lack of resistance across the political spectrum and lower class whites were vulnerable to racism to still feel above Black people despite being poor

summary of Alexander, The New Jim Crow (Ch2), The Lockdown  

Talks about the war on drugs and how this was supposed to be about busting kingpins but instead targeted lower-level dealers who were often young, poor, and vulnerable; often never got to the actual suppliers

Debunks how these drugs were super dangerous for society, she controversially argues that most people locked up were for dealing marijuana even though most people were in for violent crimes

Law enforcement could do pretty much whatever they wanted because the supreme court and politicians let them, drugs were considered worse than other crimes, police could stop people on suspicion of having drugs on them even if they didn’t have the constitutional right to, most didn’t have the privilege to say otherwise

Ex. law enforcement trying to site BS excuses of stopping someone without claiming it was their race

Skyrocketing incarceration rates; prosecution rates didn’t match crime rates because it’s policy based

summary of Alexander, The New Jim Crow (Ch3), The Color of Justice 

Official policies that are supposed to be “race neutral” actually involve lots of discretion in practice → policing, pleas, jurors, charges

Majority of illegal drug users are white but imprisonment rate is super disproportionate as 75% Black and Latino men are imprisoned

racial and legal disparity in sentencing between crack and powder cocaine

Crack vs. Powder Cocaine

The same drug but because crack found in more predominantly Black communities, punished 100 times the weight (before Fair Sentencing Act reduced it but didn’t make it equal)

Summary of Alexander, The New Jim Crow (Ch4), the cruel Hand 

Discrimination that happens post-prison for housing, employment, voting

Having a felony is like Scarlet letter because it follows you on every application

Summary of Alexander, The New Jim Crow (Ch5), the New Jim Crow 

Structural racism in which crime is associated with Black and Black men are criminalized, particularly inner-city ghettos having criminal connotations

Politicization of crime in 1988 election with Bush’s Willie Horton ad = democrats also becoming “tough on crime”

Summary of Oshinksky, Worse than Slavery (Ch6),

covers the systems in place at Parchman farms.

Camp was segregated by race and gender. The farm was a self-sufficient operation with a sawmill, slaughterhouse, vegetable canning plant, etc. It very much resembled an antebellum plantation. (Complete with the superintendent living in the main house with a wraparound porch).

Each camp had a sergeant (often a lifetime occupation passed down to son) who disciplined and managed daily business– they were usually poor white men.

They then selected trusty-shooters, or “trusties” from the general prisoner population. These men were given guns and special privileges and tasked with keeping other prisoners in line– severed social ties in return for benefits.

These shooters often escaped because of the same qualities they were chosen for (dangerous, quick-tempered, etc) as well as the freedoms they got

Black Annie- the whip, symbol of authority at Parchman (used after other forms of corporal punishment long abolished)

Conjugal visit: Parchman was the first American prison to allow this– began as an informal system, where women (wives or prostitutes) would visit the Black men

On top of improving work, they claimed this also reduced homosexual acts and sexual assault– but this probably isn’t true, seemed similar rates/problem

Brady v. Maryland

aka Brady law, requires prosecutors to disclose material, exculpatory information in the government's possession to the defense. However, prosecutors don’t always do this and aren’t held accountable to, pushing more power to prosecutors instead of balancing with defense

Adversarial System

used in common law countries, 2 sides (prosecutor and defense) who are trying to compete to make the stronger case to the arbiter (judge) who takes a passive role but decides the winner

Prosecutor has the first move and in going for the “win” seeks convictions with longest sentence possible, has tons of more power than defense since they have the power to charge, investigative powers and access to police reports, can make plea bargains without disclosing their evidence

Inquisitorial System 

used in civil law countries, the judge investigates the facts of a case while attorneys are more passive 

Levels of the legal burden of proof

reasonable suspicion (low burden, when police made a stop) → probable cause (police arrest or grand jury indictment) → preponderance of evidence (really in civil cases, tortes law, more likely than not) → clear and convincing evidence (sometimes in civil cases, evidence looks strong) → beyond reasonable doubt (most criminal cases, highest level of proof, no way that someone didn’t do this; but this term thrown around even when jurors and judges are uncertain)  

Main actors (4) of criminal legal system and their power dynamics

judge, juror, defense, prosecution

Prosecution given the most power for charging, defense have very little power because they are so underfunded and rarely have time or resources to go to crime scenes or know their defendants (mostly indigent defense), judges have power in what is allowed in court and some in sentencing

90% of judges are…

former prosecutors

stages of criminal justice

crime occurs → state purses case against defendant (arrest, charged or accused and released) → arraignment → preliminary hearing → grand jury → trial → sentenced → can appeal

Arraignment

defendant initial appearance before a judge and are provided with defense counsel if they need, defendant can plead to the charges in a plea and are released with pre-trial or bail arrangements

preliminary hearing

evidence is presented for the judge to determine if probable cause that the defendant committed crime (rules of evidence is different, hearsay permitted)

Grand Jury 

group of people that determine if the evidence is sufficient for trial in an indictment, supposed to be secret, put in place to try and protect the defendant from false accusations but now guilty stain on defendant and effective tool for prosecutors, “would indict a ham sandwich”

Trial

used to establish guilt beyond a reasonable doubt which can end in an acquittal or conviction; can take years with tons of delays and someone could be locked up while all this is happening which can lead them to take a plea to get out (John Winsel)

Sentencing

death penalty, prison, probation, fine, restitution to victim, alternatives like drug court, determined by judge after the jury is dismissed unless DP case

Jail for sentences under a year, prison for sentences greater than a year

appeal 

can happen through various state and federal courts if don’t like the decision or feel there was a mishandling but there are no longer factors of the case, it’s just interpretation of the law by a judge

Federal vs. state criminal legal systems

under different constitutions; most criminal cases are state jurisdiction; federal courts apply in the case involves a federal law (along with other exceptions that rarely apply in criminal law; hijacking, kidnapping, bank robbery, child porn, tax evasion, counterfeiting, drug crimes), as well as crimes committed across multiple states.

plea bargaining

used as a cop out for the court system because with an explosion of cases, if everyone had a trial the system would implode from overload SO this was established as the solution for people to not go to trial and plead guilty to the crime at a lesser charge or sentence, typically set by the prosecutor, pisses off prosecutor or judge if refuse to take it and can result in harsher sentencing

plea bargain function (in theory)

compromise between prosecution and defense with judge approval; seems pro defendant because they get a less harsh sentence/punishment BUT not really…

plea bargain function (in reality)

that shit follow you for the rest of your life; prosecutors hold all the cards while defendants barely have meaningful representation; pros could be using overcharging as a threat and bluffing to force the plea, overwhelming pressure from pros AND most of the times defense to take the plea to speed up the case and stop from going to trial

Not the fuckass Law and Order episodes with speedy trials

97-98% cases go to pleas

Comparative approach: European countries have plea bargain system but for lower level crimes and not in adversarial systems

Boykin v. Alabama

1969- establishes “voluntariness” standard of a plea bargain so defendant has to answer that they consent to taking plea

North Carolina v. Alford

1970- “Alford plea” or “no contest” plea in which person pleads guilty but still maintains their innocence and prosecutors say they still got guilty plea so both sides win; rarely used by prosecution

Santobello v. New York

1971- said plea bargains were an essential part of justice basically encouraging them

Bordenkircher v. Haynes 

1978- prosecutor’s conduct was acceptable when they overthreatened charges (like threatening life in prison if defendant doesn’t take a plea deal of 5 years) basically Supreme Court encouraging defendants to take a plea

US Attorney’s Manual

(not law) standard for prosecutors that says they can’t use death penalty as a threat to force a plea bargain but this is violated constantly in states that allow the death penalty

Gregg v. Georgia

1976- Supreme Court affirmed that death penalty was allowed in cases where violent crime was severe enough and overall validated its constitutionality

Mandatory Minimums

sentencing policies that take away a judge’s ability to use discretion in a case to sentence below the statutory minimum; used for habitual defenders; seen in 3 strikes laws in CA, sentences for drug possession and distribution 

Originally, these policies were implemented to reduce/prevent bias among judge sentencing, but it quickly became a race by states to see who could be the most tough on crime.

summary of Marc Howard, Unusually Cruel (Ch2), Plea Bargaining

Plea bargains with stakeholders; prosecution gets win-win situation in which they don’t have to expense taking case to trial while also getting guilty conviction; judge cleans some backlog of cases; defense cleans some case backlog and if they are paid flat fees per case are incentivized to make client take a bad deal instead of going to trial

Comparison with France and Germany: rarely use PBs with more safeguards to keep prosecutors honest about creating it and more intervention from judge (inquisitorial)

summary of Marc Howard, Unusually Cruel (Ch3), Sentencing  

Sentencing in the US is extremely punitive and does not match proportionality of crimes in most cases because life without parole and death penalty are still legal

Comparative: most European countries ban death penalty and don’t allow life without parole because they think it is too harsh; way less punitive with either fine-based system (French) or less incarceration for lower level crimes (German)

Mandatory sentencing: removes judicial discretion from a case and takes away parole discretion for release

The Plea documentary

Demonstrated heartbreaking reality of taking plea deals; heartbreaking choice between not taking the plea and serving time in jail for a crime you didn’t commit (the woman whose boyfriend murdered someone on their vacation and she was implicated) vs. taking the plea because you can’t afford to spend any time in jail and having to face the consequences of not having access to public benefits or employment because it’s on your record (case of mother who took plea so she didn’t get locked up and could look after her kids, but became homeless and lost lots of social benefits and custody of children as a result)

Miss Wigg’s List

list of cases for Quitman County that weren’t even brought to trial because the prosecutor (Mellon) didn’t want to lose these cases; most were cases of domestic abuse, sexual assault, and child abuse > the most vulnerable people who need justice can’t get it because the prosecutor thinks they aren’t slam dunk cases

prosecutor

represents the government against the defendant; has incredible power over defense in adversarial system; supposed to represent the victim and protect the public in theory; full discretion and absolute immunity for their actions and can’t be sued; elected through appointments or partisan elections

Prosecutor Elections

Either appointed by political official (governor) or elected (partisan elections, how majority of states elect a prosecutor- can lead prosecutor to be more punitive closer to election and help out lawyers and judges that donate to their campaigns)

Ethical Duties of Prosecutors

Pursue justice and not convictions- rarely do this unless overwhelming evidence and public pressure, they have political clout and pressure from getting more convictions

Refrain from extrajudicial comments- not supposed to speak on a case to the media while it’s going on because it could contaminate the jury pool, etc. but they often hold press conferences if it’s for high profile cases

Disclose exculpatory evidence- Brady law which means they are supposed to show defense everything but they can leverage evidence and pick and choose what they show or hide

Decisions of Prosecutors

Types of crimes to pursue; how to allocate resources across areas for different crimes; where to dispatch undercover crews on drug busts (meeting quota in some neighborhoods), whether to bring charges, seek charges as an adult or juvenile, seek enhanced penalties, seek death penalty or life without parole, grant immunity or leniency if someone testifies as long as they implicate another person (basically a forced confession)

Enhanced Penalty

put consecutively on top of a sentence, lengthens sentence for specific details of a crime and are similar to mandatory minimums in that length is not discretionary (i.e. using a firearm in a homicide could have an enhancement of 20 more years on top of sentence)

Bob Macy ad

Ran for DA in Oklahoma, showed off how many convictions he had, especially putting defendants on death row (20 exonerations), but he was re-elected for decades

summary of Bach, Ordinary Injustice (Intro, Ch3), Miss Wigg’s List

Examines how the court regularly fails basic functions of the legal process because so many faulty actors in each part who either don’t take accountability for their actions and/or don’t have the capacity or resources to do a better job for the people because that was how the system was designed; Miss Wigg’s list and lack of justice for the most vulnerable populations and victims in Quitman MS because the prosecutor doesn’t want to fucking lose

Richard Posner

elite federal judge who thought it fine and not troubling that poor people have really bad quality defense attorneys, also presumed guilt of them, prioritized efficiency of the system to get defendants through

Ethical duties of the defense

keep client confidentiality (well kept); avoid conflicts of interest (should be all actors, and can’t represent defendants of the same case who could snitch on each other); zealous representation of client (rarely the case with indigent defense) > reality is that the more money you have, the better the defense counsel you can afford and the more of a chance at favorable outcome

Powell vs. Alabama

1932- case of Scottsboro boys (9 Black boys falsely accused of raping 2 white women, had horrible, misinformed defense that led to all 9 of them getting death sentences which was eventually overturned) right to attorney in capital cases (but not others)

Betts v. Brady

1942- no right to counsel unless “penalty was severe, the issues difficult, and the defendant inexperienced” (very subjective and anti-defendant)

Griffin v. Crenshaw

1956- the poor can receive free trial transcripts for their appeals (which are very expensive otherwise, needed for appeals)

Johnson v. Zerbst

1938- right to counsel for federal cases

Gideon v. Wainwright

1963- states must provide defense attorneys to criminal defendants who can’t afford lawyers themselves; originated from Gideon submitting an appeal to the Supreme court from prison because he had such bad representation and the second time he went to court with a better defense he was found to be not guilty; unfortunately many promises of Gideon are unfulfilled because criminal defense is sorely lacking in investigative resources and funding that indigent get very bad representation (gideon’s broken promise)

Argersinger v. Hamlin

1972- lawyer must be provided for all crimes that provide a jail sentence as a possibility

public defender

attorneys who chose to dedicate themselves to representing defendants BUT there are different levels of funding depending on geographical location; technically the highest standard of public defense (ex. DC has exemplary public defenders but they only take 20% of cases)

Ex. in Atlanta cases take on average 59 minutes per case versus New Orleans where cases take on average 7 minutes per case which later led to New Orleans lawyers filing case on themselves for the negligence

assigned counsel programs

private defense practice and get paid flat fee for taking cases → incentivized to push plea deals because they get paid per case

contract system

someone serving as public defender in an area paid fixed annual fee and gets overloaded with cases (ex. Robert Surrency as PD constantly taking pleas in Greene County before Houston County)

Strickland v. Washington

1984- questioned what the standard for ineffective assistance of defense counsel was because it is not legally defined and very broad; very hard to overturn a conviction and get a new trial based on incompetence of defense counsel but if they were, they have to prove defense was 1) performing deficiently (which attorneys refute as “strategic choices”) and 2) errors were so serious it deprived the defendant of a fair trial > both are nearly impossible to prove

Ex. sleeping lawyer during the trial of Burdine which was a death penalty trial but this lawyer was still let off the hook because the constitution doesn’t say anything about a lawyer having to stay awake

summary of Bach, Ordinary Injustice (Ch1) 

Focused on public defender, Robert Surrency, who worked in Greene County and prioritized making his defendants take pleas so that they wouldn’t have to go through long and costly trial, he was very disorganized but also didn’t have the resources or staff to sufficiently investigate his cases and was overwhelmed with cases to the point where he would meet his clients for brief moments before court by calling out their names; contrasted with Everett’s office in Houston County who was model for public defender’s office since she put in the time for helping her clients and not backing down for judges

function of the judge

interpret the laws (what qualifies as objection, etc.); establish rules (who is allowed to testify, what evidence is admissible); determine trial outcomes (sometimes in bench trials); sentence

In theory, supposed to symbolize and embody justice (aura of respect, legal reverence with “your honor”), impartial; set parameters but not decide on facts and then come back for sentencing length and type (which can take a very long time after jury comes to decision)

ethical duties of the judge

: impartiality and lack of prejudice (appearance of); fairness to stay above pressures of politics (but in lots of judicial elections they are running as politicians); avoid conflicts of interest (on self-determination basis which can lead to connections with cases like campaign donors); enforce mandatory minimums (takes away discretion bias of judge but also can lead to very harsh sentencing that judge doesn’t agree with for context of case)

Ex. judge being biased against Germans post WWI who openly admitted this and led to Supreme Court overturning German defendant conviction; Charles Hood case where judge and prosecutor were having an extra-marital affair; judge in New Orleans who dressed as incarcerated person with afro; judge in VA who stated racist bias against Black people; judge in FL who used n-word in court

judicial election

appointment by legislature or executive office; partisan election running as rep of a party; nonpartisan election (still be affiliated with party); merit election in which judges are voted if they should stay and if not in retention election, then new candidates are appointed by nonpartisan commission and then governor

pros and cons of partisan judicial elections

P > accountable to will of the population they serve; not beholden to their appointers; credibility in work; known ideology vs. C > campaign donors are influential on impartiality as well as partisanship; tough on crime mentality in which judges sentence harsher when closer to an election

Majority of state courts’ judges face elections

Tough on crime stance- judges impose death penalty more than juries and override more than juries

Ex. Tom Packer being a fucking KKK supporter but chief justice in AL supreme court

comparison of American judicial system with French judicial system

French judges have to take extensive, difficult exams that take years to study for and are selectively chosen to be a judge, they are immune from partisanship of elections and media pressure whereas there is tons of outside interest and partisanship in judicial elections in the US (Elon Musk funding race in Minnesota and Willie Horton)

Missouri Plan

nonpartisan method for the selection of judges; nonpartisan commission selects candidates and the governor appoints one; after probationary period, the new judge stands before the voters in a non-competitive, non-partisan retention election. The ballot asks voters to decide if the judge should be retained in office or removed, based solely on their performance.

Bach, Ordinary Injustice (Ch2)

Demonstrates the immense power judges have in a courtroom and how they are also complicit in trying to move along cases fast with pleas; case study of former Judge Bauer in Troy County who was kicked off of being judge; thought to be sympathetic to defendants from his history in criminal defense but he was very punitive in imposing excessive bail for minor crimes and repeat offenders and proceeded with pleas without defense counsel present

Jury

12 members of the public who must be neutral, unprejudiced, and ignorant of the case (no media, outside, previous knowledge which is hard, basically impossible with technology and very public cases); determine whether D is guilty or not based on the facts of a case; don’t interpret the law (supposed to be judge role); only consider the evidence introduced in court and permitted by the judge (can’t really undo opinions formed from evidence already presented that is struck by judge)

Ethical Duties of Jurors

decide based on facts of case only (no outside knowledge); remain impartial and fair (arguably impossible considering personal biases and identities); remain independent and not influenced by other (pressure of other jurors and wanting it to be over); keep jury conversations confidential (violated by public cases)

Convictions happen when jury is unanimous but can depend by state; LA rule that D could be convicted with 10-2 vote by jury

Venire

the entire panel/pool from which jurors are drawn; very time consuming process

Voir Dire

process by which attorneys select (really reject) certain jurors to hear a case; judge approval of elimination with reason

Peremptory Challenge

The right for attorneys to reject a certain number of potential jurors without stating a reason (just writing it down in case later questioned); both sides decide who to kick off; supposed to be with substantive reasons but very racially coded; over-exclusion of Black jurors especially when there is a Black defendant

Batson Challenge

based off of Supreme court case Batson v. Kentucky (1986) in which all 4 potential Black jurors were removed and a Black defendant was convicted with an all white jury; states that there must be a “race neutral” reason for removing people from a jury pool→ leads attorneys to give ridiculous reasons with implicit racial signaling; can also apply to gender

Powers v. Ohio

(1990): white defendant who was in a case involving police misconduct with him Batson challenged that all the Black jurors from his case had been removed and won

John McMann

disgusting Philadelphia DA who openly told new lawyers in a training that Black women made the worst jurors because of their race and gender and that elder Black men from the south, particularly South Carolina were the best; overall instructing the lawyers to be outwardly racist in the jury selection process against defendant

Death Qualification

it is okay to exclude jurors who are opposed to the death penalty so left with death penalty supportive jury

Sundby, A Life and Death Decision (ch3): Peggy

discusses Peggy, the only juror to hold out on the DP for Lane; she felt sympathy for him and understood his traumatic upbringing to play a factor into his criminal history and actions; saw something else, fear, in Lane in the videotape of him after shooting Castillo; she was pressured by the other jurors to conform and vote for the death penalty → Frank harassed her; eventually she switched to the death penalty after being misinformed that if she put the jury in a deadlock Lane would get life in prison; after she voted she learned that it would’ve been a resentence and she tried to take back her vote by calling the judge, but couldn’t and lived with the guilt

Sundby, A Life and Death Decision (ch4)

12th juror, Frank. Previously characterized as a more antagonistic figure, especially towards Peggy, the motivations of his behavior are shown to actually be seeing himself in Steven Lane from their traumatic childhoods and losses. However, Frank turned his life around, now has a wife and son.

Frank felt sorry for him, but Frank saw his own life as empirical proof that Steven Lane had a choice (wasn’t locked in by trauma as Peggy saw)

Frank didn’t say this in trial because he wasn’t sure he was allowed to

Frank saw himself as representing the victim (also saying what other jurors too polite to say)

Book details how defendants with such similar experiences as the defendant (abusive parent, past drug issues, etc) are actually sometimes their harshest critics. However, if a juror see themselves in the defendant’s family members, sometimes less harsh.

Frank was still bothered him to sentence him to death tho, Jurors often angry at defendant for dragging them into situation, making them have to impose sentence

Fundamentalist Juror

Fundamental belief that certain types of murder morally require sentence of death- moral imbalance that must be corrected

Hope Juror

belief that there is room for people to change through rehabilitation and help, their crimes can be a product of their environment

summary of Sundby, A Life and Death Decision, ch5

The Lane case exemplifies how most capital juries reach decisions—each juror’s unique perspective shapes a different “evidentiary kaleidoscope” that’s turned and tumbled in deliberation.

Capital defendants often receive weaker representation than those charged with lesser crimes; in People v. Brown, the defendant’s survival depended on the defense attorney’s ability to present a compelling “pattern of life,” something Lane’s defense failed to do.

Defense attorneys play a crucial role in the penalty phase, helping jurors—who often view behavior as a matter of free will—understand the defendant’s life timeline and mitigating factors.

Jurors may doubt emotional testimony as exaggerated by family love, and can misinterpret a judge’s silence as a sign that a long sentence might lead to early parole.

Juries not dominated by pro–death penalty votes tend to drift toward life sentences; Black male jurors are generally more likely than white male jurors to perceive remorse and consider background in their decisions.

When juries are deadlocked, judges instruct them to listen and reconsider; some jurors switch to a life sentence to avoid a hung jury, and months later must confirm their decision in a final hearing.

summary of Sundby, A Life and Death Decision, ch6

The legal system overlooks the burden placed on jurors—there’s no training, verdicts must be unanimous (allowing only one dominant view), and jury composition often fails to reflect the community’s diversity.

Jury conditions are poor and isolating, fostering stress, emotional intensity, and heated conflicts despite the closeness jurors develop during deliberations.

Serving on a jury reveals the “messiness” of democracy, as personal pressures and group dynamics often override individual judgment.

Peggy proposed reforms: jurors should be tested on their understanding of instructions, which should be written in plain English; however, judges often discourage questions.

Surveys showed 35% would serve again willingly, 35% reluctantly, and 30% would try to avoid it; 60% found the experience emotionally upsetting, and 35% suffered sleep or appetite loss, with lingering stress and family strain afterward.

Peggy’s experience left her depressed and regretful—she voted for execution to reach unanimity despite believing in a life sentence, later