LEGAL_ST 235 Midterm - Key Terms

A review of key terms. Readings sold separately.

Crime

The violation of laws of a society by a person or group of people who are the subject to the laws of that society (i.e. socially constructed)

Punishment

The imposition or suffering on someone for crime or offense. Can include inflicting pain, suffering, loss or confinement as a result of wrongdoing (for our purposes, what happens after being found guilty)

Social Control

The rules, habits and customs a society uses to enforce conformity to its norms

Criminal Justice

A social institution that has the mission of controlling crime by detecting, detaining, adjudicating and punishing (or rehabilitating) people who break the law. The American system includes the police, courts and corrections.

Ideologies & Criminal Justice

• CONSERVATIVE: System is fundamentally sound // Classical

  • Maintaining order, punishment and social control

• LIBERAL: System isn’t perfect but can be improved with reform // Positivist

  • Crime in the context of social inequality and broader contexts

  • Want rehabilitation: parole, mental health resources, rehab centers, legalization/decriminalization

  • Schism - Rehabilitation over punishment

    • Traditional: Still need to focus on rehabilitation

    • Justice: More realistic punishments would be fairer

  • Still care about social order, but less so than conservative

• RADICAL: Burn, baby, burn // Leans Positivist

  • Capitalism is the problem - causes crime and used by elite to suppress the people

  • Not really classical or positivist, although leaning towards the latter

The Wedding Cake Model

A model describing how cases are treated by the courts and media.

• TOP: Smallest, but receives most attention and best resources (serial killers, fame, gruesome murders)

• SECOND: Serious felonies, requiring full CJS attention (rape, murder, manslaughter, fatal crimes)

• THIRD: Less serious felonies, typically resolved via plea (burglary, larceny)

• BOTTOM: Misdemeanors and minor offenses, handled by alternatives to incarceration or plea (traffic violations, shoplifting, minor assault)

Classical v. Positivist

• CLASSICAL: The measure of crime is the harm done to society

  • Believes in humans’ free will and so punishment should be focused on the crime, not the offender who chose to do it. Largely ignores individual circumstances as immaterial to harm caused.

  • Aligns with conservative ideals of maintaining order with a fundamentally sound system

  • Goal of punishment = stop crime

  • Certainty of punishment > severity of punishment (deterrence)

• POSITIVIST: Rehabilitation is more important than punishment

  • Focus on determinism rather than free will, factors outside criminals’ control drive crime; later looks at environmental factors

  • Aligns with liberal ideals of rehabilitation, social factors/larger picture, and policies of parole, mental health resources, rehab centers and legalization/decriminalization

Crime Control v. Due Process Models

• CRIME CONTROL: Assembly line, efficiency is key

  • Repression of crime and punishing criminals is the most important function

  • Focus on vindicating victim’s right’s rather than protecting the defendant’s rights

  • Preference for informal, administrative processes (ex. plea bargaining) over formal trials — much faster

  • Presumption of guilt: once someone is accused of a crime and sufficient evidence has been gather against them, they are likely guilty

• DUE PROCESS: Obstacle course, justice/fairness overrules efficiency

  • It should be difficult to work your way through the system, letter of the law followed to a T to ensure formal, proper methodology accounting for human error

  • Focus is on defendants’ rights and adherence to the law

  • Preference for formal, adversarial processes (ex. trials)

  • Presumption of innocence: burden of proof on prosecution

    • Even if they are factually guilty, they must be proven to be legally so in a court of law

Sociology of Punishment Theories/Perspectives

• DURKHEIM: Punishment is a moral process that acts as a social institution to reinforce collective values, conscience and cohesion

  • Expressive institutionalism - desire for vengeance or passionate reactions that need a container and vehicle

  • Ritualistic function - punishment is less about criminal and more about community’s view of the crime

  • Focuses on function, rather than form, of punishment

• MARX: Punishment is a tool of capitalist structure and the ruling class to maintain power and control

  • It’s inherently tied economics/class and targets marginalized groups, maintaining inequality

  • Wants to decouple punishment from crime

  • Economic determinism - punishment reflects the economic base and serves to reinforce the capitalist system, seen as a way to discipline workers and create labor

• FOUCAULT: Punishment is a political tool with positive, productive effects that works internally to control the mind and behavior through surveillance and normalization

  • Punishment has shifted from bodily harm to removing people from society

  • Relationship between power, knowledge and punishment: punishment is a means of producing knowledge about individuals, categorizing them and exercising control over them

  • Panopticism - the prison exemplifies a broader societal trend of internalized surveillance, leading to docile self-regulation

• ELIAS: Punishment is a civilizing process that has changed over time in accordance with societal views and norms

  • Punishment moving away from direct physical violence towards more civilized forms of control reflects societal norms

  • State has a monopoly on violence and shapes punishment, enforces behavioral norms to ensure order

  • Emotional regulation - individuals internalize self-restraint over time, reducing the need for brutal/public punishments

Three Approaches to Punishment

• Penological: What works?

• Philosophical: What is just?

• Social Institution: What does punishment do?

Three Eras of Modern Policing

• POLITICAL, (Mid 1800s > Early 1900s)

  • First municipal police depts formed, a well-paid yet informal profession with few trainings/standards

  • Close ties between police and politicians, often led to corruption and favoritism in appointments

  • Southern police conducted slave patrols and performed surveillance to maintain order/control

• REFORM, (Early 1900s > 1980s)

  • A reaction to the corruption of the political era; saw professionalism reforms spearheaded by Vollmer

  • Introduction of technologies like the patrol car, radios and 911: policing becomes more centralized, standardized (trainings) and reactive

  • Policing is still used to enforce Black Codes in the South, overall it’s less corrupt for white people but the institution did NOT effect all races equally

    • A push towards police acting within the law didn’t benefit those not treated equally by the law

• COMMUNITY, (1980s > Present*)

  • Turbulent period of surging crime and unrest, SCOTUS restricting police power with Miranda and Mapp

    • Kerner Commission blames police white supremacy and racism for urban riots and civil unrest

  • Moves to build positive relationships with communities, prevent crime proactively and target underlying social issues driving crime

Professional Model of Policing

• Efficiency through centralization, organization, standardization in both command and activities

• Improved training and requirements for higher education; better technology

• PROBLEMS? Bureaucracy can slow down decisionmaking, treats policing like a corporation or the military and thus creates an insular culture, focuses on metrics and numbers

Police culture

The attitudes, beliefs and behaviors that law enforcement have that shape how they see themselves and the work that they do. Core beliefs include loyalty, solidarity, authority/hierarchy, ever-present danger, group identity and mission.

Police discretion

Police have broad discretion on who to arrest and how to conduct their operations, leading to potential issues of biases and inequality

Doing gender

Gender is a social construct that describes how people perform and often conform to gender expectations or their gender identity. Examples include baby clothes, makeup, how to sit

Hegemonic masculinity

The dominant ideal of manhood that justifies men’s power over women and over “other” men. Prioritizes strength, violence, lack of emotion, whiteness, power

Blue culture / BlueLM / Thin blue line

Police culture on steroids. Insular, code of silence, warrior-like, racially intolerant but claims to unite all officers. Militant beliefs like that policing is dangerous, war on cops, public just doesn’t get it (justifies force).

Double Consciousness

Black Americans experience of living with two ways of seeing themselves: how they see themselves and how others (or rather a racist society) see(s) them. There is a pressure to adjust behavior to fit in.

Reactive v. Proactive Policing

• Police work is mostly reactive (citizen-initiated) rather than proactive (police-initiated)

• Citizens often act as gatekeepers for the criminal justice system, but creates problems of who is most likely to call the police and what impacts that has

Four Strategies of Policing

• STANDARD: Little/mixed evidence of success

  • Professionalism model, hierarchical, one size fits all

  • Policies: Random patrol, rapid response, more officers, generalized enforcement

• COMMUNITY: Some evidence of fear reduction

  • Creates strong ties between police and communities to help respond to crime; tries to preempt

  • Can improve residents’ perspective and fears but needs to be paired with legitimate problem solving

  • Policies: Community meetings, foot patrol, door-to-door contact, storefront officers

• HOT-SPOTS: Strong at preventing crime at some locations

  • Focuses resources on specific areas where crime is common; benefits diffuse to nearby area

  • Tied to surveillance technology and potential risks of excessive force

• PROBLEM-ORIENTED: Promising, but understudied

  • Targeting responses and strategies to suit individual problems

  • Policies: SARA model (Scanning, Analysis, Response, Assessment), involving other agencies/property owners, environmental changes

Driving while black

Black drivers are more frequently pulled over than white drivers across the country, particularly by local officers. Primary reasons include racial profiling, hot-spots policing, cognitive bias/stereotyping and racial prejudice

Racial profiling

Police organizations creating and acting on a set of characteristics to describe a typical offender or offender population

Racial prejudice

Active racism and consciously making decisions based on racial biases and stereotypes

Out-of-place policing

Targeting people, often based on race, because they are seen as incongruous or not in the right place

Pretextual stop

The practice of enforcing minor infractions — tinted windows, blocking back window, illegal turns — with the intent to look for more serious offenses. Criticized, but has withstood constitutional challenges

“Noble cause” lawbreaking

• Officers are aware of the law but feel that sometimes violating the law is required for effective law enforcement as the rules are contradictory/slowing

• Connected to crime control — efficiency matters more than following the law to a T to ensure perfect justice — and classical — damage to society is measure of a crime, punishment and prevention are most important

• Examples of law breaking

  • Excessive force

  • Illegal searches (w/o warrant or consent)

  • Detaining without cause

  • Planting/tampering with evidence

  • Coercing confessions

  • Interfering with legal representation

• Factors or beliefs influencing law breaking

  • Public safety/noble cause/thin blue line/necessity

  • Unique empowerment to use force

  • Public respect, want to control situations and have respect for authority

  • Career success, rewarded/promoted based on crimes solved

  • Belonging to a police culture where such behaviors are normalized/expected

  • Complexity of the law, renders it flexible/subject to discretion

  • Police personality, officers are often action-oriented or believe in hegemonic masculinity

• Disadvantages to lawbreaking

  • Doesn’t really make them more effective at stopping crime

    • Less public trust, likelihood of cooperation

  • Weakens authority of law

  • Scapegoats the police

  • Decreases morale, makes job less satisfying

  • Wastes community resources (trials, settlements)

Cognitive Bias

Our brains make snap decisions based on stereotypes and incomplete information to process info quickly