Prisons and Punishment Midterm

"A Life and Death Decision"

Scott E. Sundby:

The narrative centers on one murder trial ("The People v. Lane") in which the defendant, Steven Lane, has been convicted of murdering a convenience store clerk.

The jury must decide whether he should be sentenced to death.

Sundby follows the perspectives of various jurors, especially different "types" of jurors (e.g., the holdout, the idealist). He shows how their personal backgrounds, values, fears, and experiences affect their deliberations.

Being a capital juror imposes heavy psychological burdens: jurors wrestle with guilt, uncertainty, fear of doing wrong. After the trial, the emotional echo remains. Sundby shows that jurors carry these decisions with them.

"Worse than Slavery"

David Oshinsky:

After emancipation, Southern white elites sought ways to maintain control over Black labor. Laws, practices, and institutions emerged (or were preserved) that punished Black people disproportionately for petty or minor offenses, enforced labor, etc.

Systems like convict leasing became central: once freed from slavery, many Black people were arrested on minor charges, then leased out as forced labor to private plantation owners or other employers. These systems had far less incentive to safeguard lives than under slavery, so mortality, abuse, and neglect were rampant.

Convict Leasing

-less oversight than slavery

-Mississippi had more freed slaves than whites

-no modicum of caring like in slavery, just get more

-"one dies, get another"

Parchman State Penitentiary (also called "Parchman Farm")

Set up in Mississippi as a massive state-owned prison farm, very much plantation‐like, where convicts labored under brutal conditions - long hours, minimal provision, physical abuse, chain gangs, etc.

Cesare Beccaria

believed that punishment should fit the crime, in speedy and public trials, and that capital punishment should be done away with completely

Stanford Prison Experiment

Stanford University conducted an experiment in a mock prison that demonstrated the power of social roles, social norms, and scripts

"The New Jim Crow"

Michelle Alexander: Slavery > Convict Leasing > Jim Crow > Mass Incarceration

-coined term "mass incarceration"

"Unusually Cruel"

Marc Howard

"Ordinary Injustice"

Amy Bach: "Ordinary injustice results when a community of legal professionals becomes so accustomed to a pattern of lapses that they can no longer see their role in them."

Miss Wiggs's List

It is a list of domestic violence cases (and other criminal charges) in Quitman County that have not been presented to the grand jury—i.e. they were not formally prosecuted via grand jury indictment.

The list is significant because it shows a pattern: many cases that might legally require or deserve prosecution are simply set aside, or abandoned before grand jury consideration, often because the prosecutor thinks they won't win or that the victim won't testify.

Panopticon

Jeremy Bentham's idea based on Michel Foucault of constant surveillance, a crueler method than violent guards

Implicit Association Test

Associating "good" and "bad" with "African American" and "Caucasian" to determine implicit bias, maybe explain police brutality

Willie Horton Ad

Controversial ad run during Bush v. Dukakis that highlighted allegations that Dukakis was soft on crime and stirred racial fear

Adversarial Model

▶ Used in common law countries (derived from U.K.)

▶ Two sides (prosecution and defense) compete to make the strongest case for their position

▶ The arbiter (judge or jury) decides who wins

▶ Distinct from inquisitorial system (used in civil law countries), where the judge investigates the facts of the case

Legal Burden of Proof

▶ reasonable suspicion (police, stop)

▶ probable cause (police, arrest; or grand juries, indictment)

▶ preponderance of the evidence (most civil cases) (over 50%)

▶ clear and convincing evidence (sometimes in civil cases) (maybe 75%)

▶ beyond reasonable doubt (most criminal cases) (highest level)

Stages of Criminal Justice

▶ Crime occurs, "The State" (government) pursues the case against the defendant

▶ Arrest

▶ Charges filed (or accused released)

▶ Arraignment - initial appearance before a judge

▶ D enters plea to the charges (guilty, not guilty, or no contest)

▶ Court can authorize pre-trial release or require bail

▶ Preliminary hearing - evidence presented for judge to determine if probable cause, hearsay is permitted

▶ Grand jury - to determine if sufficient evidence for trial (if so, D is "indicted")

▶ Trial - to establish guilt beyond a reasonable doubt (ends in acquittal or conviction)

▶ Sentencing

▶ Appeal - various state and federal avenues (but not on facts of the case)

▶ Jail or prison

Jail v Prison

Jail for less than 1 year, Prison for over 1 year

Plea Bargaining Cases

Boykin v. Alabama (1969)

North Carolina v. Alford (1970)

Santobello v. NY (1971)

Bordenkircher v. Hayes (1978)

U.S. Attorneys' Manual

Boykin v. Alabama (1969)

Plea Bargaining, establishes "voluntariness" standard

North Carolina v. Alford (1970)

"Alford plea" or "no contest" or"nolo contendere"

Santobello v. NY (1971)

"an essential component of theadministration of justice. Properly administered, it is to beencouraged"

Bordenkircher v. Hayes (1978)

prosecutor's conduct(threatening life in prison for not accepting plea deal of 5 years)is acceptable (but note vigorous dissent saying this encouragesvindictiveness by prosecutors)

U.S. Attorneys' Manual

cannot use death penalty as a threat toget a plea bargain

Ethical Duties of Prosecutors

1. Pursue justice, not convictions

2. Refrain from extrajudicial comments (don't speak to the media)

3. Disclose exculpatory evidence (Brady v. Maryland, 1963)

High Success with Reentry?

1. Education

2. Family connections

What Decisions do Prosecutors Make?

1. What types of crimes to pursue

2. How to allocate resources across areas (corruption and white collar crimes, drugs,prostitution, quality of life crimes, etc.)

3. Where to dispatch undercover crews on drug busts▶ Whether to bring charges

4. Whether to charge as adult or juvenile

5. Whether to seek enhanced penalties (e.g., mandatory minimum sentences)

6. Whether to seek DP or LWOP

7. Whether to grant immunity/leniency for testimony

8. Plea bargains

Important note: prosecutors have full discretion, and they enjoy absolute immunityand cannot be sued (even if they violate their ethical duties)

Ethical Duties of Defense Counsel

1. Keep client confidentiality

2. Avoid conflicts of interest

3. Zealous representation ofrights and interests of defendant

Defense Counsel Cases

Powell v. AL (Scottsboro boys, 1932)

Betts v. Brady (1942)

Griffin v. Crenshaw (1956)

Johnson v. Zerbst (1938)

Gideon v. Wainwright (1963)

Argersinger v. Hamlin (1972)

Powell v. AL (Scottsboro boys, 1932)

establishes right to attorney in capital cases (but not in others)

Betts v. Brady (1942)

no right to counsel unless "penalty was severe, theissues difficult, and the defendant inexperienced" (i.e., very open tointerpretation)

Griffin v. Crenshaw (1956)

the poor can receive free trial transcripts fortheir appeals

Johnson v. Zerbst (1938)

establishes right to counsel for federal cases

Gideon v. Wainwright (1963)

states must provide defense attorneys tocriminal defendants charged with serious offenses who cannot afford lawyers themselves

Argersinger v. Hamlin (1972)

lawyer must be provided for all crimes with jail as a possible sentence

How are Defense Lawyers Assigned?

1. Public defender (gold standard, they chose this profession)

2. Assigned counsel programs

3. Contract system

Strickland v. Washington (1984)

▶ Question: what is the standard for ineffective assistance of D counsel?

▶ Holding: two steps to show deficiency that warrants new trial:

1. counsel's performance was deficient

2. errors were "so serious as to deprive the D of a fair trial" (i.e., prejudicial)

What are a judge's duties?

1. Interpret laws

2. Establish rules

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

4. Symbolize and embody justice

Ethical Duties of Judges

1. Impartiality and lack of prejudice (or at least the appearance thereof)

2. Fairness (stay above the political fray)

3. Avoid conflicts of interest

How are judges (s)elected?

1. Appointment (legislative of executive)

2. Partisan elections

3. Nonpartisan elections

4. Merit election (whether incumbent should continue

Punishment vs. Incapacitation

American systems vs. foreign systems of rehab

San Quentin Prison

In California, known for its many programs and opportunities for rehab

What did Richard Posner say about defense counsel?

criminal defendants are poorly represented, but this might be economical and optimal

Roles of the Jury

▶12 members of the public, who must be neutraland unprejudiced (= ignorant of the case)

▶ Determine whether defendant is guilty or not guilty based on the facts of the case

▶ Do not interpret the law (that is the judge's role)

▶ Only consider evidence introduced in court and permitted by the judge

Ethical Duties of Juries

1. Decide based on the facts of the case only (cannot bring in outside knowledge, information, ideas, or principles)

2. Remain impartial and fair

3. Remain independent, not influenced by others

4. Keep jury conversations confidential

Venire

the entire panel from which a jury is drawn

Voir dire

the process by which attorneys select (or really reject)certain jurors to hear a case

Peremptory challenge

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

Batson challenge

must give "race neutral" reasons for removing people from jury pool

"Death Qualification"

it's okay to exclude jurors opposed to the death penalty