Legal_St 235 Midterm - Readings

Covers readings up to and including 10/14. 10/19 is not to be tested on the exam.

Criminal Justice Theories and Ideologies, Francis Cullen and Karen E. Gilbert (K&S Chap. 1)

Cullen and Gilbert analyse the classical and positivist schools of criminal thought: the former focuses on the harm crime does to society and so is more focused on punishment and prevention of crime, while the latter is more rehabilitation-oriented and eventually comes to consider environmental factors in crime. They also consider conservative (system is sound, maintain order and establish social control), liberal (system can be reformed, crime is contextual and rehab is most important) and radical (system needs to be torn down and rebuild to prevent it being used as a tool for the elite) perspectives on justice.

• Classical and positivist schools of criminal thought

• 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

• Political ideology influences criminal justice perspective

• 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

Two Models of the Criminal Process, Herbert L. Packer (K&S Chap. 3)

Packer presents two models of the criminal process: crime control and due process. The former is akin to an assembly model where efficiency and securing convictions is prioritized, and the latter is akin to an obstacle course where adherence to the rule of law and ensuring justice/fairness.

• 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

Sociological Perspectives on Punishment, David Garland (K&S Chap. 2)

Garland discusses four philosophers in relation to the idea and function of punishment, in addition to three overarching approaches. The approaches are penological (what works?), philosophical (what is just?) and social institutional (what does punishment do?). The philosophers are as follows — Durkheim, where punishment is a moral process that reinforces collective values, conscience and cohesion; Marx, where punishment is a tool of the ruling class to maintain control; Foucault, where punishment is a political tool that controls behavior through internalization and normalization; and Elias, where punishment is civilizing process that has changed over time in accordance with society’s values and norms. Garland desires to view punishment through a multidimensional framework.

• Three approaches to punishment

  • Penological: What works?

  • Philosophical: What is just?

  • Social Institution: What does punishment do?

• 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

• Garland argues against theoretical reductionism—the tendency to explain punishment through a single explanatory principle — instead proposes a pluralistic, multidimensional framework

Policing a Free Society, Herman Goldstein (K&S Chap. 5)

Goldstein argues policing is a paradox, where officers are granted extraordinary authority and discretion to use force but it is exercised at the lowest level of bureaucracy with little direct supervision. He says it developed reactively in response to corruption and subsequent outcry, and that a realistic path forward must include the reframing of public expectations to be more realistic.

• Paradox of policing - police are granted extraordinary authority but is exercised at the lowest levels of bureaucracy with minimal direct supervision

• American policing developed reactively through cycles of public outcry and scandal

• Emerging in response to corruption and political interference, the professional model (now widely adopted) emphasized centralized control, clean lines of authority, higher entry standards, and modern technology

• Internal metrics often determine performance

• Public expectations must be realistic, too

The Evolving Strategy of Police: A Minority View, Hubert Williams and Patrick V. Murphy (K&S Chap. 6)

Williams and Murphy present a minority view of policing, arguing that it was shaped by and historically used to enforce racial oppression and disenfranchisement. They posit that reform movements have created systems biased against minority applicants that require confronting legacy and supporting neighborhood infrastructures for meaningful reform.

• Examines police history, challenges Kelling and Moore’s framework (divides police history into Political, Reform, and Community eras) as a white perspective lacking context of how policing was used to used to enforce racial oppression, slavery, segregation, and minority disenfranchisement

• Modern Southern policing originated from 18th-century slave patrols and in the North early departments were shaped by racial and anti-abolitionist riots

• Professional reform movements, ex. Vollmer and Wilson, sought to insulate police from politics and reduce corruption but in practice was biased against minority applicants (civil service exams, background checks)

  • The Kerner Commission (1967) noted that police were often responsible for 1960s urban riots

• Professionalization frequently disenfranchised minority communities and reinforced racial divisions (tests biased against those applicants), to reform must confront legacy and support neighborhood infrastructures

Evolution of Law Enforcement, PBS Origins

PBS analyzes the colonial history of police as a mechanism of reinforcing slavery and subsequent legal methods of oppressing minorities, plus the failure of recent reforms to create meaningful change on this front.

• Colonial police operated under a hodgepodge of rules, no real consolidated organization

• In the South, patrols enforced slave codes and were used to keep slaves in line

• 19th-century police cracked down on immigrants and union workers/laborers

• Wickersham Commission (Hoover) documented problems with police, led to reforms

• Professionalism in policing surged to prominence in 1950s

  • But allowed police departments to turn inwards, away from public eye

POLICEwomen or PoliceWOMEN? Doing Gender and Police Work, Cara E. Rabe-Hemp (K&S Chap. 7)

Rabe-Help rejects the previous supposition that policewomen choose being a POLICEwoman (tough, overachieve, conform to culture) or a policeWOMAN (traditionally feminine characteristics) as too binary and instead proposes that officers continually negotiate their identities, integrating both masculine and feminine identities in their work as the latter has been valued by community policing and can make them better officers. Defines gender as an ongoing social construct that is continually reconsidered.

• Conflict between being a woman and a police officer, earlier argument is that they tend to choose one

  • POLICEwoman - toughness, overachievement, and conformity to police culture

  • PoliceWOMAN - traditionally feminine characteristics

• DENIES that argument as too binary, says the officers continually negotiate their identities

• Community policing values activities/traits typically associated with the feminine, changed perspective/priorities

• Ultimately, Rabe-Hemp concludes that female officers integrate masculine and feminine identities rather than occupying one or the other

• Gender is an ongoing social accomplishment, constantly reconsidered by society, not a simple masculine/feminine binary

• Police culture values masculinity - aggressiveness, warrior culture, authority, strength

  • BUT women said they turned more typically feminine traits into strengths - empathy, communication, deescalation, although this can reinforce stereotypes and trap them in specific roles or perceptions

Behind the Badge and the Veil: Black Police Officers in the Era of Black Lives Matter, Kayla Preito-Hodge

Preito-Hodge studies Black officers’ experiences during the BLM movement and blue countermovement, incorporating W.E.B. Du Bois’s ideas of double consciousness and the veil: a tension between Black racial identity and blue occupational identity where they have to balance expected loyalties to their identities/communities with loyalty to their occupations in a situation that can result in alienation from both. She also considers the two forms of Du Bois’s double consciousness, assimilative (officers internalize police norms and stereotypes to be accepted) and critical (officers leverage their identity to call for change).

• Study of Black police officers’ experiences during the BLM movement, blue countermovement, “a period marked by hypervisible racialized police violence”

• Black officers have to balance expected loyalties to their identities/communities with loyalty to their occupations and the related community

• Grounded in W.E.B. Du Bois’s ideas of double consciousness and the veil, tension between Black racial identity and blue occupational identity; "Too Black for the blues, too blue for the Blacks”

  • Black officers face “double marginality” - alienated from Black civilian community and (mostly white) police community

• Organizational theory, police departments are marked by inequality, an insular culture than encourages/enforces silence and a warrior/aggressive mentality

• Officers’ responses to BLM

  • Black Lives Matter (some support, some distance)

  • All Lives Matter

  • Blue Lives Matter (most officers rejected, viewed it as anti-racial justice)

• Two forms of double consciousness

  • Assimilative / Colorblind Double Consciousness - officers internalize police subculture norms and stereotypes regarding Black criminality to be accepted by department

  • Critical / Reform Double Consciousness - officers leverage their identity to challenge police misconduct and call for change (break blue code of silence)

• Cultural reform required

The Social Organization of Arrest, Donald J. Black (K&S Chap. 8)

Black analyzes the factors that influence whether officers arrest suspects during routine encounters: offense seriousness, evidence, complainant’s preferences, suspects’ relationships, attitude and race. He attributes higher arrest rate for Black offenders to suspects' behavior toward police and describes how citizens play a major role in initiating a reactive system of law enforcement, acting as a moral filter/gatekeepers.

• Circumstances that influence whether police officers arrest suspects during routine encounters (many, can overlap)

  • Seriousness of the alleged offense

  • Available evidence

  • The complainant's preferences

  • The social relationship between the complainant and suspect

  • The suspect's attitude toward police authority

  • The suspect's race

• Police are generally more lenient than legal authority would permit, though more so for a family conflict than for that of two strangers

• Author attributes higher arrest rate for Black offenders to suspects' behavior toward police

• Citizens play a major role in initiating criminal-law enforcement, play a substantial role in eventual outcome - act as a moral filter, gatekeepers for what is handled by law

What Can Police Do to Reduce Crime, Disorder, and Fear?, David Weisburd and John E. Eck (K&S Chap. 9)

Weisburd and Eck present four policing strategies, along with analyses of their efficacy, categorized by diversity of approaches and the level of focus. Standard/LDLF (one size fits all, professionalism, classic), Community/HDLF (creating ties between police and community to preempt crime), Hot-Spots/LDHF (focusing resources on specific areas where crime is common) and Problem-Oriented/HDHF (targeting responses and strategies to suit individual problems). Generally, hot-spots is the most effective at reducing crime, although problem-oriented is promising, if under-studied.

• Research on police effectiveness, asking which police strategies actually reduce crime, disorder, and fear of crime; organizing police strategies along two dimensions: the diversity of approaches used and the level of focus

• 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

• Broadly speaking, generalized performs worse than specific/tailored

Driving While Black: Bias Processes and Racial Disparity in Police Stops, Patricia Warren, Donald Tomaskovic-Devey, William Smith, Matthew Zingraff, and Marcinda Mason (K&S Chap. 10)

Warren et al look at how race factors into police stops, and found that it’s an important element in local policing. Four potential bias mechanisms enumerated are racial profiling (organizations presume offenders have certain characteristics, out-of-place profiling), unequal police deployment (hot-spots, resources concentrated in predominantly Black communities), cognitive bias/stereotyping (officers making rapid decisions using cognitive shortcuts, or possibly being unconsciously influenced) and conscious racial prejudice (racism).

• Black and white officers DO NOT experience different stop rates with highway police but DO with local police

• Racial bias is not necessarily uniform across police organizations: its prevalence and effects can vary depending on how policing is organized

• Four potential bias mechanisms (theories, not confirmed)

  • Racial profiling - Police organizations use characteristics, including race, to identify presumed offenders

    • Out-of-place profiling of black drivers in white suburbs

  • Unequal police deployment - Police resources are concentrated in particular locations, including high-crime and lower-income neighborhoods where Black residents are disproportionately represented

    • Unequal exposure to intensive policing

  • Cognitive bias and stereotyping - Officers must make rapid decisions with incomplete information, bias provides a cognitive shortcut, an unconscious influence on judgments of who appears suspicious

  • Conscious racial prejudice - Racist officers may discriminate if org. context permits

Law Enforcement and the Rule of Law: Is There a Tradeoff?, David H. Bayley (Chapter 11)

Bayley considers officers who believe that “sometimes, you need to break the law to get things done,” or that doing so makes them more effective, and rejects it. He finds that while there are a number of beliefs influencing that decision — including a desire to protect public safety, career incentives, culture and personality — officers who break the law actually harm the department in a number of ways.

• “Noble cause” policing - Officers are aware of the law but feel that sometimes violating the law is required for effective law enforcement — a “noble cause” — as the rules are contradictory/slowing

  • So, do police actually become more effective by disregarding rules?? Author says no

• 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

• 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)

• Illegal policing may pressure officers to conceal misconduct, setting the dept. up for scandal and outside intervention. Settlements, appeals

• Argues that reform should begin with police managers to change, broadly, standards of success and other overarching operating elements