Note
Studied by 4 peoplecjl4038 exam 3 study guide
Justice Gap
Wealthier individuals, on average, are able to have their legal needs met at a higher and a more effective rate
American Bar Association (2004)
Average low/middle class person encounters 2-3 unmet legal needs a year
Such as:
Housing
Safety
Healthcare
Most common response to unmet needs is to do nothing or try to remedy yourself
Reasoning:
Expense
Take time off work
Childcare
Skepticism of lawyers and courts
Belief that you can handle it yourself
Result is a civil justice system stratified by resources
None of this would matter if a lawyer didn’t matter or the civil justice system didn’t produce beneficial results
>50% of low/middle class people report happiness in using the civil justice system
Having a lawyer substantively increases your chance at winning
Domestic violence and mortgage foreclosure action victims are 2x more likely to get restraining order when represented
Lawyers have been critiqued for (un)intentionally perpetuating this problem
Less than 5% of Americans believe lawyer fees are fair
How?
Double billing
Social media unboxing
Charge for learning new areas of law
Efforts to Close the Justice Gap (Increase access to legal services for those who wouldn’t otherwise use them
Advertising
Primary question in debate over legal advertising is how do we balance:
Lawyers freedom of speech and interests of the consumer
Protecting the public from false, misleading, or wrong info
Pros:
Evidence that advertising increases competition in the market
Decrease prices for consumer
Cons:
Those who do advertise are generally labeled as less competent
Chilling effect which can occur when misleading ads are aired
Contingency Fees
Used when lawyer is paid and agreed upon percentage of the settlement instead of the fee
Instead of paying by the hour, just pay however much you get in damages on the back end
Ex: Lawyer: 33%; Plaintiff: 66%
While you don’t have to pay Morgan and Morgan, you generally still pay court fees
“You don’t pay unless you win”
Ex: I sue someone for $500,000 we settle for 100,000. I get 66%, lawyer gets 33%
Pro: allow people who don’t have money sitting around to blow to access courts for basic needs
Cons:
Lawyers interests not aligned with client
Ex:
Settlement: $500,000
Contingency Fee: 10%
Plaintiff: $450,000
Lawyer: $50,000
Lawyers are incentivized to only take cases with large damages
Class action lawsuits can get murky
The lawyer gets paid much more than the individuals that suffered the damage because it is divided between everyone that was affected
Group Service Legal Plans
You pay a fee, you are provided with legal assistance at a reduced rate if you need it
Ex: Legal insurance
How does this work?
People covered by “legal plan”
Person needs basic legal advice they can post on a message board
If you need more focused counsel, you can get that for a copay
Lawyers are usually those who are working fulltime for company or contractors
Pros:
Peace of mind
Cheaper
Cons:
You are paying for something even if you don’t use it
Plans usually include newly minted lawyers and have little in way of quality control
Flat fee structed payments
Pro Bono Work
Donation of time and expertise by lawyers to people
Model rules of professional conduct
Lawyers should give 50 hours a year of pro bono work
How often does the standard get met? Not often
1980: 5-15 hours were given
Mostly for friends and family
2017-2018: 81% of lawyers said pro bono work was important; 45% reported they were likely to provide pro bono assistance; 20% provide the 50 hours; 52% provide some pro bono work; 20% have never done it
Defense Counsel
Why do this job?
Upholds Constitutional rights of defendants
The question of guilt is up to the fact finder, not society or lawyers
There is a difference between factual and legal guilt
Blackstone- “It is better that ten guilt people go free than one innocent person be convicted”
6th amendment
Right to counsel
Until 1963, this was interpreted to mean you could bring counsel, but we didn’t have to give you one
Gideon v Wainwright (1963)
Guarantees right to attorney during felony prosecutions if indigent (can’t afford counsel)
US v Wade (1967)
Guarantee to counsel is not just at trial, its at any critical stage
Argersinger v Hamlin (1972)
Extends guarantee to counsel to those subject to incarceration for a substantial portion of time
6 months
To have guaranteed counsel…
Indigent
<200% of federal poverty line
Subject to a “6 months" (felony)
After Gideon every state had to provide counsel to eligible people – they did so in several ways….
Assigned Counsel Programs
Private lawyers who are willing to represent indigent people for a fee
Judge appoints lawyers on as needed basis
Flat fee structure
Contract Counsel Programs
Private law firms, non-profits, or other organizations contracted with the court to represent indigent people for a fixed amount of money for a year
Ex: The government always takes the lowest bid of law firm for the indigent people and keep the good lawyers for the paying clients and the cheap, bad lawyers for the poor
Public Defender System
Government salaried employees whose sole job is to represent indigent people
79% of indigent people who get representation are represented by public defenders
Are Public Defenders better or worse than private lawyers?
Common argument is worse than private lawyers
Private lawyers are more engaged, file more motions, make more contact with clients
There are at least 3 reasons to be skeptical
Selection effect- private lawyers can choose their cases
If it’s a private lawyer, there is no guarantee this is a criminal defense attorney
Those working within courts tend to know the ideocracies of judges/prosecutors more than those outside
Does indigent defense receive adequate funding?
States spend far more on prosecution than defense
Tennessee: 7x as many investigators for the prosecutors office, relative to the public defender
Effective Counsel
Strickland Test
The burden of proof is on the defendant
2 prong test
Counsel’s performance was below objective standards and;
If not for counsel’s errors, there would’ve been a reasonable probability the verdict would’ve been different
Prosecution
Public prosecution of people by government entities
Today, most prosecutors are elected
Prosecutorial power
Whether to charge
Which charges
Indictment Trial
Enhanced by overlapping crimes
Ex: Carjacking
Motor vehicle theft
Assault
Robbery
Ex: burglary
Trespassing
Theft
Breaking and entering
Primary predictors of prosecutorial decision making
Strength of the evidence
Victim cooperation
Number of witnesses
Credibility of witnesses
Legal factors
Offense severity
Criminal history
Plea Bargaining
Most criminal convictions occur via guilty pleas
Charge Bargaining
Defendant pleads to a lesser charge
Count Bargaining
In exchange for pleading guilty, we will reduce the number of charges
Fact Bargaining
In exchange for pleading guilty, we will leave certain facts out of the indictment (charging document)
Sentence Bargaining
In exchange for pleading guilty, we will recommend a shorter sentence
Why are pleas so common?
“Benefits” to all
Defendant
Lenient sentence
Government
Disposal of case
High conviction rate
Defense counsel
Disposal of cases
Judges/Judiciary
Clears the docket
Makes finality greater
The criminal justice system is already pretty tough on serious offenders and reforms designed to close alleged loopholes primarily affect less serious categories of crimes and offenders
Abolishing Plea Bargaining Reading
Alaska
What was the policy?
Refrain from engaging in plea negotiations with defendants designed to arrive at an agreement for entry of a plea of guilty in return for a particular sentence
What was the goal of the policy?
To make it so defendants didn’t enter plea bargain simply to obtain a plea of guilty
What happened once the policy was put in place?
The criminal justice system did not collapse as expected
Increased sentencing disparity
Cases went through the court much quicker
Why?
Role of Caseload Pressure/Plea Bargaining as a Routine Activity
37% of all crimes are reported
20% of those are cleared by arrest
Half of those arrests are dismissed
80% of all plea bargaining cases fell within tightly defined sentencing clusters
Michigan
What was the policy?
Provided mandatory prison terms for gun related crimes
What was the goal of the policy?
Reduce murder and armed robbery charges
What happened once the policy was put in place?
Convicted armed robbers continued to get an average of six years in prison
The impact was negligible because prosecutors has not been trading away weapons charges in the first place
They were tough on armed robbers and had not been letting them beat the system through plea bargaining
Why?
The criminal justice system is already pretty tough on serious offenders and reforms designed to close alleged loopholes primarily affect less serious categories of crimes and offenders
New York
What was the policy?
The law banned pleas to lower charges for anyone charged with a Class-A-1 drug offense
Anyone charged with a lesser drug felony could not plead to a misdemeanor
What was the goal of the policy?
Get harsher on people selling drugs
What happened once the policy was put in place?
Decreased number of indictments
Case leakage – cases are being dismissed
Why?
Certainty/severity and punishment
Summary
Alaska
Cases moved quicker
If you went to trial, you received a harsher sentence
Firearms
Having an effect of lesser group of offenses
Drugs
Plumet certainty in punishment
Structure of Criminal Law
The guilty hand, moved by the guilty mind, under the required circumstances that sometimes causes a bad result in the absence of a justification or excuse
Guilty hand
Doing part of the crime
Actus Rea
Guilty mind
Mental states
Mens reus
Criminal law relies on definitions of different mental states to determine (a) whether a crime occurred at all and (b) the severity of the crime
Moved by
Concurrence requirement
Guilty mind must:
Exist at the moment the guilty hand moves or exists
Cause the guilty hand
Required circumstances
AKA attendant circumstances
Specific contexts that must be present for a crime to be committed
Not all crimes have these
Ex: is going into an apartment when the door was ajar to see if your neighbor is clean and taking a ring you see considered burglary?
Breaking and entering the dwelling of another with the intent to commit a felony or larceny therein
No, its not burglary because you don’t have a guilty mind
Sometimes causing a bad result
The vast majority of crimes don’t require a bad result
Ex: homicide
Requires a death
If a crime does require a result, 2 things must exist:
The result must occur
Bad result must be caused by the guilty hand
In the absence of a justification or excuse
Justification
Imagine society clapping for you when the defense occurs
No crime occurs because you were justified in your actions
Ex: self defense
Excuse
Excused from criminal liability, albeit for reasons not that society largely views as “good”
Concessions to human fragilities
The Criminal Process
Starts with an investigation which will culminate in an arrest
Once charges are brought (based on probable cause) the prosecution files a charging document (aka information, indictment, criminal indictment, criminal charge) outlining the charges against the defendant
Filing of the charging document initiates the criminal court process
Formal check on probable cause by the finder of fact (judge or grand jury)
Defendant will be able to plea
Idealistically, this process will end in a trial
At this trial, the defendant can
Confront evidence against them
Cross examine witnesses
Present evidence
Testify
At this trial, the defendant is presumed innocent and the prosecution bears the burden of proof on all elements of charges
Defense doesn’t have to present evidence
Ex: breaking and entering dwelling of another within intent to
All separate charges have to be proven beyond reasonable doubt
In jury trials, the jury is the finder of fact
When a jury is used
The judge will instruct the jury on the law
Jury will apply the law
If a jury finds a defendant not guilty
State did not meet their burden of proof
After the trial is over, both sides can appeal
But the grounds to appeal are limited usually to whether the law was applied correctly
How does this work?
Appellate courts do
Require parties to identify the specific legal issue that the appellate court must consider
Commonly referred to as the procedural posture
Common Procedural Postures
Error in jury instructions
Jury relies on the judge to correctly define the crime
Error in jury instructions poisons the jury’s deliberation
Motion to dismiss before the trial
Usually directed at the charging document
The charging document should include
List of crimes accused
Specific allegations
The statutes broke
Motions to dismiss during trial
Motions after evidence has been presented
Argument is that no reasonable juror could find this charge to have been proven beyond a reasonable doubt
Can be submitted both before and after a verdict is returned
Burden of Proof
No reasonable juror could have found the defendant guilty even if one gave the prosecution the benefit of the doubt of every reasonable inference that could be drawn in its favor
Evidentiary Rulings
Relevance
For evidence to be admissible, it must be relevant to the criminal charge
Theories of Punishment
Retribution
We punish people
Proportionately
Because they are morally deserving of blame
Pure retribution rules out punishing people based on grounds other than just desert
Humanity principle
Meaning that retributivists reject punishing one to keep others safe
Ways to think about just deserts
Choice-based retributivism
You deserve to be punished because you chose to hurt others
Ex: Schizophrenia guy kills person but thinks he’s killing an alien invader
Could argue he is not to blame
Harm-based retributivism
You deserve to be punished in response to the harm you caused
Ex: Schizophrenia guy kills person but thinks he’s killing an alien invader
Liable because he still did it
Ultimately choice-based retributivism can argue for increased liability for an act, but decrease liability for an actor
This is a non-utilitarian or non-consequentialist theory of punishment
We don’t care about deterring future crime, incarcerating, or incapacitating to save others from victimization
We do care about punishing
Deterrence
2 primary theorists
Cesare Beccaria
Jeremy Bentham
Purpose of punishment is to provide incentive for people to obey the law
Assume that people are rational
Absolute deterrent effect
Number of crimes prevented divided by the number of crimes that would’ve occurred
Marginal Deterrent Effects
Comparison of effectiveness between one type of threat and another
Channeling Effect
Laws based on deterrence may simply move behavior elsewhere
They stop
Move states
Traveling to get something
Partial Deterrence
Threat of a legal penalty results in a change in behavior but the behavior is still illegal
Requirements for deterrence to be effective
Swift
Certain
Severe
Known
Stigma associated with law breaking
General Deterrence
Punishing someone to deter someone else
What do we know?
Certainty and Swiftness are more important than severity
Effects differ by mental states and crime types
Instrumental crimes- planned and thought out (more deterrence)
Expressive crimes- heat of the moment (less deterrence)
Committing crimes in public is easier to deter than in private because there might not be a witness or accessibility
Effects differ by individual characteristics
2-week jail time vs 4-month license provocation
Deteriorate over time
See a cop on the highway and slowing down but speeding back up after a mile of following the speed limit
Specific Deterrence
We punish someone to deter themselves
Ethics in Deterrence
Kant would argue that deterrence, particularly general deterrence, is unethical
Freidman’s Deterrence Curve
Incapacitation
Justify punishment on the grounds that it physically stops people from committing crime against others
Focused on time period in which they are involved in criminal justice
Losing ability to stop crime when not being supervised
What do both of these theories have in common?
Justify punishment by want to decrease crime
Could deterrence or incapacitation justify punishing an innocent person?
Yes, using them as an example to avoid crime
Could deterrence or incapacitation justify punishing who you know would never offend again?
Yes, can’t make a death diagnosis think that they can do whatever they want
Retribution would say regardless of age, you made the decision to commit a crime
Could deterrence or incapacitation be used to justify punishment for someone with no criminal intent?
Yes, even if you didn’t know you did it you can still be liable for it
How are these theories used in practice?
Ex: Kim, 85-year-old, commits 3 robberies in the last 3 months because she believes Mars is sending invaders
Defense: lacks guilty mind
Prosecution:
General deterrence- not allow anyone else to use that defense
Incapacitation- protect society
Retribution- they deserve it because you told them many times
Other Utilitarian/Consequentialist Theory of Punishment
Rehabilitation
Purpose of punishment is to get people into programs or education that will make them less likely to commit crime in the future
Rehab could support quite broad criminal liability standards
Rehab can be used to argue against punishment altogether
U.S. Punishment
Historically unprecedented levels of incarceration
Internationally high levels of incarceration
3 primary institutions of penal confinement
Federal Prisons
Federally funded
Federal defendants
Types of offenders
Drug trafficking
Fraud
Weapon offenses
Immigration
State Prisons
State funded
1 year+ incarcerated go to prison
Local Jails
Funded by counties
Types of inmates
Less than a year (misdemeanors)
Awaiting trial
On any given day, the number of people in local jails is about 50% of those in state and federal prison
Just because the local jail population is lower than the state prison population, more people go in and out of local jails than in state prisons because of the sentence
Why is it hard to get an accurate number of local jail population?
Lots of turnover
On any given day, 7 million people under correctional supervision
2.3 million in prison/jail
1.7 in prisons
600k in jails
5 million on community supervision
Causes of Mass Incarceration
Level of Crime in society
Large increases in crime from early 1960s to late 1980s
1990- crime falls
Divergent trends for incarceration
Growth in incarceration proceeded by decade of increase in crime
When crime declines in the 1990s, incarceration stays high and keeps rising
What does this mean?
Crime may explain the initial increase in incarceration but, the rise in incarceration cannot only be due to crime
Changed Response to Crime
We start to use prison more often especially for those convicted of drugs
We start to send people to prison for longer periods of time especially for violent offenses
Ex: 1986- 110 people sentenced to prison for 3 years
1987- 10 people sentenced to prison for 3 years
1988- 5 people sentenced to prison for 3 years
Overall you will still see an increase even though every year, the amount of people going to prison goes down
Policy Phases
Phase 1 – Increase Certainty and Fairness in Punishment
1970s-1980s
Bipartisan support for policies such as mandatory sentencing guidelines and the elimination of parole
Right- viewed parole as soft on crime policy
Left- viewed parole as biases in parole decision-making
Ex: Brian has a company selling cool stuff with this logo 😊 Eric steals Brians logo and uses it to defraud others for millions
Based on a chart of what Eric did and his criminal history, there is a mandatory sentencing the judge needs to follow
Ex: trafficking crack cocaine gives statutory maximum of 1 year leaving you with 0-12 months in prison
Phase 2 – Ratchet up legislature punishments
Punishments for offenses begin to get harsher
Mandatory minimum
3 strikes laws
Habitual offenses
Phase 1 makes it hard for the judiciary to get around legal punishments
Phase 2 increases all punishments
War on Drugs as Explanation for Mass Incarceration
When did the war on drugs start?
Nixon speech in 1971
Reagan speech in 1982
This is a much too simplistic question given America’s federalist mode of government
Every jurisdiction fought the war on drugs with varying intensities at varying times in varying ways
What role does the federal government have over local law enforcement?
Grants (giving states money)
Withholding of existing funds
➢ Implications of the war on drugs
➢ Issues with war on drugs as a scope theory for mass incarceration
➢ Perspectives on a world where drugs are legalized, or at the very least heavily decriminalized