cjl4038 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”

• 6^th 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