Untitled Flashcards Set

10/31- Exam 3

Courts

Introducing The Prosecutor and Defense Counsel

Prosecutors/District Attorney, Roles

• 1. Legal

  • Cooperates with police to investigate violations of the law 

  • Determines the charges

  • Interviews witnesses, talks with victims

  • Reviews applications for warrants and subpoenas

  • Represents state/government in pretrial hearings and procedures

  • Enters pleas agreements

  • Tries criminal cases

  • Recommends sentences, represents government during appeal process, if any 

• 2. Bureaucratic

  • Maintains standards of conduct among staff in office

  • Manages operations, supervises activities of ADAs

  • Allocates resources and assigns cases 

• 3.Political

  • Develops programs, legislation for law and CJ reform

  • Public spokesperson for the government on law issues in general

  • Popular election/elected officials 

Prosecutor’s Power of Discretion

• 1. Determines the charges

• 2. May decline to prosecute a case

• 3. Initiates action for criminal litigation

• 4. May stop the charging process at any time

• 5. May request the court to dismiss charges 

Prosecutor Decides Not to Charge, The Factors

• 1. Insufficient evidence

• 2. Witness problems

  • Witness was cooperative, but no longer are

  • Inconsistencies 

• 3. Guilty plea to another charge/case 

• 4. Due process problems

• 5. Referral for prosecution elsewhere

• 6. Deserving defendant 

• 7. Victim participation 

The Effect of Race and Gender on Prosecutors’ Charging Decisions 

Prosecutor Pursues Charges

• Misdemeanor cases:

  • Complaint- sworn written document to a court by the police and/or prosecutor alleging the individual committed the crime

    • Criminal charge, date, place, and circumstance 

• Felony Cases:

  • Indictment- formal written criminal accusation given by a grand jury stating the allegations (crime) for which the defendant is required to stand trial

    • Grand Jury- a group of citizens chosen to hear the testimony in secret

• In other jurisdictions…

  • Information- written accusation by the prosecutor setting the charges against a defendant

Defense Counsel

• Legal counsel for the defendant in a criminal case who represents the defendant from arrest to final appeal   

• Duties:

  • Investigates the crime

  • Reviews police reports

  • Insures constitutional safeguards

  • Interviews client/defendant,police, witnesses, victim

  • Discusses matter with prosecutor to gain insight into the strength of the state’s case

  • Represents client at all procedures (arrest, bail, pleas to appeal)

  • Enters plea on behalf of client

  • Prepares case for trial and represents clients during that trial

  • Files and argues any motions with the court

  • Provides assistance to defendant in sentencing stage

  • Determines appropriate avenues for appeal, if any

Indigent Defendant

• Indigent Defendant- a poor defendant without funds to hire an attorney for his or her defense (entitled to counsel until 6th and 14th amendment) 

  • Gideon v Wainwright

Types of Defense Counsel

• 1. Privately Retained Counsel

• 2. Assigned Counsel 

  • Jurisdiction assigns indigent criminal cases to private attorney on a systematic or ad hoc basis 

• 3. Public Defender

  • Representation is provided by a public non profit organization with full or part-time staff of attorneys and support personnel, including: investigators, paralegals, social workers, etc. 

• 4. Contract System

  • Jurisdiction enters into a contract with an attorney, a group of attorneys or entire firm to provide presentation in some or all indigent defendant cases 

Assigned Counsel

• Oldest and most widely used method in the history of American jurisprudence

• Operates in about 52% of U.S. counties

• Type of system used in most smaller jurisdictions

• Attorneys are customarily chosen from a judge’s list and desire to be chosen 

Contract System

• Growing in prevalence (operates in about 11% of U.S. counties, across 6 states)

  • Examples:

    • Fixed-Fee, All Cases

    • Fixes-Fee, Specific type of case

    • Flat-Fee, Specific number of cases

    • Flat fee per case

    • Hourly fee with caps

Public Defender System

• Operates in about 37% of U.S. counties 

• System found in urban counties (due to the high number of indigent defendants, it is the more efficient system– cost, assignment, and processing) 

• Represents the largest number of indigent defendants

• Best System: Public Defender 

  • Reasons Why:

    • 1. Compensation is minimal

    • 2. Criminal cases are handled sporadically in other systems

    • 3. Funds are limited to provide legal services in other systems (to conduct investigations, obtain expert witnesses, etc.)

11/14

Courts

Pretrial Issues and Hearings

Preliminary Hearing

• Preliminary Hearing- Determination of sufficient evidence to show probable cause that the defendant committed the crime (replaces the grand jury) 

• Reasons why defendants sometimes waive their rights to preliminary hearings:

  • 1. Defendant decides to plea guilty

  • 2. Defendant wants to speed up the criminal process

  • 3. Defendant wants to avoid publicity, expense 

Arraignment, Types of Pleas

• 1. Guilty (90%) 

  • To accept guilty plea, judge must: 

    • State defendant has waived his/her constitutional right to trial

    • Believe there is a basis or plea and that the plea is voluntary

    • Inform defendant of his.her right to counsel during plea process 

• 2. Not Guilty

  • Entered two ways:

    • 1. Verbal statement by defendant or attorney

    • 2. Defendant stands mute, and court/judge enters not guilty pleas for defendant 

• 3. No Contest

  • Plea guilty without fear of civil suits 

Bail, Jail, or Released Without Condition

• Factors:

  • 1. Seriousness of charge

  • 2. Offender’s criminal record

  • 3. Whether or not defendant has local address

  • 4. Previous failures to return to court proceedings

• Q: Does the Constitution guarantee a defendant the right to bail?

• A: No, the 8th Amendment to the Constitution prohibits excessive bail 

Bail

• Bail- Monetary among for, or condition of, pretrial release, usually set by a judge at court appearance

• Purpose- to ensure return of the accused 

• Cash Bail Reform

  • Virginia, New Jersey

  • New York- end cash bail in non-felony cases

  • California- first state to eliminate cash bail system (historical highest bails in U.S.)

  • Reasons:

    • Unconstitutional (bias against the poor)

    • Causes unnecessary demand in jails/CJS via pretrial detention

  • Replacement System: using an algorithm or assessment tool

    • Example: Public Safety Assessment (PSA)- scores based on two factors; 10 likelihood person would commit another offense; 2) likelihood person would fail to return to court

    • Algorithm is being used in following states: Calo, Texas, Illinois, Kentucky, NJ, NM, DE, PA, NC, OH, WA, and WI  

Jail (Detain Defendant)

• Types:

  • 1. Prevention Detention– practice of holding dangerous defendant before trial and the denial of bail

  • 2. Pretrial Detention– practice of holding defendant in secure confinement prior to trial

  • Released on own Recognizance- non monetary condition for pretrial release 

Outcomes of Criminal Process

• 1. Plea Bargaining (90%)

• 2. Pre-Trial Diversion (5% or more)

• 3. Criminal Trial

  • What a prosecutor looks for in a trial case

  • Issues to cover:

    • 1. The ideal case

    • 2. Constitutional rights

    • 3. Jury Selection

    • 4. Verdict 

Case Outcomes

• Factors influencing Prosecutor’s pursuit of cases (and case outcomes):

• 1. Seriousness of the offense

• 2. Criminal history of defendant

• 3. Cost of prosecution to the criminal justice system

• 4. Heavy caseloads

• 5. Strength of prosecutors case

• 6. Avoid undue harm to the defendant

• 7. Willingness of defendant to cooperate with law enforcement, prosecutor, and/or diversionary efforts

Plea Bargaining

• Plea Bargaining-The discussion between the defense counsel and prosecutor by which the defendant agrees to plead guilty for certain considerations/concessions

• Factors considered in plea bargaining:

  • 1. Caseload of the prosecutor

  • 2. Strength or weakness of the case

  • 3. Offense type

  • 4. Type of defense counsel

  • 5. Defendants prior record

  • 6. Complainant

  • 7. Personal characteristics of defendant (age, race, bail status)

Plea Bargaining, Types

• 1. Implicit Bargaining (going rate)

• 2. Bargaining Over Charges

  • Concurrent charges

  • Dropping charges

  • Altering charges

• 3. Bargaining Over Sentence

  • Sentence reduction or recommendation; concurrent vs consecutive sentencing for multiple offenses 

What Happens When the Plea Agreement is Reached? 

• When both sides agree on a plea bargain:

  • The plea bargain agreement will be clearly stated on the court record before a judge

  • Judge will issue the agreed upon sentence

  • Both sides are legally required to follow the terms of the plea bargain and the agreed upon disposition of the case

Plea Bargaining, Advantages

• 1. Avoids time, expense, and work of courts 

• 2. Psychological satisfaction for victim when offender pleas/admits guilt

• 3. Avoids publicity associated with a trial (for judge, prosecutor, victim, witness, and defendant)

• 4. Police “clear” case

• 5. Police avoid time in court

• 6. Prosecutor gets a “conviction” 

Plea Bargaining, Disadvantages

• Innocent defendant: pleas guilty to a  lesser charge in order to avoid the risk that he/she will be found guilty at trial 

• Defendant: once the defendant signs a plea agreement and agrees to plead guilty they will have no opportunity for an appeal at a later date

• Attorneys and judges argue that plea deals

  • Lead to poor police investigations

  • Attorneys who do not take the time to properly prepare their cases

• Attorneys and judges rogue that plea bargaining is unconstitutional because it takes away a defendant’s constitutional right to a trial by jury 

Factors that Influence Pretrial Diversion

• 1. Offense type

• 2. Special circumstances

• 3. Defendant (1st time offender)

• 4. Willingness of defendant to cooperate with diversionary program

• 5. Impact of diversion on community

• 6. Victim consideration 

11/19

Courts 

The Criminal Trial

The Criminal Trial

• A Review:

  • 1. “Strong, solid, good case” for trial

  • 2. Constitutional rights

  • 3. Jury Selection

  • 4. The verdict

Adjudication

• The determination of, and pronouncement of a judgment in a criminal trial

• The formal adjudication of the facts 

Ideal Case

• Prosecutors Ideal Case for Trial:

  • 1. Seriousness of the offense

    • Injured victim, weapon use, felony

  • 2. Evidence

    • Types: 

      • Real- objects of any type (weapon, clothing, fingerprints, DNA)

      • Testimony- Sworn statements, witnesses

      • Direct- statements based on observations by eyewitnesses to the crime

      • Circumstantial- information the implicates 

  • 3. Dangerous and culpable defendant

    • Prior record, weapon used

  • 4. “Stand-up” victim

    • A person who the jury will consider is undeserving of victimization

    • Believale

    • Consistent in statements and testimony

Constitutional Rights of the Accused

• 1. Right to confront witness (6th Amendment)

  • Right of a criminal defendant to see and cross-examine all the witnesses against him/her

• 2. Right to a jury trial (Supreme Court ruling in Duncan v. Louisiana)

  • 6th Amendment guarantees right to jury trial, defendant can waive that right 

• 3. Right to legal counsel at trial

  • Bill of Rights protects citizens against federal encroachment

  • 14th amendment provides no STATE shall deprive a person of life, liberty, or property without due process of law (ex: due process clause)

  • 6th Amendment required right to counsel in federal court

• 4. Right to self- representation (Supreme Court decision in Faretta v. California 1975)

  • Defense of “pro se” (Latin for “himself”)

    • Lenny Bruce (# of obscenity trials)

    • Ted Bundy– serial murder; 1979 trial

      • Confessed to killing 36 women 

      • Executed in FL, 1989

    • Colin Ferguson: mass murderer who was convicted of murdering 6 people and injuring 19 others on the Long Island Rail Road in Garden City, NY

      • December 7, 2003: Ferguson pulled out his gun and started firing as passengers. He killing 6 and wounded 19 before being stopped by 3 of the passengers: Kevin Blum, Mark McEntee, and Mike O’Connor

      • Trial– Notables: fired his defense counsel; insisted on representing himself; questioned his own victims in the stand

      • Convicted and currently serving his sentence of 315 years and 8 months to life at the Attica Correctional Facility in NY

      • Carolyn McCarthy, elected to the Senate after running on gun control platform. Her husband (Dennis) was killed on the subway and her son (Kevin) was severely injured

• 5. Right to a speedy trial

  • 6th Amendment states right to speedy trial in federal prosecution (applicable to states via Klopfer v. North Carolina 1967)

    • Requires indictment/information without 30 days of arrest 

    • Trial by 70 days in Federal Court; 90/120 days for States

    • Example- Casey Anthony (first degree murder charge; 2 other charges)-4 yrs in jail prior to trial; credit for jail time; 1 year for each time she lied to the police (max punishment for false statements to police) 

• 6. Protection against self-incrimination 

  • (5th amendment) 

Jury Selection

• Eligibility: voter registration; drives license or residency

• Questioning by prosecutor and defense attorney to reveal juror bias

  • Purpose- objective jurors 

• Avenues to reject jury- 2 ways:

  • 1. Challenge for cause:

    • Challenge against prospective jurors based on that particular jurors ability or willingness to reach an impartial decision in the case 

  • 2. Peremptory Challenge:

    • Challenge in the form of a request to the court to exclude prospective juror where no reason is states or disclosed

      • Past abuses when jurors had minority status 

      • Limited to 6 (3 for prosecutor and 3 for defense attorney) 

The Verdict– Finding by a Jury or Judge

• 1. In Criminal Trials…

  • Beyond a Reasonable Doubt- standard of proof necessary in all criminal trials in order to adjudicate the guilty of the defendant

    • Conclusive and complete proof

    • Leaving no reasonable doubt

• 2. In Civil Trials…

  • Preponderance of the Evidence- standard of proof necessary in all civil trials 

    • Persuasive and convincing

    • Greater weight of evidence 

12/3

Courts

Judges and Sentencing

Judge 

• Judge- ensure justice and fairness in procedures

  • Hear allegations of the prosecuting and defending parties

  • Listen to witness testimony

  • Rule on the admissibility of evidence

  • Inform defendants of their rights

  • Instruct the jury

  • Question witnesses

  • Rule on motions presented by counsel

  • In criminal court, determine the guilty or innocence of criminal defendants and impose sentences on defendants found guilty

  • In civil cases, determine liability or damages

  • Set bail, trial date, and sentences 

Factors that Influence Sentencing:

• 1. Offense seriousness

• 2. Prior Record

• 3. Age- older defendants less of a threat to society

• 4. Sex- judges favor women in sentencing

• 5. Social class- harsher sentence for poor (inability to retain private attorney, afford bail) 

• 6. Race

  • No racial disparities in property crimes

  • Significant differences in violent crimes (particularly if victim is white)

• 7. Pretrial Release

• 8. Type of Defense Attorney 

• 9. Problems with Continuances

• 10. Structure of Sentencing Guidelines (Federal & State; Voluntary since 2005 supreme court ruling) 

Sentencing Guidelines: Types

• Flat- time Sentence- length of sentence is fixed by statute and cannot be changed by trial judge or parole board

• Determinate Sentence- judges are allowed to fix sentence within a maximum/minimum range set by legislation 

• Indeterminate Sentence- judges impose sentence within wider range and decision when to release inmate can be made by administrative agency (parole board) 

• Presumptive Sentence- Standard sentence set by legislation but the judges can vary sentences by offender’s crime and history

• Mandatory Minimum- minimum sentence set by legislation; no parole or conditional release before that set period of time 

Corrections

The Historical Look

Penitentiary

• Latin word for “remorse”

• Quakers of Philadelphia came up with the concept of penitentiary

  • Purpose was to have criminal reflect on their crime and become truly sorry 

Eastern Penitentiary System

• Took down a cherry orchard to build it, so located in Cherry Hill, PA

• Opened in 1829 (not finished until 1835)

• Promoted EXTREME isolation

Two Competing Models:

• 1. The Pennsylvania “Segregate” Model

  • Solitary confinement- must remain in cell at all times

  • Emphasis on inmate ability to reflect on criminal past and gain spiritual insight

  • No talking to other inmates

    • Hooded while walking through prison

    • Reduced contact

  • Read the Bible and repent

  • Reform through personal conviction 

• 2. Auburn Prison (In NY)

  • 1821- New System of prisons called the “Auburn System”

  • Inmates worked 10 hours a day, 6 days a week

  • Gives a sense of purpose, discipline, and order

  • NY’s Auburn “Congregate” Model

    • Inmates had no external contact

    • Inmates housed in small cells and confined on the Sabbath and drink non-working hours

    • Inmates labored in factory-like shops during working hours 

    • Inmates prohibited from talking to other inmates

    • Repentance and reform through harsh labor and external discipline

  • Tocqueville’s critique: terror in the silence 

• Q: Which prison system became the model for future prison development? Segregate or Congregate model? 

  • A: Auburn System- Congregate 

Corrections

Terms, Definitions, and Types of Correctional Facilities 

Key Terms and Definitions

• Jails- local institutions designed for offenders who are serving sentences less than one year, housing minor offenders, or awaiting trial or sentencing 

• Reformatories/Youth Centers- institutions which house youthful offenders (felons) often between the ages of 15-18 

• Prisons/ Correctional Facilities- a state or federal correctional institution for incarceration of offenders for terms of one year or more

  • 1. Minimum Security Prison

  • 2. Medium Security Prison

  • 3. Maximum Security Prison 

Jails, Purposes

• Received individuals pending arraignment, awaiting trial, conviction, or sentencing

• Red-admits probation, parole, and bail bond violations

• Temporarily detained juveniles pending transfer to juvenile authorities

• Holds mentally ill persons pending their movement to appropriate health care facilities

• Holds individuals for the military, for protective custody, or for contempt of court 

• Releases convicted inmates to the community upon completion of their sentence

• Transfers inmates to federal, state, and other authorities

• Houses inmates for federal, state, or other authorities because of overcrowding of their facilitates

Q: What are the causes of death in jail?

• Natural causes (48%)

• Suicide (32%)

BJS 2005 Report on Suicide:

• 51% attempt suicide within first 24 hours

• 48% of suicides in jail occur within first week

  • Same day- 14%

  • Next day- 9%

  • 2-7 days- 24.9%

• Location

  • Inmate’s call/room- 80%

  • In holding area- 9.6% 

Prison Types and Definitions

• 1. Minimum Security Prison

  • Least secure facility that houses white collar and non-violent offenders, maintains few security measures, and has liberal visitation policies

• 2. Medium Security Prison

  • Less secure facility that houses mainly non-violent offenders, more contact with outside world than maximum security prison, and has programs 

• 3. Maximum Security Prison 

  • Most secure facility that houses dangerous felons and maintains strict visitation policies 

Minimum Security Facilities

• May be: small farms, road camps, or forestry camps

• Most likely located in rural areas

• House inmates considered non-violent, low on internal and external risk (no escape risk)

• Facilities have been created mainly to serve economic needs of the community

• Most facilities do not provide education, vocational, or counseling-like services other than work

Medium Security Facilities

• Largest number of facilities

• Exposes inmates to a variety of programs intended to help them become useful members of society 

• Predominate consideration is security:

  • Perimeter security in the form of masonry walls, double cyclone fences

  • Electronic devices and guards 

Maximum Security Facilities

• Facilities are geared to the fullest possible supervision control

• Surveillance of inmates at all times

• Usually surrounded by masonry walls, double fences, gun towers, electronic sensors, and good lighting

• Inmates include: persistent property offenders, troublesome inmates, violent offenders, & individuals considered to be dangerous because of the nature of their offenses

• Maximum security facilities emphasize:

  • High perimeter security

  • High internal security

  • Operating regulations that curtain movement and maximize control 

12/5

Corrections Around the World

• US has the high incarceration numbers around the world

Causes of Prison Growth

• Pre-1970s: offender based sentencing

• 1980s-today: tough on crime

  • Politicization of crime- use of crime issues as a political tool to advance agendas; politics of policing, policy & law decision making

  • Growing conservative climate

  • Crime Rates: American individualism- distrust of government, individual freedoms, individual pursuits over collective needs 

Punishment Changes…

• Moves us from an offender-based to an offense-based system

• 88% of increase in incarceration from 1980-1996 is due to changes in punishment

  • 51% results from an increase in the number of people doing time

  • 37% results from an increase in term length 

Did Prison Growth Cause the Crime Drop?

• Ways an increase in incarceration could lead to a decrease in crime:

  • Rehabilitation: fixing criminals

  • Incapacitation: stopping current criminals

  • Deterrence: stopping future criminals 

• 1993-2001: incarceration decreased the crime rate 2-5%

U.S. Statistics and Facts

• At least 95% of all state prisoners will be released from prison at some point

• 2.3 million prisoners were under the jurisdiction of either a State of Federal facility, or local jail, by 2019

• By the end of 2000, 16 states had abolished discretionary release from prison by a parole board for all offenders, and another 4 states for specific violent offenses

• During the pandemic, 41 states were operating at 75% or more of their capacity, at east nine states and the federal system are over 100% capacity 

Overcrowding

• That would suggest that as many as 562,249 (40%) of the 1,405,622 persons held in state prisons and 74,922 (36%) of the 208,118 persons held in federal prison were housed in overcrowded centers

• Eliminating the present overcrowding would require building 425 new prisons, each at a cost of 75 million dollars

Incarceration in the U.S.

• 1 in every 99 adults in the U.S. is incarcerated

• 1 in 9 state government employees works in corrections

• States spent 44 billion on corrections in 2007 

  • 1 of every 15 state general fund dollars spent

Reasons for Declines in Mass Incarceration

• States have seen a reduction in prison admissions and length of sentence

• Why?

  • 1. Decrease in crime rates leading to fewer felony convictions

  • 2. Scaling back the “war on drugs” policies

  • 3. Increased interest in “evidence based approaches”

  • 4. Growing concern over fiscal cost of corrections and impact on other state priorities 

After Incarceration

• Successful reentry into society is dependent on inmates ability to meet 6 basic life needs… livelihood, residence, family, health and society, criminal justice compliance, and social/civic connections

Job Opportunities

• Consider barriers to employment: 87% of employers conduct background checks, and recent surveys indicate that most employers are3 unwilling to hire applicants who have served time in prison

• Many states restrict returning citizens from public employment

• Studies have found that approximately 60% of formerly incarcerated individuals remain unemployed one year after release

• For those who do find work, the resultant pay cuts are staggering: formerly incarcerated men take home 40% less pay annually 

Recidivism

• The rate to which people return to prison

• Key indicator of the performance of the CJS