Criminal Procedure: Target of Reform

The Complexity of Criminal Justice Reform

Laws are expected to be carefully aimed and influential, but social scientists often find that "nothing works," or laws even worsen situations.
The issue often lies in the evaluations of the laws themselves rather than the laws themselves.
A law's success is hard to determine when its intended purposes, how it's put into action, and the results it brings are complex or contradictory, especially in multifaceted social systems.
The criminal justice system, for example, faces the difficult and sometimes conflicting tasks of convicting the guilty, protecting the innocent, ensuring fairness, and representing justice in a democratic society.
The criminal justice system often struggles to meet these expectations, leading to frequent calls for reform. However, achieving all goals perfectly is impossible.
Incremental change is more realistic, but even that is challenging if critics disagree on the desired outcomes.
Conflicting interests and established legal values can hinder the complete success of reforms.
It is important to study reforms, understand their achievements and failures, evaluate the observed changes, and promote successful methods.

The Criminal Courts

This book focuses on the criminal courts and how they adapt to laws designed to regulate plea bargaining.
Courts are decentralized and semi-autonomous, with organizational differences across local jurisdictions.
Predicting court behavior regarding new laws is difficult due to varying organizational structures and procedures.
While substantive criminal law is consistently applied, criminal procedure can differ.
Court procedures are "secondary rules" that regulate how laws are administered.
Primary rules consist of laws prohibiting or requiring certain behaviors and are directed toward all citizens.
Secondary rules govern government officials and aim to streamline decision-making, limit discretion, and ensure accountability.
Examples of secondary rules include those concerning guilty pleas and sentencing.
These rules are continuously challenged by litigants and dissatisfied citizens, but changes on paper do not guarantee changes in practice.
Procedural rules must be enforced with consideration of organizational structure and dynamics, and courts can be resistant to change.
Courts differ and are not always organized based on the Weberian bureaucratic model of most modern corporations and public agencies.
The courthouse work group consists of independent professionals who exercise personal judgment.
Decisions are influenced by legal rules and shared norms, not orders from above.
Although the judge is responsible for final decisions, their role is not that of a "boss."
Court personnel are in constant communication and interact with each other, which helps influence change.
Change is achieved through providing good reasons for new approaches rather than enforcement.
Courts are insulated from organizational pressures due to the adversarial system, where different organizational players bring their perspectives.
The adversarial system includes prosecutors, judges, police, defenders, and probation workers.
Courts may accept change because their primary task is to administer the law.
Legal workers are aware that they are bound by the law and must follow it.
Judges will attempt to comply with laws after they have been challenged and analyzed, even if halfheartedly.
Organizational actors have personal reasons to accept or resist change.
Change in court personnel's work patterns does not occur immediately when new legislation is enacted.
A complex interplay of organizational forces influences the extent of change.
Factors include the varying strength of courthouse professionals, patterns of rule communication, the radical departure of the new rule from accepted practice, and the strength of outside interest groups.
Court professionals can be encouraged to change their thinking, but gradual changes may not align completely with reformers' desires.
The process of change is long-term and incremental, described as "racheting."

Ideology and Criminal Justice

Understanding the ideological context is crucial for studying legal reform. Policies are the outcomes of ideological choices.
It’s challenging to describe ideology, often relying on "liberal" and "conservative" labels.
Liberals generally assume people are inherently good, government should help those in need, and power should be distrusted.
Conservatives generally assume people are inherently bad but believe that government and institutions provide social control.
These are simplified descriptions, but they provide a starting point for understanding values related to criminal justice policies.
Walter B. Miller refers to these values as "the hidden agenda of criminal justice."
Activism around crime issues arises from assumptions about how social life should be.
Philosophical underpinnings for conservatives involve order, while liberals focus on justice.
Conservatives support substantive and procedural laws that uphold an orderly society but distrust laws empowering those who are disorderly.
Liberals prioritize justice for the individual and support procedural protections to regulate government actions.
Liberals view the criminal justice system as somewhat tangential to crime control, emphasizing social conditions.
Herbert L. Packer describes the most important value to liberals as due process and to conservatives as crime control.
Both groups supported sentencing reform and plea bargaining reform for different reasons.
Before the 1970s, the justice system focused on rehabilitation, with agreement from liberals and conservatives.
Liberals support rehabilitation so that each offender has the opportunity to turn from a life of crime and it is based on the individual’s personal circumstances; conservatives support rehabilitation because it educates criminals and the general public on social life based on law and order.
Later, focus shifted to characteristics of crimes and certainty of punishment due to the realization that it was not always possible to change the behavior of convicted criminals.
The public became concerned about criminal procedure due to the perceived revolving door of criminal courts.
Conservative politicians opposed lenient treatment, as seen in California's Proposition 8 in 1982, which was a wish list developed over two decades of advocating for their own criminal law agenda.
Reforms like Proposition 8 shifted the focus from rehabilitation to incapacitation.
Criminal procedure holds symbolic power. The Supreme Court's Miranda and Mapp cases applied exclusionary rules, and the Court supported prison reform, but they reflected a willingness to acknowledge the human dignity of criminals while still trying to restrain them.
Rehabilitation was the prevailing view of the 1960s, with some suggesting that crime was a manifestation of mental imbalance.
Under indeterminate sentencing, parole boards released inmates deemed rehabilitated, typically after serving about a third of their sentence.
Parole was criticized in the 1970s, with changing views on penal philosophy; rehabilitation was attacked as ineffective and a sugar-coated rationale for stark incapacitation.
Public opinion in 1972 showed that the majority believed the courts were too lenient, yet they supported rehabilitation, showing the public expected officials to be tough on offenders until they “shaped up”.
By the late 1970s, public debate emphasized frustration with the justice system's inability to stop rising crime.
The Warren court cases and accumulating stories about criminals benefitting from them produced criticism of judges, prosecutors, and prison authorities.
In the late 1970s in California, conservative lawmakers introduced harsher laws, including the Determinate Sentencing Law in 1977.
Determinate sentencing involves a definite sentence length for each offense conviction, with the opportunity to alter because of mitigating or aggravating factors.
Liberals and conservatives supported the Determinate Sentencing Law to reduce disparity among sentences and eliminate the parole board.
Conservative lawmakers sought a detailed overhaul of criminal law and procedure, not just sentencing policies.
They targeted "legal technicalities" preventing conviction of factually guilty offenders.
These ideas are common among law-and-order ideologues; in California, reformers focused on court procedures leading to sentencing, passing their agenda into law.
Proposition 8's planning, passage, and effects should be studied carefully due to California's influence on other states.
The people who drafted Proposition 8 served broad interests, both personal and ideological, which involved understanding their motives based on their public statements and writings.

Politicians or the Public: Who Pushes the Pendulum?

The campaign to pass the "Victims Bill of Rights" introduced criminal procedure into popular debates.
Voters' feelings about crime and punishment and court procedures applied to accused criminals' cases were factors in deciding whether to vote for Proposition 8.
Crime doesn't spontaneously become ballot measures unless citizens are organized to translate their discontent into concrete demands.
Many states attempted to overhaul court procedures through initiatives or legislation, with a growing use of the phrase "victims' rights."
The political process surrounding anticrime legislation may be politicians' responsiveness to public concerns, opportunistic manipulation of citizens' fears, or both.
James Q. Wilson links the rise in crime rates and fear of crime with law-and-order policies, where politicians responded to the public's demand for action by passing harsher legislation.
Other commentators suggest public discontent is exacerbated by politicians, and the goal of political campaigns around emotional issues is to arouse voters and then soothe them with new legislation, building the campaigners' political careers.
Stuart A. Scheingold suggests politicians are ideologues who work to pass law-and-order legislation because of their personal belief systems and enlist other citizens in a crusade against disorder.
These politicians may see themselves as responsive to public outcry, but over time, they actually shape and then inflame public dissatisfaction.
It can be difficult to excite citizens over specific court procedures. Public attitudes typically temper demands for law-and-order legislation.
When citizens became more concerned about "crime in the streets," legislators would begin to support more hard-line legislation.
Researchers collected public opinion data from 1955-1971, but they discovered that anticrime measures were passed before, not after, the public became highly concerned about crime.
There is no evidence that legislators respond to broad trends in public opinion. Instead, the California public did not initially demand that legislators do something about crime.
Legislators themselves introduced crime-related bills, and citizens later reported that they had become more fearful.
The 1977 Determinate Sentencing Law was supported by both liberals and conservatives.
There has been no direct connection between the rise in reported crime or fear of crime and any new anticrime laws passed by the state legislature.
Legislators refused to pass proposals to reform criminal procedure, the people who eventually drafted and promoted Proposition 8 had been regularly refused when they asked for new legislation.
Legislators and policy activists expressed their frustration in the media during the 1970s, bypassing the legislature in 1982 and taking their proposals directly to the voters.
Almost every element of Proposition 8 had already been presented and defeated in the state assembly.
Neither legislators nor judges responded to a public outcry, and citizens declined to recall Supreme Court judges.
Some politicians promote crime legislation regardless of public support, and others react to other politicians' maneuverings.
A public ground swell may develop in response to media coverage and fear rather than a spontaneous demand for law reform.
The public's general concern with crime does not signify that the average voter is preoccupied with the rational likelihood of being the victim of a rape, robbery, or burglary.
"Crime" represents a murkier, cultural phenomenon-disorder, distaste, pain, and, perhaps, frustration that government apparently does little to ease them.
Entrepreneurial politicians respond to what they believe the public should be demanding, transforming diffuse fears into concrete demands for action, and the "something" offered is overhaul of criminal procedure.
Without these politicians to frame the issue of procedural reform, it is doubtful that public concern with the issue would ever become focused.
Proposition 8's promoters had been enraged about crime long before opinion polls showed that fear of crime was increasing.
Most of the group who drafted and campaigned for the measure had begun their careers in the 1960s as crusading district attorneys or law enforcement officials.
Only seasoned lawyers and politicians could consistently explain a subject as complex as criminal procedure so as slowly to cause voters to become restive about court standards.
These politicians mobilized public opinion to support their own visions of ideal criminal law and procedure.
Political events, shifting ideologies, and a sustained anticrime agenda all combined to produce fertile soil in which the seed of Proposition 8 could be planted.
Proposition 8 politicians manipulated public opinion and provided leadership when the public then decided to do something about crime.

The Politics of Criminal Procedure

Organizations of disgruntled citizens may spontaneously emerge as advocates of new laws.
Complex changes in criminal procedure seldom begin with direct citizen activism and begin with professional activism.
Criminal procedure concerns rules of evidence, trial procedures, and sentencing options, and it is the bailiwick of lawyers and judges.
Professionals knowledgeable about criminal procedure bring pressure to bear on legislators or convince citizens to join them.
Proposition 8's conservative activists managed to focus the public's attention from crime as a general problem to frustration with how the criminal justice system handled the problem.
Criminal procedure became a political behemoth in California, and these conditions are not unusual.
California's Victims' Bill of Rights is typical of criminal justice reform legislation expected in the 1990s depending on current trends.