Final Flashcards
(86 cards)
1
Q
Role Problems in Courts: Problems Judges Face with Fundamental Law
A
- Judicial Independence (Should be kept away from other branches of government who cannot influence it)
A. Tenure – Impeachment
B. Salary
a. Money can compromise independence
C. Jurisdiction - Judicial Sovereignty
Orders complied with – “No sword” to enforce – to back up your proclamations
“No Purse strings” ($) to enforce
Like judicial independence, it’s never a finished product - Judicial Review
Marbury v. Madison
Writ of Mandamus - “An order to another government official to do something. Dance! Dance!”
2
Q
Feeley’s “Process is the Punishment”
A
The process for adjudication of misdemeanors is more relevant punishment than the ultimate sentence handed down at the end of the trial.
Feeley contends that the pretrial process imposes a series of “price tags” of the accused, such as costs of paying bail, hiring an attorney, and losing work wages to attend court hearings.
Criminal Trials are not what they are portrayed to be in movies and on television. Most Crimes are minor, and dealt with swiftly.
3
Q
Feeley’s Key Questions
A
- How is criminal sanction administered?
Low visibility
Vast discretion - Substantive Justice – A Concern of the court actors?
- Why so little use of due process rights?
4
Q
Finding of Feeley’s Lower Criminal Court Field Research
A
1600 cases – 9 months – New Haven, CT.
- No Jury Trials
- Half of defendants had no legal counsel
- Jail detention in some cases longer than the actual punishment for the crime
- No Speed – Continuances
5
Q
Explanation of Patterns by Feeley
A
- Caseload hypothesis
a. Work of CJ demands that corners be cut - Bureaucracy
a. Actors set the interest of the organization ahead of its mission
i. But Feeley is dismissive of this hypothesis
6
Q
Feeley’s Preferred Explanation - “Market Account”
A
I still dont understand this card.
A. Courts are open systems, responsive to political winds
Patronage leads to court work, which establishes the Democratic Party
B. Substantive Justice – Right Outcomes
a. “Worth of a Case” negotiations
C. Transaction Costs
a. Due process is not free
7
Q
Courtroom Workgroup
A
Adversarial System
Actors of CJ Originate from Distinct Offices but Converge on a Common Workshop
Concern with preserving ongoing relationships
Normative expectations – sanctions
Key to structuring relationships b/w cj actors - organization dynamic
8
Q
Feld’s Thesis
A
Feld is an expert on Juvenile Court
Argues that juvenile court has been transformed from social welfare agency into a deficient criminal court.
Argues that juvenile court should be abolished and replaced by with an integrated criminal justice system that views the youth of the offender as a mitigating circumstance and that provides a “youth discount” at sentencing.
Social Control + Social Welfare
Abolish Juvenile Court
Juveniles into their system of “adjucation”
Criminological Triage
Divert Offenders
Keep juveniles in court
Law Violation/Deviance > Provision of Welfare Services
9
Q
Prosecutor
A
Concerned with “Legally Relevant” variables, which lead to “convictability” 1. Seriousness of offense 2. Prior Record Illegally Relevant variables 1. Characteristics about offender 2. Characteristics of victims
10
Q
Discretion and Charging Decision
A
Charging Decision - Initial decision whether to file charges, and what those charges should be
Conviction is not highest order, rather it is to seek and obtain justice
Bordenkircher v. Hayes (1978
To charge – probable cause
US v. Batchelder (1979)
“Unfettered” decision making in the charging process is not acceptable
This case illustrates the basic idea that prosecutors are allowed discretion in deciding which of multiple applicable statutes to charge defendants with. Even though the statutory scheme in this situation was curious, the discretion was not malicious or discriminatorily made.
Race – Religion “Arbitrary Distinction
Wayter v. US (1985)
Judicial Deference
11
Q
Prosecutorial Misconduct (Schoenfield)
A
Schoenfeld: 45% of wrongful convictions overturned by DNA
24% of overturned death penalty cases
This justifies an account of why prosecutors go ‘rogue’
12
Q
Heather Schoenfield’s Thesis
A
Motivation, Opportunity, Choice
“Agents of Trust”
Motivation is engage in misconduct is a result of prosecutors’ definitions of success, which are influenced by the reward structure and availability of techniques of neutralization. (Score Keeping Mentality)
Opportunities for misconduct arise because of the organization of the prosecutorial role and weak informal sanctions for prosecutorial behavior.
Decision to engage in misconduct depends upon evaluation of existing opportunities for rewards and risks, which is influenced by workplace subculture and values and beliefs.
13
Q
Powell V. Alabama (1932)
A
Powell v. Alabama (1932)
Incorporated 6th amendment right to counsel into the due process clause of the 14th amendment
Limited to capital cases only – must be given counsel when life is on line in trial
14
Q
Public Defender
A
Established in LA (1915) Progressive Era Paradigm Duplicate public funding or pros. with funds to criminal defense Scientific method of selecting excellent lawyers based on merit Efficiency Cost effectiveness Gregg Barak “In Defense of Whom?” Status Quo Ligitimacy is enhanced for CJ Abraham Blumberg Indigent Lawyers “Layer-client confidence game” “Double Agent” 'There is a conflict between making a dollar and providing counsel. You must make client believe that you are working hard, when in reality, you’re sitting around being lazy so that you can make enough money to make it worth your while' Money vs. Proper legal services
15
Q
Assigned Counsel
A
Local lawyers get on a list, judge chooses lawyer from list on a case by case basis
Lawyer compensated for work on the case
16
Q
Contract System
A
Force of the market to identify the most competitive legal services
Sends out bid to everyone – “What is your bid for services?”
Worden – getting best price is just a hypothesis. Do you really get a lower cost than other jurisictions?
17
Q
McMann V. Richardson
A
“Effective Assistance Counsel”
ABA demands of criminal defense attorneys
McMann v. Richardson (1970)
Counsel is effective when the legal advice “is within the range of competence demanded of attorneys in criminal cases”
On a plea of guilty, a prisoner was convicted on his own counseled admission in open court, and the prior confession was not a basis for judgment.
Thus, the prisoners assumed the risk of ordinary error in his assessment of the law and the facts.
The prisoners were bound by their pleas and convictions unless they alleged and proved incompetence of counsel sufficient to establish that the pleas were not knowingly and intelligently made.
18
Q
Strickland v. Washington
A
Established a two-part test for establishing a claim of ineffective assistance of counsel.
Under this test, a criminal defendant may not obtain relief unless he can show that counsel’s performance
- fell below an objective standard of reasonableness, and
- that counsel’s performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding—the trial, the sentencing hearing, the appeal—would have been different.
19
Q
Indigent Defense in Michigan
A
Situation is “dire” in the view of the ABA (2005)
- Funding is poor – 44th/50 States
a. $7.35 per capita
b. County level funding v. state funding
i. Michigan uses county - Inadequate Compensation
- Training funds for pros. but none for defense counsel
20
Q
Public Defense v. Private Counsel
A
Ostrom and Hanson – Do you get what you pay for? Do indigent defenders match up to private counsel
Concludes that indigent defenders are just as successful as private attorneys
When you compare conviction rates, charge reductions, and incarceration rates, you find evidence that indigent defenders are doing just about as well as private counsel
21
Q
Tumey v. Ohio (1927)
A
“Impartiality and Recusal”
If you have financial interest in a case, you should remove yourself and pass the case on to another judge.
Impartiality - no direct personal or financial connection to case.
Recusal - Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer.
Removed for cause
Peremptory grounds – Alaska – You’re allowed to remove a judge - but in Alaska and other similar states, if you feel uncomfortable, you can remove a judge
Tumey claimed that judges were more likely to convict accused people because convictions increased judges and other officials’ salaries.
They were not impartial, in that they had financial connection to the case.
22
Q
Discipline and Impeachment
A
13 Judges Impeached
7 convicted by the Senate
50 Judges Investigated
23
Q
Removal of Judges in Michigan
A
- Legislative – Impeached in Michigan if convicted – House of reps 51% and Senate 51%
- Governor - Concurrent Resolution – 2/3rds of both houses
- Judiciary – On recommendation of judicial tenure commission, the supreme court may retire a judge
a. Censure – slap on the wrist
24
Q
Judicial Self Restraint
A
Judicial self-restraint means a self-imposed restriction on judicial decision making. It imposes a tendency on the part of judges to interpret the law narrowly. By exercising judicial self-restraint, the judges allows the legislative and executive branches to develop government policy.
“Justiciability”
- Define Controversy – John Jay – No Speculation, real harm
- Specific Plea
a. 6th Amendment right to counsel - Exhaust other Remedies
- “Political Questions” not addressed
- Rule on “Narrow Grounds”
a. Judges insist to resolve dispute on most narrow grounds possible
25
Selection of Federal Judges
No formal qualifications to be a federal judge
Article II, section 2
The president, by and with the advice and consent on the senate, shall appoint judges of the supreme court
Senatorial courtesy - extends to ‘blue slip’ in which a senator can veto a potential nominee – but this is at the trial court level
```
Starts with - Pres Nominee
Advisors
DOJ
ABA
Moves to Senate Judiciary Committee
Holds hearings
```
26
Formal v. Informal Qualifications for Federal Bench
Informal Qualifications - Carp & Stidham
1. Professional Competence
2. Political Qualifications
3. Self-Selection
4. Lurk
27
Selection Mechanisms for State Judges
1. Appointment
a. Governor Nominates (Maine, New Hampshire, New Jersey)
b. Legislature (SC, VA)
2. Elections
a. Partisan Elections(Political Party Listed on the ballot) – 11 States
b. Non-Partisan Election(No Political Party Listed) - 17 States (MI)
c. Merit System (Missouri Plan)
i. Appointment Commission
1. Experts: list to governor
2. Retention Election
28
Selecting Chief Judges of Michigan Supreme Court
Chosen by other members of the court
7 get together and ask who the best amongst us is
Let us pick a competent leader
Every two years
Federal government chief justice is picked by the president
29
Bright and Keenan's Thesis
Argue that elected judges are influences by politics in cases involving the death penalty.
They face "overwhelming pressure" to heed and perhaps even to lead, the popular cries for the death of criminal defendants.
Grievance: Electoral Mechanisms for Judicial Selection
Danger: Courts Lose Legitimacy
Courts basis decisions on political basis, undermines moral authority of courts in eyes of public. Undercuts Judicial Sovereignty’s moral authority
"in todays political climate, where everything is highly visible, a commitment to fairness may be viewed as softness on crime, which is a political liability for a judge"
30
Bright and Keenan's Policy Recommendation
1. Eliminate Judicial Elections
2. Disqualify Judges from presiding when political temptations lurk
3. Move capital cases to other jurisdictions where a judge is not up for elections
4. Remove power to assign indigent defense counsel
31
Grand Jury
```
23 People (larger numbers)
5th Amendment – Binding only on federal government
Check and test probable cause
Indictment - Bound for trial
One month – many cases
Secretive
Prosecutor Only
```
32
Petit (Trial) Jury
```
12 people – Test of “Beyond a reasonable doubt”
6th Amendment
One trial, one case
Adversarial – two sides
Transparency – Public Trial
```
33
Duncan v. Louisiana (1968)
Incorporated right to a jury trial into the due process clause of the 14th amendment
Duncan slapped a white dude on the side of the road, got sentenced to 60 days in jail without a jury trial and appealed and won.
34
Master List
```
All Eligible Potential Jurors (Names)
Driver’s License
Voter Registration
Power Bills
Telephone Records
```
35
Venire
(Sample of Master List)
| Qualifications are evaluated through a mailed questionnaire
36
Voir Dire
(To Speak the Truth)
Prosecutor and defense attorney (maybe judge) question potential jury members. Aim of questioning is to establish potential to be impartial.
(Have you heard of this case in the news? Do you have ties to law enforcement?)
37
Challenges for Cause
Strike for cause (also referred to as challenge for cause or removal for cause) is a method of eliminating potential members from a jury panel in the United States.
During the jury selection process, after voir dire, opposing attorneys may request removal of any juror who does not appear capable of rendering a fair and impartial verdict, in either determining guilt or innocence and/or a suitable punishment.[1] An example would be a potential juror in a murder case, where the sentencing options include the death penalty and a lesser sentence (such as life without parole), who states that s/he "would sentence a defendant to death if found guilty"; such a statement may indicate the person's unwillingness to fairly consider a life without parole sentence.
38
Peremptory Challenges
Right in jury selection for the attorneys to reject a certain number of potential jurors who appear to have an unfavorable bias, without having to give any reason
Limited number, no reasons
Race is not an acceptable reason (Bateson v. KY 1986)
Sex (J.e.b. v. Alabama 1994)
39
Abramson and Skepticism about Trial Juries
1. Popular Juries – Cannot handle complex facts and legal issues. Trapped and dependent on trial by “ignorance”
2. False Democracy
3. Emotion - diverts the truth seeking function
40
Pre Trial Process
1. Initial Contact
a. Citizen or CJ Agent
2. Investigation
a. Facts – Adjudication
3. Arrest
a. Custody – Person believes liberty has been restricted
b. Booking – information gathering
i. Interrogation – Miranda Warnings
c. Release to Community
4. Charging - Probable Cause Test – Hurdle
a. Grand Jury
b. Preliminary Hearing (Probable cause hearing)
i. Judge Centered - “Information”
5. Initial Hearing
a. “48 hours”
b. Defendant sees a judge
i. Rights articulated
ii. Bail - $ Forfeited Failure to appear
1. Class criticizes – “Release on own recognizance”
a. Vera Institute –
6. Arraignment – Defendant to enter a plea
a. Guilty – Allocution – allows for the defendant to come clean, get the stain of guilt off of their hands
b. Not guilty
c. No Contest – legal equivalent of pleading “uncle”
d. “Standing Mute” – Refuse to recognize the legitimacy of the court
41
Alford Plea
Plea in which pleads guilty, but does not admit to the act and asserts innocence. Defendant admits that sufficient evidence in which prosecution holds could lead jury to conviction beyond a reasonable doubt.
North Carolina v. Alford (1990)
Charged with first degree murder in South Carolina
Insisted on his innocence at same time he was pleading guilty to the court
Alleged in this appeal that the plea of guilty, while it may have been “knowing,” it was not “voluntary.”
42
Discovery
Process for learning about the other side’s case
Case – Evidence, legal strategy
```
Rule 16 for Federal Evidence
-Def Statements
- Prior Records
- “Real Evidence”
Mental Evaluations
Documents
Photographs
Any material objects gathered during investigations
```
Idea is that both sides have access to everything
Prosecution is more burdened with discovery demands
43
Brady v. Maryland (1970)
Exculpatory Evidence
Supreme court declared that there is the presumption of prosecutors to disclose any type of evidence to the defense that might be exculpatory(Evidence that exonerates the defendant of guilt)
Meaning, they have to disclose any evidence that would indicate the defendant to be innocent
44
Motion to Suppress Evidence
Defense alleges a violation of search and seizure.
| Judge excludes it, removes it from material the prosecution uses to attack the defendant.
45
Motion to Change Venue
Pretrial motion
The defense alleges that conditions are not favorable for a fair trial in the jurisdiction – Consequence of pretrial publicity.
46
Motion for Dismissal of Charges
If there is a lack of evidentiary grounding, from other motions like suppressed evidence, then the judge may throw out the case entirely
47
Motion for Discovery
Compel the judge to make counsel release information that one side thinks they are withholding evidence
48
Best Evidence Rule
Evidence is of the "best that the nature of the case will allow"
The general rule is that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists, and is not unavailable due to destruction or other circumstances indicating unavailability.
49
Objections
Demand that one side of the trial doesn’t follow the rules, one side must object and say that the other side has gone off the rails
50
Affirmative Defenses
Defendant says “I did the act” but I did it with justification. I didn’t have mens rhea.. Actus Reaus without mens yeah I know I cant spell these latin terms
Self Defense, Insanity, Duress, Entrapment
51
Jury Instructions
In a bench trial, a judge engages both in the fact finding and the application of law. In a jury trial, the jury is responsible for the fact finding and application of law.
Roadmap of how juries should interpret and proceed with the case. Effort to restrain the jury for being a lawmaker.
52
Historical Emergence of Plea Bargaining
Prior to civil war, more trials
Post civil war, critical to plea bargaining emergence
Crime Comissions frowned on plea bargaining (1910’s-20s)
1878 – Edwards v. People
Complain about potential injustice brought by plea bargaining
Santabello v. New York (1971)
Declare that plea bargaining is essential
53
Charge Bargaining
Bargaining to redefine the crime in a way that saves the face of the defendant. Changing the name of a certain crime to a lesser crime, with a less menacing sounding name
54
Defining Plea Bargaining
Black’s Law Dictionary
Process in exchange between the accused and the prosecutor in a criminal case in which a mutually satisfactory disposition of the case is achieved, subject to court approval
55
Count Bargaining
Haggle not over definition of conduct, but number of times you will be accounted for that crime. “Yes I sold the drugs, but only convict me for 1 count, not 15”
56
Ad Hoc Plea Bargaining
(Colquitt)
1. Extraordinary Conditions of Probation
a. Certain sanctions, like staying out of a certain profession, or leaving a certain area, in order to keep plea in a certain terms
2. Quid Pro Quo Agreements
a. Charitable acts to help or clean the community in order to make good on your crime in exchange for leniency. Pay for leniency through deeds
3. Imposition of Unauthorized Punishments
a. Voluntary Sterilization
i. “Like wearing a sign outside of a bar after a drunk driving convicvtion that says ‘I’m a dirty, rotten despicable drunk’” – Greg Howard
4. Unauthorized Benefit
a. EX: Guilty, sentenced to 5 years in prison, but under UB, you get sentenced to serve that sentence under house arrest
5. Pleading to an unauthorized offense
Creative conditions of probation
57
Steps in Michigan Judicial Process (Pre Trial)
Crime committed -> Arrest
Warrant, Charging request - > Goes to prosecutor, who takes it to Judge -> Warrant Issue, go to Judge to get Warrant, which could lead to Arrest
After arrest, goes to “District Court Arraignment,” which is ‘initial appearance,” per 48 hour rule
Misdemeanor -> Misdemeanor Arraignment, where a plea is entered.
Then, move to pretrial conference, where pros. and def. negotiate an end. Plea bargain
Leads to pretrial motions, then maybe eventually a trial
Felony -> Felony Arraignment in District Court
Preliminary Exam Date
Pre Exam Conference
Possibly reduction to misdemeanors, negotiation happens in this process and throughout most processes
If not swept after pre exam, then moves to Felony Preliminary Hearing. At this point, if evidence for probable cause is there, then it is bound over for trial in circuit court. (moves from district to circuit).
Moves to circuit court arraignment, at which point defendant must enter a formal plea, then moves to plea trial conference
If nothing happens at pretrial to negotiate, then moves to full trial
58
Steps in Michigan Judicial Process (Trial)
High watermark from the adversarial system. Since such a high standard, it is rare (92-96% of cases resolved without trial).
Ritual and Cultural formula, and as Sutton said, it is useful to look at it as an institution. Law is treated as sacred yet also taken for granted at the same time. Law is an institution, It has a recipe, a formula.
Trial follows this formula, and through that it yields truth
1. Begins with opening statements
a. What they will prove, theory of what happened
2. Prosecutor Presents the Case
a. Beyond a Reasonable Doubt
i. Burden of Proof
b. Types of Evidence
i. Real Evidence
ii. Testimony Evidence
c. Direct v. Circumstantial Evidence
i. Direct – Eyewitness: “I saw”
ii. Circumstantial: Indirect, depends upon an implication. Requires a leap, an inference, using logic and conclusions
d. Risks that Defense will challenge the evidence, and cross examine
3. Defense Presentation
4. Concluding Remarks
a. Express what is most salient in their arguments
5. Jury goes to do it’s work
59
Bordenkircher v. Hayes
Brief Fact Summary. Hayes was indicted on charges of forgery. He and his counsel met with the prosecutor who offered a lesser sentence if he pled guilty. Hayes decided not to plead guilty and the prosecutor asked that he be tried under the Kentucky Habitual Criminal Act. Hayes was found guilty and sentenced to life as a habitual offender. He appealed from this judgment.
Synopsis of Rule of Law. It is not vindictive prosecution to charge someone with something they are guilty of.
Does the Fourteenth Amendment's Due Process Clause prohibit state prosecutors from carrying out a threat made during plea negotiations to re-indict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged?
Legal provision: Due Process
No. The Court held that the defendant's due process rights were not violated in this case. Justice Stewart spent some time describing the important role that plea bargaining plays in the nation's legal system, a role that has been accepted by the Supreme Court in cases such as Blackledge v. Allison (1977) and Brady v. United States (1970).
This acceptance, in turn, implies that the prosecutor has a legitimate interest in persuading a defendant to relinquish his or her right to plead not guilty.
Threatening a stiffer sentence is permissible and part of "any legitimate system which tolerates and encourages the negotiation of pleas," Stewart declared.
Overcharging, vertical and horizontal
60
Sentence Bargaining
No modification of charging documents or counts, but lesser sentence is given when plea is accepted
61
US v. Ammidown
Must Accept plea bargain worked out between the defense and prosecution unless there is an abuse of prosecutorial discretion
62
Santabello v. NY (1971)
Promises made to elicit plea must be kept
United States Supreme Court case in which the Court ruled that the sentence of the defendant should be vacated because the plea agreement specified that the prosecutor would not recommend a sentence, but the prosecutor breached the agreement by recommending the maximum sentence.
63
Advantages of Plea Bargaining
1. Dispose of Large # of Cases- Lowers Caseload dramatically
2. Reduces Uncertainty
3. Victim Testimony
4. Justice Tailored
64
Disadvantages of Plea Bargaining
1. Lack of transparency – leads to corruption and “ordinary injustice”
2. Overcharging
3. Inefficiency
4. Integrity of the CJ apparatus is compromised
65
MA's Prescriptions for Reforming Plea Bargaining
1. Reduced penalties
2. Broader Discovery Rights
a. Less that can be kept close to the vest of the prosecutor
b. Make sure we make it possible that defendant has a better sense of what they are face
3. Better Supervision (much like Amy Bach)
a. Prosecutors must record reasons for their charging decisions
b. Victims
66
Amy Bach - Monitoring
Call for supervision from MA leads to: We need social scientists, citizens, who will give us the capacity to track and open up courts. Demand that there be regular and data and statistics, such as how many people plead guilty without a defense attorney by their side. If we had these things in bright lights available to all, then we would have a much better criminal defense system.
67
Justification for Inflicting Punishment - Retribution
Blameworthiness - just deserts
Focuses on what the offender deserves as a result for their behavior.
The fundamental calling card for our justification of punishment. It rests on a respect for individual autonomy and choice.
Rational Free Will
As Graham Newman says, the process is actually radical. In punishments, individuals should not be transformed. We have no business changing people.
68
Justification for Inflicting Punishment - Utilitarianism
Jeremy Bentham, Ceseare Beccaria
Deterrence, incapacitation, rehabilitation
Punishment must be morally justified. - Rests on ethical principles, not legal rules.
Punishment is justified if it leads to good results: If it prevents further crime, reforms the offender, or helps the victim and the community heal. The harm done to the offender in the name of the punishment is outweighed by the good consequences that result from punishment.
Reject retribution all together. It’s like crying over spilled milk. What’s good is there in punishing for something that has already happened. We can only use punishment as a way for preventing further harm.
Free will rational
Hedonistic
Pleasure ought to be promoted and pain minimized
We can justify this only if we can guarantee a future crime reduction
This is achieved by Deterrence. The threat of detection and punishment reorients the way people purse their pursuits of pleasure and pain.
Can take us in a punitive direction but also an environmental restructuring direction
69
Howard's Last Rant
What is happening in our criminal courts is an open question.
One way to make sense of this, is to go out there and look. This is what sociology of law affords to us. Here dear student, we have conceptual resources, like durheims law is solidarity, and while you see a moral play.
Other sociologist like karl marx say that justice is a tool of class control, used by forces to achieve an effect on opponents.
They suggest we come armed to the criminal courts to watch an arena of conflict. Weber says that it boils down to a set of beliefs.
People believe in certain stories, and the more we believe the stories of the court the more we accept the order and morals involved. The whole basis for order begins to falter without trust in the court system.
Postman, dehrendorf – intellectual responsibility – prepare for the world and have an IR-
Amy bach is asking to develp wherewithal to develop metrics of what the courts are doing so we can hold the officials to account.
Ask difficult questions, make skills, and ultimately develop a moral compass
70
Justification for Inflicting Punishment - Self Defense School
Free Will Determined
Enrico Ferri
Focus is on the idea of rehabilitation, adopts something of a medical model.
It was caused by forces beyond your control. We will treat you like a patient, provide an indeterminate sentence, until it is determined how ‘well’ you become
71
Criminology and Policy
Purist Camp
Donald Cressy - Stay out of policy - it’s ugly and politically charged. Criminologists are not well suited for this affair. Remain pure of efforts to promote certain agendas or moral lines
Pragmatic Camp
James Q. Wilson – To abandon policy process is shame at the highest order. Listen to steady reasonable voice of political command.
72
Betts v. Brady
| Gideon v. Wainwright
Betts v. Brady (1942)
Indigent defense not required for felonies
Gideon v. Wainwright (1961)
Overturned Betts v. Brady
Right to counsel in all felony cases
6th amendment is binding to all state actors
73
Argersinger v. Hamlin
United States Supreme Court decision holding that the accused cannot be subjected to actual imprisonment unless provided with counsel
Argersinger got 90 days in jail for carrying a weapon, but, supreme court said you cannot get jail time unless you are provided with counsel
74
Favorite Howard Quotes
“Given to the wolves as fodder to sustain the judiciary”
“I’ve got a beef.”
“Whaaaaw this is a real pickle”
“Cut up their nose to spite their face”
“Stay out of the political mud! Your white lab coat that is clean and starched sets you apart!”
75
Joan Jacoby's Basic policies developed in prosecutors' offices to regulate the exercise of charging decisions
Jacoby's core point is that chief
prosecutors develop guidelines for their assistants to produce consistency in the discretionary practices associated with charging
defendants with crimes.
Each policy position privileges one criterion
over another as a basis for regulating the charging process
76
Jacoby's Legal Sufficiency Standard
Assistant prosecutors are instructed to
| charge if they have evidence with which to support each element of a specific crime
77
Jacoby's Trial Sufficiency Standard
The trial sufficiency standard might be seen as the
legal sufficiency standard plus a subjective (if not learned) assessment of the likelihood of prevailing at trial.
Even with evidence beyond a
reasonable doubt for each element of a crime, a prosecutor might still conclude that a conviction at trial is unlikely because a jury will be unwilling to convict for some reason (or more likely emotion).
In other words, the trial sufficiency standard instructs assistant prosecutors to entertain the possibility of jury nullification -- an unwillingness of a jury to convict despite compelling evidence on which to reach the
verdict
78
Jacoby's System Sufficiency Standard
The assistant prosecutor is encouraged to charge defendants with an eye on what will be the overall cost of victory. Will a conviction in a case be worth the hassle of securing it? Will it, in effect, be a Pyrrhic victory (i.e., a win achieved at such a high price that it amounts to a defeat)?
This sort of policy stance is mightily attuned to
organizational constraints and budget realities rather than formal law.
79
Jacoby's Rehabilitation Standard
When a prosecutor's office privileges defendant rehabilitation in the charging process, the notion is that prosecutors are guided in their work by a vision of restoring or repairing defendants who come into conflict with the law by virtue of some flaw in their lives.
80
Juries as Deliberative Bodies (Abramson)
Seeing juries as deliberative bodies stresses their role in promoting dialogue and achieving a deeper understanding of an issue.
Advocates of juries as deliberative bodies see jurors coming to their task with points of view but also open minds, receptive to, and respectful of, the understandings articulated by their peers.
Those who envision trial juries as deliberative bodies, and Abramson puts himself into this camp, imagine that through a frank exchange of perspectives carried out in the spirit of consensus building, a more comprehensive view of the world, more impressive than the mere sum of individual ideas put forward by individual members, may be developed.
This notion that open dialogue yields more refined ideas is the bedrock principle said to define the work of the U.S. Senate
81
Juries as Representative Bodies (Abramson)
For some people, trial juries are an opportunity for ordinary people to give voice to values, ideas, and political interests associated with a group to which they belong.
Just as representatives are elected to Congress with the understanding that they will go to Washington to promote the narrow interests of their constituents, this understanding of the trial jury envisions its members engaged in a sort
of competition to see whose vision of the world will carry the day in terms of the verdict.
Paul Butler, for instance, advocates this sort of
vision of the trial jury when he contends that African Americans should engage in acts of jury nullification to achieve political ends.
82
Caseload Hypothesis for Growth of Plea Bargaining
Proponents of the caseload hypothesis maintain
that judicial workload increased over the course of the 19th century leading to the rise of plea bargaining as an efficiency measure.
83
Professionalization Thesis of Plea Bargaining Growth Post Civil War
Professionalization thesis maintains that criminal justice actors evolved in their skill sets, transforming the dynamics between court workers and thereby leading to the emergence of plea bargaining.
One version of this story says that defense lawyers became more accomplished
over the 19th century in their ability to respond to prosecutors' charges because legal training expanded with the advent of law schools
and the criminal defense bar became more entrenched.
Thus, criminal defense lawyers ratcheted up adversarial relations which led prosecutors to seek avenues for cutting their losses
Another version of this
professionalization story alleges that police officers became more skilled at gathering evidence which ultimately conferred upon prosecutors a stronger hand in court. This meant that defendants were more likely to cry uncle in the face of more solid evidence, meaning that they were willing to plead guilty through negotiations since conviction seemed increasingly likely
84
Social and Political Context to Explain Plea Bargaining Growth Post Civil War
Important to this sort of account is the turn to electoral mechanisms for selecting prosecutors, part of a larger move toward democratic accountability during the Jacksonian era.
As prosecutors came to be elected, demographic shifts were also transforming the fabric of urban
America. People were rushing to cities in search of factory jobs, and these folks were increasingly coming from foreign lands.
In short, cities in the U.S. by the end of the 19th century had become a cauldron of diversity and working class agitation.
Some have argued that plea bargaining emerged during this period as a measure by which prosecutors could achieve control of "dangerous classes".
Offering "episodic leniency" in times of political agitation, proponents of this view think that prosecutors used plea bargaining to bleed off the potential for popular revolt.
85
Jeff Ferrell
Criminological Verstehen
Argues that complete submersion into field research is best way to understand criminology through Criminological Verstehen.
Ferrell studied the criminals by following graffiti artists in NYC. Ended up getting arrested
86
Criminological Verstehen
Concept argued by Ferrel, started by WEBER, where sympathetic understanding between researcher and subjects of study is developed through complete submersion into culture.
Through participation, one can finally grasp emotional context of criminal, victims, crime control agents.
Strong ties to understanding emotion and motivations of criminals through shared experiences.
