Midterm Flashcards
(96 cards)
1
Q
Dahrendorf
A
Be in service of some larger, common good, as intellectuals. (Intellectual Responsibility)
Don’t believe everything you hear – be doubtful. Ask questions.
Intellectual must be willing to look authority in the eye and say you don’t scare me – must have certain degree of temerity.
Raise your critical voices and raise your questions against the system. Autonomy, Independence. Willingness to be skeptical.
2
Q
Postman
A
Studying language, learning conventions of way in which people talk.
Free yourself from indoctrinations of education.
Definitions are to be taken with a grain of salt.
Language is just something a human being uses to persuade others to come to their point of view. Be skeptical.
Rules are just definitions – ie “Marriage,” and we must be skeptical of set in stone definitions.
Struggle to reject definitions and not be led around by the nose.
Pay attention to metaphors, use metaphorical language.
3
Q
Amy Bach
A
Search of “Patterns.”
Sociology and Criminology focus on the phenomenon and patterns involved with crime.
First pattern she seeks to explain is “ordinary injustice.”
Pattern of inaction
Pattern of lapses
4
Q
Criminal Justice Funnel
A
Seeking to define criminal world through definition
Universe of crime – precise indication of exactly how much this phenomenon exists in our world – very slippery figure
Arrest numbers used to try to paint picture of ‘universe’
Always will be a dark figure of crime – where information and is lost and undocumented – profound amount of information
5
Q
Ordinary Injustice
A
Amy Bach
Thesis: Frequent appearance of Ordinary Injustice
Cannot tag just one person, one rotten apple, with OJ. We cannot explain it by finding one specific person or instance; we have to point the finger everywhere. It is socially produced. It is the outcome of collaboration and cooperation between many social figures. Community of legal professionals become so accustomed to a pattern of lapses that they can no longer see their role
Adversarial Model of Justice - Conflict yields truth. Bach is suggesting is the fundamental process of adversarial justice has broken down, and because of lack of conflict, Ordinary Injustice has run rampant.
6
Q
Problem of Social Order – Jack Douglas - American Social Order
A
“The necessity of society creates the necessity of constraint, of sharedness, of being like and acting with others.”
We are born in a state of “protracted helplessness” which creates a need for society. We need to be able to get along and be constrained. We need to share beliefs and structure to keep us all together. We need to make sacrifices in order to be a part of this larger group.
Humans have conscience, have necessity to achieve something and ‘invest this life with purpose.’ Break out of the constraints of society.
Freedom vs. Constraint – constant tension and conflict – problem of social order
7
Q
Discretion
A
Miriam Webster’s:
A. Individual choice or judgment
B. Power of free decision or latitude of choice within certain legal bounds
Dean Champion:
In the criminal justice system, the authority to make decisions based on one’s judgment rather than specified rules.
Rush:
An authority conferred by law on an official or agency to act in certain conditions in accordance with judgment and conscience
8
Q
Holmes on Law
A
Court is final. Law is what judges say.
9
Q
Cardozo on Law
A
Law is what courts say
10
Q
Inciardi on Law
A
A body of rules enacted by public officials in a legitimate manner and backed by the force of the state.
11
Q
Hoebbel on Law
A
Law is a social norm, the infraction of which is sanctioned in threat or fact by the application of physical force by a party possessing a socially recognized privilege to so act
12
Q
Consensus View of Law
A
Hobbes, Rousseau, Durkheim
Reflection of popular will. Broadly accepted
13
Q
Conflict View of Law
A
Karl Marx, Dahrendorf
Reflection of special interests. Power makes law.
14
Q
Sources of Law (Binding on CJ Actors)
A
- Constitution
- Legislative - Popular Sovereignty - “We the people”
- Quasi-Legislative / Quasi-Judicial administrative agencies (FDA FAA EPA)
- Courts – Judge made law
- Executive Order
15
Q
Hayek “Rule of Law”
A
Fundamental Basis: Government actions are bound by rules fixed beforehand
Written laws – Established Procedure
Highest role of the rule of law is to avoid the arbitrary conduct of the government official
16
Q
Adversarial Model of Justice
A
Truth=Conflict – Ring of Contest
Judge –Impartial Referee
Prosecutor v. Defense Attorney
17
Q
Inquisitorial Model of Jusice
A
Conflict only yields arguments, not truth, just delusions
Truth = Cooperation
18
Q
Procedural Justice
A
Justice is best achieved when a set of appropriate steps are followed to a letter – Steps to enforcing the law – Stages matter. Allegiance to a cherished recipe
19
Q
Substantive Justice
A
Above all else, correct resolution outcome needs to be found. Procedure doesn’t matter, as long as right outcome is achieved.
20
Q
Exclusionary Rule
A
If evidence is illegally obtained, it must be excluded from use in court
Weeks v. US (1911)
Mapp v. Ohio (1961)
21
Q
Postman on Metaphors
A
Be Wary of Metaphors, often bring unexamined assumptions (War on Crime, Drugs, Terrorism)
Using these metaphors creates an array of assumptions about human nature and speaks to the way we respond to crime (rehabilitation / punitive).
22
Q
Dahrendorf’s “critical sting”
A
- Make authority relative
- Recognize authority is a social production
- Critical detachment; doubt everything obvious
- Ask questions no one else would
- Would help intellectuals help rulers find their way
23
Q
Walker’s thesis about criminal justice system paradigm
A
ABF Survey swept aside the progressive era paradigm and replaced with the criminal justice system paradigm
While it gives us justice, it was built upon a model that was wrought with corruption. Important to bear in mind the history of criminal justice We need to recognize that discretion emerged through a series of observations made by the American Bar Foundation Discretion was discovered because of new way of thinking of criminal justice, which was funded by the programs below
24
Q
Progressive era paradigm
A
Fundamental Feature was to see police officers as tools – Scientific management to better select our criminal justice officials to weed out corruption to find the IDEAL officer, and then come up with selection methods, we could then come up with “perfectible legal instruments.”
Observations reveal a gap between law and action
Idea of discretion emerged at a point in time because it was funded
25
Field Research (American Bar Foundation Researchers)
Survey – Sent social scientists into C.J. Agencies
Problems of CJ Agencies -
1. Arose from the enforcement of substantive law
Law is not the escape - Law can create enforcement hassles, struggles, difficulties
Law is ambiguous
Progressive era alliance, belief that the law will protect us, is a pipe dream, and in real practice, it is not demonstrated.
2. Police and prosecutors not simply crime fighters - problem solvers, (Work of criminal justice system is not as perceived)
3. Discretion was routine. Much decision making had little to do with the law on the books. Most officials were even unclear about the law.
4. Systemic nature of criminal justice - agencies interact, they are not isolated from one another
26
Spreading the system idea
"System” was established through a variety of laws – Incentive structure – in place now is so controlling it’s tough to think outside of the system.
1. President Johnson 1965 – Problem in Admin of CJ
a. Presidential Commission – “Problem of crime in a Free Society”
i. Adopt system “orientation” which stresses the importance of discretionary practices
ii. Safe Streets and Crime Control Act of 1968
1. Created the National Institute of Justice
a. Aim is to fund research that answers questions about the system and discretion. Federal government wants an incentive structure
2. Law Enforcement Assistance Administration (LEAA)
a. Technology Transfer, “Best Practices” to accomplish proper policing.
i. Communications Technology
3. CJ Studies
a. Provided money to establish CJ System Programs
27
Morality and law
Dennis Lloyd – Patterns between Law and Morality
1. Coincide – Law fully reflects values – “Natural Laws”
2. Morality is a way to judge law- Moral judge law- Morality gives us a vantage point to make evaluations on what is right and proper.
3. Separate Sphere – Law and Morality cannot be brought to terms.
28
Packer’s paradox
"The more we learn about the “is” of criminal justice, the more we are instructed about it’s “outght”
We conceive a disjunction between facts and values – In fact, we cannot distinguish facts and values at all. When we make descriptions, we see how animated our officials are with articulating their own visions. Moral compass that needs to be appreciated.
29
Packer's premise
For moral warriors who want good outcomes, process is the key.
Shape of criminal process effects what we can get done with criminal law.
The kinds of substantive ends depend upon the ease of the criminal process.
You must step back and look at the process if you want to accomplish anything.
Ideal type – kind of model – representation of the world – model designed to be logically pure.
30
Values of the Crime Control Model
```
1. Crime repression is key
Freedom – Social contract violated
2. Value efficiency
Speed
Informality
Uniformity
Finality
Stress restriction of appeals
3. Factual - Precede on the basis of presumption of guilt
Legal performance – Act as if individual is legally innocent
4. Assembly line
```
31
Values of the Due Process Model
1. Obstacle course – Value high order as a means of protecting individuals
2. Individual Protection
3. Humans are error prone
4. Quality
5. Focus on legal guilt – procedure matters – regularity
Regularity
Competency
32
Common Ground
1. Framework of a constitution
Ex post facto
Charged individual has autonomous existence
Adversary Struggle
33
Why Sociologists study law
Renee Rogers
What counts as a law is open to interpretation and dispute
Constitution
Statutes – Civil Rights Act of 1964
Legal rules are ambiguous – “Extreme” hairstyle
Race and Gender bias in law
Law can be constructed in ways that give life
Law and Economic Power
34
Jurisprudence
Dragan Milovanovic
Is a kind of way for studying law - Theory or philosophy of law
1. Written Rules themselves as objects of study
2. Principle of Justification – say retribution, Organized into Systematic Law
Built upon the presumption or choice that we have options
Mens Rea - need criminal intent in order to pursue
Rehabilitation
3. Interested in how correct, legal reasoning is accomplished and evaluated
a. Truth exists independently
b. Law is treated as if it is sealed off from the world
c. Law is a closed system
35
Sutton’s Sociology of Law
Intellectual project in which empirical data are used to describe and explain the behavior of legal actors
Based on systematic observations, and seeks to use patterns to find why X causes Y. Could be probabilistic, reciprocal, or conditional.
Systematic Observations – Description vs. Explanation
Description – Reveal patterns, regularities
Explanation – Why are there patterns/regularities?
Establishing Causal Claims
The world exists because of this feature (X causes Y)
Seeking to find the influence of the independent
variable on the dependent (X = Caseload, Race,) (Y=
Crime, Arrest, Charge)
Causal Assertions
Deterministic
If you want to explain why, you need to
understand that the presence of something
always causes it (Poverty causes crime)
Probabilistic
Recognize that chance exists
Conditional
‘Poverty and crime aren’t related, unless
under certain conditions, like economic
depression’
Reciprocal
Cause is both cause and effect simultaneously
Drugs -> Crime or Crime -> Drugs?
36
Explanations for behavior of legal actors (Sutton)
1. Conventional views of law
a. Key Feature – Descriptive accounts of how law ought to work
i. Law operates as a game
1. Law is a contest that demands particular skills & knowledge required
2. Winner of the game is one who has the best command of the rules, and facts of each particular case, not one who is most moral in their justifications. Features reward those with skills and knowledge
3. Privileged respect to those with procedural regularity and logic.
4. Law is a normative system
a. Ought to be used for what we stand for, used as a tool to protect or moral beliefs. Effort for law to reflect values and moral standards.
37
(Sutton) Institutional View of Law
a. Descriptive realm
i. Remains in the business of saying what ‘Is’ happening, not what ought to happen
1. Law is an institutional phenomenon (Max Weber)
a. Scared and meaningful – ritualistic
b. Business of law begins to take on authority. Obedience to law invokes cultural ideals
38
Behavioral View of Law
2. Law is a behavioral system
a. Interdependence of CJ Actors
b. Ongoing relationships
c. Systems approach
i. Roles for everyone
ii. Hierarchy
1. Rules – Why does the behavior or legal actors so often fails to meet the rules?
39
Sutton on Law as a System
Law is an open system – It is sufferable to conditions outside of the law itself (politics)
Useful because it shows how law is rooted in social experience
Law comes to effect our social lives
Appreciate that sociology has insights into our society
40
Assumptions of Marxist Traditions
1. Conflict is the key to law, underlying dynamic of society
2. Human Nature Not Fixed
a. Openness, Material Practices Shapes the Kind of people we are
i. Getting food
ii. Shelter
iii. Water
3. Historical Materialism
a. Avoid general studies of society and focus on particular context
4. Force we apply to production dictates the way our relations work, which is a function of class.
41
Law as a Game
It out to be the ones who are most skillful will win
42
Assumptions of Durkheim
1. Consensus – Society is a moral system, organized around beliefs. Solidarity
2. Functionalism – Organism that strives for stability and equilibrium is key. Biology metaphor
3. Positivism - Bedrock for a science of society
a. Laws of nature, through science
b. “Social facts” – external
4. Simple Society -> Division of labor -> Complex Society
1. All Think and do Same (SS)
“Mechanical Solidarity”
1. Different roles, diversity of soc (CS)
“Organic Solidarity”
43
Marx is concerned with _________, Durkheim is focused on __________
Marx = Economic and Social Classes
Durkheim = Moral Activity and Solidarity
44
Solidarity and law (Organic vs. Mechanical)
Law will signal to us the kind of solidarity it needs. Mechanical solidarity calls for retributive law. Organic Solidarity calls for restitutive law, like a contract to make whole.
45
Instrumentalism
Law is a tool of the ruling class
46
Structuralism
Capital accumulation, keep the economy humming
47
Assumptions of Weber
Idealist – Ideas and interpretations of ideas
Rationality - Methodical style of life – focus on method
Rules by which we may proceed to realize goals
Planning is important Ideal Types – The world is ugly and messy in its particulars. We might do well to sit and reflect upon what we think is happening in the social world
Logically pure statement of expectation
Comparison of ideal type and reality
48
Power According to Weber
Power – Probability that one person can impose one’s will in the face of resistance - Coercive
Authority - One follows a command as if one values the order for its own sake. Order has meaning
Household, family obedience, Monarchy
Legal Rational Authority – Commander can issue an order to you because he occupies a role of authority in society
Belief in legality of enacted rules and right of those elevated to decision making positions to issue commands
Government of laws, not people – Bureaucratic
49
Models of denomination
Max Weber – Think about the law in terms of its capacity in which it gets people to obey
How does society use law to get people to do what they want them to do
Authority – People obey commands because they believe it is the right thing for them to do – there is no resistance to this domination
50
Formal Rational
Allegiance to the adversarial model, due process, follow procedure
Expressed in the exclusionary rule
51
Formal Irrational
Oracles – Judges are magicians who go through a ceremony
In the United states, law is centered in the formal rational square
Jury nullification
Butler
52
Substantive Rational
Legislating from the bench
| Knight and keenen – death penalty – elections
53
Rational Law (Weber)
A. Rooted in rule bound nature
B. Systematically Organized Rules
C. Logical interpretation is crucial to establish meaning
D. Intellect Priority - Reason, Facts, Evidence
54
Irrational Law (Weber)
A. Arbitrary
B. Multiple rules bearing on situation
C. Emotion laden, sensory details
55
Criminological Verstehen
Max Weber - Analyzing social world of criminal behavior, in a social context, seen through the eyes and perspective of both the criminal and the legal actor.
Verstehen roughly translates to "meaningful understanding" or putting yourself in the shoes of others to see things from their perspective.
56
Positivism
Durkheim
Scientific Method
Human beings make their own assumptions and we are a product of our social environment
Factual observations - No religious beliefs or spiritual accounts
19th century reaction to classical tradition in criminology - Reject free will
57
Challenges to Positivism
Nature of human perception is a challenge to social science.
We are selective in our perceptions.
We could be overwhelmed if we tried to take everything in.
Blind spots signal that we could never be passive observers.
What we see, what we observe, is conditioned by subjective forces. –
Human perception is fallible, positivism suggests that we can get rid of that
58
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head.
The term "federalism" is also used to describe a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (such as states or provinces).
Federalism is a system based upon democratic rules and institutions in which the power to govern is shared between national and provincial/state governments, creating what is often called a federation.
Belief in strong central government
Alexander Hamilton was leader of Federalists
59
Anti-Federalism
Thomas Jefferson led
Sought stronger state and local government as opposed to a powerful central government
60
Article III of the US Constitution
Established the judicial branch of the government, supreme court, jurisdiction, and judicial review
61
Judiciary act of 1789
Senate Bill 1 - This act created a district court, a major trial court, a court of original jurisdiction. Establish trial district courts in the united states. This is a defeat for the anti-federalists, because they wanted all the cases in the state court system.
62
Judiciary Act of 1801
Create new federal judgeships
| Create a circuit court of appeals
63
Judiciary Act of 1925
Writ of certiorari
Order issued by the supreme court
Discretionary caseloads - Petitions – 6,000-8,000
80-90 Cases a year
64
Writ of Certiorari
Order to a lower court to send up the record - regulate its workload
65
Courts of Appellate Jurisdiction
Geography – Political Boundries – Widest Geography, Nation – State
Subject Matter: Felony v. Misdemeanor
Appellate and Original – Check for error
US Supreme Court
US Court of Appeals
66
Courts of General Jurisdiction
Larger Geography
Felony, Misdemeanors
Original and Appellate
Federal - "District Court"
State - "Circuit"
67
Courts of Limit Jurisdiction
Narrow geographic Range
Misdemeanors, preliminary stages of felonies
Original Jurisdiction – Limited in that in can only be a trier of fact
STATE – “District Court” – Misdemeanors, Preliminary felonies
68
Stare Decisis and Precedent
Builds upon the idea of precedent, and make judges be mindful of the resolutions we have already come to terms with in the past
69
Substantive Due Process
Rules about the content of the law. What law can demand or prohibit
1st amendment
ex post facto
70
Procedural Due Process
Rules enforcing legal stipulations (enforcement of law)
71
Fourth Amendment
Unreasonable Search and Seizure without Probable Cause
72
Fifth Amendment
```
Right to remain Silent
Miranda
Right to an Attorney
Guards against Self Incrimination
Grand Jury
Guards against Double Jeopardy
Takings clause -
```
73
Sixth Amendment
```
Rules about adjudication
Speedy and Public Trial
Nature and cause of accusation
Witnesses can be confronted
Compulsory processes to get witnesses for the accused
```
74
Eighth Amendment
No Excessive Bail
| Protection against cruel and unusual punishment
75
Barron v. Baltimore
5th Amendment - Takings clause
Chief Justice Marshall
Bill of rights binds the federal government
76
Fourteenth Amendment
Dual Citizenship
No laws of enforcement that compromises US citizens
Due process
Equal protection
77
12 Indices of Change
1. Decline of rehabilitation, evidenced in the fact that rehabilitation no longer represents the overarching ideology of the penal system, or even the leading purpose of any penal measure
2. Re-emergence of punitive sanctions and expressive justice. Just deserts retribution is now a policy goal, and highlights the increasing use of the death penalty, chain gangs and corporal punishment in some US states
3. Emotional tone of policy making has shifted from cool to hot
4. Return to the victim
5. Public protection has become a principal theme of criminal justice policy, and that diminishing attention is paid to the civil liberties of suspects and offenders
6. Crime features prominently in political party manifestos, and parties vie to be seen as the toughest on crime.
7. Use of prison growing exponentially
8. Growth in Control Theories to Prevent Crime
9. Preventative Partnerships with the Community
10. The inclusion of civil society in crime control has facilitated its commercialization, with the expansion of a private security industry
11. New Management Styles to be Cost-effective
12. Existence of a perpetual sense of crisis – seeing the CJS as a failure.
78
Kafkaesque
Basically it describes a nightmarish situation which most people can somehow relate to, although strongly surreal. With an ethereal, "evil", omnipotent power floating just beyond the senses.
79
Der Process
The German title, Der Prozess, connotes both a "trial" and a "process," and it is perhaps this maddening feeling of inevitability that leaves a lasting visceral impression:
The machinery has been set in motion, and the process will grind toward conclusion despite our most desperate exhortations.
80
Late Modernity
Garland’s argument that we are witnessing a major shift in the crime control model in late modernity. Related to 12 indices in that it is a shift from rehabilitation to more punitive sanctions
81
Adjudicatory Role of the Courts
Feeley studied Adjudication patterns in the Court of Common Pleas in Connecticut, found that most minor offenses were adjudicated quickly and informally. Out of 1600 cases he observed, not one used their right to an attorney.
Feeley concluded that the process for the adjudication of minor offenses is more relevant of a punishment than the sentence. The pretrial had enough “price tags”, (laywers, court costs, bail,) on the accused.
82
Judicial Independence
The judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests. Judicial Independence is vital and important to the idea of separation of powers.
83
Judicial Sovereignty
Judicial sovereignty refers to the independence of the judiciary, and its ability to conduct judicial review of legislation and executive action.
84
Judicial Review
Doctrine under which legislative and executive actions are subject to review (and possible invalidation) by the judiciary.
A specific court with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority (such as the terms of a written constitution).
Judicial review is an example of check and balances in a modern governmental system (where the judiciary checks the other branches of government)
85
Marbury v. Madison
Marbury v. Madison, 5 U.S. 137 (1803), was a landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.
86
Total Incorporation
The 14th Amendment makes the individual States subject to the restrictions of the earlier Amendments. If one of the Amendments in the Bill of Rights forbids Congress from infringing a particular freedom, then the State legislatures can't do so either.
"Selective incorporation" holds that only those Amendments that embody certain "fundamental rights" are applied to the States.
87
Criminological Triage
Field – Diverting status offenders out of the juvenile system at the soft end, waiving serious offenders for adult criminal prosecution at the hard end, and punishing more severely the residual, middle range of the ordinary delinquent offenders.
88
Under Sutton's types of explanation for behavior of legal actors, what is deterministic conditional assertion?
‘Poverty and crime aren’t related, unless under certain conditions, like economic depression’
89
Under Sutton's types of explanation for behavior of legal actors, what is probabalistic causal assertion?
Recognize that chance exists
90
Under Sutton's types of explanation for behavior of legal actors, what is deterministic causal assertion?
If you want to explain why, you need to understand that the presence of something always causes it (Poverty causes crime)
91
Types of authority
Traditional - age old rules and customs
Charismatic - good character; dicipleship
Legal Rational - role of authority in society
92
Weber's Ideal Types
The world is ugly and messy in its particulars. We might do well to sit and reflect upon what we think is happening in the social world
Logically pure statement of expectation
Comparison of ideal type and reality
93
T/F: In The Trial, the defense is afforded some level of doubt regarding their guilt.
False, in The Trial, Defense is distinctly frowned upon. The accused is generally considered to be guilty.
94
The Trial - The Court
The Court is inscrutable and irredeemably corrupt
Allegations are never disclosed; evidence is never disclosed; ultimate judicial power is invisible; the word of law is available only to those who stand in judgment of the accused
Defense is distinctly frowned upon. The accused is generally considered to be guilty.
95
The Trial - Necessity
That universal lie of necessity--the mother of detention--keeps the mechanism moving forward and squelches potential challenges to the system.
"...it is not necessary to accept everything as true, one must only accept it as necessary"
A society that accepts unaccountable governance in the name of necessity, which regards the law as divine Law because it declines to show itself.
When the Law takes necessity as its model, justice is doomed. The terrible fact of The Trial, and of the parable, is that the men seeking justice eventually accept this warped universal principle and its skewed criteria; they submit to the necessity of their own exclusion or death.
96
Sutton - Explanatory Benchmarks
Explanatory Benchmarks
Association – Covarition needs to be established (Influences of one thing on another and the result)
Correlation coefficients
Statistics, numbers, qualitative observations
It is not valid if a prosecutor cannot provide evidence to support their causal claim
Temporal Ordering
Timing is everything - Police construct
timeline of event, Cause must come before the effect
