CLJ 200; Weeks 9-11
CLJ 200; Weeks 9-11 CLJ 200
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Date Created: 04/08/16
CLJ Bulk Packet; Weeks 9-11 o Drugs-Social Control o Social Constructionism o Drug wars or crusades or prop 19 or what you read in the Student Paper on Nov 8, 2011 here are not just reactions to problems people have with drugs or simple engineering issues (like pot is not as evil as booze or cigeets etc). o Drug scares are cultural-political affairs and must be understood as such. Drugs are symbolic resources in our ongoing cultural-political wars. Functional a la Durkheim o Drugs problems or scares or hysteria or whatever you want to call it have been with U.S. society for 200 years or so. They are moral panics in their own right whatever the objective level of the problem. They are ideological phenomena in another sense as we have used this term in class. o Joseph Gusfield, Symbolic Crusade, talked about the temperance movement and prohibition of booze and how this appealed to millions of middle class folks looking for simple answers to social and economic problems confronting the U.S. in the early 20th century. o Later, Opium targeted Chinese immigrants after completion of the transcontinental railroad, when their cheap labor was no longer needed. o Anti-opium den legislation designed to discriminate against a specific group in lean economic times. o Blacks, Mexicans, Hippies have all been targeted for a variety of reasons. 1986 Drug Abuse Act. o 1986 Drug Abuse Act. Manipulation of racial stereotypes using a pervasive ideology of “color blindness” that discourages any serious discussion of racial bias in the CJ/Legal Systems. o Isn’t it interesting how gross differences in incarceration of AA and Latinos fails to provoke any type of serious response? o What I mean is this: in the U.S. we apply a “color-blind” ideology that considers racial discrimination in individualistic terms (one person calling another a name etc). This keeps us from considering the structural barriers to racial equality created by drug wars etc. o Just a bit of data o Past 30 yrs prison pop increased 6x! 2.4 million (drug imprisonment increased 1100%); in some states 90% of prison admissions of Blacks are for drug offenses) –Dual system of crime & Punishment in U.S? o Per 100,000 o Black Males: 4777 o White Males: 727 o Among Black men in their 20s one in 8 in prison on any given day o How are all these “problems” constructed? o Media Magnification: take the worst cases an portray these as “routine”. Dramatize the problem in Goffman’s impression management terms. Need to generate ad sales. o Political and moral entrepreneurs (ME). Political elites define a problem, call attention to it and mandate that something must be done about it. Drugs work as functional “demons” that take our attention away from serious problems like the economy etc. Almost a risk free strategy for politicians and ME. o Professional interests. Who owns the problem? AMA, DEA treatment groups. These groups have some “specialized” knowledge that legitimates their authority. (DEA is especially good at this). They have some interest in owning the problem; they get some “mileage” out of it. Nancy Reagan, Harry Anslinger head of FBN and author of Marijuana: Assassin of Youth. Influential in getting pot outlawed. TQ o 1-3 interact to “inflate” the problem and then link the problem to “dangerous” groups in society. Drug problems are never about drugs but symbols pertaining to certain groups. Hippies, Mexican drug cartels, minorities etc. Link a substance to a particular group and link that to crime etc. o Scapegoating a drug for social problems. EG premature births are a product of mothers crack use. “Crack Baby” scare/myth perfect example. Creates “horror” stories of considerable symbolic value. EG if we didn’t have crack the inner cities would be a “paradise” for poor folks. o You can see how functional all this is. With the chemical bogeyman or folk devil we have a simple explanation for a host of serious social ills (like class inequalities, poverty, lack of health care, pollution, discrimination, violence, decent housing, jobs, wealthfare) that we might otherwise have to deal with. o Social constructionism views social problems like drugs etc as having no objective or essential existence “out there” but must be produced by humans through a host of symbolic means. o Once such problems materialize then laws can be passed to criminalize this or that activity. W.I. Thomas “if people define their circumstances as real then they’re real in their consequences” o Regular cultural and political thing. Autonomous from drug problems that are out there. Moral Panics. Chemical “bogeyman” (or “woman”). o But just because we call it symbolic doesn’t mean it has material consequences! o Drug Wars from Doris Provine in Unequal before Law o Total Arrests: 2005 14,000,000 Drug arrests 1,800,000 or 12% o 772, 000 arrested for pot or 44% of all drug arrests o 1982-2004 12 million arrests on pot charges o Feds: 30,000 arrested for Drugs: 46% Hispanic, 28% Black and 25% White o Contributes to the 2,500,000 million incarcerated folks o Or over 700/100,000 o Drugs: 22% of all adults in prisons and 35% of federal prisoners o 1980-2002 state and federal prisoners rose 1300% o Ave Length behind bars for drug offenses 83 months o 111 months for murderers o RACE AND CLASS INEQUALITY IN DRUG WARS o 13% users of illegal drug are African Americans (use in same proportion as whites) o But represent 39% of all arrests o 59% of those prosecuted o 75% of those incarcerated for drug offenses o (even though 77% of all illegal drug users white; only 15% black but 40% arrested, 60% prosecuted and 75% incarcerated are black) o Maybe this disparity just applies to hard drugs? Nope! o Blacks and Hispanics constitute 20% of pot users but 60% of those sentenced to prison o In some states the disparity even greater: Maryland 9/10 incarcerated for Drug offenses Black, even though only 28% of pop. o Similar in just about all states: New Jim Crow Laws according to Provine o Big study in Seattle: Katherine Beckett: those arrested for selling heroin, coke etc 63% black, 19% white and14% Hispanic, even though the majority of drug dealers were white. o Fed sentencing: Crack vs Powered coke o 1986 Drug Abuse Act: 5.01 grams of crack minimum 5 years for dealing. For 5 grams only a year o For Powered coke 500+ grams or over a pound for 5 years! 100 to 1 ratio. Just pulling numbers out of thin air! Black 90% of crack offenses, less than 1% white o History of Drugs and Legislation o US history of drug use has wild swings between tolerance and condemnation. o During 16/17 centuries we consumed a ton of booze. o 1800s A use declined as the legal control of A increased. o However, explosion in use of other drugs. 1875 beginning of drug control o First substance to be legally controlled was A, then Opium. o During 1st part of 20th century quite a bit of legislation enacted. o Why? US was described as a drug (or maybe “dope”) fiend’s paradise. Why? o Some argue that it was due to the primitive level of medicine. And backward nature of medicine. Pain and suffering. Physicans didn’t know that washing hands could prevent the spread of bacteria till 1890s. o Opium was used for just about everything dealing with Pain, seemed to cure all sorts of ailments like diareeha, cancer, female problems, dystenteria, even common cold. Could get it as a prescription from most physicians and even the 1897 Sears catalog advertised hypodermic needle kits for sale. o Cocaine was legal and in a number of wines and soft drinks like coca cola and didn’t remove it till 1906. o Part of the problem is that drugs like coke and opium were used in “mild” forms. Coca leaves only contain about 1% cocaine or less whereas crack is over 90%. o Moreover, more powerful opiodes like morphine and heroin hit the scene in 1803 and 1874. Cocaine was isolated from the coca leaf in 1859. o And all of this created severe problems. Estimates of addicts were from 100,000 to 1,000,000 (David Musto claims the number is closer to 250,000 but these are just gross estimates). Most were medical addicts, white, middle class and middle age women. Others were opium smokers who were largely Chinese and criminal morphine addicts. Probably around turn of century 80,000 or so coke addicts. o Beginning in late 1800s a number of folks started to worry about the number of drug addicts in the U.S. And alcohol prohibition started around early 1800s culminating in the Volstead Act of 1919. o Opium: Discrimination against Chinese Immigrants on the West Coast. SF passed the first anti-opium legislation in 1875. In 1881, CA passed the first state bill that punished just opium den operators (who were Chinese). None of this legislation was directed at Anglo importers however. o Harrison narcotics Act: 1914 U.S. Congressman Francis Burton Harrison (New York Democrat). Fed law controlling opiates and coke. Why? Public was convinced that users of these substances were minorities. Bill slipped through congress virtually unnoticed ala Provine). Approved in a few minutes. Wasn’t even reported in the NY Times! o Bill was ambiguous. Physicians were the only ones who could dispense these narcotics. (phrase in the bill stated “prescribed in good faith” or something like that). o Some 30,000 physicans were arrested during this time and some 3000 actually served time for “maintaining patients” on these drugs. 1919 Supreme Court ruled that Maintaining patients was not in “good faith.” Criminalization pretty much starts at this point. o Marijuana TAX ACT 1937 (followed on the heels of the Machine Gun Tax Act earlier in that year). TQ o 1914-31 local phase of pot legislation. Wasn’t in Harrison Narcotics Act. Discrimination against Mexicans in the U.S. (very similar to the misleading and inaccurate attempt to link opiates to Chinese immigrants and Cocaine to Blacks in the South). o Marijuana was the Assassin of Youth according to the Head of the Narcotics Enforcement Bureau, Harry Anslinger. $100 per ounce tax. Anslinger exaggerated effects of Pot o Post-Modern and Micro Approaches to Law and Society o Postmodernism o No ultimate knowledge or reality or truth o No more metanarratives like Marx, Durk and Weber o Modern world has ended; we are now in the post-modern world (some claim late modernity or late capitalism) o End of the Enlightenment and Romantic thinkers who believe in reason and science o Po-Mo continued o Postmodernist thinkers challenge the belief that we can come up with “truth” through reason and that we can construct a better world (Hey sounds like Weber!) o How does po-mo relate to law? o Modernist belief in law is that it embodies the prevailing values etc of the majority in society o Modernist view is that law promotes order ala Durkheim and brings about uniformity, continuity and predictability to legal decision making ala Weber o Po-Mo: it isn’t the law but the interpretation of law that’s crucial. The interpretation is the legal ruler of things! (now you can see where the micro folks and Foucault come into play; think about the Rodney King Trial Video!). o Foucault o Discourse generates truth or truth claims o Truth is not produced impartially but involves power o Truth is politics; what counts as true is a power thing, never neutral produce of reason or science etc. o This isn’t a bad thing or good thing; it just is. o Foucault o Moreover, power is not something that emanates from a central source ala Marx (power comes from the base or economic); o Power is scattered all over the place. It is micro and we need to exam the micro techniques of power as these are applied. o When we look at the law for instance we see power applied through a whole host of techniques: experts, scientists, medical personell, not to mention attorneys, judges etc o Power in the R.King Trial o Just an example. Make sure to go over the readings in the encyclopedias for a more detailed understanding. o Sgt. Duke and expert witnesses. How is “truth” assembled as an object of “knowledge.” o 1. Coding Schemes or how we organize the world into categories. o 2. Highlighting or foregrounding aspects of reality, bringing certain items into prominence while backgrounding others. o 3. graphic representations. o R. King continued o Terry White the Prosecuting Attorney said: The tape speaks for itself. “It can’t be rebutted”. o The defense claimed otherwise, that the tape showed finely crafted police work (or legitimate police work or whatever you want to call it) o The defense used the tape to control perception of the jury o R. King continued o Duke coded aggression as a legitimate police practice: a coding scheme for the escalation of police aggression. o Remember what he said: “There were ten distinct uses of force rather than a single use of force.” “escalation and a de-escalation and then an assessment period.” He does this 10 x. o (metal tools for batons and kicks=police “tools” o Notice how he used the “pointer” to display things like “now we see the buttocks starting to rise” o R. King continued o “Buttocks starting to rise” = foregrounding R. King as the “aggressor” “in control of the situation” while the passive “we see a blow being delivered” backgrounds the police violence (no agent!). o Remember too he used the term “charged” provide instructions to see what was on the tape. Rodney King is highlighted on the video tape while the officer’s are backgrounded (they used a special lighting effect for this you might recall) o R. King continued o Shows how experts speak as “professionals” to create the objects of knowledge or truth claims as Foucault mentions. But as Foucault notes this isn’t truth in some absolute sense but relative to the mobilization and deployment of effective techniques of power. o EM/CA/Goffman o You can see that the so-called “micro” approaches that Foucault advocates are a bit more important than we might original think. o Several of these approaches are crucial to understanding law and society: EM/CA/Goffman (we’ve discussed these throughout the course and illustrated them but I’ll do it once again a bit more systematically) o Micro continued o As Travers mentions in the ELS: How is the objectivity and social facticity of law produced? o As Rawls mentions in the EST and Travers in ELS, EM wants to know “what are the concrete practices that produce the order of social action”? In the CA entry she states that “conversation is orderly in its details.” Notice that we’re not interested in concepts or categories or classifications or analytic or theoretical schemes or statistics or interviews but how you and I actually produce social order in our practices. o Micro continued o Most of us think this domain is “too messy” to study but for EM/CA that’s totally inaccurate (not to mention lazy thinking). CA is the major part of EM that’s interested in the production of conversational order (like the order of passing through a narrow doorway during the end of class etc). How do we take turns etc? o Micro o You can see the relevance of this in courtrooms for example quite clearly (also think of the jury deliberation video too). o Mercer Video here to illustrate. The law is talked and embodied into being. o Erving Goffman o Focuses on the interaction order. Similar to EM/CA but he tends to use concepts rather than concrete real practices. o Dramaturgy: Social Life is like theater. Impression Management (recall the Emerson example of “saving”). o Front stage and backstage performances (misdemeanor rape and homicide) o Forms of talk: footing (relation we take to our utterances) Video again o Death Penalty o Role of Deterrence is questionable. Arguments for and against DP o One of the most important topics in law and society and law and social control. o U.S. only Western society to still have DP. However, other countries like China still have the DP, where several thousand executions occur each year. Usually shot in the head after a parade. o Settlers to U.S. brought the DP with them. Earliest execution in U.S. was in 1608. Captain George Kendall was executed for spying for Spain. Since then over 20,000 legal executions have taken place in U.S. o Since 1976 1289 executions have taken place (textbook inaccurate once again). o 56% W; 34% B; 8% H. o 1999 saw largest number of executions:99 o Steadily dropping for the most part since then. o 43 executions in 2011; 12 thus far in 2012 o Texas executes most: 481 of the total; most executed in Southern states o Currently 3200 folks on death row. Most in CA, TX and FL o U.S. Constitution o Fifth A: No person shall be held to answer for a Capital or otherwise infamous crime, unless on presentation of indictment . . . Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . Nor be deprived of life or property o Fourteenth A: Nor shall any state deprive any person of life, liberty or property without due process of law o Prior to 1968 main issue Supreme C considered was means of execution: lethal injection, firing squad, hanging, electric chair etc o 1972. All that changed with Furman v Georgia. o SC ruled DP Unconstitutional because states gave jury complete discretion whether to impose DB or some other sanction. Lack of standards. Majority of justices felt it had been imposed arbitrarily, infrequently and often selectively against minorities. o Violated 14 A right to due process. o Furman: DP was unconstitutional as had been applied (textbook is inaccurate). Left the door open for revision. TEST Q o Furman voided 40 DB statutes and commuted sentences of 629 death row inmates, one of whom was Kenneth McDuff (whom we’ll get back to again) TEST Q o Gregg v Georgia TEST Q SC approved a set of standards for juries and judges to use when deciding to impose DP: bifurcated trials, automatic appellate review of convictions and sentences and proportionality review. o Jury guidelines: aggravating v mitigating factors such as serious features of case, extensive premeditation, planning or torture, killing a police officer (esp in commission of a crime), youth, immaturity, mental illness/retardation etc (though not all weigh equally) o Ring v Arizona (2002) Judge cannot overrule jury o Executions resumed with Gary Gilmore in 1977 in Utah by firing squad. o Post 1976 DP cases o Most important: McClesky v Kemp 1987: TQ Finding of racial discrimination at aggregate level does not mean that practices of individual courts are discriminatory. Racial discrimination must be proven in individual cases; Racial disparity is NOT equivalent to racial discrimination.TQ does Opponents of DP lost their best chance at having it found unconstitutional. o Balbus Study: McClesky used the Balbus study which found that in Georgia a capital sentence was given out 22% of the time for a B defendant killing a white victim but only 3% of cases with a white defendant killing a black victim (compared to 8% with a wd and wv and 1% of cases with a bd and bv) o McK argued that his sentence violated the Equal Protection Clause of the 14 A (deals with unequal justice etc) since statistically he stood a greater chance of getting the DP because the victim in his case was white. (Balbus found that BD who kill a WV are 4.3x more likely to get the DP) o He was executed in 1991 o This is where things start to get interesting from a law and society perspective. The SC ruled after Gregg that the DP was constitutional. However, the Legal Defense Fund challenged a number of cases and the justices felt that they were challenging their authority. The justices wanted DP sentences carried out via their ruling. o Justice Powell was especially concerned about this, publically! He and other justices felt that their decision upholding the constitutionality of the DP was not being taken seriously. Basically they were upset (big time!) with the Legal Defense Fund capital litigation campaign in the late 70s and early 80s. Justices viewed them as abolitionist zealots embarking on a crusade against the DP. o Once again, McK claimed that the DP violated the “Cruel and unusual punishment” clause of the 8 A th and Equal Protection clause of the 14 a. (protection against arbitrary and discriminatory distribution of the DP) o But Justice Powell asked: “was discretion abused”? If it were just an issue of discretion then this would question the entire CJ system and Law. (would jeopardize it according to Powell). Even so Powell and other SC Justices accepted the study’s findings as sound). o So Powell chooses to focus on realizing the CJ system’s goal while saying nothing about realizing racial equality. Isn’t that Jeopardy too? Why no concern with racial equality? o Given the occurrence of discrimination in the system why is that legally “irrelevant” under Equal Protection? o Just some issues to consider along with tactical ones (eg the NAACP was not in favor of using McK as the challenge vehicle. Why didn’t they support this case? What do think? 2 big aggravating conditions, either of which would have sufficed for the DP. o Deterrence? o Specific Deterrence doesn’t apply to the DP. General Deterrence doesn’t work. Why? As we’ve seen murderers along with other criminals are impulsive. Weakest argument for the DB. Some studies have compared murder rates of states with and without DP. If DP had any effect one might expect DP states to have lower homicide rates than those without DP. No correlation. Before and after studies? Compares murder rate before and after abolition/reinstatement of DP. If DP has deterrent effect one would expect higher murder rates in states following abolition of DP and lower rates for states that had reinstated it. But no correlation. Once again, go back to the GTC or Self Control Theory. Best explanation why the DB has no deterrent effect. o Maybe general deterrence doesn’t work because of the lengthy time between sentence and actually execution? (once again GTC here). But if you want more comparative data, check out the data from the 1930s: 1676 executions or 167 average per year, higher than any time in U.S. history. Average length of time between sentence and execution was less than a year. Still homicide rates were well higher in the 30s than in 50s/60 were average was 14.4 months. No reason to believe that increasing frequency and swiftness of executions would increase DP deterrence effect. Why? GTC. Here’s a tidbit. In 1934 “Doc” Williams was executed in Florida 33 days after apprehension and only 45 days after crime committed! TQ o Cost o What about economics of execution? This is a big issue. o Pre-Furman costs not an issue. o Post-Furman costs: SC requires super due process! Average cost per execution ranges from 2.5 million to 3million dollars. More popular cases cost way more. 10 million for Ted Bundy and 96 million for Timothy McVeigh! TQ o Ave cost of life imprisonment is 20-25,000 so assuming an inmate lives 50 years and assuming plea bargains the cost is 1 million. You do the math. o Why so expensive? o Pretrial Stage: capital investigations cost more o More rigorous have to prepare for both trial and sentence phase o File motions o Voir dire o Jury composition o Death qualification process challenges o Experts o Trial Stage: No plea bargains o Trials bifurcated o Juries sequestered o Requires 2 attorneys o DP cases last 100x more than average noncapital murder case o Automatic and infinite appeals. Special appellate attorneys required. Charge way way more than regular attorneys. Tim McVeigh attorneys received 15 million for their efforts! o More expensive to house Death Row inmates. Added security, single cell confinement. CA has to spend 100 million for a new facility! o No question about it. The DP is way way more expensive than LWPP (the actual execution is not that expensive however. Usually run less than 100,000$. Lethal injection usually run around 30,000. o So basically DP could be replaced with LWPP at substantial savings. No question. (Go over DP Information Center Data on 2012: section on “financial facts about the DP”). o But wait a minute! Here’s an argument for you DP folks (beside the retribution issue), and it’s not an unimportant consideration. o Isn’t a good part of the CJ system a big waste of money? Think about the war on pot with billions year after year thrown down the toilet? Why pick on the DP? It isn’t about deterrence but revenge plain and simple a la Durkheim o What about errors? Are we executing the innocent? o Quite a few criminologists claim that a major problem with the DP is that innocent people frequently get executed. o Since 1973 over 130 people have been exonerated o Keep in mind this: SC has mandated a system of super due process for the DP. An obvious consequence of this extraordinary caution is that capital sentences are more likely to be reversed than lesser sentences are. o However, there’s no evidence that an innocent person has ever been executed. (I’m sure there has been but there is no evidence of that). However, there’s evidence that many innocent people have been murdered because of our mistakes in failing to execute. Kenneth McDuff is a perfect illustration of this. Only person to have the DP commuted by Furman, released from prison, committed new murders, given another DP and finally executed in 1999. TQ o So this depends on how you look at it. If we think of errors then this means (a) super due process or (b) errors (keep in mind all trials have errors but the issue is: what type of error?). o Is the glass half empty or half full etc. o Sentencing in the U.S. o Goals of Sentencing o 1. Retribution: Revenge. Old Testament: Exodus 21:24 “Eye for an Eye; Tooth for a Tooth” o Basically you should be punished in an equal manner reflecting crime. o Typically used as a justification for the death penalty o 2. Deterrence: keep crimes from occurring. People will avoid unpleasant things if they know punishment will occur if they’re caught o (Right: Rational Choice) o 2 types: specific (discourage offender from committing more crime in the future); general (keep potential offenders from engaging in crime e.g. Jim Bakker and the PTL Club) o 3. Incapacitation: keeps someone from committing more crime by putting them in prison or jail or executing them o 4. Rehabilitation: change criminal so they become law abiding. MECC example – college degree program in prison from U. of Missouri o Type of Sentence o Determinate Sentencing: specific, fixed period sentence ordered by the court eg 2 years or 3 years etc. No opportunity for parole. Legislature fixes the penalty for specific offenses (eg drugs) o Indeterminate sentencing: offender sentence for a set range of time like 5-10 years. Conduct such as good time taken into account in deciding release date. Parole board decides to grant or not grant discretionary release. o History of Sentencing o 1930-1970 indeterminate sentencing o Primary aim of IS rehabilitation o Tailor sentence to the individual o Judge gave the sentence and parole board decided release o Extensive time off for good behavior etc o 110/100,000 from 20s-1970 (compare to 2007 with 750/100,000) o IS reflected Progressive Era beliefs in crime control and rehabilitation o After 1970 questions about rehabilitation, individualization and discretion arose o Thought to be “lawless”, too much disparity based on race, no transparency and/or predictabilty o Rehabilitation a failure o Funny thing is that most simply assumed rehabilitation worked. No credible research ever conducted on it o 1975-mid 80s liberal reform movement sought to make sentencing more uniform o 1985-96 harsh determinate sentencing o Mandatory sentences o Truth in sentencing (85% must be served); under the Violent Crime and Law Enforcement Act of 1994 if you wanted Federal Funds for prison construction you had to prove you were using Truth in Sentencing for violent offenders. o 3 strikes o LWOPP (life without possibility of parole) o No credible research conducted here either (eg no evidence that 3 strikes works) o Crime Control becomes a political football in the 80s o Crime policy and drug control became highly moralized, simple “right v wrong” issues o Affects minorities heavily o Prison population and minority imprisonment increased rapidly o Mandatory minimums, 3 strikes and truth in sentencing greatly increased the length of prison sentences and constitute a major cause of the 5x increase between 1972-2007 o Express moral outrage a la Durkheim o Research found that severe sentences had little if any effect on crime rates o Best example from this period is the 1986 Anti-Drug Abuse Act passed by Congress. o Mandatory Sentences for drugs such as the 100-1 powder v crack ratio. 5.01 grams of crack gets you mandatory 5; 499 grams of powder gets you probation o Transfers disposition discretion from judge to prosecuting attorney (who typically run for office on “get tough on crime” rhetoric) o In fact, minor trafficking offenses get sentences greater than violent and sexual offenders. o Think about all the sentencing disparities we’ve talked about: New Jim Crow? o Funny thing is that 16 out of 19 black members of the house co-spon the bill! o Most of the 16 wanted even harsher penalties! o What is the theory of punishment or rationale for such harsh sentencing? o (public wants it or that support candidates tough on crime etc. o But none of these political and policy arguments address the issue: How can we justify doing that to this particular offender? o Cesare Beccaria, Jeremy Bentham and Enrico Ferri (along with other progressive thinkers) felt that the primary purpose of punishment was to minimize harms associated with crime o Most of the CJ system like penitentiaries, reform schools, probation, parole, were based on this goal. o With the tough on crime period beginning in the mid-80s all this philosophy of proportionality went out the window. o Mandatories, truth in sentencing, 3 strikes and LWOP paid no attention to the notion that the punishment should be proportionate to the offense. o We went from proportionality to harsh punishment, lengthy sentences and incapacitation with no credible evidence that such approaches would do anything. o To put it another way, punishments have taken little account of the offender’s interests. o Apartheid South Africa and the former communist states of Eastern and Central Europe and the former Soviet Union also fall into our camp in case you’re interested. o Offenders were considered “Kaffirs”, “class enemies” or “social parasites” . o All these societies take no account of consideration relating to JUST treatment of offenders. o That’s the only way that extraordinarily disproportionate punishments can be understood. o These policies have little or nothing to do with justice. o And of course they don’t have anything to do with deterrence as we’ve seen. o Well doesn’t incapacitation via lengthy sentences work as a good method of crime control? o No they don’t work as effective crime control? o Why? o Replacement effects. Think about drug trafficking? Arrested dealers quickly replaced by new recruits (low barriers to entry as we say). o Relatedly disadvantaged young folks overestimate the benefits of drug dealing and underestimate the risk. o So arrests and imprisonment of street level dealers and/or gang members just creates illicit opportunities for others. o Think about criminal careers. Many of the folks confined would have quit offending long before their prison sentences expire. o We’re talking about our life course theories and the onset, persistence and desistance in criminal careers. o One variable here is the “age-crime curve”. o Large numbers of young people commit offenses but those rapes peak in the midteen years for property offenses and late teen years for violent offense and then rapidly decline. o This is natural desistance or quitting criminal activities in the late teens and early 20s. o So confining folks after they would have desisted from crime is inefficient. It also may be criminogenic and operate to extend criminal careers of people who would have otherwise desisted o (see the “natural history of alcoholism” by George Valliant for a discussion of this or Terry Moffitt’s work) o Why does one country like Finland reduce imprisonment rates by 2/3 between 1965-90, German politicians hold their imprisonment rate flat but American politicians allowed ours to quintuple? o Why do politicians in one country or state do one thing and another country or state do something different? o Starts in 1964 when the Republican pres candidate Barry Goldwater turns crime into a partisan political issue. o Dems learned they couldn’t win head-to-head elections in which Rep made crime a major issue, unless they too became “tough on crime”. o Bill Clinton (running for president in 1992): “never let Rep get to the right of Dems on crime issues” (this was on the several hour PBS special on Clinton that I watched) o So once crime control becomes partisan politics evidence goes out the window o We knew before the get tough period that deterrence and incapacitation didn’t work (all this before 3 strikes, truth in sentencing and mandatory sentences proliferated). o Proponents of these laws wanted to win elections and gain political power and weren’t about to let any evidence get in the way (think about Michelle L?). o What’s interesting about sentencing leading up to the next period is that we’re in a stalemate mode since 96/7 or so. We haven’t seen many new punitive laws enacted (both Dems and Rep figured out that the other side would “outcrime” them so why waste time playing tic-tack-toe – remember the movie “War Games”). o The only problem is that one enacted these get tough laws don’t go away. o So in the first sentencing phase rehabilitation the goal; in the second fairness; in the third retribution o 4 phase much more difficult to characterize o Some sentencing greater punishment o Others seek to reduce cost o Others seek to reduce recidivism o Some seek greater fairness o In the 4 stage we see: o Specialized courts like drug courts o Reentry and treatment programs o Authorizing release under harsh sentencing 3 phrase (consider recent Presidential Clemency Program of 2014 18,000 applied) o Restorative Justice Programs o Maybe this new era will be more “enlightened” than the get tough era as witnessed by the President’s new clemency program? o If so, I have some simple solutions. o Get rid of 3 strikes, mandatory min, LWOP so judges can decide case by case and reestablish parole release o The question then becomes: will the current President go all the way with his power? o Why not? o He’s in late second term? o Maybe he’ll do the right thing and bring in that old thing called “justice”. o Courts o Courts Function? What is their role in Society? o o Process Disputes: resolve disputes brought to them (passive) o Provide environment and procedures for resolving conflict and ventilation of disputes. State channels and controls conflict in society. Sets the terms on which conflicts revolved. Courts therefore contribute to the stability of society or maintain order. o Just a few more functions not mentioned in your textbook. o o 2. Behavior modification o 3.Mediate between citizens and government o 4. Policy Making (most important function of courts). Refers to the establishment and application of authoritative rules. E.G. Roe v Wade, Volstead Act, 1965 Voting Rights Act, Brown v Board, McKlesky v Kemp, Furman v Georgia. o 5. Symbolic Function. Courts uphold basic values: Prohibition good example o Adjudication o Another term to describe what courts do o That is, settle disputes through a legal process o Means to hear and settle a case through judicial procedure o Structure of Courts (How courts are organized). o o Dual Court System: Fed and State systems o Jurisdiction: power or authority to hear a case or motion and determine a proper remedy. o o Jurisdiction can be defined in a number of ways o Geography o Subject matter o Persons or parties entitled to bring cases before the court o Original Jurisdiction is the authority to try cases. Court of first instance. Trial Courts. Applies to state and feds. Focus on facts. o Appellate Jurisdiction: authority to correct legal errors of lower courts and to reverse of amend their judgments. (Muhammed Ali, Post Penetration Rape in Maryland or Bobby case, rape shield in Mo and Indiana, mediate a prisoner on death row to make them sane enough to be executed/Singleton case). Have facts been applied correctly and law been correctly interpreted? o Federal Courts o Jurisdiction: US is a party, violations of U.S Constitution or law passed by congress, cases involving citizens of different states and a few others such as bankruptcy and patent cases o Of course some cases can be held at both Fed and State levels: eg cross-border drug trafficking o US District Courts o 94 US District Courts (trial courts of the Federal System) o 680 district court judges (eg Northern District of Illinois has more than 20) o Each district court also has a number of “magistrate” judges who assist district court Judges in both civil and criminal cases (around 500 magistrate judges) o Most cases in federal court are civil cases o 2006: 260,000 civil cases; 83,000 criminal cases. o Also prisoners can petition fed courts to review the Constitutionality of their confinement. 55,000 of these go into the pot o US Court of Appeals o Next layer at the Fed level are U.S. Courts of Appeals: handle appeals of decisions handed down by the U.S. District Courts o 15 Courts of Appeals o Handle both civil and criminal appeals o 50,000 cases or so annually with 2/3 dealing with civil matters o 179 judges assigned to the U.S. Courts of Appeals o US Supreme Court o Highest court of the land o One chief justice and 8 associate judges o No inherent right to appeal to the US Supreme Court o The SC selects cases it wants to hear o Average requests around 7000 annually o But only hear 100 of these o So you can see that your chances of getting to the SC are not good o Can hear cases from both U.S. Courts of Appeals as well as State Supreme Courts o Handle cases dealing with Federal issues o Eg person’s constitutional rights violated, defendant was denied a fair or speedy trial, the jury was selected in a racially discriminatory manner etc o State Courts o Most criminal and civil cases heard in state courts (more than 100 million cases annually in both state and fed courts but 98% of these handled by the state courts). o 60 million traffic cases, 21 million criminal cases, 17 million civil cases, 6 million domestic cases, 2 million juvenile cases o Structure of state courts o Courts of limited jurisdiction (traffic) or sometimes called “municipal” courts (around 13, 500 in the U.S.) o Trial Courts o State appellate courts o State Supreme courts o State of Illinois o Illinois Supreme Court: hears cases from either appellate or circuit courts (2700 cases in 2012). 7 justices Ultimate power in cases eg dealing with state revenue, death penalty etc (when we had one) o Appellate courts (5 districts and around 8000 cases annually) o Circuit Courts are our Trial Courts. 24 Circuits in state for 102 counties. Most cases heard here o 3.28 million cases in 2012 o Circuit court judges run for office every 6 years o Circuit court of Cook County largest of the ciruits in Illinois o Over 400 judges o 1.2 million cases annually o Adversary System: Game, 2 sides try to win, Neutral Umpire decides if sides are playing by rules, neutral fact finder decides who wins. o o Critiques: 1. Too Slow 2. too low value placed on truth o Participants in court process o o Prosecuting Attorney: Represents State or Federal Government. Guides case development, issues search warrants, calls witnesses etc. Most powerful figure in the CJ system. o o Defense Attorneys: Person who specializes in or handles defense o o Plea bargains: Result of negotiaton between prosecution and defense (eg Granny) o horizontal: number of counts o vertical: over seriousness of charges o severity of sentence or sentence bargain o o o Juries. Begins with drawing a Panel of prospective jurors. o Representativeness, peremptory challenges, Kalvin/Zeisel Study o o Jury Consulting or Scientific Jury Selection: Video o o Jury Consulting o Scientific Jury Selection o o Use small group and focus group discussions, shadow juries, surveys etc to try and pick the most favorable juror. Used in big cases like Kennedy Smith, OJ, Martha Stewart (didn’t help I guess), McMartin day care abuse, John DeLorean, etc. Couple of issues: o o Is it effective? Very little evidence to support this other than anecdotal claims from the consultant’s themselves who make quite a bit of money. Remember science is an empirical enterprise based on the key issue of replication. How do you test, verify and replicate the claims of jury consultants? First, you have to separate attitudes (and keep in mind people lie or say what should rather than what is). Then you have to separate evidence. Then you have to test the strength of each in particular cases. Consider this: how much evidence is presented? We may be talking about millions of variables. You could claim that as Nietzel and Dillehay 1986 did in their book on jury consultation that the jury gave DP verdicts 61% of the time without consultants present for the defense compared to 33% when consultant were used but this still “begs the question”: how do we know it wasn’t some characteristic of the crime, presentation of the evidence and so on? Is it ethical? Does it subvert the CJ process a la the video? Does it favor the wealthy who can afford it? o Conclusion: Empirically and scientifically we have little if any evidence that it works. (Kennedy Smith case and “Cat” Bennett (used in court-observations, gut feelings and intuition not aggregate data. Felt it was more an art than science. Use open ended question and get the potential jury to know or establish a relation with the attorney). She was probably right. RIP). o But it makes money! 500 million per year in revenue. Charge 300-400 per hour 10-250,000 per case. o o Conclusion? Jury consulting is like folks selling those expensive “air fresheners” or “air cleaners” that my wife always buys. Or in Shari Diamond’s words “blatant voodoo” (let’s not be so harsh; I prefer to think of it as another type of legal religious ritual like a charm or chant to ward off the devil etc). o Another issue: what about group dynamics and the power of some group members to influence others (use Solomon Ash’s experiments on perception and accuracy). The group is more than the sum of individual biases (remember the LeRoy Reed video? The jury has it’s own dynamics. Also, if we’re looking for group characteristics the problem here is that people aren’t a member of one group but multiple overlapping groups (male, shareholder, heterosexual, married, parent, moose lodge member, son, Democrat, veteran of WWII and so on endlessly). Perhaps it might be a combination of both presentation of evidence and preexisting attitudes? Roy Black and the tape example. Or could it be the case that cases where consultants are used are weak cases in the first place? Or could it be that attorneys who use consultants are better prepared and diligent in the first place? o Is it ethical? Does it subvert the CJ process a la the video? Does it favor the wealthy who can afford it? o Jury Consulting o A more useful, charitable and accurate (in my vain view of course) view of jury consulting or scientific jury selection is this. Go back to my analogy about religious rituals, priesthood etc. Why do we have religion? What does religion do for societies, groups and individuals? That is, what is its function? o o One answer is that it provides a way to make sense or create coherence in our lives, to provide meaning and predictability to the unknown, to manage the inherent insecurity of social life and the endless contingencies and fears of human experience. (or put more mundanely, it's a security blanket). o o What if scientific jury selection functions in the same way? (of course, it pays well too!). That's why attorneys dislike trials or what they refer to as "rolling the dice"; you don't know what's going to happen. Even Roy Black was worried about losing the Kennedy Smith trial (see chapter 1). Maybe in this regard scientific jury selection is an "offering" that plaintiffs and defendants pay to the high priests (and their "deacon" consultants)? o o (or something like that). o o Legal Profession o Professionalization o “transformation of some nonprofessional occupation into a vocation with attributes of a profession” o “seek to constitute and control a market for their expertise” o Weber: legal profession is indispensible to the legal order in Western Societies; professional attorneys are dominant actors in the system o But what is a professional? Where do they come from? o Functionalist Theory o Professions arise to meet distinctive NEED of social system. Good thing. By making their expertise available to layfolks in a carefully regulated way, professions serve the public good. o 2 elements here. o A. autonomous from other centers of power: regulate their own affairs o B. self-regulating: people who judge competence of professional experts are others in same professions (helps the consumer) o Flattering view of professions? o Does it produce benefits to clients or shield incompetent practitioners (rather than eliminate them) o Weber’s Theory of Professions o Workers in every occupation seek to maximize prestige, incomes, and practical autonomy and best way to do that is by acting collectively to establish a monopoly over the work they do o Once workers achieve control over who enters their profession they also gain substantial power to regulate competition, wages, and work process itself o Seen through W’s eyes, lawyers seek to create monopolies where primary goal is fight off competition from outsides and raise status of members. o Distinctive features of modern profession is that they offer modern forms of expertise. Political and business leaders need them. o Whenever you hear this word “need” like need professional expertise it seems like the functional theory but W departs from this significantly o Why? For W need and expertise are negotiable and socially constructed categories; they are not based on objective utility (that is to say, lawyers create a demand for their services and work to maintain confidence of consumers) (compare this to Davis-Moore theory of inequality) o In many respects this is similar to Goffman’s theory of IM where some individual or group seeks to project some image that they wish the other(s) to buy as it were. o So expertise for W is not a precondition for professional status; in fact, occupational groups claim pro status before they have developed an effective body of expertise (remember our discussion of jury consulting?) o How is expertise established? o Professional association; licensing committees; set orthodox standards; establish universities; socialization rituals like bar exams and professional certification o Once again, expertise is not a precondition for professional status but follows from it o For W professions are under constant demand to create new knowledge to stimulate demand; if work becomes too routinized then consumers may do the work themselves. (treat their own illnesses, file own divorce papers etc o So formation of a closed pro community encourages development of new knowledge (esoteric language a la law) that is constantly out of the reach of lay consumers. o Goal: monopolize service (limited availability of training centers or manipulate standards for certification like Bar Exams etc o By the way, instead of bar exams there use to be an apprentice clerk system o Establish jurisdiction over a given service and then try to extend that jurisdiction (guards against encroachment by other professions such as notaries, paralegals, accountants and legal secretaries. o How many Lawyers? o 1.2 million or so: 30% women; 5%AA; 3% Hispanic; 92% white o 150,000+ in law school. Almost half female o 2/3 of all lawyers live in U.S. with only 5% of the world’s population o We have 3x as many as in U.K.; 25x as Japan; o L.A. has more lawyers than France o Law fastest growing profession in US o second highest paid profession in US o Where are they? o Most in private practice75% o 12% in govn o 12% in private employment o Rest teach in law schools o Out of around 10,000 FBI agents 1500 have law degrees o Of course, some very famous people with law degrees do other work: Tony LaRusso and Fidel Castro o Minorities in Law o 1950-70 2.5%-3% women o 2012: nearly 50% of law school students female o 30% of all attorneys female Vago 355 o What are effects on Law? Bryna Bogach o Few women are partners 1 out of 13 o Discrimination against Blacks/Hispanics o ABA excluded Blacks until 1943 o Most of the large U.S. firms have no Black partners and 1/6 have no Black attorneys o ¾ have no Hispanic partners o ½ have no Hispanic attorneys o 5% Black o 3% Hispanic o Criticisms of Lawyers o Don’t serve everyone just the wealthy. Expensive fees 500 to 1000$ an hour; contingency fees from 33 to 40% o Complicate the law so consumers must have a lawyer to represent them o Fee setting; charge by hours that encourages delays o Example (for pedagogical purposes only) o Associates bill clients certain # of hours per year; that’s how partners make money; (partners are owners of firm) o Eg 50,000 associate who charges 100$ per hour o 500 hours firm gets salary back o Another 500 hours get secretaries and overhead paid o Add another 500 hours and you get 500x100=profit for partners! o What’s wrong with that? Leads to delays and frivolous law suits o Keep in mind that partners generate income too but bill at a much higher level o Frivolous Law Suits o 1962 85,000 lawsuits filed in Fed courts o 1982 240,000 o 1992 1 million o 2011 2 million o 2011 15 million in state courts o Football fans sues ref over bad call; adult man sues parents for lack of affection; man sued Bud over misleading advertising because he never could pick up the beautiful women portrayed in beer ads o Prisoners sue over melted ice cream; Robert Brock sued himself for 5 million dollar because he violated his own civil rights by allowing himself to get drunk and commit crimes; Movie producer Oliver Stone gets sued after someone sees “natural born killers” and goes off on a killing spree; Women sued Universal Studies because haunted house was too scary; o Watermelon comedian? o Too many lawyers? o Are countries talents being wasted? See Law and Social Inquiry issue 1992 on lawsuits cost the U.S. over 600 billion in lost revenue o But consider o 1. Prosperity: increases demand for attorneys (nearly 300,000 in China now; ignore Vago) o 2. Regulations: pension reforms, improved safety standards o 3. expanded Rights; Constitutional Protections o If you enjoy 1-3 and believe in them then you’ll have more lawyers. As we see from Weber and the case of China whenever you have capitalism and a growing economy and affluence you’ll have more lawyers. o Lawyers in action (real live stuff) o Ancient Rome lawyers were called “orators” or folks who argued cases on behalf of others o In England Barristers were called “story tellers” from Latin narrators. “Told clients story in court” too: “advocate was trained in the art of oratory and persuasion.” o The above shows how law is a “law of words (Peter Tiersma in “Legal Language” OUP) o Should Drugs be Legalized or Decriminalized? o I guess given the liberal professor’s discussion of inequality in the law that he supports legalization etc o Agnostic o That would be a wrong assumption. People like Provine and Alexander whom we discussed previously are good at critique but questionable when it comes to policy issues. o What to do? o Legalization? Medicalization? Punitive? o Cocaine Pharmacology: Grabowski o Cocaine Changes: Reinarman (1970s-90s; longitudinal study) o Any type of reform should move slowly and cautiously o Several models proposed o 1. decriminalization/legalization model. Remove penalties for this or that drug. Some states have decriminalized pot. o Assumption: people will not use more, cuts down on crime, reduces prison pop, taxes for educ and treatment. o But what if people do use more, even with “soft” drugs like pot? o National Alcohol Prohibition often cited as an example of the failure of criminalization and support for legalization. But this is problematic. o Alcohol use did decline from 1920-33. The causes of that decline are questionable but far from demonstrating the case that legalization is a better option than criminalization it may actual prove the opposite. o Lee Robins: The Vietnam Vet Returns TQ o 7 in 10 used pot in Vietnam o 4 in 10 before V o 4.5 after V o 4 in 10 used narcotics in V o 1 in 10 before V o 1 in 10 after V o Where drugs are available, cheap, etc you find much greater use o Gambling analogy o LegalizationàCommercialization->Advertizing-> increase use o Netherlands: no increase use of pot o What about the “Gateway Theory” o Nixon o Jamaica o Ideology o Punitive Model o Criminal Penalties; zero tolerance; more jails o U.S. has a punitive drug policy o Eliminate Drugs at Source? Push-Down/Pop-up o Agent Orange disrupted supplies to U.S. along with interdiction. Result? Stimulated domestic production of pot o Criminal Justice Thermodynamics: Proposing more penalties leads to less frequent application of penalty o John Galliher (Law and Society Review) on Nebraska o NY 1973 Gov Rockefeller 15 yrs to life for sale of one once and possession of over 2 ounces of heroin o 1972 39% of arrests led to an indictment o 1976 25% “ o 1972 86% of indictments led to a conviction o 1976 60% “ o Impact of law nullified; % of defendants demanding trial rose from 6% to 25% o Trials consume 15X more time and 10-20x more money than plea bargains o Medicalization o Claims that people physically addicted are sick; seek medical solution o Lives will be healthier; less crime; satisfied mainly by maintaining themselves; don’t seek “euphoric” rush o Does reduce crime rate (check out “taking care of business”) but the euphoric issue problematic o No one comprehensive policy is workable when it comes to illegal drugs; o Best scenario is to tailor flexible policy around each drug and focus on the community making the decision
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