SOC 1003 Criminal Justice Class Notes - Prof. Kenneth Leon
SOC 1003 Criminal Justice Class Notes - Prof. Kenneth Leon SOC 1003
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CRIMINAL JUSTICE SOC 100310 PROF. LEON Criminal Justice System: The system of law enforcement, adjudication, and correction that is directly involved in the apprehension, prosecution, and control of those charged with criminal offenses. Criminal justice agencies are responsible for; protecting the public, maintaining order, enforcing the law, identifying transgressors, bringing the guilty to justice, and treating criminal behavior, protecting the country from international and domestic terrorists, transnational organized crime syndicates, and cyber criminals. History of CJ: The first police agency, the London Metropolitan Police, was created in1829, to keep the peace and to identify and apprehend criminal suspects. In the 19 century, police agencies began to appear in the US, along with prisons (an alternative to physical punishments such as whipping). Chicago Crime commission was created in 1919 to oversee the crime agencies. In 1931, President Herbert Hoover appointed the National Commission of Law Observance and Enforcement. The modern day justice systems roots can be traced back to the research project sponsored by the American Bar Foundation in the 1950s. Law Enforcement Assistance Administration (LEAA): Federal agency that provided technical assistance and hundreds of millions of dollars in aid to state and local justice agencies between 1969 and 1982. EvidenceBased Justice: Determining through the use of the scientific method whether criminal justice programs actually reduce crime rates and offender recidivism. A few unifying principles; Target Audience. Reach the right audience. Targeting lowrisk offenders may make programs look good but proves a little. Randomized experiments. Whenever possible, random experiments are conducted. Intervening Factors. Intervening factors that enhance or impede program success must be considered. Crime prevention program should be conducted in a lowincome neighborhood rather than a highincome community. Measurement of success. Must develop realistic measures of success. Longterm measures of effectiveness are important. Costeffectiveness. Program effectiveness must be balanced with budget. Components of the CJ System: 1 . Police: created to maintain order, enforce the criminal law, provide emergency services, develop a sense of community and safety. 2 . Courts: the scene of the trial process. Here, the criminal responsibility of defendant’s accused of violating the law is determined. Ideally, the court is expected to convict the guilty and free the innocent. 3 . Corrections: Include community supervision or probation; various types of incarceration; and parole programs for both juvenile and adult offenders. Contemporary CJ System: Social Control: (CJ’s main function) society’s ability to control individual behavior in order to serve the best interests and welfare of the society as a whole. Mala in se: something inheritably wrong in terms of natural law. Ex; homicide Mala Prohibitum: something more arguable than mala in se. Ex: which drugs should be prohibited? Political Entities of the CJ System: 1 . Legislative: Produces CJ policy. Defines the law by determining what conduct is prohibited and establishes criminal penalties. 2 . Judicial: Interprets & tests existing laws and determines whether they meet constitutional requirements. It also oversees the CJ practices. 3 . Executive: Trusted with the daytoday enforcement. It creates and oversees agencies of justice and guides their budget. CJ consists of different entities to make this distinction. Social control is what prevents/deters these behaviors. The Formal CJ Process: CJ is formal social control. Police: 1. Initial Contact: in most cases with a police officer. Ex: a victim repots to 911 about a crime, an officer observes a person acting suspiciously, etc. 2. Investigation: the purpose is to gather enough evidence to identify a suspect and support a legal arrest. All evidence must be carefully collected in order not to break the “chain of evidence.” 3. Arrest: An arrest is legal if; there is enough evidence that the suspect has committed a crime. The officer deprives the individual of freedom. Inpresence requirement: the principle that in order to make an arrest in a misdemeanor, the arresting officer must have personally witnessed the crime being committed. 4. Custody: after arrest, while the suspect is being detained, the police may wish to search for evidence, conduct an interrogation, or even encourage a confession. a. Miranda Warning: Miranda vs. Arizona established that suspects under arrest must be advised that they have no obligation to answer questions and that they are entitled to have a lawyer present during questioning, if necessary, at no expense to themselves. Prosecution/Defense: 5. Charging: when sufficient evidence is present to prove that the suspect has committed the crime, the case will be turned over to the prosecutor’s office. The prosecutor’s decision to whether charge the suspect or not depends on many factors. a. Nolle Prosequi: the term used when a prosecutor decides to drop a case after a compliant has been formally made. Reasons for a Nolle prosequi include evidence insufficiency, reluctance of witnesses to testify, police error, and office policy. 6. Preliminary Hearing/Grand Jury: a. Grand Jury: 1323 persons, responsible for investigating alleged crimes, examining evidence, and issuing indictments. b. True Bill of Indictment: a written statement drawn up by a prosecuting attorney and considered by a grand jury specifies the exact charges on which the accused must stand trial. c. Preliminary Hearing: the prosecution files a charging document before a lower trial court, which then conducts an open hearing on the merits of the case. Suspect will be called to stand trial if presiding magistrate or judge accepts evidence as sufficient. 7. Arraignment: defendant will be brought before the court, the charges and rights are read, bail is considered, and trial date is set. 8 . Bail/Detention: a. Bail: money bond levied to ensure the return of a criminal defendant for trial, allowing the defendant to remain in the community prior to trial. Not showing up for trial= forfeit bail. If one cannot pay the bail, will remain in state custody prior to trial. 9 . Plea Bargaining: after/before trial, defense and prosecution discuss a possible guilty plea in exchange for reducing or dropping some charges, generally accepted.) Court: 10 . Trial/Adjudication: if not agreement made, a trail will be held before a judge or jury. 11 . Sentencing/Disposition: If accused found guilty in trail, will be returned to court for sentencing. 12 . Appeal/Post conviction Remedies: after conviction, the defense can ask the judge to ignore the jury’s verdict because of breaking law, etc. If that fails, may file an appeal against the conviction. Corrections: 13 . Correctional Treatment: the offender is placed in a state of federal correctional authorities. 14 . Release: upon completion of sentence/correction, the offender will return to society. 15 . PostRelease: offender may be asked to spend some time in the community correctional center. The Informal CJ Process: Courtroom Work Group: all parties in the justice process work together for their own advantage and settle cases efficiently rather than engage in the real process. Wedding Cake Model: 1. Celebrated cases; receive perfect justice procedure, followed by media, often celebrities. 2. Serious felonies; receive a full jury trial, often involved money, rape, or murder. 3. Less serious felonies: receive plea bargain, outright dismissal, etc. 4. Misdemeanors: shoplifting, public intoxication. CJ Perspectives: Crime Control: emphasizes the control of dangerous offender and the protection of society through harsh punishment as a deterrent to crime. If the justice system operated in an effective manner, most potential criminals would be deterred from crime. Rehabilitation: sees crime as expression of frustration and anger created by social inequality that can be controlled by giving people the means to improve their lifestyles through conventional endeavors. Criminals are victims of poverty, racism, lack of opportunities, etc. Due Process: whether your rights were violated in a legal encounter, everyone should be treated fairly (nor racism, religious discrimination). Some argue that legal privileges provided to criminals have gone too far. But, what if the “criminal” is a victim of slipshod justice. Nonintervention: separating act vs. identity. It favors the least intrusive treatment possible like decarceration, diversion, and decriminalization. Once a person is involved with a CJ agency, people might see him untrustworthy and dangerous, which will have negative connotations. Bearing a label disrupts their life. o Decriminalization: reducing the penalty for a criminal act without legalizing it for possession of marijuana, public drunkenness, etc. Equal Justice: similar to due process, but more activist and reformist. Focuses more on fairness. Due process: equality vs. equal justice: equity. o Racial Animus Model: America has the image ıf the typical offender as young, inner city black male. Restorative Justice: more holistic approach of what CJ should be like. Emphasizes that CJ should be distributing peace not punishment. Religious and philosophical underpinnings. End goal: forgiveness, amends, and social reintegration. Ethics in CJ: In Law Enforcement: agents can derive someone from their liberty, but have to be ethical. In Court: prosecutors should be seeking justice not targeting conviction. In Corrections; no abuse, should criminals be released for good behavior. The Cause of Crime: Criminologist: social scientist who uses the scientific method to study the nature, extend, cause, and the control of criminal behavior. Choice Theory: suggests that rational criminals choose to commit a crime if they believe that doing so will yield immediate benefits without the threat of longterm risks. Consider the chances of arrest, the subjective psychic rewards of crime, perceived opportunities for easy gains. Weight benefits and punishment. Can be seen as a function of a person’s perception of conventional alternatives and opportunities. Does death penalty meet satisfy these conditions? No because most of the time, it takes so long to follow through with the death penalty and usually the criminal doesn’t end up getting killed. Deterrence Effect: the assumed ability of the threat of criminal sanctions to discourage crime before it occurs. A punishment should satisfy the following conditions; swift, sure, and strict. Rational Crimes: a burglar weighting considering aspect of crime like choosing a place in his awareness space for having extra knowledge of the area. Situational Crime Prevention: The empirical study of crime: Behavioral: seeks to explain origins and causes, why are people aggressive, what drives people to commit crimes. Definitional: why certain behaviors come to be defined as crime. Are there winners and losers, how is the law registered? Empiricism: knowledge production that is based on observable phenomena rather than theory or logic. Moral, religious, ethical, and other forms of reasoning are secondary to empirical analyses. Criminology defined: type of crime matters! 4 General Orientations: Legalist: positivist approach: crime is simply that which violates criminal codes and statues. Law is a legislative body that passes rules nothing more. Political: political power is leveraged to define illegal behavior and to guide the creation and maintenance of criminal law itself. Crime is the label legitimized by criminal law; but the law itself is a tool. Psychological: crime is maladaptive behavior. A failure of the individual to regulate himself or herself and conform to social norms and expectations. Behavioral dimension. Problems: Scope is too broad and too narrow. Maladaptive behavior includes many things that we wouldn’t consider criminal. Sociological: crime is an antisocial act that threatens existing social structures, relationships, and cultural understandings. With both the behavioral and definitional orientations in mind, the focus is on social harm and threats to social order. Keep in mind that the social order may not be ideal. Race, class, gender, religion, social change, economics, politics, etc. Crime and deviance: Something criminal but not deviant: texting and driving, jaywalking, passing a stop sign, littering, selfdefense (taking someone’s life), white collared crime. Highly deviant but not a crime: pregnant woman smoking, adultery. Crime vs. Deviance: FBI and UCR Part I Offenses (Index Crimes): homicide, forcible rape, robbery aggravated assault, burglary, larcenytheft, motor vehicle theft, and arson Situational vs. conventional societal deviance: Societal: Widely deemed as deviant through the lens of the dominant class/group. Ex; doing drugs in public, pregnant woman smoking. Situational: Contingent on casespecific interactions. Actions/behaviors that are deviant in specific context, but may be completely normal or expected in others. Definitional Dimension. Where the time and space matters. Durkheim “Society of Saints” thesis: if we were all chosen angels, we would still find things serious enough that we would call crimes. Even in a perfect society, there will always be crimes. We need the good and the evil. “Imagine a society of saints, a perfect cloister of exemplary individuals. Crimes, properly so called, will there be unknown, but faults which appear venial to the layman will create there the same scandal that the ordinary offense does in ordinary consciousness If, then, this society has the power to judge and punish, it will define these acts as criminal and will treat them as such.” Kai Erikson – License to Deviate: “On the Sociology of Deviance”. Licenses are symbolically given to large groups of people to engage in situational deviance. These symbolic licenses are given to large groups of people, excuses them from crimes they would commit. In certain seasons, on certain days, where its okay to act in violation of norms that would otherwise subject you to informal or formal reprimands. Ex; hunting seasons, James Bond has a license to kill, Mardi Gras. How to Make Sense of This: deviance is a direct function of time, place, and space. Interacted with who is engaging in the behavior and who s controlling the message/framing the activity. Morality matters, as does political science & the dynamics of POWER. Theories of decriminalization, contingent on political capital. Criminologists don’t have ownership of these questions. Vice regulation is a field that involves ethics, morality religion, political science, geography, etc. And all of this ambiguity is absorbed by the formal criminal justice system. Crime has a political nature, due to the various criminal justice perspectives, alone which are independent or criminological paradigms. Trying this back to CJ: crime has a political nature, due to the various criminal justice perspective alone which are independent of criminological paradigms. Historical Development of Criminology: Paradigms in Science: Paradigm is a school of thought. o Overarching rules, assumptions, and constraints. E.g. shape of earth, positioning of solar system, electricity, sound waves, rationally in economics. Paradigm shift: when a field evolves, incorporating new rules, assumptions, or “laws.” o Old paradigm lingers o Ex: one of the early studies that concluded that a person’s criminality is determined by their physical appearance such as the size and shape of skull. o We can see the shift on paradigm from the pig on trial for killing someone to not blaming the dog for biting someone but making the owner responsible for the dog’s actions. Historical development: Classical Criminology th Classical criminology: was born in mid 18 century. All human beings have their own will and act in their own way. One chooses to commit crime. Crime can be controlled through deterrence. Ex: the black glass security cameras might change your mind of committing a crime, even though it’s not pointing at you. th th Positivism: was born in late 18 , early 19 century. In order to understand human behavior, the method needs to be based on something we can actually measure and have data to support our conclusion. People are influence by a variety of factors. Deterministic account would say that you are destined to be a criminal. Ex: if your bone structure is like this, you’re definitely going to be violent. Does criminality tend to run in family? Nature vs. nurture. The nature factor of this would, for example be, poor decisions a pregnant woman makes when expecting, addiction. The nurture factor would be domestic violence; psychological influences may affect children to be affected. Biological explanations: U of Cincinnati and University of Florida study which gene markers cause criminology. Popular Theories of Today: Theory Dichotomy: Is this theory more individualistic or psychological type of question, or structural/institutional? Anomie: In every culture there are unwritten, but widely accepted goals. (Ex; in the US, own your house, have a good job, etc.) And there are institutionalized means. (Ex; college education) There are acceptors and rejecters of these goals and means. Some people also don’t have access to some of these things so they do other things or take what they get. Innovators are the ones that accept the cultural goals and create alternative means. Innovation rate (crime/deviance) will be lower if there is more/better moans for attaining culturally prescribed goals. An example of rebellion would be terrorism. Social Disorganization Theory: Chicago School Paradigm–“social ecology”. At some point, in certain areas of Chicago there was a discomfort in the minority groups. Places matter more than individual characteristics. The factors that produce disadvantaged neighborhoods create conditions that are favorable to the emergence of subcultures of criminality. Ex: you will be more likely to litter an area that looks poor (trash, mattresses, etc. laying around) than downtown Chicago where the city is so clean. Labeling: Primary deviance is “normal” deviance that we all engage in. Saying a child’s act is bad rather than personality. If you happened to have a contact with CJ, you’re more likely to be labeled. If you were wearing a uniform, you would act in a certain way. You would internalize being that uniform. Secondary deviance is actions that correspond to an acceptance of a criminal/deviant identity. Differential Association Theory: Crime is learned via association & socialization with delinquent peers. Excess of definitions favorable to crime; orientations, rationalizations, justifications, excuses. “Dime con quien andas y te dire quien eres.” Routine Activity Theory: Crime; o A likely offender o A suitable target o The absence of a capable guardian GTC, Control Theory: criminal motivation is widespread and opportunities to offend are everywhere. “Why don’t you commit crime?” Social bonds (saying yes) vs. self control (saying no for your personal values etc.) Conflict: crime is a function of power dynamics between competing groups. More powerful groups use law as a means of controlling the less powerful. Drug policy example. Whitecollar crime example. Reaction to functionalist perspective. RC Weaknesses? Oversimplification; ignores the roles of social structure, socialization, etc. Enlightenment Era: brought up the questions about the church and royalty. Shift away from religious concepts. (Sin, evil, possession, demonic influence, etc.) The Crown & the Church were questioned Logic, reason, fairness, justice Equality Cesare Beccarie: with the understanding the utility, everything you do revolves around maximizing pleasure and minimizing pain. People choose their decisions based on principle utility. Discouraged vigilante justice. Punishments should be reasonable. He is the early writer of the due process Called for system of justice where the accused is protected and the method of guilt determination. CRIME What is a Crime? (Positivist Definition) Conduct (act or omission) that is prohibited by a govt (federal, municipal, state) by notice provided by a statute (regulation or common law). Crime is punishable by sanction, probation, or fine. Conduction that has a specific punishment prescribed by public law. Tort : The body of law governing relations between private parties. A civil wrong May also be a crime How to differentiate cases o Smith vs. Jones (civil/tort) o VA Commonwealth vs. Jones (criminal) Common Law: known as judgebased law. We use statutory law (written) in the US, but stare decisis is the CL remnant that guides us. Crimes are pursuant to statute; statutory law Judgemade law Common Law Origins: Judges used local custom & rules of conduct to decide on cases. Stare decisis o The decision from an earlier case becomes the standards by which subsequent similar cases are judged. People used to shake hands on deals and agreements but started causing too many problems. Starting in 1100s, royal judges began publishing their decisions. Used as a basis for decision making, generating a fixed body of legal rules & principles based on reason. Evolved over time to meet developmental needs. is still functionally alive; state courts fill in the gap when statutory law fails. Legal Latin: Mala in se: rape, genocide, inherently wrong Mala in Prohibitum: legislated as wrong Mens Rea: culpable state of mind Most, but not all, require mens rea; strict liability offenses (does not matter whether you knew or not) All they have to prove is that you intended to do the act. Concurrence between Mens Rea & Actus Rea; they must occur together. Mens Rea vs. motive; Actus Reus: action or omission Wrongful act that constitutes physical action of the crime. Words may constitute act: conspiracy, threat. Possession only if w/ knowledge & control. Des not include mere status (e.g. addict): being intoxicated, an addict is not a crime. You need an actual act. Criminal law punishes voluntary acts. Purposeful/ intentional; knowing; reckless; negligent Elements of a Crime: In order to be convicted, the govt must show proof beyond reasonable doubt (BRD) that you will o Larceny; (must prove all elements) Robbery; all of larceny + property taken form person or presence of another and taking accomplished by means of threat or force o Burglary: breaking& entering, of dwelling, at night, w/ intent to commit a felony therein. o Murder 1: murder of another human being w/ malice aforethought Acting deliberately & intentionally OR w/ callous disregard for human life. Premeditation Inchoate Liability: no substantive ac, but preparation for one. 3 types; o Conspiracy: 2+ people (cannot be govt agents/agents) Agreement to violate law or defraud govt. An overact in furtherance (this act does not have to be criminal) Pinkerton liability: as a coconspirator you are liable for all foreseeable subsequent law violations (all conspirators are agents of the other) o Solicitation: When the elements of a conspiracy are not met. Conspiracy w/agents or Agents (sworn law enforcement agents) o Attempt: Must have mental culpability required for the act Mere preparation is not enough (need significant step) Defendant must be found guilty if following elements are proven BRD; Defendant intended to commit X Defendant took substantial step towards commission, w/all rational jurors agreeing what constitutions “substantial step” It is a crime to commit C Mere preparation is not a substantial step. Factual impossibility is not a defense! o Common Law Rape: sexual assault Male or female Genital penetration by male member, however slight Husband could not be convicted (has been changed) Statutory; Nonforcible intercourse w/ a minor Strict liability offense Varies greatly among states, o Assault: Attempts by physical or verbal menace to put another in fear of imminent serious bodily harm. Attempted battery or verbal threat Assault & battery used to be separate (commonly lumped together) Simple & Aggravated o Battery: Intentional or reckless touching of another w/out excuse or justification (slapping, spitting, putting something harmful in drink or food) A completed assault The Courts: What is law? Executive o Decreed, executive orders, regulations Legislative o Statutes Judicial o Judgemade law: a common law tradition. Based on multiple lawsuits. Source of Law: Statutes Precedent (common law) Admin. Rules Constitution: laws are based on the cons. Religion: more influential on law in the Middle East based on cultural values. Morality Theoretical Concepts: Natural Law: Hobbes Locks. What law is supposed to be, law need to reflect this body of law as much as possible. Laws come form this divine law. Positivism: MLK. If it’s a statute, if a legislative body that people accept passes it, it is a law. Does not have to be based on natural law. Legal Pluralism: plurality of overlapping legal structures while occupying the same space. Ex; native American Legal Realism: what courts do have no moral objectives; law is a prediction of what laws do. Critical Legal Theory: law is a tool for political elite to have more strength and take advantage of less powerful groups like other countries). Before, With, or Against the Law? Before the law: viewing the law as a natural law theorist would. You don’t feel oppressed by it but also not for/ against it. Threating the law as a divine being and the court as a holy place. With the law: understanding the law, if you need the law/a lawyer you turn to it for help. Game of chess. Against the law Courtroom Workgroup: 3 people; Prosecutor, defense attorney, and judge The Prosecutor: the most powerful person in room, o Prosecutorial discretion: decision making of the prosecutor, whether to bring a case, what to charge, whom to charge, drop a case (insufficient evidence/witness issues/office policy). o Nolle prosequi: when a case is dropped by the prosecutor o Can investigate and initiate proceedings: WCC, organized crime examples Plea Bargain > Pleas Negotiation: o A deal to drop/reduce sentence, lower charges, substituting charge for ore “acceptable” one o Mainly hidden and negative effects o Why would someone pleas guilty to something they didn’t do? Structural explanation Indigent Defense System: o Indigent: when you’re unable to afford an attorney o See legacy of Gideon v. Wainwright decision o 3 Major Systems; Public Defender: think of a law firm that only works with indigent clients (who are criminal offenders) Typically organized at state or county level: only 1/3 of states have a uniform/statewide public defender system Lots of statebystate variation Overworked, underpaid, understaffed and selection bias. Assigned Counsel & Contract System: Court maintains a roster of private lawyers that get drafted for cases. Lawyer gets paid according to Transition: Gould and Leon Empirical research has exposed a troubling pattern of capital punishment in the U.S. If the victim is a white woman, and the criminal is a black man, how does that affect the punishment? Extralegal factors are strongly correlated with probability of receiving a death sentence. o What might those factors be? Race Class Gender Geography: deep south Literature on capital punishment arbitrariness has seen little innovation in recent years Starting in 1944, Federal Death Penalty Act vastly increased the number of crimes eligible for capital prosecution. Since 1989, the AG has authorized 463 federal capital prosecutions. All things equal, DP for felony murder cost 8x more than federal murder prosecutions that do not seek DP. Greenman 6 Gould found that defendants at the bottom third of the case cost distribution were twice as likely to be sentenced to death. Legal localism is a way of rephrasing the federal courtroom workgroup are not separated from the society. Qualitative data shows that judges are in the habit of approving all funding requests, despite variation in initial “starter funds” o The budget varies across states. Large set of independent variables can be systematically reduced. MIDTERM General Aims of Punishment: Rehabilitation/ Treatment: if the proper treatment is applied, an offender will present no further threat to society. Incapacitation/ Deterrence: o Incapacitation is similar to specific deterrence because once the criminals are incapacitated they cannot repeat the same criminal activities in the society. o General: crime control policy that depends on the fear of criminal penalties. People will not choose rime if they fear legal punishment. Ex; death penalty. Problems: fearless criminals, chances of arrest… o Specific: punishment severe enough to convince convicted offenders never to repeat their criminal activity. Ex; long sentences Defiance, stigma, irrational offenders Retribution / Just Deserts: The philosophy of justice asserting that those violating the rights of others deserve to be punished. The severity of punishment should be proportional. Utilitarian vs. The Retributivist: UTILITARIAN RETRIBUTIVIST Punishment is bad but serves the greater good Punishment is good and necessary. Associated with classical school and Beccaria Strong emphasis on rights Innocence, guilt, and crime are social As long as the justice is served, the pros/cons constructs. or happiness/pleasure are irrelevant. Punishment must b precise and calculated; the The principle of utility is a pseudohedonistic, benefits of punishment > its inherent costs selfinterested, and animalistic concept. and troubling effects The best punishment allows for a certain level Criminal law is a social contract. of crime Crime management not crime control Cost/ U scale is irrelevant. Totalitarian Regime example Essential purpose of sentencing is to punish proportionally. Problems with the debate: Rational and wellintentioned people strongly differ in their views on punishment. To justify punishment, you have to show that the benefits outweigh the costs. “We” espouse the concept of rehabilitation but we don’t do a great job of truly supporting it. Prison Systems: Pennsylvania System: Solitary confinement, solitary labor, total isolation and silence Auburn System: system that survived Solitary confinement at night, group labor done in silence. Security Levels of Prisons: Minimum: “country club” Medium: looks like a maxsec, but a lot more activities Maximum: Alcatraz Island Supermax: very controversial, 2223 hour total lockdown, (Florence Supermax Welcome Manual) Private Prisons: controversial caused by a structural conflict (difficulty of securing votes and taxpayer funds for prison construction/ maintenance/operation. Pros: private prisons are more efficient in construction) 450 facilities: approximately 120,000 inmates Practical, logistical, legal, and ethical issues. Not that big of a deal: 8% of total prison population. Community Sentences: Community sentences: forms of punishment that do not involve fulltime physical confinement to a correctional and institution. May be used as a supplement or an alternative. o Less costly than jail/prison o Offender can retain family/community ties o Can still ensure public safety & security o Can be scaled in severity/proportionality o Restoration & reintegration > punishment nd o Functional equivalent of giving 2 chance o *Fits in postenlightenment Rationality view Types of community sentences: 8 types o Probation: a sentence entailing the conditional release of a convicted offender into the community under the supervision of the court, subject to certain conditions. o Parole vs. probation: parole is already been in prison and let out. o Specific conditions that must be met, tailored specifically to the offender. Crime factors Offender factors o Violation of the rules = revocation = you are going to prison o Compatible with BOTH rehabilitation & crime control perspectives on justice o Probation and technology: Internet use, hard drives, phones, all subject to monitoring. o Recognizance: the medieval practice of allowing convicted offenders to go unpunished if they agreed to refrain from any further criminal behavior. o *Is a criminal sentence that suspends or delays a correctional term in a prison or jail in return for a period of community supervision during which the probationer must abide by certain conditions set fourth by the court, under the supervision of a probation officer Probation officer: some view themselves as social workers (looking to warm people), others as law enforcers (looking to get people) o History of Probation in the US: Massachusetts: 1878 in Boston Missouri 1887 Vermont 1898 1925:Federal Gov. instituted probation system for U.S. district court. o Fines: Based on your income and severity of the crime. Sweden and Finland do this. o Cons: Overburden the poor. o Forfeiture: seizure of personal property by the state as a civil or criminal penalty. o Over 100 federal statues use forfeiture of property as punishment o More on asset forfeiture of property as punishment o Cons: overreacting /excessive o Restitution: o Paying the victim, not the state o Either pay back the victims of crime OR serve the community to compensate for criminal acts o Cons: does not reduce recidivism o Split Sentencing: requires the convicted to spend some time in jail some in community. o Cons: labeling and stigma o House Arrest: a lot of variation o 24 hour confinement, weekend confinement, night time o Cons: No real treatment o Residential Community Corrections (RCR): houses that probationers o Halfway house or reporting center o Treatment and service oriented o Mostly for substance violation o Cons: Excessive and high failure o Electronic Monitoring (EM): ankle bracelet, stigmatizing, 21 century scarlet letter o Cons: Techdependent, provides no treatment o Journalist’s video* (inclass) Life Without Parole: 16 years max in Portugal Either 20 years of 30 years in France LWOP is the true life sentence Variation at the state level for parole eligibility. You may get a life sentence and serve 2030 years. 1 out of 9 prisoners in serving life 50,000 are serving LWOP 30% of “life” sentenced are truelife sentences. More than 10,000 life sentences were for defendants who committed their crime under the age of 18. (A quarter of those received LWOP) It’s a softer death penalty w/out the rigor or scrutiny. 63% of convictions are for murder. The number is rising so quickly. Why LWOP? o Distrust of CJ system: huge literature on movements leading to determinate sentencing, mandatory minimums, truthinsentencing. o Lack of faith in concept of reform/rehabilitation: “throwing away the key” o Desire for retribution & increased punitive stance against certain groups: who is writing the laws? More over, who is voting for the legislators who are writing the laws? What Can We Do? o Eliminate LWOP altogether: means reinstitute parole, allows everyone to be eligible to apply after serving between 1025 years. o Increase Use of Clemency: In Florida: if convicted of felony, lose rights to vote, public office, ownership of gun, sitting on a jury o Fund transition services LWOP is the functional equivalent of the death penalty. Juvenile Justice: Parens Patriae: “father of his country” a principle in legal philosophy. Government is the true guardian of the needy and infirm, including dependent children. Supports the power of the state to act on behalf of a child and provide care and protection equivalent to that of a parent. Then Enlightenment: Human reason could be used to combat ignorance, superstition, and tyranny to build a better world. Inspired govt action to protect children. o Poor laws of Britain 1535: statues allowing for the appointment of overseers to place destitute or neglected children as servants in the homes of the affluent. Core intention was to turn disadvantaged youth into contributing members of the community and develop some kind of productive skill or trade. The role of labor and economic production. Virginia passed similar Poor Law Legislation in 1646 (Connecticut and Mass followed in the 1670s). The aim is to promote productivity and apprenticeship in children that otherwise pose a high risk of becoming wayward or delinquent. In practice, the youth were subject to brutal punishment and barbaric discipline rather than humanitarian and rehabilitative. “Any punishment that fell short of maiming or permanently harming a child was considered within the sphere of parental rights” Chancery Court protected the property rights of welfare of more affluent minor children – children whose position and property were of direct concern to the monarch. These were the first juvenile courts. Parens Patriae justified the widening of governmental reach into the lives of juveniles and into the activities that had been typically left to the family (drinking, idleness, vagrancy, delinquency) Period of Transition: Colonial era ended. Rapid growth and urbanization began during 1800s. Influx of immigrants, westward expansion, diversification of labor and markets, the growth of cities. Alcoholism, prostitution, gambling, and property crimes increased within juveniles. Progressives and conservatives alike wanted to address these issues. Childsaving Movement Emerges: questionable intentions, a large part was inflicting social control on immigrant and minority children, removing them from families and cultural heritage, Catholic backgrounds and placed them with “Nativestock” Protestant Americans. Society for the Prevention of Paureism (1816): devoted to protecting indigent youths who were at risk of entering criminal trajectories. House of Refuge, NYC 1825: privately by taxes on arriving transatlantic passengers, and from license fees for taverns, theaters, and circuses. Revenue stream justified by the perception that juvenile ills were a product of intemperance, immigration, & basic commercial entertainment. 1 century: There was no distinction in treatment/punishment between adults & children over the age of 7. Age was a mitigating factor if you were between ages of 714. If older than 14, too bad. Adult vs. Juvenile Systems: JUV grounded in the notion of individualized treatment within a nonadversarial system. Due process & constitutionallyguided legal proceedings were not as important, allowing for more informal and discretionary legal proceedings by the judge o Proceedings were informal and all records were to be closed from public knowledge to protect the child BOOK Weeping in the Playtime of Others – Kenneth Wooden 30 juvenile facilities, 1972 – 1975 Ages 5 through 16 Uncovered an astoundingly high incidence of emotional & physical abuse, torture, & commercial exploitation of the children by the individuals who received public funds to care for them A significant number of who were not criminals but runaways or mentally disabled. 2005: Supreme Court ruled that DP is unconstitutional for juveniles. Problems in Juvenile Institutions in the 1970s: Drug experimentation: amphetamines. Proposed gonorrhea vaccine for mentally retarded boys at the Glen Mills School in PA. Abuse of the mentally retarded and female children Misclassification: careless landing of mentally ill in normal institutions. Lack of educational services: receiving zero educational materials or instruction Hypocrisy: running away from abuse, then being abused again and then returning to the same environment. Invasiveness of the mandatory procedures Differential Association: Social Learning: “My criminal career began at the Maryland Training School for Boys, where I was committed for the heinous crime of truancy. …At the training school, I soon learned to steal cars…how to mug someone so they could not make an outcry, how to use celluloid to open a house door, how to make checks to see whether people were at home before a burglary, how to make up and use a burglar’s kit and various other little things necessary to a successful criminal career” (Wooden, 2000: 39). RealTime Developments: What “sex offenses” can mean o Public urination o Sex among teenagers o Nude photos of yourself o Flashing/indecent exposure o Varies by state Applying Criminal theory to Juvenile Justice Policy: Labeling Theory: noninterventionist perspective Rational Choice Theory: neuroscience Strain: Economic or lifestyle Capital Punishment : More than 14500 have been executed since 1605. Pros: Deters heinous acts of violence (deterrence) For the most serious forms of crime, there must be an ultimate form of punishment. Closure for the victims’ families Eliminating the most dangerous offenders is a form of protecting/preserving life Lowers the cost of correctional institutions. Cons: Wrongful executions have occurred The state doesn’t have the right to terminate life. (Minimal state) Closure? No “correctional” component Cruel & unusual: 8 amendment Killing someone to show that killing is unacceptable is… awkward LWOP is money retributive Money Debate: 1. Morality: a. Pro: An eye for an eye. Death is deserved. Systematic bias is irrelevant to helping one decide on individual cases. b. Con: The state does not have the right to terminate life. Legacies of racial apartheid/bias/brutal social control influence an immoral administration of DP. It may be moral in a specific case but immoral as a system. 2. Constitutionality: a. Pro: The fact that it might be painful does not mean it is cruel & unusual. Developments in tech make DP less cruel. b. Con: The mere concept of state –inflicted death is a violation of the 8 (unusual punishment) and 14 amendments (due process). These “tech developments” are just lipstick on a pig. 3. Deterrence& incapacitation: a. Pro: DP accomplishes both specific and general deterrence. b. Con: The data do not conclusively support any substantive deterrent effect. i. States with DP do not deter crime more effectively than states without. ii. Heinous crime does not rise after DP is abolished. iii. The decisionmaking process of capitaleligible defendant is different. 4. Retribution: a. Pro: Answers injury with injury in the name of a public good. Provides closure to victims and their loved ones. b. Cons: Expressing anger only makes us angrier. Victims don’t really obtain closure... Retribution is like revenge, a low emotion. 5. Irrevocable Mistakes: a. Pro: The inevitability of a human error or mistake should not serve as grounds to eliminate DP b. Con: How do you establish a permissible number of mistakes in the context of life & (avoidable) death? 6. Cost: a. This is essentially a debate about which one is cheaper: LWOP or DP 7. Race: a. Pro: the overrepresentation of Blacks & Hispanics is simply a reflection of their over participation in capitaleligible offenses b. Con: AfricanAmericans are approx. 14% of US population, but approx. 50% of death row population 8. Income & Defense Quality: a. Pro: Despite the stereotypical depiction of public defense lawyers being overworked, underpaid, and underqualified, the juries, judges, and entire legal team do their job as effectively as possible. Class doesn’t matter when there is such scrutiny applied to the court processes of these cases b. Con: The DP is reserved not for the guilty, but for the poor 9. Role of Medical Professionals: a. American Medical Association (AMA)’s code Medical Ethics forbids participation in lethal injection b. Pro: the hypocritical attitude of “my hands are clean – let the spectacle proceed” only contributes to the increased possibility of human suffering c. Con: Doctors are trusted to preserve and protect life, not participate in the practice of killing. Key Capital Punishment Cases: 1. Furman vs. Georgia: “de facto moratorium” DP violates the 8 amendment. Cruel & unusual 2. Gregg & Georgia: moratorium lifted. DP does not violate 8. Not unusual and cruel. 8th Amendment Concerns: Cruel & unusual punishment occurs when the punishment does the following: o Degrades the dignity of human beings o Disproportionate to the offense o Shocks the general conscience and is fundamentally unfair o Deliberately indifferent to a person’s safety & wellbeing o Punishes select groups because of status, like race, religion, mental state, etc. o Flagrant disregard for due process of law, such as punishment that capriciously applied WAR ON DRUGS Reagan is often associated with WOD Negative Ramifications of WOD Explosion in government spending o Over 1 trillion dollars in tax dollars Shift in law enforcement priorities o Civil asset forfeiture: the police can take one’s property (no arrest or sentence is needed) and sell to make profit. This law is overly abused in many states. Ex: cops can stop you and accuse you of carrying drug money. o Worrall (BB) 2001 article: o W& K 2008: Is Policing For Profit? Mass Incarceration o There are a variety of angles in which to approach this area o Differential race effects within: Police (stop &frisk) Courts (race & place in sentencing) Corrections/ punishment (correlates of ban … Disproportionate enforcement (resulting in disproportionate incarceration) Conflict between seriousness of the law normative standards of the people Transferring issue from public health to law enforcement Declaration of war on an “unwinnable” issue Some Statistics on the Incarcerated: 62% of all males in state and federal prison are men of color 71% of those serving for drug related sentences are men of color Yet, men of color only make up 30% of the population All this points to the disproportionate arrest and sentencing of people of color, especially for drug related crimes Connections to Conflict Theory/Paradigm The laws are created favor the elite and powerful. They don’t get arrested for their illegal actions. WCC isn’t in CJ data because a lot of the settlements are done outside of courts. Drugs are not regulated on the basis of whether or not they are harmful but in relation to who they are associated with (empirical claim) From War on Drugs to War on Terror: Terrorism defined: Premeditated, politically motivated violence perpetrated by subnational groups or clandestine agents o International Terrorism: involves citizens or the territory of more than one country How are Terrorists “Created”? o Psychological View Terrorists tend to have psychological deficits/traits that distinguish them from nonterrorists Psychopathology: selfdestructive urges, problems w/ authority, etc. o Socialization View Terrorists are acculturated & socialized at a young age to view extremist/terror actions as justified & normal Differential Association Theory/ Social Learning Crime is learned via association and socialization with delinquent peers essentially you’re normalized to crime because you see/know people around you who do it Perspectives on Root Causes, Cont. o Ideological View Violence as necessary evil/tool to fight oppressors Revolutionary perspective o Alienation View Lone wolves and other “easily recruited operators” are alienated from mainstream social institutions, and are easily swayed into terrorist activities Law Enforcement Effects o PATRIOT Act authorizes law enforcement to have expansive powers in: Surveillance Jurisdiction Intelligence Gathering Leaping constitutional protections War on Drugs Changed the Definitions, Interpretations, & Processes of: Probable Cause Good Faith Exception Exclusionary Rule Legitimate Expectation of Privacy Searches & Seizures Vehicle Searches Pretextual Stops Tools from War on Drugs applied to the War on Terror: Due process pertaining to “aiding & abetting’ Nationwide search warrants Expansion of FISA authorized surveillance to domestic and nonterrorist use Militarization of police started with the war on drugs Crimes of the Powerful: Conflict Paradigm Revisited Criminal justice institutions and the body of law itself are designed in favor of the ruling class Those with less power will be subject to more control and legal capture Those with power will have their interests codified into the law itself What is Power? It can come in the forms of: Political Capital Economic Capital Social Capital Intersectionality: The study of intersections between forms of systems of oppression, domination, and discrimination Power spectrum of race, class, and gender Elite Deviance: White Collar Crime Businessmen who engage in harmful acts under the mask of respectability “Society’s most dangerous foe, more [fearsome] by far than the plain criminal, because he sports the appearance of virtue and operates on a titanic scale” Edwin Sutherland (1939) Building upon this concept, Sutherland coined the term white collar crime (WCC): o Crime committed by a person of respectability and high social status in the course of [their] occupation o Acts of an individual perpetrated during the course of the person’s work where deception, concealment, and breach of trust are used to obtain money and gain privilege, or to avoid losing money or privilege Common Denominators of WCC WCC does not typically come to mind when one thinks of crime Offenders enjoy relatively high levels of trust & respectability Not a traditional focus of legal/justice system Systematically excluded from official data Corporate Crime Acts of individuals who occupy positions of power within institutions who willfully & knowingly break the law to advance their own interests & for their own benefit or the benefit of their business/enterprise Remained relatively unnoticed until 1900’s Subdivisions o Crimes against employees To keep costs down and increase profit, corporations often ignore or fail to correct safety & health violations/concerns. Willing to do so because the fine they risk incurring is less costly than correcting a viol
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