SOC 1003 - Criminal Justice Midterm Study Guide and Questions From Spring 2016 Midterm - Prof. Kenneth Leon
SOC 1003 - Criminal Justice Midterm Study Guide and Questions From Spring 2016 Midterm - Prof. Kenneth Leon SOC 1003
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SOC 1003 – Criminal Justice Prof. Kenneth Leon Midterm Study Guide Important Names: Lombroso: o Took pictures of Italian criminals and studied their faces, jaws, and skulls. o Criminality is not in human nature. It is inherited. o Someone could be born criminal. o Lefthanded people are more likely to be criminals. o Rejected the classical school, which says that crime is a characteristic trait of human nature. Beccaria: o Mostly associated with Classical School, reformer during the enlightenment era. o Early writer of the due process, his work is the basis of modern criminology. o His work is based on rationalism and human choice: rational calculation of costs and benefits. o Punishment should be preventative (deterrence effect) and proportional to the crime o He condemned death penalty and torture. He called for system of justice where the accused is protected and the method of guilt determination. Zimbardo: o Stanford Prison Experiment: planned to find out whether the evil is inherent or if given the right circumstances, can anyone be evil. o Was the brutality among guards in American prison was due to sadistic personalities of the guards or the prison environment? o Concluded that given the right circumstances, everyone can become evil. The line between the good and evil is thin and permeable. At the end of the experiment, Zimbardo confessed that having the power over the study took over him and made him evil in a way that he wouldn’t end the experiment. o Bad apples: dispositional, inside of individuals. When we see someone doing a bad thing we immediately assume that he is a bad apple. For example when the Abu Ghraib torture pictures were leaked, the army went on the defensive side saying “there are a few bad apples.” o Bad barrel: situational, external, environment o Bad BarrelMaker: systemic, broad influence: political, economic, legal power. Peele o Peelian principles: define ethical police force. o Policing by consent: 9 principles of policing. (increase legitimacy of policing, integrity, and transparency in the public eye)Aimed to; Make police professional Organize as a civilian force, not as a paramilitary force Make the police accountable to the public. Frank Serpico o Worked at NYPD o Known for whistleblowing on police corruption in the late 1960s, which prompted the major of NY to appoint the landmark Knapp Commission to investigate the NYPD. Robert Merton o One of the founding fathers of modernday sociology. o Developed unintended consequences, reference group (comparison group), role stain, selffulfilling prophecy (prediction that directly/indirectly causes itself to be true) o Deviant behavior based on different types of social adaptation. Kai Erikson o Past president of the American Sociological Association Society. o Wrote Wayward Puritans, about 3 crime waves in the 1600s in Mass. Each time there was a crime wave, there were threats to the power of the church. First two waves were on Quakers, and the third on witches. o Crime waves and public hangings were an attempt to unite the community against a common enemy, reinforcing the social norms of the group. o The symbolic licenses are given to large groups of people, excuses them from crimes they would commit. James Bond Durkheim o Concern on establishing sociology as a science o 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. o His work also influenced structuralism (society is a complex system whose parts work together to promote solidarity and stability) Important Definitions: Legal Latin o Mala in se: something inheritably wrong in terms of natural law. Ex; homicide o Mala prohibitum: something more arguable than mala in se. Ex: which drugs should be prohibited? o Mens rea: the mental element of a crime. A person’s awareness of the fact that his conduct is criminal. o Actus Rea: the physical element of a crime, the act itself. (Not being intoxicated) o Stare decisis: to stand by decided cases, the legal principle by which the decision or holding in an earlier case becomes the standard by which subsequent similar cases are judged. o Nolle Prosequi: when a case is dropped by the prosecutor Principles of deterrence: o Deterrence: like Beccaria 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 CJrelevant constitutional amendments th o 4 amendment: protects citizens from unreasonable searches and seizures, requires a search warrant to be issued based on probable cause. It established the “exclusionary rule” barring the introduction of illegally seized evidence in a trial. Rule of thumb in th the 4 amendment states that you need a search warrant. o 5th amendment: provides freedom from double jeopardy; the obligation to be witness against oneself; capital punishment except in cases of infamous crimes; the taking of private property without just compensation; and deprivation of life, liberty or property without due process of law. o 6 amendment: gives right to speedy an public trial; impartial jury, informed of the charges; confront witness against you; to have a witness in you favor; and assistance of Counsel for your defense. o 8 amendment: No excessive bail or excessive fines; no cruel or unusual punishments. Does not guarantee a constitutional right to bail but, rather prohibits the usthof excessive bail. o 14 amendment: applies bill of rights to the states. Equal protection of laws. Due process: pairs w/5 amendment Exclusionary Rule: illegally obtained evidence cannot be used in court. Levels of law enforcement: o Federal: USDOL (legal arm of the federal gov.) Attorney general is the head. Many units and entities; FBI: enforces federal laws, investigative agency, Uniform Crime Report and National Crime Information Center ATF: jurisdiction over illegal sale, importation, criminal misuse of firearms & explosives, untaxed liquor and cigarettes. US Marshalls: oldest agency, protection of federal judges & courthouse personnel, witness security/protection o State: enforcement of state laws, often serve as state level resource (funded by state, highway patrol, standardized training &credentials) o County: sheriff, provide court security, run the county jail, typically restricted areas o Municipal: the bulk of US law enforcement, operate within city/town limit o Special: private police/ university police, private property police… Missouri Plan: a method of judicial selection that combines a judicial nominating commission, executive appointment, and nonpartisan confirmation elections. So that politicians cannot buy judges. Probable Cause: a reasonable belief, based on fact, that a crime has been committed and that the person, place, or object to be searched and/or seized is linked to the crime with a reasonable degree of certainty. A warrant CANNOT be issued unless it is based on a probable cause. Reasonable suspicion: a standard looser than probable cause. It is sufficient to justify brief stops and detentions, but not enough to justify a full search. Important Concepts: What does it mean to say, “crime is a label”? This idea connects to the labeling theory, which suggests that the society designate “troublemakers” and stigmatize them with a permanent label, which leads them to criminality. Crime is a powerfully negative label that greatly changes a person’s social identity (long term affects). Society stigmatizes and labels deviants as criminals based on the society’s social or moral norms. Paradigm shifts: when a field evolves, incorporating new rules, assumptions, or laws. 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. Apples, barrels, barrelmakers: o Bad apples: dispositional, inside of individuals. When we see someone doing a bad thing we immediately assume that he is a bad apple. For example when the Abu Ghraib torture pictures were leaked, the army went on the defensive side saying “there are a few bad apples.” o Bad barrel: situational, external, environment o Bad BarrelMaker: systemic, broad influence: political, economic, legal power. Criminal justice perspectives: o 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. o 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. o 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. o 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. o 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. o 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. th Classical School: was born in mid 18 century. People make choices to commit crime and that punishment should be about preventing future crimes from being committed. Crime can be controlled through deterrence. Mostly associated with Beccaria. o Rationality: people have free will, people make choices o Hedonism: people seek pleasure and try to avoid pain. o Punishment: the pain people try to avoid o Human rights and due process principles: everyone should be treated equally. Chicago School: tries to identify outside factors that cause people to become criminals like rough neighborhood, high poverty, and unemployment. Crime Theories o Rational choice: 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. o Routine activities: crime is a product of 3 everyday factors: motivated offenders (unemployed teenager), suitable targets (iPad), and a lack of capable guardians (no police present). o 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. o Differential association: 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.” o GTC: Social Bond & Social Control: most people do not violate the law because of their personal connections with family and friends, but if those connections are broken, they are more likely to commit crimes. o Social Disorganization: comes from the Chicago School Paradigm–“social ecology”, which concerns with the outside factors that cause people to become criminals. Crime is largely the result of unfavorable conditions within a community. 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. o 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. o Conflict/Structural Contradictions: crime is a function of power dynamics between competing groups. More powerful groups use law as a means of controlling the less powerful. Wealthy is more powerful and has more resources to fight deviance. Common law origins of US legal system: o Judges used local custom & rules of conduct to decide on cases. o Stare decisis: The decision from an earlier case becomes the standards by which subsequent similar cases are judged. o People used to shake hands on deals and agreements but started causing too many problems. Starting in 1100s, royal judges began publishing their decisions. o 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. Common law origins of common felonies: o Larceny: trespassing, taking/carrying away personal property o Robbery: larceny + someone present, taking done by force or threat o Burglary: breaking & entering of dwelling (home) Under the common law definition, had to take place in the dwelling house of another at night. Most states have broadened the definition to include businesses and illegal entries during the day. It is developed to protect a person’s interest in their home and to prevent violence but not to protect against theft. o Murder 1: intentional murder of another human being o Murder 2: unintentional o Conspiracy: 2+ people, overt act in furtherance, agreement to violate law o Rape: male on female, genital penetration by male member Males get raped too Husband could not be charged: has been changed by FBI Statutory rape: with some underage. No force required. Occupational risks to police officers: death, homicide, assault, communicable disease, stress and fatigue, injury, illnesses Examples of when the warrant requirement is waived: th o 4 amendment o Exigent circumstances, stop& frisk, search incident to arrest, automobile searches, consent searches, consent searches, plain view searches, officer presence, and hot pursuit Burdens of proof: proof beyond reasonable doubt: the standard of proof needed to convict in a criminal case. The evidence offered in court does not have to amount to absolute certainty, but it should leave no reasonable doubt that the defendant committed the alleged crime. 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 th criminths have gone too far. But, what if the “criminal” is a victim of slipshod justice. 5 and 14 amendments Statutory expansion: we use statutory law in the US. The common law is what the Supreme Court does. Crimes are pursuant to statute. Common law felonies have been expanded via statue. Ewick & Silbey: The Common Place of Law o 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. o 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: Legal paradigms: Positivist approach: crime is simply that which violates criminal codes & statutes. Law is what a legislative body passes and nothing more o Natural Law vs. Legal Positivism Law X is not a law if is deeply flawed from a moral perspective Law X is a law no matter what its moral character is, provided that it was passed by the institutionally provided means. Court Cases (Ch8): Florida v. Bostick: Issue was consent to search on a bus. Drug enforcement officers, after obtaining consent, may search luggage on a crowded bus without meeting the Fourth Amendment requirements for search warrant or probable cause. Terry v. Ohio: issue was stop and frisk. An officer may stop and frisk a person if he has reasonable suspicion that criminal activity is afoot. Katz v. US: issue was definition of a search. A search occurs when a government actor infringes on a person’s reasonable expectation of privacy. Carrol v. US: an automobile can be searched without a warrant if the police have probable cause. Miranda v. Arizona: any person subjected to custodial interrogation must be advised of his or her Fifth Amendment right to be free from compelled selfincrimination and to have the assistance of counsel. A crime should be swift, certain, severe. Sample Questions from spring 2106 Midterm. Long Essay topic: Explain Natural Law Perspective and compare it with Legal Positivism. Natural law is the quintessential fusion of law and morality. It is the acceptance of morality as the foundation and core element of law. This is a prescriptive notion of law. In other words, law ought to be anchored in morality, and legal systems must reflect some semblance of divine or natural law in order to be viewed as legitimate and worth following. By implication, some legal theorists have argued that laws not anchored in morality are not just, and therefore not worthy of being followed. The natural law perspective contains several assumptions, many of which can be problematic. Under natural law, legal reasoning and the development of law are products of moral reasoning. St. Thomas Aquinas, a major philosopher within the natural law perspective, posits that there is a higher sense of morality as conceived of by God, known as eternal law. Humanmade law should strive to mirror and reflect eternal law, which is synonymous with morality. The argument goes that if God (however defined or understood) provided humans with the earth, inalienable rights, and the liberty to pursue our individual and collective interests, then humanmade law should facilitate and support these moral principles. Our obligation to obey the law is therefore not a practical or socially constructed obligation, but a moral one. To illustrate how natural law is experienced in a contemporary context, let us entertain the possibility that law and morality are indeed intertwined in a religious OR metaphysical way (you can be secular and still be a natural law theorist btw). American legal institutions arguably possess a certain kind of religious symbolism that reinforces notions of its sanctity, timelessness, and permanence in the lives of every citizen. If you look at the physical characteristics of the “highest court of the land”, you’d see scales of justice ancient symbols of fairness, impartiality, and deliberation. Other physical symbols of the U.S. Supreme Court include The Book of Judgment, Scrolls of the Law, and Tablets of the Law. These quasi religious artifacts represent a natural law conception: judges and human made legal institutions merely execute the maxims, rules, and legal principles that are grounded in eternal and timeless principles of justice, given to us by God(s) or some other unexplainable source. In this paradigm of reverence and legal gospel, judges faithfully find and apply law, as opposed to politically or instrumentally choosing certain legal arguments over others. Contrary to the natural law perspective, there are legal positivists that aim to sever (break) the relationship between law and morality. A legal positivist such as John Austin or HLA Hart would contest natural law theorists like Hobbes and Locke (you don’t really need to know these names but they are referenced in case you want to do more reading into this topic on your own time), and argue that our understanding of law need NOT rely on any conception of morality whatsoever. Furthermore, Natural Law provides us with more questions than answers: Whose morality, or whose God, is we referencing when thinking about eternal law? Why must our understanding law be anchored in the assumption that a God exists at all? If there is a qualitative difference between someone who violates the law for personal gain and someone who violates because they think the law is not morally virtuous, and if so, how do we distinguish among these classes of lawbreakers? How competent are humans, and judges, in “discovering” eternal law, and to what extent is our sense of morality fluid and evolutionary? Hell, what are morals to begin with? And for those who do not believe in any type of god or religion, yet still believe in the concept of “fundamental” or “inalienable” human rights, where do such principles originate from, if not from mere abstractions that we create in our heads? Legal positivists would say that these questions are unsolvable, as they involve both metaphysical and logical arguments that cannot be resolved to the defense of the natural law perspective. Positivists differ and disagree in terms of the specific structure of what law is, but what unites them is that morality and law are not intertwined as they are in the natural law perspective. Positivism presents law as a series of commands (see Austin), or primary and secondary rules (see HLA Hart) that are based on human logic, reason, and agreement. Under this perspective, law is legitimate to the extent that it follows a structured process that is agreed upon by the constituents who are bound by it. If a law is passed legitimately, then it is a valid law. Our obligation to obey the law is not a moral one, but a sociological, structural, and historical one. If a group of humans find themselves abandoned on a remote island, they might form a society, and designate how laws will be made. They will eventually agree upon a system that creates, maintains, and enforces what they call law. All who desire to be a part of this society (and most people agree by default), must surrender their otherwise unchecked liberty in order to partake in a social system that has law and order (at least more law and order than they would have if it was “every person for themselves”). Human logic, reasoning, and conceptions of fairness can facilitate this process. And while morality (in the form of referencing “divine” principles) might play a role, it is not a necessary one. Our obligation to obey the law would then be based on an obligation to abide by the recognized rules and structure of society, and not on whether we think that the “humanmade law” appropriately reflects “divine law’. Describing the specific views of individual positivists is beyond the scope of this informal writeup, but there are still some difficult questions that must be accounted for when pitting natural law against positivism. If a positivist agrees that humans are born with inalienable rights (that are secular), where do such rights come from? Additionally, if humans (and judges) rely solely on reasoning, logic, and deliberation, are we saying that humans can effectively reason and debate without having some sort of bias or reliance on their personal conception of morality? Lastly, positivism at its most literal definition is perfectly compatible with any form of institutionalized slavery and with the laws and rule of Nazi Germany, as these two scenarios fit the description and meet all the requirements for positivist law. This dialectic between the figurative natural law theorist and the figurative legal positivist continues to the present day, either because we are left with more questions than answers, or more commonly, we accept a certain view and the many assumptions and problematic premises that come with it. Ultimately, the natural law perspective is purely prescriptive; describing what law ought to be, while legal positivism is descriptive, describing what law actually is. Short Answer Questions: o What does “Crime as a label” mean? o Explain Bad Apple vs. Bad Barrel. o Discuss the types of deterrence. o Think of about how you might apply at least 2 course concepts to both Serpico and 12 O’Clock Boyz o 12 O’Clock Boys: social disorganization theory (outside factors) o Relationship between classical school criminology and the Enlightenment Era, and the names, ideas, and concepts that we’ve covered in relation to these two topics. o Classical School versus Chicago School o The influence of England’s historical law enforcement and judicial structure on U.S. criminal justice o In 1829, the first police agency was created in London. During mid 19 century, they started appearing in the U.S. Alternative to physical punishment. o What does it mean to take a sociological or structural approach to criminal justice reform? What examples might you provide? o The relationship between law and morality: must there be a necessary connection? Know the major schools of thought in legal philosophy and the concepts covered in lecture
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