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CJ 600. Issues in the Court System. Historical Overview. Use of British common law Colonial courts unclear as to which acts of Parliament or case law applied Every colony different Colonial courts had wide powers, very undifferentiated, with legislative, executive and judicial functions

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CJ 600

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cj 600

CJ 600

Issues in the Court System

historical overview
Historical Overview
  • Use of British common law
  • Colonial courts unclear as to which acts of Parliament or case law applied
  • Every colony different
  • Colonial courts had wide powers, very undifferentiated, with legislative, executive and judicial functions
  • Mistrusted, associated with Br. Gov.
  • Movement to codified law
  • Requirements fo practice law varied
  • Following the Revolutionary War, established of more courts, appellate courts
  • Constitution established Supreme Court, authorized other courts
  • Vague
  • Lower courts a hodge podge, differ from state to state
  • Organization was frequently tied to politics
  • Judges elected or appointed
  • Dual nature of US Government
  • Supreme court established by constitution, and the federal courts by the Judiciary Act of 1789
  • Supreme Court had little power until Marbury v. Madison, when the court struck down a section of the Judiciary Act as unconstitutional –judicial review
  • Around 1820s, courts began a trend of setting legal doctrine
  • Until WW II, conservatives and business depended on judicial branch, distrusted legislature
  • Courts seldom dealt with constitutional rights of individuals, tended to rule against individuals and labor
  • Section 1983 and post civil war amendments passed after the war, but had little effect
  • Plessy v. Ferguson (1896)--segregation
  • Early 20th century began an expansion of due process for criminal defendants
  • Powell vs. Alabama, 1932 (Scottsboro case)
  • Incorporation controversy
  • Depression era: federal legislation kept getting struck down by the Supreme Court
  • Roosevelt threatened court packing
  • Court backed down
  • 1950s, Warren court, civil rights revolution
  • Brown v. Board of Education
  • Series of decisions: Mapp v. Ohio, Miranda v. Arizona, Gideon v. Wainwright
  • Burger court: Furman v. GA and Gregg v. GA, prisoners rights cases
  • Some “erosion” since then
  • Other decisions, such as religion cases, Roe v. Wade
  • Controversy: original intent, strict interpretation, social interpretation
  • Courts have become increasingly powerful
  • Number of cases and lawsuits
  • Number of cases filed against the criminal justice system, esp. police and corrections
court issues
Court issues
  • 1. Court models: constellation, federation, union
  • 2. Selection of judges: appointed vs. election
  • 3. Bail: purpose to assure presence at trial
  • Problems: favors rich, unnecessary detention in some instances, get longer sentences, the bail bondsman
  • Deposit bail: eliminating the bail bondsman
  • Manhattan Bail Project
  • 4. Preventative detention
  • 5. Courtroom work group: prosecutors, defense counsel, judges, also police and probation officers
  • Courtroom work group a community of people who work together and have a mutual interest in getting the job done as efficiently as possible
  • “Going rate” the group develops over time a consensus about what a crime and prior criminal history is “worth”
  • Often not adversarial, consensus reached
  • Observational studies find that researchers are able to predict outcomes after studying such groups
  • Why sentence disparity? Each courtroom work group develops its own going rate, based on the individuals involved, community standards, etc.
  • 6. Prosecutor
  • Prosecutor’s dilemma
  • Quasi-judicial immunity
  • Prosecutorial discretion—power to pursue or dismiss cases
  • Of every 100 cases, 35 sent to JJS, 65 to district attorney
  • Of those 65, 20 rejected or diverted, 45 accepted for prosecution
  • Of those 45, 10 dismissed or failed to appear, 35 plead guilty (30)or go to trial (5)
  • 2 acquitted in trial, 33 convicted (3 in trial)
  • There is considerable variation across jurisdictions
  • Factors that affect discretion
  • Nature of the evidence
  • Attitude of the victim
  • Relationship of victim to the offender
  • (chances of conviction 20-30% lower if they know one another)
  • Harm to the victim
  • Costs
  • Available alternatives
  • Use of civil sanctions
  • Willingness of suspect to cooperate
  • Strength of the evidence and seriousness of the offense appear to be the greatest factors
defense counsel
Defense counsel
  • Gideon v. Wainwright and Argersinger v. Hamlin
  • Private, contract, assigned, public defender
  • Defense counsel’s dilemma—the guilty client
  • Loyalties divided, not only to client, must also get along with courtroom work group
plea bargaining
Plea bargaining
  • Advantages: costs decrease, more efficient
  • Less time spent on minor and clear-cut cases
  • Decrease pretrial detention time
  • Victims and witnesses spared a trial
plea bargaining1
Plea bargaining
  • Disadvantages
  • Innocent may plead guilty
  • Loss of rights
  • Might contribute to sentence disparity
  • Attempts to curtail plea bargaining have not usually been successful
  • Preplea conference
trial issues
Trial issues
  • Review: constitutional rights
  • Speedy, public, jury, summon witnesses, cross-examination, counsel
  • Issues
  • Scientific jury selection
  • Does it give certain clients an advantage by virtue of some extralegal factor?
  • Unanimous vs. non-unanimous decisions
  • 9 out of 12 the lowest
  • Advantages: more efficient, less hung juries, less possibility of a bribe
  • However, an important minority (the thoughtful juror) could be ignored
court issues1
Court issues
  • 12 person jury vs. lesser numbers (6)
  • Advantages: easier to obtain a jury, cheaper, more convictions
  • Disadvantages: less representative of the community, less discussion of the case
court issues2
Court issues
  • Videotaping
  • Trials, testimony
  • Trials—many judges opposed, argue that it is distracting and detracts from the dignity of the proceeding
  • On the other hand, provides a record, can be used as an educational tool
court issues3
Court Issues
  • Videotaping of testimony
  • Police could be on the streets, spares victims, confessions and lineups could be used
  • Inadmissible sstatements could be eliminated
  • Child victims could be spared the stress
  • However, violates right to confrontation
other issues
Other issues
  • Continuances
  • Victim-witness bureaus
  • Purposes: individual deterrence (punishment), general deterrence, retribution, incapacitation, rehabilitation
  • Punishment: must be consistent, immediate, introduced at its maximum intensity, too severe is not effective, extended periods not effective, rewards for punished responses must be reduced
  • Alternative response with same or greater reward
  • Access to different situations to obtain those rewards
types of sentences
Types of sentences
  • Indeterminate, determinate (flat), indefinite (range, good time, parole)
  • Disenchantment with indeterminate sentences and rehabilitation, sentencing disparity
  • Consequences
  • Longer sentences
  • Sentence reform
  • Sentencing guidelines (presumptive sentencing)
  • Remove judicial discretion
  • Federal: Sentencing Reform Act of 1984
  • Sentencing guidelines, abolition of parole
  • Mandatory minimums for certain types of crime
sentencing reforms
Sentencing reforms
  • Controversial law, disliked by federal judges, perceived as to inflexible
  • Partially account for the dramatic increase in the federal prison population
  • Have most affected the minority prison population
state reform
State reform
  • Several states have implemented sentencing guidelines with less controversy
  • Minnesota the most notable example
  • Reduction of disparity without additional discrimination, and
  • Guidelines are tied to predictions of prison populations, can be modified
other reforms
Other reforms
  • Megan’s laws
  • Selective incapacitation
  • Mandatory minimums (mostly for drug and weapons offenses)
  • Truth-in-sentencing laws (reduction of good-time, elimination of parole discretion, or use of presumptive parole)
  • Three strikes and you’re out
other alternatives
Other alternatives
  • Fines, probation, shock probation, intermediate sanctions (boot camps, electronic monitoring, intensive probation supervision, community-based corrections)