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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Jackson County Sheriff’s Office
VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A DEPUTY WITH
THE DESCHUTES COUNTY SHERIFF’S OFFICE:
https://sheriff.deschutes.org/about-us/join-the-sheriff%27s-office/
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
240 |
SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Deschutes County Sheriff’s Office
VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A POLICE OFFICER
WITH
THE MEDFORD POLICE DEPARTMENT:
http://www.ci.medford.or.us/Page.asp?NavID=1446
City Departments Recruitment and Hiring Websites
Medford Police Department
Introduction to the American Criminal Justice System
241 |
SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Medford Police Department
VISIT THE WEBSITE BELOW FOR INFORMATION ON BEING A POLICE OFFICER
WITH THE
PORTLAND POLICE BUREAU:
https://www.joinportlandpolice.com/start
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Portland Police Bureau
Introduction to the American Criminal Justice System
243 |
SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 6.7. Police Misconduct, Accountability, and Corruption
TIFFANY MOREY
Learning Objectives
This section will cover police misconduct and accountability. After reading this section, students will be able to:
•
Discuss the different corruption types in policing
•
Explain the difference between a meat eater and a grass eater
•
List the different ways an officer engages in noble-cause corruption
•
Describe how a police officer uses stereotyping on the job
•
Discuss the importance of having a reliable internal affairs division/bureau
•
Explain why excessive use of force is difficult to quantify
Critical Thinking Questions
1.
How are grass eaters and meat eaters different?
2.
What is noble cause corruption?
3.
Why are there misunderstandings of police accountability?
4.
What are the functions of an internal affairs division/bureau?
5.
What happens if a police department shows a pattern of excessive use of force?
Corruption Types
Police officers have a considerable amount of power. With one fail swoop, an officer can take a person’s
freedom away. That is a tremendous amount of power. An officer is also given the authority to carry a gun
and for protection of either the officer or a person, take the life of a citizen as well. These decisions are
244 |
SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | dangerous, and unfortunately, at times there are officers who not only overstep their boundaries but jump
directly in the pit of corruption.
While the media paints a picture that most police officers are corrupt, this could not be further from the
truth. The Bureau of Justice confirmed that only 0.02% of the police officers in the U.S. engage in some
type of corruption. While the media makes money selling stories, the police story that starts the five-o’clock
news is not always true. When the media covers a police shooting for instance, the investigation has not
been completed, therefore the only answer the police department will have for the media is ‘no comment.’
A cover-up then comes to mind; however, when the invesitgation is completed weeks to months later,
the media is not always as interested in the story, especially if there was no police corruption. Even more
importantly it takes two-years to basically train a new police officer. The same police officer then continually
trains every month to ensure the knoweldge of current laws and many other tactics are up-to-date. Unless
one is a trained commissioned law enforcement officer, there is no way the public, nor media can truly
understand why an officer acted and responded the way he or she did, unless they experienced the exact same
circumstance.
No matter the profession, whether it is an actor, a cashier, a president of a non-profit organization, or a
police officer, corruption can occur. The focus on law enforcement is more dramatic due to the glarmour of
the type of work performed. Either way, corruption should not be condoned and if it does occur, the reaction
must be swift and stern. Those in law enforcement hold a badge which grants the carrier the authority to
take away a person’s rights therefore, the authority that comes with the badge should NEVER be taken for
granted.
Grass Eaters
In 1970, The Knapp Commission coined the terms ‘meat eaters’and ‘grass eaters’ after an exhaustive
investigation into New York Police Department corruption. Police officers that were grass eaters accepted
benefits. Whether it was a free coffee at the local coffee shop, fifty percent off lunch, or free bottled water
from the local convenience store, these cops would take the freebie and not attempt to do the right thing by
explaining why they cannot accept the benefit and then pay for the benefit. By accepting benefits, the officer
was, in turn, agreeing that whoever gave the benefit, i.e., coffee, or lunch, etc., was to receive something
in return. What if the coffee shop wanted the officer to patrol their shop every morning between the busy
hours of six and seven a.m.? Would that be fair to other coffee shop owners that did not give free coffee to
the officer?
1
Meat Eaters
These officers expected some tangible item personally from those served, in order to do their job. Whether
it was money ‘shakedown’ to ensure a convenience store was not robbed, or the officer felt there was nothing
wrong with stealing from a drug dealer during a drug raid; ‘no one would notice a pound of cocaine missing,
right?’ These officers felt entitled and were aggressive in making sure they got what they thought was theirs.
If a person has the lifelong goal of being a police officer, then that same person will want to protect the
innocent from those criminals that aim to do them harm.
Noble Cause Corruption
Noble-cause corruption is a lot more commonplace then many think. Many officers work twenty-five
years and may never see another cop steal something, but they will see noble-cause corruption. Most officers
join the force to make the world a better place in one way or another. While officers understand they cannot
1. Caldero, M. A., Dailey, J. D., & Withrow, B. L. (2018). Police Ethics: The Corruption of Noble Cause (4th ed.). New York, NY, USA:
Routledge/Taylor and Francis.
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | solve everything alone, they do think they can make a difference. The noble-cause is the goal that most
officers have to make the world a better and safer place to live. “I know it sounds corny as hell, but I really
thought I could help people. I wanted to do some good in the world, you know? That’s what every cop
answered when asked why he became a police officer.
2
Officers sign on and get hired wanting and striving to do the right thing. However, it is a slippery slope
that the officer continually slides on from the academy, through field training, and on into the deeper parts
of a police career.
Slippery-Slope Model of Noble-Cause Corruption
1.
“Forget everything you learned in training (school), I’ll show you how we really do it
out here.”This what an officer often first hears from a TO (training officer). The statement is
only superficially about the lack of utility of higher education. What it is actually about is loyalty
and the importance of protecting the local group of officers with whom the officer works.
2.
Mama Rosa. It looks like a free meal. This is not to test willingness to graft, but whether an
officer is going to be loyal to other officers in the squad. It also serves to put officers together
out of the station house.
3.
Loyalty Back-up. Here, an officer is tested to see if he or she will back up other officers. This
is more involved because officers may have to ‘testify’ (give false testimony), dropsy (remove
drugs from a suspect during a pat-down and then discover them in plain sight on the ground),
the shake (similar to dropsy, only conducted during vehicle stops), or stiffing-in a call. These are
like NC (noble-cause) actions, and may indeed by NC actions, but their purpose is to establish
loyalty.
4.
Routine NC (Noble-Cause) Actions Against Citizens. Magic pencil skills increase
penalties by shifting the crime upwards. Protect fellow officers with fictitious chargers.
Construct probable cause. Illegal searches of vulnerable citizens.
I am the Law. This is the belief that emerges over time, in which officers view what they do as the right
thing to do. This is the practical outcome of the old adage ‘power corrupts, and absolute power corrupts
absolutely.’ A police officer does not have absolute power, but he or she has the backing of the legal system
in almost all circumstances. Behavior can become violent, as with the Rampart CRASH unit.”
3
Therefore, every officer can start out wanting to save the world somehow, but when the real-world job
of an officer starts to take hold, it is a problematic grasp to release.
2. Baker, M. (1985). Cops: Their lives in their own words. New York: Pocket Books.
3. Withrow, B.L., Dailey, J.D., & Caldero, M.A. (2018). Police ethics: The corruption of noble cause. New York: Routledge.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 6.8. Current Issues: Police Shootings
TIFFANY MOREY
One of the most controversial issues in regards to policing in the 21st century are police shootings. The
‘police shooting’ topic causes much debate and is always in the headlines of every media outlet when
it occurs. After an officer-involved shooting, citizens want answers, rightfully so. Unfortunately, police
departments cannot immediately provide those answers. The all too familiar ‘no comment’ or ‘we do not
have any information at this time’ or only providing limited facts, does not appease saddened or angry family
members or the general public.
Police departments cannot comment because they may genuinely not know the entire story. Police unions
are there to protect officers, and the officers need time between the shooting and when they are required
to write the police report on the incident and answer questions about the shooting for a variety of reasons.
Therefore, directly after the shooting, when the media or the general public wants answers, there might not
be any answers known to give. However, this immediately reads as the department has something to hide.
Whether that is true does not matter in the eyes of many. An investigation must occur before the department
can make a formal statement, and release body camera or dash mounted camera footage and information
about the shooting. All too often though, this information comes too late.
One case that signifies this all too well is the officer-involved shooting and killing of Michael Brown, in
Ferguson, Missouri.
1
In the News: Michael Brown- Ferguson Missouri – Officer Involved Shooting
https://www.youtube.com/watch?v=t2104nz_h5A
1. Department of Justice. (2015). Department of Justice report regarding the criminal investigation into the shooting death of Michael Brown by
Ferguson, Missouri police Officer Darren Wilson. Washington, DC: Department of Justice.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Ferguson Police Department Michael Brown Crime Scene
The riots that occurred during the aftermath of the incident resulted in numerous arrests, millions of dollars
in property damage sustained, and almost insurmountable damage to the relationship between police and
young Black males. The Ferguson Police Department, where the officer is employed who shot and killed
Michael Brown, had many issues; however, much of the information that the media released shortly after the
shooting was later investigated and found incorrect.
Police officer involved shootings are very serious. Officers train and qualify quarterly with their duty
firearms and regularly review what is required to use deadly force. After every police-involved shooting (use
of deadly force), once the investigation is complete, a grand jury or coroner’s inquest (depending on the
jurisdiction and outcome of the shooting) must take place. There is a trial where the actions of the officer
involved are examined to determine if the use of deadly force was justified. The officer describes in detail
the shooting and why the officer felt it necessary to use deadly force. Witnesses take the stand and tell what
they heard or saw. Finally, a jury decides whether or not the use of deadly force was justified. If the shooting
is justified, the officer will not face formal charges for the use of the use of deadly force. However, if the
shooting is determined to be unjustified, the officer can face felony charges, up to the murder. Generally, at
this point, the officer is fired from the respective police department, and the prosecutor’s office files charges
against the officer. For instance, at the Portland Police Bureau, any use of deadly force goes through eight
different reviews, in order to determine if the officer was justified.
In the News: Officers that utilize deadly force (such as a police shooting) once the investigaiton is
completed are required to go through a grand jury or coroner’s inquest (depending on the state). This
process is similar to any criminal trial. If the jury finds that the officer was NOT justified (in their decision
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | to use deadly force) that officer is generally fired by their police department and then can face murder or
manslaughter charges. For example: Chicago police officer found guilty of murder https://www.cnn.com/
videos/us/2018/09/05/jason-van-dyke-trial-orig-bk.cnn
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 6.9. Current Issues: Use of Force and Vehicle Pursuits
TIFFANY MOREY
Police officers have the power to use force if deemed necessary. If an officer uses more force than required for
the situation, this brings up many red flags. The Violent Crime Control and Law Enforcement Act of 1994
authorized the Civil Rights Division of the U.S. Department of Justice (DOJ) to initiate civil actions against
policing agencies if the use of force utilized is excessive or constitutes a pattern of depriving individuals of
their rights.
1
One additional issue in police use of force situations is that it is difficult to measure. There are many types
of force police can use. The force utilized varies from going hands-on to pepper spray, taser, ASP baton,
control holds or takedowns, to deadly force. Every situation is different because it involves human beings
and can be interpreted differently from those involved to those standing on the side-lines.
Vehicle Pursuits
Vehicle pursuits have dramatically changed over the last decade. It used to be commonplace for officers
to engage in several vehicle pursuits during one-shift. Officers would get in a vehicle pursuit for many
reasons, stemming from locating a rolling stolen vehicle to a driver failing to stop after running a stop
sign. Vehicle pursuits have at a minimum, two, four-to-five thousand-pound deadly weapons (a.k.a.= the
vehicles) that are driven recklessly (most times), chasing one another. The morgue has seen large numbers
of fatalities due to vehicle pursuits. Victims range from an innocent person in a crosswalk at the wrong
time when the vehicle police pursued, hit the victim, or the innocent person driving across an intersection
with a green traffic light struck while the pursuing vehicle runs a red traffic light. There are too many sad
stories of the innocent victim killed because the police decided to pursue a vehicle with lights and siren and
the pursuing vehicle refused to pull over.
Because of the many senseless fatalities, many police departments have updated their vehicle pursuit
policies and procedures. Although the policies of each department do differ in minor areas, most
1. DOJ. (March 2, 1998). Justice Department Consent Decree Pushes Police to Overhaul Operations, Pittsburgh Post-Gazette, C-1.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | departments have chosen to only approve a vehicle pursuit in dire situations. Such a situation fitting that
description would be if the driver of the fleeing vehicle were actively engaging in behavior that was placing
other citizens in immediately dire harm.
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 6.10. Current Issues: Stereotypes in Policing
TIFFANY MOREY
Human beings are infamous for stereotyping. A first impression when meeting a new person takes only
seven seconds. According to Pitts (2013), smiling, shaking hands, introductions, speaking clearly,
maintaining eye contact, looking smart, and not sitting down, are sure-fire ways to ensure a more positive
stereotype; however regardless, the seven seconds is irrefutable.
Stereotyping in policing is almost a foregone conclusion. Citizens expect their police to protect them
by being not only reactive but proactive. One of the most popular policing methods is to view a situation
and proactively make a quick decision on whether or not a crime is about to occur, and if it is, stop it
from happening. One of the ways police proactively operate is through stereotyping. “Police officers spend
a great deal of time working their beats…one thing is common to all police officer working personalities:
in an effort to know who or what is ‘wrong’ on their beat, police officers must know who is ‘right’ or who
belongs.”
1
When officers cross over the line is when they leave out the step of asking the who, what, where, when,
why, and how after the stereotyping occurs, to confirm their thoughts. It is at this point that the officer is
engaging in a type of implicit bias policing and this opens many doors to corruption. It is another slippery
slope that officers must always be aware of while performing their many duties.
“Stereotyping or Terry Stop” Example
No matter how controversial policing is today, one common thread is that citizens want police
to be proactive, not reactive to violent crime. Whether it is stopping an active shooter in a school, a burglary, or
even a robbery, proactivity in policing is necessary to halt horrendous crimes from occurring. In 1968 the United
States Supreme Court decided Terry v. Ohio, which further explained reasonable searches under the 4th amendment
and played a vital role in the below story.
I was one of six officers with my department, chosen to work in our first ever problem-solving unit (PSU). Our
substation was placed in a neighborhood where 21 murders had occurred in just a few months. We were tasked
1. Perez, D.W. (2011). The paradoxes of police work. Florence, KY: Cengage Publ.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | with being proactive and working with the community to stop the bloodshed. The two-mile radius neighborhood
were composed predominantly of minority residents, and their distrust of our presence was apparent immediately.
The residents had stereotyped us as rotten apple police officers and at first, did not want our assistance, they did
not trust us. This was further agitated by the fact that we were there to be proactive and stop any future murders
from occurring. Plus, we had the Terry v. Ohio decision to assist with our proactive actions. The citizens did not
understand what that meant. They also did not understand that as one of the officers pledged to protect the area, I
was feeling like an unwanted officer in their neighborhood. They did not know that I got into policing to change
the world, if even just a little. They did not know how frustrated it made me feel when no matter how hard I tried,
no one would not trust me. One day, as a four-year-old child approached me for a police sticker, the mom grabbed
the child by the arm and said, “Get away from that Po-Po, she is a Bi***, and don’t you dare talk to her, ever, or you’ll
get it!” I cried that night when I got home from work, wondering how I could help this neighborhood if I couldn’t
even get one mom to trust me? Whether or not it was true, stereotyping had occurred in this neighborhood. Then
on top of it, I had to utilize the Terry v. Ohio decision to be proactive, to keep the murders from occurring. It felt
like a Catch-22 with no solution. The answer did not come to me instantly. All I could think to do was my job
and stop the murders (as I was directed to do). I remembered that four-year-old in my everyday actions. I knew my
efforts could make him safer, but would he ever understand? I utilized Terry v. Ohio, by learning the neighborhood,
recognizing the residents, and learning who belonged, and who did not. I was either on foot or on a bicycle in
this neighborhood due to the small size. This allowed for a lot of interaction with the residents. If I had reasonable
suspicion to think a citizen was about to commit a crime or had evidence of a crime, Terry v. Ohio gave me the
right to investigate further. At first, this angered the neighborhood. They felt we were harassing them, stereotyping
them. I could understand how they felt that way, and instead of trying to make this neighborhood safe overnight, I
decided to begin to change how the neighborhood perceived us, slowly. The way I did this was through education.
Through my daily interactions, I talked to the citizens in the neighborhood about what I was doing and why.
Instead of speaking in ‘general’ I spoke about only one incident at a time.
One night, at 2:00 a.m., I was walking with my partner through the neighborhood. I had to head back to the sub-
station and as I rounded one building, I saw two citizens looking through a window of an apartment. I stopped and
just watched. Everything ran through my mind. Had they lost their keys? Was this their apartment? Or, were they
looking to break-in and burglarize the apartment, possibly even commit a home invasion and hurt those inside? All
of this happened in seconds, not minutes. Because of Terry v. Ohio, I legally investigated. The two citizens did not
live in the apartment and they were trying to burglarize it. One of the suspects had a gun. Because of Terry v. Ohio, I
was able to be pro-active and stop this from occurring. A single mom and three children under six years of age lived
in that apartment and were home. The mom did not trust banks and kept her savings in between her mattresses. I
do not know what I stopped that night. I do not know if the suspects would have used the gun, or if they would
have found the mom’s large cash savings or what else they might have taken; however, I did stop a burglary from
occurring and that felt good. The next day while speaking to some of the citizens in the neighborhood, I explained
this. I used this one example to explain why my unit was there. How we stopped this crime and how we all wanted
to make a difference. This one story did not change how the neighborhood saw us; however, after many more
stories such as this, I began to see a change.
Michelle, one of the citizens in the neighborhood got my cellular telephone number (yes we had cell phones
back in the day!). She began calling me when she heard talk about a possible crime occurring. We hosted many
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | events in the neighborhood as well. From ice cream socials, back-to-school fairs, and we even worked hard to find
donations and get every child in the neighborhood a bicycle (or scooter). After three years, our substation closed.
We had gone a year without a murder and the crime rate dropped 98%. To this day Michelle still calls me and we
chat about what is currently occurring in our lives. Michelle is my friend and I dare say I think she thinks of me
as her friend too. There was a lot of stereotyping that went on in that neighborhood during those years. I found
my way through it all and I think the neighborhood did as well. In the end, we worked together through good ole
community policing and made the area safe again.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 6.11. Current Issues: Accountability
TIFFANY MOREY
One of the most significant issues with police accountability is knowledge of the job of a police officer.
If a person is ignorant about policing policies, procedures, rules, regulations, and how police operate, then
there is going to be a disconnect when the media portrays police in different situations. All too often citizens
get their knowledge of how the police operate through television shows. Miranda admonition is a classic
example. The television show ‘Law and Order’ is notorious for showing the actors playing detectives, giving
Miranda to a suspect, every single time; they place a suspect under arrest. The classic clip shows the hand-
cuffs ‘click, click’ going on, and then as the detectives walk the suspect to their vehicle, they are verbalizing,
from memory, Miranda. In reality, this could not be further from the truth.
Police have a considerable amount of power. Due to the temptation to abuse assigned power police
must ascribe to a higher standard than someone in a non-policing profession. However, members of the
public cannot appropriately identify police misconduct at all levels. “Most citizens possess an incomplete and
incorrect understanding of what it entails. Often…American citizens frequently believe the police guilty of
misconduct when, in fact, they are not…Dirty Harry is a hero of sorts to many Americans. When a Dirty
Harry-type officer engages in curbside justice aimed at a local bully, for example, people tend to be very
supportive of this type of misconduct.
1
Miranda Misconceptions
Thanks to the CSI Effect, Miranda is misunderstood by the general population. Shows such as Law and Order,
show the detectives slapping the hand-cuffs on the suspect, after the investigation is completed, and immediately
verbalizing the Miranda requirements aloud to the suspect. This is not how Miranda is applied. The Miranda
decision requires officers to read certain statements when those officers plan on INTERROGATING a suspect.
If the suspect is NOT free to leave and the officer wants to question the suspect, in an attempt for the suspect
to make incriminating statements, the suspect must be read Miranda admonishments AND must understand the
admonishments. If an officer sees a person break the law, the only time that officer needs to read Miranda prior to
interrogating the suspect, is if the officer wants to question the suspect. If the officer sees the crime, there generally
1. Perez, D.W. (2011). The paradoxes of police work. Florence, KY: Cengage Publ.
255 |
SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | is no need to question the suspect about the crime, therefore Miranda is not required. For instance, if an officer is
using a radar gun and sees a vehicle speeding 40 mph in a 25 mph speed zone, the officer does not need to read the
driver of the vehicle Miranda, unless that officer wants to interrogate the driver. The officer can write the driver a
citation without reading Miranda and in some states the officer can arrest the driver for speeding without reading
Miranda (in Oregon, speeding is a traffic violation, therefore, drivers cannot be arrested for speeding, this is not true
for all states, in some states traffic violations are misdemeanors).
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
SANCHEZ
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 6.12. Current Issues: Internal Affairs and Discipline
TIFFANY MOREY
Internal affairs (IA) exists to hold officers accountable for their actions. Whenever there is an issue, either
brought forth by another officer, a supervisor or a member of the general public, the IA division of the police
department is responsible for conducting a thorough investigation into the incident. Members of the IA
division work directly under the Chief or Sheriff.
In the 1960s the overwhelming number of riots revealed the problem of corruption and misconduct in
policing- one of the most significant issues centered around citizen complaints against officers and the lack
of proper investigation into the complaint. Most officers back then were found exonerated (not guilty) when
a complaint ensued, and this did not bode with the public.
1
Supervisors in Policing Example
As a young girl, I never had dreams of one day being a supervisor in the police world. In fact, I didn’t even want
to be a cop! However, life would direct me towards policing, and after years of testing, I found myself hired as a
police officer in Las Vegas. The life of an officer is full of wonder and excitement, but it is also full of stress, and a
lot of pressure! After I completed the police academy, field training, and probation I soon learned that all supervisors
(sergeants and lieutenants) were not created equal.I received my first police oficer annual evaluation and found that
I ONLY met standards in the areas evaluated. How could that be, I thought? I had never worked harder! I always
stayed late, I wrote amazing reports, I volunteered and helped out my community, I engaged in constant training, I
did everything I knew AND was trained to do. Yet, I still only met standards. Now I wasn’t delusional. I knew that I
was a new police officer and had many things to learn, but why was my sergeant failing to mentor or recognize me
for my above average efforts in many areas? I was even told by a female sergeant, that she had to work harder than
any other police officer because she was a female, so I should have to do the same. Where was mentoring? Where
was the training offered by supervision? I soon learned it did not exist and the only way to create it was to test for
promotion myself and enter the world of supervision as a sergeant. Don’t get me wrong, throughout my tenure as
a police officer I did encounter some amazing supervisors, but they were rare and an exception to the rule. I did
the test for promotion, and I was promoted to sergeant. My goals were to change the way officers were supervised
1. Goldstein, H. (1977). Policing a free society. Cambridge, MA: Ballinger.
257 |
SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | at my department. I worked hard to create a sergeant training program that ensured future supervisors received
the knowledge and power of how-to mentor and train their employees. Three years later I tested and promoted to
lieutenant. I took advantage of my new position in adminstration to mentor many young officers and help them to
succeed in their careers.
Discipline
Police departments are paramilitary organizations or a semi-militarized force whose organizational
structure, tactics, training, subculture, and (often) function are similar to those of a professional military, but
which is formally not part of a government’s armed forces. Therefore, the handling of discipline is serious
business. If an officer is accused of a minor infraction, such as the use of profanity, the officer’s immediate
supervisor will generally handle the policy infraction and note what occurred in the officer’s file and counsel
the officer of the following: 1- Inform the police officer why the conduct was wrong 2- Inform the police
officer how to stop engaging in the conduct 3- Inform the police officer when the conduct must stop 4-
Inform the police officer the time elapsed after the conduct and a scheduled meeting to review and ensure
the conduct is still not occurring. Depending on the conduct, the supervisor may require the officer to attend
training to assist the officer.
Another answer was to create external civilian review boards to hold police accountable for their actions
by reviewing all use of force incidents. With the onset of the 21st century and new technology, came new
tools in policing. One such tool was a new program called IA Pro. This program followed individual officers
throughout their entire career. A scheming grass or meat eater officer could bid on a new shift each year,
gaining a new supervisor who would be oblivious to past infractions. IA Pro ensured any, and all infractions
by an officer were recorded and followed through upon by the applicable supervisor. If an officer used
profanity, the program would require the officer to attend training. If the officer used profanity a second time
within the prescribed time limits, the officer would be placed on an timed employee development program
and could face discipline up to termination. IA Pro was not a panacea, but it would significantly lower the
number of officers allowed to continue to operate as grass or meat eaters.
If an officer is accused of a more serious infraction, such as excessive use of force or lying, the officer
will immediately be placed on administrative leave and The Internal Affairs Division of the department will
investigate the incident. The Internal Affairs Division will offer a finding of 1- Sustained Complaint 2- Not-
Sustained Complaint 3- Exonerated Complaint 4- Unfounded Complaint. Once one of the above complaint
dispositions is assigned, it is then forwarded to the Command Staff (Chief or Sheriff and Assistant Chief/
Sheriff, Deputy Chief/Sheriff, and Captains) for review and discipline. Discipline can include time-off up to
termination.
When an Officer Does Something Illegal Example
I was a lieutenant over two sergeants and dozens of officers when I received the dreaded phone call. One of my
officers was being placed on administrative leave by Internal Affairs due to a horrendous allegation. The officer had
been pulling over female drivers for ‘so-called’ traffic violations and offering them an ‘out’ if they performed some
sort of sexual activity. My heart sank, how could this have happened and on my watch? After weeks of investigation,
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | I learned that the officer had been engaging in this illegal activity for months. It took several brave women to
contact our Internal Affairs Division and tell their stories, to stop it. I racked my brain as to what I could have done
to prevent the officer. Did I miss the signs? Should I have been sterner? What could I have done? Even years later
it tears at my soul. What those women had to endure. How scared they must have been. It must have been their
worst nightmare come true. I have played many scenarios in my head as to what I could have done or should have
done to stop this officer’s actions. And I finally learned that some people are just ethically and morally corrupt. No
matter how hard we, in supervision, try to identify them through the L.E.T. Process or keep tabs on them when
they engage in such acts, sometimes they slip through the cracks and are allowed to spread their evilness. This is
what happened with this officer. The officer was smart enough to engage in this activity while alone on patrol,
knowing that he could stop this action if another officer or supervisor assisted on the traffic stop. His actions were
scary and should send a message to every police department and every supervisor that they must always be on the
look-out for those officers that are corrupt and will use their power to engage in illegal and horrendous crimes. This
was a hard lesson for me to learn, but an eye-opening one that would forever change the way I supervised those
officers in my command.
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 6.13.Current Issues: Body Cameras
TIFFANY MOREY
An overwhelming number of police officers welcome body cameras, just like citizens. The reason being the
high number of citizen complaints received which center around a citizen exaggerating or lying in order to
try and get out of an expensive traffic related citation. ‘The officer yelled at me and made me feel stupid and
used profanity.’ Is an example of a citizen complaint often reported to a supervisor. Body camera footage of
the incident more than often shows the exact opposite. The truth often is that the citizen did run the red light
or failed to stop at the stop sign and did not want to accept responsibility and pay the fine. Body cameras
changed the environment of citizen complaints; however, body cameras also ensure that grass-eaters do not
partake in temptation. Moreover, those meat-eaters are held accountable for excessive use of force or illegal
actions.
Body cameras would seem to be the panacea for all police misconduct, the truth of the matter is not so
concrete. First, body cameras only show one point of view. Until small drones can hover above the officer
showing a 360-degree view, the accurate recollection of an event can never be indeed known. Second, no
matter how full-proof department policies and procedures regulate the use of body cameras, there will always
be a user that can turn off the camera in certain situations. Body cameras are one answer in a giant puzzle
to hamper and stop police misconduct. As technology improves, so hopefully will view the body cameras
record.
Police Body Cameras: What Do You See Exercise
https://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html
“People are expecting more of body cameras than the technology will deliver,” Professor Stoughton said. “They
expect it to be a broad solution for the problem of police-community relations, when in fact it’s just a tool, and like
any tool, there’s limited value to what it can do.” You will have a 500-word response to the questions below.
•
First, go to the above link and complete the activity. Be as honest with yourself as possible.
•
Second, after the videos and this experiment, has your view of policing and the role of video changed?
Do you think body cameras are worth the expense or could we do without? What are the pros and cons?
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 6.14. Myth: “Police Only Write Speeding Tickets to Harass Citizens
and it is Entrapment.”
TIFFANY MOREY
Many people believe that a traffic officer or for that fact, any police officer, who is engaging in speed
enforcement and is hidden, is guilty of entrapment and such behavior is tantamount to harassment. First, an
officer does not have to be wholly or partially visible in order for a traffic citation to be valid. Also, the officer
does not have to take you to, or show you a photo of, the speed limit sign (applicable for the location you
were driving), before a citation is issued. If you get behind the wheel of a motor vehicle, you are required
to know the speed limit of the roads you drive. If you decide to speed, even just one mile over the speed
limit, you are, by the letter of the law, speeding, and this is a traffic offense. If an officer either through
radar or visual speed estimation, determines you are speeding, that officer has every legal right, to issue you
a speeding citation.
However, let’s consider a different situation. If, while having coffee at a local coffee shop, an officer started
chatting with you about a new speed limit along Main St. The officer told you that the speed limit had been
raised from 20 mph to 35 mph (which was a lie); and believing that officer, you left the coffee shop and drove
along Main St. going 35 mph. You then glanced up and saw the unmistakable red and blue lights in your
rear-view mirror. You were stopped by a different officer, who told you the speed limit was only 20 mph
(not 35 mph) and issued you a speeding citation. These actions would be considered entrapment because the
other officer was trying to get you to engage in criminal behavior.
Now onto why it is not harassment for an officer to give out speeding citations. According to The
Association for Safe International Road Travel; “Nearly 1.25 million people die in road crashes each year,
and an additional 20-50 million are injured or disabled” (2018). Our police are tasked with making our roads
safe and saving lives. Since 3,287 people die every DAY from traffic collisions, police must take responsibility
and try to lower this massive number. Therefore, police study not only where these crashes are occurring,
but the mitigating factors that cause them. It may surprise you to know that the number one cause for road
crashes, is speeding. How do police then slow people down? Education is the first step, however, sometimes
the only way to educate is through a speeding citation.
The next time you get a speeding citation (for going faster than the posted speed limit), instead of accusing
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | the officer of harassment, you should take responsibility and be the first step in lowering the number of
deaths from related road crashes.
1
1. Road Safety Facts. (2018). Retrieved from https://www.asirt.org/safe-travel/road-safety-facts/
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 7: Courts
Learning Objectives
This section examines the structure and function of the criminal courts in America. It examines the concept of
jurisdiction and describes the dual court system (the federal court system and the various state court systems). This
section also examines the role and function of the various courtroom participants–the people who work in the
courts. After reading this section, students will be able to:
•
Differentiate between what happens at trial and what happens on appeal and identify the procedural
history of a criminal case by reading appellate opinions written in the case.
•
Describe how a crime/criminal case proceeds from the lowest level trial court up through the U.S.
Supreme Court. (i.e., students should understand the hierarchy of the federal and state courts).
•
Discuss the function and selection of state and federal trial and appellate judges in the American
criminal justice system.
•
Discuss the function and selection of state and federal prosecutors in the American criminal justice
system.
•
Discuss the importance of the criminal defense attorney in the American criminal justice system.
•
Identify at what stages of the criminal justice process a defendant is entitled to the assistance of a court-
appointed attorney.
Critical Thinking Questions
1.
Knowing what happens at trial and what happens on appeal, would you be more interested in being
a trial judge or an appellate judge? Why?
2.
Why is there a different standard of review for questions of fact and questions of law?
3.
Do you agree that cases should be overturned only when there was a fundamental or prejudicial error
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | that occurred during the trial?
4.
Do you think it is easier to be a defense attorney than a prosecutor believing the defendant is guilty
but knowing that the justice system has violated the defendant’s rights?
5.
Should the defendant ever waive the assistance of counsel?
6.
Is there any position as a court staff that particularly interests you? Why?
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 7.1. Introduction to the U.S. Court System
LORE RUTZ-BURRI
What follows is an examination of the structure and role of the courts in the American criminal justice system
and the requirement of jurisdiction. As you read this chapter, pay attention to the context when you see the
word “court” because it is used in a variety of ways. “Court” can mean a building—it is short for “courthouse”
(for example, “he went to the court”); one judge (for example, “the trial court decided in his favor”); a group of
judges (for example, “the Supreme Court unanimously upheld the conviction”), or an institution/process generally
(for example, “courts hopefully resolve disputes in an even-handed manner”). Courts (the institution and processes)
determine both the facts of a crime (did the defendant do the crime?) and also the legal sufficiency of the criminal
charge (can the government prove it?). Courts ensure that criminal defendants are provided due process of law,
or the procedures used to convict the defendant are fair. Courts are possibly more important in criminal cases than
in civil cases because, in civil matters, the parties have the option of settling their disputes outside of the court
system, but all criminal prosecutions must be funneled through the criminal courts.
After reading this chapter, you will be able to project the trajectory of a criminal case from the filing of
criminal charges in a local courthouse through all final appeals processes. This requires an understanding of the
dual court system, the structure of typical state court systems and the federal court system. This chapter explores
the differences between a trial court and an appellate court, and you will learn how trial judges and juries decide
(determine the outcome of) a case by applying the legal standards to the facts presented during trial and how
appellate judges decide if the case was rightly decided after examining the trial record for legal error. Appellate
courts make known their decisions known through their written opinions, and this chapter introduces the types of
opinions and rulings of appellate courts.
This chapter also examines the selection, roles, and responsibilities of the participants in the criminal courts
frequently referred to as the courtroom workgroup. You will become familiar with who the players are during
each of these steps of the process.
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LORE RUTZ-BURRI
In order to understand the courts, it is essential to understand the many facets of the word jurisdiction.
Jurisdiction refers to the legal authority to hear and decide a case (legal suit).
Jurisdiction Based on the Function of the Court
Trial Courts versus Appellate Courts
Jurisdiction may be based on the function of the court, such as the difference between trial and appellate
functions. The federal and state court systems each have court hierarchies that divide trial courts and
appellate courts. Trial courts have jurisdiction over pretrial matters, trials, sentencing, probation, and parole
violations. Trial courts deal with facts. Did the defendant stab the victim? Was the eyewitness able to clearly
see the stabbing? Did the probationer willfully violate terms of probation? As a result, trial courts determine
guilt and impose punishments.
Appellate courts, on the other hand, review the decisions of the trial courts. They are primarily
concerned with matters of law. Did the trial judge properly instruct the jury about the controlling law?
Did the trial court properly suppress evidence in a pretrial hearing? Does the applicable statute allow the
defendant to raise a particular affirmative defense? Appellate courts correct legal errors made by trial courts
and develop law when new legal questions arise. Appellate courts do not hold hearings in which evidence
is developed, but rather they only review the record, or “transcript”, of the trial court. In some instances,
appellate courts determine if it is legally sufficient, or enough, evidence to uphold a conviction.
Jurisdiction Based on Subject Matter
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Jurisdiction can also be based on the subject matter of the case. For example, criminal courts handle
criminal matters, tax courts handle tax matters, and customs and patent courts handle patent matters.
Regarding “subject matter jurisdiction” Kerper (1979, 34) noted,
“The [subject matter] jurisdictional distinction . . . tends to be utilized primarily in distinguishing
between different trial courts. Appellate courts ordinarily can hear all types of cases, although there
are several states that have separate appellate courts for criminal and civil appeals. At the trial level,
most states have established one or more specialized courts to deal with particular legal fields. The
most common areas delegated to specialized courts are wills and estates (assigned to courts
commonly known as probate . . . courts), divorce, adoption or other aspects of family law (family or
domestic relations courts), and actions based on the English law of equity (chancery courts). The
federal system also includes specialized courts for such areas as customs and patents. While
significant, the specialized courts represent only a small portion of all trial courts. Most trial courts
are not limited to a particular subject but may deal with all fields. Such trial courts are commonly
described as having general jurisdiction since they cover the general (i.e., non-specialized) areas of
law. Criminal cases traditionally are assigned to courts with general jurisdiction.”
1
Jurisdiction Based on the Seriousness of the Case
The jurisdiction of trial courts may also be based on the seriousness of the case. For example, some
courts, called courts of limited jurisdiction only have authority to try infractions, violations, and petty
crimes (misdemeanors) whereas other trial courts, called courts of general jurisdiction, have authority to
try serious crimes (felonies) as well as minor crimes and offenses.
Jurisdiction Based on the Court’s Authority over the Parties to the Case
Jurisdiction also refers to the court’s authority over the parties in the case. For example, juvenile courts
have jurisdiction over dependency and delinquency cases involving youth. Other courts have jurisdiction
that is based on the special nature of the parties are the military tribunals, including courts-martial, Courts
of Criminal Appeals, and the United States Court of Appeals for the Armed Services.
1. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed.). West Publishing Company.
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Jurisdiction based on State and Federal Autonomy (Geography)
Finally, jurisdiction is also tied to our system of federalism, the autonomy of both national and state
governments. State courts have jurisdiction over state matters, and federal courts have jurisdiction over
federal matters. Jurisdiction is most commonly known to represent geographic locations of the court’s
oversight. For example, Oregon courts do not have jurisdiction over crimes in California.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 7.3. Structure of the Courts: The Dual Court and Federal Court
System
LORE RUTZ-BURRI
Separate Federal and State Court Systems
Each state has two complete parallel court systems: the federal system, and the state’s own system. Thus,
there are at least 51 legal systems: the fifty created under state laws and the federal system created under
federal law. Additionally, there are court systems in the U.S. Territories, and the military has a separate court
system as well.
The state/federal court structure is sometimes referred to as the dual court system. State crimes, created
by state legislatures, are prosecuted in state courts which are concerned primarily with the applying state
law. Federal crimes, created by Congress, are prosecuted in the federal courts which are concerned primarily
with applying federal law. As discussed below, it is possible for a case to move from the state system to the
federal system when a defendant challenges the conviction on direct appeal through a writ of certiorari, or
when the defendant challenges the conditions of confinement through a writ of habeas corpus.
Dual Court System Structure
Highest Appellate Court
U.S. Supreme Court (Justices)
(NoteCourt also has original/trial court
jurisdiction in rare cases) (Note: Court
will also review petitions for writ of
certiorari from State Supreme Court
cases).
State Supreme Court (Justices)
Intermediate Appellate Court
U.S. Circuit Court of Appeals (Judges)
State Appellate Court (e.g., Oregon
Court of Appeals) (Judges)
Trial Court of General Jurisdiction
U.S. District Court (Judges) (Note: this
court will review petitions for writs of
habeas corpus from federal and state
court prisoners)
Circuit Court, Commonwealth Court,
District Court, Superior Court (Judges)
Trial Court of Limited Jurisdiction
U.S. Magistrate Courts (Magistrate
Judges)
District Court, Justice of the Peace,
Municipal Courts (Judges, Magistrates,
Justices of the Peace)
The Federal Court System
Article III of the U.S. Constitution established a Supreme Court of the United States and granted Congress
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | discretion as to whether to adopt a lower court system. It states the “judicial Power of the United States
shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time
ordain and establish.” Fearing that the state courts might be hostile to congressional legislation, Congress
immediately created a lower federal court system in 1789.
1 The lower federal court system has been
expanded over the years, such as when Congress created the separate appellate courts in 1891.
View the authorized federal judgeships at http://www.uscourts.gov/sites/default/files/allauth.pdf
Trace the history of the federal courts at https://www.fjc.gov/history/timeline/8276
Trace the history of the subject matter jurisdiction of the federal courts here https://www.fjc.gov/history/
timeline/8271
View cases that shaped the roles of the federal courts at https://www.fjc.gov/history/timeline/8271
Trace the administration of the federal courts at https://www.fjc.gov/history/timeline/8286
United States Supreme Court
The United States Supreme Court (Court), located in Washington, D.C., is the highest appellate court
in the federal judicial system. Nine justices sitting en banc,
en banc, as one panel, together with their clerks and
administrative staff, make up the Supreme Court. [View the biographies of the current U.S. Supreme
Court Justices here: https://www.supremecourt.gov/about/biographies.aspx]. The Court’s decisions have the
broadest impact because they govern both the state and federal judicial system. Additionally, this Court
influences federal criminal law because it supervises the activities of the lower federal courts. The nine
justices have the final word in determining what the U.S. Constitution permits and prohibits, and it is most
1. (The Judiciary Act of 1789 (Ch. 20, 1 Stat 73)
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | influential when interpreting the U.S. Constitution. Associate Justice of the Supreme Court, Robert H.
Jackson stated in Brown v. Allen, 344 U.S. 433, 450 (1953), “We are not final because we are infallible, but we
are infallible only because we are final.” Although it is commonly thought that the U.S. Supreme Court has
the final say, this is not one hundred percent accurate. After the Court has read written appellate briefs and
listened to oral arguments, it will “decide” the case. However, it frequently refers or sends, the case back to
the state’s supreme court for them to determine what their own state constitution holds. Similarly, as long as
the Court has interpreted a statute and not the constitution, Congress can always enact a new statute which
modifies or nullifies the Court’s holding.
Writs of Certiorari and the Rule of Four
The Court has a discretionary review over most cases brought from the state supreme courts and federal
appeals courts in a process called a petition for the writ of certiorari. Four justices must agree to accept
and review a case, and this only happens in roughly 10% of the cases filed. (This is known as the rule
of four.) Once accepted, the Court schedules and hears oral arguments on the case, then delivers written
opinions. Over the past ten years, approximately 8,000 petitions for writ of certiorari are filed annually.
It is difficult to guess which cases the court will accept for review. However, a common reason the court
accepts to review a case is that the federal circuits courts have reached conflicting results on important issues
presented in the case.
Take a virtual tour of the U.S. Supreme Court building: https://www.oyez.org/tour
The United States Supreme Court Building
“The United States Supreme Court occupies a majestic building in Washington, D.C., with spacious
office suites and impressive corridors and library facilities. With enhancements and attributes similar
to those of appellate courts, the elegance and dignity of the facilities comport with the significant role
of the Court as the final arbiter in the nation’s judicial system. There is a sparse crowd at most state
and intermediate federal appellate courts; at the Supreme Court, by contrast, parties interested in the
decisions that will result from arguments, a coterie of media persons, and many spectators fill the courtroom
to hear arguments in cases that often significantly affect the economic, social, and political life of the
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | nation. Photography is not allowed, and the arguments and dialogue between counsel and the justices are
observed silently and respectfully by those who attend.”
2
Take a tour of the U.S. Supreme Court with CNN: https://www.youtube.com/watch?v=Unyswl36q8w
Original (Trial Court) Jurisdiction of the Supreme Court: A Rarity
When the Court acts as a trial court it is said to have original jurisdiction, and it does so in a few
important situations, such as when one state sues another state. The U.S. Constitution, Art. III, §2, sets
forth the jurisdiction of the Court. It states,
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all
Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime
Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or
more States;-between a State and Citizens of another State;-between Citizens of different States;-between
Citizens of the same State claiming Lands under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall
be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the
Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under
such Regulations, as the Congress shall make.”
Original jurisdiction cases are rare for several reasons. First, the Constitution prohibits Congress from
increasing the types of cases over which the Supreme Court has original jurisdiction. Second, parties in an
original jurisdiction suit must get permission by petitioning the court to file a complaint in the Supreme
Court. In fact, there is no right to have a case heard by the Supreme Court, even though it may be the
only venue in which the case may be brought. The Supreme Court may deny petitions for it to exercise
original jurisdiction because it finds that the dispute between the states is too trivial, or conversely, too
broad, and complex. The Court does not need to explain why it refuses to take up an original jurisdiction
case. Original jurisdiction cases are also rare because, except in suits or controversies between two states,
the Court has increasingly permitted the lower federal courts to share its original jurisdiction.
2. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 45). Belmont, CA: Cengage.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | United States Courts of Appeal
Ninety-four judicial districts comprise the 13 intermediate appellate courts in the federal system known as
the U.S. Courts of Appeals, sometimes referred to as the federal circuit courts. These courts hear challenges
to lower court decisions from the U.S. District Courts located within the circuit, as well as appeals from
decisions of federal administrative agencies, such as the social security courts or bankruptcy courts. There
are twelve circuits based on geographic locations and one federal circuit which has nationwide jurisdiction
to hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S. Court
of International Trade and the U.S. Court of Federal Claims. The smallest circuit is the First Circuit with
six judgeships, and the largest court is the Ninth Circuit, with 29 judgeships. Appeals court panels consist of
three judges. The court will occasionally convene en banc and only after a party who has lost in front of the
three-judge panel requests review. Because the Circuit Courts are appellate courts which review trial court
records, they do not conduct trials and, thus, they do not use a jury.
The U.S. Courts of Appeal, like the U.S. Supreme Court, trace their existence to Article III of the U.S.
Constitution. These courts are busy, and there have been efforts to both fill vacancies and increase the
number of judgeships to help deal with the caseloads. For example, the Federal Judgeship Act of 2013 would
have created five permanent and one temporary circuit court judgeships, in an attempt to keep up with
increased case filings. However, the bill died in Congress. Fortunately, in recent years, fewer cases have been
filed.
Click
on
this
link
to
see
the
geographical
jurisdiction
of
the
U.S.
Courts
of
Appeals: http://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf
United States District Courts
The U.S. District Courts, also known as “Article III Courts”, are the main trial courts in the federal court
system. Congress first created these U.S. District Courts in the Judiciary Act of 1789. Now, ninety-four
U.S. District Courts, located in the states and four territories, handle prosecutions for violations of federal
statutes. Each state has at least one district, and larger states have up to four districts. Each district court is
described by reference to the state or geographical segment of the state in which it is located (for example,
the U.S. District Court for the Northern District of California). The district courts have jurisdiction over all
prosecutions brought under federal criminal law and all civil suits brought under federal statutes. A criminal
trial in the district court is presided over by a judge who is appointed for life by the president with the
consent of the Senate. Trials in these courts may be jury trials.
Link to a number of cases filed in U.S. District Courts http://www.uscourts.gov/federal-judicial-
caseload-statistics-2018-tables
Although the U.S. District Courts are primarily trial courts, district court judges also exercise an appellate-
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | type function in their review of petitions for writs of habeas corpus brought by state prisoners. Writs of
habeas corpus are claims by state and federal prisoners who allege that the government is illegally confining
them in violation of the federal constitution. The party who loses at the U.S. District Court can appeal the
case in the court of appeals for the circuit in which the district court is located. These first appeals must be
reviewed, and thus are referred to as appeals of right.
United States Magistrate Courts
U.S. Magistrate Courts are courts of limited jurisdiction in the federal court system, meaning that these
legislatively-created courts do not have full judicial power. Congress first created the U.S. Magistrate Courts
with the Federal Magistrate Act of 1968. Under the Act, federal magistrate judges assist district court judges
by conducting pretrial proceedings, such as setting bail, issuing warrants, and conducting trials of federal
misdemeanor crimes. There are more than five hundred Magistrate Judges who disposed of over one million
matters.
In the News: https://www.uscourts.gov/sites/default/files/data_tables/jb_s17_0930.2017.pdf)
U.S. Magistrate Courts are “Article I Courts” as they owe their existence to an act of Congress, not the
Constitution. Unlike Article III judges who hold lifetime appointments, Magistrate Judges, formerly referred
to as “Magistrates” before the Judicial Improvement Act which took effect December 1, 1990, are appointed
for eight-year terms.
For a comprehensive review of the U.S. Magistrate Courts and U.S. Magistrate Judges
see: http://www.fedbar.org/PDFs/A-Guide-to-the-Federal-Magistrate-Judge-System
Court Assignment
Watch season two of the popular Netflix series, Making a Murder which covers the appeals of the murder
convictions of Steven Avery and his nephew Brendan Dassey. Pay attention to the discussions among Brendan
Dassey’s appellate team from Northwestern School of Law concerning the appeals process from the state courts
through the federal Seventh Circuit Court of Appeals, which convened en banc after a 2-1 panel decision finding
Brendan Dassey’s confession was inadmissible.
See
also, http://involuntary.http://www.abajournal.com/news/article/
en_banc_7th_circuit_reinstates_brendan_dasseys_conviction_in_making_a_murde?icn=most_read
•
Write a 500-word response about what you saw during the appeals process and how it made you feel.
Did you agree with it or disagree with it? Is this justice?
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Click on this link to see the number of filings: http://www.uscourts.gov/statistics-reports/federal-
judicial-caseload-statistics-2018
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 7.4. Structure of the Courts: State Courts
LORE RUTZ-BURRI
State Court Systems
Each state has its own independent judicial system. State courts handle more than 90 percent of criminal
prosecutions in the United States. Although state court systems vary, there are some common features. Every
state has one or more level of trial courts and at least one appellate court. Although there is no federal
constitutional requirement that defendants be given the right to appeal their convictions, such a right is
arguably implicit in the due process clause of the Fourteenth Amendment. Moreover, every state has some
provision, usually within its own constitution or statutes, that provides defendants at least one appeal. Most
state courts have both courts of general jurisdiction, which conduct felony and major misdemeanor trials, and
courts of limited jurisdiction, which conduct violations, infractions, and minor misdemeanor trials. Similar to
the U.S. Magistrate Courts, states’ courts of limited jurisdiction will also handle pre-trial matters for felonies
until they are moved into the general jurisdiction court. Most states have intermediate courts of appeals and
some have more than one level of these courts. All states have a court of last resort, generally referred to as
the Supreme Court. Some states court systems are streamlined, and some are complex, with most states fall
between the two extremes.
Hierarchy of State Courts
State trial courts tend to be busy, bustling places with lots of activity. Appellate courts, on the other hand,
tend to be solemn and serene, formal places. Scheb noted,
“Appellate courts are different than trial courts, both in function and ‘feel.’ Unlike a trial court, which is
normally surrounded by a busy atmosphere, an appellate court often sits in the state capitol building or its
own facility, usually with a complete law library. The décor in the building that house appellate courts is
usually quite formal, and often features portraits of former judges regarded as oracles of the law. When a
panel of judges sits to hear oral arguments, they normally emerge from behind a velvet curtain on a precise
schedule and to the cry of the court’s marshal. When not hearing oral arguments, appellate judges usually
occupy a suite of offices with their secretaries and law clerks. It is in these individual chambers that appellate
judges study and write their opinions on cases assigned to them.”
1
Kerper describes the flow of a case through the hierarchical structure of the courts as follows:
1. Scheb II, J.M. (2013). Criminal Law and Procedure (8th ed., pp. 43). Belmont, CA: Cengage.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | “When the specialized courts are put to one side, we find that a judicial system typically has three or
possibly four levels of courts. This will be the hierarchy commonly applicable to criminal cases.
At the bottom level in the typical hierarchy will be the magistrate court. Judges on that level will
try minor civil and criminal cases. They will also have some preliminary functions in the more serious
felony cases that will eventually be tried in the general trial court. Thus a person arrested on a felony
charge initially will be brought before a magistrate who will inform the arrestee of the charge against
him, set bail, and screen the prosecution’s case to ensure that it is sufficient to send on to the general
trial court.
At the next court level is the general trial court, which will try all major civil and criminal cases.
While this court is predominantly a trial court, it also serves as an appellate court for the minor cases
tired in the magistrate court. Thus, if a defendant is convicted on a misdemeanor charge in a magistrate
court, his natural route of appeal is to the general trial court as the next highest court. The appellate
review in the general trial court will take a special form where the magistrate court is one described as
a court “not of record.” In most instances, however, the general trial court will review the record in the
magistrate court for possible error in the same way that the appellate court at the next tier will review
the trial decisions of the general trial court in major cases.
The court at the next level may be either the first of two or the only general appellate court in the
judicial hierarchy. In almost half of the states and the federal system, there are two appellate tiers. The
first appellate court, which would be at the third level in the hierarchy, is commonly described as the
intermediate appellate court. The next level of appellate court is the appellate court of last resort; it is
the highest court to which a case can ordinarily be taken. These highest appellate courts frequently are
titled, “supreme courts.” . . . Where a judicial system has two tiers of appellate courts, the supreme court
will be at the fourth level of the hierarchy. In those states that have only one tier, there is no intermediate
appellate court. The supreme court is the court at the third level of the hierarchy.
In most jurisdictions, the losing party at trial is given an absolute right to one level of appellate
review, but any subsequent reviews by a higher appellate court are at the discretion of that higher
court. Thus, in a system that has no intermediate appellate court, a defendant convicted of a felony in
a general trial court has an absolute right to have his conviction reviewed by the next highest court,
the supreme court. In a system that has an intermediate appellate court, the felony defendant’s absolute
right to review extends only to that intermediate court. If that court should decide the case against him,
the defendant can ask the supreme court to review his case, but it need do so only at its discretion. The
application requesting such discretionary review is called a petition for certiorari. If the court decides
to review the case, it issues a writ of certiorari directing that the record in the case be sent to it
by the intermediate appellate court. Those supreme courts having discretionary appellate jurisdiction
commonly refuse to grant most petitions for certiorari, limiting their review to the most important
cases. Consequently, even where a state judicial hierarchy has four rather than three levels, most civil or
criminal cases will not get beyond the third level.
Our description of the hierarchy of the courts has assumed so far that all trial courts are “courts
of record,” and appellate review accordingly will be on the record. There is one major exception to
that assumption which we should note—the court “not of record.” The division between courts of
record and courts not of the record originally was drawn when many trial courts lacked the mechanical
capacity to maintain a complete record of their proceedings. If a court could provide such a record, the
losing party could readily gain an appellate review of the trial decision before the next highest court.
If the record was not available, however, the higher court had no way of examining the proceedings
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | below to determine if an error was committed. Without a court of record, a second look at the
case could only be provided by the higher court giving the case de novo consideration (i.e., fresh
consideration). This was done by conducting a new trial called a trial de novo. The trial de novo was
not in fact appellate review, since it did not review the decision below, but proceeded as if the case had
begun in the higher court. The trial de novo simply was a substitute for appellate review, necessitated
by the absence of a record.”
2
2. Kerper, H. B. (1979). Introduction to the criminal justice system (2nd ed., pp. 38-39). West Publishing Company.
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 7.5. American Trial Courts and the Principle of Orality
LORE RUTZ-BURRI
At trial, the state will present evidence showing facts demonstrating that the defendant committed the crime.
The defendant may also present facts that show he or she did not commit the crime. The principle of
orality requires that the trier of fact (generally the jury, but the judge when the defendant waives a jury
trial) considers only the evidence that was developed, presented, and received into the record during the trial.
As such, jurors should only make their decision based upon the testimony they heard at trial in addition to
the documents and physical evidence introduced and admitted by the court. The principle of orality would
be violated if, for example, during deliberations, the jury searched the Internet to find information on the
defendant or witnesses. Similarly, if the police question the defendant and write a report, the jury cannot
consider the contents of the report unless it has been offered in a way that complies with the rules of evidence
and the court has received it during the trial. The principle of orality distinguishes the functions of a trial
court, developing the evidence, and the function of the appellate courts, reviewing the record for legal error.
The principle of orality is one major difference between the adversarial system generally followed by the
United States and the inquisitorial system generally followed in most other countries. Frequently in civil
law countries (for example, most European nations), the police, prosecutors, or investigating magistrates
question witnesses prior to trial and write summaries of their statements called a dossier. In determining
guilt, the trier of fact is presented with just the summaries of the witness statements. The trial in civil law
countries is less about the presentation of evidence establishing the defendant’s guilt and more about the
defendant’s presentation of mitigation evidence which assists the court in giving an appropriate sentence, or
sanction.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 7.6. The Appeals Process, Standard of Review, and Appellate
Decisions
LORE RUTZ-BURRI
The Appeals Process
The government cannot appeal a jury’s decision by acquitting the defendant, or finding the defendant
not guilty. Thus, most criminal appeals involve defendants who have been found guilty at trial. The
government may appeal a court’s pretrial ruling in a criminal matter before the case is tried, for example a
decision to suppress evidence obtained in a police search. This is called an interlocutory appeal. Although
the defendant is permitted to appeal after entering a guilty plea, the only basis for his or her appeal is to
challenge the sentence given. When the defendant appeals, he or she is now referred to as the appellant,
and the State is the appellee. (Note that often the court will use the words petitioner and respondent.
The petitioner is the party who lost in the last court who is petitioning the next level court for review; the
respondent is the party who won in the last court). In routine appeals, the primary function of appellate
courts is to review the record to discern if errors were made by the trial court before, during, or after the trial.
No trial is perfect, so the goal is to ensure there was a fair, albeit imperfect, trial. Accordingly, the appellate
courts review for fundamental, prejudicial or plain error. Appellate courts will reverse the conviction and
possibly send the case back for a new trial when they find that trial errors affected the outcome of the case. A
lower court’s judgment will not be reversed unless the appellant can show that some prejudice resulted from
the error and that the outcome of the trial or sentence would have been different if there had been no
error. By reviewing for error and then writing opinions that become case law, appellate courts perform dual
functions in the criminal process: error correction and lawmaking.
Appellate judges generally sit in panels of three judges. They read the appellant’s brief (a written
document filed by the appellant), the reply brief (a written document filed by the the appellee), and any
other written work submitted by the parties or friend of the court amicus curiae briefs. Amicus curiae are
individuals or groups who have an interest in the case or some sort of expertise but are not parties to the case.
The appellate panel will generally listen to very short oral arguments, generally twenty minutes or less, by
the parties’ attorneys. During these oral arguments, it is common for the appellate judges to interrupt and ask
the attorneys questions about their positions. The judges will then consider the briefs and arguments and
the panel will then meet and deliberate and decide based on majority rule. If the appellate court finds that no
error was committed at trial, it will affirm the decision, but if it finds there was an error that deprived the
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | losing party of a fair trial, it may issue an order of reversal. When the case is reversed, in most instances, the
court simply will require a new trial during which the error will not be repeated. This is called a remand.
In some cases, however, the order of reversal might include a direction to dismiss the case completely, for
example when the appellate court concludes that the defendant’s behavior does not constitute a crime under
the law in that state. When reading an opinion, also known as decisions, from an appellate court, you can
tell the procedural history of a case (i.e., a roadmap of where the case has been: what happened at trial, what
happened as the case was appealed up from the various appellate courts).
Standards of Review
You have just learned that one function of the appellate courts is to review the trial record and see if there is
a prejudicial or fundamental error. Appellate courts do not consider each error in isolation, but instead, they
look at the cumulative effect of all the errors during the whole trial. Appellate court judges must sometimes
let a decision of a lower court stand, even if they personally don’t agree with it. Sports enthusiasts are familiar
with the use of instant/video replay, and it provides us a good analogy. Officials in football, for example, will
make a call, a ruling on the field, immediately after a play is made. This decision, when challenged, will be
reviewed, and the decision will be upheld unless there is “incontrovertible evidence” that the call was wrong.
When dealing with appeals, how much deference to show the lower court is the essence of the standard of
review. Sometimes the appellate courts will give great deference to the trial court’s decision, and sometimes
the appellate courts will give no deference to the trial court’s decision. How much deference to give is based
on what the trial court was deciding—was it a question of fact, a question of law, or a mixed question of law
and fact.
The appellate court will allow a trial court’s decision about a factual matter to stand unless the court clearly
got it wrong. The appellate court reasons that the judge and jury were in the courtroom listening to and
watching the demeanor of the witnesses and examining the physical evidence. They are in a much better
position to determine the credibility of the evidence. Thus, the appellate court will not overturn findings of
fact unless it is firmly convinced that a mistake has been made and that the trial court’s decision is clearly
erroneous or “arbitrary and capricious.” The arbitrary and capricious standard means the trial court’s decision
was completely unreasonable and it had no rational connection between the facts found and the decision
made. The lower courts finding will be overturned only if it is completely implausible in light of all of the
evidence. One court noted, “Where there are two permissible views of the evidence, the fact finder’s choice
between them cannot be clearly erroneous.”
1
Sometimes the law requires, or at the parties’ request, that a trial judge or jury make a special finding
of fact. Findings of fact are made on the basis of evidentiary hearings and usually involve credibility
determinations that are better made by the trial judge sitting in the courtroom listening to the evidence and
observing the demeanor of the witnesses. It is not enough that the appellate court may have weighed the
evidence and reached a different conclusion unless the decision was clearly erroneous, the appellate court
will defer to the trial judge.
Trial judges often make discretionary rulings., for example, whether to allow a party’s request for a
continuance or to allow a party to amend its pleadings or file documents late. In these matters of discretion,
the appellate court will only overturn the trial judge if they find such a decision was an abuse of discretion.
The lower court’s judgment will be termed an abuse of discretion only if the judge failed to exercise sound,
reasonable, and legal decision-making skills. A trial court abuses its discretion, for example, when: it does not
apply the correct law, erroneously interprets a law, rests its decision on a clearly inaccurate view of the law,
1. United States v. Yellow Cab Co., 338 U.S. 338. 342 (1949).
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | rests its decision on a clearly erroneous finding of a material fact, or rules in a completely irrational manner.
Abuse of discretion exists when the record contains no evidence to support the trial court’s decision.
When it comes to questions of law, the appellate courts employ a different standard of review called de
novo review. De novo review allows the appellate court to use its own judgment about whether the trial
court correctly applied the law. Appellate courts give little or no deference to the trial court’s determinations
and may substitute its own judgment on questions of law. Questions of law include interpretation of statutes
or contracts, the constitutionality of a statute, the interpretation of rules of criminal and civil procedure. Trial
courts presume that laws are valid and do not violate the constitution, and the burden of proving otherwise
falls on the defendant. Trial courts sometimes get it wrong. De novo review allows the court to use its
own judgment about whether the court correctly applied the law. Appellate judges are perhaps in a better
position to decide what the law is as the trial judge since they are not faced with the fast-pace of the trial and
have time to research and reflect.
Sometimes the trial court must resolve a question in a case that presents both factual and legal issues.
For example, if police stop and question a suspect, there are legal questions, such as whether the police
had reasonable suspicion for the stop or whether the questioning constituted an “interrogation”, and factual
questions, such as whether police read the suspect the required warnings. Mixed questions of law and fact
are generally reviewed de novo. However, factual findings underlying the lower court’s ruling are reviewed
for clear error. Thus, if the application of the law to the facts requires an inquiry that is “essentially factual,”
review is for clear error.
In reviewing the trial court record, the appellate court may discover an error that parties failed to complain
about. Generally, appellate courts will not correct errors that aren’t complained about, but this is not the case
when they come upon plain error. Plain error exists “[w]hen a trial court makes an error that is so obvious
and substantial that the appellate court should address it, even though the parties failed to object to the error
at the time it was made.”
2 If the appellate court determines that the error was evident, obvious, clear and
materially prejudiced a substantial right (meaning that it was likely that the mistake affected the outcome of
the case below in a significant way), the court may correct the error. Usually, the court will not correct plain
error unless it led to a miscarriage of justice.
The selection of the appropriate standard of review depends on the context. For example, the de novo
standard applies when issues of law tend to dominate in the lower court’s decision. When a mixed question
of law and fact is presented, the standard of review turns on whether factual matters or legal matters tend to
dominate or control the court’s decision. The controlling standard of review may determine the outcome of
the case. Sometimes the appellate court can substitute its judgment for that of the trial court and overturn a
holding it does not agree with, but other times, it must uphold the lower court’s decision even if it would
have decided differently.
Appellate Decisions
In most appeals filed in the intermediate courts of appeal, the appellate panel will rule but not write a
supporting document called a written opinion stating why it ruled as it did. Instead, the appellate panel will
affirm the lower court’s decision without an opinion (colloquially referred to as an AWOP). Sometimes,
however, appellate court judges will support their decisions with a written opinion stating why the panel
decided as it did and its reasons for affirming (upholding) or reversing (overturning) the lower court’s
decision. The position and decision by the majority of the panel (or the entire court when it is a supreme
court case), is, not surprisingly, called the majority opinion. Appellate court judges frequently disagree with
2. (http://www.law.cornell.edu/wex/plain_error.)
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | one another, and a judge may want to issue a written opinion stating why he or she has a different opinion
than the one expressed in the majority opinion. If a particular judge agrees with the result reached in the
majority opinion but not the reasoning, he or she may write a separate concurring opinion. If a judge
disagrees with the result and votes against the majority’s decision, he or she will write a dissenting opinion.
Sometimes opinions are unsigned, and these are referred to as per curium opinions. Finally, if not enough
justices agree on the result for the same reason, a plurality opinion will be written. A plurality opinion
controls only the case currently being decided by the court and does not establish a precedent which judges
in later similar cases must follow.
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 7.7. Federal Appellate Review of State Cases
LORE RUTZ-BURRI
Through petitions for writ of certiorari, the U.S. Supreme Court will be in a position to review cases coming
to it from the state courts. Because the review is discretionary, the Court will generally accept review only
when these cases appear to involve a significant question involving the federal constitution. As a case works
its way through the state appeals process, the state courts may have made rulings about both the federal
constitution and its own state constitution. Depending on the case and how the state opinions were written,
the U.S. Supreme Court may find it difficult to determine whether the state interpreted its own constitution,
in which case the Court will not accept review, or whether it interpreted the federal constitution, in which
case the Court may accept review. The U.S. Supreme Court in Michigan v. Long, 463 U.S. 1032, at 1040-1041
(1983), explained when the Court will “weigh in” on a state court matter.
1 It held,
“When . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven
with the federal law, and when the adequacy and independence of any possible state law ground is not
clear from the face of the opinion, we will accept as the most reasonable explanation that the state court
decided the case the way it did because it believed that federal law required it to do so. If a state court
chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions,
then it need only make clear by a plain statement in its judgment or opinion that the federal cases are
being used only for the purpose of guidance, and do not themselves compel the result that the court has
reached. In this way, both justice and judicial administration will be greatly improved. If the state court
decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and
independent grounds, we, of course, will not undertake to review the decision.
This approach obviates [does away with] in most instances the need to examine state law in order
to decide the nature of the state court decision, and will at the same time avoid the danger of our
rendering advisory opinions. It also avoids the unsatisfactory and intrusive practice of requiring state
courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will
provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal
interference, and yet will preserve the integrity of federal law. ‘It is fundamental that state courts be
left free and unfettered by us in interpreting their state constitutions. But it is equally important that
1. Michigan v. Long, 463 U.S. 1032, at 1040-1041 (1983)
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this
Court of the validity under the federal constitution of state action’ (Citations omitted).”
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 7.8. Courtroom Players: Judges and Court Staff
LORE RUTZ-BURRI
In their 1977 book, Felony Justice: An organizational analysis of criminal courts, James Eisenstein and Herbert
Jacob, coined the term “courtroom workgroup.”
1 They specifically referred to the cooperative working
relationship between prosecutors, defense attorneys, and judges in working together (as opposed to an
adversarial relationship that the public might expect) to efficiently resolve most of the cases in the criminal
courts. This chapter more generally uses the term to include all the individuals working in the criminal
courts—judges, attorneys, and the variety of court staff.
The accusatory phase (the pre-trial phase) and adjudicatory phase (the trial phase) of the criminal
justice process include individuals who regularly work together in the trial courts. The prosecutor files
the accusatory instrument called either an information or an indictment, and represents the state in
plea bargaining, on pretrial motions, during the trial, and in the sentencing phase. The defense attorney
represents the defendant after charges have been filed, through the pre-trial process, in a trial, and during
sentencing, and maybe on the appeal as well. Judges, aided by several court personnel, conduct the pretrial,
trial, and sentencing hearings. Prosecutors, defense counsel, and judges perform different roles, but all are
concerned with the judicial process and the interpretation of the law. These law professionals are graduates
of law schools and have passed the bar examination establishing their knowledge of the law and their ability
to do legal analysis. As persons admitted by the state or federal bar associations to the practice of law, they are
subject to the same legal codes of professional responsibility, disciplinary rules, and ethical rules and opinions
for lawyers. Although the American criminal justice system is said to represent the adversarial model, the
reality is that prosecutors, defense attorneys, judges and court staff work with cooperation and consensus
rather than conflict. This is understandable when considering the common goal of efficient and expedition
case processing and prescribed and agreed upon rules for achieving those goals.
Trial judges: Misperceptions and Realities
1. Eisentstein, J., & Jacob, H. (1977). Felony Justice: An organizational analysis of criminal courts. Boston, MA: Little Brown and Co.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Trial court judges are responsible for presiding over pre-trial, trial and sentencing hearings, as well
as probation and parole revocation hearings. They issue search and arrest warrants, set bail or authorize
release, sentence offenders, engage in pre-sentence conferences with attorneys, work with court clerks,
bailiffs, jail staff, etc. Trial judges have considerable, but not unlimited, discretion. In addition to the
ethical and disciplinary rules governing all attorneys in the state, trial judges are subject to judicial codes
of conduct. Judges are bound by the applicable rules of law when deciding cases and writing their
legal opinions. Some rules governing judges are flexible guidelines while other rules are very precise
requirements.
During the pretrial phase, judges make rulings on the parties’ motions, such as motions to exclude certain
physical or testimonial evidence, motions to compel discovery, and motions to change venue. Because
most cases are resolved prior to trial through plea-bargaining, one important judicial function is taking the
defendant’s guilty plea.
At trial, if the defendant elects to waive a jury, there is a bench trial, and the judge sits as the “trier
of fact.” Like jurors in a jury trial, the judge has considerable discretion when deciding what facts were
proven (or not) by the parties and what witnesses he or she finds credible. When the defendant elects for
a jury trial, the jury decides what the facts are. In either a bench or jury trial, the trial judge rules: on the
admissibility of evidence (whether a jury is entitled to hear certain testimony or look at physical evidence),
whether witnesses are competent, whether privileges exist, whether witnesses qualify as experts, whether
jurors will be excused from jury service, etc. At the end of the jury trial, the judge gives a set of jury
instructions to the jurors which informs them on the law that applies to the case they are deciding.
If the defendant is convicted, then the judge will impose the sentence. Except for death penalty
cases, jurors are generally not involved with sentencing the defendant. Judges have perhaps the broadest
discretion in their role imposing sentences. However, with more states enacting mandatory minimums and
sentence guidelines, judicial discretion has been severely curtailed.
“In the eyes of most Americans, the judge is the key player in the courtroom workgroup. The
symbolism and ceremony of a criminal trial reinforce this view. The judge is seated on a raised bench,
robed in black, and wields a gavel to maintain order in the courtroom. Moreover, the participants and
spectators—including the defense attorney and the prosecutor—are commanded to ‘all rise’ when the judge
enters or leaves the courtroom. It is no wonder, then that the judge is seen as the most influential person in
court.
This view of the judge, though accurate to some degree, is misleading for at least two reasons. First,
although the judge clearly plays an important role—in many cases, the lead role—in state and federal
criminal courts, other actors play significant supporting roles. This is particularly the case in the majority of
criminal cases that are settled by plea, not trial. In these cases, the key player may be the prosecutor rather
than the judge. A second reason why the traditional view of the judge is misleading is that it is based on an
inaccurate assessment of the role of the judge. Judging involves more than presiding at trials. In fact, most
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | of what judges do during a typical day or week is something other than presiding at trials—reading case
files, conducting hearings, accepting guilty pleas, pronouncing sentences, and managing court dockets.”
2
The role played by the judge, in other words, is both less influential and more varied than the traditional
view would have people believe.
Trial Judge Selection and Qualifications
The sole qualification to be a judge in most jurisdictions is graduating from a law school and
membership in the state’s bar association. Although the trend is for judges to be lawyers prior, a few
jurisdictions do not require justices of the peace or municipal judges to be attorneys.
States procedures in selecting judges vary tremendously. “Almost no two states are alike and many
states employ different methods of selection depending on the different levels of the judiciary creating
‘hybrid’ systems of selection”
3. Nevertheless, the primary differences surround whether judges are
elected or appointed, or selected based on merit. There are four primary methods used to select judges
in the United States: appointment, with or without confirmation by another agency; partisan political
election; non-partisan election; and a combination of nomination by a commission, appointment and
periodic reelection (the Missouri Plan).
There are variations within these four primary methods. As noted above, states may use different
methods to select judges based on the level in the judicial hierarchy. For example, municipal judges
may be appointed, while supreme court judges are elected. Each selection method has its critics
and advocates, and the relative merits of each are generally judged by the selection methods ability
to achieve judicial independence and accountability. Notwithstanding the critiques of each of the
methods, there has been little empirical evidence that the quality of judges, in terms of competency,
effectiveness, or honesty, varies depending on the methods used to select the judge.
4
56
The length of time a judge will “sit”, called a term in office or tenure, varies greatly, generally from
four to sixteen years. Frequently, the term for a trial judge is less than a term for an appellate judge. At
the appellate level, six years is the shortest term, and many states use terms of ten years or more for their
appellate judges. Only a few states have lifetime tenure for their judges.
In the federal system, the President appoints Article III judges (U.S. District Court, U.S. Circuit
Court, and U.S. Supreme Court judges) with the advice and consent of the Senate. In Article III, U.S.
Constitution states that federal judges are appointed to “hold their Offices during Good Behavior.” On
2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc.
3. Berkson, L.C. (2005). Judicial selection in the United States: A special report. In E.E. Slotnick (Ed.) Judicial Politics: Readings from
Judicature (3d ed., pp. 50). Washington, DC: CQ Press
4. Atkins B.M. & Glick, H.R. (1974). Formal judicial recruitment and state supreme court decisions. American Politics Quarterly, 2, 427-449
5. Dubois, P.L. (1986), Accountability, independence, and the selection of state judges: The role of popular judicial elections. Southwestern
Law Journal, 40, 31-52
6. Nagel, S. (1975). Improving the legal process. Lexington, MA: Lexington Books.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | February 25, 2019, the Court in Rizo v. Yovino, ___ U.S. ___ (2019) refused to address the merits of
the case (an important employment wage discrimination case) because the judge who wrote the Ninth
Circuit opinion died eleven days before its release. What will likely become an oft-quoted sentiment,
“Federal judges are appointed for life, not for eternity.”
The district courts appoint federal magistrate judges to either four or eight-year terms. Though it
would seem that politics has played an increasing role in the selection of judges in the federal system,
perceptions are influenced by what we currently hear and read. The reality is that complaints of political
overreaching in selecting federal judges have been with us since the federal courts were first staffed.
Link to Washington Post showing political judicial appointments since President
Reagan https://www.washingtonpost.com/graphics/2018/politics/trump-federal-
judges/?utm_term=.479982ef3fd6)
Link to Washington Post article showing political party breakdown in the confirmation of
Justice Gorsuch in 2017 and comparing the breakdown with other current U.S. Supreme Court
justices https://www.washingtonpost.com/graphics/politics/scotus-confirmation-votes/?tid=graphics-
story&utm_term=.35b33aa30d39
A 1952 article shows that the role of politics in judicial selection is not only a recent
concern https://library.cqpress.com/cqresearcher/document.php?id=cqresrre1952012300
Judicial Clerk, Law Clerk, and Judicial Assistants
Generally, judges have one or two main assistants. These individuals are known as “judicial clerk”, “clerk
of court”, “law clerk”, or “judicial assistant”. Of course, there may be several court clerks who interact each
day with all the judges in the courthouse, but generally, judges have only one or two judicial assistants
who work directly with them. The clerk of court works directly with the trial judge and is responsible for
court records and paperwork both before and after the trial. Usually, each judge has his or her own clerk.
The clerk prepares all case files that a judge will need for the day. During hearings and the trial, these clerks
record and mark physical evidence introduced in the trial, swear in the witnesses, or administer the oath
to the witness, take notes cataloging the recordings, etc. In some jurisdictions, the law clerks are lawyers
who have just completed law school and may have already passed the bar exam. In other jurisdictions, the
law clerks are not legally trained but may have specialized paralegal training or legal assistant training.
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Local and state trial court administrators oversee the administration of the courts. These administrators’
responsibility includes: hiring and training court personnel (clerks, judicial assistants, bailiffs), ensuring
that the court caseloads are efficiently processed, keeping records, sending case files to reviewing courts,
ensuring that local court rules are being implemented, and working with the local and state bar associations
to establish effective communications to promote the expedient resolutions of civil and criminal cases.
Indigency Verification Officers
The Indigency Verification Officer (IVO) is a court employee who investigates defendants’ financial
status and determines whether they meet the criteria for court-appointed counsel. More than 75% of
all individuals accused of a crime qualify as indigent. How poor a defendant must be to qualify for a
court-appointed attorney varies from place to place, and each IVO uses a screening device that takes
into consideration the cost of defense in the locality as well as defendant’s financial circumstances. One
difficulty in qualifying for a court-appointed attorney is having equity in a home that cannot be easily sold
quickly enough to provide resources for the defendant to hire an attorney. Another difficulty for indigency
verification officers is getting the information needed from defendants who may be suffering from mental
health issues.
Bailiffs
Bailiffs are the court staff responsible for courtroom security. Bailiffs are often local sheriff deputies or
other law enforcement officers (or sometimes former officers), but they can also be civilians hired by the
court. Sometimes, courts will use volunteer bailiffs. Bailiffs work under the supervision of the trial court
administrator. During court proceedings, bailiffs or clerks call the session to order, announce the entry
of the judge, make sure that public spectators remain orderly, keep out witnesses who might testify later
(if the judge orders them excluded upon request of either party), and attend to the jurors. As courtroom
security becomes a bigger concern, law enforcement officers are increasingly used as bailiffs, and they
are responsible for the safety of the court personnel, spectators, witnesses, and any of the parties. In some
communities, law enforcement bailiffs may transport in-custody defendants from the jail to the courthouse
and back. In most jurisdictions today, bailiffs screen people for weapons and require them to silence cell
phones before allowing them to enter the courtroom.
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The jury clerk: sends out jury summons to potential jurors, works with jurors requests for postponements
of jury service, coordinates with the scheduling clerk to make sure enough potential jurors show up at the
courthouse each day there is a trial, schedules enough grand jurors to fill all the necessary grand jury panels,
arranges payment to jurors for their jury service, and arranges lodging and meals for jurors in the rare event
of jury sequestration.
Court Clerks and Staff
Court structure varies from the courthouse to courthouse, but frequently court staff is divided into units.
For example, staff may be assigned to work in the criminal unit, the civil unit, the traffic unit, the small
claims unit, the juvenile unit, the family unit, or the probate unit. In smaller communities, there may be
just a few court clerks who “do it all”. With the trend towards specialized courts (drug courts, mental health
courts, domestic violence courts, and veteran courts), staff may specialize in and/or rotate in and out of the
various units. Court staff are expected to have a vast knowledge of myriad local court rules and protocols,
statutes, and administrative rules that govern filing processes, filing fees, filing timelines, accounting, record
maintenance, as well as a knowledge of general office practices such as ordering supplies, mastering office
machinery, and ensuring that safety protocol is established and followed. Recently, many courts have
transitioned to electronic filing of all documents, usually managed through a centralized state court system.
This transition presents challenges to court staff as they learn the new filing software, keep up with new
filings, and archive the past court documents.
Release Assistance Officers
Release assistance officers (RAO) are court employees who meet with defendants at the jail to gather
information to pass on to the judge who makes release decisions. Release assistance officers make their
recommendations based on the defendant’s likelihood of reappearance and other considerations specified
by statute or local rules. In determining whether the defendant is likely to reappear, the RAO considers:
the defendant’s ties to the community, the defendant’s prior record of failures to appear, the defendant’s
employment history, whether the defendant lives in the community, the nature and seriousness of the
charges, and any potential threat the defendant may present to the community.
The availability of space at the jail may also play a role in whether an individual is released. Court and jail
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | staff may need to work together to establish release protocols when space is limited. The RAO should have
a significant voice in drafting those protocols. Whether the RAO recommends security (bail) or conditional
release, the RAO will generally suggest to the judge the conditions that the defendant should abide by if he
or she makes bail or is conditionally released. Defendants released prior to trial will sign release agreements
indicating the conditions of release recommended by the RAO and imposed by the judge. RAOs may also
investigate the defendant’s proposed living conditions upon release to make sure that they promote lawful
activity and the ability for reappearance for all scheduled court appearances.
Scheduling Clerk
The scheduling clerk, or docketing clerk, set all hearings and trials on the court docket. The scheduling
clerk notes the anticipated duration of trials (most trials are concluded within one day), speedy trial
constraints, statutory and local court rules time frames, etc. The role of the scheduling clerk is extremely
important, and an experienced scheduling clerk contributes to the overall efficiency of the legal process.
Ineffective or inefficient scheduling causes delay, frustration, and may impede the justice process. Part of
scheduling, or docketing, is keeping track of law enforcement officers’ and defense attorneys’ scheduled
vacations. In addition, the scheduling clerk must be mindful of the judges’ calendars which should track
scheduled vacation time and training days, and also needed desk time, the time necessary for resolving
cases they have taken under advisement. (Note that trial judges can either decide “from the bench”,
meaning they will rule immediately on the issues before them during the hearing, or after taking the case
under advisement, meaning they will rule through a written decision/opinion letter after spending time
researching the law, reviewing the parties written pleadings, and considering the oral arguments).
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LORE RUTZ-BURRI
Prosecutors play a pivotal role in the criminal justice and work closely with: law enforcement officials,
judges, defense attorneys, probation and parole officers, victims services, human services, and to a lesser
extent, with jail and other corrections officers. The authority to prosecute is divided among various city, state
and federal officials. City and state officials are responsible for prosecutions under local and state laws, and
federal officials for prosecutions under federal law. Associate Justice Robert Jackson, while he was the U.S.
Attorney General addressed the Conference of United States Attorneys (federal prosecutors) in Washington,
D.C. on April 1, 1940 and stated,
“The qualities of a good prosecutor are . . . [elusive and . . . impossible to define]. …
The prosecutor has more control over life, liberty, and reputation than any other person in America.
His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can
have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor
may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor
can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided
presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the
case before trial, in which case the defense never has a chance to be heard. Or he may go on with a
public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence,
as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as
to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent
forces in our society, when he acts from malice or other base motives, he is one of the worst. …
Nothing better can come out of this meeting of law enforcement officers than a rededication to the
spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such
independence and importance that while you are being diligent, strict, and vigorous in law enforcement
you can also afford to be just. Although the government technically loses its case, it has really won if
justice has been done. . . .
There is a most important reason why the prosecutor should have, as nearly as possible, a detached
and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind.
One of the greatest difficulties of the position of prosecutor is that he must pick his cases because no
prosecutor can even investigate all of the cases in which he receives complaints. If the department of
justice were to make even a pretense of reaching every probable violation of federal law, ten times its
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laws, or it would arrest half the driving population on any given morning. What every prosecutor is
practically required to do is to select the cases for prosecution and to select those in which the offense is
the most flagrant, the public harm the greatest, and the proof the most certain.
… A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of
power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks
truth and not victims, who serves the law and not factional purposes, and who approaches his task with
humility”
1
State Prosecuting Attorneys
Prosecutors represent the citizens of the state, not necessarily a particular victim of a crime. States vary
in how they organize the groups of attorneys hired to represent the state’s interest. Ordinarily, the official
with the primary responsibility for prosecuting state violations is the local prosecutor who is referred to
as the “district attorney”, “county attorney”, or “state’s attorney”. Local prosecutors are usually elected
from a single county or a group of counties combined into a prosecutorial district. In many states, the
state attorney general’s office has the authority that trumps over the local prosecutors’ authority, but in
practice, the state attorney general rarely intervenes in local matters. The state attorney general’s office
will intervene, for example, if there is a conflict of interest or when requested by the district attorney. It is
not uncommon for a small local prosecutor’s office faced with the prosecution of a major, complex, time-
consuming trial, to request the aid of the attorney general’s office. In these smaller offices, there may be
insufficient resources to handle complicated prosecutions and still keep up with the day-to-day filings and
cases.
The prosecuting attorney and the attorney general ordinarily are the only officials with authority to
prosecute violations of state law. City attorneys may be hired to prosecute city ordinances, but these
attorneys primarily specialize in civil matters. When city attorneys and prosecuting attorneys have different
policies for treating minor offenses, the result may be disparate, or different, treatment of similarly situated
offenders. This raises a concern of inconsistent application of the law. Additionally, different county
prosecutors may follow different policies on which matters they will charge, the use of diversion programs,
the use of plea bargaining, and the use of certain trial tactics. To limit some of these differences, some states
have used statewide training, and district attorneys’ conferences. Still, the policies and practices are far from
uniform.
Generally, assistant prosecutors, called deputy district attorneys, are hired as “at will” employees by the
elected district attorney. Historically, the political party of the applicant was a key criterion, and newly
elected prosecutors would make a virtual clean sweep of the office and hire outsiders from the former office.
Now, most offices hire on a non-partisan, merit-oriented, basis.
Most states require that the prosecutor be a member of the state bar. Some states also require that he or
1. Associate Justice Robert Jackson while he was the U.S. Attorney General addressed the Conference of United States Attorneys (federal
prosecutors) in Washington, D.C. on April 1, 1940
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fresh out of law school. They may have limited knowledge of state criminal law, as law school is designed
to teach lawyers to enter any new field and educate themselves.
Link to the Oregon District Attorneys Association Website https://www.oregonda.org/
Federal Prosecuting Attorneys
Prosecutors in the federal system are part of the U.S. Department of Justice and work under the Attorney
General of the United States. The Attorney General does not supervise individual prosecutors and relies
on the 94 United States Attorneys, one for each federal district. U.S. Attorneys are given considerable
discretion, but they must operate within general guidelines prescribed by the Attorney General. The U.S.
Attorneys have a cadre of Assistant U.S. Attorneys who do the day-to-day prosecution of federal crimes.
For certain types of cases, approval is needed from the Attorney General or the Deputy Attorney General
in charge of the Criminal Division of the Department of Justice. The Criminal Division of the Department
of Justice (DOJ) operates as the arm of the Attorney General in coordinating the enforcement of federal
laws by the U.S. Attorneys.
Link to cite to find the U.S. Attorney https://www.justice.gov/usao/find-your-united-states-attorney
Selection and Qualifications of Prosecutors
Most local prosecuting attorneys are elected in a partisan election in the district they serve. State attorney
generals may also have significant prosecutorial authority. They are elected in forty-two states, appointed
by the governor in six states, appointed by the legislature in one state, and appointed by the state supreme
court in another. State attorney generals serve between two to six-year terms, which can be repeated.
Federally, senators from each state recommend potential U.S. Attorney nominees who are then appointed
by the President with the consent of the Senate. U.S. Attorneys tend to be of the same political party as the
President and are usually replaced when a new President from another party takes office.
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Prosecutors arguably have more discretion than any other official in the criminal justice system. They
decide whether to charge an individual or not. Much has been written about the prosecutor’s broad
discretion and the constraints on his or her discretion. If they choose not to prosecute, this is referred to
as nolle prosequi, and this decision is largely unreviewable. Spohn and Hemmens (2012, p. 123) concluded
in their review of the studies on prosecutor’s charging decisions that “these highly discretionary and largely
invisible decisions reflect a mix of (1) legally relevant measures of case seriousness and evidence strength and
(2) legally irrelevant characteristics of the victim and the suspect”
2.
Prosecutors guide the criminal investigation and work with law enforcement to procure search and arrest
warrants. Following arrest, prosecutors continue to be involved with various aspects of the investigation.
Roles include: meet with the arresting officers, interview witnesses, visit the crime scene, review the physical
evidence, determine the offenders prior criminal history, make bail and release recommendations, appear on
pretrial motions, initiate plea negotiations, initiate diversions (pre-trial contracts between the government
and the defendant which divert cases out of the system), work with law enforcement officers from other
states who seek to extradite offenders, prepare the accusation to present to grand jury, call witnesses and
present a prima facia case (present enough evidence which, when unrebutted by the defendant, shows that
the defendant committed the crime) at a preliminary hearing, represent that state at arraignments and status
conferences, conduct the trial, and, upon conviction, make sentencing recommendations while representing
the state at the sentencing hearing.
In many communities, the prosecutor is the spokesperson for the criminal justice system and appears
before the legislature to recommend or oppose penal reform. Prosecutors make public speeches on crime and
law enforcement, take positions on requests for clemency for cases they have prosecuted, work extensively
with victims’ services offices, which may be an arm of the prosecutor’s office. In some communities, the
prosecutor is also responsible for representing the local government in civil matters and may represent the
state in civil commitment proceedings and answer accident claims, contract claims, and labor relation matters
for the county. However, only a few counties have prosecutors still perform this function. U.S. Attorneys
still have substantial responsibilities for representation of the U.S. government in civil litigation, and there is
generally a civil division, a criminal division, and an appellate division of the U.S Attorneys office.
The American Bar Association (ABA) standards indicate that “the prosecutor’s [ethical] duty is to seek
justice”. This means that the state should not go forward with prosecution if there is insufficient evidence of
the defendant’s guilt or if the state has “unclean hands”, for example, illegally conducted searches or seizures
or illegally obtained confessions. Ethical and disciplinary rules of the state bar associations govern prosecutors
who must also follow state and constitutional directives when they prosecute crimes.
Link to the ABA Standards on the Prosecution Function https://www.americanbar.org/groups/
criminal_justice/standards/ProsecutionFunctionFourthEdition-TableofContents/
2. Spohn, C. & Hemmens, C. (2012) Courts: A Text/Reader (2nd ed.). Los Angeles, CA: SAGE Publications, Inc.
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LORE RUTZ-BURRI
The Sixth Amendment to the U.S. Constitution provides, “The accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” Most state constitutions have similar provisions. Historically, the right
to counsel meant that the defendant, if he or she could afford to hire an attorney, could have an attorney’s
assistance during his or her criminal trial. This right has developed over time and now includes the right
to have an attorney’s assistance at all critical stages in the process, or at all criminal proceedings that may
substantially affect the right of the accused. Importantly, the right to assistance of a defense counsel has been
held to require that the state pay the costs of the defense counsel when a person is indigent or has insufficient
financial resources to pay.
Privately Retained Defense Attorneys
Individuals accused of any infraction or crime, no matter how minor, have the right to hire counsel and
have them appear with them at trial. The attorney must be recognized as qualified to practice law within
the state or jurisdiction, and generally, criminal defendants do well to hire an attorney who specializes in
criminal defense work. However, because many criminal defendants don’t have enough money to hire an
attorney to represent them, the court will need to appoint an attorney to represent them in criminal cases.
Appointed Counsel
Federal and state constitutions do not mention what to do when the defendant wants, but cannot afford
an attorney’s representation. Initially, the Court interpreted the Sixth Amendment as permitting defendants
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Clause of the Fifth and Fourteenth Amendment includes the right to a fair trial, and a fair trial includes
the right to the assistance of counsel. In Powell v. Alabama, 287 U.S. 45, at 58 (1932), the Court concluded
that the focus on trial was too narrow. It stated, “[T]he most critical period of the proceeding[s] against the
defendants might be that period from the time of their arraignment until the beginning of their trial, when
consultation, thoroughgoing investigation, and preparation are vitally important. Defendants are as much
entitled to . . . [counsel’s] aid during that period as at the trial itself.”
1
Powell also dealt with the need for states to provide representation to defendants who could not afford to
hire counsel in those cases where fundamental fairness required it. In a statement that led to the dramatic
extensions to the right to counsel, the Court continued,
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right
to be heard by counsel. Even the intelligent and educated layman has a small and sometimes no skill
in the science of law. If charged with a crime, he is incapable, generally, of determining for himself
whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without
the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent
evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defense, even though he may have a perfect one. He requires the
guiding hand of counsel at every step in the proceedings against him. Without it, though he is not
guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
2
287 U.S. 45, at 68-69 (1932)
Powell was decided in 1932, and because of television and the multitude of crime drama programs,
people probably know more about the criminal justice process than ever imagined by the Powell court.
Nevertheless, the Court’s admonitions still ring true. Not too many non-lawyers know how to conduct
themselves at trial, challenge the state’s evidence, make evidentiary objections, or file proper pretrial
motions with the rudimentary knowledge gained from watching television. One could consult with the
many great Internet sources that are easily accessible, however, many individuals charged with crimes have
limited education and lack the sophistication to distinguish between those sources that are applicable to
their case and which are not.
Between Powell (1932) and the case of Gideon v. Wainwright, 372 U.S. 335 (1963), the Court decided
when the appointment of counsel was necessary for a fair trial in state prosecutions on a case-by-case basis.
In Gideon, however, the Court held that this case-by case-approach was inappropriate. It held that the
state had to provide poor defendants access to counsel in every state felony prosecution. Lawyers in serious
criminal cases, it said, were “necessities, not luxuries”. Since Gideon, the Court has extended the obligation
to provide counsel to state misdemeanors prosecutions that result in the defendant receiving a jail term.
The Court found that the legal problems presented in a misdemeanor case often are just as complex as those
1. Powell v. Alabama, 287 U.S. 45, at 58 (1932)
2. Powell v. Alabama,
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3 In two cases, Argersinger v. Hamlin, 407 U.S. 25 (1972) and Scott v. Illinois, 440 U.S. 367 (1979),
the Court tied the right to counsel in misdemeanor cases to the defendant’s actual incarceration. Because
it is difficult to predict when a judge will want to incarcerate a person convicted of a misdemeanor, this
approach is difficult to implement.
4
5Many states instead appoint counsel to an indigent defendant charged
with a crime where a possible term of incarceration could be imposed.
The Court left it for the lower courts to decide when a person is indigent. Lower courts have generally
held that the financial resources of a family member cannot be considered. Also, courts cannot merely
conclude that because a college student is capable of financing his or her education that he or she is capable
of hiring an attorney. A person does not have to become destitute in order to be classified as indigent. An
indigent defendant may have to pay back the court-appointed attorney’s fees if they are convicted or enter
a plea. In practice, most courts collect appointed attorneys’ fees at a standard rate and much reduced from
the actual costs of representation as part of the fines that a convicted defendant must pay. When acquitted,
defendants are not required to pay the state back for the attorney fees.
Public Defenders, Assigned Attorneys, and Defense Attorney Associations
Most states now have public defenders’ offices. Because public defenders and assistant public defenders
handle only criminal cases, they become the specialists and have considerable expertise in representing
criminal defendants. Public defender offices frequently have investigators on staff to help the attorneys
represent their clients. In some states, courts appoint or assign attorneys from the private bar (not from the
public defender’s office) to represent indigent defendants. The mixed system uses both assigned counsel,
or associations of private attorneys who contract to do indigent criminal defense, and public defenders.
For example, the public defender’s office may contract with the state to provide 80% of all indigent
representations in a particular county. The remaining 20% of cases would be assigned to the association of
individual attorneys who do criminal defense work- some retained clients, some indigent clients-or private
attorneys willing to take indigent defense cases.
In practice, there is no purely public defender system because of “conflict cases.” Conflicts exist when one
law firm tries to represent more than one party in a case. Assume, for example, that Defendant A conspired
with Defendant B to rob a bank. One law firm could not represent both Defendant A and Defendant
B. Public defender offices are generally considered one law firm, so attorneys from that office could not
represent both A and B, and the court will have to assign a “conflict” attorney to one of the defendants.
3. Gideon v. Wainwright, 372 U.S. 335 (1963)
4. Argersinger v. Hamlin, 407 U.S. 25 (1972)
5. Scott v. Illinois, 440 U.S. 367 (1979)
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Controversial Issue: Link to the 2017 report from the Oregon Public Defense Services about indigent
representation in Oregon
https://www.oregon.gov/opds/commission/reports/EDAnnualReport2017.pdf
Link to the National Legal Aid and Defenders Association
http://www.nlada.org/
Link to the Oregon Criminal Defense Lawyers Association
https://www.ocdla.org/
The Right to Counsel in Federal Trials
The Court in Johnson v. Zerbst, 304 U.S. 458 (1938), held that in all federal felony, trials counsel must
represent a defendant unless the defendant waives that right. The Court further held that the lack of counsel
is a jurisdictional error which would render, or make, the defendant’s conviction void. A court that allows
a defendant to be convicted without an attorney’s representation has no power or authority to deprive an
accused of life or liberty.
6
Zerbst also established rules for a proper waiver of the Sixth Amendment right to counsel. The court said
that it is presumed that the defendant has not waived her right to counsel. For a waiver to be constitutional,
the court must find that the defendant knew he or she had a right to counsel and voluntarily gave up that
right, knowing that he or she had the right to claim it. Therefore, if the defendant silently goes along with
the court process without complaining about the lack of counsel, his or her silence does not amount to a
waiver. The Court defined waiver as an “intelligent relinquishment or abandonment of a known right or
privilege”.
In 1945 Congress passed the Federal Rules of Criminal Procedure (FRCP). Rule 44 of the FRCP requires
defendants to have counsel, or affirmatively waive counsel, either retained or appointed, at every stage of
the proceedings from the initial appearance through appeal. This rule was difficult to implement because
there was no recognized federal defense bar, or federal defense attorneys, available or willing to take on
appointed cases. So, in 1964, Congress passed the Criminal Justice Act of 1964 that established a national
system for providing counsel to indigent defendants in federal courts.
6. Johnson v. Zerbst, 304 U.S. 458 (1938)
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Critical Stages of the Criminal Justice Process
In White v. Maryland, 373 U.S 59 (1963), the Court found that defendants are entitled to the right to
counsel at any critical stage of the proceeding, defined as a stage in which he or she is compelled to make
a decision which may later formally be used against him or her. The Court has found the following court
procedures to be critical stages:
•
The initial appearance in which the defendant enters a non-binding plea–White v. Maryland,
373 U.S.59 (1963).
•
A preliminary hearing–Coleman v. Alabama, 399 U.S. 1 (1970).
•
A lineup that includes a previously indicted defendant–Wade v. United States, 388 U.S. 218
(1967) and Gilbert v. California, 388 U.S. 263 (1967).
During Other Proceedings
The Court has extended the right to counsel to psychiatric examinations, juvenile delinquency
proceedings
7, civil commitments proceedings
8and probation and parole hearings (see, below). Further,
the court in Estelle v. Smith, 451 U.S. 454 (1981), held that a defendant charged with a capital crime
and ordered by the court to be examined by a psychiatrist, to evaluate possible future dangerousness,
was entitled to consult with counsel. Similarly, in Satterwhite v. Texas, 486 U.S. 249 (1988), the Court
found prejudicial error occurs when defense counsel was not appointed to represent a defendant subjected
to a psychiatric evaluation. The Court further held that counsel must be made aware of the projected
psychiatric evaluation before it occurs.
During Probation and Parole Revocation Hearings
In Mempa v. Rhay, 389 U.S. 128 (1967), 17-year-old Mempa was placed on probation for two years
after he pleads guilty to “joyriding”. About four months later, the prosecutor moved to have petitioner’s
probation revoked alleging that Mempa had committed a burglary while on probation. Mempa, who was
not represented by counsel at the probation revocation hearing. admitted being involved in the burglary.
The court revoked his probation based on his admission to the burglary. The U.S. Supreme Court held that
Mempa should have had counsel to assist him in his hearing.
Five years later, in Gagnon v. Scarpelli, 411 U.S. 778 (1973), the state sought to revoke defendant’s
probation. Originally, Gagnon was sentenced to fifteen years of imprisonment for armed robbery, but the
judge had suspended the imposition of sentence and placed him instead on seven years of probation. The
Court found that the probation revocation hearing did not meet the standards of due process. Because a
probation revocation involves a loss of liberty, the probationer was entitled to due process. The Court did
7. In re Gault, 387 U.S. 1 (1967)
8. Stefan, S. (1985). Right to Counsel in Civil Commitment Proceedings. Mental & Physical Disability L. Rep., 9, 230.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | not adopt a per se rule that all probationers must have the assistance of counsel in every revocation hearings,
but rather stated:
“We find no justification for a new, inflexible constitutional rule with respect to the requirement of
counsel. We think rather, that the decision as to the need for counsel must be made on a case-by-case
basis in the exercise of sound discretion by the state authority charged with responsibility for administering
the probation and parole system. . . . Presumptively, it may be said that counsel should be provided in
cases where, after being informed of his right to request counsel, the probationer or parolee makes such a
request based on a timely and colorable claim. . . . In passing on a request for the appointment of counsel,
the responsible agency should also consider, especially in doubtful cases, whether probationer appears to be
capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or
final hearing is refused, the grounds for refusal shall be stated succinctly in the record.”
9
At Some Post-Trial Proceedings
The Sixth Amendment’s right to the assistance of counsel does not stop when the jury finds the defendant
guilty. When an out-of-custody defendant is found guilty at the end of a trial, the judge may remand
the defendant to custody- has the bailiff take the defendant into custody and transport them to the jail-
and revokes conditions of bail if there had been any. Counsel must assist the defendant through the end of
the sentencing hearing, and the defendant’s attorney has the legal obligation to make post-trial motions to
preserve the defendant’s rights.
The Court has distinguished between the defendant’s right to the assistance of counsel on mandatory
appeals and discretionary appeals. In Douglas v. California, 372 U.S. 353 (1963), the Court found that
indigent counsel should be provided to individuals when an appellate court must review their appeal or an
appeal of right. Once the first appeal has been dismissed or resolved, however, Ross v. Moffitt, 417 U.S. 600
(1974), holds that indigent defendants do not have a right to appointed counsel for discretionary review
in either the state supreme court or with the U.S. Supreme Court. The Ross majority reasoned that the
defendant did not need an attorney to have “meaningful access” to the higher appellate courts because all
the legal issues would have already been fully briefed in the intermediate appellate court. Additionally, the
Court noted that the concept of equal protection does not require absolute equality. The majority opinion
states,
“We do not believe that the Due Process Clause requires North Carolina to provide the respondent
with counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal
proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States
by virtue of the Sixth and Fourteenth Amendments. But there are significant differences between
the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State’s
point of view is to convert a criminal defendant from a person presumed innocent to one found guilty
beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney
who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings
9. Gagnon v. Scarpelli, 411 U.S. 788, 790 (1973).
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | of the court, and makes direct arguments to the court and jury seeking to persuade them of the
defendant’s guilt. Under these circumstances “reason and reflection require us to recognize that in our
adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer,
cannot be assured a fair trial unless counsel is provided for him” (Citations omitted).
By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process,
seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt
made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect
him against being “haled into court” by the State and stripped of his presumption of innocence, but
rather as a word to upset the prior determination of guilt. This difference is significant for, while no
one would agree that the State may simply dispense with the trial stage of proceedings without a
criminal defendant’s consent, it is clear that the State need not provide any appeal at all. The fact that
an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to
provide counsel to indigent defendants at every stage of the way. . . . (Citations omitted.)
The facts show that respondent … received the benefit of counsel in examining the record of his trial
and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking
discretionary review in the State Supreme Court, his claims had “once been presented by a lawyer and
passed upon by an appellate court.” We do not believe that it can be said, therefore, that a defendant
in respondent’s circumstances is denied meaningful access to the North Carolina Supreme Court simply
because the State does not appoint counsel to aid him in seeking review in that court. At that stage, he will
have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of
Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing
of his case. These materials . . . would appear to provide the Supreme Court of North Carolina with an
adequate basis for its decision to grant or deny review” (Citations omitted).
This is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of
preparing petitions for discretionary review, would not prove helpful to any litigant able to employ him.
An indigent defendant seeking review in the Supreme Court of North Carolina is therefore somewhat
handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable
manner at every stage in the proceeding. But both the opportunity to have counsel prepare an initial brief
in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina
make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on
his initial appeal as of right in Douglas. And the fact that a particular service might be of benefit to an
indigent defendant does not mean that the service is constitutionally required. (Emphasis added). The duty
of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal
defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an
adequate opportunity to present his claims fairly in the context of the State’s appellate process. We think
the respondent was given that opportunity under the existing North Carolina system.”
10
10. Ross v. Moffitt, 417 U.S. 600, 610-611, 614, 616 (1974).
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Similarly, prisoners have a limited right to legal assistance for the purpose of filing writs of habeas corpus.
In Bounds v. Smith, 430 U.S. 817 (1977), the Court held that “the fundamental constitutional right of access
to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in
the law”. Prisons can meet this obligation by training prisoners to be paralegal assistants to work under
a lawyer’s supervision or by using law students, paralegals, and volunteer lawyers. Again, it may seem
inconsistent that the court requires more for habeas corpus relief than it does for discretionary review on
appeals. The difference lies in the nature of habeas corpus as a collateral attack, or side attack, where the
claim is often being advanced for the first time and therefore the need for legal assistance may be greater.
Functions of Defense Attorneys
Defense lawyers investigate the circumstances of the case, keep clients informed of any developments in
the case, and take action to preserve the legal rights of the accused. Some decisions, such as which witnesses
to call, when to object to evidence, and what questions to ask on cross-examination, are considered to be
strategic ones and may be decided by the attorney. Other decisions must be made by the defendant, most
notably, after getting advice from the attorney about the options and their likely consequences. Defendants’
decisions include whether to plead guilty and forego a trial, whether to waive a jury trial, and whether to
testify in their own behalf.
The ABA Standards relating to the Defense Function established basic guidelines for defense counsel in
fulfilling obligations to the client. The primary duty is to zealously represent the defendant within the
bounds of the law. Defense counsel is to avoid unnecessary delay, to refrain from misrepresentations of law
and fact, and to avoid personal publicity connected with the case. Fees are set on the basis of the time and
effort required by counsel, the responsibility assumed, the novelty and difficulty of the question involved, the
gravity of the charge, and the experience, reputation, and ability of the lawyer.
ABA Standard 4- 1.2, The Function of Defense Counsel, states:
(a) Counsel for the accused is an essential component of the administration of criminal justice. A court
properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge
(and jury, where appropriate), counsel for the prosecution, and counsel for the accused.
(b) The basic duty defense counsel owes to the administration of justice and as an officer of the court is
to serve as the accused’s counselor and advocate with courage and devotion and to render effective, quality
representation.
(c) Since the death penalty differs from other criminal penalties in its finality, defense counsel in a capital
case should respond to this difference by making extraordinary efforts on behalf of the accused. Defense
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Death Penalty Cases.
(d) Defense counsel should seek to reform and improve the administration of criminal justice. When
inadequacies or injustices in the substantive or procedural law come to defense counsel’s attention, he or
she should stimulate efforts for remedial action.
(e) Defense counsel, in common with all members of the bar, is subject to standards of conduct stated in
statutes, rules, decisions of courts, and codes, canons, or other standards of professional conduct. Defense
counsel has no duty to execute any directive of the accused which does not comport with the law or such
standards. Defense counsel is the professional representative of the accused, not the accused’s alter ego.
(f) Defense counsel should not intentionally misrepresent matters of fact or law to the court.
(g) Defense counsel should disclose to the tribunal legal authority in the controlling jurisdiction known
to defense counsel to be directly adverse to the position of the accused and not disclosed by the prosecutor.
(h) It is the duty of defense counsel to know and be guided by the standards of professional conduct
as defined in codes and canons of the legal profession applicable in defense counsel’s jurisdiction. Once
representation has been undertaken, the functions and duties of defense counsel are the same whether
defense counsel is assigned, privately retained, or serving in legal aid or defender program.
11
Tricky Issues in Representation
Defendants sometimes want to have a friend or family member speak up for them, but, the Court will not
permit that. The right to counsel means the right to be represented by an attorney, someone legally trained
and recognized as a member of the bar association. Similarly, defendants may not necessarily get the attorney
of their choice. For example, in Wheat v. United States, 486 U.S. 153 (1988), one defendant who wanted
to be represented by the same attorney who was representing his accomplice/co-conspirator in a complex
drug distribution conspiracy was not allowed to have that attorney. The Court disallowed his application for
the appointment of counsel noting that irreconcilable and unwaivable conflicts of interest would be created
since there was the likelihood that the petitioning defendant would be called to testify at a subsequent trial
of his co-defendant and that his co-defendant would be testifying in petitioner’s trial. On the other hand, in
United States. v. Gonzalez-Lopez, 553 U.S. 285 (2008), the Court reversed the defendant’s conviction because
the trial court erroneously deprived the defendant of his choice of counsel. The defendant, Gonzales-Lopez,
had hired counsel from a different state, and during pretrial proceedings, the judge and the counsel had some
disagreements. The judge then prohibited the attorney from taking part in the defendant’s trial. The Court
found that a trial judge violated the defendant’s Sixth Amendment rights.
Defendants cannot repeatedly “fire” their appointed counsel as a stall tactic, and, at some point, the court
will not allow the defendant to substitute attorneys and will require the defendant work with whatever
11. ABA Standard 4- 1.2 The Function of Defense Counsel (2015). Criminal Justice: Prosecution and Defense Function. American Bar
Association.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | attorney is currently assigned. A defendant may not force an unwilling attorney to represent him or her,
but a court does have the discretion to deny an attorney’s motion to withdraw from representation after
inquiring about counsel’s reasons for wishing to withdraw. This may present an ethical dilemma for the
attorney because professional rules of responsibility require that even when an attorney withdraws from a
case, he or she must still maintain attorney-client confidences. If, for example, the attorney knows that the
defendant insists on taking the stand and presenting perjured testimony, the attorney must withdraw. But, at
the same time, the attorney cannot discuss with the court why he or she needs to withdraw. At some point
in the inquiry, after the judge has asked and the attorney has talked around the subject, the judge hopefully
catches on, and the judges will allow the attorney to withdraw.
Effective Assistance of Counsel
Defendant’s attorneys must provide competent assistance and should not harm the defendant’s case by
their legal representation. According to McMann v. Richardson, 397 U.S. 759 (1970), the right to counsel
means the right to effective assistance of counsel. The constitutional standard for evaluating effective
assistance was determined in Strickland v. Washington, 466 U.S. 688 (1984). The Strickland decision looked at
two aspects of the representation to determine whether counsel was ineffective. First, the defense attorney’s
actions were not those of a reasonably competent attorney exercising reasonable professional judgment;
and second, the defense attorney’s actions caused the defendant prejudice, meaning that they adversely
affected the outcome of the case (i.e., they likely caused the jury to find the defendant guilty).
Courts may be more inclined to find ineffective assistance of counsel in a death penalty case than other
run-of-the-mill cases. For example, the Court found the defense attorneys provided ineffective assistance
in the sentencing portion of defendant’s death penalty trial for the murder of a 77-year-old woman because
they had failed to conduct an adequate “social history” investigation of the defendant’s life and had not
presented information to the jury they did have which showed that defendant had been subject to regular
sexual abuse as a child. Wiggins v. Smith, 539 U.S. 510 (2003). The Court stated,
“In finding that Schlaich and Nethercott’s investigation did not meet Strickland’s performance
standards, we emphasize that Strickland does not require counsel to investigate every conceivable
line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at
sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing
in every case. Both conclusions would interfere with the “constitutionally protected independence
of counsel” at the heart of Strickland. We base our conclusion on the much more limited principle
that “strategic choices made after less than complete investigation are reasonable” only to the extent
that reasonable professional judgments support the limitations on investigation. . . . A decision not to
investigate thus must be directly assessed for reasonableness in all the circumstances.
Counsel’s investigation into Wiggins’ background did not reflect reasonable professional judgment.
Their decision to end their investigation when they did was neither consistent with the professional
standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the
social services records–evidence that would have led a reasonably competent attorney to investigate
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | further. Counsel’s pursuit of bifurcation until the eve of sentencing and their partial presentation of a
mitigation case suggest that their incomplete investigation was the result of inattention, not reasoned
strategic judgment. In deferring to defense counsel’s decision not to pursue a mitigation case despite their
unreasonable investigation, the Maryland Court of Appeals unreasonably applied Strickland.”
Waiving Counsel
Sometimes, a defendant wishes to waive counsel and appear pro se, or represent him or herself at trial. The
Court, in Faretta v. California, 422 U.S. 806 (1975), held that the Sixth Amendment includes the defendant’s
right to represent himself or herself. The Faretta Court found that, where a defendant is adamantly opposed
to representation, there is little value in forcing him or her to have a lawyer. The Court stressed that it
was important for the trial court to make certain and establish a record that the defendant knowingly and
intelligently gave up his or her rights.
“Although a defendant need not himself have the skill and experience of a lawyer in order competently
and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of
self-representation, so that the record will establish he knows what he is doing and his choice is made with
eyes open.”
12
In McKaskle v. Wiggins, 465 U.S. 168, at 174 (1984), the Court held that a “defendant does not have a
constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does
the Constitution require judges to take over chores for a pro se defendant that would normally be attended
to by trained counsel as a matter of course.” The constitutional right to self-representation does not mean
that the defendant is free to obstruct the trial, and a judge may terminate self-representation by a defendant
who is obstructing the process. Frequently, judges will assign a standby counsel to assist defendants. Stand-
by counsel is an attorney who can be available to answer questions of a pro se defendant, and if necessary,
standby counsel can step in if the defendant is engaging in misconduct.
Conclusion
Court jurisdiction determines where a case will be filed and which courthouse has the legal authority to
hear a case. Jurisdiction can be based on geography, subject matter, or seriousness of the offense. Jurisdiction
is also divided between trial courts (original jurisdiction) and appellate courts (appellate jurisdiction).
More than 51 court systems operate in the United States. We have a dual court system comprised of federal
trial and appellate courts and state trial and appellate courts. Federal and state courts have similar hierarchical
structures with cases flowing from lower trial courts through intermediate courts of appeals and up to the
supreme courts.
Defendants who wish to appeal their convictions are entitled to have their cases reviewed at least once,
a mandatory appeal of right in the intermediate courts of appeal. After that, the review is discretionary
and rare. Appellate courts generally affirm the decision of the trial courts, but may also reverse and remand
the case back to the trial court if they determine that prejudicial error occurred. At the intermediate
appellate court level, judges most frequently affirm the trial court’s decision without writing an opinion, but
sometimes the judges will write opinions informing the parties of their decision and the reasons for holding
12. Faretta v. California, 422 U.S. 806, 835 (1975).
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | as they did. Judges don’t always agree, and at times, judges will write dissenting opinions or concurring
opinions. Appellate court opinions become precedent that must be followed in the trial courts.
Judges, prosecutors, defense attorneys work together along with court clerks, bailiffs, and other court staff
to process tens of thousands of cases daily in trial courts across the nation. Judges, prosecutors, and defense
attorneys play an important role in the criminal justice process. Although few cases actually go to trial, and
the vast majority of criminal cases are resolved in the trial courts at the pre-trial stage, the defendants must
be represented by an attorney at critical stages in the process, and at the government’s expense if they cannot
afford to hire an attorney, unless they have voluntarily waived the right and wish to represent themselves.
Court jurisdiction determines where a case will be filed and which courthouse has the legal authority to
hear a case. Jurisdiction can be based on geography, subject matter, or seriousness of the offense. Jurisdiction
is also divided between trial courts (original jurisdiction) and appellate courts (appellate jurisdiction).
More than 51 court systems operate in the United States. We have a dual court system comprised of federal
trial and appellate courts and state trial and appellate courts. Federal and state courts have similar hierarchical
structures with cases flowing from lower trial courts through intermediate courts of appeals and up to the
supreme courts.
Defendants who wish to appeal their convictions are entitled to have their cases reviewed at least once,
a mandatory appeal of right in the intermediate courts of appeal. After that, the review is discretionary
and rare. Appellate courts generally affirm the decision of the trial courts, but may also reverse and remand
the case back to the trial court if they determine that prejudicial error occurred. At the intermediate
appellate court level, judges most frequently affirm the trial court’s decision without writing an opinion, but
sometimes the judges will write opinions informing the parties of their decision and the reasons for holding
as they did. Judges don’t always agree, and at times, judges will write dissenting opinions or concurring
opinions. Appellate court opinions become precedent that must be followed in the trial courts.
Judges, prosecutors, defense attorneys work together along with court clerks, bailiffs, and other court staff
to process tens of thousands of cases daily in trial courts across the nation. Judges, prosecutors, and defense
attorneys play an important role in the criminal justice process. Although few cases actually go to trial, and
the vast majority of criminal cases are resolved in the trial courts at the pre-trial stage, the defendants must
be represented by an attorney at critical stages in the process, and at the government’s expense if they cannot
afford to hire an attorney, unless they have voluntarily waived the right and wish to represent themselves.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 8: Corrections
Learning Objectives
Up to this point, we have spent much time on understanding crime, how it is policed, and how it is prosecuted in
the courts. This section will cover the last third of the justice system, corrections. This section will focus on a brief
history of corrections, to include the philosophical underpinnings of why and how we punish people. After reading
this section, students will be able to:
•
Understand where the basic concept of punishment comes from
•
Recognize the different ideologies of why and how people are punished
•
Understand how punishment has evolved in the world, and how that has shaped punishment in the
United States
Critical Thinking Questions
1.
Why are we more punitive at times than others? What changes our punitive values?
2.
What are some of the pros/cons of each of the four correctional ideologies?
3.
Does crime change depending on our collective correctional ideology, or practice?
4.
Does punishment change, based on our correctional ideology? How?
5.
What are some key explanations for the rise in the prison population in the U.S.?
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 8.1. A Brief History of The Philosophies of Punishment
DAVID CARTER
A Brief History of Punishment
Feeling safe and secure in person and home is arguably one of the most discussed feelings in our nation
today. The “fear of crime” influences how we think and act day to day. This has caused great fluctuation
in the United States in regards to how we punish people who are convicted of violating the law. In part,
punishment comes from the will of the people, which is then carried out through the legislative process, and
converted into sentencing practices. People have differing views on why people should be punished, and
how much punishment they should receive. These correctional ideologies, or philosophical underpinnings
of punishment, have been prevalent throughout history, and are not brand new in the United States. This
section details basic concepts of some of the more frequently held punishment ideologies, which include:
retribution, deterrence, incapacitation, and rehabilitation.
In the News: One of the more frequently used statistics in the news about crime is homicides in the
United States. Often, you will hear something about a homicide rate or the number of homicides in a
state, or a city for a particular year. An interesting clarifier about this number is that it typically does
not include a number of deaths in prison. Deaths in prison occur every year, yet these are not normally
counted in any statistic. In 2014, there were approximately 3,927 deaths that occurred in prisons in the
United States. There are a variety of reasons for these deaths, to include homicide. For more information
on this, look up – Mortality in Correctional Institutions (MCI). This is also formerly known as Deaths
in Custody Reporting Program (DCRP). The Bureau of Justice Statistics houses and publishes data on
this phenomenon. Additionally, this is a voluntary reporting structure, which may actually not capture all
deaths that occur in prison. https://www.bjs.gov/index.cfm?ty=dcdetail&iid=243
Philosophies of Punishment Example
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Two stories come on during the crime section of the 6 o’clock news. In the first story, a man is described as a
convicted sex offender. He is living at an address that you know is in your city. Citizens that live on the streets
nearby his address are shown picketing in front of his house, voicing their displeasure that he is allowed to live
there. The video shows how angry the neighborhood is, and you can visibly see their frustration and angst on the
people’s faces in the news clip.
The second story is of a woman who was detained (shown in the back of a squad car) for stealing food from a
local grocery store, apparently to feed her children. The store manager is then on the screen describing that he is
offering to donate the food to her so that she does not have to spend time in jail or get into any more trouble.
How do these two stories make you feel? Is it the same feeling for each story? Does one of these stories make
you feel more afraid of crime? More angry or upset? Which one? Who deserves to get punished more? How much
punishment should they get? The answers to questions like these instantly flood our thoughts as we are watching
news blurbs like this, and in general, when we hear about a crime. This is all normal. And, this process is what
generates our own personal punishment ideology.
Now, which one of these two individuals has actually committed a crime? A second point to this story is that our
perceptions of punishment can be influenced by the narrative (what is presented to us).
Although the change in our overall perception or use of the rehabilitation ideology is slow, it is necessary.
As we will see in the next sections, our reliance on the “Brick and Mortar” approach to punishment comes
at a great cost, and the results are less than desirable.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 8.2. Retribution
DAVID CARTER
Retribution
Retribution, arguably the oldest of the ideologies/philosophies of punishment, is the only backward-
looking philosophy of punishment. That is, the primary goal of retribution (in its original form) is to
ensure that punishments are proportionate to the seriousness of the crimes committed, regardless of the
individual differences between offenders, other than mens rea and an understanding of moral culpability.
Thus, retribution focuses on the past offense, rather than the offender. This can be phrased as “a balance
of justice for past harm.” People committing the same crime should receive a punishment of the same type
and duration that balances out the crime that was committed. The term-backward-looking means that the
punishment does not address anything in the future, only for the past harm done.
It is argued as the oldest of the main correctional/punishment ideologies because it comes from a basic
concept of revenge, or “an eye for an eye.” This concept of an eye for an eye, or vengeance, basically means
that if someone perceives harm, they are within their right to retaliate at a proportional level. This idea that
retaliation against a transgression is allowable has ancient roots in the concept of Lex Talionis, which roughly
translates into the law of retaliation. A person who injures someone should be punished with a similar
amount of harm (punishment). This concept was developed in early Babylonian law, and it is here that we
see some of the first written forms of customs and practices. Thus, around 1780 b.c., the Babylonian Code,
or the Code of Hammurabi, is considered the first attempt to codify practices by individuals of a group.
We recognize these today to be our first attempt at written laws. These laws (pictured below) represent a
retributive approach to punishment. That is proportional punishments for past harms done.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Hammurabi Code
The retributivist philosophy also calls for any suffering beyond what was originally intended during
sentencing to be removed. This is because the dosage of punishment is the core principle of retribution:
offenders who commit the same crime must receive the same punishment. Punishments beyond the original
balancing of justice for the past harm is outside of the scope of retribution, and thus, does not fit with
retribution. This also helps to explain why retribution is a backward-looking ideology. As we continue
forward in the history of punishment, we see changes to our perceptions of how to react to crime. This
includes our changing views of punishment, to include punishment ideologies that are more forward-
looking.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 8.3. Deterrence
DAVID CARTER
Deterrence
Forward-looking ideologies are designed to provide punishment, but also to reduce the level of
reoffending (recidivism) through some type of change, while the backward-looking approach is solely
for the punishment of the offender’s past actions. This change in how we view punishment is a large
shift that has ripples in culture, the politic of the times, and even religion. Moving many eras forward
from Hammurabi, deterrence is the next major punishment ideology. Rooted in the concepts of classical
criminology, deterrence is designed to punish current behavior(s), but also ward off future behaviors through
sanctions or threats of sanctions. Moreover, it can be focused on a group or on one individual. Thus, the
basic concept of deterrence is “the reduction of offending (and future offending) through the sanction or
threat of sanction.”
When looking at punishment through this deterrent design, it can be split into two distinct categories:
general and specific. Specific deterrence is geared towards trying to teach the individual offender a lesson.
It is meant to better that individual so they will not recidivate. By punishing the offender (or threatening
a sanction), it is assumed they will not commit a crime again. It is this point that makes deterrence a
forward-looking theory of punishment. General deterrence runs along the same track as specific deterrence.
However, general deterrence differs by when one person offends, the punishment received is going to be
the same for all. In this way, the group doing the punishing attempts to relay the message of future events to
the masses. If someone commits this act, they will be punished; this is part of the core design for deterrence.
Some other principles of deterrence to discuss in brief are: marginal, absolute, and displacement. Marginal
deterrence works on the principle that the action itself is only reduced in amount by the offender, not
removed. An example of this would be, a person sees a police officer sitting on the side of the freeway. If
they are driving 70 mph, they might slow to 58 mph. Technically, they may still be breaking the law, yet
their level of criminal behavior has been reduced. Absolute deterrence is a surrealistic concept often thought
to be created by Robert Peel, in his idea of creating a police force to remove all crime. In today’s standards,
we know this to be false. There is little to no evidence to support that all crime can be deterred within a
specific area, or even in general. Displacement argues that crime is not deterred, but rather, it is shifted on
three levels. It may be shifted by time, location, or the type of crime committed. Instead of someone stealing
cars on the weekend, they may sell drugs during the day. Although the weekend crime carjacking rate will
decrease, the daily drug trade will increase.
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as a whole) must have a conceptual (perceived) idea of the level of punishment they will receive. For the
efficacy of this theory, three key things must be instilled within each individual in society. They must have
free will, some amount of rationality, and felicity. Free will refers to everyone’s ability to make choices about
their future actions, like choosing when to offend and not offend. They must also have a rationalistic ability
(ability to be rational) to see what the outcomes of their choices will be. The third element, hedonism (or
a hedonistic calculus), is essential. We must desire more pleasurable things than harmful ones. It is more
probable that crime will be deterred if all three of these elements are in place within society. This is both a
strength and weakness of the deterrence theory.
Deterrence theory works on these three key elements: certainty, celerity, and severity, in incremental
steps. First, by making certain, or at least making the public think that their offenses are not going to go
unpunished, then there will be a deterrent factor. As Beccaria relates, this is the most important of these
three elements within deterrence theory. The celerity, or swiftness of punishment, is a secondary factor in
rationalizing for the offender. If they know how swift the punishment will be, they will not offend. These
concepts were cornerstones to the works of Cesare Beccaria (1738-1794), an Italian philosopher in the latter
half of the 18th century. Beccaria’s works were profound, and many of his concepts helped to shape the U.S.
Bill of Rights. He is also considered the Father of the Classical School of Criminology, and a prominent
figure in penology. According to Beccaria, “For punishment to attain its end, the evil which it inflicts has
only to exceed the advantage derivable from the crime… All beyond this is superfluous and for that reason
tyrannical.”
1
1. Beccaria, 1764/1963, 43.
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In saying this, Beccaria refers to the severity or amount of punishment. It is not how much punishment that
is the primary motivator of deterrence, rather, the certainty. If deterrence is to work, the ideology of the
punishment is what should drive this goal of corrections.
Today, we have a better understanding of the effectiveness of deterrence. It does appear to work for lower
level offenses, and for individuals that are generally prosocial. However, the overall effect of deterrence is
limited. For more detail on things to know about deterrence, please see: https://www.ncjrs.gov/pdffiles1/nij/
247350.pdf
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DAVID CARTER
Incapacitation
Rooted in the concepts of banishing individuals from society, incapacitation is the removal of an
individual (from society), for a set amount of time, so as they cannot commit crimes (in society) for an
amount of time in the future. In British history, this often occurred on Hulks. Hulks were large ships that
carried convicted individuals off to far away lands. The point was to not allow them to be able to commit
crimes in their community any longer.
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In the 1950s, punishment became much more of a political topic in the United States, and this is one of the
issues that started this section, our perceptions of the fear of crime. Lawmakers, justicians, and others began
to campaign with their toughness on crime, using the fear of crime and the criminal element to benefit
their agendas. One of the examples of being tough on crime was the use of long periods of incarceration
in general. This could be considered as collective incapacitation, or the incarceration of large groups of
individuals to remove their ability to commit crimes for a set amount of time in the future.
Since this time, and most greatly exacerbated in the 1980s and 1990s, there has been the increasing use of
punishment by prison sentences. Thus, we saw rapid growth in the prison population in the United States.
The ‘politicization of punishment’ increased the overall prisoner levels in two ways. First, by changing the
views toward the discretion allowed to decision makers, we have gotten tougher on crime. In turn, more
people are being sentenced to prison that may have otherwise gone to a specialized probation or community
sanction alternatives. Second, these same attitudes have led to harsher and lengthier punishments for certain
crimes. Offenders are being sent away for longer sentences, which has caused the intake-to-release ratio to
change, causing enormous buildups of the prison population.
The incapacitative ideology followed this design for several decades. In the early 1990s, policies were
implemented that would target individuals more specifically. These would come to be known as “three-
strikes” policies. These policies would incarcerate an individual for greater lengths of time, based on prior
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | offenses. The selective incapacitation philosophy incarcerated individuals for longer periods of time than
others. Thus, it removed their individual ability to commit crimes (in society) for greater periods of time in
the future than others.
There are mixed feelings about selective and collective incapacitation. Policymakers would promote their
utility through anecdotal examples of locking certain offenders away, in order to help assuage the fear of
crime. Others have offered that there are minimal savings at best, stating that these goals do not achieve the
intended results as previously suggested.
1 Future styles of selective incapacitation that have evolved include
tighter crime control strategies that incorporate variated sentencing strategies to selectively incapacitate the
higher rate offender. Others opt for tougher parole procedures to retain the hardened criminals longer.
In sum, we do see a definite shift from the insignificance of collective incapacitation, to a more selective
approach.
In all, we are still left with the same questions, does it work? And, at what cost? Do these lengthier
punishments for particular crimes have an effect by selectively incapacitating hardened criminals? Are there
other methods that seem the same or are more effective than the ones already in practice? This takes us to
the last of the four main punishment ideologies, rehabilitation.
1. Blokland, A.A.J., & Nieuwbeerta, P. J (2007). Selectively incapacitating frequent offenders: Costs and benefits of various penal scenarios.
Journal of Quantitative Criminology, 23: 327. https://doi.org/10.1007/s10940-007-9033-3
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DAVID CARTER
Rehabilitation
Although not as old as some of the older ideologies, rehabilitation is not brand new. Additionally, it is the
only one of the four main ideologies that most accurately attempts to address all three goals of corrections,
which are:
1. Punish the offender
2. Protect Society
3. Rehabilitate the offender.
Certainly, all four ideologies address the first two goals, punishment, and societal protection. However,
the goal of rehabilitating the offender is either silent, or not addressed in retribution, deterrence, or
incapacitation. This does come as a cost. As we will talk about in more detail when covering prisons and
jails, there is a great paradox that is happening in our society when we heavily rely on jails and prisons. Most
offenders will come out of institutions (roughly 95% of all people who enter prisons are released), and little is
done to change them while they are there. This is mostly due to our attitudes towards offenders, the policies
that are necessarily placed on individuals while they are locked up, and the institutions themselves. And yet,
there is the expectation that these individual leaving prisons will not commit crimes in the future.
The question here is this: what have we done to change them so that they are not reoffending? Without
the incorporation of some form of rehabilitation, the answer is fairly clear… Nothing. Yet, we expect it.
Rehabilitation has taken on different forms through its history in the United States. We have considered
individuals out of touch with God, and so offenders needed to be penitent, in order to get right with God.
One of America’s earliest prisons was designed with this in mind. The Eastern State Penitentiary, opening
in 1829, included outside reflection yards; so that offenders could look up to God for penance.
To see more of this prison, visit https://www.easternstate.org/.
Reformatories were another example of how rehabilitation was viewed in the past. The reform movement
tried to rehabilitate the offender through more humane treatment, to include basic education, religious
services, work experience, and general reform efforts. This was done in an effort to reform individuals, thus
allowing them to come back to society. The Elmira Reformatory was one of the earliest efforts of the reform
ideal, and many prisons built in the United States were based on this prison. Below is a picture of Elmira.
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Other attempts at rehabilitation included more medical approaches. In the past, offenders were viewed
as sick, and in need of medical cures. This medical approach, while greatly reduced, is still used in some
areas today. For example, the chemical castration of certain offenders does still occur. For example HB 2543,
in Oklahoma, in September of 2018, focuses on the mandated use of medroxyprogesterone acetate as a
treatment, and is required before appropriate release of convicted sex offenders.
Rehabilitation, as an ideology has had critics. This is in large part due to how it is perceived. Many
have voiced an objection, as it is seen as being “soft” on offenders. This is also how it has been discounted
when coupled with the fear of crime. Several examples are presented as to its ineffectiveness, and weakness
to the problem of crime. Probably the most notable example of the ineffectiveness of rehabilitation came
in the 1970s. In 1974, Robert Martinson provided support for many that were clambering to demonstrate
that the ideas of rehabilitation were ineffective. In a review of over 230 programs, Martinson concluded
that “With few and isolated exceptions, the rehabilitative efforts that have been undertaken so far have had
no appreciative effect on recidivism” (Martinson, 1974, p. 25).
1 This was the spark that many needed to
turn toward the more punitive ideologies that we have so far discussed. However, it did help some to ask
more detailed questions about why rehabilitation was not working. Additionally, it helped researchers to ask
more critical questions about measurement, how to more properly evaluate rehabilitation and to understand
the difference of what does not work versus what does work for offenders. These principles of effective
intervention become the cornerstone of modern rehabilitation.
Understanding Risk and Needs in Rehabilitation
1. Martinson, R. (1974). What works? Questions and answers about prison reform. Public Interest 35, 22-54.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Today’s rehabilitative efforts do still carry punishment and societal protection as goals, but the focus of
rehabilitation is on the changing of offenders behaviors so that they are not committing crimes in the future.
This is done by understanding what are the items that make offenders at risk for offending. Additionally,
based on the levels of risk items, some offenders are at higher risk for offending than other offenders. This
includes items like prior criminal history, antisocial attitudes, antisocial (pro-criminal) friends, a lack of
education, family or marital problems, a lack of job stability, substance abuse, and personality characteristics
(mental health and antisocial personality). Collectively these are considered as risk factors for offending
(re-offending). While we can change the number of priors someone already has, all of these other items
can be addressed. These are considered as criminogenic needs. Criminogenic needs are items that when
changed, can lower an individual’s risk of offending. This is a core component of Paul Gendreau’s (1996)
principles of effective intervention, and are at the heart of most modern effective rehabilitation programs.
2 Additionally, thousands of offenders have been assessed on these items, which has helped to develop
evidence-based rehabilitation practices. These are efforts that are based on empirical data about offenders.
When these criminogenic needs are addressed, higher-risk offenders demonstrate positive reductions in their
risk to offend.
Over the last 40 years, efforts to change these characteristics, in order to reduce offending have been
varied. One of the most useful approaches to changing the antisocial attitudes and behaviors of offenders
has come in the form of behavioral and cognitive behavioral change efforts. Cognitive behavioral change
for offenders is based on the concepts that the behaviors that one exhibit can be changed by changing
the thinking patterns behind (before) the behaviors are exhibited. That is (criminal) behavior is based on
cognition, values, and beliefs that are learned vicariously through the interactions and observations of others.
It is especially relevant since we are receiving individuals from prison, where these ideas, peers, values, and
beliefs may dominate the institution. For a more detailed explanation, please see https://www.apa.org/ptsd-
guideline/patients-and-families/cognitive-behavioral.pdf.
Today, evidence-based rehabilitative efforts are now used as benchmarks when establishing programs that
are seen as effective, versus ones that show little to no (or even negative) results. Rehabilitation programs
that follow these principles of effective intervention are showing that they can achieve these three goals of
corrections (punishment, societal protection, and offender change). In fact, the U.S. Federal Government has
a section of the National Institute of Justice devoted to these evidence-based practices, and what programs
are seen as effective, promising, and not effective. This site is called “CrimeSolutions,” and can be visited
at https://www.crimesolutions.gov/. This resource provides invaluable information for individuals making
decisions on what works for offenders and is based on empirical studies of hundreds of different approaches.
2. Gendreau, P. (1996). Principles of effective intervention with offenders. Choosing correctional options that work: Defining the demand
and evaluating the supply, 117-130, Alan T Harland, ed. -- See NCJ-158983) https://www.ncjrs.gov/App/Publications/
abstract.aspx?ID=158988
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DAVID CARTER
Learning Objectives
This section focuses on prisons and jails in the United States. We start with a brief historical account of prisons
and jails in America. We then turn to our current situation of prisons and jails, to include types, function, and
volume. After reading this section, students should be able to:
•
Understand the emergence of prisons and jails in the United States
•
Recognize the different types of jails
•
Recognize the different types of prisons
Critical Thinking Questions
1.
Explain the operational process of most jails in the United States today. Where does this come from
historically?
2.
How does the difference in the type of jail influence how the jail is managed?
3.
Explain the similarities and differences in the two early types of prisons in the United States.
4.
Explain the current operational process of most State prisons in the United States today. Where does
this come from historically?
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DAVID CARTER
The Growth of Jails in the United States
The concept of a jail (GOAL – old English spelling) is yet another concept that we have carried with
us from Western Europe (England, etc…) when the United States was first forming. Spawning from the
County-level establishment and management of jails in England; these have largely been run by County
Sheriffs in the United States, ever since we began to have them. They have had various names, depending on
their function and use, such as Bridewells, and Workhouses. Pictured below is what is commonly accepted
as the first “built” structure to house individuals that have been processed through the courts, the Walnut
Street Jail. Opening around 1790, this facility housed both jail inmates, and at some points in time convicted
offenders.
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Later, labeled as a prison (as depicted by the historical marker below), the Walnut Street Jail was a blueprint
for later prison construction, which we discuss in the latter half of this chapter.
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As the United States began to populate, county lines began to be drawn up for States earning Statehood.
Sheriffs began to police their Counties, and also be responsible for managing the lower level infractions
(misdemeanors) within their jurisdictions. Thus, County Jails began to flourish in the United States. Initially,
many jails were nothing more than parts of a Sheriff’s office, literally, cells in the back room. Today, large
structures (even multiple structures in a single county) constitute jails in the United States. Overall, we have
seen changes in the growth of jails in the United States. While we were certainly growing in the number of
jails as States gained Statehood, there has been a shift in jails structures. The vast majority of jails are small in
size. There are few larger jails, but they hold more individuals. As can be seen in a report from Cahalan and
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Parsons (1986), and reports by Harrison and Beck of the Bureau of Justice Statistics (2005), the numbers of
jails has changed immensely.
12
Table 2-1 Jails in the United States
This is due to a variety of reasons, to include: inclusion or exclusion of Youth Facilities, Native American
Facilities, Privately Owned Facilities, and reporting structures (who reports a jail in a given year). Based on
these fluctuations, it is difficult to get an exact count of jails each year. However, it appears that there are
roughly 3,300 jails in the United States today.
1. Cahalan, M. W., & Parsons, L. A. (1986). Historical corrections statistics in the United States, 1850-1984. U.S. Department of Justice.
https://www.bjs.gov/content/pub/pdf/hcsus5084.pdf
2. Harrison, P. M., & Beck, A. J. (2005). Prisons and jail inmates at midyear, 2005.BJS Bulletin. https://www.bjs.gov/content/pub/pdf/
pjim05.pdf
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DAVID CARTER
Jails vary greatly in function and size. For example, the vast majority of jails hold less than 50 jail detainees
each (roughly 2,000 jails). Yet, the 50 biggest jails hold over half of the total number of detainees, more than
350,000 in the 50 biggest jails.
1 For example, Los Angeles County Jail is actually a system of buildings spread
across LA County, which includes the Inmate Reception Center, North Facility, South Facility, LOMA,
Twin Towers, Men’s Central, just to name a few of the facilities. For a more detailed description of the jail
facilities in L.A. County Jail, please see http://shq.lasdnews.net/pages/tgen1.aspx?id=as1.
While most jails are run by County Sheriff, there are some jails that are managed by cities or jurisdictions.
For example, Chicago, New York, Philadelphia, and Washington D.C. all have their own jails, which are
not managed directly by the county in which they reside.
Jails also vary by how they are designed. While there are others, jails can be separated into two broad types,
the older generation, and the new generation. Older generation jails are jails that are typically linear in
design, with cell doors separating rooms or sections down long corridors. Many jails operate with this design.
Newer generation jails are more podular in design, where multiple cells face a central area. Additionally,
when these podular designs are used, a direct supervision approach is also often used. Direct supervision is
where there are no particular barriers between the deputies and the detainees within a facility. For example,
the image below depicts what a direct supervision jail may look like.
New Generation Jail Design
1. Minton, T. D. (2012). Jail inmates at midyear, statistical tables. U.S. Department of Justice. https://www.bjs.gov/content/pub/pdf/
jim11st.pdf
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | As you can see in the image, the operational booth (immediate left) is open to access the day area or common
area, and the doors of the cells for this jail section open to this space. Below is an image of the older
generation, linear style of jail. This typically uses the indirect supervision approach.
Older Generation Jail Design
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 8.9. Who Goes to Jail?
DAVID CARTER
One of the more fascinating aspects of jails in the United States is who gets placed in them. The short answer
is everyone. Whenever someone is arrested, this typically starts their process in the criminal justice system.
While it might not be the first time they have been arrested, this action places them en route to a jail. Thus,
jails are a collection point for many differing agencies, to include: County Sheriff’s Office, Municipal, local,
City – Police. State Police may send individuals directly to jail, even Federal agencies may use a local jail
as a point of entry. For example, ICE (immigration and customs enforcement) houses many thousands of
ICE-holds in jails across the country. Jails hold all kinds of individuals. While this list is not comprehensive,
it does present many of the types of people held in jails:
• Felons and Misdemeanants
• First time and repeat offenders
• Those awaiting arraignment or trial
• Accused and Convicted
• Parolees stepping down from prison
• Juveniles pending transfer
• Those with mental illness awaiting transfer
• Chronic alcoholics and Drug abusers
• Those held for the military
• Those held for federal agencies
• Protective custody
• Witnesses
• Those in contempt of court
• Persons awaiting transfer to state, federal or other local authorities
• Temporarily detained persons
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | As one can see from this list, there are many types of people in the 3,300 plus jails at any given time. In fact,
at any given point in time, there are 700,000 plus individuals within jails in the United States. This number
has steadily increased since the 1970s. While there have been some decreases in recent years, it generally
fluctuates around 725,000 to 750,000 jail inmates. However, this is only one portion of the people in jails.
It is estimated that roughly 11 million people process through America’s jails annually. Average lengths of
stay vary by jurisdiction, but a general average is that a person spends around 25 days in jail. As Wagner and
Sawyer (2018) depict in the picture below, the types of people in jail at a point in time is varied.
1
Snapshot of Individuals in Jail
Who goes to jail?
Probably one of the most notable items in the snapshot above is the proportions of individuals that are or
are not convicted. Roughly 63% of individuals in jails at any given time are not convicted. Other notable
groups are individuals held for other agencies. This could be a matter of processing time or allocations of bed
space. In all, it is relatively easy to see the volumes and different types of people that pass through a jail in this
graphic. Still, jails only make up one portion of the brick-and-mortar approach to punishment. Prisons are
the other large part.
1. Wagner, P., & Sawyer, W. (2018). Mass incarceration: The whole pie 2018. Available at the Prison Policy Organization
https://www.prisonpolicy.org/reports/pie2018.html
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DAVID CARTER
As mentioned at the beginning of this section on jails and prisons, the Walnut Street Jail is recognized as
the first built institution in the United States to house individuals. Soon after, another prison was built, the
Eastern State Penitentiary (ESP), and it ran like a prison for nearly 150 years. Many of the prisons today
were first built on this idea of a separated penitent prison. Many of the cells in the prison (as depicted below)
would open to individual courtyards where individuals could look up and “get right with God,” hence the
concept of penitentiary (penance).
Eastern State Penitentiary Design
The State Penitentiary for the Eastern District of Pennsylvania, Lithograph by P.S: Duval and Co., 1855.
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Individuals in ESP spent much of their time in their cells, or in their own reflection yards, reading
the bible, praying, and always in silence. The solitude was also a way to serve penance. Shortly after the
implementation of ESP, another prison was built in New York, in 1819, named the Auburn prison. This
prison would become the leader of the second main prison style, the Auburn prison system. Many of the
facets of the ESP were in the Auburn, save one. Auburn utilized a congregate system, which meant that (still
in silence) the inmates would gather to do tasks or work.
Prison Growth in the United States
Proliferation1900-2000
This concept of labor eventually replaced the ideals of constant solitude. The congregate system took hold as
the dominant model for many prisons, and many states began to model their prisons on the Auburn prison.
Notably, Auburn was also the prison where the first death by electric chair was executed in 1890. Today,
there are roughly 1,700 State or municipal prisons in the United States. As the images demonstrate, it is clear
that many of the prisons in the U.S. have been built more recently.
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DAVID CARTER
Prisons in the United States can be parcelled out by jurisdiction and by intensity. By jurisdiction, this is
referring to who manages the prisons. A prison warden is generally considered the managerial face of the
institution. However, a prison warden and the prison itself is usually within a much larger organizational
structure. Although not always, these are usually separated by State. There are a few jurisdictions not at the
State level that manage or operate prisons. This includes places like New York, Chicago, Philadelphia, and
Washington D.C. Puerto Rico (not a State) also has a prison, as does the U.S. territory of the Virgin Islands.
State Prisons
The normal label for the organizational structure of prisons in a particular State is often called Departments
of Corrections and are run by a Director, who is usually appointed by a Governor. For example, in
Oregon, it is the Oregon Department of Corrections, and Director Peters is the current head of this
organization (2012-present). The Oregon Department of Corrections currently overseas 14 State prisons.
More information about the ODOC can be found here: https://www.oregon.gov/doc/Pages/default.aspx.
California has the California Department of Corrections, and Secretary Diaz is the head of this organization
(2018 to present). CDCR oversees 34 adult institutions. For more information about CDCR, see
https://www.cdcr.ca.gov/.
Federal Prisons
The Federal Bureau of Prisons was established in the early 1930s as a result of the need to house an
increasing number of individuals convicted of federal crimes. There were already some federal prisons in
place, but it was not until 1930 that the U.S. Congress passed legislation to create the BOP, housing it under
the justice department. Sanford Bates became the first Director of the Federal Bureau of Prisons (FBOP or
BOP), based on his long-standing work as an organizer and leader at Elmira Reformatory in New York. As
more federal legislation was passed, the need for more prisons became apparent.
Today, the BOP has 109 prisons, along with numerous additional facilities (camps) adjoining at these
locations. There are also military prisons, and alternative facilities, reentry centers, and training centers, that
are managed by the BOP. The federal prisons are separated into six regions., which include: the Mid-
Atlantic Region, the North Central Region, the Northeast Region, the Southeast Region, the South Central
Region, and the Western Region.
Within these regions are regional directors, which is similar to state-level directors of departments of
corrections. Below is a detailed map of the regions of the Federal Bureau of Prisons. As is depicted, there are
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regions. Click on the link in the annotation of the map to see it in a larger scale.
FBOP Regional Map
BOP Regional map
Private Prisons
The privatization of goods and services has long been a staple of state departments of corrections, as it
allows these organizations to subcontract specific tasks within their prisons. This includes services like food
and transportation services, medical, dental, and mental health services, education services, even laundry
services. As mentioned in the previous section on punishment, there was much ado about crime in the
United States in the 1970s and 1980s. This brought on an increased fear of crime and a more punitive state
within the United States. It was during this time that a small company known as Wackenhut, a subsidiary of
The Wackenhut Corporation (TWC) sought to privatize the entirety of a prison, not just services within the
prison. A second company, Corrections Corporation of America ultimately won the contract and became
the first privately owned prison in the United States (1984). Today, Core Civic (formerly Corrections
Corporation of America) runs approximately 128 facilities in the United States.
1 The GEO Group, the other
1. See Core Civic facilities map: http://www.corecivic.com/facilities
Introduction to the American Criminal Justice System
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | primary private prison company runs 136 correctional, detention, or reentry facilities.
2 Pictured below,
roughly half of the 50 States in America use private prison industry prisons.
States Using Private Prison Industry
Private Prison State Map
Much debate has come from the incorporation of private prisons. The critics of private prisons denote
the lack of transparency in the reporting processes that would come from a normal prison. Still, others
tackle a bigger issue – punishment for profit. That is – while taxpayers ultimately pay for all punishment
of individuals, either at the State or Federal level, shareholders and administrators of the companies are
making money by punishing people, under the guise of capitalism. For a more in-depth review of this,
see a report presented by the Sentencing Project: https://www.sentencingproject.org/publications/private-
prisons-united-states/ and on NPR: https://www.npr.org/2010/10/28/130833741/prison-economics-help-
drive-ariz-immigration-law
2. See Geo Group facilities map: https://www.geogroup.com/LOCATIONS
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | 8.12. Prison Levels
DAVID CARTER
Each of these jurisdictions of prisons also has varying degrees of intensity or seriousness. These are often
considered prison levels or classifications. Depending on the State, the BOP, or even in the private sector,
it is usually associated with the seriousness of the offenders that are housed within these institutions. For
example, many States have three classification levels: minimum, medium, and maximum. Some States have
a fourth level called super-maximum. Others call this close, or administrative level. The BOP has five levels,
minimum, low, medium, high, and unclassified. Although not a true designation, and would be considered
an unclassified, administrative control, ADX Florence is a United States Penitentiary (USP) that would be
counted as a super-max. It houses the most dangerous individuals at the Federal level. Although not in
operation today, Alcatraz was probably the most famous Federal USP (also considered a super-max at one
point). It too housed the most dangerous federal inmates. Below are two images of this iconic prison, known
as the “rock.”
Alcatraz
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SOU-CCJ230 Introduction to the American Criminal Justice System.pdf | Alcatraz
Alcatraz in the Bay against the Backdrop of San Francisco
Alcatraz in the Bay against the Backdrop of San Francisco
Other States use a simple number designator to assign prison intensity, such as Level I, Level II, Level III,
Level IV, and sometimes Level V. While still, other States incorporate a Camp to their list of designations,
indicating a specific purpose within the low level, such as a Fire Camp. These types of camps are dedicated
to fighting fires. In all there are some basic concepts to point out for each type:
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Subsets and Splits