Criminal justice systems and practices

Criminal Justice

Explain how policy is made and implemented in criminal justice.

An article in the journal Political Behavior explains how the development of public policy in the federal criminal justice system in fact is sometimes made in response to public opinion. Author Sean Nicholson-Crotty and colleagues assert that elected officials of course care a great deal about public opinion, and hence, those representatives respond to shifts in the attitudes of members of the public (Nicholon-Crotty, 2009, p. 629). When the mood in a particular politician's district is liberal, that politician is likely to vote for government programs that help people, or "entitlement" programs. However, if the politician believes that his constituency is leaning to the right, he or she will likely tend to vote against big government, and in fact will likely approve cuts in spending even if it means taking benefits away from the less fortunate. If politicians go against what public opinion surveys show among their constituents they are likely to be voted out of office. That's how democracy works. There's nothing too mysterious or untoward about this system.

Likewise politicians are keenly interested in the public mood when it comes to enacting laws that deal with criminal justice. The question of how policy is made of course brings a potentially easy answer. Congress passes laws. Policies can be implemented by law enforcement agencies, federal, state, and local -- but Congress passes laws and sets the tone for policies and members of Congress of course (especially the House of Representatives) are sent to Washington to reflect the views and needs of their constituents.

When the crime rate goes up, public opinion becomes a powerful force for additional punishment for the criminals that are preying upon citizens. Studies referenced by the authors show that "…trends in public opinion find support for specific policies such as capital punishment and judicial leniency" however, over time public opinion changes due to the flux in the crime rate (Nicholon-Crotty, p. 632). The media drives public opinion vis-a-vis policies in the field of criminal justice, Nicholon-Crotty continues. "Media coverage that portrays individuals rather that society responsible for crime has been found to increase individual support for punitive policies," Nicholon-Crotty writes on page 632.

Some research that Nicholon-Crotty brings into the story shows that it is really the "interaction" between real crime and media portrayals of victimization that determine how active citizens will be in demanding new laws on crime. And moreover, other authors suggest that "racial stereotypes and prejudices" can and sometimes do have a "significant impact on the attitudes of white Americans" when it comes to crime and punishment of criminals (Nicholon-Crotty, p. 632). Just the phrase "inner city" in a TV story or in a newspaper article conveys a message about racial stereotypes that also has an effect on public opinion and hence also has an effect on public officials' views regarding criminal justice.

Not only can public opinion sway the elected official to vote for certain policies and laws, but that elected official and policy-maker, if he or she does not follow the wishes of the voters, can be thrown out of office. "Thus," Nicholon-Crotty writes (p. 635), when the public desires more punitive policies or more liberal policies, it can elect officials into office that pledge to enact such policies." Also, the "strategic use of crime rhetoric in speeches and campaigns" by politicians and candidates can lead to a heightened sense of awareness on the part of the public, and in turn lead to greater public support of "punitive criminal justice policies" (Nicholon-Crotty, p. 636).

Nicholon-Crotty and colleagues also point to the fact that "unelected" public officials that are responsible for policy implementation can be pressured by elected officials to create policies. If an elected official feels that a certain crime-related issue is vital to his or her re-election, or to maintaining high poll numbers with his or her constituency, he or she can "limit the discretion of lower-level officials" (Nicholon-Crotty, p. 637). In other words, when elected officials send signals that they want certain laws or policies protected or enacted, "unelected officials are likely to respond," Nicholon-Crotty continues.

An Example of How Public Opinion Effects Policy Makers -- and Laws

In 1986, there was a "surge in crack cocaine smoking and drug-related killings," so Congress reacted to the public outrage by enacting very tough laws for crack cocaine users (Eckholm, 2010). The law that went through at that time required that a person arrested in possession of five grams of crack cocaine should be sentenced to at least five years of prison, and a person in possession of 10 grams of crack cocaine was to be sentenced to a minimum of ten years in prison. The penalties for possession of powder cocaine was far less severe.

During the 2008 presidential campaign Barack Obama pointed out that the very stiff penalties for crack cocaine were "fundamentally unfair" because those tough laws "disproportionately filled out prisons with young black and Latino drug users" (Eckholm, p. 1). That said, a bill was passed in the U.S. Senate in July, 2010, that changed the sentencing for crack cocaine; today, 28 grams (instead of 5 grams) puts the arrestee in prison for five years. And those caught with 280 grams are to be sentenced to 10 years in prison. Not only is the adjusted law fairer, it will also save money, according to Eckholm: The Congressional Budget Office estimates that the shorter sentences can save the federal prison system "about $42 million over the next five years."

An article in the journal Review of Policy Research (Mauer, 2004) pints out that "racial disparities" that were produced by the "punitive orientation of American criminal justice policy" were not "unintended" but were in fact a byproduct of a "well-intended strategy to control crime." Mauer writes that the launch of the "get-tough" approach to crime policies in the 1960s and 1970s came about due to the Civil Rights Movement and the resulting "polarization around racial issues." In other words, race has indeed had an effect on criminal justice policies, which should not come as a surprise to those studying sociology, crime, and recent American history. Mauer references criminologist Katherine Beckett on pages 81-82; she has shown that "opposition to racial reform" has consistently been correlated with "concerns about crime and law and order approaches" to social unrest.

Question Two: Explain why the passage of much of the federal affirmative action legislation has been considered the criminal just administration's 'worst nightmare'.

As to the controversial contemporary social policy called affirmative action, William C. Heffernan and John Kleinig take some radical position in their narrative, but it is useful in the full understanding of why the law and the courts struggle with this issue. The authors assert that the "moral case" for this civil law has been made. In fact the moral case for race preferences is very clear, the authors contend. According to the authors of the book From Social Justice to Criminal Justice: Poverty and the Administration of Criminal Law, the three most common justifications for affirmative action are as follows: a) affirmative action is "reparation for past discrimination"; b) affirmative action "is necessary to achieve diversity"; and c) affirmative action is the "most effective response to present discrimination" (Heffernan, et al., 2000, p. 223).

What is the evidence that indicates a need for affirmative action? The authors say it needed because of the "substandard performance (as a group, and also compared to whites as a group) on traditional measures of achievement," Heffernan explains on page 223. One example that stands out in terms of showing that African-Americans are substandard is standardized tests, on which African-Americans don't do as well as whites and Asians as a rule. Heffernan goes on to assert that the "disparity between white and black 'achievement' in conforming to the law of crimes is greater than in virtually any civil arena" (p.223).

Whether it is civil law or criminal law, the justice system has a difficult time because race preferences are required to advance African-Americans, Heffernan explains. Color-blindness just "reinforces the status quo, which is white domination," the author goes on. If there were no affirmative action then law schools would be mostly white and Asian, the author posits. The first question asked by Heffernan is, should affirmative action in criminal be "class-based?" The most powerful justification for having racial preferences in civil law is that "blacks should be made whole after suffering the harms of slavery and segregation" (Heffernan claims this argument has been most persuasive in the Supreme Court).

Heffernan (p. 224) asserts that the "vast majority" of sociologists, biologists, and criminologists who have looked carefully at affirmative action laws "attribute disproportionate black criminality to the lasting effects of American slavery and American apartheid." That said, Heffernan also believes that affirmative action is controversial because it basically ties to "correct racism by making it futile: it overcompensates for prejudice against a group by demanding the inclusion of members of the group" (p. 224).

The strongest case in the criminal law annals for race-based affirmative action occurs in "drug possession offenses," Heffernan writes. The drug busts show "compelling evidence of discrimination against blacks," the author insists; moreover, he claims that many law enforcement personnel have admitted that they practice "a kind of affirmative action: they admit that they selectively enforce anti-drug laws in the black community." The justification for busting black people in the inner city is that "heightened enforcement is good for the community," and further, the reason so many African-American men are caught dealing drugs is that is much easier for police to find crimes among poor people -- this assumes that many blacks in inner cities are low income -- because poor people "are more likely to commit those crimes in public places" (Heffernan, p. 225).

All of the issues that Heffernan has referenced contribute to the reason that the criminal justice system has been burdened down with litigation vis-a-vis affirmative action.

Dr. Stan Malos of San Jose State University writes that one of the most common complaints in courts of law -- by those opposing affirmative action -- is that is "unfairly squeezes employers between the competing demands of disparate treatment and disparate impact law" (Malos, 2009). In other words, the employer wishes to abide by the law, plans to abide by the law, but if he or she does hire a member of the minority community in order to seek a sense of fairness, a member of the majority could sue based on alleged discriminatory practices. The definitions that appeared in Section 104 of the Civil Rights Act of 1991 failed to fully define what a "business necessity" is, or what "job-relatedness" is, in terms of the legal justification for affirmative action.

And so with the 1991 Civil Rights Act, and with Hopwood v. State of Texas, U.S. App. Lexis 4719, 5th Cir. March, 1996 -- which struck down the admissions policy at the University of Texas law school that previously had given preference to African-American and Latino applicants -- courts have had their share of difficult and confusing laws and policies to work through. This would be a definite answer to the question as to why criminal justice systems see affirmative action as a veritable nightmare.

Meantime, Malos mentions that in Section 106 of the 1991 Civil Rights Legislation there is a provision against "race-norming" of employment tests; race-norming means that the scores of the tests would be adjusted to give a better chance to African-Americans, an ethnic group that doesn't as a rule do as well on standardized tests. Malos asserts that because of Section 106 is was "more likely" that certain employers with imbalances based on demographics in their workforces "would be forced to adopt outright racial preferences."

The author notes the obvious: giving racial preferences means a much greater chance that the employer would be hit with a reverse discrimination attack. Another section of the 1991 legislation, Section 116, uses direct and simple language to assert that nothing in the legislation "should be construed to affect affirmative action [programs] that are in accordance with the law," Malos continues. He claims that language carries the "implied caveat" that not every program is totally legal and above board.

The argument that the courts and criminal justice system in general struggle with the confusing and somewhat arbitrary nature of affirmative action is made all the more apparent and justified by focusing on that 1991 law. Malos complains that rather than directly and explicitly "validating or preserving programs" that are in compliance and accordance, the language in the law leaves the "propriety of individual AAPs up to the courts."

The author of this article references a scholarly piece by Don Munro who argues that the 1991 Civil Rights legislation creates a "decidedly muddied picture of congressional intent." Apparently, Munro believes (referenced by Malos) that the members of Congress who wrote the legislation actually supported the need for affirmative action, but conservatives managed to frame the debate as about "quotas" -- not just fairness in hiring. "In their rush to define the Civil Rights bill as anti-preference legislation…" those who supported affirmative action were responsible for the provisions in the bill that allegedly "cancel out" the "proaffirmative actions sections" (Malos).

Question Three: Briefly discuss the major federal legislative acts governing public sector employment.