Criminal justice process and procedures

Criminal Justice Process

Considerable attention has been devoted to law, both substantive and procedural on the justice process. The criminal justice system is a legal system. How does the law influence the day-to-day activities of the justice process? Be sure to cover criminal justice decisions in all major sub-components of the process.

The law influences the day-to-day activities of the justice process in a number of ways, because the law determines the parameters of permissible activity at every point in the criminal justice system. First, it is important to realize that the law influences what is considered criminal activity. This may seem like an obvious point, but it can have a tremendous impact on the day-to-day activities of the criminal justice system. For example, the use, possession, and sale of illegal drugs takes up a huge proportion of criminal justice resources, at all levels of the criminal justice process. Specific narcotics units investigate and arrest drug offenders, many jurisdictions have specific drug courts, and drug offenders are, hopefully, offered treatment alternatives whether or not they are subjected to traditional incarceration. Even post-release, most drug-offenders are required to remain sober as a condition of parole.

If this behavior were legalized, it would free up tremendous resources in the criminal justice system. Other behavior, such as spousal abuse, is now considered a serious crime, but was virtually ignored less than a quarter-of-a-century ago. Societal norms help shape legislation, and that legislation helps direct law enforcement activities and energy. Therefore, the determination of what behavior is illegal and what behavior is illegal does more than inform the police about what behaviors are criminal; it also helps shape the focus of law enforcement detection efforts.

Of course, how the state may detect a crime is very influenced by the law. The Fourth Amendment defines the parameters of a permissible search and the Fifth Amendment delineates the conditions under which a suspect can be questioned. The Fourth Amendment, and the cases that have fleshed out its requirements, require law enforcement officials to obtain search warrants based on a reasonable suspicion of criminal activity before searching private premises, though there are some notable exceptions to the search warrant requirement. In Miranda v. Arizona, the Supreme Court interpreted the Fifth Amendment to require the police to notify suspects of their right to an attorney prior to custodial interrogations. Taken together, these amendments and their interpretations help shape the course of investigations and prevent the use of unlawful searches and interrogations by excluding illegally obtained evidence from a defendant's criminal trial. However, since the purpose of the exclusionary rule is to discourage police misconduct, the law has developed a good faith exception for such exclusions.

The development of law has helped change how criminal defendants are treated during their trials. First, pre-trial laws have made it easier for judges to use bail determinations as a method of pre-trial detention, though that is not the official purpose of bail. Moreover, the rules of evidence, a matter of law, determine what evidence is admissible, beyond constitutional concerns. For example, hearsay evidence is inadmissible, even if it is obtained in a constitutional manner. Furthermore, the laws have developed specific courts within the criminal justice system, including juvenile courts, specialized drug courts, and courts that focus on domestic violence. Most importantly, the development of the law has led to the availability of court-appointed counsel for defendants who are unable to afford their own counsel. This is a significant difference from the right to employ counsel if one chose to do so at one's own expense and has profoundly changed the operation of the criminal justice system.

Post conviction, laws influence the criminal justice process in a significant manner. For example, when the Constitution was written, the prohibition against cruel and unusual punishment definitely did not apply to the death penalty, but the Supreme Court has repeatedly held that various forms of the death penalty have violated that prohibition. The various sentences that offenders face are a matter of law; for example, third time felony offenders can face life in prison for the commission of even a minor felony offense. Moreover, the law can impose special post-release burdens on certain offenders, such as sex offender registries for child molesters. These potential sentences and post-release conditions can impact an offender's willingness to plea bargain to lesser charges, which can impact the entire criminal justice system.

2. Herbert Packer suggested that there were two competing models of criminal justice, a due process model and a crime control model. Describe these models and provide illustration of criminal justice processing that exemplifies either the due process or crime control ideologies.

Because there are two conflicting goals in the criminal justice arena, theorists like Herbert Packer have suggested that there are two competing models of criminal justice: a due process model and a crime control model. In the due process model, the primary goal is the protection of individual liberty. It is the due process model that suggests it is better for a thousand guilty men to go free than to convict a single innocent man. To that end, the due process model places a number of procedural burdens on the government, which limits government power. The due process orientation focuses on how criminal justice happens and examines questions like who is arrested, charged, convicted, sentenced, and paroled. It does so to ensure that all defendants are treated in a procedurally equal manner.

In the crime control model, the goal is the protection of society, which is accomplished by identifying and processing criminal offenders. While the crime control model does not seek to punish innocent people, the goal is the protection of society and an assembly-line like criminal justice system, which runs smoothly and efficiently.

Unfortunately, the side effect of an assembly-line like system of criminal justice is that innocent people are invariably punished under such a system. However, because crime control models focus on the impact that certain actions have on crime, the punishment of innocent people may be considered an acceptable trade-off if the underlying theories and policies result in an overall reduction in crime.

Perhaps more than any other issue in American criminal justice, the issue of the death penalty highlights the inherent conflict between crime control and due process orientations. Critics of the death penalty like to suggest that the death penalty does not reduce the number of capital offenses in countries that practice the death penalty, but that is not an accurate statement. In countries where the imposition of death is not only certain but also swiftly follows conviction for a capital offense, the number of capital crimes is lower than in comparable countries. Therefore, from a crime control perspective, the death penalty may be effective. However, as applied in the United States, the death penalty does not reduce the rates of capital crimes and utilizes tremendous resources, because of the emphasis on due process concerns.

For example, before seeking the death penalty in a certain case, prosecutors first must determine whether or not a particular defendant is death eligible. While the criteria for death eligibility are subject to change (for example, only recently did the Supreme Court determine that it was inappropriate to execute mentally retarded individuals), a prosecutor currently needs to determine if a defendant is sane, mentally competent, and represents an ongoing danger to society. Moreover, though the Supreme Court's recent decisions have taken away some of the import of race-conscious decisions like Batson, the prosecutor needs to look at the defendant's race and the race of the victim, and determine whether the decision to seek the death penalty is motivated by either of those characteristics. Then, although the technical details vary by jurisdiction, the prosecutor needs to file a notice that he is seeking the death penalty. The jury must be selected based on the idea that the government is seeking the death penalty, and while the government cannot exclude jurors simply because they have moral objections to the sentence, they can exclude those jurors who say that they will refuse to apply the death penalty if the defendant is found guilty and meets that defendant's requirements for death eligibility.

The requirements at trial are no different for capital and non-capital trials, but at the sentencing phase, many death penalty states simply require jurors to make findings according to special questions, with particular responses resulting in the death penalty. However, conviction and sentencing are not sufficient. The Supreme Court has recognized the different nature of the death penalty and the special concerns that the finality of an execution brings to the issue of due process, and most jurisdictions have instituted a process of quasi-automatic appeal from any death sentence.

All of these issues combine to make the imposition of the death penalty a very costly and time-consuming punishment, which, in turn, makes it incompatible with crime control ideologies in America. This highlights the tension between the two different models of the criminal justice system.

3. One of the problems that affect all aspects of the criminal justice system is the issue of discriminatory enforcement. Does the criminal justice system discriminate? Provide support your position with reference to the various components of the process, and give an explanation for either why the system discriminates, or why it appears to discriminate.

Yes, the criminal justice system discriminates. African-American males are overrepresented in every part of the criminal process, though there has been no good evidence to show that they actually engage in criminal behavior at rates that are so grossly disproportionate to the participation rates of the rest of society.

In fact, enough young adult African-American males are incarcerated that it impacts the African-American community by contributing to single parenthood, making it less likely that African-American women will find spouses, and perpetuating a cycle of violence and incarceration.

In addition to racial discrimination, women who kill their spouses receive sentences that are roughly four to five times as long as the sentences that men receive when they kill their spouses. Though the Supreme Court has outlawed the execution of the mentally retarded, the mentally retarded are tremendously represented on death row. Likewise, the mentally ill are overrepresented in the criminal justice system, despite the fact that many of the underlying mental illnesses experienced by these people are not actually linked to an increase in violent or criminal behavior. Finally, the poor are more likely to become involved in the criminal justice system, not only because they are more likely to live in environments that are perceived as violent and dangerous, but also because they and their companions lack the resources to resolve some disputes outside of the criminal justice system. One simply cannot look at the state of today's criminal justice system and suggest that it does not discriminate.

The system discriminates because, at each major point in the criminal justice process, someone has the ability to exercise discretion. In fact, the discrimination starts before the criminal justice system gets involved, because a complainant generally has to complain of a crime before the criminal justice system becomes involved. Take, for example, the issue of loitering teenagers in a neighborhood. In an upscale neighborhood, which would tend to be disproportionately Caucasian, neighbors may fail to report loitering teenagers because they do not see them as a problem. Even if neighborhood youth begin to engage in low-level criminal activity, such as vandalism, because their parents have the financial resources to remedy the problem, it is less likely that victims will feel the need to seek police intervention. However, in poor neighborhoods there is likely to be a higher degree of disorder, which contributes to a feeling of danger, even when crime rates are identical to more orderly neighborhoods. Therefore, those community members are more likely to seek police intervention for relatively harmless behavior like loitering and low-level vandalism. Given that some proportion of teenagers in all neighborhoods engages in drug use, the likelihood is that once the police are involved in a case involving loitering teens, they are likely to uncover evidence of drug possession. Once in that situation, the police have the opportunity to exercise discretion. An officer may be willing to look the other way, if he feels that a suspect has the potential to turn his life around. Determining that potential may be based on a number of factors other than race, including parental involvement in the home, neighborhood, and the resources that a parent can bring to the problem, but all of those factors are, themselves, linked to race. Moreover, the race of the officer will not necessarily alter how he views those factors. If the officer decides to arrest a suspect, the prosecutor then makes charging decisions. A child from a rough neighborhood may be seen as more dangerous than a child from a nice neighborhood, resulting in a decision to try him as an adult, even if the children committed identical crimes. In addition, poor people are more likely to possess drugs like crack, rather than cocaine, and the drug laws actually penalize crack possession differently than possession of the identical amount of cocaine. At trial, indigent defendants, who, simply due to the reality of wealth distribution in the United States, are more likely to be minorities than non-indigent defendants, often have court-appointed attorneys, who tend to be younger and less experienced than privately retained criminal counsel. Judges and jurors bring their own racial, cultural, and sexual biases into the courtroom, which can impact how they view witness credibility and the alleged crime. Literally, all of this discretion could mean that a teenage boy who is sitting on the corner with friends with some recreational drugs in his pocket could face absolutely no interaction with the criminal justice system in one neighborhood, but face a lengthy prison sentence in another neighborhood, and these differences are driven by class and race.

4. What is an open system? How does the nature of criminal justice as "open" influence or explain the operations of criminal justice agencies and the decisions of criminal justice agents? Be sure to give specific examples.

An open system is a system that can interact with its surrounding environment. Therefore, changes in the surrounding environment change the system. Likewise, changes in the system result in changes in the surrounding environment. The surrounding environment includes the material environment, which is composed of raw materials and means of production. For the criminal justice system, the raw materials include laws and offenders. However, the surrounding environment also includes the ideological environment, which contains a society's ideas, philosophies, values, and morals.

One way to comprehend how the nature of an open criminal justice system can influence the operation of that system is to look at how domestic violence has transformed from a family secret to a major criminal issue in just over a quarter of a century. As recently as the early 1980s, most jurisdictions did not have laws specifically addressing the issue of domestic violence. This was not due to apathy on the part of first responders, because police officers were oftentimes acutely aware of the danger in domestic violence situations and may have wished for better tools to help them manage those calls. However, even if police officers charged offenders with assault, these disputes were still seen as a private matter, and the likelihood that those offenders would actually face criminal charges or any sort of punishment was slim, which made officers fear that an arrest would only place the victim in more danger. It is important to understand how pervasive this permissive attitude was. Some episodes of I Love Lucy feature Ricky threatening to spank or spanking Lucy for her crazy antics, and this spanking was not seen as inappropriately violent. On the Honeymooners, one of the main characters routinely threatened to assault his wife, despite the fact that the show depicted them as being in an otherwise loving relationship.

However, a social phenomenon occurred in the last 1970s and early 1980s, the likes of which had not previously been seen in the American criminal justice system. A group of women, mostly composed of former domestic violence victims, decided that something had to change. They began organizing shelters, which gave victims of domestic violence a safe place of refuge. They also began lobbying their lawmakers to change the laws, making domestic violence a specific offense. The changes in the criminal justice system have been both dramatic and swift. Whereas most jurisdictions did not arrest domestic violence offenders in the late 1970s, most jurisdictions have mandatory arrest policies today, which require officers to remove domestic violence offenders from the home if they witness violence or witness evidence that violence occurred, such as bruising or other injuries on a victim. In addition, in the late 1970s, victims had no recourse other than fleeing the family home. Today, almost every jurisdiction offers victims the option of seeking a protective order, which prohibits the offender from coming within a certain distance of the victim. Moreover, in many jurisdictions, the police can seek these protective orders regardless of victim consent, thereby taking the onus of seeking such an order off of the victim. While these initial protective orders are generally of limited duration, victims in all jurisdictions have the ability to seek longer-term orders of protection, which are generally a quasi-criminal, quasi-civil process that require the victim to establish that domestic violence occurred, but do not require the heightened standard of proof that comes with a criminal trial. This grassroots movement has led to an increase in training for the criminal justice community. Almost all police departments have officers who are specifically trained to deal with domestic violence victims, and all of their officers have some type of domestic violence training. Many jurisdictions have specialized prosecutors, who deal solely with domestic violence issues, and they go before judges who are required to have specialized training in the area. The grassroots movement has remained intimately tied to the changes in the law, and many jurisdictions automatically contact a domestic violence shelter worker at different points in the criminal justice process. All of these changes reflect a tremendous difference in societal attitudes in domestic violence, which have been wholly embraced by the criminal justice community, demonstrating how the criminal justice system is an open environment.

5. The purpose of the criminal justice system is to control and prevent crime. Give what you know about both crime and the criminal justice process, in your considered opinion, how likely is it that the American criminal justice system can achieve these goals?

The American criminal justice system will never be able to fully achieve its goals of controlling and preventing crime. The major reason that the American criminal justice system will never be able to prevent crime is that criminality is an inherent part of human nature. That is not to suggest that all humans are criminals, though anecdotal evidence certainly supports the notion that, placed in the right circumstances, almost all people will resort to some level of criminal activity in order to survive.

There is a tremendous disparity in income distribution in the United States, which means that some people are going to feel forced to resort to criminal behavior in order to survive. In addition, once these people have engaged in criminal behavior, the likelihood that they can enter into mainstream society and make a decent living declines dramatically, making it more likely that they will continue to engage in illegal behavior. Moreover, even if this wealth disparity were corrected, that would not prevent criminal behavior. In all societies, a certain percentage of people engage in anti-social behavior that is aimed at short-term need fulfillment without regard to long-term consequences or the impact that behavior has on other people. Even in societies that demonstrate a much more equal share of resources than one sees in modern America, people engage in criminal behavior. As long as there are humans, there will be jealousy, disagreements, and rivalries, and those will give rise to criminal behavior. The only way to eliminate that type of criminal behavior is to change the law in a way that decriminalizes such behavior, which is really not controlling or preventing crime. In fact, no society has ever been able to accomplish the goal of complete crime suppression.

Moreover, the American criminal justice system will never be able to fully achieve its goal of crime control. While no society has ever achieved complete crime suppression, there are societies that have achieved almost total compliance with their criminal laws. Unfortunately, these societies have tended to be fascist regimes. In fact, for many modern advocates of crime control, the sign of a successful crime control program is an orderly neighborhood; however one could probably not find an example of more ordered neighborhoods than those existing outside of the Jewish Ghettos in Nazi Germany. The reality is that the greater the degree of governmental control over neighborhood orderliness, the greater the impact on personal liberties, and the more likely it is that certain subgroups of the population will be targeted as trouble-makers to try to appease people who are concerned about crime control. In fact, many people have expressed the view that this is occurring in modern America since the war on drugs has disproportionately impacted the African-American community, resulting in the large-scale incarceration of a proportion of the population that has traditionally been considered dangerous by the rest of the population.

American social values may reflect a strong interest in justice and safety, but America's core values reflect a strong belief in due process. While some American may be willing to overlook certain procedural due process violations, the reality is that most Americans are deeply appalled when the government ignores procedural due process requirements. For example, when Americans believed that the detainees at Guantanamo Bay were all terrorists, the idea of depriving them of due process and even subjecting them to torture seemed permissible if it would prevent future terrorist attacks. However, now that years have passed without another terrorist incident, the American people are growing more vocal about the illegality of those actions. As appealing as the crime control model is to Americans, the reality is that Americans believe strongly in personal liberties and due process, and both of those ideologies necessarily mean that guilty people will go free. They also means that the government cannot engage in the type of large-scale invasive monitoring that would effectively prevent criminal behavior.

The criminal justice process in the United States has been described as a "decision network." What are the major decisions in the criminal justice process, and who has the authority to make each decisions?

The criminal justice process in the United States is accurately described as a decision network, because every person involved in the process makes crucial decisions that directly relate to the outcome of any criminal behavior. While most discussions of discretion begin with the moment that the police become involved in a criminal investigation, it is important to realize that the exercise of discretion begins long before police involvement. The criminal is the person who makes the most important decision in the criminal justice process, because he or she is the one who decides to engage in criminal behavior. While the consequences can be very different for people who have engaged in the same illegal behavior, the reality is that very few people are wrongfully charged with crimes and an even fewer number of people are wrongfully convicted of those crimes. Therefore, any discussion of discretion must include the criminal's discretion to choose whether or not to get involved in criminal behavior. Furthermore, victims have discretion. A victim can choose whether or not to involve police in a criminal matter. Domestic violence victims frequently fail to report their abusers to the police, and police have a difficult time investigating crimes that they do not know about. Some neighborhoods exhibit a fear of the police (or of the consequences of contacting the police), and the people in those neighborhoods routinely fail to report minor crimes to the police, instead choosing to live with low-level criminal activity as a reality, or resorting to extra-judicial means of problem solving. Therefore, the criminal and the victim generally have the opportunity to exercise discretion before the police become involved in the investigation.

The first official actor in the criminal justice system who has the opportunity to exercise discretion is the police officer. In most circumstances, a police officer can choose whether or not to arrest or otherwise cite someone with an illegal behavior. In some circumstances, mandatory arrest or citation policies are aimed at reducing officer discretion, but officers still have to determine whether or not the situation meets up with the requirements of the mandatory arrest or citation policies. Moreover, even good police officers can be tempted to ignore mandatory arrest policies, if they believe that doing so is actually better for the victim. In fact, police officers may have the most powerful form of discretion, because they are generally the first people with whom victims and offenders interact, and their approach to a crime can help determine the tone of the entire interaction with the criminal justice system. Police officers are also the only actors in the criminal justice system who are authorized to use deadly force in their normal business, and they exercise the discretion over when it is appropriate to use physical force to subdue a suspect.