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Please see the discussion assignment below. The assignment MUST be at least 2 pages, APA format, and MUST use the attached course materials. THIS IS DUE FRIDAY! Please do not accept this assignment if you cannot meet this short time constraint.
Based on what you have learned in this class, come up with a solid policy that you think should be implemented into the Criminal Justice system. Base this recommendation off of everything you have learned (e.g., crime, why people commit crimes, victimization, police, courts, corrections, CJ policy, etc..). Your policy should be directed at either controlling crime or changing police, courts, or corrections. Be sure to use several resources to back up your justification for the policy. Also, be sure to give your policy a name!

4: Criminal Justice Policy

Learning Objectives

In this section, you will be introduced to policy in the criminal justice system. Policies that can be examined

include issues related to juvenile justice, drug legislation, intimate partner violence, prison overcrowding, school

safety, new federal immigration laws, terrorism, and national security. After reading this section, students will be

able to:

• Examine the relationship between theory, research, and policy.

• Understand the factors involved in creating moral panics.

• Identify the stages involved in creating policy.

• Understand the role of evidence-based practice in policy.

• Reflect on how current events and politics shape policy.

Critical Thinking Questions

1. What is a current example of a moral panic?

2. How does the media help influence policy?

3. If the media has so much influence over policy, how can we ensure fair and just laws and practices?

4. Think of a crime problem in your area. What policy would you enact to combat it and how would you

evaluate this policy to see if it was working?

5. What are some policies you can think of that have changed over time? (eg. Marijuana legalization)?

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4.1. Importance of Policy in Criminal Justice

ALISON S. BURKE

Why is Policy so Important in Criminal Justice?
Everyone is affected by the criminal justice system through public policy. Policy represents social control

and ensures members of society are compliant and conform to the laws. Policies include issues related: to

juvenile justice, drug legislation, intimate partner violence, prison overcrowding, school safety, new federal

immigration laws, terrorism, and national security.

Modern-day crime policies can be traced to changes in crime and delinquency in the 1960s. That decade

saw major increases in the crime rate along with widespread social unrest as a result of the Vietnam War and

the Civil Rights movement. The work of the 1967 President’s Commission on Law Enforcement and the

Administration of Justice highlighted the crime problem, and the criminal justice system’s failure to address

the problem. The commission called for new approaches, programs, policies, funding models, and research

on the cause of crime. In addressing the causes of crime (theory), and using appropriate data collection

(research), effective policies and programs could be proposed.

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Theory-Policy-Research

When discussing crime policies, it is important to understand the difference between “crime prevention”

and “crime control.” Policies and programs designed to reduce crime are crime prevention

techniques. Specifically, crime prevention “entails any action designed to reduce the actual level of crime
and/or the perceived fear of crime.”

1
On the other hand, crime control alludes to the maintenance of

the crime level. Policies, such as the three strikes law or Measure 11, seek to prevent future crime by

incapacitating offenders through incarceration. Other policies like sex offender registration acknowledge

that sex offenders exist and registering them will control the level of deviation, sometimes preventing-or

perceiving to prevent future offenses.

Public policies and laws are created at different levels of government, with micro-level policies enacted on

the local level and macro level applied at the federal or state level. For example, at the local level, some towns

and cities might create specific ordinances tailored to their unique needs, such as banning cigarette smoking

in the downtown area. At the federal level, policies are created that apply to the federal criminal justice

system and can apply to states as well. However, federal laws can differ from state laws, such as marijuana

legalization. Individual organizations can also make policies that address their individual agency needs, such

as requirements for local police officers. Therefore, depending on who creates the policies, they can be far-

reaching or extremely localized.
2

Fake News Exercise

1. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations. (9th ed.). New York, NY: Routledge.
2. Lab, S P., Williams, M.R. Holcomb, J.E., Burek, M.W., King, W.R., & Buerger, M.E. (2013). Criminal Justice: The Essentials (3rd ed.).

New York, NY. Oxford University Press.

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
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Fake News has received a lot of press lately. In fact “fake news” was the top word in 2017. For people under 30,

online news is more popular than TV news and people under 50 get half of their news from online sources.

Here are 4 steps for evaluating News:

1. Vet the Publisher’s Credibility.

• What is the domain name? A domain name that ends with “.com.co” is not to be trusted. Something

like abcnews.com looks legit, but if it is listed as abcnews.com.co, be wary.

• What is the publication’s point of view? Check out the “About Us” section to learn more about the

publishers. It will also tell you if the publication is meant to be satirical, like the Onion.

2. Pay Attention to Writing Quality.

• Does the publication have all caps or way too many emphatic punctuation marks?!?!?!? Proper

reporting does not adhere to such informal grammar. The article you are reading is probably not vetted.

3. Check out the Sources and Citations.

• Does the publisher meet academic citation standards? Your teachers and professors constantly tell you

to cite and reference appropriately. This is how we can check your sources. The same is true for online

news. Check the sources.

Ask the Pros

• Check out fact-checking websites like factcheck.org

Read more at https://www.summer.harvard.edu/inside-summer/4-tips-spotting-fake-news-story

Take the Fake News Quiz! https://www.channelone.com/feature/quiz-can-you-spot-the-fake-news-story/

Introduction to the American Criminal Justice System

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4.2. The Myth of Moral Panics

ALISON S. BURKE

Moral panic has been defined as a situation in which public fears and state interventions greatly exceed the
objective threat posed to society by a particular individual or group who is/are claimed to be responsible for

creating the threat in the first place.
1

Moral panics arise when distorted mass media campaigns create fear and reinforce previously held or

stereotyped beliefs, frequently centered around ethnicity, religion, or social class. Often, moral panics occur

swiftly, focusing attention on the behavior and then fluctuating concern over time. The most problematic

aspect of the moral panic is that the hysteria often results in a need to “do something” about the issue and

most commonly “results in the passing of legislation that is highly punitive, unnecessary, and serves to justify

the agendas of those in positions of power and authority.” Moral panics focus attention on what we should

fear and who we should blame for that fear. Instigators of moral panics frequently misinterpret data for their

own agenda. Cohen (1972) said at least five sets of social actors are involved in a moral panic. These include

1) folk devils, 2) rule or law enforcers, 3) the media, 4) politicians, and 5) the public.
2

Moral Panics, Sex Offender Registration, and Youth

In her article, “There Are Too Many Kids on the Sex Offender Registry,” Lenore Skensazy discusses the

unpopular view that perhaps sex offender registration is more harmful than helpful.

The purpose of sex offender registries is to prevent one of the worst of the worst crimes: sexual assault.

However, Roger Lancaster, author of “Sex Panic and the Punitive State” suggests that “Only a tiny fraction

of sex crimes against children are committed by people who are on the registry.” About 5 percent of people

on the list go on to commit another crime, a far lower recidivism rate than almost any other class of

criminals, including drug dealers, arsonists, and muggers (Skenazy, 2018, para 4).

1. Bon, S.A (2015, July 20). Moral Panic: Who benefits from fear? Psychology Today, https://www.psychologytoday.com/us/blog/wicked-
deeds/201507/moral-panic-who-benefits-public-fear

2. Cohen, S. (1972). Folk devils and moral panics: The creation of the mods and rockers. London: MacGibbon and Key Ltd.

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“Available research indicates that sex offenders, and particularly people who commit sex offenses as

children, are among the least likely to re-offend,” Human Rights Watch has found. Furthermore, the U.S.

Bureau of Justice Statistics reports that the “single age with the greatest number of offenders from the

perspective of law enforcement was age 14.” This means that 14-year-olds, more than any other age, are

being placed on a lifetime registry.

Sometimes this results from minors engaging in consensual sexual encounters simply because they are

underage and cannot legally consent. And in some states, sexual contact is not required to end up on

the registry. In some instances, sexting under the age of 18 is a felony and can earn someone a place on

the registry. Until recently, Missouri offenders were grouped together in one category regardless of the

offense so individuals who urinated in public endured lifelong registration and were categorized with the

worst of the rapists and molesters. There was no distinction or tier structure.

Is lifelong registration appropriate punishment or is it being strictly punitive? Most offenders serve their

time in prison and therefore serve their debt to society. This is not the case with life long sex offender

registrants who can’t live near a school, park, or playground and must report to authorities anytime they

get a new job, a new place to live, or even a new hairstyle. They can never fully re-enter society and are

seen as never being able to be rehabilitated.

All these requirements are based on the “flawed but pervasive idea that those convicted of sex offenses

became incurable and predatory monsters requiring—and deserving—lifetime punishment,” writes Emily

Horowitz, a professor of sociology at St. Francis College and author of two books on this subject.

What would happen if the registry were to disappear? All other criminal laws would remain in place,

including increased penalties for repeat offenses. Only the list, and the dehumanization it wreaks would be

gone.

“If my child was victimized, I’d want to kill a person,” Horowitz says. “But what if my child was a

victimizer? I’d also want them to have a chance” (Skenazy, 2018, para 15).

Read more at: https://reason.com/archives/2018/04/09/there-are-too-many-kids-on-the

Ted Talk: How Fake News Does Real Harm

First, folk devils are the people who are blamed for being allegedly responsible for the threat to society. Folk
devils are completely negative and have no redeeming qualities. This is how juvenile offenders, or “super-

predators” as they were referred to in the 1990s. The narrative went like this:

We’re talking about kids who have absolutely no respect for human life and no sense of the future….And

Introduction to the American Criminal Justice System

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make no mistake. While the trouble will be greatest in black inner-city neighborhoods, other places are

also certain to have burgeoning youth-crime problems that will spill over into upscale central-city districts,

inner-ring suburbs, and even the rural heartland…They kill or maim on impulse, without any intelligible

motive…The buzz of impulsive violence, the vacant stares and smiles, and the remorseless eyes…they

quite literally have no concept of the future….they place zero value on the lives of their victims, whom

they reflexively dehumanize…capable of committing the most heinous acts of physical violence for the

most trivial reasons…for as long as their youthful energies hold out, they will do what comes “naturally”:

murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.
3

Folk devils are the embodiment

of evil and center stage of the moral panic drama. They have no redeeming qualities so it is easy for the

population to fear and hate them.

Second, the police or other law enforcement officials (prosecutors or even the military) are essential

for propagating the moral panic since they are responsible for upholding and enforcing codes of conduct

and expectations of the citizens. They are expected to protect society from the folk devils by detecting,

apprehending, and punishing their evil ways. Furthermore, the moral panic can offer law enforcement

legitimacy as moral crusaders and protectors. Law enforcement has a purpose to defend society and rid it of

the folk devils which threaten their safety and well being.

Third, the media are particularly powerful in creating and advancing the moral panic. Generally, news

media coverage of folk devils is often skewed and exaggerated. The media coverage often displays the folk

devils as much more threatening to society than they really are. Journalists feed public anxiety and fear,

which heightens the moral panic. Media influences policy in two ways:

(1) they select the “important” issues (agenda setting),

(2) they problematize policy by attaching meaning to it. In this way, the frame and construct the

narratives.

Agenda setting is the way the media draw the public’s eye to a specific topic. Framing refers to a type
of agenda setting in a prepackaged way and narratives are about the story that is told. Said another way,
framing focuses on the broad categories, segments, or angles through which a story can be told. Frames

include factual and interpretive claims that allow people to organize events and experiences into groups.

Narrative construction involves decisions by storytellers that determine the specific characters, plot, causal

implications, and policy solutions presented. Narratives are pictures that the public already accepts and

embraces (See Table 1 for examples of criminal justice frames and narratives). Journalists and reporters are

taught to tell stories through first-hand accounts and experiences people have because audiences care about

these human experiences and their stories more than they care about abstract societal issues. In theory, then,

journalists and reporters are the gatekeepers to the information and they choose how they organize and

present ideas to the public. This helps us create social meaning from events or actions (See Table 2 for

framing techniques).
4

Table 1: Criminal Justice Frames and Examples of Narratives

3. Dilulio. (1995). https://www.weeklystandard.com/john-j-dilulio-jr/the-coming-of-the-super-predators
4. Crow, D.A., & Lawlor, A. (2016). Media in the policy process: Using framing and narratives to understand policy influences. Review of

Policy Research. 33(5): 472-495

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Frame Cause Policy

Faulty system Crime stems from criminal justiceleniency and inefficiency. The criminal justice system needs to get tough on crime

Blocked
opportunities

Crime stems from poverty and
inequality

The government must address the “root causes” of crime by creating
jobs and reducing poverty.

Social
breakdown

Crime stems from family and
community breakdown Citizens should band together to recreate traditional communities.

Racist system The criminal justice system operates ina racist fashion African Americans should band together to demand justice

Violent media Crime stems from violence in the massmedia The government should regulate violent imagery in the media

Narrative Costume Characteristic

The PI Cheap suit and car Loner, cynical, shrewd, shady but dogged

The rogue cop Plainclothes, disguise, often has specialhigh tech equipment Maverick, smart, irreverent, violent but effective

The sadistic
guard Unkempt uniform

Low intelligence, violent, racist, sexist, perverted, and enjoys
cruelty, inflicting pain, and humiliation

The corrupt
lawyer Expensive suite and office

Smart, greedy, manipulative, dishonest, smooth talker and liar, able
to twist words, logic, and morality

The greedy
businessman

Very expensive office and home, trophy
wife

Very smart, decisive, and a polished, unquenchable sometimes
psychotic need for power and wealth

[Footnote]Surette, R. (2011). Media, crime, and criminal justice: Images, realities, and policies (4th ed.). Belmont,
CA: Wadsworth Publishing. [/footnote]

Table 2: Framing Techniques

Framing techniques per Fairhurst and Sarr (1996):

• Metaphor: To frame a conceptual idea through comparison to something else.

• Stories (myths, legends): To frame a topic via narrative in a vivid and memorable way.

• Tradition (rituals, ceremonies): Cultural mores that imbue significance in the mundane, closely tied to artifacts.

• Slogan, jargon, catchphrase: To frame an object with a catchy phrase to make it more memorable and relate-able.

• Artifact: Objects with intrinsic symbolic value – a visual/cultural phenomenon that holds more meaning than the object
itself.

• Contrast: To describe an object in terms of what it is not.

• Spin: to present a concept in such a way as to convey a value judgment (positive or negative) that might not be
immediately apparent; to create an inherent bias by definition. (Fairhurst, G. & Sarr, R. 1996. The art of Framing. San
Francisco: Jossey-Bass.)

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Fourth, politicians are also protagonists in a moral panic. They spin the public opinion and present

themselves as the safeguards of the moral high ground. They are similar to law enforcement in this drama

and they have an obligation to protect society from folk devils.

The fifth and final category of moral panic is the public. The public is the most important actor on the

stage. Public anxiety and fear over the folk devils is the central theme of moral panics. A moral panic only

exists because the public cries out for policymakers and law enforcement to “do something” and save them

from the alleged threat that has been created.

Carlson, M. (2018). Fake news as an informal moral panic: The symbolic deviance of social media during

the 2016 US presidential election. Information, Communication, and Society. https://doi.org/10.1080/
1369118X.2018.1505934

https://www.tandfonline.com/doi/abs/10.1080/1369118X.2018.1505934?journalCode=rics20

ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
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4.3. The Stages of Policy Development

ALISON S. BURKE

The stages of policy development can generally be categorized into 5 general stages. U.S. policy

development encompasses several stages. Most policy models generally include the following stages: (1)

identifying the issue to be addressed by the proposed policy, (2) placement on the agenda, (3) formulation

of the policy, (4) implementation of the policy, and (5) evaluation of the policy. This is similar to the

community police response acronym SARA (scanning, analysis, response, and assessment) and uses some of

the same techniques, but on a much bigger, national level.

Dangerous Myths about Juvenile Sex Offenders

Identifying the Problem and Agenda Setting
Identifying the problem involves addressing what is happening and why it is an issue. In criminal justice,

this might look at the increase of opioid use and overdoses or acts of youth violence. Once the issue is

identified, there can be a serious debate about the plans of the policy. Once it is decided what the policy will

look like, it is placed on the agenda. This is perhaps the most politicized part of the process as it involves

many different stakeholders. It involves identifying the legislative, regulatory, judicial, or other institutions

responsible for policy adoption and formulation.

Formulation and Adoption
The next stage involved adopting the policy. Depending on the nature of the policy, this could involve a

new law or an executive order.

Implementation of the Policy
Implementation is about moving forward, taking action, and spending money. It involves hiring new staff

or additional police officers. This is where policies often stall because of the lack of funding. For example,

a popular program in 1990, Weed and Seed, involved “weeding” out criminals (targeting arrest efforts) and

“seeding” new programs (instituting after-school programs, drug treatment facilities, etc.). The weeding

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portion of the program was a great success, but the program ultimately failed because of a lack of funding to

adequately seed new community programming. Funding is a major roadblock for proper implementation.

Evaluation
Finally, the evaluation examines the efficacy of the policy. There are three different types of evaluation:

Impact, Process, and Cost-benefit analysis. Impact (outcome) evaluations focus on what changes after
the introduction of the crime policy.

1
Changes in police patrol practices aimed at reducing the level of

residential burglaries in an area are evaluated in terms of subsequent burglaries. The difficulty with impact

evaluations is that changes in the crime rate are rarely, if ever, due to a single intervening variable. For

example, after the implementation of curfew laws for juvenile offenders, juvenile crime decreased. Can

we say that was because of curfew laws? The entire crime rate for America decreased at the same time.

Attributing a single outcome based on a solitary intervention is problematic.

Process evaluations consider the implementation of a policy or program and involve determining the
procedure used to implement the policy. These are detailed, descriptive accounts of the implementation of

the policy including the goals of the program, who is involved, the level of training, the number of clients

served, and changes to the program over time.
2

Unfortunately, process evaluations do not address the actual

impact policy has on the crime problem, just what was done about a specific issue or who was involved.

While this is indeed a limitation, it is essential to know the inner workings of a program or policy if it is to

be replicated.

Cost-benefit evaluations, or analysis, seeks to determine if the costs of a policy are justified by the
benefits accrued. A ubiquitous example of this would be an evaluation of the popular anti-drug D.A.R.E.

program of the 1980s and 1990s. The D.A.R.E. program was a school-based prevention program aimed at

preventing drug use among elementary school-aged children. Rigorous evaluations of the program show

that it was ineffective and sometimes actually increased drug use in some youth. The cost of this program

was roughly $1.3 billion dollars a year (about $173 to $268 per student per year) to implement nationwide

(once all related expenses, such as police officer training and services, materials and supplies, school resources,

etc., were factored in).
3

Using a cost-benefit analysis, is that a good use of money to support an ineffective

program?

Policy formation is often a knee-jerk reaction to the current problem. Many policies are the result of

grassroots efforts to change something in their communities. For example, let us pretend the issue is youth

crime in our city. Kids are roaming the streets like packs of wild dogs, jeering at the elderly, and generally

making us feel unsafe. A proposed policy might be to hold parents accountable for their child’s misbehavior.

If parents are responsible, then they will take better care of their kids, right? Take, for example, Little Skippy.

He’s kind of a jerk. He smokes, curses, and recently stole his neighbor’s car. Arrested after crashing into the

drive-thru sign at the local Taco Bell, based on parental responsibility law, his mom and dad are to blame for

his reckless driving fiasco. Let’s look at the policy process.

1. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations (9th ed.). New York, NY: Routledge.
2. Lab, S. (2016). Crime Prevention: Approaches, Practices, and Evaluations (9th ed.). New York, NY: Routledge.
3. Shepard, E. (Winter 2001-2002) A new study finds. We wasted billions on D.A.R.E. Reconsider Quarterly,

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1. How can this be instituted? Fine the parent? Sentence the parents to jail time? The policy

needs to be a concrete solution to a problem. Many states use fines instead of jailing the parents.

(Who’s to watch over the children if the parents are locked up?) Fines sound great. This will

make sure parents take an active interest in their children because they do not want to have to

pay money if their kid gets into trouble.

2. Who needs to be involved in lobbying for this law? Legislators? Senators? Local police?

Maybe even city officials, local school boards, and religious organizations. So it’s put on the

agenda and gets moved onto a ballot for an official vote. The citizens who think their city needs

to be tough on crime vote to approve this policy.

3. Bam, it’s law. It is implemented and now parents of juveniles delinquents are charged

fines. This actually is a law in nearly every state. In the 1990s, Silverton, Oregon, was a

model for communities interested in imposing ordinances that hold parents accountable for

their children’s behavior. In Silverton, parents can be fined up to $1,000 if their child is

found carrying a gun, smoking cigarettes, or using illegal drugs. Parents who agree to attend

parenting classes can avoid fines. Within the first two months after the law was passed in early

1995, seven parents were fined and many others registered for parenting classes.

Oregon has ORS 30.761 (2017), which states:

(1)In addition to any other remedy provided by law, the parent or parents of an unemancipated minor

child shall be liable for actual damages to person or property caused by any tort intentionally or recklessly

committed by such child. However, a parent who is not entitled to legal custody of the minor child at the

time of the intentional or reckless tort shall not be liable for such damages.

(2) The legal obligation of the parent or parents of an unemancipated minor child to pay damages under

this section shall be limited to not more than $7,500, payable to the same claimant, for one or more acts.

4. It is law, but is it effective? The evaluation stage of policy is critical. The goal is to curb youth crime

and we might expect to see a decrease in the juvenile crime rate. However, charging parents fines for the

misdeeds of their children actually increases recidivism! It’s true! A study of 1,167 youth in Pennsylvania
found that the total amount of fines, fees and/or restitution significantly increased the likelihood of

Introduction to the American Criminal Justice System

149

recidivism
4
. Justice system–imposed financial penalties increase the likelihood of recidivism in a sample of

adolescent offenders
5

In particular, males, non-whites, and youth with prior dispositions and adjudicated

with a drug or property offense were at an increased likelihood of recidivism associated with owing fines

and fees (Piquero and Jennings, 2016). This is problematic as fees not only increase recidivism but also

increase the likelihood of a “revolving door” juvenile justice system for minority youth.

In the end, what is law is not always effective and what is effective is not always law. This is where evidence-

based practices come in.

4. Piquero and Jennings, 2016, Piquero, A. and Jennings, W.G. (2015)
5. Youth Violence and Juvenile Justice, 15 (3) p. 325-340).

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4.4. Importance of Evidence Based Practices

ALISON S. BURKE

In the 1970s, Martin Robinson issued his infamous claim that “nothing works” in rehabilitating offenders.
1

In the 1980s, numerous research studies were published that contradicted this claim and proposed

alternative approaches to combating crime and effective interventions. Since then, countless researchers,

agencies, and even Congress have adopted the need to create comprehensive evaluations of effective

programs.

Evidence-based practices mean utilizing research in pursuit of identifying programs, policy initiatives, or

practices that work. The Office of Justice Programs (OJP) “considers programs and practices to be evidence-

based when their effectiveness has been demonstrated by causal evidence, generally obtained through high-

quality outcome evaluations,” and notes that “causal evidence depends on the use of scientific methods to

rule out, to the extent possible, alternative explanations for the documented change.”
2

National research

clearinghouses are great resources for systematic literature reviews of effective public programs across a

plethora of areas, such as:

• the U.S. Department of Education’s What Works Clearinghouse,

• the U.S. Department of Justice’s CrimeSolutions.gov,

• Blueprints for Healthy Youth Development,

• the …

Introduction to
Criminal Justice

Section 2.2: Politics in Criminal Justice

Prepared by Adam J. McKee

Defining Politics
Politics is the art and science of running a government and guiding
governmental policy .

The nature of politics in America is conflict and debate about policy, and
criminal justice policy falls into that arena .

The American political system and the criminal justice system involve actions
of the President, Congers, courts, bureaucracies, interest groups, elections,
and the media .

2

Local Politics
These groups are mirrored on the state level and to some degree on the local
level.

The actions of elected officials have a direct impact on the system, and the
policies they implement directly affect how justice is done .

3

The Politics of Selecting Decision Ma
In a democratic republic, one of two ways selects criminal justice decision
makers : They either are elected by the public, or are appointed by a public
official (often an elected one).

Elected mayors, for example, often appoint chiefs of police .

The President of the United States (an elected official) appoints Supreme
Court justices with the confirmation of the U.S. Senate (a body of elected
officials) .

Both methods are highly political and cannot be understood without
understanding something of the political process . 4

The Politics of Lawmaking
Although the federal legal system and that of most states rely on the old
common law for their historical foundations, criminal law is mostly a matter of
statute these days.

That is, criminal laws are made by legislative assemblies that decide which
acts are prohibited, and what punishments are appropriate for those that
commit those acts in violation of the law .

5

The “Get Tough” Era
Obviously, politics influences the laws that assemblies pass.

Today the nation finds itself at the conclusion of what has been a “get tough”
era of criminal justice . Ushered in by the “crack epidemic” of the early 1980s,
this has been a period of harsher punishments, longer prison sentences, less
therapeutic programs, and skyrocketing corrections budgets .

6

The Political Pendulum
The pendulum seems to have reached the far right, and now may be swinging
back toward the middle .

Many states have begun concentrated efforts at finding alternatives to
incarceration, and the federal government is considering early release for
drug offenders sentenced under the “get tough” drug laws of the previous two
decades.

7

The Politics of Policing
Most police departments try to distance themselves from the vicissitudes of
politics as much as possible .

To be effective, law enforcement must be seen as fair and impartial, serving
all of the community without favoritism or political patronage .

The political climate of a community can have a huge impact on the police
department .

Elected officials appoint police administrators, and can often fire them just
as easily.

8

Local Politics and Policing
The style of law enforcement, formal departmental policy, and informal norms
can all be heavily influenced by local politics .

The structure of local government can have an impact on how police services
are delivered .

Professional city managers, for example, are less likely to get involved in
police affairs than are mayors and city council members .

9

The Politics of Prosecution
While police departments are often somewhat shielded from politics and
influenced by it indirectly, prosecutors in most jurisdictions are elected
officials and thus highly political .

At the federal level, an essentially political process appoints U.S. attorneys .

The career paths of these federal lawyers tend to be linked to one particular
political party or the other .

10

Politically Motivated Prosecutions
It is common to see prosecutors at both the state and federal level using their
tenure as prosecutors to launch political careers .

This fact gives rise to the unethical possibility of political prosecutions against
political enemies .

In fact, many at the time stated that this was the sort of thing that was
happening with the impeachment proceedings launched against then –
President Bill Clinton .

11

The Politics of the Judiciary
There is a tendency among academic writers to view the judiciary as
somehow above partisan politics .

In the modern American reality, this is a pleasant fiction .

Judges at all levels of government are either elected or appointed, and this
fact makes them political creatures .

Elected judges fear public reactions to issues with political foundations, such
as appearing “soft on crime” or being in favor of the death penalty, or for it,
depending on the political climate in the judge’s jurisdiction .

12

The Impact of Ideology
Those political affiliations and beliefs necessarily inform judges’ decisions .

Conservative courts tend to side with law and order, willing to sacrifice some
civil liberties to maintain law and order .

Liberal judges tend to take the opposite, ruling in favor of civil liberties at the
expense of (in the minds of the opposition) public safety .

13

Judicial Decisions Are Political
It has been said that the real job of appellate courts is balancing the civil rights
of the people with the desire of the people to be safe from crime .

Obviously, the political beliefs of the justices making these decisions weighs
heavily in the outcome of important cases.

14

The Politics of Corrections
As with the other elements of the criminal justice systems, corrections is a
highly politicized aspect of government .

At the local level, the operation of jails is tied to the office of sheriff in many
jurisdictions, which ties jail operations to the politics of particular individuals
being elected and reelected as sheriff .

At the state level, departments of corrections are highly political, with
administrators and budgets being politically determined .

15

The Politics of Parole
Another highly political aspect of corrections is the membership and
functioning of parole boards, which is established by appointment of the
governor in most jurisdictions .

If parole boards make release decisions that later reflect badly on the board
members, the bad press will ultimately turn to the governor .

16

The Politicization of Justice
As politics is such an integral part of criminal justice, a high potential for
serious problems generated by politics exists .

Rash decisions can be made, poorly considered policies can be implemented,
and ill -conceived laws can be written that hamper the efficient and ethical
administration of justice .

17

Politics and Emotional Decision Maki
Unscrupulous politicians can easily make appeals to people’s emotions, fears,
and prejudices to improve their own chances at reappointment or reelection .

Sadly, emotionally charged decisions do not tend to be rational decisions .

In the high -stakes world of criminal justice, clear, rational thinking is often
overshadowed by politically charged emotionality .

18

Crime Control versus Due Process
Herbert Packer (1964) outlined two competing models of the value systems
operating within criminal justice today : The crime control model a n d th e
due process model .

Th e s e t wo m o d e ls o f h o w t h e ju s t ice s ys t e m s h o u ld o p e ra t e re fle ct t wo
o p p o s in g s e t s o f p o lit ica l id e o lo gie s t h a t h a ve a m a s s ive im p a ct o n crim in a l
ju s t ice d e cis io n -m a kin g a t a ll le ve ls .

19

Democrat versus Republican?
The divide is not as simple as Democrat or Republican.

Both models represent core values in the American way of life.

After all, every good citizen wants to see crime controlled.

We want to live in safe, orderly communities.

20

But…
As Americans, we also highly value freedom.

We loath the idea of oppressive governments that interfere with our personal
liberties.

We are proud of our rights to be free from government oppression, and we
value our right to privacy.

21

The Crime Control Model
According to Packer,

“The value system that underlies the Crime Control Model is based on the proposition that
the repression of criminal conduct is by far the most important function to be performed by
the criminal process.”

22

The Crime Control Philosophy
There is a definite political philosophy that underlies this assertion:

“The failure of law enforcement to bring criminal conduct under tight control is viewed as
leading to the breakdown of public order and thence to the disappearance of an important
condition of human freedom. If the laws go unenforced, which is to say, if it is perceived
that there is a high percentage of failure to apprehend and convict in the criminal process,
a general disregard for legal controls tends to develop.”

23

Policy Outcomes
Adherents of the Crime Control Model advocate enhancing the powers of the
police to investigate and prosecute criminals .

These necessarily include enhanced powers of search and seizure .

Under this philosophy of criminal justice, the primary focus of the system
should be discovering the truth and establishing the facts .

24

The Due Process Model
The Due Process Model takes a rather opposite view of how the system
should operate .

The key to understanding this position is that it hinges on protecting the civil
rights of every citizen .

Under this philosophy, the most important function of the criminal justice
system is to ensure procedural due process, which mean maintaining
fundamental fairness in all aspects of the criminal justice process .

25

Policy Outcomes
A major policy implication if this view is to limit police powers in order to
prevent the oppression of the individual citizen .

Adherents of this position hold that merely establishing guilt is not adequate ;
the government must show guilt in a fair and legal way that respects the rights
of the accused.

26

A Dynamic Process
In reality, the courts and other elements of the criminal justice system have to
strike a balance of these two positions .

It must be realized that the relative importance of each of these positions is
not static : There is a constant tug of war between the two positions .

27

The Makeup of the Court
As the makeup of America’s high courts change, so too does the underlying
philosophy that dominates the decisions of those courts .

Liberal courts establish broad civil liberties, and conservative courts erode
those liberties in the name of law and order .

28

The Juvenile Justice System
The 1800s saw a revolution in the way Americans controlled juvenile
delinquency.

The movement away from treating juveniles as adults began as early as 1825
when the Society for the Prevention of Juvenile Delinquency began
advocating separate facilities for juvenile offenders.

Privately run juvenile facilities sprang up, and soon generated controversy
over reported abuses.

This criticism led many states to create their own juvenile detention facilities.
29

American Beginnings
Detention facilities were not the only facet of the system that was changing.

Illinois passed the Juvenile Court Act of 1899, which established the America’s
first juvenile court.

30

Parens Patriae
The British policy of parens patriae (t h e go ve rn m e n t a s th e p a re n t ) wa s t h e
ra t io n a le fo r th e s t a t e b e co m in g in vo lve d in th e live s o f ch ild re n d iffe r e n t ly
t h a n it d id wit h a d u lt o ffe n d e rs .

Th e d o ct rin e wa s in te rp r e t e d t o m e a n th a t t h e s t a t e h a d b o t h t h e righ t a n d
t h e o b liga t io n t o in t e r ve n e wh e n n a t u ra l p a re n t s fa ile d to d is cip lin e
a d e q u a t e ly a n d p ro t e ct ch ild re n .

31

The Welfare of the Child
A critical aspect of the developing juvenile justice system was a focus on the
welfare of the child .

Delinquent youths were seen as being in need of the benevolent guidance of
the court .

Rather than merely punishing delinquents for their wrongdoings, juvenile
courts sought to turn delinquents into productive citizens through treatment
rather than the punitive measures used in adult cases.

32

Expansion
By 1910, 32 States had established juvenile courts, and many of those had
established probation services.

By 1925, all but two States had established the foundations of a juvenile
justice system .

33

Introduction to
Criminal Justice

Section 2.3: The Policymaking Role of the
Supreme Court

Prepared by Adam J. McKee

The Supreme Court and Policy
The Supreme Court of the United States has an extremely important
policymaking role, and this has an enormous impact on the criminal justice
system .

The Supreme Court has the power of judicial review.

Th is p o we r wa s firs t e xe r cis e d in th e la n d m a r k ca s e o f Marbury v. Madison ,
d e cid e d in 1803.

Marbury v. Madison (1803)
The Court struck down a statute that it considered “repugnant to the
Constitution .”

This case served as the precedent for judicial review, and the Supreme Court
has exercised the power ever since that time .

Judicial review is th e a u t h o rit y o f t h e Su p re m e Co u r t t o re vie w t h e a ct s o f
Co n gre s s , a n d d e t e rm in e if t h o s e a ct s m e e t t h e s t a n d a rd s s e t fo rt h in t h e
Co n s t it u t io n .

The Due Process Clause
The Due Process Clause has proven very important in the Court’s shaping of
policy through judicial review .

What exactly constitutes due process is extremely vague, and when the Court
decides whether something is required by due process, they are in effect
making policy .

The evolution of police procedure during the Warren Court years is an
enduring example of this policy -making power at work .

Judicial Modesty
In theory, Supreme Court justices should practice what constitutional scholars
have called judicial modesty .

Ju d icia l m o d e s t y r e fe rs t o t h e id e a t h a t ju s t ice s s h o u ld o n ly s t rike d o wn a ct s o f
t h e le gis la tive b ra n ch wh e n th o s e la ws a r e in d ire ct co n flict wit h a
co n s t it u t io n a l p ro vis io n .

Th e re h a s b e e n a h is t o rica l t re n d o f ju d icia l s e lf-re s t r a in t a m o n g a t le a s t s o m e
ju s t ice s .

“Modest” Justices
These justices feel that policy is best left in the hands of the legislative and
executive branches .

Striking down a law merely because a majority of justices disagrees with the
legislature is wrong under this doctrine .

The way our system functions, there is nothing to stop the justices from doing
this .

“Activist” Justices
Other justices take the position that the court should be active in cases of civil
liberties and civil rights .

When it comes to allowing political agendas enter into the judicial decision –
making process, the justices must police themselves .

The Political Lens
Supreme Court justices, in theory, sit in order to interpret the law .

This interpretation is, in reality, filtered through a political lens.

No matter how well meaning these justices may be, their perceptions of what
is right or wrong in the law are impacted by their personal political beliefs .

“Liberal” v. “Conservative”
While there are always individual differences, a common way to divide the
political leanings of the court is to use the terms liberal a n d conservative t o
d e s crib e b o t h in d ivid u a l ju s t ice s , t h e co u rt in ge n e ra l, a n d p a rt icu la r d e cis io n s .

Illu s t ra t io n s o f liberal decisions a re d e cis io n s fa vo rin g crim in a l d e fe n d a n t s ,
p e o p le cla im in g d is crim in a t io n , a n d t h o s e cla im in g vio la t io n s o f civil righ t s .

De cis io n s t h a t a p p e a r t o fa vo rin g p o lice , p ro s e cu t o r s , a n d o t h e r go ve rn m e n ta l
e n t it ie s a re s a id t o b e conservative .

The Recent Court
Currently, the Supreme Court as a distinct cluster of four judges that
consistently vote liberal, and another cluster of four justices who vote
conservative .

Justice Anthony Kennedy sits right in the middle of the political spectrum, and
is the “swing” vote that makes predicting the outcome of Supreme Court
decisions very difficult .

With the vacancy created upon the death of Justice Scalia (a staunch
conservative), the future of the Court is in question .

Individual Differences
Not all liberal justices are equally liberal .

In the 2013 term, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena
Kagan cast liberal votes 70 percent of the time .

While still left leaning, Justice Stephen Breyer is substantially more
conservative than his female counterparts .

Activism v. Restraint
There are two major vantage points from which to regard the work of the
Supreme Court .

The first is that the constitution should be interpreted as it is written .

A second is that the Constitution must be interpreted in the context of
modern life and modern problems .

The is debate has been characterized as one between judicial activism and
judicial restraint .

Judicial Activism
Judicial activism represents the idea that the Court should actively seek to
right wrongs that other branches of government actively promote or will not
do anything about .

The majority of justices on the Warren Court were known as judicial activists .

These justices believed that the court should take an active role in ensuring
the civil rights of all Americans .

Judicial Restraint
Judicial restraint is the idea that the democratic process should direct
changes in policy .

That is, policy should be set by legislative enactments that represent the will of
the people .

Advocates of judicial restraint commonly argue that since Justices are
appointed rather than elected, they are not the proper body to make policy
changes.

Some Caveats
Note that while the Warren court was liberal in its judicial activism, that court’s
example should not lead to the conclusion that activism is always liberal .

The reality is that there will always be a tug of war between a strict
constructionist view of the constitution and the dynamic body of ideas
envisioned by extreme judicial activists .

The reality of an evolving society utilizing evolving technology dictates that the
Constitution be somewhat dynamic .

The Necessity of Change
A literal interpretation of the constitution would indicate that your phone
calls, texts, and emails are all subject to “seizure” by the government without
a warrant .

Those things did not exist when the Fourth Amendment was written, so the
they could not be protected .

The fundamental question that remains is one of striking a balance between
nullifying the democratic process and not allowing the Constitution to
remain relevant over time .

Limits on Judicial Activism
The legal framework that judges work within limits judicial activism to some
extent.

Before a federal court can hear a case, certain conditions must be met.

Under the Constitution, federal courts exercise only judicial powers.

This means that federal judges may interpret the law only through the
resolution of actual legal disputes, referred to in Article III of the Constitution
as “Cases or Controversies.”

Standing
Second, assuming there is an actual case or controversy, the plaintiff in a
federal lawsuit also must have legal standing t o a s k t h e co u rt fo r a d e cis io n .

Th a t m e a n s t h e p la in t iff m u s t h a ve b e e n a ggrie ve d , o r le ga lly h a rm e d in s o m e
wa y, b y t h e d e fe n d a n t .

Th u s , o r ga n iza t io n s s u ch a s t h e Am e rica n Civil Lib e rt ie s Un io n ca n n o t s u e t h e
p o lice d ire ct ly, b u t t h e y ca n fu n d le ga l a s s is t a n ce fo r a p a rt y t h a t a ct u a lly
a lle ge s h a rm d o n e b y t h e p o lice .

Jurisdiction of the Courts
In addition, the case must present a category of dispute that the law in
question was designed to address, and it must be a complaint that the court
has the power to remedy .

That is, the court must be authorized, under the Constitution or a federal law,
to hear the case.

For example, if there is no substantial federal question , th e Su p r e m e Co u r t
ca n n o t re vie w a ca s e o rigin a t in g in s t a t e co u rt s .

Moot Cases
In addition, the case cannot be moot .

A ca s e is moot if it d o e s n o t p re s e n t a n o n go in g p ro b le m fo r t h e co u r t t o
re s o lve .

Th e fe d e ra l co u rt s , t h u s , a r e co u rt s o f lim it e d ju ris d ict io n b e ca u s e t h e y m a y
o n ly d e cid e ce rt a in t yp e s o f ca s e s a s p ro vid e d b y Co n gr e s s o r a s id e n t ifie d in
t h e Co n s t it u t io n .

The Power of the Court
Even with these limits, the policymaking role of the Supreme Court should
not be underestimated .

The rulings of the court are just as consequential as acts of congress and the
executive decisions of the president .

Many times, the ruling of the court is not based merely on a literal reading of
the law .

In many cases, the justices are invoking their own interpretations of what the
law should be, and not what it objectively is.

Introduction to
Criminal Justice

Section 2.4: The Civil Rights Revolution

Prepared by Adam J. McKee

The Political Pendulum
A political pendulum, swinging back and forth from liberal to conservative,
marks the history of the U.S. Supreme Court.

Obviously, conservative courts are courts composed of conservative justices,
usually appointed by conservative presidents.

Liberal courts, on the other hand, are composed of liberal justices, usually
appointed by liberal presidents.

The Warren Court
These courts are often characterized by the name of the chief justice at the
time .

During the 1960s, the pendulum swung to the apex of liberalism when Chief
Justice Earl Warren (1953 – 1969) led it .

The Warren Court adhered to Packer’s Due Process Model, at least after the
judicial activists achieved a majority on the Court with the retirement of Justice
Frankfurter’s retirement in 1962.

This date marks the true beginning of the civil rights revolution .

The Civil Rights Revolution
This liberal court, headed by Warren, emphasized civil rights across the legal
spectrum .

The most enduring changes in criminal justice occurred in their
interpretations of the Fourth Amendment and Fifth Amendments, with many
landmark cases coming down that were designed by the court to shield
citizens from the abuse of police powers .

Rapid Change
Prior to the 1960’s, the Supreme Court rarely interfered in the way that states
ran their own criminal justice systems.

The 1960s was a time of rapid social change, and that change is reflected in
the decisions of the Warren Court.

When the Warren court passed down its decision in Mapp v. Ohio in 1961, t h e
crim in a l ju s t ice s ys t e m in Am e rica wa s ch a n ge d fo re ve r.

The Agenda
Over the remainder of Warren’s tenure as Chief Justice, the court would hand
down many more decisions that would redefine the American legal landscape
in terms of civil liberties .

Mapp v. Ohio
A more conservative Supreme Court, back in 1949, stated that the
exclusionary rule applied only to federal law enforcement officers .

According to the ruling in Wolf v. Colorado (1949), if citize n s h a d a n y p ro t e ct io n
a ga in s t ille ga lly o b t a in e d e vid e n ce b e in g u s e d a ga in s t t h e m in co u rt , it wa s u p
t o s t a t e s u p re m e co u rt s t o in t e rp re t s t a t e co n s t it u t io n s in s u ch a wa y.

Wh e n Mapp o ve r ru le d Wolf, th e exclusionary rule wa s a p p lie d t o a ll la w
e n fo r ce m e n t in t h e Un ite d St a t e s , n o m a tt e r wh a t le ve l o f go ve rn m e n t
e m p lo ye d t h e m .

Chimel
Another landmark decision influencing law enforcement practice passed
down by the Supreme Court was Chimel v. California (1969).

Today, we teach that Chimel established an exception to the warrant
requirement known as a search incident to arrest .

As a n e xce p t io n t o th e s e a r ch wa r ra n t re q u ire m e n t , t h is m a y s e e m like a
ca s e t h a t fit s Pa cke r’s crim e co n t ro l m o d e l.

Th is is b e ca u s e a n e xce p t io n t o th e s e a r ch wa rr a n t re q u ire m e n t is ge n e ra lly
co n s id e re d t o b e n e fit la w e n fo r ce m e n t , a n d is t h u s a vict o r y fo r la w a n d
o rd e r a t t h e e xp e n s e o f a civil righ t.

The Facts of Chimel
The facts of the case paint a different picture.

When the police arrested Chimel in his home for burglary, they searched his
home for stolen coins that were the fruits of his crime.

The coins were found in a garage attached to the house.

The court ruled that while the search was incident to the arrest, the search of
the garage went too far.

The Impact of Chimel
The proper scope of a search incident to arrest was the area in the suspect’s
“immediate control .”

We can see from this that the court limited a common police practice,
effectively doing away with an unwritten arrest exception to the search
warrant requirement of the Fourth Amendment .

Because this was deemed a due process issue by the Supreme Court, that
clause of the Fourteenth Amendment was used to apply the Fourth
Amendment rule to state law enforcement .

Gideon
While the decisions of the Warren court had a weighty impact on many
aspects of American life, the most profound effects on the criminal justice
system were in the area of due process and defendants’ rights.

In Gideon v. Wainwright (1963), t h e co u rt h e ld t h a t in d ige n t d e fe n d a n t s fa cin g
ja il t im e h a d t h e righ t t o a p p o in t e d co u n s e l if t h e y co u ld n o t a ffo rd t h e ir o wn
la wye r.

Miranda
In Miranda v. Arizona (1966), t h e Wa rre n Co u rt ru le d t h a t p o lice m u s t in fo rm
s u s p e ct s o f ce rt a in righ t s p rio r t o a cu s t o d ia l in t e rro ga t io n .

Du e t o p o p u la r cu ltu re , m o s t e ve r y Am e rica n kn o ws t h e s t a t e m e n t t h a t is
re a d t o s u s p e ct s b y t h e p o lice :

“You have the right to remain silent. Anything you say can and will be used against you in
a court of law. You have the right to have an attorney present during questioning. If you
cannot afford an attorney, one will be appointed for you by the state.”

Terry
Not every case decided by the Warren Court served to benefit criminal
defendants .

In Terry v. Ohio (1968), fo r e xa m p le , t h e Co u rt ru le d t h a t t h e p o lice co u ld
s e a rch s u s p e ct s fo r we a p o n s wit h le s s t h a n p ro b a b le ca u s e .

The Pendulum Swings Back
The pendulum began to swing the other way in the 1970s.

This swing occurred because the composition of the court began to change .

As liberal justices retired from the court, Republican presidents such as Nixon,
Reagan, and Bush replaced them .

By the end of the first Bush administration, the court had transitioned from
the very liberal Warren Court to a much more conservative body .

The Conservative Courts
These conservative courts hammered out many exceptions to the blanket
protections created by the Warren Court .

This has created an increasingly broad scope of lawful investigative activity for
law enforcement .

This shift from the Due Process Model to the Crime Control Model did not
take place only within the courts .

It took place in the executive and the legislative branches as well .

The Burger Court
The Burger Court (1969 – 1986) was far more conservative than the Warren
Court, but there was no conservative majority .

One of the most controversial cases decided by the Burger Court was Furman
v. Georgia (1972), wh ich a b o lis h e d t h e d e a t h p e n a lty a s it wa s e n a ct e d a t th e
t im e .

Th is wa s n o t in ke e p in g wit h th e co n s e rva t ive e xp e ct a t io n s o f t h e Bu r ge r
Co u rt b e ca u s e Wa rre n Bu rge r wa s a co n s e rva t ive a p p o in t e d b y Pr e s id e n t
Rich a rd Nixo n .

Slowing Change
Conservatives hoped that a court led by Burger would be far more
conservative, even to the point of overruling the more liberal of the Warren
Court’s rulings –This was not to happen .

The court may have chipped away at the major Warren Court doctrines, but it
declined to overturn them .

The chief justice may have been conservative when Furman was handed
down, but the remnants of the Warren Court still sitting on the bench kept the
court liberal, at least to a degree, in its majority decisions .

Gregg
Because the composition of the court had shifted, some conservative
decisions were handed down.

Burger voted with the majority of the court in 1976 to reinstate the death
penalty in Gregg v. Georgia(1976).

Chipping Away at Warren
The Rehnquist Court (1986 – 2005) was far more conservative than the
Burger Court.

These conservative courts, perhaps out of concern for the time -honored
tradition of cohesion and unity of the Supreme Court, did not overrule many
of the liberal decisions of the Warren Court.

Rather, they “chipped away” at them by creating scores of exclusions.

That is, things like the exclusionary rule still existed as a matter of law, but
there would be many exceptions that were created during the Reagan -Bush
years.

Justice Rehnquist
Rehnquist was a strong believer …

Introduction to
Criminal Justice

Section 3.1: Sources of Criminal Law

Prepared by Adam J. McKee

Clearing Up Some Confusion
The term criminal law ca n b e co n fu s in g.

Th is is b e ca u s e s o m e s o u rce s u s e it in a ve r y ge n e ra l wa y t o d e s crib e t h e
e n t ire s p e ct r u m o f la ws d e a lin g wit h th e crim in a l ju s t ice s ys t e m ; o th e r s u s e it
a s a s h o rt h a n d wa y o f re fe r rin g t o wh a t is a ls o kn o wn a s t h e substantive
criminal law .

2

How the Text Does It
The text follows the latter approach by using the heading criminal law to refer
to the substantive criminal law , wh ich is t h e p a rt o f th e la w t h a t d e s crib e s
wh a t a ct s a re p ro h ib it e d a n d wh a t p u n is h m e n t s a re a s s o cia t e d wit h th o s e
a ct s .

Als o in clu d e d a re legal defenses (s u ch a s t h e in s a n ity d e fe n s e ) t h a t a p p ly in
crim in a l ca s e s .

3

Felonies and Misdemeanors
This distinction depend largely on the seriousness of the offense and the type
of punishment associated with the offense .

Things like petty thefts, simple assault, disorderly conduct, and public
drunkenness are relatively nonserious crimes classified as misdemeanors .

Mis d e m e a n o r s a r e u s u a lly o n ly p u n is h a b le b y fin e a n d im p ris o n m e n t in a
lo ca l ja il fo r a p e rio d le s s t h a n a ye a r.

4

Felonies
Felonies are serious crimes (e.g., rape, murder, burglary, kidnapping) where
the punishment can be death or a long period (at least a year) of incarceration
in a state -run prison .

Note that this distinction depends on the sentence ; some convicts go to prison
for less than a year because of early release programs such as “good time”
and parole .

5

Illegal v. Evil
There is also a distinction between types of criminal law based in the
inherent evil of the act.

If the act is “wrong in itself,” it is considered a mala in se o ffe n s e .

If a n a ct is n o t n e ce s s a rily e vil a n d is o n ly co n s id e r e d crim in a l b e ca u s e it is
p ro h ib it e d b y t h e go ve rn m e n t , it is co n s id e re d a mala prohibita o ffe n s e .

Mo s t s o -ca lle d “vict im le s s crim e s ” a re m a la p ro h ib it a o ffe n s e s .

Be ca u s e p e o p le ‘s vie ws va r y s o wid e ly a s t o t h e in h e r e n t wro n gn e s s o f a n
a ct , t h e re is n o a b s o lu t e s t a n d a rd fo r cla s s ifica t io n .

6

“Visible Crime”
Criminal acts that are highly visible to the public are often referred to as
visible crime , ordinary crime , o r street crime .

Th e o ve rt n a tu re o f s u ch cr im e s m a ke s n o t ice b y p o lice m o r e like ly, a n d t h u s
p ro s e cu t io n m o re like ly.

Mu rd e r is a co m m o n e xa m p le : Mo s t m u rd e r s co m e t o t h e a t t e n t io n o f t h e
p o lice , a n d p ro s e cu t io n is m o re like ly t h a n fo r m o s t o t h e r o ffe n s e s .

7

Occupational Crimes
Occupational crimes are less obvious.

These are crimes that a particular job provides the criminal opportunity.

The most common example is embezzlement .

8

Organized Crime
Crimes committed by groups with a discernable organization structure are
classified as organized crime .

Organized crime is considered especially heinous because groups can cause
more criminal damage, and the groups make for more difficult investigations
and prosecutions .

9

Cybercrime
A large swath of criminal offenses involving computers and related
technologies are collectively known as cybercrime.

Cybercrime in vo lve s d is p a ra t e a ct s s u ch a s d is t rib u tin g ch ild p o rn o gra p h y,
s e n d in g o u t m a s s e m a ils in a n a t t e m p t t o o b t a in id e n tifyin g in fo rm a t io n
(p h is h in g), d is t rib u tin g viru s e s d e s ign e d t o d a m a ge co m p u te r s ys t e m s ,
h a ckin g in t o b u s in e s s co m p u t e rs t o s t e a l m o n e y, a n d s o fo rt h .

10

Hate Crimes
Crimes that are motivated by bias toward a particular race, religion, ethnicity,
or sexuality are known as hate crimes .

11

Civil Law
At civil law, a wrong done to another person is called a tort .

Wh e n a h a rm e d in d ivid u a l (t h e p la in t iff) win s a t o rt ca s e in civil co u rt , t h e y
m a y a ls o win a m o n e y a wa rd re fe rre d t o a s damages .

In o t h e r wo rd s , t o rt s a re p riva t e wro n gs .

12

Criminal Law Theory
A criminal prosecution operates under a different legal theory .

A crime, the theory holds, may harm the individual, but it also harms all of
society .

Since the people are represented by the state, all criminal prosecutions are
brought forward in the name of the state .

13

Who Brings Criminal Charges?
What the “state” calls itself can vary from state to state ; some prosecutions are
done in the name of the people, and some are done in the name of the
“commonwealth .”

Regardless of how the case is named, a prosecutor working for the
government on behalf of society brings it forward .

14

Criminal and Civil Interaction
It is important to note that the criminal system and the civil system sometimes
interact .

A person can be found guilty of a crime in criminal court, and found liable for
a tort for the exact same behavior .

In addition, individuals that have suffered losses due to criminal actions can
sometimes use the civil courts to recoup their losses.

15

A Matter of Statute
While the United States is a common law country, most criminal laws are a
matter of statutes today .

An essential difference between a state criminal statute and a federal criminal
statute is that federal laws will usually contain a jurisdictional element .

16

Federal Crimes
Because of the constitutional limits placed on the authority of Congress to
make criminal laws, federal criminal statutes must be tailored to a particular
power delegated to Congress, such as the power to regulate interstate
commerce .

Most criminal laws exist on the state level because of this limitation .

17

Overlapping Jurisdiction
When a particular act is criminal on both the state and federal level, there is
overlapping jurisdiction in the case.

As a matter of constitutional law, the person could be prosecuted on both
the state and federal level.

In practice, this rarely happens .

In a few high -profile cases, federal prosecutors have taken up a case when
the public widely perceived that justice was not done in state courts (e.g., the
Rodney King police brutality case).

18

The Common Law
The term common law ca n b e d is t u rb in gly va gu e fo r t h e s t u d e n t .

Th a t is b e ca u s e d iffe re n t s o u rce s u s e it in s e ve ra l d iffe re n t wa ys wit h s u b t le
d iffe re n ce s in m e a n in g.

Th e b e s t wa y t o ge t a gra s p o n th e t e r m ’s m e a n in g is to u n d e r s t a n d a lit t le o f
t h e h is t o ry o f t h e Am e rica n le ga l s ys t e m .

Co m m o n la w, wh ich s o m e s o u rce s r e fe r t o a s “ju d ge -m a d e ” la w, firs t
a p p e a r e d wh e n ju d ge s d e cid e d ca s e s b a s e d o n t h e le ga l cu s t o m s o f
m e d ie va l En gla n d a t t h e t im e .

19

An Oral Tradition
It may be hard for us to imagine today, but in the early days of English
common law, the law was a matter of oral tradition.

That is, the definitions of crimes and associated punishments were not written
down in a way that gave them binding authority.

20

Reporters
By the end of the medieval period, some of these cases were recorded in
written form .

Over a period, imported judicial decisions became recorded on a regular basis
and collected into books called reporters .

21

Blackstone’s Commentaries
The English-speaking world is forever indebted to Sir William Blackstone, an
English legal scholar, for collecting much of the common law tradition of
England and committing it to paper in an organized way.

His four -volume set, Commentaries on the Laws of England , wa s ta ke n to t h e
co lo n ie s b y t h e fo u n d in g fa t h e rs .

Th e fo u n d in g fa th e r s in co r p o ra t e d t h e co m m o n la w o f En gla n d in to t h e la ws
o f t h e Co lo n ie s , a n d u lt im a t e ly in t o t h e la ws o f t h e Un it e d St a t e s .

22

The Modern Link to Common Law
In modern America, most crimes are defined by statute.

These statutory definitions use ideas and terms that come from the common
law tradition.

When judges take on the task of interpreting a statute, they still use common
law principles for guidance.

The definitions of many crimes, such as murder and arson, have not
deviated much from their common law origin.

Other crimes, such as rape, have seen sweeping changes.
23

The Doctrine of Precedent
One of the primary characteristics of the common law tradition is the
importance of precedent .

Known by the legal Latin phrase stare decisis , th e d o ct rin e o f p re ce d e n ce
m e a n s t h a t o n ce a co u r t m a ke s a d e cis io n o n a p a rt icu la r m a t t e r, t h e y a re
b o u n d t o ru le t h e s a m e wa y in fu t u re ca s e s t h a t h a ve t h e s a m e le ga l is s u e .

Th is is im p o rt a n t b e ca u s e a co n s is t e n t ru lin g in id e n t ica l fa ct u a l s it u a tio n s
m e a n s t h a t e ve ryo n e ge t s t h e s a m e t re a t m e n t b y t h e co u rt s .

Th e d o ct rin e o f stare decisis e n s u re s e q u a l t re a t m e n t u n d e r t h e la w.

24

Constitutions
When the founding fathers signed the Constitution, they all agreed that it
would be the supreme law of the land ; the Framers stated this profoundly
important agreement in Article VI.

Aft e r t h e la n d m a rk ca s e o f Marbury v. Madison (1803), t h e Su p re m e Co u rt
h a s h a d t h e p o we r t o s t rike d o wn a n y la w o r a n y go ve rn m e n t a ct io n th a t
vio la t e s co n s t it u t io n a l p rin cip le s .

Th is p re ce d e n t m e a n s t h a t a n y la w m a d e b y t h e Co n gr e s s o f t h e Un ite d
St a t e s o r t h e le gis la t ive a s s e m b ly o f a n y s t a t e t h a t d o e s n o t m e e t
co n s t it u t io n a l s t a n d a rd s is s u b je ct t o n u llifica t io n b y t h e Su p re m e Co u rt o f
t h e Un it e d St a t e s . 25

State Constitutions
Every state adopted this idea of constitutional supremacy when creating their
constitutions .

All state laws are subject to review by the high courts of those states .

If a state law or government practice (e.g., police, courts, or corrections)
violates the constitutional law of that state, then it will be struck down by that
state’s high court .

Local laws are subject to similar scrutiny .

26

Statutes
Statutes are written laws passed by legislative assemblies .

Modern criminal laws tend to be a matter of statutory law .

In other words, most states and the federal government have moved away
from the common -law definitions of crimes and established their own
versions through the legislative process .

Thus, most of the criminal law today is made by state legislatures, with the
federal criminal law being made by Congress.

27

Codification
Legislative assemblies tend to consider legislation as it is presented, not in
subject order.

This chronological ordering makes finding the law concerning a particular
matter very difficult.

To simplify finding the law, most all statutes are organized by subject in a set
of books called a code.

Th e b o d y o f s t a t u t e s t h a t co m p ris e s t h e crim in a l la w is o ft e n re fe rre d t o a s
t h e crim in a l co d e , o r le s s co m m o n ly a s t h e penal code .

28

Administrative Law
The clear distinction between the executive, legislative, and judicial branches
of government becomes blurry when U.S. governmental agencies and
commissions are considered .

These types of bureaucratic organizations can be referred to as semi –
legislative and semi -judicial in character .

These organizations have the power to make rules that have the force of law,
the power to investigation violations of those laws, and the power to impose
sanctions on those deemed to be in violation .

29

Who Makes these “Laws?”
Examples of such agencies are the Federal Trade Commission (FTC), the
Internal Revenue Service (IRS), and the Environmental Protection Agency
(EPA).

When these agencies make rules that have the force of law, the rules are
collectively referred to as administrative law .

30

Case Law
When the appellate courts decide a legal issue, the doctrine of precedence
means that future cases must follow that decision .

This means that the holding in an appellate court case has the force of law:
Such laws are often referred to as case law .

The entire criminal justice community depends on the appellate courts,
especially the Supreme Court, to evaluate and clarify both statutory laws and
government practices against the requirements of the Constitution .

These legal rules are all set down in court cases.
31

Introduction to
Criminal Justice

Section 3.2: Substantive Criminal Law

Prepared by Adam J. McKee

Defining Criminal Law
The criminal law in its broadest sense encompasses both the substantive
criminal law and criminal procedure .

In a more limited sense, the term criminal law is used to denote the
substantive criminal law, and criminal procedure is considered another
category of law.

Most college criminal justice programs organize classes this way.

2

Substantive Criminal Law
Recall that the substantive law defines criminal acts that the legislature wishes
to prohibit and specifies penalties for those that commit the prohibited acts.

For example, murder is a substantive law because it prohibits the killing of
another human being without justification.

3

No Crime Without Law
It is fundamental to the American way of life that there can be no crime
without law. This concept defines the idea of the Rule of Law.

The rule of law is the principle that the law should govern a nation, not an
individual.

The importance of the rule of law in America stems from the colonial
experience with the English monarchy.

It follows that, in America, no one is above the law.

4

Constitutional Limits
Unlike the governments of other countries, the legislative assemblies of the
United States do not have unlimited power.

The power of Congress to enact criminal laws is circumscribed by the
Constitution.

These limits apply to state legislatures as well.

5

Bills of Attainder and Ex Post Facto L
A bill of attainder is an enactment by a legislature that declares a person (or
a group of people) guilty of a crime and subject to punishment for
committing that crime without the benefit of a trial.

An ex post facto law is a law that makes an act done before the legislature
enacted the law criminal and punishes that act.

The prohibition also forbids the legislature from making the penalty for a
crime more severe retroactively.

Both of these types of laws are strictly prohibited by the Constitution.
6

Fair Notice and Vagueness
The due process clauses of the Fifth and Fourteenth Amendments mandate
that the criminal law afford fair notice.

The idea of fair notice is that people must be able to determine exactly what is
prohibited by the law, so vague and ambiguous laws are prohibited.

If a law is determined to be unclear by the Supreme Court, it will be struck
down and declared void for vagueness .

Such laws would allow for arbitrary and discriminatory enforcement if allowed
to stand.

7

The First Amendment
The First Amendment to the United States Constitution guarantees all Americans the
“freedom of expression.”

Among these “expressions” are the freedom of religion and the freedom of speech.

In general, Americans can say pretty much whatever they like without fear of
punishment.

8

The First Amendment and Criminal La
Any criminal law passed by the legislature that infringes on these rights would not
withstand constitutional scrutiny.

There are, however, some exceptions.

9

Clear and Present Danger
When the health and safety of the public are at issue, the government can
curtail the freedom of speech.

One of the most commonly cited limiting principles is what has been called
the clear and present danger test .

This test, established by the Supreme Court in Schenck v. United States (1919),
prohibits inherently dangerous speech, such as falsely shouting “fire!” in a
crowded theater.

10

Fighting Words
Another prohibited type of speech has been referred to as fighting words .

This means that the First Amendment does not protect speech calculated to
incite a violent reaction.

11

Other Unprotected Speech
Other types of unprotected speech include hate speech, profanity, libelous
utterances, and obscenity.

These latter types of speech are very difficult to regulate by law because they
are very hard to define and place limits on.

The current trend has been to protect more speech that would have once
been considered obscene or profane.

12

Freedom of Religion
The freedom to worship as one sees fit is also enshrined in the Constitution.

Appellate courts will strike down statutes that are designed to restrict this
freedom of religion .

The high court has protected door -to -door solicitations by religious groups
and even ritualistic animal sacrifices.

13

Limits on Religious Freedom
The Court, however, has not upheld all claims based on the free exercise of
religion.

Statutes criminalizing such things as snake handling, polygamy, and the use of
hallucinogenic drugs have all been upheld.

14

The Freedom of Assembly
The First Amendment protects the right of the people to assemble publicly,
but it is not absolute.

The courts have upheld restrictions on the time, place, and manner of public
assemblies, so long as those restrictions were deemed reasonable.

The reasonableness of such restrictions usually hinges on a compelling state
interest .

The freedom of assembly does not protect conduct that jeopardizes the public
health and safety.

15

The Second Amendment
The constitutionally guaranteed “right to keep and bear arms” in the Second
Amendment is by no means absolute has been the source of much litigation
and political debate in recent years.

The Supreme Court has established that the second Amendment confers a
right to the carrying of a firearm for self -defense, and that right is applicable
via the Fourteenth Amendment to the states.

16

Restrictions on the Second Amendme
Typical restrictions include background checks and waiting periods.

Some jurisdictions highly regulate the concealing, carrying, and purchase of
firearms, and many limit the type of firearms that can be purchased.

Many criminal laws have enhanced penalties when they are committed with
firearms.

Most gun laws and concealed carry laws vary widely from jurisdiction to
jurisdiction.

17

Eighth Amendment
The Eighth Amendment to the United States Constitution prohibits the
imposition of Cruel and Unusual Punishments.

Both the terms cruel and unusual do not mean what they mean in everyday
usage; they are both legal terms of art.

The Supreme Court has incorporated the doctrine of proportionality into the
Eighth Amendment.

18

Doctrine of Proportionality
Proportionality means that the punishment should fit the crime, or at least
should not be grossly disproportionate to the offense.

The idea of proportionality has appeared in cases that considered the grading
of offenses, the validity of lengthy prison sentences, and whether the
imposition of the death penalty is constitutional.

The legal controversies of three strikes laws and the death penalty will be
discussed at greater length in a later section.

19

The Right to Privacy
Most American’s view the right to privacy as a fundamental human right.

It is shocking, then, to find that the Constitution never expressly mentions a
right to privacy.

The Supreme Court agrees that such a right is fundamental to due process
and has established the right as being inferred from several other guaranteed
rights.

Among these are the right of free association, the prohibition against
quartering soldiers in private homes, and the prohibition against
unreasonable searches and seizures.

20

The Right to Privacy and Criminal Law
The right to privacy has been used to protect many controversial practices
that were (at least at the time) socially unacceptable to large groups of people.

Early courts decided that laws prohibiting single people from purchasing
contraceptives were unconstitutional based on privacy rights arguments.

21

Case Law
The right to an abortion established in Roe v. Wade (1973) h in ge d p rim a rily
o n a p riva cy righ t s a rgu m e n t .

Mo re re ce n t ly, in Lawrence v. Texas (2003), t h e co u rt ru le d t h a t la ws
p ro h ib it in g p riva t e h o m o s e xu a l s e xu a l a ct ivit y we re u n co n s t it u t io n a l.

In t h e Lawrence ca s e , p riva cy righ t s we re t h e d e cid in g fa ct o r.

22

Introduction to
Criminal Justice

Section 3.3: Elements of Crimes

Prepared by Adam J. McKee

The Importance of Elements of Crime
The legal definitions of all crimes contain certain elements .

If the government cannot prove the existence of these elements, it cannot
obtain a conviction in a court of law.

Other elements are not part of all crimes, but are only found in crimes that
prohibit a particular harm .

2

Distinguishes Between Offenses
Often, a difference in one particular element of a crime can distinguish it from
another related offense, or a particular degree of the same offense.

At common law, for example, manslaughter was distinguished from murder
by the mental element of malice aforethought .

3

The Actus Reus

Nobody can read minds, and the First Amendment means that people can
say pretty much whatever they want.

What you think and say (within limits) is protected. It is what you do —your
behaviors —that the criminal law seeks to regulate.

Lawyers use the legal Latin phrase actus reus t o d e s crib e t h is e le m e n t o f a
crim e .

4

“Act” is a verb!
It is commonly translated into English as the guilty act.

The term act ca n b e a b it co n fu s in g.

Mo s t p e o p le t e n d t o t h in k o f t h e t e rm a ct a s a n a ct io n ve rb —it is s o m e t h in g
t h a t p e o p le d o .

Th e crim in a l la w o ft e n s e e ks t o p u n is h p e o p le fo r t h in gs t h a t t h e y d id n o t d o .

Wh e n t h e la w co m m a n d s p e o p le t o t a ke a p a rt icu la r a ct io n a n d t h e y d o n o t
t a ke t h e co m m a n d e d a ct io n , it is kn o wn a s a n o m is s io n .

5

Threats and Attempts
Threatening to act or attempting an act can also be the actus reus e le m e n t o f
a n o ffe n s e .

6

Possession
In addition to acts and omissions, possession of something can be a criminal
offense.

The possession of certain weapons, illicit drugs, burglary tools, and so forth
are all guilty acts as far as the criminal law is concerned.

7

Types of Possession
Actual possession is the legal idea that most closely coincides with the
everyday use of the term.

Actual possession refers to a person having physical control or custody of an
object.

In addition to actual possession, there is the idea of constructive possession .

Constructive possession is the legal idea that the person had knowledge of
the object, as well as the ability to exercise control over it.

8

Criminal Intent
A fundamental principle of law is that to be convicted of a crime, there must
be a guilty act (the actus reus) and a culpable mental state .

Recall that culpability means blameworthiness.

In other words, there are literally hundreds of legal terms that describe
mental states that are worthy of blame.

The most common is intent .

9

The Model Penal Code
The Model Penal Code boils all of these different terms into four basic
culpable mental states:

1. purposely
2. knowingly
3. recklessly
4. negligently

10

Purposely
According to the Model Penal Code, a person acts purposely when “it is his
conscious object to engage in conduct of that nature….”

11

Knowingly
A person acts knowingly if “he is aware that it is practically certain that his
conduct will cause such a result.”

In other words, the prohibited result was not the actor’s purpose, but he knew
it would happen.

12

Recklessly
A person acts recklessly if “he consciously disregards a substantial and
unjustifiable risk.”

Further, “The risk must be of such a nature and degree that, considering the
nature and purpose of the actor’s conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of conduct that
a law-abiding person would observe in the actor’s situation.”

13

Negligently
A person acts negligently when “he should be aware of a substantial and
unjustifiable risk that the material element exists or will result from his
conduct.”

The idea is that a reasonably carefully person would have seen the danger,
but the actor did not.

14

Strict Liability
At times, the legislature will purposely exclude the mens rea e le m e n t fro m a
crim in a l o ffe n s e .

Th is le a ve s o n ly t h e gu ilt y a ct t o d e fin e t h e crim e .

Crim e s wit h n o cu lp a b le m e n t a l s t a t e a re kn o wn a s s t rict lia b ilit y o ffe n s e s .

Mo s t o f t h e t im e , s u ch crim e s a re m e re vio la t io n s s u ch a s s p e e d in g.

An o ffice r d o e s n o t h a ve t o give e vid e n ce t h a t yo u we re s p e e d in g p u rp o s e ly,
ju s t t h a t yo u we re s p e e d in g.

15

Strict Liability and Seriousness
If violations such as this had a mental element, it would put an undue burden
on law enforcement and the lower courts.

There are a few instances where serious felony crimes are strict liability, such
as the statutory rape laws of many states.

16

Concurrence
For an act to be a crime, the act must be brought on by the criminal intent.

In most cases, concurrence is obvious and does not enter into the legal
arguments.

17

Concurrence Example
An individual who breaks into a cabin in the woods to escape the deadly cold
outside.

After entering, the person decides to steal the owner’s property.

This would not be a burglary (at common law) since burglary requires a
breaking and entering with the intent to commit a felony therein.

Upon entry, the intent was to escape the cold, not to steal.

Thus, there was no concurrence between the guilty mind and the guilty act.

18

Criminal Harm and Causation
In criminal law, causation refers to the relationship between a person’s
behavior and a negative outcome.

Some crimes, such as murder, require a prohibited outcome.

There is no murder if no one has died (although there may be an attempt).

In crimes that require such a prohibited harm , the actus reus must have
caused that harm.

19

Introduction to
Criminal Justice

Section 3.4: Legal Defenses

Prepared by Adam J. McKee

The Role of Defenses in Court
To successfully obtain a conviction, the prosecutor must show all of the
elements of the crime beyond a reasonable doubt in criminal court.

This is not the end of it in some cases.

It must also be shown (if the issue is raised) that the actus reus a n d t h e mens
rea wa s p re s e n t , b u t a ls o t h a t t h e d e fe n d a n t co m m it t e d t h e a ct wit h o u t
ju s t ifica t io n o r e xcu s e .

2

Types of Legal Defenses
Both justifications and excuses are types of legal defenses.

If a legal defense is successful, it will either mitigate or eliminate guilt.

3

Justifications
A justification consists of a permissible reason for committing an act that
would otherwise be a crime.

For example, it would be a crime to shoot a man dead on the street.

If, however, the man was a mugger and had the shooter at knifepoint, then
the justification of self -defense could be raised.

A justification means that an act would normally be wrong, but under the
circumstances it was the right thing to do.

4

Excuse
When a criminal defendant uses an excuse, the act was not the right thing to
do, but society should nevertheless hold the actor less culpable because of
some extenuating circumstance.

5

Insanity
The term insanity comes from the law; psychology and medicine do not use it.

The everyday use of the term can be misleading.

If a person acts abnormally, they tend to be considered by many as “crazy” or
“insane.”

6

Not All Mental Diseases Qualify
At law, merely having a mental disease or mental defect is not adequate to
mitigate guilt.

It must be remembered that Jeffery Dahmer was determined to be legally
sane, even though everyone who knows the details of his horrible acts knows
that he was seriously mentally ill.

7

Legal Requirements
To use insanity as a legal excuse, the defendant has to show that he or she
lacked

1. the capacity to understand that the …

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The Justice System

What is the sequence of events in the criminal
justice system? 
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The flowchart of the events in the criminal justice system (shown in the diagram) updates the
original chart prepared by the President’s Commission on Law Enforcement and the
Administration of Justice in 1967. The chart summarizes the most common events in the
criminal and juvenile justice systems including entry into the criminal justice system,
prosecution and pretrial services, adjudication, sentencing and sanctions, and corrections. A
discussion of the events in the criminal justice system follows.

Contents 

The response to crime
Entry into the system

Prosecution and pretrial
services

Adjudication

Sentencing and sanctions

Corrections
 

Recidivism

The juvenile justice system

The structure of the justice system

Discretion is exercised throughout the criminal justice
system

 

The response to crime 
The private sector initiates the response to crime

This first response may come from individuals, families, neighborhood associations, business,
industry, agriculture, educational institutions, the news media, or any other private service to
the public.

It involves crime prevention as well as participation in the criminal justice process once a
crime has been committed. Private crime prevention is more than providing private security or
burglar alarms or participating in neighborhood watch. It also includes a commitment to stop
criminal behavior by not engaging in it or condoning it when it is committed by others.

Citizens take part directly in the criminal justice process by reporting crime to the police, by
being a reliable participant (for example, a witness or a juror) in a criminal proceeding and by
accepting the disposition of the system as just or reasonable. As voters and taxpayers,
citizens also participate in criminal justice through the policymaking process that affects how
the criminal justice process operates, the resources available to it, and its goals and
objectives. At every stage of the process from the original formulation of objectives to the
decision about where to locate jails and prisons to the reintegration of inmates into society,
the private sector has a role to play. Without such involvement, the criminal justice process
cannot serve the citizens it is intended to protect.

The response to crime and public safety involves many agencies and services

Many of the services needed to prevent crime and make neighborhoods safe are supplied by
noncriminal justice agencies, including agencies with primary concern for public health,
education, welfare, public works, and housing. Individual citizens as well as public and private
sector organizations have joined with criminal justice agencies to prevent crime and make
neighborhoods safe.

Criminal cases are brought by the government through the criminal justice system

We apprehend, try, and punish offenders by means of a loose confederation of agencies at all
levels of government. Our American system of justice has evolved from the English common
law into a complex series of procedures and decisions. Founded on the concept that crimes
against an individual are crimes against the State, our justice system prosecutes individuals
as though they victimized all of society. However, crime victims are involved throughout the
process and many justice agencies have programs which focus on helping victims.

There is no single criminal justice system in this country. We have many similar systems that
are individually unique. Criminal cases may be handled differently in different jurisdictions, but
court decisions based on the due process guarantees of the U.S. Constitution require that
specific steps be taken in the administration of criminal justice so that the individual will be
protected from undue intervention from the State.

The description of the criminal and juvenile justice systems that follows portrays the most
common sequence of events in response to serious criminal behavior.

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Law Enforcement Entry into the system

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The justice system does not respond to most crime because so much crime is not discovered
or reported to the police. Law enforcement agencies learn about crime from the reports of
victims or other citizens, from discovery by a police officer in the field, from informants, or
from investigative and intelligence work.

Once a law enforcement agency has established that a crime has been committed, a suspect
must be identified and apprehended for the case to proceed through the system. Sometimes,
a suspect is apprehended at the scene; however, identification of a suspect sometimes
requires an extensive investigation. Often, no one is identified or apprehended. In some
instances, a suspect is arrested and later the police determine that no crime was committed
and the suspect is released.

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Prosecution

Pretrial release and detention Prosecution and pretrial services

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After an arrest, law enforcement agencies present information about the case and about the
accused to the prosecutor, who will decide if formal charges will be filed with the court. If no
charges are filed, the accused must be released. The prosecutor can also drop charges after
making efforts to prosecute (nolle prosequi).

A suspect charged with a crime must be taken before a judge or magistrate without
unnecessary delay. At the initial appearance, the judge or magistrate informs the accused of
the charges and decides whether there is probable cause to detain the accused person. If the
offense is not very serious, the determination of guilt and assessment of a penalty may also
occur at this stage.

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Often, the defense counsel is also assigned at the initial appearance. All suspects prosecuted
for serious crimes have a right to be represented by an attorney. If the court determines the
suspect is indigent and cannot afford such representation, the court will assign counsel at the
public’s expense.

A pretrial-release decision may be made at the initial appearance, but may occur at other
hearings or may be changed at another time during the process. Pretrial release and bail were
traditionally intended to ensure appearance at trial. However, many jurisdictions permit pretrial
detention of defendants accused of serious offenses and deemed to be dangerous to prevent
them from committing crimes prior to trial.

The court often bases its pretrial decision on information about the defendant’s drug use, as
well as residence, employment, and family ties. The court may decide to release the accused
on his/her own recognizance or into the custody of a third party after the posting of a financial
bond or on the promise of satisfying certain conditions such as taking periodic drug tests to
ensure drug abstinence.

In many jurisdictions, the initial appearance may be followed by a preliminary hearing. The
main function of this hearing is to discover if there is probable cause to believe that the
accused committed a known crime within the jurisdiction of the court. If the judge does not
find probable cause, the case is dismissed; however, if the judge or magistrate finds probable
cause for such a belief, or the accused waives his or her right to a preliminary hearing, the
case may be bound over to a grand jury.

A grand jury hears evidence against the accused presented by the prosecutor and decides if
there is sufficient evidence to cause the accused to be brought to trial. If the grand jury finds
sufficient evidence, it submits to the court an indictment, a written statement of the essential
facts of the offense charged against the accused.

Where the grand jury system is used, the grand jury may also investigate criminal activity
generally and issue indictments called grand jury originals that initiate criminal cases. These
investigations and indictments are often used in drug and conspiracy cases that involve
complex organizations. After such an indictment, law enforcement tries to apprehend and
arrest the suspects named in the indictment.

Misdemeanor cases and some felony cases proceed by the issuance of an information, a
formal, written accusation submitted to the court by a prosecutor. In some jurisdictions,

indictments may be required in felony cases. However, the accused may choose to waive a
grand jury indictment and, instead, accept service of an information for the crime.

In some jurisdictions, defendants, often those without prior criminal records, may be eligible
for diversion from prosecution subject to the completion of specific conditions such as drug
treatment. Successful completion of the conditions may result in the dropping of charges or
the expunging of the criminal record where the defendant is required to plead guilty prior to
the diversion.

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Criminal case processing

Federal justice Adjudication

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Once an indictment or information has been filed with the trial court, the accused is scheduled
for arraignment. At the arraignment, the accused is informed of the charges, advised of the
rights of criminal defendants, and asked to enter a plea to the charges. Sometimes, a plea of
guilty is the result of negotiations between the prosecutor and the defendant.

If the accused pleads guilty or pleads nolo contendere (accepts penalty without admitting
guilt), the judge may accept or reject the plea. If the plea is accepted, no trial is held and the
offender is sentenced at this proceeding or at a later date. The plea may be rejected and
proceed to trial if, for example, the judge believes that the accused may have been coerced.

If the accused pleads not guilty or not guilty by reason of insanity, a date is set for the trial. A
person accused of a serious crime is guaranteed a trial by jury. However, the accused may ask
for a bench trial where the judge, rather than a jury, serves as the finder of fact. In both
instances the prosecution and defense present evidence by questioning witnesses while the
judge decides on issues of law. The trial results in acquittal or conviction on the original
charges or on lesser included offenses.

After the trial a defendant may request appellate review of the conviction or sentence. In
some cases, appeals of convictions are a matter of right; all States with the death penalty

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provide for automatic appeal of cases involving a death sentence. Appeals may be subject to
the discretion of the appellate court and may be granted only on acceptance of a defendant’s
petition for a writ of certiorari. Prisoners may also appeal their sentences through civil rights
petitions and writs of habeas corpus where they claim unlawful detention.

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Criminal sentencing

Federal justice Sentencing and sanctions

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After a conviction, sentence is imposed. In most cases the judge decides on the sentence, but
in some jurisdictions the sentence is decided by the jury, particularly for capital offenses.

In arriving at an appropriate sentence, a sentencing hearing may be held at which evidence of
aggravating or mitigating circumstances is considered. In assessing the circumstances
surrounding a convicted person’s criminal behavior, courts often rely on presentence
investigations by probation agencies or other designated authorities. Courts may also
consider victim impact statements.

The sentencing choices that may be available to judges and juries include one or more of the
following:

the death penalty
incarceration in a prison, jail, or other confinement facility
probation – allowing the convicted person to remain at liberty but subject to certain
conditions and restrictions such as drug testing or drug treatment
fines – primarily applied as penalties in minor offenses
restitution – requiring the offender to pay compensation to the victim.

In some jurisdictions, offenders may be sentenced to alternatives to incarceration that are
considered more severe than straight probation but less severe than a prison term. Examples
of such sanctions include boot camps, intense supervision often with drug treatment and
testing, house arrest and electronic monitoring, denial of Federal benefits, and community
service.

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In many jurisdictions, the law mandates that persons convicted of certain types of offenses
serve a prison term. Most jurisdictions permit the judge to set the sentence length within
certain limits, but some have determinate sentencing laws that stipulate a specific sentence
length that must be served and cannot be altered by a parole board.

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Corrections Corrections

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Offenders sentenced to incarceration usually serve time in a local jail or a State prison.
Offenders sentenced to less than 1 year generally go to jail; those sentenced to more than 1
year go to prison. Persons admitted to the Federal system or a State prison system may be
held in prisons with varying levels of custody or in a community correctional facility.

A prisoner may become eligible for parole after serving a specific part of his or her sentence.
Parole is the conditional release of a prisoner before the prisoner’s full sentence has been
served. The decision to grant parole is made by an authority such as a parole board, which has
power to grant or revoke parole or to discharge a parolee altogether. The way parole decisions
are made varies widely among jurisdictions.

Offenders may also be required to serve out their full sentences prior to release (expiration of
term). Those sentenced under determinate sentencing laws can be released only after they
have served their full sentence (mandatory release) less any “goodtime” received while in
prison. Inmates get goodtime credits against their sentences automatically or by earning
them through participation in programs.

If released by a parole board decision or by mandatory release, the releasee will be under the
supervision of a parole officer in the community for the balance of his or her unexpired
sentence. This supervision is governed by specific conditions of release, and the releasee may
be returned to prison for violations of such conditions.

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Recidivism 
Once the suspects, defendants, or offenders are released from the jurisdiction of a criminal
justice agency, they may be processed through the criminal justice system again for a new
crime. Long term studies show that many suspects who are arrested have prior criminal
histories and those with a greater number of prior arrests were more likely to be arrested
again. As the courts take prior criminal history into account at sentencing, most prison
inmates have a prior criminal history and many have been incarcerated before. Nationally,
about half the inmates released from State prison will return to prison.

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 Juvenile justice and facts and figures

The juvenile justice system 
Juvenile courts usually have jurisdiction over matters concerning children, including
delinquency, neglect, and adoption. They also handle “status offenses” such as truancy and
running away, which are not applicable to adults. State statutes define which persons are
under the original jurisdiction of the juvenile court. The upper age of juvenile court jurisdiction
in delinquency matters is 17 in most States.

The processing of juvenile offenders is not entirely dissimilar to adult criminal processing, but
there are crucial differences. Many juveniles are referred to juvenile courts by law
enforcement officers, but many others are referred by school officials, social services
agencies, neighbors, and even parents, for behavior or conditions that are determined to
require intervention by the formal system for social control.

At arrest, a decision is made either to send the matter further into the justice system or to
divert the case out of the system, often to alternative programs. Examples of alternative
programs include drug treatment, individual or group counseling, or referral to educational and
recreational programs.

When juveniles are referred to the juvenile courts, the court’s intake department or the
prosecuting attorney determines whether sufficient grounds exist to warrant filing a petition

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that requests an adjudicatory hearing or a request to transfer jurisdiction to criminal court. At
this point, many juveniles are released or diverted to alternative programs.

All States allow juveniles to be tried as adults in criminal court under certain circumstances.
In many States, the legislature statutorily excludes certain (usually serious) offenses from the
jurisdiction of the juvenile court regardless of the age of the accused. In some States and at
the Federal level under certain circumstances, prosecutors have the discretion to either file
criminal charges against juveniles directly in criminal courts or proceed through the juvenile
justice process. The juvenile court’s intake department or the prosecutor may petition the
juvenile court to waive jurisdiction to criminal court. The juvenile court also may order referral
to criminal court for trial as adults. In some jurisdictions, juveniles processed as adults may
upon conviction be sentenced to either an adult or a juvenile facility.

In those cases where the juvenile court retains jurisdiction, the case may be handled formally
by filing a delinquency petition or informally by diverting the juvenile to other agencies or
programs in lieu of further court processing.

If a petition for an adjudicatory hearing is accepted, the juvenile may be brought before a court
quite unlike the court with jurisdiction over adult offenders. Despite the considerable
discretion associated with juvenile court proceedings, juveniles are afforded many of the due-
process safeguards associated with adult criminal trials. Several States permit the use of
juries in juvenile courts; however, in light of the U.S. Supreme Court holding that juries are not
essential to juvenile hearings, most States do not make provisions for juries in juvenile courts.

In disposing of cases, juvenile courts usually have far more discretion than adult courts. In
addition to such options as probation, commitment to a residential facility, restitution, or fines,
State laws grant juvenile courts the power to order removal of children from their homes to
foster homes or treatment facilities. Juvenile courts also may order participation in special
programs aimed at shoplifting prevention, drug counseling, or driver education.

Once a juvenile is under juvenile court disposition, the court may retain jurisdiction until the
juvenile legally becomes an adult (at age 21in most States). In some jurisdictions, juvenile
offenders may be classified as youthful offenders which can lead to extended sentences.

Following release from an institution, juveniles are often ordered to a period of aftercare which
is similar to parole supervision for adult offenders. Juvenile offenders who violate the
conditions of aftercare may have their aftercare revoked, resulting in being recommitted to a

facility. Juveniles who are classified as youthful offenders and violate the conditions of
aftercare may be subject to adult sanctions.

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The structure of the justice system 
The governmental response to crime is founded in the intergovernmental structure of the
United States

Under our form of government, each State and the Federal Government has its own criminal
justice system. All systems must respect the rights of individuals set forth in court
interpretation of the U.S. Constitution and defined in case law.

State constitutions and laws define the criminal justice system within each State and delegate
the authority and responsibility for criminal justice to various jurisdictions, officials, and
institutions. State laws also define criminal behavior and groups of children or acts under
jurisdiction of the juvenile courts.

Municipalities and counties further define their criminal justice systems through local
ordinances that proscribe the local agencies responsible for criminal justice processing that
were not established by the State.

Congress has also established a criminal justice system at the Federal level to respond to
Federal crimes such a bank robbery, kidnaping, and transporting stolen goods across State
lines.

The response to crime is mainly a State and local function

Very few crimes are under exclusive Federal jurisdiction. The responsibility to respond to most
crime rests with State and local governments. Police protection is primarily a function of cities
and towns. Corrections is primarily a function of State governments. Most justice personnel
are employed at the local level.

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Discretion is exercised throughout the
criminal justice system 
Very few crimes are under exclusive Federal jurisdiction. The responsibility to respond to most
crime rests with State and local governments. Police protection is primarily a function of cities
and towns. Corrections is primarily a function of State governments. Most justice personnel
are employed at the local level.

Discretion is “an authority conferred by law to act in certain conditions or situations in
accordance with an official’s or an official agency’s own considered judgment and
conscience.”  Discretion is exercised throughout the government. It is a part of decision-
making in all government systems from mental health to education, as well as criminal
justice. The limits of discretion vary from jurisdiction to jurisdiction.

Concerning crime and justice, legislative bodies have recognized that they cannot anticipate
the range of circumstances surrounding each crime, anticipate local mores, and enact laws
that clearly encompass all conduct that is criminal and all that is not.  Therefore, persons
charged with the day-to-day response to crime are expected to exercise their own judgment
within limits set by law. Basically, they must decide –

whether to take action
where the situation fits in the scheme of law, rules, and precedent
which official response is appropriate.

To ensure that discretion is exercised responsibly, government authority is often delegated to
professionals. Professionalism requires a minimum level of training and orientation, which
guide officials in making decisions. The professionalism of policing is due largely to the desire
to ensure the proper exercise of police discretion.

The limits of discretion vary from State to State and locality to locality. For example, some
State judges have wide discretion in the type of sentence they may impose. In recent years
other States have sought to limit the judges discretion in sentencing by passing mandatory
sentencing laws that require prison sentences for certain offenses.

Notes

 Roscoe Pound, “Discretion, dispensation and mitigation: The problem of the individual
special case,” New York University Law Review (1960) 35:925, 926.

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1

 Wayne R. LaFave, Arrest: The decision to take a suspect into custody (Boston: Little, Brown &
Co., 1964), p. 63-184.

 Memorandum of June 21, 1977, from Mark Moore to James Vorenberg, “Some abstract
notes on the issue of discretion.”

Who exercises discretion?

These criminal justice officials… must often decide whether or not or how to …

Police

-Enforce specific laws
-Investigate specific crimes
-Search people, vicinities, buildings
-Arrest or detain people

Prosecutors

-File charges or petitions for adjudication
-Seek indictments
-Drop cases
-Reduce charges

Judges or magistrates

-Set bail or conditions for release
-Accept pleas
-Determine delinquency
-Dismiss charges
-Impose sentence
-Revoke probation

Correctional officials
-Assign to type of correctional facility
-Award privileges
-Punish for disciplinary infractions

Paroling authorities Determine date and conditions of parole Revoke parole

 

Date Created: June 3, 2021

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